EU Court Considers Antitrust Liability For Failing To React To Third Party Actions

An advisor to Europe's highest court, the Court of Justice of the European Union ("CJEU"), is encouraging the CJEU to adopt a strict standard for companies to distance themselves from potentially anticompetitive actions by a third party with which they do business. In a case involving Lithuania's travel agents and their common on-line booking system provider, the CJEU must decide whether the travel agents can incur antitrust liability for not publicly distancing themselves from what appears to have been unilateral conduct by their common third party service provider.

In the Eturas and Others litigation (Case C-74/14), the Opinion of Advocate General ("AG") Maciej Szpunar, which is subject to the final judgment of the CJEU, establishes potential cartel liability for conduct that, on its face, appears to be a unilateral notice coming from a non-competing, third party service provider. Under the standard advocated, the fact that competitors were recipients of such a