In an unusual example of a UK court finding an abuse of dominance, on 28 January 2014 the English High Court found that, assuming it was dominant, the London Luton Airport operator had abused its dominant position (contrary to UK competition law) in the award and operation of a coach concession from the airport.
The issue of whether the operator is in fact dominant will be considered later. The market allegedly relevant in that regard is that for the grant of rights to use the airport land and infrastructure to operate bus services from the airport.
The abuse found was the entering into by the airport operator of a new concession agreement with a particular coach operator, National Express. In doing so the airport operator abused its dominant position because the terms of the concession (a seven-year exclusivity period to National Express, giving National Express a right of first refusal on services to new destinations in London and discriminating in favour of another coach operator, easyBus) seriously distorted competition between coach operators wanting to provide services from the bus station at the airport, without there being any objective justification for that distortion of competition.
The court stated that a dominant undertaking can abuse its position either by distorting competition on the market on which it operates itself (the upstream market) or by distorting competition on the market on which its customers compete with each other (the downstream market). The fact that the airport operator was not a coach operator itself did not prevent any distortion of the downstream coach market arising from its conduct from being an abuse.
The judgment also shows that private enforcement of competition law continues to develop in the UK. There was no regulatory involvement from the OFT in this case.