In its judgment of 21 January 2016, the Court of Justice of the European Union answered a request for a preliminary ruling submitted by a Lithuanian court concerning proceedings between Eturas, administrator of the computer software E-TURAS, a common online travel booking system allowing travel agencies with an operating licence to offer travel bookings for sale on their websites, as well as several travel agencies, and the Competition Council of Lithuania. Indeed, in 2009, the administrator of the E-TURAS software sent a notification message to several travel agencies informing them that the discounts on products sold through that system would henceforth be capped. Following the dissemination of that message, the technical modifications necessary to implement that measure were carried out on the system in question.
The issue was to determine whether the dispatch of such message may constitute sufficient evidence to establish that the operators which used the system were aware, or ought to have been aware, of the content of that message and whether, in the absence of any opposition on their part to such a practice, it may be considered that they had participated in a concerted practice contrary to Article 101 TFEU.
Firstly, the Court recalled that pursuant to Article 2 of Regulation 1/2003, in any national proceedings for the application of Article 101 TFEU, the burden of proving an infringement of Article 101(1) TFEU lies with the party or the authority alleging the infringement in accordance with the domestic principles governing the assessment of evidence and the standard of proof.
Secondly, the Court held that the presumption of innocence principle precludes domestic courts from inferring from the mere dispatch of the message at issue that the travel agencies ought to have been aware of the content of that message, in the absence of any other objective and consistent indicia.
Thirdly, the Court found that the travel agencies could fall outside the presumption of participation in the concerted practice if they had publicly distanced themselves from the practice, if they reported it to the relevant administrative bodies, or if they brought other proof such as a clear and express objection sent to the system administrator or the systematic grant of additional refunds to the clients.
The Court concluded that if it cannot be established that a travel agency was aware of the message, its participation in a concerted practice cannot be inferred from the mere existence of a technical restriction implemented in the system at issue, unless it is established on the basis of other objective and consistent indicia that it tacitly assented to an anticompetitive action.
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