European Court of Justice Upholds Judgment of the European Court of First Instance in the British Airways/Virgin Saga

Kelyn Bacon, Nov 05, 2007

This case commentary analyzes the recent ruling of the European Court of Justice (ECJ) in the case of British Airways v. Commission. Like the Court of First Instance before it, the ECJ upheld the Commission´s decision in 2000, fining British Airways (BA) for the infringement of Article 82 EC through performance rebate schemes applied to the sales of BA tickets by travel agents. The Court´s judgment displays an apparent reluctance to engage in a proper economic assessment of BA´s schemes. Instead, the Court relies on a formbased approach to the application of Article 82 that has been criticized by many commentators. In addition, a number of important arguments are dismissed as inadmissible, or disposed of on grounds which are difficult to understand. These problems are regrettable in a case of this importance. However, in the opinion of this author, they should not hinder the Commission´s review of its policy on exclusionary abuses under Article 82; nor should the judgment in this case preclude a more rigorous legal and economic analysis in future Article 82 case law.