EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 63 favour of its partner travel agents223. The court concluded that the rebates at hand gave rise to discriminatory treatment and the competitive disadvantage of certain travel agents. At the same time, the conduct could foreclose rivals of the dominant firm out of the market. In the digital world, the possible qualification of parity clauses under Article 102 TFEU has been discussed224, namely, the question if the MFNs are to be regarded as an agreement, in the sense of Article 101 TFEU, or unilateral behaviour, in the sense of Article 102 TFEU, having been answered differently by multiple NCAs. The Commission, in a decision in another sector, has based itself on Article 102 TFEU225, however, it remains to be seen whether parity clauses in the tourism sector come under further scrutiny under a different legal qualification. 6.1.5. Geo-blocking and other geographically-based restrictions Geoblocking may also have a restrictive effect on competition, as they undermine online shopping and cross-border sales. The anti-competitive effect comes forth out of the conduct by online sellers who impose barriers and restrictions, such as different prices and conditions, onto consumers based on their nationality or place of residence, discriminating by location. In some circumstances, it could be justified not to sell cross border; more specifically, when it would entail higher shipping costs or costs arising from the application of foreign consumer law. Unjustified geo-blocking consists in the fact that traders discriminate between the EU customers and, therefore, artificially segment the market, in order to increase profits to the disadvantage of specific customers; it may also consist in blocking the access to websites across borders or denying the possibility to complete an order, to purchase goods or to download content when accessing a website from abroad. The recent Geo-blocking Regulation, which now forbids unjustified geo- -blocking, provides for three per se violations226. There can be no discrimination concerning the sale of goods without physical delivery, the sale of electronically 223 T-219/99, British Airways plc v Commission, Judgment of 17 December 2003, ECLI:EU:T:2003:343. 224 Pinar Akman, A competition law assessment of platform most-favoured-customer clauses, supra note 184, p. 788. 225 EC Press Release of 4.05.2017, Antitrust: Commission accepts commitments from Amazon on e-books, available at: https://ec.europa.eu/rapid/press-release_IP-17-1223_en.pdf. 226 Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC (Text with EEA relevance), OJ L 60I, 02.03.2018, pp. 1-15.
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