Higher Regional Court Düsseldorf provisionally confirms the prohibition of Lufthansa’s abusive pricing strategy

In a provisional decision the Higher Regional Court Düsseldorf has largely confirmed the Bundeskartellamt’s decision prohibiting Deutsche Lufthansa AG from unfairly hindering its competitor, Germania, through its pricing strategy on the Frankfurt – Berlin/Tegel route. The President of the Bundeskartellamt, Ulf Böge, said he welcomed the fact that the decision of the court ensured competition on an important route in German domestic air traffic until a final court decision on the merits has been reached.

In mid-February, the Bundeskartellamt had prohibited DLH with immediate effect from demanding a price (including passenger fees) for a one-way ticket per passenger on the Frankfurt-Berlin/Tegel route which is not at least € 35 above Germania’s price, as long as DLH does not have to charge more than € 134 as a result. Lufthansa lodged an appeal against this at the Higher Regional Court. Lufthansa’s request for restitution of the suspensive effect has now been largely rejected by the Higher Regional Court’s decision.  Only the price difference was reduced to € 30.50, i.e. to a flight price of € 129.50. 

The court made it clear that the decision, contrary to Lufthansa’s position, does not constitute an active market structure control by the Bundeskartellamt. Instead, the Bundeskartellamt protected the newcomer Germania from being hindered by the dominant Lufthansa in a way which cannot be objectively justified. This protection was the primary task of abuse control. The freedom in price-setting existing in principle reached its limits where dominant companies apply pricing strategies which aim at and actually result in competitors being squeezed out of the market.