Common use of Concluding Remarks Clause in Contracts

Concluding Remarks. The lack of slots at (super-)congested airports constitutes the main barrier to entry in the air transport industry.1333 The current slot rules strived to have ex ante effect in deterring growing slot shares of already dominant carriers for example through the introduction of the new entrant rule, as discussed in section 5.5 above.1334 The above clarifications in this section demonstrate that there is also a relationship between the role of the general competition law regime in the EU, specifically Articles 101 and 102 TFEU and the Merger Regulation, and the special regime on slot allocation.1335 It is questionable whether Articles 101 and 102 TFEU apply to the conduct of airlines in relation to slots, particularly since there is not yet a market for slots at airports where secondary slot trading is not permitted. The mere holding of a large slot portfolio by airlines does not in itself confer a position of dominance, which is also abused, upon an airline under Article 102 TFEU. After all, a concentrated market is not necessarily the same as a market with low competition levels, and it does not per se lead to the abuse of market power.1336 Nonetheless, the Commission may make its approval of, inter alia, airline mergers and alliances subject to the divestiture of slots where slots remain concentrated with an incumbent carrier at the route or airport level. Since slots can ensure competitive advantage, the rationale behind slot commitments under the Merger Regulation is to ease market access at congested airports. As Xxxxxx de Xxxx (2013)1337 put it, “slots are multi-faceted instruments which serve as remedies for congested airports and in competition and alliances cases.” 1338 Although slot commitments may form a relative improvement with regard to enhancing airport access for competitive entry, they may not offer structural solutions. Slot commitments have had mixed success, as the slots that were made available under the commitments have not always attracted long-term competition.1339 This somewhat modest contribution to the objective of attracting new competitors in a defined market for the operation of air services has led the Commission’s approach to remedial commitments to evolve considerably over the years.1340 For instance, the airport-by airport-approach has become more prevalent, as evidenced by Lufthansa’s acquisition of Air Berlin and the Lufthansa State aid case, which may pave the way for future cases related to instances of slot concentration at the airport level. The growing use of an airport-by-airport market definition approach by the Commission makes the overall position of an airline at an airport an essential consideration in pre-merger/pre-acquisition planning.1341