96 COMPETITION LAW IN TOURISM dominant position21. In this respect, the former (concerted practices, prohibited agreements, etc.) usually pertain to price fixing, elimination of competitors from the market (market foreclosure), limitation of production or services and other agreements restraining competition in the relevant market22. The latter (abuse of dominant position) refers to many forms of exploitation of excessive market power by dominant (by definition, having at least 40% of the market share), such as predatory pricing, pushing out competitors from the market and other practices resulting in distortion of competition. The infringement of antitrust law usually carries out sanctions imposed by competition authorities on the actions violating antitrust law, including severe administrative fines23. In some countries, in particular in the US, from the outset of the antitrust law as well as in some other countries, the antitrust law sets forth the criminal responsibility of people involved in the infringement (primarily managers)24. This means that the violation of antitrust law can bring about far-reaching and severe sanctions imposed by public law and pursued by public administrative bodies, mainly competition authorities. With this inmind, we can safely assume that at least some of the anticompetitive practices prohibited by antitrust law and sought by competition authorities can occur in the tourism industry. Price fixing, considerable elimination of competitors as well as unlawful exploitation of excessive market power by tour or hospitality operators that have dominant market positions are not uncommon in this sector of the economy. As mentioned above, the main fields of potential and factual collisions with antitrust law relate to consolidations in transportation, 21 See e.g. Article 101 and 102 of TFUE, Section 1 of the Sherman Act or Articles 6 and 9 of Polish Act of 16 February 2007 on competition and consumer protection (Journal of Laws of 2015, item 1634, see at: https:// www.uokik.gov.pl/competition_protection.php). 22 For more see e.g. D.-E. Kahn, Ch.-K. P. Suh, (in:) European Union Treaties, R. Geiger, D.-E. Khan, M. Kotzur (eds.), C.H.Beck 2015, pp. 489 et seq. 23 In the EU and its member states maximum fine usually amounts to 10% of the perpetrator’s turnover for the preceding business year. See e.g. Article 23 clause 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, pp. 125 (https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32003R00010). 24 See e.g. $1 million fine for an individual along with up to 10 years of prison according to Sherman Act (https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws) and Joseph, C. Gallo, Kenneth G. Dau-Schmidt, Joseph L. Craycraft, Charles J. Parker, Criminal Penalties under the Sherman Act: A Study of Law and Economics, Research in Law and Economics, Vol. 16, pp. 25-71. See also e.g. Ireland, as one of the first countries outside the US that introduced criminal liability for breach of competition law (see Patrick Massey, Criminalising Competition Law Offences: A Review of Irish Experience, New Journal of European Criminal Law, 2012, Volume: 3 issue: 2, pp. 154-174 and the UK and its 5 years in prison for involvement in anti-competitive activity (https://www.gov.uk/cartels-price-fixing). For more about criminalisation of competition law and criminal sanctions therein see also P. Whelan, Competition Law and Criminal Justice …
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