On February 8, 2022, the German Federal Cartel Office (“FCO”) preliminarily found that Deutsche Lufthansa AG (“Lufthansa”) has to provide feeder flights for Condor Flugdienst GmbH’s (“Condor”) long-haul flights. The FCO invited the parties to comment on its preliminary findings before issuing its decision.
Lufthansa and Condor had established a long-standing cooperation pursuant to which Lufthansa and its subsidiaries Austrian Airlines and Swiss Airlines provided feeder flights to Condor’s long-haul passengers. Condor itself does not operate feeder flights. In November 2020, Lufthansa canceled its “feeder arrangement” with Condor effective as of June 2021. Condor subsequently complained to the FCO, alleging Lufthansa to abuse of its dominant position to the detriment of Condor’s long-haul operations. Following the FCO’s opening of interim as well as main proceedings, Lufthansa suspended the termination until May 10, 2022. The FCO subsequently closed its interim proceedings.
In its main proceedings, the FCO now preliminarily found that Lufthansa abuses its dominant position on the feeder flights market to the detriment of Condor’s long-haul operations. According to the FCO, Condor (in the absence of its own feeder network and of suitable slots to develop such a network) must have access to Lufthansa’s feeder flights to ensure sufficient competition on the already strongly concentrated indirect long-haul markets. In particular, the termination of the “feeder arrangement” would give Lufthansa a major competitive advantage in the provision of long-haul flights and lead to a dominant position on almost 90 flight routes to tourist destinations.
The 10th Amendment of the German Act against Restraints of Competition, which entered into force in January 2021, significantly lowered the thresholds for ordering interim measures. In particular, interim measures can now be issued to protect individual companies (rather than competition overall). While in the past, the FCO only rarely initiated interim proceedings, it remains to be seen if the FCO will open interim proceedings more frequently now.
Editors: Katharina Apel and Anna Lubberger