Cartes Bancaires

In Cartes Bancaires, the background to the dispute and the essential elements of the decision can be summarized as follows.

The appellant was an economic interest grouping governed by French law, created in 1984 by the main French banking institutions in order to achieve the interoperability of the systems for payment and withdrawal by bank cards issued by its members.⁷²⁸

The Commission found that Cartes Bancaires had infringed Article 101 of the TFEU, and the conduct under examination was by object anticompetitive. The Commission stated that the by object anticompetitive nature is evident: “That anti‑competitive object reflects the genuine objectives of those measures, stated by the main members in the course of their preparation, namely the intention to (i) impede competition of new entrants and to penalise them, (ii) to safeguard the main members’ revenue and (iii) to limit the price reduction for bank cards”.⁷²⁹

725 Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P, GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc Commission of the European Communities. ECLI:EU:C:2009:610

726 Idem. para 64

727 Agreements are naked restraints if they seek to restrict competition without any objective countervailing benefits. (Sufrin-Jones, p. 211, footnote 113.

728 C-67/13 P Cartes Bancaires para 3

729 C Idem. para 8

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Cartes Bancaires appealed against the Commission decision, but the General Court dismissed the action in its entirety. Cartes Bancaires turned to the ECJ. In the plea, Cartes Bancaires referred to the interpretation of BIDS, is important element of the case, taken into regard that in all pay-for-delay decisions the Commission referred to the BIDS judgment as important support of its reasoning, i.e. to confirm that pay-for-delay settlements are by object restrictions.⁷³⁰

In BIDS and the ECJ stated: “In the context of competition, the undertakings which signed the BIDS arrangements would have, without such arrangements, no means of improving their profitability other than by intensifying their commercial rivalry or resorting to concentrations.

With the BIDS arrangements it would be possible for them to avoid such a process and to share a large part of the costs involved in increasing the degree of market concentration.”⁷³¹

In the Cartes Bancaires judgement, the ECJ started by highlighting that „it is apparent from the Court’s case-law that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects.”⁷³² The ECJ also noted, where the coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects should be considered and necessary to find factors showing that competition has in fact been prevented, restricted or distorted to an appreciable extent.⁷³³

In Cartes Bancaires, first the ECJ found that when the General Court defined the concept of the restriction ‘by object, it did not refer to the settled case-law of the ECJ⁷³⁴ thereby failing to have regard to the fact that the essential legal criterion for ascertaining whether coordination between undertakings involves such a restriction of competition ‘by object’ is the finding that such coordination reveals in itself a sufficient degree of harm to competition.⁷³⁵ Secondly, the General Court erred in finding that the concept of restriction by ‘object’ must not be interpreted

‘restrictively’. The Court expressed that „[t]he concept of restriction of competition ‘by object’

730 See Servier, Lundbeck, Fentanyl

731 C-209/07 BIDS para 33-34. See also Servier 1139.

732 C-67/13 P Cartes Bancaires para 49, See also LTM, 56/65, EU:C:1966:38,paragraphs 359-360, See also, BIDS, paragraph 15, See also C‑32/11 Allianz Hungária Biztosító and Others, EU:C:2013:160, paragraph 34

733 Cartes Bancaires para 52, Allianz Hungária para 34

734 Case 56/65 LTM para 359-360; See also C-209/07 BIDS, para 15, See also C‑32/11 Allianz Hungária para 34 See also C-67/13 P Cartes Bancaires para 49-52

735 C/67/13 P Cartes Bancaires para 57

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can be applied only to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition that it may be found 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 the proper functioning of normal competition. The fact that the types of agreements covered by Article 81(1) EC [Article 101 TFEU] do not constitute an exhaustive list of prohibited collusion is, in that regard, irrelevant.”⁷³⁶

The ECJ criticised the General Court for failing to explain in what respect the restriction of competition in the case under consideration reveals a sufficient degree of harm in order to be characterised as a restriction ‘by object’ within the meaning of Article 101 (1), given that no analysis have been given of that point in the judgment under appeal.⁷³⁷

„In order to assess whether coordination between undertakings is by nature harmful to the proper functioning of normal competition, it is necessary, in accordance with the case-law […]

to take into consideration all relevant aspects – having regard, in particular, to the nature of the services at issue, as well as the real conditions of the functioning and structure of the markets – of the economic or legal context in which that coordination takes place, it being immaterial whether or not such an aspect relates to the relevant market.”⁷³⁸

The ECJ found that in the case of Cartes Bancaires, the General Court erred in finding that the measures at issue could be regarded as being analogous to those examined by the ECJ in the BIDS judgment, in which the ECJ held that the arrangements concluded between the then principal beef and veal processors in Ireland had as their object the restriction of competition within the meaning of Article 101 TFEU.⁷³⁹

In Cartes Bancaires, the General Court did not find or argue that the measures at issue – unlike in case of the BIDS arrangements – were intended to change appreciably the structure of the market concerned through a mechanism intended to encourage the withdrawal of competitors

736 Idem. para 58

737 Idem. para 69

738 Idem. para 78

739 Idem. para 83

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and, accordingly, that those measures revealed a degree of harm such as that of the BIDS arrangements.⁷⁴⁰