The Court of Milan, in Decision No. 7825/2013 of 4th June 2013, held that Ryanair abused its dominant position by refusing to grant access to its database and booking procedures to an online travel agency (“OTA”). The Court ordered Ryanair to restore access to its database as a result of the judgment.

OTAs act as an intermediary between air transport companies (like Ryanair) and consumers so that the latter is able to compare fares between airlines on the OTAs’ websites.

Ryanair did not allow OTAs to access its website in order to gather relevant information about booking procedures and fares. Ryanair thus de facto would prevent consumers from comparing their fares to others whilst booking through OTAs.

The Court of Milan found this conduct would violate Article 102 of TFEU and Article 3 of Italian Antitrust Law No. 287 of 1990 since it would impede OTAs access to the market of online booking to the detriment of consumers.

In particular, it seems likely that the Court of Milan bore in mind the case-law of the European Courts on the so-called “Refusal to supply/Essential facilities doctrine”.

In essence, the European Courts (among others: Case T-201/04 Microsoft v Commission [2007] ECR II-3601 at paras 332-3) held that the “refusal to supply” (information or product) is anticompetitive when the following conditions are met:

  1. the refusal relates to a product or service indispensable to the exercise of a particular activity on a neighbouring market;
  2. the refusal is of such kind as to exclude any effective competition on that neighbouring market;
  3. the refusal prevents the appearance of a new product for which there is potential consumer demand; and
  4. the refusal is not objectively justified.

In the present case, there are two different markets: the air transport market and the online booking market. By Ryanair’s denial of access to OTAs, the OTAs run the risk of becoming foreclosed from selling on the air transport market because of the refusal of a dominant undertaking (Ryanair) to provide the relevant information, that information being the booking fares. Moreover, the refusal has not been objectively justified and there is a potential consumer demand for the product as online booking and the price comparison tools of OTAs are widely used by consumers.

This is a significant decision in affirming and applying the refusal to supply/essential facilities doctrine in practice.