Ahmed Saeed Flugreisen and Silver Line Reisebüro GmbH v Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V.
Date: 1989-04-11
32 That argument cannot be upheld . The sole justification for the continued application of the transitional rules set out in Articles 88 and 89 is that the agreements, decisions and concerted practices covered by Article 85(1 ) may qualify for exemption under Article 85(3 ) and that it is through the decisions taken by the institutions which have been given jurisdiction, under the implementing rules adopted pursuant to Article 87, to grant or refuse such exemption that competition policy develops . In contrast, no exemption may be granted, in any manner whatsoever, in respect of abuse of a dominant position; such abuse is simply prohibited by the Treaty and it is for the competent national authorities or the Commission, as the case may be, to act on that prohibition within the limits of their powers .
35 In that connection it should be pointed out in the first place that according to the case-law of the Court Article 85 does not apply where the concerted practice in question is between undertakings belonging to a single group as parent company and subsidiary if those undertakings form an economic unit within which the subsidiary has no real freedom to determine its course of action on the market ( see, most recently, the judgment of 4 May 1988 in Case 30/87 Corinne Bodson (( 1988 )) ECR 2479 ). However, the conduct of such a unit on the market is liable to come within the ambit of Article 86 .
40 The test to be employed is whether the scheduled flight on a particular route can be distinguished from the possible alternatives by virtue of specific characteristics as a result of which it is not interchangeable with those alternatives and is affected only to an insignificant degree by competition from them .
51 Admittedly, in the preamble to Regulation No 3976/87 the Council expressed a desire to increase competition in air transport services between Member States gradually so as to provide time for the sector concerned to adapt to a system different from the present system of establishing a network of agreements between Member States and air carriers . However, that concern can be respected only within the limits laid down by the provisions of the Treaty .
52 Whilst, as a result, the new rules laid down by the Council and the Commission leave the Community institutions and the authorities in the Member States free to encourage the airlines to organize mutual consultations on the tariffs to be applied on certain routes served by scheduled flights, such as the consultations provided for in Directive 87/601/EEC, the Treaty nevertheless strictly prohibits them from giving encouragement, in any form whatsoever, to the adoption of agreements or concerted practices with regard to tariffs contrary to Article 85(1 ) or Article 86, as the case may be .
55 That provision may be applied to carriers who may be obliged, by the public authorities, to operate on routes which are not commercially viable but which it is necessary to operate for reasons of the general interest . It is necessary in each case for the competent national administrative or judicial authorities to establish whether the airline in question has actually been entrusted with the task of operating on such routes by an act of the public authority ( judgment of 27 March 1974 in Case 127/73 Belgische Radio en Televisie v Sabam (" BRT-II ") (( 1974 )) ECR 313 ).
56 However, for it to be possible for the effect of the competition rules to be restricted pursuant to Article 90(2 ) by needs arising from performance of a task of general interest, the national authorities responsible for the approval of tariffs and the courts to which disputes relating thereto are submitted must be able to determine the exact nature of the needs in question and their impact on the structure of the tariffs applied by the airlines in question .