EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 45 4. CONCENTRATIONS The actors described above have closed important merger and acquisition transactions (“concentrations”) over the past years, changing the landscape of the European tourism industry. Exercising its jurisdiction under the EU Merger Regulation (EUMR)126 has allowed the Commission to focus on concentrations of “community dimension” pertinent to the tourism industry. The CJEU has also, on various occasions, shed light on outstanding legal issues. The EU legislation prohibits concentrations which would significantly impede effective competition, in the common market or its substantial part, in particular as a result of the creation or strengthening of a dominant position127 (the so-called “SIEC test”). This means that, in principle, mergers in less- -concentrated, competitive markets do not pose serious competitive threats, for example, due to the fragmented character of scheduled air passenger transport sector in the EU128, the Commission has mostly welcomed its further consolidation, having also cleared various concentrations in recent years129. Horizontal and non-horizontal mergers may lead to various types of harm to competition, discussed below. Prima facie concerns of the Commission may be justified by merger-specific efficiencies and other defences, prescribed in the legislation and elaborated in the case-law and soft-law. Problematic mergers may also be “saved” by remedies, i.e. by parties’ offering suitable structural or behavioural commitments130. 126 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (Text with EEA relevance), OJ L 24, 29.01.2004, pp. 1-22. 127 EUMR, Article 2, para. 3. 128 Namely, more than 150 airlines offer scheduled air passenger transport services in the EU. See: Commission Staff Working Document Accompanying the document Report From the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Report on Competition Policy 2018, Brussels, 14.10.2019, SWD(2019) 297 final/2; available at: https://ec.europa.eu/ competition/publications/annual_report/2018/part2_en.pdf, p. 80. 129 See, e.g. Case M.8869 Ryanair/LaudaMotion; M.8672 easyJet/Certain Air Berlin assets; M. 5364, including multiple cases with remedies: Cases COMP/M.8633 Lufthansa/Air Berlin, COMP/M.7541 IAG/Aer Lingus, COMP/M.6447 IAG/BMI, COMP/M.6607 US Airways/American Airlines, COMP/M.3280 Air France/KLM, COMP/M.5364 Iberia/Vueling/Clickair, COMP/M.5335 Lufthansa/SN Airholding (Brussels Airlines), COMP/M.5440 Lufthansa/Austrian Airlines. See also: Case T-177/04, easyJet v Commission, Judgment of 4 July 2006, ECLI:EU:T:2006:187. 130 EUMR, Articles 6(2) and 8(2).
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