570 COMPETITION LAW IN TOURISM as a “parent carrier”. However, such an argument may not be relevant if it is considered that this system is in fact operated in the airlines’ own offices, as pursuant to Article 5 of the code19. ETTSA is also evaluating further action based on EU competition law principles (Articles 101 and 102 TFEU). Still, would an abuse of a dominant position be recognised? Article 102 which prohibits such anti-competitive behaviour states: Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. Under these provisions, evidence of dominance in a substantial part of the European Union is required. However, having a dominant position does not in itself breach competition law. It should be outlined that it is the abuse of that position that is prohibited. Again, it is not certain that enhancing particular channels with NDC could be equated with an abuse, from a competition perspective. However, the Commission has not decided on this case yet. III. FINAL REMARKS The travel industry remains unenthusiastic towards NDC and doubts persist in relation to the real effect on the market of NDC deployment, its fares transparency, etc. A new step has recently been taken, when another European 19 This provides: “5. This Article shall not apply to a CRS used by an air carrier, or rail-transport operator, or a group of air carriers, or of rail-transport operators, in its or their own office or offices and sales counters or on their own websites clearly identified as such”.
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