Action brought on 14 February 2013 - Aer Lingus v Commission

(Case T-101/13)

Language of the case: English

Parties

Applicant: Aer Lingus Ltd (Dublin, Ireland) (represented by: D. Piccinin, Barrister, and A. Burnside, Solicitor)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

Annul the decision of the European Commission dated 14 November 2012, taken under clause 1.4.9 of the Commitments given by International Consolidated Airlines Group ("IAG") to the Commission as a condition for the Commission's approval of IAG's acquisition of British Midlands Limited ("bmi") under Council Regulation 139/2004², evaluating bids for take-off and landing slots at Heathrow Airport that IAG was required to divest under the Commitments, and ranking the bid submitted Virgin Atlantic Airways ("Virgin") for slots for the London Heathrow - Edinburgh route above the bid submitted by Aer Lingus Limited ("Aer Lingus") for those slots;

Order that the Commission should pay the applicant's costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

First plea in law, alleging an error in the interpretation of the Commitments. The applicant argues that the Commission erred in its interpretation of the criterion for evaluating the bids set out in clause 1.4.10(c) of the Commitments, concerning the bidding airline's plans to offer feed to third party carriers. The Commission interpreted that criterion as encompassing Virgin's plans to carry passengers on the London Heathrow - Edinburgh route on its own connecting flights to long haul origins/destinations, whereas that criterion is in fact limited to the provision of connecting passengers to third party carriers.

Second plea in law, alleging failure to take appropriate account of advice from the Monitoring Trustee. The applicant argues that the Commission failed in its duty to take appropriate account of advice from the Monitoring Trustee, and/or to give adequate reasons for departing from that advice in four respects:

The Commission failed to take due account of or give reasons for departing from the Monitoring Trustee's advice on Aer Lingus' advantages in respect of interlining;

The Commission failed to take due account of or give reasons for departing from the Monitoring Trustee's advice on Aer Lingus' advantages in respect of operating costs and sensitivity analysis;

The Commission failed to take due account of or give reasons for departing from the Monitoring Trustee's advice on how the various measures should be analysed in combination to produce an overall ranking; and

The Commission failed to seek advice from the Monitoring Trustee in relation to the relative advantages of awarding the slots as a single package.

Third plea in law, alleging manifest error of assessment. The applicant argues that the Commission manifestly erred in reaching its conclusion that Aer Lingus' bid did not offer competitive constraints that were at least 'essentially similar' to those offered by Virgin's bid. The Commission erred both in its appraisal of the competitive constraints that the competing bids offered on the London Heathrow - Edinburgh route, and in its appraisal of the benefits that would flow from awarding all of the routes to a single carrier rather than awarding the London Heathrow - Edinburgh route to Aer Lingus and the remaining routes to Virgin.

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¹ - Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1)

² - Person appointed in the framework of the IAG's acquisition of bmi in order to perform the functions of monitoring IAG's fulfilment of the Commitments