104 COMPETITION LAW IN TOURISM Consequently, in most legal systems, the nullity of any legal relation conflicting with the antitrust law derives directly from the law principles47. In this respect, the decision of a competition authority or court has declaratory nature, since the nullity results directly from the law. Considering the market relevance of the tourism industry, as well as any other relevant market, the above discussed legal relation can be horizontal (at the same level of the market, e.g. between competitors, tour or hotel operators) or vertical (between different levels of market, namely non-competitors, such as a transportation company or an airline on one side and a tour operator on the other). These relations can be further complicated in cases where several suppliers and subcontractors provide services to one tour operator or where a few tour operators use services from the same service provider. Several examples of such cases will be discussed separately below. In practice, the most obvious case of unlawfulness can be collusion, namely an agreement between competitors that results in maintaining prices in the market (the so-called price fixing). Any such cooperation, whether it’s based on formal agreement or less formal grounds, is considered null and void in the light of the law. This means that it’s treated by the law as if it never existed. No legal consequences, except sanctions imposed by a competition authority or court on a perpetrator, can be drawn from such relation. It’s also hard to imagine, considering private antitrust enforcement, that any party of such unlawful relation can undertake legal action against another party involved in the same infringement. Vertical relations, their legal analysis and consequences, seem to be more subtle and complex. This is especially the case in relations between undertakings characterised by a lack of proportion in market power. Due to the nature of vertical relations, namely non-competitors’ involvement, in many cases, considering whether a particular relation (e.g. service or distribution contract) violates competition law is very difficult. There is still great ambiguity in authorities and court decisions as well as in legal literature. Moreover, whether a given type of contract or its part does or does not violate competition law, it is often a subject of debate between courts, academics and competition authorities48. 47 See for example Article 58 clause 1 of the Polish Civil Code (Act of 23 April 1964 the Civil Code) stipulating that “a juridical act that is contrary to the statute or whose purpose is to bypass statute shall be invalid […]” (translation Kodeks Cywilny/Civil Code, Wolters Kluwer, Warszawa 2011). 48 See Slaughter and May, The UE Competition Rules on Vertical Agreements, January 2018 https://www. slaughterandmay.com/media/64575/the-eu-competition-rules-on-vertical-agreements.pdf ).
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