OPINION OF ADVOCATE GENERAL
delivered on 16 July 2015 (1)
‘AAA Wrislit’ UAB
‘Baltic Clipper’ UAB
‘Guliverio kelionės’ UAB
‘Baltic Tours Vilnius’ UAB
‘Kelionių laikas’ UAB
‘Kelionių akademija’ UAB
‘Travelonline Baltics’ UAB
‘Kelionių gurmanai’ UAB
‘Zigzag Travel’ UAB
‘ZIP Travel’ UAB
Lietuvos Respublikos konkurencijos taryba
(Request for a preliminary ruling
from the Lietuvos vyriausiasis administracinis teismas (Lithuania))
(Competition — Article 101(1) TFEU — Constituent elements of a concerted practice — Travel agencies using a common computerised booking system — Restriction of the maximum discount rate available for online bookings — System administrator’s message announcing that restriction — Concertation — Causal link between concertation and market conduct — Burden of proof — Presumption of innocence)
I – Introduction
1. In an oft-quoted analysis of a ‘concerted practice’ under Article 101(1) TFEU Judge Vesterdorf, acting as Advocate General, wrote: ‘the problem can, I believe, be reduced to one question: when is an infringement of the law committed?’ (2)
2. The Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) raises a similar question against the background of a challenge to the validity of the decision adopted by the national competition authority, finding that a number of travel agencies coordinated the discount rate applicable to their clients.
3. The original feature of the case lies in the fact that the evidence of a concertation principally relates to the actions of a third party, the owner and administrator of the internet booking system used by the travel agencies concerned, who imposed a technical restriction on the discount rate and posted a message announcing that restriction. The referring court entertains doubts as to whether that evidence satisfies the standard of proof required in order to establish an infringement of Article 101(1) TFEU.
II – Factual background, procedure and questions referred
4. ‘Eturas’ UAB is the holder of exclusive rights to, and the administrator of, the online travel booking system E-TURAS (‘the E-TURAS system’).
5. This system is controlled by a single administrator and can be integrated into individual websites of the travel agencies which have acquired a licence from Eturas. The standard licensing contract of Eturas does not contain any provisions which would allow the administrator to alter the pricing of the services provided by the travel agencies using the system.
6. In 2010 the Lietuvos Respublikos konkurencijos taryba (the national competition authority in Lithuania, ‘the Competition Council’) launched an investigation on the basis of the information received from one of the users of the E-TURAS system, stating that the travel agencies distributing organised tours were coordinating among themselves the discounts which were offered to consumers purchasing tours online via the E-TURAS system.
7. This investigation established that some time prior to the alleged restriction, the director of Eturas sent an e-mail to several travel agencies asking them to vote on a reduction of discount rates from 4% to 1%–3%. While there is evidence in the case-file that one of the travel agencies concerned received this e-mail, no evidence exists as to whether other travel agencies received or responded to it.
8. On 27 August 2009, at 12.20, a technical restriction was set in the E-TURAS system, limiting to 3% the discounts available for online bookings.
9. This was preceded by the following system notice (‘the system notice of 27 August 2009’) which appeared, earlier on the same date, in the ‘Information Notices’ field of the E-TURAS system:
‘Following an appraisal of the statements, proposals and wishes … expressed by the travel agencies, we will enable online discounts in the range of 0% to 3%, to be chosen individually ... For travel agencies which offered discounts in excess of 3%, these will automatically be ... reduced to 3%. …’
10. The director of Eturas stated that such notice was sent to all travel agencies which used the system.
11. The possibility of offering additional discounts to individual clients (e.g. by offering a loyalty discount code) was not restricted.
12. The investigation further established that the majority of travel agencies which applied a discount rate above 3% before 27 August 2009 thereafter decreased the discount rate to 3%. Several travel agencies had however already offered a lower discount rate before 27 August 2009, and they continued to apply the same lower rate. Some travel agencies did not offer services via E-TURAS before 27 August 2009. Some other travel agencies concerned did not sell a single tour via E-TURAS over the period under investigation.
