Summary of Commission Decision of 9 October 2013 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case COMP/M.6796 — Aegean/Olympic II) (notified under document C(2013) 6561)  Text with EEA relevance
Date: 2013-10-09
Institutions: European Commission
Subjects: Greece, airline, economic concentration, merger control








C_2015025EN.01000701.xml










24.1.2015   


EN


Official Journal of the European Union


C 25/7





Summary of Commission Decision
of 9 October 2013
declaring a concentration compatible with the internal market and the functioning of the EEA Agreement
(Case COMP/M.6796 — Aegean/Olympic II)
(notified under document C(2013) 6561)
(Only the English version is authentic)
(Text with EEA relevance)
(2015/C 25/05)

On 9 October 2013 the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings
 (1)
, and in particular Article 8(1) of that Regulation. A non-confidential version of the full Decision can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address: http://ec.europa.eu/comm/competition/index_en.html

I.   THE PROCEDURE









(1)


On 6 November 2012, the competition authorities of the Hellenic Republic and of the Republic of Cyprus referred to the Commission pursuant to Article 22(1) of Council Regulation (EC) No 139/2004 a proposed concentration by which Aegean Airlines S.A. (‘Aegean’ or the ‘Notifying Party’) intends to acquire within the meaning of Article 3(1)(b) of the Merger Regulation sole control over Olympic Air S.A. (‘Olympic’; together with Aegean — ‘the Parties’ or ‘the Merged Entity’) by way of purchase of shares (‘the Transaction’). The Commission accepted the requests for referral by two decisions dated 3 December 2012.












(2)


On 28 February 2013, the European Commission received a notification of the Transaction.












(3)


On 25 March 2013, the Notifying Party submitted a package of formal commitments pursuant to Article 6(2) of the Merger Regulation. These commitments were not market tested.












(4)


After examination of the notification and based on the first phase market investigation, the Commission raised serious doubts as to the compatibility of the Transaction with the internal market and adopted a decision to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation on 23 April 2013 (the ‘Decision opening proceedings’).












(5)


Following a request by Aegean of 29 April 2013, a non-confidential version of certain key submissions of third parties collected during the first phase investigation was provided to Aegean on 30 April 2013.












(6)


On 3 May 2013, the Notifying Party requested an extension of the time period for the second phase investigation by 16 working days pursuant to the second subparagraph of Article 10(3) of the Merger Regulation.












(7)


On 14 May 2013, the Notifying Party submitted its written comments to the Decision opening proceedings.












(8)


On 8 July 2013, a Statement of Objections (‘SO’) was sent to the Notifying Party by the Commission pursuant to Article 18 of the Merger Regulation.












(9)


The Notifying Party submitted its response to the SO on 23 July 2013.












(10)


In order to address competition concerns identified in the SO, the Notifying Party submitted a package of formal commitments on 22 August 2013 pursuant to Article 8(2) of the Merger Regulation. These commitments were not market tested.












(11)


The Advisory Committee convened on 25 September 2013 and rendered a favourable opinion on the Commission’s proposal to declare the concentration compatible with the Internal Market.












(12)


On 9 October 2013 the Commission adopted a Decision under Article 8(1) of the Merger Regulation declaring the concentration compatible with the Internal Market.




II.   THE PARTIES









(13)


Aegean is a publicly listed (2) Greek airline providing air transport of passengers and, to a more limited extent, cargo services. Since 1999, the company has been offering scheduled flights on Greek domestic routes and international short-haul routes and in particular currently operates flights to approximately 50 international and domestic short-haul destinations. The company has a fleet of 29 jet aircraft from the Airbus A320 family. Aegean has its main base at Athens International Airport (‘AIA’), as well as bases at other Greek and Cypriot airports, including Thessaloniki, Heraklion, and Larnaca. Aegean is a member of the Star Alliance.












