On October 1, 2025, the General Court dismissed Laudamotion’s application for annulment of the European Commission’s (“Commission”) decision rejecting a complaint that Lufthansa’s concurrent acquisition of flight slots previously held by Air Berlin and conclusion of a wet lease agreement for 40 Air Berlin aircrafts constituted an anticompetitive concertation in breach of Article 101 TFEU.[1] The General Court reconfirmed that to sustain an infringement finding, there can be no alternative plausible explanation for the alleged anticompetitive concertation.
Background
In 2016, as part of a substantial restructuring of its activities due to financial difficulties, Air Berlin relinquished flight slots at Vienna airport and entered into an agreement to lease 40 of its aircraft to Lufthansa. Around that time, Lufthansa took preparatory steps to deploy additional capacity at the Vienna airport, acquired the relinquished Air Berlin slots, and increased its activities to cover the routes that Air Berlin vacated.
In September 2018, Laudamotion filed a complaint to the Commission. It alleged that Air Berlin’s decision to release its slots late in the slot-renewal process, and Lufthansa’s parallel capacity expansion and application for the Air Berlin slots constituted an anticompetitive coordination. This foreclosed rival carriers from competing for the Air Berlin slots and reinforced Lufthansa’s dominant position on routes from or to Austria, Germany, and Switzerland.[2]
In August 2023, the Commission concluded that the likelihood of establishing the existence of an infringement “appear[ed] limited” because (i) there was another plausible explanation for the parallel behavior of Air Berlin and Lufthansa and (ii) the alleged agreement was unlikely to have restrictive effects on competition.[3] On this basis, the Commission concluded that there were insufficient grounds to pursue the complaint.[4] Laudamotion appealed the Commission’s rejection decision to the General Court.[5]
The Judgment
The General Court dismissed Laudamotion’s appeal.
The General Court first held that, when assessing a complaint, the Commission is not obliged to “assess the degree of probability of the different plausible explanations” for the conduct.[6] Instead, “the Commission was entitled to confine itself to considering that there was another plausible explanation beyond the alleged cartel”.[7] This is in line with the Court’s case law that “parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct”.[8]
The General Court then ruled that the Commission made no manifest error of assessment in finding that “the existence of an alleged agreement was not the only plausible explanation for the conduct” because the conduct “could have resulted from normal conditions of competition owing to the restructuring and reduction of Air Berlin’s operations”.[9] In particular, the General Court found that the Commission was entitled to find that:
- Lufthansa’s decision to expand its operations at Vienna airport could reasonably be considered to be an independent commercial decision in view of the restructuring operations that Air Berlin publicly announced.[10]
- A series of uncertainties surrounding the restructuring of Air Berlin’s activities, such as the German Competition Authority’s pending approval of the lease agreement with Lufthansa, justified Air Berlin’s decision to delay the return of slots.[11]
- The slot allocation process is handled by an independent coordinator, ensuring that slots are allocated in a fair, non-discriminatory, and transparent manner, and that competing airlines could have reasonably anticipated the return of slots in view of Air Berlin’s announced restructuring.[12]
On this basis, the General Court concluded that there existed another plausible explanation for the alleged anti-competitive coordination and therefore the Commission lawfully rejected Laudamotion’s complaint on this basis.[13]
Key takeaways
In Laudamotion, the General Court reconfirmed that to sustain an infringement finding, there can be no alternative plausible explanation for the alleged concertation.
[1] Judgment of October 1, 2025, Laudamotion v. Commission, Case T-1026/23, EU:T:2025:928, paras. 54-55 (“Laudamotion”).
[2] Commission decision of August 2, 2023, Lufthansa—Air Berlin (routes from/to Vienna), Case AT.40612 (“Decision”), para. 75.
[3] Decision, paras. 41-80.
[4] Decision, para. 81.
[5] Laudamotion, paras. 9-12, 43-45, 76.
[6] Laudamotion,para. 91.
[7] Laudamotion,paras. 94-95.
[8] Laudamotion,para. 89, citing judgment of March 31, 1993, Ahlström Osakeyhtiö and Others v Commission, C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, EU:C:1988:447, para. 71.
[9] Laudamotion,para. 148.
[10] Laudamotion,paras. 106-124.
[11] Laudamotion,paras. 128-135. The German Competition Authority ruled that the wet lease agreement did not constitute a reportable concentration under German merger control rules. Laudamotion, para. 3.
[12] Laudamotion,paras. 141-144.
[13] Laudamotion,paras. 148-149, 151.