286 COMPETITION LAW IN TOURISM 3. LEGAL ASSESSMENT OF THE RESTRICTIVE PRACTICES COURT Due to the impact on the domestic market, on the one hand, and the interstate relation, on the other, the Restrictive Practices Court held that both European and Austrian competition laws had to be applied. Based on a market share of 12% in the European market, LH did not have a market-dominating position, but a relative market strength towards travel agencies. Any carrier was free to organise its distribution channels and to enhance its direct sales in comparison to other distribution channels. It could also charge fees for the use of external distribution channels like GDSs, even if these fees exceeded the actual costs. There was no indication that the fees charged by LH would be excessive. Within the route-specific market for flight services between Graz and Frankfurt, LH had a market-dominating position because there was no other supplier. The differences in the price – whether booked in Austria or Germany – would discriminate Austrian travel agencies and infringe the prohibition of abuse. LH could not rely on the circumstance that it did not influence the variances in the offers generated through the GDS, because it had been aware of that fact for years and had failed to take appropriate measures to avoid such discrimination. As a result, the Restrictive Practices Court dismissed the motion for a cease and desist order concerning the DCC, but granted the motion for a cease and desist order regarding the price discrimination through GDSs. The claimant filed an appeal regarding the DCC, while the defendant appealed the decision on price discrimination. 4. SUPREME COURT DECISION4 4.1. DCC The Supreme Court held that “abuse” means the interference of the conduct of a market-dominating company with a genuine undistorted market5. The market definition was an issue of fact concerning the assessment of objective differentiation criteria, but it was an issue of law with regard to the evaluation of 4 Supreme Court, 16 Ok 1/18k, 16 Ok 2/18g of 12 July 2018. 5 GC T-321/05 Astra Zemeca; CJEU 322/81 Michelin I; and others.
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