French Supreme Court Confirms The Ability Of NCAs To Take Action Against Anti-Competitive Agreements Below De Minimis Thresholds

Author:Van Bael Bellis
Profession:Van Bael & Bellis

On 16 April 2013, the French Supreme Court ruled that national competition authorities (NCAs) are allowed to take enforcement actions against companies found to be in breach of Article 101 TFEU, despite market shares being below the thresholds established by the European Commission's Notice on agreements of minor importance (De Minimis Notice), provided the agreement constitutes an appreciable restriction on competition. In reaching this finding, the French Supreme Court followed the guidance given by the European Court of Justice (ECJ) in its preliminary ruling last year.

The case concerned the creation of a joint-venture between the French State railway company (SNCF) and Expedia, an online travel agent, the purpose of which was to expand SNCF's sale of train tickets over the internet. In 2009, the French Competition Authority issued a decision finding that the joint venture agreement was an anticompetitive agreement between competitors in breach of Article 101 TFEU and it fined both SNCF (5 million) and Expedia (500,000). Expedia challenged the decision before the French Court of Appeal in 2010 and, subsequently, before the French Supreme Court in 2011. The Supreme Court stayed proceedings and made a reference for a preliminary ruling to the ECJ inquiring whether national courts and NCAs were allowed to bring proceedings, on the basis of Article 101 TFEU, against an agreement that do not reach...

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