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. By exploring the example of airline alliances and in particular metal-neutral alliances, this thesis argues that the wider interpretation of object restrictions is correct and, therefore does not conflict with the more economic approach of EU competition law. In order to better understand the topic and to familiarise the reader with the examples of the discussion in this thesis of Article 101 TFEU, this chapter introduces the three global strategic airline alliances.
TFEU. Therefore this aspect of the opinion is questionable in its accuracy. The AG should have cited STM. See also Joined cases C- that the object of an agreement is deduced from the content of its clauses, the intention of the parties “as it arises from the ‘genesis’ of the agreement or manifests itself in the circumstances in which it was implemented” and the conduct of the undertakings concerned.131 Thus, the characteristics of the measure, as well as the objectives pursued by the manufacturer inferred from its general strategy, were relevant.132 Finally, it is notable that the AG found it irrelevant that the objective pursued was not attained and therefore did not produce anticompetitive effects.133 Notably the CJEU confirmed much of the AG’s opinion. When making an assessment of object the CJEU held that: “...account must be taken not only of the terms of the agreement, but also of other factors, such as the aims pursued by the agreement in the light of the economic and legal context, in order to determine whether an agreement has a restrictive object.”134 The CJEU affirmed that such an objective can be achieved through direct and indirect means.135 The CJEU therefore held that the agreement had the object of restricting competition even though it was not explicitly obvious that the agreement had that object.136 In making its assessment, the CJEU looked at the conduct of the parties and considered what the competitive situation in the market would have been if, as in this case, export sales had not been excluded from the bonus policy. Proof of intention was not seen as a necessary factor in determining the object of the agreement.137 Such intention, however, may be taken into account when assessing the object of the agreement. 238/99 & others P Limburgse Vinyl Maatschappij v Commission [2002] ECR I-8375 on the relevance of the economic context. 131 Supra n125, General Motors, para 78. 132 Ibid, para 81. 133 Ibid, footnote 52. See also C-235/92 P Montecatini v Commission [1999] ECR I-4539, para 125. 134 Ibid, General Motors, paras 64-66. 135 Ibid, para 68. 136 This can be contrasted with the case law of the General Court in ENS (supra n4). See section 4. 137 Supra n125, General Motors, para 77. The CJEU cited Xxxxxx (supra n88) and CRAM (supra n108) in support of this point. This finding upheld the opinion, paras 77-78. Intent could also be attributed to the conduct of the parties. The need to ascertain the true objective of an agreement and the significance...
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)
