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    2007/781/EC: Commission Decision of 21 August 2007 declaring a concentration comp... (32007D0781)
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    EU - Rechtsakte: 08 Competition policy
    (64) A number of respondents to the market investigation pointed to the existence of so-called ‘Most Favoured Nation’ (MFN) clauses in their agreements with GDSs. The use of these clauses might increase price transparency. It was confirmed however by the market investigation, that in most cases the MFN clauses relate to the obligation on the TSPs to provide the GDS content parity, and are therefore merely a reflection of the obligations laid down in the Code of Conduct.
    (65) Considering the characteristics of the relevant markets, and in particular, the limited degree of transparency, the Commission considers in the Decision that it would be difficult for the three remaining GDSs to effectively monitor deviations from the coordinated behaviour.

    Deterrent mechanisms

    (66) Coordination is not sustainable unless the consequences of deviation are sufficiently severe to convince coordinating companies that it is in their best interest to adhere to the terms of the coordination.
    (67) Immediate retaliation through the reduction by the coordinating GDSs of the fees charged to TSPs would be ineffective to retaliate against the deviating GDS, since it would not provoke switching behaviour by TSPs, considering that they need the services of all four GDSs.
    (68) A more realistic retaliatory measure would be for a GDS to offer certain important TAs who use the services of the deviating GDS higher incentives or direct lump sum payments in order to provoke a switch from the deviating GDS to a different GDS. Although such measures would be possible, it would be a costly strategy as the incentive payments offered to the TAs has to be sufficiently large to provoke TAs to switch of GDSs.
    (69) The Commission therefore concludes in the Decision that retaliation by means of increased incentive payments to TAs cannot be excluded by itself.

    Reactions of outsiders

    (70) For coordination to be successful, the actions of non-coordinating companies and potential competitors, as well as customers, should not be able to jeopardise the outcome expected from the coordination.
    (71) In the present case there would seem to be significant competitive constraints present on the market which would destabilise any attempt at coordination. These constraints would in particular stem from the possibility of TSPs to withhold content and make this content only available via a direct distribution channel such as ‘supplier.com’. In addition, coordination leading to price increases could provoke TSPs in the EEA to invest more in the development of alternatives to GDSs such as GNE's and direct links.
    (72) Considering the circumstances described above and the fact that the criteria that have to be fulfilled in order to show coordinated effects are cumulative, the merger is unlikely to result in coordinated effects on the EU market for the supply of GDS services to TSPs.

    II.3.5.2.   

    Downstream

    Reaching terms of coordination

    (73) The issue of coordination could in principle also arise on the downstream market which covers the relationship between GDSs and TAs. The downstream markets in the EEA are characterised by significant differences in market shares between the four GDSs on a country by country basis.
    (74) Competition between GDSs on the downstream market is strong and does not show signs of coordinated behaviour. During the last […] years Galileo and Worldspan have lost […] market shares to Amadeus. Moreover, the market investigation confirms that competition between GDSs for contracts with TAs is currently intense, a fact which is reflected by the increase of the incentive payments by GDSs to TAs over the last five years.
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