(14)


Olympic is a Greek airline active in air transport of passengers and cargo. It is fully owned by Marfin Investment Group (‘Marfin’), a Greek investment group with investments in a number of sectors (3). Olympic started its operations on 1 October 2009 following the privatisation of former Olympic Airlines in the course of which Marfin acquired the brand, slots and licenses of Olympic Airlines. Olympic operates its main base at AIA and a secondary base with one aircraft at Rhodes airport. Olympic serves a number of short-haul destinations, mainly within Greece. Amongst them, 15 Greek destinations constitute routes of Public Service Obligation (‘PSO’). Olympic currently has a fleet of 17 aircraft (three Airbus of the A320 family, 10 Bombardier Dash 8 Q400 and four Bombardier Dash 8 Q100). In the near future, Olympic intends […] to operate a single aircraft type fleet of Bombardier Q Series turboprop aircraft. Olympic is not a member of any airline alliance.












(15)


Previously Aegean and Olympic have already tried to merge their operations. Following an in-depth investigation in the case Olympic/Aegean Airlines (‘Olympic/Aegean I’) the Commission prohibited the proposed merger between Aegean and Olympic on 26 January 2011 (4).




III.   THE RELEVANT PRODUCT AND GEOGRAPHIC MARKETS









(16)


There are no markets affected by the Transaction other than those relating to passenger air transport services on PSO routes and passenger air transport services on commercial (non-PSO) routes.




III.1.   PSO routes









(17)


In Greece, PSO routes are operated as an exclusive concession by the chosen airline, and thus no other airline can operate on a commercial basis on the same route until the end of the concession period.












(18)


Therefore, the operation of PSO routes should be considered distinct from the commercial air transport of passengers, as no competition can take place on PSO routes conceded to a single airline. Rather, competition takes place for the market at the tender stage.












(19)


In any event, the precise definition of the relevant product market can be left open as the Transaction is unlikely to significantly impede effective competition with respect to PSO routes.












(20)


As to the geographic scope of the market, the PSO Regulation demands that non-Greek (but still EEA) airlines must be allowed to participate on equal terms with Greek airlines on tenders for PSO routes. However, the fact that airlines not active in the Greek domestic market can participate on equal terms does not necessarily lead to the conclusion that the geographic market is wider than national (5).












(21)


In any event, the precise definition of the relevant geographic market can be left open as the Transaction is unlikely to significantly impede effective competition with respect to PSO routes.




III.2.   Commercial routes

III.2.1.   Origin and destination approach









(22)


In its decisional practice, the Commission has traditionally defined the relevant market for scheduled passenger air transport services on the basis of the ‘point of origin/point of destination’ (‘O&D’) city-pair approach (6). Such a market definition reflects the demand-side perspective whereby passengers consider all possible alternatives of travelling from a city of origin to a city of destination, while they do not generally consider such city-pair substitutable to a different city-pair. As a result, every combination of a point of origin and a point of destination is considered as a separate market from a customer viewpoint.












(23)


The Notifying Party has not objected to the O&D approach.












(24)


On the basis of the market investigation, the Commission considers that the O&D approach is the relevant approach. The majority of the respondents, notably travel agents and corporate customers, agree that the O&D approach is the most appropriate way for defining markets in this case.




III.2.2.   Time sensitive vs. non-time sensitive passengers









(25)


The Commission has traditionally found that a distinction may be drawn between time sensitive (‘TS’) and non-time sensitive passengers (‘NTS’). TS passengers tend to travel for business purposes, require significant flexibility of their tickets (such as cost-free cancellation and modification of the time of departure) and tend to pay higher prices for this flexibility. NTS customers travel predominantly for leisure purposes or to visit friends and relatives, book a long time in advance, do not require flexibility with their booking and are generally more price-sensitive (7).












(26)


The Notifying Party argues that the ‘time sensitivity’ of travellers in Greece is diminishing in importance and that the relevance of the distinction is now increasingly doubtful, even more than it was two years ago at the time of the investigation in case Olympic/Aegean I
 (8).












(27)


In the present case, the Commission considers, on the basis of the market investigation, that the distinction between TS and NTS passengers remains relevant. A large majority of respondents (competitors, travel agents and corporate customers) confirmed the existence of two clearly identifiable groups of passengers mainly based on the different needs and preferences of each group.




III.2.3.   Intermodal competition: substitutability of ferry and train services with air services









(28)


When defining the relevant O&D markets for air transport services, the Commission examined in the past other transport alternatives so as to assess whether they were substitutable to a flight in the eyes of passengers travelling on individual routes (intermodal competition) (9).












