Chillin'Competition

In MyTravel vs. Commission, the CFI provides a good account of the past decisional process within DG COMP.

In the late days of the Commission’s administrative review of the Airtours/FirstChoice transaction, Airtours (now MyTravel) submitted a new commitments proposal to the Merger Task Force (“MTF”). The CFI’s  MyTravel vs. Commission ruling contains evidence that the MTF had prepared a briefing note for the competition Commissioner entitled “defensive points“. The purpose of this note was to debunk the late remedy proposal submitted by Airtours. Here is the relevant § of the CFI’s ruling:

“§114: a note setting out lines to take headed ‘Defensive Points – Offer of Undertakings’ prepared by the MTF for the attention of the Member of the Commission responsible for competition matters intended to enable him to put forward arguments relating in particular to the assessment of the substance of the commitments submitted on 15 September 1999“.

From a legal standpoint, the harsh title of this briefing note is quite surprising. Pursuant to the Merger Regulation, the Commission is supposed to objectively assess whether the proposed commitments will remove competition concerns, not to defend itself against a proposed remedy package.

In reality, this kind of vindicative language illustrates the unnamed adversarial nature of merger proceedings in the days of the MTF. In the Airtours case, which led subsequently to the harsh, notorious, annulment of the Commission’s decision by the CFI, it seems that the Commission had a preferred, pre-determined, bias position against the proposed merger, which it thus sought to “defend”. Since then, the MTF has been dissolved.

On a related issue: I was not aware that the Airtours saga had given rise to litigation before the CFI and ECJ in relation to the access of private parties to some of the Commission’s internal documents. Following the Airtours judgment, the Commission apparently established a working group comprising officials of the DG COMP and the legal service in order to consider whether it was appropriate to bring an appeal against that judgment and to assess the implications of that judgment on the procedures for the control of concentrations or in other areas. MyTravel sought to obtain access to the documents of this working group as well as other documents. The Commission decided to grant access to several of those documents, but refused to grant access to others (or to certain parts of the requested documents). The Commission’s decisions were challenged before the CFI, which annuled them in part only (T-403/05). This ruling is now being challenged before the ECJ (C-506/08 P).

(Image possibly subject to copyrights. Source here)