Brussels, 18/12/2012 (Agence Europe) - On 13 December, the European Court of Justice ruled that a national competition authority can apply European competition rules to an agreement between companies which is likely to affect trade between the member states, even if the 10% market share threshold set out by the “de minimis” Commission communication is not exceeded, as long as the agreement in question does not significantly restrict competition under the terms of Union law.
The European Court of Justice provided its response to points raised (C-226//11) by the French Court of Cassation at which the US company Expedia had to appear. The French competition authority (ANC, France) had ruled against it for having reached an agreement with the SNCF (Société nationale des chemins de fer français) which national and European law deemed anticompetitive. This created a joint subsidiary (GL Expédia, which subsequently became the Agence VSC) for managing an online travel website. The ANC considered that Expedia and SNCF were competitors on the online travel and leisure services market where they controlled more than 10% of market share. Consequently, there was no reason to apply the so-called “de minimis” rule to the agreement (which sets out market share 10%, below which an agreement between companies is considered as not significantly restricting competition in the internal market). The French jurisdiction explained that after a number of observations made, it transpired that the SNCF-Expedia agreement contained an anti-competitive objective and it called on the European Court to examine whether the national authorities, applying Union law, can consider competition as being significantly restricted even if the 10% threshold is not being exceeded and even though it had not been established that the Commission would pursue such an agreement in this connection.
The Court replied in the affirmative (see above). It points out that the national legal authorities are obliged to apply national and European law at the same time in the event of there being an agreement between companies that is likely to affect trade between member states. An agreement that is likely to affect trade between member states, however, cannot be banned under national law, unless it significantly restricts competition in the internal market. In this regard, market share is only one of a number of quantitative and qualitative indicators that help determine whether an agreement leads to a “significant” restriction or not. In addition to the market share obtained by the companies involved, it is also necessary to take into account the entire economic and legal context in which the agreement is reached. The “de minimis” communication is not binding either and only provides indications. The national competition authorities are not obliged to keep to the thresholds defined within it. Also, through established case law, taking into consideration the practical effects of an agreement is superfluous as soon as it becomes apparent that it intends to restrict, prevent or distort competition. Consequently, an agreement that is likely to affect trade between member states and which contains an anti-competitive objective by its very nature, irrespective of all its practical effects, constitutes a significant restriction of competition. (FG/transl.fl)