# C_2012319EN.01000401.xml

| 20.10.2012 | EN | Official Journal of the European Union | C 319/4 |
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20.10.2012

EN

Official Journal of the European Union

C 319/4

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Appeal brought on 6 August 2012 by MasterCard, Inc., MasterCard International, Inc., MasterCard Europe against the judgment of the General Court (Seventh Chamber) delivered on 24 May 2012 in Case T-111/08: Mastercard, Inc. and others v European Commission

(Case C-382/12 P)

2012/C 319/05

Language of the case: English

Parties

Parties

Appellants: MasterCard, Inc., MasterCard International, Inc., MasterCard Europe (represented by: V. Brophy, E. Barbier de La Serre, B. Amory, avocats)

Appellants:

Other parties to the proceedings: European Commission, Banco Santander, SA, Royal Bank of Scotland plc, HSBC Bank plc, Bank of Scotland plc, Lloyds TSB Bank plc, MBNA Europe Bank Ltd, United Kingdom of Great Britain and Northern Ireland, British Retail Consortium, EuroCommerce AISBL

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellants claim that the Court should:

| — | set aside the judgment of the General Court of 24 May 2012 in Case T-111/08, MasterCard and others v. Commission; |
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set aside the judgment of the General Court of 24 May 2012 in Case T-111/08, MasterCard and others v. Commission;

| — | annul the Commission Decision C(2007) 6474 final of 19 December 2007 in Cases COMP/34.579 — MasterCard, COMP/36.518 — EuroCommerce, COMP/38.580 — Commercial Cards (1); |
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annul the Commission Decision C(2007) 6474 final of 19 December 2007 in Cases COMP/34.579 — MasterCard, COMP/36.518 — EuroCommerce, COMP/38.580 — Commercial Cards (1);

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| — | order the Commission to pay the costs of the present proceedings, including the costs of the Applicants before this Court and before the General Court. |
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order the Commission to pay the costs of the present proceedings, including the costs of the Applicants before this Court and before the General Court.

Pleas in law and main arguments

Pleas in law and main arguments

The appellant submits that the contested judgment should be set aside on the following grounds:-

| | First plea
  : the General Court made an error of law and/or failed to provide adequate reasoning with regard to the assessment of the objective necessity of the alleged restriction of competition. Specifically, the General Court misapplied the well-established test of objective necessity. Rather than applying the proper test under which a restriction is objectively necessary if it is either impossible or
  difficult
  to achieve the main operation without it, the General Court applied an incomplete test according to which a restriction is objectively necessary only if, without it, the main operation is
  incapable
  of functioning. In addition, the General Court; (i) failed to assess the alleged restriction, and therefore objective necessity, in its proper context; (ii) erroneously substituted its own assessment for that of the Commission; and (iii) failed to apply the right standard of review. |
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First plea
  : the General Court made an error of law and/or failed to provide adequate reasoning with regard to the assessment of the objective necessity of the alleged restriction of competition. Specifically, the General Court misapplied the well-established test of objective necessity. Rather than applying the proper test under which a restriction is objectively necessary if it is either impossible or
  difficult
  to achieve the main operation without it, the General Court applied an incomplete test according to which a restriction is objectively necessary only if, without it, the main operation is
  incapable
  of functioning. In addition, the General Court; (i) failed to assess the alleged restriction, and therefore objective necessity, in its proper context; (ii) erroneously substituted its own assessment for that of the Commission; and (iii) failed to apply the right standard of review.

First plea

difficult

incapable

| | Second plea
  : the General Court made an error of law and/or failed to provide adequate reasoning with regard to the assessment of whether MasterCard is an association of undertakings. Specifically, the General Court made an error of law in considering the alleged commonality of interest between the banks and MasterCard, and the banks' residual decision-making powers post IPO, unrelated to the Multilateral Interchange Fee (‘MIF’), as sufficient to characterize MasterCard as an association of undertakings when taking decisions regarding the MIF. In any event, the banks' decision-making powers post IPO, and the alleged commonality of interests between the banks and MasterCard, are irrelevant to determine whether MasterCard is an association of undertakings when taking decisions regarding the MIF. |
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Second plea
  : the General Court made an error of law and/or failed to provide adequate reasoning with regard to the assessment of whether MasterCard is an association of undertakings. Specifically, the General Court made an error of law in considering the alleged commonality of interest between the banks and MasterCard, and the banks' residual decision-making powers post IPO, unrelated to the Multilateral Interchange Fee (‘MIF’), as sufficient to characterize MasterCard as an association of undertakings when taking decisions regarding the MIF. In any event, the banks' decision-making powers post IPO, and the alleged commonality of interests between the banks and MasterCard, are irrelevant to determine whether MasterCard is an association of undertakings when taking decisions regarding the MIF.

Second plea

| | Third plea
  : the General Court made errors of law concerning the admissibility of several annexes to the Application. There was no basis in law for the General Court to limit MasterCard's right of access to the court in this way. Furthermore, even if the General Court had such powers, it erred in finding that the limitation should apply in this particular case. |
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Third plea
  : the General Court made errors of law concerning the admissibility of several annexes to the Application. There was no basis in law for the General Court to limit MasterCard's right of access to the court in this way. Furthermore, even if the General Court had such powers, it erred in finding that the limitation should apply in this particular case.

Third plea

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(1)  Summary of Commission Decision of 19 December 2007

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OJ C 264, 6.11.2009, p. 8

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