On 12 October 2017, the Dutch Authority for Consumers and Markets (ACM) published a draft decision accepting the commitments of Dutch airline KLM (KLM) and Amsterdam Schiphol airport (Schiphol). The commitments are aimed at eliminating the competition concerns identified by the ACM on the basis of a four-year investigation into interactions between KLM and Schiphol about growth opportunities of other airlines at Schiphol and airport capacity.
In 2013, the ACM started an investigation to assess whether KLM and Schiphol protected KLM's position at the airport in relation to other airlines. The ACM found that KLM and Schiphol had interactions regarding the allocation of airport capacity and facilities between KLM and its competitors. The ACM concluded in its draft decision that "such interactions created the risk that Schiphol would not set its strategy independently, but change it to accommodate KLM’s wishes. In this way, the growth opportunities of other airlines may have been frustrated". As a result, competition could be hindered and the position of the other airlines operating at Schiphol might be weakened. To address the ACM concerns, KLM and Schiphol offered the following commitments:
- KLM and Schiphol will not have any contact with each other about: (i) the growth potential of other airlines at Schiphol and (ii) requests from competitors for airport facilities.
- Schiphol will independently determine its tariff changes, marketing policies and investments. Any contact between KLM and Schiphol on these topics has to reported in writing.
- Schiphol will create objective criteria to deal with requests from airlines for airport facilities.
- KLM and Schiphol will (i) report to the ACM on the implementation of these commitments over a period of four months and (ii) allow the ACM to have access to the relevant documentation (e.g. reports on contacts and decisions on facility requests).
The ACM maintains that these commitments are sufficiently effective to address the competition risks identified and that they will help create a level playing field for airlines at Schiphol. The commitments will be binding for five years, although the ACM has the power to extend the duration if necessary. Interested parties have six weeks to respond to the commitments. The draft decision emphasizes that the ACM has not established an infringement and that by offering these commitments KLM and Schiphol do not acknowledge any violation of competition law.
This article was published in the Competition Law Newsletter of November 2017. Other articles in this newsletter:
- General Court annuls UPC/Ziggo merger decision
- General Court rules that luxury watchmakers can limit supply of parts to approved repairers
- General Court upholds fine for 'gun jumping' EU merger control procedure
- European Commission orders the recovery of State aid of around EUR 250 million from Amazon
- Nike can restrict sales via online platforms within its selective distribution system
- Dutch Trade and Industry Appeals Tribunal rules on cover pricing