13. In its decision of 7 June 2012, the Competition Council found that 30 travel agencies as well as Eturas have participated, between 27 August 2009 and the end of March 2010, in an anticompetitive practice in respect to the discounts applicable to bookings via the E-TURAS system.
14. According to that decision, the infringement started on the date on which the notice concerning the reduction of discounts appeared on the E-TURAS system and the discounts’ rate was restricted by technical means. The travel agencies, as prudent economic operators, should have been aware of that restriction as from that date.
15. The Competition Council considered that the travel agencies which used the E-TURAS system during the relevant period, and which had expressed no objection, were liable for the infringement. Those agencies could reasonably assume that all other users of the system would also limit their discounts to a maximum of 3%. Therefore, they had informed each other of the discount rates which they intended to apply in the future and thus indirectly — by way of implied or tacit approval — expressed their common agreement with regard to conduct on the relevant market. It further noted that such conduct on the part of the travel agencies on the relevant market was to be treated as constituting a concerted practice. The Competition Council held that, although Eturas was not active on the relevant market, it played a role in facilitating the infringement.
16. The Competition Council therefore found that Eturas and the travel agencies concerned had infringed Article 101(1) TFEU, as well as Article 5 of the Lietuvos Respublikos konkurencijos įstatymas (Law on Competition of the Republic of Lithuania), and imposed fines on them. The travel agency which provided the Competition Council with the information about the infringement was granted immunity from the fine under the leniency programme.
17. The applicants in the main proceedings challenged the decision of the Competition Council before the Vilniaus apygardos administracinis teismas (Vilnius District Administrative Court). By judgment of 8 April 2013 that court upheld the actions in part and reduced the fines imposed.
18. Both the applicants in the main proceedings and the Competition Council lodged an appeal with the Lietuvos vyriausiasis administracinis teismas.
19. The applicants in the main proceedings contend that they did not engage in concerted practices within the meaning of Article 101(1) TFEU or national law. The travel agencies concerned claim that their intention to reduce discounts was not established, and that the technical restriction was a unilateral act of Eturas. Some applicants claim not to have read the system notice. Due to the system’s low importance — the income from tours sold via E-TURAS representing a fraction of their total revenue (e.g. 0.12%, 0.2% or 0.0025%) — the travel agencies did not monitor it closely. They explain that they used the system because of its convenience for online sales, the absence of any alternative systems on the market and the prohibitive cost of development of their own online systems. In principle, discounts were not restricted, since the travel agencies have maintained the possibility of applying additional loyalty discounts to individual clients.
20. The Competition Council contends that the E-TURAS system served the applicants as a tool for coordinating their actions and eliminated the need for meetings, as the conditions of use of the system enabled them to reach a ‘concurrence of wills’ on discount restrictions without the need for direct contacts. Failure to oppose the discount restrictions is equated to their tacit approval. The E-TURAS system functioned under uniform conditions, was easily recognisable on the websites of the travel agencies, which contained information on applicable discounts. The travel agencies did not object to the restriction imposed and, thus, made it clear to each other that they were applying limited discounts, thereby eliminating any uncertainty as to the discount rates. The applicants were obliged to be circumspect and responsible and could not ignore or disregard notices concerning the practices affecting their economic activities.
21. The Lietuvos vyriausiasis administracinis teismas entertains doubts 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.
22. The referring court indicates that this aspect is decisive in reviewing whether or not the Competition Council has established sufficient facts to conclude that there has been an infringement and to determine the moment from which the duration of the infringement should be calculated. It is apparent from the reasoning of the challenged decision that in establishing the infringement the Competition Council relied mainly on the system notice of 27 August 2009. Thus, in fact, the Competition Council applied the presumption that the travel agencies which received the notice knew, or should have known, about the restriction.
