Competition Law in Tourism

EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 53 The landmark ruling of the Court of Justice in Eturas171, clarifying how the rules on concerted practice apply in the digital world, stems from the Lithuanian case, involving price coordination between travel agencies through an online travel booking platform E-turas. In the underlying administrative proceedings, the Lithuanian Competition Council (LCC) sanctioned E-turas and 30 travel agencies for coordination of discount rate caps through the online booking system, communicated by the former to the latter in the form of an internal message, supplemented by relevant technical modifications. While the LCC treated these actions as an anti-competitive concerted practice, litigation ensued, and the case reached the Supreme Administrative Court of Lithuania, which referred two questions to the Court of Justice under the preliminary ruling procedure. Firstly, the referring Court inquired whether the measures taken by the booking platform gave rise to a presumption of tacit approval of price caps by travel agencies. In case of a negative answer, the Court of Justice was asked to list the factors to be taken into account in determining the existence of a concerted practice in the situation at hand. The Court of Justice confirmed that the measures at hand could, in principle, give rise to a presumption of participation in concerted practice by recipients, unless those undertakings engaged in public distancing or provided other relevant counter-evidence. At the same time, while reiterating that the standard of proof forms part of national procedural autonomy, the Court emphasised the importance of the presumption of innocence, which prevents considering the mere dispatch of the message sufficient to prove the infringement of Article 101 TFEU. Rather, actual knowledge of the content of the communication has to be established, including via “objective and consistent” indicia. The relevance of this case naturally transcends travel agencies and booking platforms, and the clarifications provided by the Court of Justice are relevant across the whole digital universe. As for the other recent cases in the tourism sector, the Commission has investigated airlines for horizontal code-sharing cooperation agreements, however, the cases were subsequently closed172. On several occasions, the Commission has accepted commitments offered by the airlines to alleviate competition concerns stemming from their horizontal cooperation (such as 171 Case C-74/14, Eturas UAB and others v Lietuvos Respublikos konkurencijos taryba, Judgment of 21 January 2016, ECLI:EU:C:2016:42. 172 See: Cases 39860 Brussels Airlines/TAP Air Portugal (closed in 2018) and 39794 Lufthansa/Turkish Airlines (closed in 2016).

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