Budapest Bank

The aim of the above discussed exemples is to highlight the controversy around the standard of proof and the notion of by object restraints in the recent past, the list of the cases is not exhaustive. Although Budapest Bank⁷⁵⁴ is certainly an (important) element of the post-Cartes Bancaires evolution, due to its importance for the whole field, I find it important to discuss this case separately, just as I did with Cartes Bancaire.

750 Pablo Ibanez Colomo: What the Court said, and did not say, in Maxima Latvija. Available at:

https://chillingcompetition.com/2015/12/10/what-the-court-said-and-did-not-say-in-maxima-latvija/ downloaded:

11 June 2021

751 Case C-373/14 P, Toshiba Corporation v Commission, EU:C:2016:26, para 30-31. See also: Dömötörfy Borbála Tünde – Kiss Barnabás Sándor - Firniksz Judit : Látszólagos dichotómia? – Versenykorlátozó cél és hatás vizsgálata az uniós versenyjogban, különös tekintettel a Budapest Bank ügyre.

752 Idem. para. 29.

753 Idem. para. 33.

754 Case C-228/18, Budapest Bank at all k. Gazdasági Versenyhivatal

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In Budapest Bank, the Opinion of Advocate General Bobek have already suggested his aim to finally put an end to the by object discrepancy:

“From the early days of EU competition law, much ink has been spilled on the dichotomy between restriction of competition by object and restriction by effect. It may thus come as a surprise that this distinction, stemming from the very wording of the prohibition in (what is now) Article 101 TFEU, still requires interpretation by the Court. The distinction is relatively easy to make in theory. Its practical operation is nonetheless somewhat more complex. It is also fair to say that the case-law of the EU Courts has not always been crystal clear on the subject.

Indeed, a number of decisions given by the EU Courts have been criticised in legal scholarship for blurring the distinction between the two concepts.”⁷⁵⁵

Just as we can expect after such a remarkable start, Bobek in his Opinion attempts to clarify the interpretation of EU case law on the object analysis. For the sake of clarity, he divided the object analysis into two steps:

i. Analysis of the content of the provisions of the agreement and its objectives;

ii. Analysis of the economic and legal context of the agreement.

The first step is an examination of the agreement and its contents, its aim is ‘to ascertain whether the agreement in question falls within a category of agreements whose harmful nature is, in the light of experience, commonly accepted and easily identifiable.’ ⁷⁵⁶

The Opinion – referring to former case law, especially the opinion of Advocate General Wahl in Cartes Bancaires⁷⁵⁷ – emphasizes the role of experience in this step, which is defined as what can traditionally be seen to follow from economic analysis, as confirmed by the competition

755 Case C-228/18, Budapest Bank at all. V. Gazdasági Versenyhivatal. Opinion of Advocate General Bobek.

ECLI:EU:C:2019:678

756 Idem. para 42. See also: Dömötörfy Borbála Tünde – Kiss Barnabás Sándor - Firniksz Judit : Látszólagos dichotómia? – Versenykorlátozó cél és hatás vizsgálata az uniós versenyjogban, különös tekintettel a Budapest Bank ügyre. p. 12.

757 C-67/13 P, Groupement des Cartes Bancaires v. Commission. Opinion of Advocate General Wahl.

EU:C:2014:1958.

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authorities and supported by case law.⁷⁵⁸ The first step therefore has the purpose of examining whether the agreement’s anticompetitive object stems obviously from the agreement itself.

In the course of step two, ‘the authority is required to verify that the presumed anticompetitive nature of the agreement, determined on the basis of a merely formal assessment of it, is not called into question by considerations relating to the legal and economic context in which the agreement was implemented. To that end, it is necessary to take into account the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the markets in question. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, that factor may be taken into account where relevant.’⁷⁵⁹

The Opinion acknowledges that the extent and depth of this second step is unclear, as it does not answer where the object analysis ends and the effects test begins. At the same time, Bobek affirms that the second step – however, to a different extent – is inevitable and mandatory for competition authorities, which serves as a legal and economic justification for prohibiting an anticompetitive agreement. Bobek points out that even in cases dealing with hardcore restraints – such as price fixing, market sharing or export bans – which are generally accepted to be particularly harmful to competition, the economic and legal context cannot be totally ignored.⁷⁶⁰ The opinion also addresses the discrepancies caused by Toshiba: [the limited examination of economic and legal context to the absolutely necessary elements of the case] ”means that the competition authority […] must […] check that there are no specific circumstances that may cast doubt on the presumed harmful nature of the agreement in question.” If experience tells us that the agreement belongs to the hardcore anticompetitive category, a detailed analysis of the impact is unnecessary. In such a case, the competition authority is only required “to verify that the relevant market(s) and the agreement in question do not have any special features which might indicate that the case at hand could constitute an exception to the experience-based

758 Opinion, para. 42. See also: Dömötörfy Borbála Tünde – Kiss Barnabás Sándor - Firniksz Judit : Látszólagos dichotómia? – Versenykorlátozó cél és hatás vizsgálata az uniós versenyjogban, különös tekintettel a Budapest Bank ügyre.