23. According to the referring court, on the one hand, it is possible to maintain that the applicants used the E-TURAS system together with their competitors and, therefore, were obliged to act with care and pay attention to the notifications sent via the system. Indeed, some of them admitted to having known about the discount restriction and having observed that restriction in practice. Having in mind the clandestine nature of anticompetitive practices, proof based on a system could perhaps, in the light of all the circumstances of the case, be considered as sufficient. On the other hand, infringements of competition law are subject to the presumption of innocence. In the present case, there is no evidence that the applicants have actually read the system notice and realised that it represented a concerted anticompetitive action implemented by all users of the system.
24. The referring court seeks therefore to establish whether the mere sending of a system notice concerning a discount restriction could, in the context of the circumstances of the present case, constitute sufficient evidence to confirm or to raise a presumption that the economic operators participating in the system knew or must have known about the discount restriction, even though some of them claim not to have had any knowledge of the restriction, and some did not change the actual discount rates or did not even sell any tours via the E-TURAS system during the relevant period.
25. In this context the Lietuvos vyriausiasis administracinis teismas, by order of 17 January 2014, received at the Court on 10 February 2014, has requested a preliminary ruling on the following questions:
‘(1) Should Article 101(1) TFEU be interpreted as meaning that, in a situation in which economic operators participate in a common computerised information system of the type described in this case and the Competition Council has proved that a system notice on the restriction of discounts and a technical restriction on discount rate entry were introduced into that system, it can be [presumed] that those economic operators were aware, or must have been aware, of the system notice introduced into the computerised information system and, by failing to oppose the application of such a discount restriction, expressed their tacit approval of the price discount restriction and for that reason may be held liable for engaging in concerted practices under Article 101(1) TFEU?
(2) If the first question is answered in the negative, what factors should be taken into account in the determination as to whether economic operators participating in a common computerised information system, in circumstances such as those in the main proceedings, have engaged in concerted practices within the meaning of Article 101(1) TFEU?’
26. Written observations in the present proceedings have been submitted by several applicants in the main proceedings, (3) the Lithuanian and Austrian Governments, as well as the Commission. Some of the applicants in the main proceedings, (4) the Competition Council, the Lithuanian Government and the Commission presented oral argument at the hearing held on 7 May 2015.
III – Analysis
A – Introduction
27. The present case affords the Court a rare occasion to interpret the concept of a concerted practice, separately from the related concepts of an agreement or a decision adopted by an association of undertakings. (5)
28. As a starting point, I will recall our Court’s case-law on concerted practices.
29. Article 101(1) TFEU provides that the following are to be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.
30. The definitions of ‘agreement’, ‘decisions by associations of undertakings’ and ‘concerted practice’ are intended, from a subjective point of view, to catch forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves. (6)
31. The Court has stated on several occasions that the concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them. (7)
32. With regard to the criterion of coordination, the Court has stated that the provisions of the Treaty relating to competition are based on the concept that each economic operator must determine independently the policy which he intends to adopt on the market. That requirement of independence precludes any direct or indirect contact between economic operators by which an undertaking influences the conduct on the market of its competitors or discloses to them its decisions or deliberations concerning its own conduct on the market, if as a result conditions of competition may apply which do not correspond to the normal conditions of the market in question. (8)
33. According to established case-law, a concerted practice implies, besides the undertakings’ concertation, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two. It is presumed that — subject to proof to the contrary, which it is for the economic operators concerned to adduce — the undertakings taking part in the concerted arrangements and who remain active on the market take account of the information exchanged with their competitors when determining their conduct on that market, particularly when they concert together on a regular basis over a long period (the ‘Anic presumption’). (9)
34. It may be inferred from the case-law that the ‘Anic presumption’ — that is the presumption of a causal connection between the concertation and the market conduct of the participating undertakings — can also apply in case of a single contact between competitors. (10)
35. As the Court stated in T-Mobile Netherlands and Others, the number, frequency, and form of meetings between competitors needed to concert their market conduct depend on both the subject-matter of that concerted action and the particular market conditions. If the undertakings concerned establish a cartel with a complex system of concerted actions in relation to a multiplicity of aspects of their market conduct, regular meetings over a long period may be necessary. If, on the other hand, the objective of the exercise is only to concert action on a selective basis in relation to a one-off alteration in market conduct with reference simply to one parameter of competition, a single meeting between competitors may constitute a sufficient basis on which to implement the anticompetitive object which the participating undertakings aim to achieve. (11)
36. Moreover, just as in the case of an anticompetitive agreement, there is no need to take account of the actual effects of a concerted practice once it appears that the infringement had as its object the prevention, restriction or distortion of competition. (12)
B – Interpretation of Article 101(1) TFEU
37. By two questions, which I propose to examine jointly, the referring court asks in essence whether Article 101(1) TFEU must be interpreted as meaning that the notion of a concerted practice covers the situation where several travel agencies participate in a common booking system and that system’s administrator posts a notice informing its users that the discounts applicable to clients will be restricted to a uniform maximum rate, this notice being followed by a technical restriction on the choice of a discount rate.
