EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 61 may engage in similar behaviour210. In that regard, the MFNs have also an impact, as they can result in higher (and thus – unfair) pricing towards end customers. Although legal tests to establish this infringement are often price- -based, it is widely recognised that “in the case of two-sided platforms, pricing takes on special properties”211, meaning that one side routinely “subsidises” the other. Besides, for free products, consumers may pay substantially more with their data, information and attention, which can, in turn, be excessive212. In that sense, enforcement against multi-sided platforms may deviate from the “traditional” analysis. Further, booking platforms may face (national) investigations for excessive commission fees for displaying hotels’ offers213. 6.1.2. PREDATORY PRICING In the current EU legal framework, prices under average variable costs are considered to be abusive214. Prices below average total but above average variable costs are only deemed abusive where there is an intent to eliminate a competitor215. In practice, dominant enterprises may offer lower prices or give more rebates, which may generate barriers to entry for smaller (potential) competitors, something particularly true for digital platforms, which benefit from enormous economies of scale and scope as a result of their (indirect) network and data effects. This can, in turn, point to de facto exclusivity or predatory pricing, leading to foreclosure of other undertakings in the relevant market. In order to determine the predatory character of the price, the combined pricing in all markets with all combined cost should be taken into account216. Moreover, the advertisement profits and costs must be taken into account217. In the short run, predatory pricing may benefit customers, but it will, most likely, 210 Although there is no EU precedent concerning this issue, the Turkish Competition Board has sanctioned online platform for excessive pricing. See: Charles McConnell, Turkey issues landmark excessive pricing fine on an online platform, 04.10.2018, available at: https://globalcompetitionreview.com/article/1175259/turkey-issues- -landmark-excessive-pricing-fine-on-an-online-platform. 211 Crémer Report, supra note 71, p. 32. 212 Frisco Bostoen, Online platforms and pricing: Adapting abuse of dominance assessments to the economic reality of free products, Computer Law & Security Review 2019, p. 280. 213 Matthew Newman, Hotel platforms may face French antitrust probe for excessive pricing, de Silva says, 05.12.2018, https://www.mlex.com/GlobalAntitrust/DetailView.aspx?cid=1047371&siteid=190&rdir=1. 214 Case C-62/86, AKZO Chemie BV v Commission of the European Communities, Judgment of 3 July 1991, ECLI:EU:C:1991:286, para. 71. 215 Ibid. para. 72. 216 Frisco Bostoen, Online platforms and pricing, supra note 212, p. 272. 217 Ibid. p. 273.
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