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 the thresholds set by the De Minimis Notice.
In December 2012, following the opinion of its Advocate General (see VBB on Competition Law, Volume 2012, No. 9), the ECJ ruled that national courts and NCAs are not bound by the provisions of the De Minimis Notice, which are only intended to give guidance to national courts and NCAs (see VBB on Competition Law, Volume 2012, No. 12).
Applying those findings to the facts of the case at hand, the French Supreme Court followed the ECJ and accordingly ruled that the French Competition Authority was entitled to bring proceedings against an agreement that may affect trade between Member States on the basis of Article 101 TFEU, even though it did not meet de minimis thresholds, as the agreement had an appreciable restriction on competition. Indeed, because the agreement between the parties had an object of restricting competition, it constituted, by its nature and independently of any actual effect it may have had, an appreciable restriction on competition.
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