(29)


The Notifying Party submits that other forms of transport (notably ferries) may exert competitive pressure on air transport services on a number of Greek routes. The Notifying Party notes, in particular, that there is a competitive constraint exerted by ferries on the Athens-Mykonos and the Athens-Santorini routes.












(30)


In view of the results of the market investigation, the Commission considers that ferry services are not part of the same market as air services for TS passengers on all the domestic overlapping routes of the Parties, except for the Athens-Mykonos route. With respect to substitutability between ferry and air services for the segments of NTS passengers and all passengers on all the domestic overlapping routes of the Parties (except for the Athens-Mykonos and the Athens-Rhodes routes), the precise market definition can ultimately be left open, since it would not alter the assessment of the Transaction.












(31)


The Commission’s market investigation also confirmed that train services do not compete in the same market as air services on Athens-Thessaloniki for all segments of passengers.




IV.   COMPETITIVE ASSESSMENT

IV.1.   Competitive assessment of PSO routes









(32)


Aegean and Olympic have a combined share of 58 % of the current 28 PSO routes, while the Transaction accounts for a limited increment of 4 % (Olympic: 15 routes; Aegean: 1 route; Sky Express: 7 routes; Astra: 5 routes). Aegean’s jets are able to technically operate only on 12 of the current 28 PSO routes. The Commission’s market investigation confirmed that Aegean and Olympic are not each other’s closest competitors on the current 28 PSO routes, in particular due to Aegean’s jet fleet. Moreover, the Parties’ competitors have been increasing their presence on Greek PSO routes following the last tender.












(33)


Therefore, the Commission concludes that the Transaction would not significantly impede effective competition in the market for PSO routes in Greece, regardless of the exact definition of the relevant market.




IV.2.   Competitive assessment of commercial routes

IV.2.1.   The scope of the actual and potential overlaps









(34)


In January 2011, at the time of the issuance of the decision in Olympic/Aegean I, the Parties’ operations overlapped on 15 domestic and 8 international routes. Since then, the number of overlaps has been decreasing steadily.












(35)


By July 2013, due to its losses, Olympic decided to exit the three most important domestic routes, Athens-Thessaloniki, Athens-Heraklion and Athens-Rhodes, as from winter season 2013. Thus by October 2013, the Parties’ operations will overlap on 3 routes. In summer 2014, provided there will be no additional exits, the operations will overlap on 5 domestic routes. The Notifying Party submits that the number of passengers travelling on domestic routes on which the Parties overlapped is projected to drop by 84 %, from 4 million O&D passengers on the 19 overlap routes in January 2010 to 650 thousand O&D passengers on the 5 overlap routes in July 2014.












(36)


Hence, the Commission considers the following 5 actual overlaps between the parties: Athens-Chania, Athens-Corfu, Athens-Kos, Athens-Mytilene, and Athens-Santorini (referred to (together with the potential overlaps (see section IV.2.6)) as the ‘routes of concern’).












(37)


Considering TS passengers, the Transaction would lead to a monopoly on all of the actual overlap routes. As regards NTS passengers and all passengers, the Transaction would lead to monopoly on Athens-Corfu, and either to monopoly (should ferries be excluded from the respective relevant markets) or at least to the elimination of the two closest competitors (should ferries be included in the respective relevant markets) on Athens-Chania, Athens-Kos, Athens-Mytilene and Athens-Santorini.












(38)


Furthermore, the Transaction would lead to the elimination of potential competition on six routes because the Parties would cease to exert a threat of entry on each other (see section IV.2.6).




IV.2.2.   Closeness of competition









(39)


As of April 2013, Olympic would be operating exclusively turboprop aircraft whereas Aegean has exclusively jet aircraft in its fleet.












(40)


On the supply side, turboprop aircraft burn less fuel than jets, and have a lower seat capacity. Hence, Olympic’s Q400 turboprop aircraft have 78 seats compared to Aegean’s A320s offering 168 seats. As a basic rule, on thin routes turboprop operations have a cost advantage over using Airbus A320s due to higher load factors and frequencies, whereas on thick routes operations with jet aircraft become more efficient than turboprop operations. On the demand side, Aegean submits that passengers prefer jet aircraft to turboprops, due to more comfort, less vibration and less noise.












