CYIL vol. 11 (2020)

MICHAL PETR CYIL 11 (2020) competition authority that the travel agencies that received the message and did not distance themselves from it became members of a price-fixing cartel: Article 101(1) TFEU must be interpreted as meaning that, where the administrator of an information system, intended to enable travel agencies to sell travel packages on their websites using a uniform booking method, sends to those economic operators, via a personal electronic mailbox, a message informing them that the discounts on products sold through that system will henceforth be capped and, following the dissemination of that message, the system in question undergoes the technical modifications necessary to implement that measure, those economic operators may – if they were aware of that message – be presumed to have participated in a concerted practice within the meaning of that provision, unless they publicly distanced themselves from that practice, reported it to the administrative authorities or adduce other evidence to rebut that presumption, such as evidence of a systematic application of a discount exceeding the cap in question . 56 As in the previous scenario, such coordination does not pose any questions as far as the imputation of liability is concerned, and there is no need to discuss it any further. 57 For the sake of completeness, it should only be added that third party providing the system used as the “hub” might also be found liable for the cartel, even if it is not itself active in the relevant market (see above). A problem may however arise when the undertakings are using the same (or similar) algorithm aligning their prices, but they are not aware of it. As long as they were indeed not aware that the system they are using may be used to increase prices, and neither could have reasonably foreseen it, such conduct cannot be understood as coordination and cannot be defined as a cartel. 58 At the same time, as the dependence on pricing algorithms will increase in the future, there might be increased pressure on the undertakings to make sure that the algorithms they are about to deploy cannot be used to increase prices in parallel with other undertakings. 59 2.3 Predictable Agent Unlike the previous two scenarios, this one does not have an “analogue” counterpart and is entirely based on algorithms. In order to understand it, we need to make a brief detour and discuss the difference between anticompetitive agreements and tacit collusion. As already described above, in order to classify certain conduct of undertakings as an anticompetitive agreement, there needs to be some form of coordination among them. Conversely, situations where the undertakings – without any coordination – only “follow” the price policy of others (e.g. when one of the undertakings, typically the strongest one – the price leader, increases its prices, the others “follow” it), are not understood as anticompetitive agreements. As summarised by the CJ EU: “the Treaty prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors”. 60 56 CJ EU judgement of 21 January 2016 C-74/14 Eturas UAB and others , ECLI:EU:C:2016:42, par. 50. 57 COLOMBO ( op. cit. sub 54), pp. 14 & 15. 58 Franco-German Study , p. 41. 59 Ibid , p. 42. 60 CJ EU judgement of 31 March 1993 C-89/85, C-104/85, C-114/85, C-116/85, C-117/85, C-125/85, C-126/85, C-127/85, C-128/85 a C-129/85 Ahlström Osakeyhtiö a další v. Komise (Wood Pulp I) , ECLI:EU:C:1993:120, par. 71.

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