38. The referring court asks accordingly whether and, if so, under what circumstances the travel agencies who become aware of that illicit initiative and who continue to use the booking system may be held liable for the infringement of Article 101(1) TFEU.
39. According to established case-law, (13) a concerted practice comprises three constituent elements: first, concertation between undertakings, secondly, conduct on the market and, thirdly, a causal link between the two.
40. The present case primarily concerns the first of those elements –concertation between undertakings.
41. In fact, provided that the concertation is established, the remaining two elements — conduct on the market and the causal link — should not be difficult to establish on the basis of the facts of the present case. In accordance with the ‘Anic presumption’, the actual conduct on the market may be presumed with regard to those undertakings who participate in collusive practices and who remain active on the market. Moreover, in the present case, the conduct on the market may be inferred from the fact that the restriction of discount rate was implemented by technical means and therefore was automatically applied with respect to all travel agencies which continued to use the E-TURAS system.
42. I note that the questions referred by the national court do not concern the liability of Eturas itself as a cartel facilitator. The Court has yet to decide whether a third party which is not active on the relevant market, but serves merely as cartel secretariat, can be held liable for the infringement under Article 101(1) TFEU. This question was recently addressed in AC Treuhand v Commission by Advocate General Wahl who took view that Article 101(1) TFEU does not cover the responsibility of a pure consulting company which is not present on the relevant market or a related market. (14) I would limit myself to the observation that the present case is different from the latter scenario, since Eturas is a contractual partner of all travel agencies concerned, with which it has concluded licencing agreements, and it is also an undertaking active on the market of licencing of online booking systems, which is related to the market of travel agents.
43. In the following analysis I will examine the legal conditions for establishing concertation between undertakings and also consider several related issues: the alleged unilateral behaviour of a third party, the possibility for the undertaking concerned to distance itself from the infringement and the compatibility of the corresponding standard of proof with the principle of the presumption of innocence.
1. Concertation between undertakings
44. The Court has not yet had the opportunity to clarify the circumstances under which unilateral communication may result in a concerted practice between the addressees and the sender.
45. According to the settled case-law of the General Court, the concept of concerted practice does imply the existence of reciprocal contacts. That condition is met where one competitor discloses its future intentions or conduct on the market to another when the latter requests it or, at the very least, accepts it. (15)
46. In my opinion also, the concept of a concerted practice does imply reciprocity. A concerted action is necessarily the result of a consensus. (16) However, the level of formalisation of that consensus should not be subject to overly rigid requirements, since this would undermine the versatility inherent in the concept of a concerted practice.
47. In particular, reciprocity should equally encompass tacit approval.
48. However, the possibility of inferring tacit approval, and therefore of establishing the existence of a consensus to cooperate rather than compete, depends on the context of the communication.
49. First, where an undertaking receives information relating to an illicit initiative and does not oppose it, its acquiescence in that initiative may be inferred from the absence of response, provided that the circumstances are propitious to the formation of a tacit consensus. The lack of opposition to an illicit communication is reprehensible because, under certain circumstances, mere lack of reaction from the addressee will lead the other party or parties to believe that the addressee subscribes to the illicit initiative and will comply with it. (17) Therefore, in order to infer knowing participation of the addressee in a concerted practice, the context of interaction must be such that the addressee may be deemed to appreciate that the competitor will consider its silence as an approval and will rely on mutual action, even in the absence of response.
