102 COMPETITION LAW IN TOURISM more difficult in foreclosure cases or abuse of dominance. Such practices can cause barriers in access to business opportunities for competitors (e.g. a new contract or prolongation of the previous one)40. The abuse of dominance can be one of the consequences of mergers and acquisitions in the tourism industry (e.g. airlines or tour operators), that have already been monitored by competition authorities, both national and the EC41. In these cases, the biggest challenge is to prove, based on economic analysis, the value of business opportunities lost as a result of the infringement (e.g. profits lost due to a lack of contract or no possibility of doing business in the relevant market). Without exception, all of the aforementioned issues are common in the tourism industry. Bearing in mind the complexity of the quantification of harm in private antitrust enforcement cases, the EC issued guidelines on supporting such a process in which the plaintiff seeks compensation for damage suffered as a result of the infringement42. 4. OTHER CONSEQUENCES OF ANTITRUST INFRINGEMENTS As previously stated in this chapter, there is great emphasis on the compensatory function of private antitrust enforcement, both in the EU and the US, as well as other states where private enforcement plays a significant role. When discussing the example of the Directive, it’s hard to imagine that its drafters did not recognise other consequences of competition law infringement in the field of private law. Nevertheless, when stipulating the injured party’s right for compensation, the Directive focuses almost exclusively on “overcharge”. This, in turn, reflects a purely compensatory function. The Directive specifies two types of damage: actual loss (damnum emergens) and loss of profits (lucrum cessans), both of which are typical for private law43. As a result, almost an entire section 40 See e.g. quantification of harm in British cases adjudicated by the Competition Appeal Tribunal in London: Case No. 1031/2/4/04, Albion Water Limited v. Water Services Regulation Authority (https://www.catribunal.org. uk/cases/10312404-albion-water-limited) and Case No. 1166/5/7/10, Albion Water Limited v. DŴR Cymru Cyfyngedig (https://www.catribunal.org.uk/sites/default/files/1166_Albion_Judgment_CAT_6_280313.pdf. 41 See examples mentioned in chapters 2 and 3 above. 42 See Guidance to national courts: Quantification of harm caused by infringements of the EU antitrust rules (http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_en.html) and M. P. Schinkel, University of Amsterdam and ACLE, European CommissionWorkshop on Quantification of harm in damages actions for antitrust infringements, Brussels, 26 January 2010 (http://ec.europa.eu/competition/antitrust/actionsdamages/schinkel_2. pdf ). 43 See Article 3 of the Directive and Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union (2013/C 167/07) (https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:167:0019:0021:EN:PDF).
RkJQdWJsaXNoZXIy MTE4NzM5Nw==