COMPETITION LAW: ONLINE TRAVEL AGENTS AND AIRLINES prominent cases of abuse of dominant position culminated in the 2004 Microsoft Decision, Case COMP/C-3/37.792. The Commission found that Microsoft had abused its dominant position in PC operating systems by withholding critical interoperability information from its competitors, meaning that providers of rival operating systems were unable to compete effectively. A dominant position is ‘a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers’11. Dominant positions are assessed in relation to the internal market as a whole, or at least a substantial part of it. How much of the market is taken into account will depend on the nature of the product, the availability of alternative products, and consumers’ behaviour and readiness to switch to alternative products. The Commission is currently preparing a comprehensive review of its approach to defining the concept of relevant market. A dominant position is not in itself an infringement of EU competition law, and the holders of such positions are allowed to compete on merit, like any other company. However, a position of dominance confers on undertaking a special responsibility to ensure that its conduct does not distort competition. This means that the same conduct, if engaged in by a non-dominant firm, would not necessarily be illegal. Examples of behaviour that would amount to abuse of dominant position include setting prices at below cost level (predation), charging excessive prices, tying and bundling, and refusal to deal with certain counterparts. Article 102 TFEU itself provides a non-exhaustive list of examples of abusive practice. 10. COMMENT The ongoing battle between Ryanair and online travel agents is an interesting one for all concerned with the travel industry. It is not too much to say that it may be existential as far as some smaller agents are concerned; and herein lies the difficulty for Ryanair. Although the airline is trying to position itself as a victim of agents’ attempts to steal its business and, in doing so, provide its customers 11 United Brands Company and United Brands Continentaal BV v Commission of the European Communities, Case C -27/76.
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