Action brought on 13 April 2010 - Niki Luftfahrt GmbH v Commission

(Case T-162/10)

Language of the case: German

Parties

Applicant: Niki Luftfahrt GmbH (Vienna, Austria) (represented by: H. Asenbauer, lawyer)

Defendant: European Commission

Form of order sought

Annul the contested Commission Decision C (2009) 6690 of 28 August 2009, Case COMP/M.5440 - Lufthansa/Austrian Airlines in accordance with the first paragraph of Article 264 TFEU (formerly the first paragraph of Article 231 EC); and

Order the European Commission to pay the applicant's costs in accordance with Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments

The applicant challenges Commission Decision C (2009) 6690 final of 28 August 2009 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.5440 - Lufthansa/Austrian Airlines). In that decision the Commission takes the view that, the acquisitions by Deutsche Lufthansa AG of sole control over the Austrian Airlines company - subject to the implementation of the commitments submitted by Deutschen Lufthansa AG - is compatible with the common market and the EEA Agreement.

In support of its action for annulment the applicant, which operates a privately financed airline, submits, first, that the Commission has infringed the EC Treaty (or the TFEU) and the rules of law relating to its application. It is claimed in this connection that the Commission based its decision on a market definition which hampers an assessment of all negative effects of the concentration on competition. Further, the applicant submits that the Commission incorrectly assessed the impact of the concentration in particular with regard to flight routes to Eastern Europe, so that in this respect there was a gross and manifest misappraisal. Furthermore, the Commission did not follow the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings¹. According to the applicant, the Commission in particular failed to take into account that the concentration at issue has negative effects on competition in the common market, because as a result the competitiveness of the remaining competitors in the market would be significantly impeded, that there are no alternative players on the relevant market and that entry into the relevant market is not sufficiently easy. Further, the applicant states that Deutschen Lufthansa AG's commitments which were accepted by the Commission are not suited to prevent a significant impediment to effective competition.

Second, the applicant alleges infringement of Article 253 EC (Article 296 the TFEU), inasmuch as the Commission has not stated proper reasons for the contested decision, in that it does not state on the basis of what specific arguments a restriction in competition on flight routes to Eastern Europe can be excluded. Furthermore, it is alleged that the investigation of the case was incomplete.

Third, the applicant claims that there has been a misuse of power by the Commission.

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¹ - OJ 2004 C 31, p. 5.