Airline fails in appeal to ECJ over Commission decision in airport authority case

In 2008 easyJet Airline Co. Ltd lodged complaints with the Netherlands Competition Authority against Luchthaven Schiphol NV, the operator of Amsterdam-Schiphol airport relating the passenger and security service charges.

In its decisions, the competition authority rejected those complaints by relying on the Dutch law governing aviation and by resorting to its priority policy, which allows it to give different degrees of priority to the individual cases with which it deals. Those decisions have become final at national level.

On 14 January 2011, easyJet lodged a complaint with the commission. It submitted that the charges set by Schiphol were discriminatory and excessive and amounted to an abuse of a dominant position in the internal market.

It referred to the complaints lodged with the competition authority and maintained that that authority had not taken any final decision on the merits of easyJet’s complaint under competition law.

On 3 May 2013, the commission rejected the complaint on the basis, inter alia, that a national competition authority had already dealt with it. Article 13(2) of Regulation No 1/20033 provides that the commission may reject a complaint relating to anti-competitive conduct in the case where that complaint has already been dealt with by a competition authority of a member state.

In its judgment, the court stated, first, that the commission has a broad discretion when applying Article 13 of Regulation No 1/2003 and that, consequently, the purpose of judicial review in the circumstances is to verify that the commission decision is not based on materially inaccurate facts and that the commission has not erred in law, made a manifest error of assessment or misused its powers in finding that a competition authority of a member state has already dealt with a complaint.

Review of decisions of the competition authorities of member states was, by contrast, it said, a matter for national courts alone, which perform an essential function in the application of EU competition rules.

According to the court, the commission may reject a complaint which has previously been rejected by a competition authority of a member state on priority grounds. This may be inferred from a literal interpretation of the provision concerned, which is capable of including all cases of complaints which have been examined by another competition authority, whatever may have been the outcome.

This interpretation is also consistent with the general scheme of Regulation No 1/2003. It added that the commission may reject a complaint where another competition authority of a member state is dealing with it.

The court provided that what appears important is not the outcome of the review of the complaint by that competition authority, but the fact that the complaint has been reviewed by that authority. Finally, the interpretation chosen is in keeping with one of the main objectives of Regulation No 1/2003, which is to establish an effective decentralised scheme for the application of EU competition law rules.

The court also stated that the commission may, in order to reject a complaint, rely on the fact that a competition authority of a member state has previously rejected that complaint following a review based on conclusions reached by it in the course of an investigation conducted under separate provisions of national law, on condition that that review was conducted in the light of EU competition law.

In the present case, without appraising the merits of the national competition authority’s decision or the procedure or methodology used by that authority, the court took the view that the commission acted correctly in finding that the national authority had dealt with the complaint on the basis of EU competition law.

The national authority had in particular indicated the extent to which the findings of the investigation conducted under Netherlands air navigation law were relevant to its review based on competition law: it thus described the similarities between the two sets of rules, compared the equivalence of the services concerned and assessed the competitive disadvantage caused by Schiphol’s pricing.

The court held that the commission therefore correctly found that the national authority had examined whether the charges were proportionate to the costs, had compared those charges with those of other international airports and had assessed them in the light of the quality of the service received by easyJet.