COMPETITION ISSUES IN AIR TICKET SALES 289 A trade partner who cannot be bypassed by the opposite market side has to be regarded as dominant11. The issue of relative market strength was, therefore, not at stake. 4.2.3. Market abuse Travel companies acting as tour organisers buy a certain allotment of tickets and, thus, accept the risk not to be able to resell all these tickets. LH, therefore, cannot claim that travel companies could not be regarded as customers at a downstream economic stage. However, even mere intermediaries have to be considered as “other trading parties” under Article 102 TFEU12. There was no justification for the discrimination, even though, theoretically, there could be cases in which Austrian customers might profit from the price differences. These differences cannot be justified with the fact that all Austrian travel agencies are affected in the sameway: the real issue is the discrimination in comparison to customers booking in other countries. Moreover, bigger travel agencies may have subsidiaries or branches in other EU countries and use these subsidiaries or branches gain an advantage over companies with exclusively Austrian domicile. Regulation (EC) No. 1008/200813 explicitly provides for non-discrimination. Thus, it shall be granted access to airfares and air rates for air services from an airport located in the territory of a Member State to which the Treaty applies, available to the general public. Moreover, this access must be granted without any discrimination based on the nationality or the place of residence of the customer or the place of establishment of the air carrier’s agent or other ticket sellers within the Community14. Nevertheless, any practice falling under Article 102 TFEU remains unlawful, even if Article 23 of Regulation (EC) No. 1008/2008 does not apply. 4.2.4. Extent of the cease and desist order Contrary to the arguments brought forward by LH, the wording of the cease and desist order was clear and unambiguous. However, it was reaching too far. According to established case law in unfair commercial practices cases, a more general wording of a cease and desist order is permissible in order to avoid 11 CJEU, C-85/76 – Hoffmann-La Roche & Co. AG v Commission of the European Communities. 12 CJEU, C-95/04 P British Airways plc v Commission of the European Communities. 13 Regulation (EC) No. 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community. 14 Article 23 para 2.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==