Expedia Inc. v Autorité de la concurrence and Others.
Date: 2012-12-13
16. It is settled case-law that an agreement of undertakings falls outside the prohibition in that provision, however, if it has only an insignificant effect on the market (Case 5/69 Völk  v Vervaecke [1969] ECR 295, paragraph 7; Case C-7/95 P John Deere  v Commission [1998] ECR I-3111, paragraph 77; Joined Cases C-215/96 and C-216/96 Bagnasco and Others  [1999] ECR I-135, paragraph 34; and Case C-238/05 Asnef-Equifax and Administración del Estado  [2006] ECR I-11125, paragraph 50).
17. Accordingly, if it is to fall within the scope of the prohibition under Article 101(1) TFEU, an agreement of undertakings must have the object or effect of perceptibly restricting competition within the common market and be capable of affecting trade between Member States (Case C-70/93 BMW  v ALD  [1995] ECR I-3439, paragraph 18; Case C-306/96 Javico [1998] ECR I-1983, paragraph 12; and Case C-260/07 Pedro IV Servicios [2009] ECR I-2437, paragraph 68).
18. With regard to the role of Member State authorities in the enforcement of Union competition law, the first sentence of Article 3(1) of Regulation No 1/2003 establishes a close link between the prohibition of the agreements set out in Article 101 TFEU and the corresponding provisions of national competition law. Where the national competition authority applies provisions of national law prohibiting cartels to an agreement of undertakings which is capable of affecting trade between Member States within the meaning of Article 101 TFEU, the first sentence of Article 3(1) requires Article 101 TFEU also to be applied to it in parallel (Case C-17/10 Toshiba Corporation [2012] ECR, paragraph 77).
21. The Court has held that the existence of such a restriction must be assessed by reference to the actual circumstances of such an agreement (Case 1/71 Cadillon  [1971] ECR 351, paragraph 8). Regard must be had, inter alia, to the content of its provisions, the objectives it seeks to attain and the economic and legal context of which it forms a part (Joined Cases C-501/06 P, C-513/06 P, C-516/06 P and C-519/06 P GlaxoSmithKline Services and Others  v Commission and Others  [2009] ECR I-9291, paragraph 58). It is also appropriate to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and the structure of the market or markets in question (see, to that effect, Asnef-Equifax and Administración del Estado , paragraph 49).
22. In its examination, the Court found, inter alia, that an exclusive dealing agreement, even with absolute territorial protection, has only an insignificant effect on the market in question, taking into account the weak position which the persons concerned have in that market, ( Völk , paragraph 7, and Cadillon , paragraph 9). In other cases, however, it did not base its decision on the position of the persons concerned in the market in question. Accordingly, in paragraph 35 of Bagnasco and Others , it found that an agreement between the members of a banking association which excludes the right, with regard to the opening of current-account credit facilities, to adopt a fixed interest rate cannot have an appreciable restrictive effect on competition, since any variation of the interest rate depends on objective factors, such as changes occurring in the money market.
29. Consequently, and as the Court has already had occasion to point out, a Commission notice, such as the de minimis  notice, is not binding in relation to the Member States (see, to that effect, Case C-360/09 Pfleiderer  [2011] ECR I-5161, paragraph 21).
30. Accordingly, that notice was published in 2001 in the ‘C’ series of the Official Journal of the European Union , which, by contrast with the ‘L’ series of the Official Journal, is not intended for the publication of legally binding measures, but only of information, recommendations and opinions concerning the European Union (see, by analogy, Case C-410/09 Polska Telefonia Cyfrowa  [2011] ECR I-3853, paragraph 35).
34. In so far as Expedia, the French Government and the Commission have, in their written observations or during the hearing, questioned the finding made by the national court that it is not disputed that the agreement at issue in the main proceedings had an anti-competitive object, it should be remembered that, in proceedings under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the main proceedings is a matter for the national court (Case C-409/06 Winner Wetten  [2010] ECR I-8015, paragraph 49 and the case-law cited).
35. Moreover, it should be noted that, according to settled case-law, for the purpose of applying Article 101(1) TFEU, there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition (see, to that effect, Joined Cases 56/64 and 58/64 Consten and Grundig  v Commission [1966] ECR 299; Case C-272/09 P KME Germany and Others  v Commission  [2011] ECR I-12789, paragraph 65; and Case C-389/10 P KME Germany and Others  v Commission  [2011] ECR I-13125, paragraph 75).
36. In that regard, the Court has emphasised that the distinction between ‘infringements by object’ and ‘infringements by effect’ arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition (Case C-209/07 Beef Industry Development Society and Barry Brothers (‘BIDS’)  [2008] ECR I-8637, paragraph 17, and Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I-4529, paragraph 29).