606 COMPETITION LAW IN TOURISM Alongside with airlines’ introduction of their new NDC distribution pipeline4, some airlines5 have also imposed a surcharge on all bookings made through the legacy GDS, ranging from a per-ticket fee to levying a charge per every fare component. Other airlines have chosen to take different approaches, e.g. paying incentives to agents for segments booked via its own NDC channel instead of through GDS6, or developing its NDC channel with a partnered GDS and levying a surcharge on agents that do not subscribe to its channel7. Instead of a legalistically structured analysis of NDC under the EU competition law in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), this article scrutinises NDC at the fundamental level of competition underlying most (if not all) competition/antitrust regimes: (i) does the subject matter in itself harm competition, and if so, (ii) does this harm translate into a reduction in consumer benefits, taking into account any possible pro-competitive effect. In other words, what are the “theories” of anti- -competitive harm and do any of them hold water? 2. FIRST THEORY: NDC, AS STANDARDISATION, CONSTITUTES ANTI-COMPETITIVE COLLUSION Within the travel service distribution value-chain, airlines (and other service and content providers) do not compete only on price, product and quality. Especially in this era of widespread use of the Internet and high connectivity, suppliers also compete on marketing and dissemination of products’ information to end- -consumers: the technology used, accuracy, time-to-market and transaction costs involved8. This extends to the use of travel intermediaries – traditionally GDS, or “aggregators” according to the terminology used in the sphere of NDC. One way of categorising NDC is that it is a standardisation agreement9 – airlines agreeing to one set of protocol for both data input and output across the 4 Whether through its own creation (e.g. Lufthansa) or partnering with legacy GDS (e.g. Qantas, Finnair) to implement NDC connections. 5 Beginning with Lufthansa as early as 2015, and then British Airways, Iberia, Air-France and KLM. 6 E.g. American Airlines NDC program pays US$2 for every AA-marketed segment processed. 7 E.g. Qantas Distribution Platform. 8 See e.g. Commission Decision 88/589/EEC of 4 November 1988 relating to a proceeding under Article 86 of the EEC Treaty (IV/32.318, London European – Sabena) 24.11.1988, OJ L317/47, para 14. 9 See e.g. Comments of the American Antitrust Institute filed with the US Department of Transportation against the approval of Resolution 787, DOT-OST-2013-0048-0388.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==