392 COMPETITION LAW IN TOURISM However, a delicate balance must be maintained between the competitors’ expected freedom and the consumer’s protection. What is the main reason to enforce the freedom of imitation principle? It is because the confusion act affects not only consumers, but also the competitor whose efforts are being imitated. For competitors, UC provisions function as a two-way law, allowing “competitive” conducts and abiding excessive ones. Since imitation is inevitable, the law provides limits on what can be imitated, delimiting a space where competitors move freely and prosper. Such delimitation, however, can sometimes be blurred, allowing competitors to act in a way that confuses consumers without infringing the freedom of imitation principle. Other factors like geography, weather, history and culture, may affect the range of activities or services to be provided, therefore limiting the freedom to innovate as the possibilities are diminished. In such cases, the freedom of imitation principle shall be more freely enforced. This, however, may lead to an increased number of unfair acts. There are no econometric studies in this field, so it is not possible to determine at which point these conducts have a positive impact on the imitated firm or the market. However, since consumers are an important subject within the competence relationship, administrations can act ex officio regardless of whether or not the firms are benefiting from the conduct. 5. POSSIBLE EFFECTS ON THE TOURISM SECTOR There is no concrete evidence of the actual influence of these specific UC practices on the tourism sector. It could prove difficult to determine whether they have a negative effect at all, and if they do, over which element(s) of the protected triad: consumer, market or competitor. Once again, the crucial aspect is the freedom of imitation principle, which, in tourism, has some particular nuances. One such nuance is the limitation to innovate in this sector (Volo, 2004) and therefore the broad scope with which the need for imitation is evaluated. This allows one firm’s practices to range dangerously close to another’s without infringing the freedom to imitate principle, but still affecting competitors. Such dynamics could have a wide range of effects, which go from satisfying consumers, but still confusing them, to stimulating innovation through the above-described cycle, while somehow damaging competition.
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