50 COMPETITION LAW IN TOURISM products is limited, since the parties already prefer to rely on internal (rather than external) distribution, as the former is cheaper155. The Commission has concluded against the input foreclosure on the wholesale market for charter airline seats, taking into account various factors such as the moderate post-merger market shares on the relevant market, the absence of incentives to limit or cease co-chartering (as the freedup capacity of customers could become subject to additional competition) and the out- -ofmarket competition by low-cost carriers or by neighbouring airports, alleviating the effects of any input foreclosure strategy156. Concerning vertically integrated MSSs, they could have an incentive for input foreclosure, especially on the downstream market, by foreclosing OTAs that are in competition with their integrated downstream OTAs. About this assessment, an important factor is whether the MSS provides any hotel commercial affiliate programmes through its MSSs or OTAs, as it influences the merged entities’ ability and incentive to follow the input foreclosure strategy157. Customer foreclosure may consist in the fact that the enterprise limits the rivals’ possibilities to reach customers. For example, integrated tour operators with significant market power may make it difficult for independent players to access their high-street retail distribution158. In an online world, a MSS may engage in customer foreclosure, for instance, by refusing to list their OTAs on the rivals’ MSS platforms159. As for the OTAs, in general, adopting foreclosing conducts would be contrary to the business model these undertakings apply160. However, each case is evaluated on its own merits. Procedurally, some tourism-related transactions have been cleared in a simplified procedure due to limited competitive effect on the market161. That said, in more complicated cases, when the Commission had serious doubts concerning the compatibility of the transaction with the internal market, clearance was made subject to commitments, respecting the principle of proportionality. For example, in the TUI/First Choice case162, TUI committed 155 Case M.8046 – TUI/Transat France, para. 351. 156 Ibid. para. 327 et seq. 157 Ibid. para. 195. Even when this is the case, if the market is competitive, a number of other providers will continue to supply hotel commercial affiliate programmes, eliminating foreclosure concerns. 158 Case M.4600 – TUI/First Choice, para. 83. 159 Case M.9005 – Booking Holdings/Hotelscombined, para. 130. 160 Case M. 8416 – Priceline/Momondo, para. 189. 161 See, e.g. Cases M.8185 Atlantia/EDF/ACA; M.9245 – BAC/Marriott/Airhotel BVBA. 162 Case M.4600 – TUI/First Choice.
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