TRAVEL AGENTS VERSUS AIRLINES IN THE MALTESE COMPETITION LAW 539 vis-à-vis IATA and the PSAA, which is entered into by accredited travel agents in 207 countries10. 10. THE DECISION ABOUT THE BREACH OF ARTICLES 5 AND 9 OF THE COMPETITION ACT FATTA alleged that the reduction of the commission to 0.1 % was deemed to be a concerted practice, as all the four carriers agreed and imposed the same commission, on the same date, which was a breach of Article 5, corresponding with Article 101 of the TFEU. It further submitted that the airlines, particularly Lufthansa, were also abusing their dominance, mainly by collectively agreeing to reduce the commission in breach of Article 9 of the Competition Act (Article 102 of the TFEU). In fact, FATTA had argued that should a travel agent, for example, provide a passenger with a flight ticket from Malta to New York, via Munich, with Lufthansa, that travel agent would be paid a commission of 0.1% on the flight ticket from Malta to Munich but 0% on the flight ticket from Munich to New York! This argument was further consolidated by FATTA to emphasise that specific routes operated by Lufthansa from Germany could undoubtedly render the airline as dominant on specific routes, being the relevant market that should have been considered by the Director General responsible for Competition. The report submitted by the Director General for Competition in Malta, in line with Article 27(1) of the Competition Act, was also examined by the Civil Court. The Civil Court stated that the conclusions in the report were essential considerations, which were to be evaluated by the Civil Court, when deliberating on its judgement. FATTA had indeed alleged that there was a breach of Article 5 of the Competition Act, and the fact that the airlines agreed on the reduction of the commission payable tantamounted to a ‘concerted practice’ by the carriers. This article presupposes that there has been an agreement or a practice that was agreed upon between the ‘undertakings’ in order to prevent, distort or restrict competition in Malta. Without any doubt, the Court added that the carriers against whom the casewas separately filed, operated a commercial activity inMalta, and consequently, fall within the jurisdiction of Article 5 of the Competition Act. 10 IATA Agency Program – Fact Sheet (dated May 2019).
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