NEW DISTRIBUTION CAPABILITY AND COMPETITION 595 Whereas the US approves anticompetitive agreements and grants immunity from antitrust laws if it is in the public interest, EU competition law has a built-in exemption under Article 101(3). The exemption is similar to the public interest test, whereby an agreement that restricts competition will not be prohibited wherever it improves the production or distribution of goods or promotes technological or economic progress, “while allowing consumers a fair share of the resulting benefit”18. Thus, the EU exemptions to anticompetitive agreements likewise focus on protecting the consumer19. Note, however, that there is no exemption regarding the prohibition of abusing a dominant position20. Therefore, an actor engaged in air transport – or any other service affiliated with aviation, for that matter – which possesses dominance in a market might run afoul of antitrust rules even because of unilateral actions that exercise market power in a way that discriminates, such as refusing to deal or refusing access to essential facilities21. Note as well that whilst the US DOT approves agreements exante –mentioned above and discussed further below, IATA sought approval of Resolution 787 on New Distribution Capabilities in advance of its implementation – the EU Commission reviews cooperative arrangements expost – the Commission offers no prior indication as to whether an agreement satisfies the Article 101(3) exception22. Thus, unlike the US where airlines and, indeed, distributors of airline tickets can gain a modicum of certainty that an agreement does not run afoul of antitrust laws, in Europe they run the risk of a Commission investigation when cooperative agreements are entered into23. 3. REGULATION OF CRSS IN THE US AND EUROPE The foregoing competition rules apply not only to airlines but also to the various actors that sit between airlines and passengers – GDS and travel agents, both brick and mortar and online ones. Computer reservation systems sit between 18 Article 101(3) TFEU (emphasis added). 19 Havel and Sanchez at 156-157, FN 127 [Stating, “In recent years the EU has increasingly emphasized consumer welfare as a predominant goal.” (citing David J. Gerber, “Two Forms of Modernization in European Competition Law” (2007) 31 Fordham Int’l L J 1235, 1246-52)]. 20 Article 102 TFEU. 21 Shawcross and Beaumont at X-120. 22 Havel and Sanchez at 156-157 (citing Council Regulation 1/2003, Article 1, 2003 O.J. (L1) 1). 23 Havel and Sanchez at 158-159.
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