TRAVEL AGENTS VERSUS AIRLINES IN THE MALTESE COMPETITION LAW 541 them for the product that they were selling to the consumer within the Maltese market which, for the purposes of the proceedings, was the relevant market. The Civil Court referred to cases: (a) British Airways PLC versus Commission, (case T219/99, ECR II – 5917) and (b) Ahmed Seed Flugreisen and Silver Line Reisebüro GmbH versus Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V (C-66/86, ECR 1989). The Civil Court further quoted from United Brands versus Commission C27/76 (1978) which explained ‘dominant position’ as follows: Relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers. Explaining that in order to prove dominance there must be a calculation of the market’s portion that is being controlled by the undertaking, and in European statistics, the Civil Court clarified that this is to be calculated, should an undertaking have a controlling power of more than 40 % of the relevant market. The Court referred to Hoffman-La Roche & Co. AG versus Commission (case 85/76) and AKZO Chemie versus Commission (case C-62/86, 1991). The technical proof required was based on the question as to what extent Lufthansa alone with the other air carriers who operated within the Maltese market, vis-à-vis the sale of tickets by the Maltese agents between the years 2015 and 2017, demonstrated that Lufthansa did not have the highest ‘market share’ from the said four carriers within the same period. The Competition Authority indicated that the market share that the Lufthansa Group enjoyed for the carrying of passengers from and to Malta, was far less than 40 % of the relative market, and was rather small if one had to compare it with, for example, Air Malta plc., the Maltese national airline. Consequently, the Civil Court upheld the findings and conclusions reached by the Director General responsible for Competition. The Court concluded that once Lufthansa did not have a dominant market with regard to the Maltese sector, there could not be any form of abuse, and so FATTA’s complaint concerning the abuse of a dominant position was not upheld. The Civil Court did not adjudicate in favour or against FATTA concerning the reduction of airline tickets to 0.1%, nor did it decide whether or not there was a breach of the PSAA agreement, and this to be further considered and decided from
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