50. Secondly, where the sender of the information is not a competitor but rather a third party, such interaction may give rise to a horizontal collusion between competitors only if the addressee may be deemed to appreciate that the information transmitted by a third party comes from a competitor or at least is also communicated to a competitor.
51. Therefore, in order to establish the existence of concertation in the situation such as in the main proceedings which involves both an indirect communication via a third party and the absence of explicit response, the context of the interaction must be such that the addressee may be deemed to appreciate that the illicit initiative comes from a competitor or at least is also communicated to a competitor or competitors, who will rely on mutual action, even in the absence of response.
52. It is for the referring court to establish whether such legal analysis applies to the facts of the present case.
53. In particular, the referring court should first establish whether, taking into account the unusual method of communication, the undertakings concerned may be deemed to have acquainted themselves with the content of the system notice of 27 August 2009.
54. In this regard, the referring court asks if it may be presumed that the users of the E-TURAS system were aware of the system notice.
55. I observe that recourse to presumptions in competition law is justified where the inference is highly probable on the basis of common experience and provided that the presumption remains rebuttable. (18)
56. If the referring court finds that it is highly probable, taking into account the characteristics of the booking system and the duration of the infringement, that a reasonably attentive and prudent economic operator would have become aware of the system notice and of the related restriction, that court might also conclude that the high probability of that inference justifies the application of a rebuttable presumption that the travel agencies concerned became aware of the illicit initiative on 27 August 2009. It remains possible that a given undertaking did not immediately become aware of the system notice on 27 August 2009 or, in exceptional circumstances, that it did not become aware at all. In this case, however, the burden of rebuttal must lie with the undertaking concerned, which is in the best position to shed light on the matter.
57. However, the application of evidential presumptions by national authorities is a matter for national law, unless the presumption stems from Article 101(1) TFEU, as interpreted by the Court, and consequently forms an integral part of applicable EU law. (19) In my view, evidential presumptions related to the finding as to whether an undertaking may be deemed to have received and read a certain communication do not stem from the concept of a concerted practice as interpreted by the Court, nor are they intrinsically related to that concept, and therefore such presumptions are a matter for national law.
58. Further, the referring court must establish whether the undertakings may be deemed to appreciate that the information concerning a restriction on discount rates came from their competitors or at least was also communicated to their competitors, and that it was credible that those competitors would rely on mutual action, even in the absence of explicit approval.
59. In my view, the mode of communication in itself is not relevant, especially since the participants in collusion may be expected to avail themselves of the possibilities offered by the advance of technology. The form of communication may however be significant in assessing the context of interaction.
60. In this respect, I do not agree with the view of the Commission that the sending of a message via the information notices field of a computerised system may be fully treated as equivalent to other methods of communication in the business world, such as participation in a meeting or an exchange of e-mails. System administrator’s notices are not a usual channel for commercial communication. Moreover, undertakings using the same computerised system are not partners in a commercial dialogue: the link between them is clearly more tenuous than the link between the undertakings maintaining contacts via e-mail or conducting common meetings.
61. However, in the present case, the unusual nature of the method of communication appears to be counterbalanced by other circumstances.
62. The system notice of 27 August 2009 conveys a clear message which cannot be understood otherwise than as an initiative to engage in an illicit anticompetitive practice. It may be inferred both from the terms of that notice and the mode of communication that it is simultaneously addressed to all competitors using the E-TURAS system. The initiative was particularly credible since it came from a third party who, as a common contracting partner and system’s administrator of a common booking system, had links with all other users of the system, and also had technical means at its disposal to enforce the result of concertation. The use of those technical means by the system’s administrator is a very effective facilitating practice, which indirectly proves the existence of concertation.
63. Therefore, the undertakings who have become aware of the system notice, must have appreciated that — absent their expeditious reaction — the initiative would be automatically and immediately implemented with respect to all users of the system.
