(Judgment of the Court of Justice of the EU in case C-67/13 P, Groupement des cartes bancaires)

Svetlana Chobanova[1]

 

In its judgment Groupement des cartes bancaires the Court of Justice (“Court”) found that the General Court (“GC”) committed an error in law in concluding that the pricing measures adopted by the French economic interest grouping Groupement des cartes bancaires (“Grouping”) had as “their object” the restriction of competition.

Article 101(1) of the Treaty on the Functioning of the European Union prohibits agreements, decisions by associations of undertakings or concerted practices which have as their “object” or “effect” the prevention, restriction or distortion of competition within the internal market. Restrictions by object are those that reveal in themselves a sufficient degree of harm to competition. Article 101 enumerates horizontal price-fixing, market sharing and output limitation but the list is not exhaustive. In its practice the Commission has found “new restrictions by object”, such as absolute territorial protection in vertical agreements. Such restrictions are prohibited without the need to examine their actual effects on the market.

In order to determine whether an agreement is restrictive competition by object, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part. This category has important advantages in terms of legal certainty and predictability for economic operators and is a source of procedural economy for competition authorities. In the last ten years the Commission has increasingly relied on this “by object” analysis, often done in a rather formalistic way, thus avoiding the need to scrutinise fully the effects of the measures.

In the case at stake the Grouping was created, so that holders of a bank card (“CB”)  issued by a member of the Grouping may make payments to affiliated traders an make withdrawals from ATMs operated by its members. In 2002, the Grouping adopted three pricing measures: (i) a fee under a Mechanism for regulating the acquiring function (“MERFA”), payable by the members of the Grouping whose CB-card issuing activities exceeded their activities in affiliating new traders to the system, (ii) a reform of the membership fee, which consisted in a fixed sum and a supplementary membership fee for new members whose number of CB cards in stock exceeded a certain threshold at a given moment and (iii) a fee per CB card issued, payable by “dormant” members, who were inactive or not very active before the entry into force of the new measures.

In its 2007 decision the Commission concluded that the pricing measures at issue were contrary to EU competition law because of both their object and their anticompetitive effects. The GC confirmed that the measures restricted competition by object and found no need to examine the effects of the measures on the market.

The Court of Justice annulled the GC’s judgment. It stated that the GC had failed to have regard to the case-law, according to which the essential legal criterion for ascertaining whether coordination between undertakings involves a restriction “by object” was the finding that such coordination reveals in itself “a sufficient degree of harm to competition”. The GC had wrongfully inferred that the anticompetitive object of the measures stemmed from their very calculation formulas and from the fact that they hindered the competition of new entrants on the market for the issuing of payment cards in France. Thereby, the GC had set out the reasons why the measures were capable of restricting competition but it had in no way explained in what respect the wording of those measures characterised them as restrictions “by object”.

At most, the measures had as their object the imposition of a financial contribution on those members which benefitted from the acquisition efforts of the others, an object that could not be regarded as being, by its very nature, harmful to the proper functioning of normal competition, all the more so since combatting free-riding in the CB system was considered a legitimate objective by the GC. In addition, while purporting to examine the “options” left open to the members of the Grouping by the measures at issue (namely payment of a fee or limiting the issue of CB cards), the GC had in fact assessed the potential effects of the measures, not their object.

In its judgment the Court did not add a new element to the definition of a restriction by object. However, it made a clear statement that the GC erred in finding that this concept should not be interpreted restrictively and underlined that importance of applying it only to certain types of coordination which reveal such “a sufficient degree of harm to competition” that there is no need to examine their effects. Otherwise the Commission would be exempted from the obligation to prove the actual effects on the market of agreements which are in no way established to be, by their very nature, harmful to normal competition.

This development certainly adds to legal certainly. Indeed, already in its early judgment Société Technique Minière, the Court had affirmed that the alternative nature of the requirements of “object” and “effect” led first to the need to ascertain the precise purpose of the agreement, in its context, and determine an inference with competition resulting from all or some of the clauses of the agreement itself. Thereby, it has been the understanding of the Court that the “sufficient degree of harm” has to be examined by reference to the clauses and purpose of the measure.

One element is however missing from the Court’s judgment and this is the precise role of the “legal and economic context” for the determination of an object restriction. The Court indeed asserted that the GC should have analysed the requirements of balance between the issuing and acquisition activities within the payment system in the context of Article 101(1), because in order to determine the existence of a “sufficient degree of harm” all relevant aspects of the legal and economic context have to be taken into account, irrespective of whether they relate to the relevant market. In doing so however, the Court referred back to its jurisprudence in Allianz Hungária, a case in which arguably an effects-based analysis was applied in order to find an object restriction and the criterion of “context” was used to enlarge and not to restrict the scope of this notion.

It would have been desirable for the Court to clearly state, as Advocate General Wahl did in para. 44 of its conclusions, that:

[c]onsideration of the context in identifying the anti-competitive object can only reinforce or neutralise the examination of the actual terms of a purported restrictive agreement. It certainly cannot remedy a failure actually to identify an anti-competitive object by demonstrating the potential effects of the measures in question.

This qualification is very important. NAGY states that the competition law assessment of agreements having an anti-competitive object is “legalistic”, contrary to effect-analysis, which is a blend of legal and economic considerations. Arrangements with an anti-competitive object are automatically (per se) condemned and even though the context may be relevant for interpreting the economic function of the measure, the “object” analysis should remain textual, i.e. within the four angles of the agreement. Otherwise, it would be impossible to clearly define the category.

The Court does not give an answer as to what extent and for what purposes the context could be examined, without in fact analysing the effects of the measure. Given the a very thin borderline between these two types of analysis, the only way to provide clarity in the definition of “restriction by object” would be to squarely affirm that the “context” is not a separate criterion but an indication which may either confirm the existence of an object restriction, already determined by the analysis of the agreement’s clauses, or to exclude it.

In this regard BOURGEOIS makes an important precision. While agreeing that the legal and economic context cannot by itself demonstrate the existence of a “sufficient degree of harm”, he makes a distinction between object restrictions as determined by the EU legislator and the “new” restrictions discovered by the Commission. Whereas the Commission is free to identify such new restrictions, it should not only base its finding on experience, according to which certain types of agreements would have adverse effects on competition (analysis in abstracto that the legislator undertakes), but should in addition look at the particular circumstances of the case and establish that the restriction is at least capable of producing anti-competitive effects (analysis in concreto that involves the economic context). Under such analysis the circumstances of the context would only be able to “justify” potential object restrictions, other than the ones in Article 101(1), letters a)-c).

It may be concluded that while the stricter interpretation of the term “restriction by object” in Groupement des cartes bancaires is welcome, by failing to clarify the precise implications of its strict interpretation and by “protecting” the broad understanding of this concept in its past rulings, the Court is not fully consistent in its conclusions and leaves behind more doubts about the scope of the term “restriction of competition by object”.

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Линк към статията на български език: ПОНЯТИЕТО „ОГРАНИЧАВАНЕ НА КОНКУРЕНЦИЯТА С ОГЛЕД НА ЦЕЛТА“

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[1]              Associate in Van Bael & Bellis (Brussels), schobanova@vbb.com.