1.2. Dominance and abusive practices Equally important in this context is the prohibition of abuse of dominant position provided for in article 102 TFEU and 11 CA, depending on the “threshold of significance” concerning its application. More precisely, the former is applicable “in so far as it may affect trade between Member States”. Dominance is usually “measured” by the ability of an undertaking to act without significant constraint, or to influence prices to exclude competition, or to profitably maintain prices above the cost of supply in the long run32. As for the abuse of dominance, this is a unilateral conduct using dominant market power (or a dominant position) to damage market competition and ultimately welfare. The distinction between acceptable conduct and conduct which will breach the dominance provisions is often difficult to draw33. Recent examples with relevance to the tourism sector include the following: In 17.10.2022, the Spanish Competition Authority (CNMC) opened a formal antitrust proceeding against Booking.com for possible anticompetitive practices affecting hotels and online travel agencies. According to the press release, “The conduct under investigation may entail unfair trading conditions to hotels located in Spain. The investigation also covers practices that may exploit a situation of economic dependence for these hotels. Moreover, the practices may affect the provision of intermediation services to hotels by online travel agencies”34. In 28.04.2023 the Commission has opened a formal investigation to assess whether Renfe (the Spanish state-owned rail incumbent operator) may have abused its dominant position in the Spanish passenger rail transport market by refusing to supply all its content and real-time data to rival ticketing platforms with: (i) full content concerning its range of tickets, discounts and features; and (ii) real time data (pre-journey, on-journey or post-journey) related to its passenger rail transport services35. Still concerning the prohibition of abusive conducts by dominant undertakings, it is interesting to highlight that Article 11 CA not only sets forth a list of conducts equivalent to the ones provided in article 102 TFEU – 32 See Deborah Healey, Abuse of dominance, Global Dictionary of Competition Law, Concurrences, Art. N° 20101. For useful guidance on the notion of dominance, see paragraphs 9 and following of the Guidance on priorities concerning 102 TFEU, mentioned above in note 18, as well as the CJEU’s abundant jurisprudence. 33 See note 32 above. 34 Press release available at https://www.cnmc.es/sites/default/files/editor_contenidos/Notas%20de%20 prensa/2022/20221017_NP_Incoaci on_BookingEs_ENG.pdf 35 Press release available at https://ec.europa.eu/commission/presscorner/detail/en/ip_23_2448 135 THE SWEET&SOUR TASTE OF TOURISM AND COMPETITION LAW INTERACTION
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