64. Moreover, the restriction of competition in question is clearly of a horizontal nature. The application of a uniform maximum discount rate by competitors requires their mutual reliance, and an undertaking would comply with such an initiative only on the condition that the same restriction applies horizontally to its competitors. By subscribing to that restriction the undertakings concerned are not acting like competitive market actors. Therefore, in my opinion, the applicants cannot draw a useful analogy from the Court’s case-law specific to vertical restrictions, according to which, where a manufacturer unilaterally imposes a measure restricting competition, a mere continuation of commercial relations does not amount to tacit acquiescence by the wholesalers to that measure. (20)
65. Further, contrary to what was suggested by the applicants at the hearing, the case before the referring court does not resemble the so-called hub and spoke collusion, which involves exchange of information between competitors via a common trading partner in vertical relations, such as exchanges between distributors via a common supplier. (21) Such indirect exchange calls for an additional consideration as to the state of mind of the parties involved, since disclosure of sensitive market information between a distributor and its supplier may be considered as a legitimate commercial practice. In contrast to such situations, the present case concerns a message which was conveyed simultaneously to all undertakings concerned by their common trading partner and which, given its content, could under no circumstances be considered as forming a part of legitimate commercial dialogue.
66. Since the alleged restriction related to a one-off alteration in market conduct with reference to one parameter of competition, in terms of the T-Mobile judgment, a single instance of interaction was plainly sufficient in order to achieve this aim. (22)
67. Under such circumstances — which are for the national court to establish — the undertaking who became aware of the system notice of 27 August 2009 and who continued to use the system, without publicly distancing itself from the illicit initiative or reporting it to the administrative authorities, must be considered as having subscribed to that initiative and therefore as having taken part in a concertation.
68. Moreover, since the concerted practice in issue constitutes an attempt to influence free formation of prices, it manifestly has as its object to restrict competition.
69. Accordingly, it is not relevant whether that action actually had anticompetitive effects on the market.
70. Thus, contrary to the argument of some applicants in the main proceedings, it is irrelevant whether the travel agency concerned had applied a higher discount rate before the restriction was imposed or, indeed, whether the agency concerned actually sold any holiday tours via the E-TURAS system after the restriction was imposed. It is also irrelevant that the travel agencies maintained the possibility of applying additional discounts to individual clients outside the E-TURAS system. For any undertaking which continued to offer its services on the market via the E-TURAS system during the relevant period, that restriction could potentially affect its conduct on the market, which is sufficient to establish its participation in the infringement.
71. I therefore consider that, in the circumstances as described in the order for reference, the undertakings using a common booking system who became aware of the illicit initiative, as announced in the system notice of 27 August 2009, and who continued to use the system must be held liable for participation in a concerted practice.
2. The alleged unilateral behaviour of a third party
72. Several applicants in the main case contend in their written pleadings that the alleged anticompetitive restriction is the result of a unilateral action by Eturas.
73. I admit that in the case of an illicit initiative communicated by a third party, which is also an undertaking active on a related market, one should not exclude the possibility of attributing the resulting restriction to unilateral behaviour of that third party. This could be the case, in my opinion, if both the illicit initiative itself and the related actions in its implementation could exclusively be attributed to that third party, which acted in its autonomous interest. (23)
74. In the present case, such a contention does not however seem to be supported by the facts described in the referring court’s order.
75. Although the preliminary question only refers to the technical restriction imposed by Eturas on 27 August 2009 and the related system notice, it is however clear from the order for reference that these actions have been preceded by preparatory contacts between Eturas and at least some of the undertakings concerned.
76. First, the system notice of 27 August 2009 explicitly refers, as the reason for Eturas’ action, to the ‘appraisal of the statements, proposals and wishes … expressed by the travel agencies’. Secondly, it appears from the order for reference that, before imposing the restriction on discount rates, Eturas sent an e-mail to several travel agencies asking them to vote on a general reduction of discount rates as well as on a specific desirable rate of discounts, although there is no evidence — except for one company — as to whether the travel agencies concerned received or responded to that e-mail. Third, the director of Eturas testified having conducted a survey on a basic discount for online bookings, although he modified that testimony at a later stage.
