PRIVATE ANTITRUST ENFORCEMENT IN THE TOURISM INDUSTRY 105 If there is a case, important questions related to private law consequences of antitrust law violations will arise. First and foremost, there’s the question of potential complaints between the parties of the contract, particularly when one party was forced by the other party to enter into an unlawful agreement. This is essentially the subject of the landmark decision in private antitrust enforcement cases, namely Courage Crehan49. In that decision, the Court found it possible that one party of the contract (being forced) to bring a complaint against the other party of the same contract (forcing to enter into a contract). The complaint was based on the infringement of antitrust law resulting from an unlawful agreement, also concluded by the plaintiff as one of the parties. Considering the existing disproportions in market power between the parties, the Court concluded that the party being forced to enter into the contract is able to sue the perpetrator for the infringement, even if the plaintiff is the party of the same contract50. For obvious reasons, though, the legal ground of the complaint is not the contract in question, but the competition law infringement itself. This is because the contract (at least its main part) was found null and void once it was considered contrary to statute (here, competition law). The latter is essentially the answer to the second important question that arises out of the private law consequences of a contract conflicting with competition law, concluded between non-competitors in vertical relations. If the contract is found null and void, the only legal ground of the complaint – antitrust damages actions as well as other types, such as unjust enrichment – is antitrust law and civil law itself, with no references to contract unlawfully concluded between the parties. This is because by law, the contract does not exist. Other private law consequences of the infringement of antitrust law do not significantly differ in the tourism industry when compared to other sectors of the market. If the undertakings concluded the tourist service agreement that is contrary to antitrust law, the contract becomes null and void, at least in its part directly conflicting with such statute. The parties of the unlawful contract cannot rely upon their rights and obligations specified in the contract; the contract does not legally exist. Nevertheless, in very specific cases, due to disproportion between the parties involved in the contract, one party could still undertake legal action against the other party. One such case is when a party 49 Judgement of the Court of 20 September 2001 in Case C-453/99, Courage Ltd v Bernard Crehan and Bernard Crehan v. Courage Ltd and Others. 50 See above.
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