52 COMPETITION LAW IN TOURISM 5. ANTI-COMPETITIVE AGREEMENTS, CONCERTED PRACTICES AND DECISIONS An agreement or a concerted practice between undertakings, as well as decisions of associations of undertakings167, may distort competition by their object or effect. While Article 101 TFEU does not concern unilateral conduct, various horizontal and vertical practices involving two or more independent undertakings168 fall under this provision. The result of a violation of Article 101(1) TFEU is the nullity of underlying arrangements. Additionally, participating undertakings are exposed to a hefty fine (up to 10% of their global annual turnover), unless the conduct is justified by consumer-benefitting efficiencies under Article 101(3) TFEU. In recent years, the tourism sector has witnessed the proliferation of antitrust enforcement related to vertical agreements, yet the Commission has also dealt with several horizontal cases in the sector. 5.1. Horizontal agreements Horizontal agreements involve the undertakings on the same level of the trade. Among them, cartels (hardcore market-sharing or price-fixing arrangements), represent the most egregious violations of Article 101 TFEU, and the special procedural rules aim to facilitate enforcement against them169. Besides, undertakings may engage in horizontal cooperation, which can be pro- or anti- -competitive, depending on the likely outcome of such cooperation. To outline the competitive risks involved, the Commission has provided its guidance on this matter170. As in every other sub-field of competition law, digitalisation poses new questions regarding the legality of certain new practices, under Article 101 TFEU. Some of these issues have been clarified in the recent CJEU jurisprudence involving the tourism sector. 167 Hereinafter collectively referred to as “agreements” unless specified otherwise. 168 “Undertaking” is defined autonomously as “every entity engaged in economic activity regardless of the legal status of the entity and the way in which it is financed”. See Case C-41/90, Klaus Höfner and Fritz Elser v Macrotron GmbH, Judgment of 23 April 1991, ECLI:EU:C:1991:161, para. 21. 169 Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases (Text with EEA relevance) OJ L 171, 01.07.2008, pp. 3-5; Commission Notice on Immunity from fines and reduction of fines in cartel cases (Text with EEA relevance) OJ C 298, 08.12.2006, pp. 17-22. 170 Communication from the Commission – Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements Text with EEA relevance OJ C 11, 14.01.2011, pp. 1-72.
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