TFEU. The Board of Governors shall approve the application for accession of the new ESM Member and the detailed technical terms related thereto, as well as the adaptations to be made to this Treaty as a direct consequence of the accession. Following the approval of the application for membership by the Board of Governors, new ESM Members shall accede upon the deposit of the instruments of accession with the Depositary, who shall notify other ESM Members thereof.
TFEU. 48 Although the provision only refers to products, it is also applied to services.53 49 An interesting element of this provision is that it acknowledges the existence of the concept of so-called indirect aid in that it refers to aid granted to individ- ual consumers. A consumer as such typically does not offer goods or services on a market and therefore cannot be classified as an “undertaking” within the mean- ing of the first paragraph of Art. 61. The provision acknowledges that financial advantages flowing from state resources to consumers can indirectly provide un- dertakings (e.g. those selling the products) with advantages.
TFEU. ESA can find aid falling outside the scope of application of the guidelines 65 compatible with the functioning of the EEA Agreement by direct application of Art. 61(3)(c).64 EFTA States remain free to notify aid which does not meet the criteria laid down in the guidelines and ESA may authorise such proposed aid in exceptional circumstances.65
TFEU. It allows for aid to make good the damages caused by natural disasters or exceptional circum- stances such as force majeure events. On the basis of this provision, ESA ap- proved aid to the Icelandic and Norwegian aviation sectors in the wake of the terrorist attacks against the United States of America on 11 September 2001.54 50 Case 248/84, 14.10.1987, Germany v Commission, at para. 18. 51 ESA Decision No 459/12/COL, 5.12.2012. See also ESA’s letter to the Norwegian authorities of 10.7.2015, where it took the preliminary view that the financing of a multi-purpose sports hall in Finnmark in northern Norway did not constitute state aid due to the lack of effect on intra-EEA trade. The letter is available on ESA’s website: xxxx://xxx.xxxxxxxx.xxx/state-aid/ state-aid-register/preliminary-assessments/. 52 ESA Decision No 39/07/COL, 27.2.2007. The decision was challenged before the EFTA Court, with its judgment in Case E-5/07, 21.2.2008, Private Barnehagers Landsforening the Court upheld the decision on the grounds that the day-care institutions did not constitute un- dertakings. The Court did not rule on the issue of effect on trade, see para. 84 of the judgment. 53 See ESA’s guidelines on state aid to airports and airlines, para. 156, OJ No L 209, 6.8.2015, p. 17.
TFEU. The EEA Agreement does not contain a cul- tural exemption similar to Art. 107(3)(d) TFEU, which allows the Commission
TFEU. 988 The concept of grandfather rights allows airlines to operate without having to fear losing slots to competitors as long as they meet the 80% usage threshold, see Chapter 2, section 2.2.3, and therefore airlines may argue that they should be the beneficiary of any monetary benefits related to slot value. See European Commission, supra note 54, paragraph 17. 989 ACI, IATA and WWACG, Worldwide Airport Slot Guidelines (WASG) Edition 1 (2020), supra note 8, at 8.6.1. 990 See Case M.8633 – Lufthansa/certain Air Berlin assets, supra note 980, paragraph 13. 991 See Xxxx XxxXxxxxx(II), supra note 113, at 45. The question of slot ownership seems to remain subordinate to the resolution of the legality of slot trading between airlines. However, the issue of slot ownership is a separate policy decision that needs to be distinguished from the objective of maximizing the value and use of slots via market mechanisms. See Xxxxxxxxx, supra note 10. ownership, and, vice versa, also depending on the applicable law, ownership indicates that the holder is free to sell the property at its discretion. As several cases relating to airlines entering administration and the subsequent suboptimal or even non-utilization of slots have shown, some of which are studied in section
TFEU. Actions against enforceable decisions must be brought against the Commission (not against the Agency).
TFEU. 35 The CJEU considered that just because an agreement tends to restrict competition between distributors of the same make, it does not follow that it automatically escapes the prohibition because it increases competition between producers. The CJEU decided that this type of argument is irrelevant, however, because if it “appears” the object is to restrict competition, the concrete effects do not need to be considered.36 The more analytical approach advocated by STM is supported by the Court when it says “to arrive at a true representation of the contractual position the contract must be placed in the economic and legal context in the light of which it was concluded by the parties”.37 The Court does not thereby imply that certain agreements are presumed to automatically distort competition by object.38 Nonetheless, the judgment is somewhat incongruous with the sentiments set out in STM. What is more pertinent is that the CJEU found that the legal and economic context plays a role in the determination of an agreement’s object. The CJEU thus 33 Though subsequent chapters will show how the emphasis on different elements of the STM Test has shifted over the years, which is why the object concept is seen to be so confusing. 34 Supra n27, Consten & Grundig, p342. 35 Ibid, p342. 36 Ibid, p342. 37 Ibid, p343: “since the agreement thus aims at isolating the French market for Grundig products and maintaining, artificially, for products of a very well-known brand, separate national markets within the Community”. Emphasis added. The goal of preserving the single market was an important aspect of the case and considered as part of the agreement’s legal and economic context. 38 It is possible that the ‘no concrete effects’ rule led to the proposition that object restrictions have ‘necessary effect’, ie: certain restrictions are presumed to have a restrictive effect on competition due to their known anticompetitive effects and thus, by their nature, restrict competition. builds upon the judgment in STM by referring, not just to the economic, but also to the legal context. Again, the notion that the object concept is based on the classification of particular agreements is absent, though the precise delineation of how the object criterion is applied to agreements is admittedly somewhat vague. What the judgments in STM and Consten & Grundig attest to, is that the approach of the European Courts is far more nuanced than the Article 81(3) Guidelines suggest. A further series o...
TFEU. By a detailed analysis of airline alliances, this thesis argues for the wider interpretation of restriction by object and do not identify any contradiction with the more economic approach of EU competition law. This chapter will present the economic and legal context of strategic alliances in general. This reveals the general purpose of alliance agreements and explains whether the economic environment really induces undertakings to cooperate with their competitors. The conclusions of this chapter are relevant both for the analysis under Article 101(1) TFEU and, more importantly, for the scrutiny of efficiency claims under Article 101(3)
TFEU. By relying on the example and analysis of airline alliances and in particular metal-neutral revenue-sharing alliances, the thesis argues that the ‘orthodox’ or wider interpretation of restriction by object is correct and, as such, does not contradict the idea behind the more economic approach of EU competition law. However, the analysis of restriction by object has to take into account the effects of Article 101 TFEU as a whole, including Article 101(3)