759 Ibid. para. 43.

760 Ibid. paras. 44–45.

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rule.’⁷⁶¹ This second step is called “a basic reality check” by Bobek. It requires the competition authority to check whether there are any legal or factual circumstances that preclude the agreement or practice concerned from restricting competition. Bobek admits “[t]here is no standard type of analysis or set level of depth and meticulousness that an authority has to adopt to carry out that verification. The complexity of the analysis required of the authority to find an agreement anticompetitive ‘by object’ depends on all of the relevant circumstances of the case.

It is impossible to (or at least I am unable to) draw, in abstract terms, a bright line between (the second step of) an object analysis and an effects analysis.” The distinction between the two tests is ‘more one of degree than of kind.’⁷⁶²

Bobek chooses to use the following – albeit admittedly extreme – metaphor to demonstrate the above: ‘if it looks like a fish and it smells like a fish, one can assume that it is fish. Unless, at the first sight, there is something rather odd about this particular fish, such as that it has no fins, it floats in the air, or it smells like a lily, no detailed dissection of that fish is necessary in order to qualify it as such. If, however, there is something out of the ordinary about the fish in question, it may still be classified as a fish, but only after a detailed examination of the creature in question.”⁷⁶³

The Opinion does not try to re-interpret existing case law, instead it attempts to put the pieces of the preceding case law in their right, coherent place. It does not state anything new, and it does not attempt to resolve the blurred lines between object analysis and effects test. It even acknowledges that impossible to give a general, abstract determination of such a line, therefore it is always subject to case-by-case anylysis. Therefore, the Opinion seems to admit that the line blurred by Allianz Hungaria is not even going to be clarified – at least not in a one size fits all way – in the future. After this ‘confession’ with my colleagues, we concluded that even the EU systems seem to leave behind the strict dichotomy approach: we set in contrast the Opinion of Advocate General Bobek with the US antitrust law, and found that "by object/per se/quick look restrictions and by effect/rule of reason restrictions do not represent a dichotomy but a continuum, where – as AG Bobek states – the difference between the types of economic analysis is more of degree than of kind. Hovenkamp [2018] highlights the difference in the burden of

761 Ibid. para. 48.

762 Ibid. paras. 49–50.

763 Ibid. para. 51.

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proof: in the case of simpler factual circumstances, the burden of proof should be greater for the defendant undertakings, while in a more complicated case the authority should bear a greater obligation. Both systems might be interpreted in a way that places emphasis on the depth of demonstration and the allocation of the burden of proof, and from this viewpoint both the EU and the US regime appears to be more like a multicolored scale than a structure of clear-cut categories. European competition law commentators have previously raised the continuum-like approach of legal tests (see Ibáñez Colomo [2019] pp. 3–4.), and the Opinion, in our view, appears to point toward the same direction”.⁷⁶⁴

I discussed the Opinion of Advocate General Bobek in the Budapest Bank case in details because in my view, it provides excellent answers to several post-Allianz and post-Cartes Bancaires cases, what cannot be found in the ECJ’s judgment⁷⁶⁵. Also, it has important implications for the interpretation of the ECJ’s judgment. The judgment follows the two-step structure recommended by the Opinion in order to decide whether the examined agreemets meet the Cartes Bancaires standard and therefore infringe competition by object.

As first step – as stipulated by AG BObek – the ECJ examined the content and objectives of the MIF agreement. In this respect the ECJ did not find that the content of the MIF agreement, or the objectives pursued by the agreement does not “necessarily point to a restriction ‘by object’, in the absence of proven harmfulness of the provisions of that agreement to competition”⁷⁶⁶. Referring to the Opinion, the judgment highlights the importance of

“sufficiently reliable and robust experience […] that [an] agreement is, by its very nature, harmful to the proper functioning of competition”.⁷⁶⁷

As second step, as recommended by Bobek, the ECJ assessed whether the coordination is by nature harmful to the proper functioning of competition, taking into consideration all relevant aspects — in particular, the nature of the services, as well as the real conditions of the

764 Dömötörfy Borbála Tünde – Kiss Barnabás Sándor - Firniksz Judit : Látszólagos dichotómia? – Versenykorlátozó cél és hatás vizsgálata az uniós versenyjogban, különös tekintettel a Budapest Bank ügyre. p.

21.

765 Case C-228/18, Budapest Bank at all. v. Gazdasági Versenyhivatal. ECLI:EU:C:2020:265

766 Idem para 65-66

767 Idem para 76

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functioning and structure of the markets — of the economic or legal context.⁷⁶⁸ ECJ then carefully examined the context of the agreement and turned to the counterfactual analysis, and finally concluded that in-depth examination of the effects is necessary.⁷⁶⁹