EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 41 demand of tour operators and, traditionally, do not sell tickets directly to passengers95. Therefore, the charter flights are generally not part of the same product market as scheduled flights96. As for the segmentation in the selling of “dry seats” (seats sold by charter airlines directly to passengers without other services)97, the issue has been left open by the Commission. Scheduled passenger air transport services are consistently evaluated by the Commission via the point of Origin and Destination approach (O&D), each combination being unique and thus constituting a different market98. Long-haul (i.e. longer than 6 hours) routes can be separate from short/mediumhaul services, while one-stop flights can, under certain conditions, constitute a competitive alternative to non-stop services. Likewise, connecting flights could sometimes be seen as a substitute99. Similarly, the Commission has defined a separate wholesale market for airline seats, in which supply is represented by airlines and demand by tour operators who purchase individual seats, block seats or entire flights, and integrate them in their package holidays100. Within this market, there is a possibility of a further segmentation by (i) flight types (long and short-haul flights) or (ii) destination101. As for segmentation between passenger groups, premium and non-premium passengers can be distinguished. The former are timesensitive and often require certain flexibility, for which they will pay a higher price to obtain102, while the latter are generally non-timesensitive, pay a lower price and do not need that flexibility as the flight is often booked some time in advance103. The determination of whether different airports would form part of one market depends highly on their “catchment area”, and in that sense, geographical 95 Case COMP/M.6828 – Delta Airlines/ Virgin Group/ Virgin Atlantic Limited (2013), paras. 62-63. 96 COMP/M.5747 – Iberia/ British Airways (2010), para. 34. See also: COMP/M.4439 – Ryanair/Aer Lingus; COMP/M.5141 – KLM/Martinair; COMP/M.6663 – Ryanair/Aer Lingus III. 97 As the General Court stated in Case T-162/10, Niki Luftfahrt GmbH v European Commission (2015, ECLI:EU:T:2015:283), “[…] the use of the O&D approach to identify the relevant market in the scheduled passenger air transport sector is an established practice” (para. 152). 98 Case No COMP/M.6828 – Delta Airlines/ Virgin Group/ Virgin Atlantic Limited (2013), para. 17; See also: Cases COMP/M.5889 – United Air Lines/Coontinental Airlines, COMP/M.5440 – Lufthansa/Austrian Airlines; COMP/M.5335 – Lufthansa/SN Airholding; COMP/M.5364 – Iberia/Vueling/Clickair; COMP/M.3280 – Air France/KLM; COMP/M.3770 – Lufthansa/Swiss. 99 COMP/M.6828 – Delta Airlines/ Virgin Group/ Virgin Atlantic Limited, para. 29. 100 Case M.8046 – TUI/Transat France (2016), para. 66. 101 Ibid., para.67; see also: Case M.6704 – REWE Touristik GmbH / Ferid NASR / EXIMHolding SA (2012). 102 Case COMP/M.6828 – Delta Airlines/ Virgin Group/ Virgin Atlantic Limited (2013), paras. 23-24. 103 Ibid., see also: COMP/M.5889 – United Airlines/Continental Airlines, COMP/M.5440 – Lufthansa/ Austrian Airlines; COMP/M.5335 – Lufthansa/SN Airholding; COMP/M.5364 – Iberia/Vueling/Clickair.
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