77. I observe that a very important factor in the cases involving secretive anticompetitive practices is the overall view of the evidence. The items of evidence on which the administrative authority relies in order to prove the existence of an infringement of Article 101(1) TFEU should never be considered in isolation but must be assessed as a whole. (24)
78. Therefore, even though the evidence of preparatory contacts between travel agencies and Eturas is fragmentary and some of it is in the form of indicia, it cannot be entirely omitted from the whole body of evidence relied on in order to establish the infringement.
79. Moreover, although at the hearing the applicants in the main proceedings proposed an alternative explanation for Eturas’ actions, namely, that Eturas acted in an attempt to maintain the system’s attraction for several large travel agencies, this explanation does not exclude the contention that the initiative came from the travel agencies themselves and Eturas acted merely as the cat’s-paw of the cartel members, as the evidence on the referring court’s file tends to indicate.
80. Even supposing that a common commercial partner who facilitated the cartel acted on its own initiative in an attempt to strengthen the loyalty of its clients, by seeking to ensure them greater profit through restriction of competition, this would not exclude the liability of the cartel members who tacitly approved that illicit initiative.
81. Thus, in the present case, even supposing that Eturas acted on its own initiative in order to ensure the loyalty of the travel agencies using the E-TURAS system, this would not exclude the finding of a concerted practice between those travel agencies, since — even under this alternative explanation — Eturas actions would have been motivated by the interests of its clients who tacitly approved the initiative.
3. Distancing oneself from the concerted practice
82. A related issue concerns the possibility for the undertakings concerned of distancing themselves from the infringement.
83. According to established case-law, it is sufficient for the administrative authority to show that the undertaking concerned participated in meetings at which anticompetitive agreements were concluded, without manifestly opposing them, to prove its participation in the cartel. It is then for that undertaking to put forward evidence to establish that its participation in those meetings was without any anticompetitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. (25)
84. The reason underlying that principle is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it. A party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and jeopardises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable. (26)
85. The fact that an undertaking does not act on the outcome of those meetings is not such as to relieve it of responsibility, unless it has publicly distanced itself from what was agreed in them. Moreover, the role played by an undertaking in an anticompetitive scheme is not relevant in establishing its liability, and must only be taken into consideration when the gravity of the infringement is assessed, when it comes to determining the fine. (27)
86. In my opinion, this case-law, although originally concerning unintended participation in a collusive meeting, can usefully be transposed to the circumstances of the present case.
87. Indeed, an undertaking using an online booking system which is exploited as a platform for an anticompetitive practice, may have effective recourse to the two possibilities resulting from the Court’s case-law in order to dissociate itself from that practice: it may publicly distance itself from the content of the illicit initiative or, otherwise, report it to the administrative authorities.
88. I note that it would be clearly unreasonable to require an undertaking to express its opposition to all participants in the concerted practice. In particular, given the circumstances of the present case, it is quite possible that the identities of the competitors concerned could not be discerned immediately. In fact, some applicants in the main proceedings claimed not to have been aware of the identities of other users of the E-TURAS system.
89. The opposition must however be made public in any manner reasonably available to the undertaking concerned, that is, at least, by informing the system’s administrator who announced the restriction and those other companies the identities of which might be known.
90. The undertaking concerned must state, with sufficient clarity, its disagreement with the initiative and its intention not to follow the practice. Thus, it is insufficient, for example, for the undertaking concerned to ignore the communication or to instruct its own employees not to conform to the practice. It would also be insufficient to oppose the practice by mere conduct on the market — for instance, as was suggested by some applicants in the present case, by giving individual discounts in order to counterbalance the general restriction. In fact, without public opposition, such conduct could not be easily distinguished from mere cheating on other cartel members.
91. On the other hand — and contrary to the view expressed by the Competition Council at the hearing — the requirement of opposing the restriction may not extend to the obligation to leave the online booking system.
