Action brought on 1 August 2012 - Virgin Atlantic Airways v Commission
(Case T-344/12)
Language of the case: English
Parties
Applicant: Virgin Atlantic Airways Ltd (Crawley, United Kingdom) (represented by: N. Green, QC and K. Dietzel, Solicitor)
Defendant: European Commission
Form of order sought
Order the annulment of the decision of the European Commission of 30 March 2012 in Case COMP/M.6447 (IAG/bmi) ; and
Order the defendant to pay the applicant's costs in these proceedings.
Pleas in law and main arguments
In support of the action, the applicant relies on five pleas in law.
First plea in law, alleging that the defendant has committed an error of law by not taking into account relevant information regarding the competitive conditions that would prevail absent the acquisition, allowing the Commission to appraise the acquisition against a less competitive situation than would have been the case. In particular, the Commission erred in its treatment of: (i) the package of slots sold by bmi to IAG/British Airways in September 2011; and (ii) the bmi slots over which IAG/British Airways took security in return for a pre-payment of ₤60m of the purchase price for bmi.
Second plea in law, alleging that the defendant has made a series of material errors and failed to take into account relevant information in relation to the assessment of the impact of the acquisition on the incremental increase in slots (and market power) held by IAG at London Heathrow post-acquisition.
Third plea in law, alleging that the defendant made a series of errors and failed to take into account relevant information in failing to identify or in dismissing further horizontal affected markets.
Fourth plea in law, alleging that the Commission has committed an error of law by: (i) failing to undertake a Phase II investigation; and (ii) accepting commitments which fail to address the serious doubts found by the Commission to exist.
Fifth plea in law, alleging that the defendant has committed an error of law in incorrectly characterising the legal relationship between IAG and each of Iberia and British Airways as falling within Article 5(4) of the EU Merger Regulation, allowing it to conclude that the acquisition was a concentration with a "Community dimension" for the purposes of Article 1 of the said regulation and to conclude that it had jurisdiction to review the acquisition. The decision is therefore ultra vires.
____________1 - Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, p. 1).