312 COMPETITION LAW IN TOURISM 4.1. The extent to which competition law can solve possible concerns The first issue to address is to establish whether competition law contains instruments that eliminate or mitigate these concerns. And we must draw a negative conclusion. In fact, competition law does not provide an adequate safeguard. These issues are ruled on in articles 101/102 of the European Union Treaty. Article 1015 (formerly 81) prohibits and makes void agreements preventing, restricting or distorting competition affecting trade within the EC, subject to the possibility of exemption (for a limited period) where, essentially, sufficient consumer benefit can be shown. Article 1026 (formerly 82), the other principal competition rule, prohibits abuse of dominant position and is mostly applicable to unilateral behaviour. Depending on the way in which they are structured7, airline alliances may be investigated by the Commission either 5 Article 101 (ex-Article 81 TEC). 1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. 2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void. 3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of: – any agreement or category of agreements between undertakings, – any decision or category of decisions by associations of undertakings, EN C 326/88 Official Journal of the European Union 26.10.2012, – any concerted practice or category of concerted practices, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question. 6 Article 102 (ex-Article 82 TEC) Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. 7 See Balfour, John (2004), EC competition law and airline alliances, Journal of Air Transport Management.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==