Between 2010 and 2015, the Commission investigated three airline joint ventures relating to transatlantic passenger services: the Oneworld Atlantic Joint Business (American Airlines, British Airways, Finnair and Iberia), Star A++ (Air Canada, United and Lufthansa) and Skyteam (Air France-KLM, Alitalia and Delta). Each joint venture brings together EU and US airlines, which agree to combine their resources and share revenues on transatlantic routes linking their hub airports, as well as routes that connect those hubs to certain ‘behind and beyond’ destinations in Europe and the USA.
Because the participating airlines continue to exist as independent undertakings, the joint ventures were assessed under Article 101 TFEU, rather than the EU Merger Regulation. The Commission’s assessment of each joint venture focussed on routes where the anti-competitive effects were likely to be most severe.
To remedy concerns raised by the Commission in its preliminary assessments, the parties to each joint venture offered commitments: (i) to release airport slots to eligible new entrants; (ii) to provide eligible competitors with access to feed traffic on favourable terms; (iii) to allow them to sell combined tickets, where one leg of the trip is operated by the competitor and the return leg by the joint venture parties, and (iv) to allow them participate in the parties’ frequent flyer programmes. The commitments were intended to address barriers to entry created by congestion at the parties’ hub airports and by advantages derived from the parties’ greater access to feed traffic and more frequent services. In the case of the Oneworld and Skyteam joint ventures, the commitments have enabled competing airlines, including low-cost airlines, to launch new transatlantic services, or expand their existing services.
Making holidays more affordable and available to all - competition investigations in the Tourism Sector
The Commission has also intervened in the online booking sector in a case relating to the online booking website – Booking.com. In 2015 in response to concerns expressed by the French, Swedish and Italian national competition authorities (NCAs) Booking.com agreed to give three sets of identical commitments to the French, Italian and Swedish (‘NCAs’). These commitments involved replacing the wide parity clauses in its contracts with hotels with narrow parity clauses. DG COMP coordinated the work of the three NCAs. Wide parity clauses prevented the hotel from offering lower room prices or better room availability on any other sales channel, whereas narrow parity clauses only prevent the hotel from publishing lower room prices on its own website. The NCAs considered that the wide parity clauses restricted competition between the existing hotel booking platforms and made entry or expansion by new platforms more difficult. The commitments applied for five years from July 2015 and Booking.com decided to implement them EEA-wide. In August 2015, Expedia also switched from a wide to a narrow parity clause throughout the EEA, though without giving formal commitments.
In February 2020, the Commission fined the Spanish hotel group Meliá €6.7 million for including restrictive clauses in its agreements with tour operators. These clauses discriminated against some consumers within the European Economic Area (EEA) based on their place of residence, in breach of EU antitrust rules. As a result, consumers were not able to see the full hotel availability or book hotel rooms at the best prices with tour operators in other Member States. Thanks to the Commission’s intervention, consumers can now fully benefit from the Single Market, namely the possibility of more choice and a generally better deal from their online shopping experience.
In 2021, the Commission investigated the proposed acquisition of the Spanish carrier Air Europa by International Airlines Group (“IAG”), which also owns British Airways, Air Lingus, Iberia and Vueling. The Commission’s preliminary market investigation indicated that the proposed transaction might reduce competition in the markets for passenger air transport services on Spanish domestic routes and on international routes to and from Spain. In December 2021, however, IAG decided to terminate the proposed acquisition following the Commission’s preliminary findings that the proposed remedy package was not able to adequately address the competition concerns identified by the Commission.
Another recent transaction in the sector was an attempted acquisition of a Canadian carrier Transat by Air Canada which was notified to the Commission at the beginning of 2020, however withdrawn a year later following the Commission’s preliminary findings that the proposed remedies were not able to adequately address the competition concerns identified by the Commission.
In 2019, the Commission approved unconditionally the acquisition of joint control over Virgin Atlantic by Air France/KLM, Delta Air Lines and Virgin Group, which was however abandoned a few months later. In the same year, the Commission approved, subject to conditions, the acquisition of the UK regional air carrier Flybe by Connect Airways, a consortium by Virgin Atlantic, Stobart Aviation and Cyrus. The Commission investigated the impact of the proposed transaction on the market for passenger air transport on routes from the UK airports to the other European airports as well as on some intra-UK routes. The Commission raised concerns in relation to two direct European routes, which were alleviated by the remedies proposed by the parties to the transaction.
In 2018, the Commission investigated the low-cost-carrier’s Ryanair acquisition of LaudaMotion, an Austrian low-cost-carrier, which was formed out of the remnants of Fly Niki unit of former Air Berlin that went bankrupt in 2017. Even though the proposed transaction was approved unconditionally due to the absence of competition concerns, it revealed contentions between Ryanair and Lufthansa, which itself had acquired another part of Air Berlin’s assets (i.e. a German regional carrier LGW) a year earlier. Interestingly, the initial scope of Lufthansa’s proposed acquisition of Air Berlin assets in 2017 included both LGW and Niki, however, Lufthansa dropped its plans to acquire Niki, and therefore the Commission limited its investigation to the impact of Lufthansa’s acquisition of LGW (including additional Air Berlin aircraft, crew and slots). This transaction was cleared by the Commission, subject to conditions.
An example of the Commission’s intervention in the rail sector is the Deutsche Bahn Case where in December 2013 the Commission accepted commitments from Deutsche Bahn regarding its pricing system for traction current in Germany. At the time, DB was the only supplier of traction current in Germany. Traction current is a type of electricity used to power locomotives and is an indispensable input for railway companies. The main purpose of the Commission’s intervention was to enable other suppliers of electricity not belonging to the Deutsche Bahn Group to enter this monopolized market. The commitments requested by the Commission were so successful that within 18 months of the Decision several energy providers had already entered the market and by 2015 were providing over half of the combined traction current demand of all DB railway companies.
