Opinion of the Advocate General — ECLI:EU:C:2006:440
Date: 2006-06-29
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court (Art. 234 EC) 2. Competition – Agreements, decisions and concerted practices – Agreements between undertakings (Art. 81(1) EC) 3. Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning (Art. 81(1) EC) 4. Competition – Agreements, decisions and concerted practices – Prejudicial to competition (Art. 81(1) EC) 5. Competition – Agreements, decisions and concerted practices – Not allowed – Exemption – Conditions (Arts 81(1) and (3) EC) 1. In the context of the procedure provided for in Article 234 EC, it is not for the Court, given the allocation of functions between itself and the national courts, to determine whether the decision to refer has been taken in accordance with the rules of national law governing the organisation of courts and their procedure. In the context of the cooperation between the Court and the national courts provided for by Article 234 EC, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted for a preliminary ruling concern the interpretation of Community law, the Court is, in principle, bound to give a ruling. However, in exceptional circumstances, the Court must examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions. A reference from a national court may be refused only if it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. Such is not the case where the solution to the dispute before the national court may call for the application of both Community law and national competition law and where, by its request for a preliminary ruling, the referring court seeks in essence to ensure respect for the primacy of Community law. (see paras 14-17, 20-21) 2. The interpretation and application of the condition contained in Article 81(1) EC relating to the effect of agreements on trade between Member States must take as its starting-point the purpose of that condition, which is to define, in the context of the law governing competition, the boundary between the areas respectively covered by Community law and the law of the Member States. Thus, Community law covers any agreement or any practice which is capable of affecting trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off national markets or by affecting the structure of competition within the common market. For an agreement, decision or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. Moreover, that influence must not be insignificant. Thus, an effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive. In order to assess whether an arrangement has an appreciable effect on trade between Member States, it is necessary to examine it in its economic and legal context. In that regard, the mere fact that the participants in a national arrangement include undertakings from other Member States is an important element in the assessment, but, taken alone, it is not so decisive as to permit the conclusion that the criterion of trade between Member States being affected has been satisfied. On the other hand, the fact that an arrangement relates only to the marketing of products in a single Member State is not sufficient to preclude the possibility that trade between Member States might be affected. An arrangement extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the Treaty is designed to bring about. Furthermore, the fact that an agreement or practice encourages an increase in the volume of trade between Member States does not preclude the possibility that that agreement or practice may affect that trade. Thus, with respect to a system for the exchange between financial institutions of information on customer solvency, it is for the national court to determine whether, in the light of the characteristics of the market at issue, there is a sufficient degree of probability that the implementation of such a system may have an influence, direct or indirect, actual or potential, on the supply of credit in the Member State concerned by operators from other Member States and that that influence is not insignificant. In that assessment, it is for the national court to take account of the foreseeable development in the conditions of competition and in the pattern of trade between Member States. On that point, it must take into consideration, for example, possible development in cross-border activities and the foreseeable impact of any policy or legislative initiatives designed to reduce legal or technical barriers to trade. (see paras 33-39, 43-44) 3. It is inherent in the Treaty provisions on competition that every economic operator must determine autonomously the policy which it intends to pursue on the common market. Thus, such a requirement of autonomy precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to give rise to conditions of competition which do not correspond to the normal conditions of the market in question, taking into account the nature of the products or the services provided, the size and number of the undertakings and also the volume of the market. However, that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors. Accordingly, the compatibility of a system for the exchange between financial institutions of information on customer solvency with the Community competition rules cannot be assessed in the abstract. It depends on the economic conditions on the relevant markets and on the specific characteristics of the system concerned, such as, in particular, its purpose and the conditions of access to it and participation in it, as well as the type of information exchanged – be that, for example, public or confidential, aggregated or detailed, historical or current – the periodicity of such information and its importance for the fixing of prices, volumes or conditions of service. (see paras 52-54) 4. By reducing the rate of borrower default, a system for the exchange between financial institutions of information on customer solvency is in principle capable of improving the functioning of the supply of credit. If, owing to a lack of information on the risk of borrower default, financial institutions are unable to distinguish those borrowers who are more likely to default, the risk thereby borne by such institutions will necessarily be increased and they will tend to factor it in when calculating the cost of credit for all borrowers, including those less likely to default, who will then have to bear a higher cost than they would if the institutions were in a position to evaluate the probability of repayment more precisely; a system for the exchange such as that described above is capable of reducing such a tendency. Furthermore, by reducing the significance of the information held by financial institutions regarding their own customers, a system for the exchange between financial institutions of information on customer solvency appears, in principle, to be capable of increasing the mobility of consumers of credit and is apt to make it easier for new competitors to enter the market. It follows that Article 81(1) EC must be interpreted as meaning that a system for the exchange of information on credit between financial institutions on customer solvency does not, in principle, have as its effect the restriction of competition within the meaning of that provision, provided that the relevant market or markets are not highly concentrated, that that system does not permit lenders to be identified and that the conditions of access and use by financial institutions are not discriminatory, in law or in fact. (see paras 55-56, 61, 72, operative part 1) 5. In the event that a system for the exchange of information on credit between financial institutions on customer solvency restricts competition within the meaning of Article 81(1) EC, the applicability of the exemption provided for in Article 81(3) EC is subject to the four cumulative conditions laid down in that provision and it is for the national court to determine whether those conditions are satisfied. In order for the condition that consumers be allowed a fair share of the benefit to be satisfied, it is not necessary, in principle, for each consumer individually to derive a benefit from an agreement, a decision or a concerted practice. However, the overall effect on consumers in the relevant markets must be favourable. (see para. 72, operative part 2)