Liability for administrator communication

Undertakings operating on a shared online booking system may be held liable for participating in an illegal concerted practice solely because they were aware of a centralized notification suggesting the adoption of capped discounts. While the question whether the mere dispatch of such a notification is sufficient evidence of the awareness of the content of the notification is governed by national law, the Court of Justice (the ‘Court’) confirmed that public distancing, reporting to the competent authorities or other relevant exculpatory evidence such as a systematic non-application can be sufficient to rebut a national presumption.

The Court ruled in a preliminary ruling with regard to travel agencies using a common computerised information system for online booking integrated into their individual websites and exclusively administered by E-Turas. This service provider sent a notification to the participating travel agencies suggesting that all online discounts should be capped at 3% and implemented a technical restriction. The Court had been asked whether in this context it may be presumed that those travel agencies had been aware or ought to have been aware of the system notification introduced into the computerised information system and whether, by failing to oppose its application, they had provided their tacit approval in breach of Article 101 (1) TFEU.

The Court ruled regarding the question whether or not the dispatch of a notification constitutes sufficient evidence of awareness is subject to national law. In general, Article 2 of the Regulation 1/2003 confirms that the regulation does not affect national rules on the standard of proof allowing largely different outcomes depending on the national jurisdiction in question.

However, settled case-law also limits procedural autonomy by the principle of equivalence and that of effectiveness. Hence, the existence of a concerted practice may be inferred from a number of coincidences and indicia, which considered together, may constitute evidence of an infringement of competition rules.

The Court held that ‘the presumption of innocence precludes national courts from considering that the mere dispatch of that message constitutes sufficient evidence to establish that its addresses ought to have been aware of its content’; nevertheless, national courts may indeed ‘in the light of other objective and consistent indicia’ presume that travel agencies have been aware of the content of that notification provided that ‘they (i.e. the agencies) still have the opportunity to rebut it’. National rules shall not require that undertakings ‘take excessive or unrealistic steps in order to rebut that presumption’.

 
The Court found that if a travel agency has been evidently aware of the content of the notification, it may be presumed that it has participated in a collusion. This statement echoes the opinion of Advocate General Szpunar who had argued last July that those who received the notification had ‘tacitly subscribed to the illicit initiative’. The presumption of participation, as described, may still, though, be rebutted by the undertakings by adducing evidence that they have ‘publically distanced’ themselves from that concerted practice or ‘reported it to the administrative authorities’. However, these ‘are not the only means of rebutting the presumption that a company has participated in an infringement; other evidence may also be adduced’, including the systematic application of a discount exceeding the cap in question.

 
The Court further cited that ‘a clear and express objection sent to the administrator of the E-Turas system is capable of rebutting that presumption’’. In cases where an undertaking such as the travel agencies in question are not in fact in a position to know who the addresses of the notification are, they are thus not required to inform each and every of its potentially participating competitors.

Unlike Advocate General Szpunar the Court does not make any reference -even marginally- to the role of E-Turas, the system administrator, as a cartel facilitator. Indeed, the request addressed to the Court did not entail such a question; however, following the relevant reference of the Advocate General, one might have expected that the Court would have been tempted to tackle this issue -even indirectly.. Therefore, the ruling in AC Treuhand v Commission (C-194/14 P) remains unaffected Invoking the a maiore ad minus argument, E-Turas, a contractual partner of all travel agencies concerned and also an undertaking active on the market of licensing of online booking systems, could be treated as a collusion facilitator in a similar case brought before the European Commission and/or the EU Courts.

Companies active on shared online platforms shall pay high attention to the notifications delivered by the platform administrator(s). In case that a notification may raise any -even the slightest- preliminary antitrust concern, companies should seek additional guidance.