In August 2017, the Belgian Competition Authority (BMA) opened an investigation into potential anticompetitive practices resulting from the conclusion of a "Commercial Service Agreement" between Thomas Cook Belgium and Brussels Airlines.
Under such agreement, Thomas Cook Belgium had to purchase a certain number of seats to certain destinations from Brussels Airlines. Brussels Airlines, for its part, could not sell seats on certain flights to third party tour operators. The clauses in the agreement also included an obligation for Brussels Airlines to provide information to Thomas Cook Belgium on the development of the activities of third party tour operators.
In a February 2020 press release, the Investigation and Prosecution Service of the BMA announced that it had submitted a proposed decision to the Competition College whereby it considered that these clauses foreclose the wholesale market for airline seats and provide for the exchange of sensitive commercial information.
However, the Investigation and Prosecution Service proposed that the Competition College did not impose fines on the companies concerned because the agreement was never implemented and was terminated following the Thomas Cook bankruptcy.
The parties were given the opportunity to make written submissions prior to the hearing before the College, and to present their position at such hearing.
The College, which had to determine whether or not there had been an infringement of competition law and, if so, whether a fine should be imposed, decided on 1 July 2020 that the agreement was contrary to Article 101 TFEU and that it restricted competition. However, no fine was imposed. The College took into account the specific facts of the case, namely that the agreement wasn’t implemented due to the Thomas Cook bankruptcy, and because Brussels Airlines had cooperated with the Investigation and Prosecution Service during the investigation.
Marguerite Soete, Associate, Brussels
Annabelle Lepièce, Partner, Brussels
