Temple Lang, John --- "The British Airways Judgment – What are the ‘Underlying Factors’ in Exclusionary Abuses?" [2011] ELECD 792; in Govaere, Inge; Quick, Reinhard; Bronckers, Marco (eds), "Trade and Competition Law in the EU and Beyond" (Edward Elgar Publishing, 2011)

Book Title: Trade and Competition Law in the EU and Beyond

Editor(s): Govaere, Inge; Quick, Reinhard; Bronckers, Marco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857935663

Section: Chapter 22

Section Title: The British Airways Judgment – What are the ‘Underlying Factors’ in Exclusionary Abuses?

Author(s): Temple Lang, John

Number of pages: 9

Extract:

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 consum-
ers'.
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 of a dominant position. Rebates and bonuses by dominant

1
OJ (2000) ...