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
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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