NEW DISTRIBUTION CAPABILITY (NDC) 611 their travel products. NDC does not cause the assimilation of distribution practices. Neither is it a mechanism for the exchange of sensitive commercial or strategic information, which is deemed as a by-object restriction24. If price collusion between airlines is suspected, NDC will certainly form the conditions of competition (as the context for examination and may also tilt the balance of whether there is sufficient evidence to prove collusion); but until then, Resolution 787 do not in itself infringe Article 101 TFEU. All that can be said with confidence is that NDC opens up a new battlefield and changes the structure of the market and competition at all levels along the supply value-chain. It does not seem to restrict or distort competition infringing the EU competition rules. This may however be a matter that regulators would want to look into, as a matter of industrial and competition ex ante policy, to ensure fairness in competition25. Third, whether NDC actually softens price competition depends on (a) what is the scope of the relevant market (which normally is an origin-and-destination (O&D) pair with time-sensitivity26) and what its competitive conditions are; and (b) how well could legacy GDS compete as the offeror27. We cannot make a straightforward assumption. (a) is of particular importance because, depending on the nature and size of the O&D pair market and the number of market player airlines, the level of intensity of competition varies significantly (theoretically being most stable and non-competitive in an oligopolistic environment). Also, if there are relatively close substitutes (whether through interlining or by the presence of LCC), it also puts severe price constraints on full-service carriers to prevent them from maintaining a collusion on high prices. For (b), since Resolution 787 is not a ban on EDIFACT-based legacy GDS, on the wholesale/distribution level, whether it is an EDIFACT-based API or NDC-based API, we are looking at two-sided markets with indirect network 24 See e.g. C-8/08 T-Mobile Netherlands and Others; X/Open Group OJ [1987] L35/36 paras 36-38. 25 Further, merger controls remain in place to prevent acquisitions that causes substantial lessening of competition at the air services industry. For example, the acquisition of Farelogix by Sabre announced in early 2018 was blocked on both sides of the Atlantic: the UK Competition and Markets Authority had in March 2020 provisionally blocked the deal, and the US Department of Justice had sued Sabre to block the deal and trial was conducted in January 2020. 26 See further on market definition in Truxal, S. (2013). Competition and Regulation in the Airline Industry: Puppets in chaos (pp. 150-152). London: Routledge. The analysis becomes more complex if one is to take into account the behind and beyond routes. 27 One of the primal differences is that offer and order management in the NDC-world is reverted back to the airline instead of being controlled by GDS.
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