92 COMPETITION LAW IN TOURISM and lower costs borne by public institutions are the ones most often emphasised by its proponents4. In the European Union (EU) Articles 101-109 of the Treaty on the Functioning of the European Union (TFUE) and their relevant predecessors (i.e. Article 81-89 of the Treaty Establishing the European Communities) aim at protecting the system from distorted competition within the internal market5. Unlike in the US, in the EU competition law enforcement is primarily based on public enforcement carried out by competition authorities. Nevertheless, even though public enforcement was the primer, damages claims based on the infringement of the abovementioned rules protecting competition in the EU single market, as well as in the member states’ markets, were theoretically admissible from the very beginning6. However, in practice, apart from some isolated cases, the private enforcement of competition law almost did not exist. On the contrary, all efforts have been made to favour public enforcement, as pursued by national competition authorities (NCAs) and the European Commission (EC). Therefore, finding examples of antitrust damages claims based directly on the infringement of competition law in member states was a nearly impossible task, not to mention the tourism industry-related cases. In the wake of the transposition of the Damages Directive7 (Directive), which has already been implemented in all the member states8, the state of play indicated above started changing gradually. The transposition of the Directive triggered an increase in the popularity of antitrust damages claims in the EU member states. As a result, the number of damaged parties seeking 4 See interesting discussion of antitrust private enforcement and its primary goals e.g. in Robert H. Lande, Why Antitrust Damage Levels Should Be Raised, Loyola Consumer Law Review, Vol. 16, No. 4, 2004; Robert H. Lande, Five Myths About Antitrust Damages, University of San Francisco Law Review, Vol. 40, 2006; N. Dunne, The Role of Private Enforcement within EU Competition Law, King’s College London Dickson Poon School of Law, Legal Studies Research Paper Series, Paper No. 36/2014, June 2014 (electronic copy: ssrn.com/abstract=2457838) and R.H. Lande, J.P. Davis, Benefits from Private Antitrust Enforcement: An Analysis of Forty Cases, University of San Francisco Law Research Paper, No. 2010-07. 5 D.-E. Kahn, Ch.-K. P. Suh, (in:) European Union Treaties, R. Geiger, D.-E. Khan, M. Kotzur (eds.), C.H.Beck 2015, p. 489. 6 See also D. Wolski, The Type of Liability in Private Enforcement in Selected CEE Countries Relating to the Implementation of the Damages Directive, Yearbook of Antitrust and Regulatory Studies (YARS), vol. 10(15), pp. 69-84, 2017, pp. 70-71. 7 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, OJ L 349, 5.12.2014, pp. 1–19 (https://eur-lex.europa.eu/legal- -content/EN/TXT/?uri=CELEX:32014L0104). 8 See information accessible at: http://ec.europa.eu/competition/antitrust/actionsdamages/directive_en.html.
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