Brussels, 07/09/2012 (Agence Europe) - National competition authorities and courts may consider as anti-competitive and may therefore take to court and sanction corporate agreements, even if said agreements are below the minimum market shares set out in the European Commission in its communication on agreements among companies that do not restrict competition to any significant extent in the sense of Article 81, paragraph 1 of the EU treaty. Courts and competition authorities do, however, have to demonstrate that the agreement in question has the aim or effect of restricting the free exercise of competition to a significant extent, however, says Advocate-General Juliane Kokott in a Thursday 6 September 2012 ruling on Case C-226/11.
In the case, the Court of Justice was asked by the French appeals court about a case before it which challenges a decision by the French competition authority that under a joint subsidiary agreement signed with the French railways, SNCF, US online ticket-sales company Expedia had been given special access to the SNCF's website, voyages-sncf.com, to the detriment of other travel agencies. Expedia challenged the decision and the fines imposed on the grounds that national competition authorities are bound by the EU minimum market share rules even if an agreement is anti-competitive.
In her analysis, Kokott said that companies signing an agreement to reduce competition are deliberately trying to restrict competition to a significant extent, irrespective of their market share or turnover. She said the Commission's communication in question was not binding and did not prevent national competition authorities from launching legal proceedings against corporate agreements of this nature, even if they were below the minimum market share set out in the communication, namely 10%, because the minimum market shares are no more than quantitative and qualitative indications for determining whether or not an agreement restricts competition to a significant extent. To this end, alongside a company's market share, the competition authorities must also examine the economic and legal context in which the agreement was signed and have to be able to take effective action to deal with specific competition problems an agreement may raise, explained Kokott. (FG/transl.fl)