(41)


The market investigation has nevertheless shown that the Parties are close and essentially each other’s closest competitors on the routes of concern. This conclusion was reached in particular in view of the Parties being the only two carriers present on the actual overlaps with ferries constituting at best only remote substitutes.




IV.2.3.   The recent entry and exit of Cyprus Airways









(42)


On 26 March 2012, Cyprus Airways entered the Greek domestic route Athens-Thessaloniki. In October 2012, Cyprus Airways added to its schedule Athens-Heraklion and Athens-Rhodes.












(43)


Cyprus Airways’ entry into three overlapping routes of the Parties led the Notifying Party to argue that Cyprus Airways was developing into a major competitor in the Greek domestic markets. In its Decision opening proceedings, the Commission expressed doubts regarding the viability of Cyprus Airways and its continued presence on Greek domestic routes.












(44)


On 1 July 2013, Cyprus Airways announced its exit from the three routes Athens-Thessaloniki, Athens-Heraklion and Athens-Rhodes in the framework of its restructuring plan and expressed no intention to re-enter.




IV.2.4.   Constraint by direct international flights









(45)


Although the Notifying Party claimed that direct flights from international destinations to Greek islands exert competitive pressure on Greek domestic flights ex-Athens, it was unable to provide relevant evidence and the market investigation did not substantiate this claim. The Commission thus considers that direct flights from international destinations to Greek islands would not exert competitive pressure on domestic flights ex-Athens, in particular on the routes of concern.




IV.2.5.   Entry/expansion









(46)


The Commission examined the likelihood of timely and sufficient entry by any other airline into the Greek domestic market post-Transaction. The Notifying Party submitted that entry is most likely by low-cost carriers, such as Ryanair and easyJet.












(47)


The Commission’s market investigation identified several elements militating against the likelihood of timely and sufficient entry. While the importance of each of these elements may depend on the type of the carrier (e.g. low-cost versus full-service carrier), together these elements indicate that timely and sufficient entry is unlikely on the routes of concern.












(48)


First, the evidence demonstrated that entry on Greek domestic routes would entail significant sunk costs of entry. The most important of such sunk costs take the form of initial losses on a route which result from low introductory pricing to penetrate a Greek domestic route. Other sunk costs are the marketing expenditures required to establish brand recognition.












(49)


Second, the market investigation revealed a number of elements affecting the likely profitability and risk of entry on Greek domestic routes. In particular, the low level of demand on the Greek domestic market and uncertainty about its evolution are likely to deter an entry decision. Also, the high level of airport charges at Athens airport, which by some estimates is Europe’s 2nd or 4th most expensive airport, dissuades entry. High airport charges at Athens airport are particularly relevant for low-cost carriers which rely on traffic stimulated through low fares. Furthermore, the market investigation identified further impeding factors, such as distribution costs, access to connecting traffic, and slot and infrastructure congestion at Greek regional airports during peak times in summer season.












(50)


Third, for assessing entry, the Commission considers it necessary to take into account opportunity costs, especially in a context of uncertainty and low return such as the one prevailing in the Greek domestic market.












(51)


Fourth, in order for entry to be of scope and scale sufficient to constrain the merged entity, a potential entrant would need to establish a base at Athens.












(52)


Finally, the Commission sought the views of potential competitors regarding the likelihood of their entry on the routes of concern post-Transaction.






—


easyJet repeatedly denied that it would be likely to enter intra-Greece. easyJet explained its lack of interest in Greek domestic routes with the fact that its business strategy was to focus on its core markets of which Greece was not a part.










—


Ryanair stated that it would not enter the routes to/from Athens unless the airport charges at Athens were substantially lowered. According to the available evidence, this was unlikely to happen to a sufficient degree in the relevant future. Historically Ryanair avoided major airports with high airport charges, primarily flying to cheaper secondary airports.










—


Vueling submitted that it could consider entry intra-Greece if the conditions were right. However, Vueling’s entry plans were very tentative to indicate the likelihood of timely and sufficient entry.










—


The market investigation has not revealed the likelihood of entry also by other domestic or international airlines post-Transaction.
















(53)


Consequently, it is unlikely that post-Transaction any of the potential competitors would enter the Greek domestic routes of concern in a timely and sufficient manner to deter or defeat any potential anticompetitive effects of the Transaction.