In a more recent case, Lithuanian Railways (LG) was fined some €28 million for hindering competition on the rail freight market by removing a rail track connecting Lithuania and Latvia. LG, as the incumbent state-owned rail company in Lithuania, is responsible for maintaining both railway infrastructure and providing rail transport services. In 2008, one of its major customers - AB Orlen Lietuva ("Orlen") – was making plans to use the services of another rail operator and to redirect its freight from Lithuania to Latvia. Orlen is a subsidiary of PKN Orlen, a Polish oil company. In October 2008, LG removed a 19 km long section of track connecting Lithuania and Latvia, close to Orlen's refinery. The removal of the track meant that Orlen had to make a long detour in order to reach Latvia. From that time – 2008 until the adoption of the Commission Decision in 2017 – LG failed to rebuild the dismantled track.
In November 2020, the General Court dismissed an appeal by LG against this Decision and confirmed the Commission’s findings in their entirety. The General Court found that, in its capacity as Lithuania’s railway infrastructure manager, LG was responsible for granting access to public railway infrastructure and for ensuring the good technical condition of that infrastructure as well as for ensuring safe and uninterrupted rail traffic. Furthermore, the Court found that LG was in a dominant position on the market for the management of railway infrastructure, which derived from its former statutory monopoly. Therefore, it had a responsibility to ensure that the track was returned to service within a reasonable amount of time.
In November 2020, the Commission cleared the acquisition of Netinera, a regional rail and bus passenger services operator, by Trenitalia, a train operator.
In November 2015, the Commission gave conditional authorisation for SNCF, the French incumbent rail operator, to acquire sole control of Eurostar, a train operator active in particular through the Channel Tunnel. The Commission was concerned that the transaction as originally notified might hinder the entry of competitors into the markets in France, Belgium and the UK, in particular by limiting access to stations in France and Belgium and to maintenance centres in France, Belgium and the UK. The decision was therefore conditional on compliance with remedies designed to facilitate the entry of new rail operators onto the London-Brussels and London-Paris routes, on which Eurostar was the only operator.
In September 2014, the Commission cleared the creation of Thalys, a joint venture between the French and Belgian incumbent rail operators, namely SNCF and SNCB. SNCF and SNCB are now working together in the Thalys Cooperation to implement international passenger train services. As part of its merger investigation, the Commission contacted several market participants and concluded that the impact of the transaction on the competitive situation would be particularly limited.
Antitrust investigations in maritime
In July 2016, the Commission adopted an Article 9 commitment decision against fourteen container liner-shipping companies. The Decision related to the parties' practice of making announcements of their future price increase intentions (the so-called General Rate Increases, "GRIs"). The Commission had concerns that these GRIs were a signal to competitors that it was time for a price increase, without providing any information to customers to allow them to compare offers. In order to address these concerns the fourteen shipping companies gave commitments aimed at stopping this practice, setting guiding principles for price announcements that are useful for both the parties and their customers, and minimizing the risk of collusion. These commitments expired on 7 December 2019. The Commission remains vigilant and continues to monitor developments in this sector.
Merger cases in maritime
Efficient and effective maritime transport facilitates the free flow of people, goods and services, and competition in maritime is key to ensure that European citizens fully benefit from it. Among the recent notable cases in this sector was a vertical integration transaction by which a specialized temperature-controlled cargo freight forwarder HSF Logistics was acquired by DFDS, an operator of a short sea transport network in Northern Europe. The Commission cleared the transaction unconditionally in 2021.
In addition, the recent years have shown increased M&A activity in the freight forwarding and contract logistics sectors. For instance, in 2019, the Commission approved unconditionally the acquisition of Swiss-based Panalpina by its Danish rival DSV creating a leading player in the freight forwarding and logistics markets. The combined DSV Panalpina continued with the consolidation trend by acquiring another player in the sector, Agility Logistics International (GIL), which the Commission approved unconditionally in 2021.
In 2017, the Commission approved, subject to conditions, the acquisition of container liner shipping company Hamburg Süd by Maersk Line. The Commission’s clearance decision was conditional upon Hamburg Süd’s withdrawal from five consortia on several trades’ routes, including trades routes connecting Northern Europe and Central America/Caribbean and Northern Europe and West Coast South America. The same year, the Commission approved unconditionally the acquisition of container liner shipping company Orient Overseas (International) Limited by COSCO Shipping.
Merger cases in e-mobility
Recent years have shown a new trend of e-mobility transactions related to the on-demand mobility services such as car sharing and ride hailing. Moreover, industries related to electric vehicles and their infrastructure (e.g. charging stations) that have a large disruption potential for land transportation, automotive, and energy industries, have seen an increased consolidation trend in the past years.
For instance, in 2021, the Commission unconditionally approved the acquisition of joint control over a European mobility and charging services provider CHARGE NOW by BMW, Daimler and bp, whereas in 2020, the Commission unconditionally approved BMW, Daimler, Ford, Porsche, Hyundai and KIA’s acquisition of joint control over the electric vehicle installation and operation provider IONITY.
Another notable transaction affecting e-mobility sector was the 2019 acquisition of Innogy’s distribution and consumer solutions business by E.ON. Following its investigation, the Commission had concerns that the transaction, among others, would have significantly reduced competition in the market for electric charging stations in Germany. The Commission approved the transaction subject to a number of commitments proposed by E.ON, including its commitment to discontinue the operation of over 30 electric charging stations located on German motorways.
In 2018, the Commission approved, subject to conditions, the creation of six joint ventures by Daimler and BMW bringing together the two companies' mobility services in five business fields, including free-floating car sharing, ride hailing, parking, charging and other on-demand mobility services.