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The Court of Justice of the European Union has delivered its preliminary ruling requested by the Supreme Administrative Court of Lithuania in a case where a dispute arose between the Competition Council of the Republic of Lithuania (hereafter – the Competition Council) and the applicants (an administrator of an information system E-TURAS and several travel agencies that were using this IT system) concerning a decision by which the Competition Council ordered those travel agencies to pay fines for having entered into and participated in anticompetitive practices.

E-TURAS is an online booking system, which processes and presents computerized information about vacation tours and related services provided by tour operators. In the disputed decision the Competition Council found that by using the E-TURAS booking system at the time when discount rates applied for travel packages sold on this system were limited to 3% and by not expressing any objection, the travel agencies could reasonably assume that all the other travel agencies using this system will also apply not greater than 3% discount rates for travel packages. The Competition Council considered that E-TURAS booking system served the travel agencies as a tool for coordinating their actions and eliminated the need for meetings, as the system functioned under uniform conditions for all the travel agencies and enabled them to reach a concurrence of wills on a discounts cap without the need for direct contacts.

The travel agencies in this case contend that they did not express their will to reduce the discount rates and that the discount rate reduction was a unilateral action of the system administrator. According to the applicants, they did not engage in a concerted practice and thus they did not infringe neither Article 101(1) TFEU nor the national Competition Law.

The Supreme Administrative Court of Lithuania sought clarification as to the correct interpretation of Article 101(1) TFEU and, in particular, as to the allocation of the burden of proof for the purposes of applying that provision.

The Court of Justice of the European Union has decided that Article 101(1) TFEU must be interpreted as meaning that, where the administrator of an information system, intended to enable travel agencies to sell travel packages on their websites using a uniform booking method, sends to those economic operators, via a personal electronic mailbox, a message informing them that the discounts on products sold through that system will henceforth be capped and, following the dissemination of that message, the system in question undergoes the technical modifications necessary to implement that measure, those economic operators may — if they were aware of that message — be presumed to have participated in a concerted practice within the meaning of that provision, unless they publicly distanced themselves from that practice, reported it to the administrative authorities or adduce other evidence to rebut that presumption, such as evidence of the systematic application of a discount exceeding the cap in question.

The Court of Justice of the European Union also came to conclusion that it is for the referring court to examine — on the basis of the national rules governing the assessment of evidence and the standard of proof — whether, in view of all the circumstances before it, the dispatch of a message, such as that at issue in the main proceedings, may constitute sufficient evidence to establish that the addressees of that message were aware of its content. The presumption of innocence precludes the referring court from considering that the mere dispatch of that message constitutes sufficient evidence to establish that its addressees ought to have been aware of its content.

Full text of the CJEU judgment in case C‑74/14 ("Eturas" UAB and Others v Lietuvos Respublikos konkurencijos taryba), can be found here.

For more information see the website of the Supreme Administrative Court of Lithuania www.lvat.lt Please indicate the source when using this content.