PRIVATE ANTITRUST ENFORCEMENT IN THE TOURISM INDUSTRY 101 suffered damage due to its subcontractor’s subcontractor unlawful conduct, it would give the tour operator the right to bring an action against the actual perpetrator (subcontractor’s subcontractor). Once the above mentioned three conditions of civil liability are met, the injured party can lawfully seek compensation on the infringement of antitrust law. The plaintiff (e.g. an enterprise operating in the tourism industry or consumer purchasing services from a tour operator) that suffered damage resulting from the infringement of antitrust law has the right to undertake private antitrust damages action and bring it before the court. This can be brought forth as a case as long as an undertaking or a consumer meets all the aforementioned conditions of civil liability. Those conditions can differ between states, particularly belonging to civil law and common law legal cultures38; however, in the vast majority of states the rules of civil liability are similar, sometimes even almost identical. This is the case in the EU, where all member states implemented the Directive into their legal systems39. The rules of civil liability based on the infringement of antitrust law are in many domestic legal frameworks similar, though it does not by any means imply that undertaking effective private action by the injured party against the perpetrator is easy. This also applies to the tourism industry. In most blatant cases, it is feasible to track down a practice or an agreement infringing antitrust law, especially those confirmed by a decision of national competition authorities or the EC. Nevertheless, it’s not satisfactory enough in order to establish civil liability due to the need of proving loss suffered by the damaged party as well as its extent. The abovementioned conditions have to be fulfilled in the course of civil proceedings. For example, in case of an overcharge resulting from price fixing, the consumer has to prove the difference between the price of services or goods paid and the price they would have paid if the infringement had not occurred. The same rule applies to businesses buying goods or services from other businesses if the former suffered due to the anti-competitive practices of the latter. The final price, though, depends on many factors and it fluctuates over time (e.g. the number of competitors, a saturation of the market, cycles of the economy, trends, the appeal of the product or service in a particular moment, etc.). The so-called quantification of harm in private antitrust enforcement is 38 See R. August, D. Mayer, M. Bixby, International Business Law, Text, Cases, and Readings, Pearson 2013, p. 45 et seq. 39 See also D. Wolski, The Principle of Liability … and D. Wolski, The Type of Liability in Private Enforcement …
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