EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 47 In the digital world, transactions performed by large digital platforms may contain specific risks, as well as a new type of efficiencies, not characterising offline markets. For instance, the Commission has been warned to be cautious in clearing “killer acquisitions” (dominant – digital – companies buying smaller competitors in a view of discontinuing their innovations), due to the heightened risk of post-transaction innovation in the relevant market137. Although the translation of new economic realities to legal tests is subject to vivid academic debate138, the case-law and decisional practice is yet to evolve to respond to these new types of scenarios. Regarding MSSs and OTAs, the Commission has analysed whether the merging parties were close competitors. In that connection, the fact that the merging parties had a different geographic focus, not constituting each other’s main competitor in any EEA country, was taken into account139. Further, the Commission has determined whether consumers have sufficient remaining negotiating power post-transaction. It is noteworthy that MSSs are considered to have incentives to contract with as many OTAs as possible, in order to allow their endusers to compare a wide range of offers for the travel products they are interested in. Conversely, OTAs and travel service providers are also interested in contracting with as many MSSs as possible, increasing their offerings’ visibility and ensuring their prices are shown to as many potential customers as possible. In the evaluation of the post-merger negotiating strategies with customers, the Commission has taken several factors into account, namely: whether the parties’ business model will change post-Transaction; the effect of changing negotiation strategy on the merged entity’s sales, especially given its relatively small market share in some MSS markets; and the increment brought about by the merger compared to existing market power of merging parties taken separately140. Concerning the barriers to entry and the expansion in the MSS market, the Commission has pointed to several entries in the EEA over the past years and has concluded that “while barriers to entry and expansion in the MSS market may 137 Crémer Report, supra note 71, p 117. 138 See, e.g.: Inge Graef, EU Competition Law, data protection and online platforms: data as essential facility, Kluwer Law International, Alphen aan den Rijn, 2016; Samson Esayas, Privacy as a Non-Price Competition Parameter: Theories of Harm in Mergers, 2018, available at: https://ec.europa.eu/competition/information/ digitisation_2018/contributions/samson_esayas.pdf; Anca D Chirita, Theories of Harm in ‘Data-Driven’ Mergers, 2018, available at: https://ec.europa.eu/competition/information/digitisation_2018/contributions/anca_chirita. pdf, 139 Case M.8416 – The Priceline Group / Momondo (2017), para. 99. 140 Ibid. paras. 94-95.
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