600 COMPETITION LAW IN TOURISM This is not a matter of disintermediation that arose with the Internet and brought airlines back into direct contact with potential passengers shopping online. This is the creation of greater intermediation in order to dethrone GDSs, but also to place airlines back in the driver seat in regard to passenger data retention, control and use. Furthermore, in today’s digital economy, data is everything50. The move in 1999 by the airlines, through IATA, to eliminate the agents’ sales commissions had changed the relationship between travel agents and airlines in a fundamental way. Previously, when airlines paid a commission, it was clear that the travel agent was an agent of the airline and thus the passenger data belonged to the airline. By doing away with commissions in 1999, the agents needed to be funded by passengers (paying a fee). Thus, the data now belongs to the agents and is housed in the GDSs. It is important to note that IATA did not seek endorsement of the business requirements or marketplace aspirations of NDC. This means that IATA will have to go back to the DOT for approval if it seeks to make NDC a standard business requirement through further agreements between its airline members. Perhaps more interesting, however, is that NDC appears to be in the process of becoming something of a litmus test for consumer protection aspects when scrutinizing competition law. In 2016, the EU Commission announced that it had approved the acquisition of Navitaire by its rival GDS, Amadeus51. As with any merger of competitors, the decision entailed competition scrutiny and the application of the EUMerger Regulation. The Commission determined that the merger would likely not reduce innovation – a nod to the consumer protection aspects of competition laws. As part of its findings, the Commission noted that: “[T]he transaction is unlikely to reduce innovation for “new distribution capability” (“NDC”) (...) The market investigation indicated that NDC is still in an early development stage and the role of GDS suppliers in its functioning is not yet defined. Amadeus has publicly supported NDC and the acquisition of Navitaire would not change Amadeus’ ability and incentives as regards NDC. The Commission therefore concluded that the transaction would raise no competition concerns”52. 50 Ron Hirson, “Uber: the Big Data Company” Forbes (23 March 2015) online: https://www.forbes.com/sites/ ronhirson/2015/03/23/uber-the-big-data-company/#57eeebdc18c7 (“Uber knows where I live, where I work, where I eat, where I travel, where I stay/visit and when I do all these things.”). 51 European Commission – Press Release, “Mergers: Commission approves acquisition of Navitaire by Amadeus (19 January 2016) online: http://europa.eu/rapid/press-release_IP-16-106_en.htm. 52 Id.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==