Asunto C-95/04 P: Recursode casación interpuesto el 26 de febrero de 2004 porBritish Airways plc, contra la sentencia dictada el 17de diciembre de 2003 por la Sala Primera del Tribunal de Primera Instanciade las Comunidades Europeas en el asunto T-219/99 entre BritishAirways plc y la Comisión de las Comunidades Europeas, apoyada por VirginAtlantic Airways, Ltd

• Jurisdiction: European Union
• Celex Number: C2004/106/40
• Published date: 01 December 2004

30.4.2004 EN Official Journal of the European Union C 106/22

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Appeal brought on 26 February 2004 by British Airways plc against the judgment delivered on 17 December 2003 by the First Chamber of the Court of First Instance of the European Communities in case T-219/99 between British Airways plc and the Commission of the European Communities, supported by Virgin Atlantic Airways Ltd.

(Case C-95/04 P)

(2004/C 106/40)

An appeal against the judgment delivered on 17 December 2003 by the First Chamber of the Court of First Instance of the European Communities in case T-219/99 (1) between British Airways plc and the Commission of the European Communities, supported by Virgin Atlantic Airways Ltd, was brought before the Court of Justice of the European Communities on 26 February 2004 by British Airways plc (hereinafter BA), established in Waterside (United Kingdom), represented by R. Subiotto and J. Temple Lang, solicitors, R. O'Donoghue and W. Wood QC, barristers.

The Appellant claims that the Court should:

— set aside the judgment in case T-219/99 British Airways plc v. Commission in whole or in part;

— annul or reduce the amount of BA's fine by an amount considered appropriate by the Court of Justice in the exercise of its discretion; and

— take any other measure that the Court of Justice deems appropriate.

Pleas in law and main arguments:

A. The Court of First Instance Erred In Law By Applying The Wrong Test To Assess The Exclusionary Character Of BA's Commissions The Court of First Instance held that BA's commissions were ‘fidelity-building’, and, therefore, exclusionary. However, the Court of First Instance's ‘fidelity-building’ test cannot distinguish between customers' fidelity secured by abusive exclusionary behaviour and customers' fidelity resulting from legitimate price competition. If accepted, the Court of First Instance's ‘fidelity-building’ test would create significant legal uncertainty as to the scope of legitimate price competition, and thus create disincentives for firms to engage in legitimate price competition, frustrating the basic purpose of Community competition law.

B. The Court of First Instance Erred In Law By Disregarding The Evidence That BA's Commissions Had No Material Effect On Competitors BA's second ground of appeal concerns the...