Edited by Inge Govaere, Reinhard Quick and Marco Bronckers
Chapter 22: The British Airways Judgment – What are the ‘Underlying Factors’ in Exclusionary Abuses?
JOBNAME: Trade and Competitio PAGE: 1 SESS: 34 OUTPUT: Mon Jun 20 16:16:16 2011 22. The British Airways judgment – what are the ‘underlying factors’ in exclusionary abuses? John Temple Lang In its decision in British Airways (hereafter ‘BA’),1 the Commission found that by paying increased commissions to travel agents who increased their sales of BA tickets over their sales in previous years, BA had abused its dominant position. The Commission found that BA had illegally rewarded loyalty with the object and effect of excluding BA’s competitors from the UK markets for air transport, and had discriminated between travel agents. In short, BA had committed an exclusionary abuse and a discriminatory abuse, in the view of the Commission. The Court of First Instance2 upheld the Commission’s decision, and BA appealed to the Court of Justice. BA argued, in effect, that conduct could constitute an exclusionary abuse under what is now Article 102 TFEU only if the conduct came under Article 102(b) TFEU, which prohibits: ‘limiting production, markets or technical development to the prejudice of consumers’. BA then argued that offering extra commission to travel agents who increased their sales did not ‘limit’ the possibilities open to BA’s competitor airlines, and that therefore BA had not abused a dominant position. 22.1 THE OPINION OF THE ADVOCATE GENERAL This argument was dismissed by Advocate General Kokott. She said:3 sufﬁce it to say that that provision [Article 102(2) (b) TFEU] merely gives an example of an abuse...
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