IV.2.6.   Potential competition









(54)


Competition on the routes of concern currently operated by both Aegean and Olympic from their base at Athens cannot be regarded in isolation. Potential competition is an important parameter of competition between Aegean and Olympic due to their vast network in Greece and as evidenced by past experience of entry events.












(55)


As a consequence of the historical competition patterns with each other and the very limited impact of entry by other carriers on the Parties, Aegean and Olympic exert a potential competitive constraint on each other on a number of routes.












(56)


The Commission therefore considers that the Transaction is likely to significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position, by eliminating the most credible potential entrant on the following routes on which Aegean and Olympic respectively exert a significant constraining influence and on which there is no sufficient number of other potential competitors which could maintain sufficient competitive pressure on the merged entity post-Transaction: Athens-Alexandroupolis, Athens-Rhodes, Athens-Thessaloniki, Athens-Heraklion, Athens-Chios and Athens-Samos.




IV.2.7.   Effects on consumers









(57)


A merger leading to high market shares is particularly likely to lead to price increases when customers of the parties are likely to have difficulties or to be unable to switch to other suppliers, because there are few or no alternative suppliers. Such customers are, according to the Horizontal Merger Guidelines, ‘particularly vulnerable to price increases’ (10).












(58)


This would be the case after the Transaction, since: (i) for TS passengers, the Transaction would eliminate any alternative on all the monopoly routes; and (ii) for NTS passengers, (should ferries not be included in the respective relevant markets) the Transaction would eliminate any alternative on all the monopoly routes, or at least (should ferries be included in the respective relevant markets) it would eliminate the closest competitor (11). Therefore, consumers would have a very limited choice when deciding to travel. Moreover, the Transaction would also eliminate potential competition on several other non-overlapping routes, which would lead to the removal of competitive pressure to the detriment of consumers.




IV.2.8.   Conclusion on the competitive assessment









(59)


Therefore, the Commission concludes that the Transaction would lead to a significant impediment of effective competition, in particular as a result of the creation or strengthening of a dominant position, as concerns the following routes, where the Transaction gives rise to very high combined market shares, and eliminates the important competitive constraint exercised by the Parties on each other in their quality of each other’s close (and in most instances the closest) competitors:






(a)


Athens-Chania










(b)


Athens-Corfu










(c)


Athens-Kos










(d)


Athens-Mytilene










(e)


Athens-Santorini
















(60)


Moreover, the Commission concludes that the Transaction is likely to significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position, by eliminating the most credible potential entrant on the following routes:






(a)


Athens-Alexandroupolis










(b)


Athens-Rhodes










(c)


Athens-Thessaloniki










(d)


Athens-Heraklion










(e)


Athens-Chios










(f)


Athens-Samos








IV.2.9.   Efficiencies









(61)


According to the Merger Regulation and the Horizontal Merger Guidelines, under certain conditions, the anticompetitive effects of a merger can be partially or totally outweighed by efficiencies that the merger would generate.












(62)


The Notifying Party submits that the Transaction will generate significant efficiencies of around EUR […] million. This total consists of EUR […] million of variable cost savings on ground handling, catering and distribution; fixed cost savings of EUR […] million from reduced headcount and consolidation of administrative functions; EUR […] million from fleet utilisation benefits; and EUR […] million of ‘revenue synergies’ stemming from improved connectivity of networks on overlap and non-overlap routes.












(63)


The Commission has assessed the various categories of claimed efficiencies during its investigation. The Commission considers that the claimed efficiencies are unlikely to be sufficient to offset the likely harm from the Transaction. Since, however, any competitive harm to the markets in question would not be caused by the Transaction, because Olympic is a failing firm which absent the Transaction would exit the market (see section VI), it is not necessary for the Commission to form a final view on the Notifying Party’s efficiency claims.




V.   COMMITMENTS









(64)


The Notifying Party submitted commitments under Article 8(2) of the Merger Regulation, which consisted of a fare cap remedy and an aircraft sub-lease offer to potential entrants at favourable conditions, according to the Notifying Party.












(65)


The Commission did not market-test these commitments as it considered them unsuitable to remove the identified competition concerns.












(66)


It was however in any event not necessary to conduct a detailed analysis of the submitted commitments because the Commission came to the conclusion that Olympic would ultimately leave the market also absent the Transaction (see the following section on the failing firm defence) and, therefore, any harm to competition would not be caused by the Transaction. Consequently, there is no need for remedies in this case.




