Case C‑542/14

SIA ‘VM Remonts’

and

SIA ‘Ausma grupa’

v

Konkurences padome

and

Konkurences padome

v

SIA ‘Pārtikas kompānija’

(Request for a preliminary ruling from the Augstākā tiesa)

‛Reference for a preliminary ruling — Competition — Article 101(1) TFEU — Purely internal situation — Application of analogous national rules — Jurisdiction of the Court — Concerted practice — Liability of an undertaking for the acts of a service provider — Conditions’

Summary — Judgment of the Court (Fourth Chamber), 21 July 2016

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Request for interpretation as a result of the applicability to an internal situation of a provision of EU law rendered applicable by national law — Jurisdiction to provide such interpretation

   (Art. 267 TFEU)

2. Agreements, decisions and concerted practices — Concerted practice — Liability of an undertaking on account of the acts of an independent service provider supplying it with services — Not permissible — Limits

   (Art. 101(1) TFEU)

1.  See the text of the decision.

   (see paras 17, 18)

2.  Article 101(1) TFEU must be interpreted as meaning that an undertaking may, in principle, be held liable for a concerted practice on account of the acts of an independent service provider supplying it with services only if one of the following conditions is met:

   —	the service provider was in fact acting under the direction or control of the undertaking concerned, or

   —	that undertaking was aware of the anti-competitive objectives pursued by its competitors and the service provider and intended to contribute to them by its own conduct, or

   —	that undertaking could reasonably have foreseen the anti-competitive acts of its competitors and the service provider and was prepared to accept the risk which they entailed.

   First, where a service provider offers, in return for payment, services on a given market on an independent basis, that provider must be regarded, for the purpose of applying rules aimed at penalising anti-competitive conduct, as a separate undertaking from those to which it provides services and the acts of such a provider cannot automatically be attributed to one of those undertakings.

   Second, as regards the first of those conditions, an undertaking could be liable for the acts of a service provider which presents itself as independent but which is in fact acting under the direction or control of that undertaking. That would be the case in circumstances in which the service provider had only little or no autonomy or flexibility with regard to the way in which the activity concerned was carried out, its notional independence disguising an employment relationship. Furthermore, such direction or control might be inferred from the existence of particular organisational, economic and legal links between the service provider in question and the user of the services, just as with the relationship between parent companies and their subsidiaries.

   As regards the second of those conditions, whilst it is true that it is met when that undertaking intended, through the intermediary of its service provider, to disclose commercially sensitive information to its competitors, or when it expressly or tacitly consented to the provider sharing that commercially sensitive information with them, the condition is not met when that service provider has, without informing the undertaking using its services, used the undertaking’s commercially sensitive information to complete those competitors’ tenders.

   Finally, as regards the third condition, the concerted practice may also be attributed to the undertaking using those services if the latter could reasonably have foreseen that the service provider retained by it would share its commercial information with its competitors and if it was prepared to accept the risk which that entailed.

   (see paras 25, 27, 30, 31, 33, operative part)