# C_2008051EN.01004901.xml

| 23.2.2008 | EN | Official Journal of the European Union | C 51/49 |
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23.2.2008

EN

Official Journal of the European Union

C 51/49

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Action brought on 19 December 2007 — Visa Europe and Visa International Service Association v Commission

(Case T-461/07)

(2008/C 51/91)

Language of the case: English

Parties

Applicants: Visa Europe Ltd (London, United Kingdom) and Visa International Service Association (Wilmington, United States) (represented by: S. Morris, QC, H. Davies, Barrister, A. Howard, Barrister, V. Davies, Solicitor and H. Masters, Solicitor)

Applicants:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | Annul the decision in its entirety; alternatively |
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Annul the decision in its entirety; alternatively

| — | annul Article 2 of the decision in its entirety, or in the alternative, reduce the fine there stated, as appropriate; and |
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annul Article 2 of the decision in its entirety, or in the alternative, reduce the fine there stated, as appropriate; and

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

By means of their application Visa Europe and Visa International Service Association (‘Visa’) seek annulment under Article 230 EC of Commission Decision C(2007) 4471 final, dated 3 October 2007 relating to a proceeding under Article 81 EC (Case COMP/D1/37860 — Morgan Stanley/Visa International and Visa Europe) on one hand with regard to the finding that Visa had infringed Article 81 EC and Article 53 EEA, by refusing to admit Morgan Stanley Bank International Limited (‘Morgan Stanley’) to membership of Visa Europe prior to 22 September 2006, due to the fact that it owned and operated a competing card system and, on the other hand, with regard to the imposition of a fine of EUR 10,2 million to the applicants.

Visa raises three pleas in law in relation to the Commission's finding of infringement. In particular, it submits that the Commission's conclusion that the non-admission of Morgan Stanley to Visa membership constituted an appreciable restriction to competition falling under Article 81(1) EC is vitiated by manifest errors of law and claims that the Commission failed to establish the necessary elements in support of that conclusion.

| (a) | First, it is submitted that the Commission applied the wrong legal and economic test for the application of the aforementioned provision, namely that there was ‘scope for further competition’ and reached, thus, the wrong factual and economic assessment regarding the alleged effects of the non-admission of Morgan Stanley. In fact, according to Visa, Morgan Stanley was not prevented from entering the relevant market (‘the UK acquiring market’). |
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(a)

First, it is submitted that the Commission applied the wrong legal and economic test for the application of the aforementioned provision, namely that there was ‘scope for further competition’ and reached, thus, the wrong factual and economic assessment regarding the alleged effects of the non-admission of Morgan Stanley. In fact, according to Visa, Morgan Stanley was not prevented from entering the relevant market (‘the UK acquiring market’).

| (b) | Second, it is claimed that the Commission infringed an essential procedural requirement by changing its case on restrictive effect at the stage of the decision without giving Visa an opportunity to respond to the new formulation of the case. |
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(b)

Second, it is claimed that the Commission infringed an essential procedural requirement by changing its case on restrictive effect at the stage of the decision without giving Visa an opportunity to respond to the new formulation of the case.

| (c) | Third, even if Morgan Stanley was prevented from entering the UK acquiring market, it is argued that there were no sufficient anti-competitive effects. |
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(c)

Third, even if Morgan Stanley was prevented from entering the UK acquiring market, it is argued that there were no sufficient anti-competitive effects.

In relation to the fine that has been imposed, Visa raises the following pleas in law under Article 229 EC:

| (a) | In accordance with the application of fundamental principles of Community law to the particular circumstances of the case and the genuine uncertainty that existed as to the illegality of the non-admission of Morgan Stanley, the Commission ought not to have imposed a fine on Visa at all. In fact, Visa considers that there was no justification for the fine imposed, given that the agreement in question had been formally notified to the Commission pursuant to Regulation (EEC) No 17/62 (1) and that the power to impose a fine under Regulation (EC) No 1/2003 (2) only arose because of the Commission's serious delay in the administrative procedure. |
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(a)

In accordance with the application of fundamental principles of Community law to the particular circumstances of the case and the genuine uncertainty that existed as to the illegality of the non-admission of Morgan Stanley, the Commission ought not to have imposed a fine on Visa at all. In fact, Visa considers that there was no justification for the fine imposed, given that the agreement in question had been formally notified to the Commission pursuant to Regulation (EEC) No 17/62 (1) and that the power to impose a fine under Regulation (EC) No 1/2003 (2) only arose because of the Commission's serious delay in the administrative procedure.

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| (b) | In the alternative, the Commission committed, according to Visa, various errors of law and assessment regarding the level of the fine that it could lawfully impose on the applicants. On that basis, Visa contends that a fine of EUR 10,2 million was manifestly excessive and disproportionate, taking no account of the reasonable doubt as to the illegality of Visa's conduct. |
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(b)

In the alternative, the Commission committed, according to Visa, various errors of law and assessment regarding the level of the fine that it could lawfully impose on the applicants. On that basis, Visa contends that a fine of EUR 10,2 million was manifestly excessive and disproportionate, taking no account of the reasonable doubt as to the illegality of Visa's conduct.

Finally, Visa claims that the Commission was only entitled to impose a fine on Visa for the period for which the evidence was established that Morgan Stanley was prevented from entering the UK acquiring market. Even if Visa's earlier refusal to admit Morgan Stanley to Visa membership could have made a difference to the conditions of competition in the relevant market, this could not have been the case beyond that period and therefore, the Commission, in line with its 1998 Fining Guidelines, should not have applied a duration multiplier.

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(1)  EEC Council Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ 13, p. 204).

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(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, p. 1).

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