VI.   FAILING FIRM DEFENCE









(67)


On 24 August 2013, the Notifying Party submitted that given Olympic’s financial needs and unavailability of funds, absent the Transaction, Olympic would stop operating and as a result cease to be a competitor to Aegean. Consequently, with or without the Transaction, Aegean would become the only operator on those overlap routes where the Commission found competition concerns, and the Transaction should be cleared.












(68)


Accordingly, the Commission has performed an analysis to determine whether the conditions of the failing firm defence (FFD), as set out in the case law and Horizontal Merger Guidelines, are fulfilled. The FFD is analysed in the context of the unprecedented Greek economic crisis and the subsequent fall of domestic demand: passengers on domestic routes ex-Athens have decreased by 26 % between 2009 and 2012, and this decline has continued in the first half of 2013.




VI.1.   First criterion of the FFD: Olympic would be forced out of the market because of financial difficulties if not taken over by Aegean









(69)


Olympic has so far only survived due to the continuous funding of its parent company Marfin. Olympic has never been profitable since 2009 when Marfin relaunched the company without liabilities following the tender by the Greek government. Olympic will incur a loss also in 2013, and it is expected to remain loss-making for the next 2-3 years under any business plan.












(70)


However, Marfin is currently in a strenuous financial situation. The bankruptcy of Cyprus Laiki bank has not only resulted in high financial impairments but also in significant uncertainties due to the interim court’s order against leading Marfin executives and Marfin itself. Moreover, Marfin’s subsidiaries continued to record losses in 2012 and Marfin used up almost all of its unrestricted cash. Marfin is currently left with approximately EUR […] million of unrestricted cash.












(71)


Despite the extreme shrinkage of Olympic and the many exits from loss-making routes in the last years, the airline has not been able to turn to profitability and has continued to generate only losses. On the basis of Olympic’s business scenarios, it is very likely that Olympic will need further funding of at least EUR […] million in the coming three years until 2016. Olympic’s short term funding needs will likely peak [in the near future] already with requirements of about EUR […] million. There is therefore a high likelihood that Marfin would not be able to meet this requirement.












(72)


More generally, it would be much less costly for Marfin to shut down Olympic than to keep operating it. Any further investment in Olympic in the foreseeable future until 2016 is not expected to generate any profits but will in all likelihood only lead to further losses.












(73)


Olympic is not among the core subsidiaries that Marfin would continue supporting with its limited funds. The core subsidiaries of the Marfin Group account for […] % of the group’s sales and almost all of its Net Asset Value, are leaders in their markets. In contrast, Olympic has no tangible or valuable assets, it is gradually shrinking its operations and it is not expected to return to profitability in the foreseeable future, even under extremely optimistic assumptions.












(74)


In the next 3 years, Marfin can collect under the most optimistic assumptions EUR […] million from divestment of non-core assets. If the EUR […] million of minimum financial support for 2014 to Marfin’s core subsidiaries are added, the difficult financial situation of the group becomes even more evident.












(75)


In view of the above, Marfin’s most rational decision would indeed be to cease supporting Olympic and close it down completely.




VI.2.   Second criterion of the FFD: there is no less anti-competitive purchase than the notified merger









(76)


The Commission’s market investigation has shown that, except for Aegean, there has been no substantiated interest for the purchase of Olympic. Even after the 2011 prohibition decision, when the airline was obviously available for sale to other purchasers, there was no such interest.




VI.3.   Third criterion of the FFD: in the absence of a merger, the assets of the failing firm would inevitably exit the market









(77)


The market investigation showed that there was no substantiated interest for Olympic’s core assets, namely the Olympic brand/logo, the bilateral traffic rights and the leased turboprop aircraft. In particular, the Olympic brand/logo would return to its owner, the Greek State. Even if the Greek State was to retender the brand, it is unlikely that any third party, except Aegean, would be interested in acquiring it.




VI.4.   Conclusion on the FFD









(78)


Based on the above, and under the particular and exceptional circumstances of the present case, which is characterised by the protracted adverse economic conditions in Greece, significant decline in passenger numbers on Greek domestic routes, historic unprofitability of Olympic without conceivable prospects for reversal in the near future, difficult finances of the parent company and its limited ability and incentive to further financially support Olympic, the Commission concludes that Olympic meets the requirements of the failing firm within the meaning of the Horizontal Merger Guidelines.