92. I agree that the undertaking concerned should not only manifest its opposition, but must also adopt an independent conduct on the market. In the present case, public distancing includes the requirement to use all reasonable means in order not to apply the restriction, such as informing the clients through its website and, if those means are not effective, reporting to administrative authorities. This obligation cannot be stretched to the requirement to end commercial relations with Eturas, since this would cut the travel agency’s access to an otherwise legal distribution channel.
93. Finally, the opposition must be expressed expeditiously and in any case within a reasonable period of time after becoming aware of the illicit initiative. If it is not done within a reasonable time, the undertaking’s responsibility will arise as from the moment at which it had become — or is presumed to have become — aware of that initiative.
4. The standard of proof and the presumption of innocence
94. Given the doubts expressed by the referring court, I would like to make some concluding remarks as to the compatibility of the standard of proof required in order to establish a concerted practice with the principle of the presumption of innocence.
95. According to the settled case-law of the Court, the principle of the presumption of innocence, now laid down in Article 48(1) of the Charter of Fundamental Rights of the European Union, applies to the procedures relating to infringements of the competition rules applicable to undertakings. (28)
96. Within the system of public enforcement of EU competition law, it is incumbent on the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement of Article 101(1) TFEU. The Commission must produce precise and consistent evidence in this respect. (29) The benefit of any doubt on the part of the competent court must be given to the undertaking to which the decision finding an infringement was addressed. (30)
97. The principle of the presumption of innocence does not however preclude the application of rebuttable presumptions in competition law. (31)
98. Examples of such presumptions comprise the ‘Anic presumption’ or a presumption that a parent company exercises a decisive influence over the commercial policy of its wholly owned subsidiary. (32) The Court has also held that, where the Commission has been able to establish that an undertaking had taken part in meetings between undertakings of a manifestly anticompetitive nature, it was for that undertaking to provide another explanation of the tenor of those meetings and to rebut the findings of the Commission. (33)
99. These presumptions do not shift the burden of proof onto the addressee of the competition authority’s decision. They allow the authority to draw a certain conclusion on the basis of common experience. (34) The resulting prima facie conclusion may be rebutted by contrary evidence, failing which that conclusion will be considered as adequate to discharge the burden of proof, which continues to lie with the administrative authority. Recourse to such presumptions is moreover justified by the necessity to ensure the effet utile of the EU competition rules, since without them the proof of an infringement could be rendered excessively difficult or impossible in practice.
100. Insofar as such presumptions stem from Article 101(1) TFEU, as interpreted by the Court, and consequently form an integral part of applicable EU law, they do not fall within the scope of the principle of the autonomy of national procedural law, (35) and are therefore binding on national authorities when they apply EU competition rules. (36)
101. Likewise, in the present case, the Competition Council and the referring court can infer, without infringing the principle of the presumption of innocence, that an undertaking which became aware of of the system notice of 27 August 2009 and continued to use the E-TURAS system tacitly subscribed to the illicit initiative. It is for the undertaking concerned to bring forward evidence that it manifested its opposition to that initiative or to prove that the concertation had not the potential to affect its conduct on the market.
102. By drawing that inference, the administrative authority or the national court does not reverse the burden of proof, contrary to the rights of the defence, or set aside the presumption of innocence.
IV – Conclusion
103. For all the above reasons, I suggest that the Court should rule as follows in answer to the questions referred by the Lietuvos vyriausiasis administracinis teismas:
Article 101(1) TFEU must be interpreted as meaning that the concept of a concerted practice covers the situation where several travel agencies use a common online travel booking system, and that system’s administrator posts a notice informing its users that following the proposals and wishes of the undertakings concerned the discounts applicable to clients will be restricted to a uniform maximum rate, this notice being followed by technical restriction on the choice of discount rates available to the users of the system. The undertakings which become aware of that illicit initiative and continue to use the system, without publicly distancing themselves from that initiative or reporting it to the administrative authorities, are liable for participating in that concerted practice.