MARITIME ALLIANCES AND EU COMPETITION LAW

98 MARITIME ALLIANCES AND EU COMPETITION LAW situation anticipated by the Commission, whether the hundreds of small operators already present on the market, taken as a whole, can respond effectively to a reduc- tion in capacity by the large tour operators to a level below estimated demand by increasing their capacity to take advantage of the opportunities inherent in a situ- ation of overall under-supply; and, whether they can thereby counteract the crea- tion of a collective dominant position. 97 The Court found that regardless the size of each of the competitors, the fact that the competitors are numerous signifies that there is actual and effective competition. Although the relevant market definition between short and long-haul was accurate, the CFI annulled the Commission’s decision, concluding, after close and exacting scrutiny, that they were tainted by manifest error on the following grounds: i. the finding that major operators had an incentive to stop competing with one another was incorrect; ii. that a dominant oligopoly would ensue was incorrect; and iii. the Commission underestimated the foreseeable collective action of small- er operators. We use the AIRTOURS case as a model, as we would like to diverge for a moment from the traditional perspective where a confirmed abuse is a self-standing reason that distorts competition. Small operators, potential competitors and consumers can all counterbalance an oligopoly and their reactions are usually underestimated in study. We accordingly argue that, in shipping, both abuse and market power must exist in order to cause distortion of competition and damage to the consumers. While in AIRTOURS , 98 the Commission had to establish that smaller tour operators would be incapable of successfully countering the creation of a collective domi- nant position, in practice, the ECJ appreciated that the market in question featured several small operators which could increase their market share, suggesting they were “ extremely keen to make the most of any opportunities afforded as a result of the leading tour operators making capacity reductions unconnected with foreseeable trends in demand ”. 99 Competition from independents is the most important “limitation” to the devel- opment of market power that consortia face, 100 and the most necessary for the fulfilment of the fourth condition to the exemption in Article 101(3). The market 97.  AIRTOURS op. cit. n. 10 paras 213-214. 98. ibid. para 208. 99. ibid. para 220. 100. Blanco op. cit. n. 14 p. 463.