60 COMPETITION LAW IN TOURISM geographic market206; but the market power analysis is also concerned with competitive constraints more broadly. The dominant position in a particular market is not illegal in itself yet, dominant undertakings (including large players in the tourism industry) have a “special responsibility”207 not to jeopardize competition in a given market. Additional factors, such as barriers to entry, countervailing buyer power and objective justification of the conduct, are also relevant208. However, there is currently no established practice on how such a justification would be assessed by the CJEU – this possibility has been discussed in the case law but has never been successfully applied. Application of Article 102 TFEU is a complex exercise even in the offline world, while digitalisation poses additional challenges. The Article 102 TFEU investigations are long and may end up with a substantial fine reaching 10% of the annual global turnover of the undertaking. Over the years, this provision has been applied in the tourism sector. The selected pricing and non-pricing abuses will be discussed below. 6.1. Pricing abuses Pricing practices relate to all violations of Article 102 TFEU that have to do with prices and costs of the undertakings involved: some of them involve the exploitation of customers by charging an overly high price, while others (aim to) exclude competitors from the market by pricing below cost. 6.1.1. EXCESSIVE PRICING To determine whether the demanded price is excessive, one should examine whether it has a “reasonable relation to the economic value of the product supplied”209. Although excessive pricing could incentivise new actors to enter the market, in some cases the barriers to entry are high, and consumers get exploited by the unreasonably high price for a long period of time. In an offline world, excessive prices may be charged by tour operators, hotels and transport companies alike, in an online environment, dominant platforms 206 Case 85/76, Hoffmann-La Roche &Co. AG v Commission of the European Communities, ECLI:EU:C:1979:36. 207 Case 322/81, NV Nederlandsche Banden Industrie Michelin v Commission of the European Communities ECLI:EU:C:1983:313, para. 57. 208 Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (Text with EEA relevance); OJ C 45, 24.02.2009, pp. 7-20, paras. 28-31; see also: Case C-209/10, Post Danmark A/S v. Konkurrencerådet, Judgment of 27 March 2012, ECLI:EU:C:2012:172, paras. 42-44. 209 Case 27/76, United Brands v. Commission, Judgment of 14 February 1978, ECLI:EU:C:1978:22, para. 250.
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