On June 4, 2013, the Milan Court’s company law section handed down a ruling (only available in Italian) holding that Ryanair abused its dominant position in the downstream market for online travel agencies in breach of article 102 of the Treaty on the Functioning of the European Union (TFEU), and ordered Ryanair to pay damages to the online travel agent Viaggiare.
In essence, the abuse consisted of the refusal to allow the “scraping” of its website by online travel agents in order to retrieve and compile the set of data required to provide travel services to potential customers.
The Court first held that screen scraping is not an illegal activity per se, but only to the extent that it affects the sui generis right of a database compiler to have its investment protected (not vis-à-vis the data as such, but rather the “structure” of the data set). In the circumstances, the Court found that Viaggiare’s activity on Ryanair’s website did not affect such investment (in particular, it did not alter the functionalities of the website – in fact Ryanair would have permitted the consultation of the website for a symbolic fee that it would donate to charity), whereas the refusal opposed by Ryanair was specifically aimed at excluding the travel agent operator from selling Ryanair tickets. In this respect, the Court recalled that the exercise of intellectual property rights must be assessed in the light of competition law, so that such rights cannot be enforced to partition the market or harm competition in the EU.
In a tricky passage of the ruling, the Court found that Ryanair holds a dominant position in the air transportation market as whole (without defining its exact scope) whereas its market position in Italy was “growing”. The Court then held that Ryanair holds a monopoly in the downstream market for the provision of information for its own flights.
Based on such premise, the Court held that the information concerning Ryanair’s flights should ultimately be deemed an essential facility whose access is necessary for online travel agents who seek to offer competing services. Moreover, according to the Court, Ryanair’s refusal to allow the consultation of its website is capable of hampering the development of new services provided by online travel agencies (consultation of multiple flights, intermediation and sale of tickets), and as such cannot prevail even if Ryanair’s refusal was objectively justified (which the Court found it was not, because of the specific exclusionary aim of Ryanair’s conduct). [Gabriele Accardo]