100 COMPETITION LAW IN TOURISM damages claims, the injured party should demonstrate and prove at least one of the abovementioned types of damage. Even if the Directive has already been implemented in all the EU Member States, this is still the case because even if the damage caused by a cartel is presumed according to Article 17 clause 2 of the Directive (rebuttable presumption of harm), the damaged party has to prove its extent34. “Overcharge”, by definition, is the difference between a higher price resulting from the infringement of antitrust law and the price that existed in the market if the infringement had not occurred35. We can imagine this scenario easily occurring in the tourism industry as well. If the collusive practice was undertaken by tour operators or by other businesses rendering services directly to the consumer, the consumer would suffer damage. If the concerted practice occurred in another layer – e.g. between undertakings cooperating with tour operators – then the latter would suffer damage (e.g. higher costs of transportation, food, beverages, hotel services, etc.). In the event of practices aimed at the elimination of competitors from the market (e.g. foreclosure), whether resulting from the prohibited agreement or abuse of dominant position, the potential damage suffered by the injured party derives from the lack of possibility of doing business (or execution of a particular contract). Notwithstanding the above examples, in order to obtain compensation for the infringement of antitrust law, the injured party must prove not only the type of damage, whether actual damage or lost profits, but also its quantity. As such, quantification of the harm is necessary in every case of antitrust damages claims to be successful36. The third condition to be fulfilled in order to effectively litigate the party violating antitrust law is causation. This means that the plaintiff must prove the existence of a direct causal link between the infringement in question and the damage suffered. This principle has no exemptions, but the rules pertain to the possibility of litigating the perpetrator by the indirectly injured party (e.g. indirect purchaser), arising out of the transposition of the Directive’s rules into national legal systems of the member states37. As an example, if a tour operator (as indirect purchaser) 34 See more V. Mikelėnas, R. Zaščiurinskaitė, Quantification of Harm and the Damages Directive: Implementation in CEE Countries, Yearbook of Antitrust and Regulatory Studies, Vol. 2017, 10(15), pp. 119-120; A. Piszcz, D. Wolski, Poland, in A. Piszcz (ed.), Implementation of the EU Damages Directive …, p. 220 and M. S. Ferro, F. Marcos, The Antitrust Damages Directive … 35 See also Article 2 point 20 of the Directive. 36 See also remarks related to the quantification of damage in the light of the Directive V. Mikelėnas, R. Zaščiurinskaitė, Quantification of Harm and the Damages Directive: Implementation … 37 See remarks related to the implementation of the Directive into Polish legal system A. Piszcz, D. Wolski, Poland …, p. 219.
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