540 COMPETITION LAW IN TOURISM The Court explained that Article 5 is applicable to a plurality of undertakings and is not applicable should the undertaking be deemed only limited to one, contrary to Article 9, contemplating abuse of dominance. Moreover, the Court referred to Centrafarm versus Sterling Drug (case C-15/74, 1974 para 41), decided by the European Court of Justice whereby the Court considered: Article 85, (today article 101 of the TFEU) however is not concerned with agreements or concerted practices between undertakings belonging to the same concern and having the status of parent company and subsidiary, if the undertakings form an economic unit within which the subsidiary has no real freedom to determine its course of action on the market, and if the agreements or practices are concerned merely with the internal allocation of tasks as between the undertakings. The Court considered the four letters issued to the travel agents, by Lufthansa, Swiss International, Brussels Airlines and Austrian Airlines, concerning the reduction of commission and the fact that they carried the same date. It also studied the annual report of the Lufthansa Group for the year 2017, from which it resulted that the holding company of the group was Deutsche Lufthansa AG, in which are Lufthansa, Swiss International, Austrian Airlines and Brussels Airlines partook. Consequently, the plaintiffs’ agreement against the defendant airlines failed to convince the Court, since these were not considered to be separate undertakings, but one undertaking with various subsidiaries. 11. LUFTHANSA AND THE ABUSE OF A DOMINANT POSITION FATTA further complained to the Civil Court that Lufthansa abused its dominant position and breached Article 9 of the Competition Act. The Civil Court explained that having a dominant position in the relevant market is not a breach; however, it was a breach of the Competition Act when one abuses that dominant position. The law defines the market for the Maltese product, whether in part or not, without limit as to time or season during a year. The Competition Authority investigated and focused on the travel agents’ services in Malta and the number of flights from and to Malta as the relevant market, as submitted by FATTA and the commission that was being paid to
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