Prohibition of Restrictive Competition Agreements in the European Union: Analyzing the “Expedia” Case

Abstract: Under Article 101 of the Treaty on the Functioning of the European Union (TFEU), shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market.

This article has raised several questions of interpretation as to its meaning and scope. Therefore, the case-law of the Court of Justice of the European Union (CJEU) has been fundamental to its interpretation.

The aim of this work is to carry out a critical analysis of a particular CJEU decision, known as “case Expedia”, in order to systematise the answer to some fundamental questions for verify if a particular agreement is restrictive of competition or not.

The central issues of this study are: how do you assess whether, or not, an agreement between undertakings is restrictive of competition and therefore contrary to the Treaty?

What criteria should be used to make this assessment? Is it relevant that one of the undertakings involved is to provide a service of generaleconomic interest?

Can a national authority punish restrictive practices of companies with market shares below the thresholds set by “de minimis” Communication of European Commission?

Methodology used: starting to analyze the case “Expedia” and its comparison with other cases decided by the Court, before and after these decisions; analyze of more relevant doctrinal references; systematic definition of the criteria to recognize an agreement against TFEU.

We can synthesize our conclusions by saying that the restrictive impact of an agreement must be assessed by determining the relevant market, the market share of each of the players or the joint market share of all actors related (cartel), the magnitude of affected consumers. These are the criteria to assess if a particular agreement may “significantlyrestrict competition”.

Key words: Cartel; competition restrictive agreement; relevant market share; service of economic general interest

JEL codes: K210, L4