VI.5.   Causality









(79)


Furthermore, it is concluded that the deterioration of the competitive structure of the market as a consequence of the proposed takeover of Olympic by Aegean would be not greater than without the Transaction, and therefore cannot be considered to be caused by it.




VII.   CONCLUSION









(80)


For the reasons mentioned above, the decision concludes that the proposed concentration will not significantly impede effective competition in the Internal Market or in a substantial part of it.












(81)


Consequently the concentration should be declared compatible with the Internal Market and the functioning of the EEA Agreement, in accordance with Article 2(2) and Article 8(1) of the Merger Regulation and Article 57 of the EEA Agreement.






(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

(2)  Aegean is listed on the Athens Stock Exchange and its main shareholders include the Vassilakis group of companies (38 %) and the Laskaridis group of companies (19 %).

(3)  Marfin has investments in aviation, shipping, healthcare, IT and telecoms, tourism and leisure, and the food and beverages sectors.

(4)  Commission Decision of 26 January 2011 in Case COMP/M.5830 — Olympic/Aegean Airlines.

(5)  For example, in the transport sector, the Commission considered that bidding markets for public transport services in France had at most a national dimension (see Commission decision of 29 October 2009 in Case COMP/M.5557 — SNCF-P/CDPQ/KEOLIS/EFFIA, paragraphs 43-46). See also Commission Decision of 26 January 2011 in Case COMP/M.5830 — Olympic/Aegean Airlines, recitals 295-297.

(6)  For example, Commission Decision of 27 February 2013 in Case COMP/M.6663 — Ryanair/Aer Lingus III (not yet published), Commission Decision of 30 March 2012 in Case COMP/M.6447 — IAG/bmi paragraphs 31-34; Commission Decision of 27 July 2010 in Case COMP/M.5889 — United Air Lines/Continental Airlines, paragraphs 9-12; Commission Decision of 26 January 2011 in Case COMP/M.5830 — Olympic/Aegean Airlines, recitals 41-44. The O&D approach was confirmed by the General Court: see Case T-342/07 Ryanair Holdings plc v Commission [2010] ECR II-3457, paragraph 99; Case T-177/04 easyJet v Commission [2006] ECR II-1913, paragraph 56; Case T-2/93 Air France v Commission [1994] ECR II-323 paragraph 84.

(7)  Commission Decision of 26 January 2011 in Case COMP/M.5830 — Olympic/Aegean Airlines; Commission Decision of 28 August 2009 in Case COMP/M.5440 — Lufthansa/Austrian Airlines; Commission Decision of 9 January 2009 in Case COMP/M.5364 — Iberia/Vueling/Clickair; Commission Decision of 22 June 2009 in Case COMP/M.5335 — Lufthansa/SN Airholding; Commission Decision of 4 July 2005 in Case COMP/M.3770 — Lufthansa/Swiss; Commission Decision of 11 February 2004 in Case COMP/M.3280 — Air France/KLM.

(8)  In Olympic/Aegean I, it was ultimately left open whether TS passengers are in a separate market from NTS passengers, recitals 92-93.

(9)  Commission Decision of 26 January 2011 in Case COMP/M.5830 — Olympic/Aegean Airlines; Commission Decision of 17 June 2010 in Case COMP/M.5655 — SNCF/LCR/Eurostar; Commission Decision of 11 October 2007 in Case COMP/M.4439 — Ryanair/Aer Lingus; Commission Decision of 22 December 2005 in Case COMP/M.3940 — Lufthansa/Eurowings; Commission Decision of 4 July 2007 in Case COMP/M.3770 — Lufthansa/Swiss; Commission Decision of 11 February 2004 in Case COMP/M.3280 — Air France/KLM.

(10)  Case COMP/M.4439 Ryanair/Aer Lingus, recital 541; Horizontal Merger Guidelines, paragraph 31.

(11)  On routes Athens-Corfu and Athens-Thessaloniki, where there are no ferry services, the Transaction would in any event lead to monopoly and eliminate any alternative even for NTS passengers.