In the Eturas case (C-74/14), the Court of Justice clarified the conditions under which platform administrators and participants can be considered as participating to a prohibited concerted practice in the sense of article 101(1) TFEU.
This judgement was issued upon a request for a preliminary ruling made by the Supreme Administrative Court of Lithuania in the context of the appeal lodged against the decision of the national competition authority regarding the administrators and the participants in an online platform.
E-TURAS, the platform at issue, enables travel agencies that acquired an operating licence for its use to offer travel bookings for sale on their websites through a uniform presentation method. The administrator of the platform (Eturas) sent an email questioning the travel agencies on the appropriateness of reducing the online discount rate. Thereupon, it sent a notice through the internal messaging system of the platform announcing that the discount for online travel bookings would be limited between 0% and 3% and technically put into place this limitation. Although a number of travel agencies submitted that they did not receive or read the notice sent by Eturas, the national competition authority found that Eturas and the travel agencies had taken part in concerted practices infringing article 101(1) TFEU.
In its judgment, the Court of Justice clarifies under which circumstances the mere dispatch of the notice and the technical restriction can be held as evidence of the fact that the travel agencies were aware, or ought to have been aware of the notice and that, as they failed to oppose, they may be held liable for engaging in concerted practices. The Court also identifies under which conditions the travel agencies can rebut the presumption of participation to a concerted practice in the present case.
The Court of Justice’s judgement is an important reminder that the administration and the participation to online platforms are not without risk from a competition law perspective and require a proactive and diligent approach.
Pierre de Bandt and Julie Probst commented this judgement in the forthcoming issue of CoRe, the European Competition and Regulatory Law Review (2017/1).