EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 59 Commission commissioned a support study to gather evidence on the efficiency of the VBER and how the emergence of new forms of distribution such as online platforms has affected the dynamics of competition203. The study first highlights that respondents are concerned about the differences in national enforcement standards of MFN clauses. Secondly, the study considers the use of MFN clauses in the hotel industry, in which MFN clauses are particularly widespread. The study found that in the hotel industry, narrow MFNs have generated the same anti-competitive effects as wide MFNs. Such a finding would be in line with the Crémer Report’s suggestion that where competition is vigorous, a prohibition of wide MFNs may suffice, while if competition is weak, narrow MFNs should also be prohibited204. Thirdly, the study warns against the cumulative effect of different platform operators using MFN clauses in parallel. In particular, the study points out that where MFN clauses cover a substantial part of the market, this may help collusive outcomes and reduce price competition. It is yet to be seen to which extent the Commission will use this study in the context of the review of the VBER. The outlook will be clearer once the Commission publishes the results of its public consultation on the VBER (initially scheduled for the second quarter of 2020). 6. ABUSE OF A DOMINANT POSITION Article 102 TFEU prohibits the abuse of a dominant position, a provision that applies across the board, including to the tourism-related markets. Ever since the Michelin case, dominance has been defined as a position of economic strength enjoyed by an undertaking “which enables it to hinder the maintenance of effective competition on the relevant market by allowing it to behave to an appreciable extent independently of its competitors and customers and ultimately of consumers”205. The primary consideration to determine whether an undertaking (or a group of undertakings) is dominant is a high market share in the relevant product and 203 European Commission, Support studies for the evaluation of the VBER, Final Report, https://ec.europa.eu/ competition/publications/reports/kd0420219enn.pdf. 204 Crémer Report, supra note 71, p. 57. 205 Case 322/81, NV Nederlandsche Banden Industrie Michelin v Commission of the European Communities, ECLI:EU:C:1983:313.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==