On January 21st 2016, the European Court of Justice (the Court) issued an important judgment on the use of presumptions to establish antitrust infringements by users of online platforms. It also established the steps those users must take to distance themselves from the illegal conduct to escape liability. The case arose from questions raised by the Supreme Administrative Court of Lithuania (the referring court) in appeals against a decision of the Competition Council of the Republic of Lithuania (the Competition Council) fining Eturas UAB (Eturas), the administrator of an online travel booking system, and its travel agency customers for illegal concerted practices after Eturas imposed a cap on discounts for online bookings. Eturas notified travel agencies of the change by email before implementing the change, but some travel agencies claimed that they did not agree to the change or were even unaware of it. The case raised important issues regarding when users of a third-party online platform can be found liable for illegal concerted practices without any direct contact or any indication that they agree with or are even aware of the illegal conduct.
Presumption of awareness
Some applicants claimed that they did not even receive or read Eturas’ message, since the system represented only a very small part of their turnover, and that they did not pay attention to the modifications made to that system. The referring court asked the Court whether travel operators who received a message informing them that discounts on products sold through a common booking system would henceforth be capped could be presumed to have been aware of that message.
The Court noted that the presumption of innocence precludes authorities from inferring from the mere dispatch of the message that the travel agencies concerned ought to have been aware of the content of that message, but did not preclude the authority from applying a presumption that the travel agencies concerned were aware of the content of the message, provided that those agencies still have the opportunity to rebut it, for example by proving that they did not receive that message or that they did not look at the section in question or did not look at it until some time had passed since that dispatch.
Presumption of participation
Similarly, the applicants contended that they did not engage in a concerted practice, arguing that they cannot be held liable for unilateral actions of Eturas. The referring court asked whether travel agencies could be presumed to have participated in an illegal concerted practice absent any opposition on their part. The Court held that the authorities could presume that the agencies participated in an illegal concerted practice, again provided they had the possibility to rebut the presumption.
The Court noted two ways to rebut the presumption: (i) distancing themselves from the illegal conduct by notice to the platform operator or informing the competition authorities or (ii) showing that they systematically acted inconsistently with the alleged concerted practice. The Court noted that a travel agency cannot be required to distance itself from illegal conduct by notice to all competitors receiving the message, since no agency would be in a position to know who those addressees were.
Observations
The Eturas judgment establishes parameters for authorities seeking to prove illegal concerted practices in an online context. The Court upheld authorities’ use of presumptions, provided that defendants have an opportunity to rebut both the presumption that they were aware of the illegal conduct and that they acquiesced in such conduct. The judgment is likely to help antitrust authorities establish illegal concerted practices among users of online platforms absent direct meetings or communications.
In practice, the Court’s judgment creates an incentive, if not a duty, for commercial users of online platforms to exercise a level of care and judgment regarding the ways in which the platform is being used and to take affirmative action to distance themselves from any illegal conduct. The Court’s judgment also reinforces its recent judgment in AC Treuhand upholding the EU antitrust liability of facilitators, such as Eturas, who are not directly active on the relevant a market.
