64 COMPETITION LAW IN TOURISM supplied services and the sale of services provided in a specific physical location. These new developments will be pertinent to online travel service providers, OTAs and MSSs alike. 6.2. Non-pricing abuses 6.2.1. REFUSAL TO SUPPLY In an offline world, one of the major concerns is that dominant undertakings may be able and incentivised to force independent competitors out of the market. For instance, independent tour operators may be forced out of the market by refusing to sell services to them, and such a refusal to supply by a dominant undertaking is a form of exclusionary abuse. Arguably, independent tour operators would not enjoy countervailing buyer power against the market position of dominant players. Refusal to supply may also occur in the digital world. The conduct may take an indirect form by making supply conditional; an OTA could demand a hotel to introduce a MFN clause in the contract in exchange of being part of its network227. Dominant digital platforms may, for example, refuse data access to other firms, through interoperability restrictions or other means. Whether this practice leads to anticompetitive foreclosure, and hence, whether it should be considered as an infringement of Article 102 TFEU, is subject to debate228. 6.2.2. PREDATORY INNOVATION Another theory of harm that could be used against digital platforms is predatory innovation, whereby the dominant player changes some technical elements of a product or service in question, so as to limit or eliminate competition. It is argued that in the case the latter degrades interoperability for actually or potentially competitors, affecting their competitiveness on the market, innovation is stifled and consumers suffer detriment229. So far, there has been no actual enforcement in this direction. 227 M. Colangelo, Parity Clauses and Competition Law in Digital Marketplaces, supra note 53, p. 6. 228 Crémer Report, supra note 71, p. 91. 229 Damien Geradin, What should EU competition policy do to address the concerns raised by the Digital Platforms’ market power? (2018) available at: https://ec.europa.eu/competition/information/digitisation_2018/contributions/ damien_geradin.pdf, p. 7.
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