"Eturas" UAB and Others v Lietuvos Respublikos konkurencijos taryba.
Date: 2016-01-21
27


As a preliminary point, it is necessary to recall the Court’s case-law that each economic operator must determine independently the policy which it intends to adopt on the common market. Such a requirement of autonomy thus strictly precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to give rise to conditions of competition which do not correspond to the normal conditions of the market in question (see, to that effect, judgment in T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraphs 32 and 33 and the case-law cited).
28


The Court has also held that passive modes of participation in the infringement, such as the presence of an undertaking in meetings at which anticompetitive agreements were concluded, without that undertaking clearly opposing them, are indicative of collusion capable of rendering the undertaking liable under Article 101 TFEU, since a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, encourages the continuation of the infringement and compromises its discovery (see, to that effect, judgment in AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 31 and the case-law cited).
29


In the first place, inasmuch as the referring court raises the issue whether the dispatch of a message, such as that at issue in the main proceedings, 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, it must be noted that, in accordance with Article 2 of Regulation No 1/2003, in any national proceedings for the application of Article 101 TFEU, the burden of proving an infringement of Article 101(1) TFEU is to rest on the party or the authority alleging the infringement.
30


Although Article 2 of Regulation No 1/2003 expressly governs the allocation of the burden of proof, that regulation does not contain any provisions on more specific procedural aspects. Thus, in particular, that regulation does not contain any provision in relation to the principles governing the assessment of evidence and the standard of proof in national proceedings for the application of Article 101 TFEU.
31


That conclusion is confirmed by recital 5 of Regulation No 1/2003, which expressly states that the regulation does not affect national rules on the standard of proof.
32


According to settled case-law, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish them in accordance with the principle of procedural autonomy, provided, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgments in VEBIC, C‑439/08, EU:C:2010:739, paragraph 63, and Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, point 28 and the case-law cited).
33


The Court has indeed held that the presumption of a causal connection between a concertation and the market conduct of the undertakings participating in the practice, according to which those undertakings, where they remain active on that market, take account of the information exchanged with their competitors in determining their conduct on that market, follows from Article 101(1) TFEU and consequently forms an integral part of the EU law which the national court is required to apply (see, to that effect, judgment in T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraphs 51 to 53).
34


However, in contrast to that presumption, the answer to the question whether the mere dispatch of a message, such as that at issue in the main proceedings, may, having regard to all of the circumstances before the referring court, constitute sufficient evidence to establish that its addressees were aware, or ought to have been aware, of its content, does not follow from the concept of a ‘concerted practice’ and is not intrinsically linked to that concept. That question must be regarded as relating to the assessment of evidence and to the standard of proof, with the result that it is governed — in accordance with the principle of procedural autonomy and subject to the principles of equivalence and effectiveness — by national law.
35


The principle of effectiveness requires however that national rules governing the assessment of evidence and the standard of proof must not render the implementation of EU competition rules impossible or excessively difficult and, in particular, must not jeopardise the effective application of Articles 101 TFEU and 102 TFEU (see, to that effect, judgment in PfleidererC‑360/09, EU:C:2011:389, point 24).
36


In that respect, it must be recalled that, according to the case-law of the Court, in most cases the existence of a concerted practice or an agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see, to that effect, judgment in Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 26 and the case-law cited).
37


Consequently, the principle of effectiveness requires that an infringement of EU competition law may be proven not only by direct evidence, but also through indicia, provided that they are objective and consistent.
38


In so far as the referring court has doubts as to the possibility, in view of the presumption of innocence, of finding that the travel agencies were aware, or ought to have been aware, of the message at issue in the main proceedings, it must be recalled that the presumption of innocence constitutes a general principle of EU law, now enshrined in Article 48(1) of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment in E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 72), which the Member States are required to observe when they implement EU competition law (see, to that effect, judgments in VEBIC, C‑439/08, EU:C:2010:739, paragraph 63, and N., C‑604/12, EU:C:2014:302, paragraph 41).
42


In the second place, as regards the participation of the travel agencies concerned in a concerted practice within the meaning of Article 101(1) TFEU, it must be recalled, first, that under that provision, the concept of a concerted practice implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two (judgment in Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 126 and the case-law cited).
46


In the third place, it must be pointed out that a travel agency may rebut the presumption that it participated in a concerted practice by proving that it publically distanced itself from that practice or reported it to the administrative authorities. In addition, according to the case-law of the Court, in a case such as that at issue in the main proceedings, which does not concern an anticompetitive meeting, public distancing or reporting to the administrative authorities are not the only means of rebutting the presumption that a company has participated in an infringement; other evidence may also be adduced with a view to rebutting that presumption (see, to that effect, judgment in Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraphs 23 and 24).