Opinion of the Advocate General — ECLI:EU:C:2014:1958
Date: 2014-03-27
Language of the case: French
Subject matter: Competition
Procedure: Action for annulment;Appeal - successful
Origin: France

Summary — Judgment of the Court (Third Chamber), 11 September 2014 1. Appeals – Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of Justice of the assessment of the facts put before the General Court — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) 2. EU law — Principles — Right to effective judicial protection — Affirmed in the Charter of Fundamental Rights of the European Union — Judicial review of decisions adopted by the Commission in competition matters — Commission decision involving appraisal of a complex economic matter — Scope and limits of review by the Courts — Obligation to review the legal characterisation (Art. 81(1) EC; Arts 261 TFEU and 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47) 3. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Wording and purpose of an agreement and the economic and legal context of the development of that agreement — Distinction between infringements by object and infringements by effect — Intention of the parties to an agreement to restrict competition — Not a necessary criterion — Infringement by object — Sufficient degree of harm — Criteria for assessment (Art. 81(1) EC) 4. Agreements, decisions and concerted practices — Adverse effect on competition — Anti-competitive object — Criteria for assessment — Assessment by reference to the economic and legal context — Judicial review — Duty to state reasons as to the anti-competitive object and the harmful nature of the agreement, decision or concerted practice (Art. 81(1) EC) 1. See the text of the decision. (see para. 41) 2. See the text of the decision. (see paras 43-46) 3. As regards anti-competitive conduct caught by Article 81 EC, certain types of coordination between undertakings reveal, by their very nature, a sufficient degree of harm to the proper functioning of normal competition that it may be found that there is no need to examine their effects. Consequently, certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 81(1) EC, to prove that they have actual effects on the market. Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent. In order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of 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 a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account. It cannot be accepted that the concept of restriction of competition by object must not be interpreted restrictively. The concept of restriction of competition by object 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 do not constitute an exhaustive list of prohibited collusion is, in that regard, irrelevant. (see paras 49-54, 57, 58) 4. As regards anti-competitive conduct caught by Article 81(1) EC and, more particularly, competition by object, in taking the view that the restrictive object of certain measures which were restrictive of competition can be inferred from their wording alone, the General Court is not however relieved of its obligation to explain, in the context of its review of the lawfulness of the Commission decision which found that those measures had an anti-competitive object, in what respect that wording could be considered to reveal the existence of such a restriction. In that regard, although the General Court sets out the reasons why the measures at issue, in view of their formulas, are capable of restricting competition and, consequently, of falling within the scope of the prohibition laid down in Article 81(1) EC, it must still explain in what respect that restriction of competition reveals a sufficient degree of harm in order to be characterised as a restriction by object within the meaning of that provision, otherwise the decision of the General Court will be vitiated by an inadequate statement of reasons. Having found that there are interactions between the issuing and acquisition activities of a card payment system and that those activities produce indirect network effects, since the extent of merchants’ acceptance of cards and the number of cards in circulation each affects the other, the General Court cannot, without erring in law, conclude that the measures at issue have as their object the restriction of competition within the meaning of Article 81(1) EC. Another an error of assessment is the failure to distinguish between the relevant market and the context which must be taken into account in order to ascertain whether the content of an agreement or a decision by an association of undertakings reveals the existence of a restriction of competition by object within the meaning of Article 81(1) EC. That distinction between the relevant market and the context is not observed when the General Court holds that the analysis of the requirements of balance between issuing and acquisition activities within the card payment system cannot be carried out in the context of Article 81(1) EC on the ground that the relevant market is not that of payment systems in a Member State but the market, situated downstream for the issue of payment cards in that Member State. Lastly, the examination of the options left open to the members of a grouping — established by the main banking institutions operating in the Member State in question in order achieve the interoperability of the systems for payment and withdrawal by bank cards issued by its members — concerns the assessment of the potential effects of the measures in question, not the characterisation of those measures as an agreement of an association of undertakings having an object harmful to competition. (see paras 65, 69, 74, 76-79, 82)