NEW DISTRIBUTION CAPABILITY AND COMPETITION 597 to determine that the CRS market was sufficiently competitive and to phase out CRS rules by 200430. Phasing-out CRS rules, however, does not mean that airline ticket distribution is not regulated. In the USA, “[I]f the [DOT] considers it in the public interest, [it] may investigate and decide whether an air carrier, foreign air carrier or ticket agent has been engaged in an unfair or deceptive practice or unfair method of competition in (...) the sale of air transportation”31. Thus, the broad and nebulous standard based on public interest, which airlines find so egregious, pertains as well to ticket agents, including CRSs, to be regulated by the DOT and DOT alone32. While the US phased out CRS regulations, Europe went in the opposite direction. Initially, the creation of European CRSs was made possible by way of an exemption to competition law requirements that was issued in 198833. One year later, its language was converted into an EC regulation – a Code of Conduct for CRSs34. The Code of Conduct was updated in 1993 and 199935; whereas the US had already considered phasing out CRS regulations in 199736. Therefore, while the US was considering deregulation, the EU doubled-down, creating legislation enforceable in all EU member States37. As discussed above, the US phased out its CRS regulations in 2004. Five years later, the EU renewed its CRS Code of Conduct again by way of EU Regulation 80/2009 of 14 January 2009. As in the US, airline divestitures in CRS systems caused some of the EU rules to be relaxed. The regulations put into place in 1989 were replaced by a simplified code of conduct38, which has been described as a ‘partial deregulation’39. 30 Ravich at 401-402; David A Schwarte, “Regulation of Airline Ticket Distribution” in David Heffernan and Brent Connor, Eds., Aviation Regulation in the United States (American Bar Association, 2014) 143, 145 [hereinafter, ‘Schwarte’]. 31 49 USC § 41712 (emphasis added). 32 Schwarte at 145 (“As a consequence of the interaction of [§41712 and 41713, which deals with pre-emption of authority over prices, routes and services], it is the DOT, and the DOT alone, that promulgates and enforces regulations governing the offering and sale of air transportation in the United States. (...) In its decision to sunset GDS rules, DOT held that GDSs were ‘ticket agents’ that it could regulate pursuant to its Section 41712 authority”). 33 Mia Wouters, “Simplification of the European Code of Conduct for Computer Reservation Systems (CRS) (2011) 36 Air & Space L 49, 50 (citing Commission Regulation 2672/88 of 26 July 1988) [hereinafter, ‘Wouters’]. 34 Shawcross and Beaumont at V-429 (citing Council Regulation 2299/89 0f 24 July 1989 on a code of conduct for computer reservation systems, OJ No L 220/1). 35 Wouters at 53 (referencing EU Council Regulations 3089/93 of 29 October 1993 and 323/99 of 8 February 1999). 36 Ravich at 394. 37 Wouters at 53. 38 Shawcross and Beaumont at V-429. 39 Wouters at 55.
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