In August 2017, Air Berlin filed for insolvency. Air Berlin's insolvency administrator launched a sales process for Air Berlin assets, with a deadline of 15 September 2017 for submitting bids.
Meanwhile, the German airline was granted rescue aid by the German State in the form of a EUR 150 million loan to prevent disruption of its flights. On 15 August 2017, the aid was formally notified to the European Commission, which approved it on 4 September 2017 in accordance with its guidelines on State aid for rescuing and restructuring troubled non-financial undertakings. The requirement to repay the rescue is cancelled aid if the asset buyers are selected according to the best economic bid via an open and non-discriminatory tender procedure.
Air Berlin's insolvency administrator received a number of bids for various Air Berlin assets.
Two airlines showed a keen interest: easyJet and Lufthansa. The easyJet transaction includes assets and rights of Air Berlin for some of its airline operations at Berlin Tegel airport, including slots. Also included are slots at some destination airports, overnight parking stands associated with the acquired slots, Air Berlin's customer bookings in respect of the relevant operations, historical data relating to those assets, and certain aircraft furnishings and related equipment.
Lufthansa offered to take over Niki, Air Berlin’s Austrian holiday airline, and regional carrier LGW, as well as 20 other aircraft (81 aircraft in total) and over 3,000 staff.
Both Lufthansa and easyJet notified the European Commission of their plan to acquire assets from Air Berlin under the EU merger regulation.
On 12 December 2017, the European Commission approved the easyJet acquisition, deeming it would not adversely affect competition in the EU single market. Indeed, the investigation concluded that this transaction and especially the acquisition of the slot portfolio at Berlin Tegel airport and at destination airports would not allow easyJet to block competitors from entering the market for passenger air travel to and from Berlin. There will still be strong competition from airlines such as Lufthansa and Ryanair on those routes.
The proposed transaction by Lufthansa is still under review. Following its filing on 31 October 2017, Lufthansa submitted remedies on 30 November 2017. The Commission's investigation is ongoing and the provisional deadline for its decision under EU merger rules in the first investigation phase is 21 December 2017.
If there are serious concerns about a potential restriction of competition in the German market (the Commission’s assessment is made route by route) and if Lufthansa’s commitments are not sufficient to address those concerns, the Commission may open an in-depth investigation (phase II), allowing it a further 90 working days to investigate.
Annabelle Lepièce, Partner, annabelle.lepiece@cms-db.com
