288 COMPETITION LAW IN TOURISM Moreover, there was joint responsibility as soon as another entity was used for the pursuit of LH’s own interests. According to the findings of the Restrictive Practices Court, LH used the GDS for their ticket sales, the systems of the two are close to each other, and they are practising a close cooperation. The termination of the full-content agreements proved that there was no relation of dependence and the negotiating power of the GDS was not as big that it could prevent LH from exerting influence. Additionally, there was no reasonable interest of the GDS in maintaining the erroneous price differences as they did not profit from these differences. Dominant companies had a particular responsibility to guarantee non- -distorted competition9. LH, therefore, was obliged to avoid competition distorting effects caused by traders used for ticket sales, by charging discriminating prices to travel agencies for equal services. Despite being aware of this discriminating effect for several years, LH had failed to take effective action to terminate the discrimination. Establishing a widely unknown complaint system or an ineffective working group was no suitable instrument. 4.2.2. Dominant market position The Restrictive Practices Court had correctly qualified LH as a dominant company as there was no other supplier offering flights between Graz and Frankfurt. A company had to be regarded as dominant if it was not exposed to any competition or only little competition. According to established case law, a company has to be regarded as “dominant” when it is in a position to impede effective competition on the relevant market, by being able to act widely independent from competitors and towards consumers10. A company is dominant when it can fix prices above competition level for a considerable period and, in particular, where it has a monopoly position as the only supplier of the respective products or services. The European Commission’s decision in merger control proceedings that LH being the only carrier operating the GRZ-FRA route was not subject to any reservations concerning competition could not be applied to a case of market abuse. Furthermore, contrary to the Commission’s expectations in 2009, there had not been any competitionwhatsoever on the GRZ-FRA route for several years. Likewise, LHhad not produced any evidence disproving its dominant position on this market. 9 CJEU C-280/08 P – Deutsche Telekom AG v European Commission. 10 Supreme Court, 16 Ok 4/08 and others.
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