1. Concerted Practices
© Łukasz Stępkowski

2. Concerted Practices – case study
Some time ago in a certain EU Member State not that far away there was a travel service provider, A. That travel service provider had a large network of franchisees selling A’s travel packages, either locally in their travel bureaus or online.
The main method of sales was a sale via a computerized booking system, of which A was an administrator and franchisees were users. A and its franchisees were not meeting in person because the franchise network was very large and covered an entire Member State. As such, it was not practicable to meet and in fact a vast majority of them never did. The booking system, while not compulsory, allowed for pre-filled travel package contracts and required only a signature of a customer and a franchisee’s employee after printing a travel contract out.
When A wanted to put something to mind of its franchisees, it used an in-built one-way built into the system to notify its franchisees of various issues, such as corporate policy, sales strategy, promotional activities etc. The system also had an option of applying a rebate for a trip.
At some point, A decided to cap rebates at 10% and subsequently sent an via the system to all users that a cap is going to be added to the system. The system was later updated to reflect this and its use continues to this day.
Was there a concerted practice for the puposes of Article 101(1) TFEU? If so, how could one escape it?

3. Concerted Practices
As it is the case with agreements, concerted practices are a term of EU law and do not refer to any practice that may exist under any Member State law
Similarly to an agreement, it requires at least two parties to a given practice to exist, as it needs to be concerted
Truly unilateral conduct does not therefore equate with a concerted practice

4. Concerted Practices
A concerted practice, for the purposes of Article 101(1) TFEU, exists where undertakings knowingly substitute practical cooperation between them for the risks of competition
While Article 101(1) TFEU does not deprive undertakings of a right to adapt to the situation on the market and to alter their behaviour to answer the present or foreseeable behaviour of their competitors, it must not amount to joint determination of a course of action and prior prevention of all uncertainty between competitors
There is no need to formulate an actual plan of cooperation

5. Concerted Practices
For there to be a concerted practice, there needs to be:
some form of contact between undertakings, but it does not need to be direct or strong
some form of consensus between undertakings, a meeting of minds – but similar to the above, it may be ’weak’
subsequent conduct on the market and a relationship of cause and effect between that and concerting
As such, the ’conduct’ somewhat stresses the need of an effect, but the threshold therefor is low – where a ’hardcore’ restriction is present, such an effect on market conduct may be presumed

6. Concerted Practices
One of the ways to escape Article 101(1) TFEU is the already-known act of public distancing
As such, standing up, making your intention not to participate known and leaving is a quite solid approach to concerted practices
However, concerted practices differ from agreements in that public distancing (alongside a report to authorities) is not an only sure-fire way to escape from the scope of Article 101(1) TFEU where there are no anticompetitive meetings (C-74/14 Eturas, 46)
An undertaking may adduce all evidence to the above
Other defences include:
Proving that concertation did not have any influence on market conduct (very hard to prove)
State compulsion (i.e. concertation was required by a Member State with no room for maneuvre)

7. Concerted Practices
While concerted practices are more ’effect-oriented’, there may be a concerted practice with a restrictive object
an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (C-286/13 P Dole Food, 122)
a concerted practice may have an anticompetitive object even though there is no direct connection between that practice and consumer prices or where it directly or indirectly fixes purchase or selling prices or any other trading conditions (C-286/13 P Dole Food, 123, 124)

8. Concerted Practices
the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market;
such a concerted practice is caught by Article 101(1) TFEU, even in the absence of anticompetitive effects on the market
in order to find that a concerted practice has an anticompetitive object, there does not need to be a direct link between that practice and consumer prices (judgment in T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, 38, 39)

9. Concerted Practices
Where there is an electronic system of sale, such a system may enable concertation
However, where users have no way of contacting one another, it cannot be required that the declaration of an intention to distance itself is to be made to all of the competitors which were the addressees of an initial concertation message, since an user is not in fact in a position to know who those addressees are
It may be accepted that distancing may be done by way of contacting an administrator of such a system
Rebate system: presumption could be rebutted by evidence of a systematic application of a discount exceeding the cap in question (Eturas, 49)

10. Thank you for your attention