23.8.2021

EN

Official Journal of the European Union

C 338/29

(Case T-380/21)

(2021/C 338/38)

Language of the case: English

Parties

Applicant: Flybe Ltd (London, United Kingdom) (represented by: G. Peretz; QC, and D. Colgan, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—partially annul the decision of the European Commission of 23 April 2021, which concerns the approval by the Commission of a slot release agreement entered into by British Airways and Flybe Limited, relating to case No COMP/M.6447 — IAG/BMI, by annulling the entirety of footnote 23 of the contested decision; or in the alternative, amending footnote 23 of the contested decision and,

—grant the applicant its costs of preparing and presenting this appeal.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

1.First plea in law, alleging that the Commission has made an error of fact in its explanation of the restrictions imposed under the slot release agreement. The applicant states that the agreement, negotiated by British Airways and Flybe limited (formerly Thyme OPCO Limited), makes no reference to any need for any slot transfer to be accompanied by the transfer of the operating licence. The applicant alleges that the Commission, by adding the wording ‘i.e. together with Thyme’s OL’ in footnote 23 is therefore incorrect in what is meant to be a summary of the agreement.

2.Second plea in law, alleging that the Commission has failed to properly consider the ability of the applicant to be able to comply with the additional requirement of only transferring the Remedy Slots as part of a going concern where it includes the transfer of its operating licence, in contradiction of what is possible under UK airline licensing regulations.

3.Third plea in law, alleging that the Commission has failed to take account of the factual, economic and legal context of the slot release agreement, which showed that there is no need to impose a requirement in relation to the transfer of an operating licence.

4.Fourth plea in law, alleging that the Commission’s approach is contrary to the principle of legal certainty. The applicant states that the International Consolidated Airlines Group Commitments did not contain a restriction on the transfer of the Remedy Slots.

5.Fifth plea in law, alleging that the Commission has breached the applicant’s right to be heard by imposing a restriction without first discussing that restriction with the applicant.

6.Sixth plea in law, alleging that the Commission has infringed the duty to give reasons. The applicant states that the Commission gives no reasons for imposing the restriction on the applicant, in breach of the requirement that legal acts shall state the reasons on which they are based.