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Carsten Grave, Mar 21, 2007
Whilst the Court of First Instance of the European Communities had held the Commission accountable for a lack of attention to detail in a number of circumstances, in the European Court of Justice’s (ECJ) decision of 15 March 2007 in Case C-95/04 P “ British Airways v. Commission (Decision) it now emerges that the CFI itself will not suffer a similar fate at the hands of the ECJ.
1. The ECJ sets out the analytical framework for finding an infringement of Article 82 EC Treaty by way of fidelity rebates (bearing in mind that the finding of British Airways’ dominance was not contested), i.e.
a) the exclusionary effect, where, arguably, the ECJ proceeds in two steps:
aa) the effects of British Airways’ bonus schemes on the travel agencies (Decision, para. 60 et seq. and paras. 98, 99),
ab) the effect on British Airways’ competitors (Decision, para. 100 “ hardly containing a discussion of this step), and
b) lack of economic justification (Decision, para. 69 and 84 et seq.)
One may note that the ECJ explicitly denies the existence of a further step, that is the finding of a prejudice to consumers. The ECJ notes that such an explicit finding is not required, as it may follow from the abusive behavior’s “impact on effective competition structure” (Decision, para. 106).
2. In reviewing the CFI’s reasoning for each of those steps, the ECJ restricts itself to an explanation of the