COMPETITION ISSUES IN AIR TICKET SALES 287 the method applied6. According to the new law7, the Supreme Court had authority to review not only the legal assessment but also factual findings if considerable concerns arose from the files. However, the Supreme Court had no concerns that the expert had rejected a route related approach in the market definition regarding the DCC. At any rate, the market definition issue was not decisive in the case because there was no abuse. Even market-dominating companies, in principle, are free to choose with whom and on which conditions they contract, choose their distribution channels and calculate their prices. Only excessive prices would constitute an abuse8; however, according to the findings of the Restrictive Practices Court, there was no indication for the DCC being excessive, hence, there was no abuse by LH. Even if a few (non-European) states prohibited such charges in their national laws, this could not lead to tangible impact in Europe as the number of tickets issued outside of Europe for flights within Europe was minimal. The Restrictive Practices Court had not failed to collect evidence on the costs involved with direct sales, as there had not been any related motion of the claimant. Apart from that, there was no relevance of these costs. Moreover, even if LH, by opening up a booking portal for direct sales, was competing with travel agencies, these agencies were also free to use this booking portal in order to avoid the DCC. Therefore, LH’s practice could not be regarded as an abusive margin squeeze at the detriment of travel agencies. As a result, the Supreme Court regarded the DCC as objectively justified and proportionate and upheld the Restrictive Practices Court’s dismissal of the claimant’s motion of cease and desist order about the DCC. 4.2. Price Discrimination 4.2.1. Responsibility LH argued that the GDSs were not attributable to them as agents or subcontractors, as LH and the GDS would not constitute an economic entity. However, the Supreme Court pointed out that the issue was not the GDS’s practices but those of LH itself, since LH had failed to take any initiative to resolve the price discrimination caused by a defect of the GDS, even though it had been aware of it for a considerable time. 6 Supreme Court, 16 Ok 15/08; 16 Ok 1/09; 16 Ok 14/08; 16 Ok 8/10; and others. 7 Cartel and Competition Law Amendment Act 2017 / Kartell- und Wettbewerbsrechts-Änderungsgesetz 2017 (KaWeRÄG 2017). 8 CJEU C-27/76 – United Brands Company; Supreme Court 16 Ok 13/13; 4 Ob 62/00x.
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