Action brought on 4 April 2011 - Aeroporia Aigaiou Aeroporiki and Marfin Investment Group Symmetochon v Commission

(Case T-202/11)

Language of the case: English

Parties

Applicants: Aeroporia Aigaiou Aeroporiki AE (Athens, Greece) and Marfin Investment Group Symmetochon AE (Athens, Greece) (represented by: A. Ryan, Solicitor, G. Bushell, Solicitor, P. Stamou and I. Dryllerakis, lawyers)

Defendant: European Commission

Form of order sought

Annul the Decision of the European Commission No C(2011)316 of 26 January 2011 on Case COMP/M.5830 related to the proposed merger of Aegean Airlines S.A. and Olympic Air S.A., Olympic Handling S.A. and Olympic Engineering S.A. under Council Regulation (EC) No 139/2004¹; and

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law:

1.    First plea in law, alleging breach of essential procedural requirements and/or manifest error of assessment in defining a market for time-sensitive air passengers only, as:

-    The Commission uses yield or revenue management as a basis for defining a market for time sensitive passengers which was never discussed in the administrative procedure; and

-    The Decision cannot be based on a market comprising of time sensitive air passengers only, as this cannot be supported by mainstream economic thinking and is contradicted by the Commission's own file.

2.    Second plea in law, alleging manifest error of assessment in concluding that ferries exert only a "limited competitive constraint" on air services on eight routes, as:

-    The evidence cited by the Commission in support of its conclusions is highly selective, breaches all rules of evidence and does not contain any empirical or survey work. Moreover, this evidence, if read objectively, in fact supports the opposite conclusion, i.e. that ferries do exert a real competitive constraint for non-time sensitive and/or all passengers on these eight routes.

3.    Third plea in law, alleging failure to state reasons and/or error of law and/or manifest error of assessment in concluding that there would be a significant impediment to effective competition due to the elimination of the close competitive relationship between Aegean and Olympic, as:

-    The Decision fails to state what the precise theory of harm is; and

-    The Commission fails to provide consistent and cogent evidence to show that passengers of one of the applicants would not switch to ferries in the event of a 5-10% rise in air fares, which would be the relevant question.

4.    Fourth plea in law, alleging manifest error of assessment and/or error of law in concluding there are barriers to entry which make post-merger entry unlikely, as:

-    The Commission has applied the wrong legal test, requiring definite and substantiated entry plans pre-merger, which is an impossible test to meet; and

-    The Commission's factual assessment is flawed, based on highly selective evidence and fails completely to undertake a diligent investigation.

5.    Fifth plea in law, alleging breach of essential procedural requirements and/or manifest error of assessment in the analysis of the counterfactual, as:

-    As regards the counterfactual of Aegean, the conclusions of the Decision rest entirely on a breach of the applicants' rights of defence. Despite extensive submissions by the applicants the Commission failed to discuss the Aegean counterfactual during the administrative procedure and substantiated its views for the first time in the Decision. Furthermore, the Commission's assessment is erroneous, being based merely on ex post analysis; and

-    With regard to the counterfactual of Olympic, the Commission's analysis limits itself to a criticism of the model put forward by Marfin and fails to conduct a proper ex ante assessment mainly because it does not go beyond the IATA summer 2011 season. Moreover, its conclusions are mere assertions, not based on any data.

6.    Sixth plea in law, alleging breach of applicants' fundamental rights, as:

-    The administrative procedure before the Commission failed to meet the standards of administrative fairness as reflected in the right to a fair hearing provided by Article 6(1) of the European Convention on Human Rights and the duty of good administration enshrined in Article 41 of the Charter of Fundamental Rights. The Commission failed to comply with its duty of a diligent investigation, thereby effectively reversing the burden of proof onto the applicants.

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