61996CC0215_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 This case arises from two actions pending before the Tribunale di Genova (District Court, Genoa) in which the question has been raised whether certain general contractual conditions laid down by the Norme Bancarie Uniforme (Standard Bank Conditions, hereinafter the `NBU') of the Associazione Bancaria Italiana (Italian Banking Association, hereinafter the `ABI') for the purpose of regulating contracts for the opening of current-account credit facilities and general guarantee agreements (fideiussione omnibus) intended to cover the opening of a credit facility are compatible with Articles 85 and 86 of the EC Treaty.
The proceedings before the national court
2 The plaintiffs in the proceedings before the Tribunale di Genova are Carlo Bagnasco, as principal debtor, and his guarantors, as joint and several debtors, who have appealed against two provisionally enforceable payment orders made by the President of the Tribunale di Genova on 18 June 1992.
3 In the action which gave rise to Case C-215/96, Carlo Bagnasco and his guarantors have been ordered to pay to Banca Popolare di Novara (hereinafter `BPN') the sum of ITL 222 440 332 on the following grounds:
- ITL 170 440 332, being the debit balance of current account 1360/320/30 opened in the name of Carlo Bagnasco under a contract of 8 October 1991, plus
interest at the rate of 17% accrued as from 1 April 1992;
- ITL 9 400 000, being the debit balance of current account 14336/33E/30 opened in the name of Carlo Bagnasco under a contract of 27 December 1991, plus interest at the rate of 17.50% accrued as from 1 April 1992;
- ITL 21 600 000, corresponding to the amount of four promissory notes discounted by the bank and issued by the individual firm Fidaurum, owned by Carlo Bagnasco, in respect of which each of the other four plaintiffs provided a guarantee for ITL 5 400 000, plus interest at the legally prescribed rate of 10% accrued as from 22 May 1992;
- ITL 21 000 000, for bills drawn on Anna Sbardella, discounted and/or credited to current accounts `subject to due collection', as listed on forms submitted for discount and/or crediting under the signature of Carlo Bagnasco, and the pledging of instruments, again drawn on Anna Sbardella, discounted by Carlo Bagnasco. Added to this amount is the interest, at the legally prescribed rate of 15%, accrued as from the date of the payment order.
4 In the action which gave rise to Case C-216/96, Carlo Bagnasco and his guarantors have been ordered to pay to Cassa di Risparmio di Genova e Imperia (Carige) SpA (hereinafter `Carige') the sum of ITL 124 119 497 on the following grounds:
- ITL 48 798 664, being the debit balance of current account 14445/20/106 opened in the name of Carlo Bagnasco under a contract of 28 August 1989, plus interest at the legally prescribed rate of 17.50% accrued as from 11 June 1992;
- ITL 75 320 833, plus interest at the rate of 15% accrued as from 11 June 1992, in respect of a `bank advance' of ITL 95 000 000, for which Carlo Bagnasco had issued nineteen promissory notes.
5 The payment orders were also addressed to Carlo Bagnasco's guarantors, as joint and several debtors by virtue of the aval given by them on the promissory notes and the general guarantee entered into on 7 February 1997 for up to ITL 300 000 000 (Case C-215/96), and on 28 November 1989 for up to ITL 195 000 000 (Case C-216/96).
6 Carlo Bagnasco and his guarantors have challenged the payment orders on the grounds, inter alia, that the standard bank rules and practices applied by Italian banks to contracts for the opening of current-account credit facilities and to general guarantee agreements are incompatible with Articles 85 and 86 of the EC Treaty.
7 The Tribunale di Genova does not consider it necessary to ask the Court whether Articles 85 and 86 are directly effective, or whether the NBU constitute a decision of an association of undertakings within the meaning of Article 85, because the answer is clearly in the affirmative in both cases. However, the national court does have doubts as to the compatibility with Articles 85 and 86 of certain clauses of the NBU relating to contracts for the opening of credit facilities and to general guarantee agreements.
8 The Tribunale di Genova takes the view that the only important element of contracts for the opening of current-account credit facilities is the mechanism for determining the interest rate, which represents the price of the service provided. Carlo Bagnasco considers that the procedure for determining the price of the credit (access to cash facilities) cannot be reasonably predicted or understood by the customer.
The national court has noted that the contracts concluded by Carlo Bagnasco with BPN provide, in Paragraph 2, for annual interest to be charged at the rates of 17% and 17.50%, together with commission of 1.8% on the maximum indebtedness incurred in any calendar quarter or fraction thereof. The contract concluded by Carlo Bagnasco with Carige provides for an annual interest rate of 14% plus commission of 1.8% on the maximum indebtedness incurred in any calendar quarter. The contracts with both banks provide that the interest rates may be increased or decreased as a result of money market fluctuations. Paragraph 12 of Carlo Bagnasco's contract with BPN also lays down that `the Bank shall be entitled at any time to vary the interest rate ... by means of a notice to be displayed at its premises or in such other manner as it deems fit'.
According to the Italian court, from the information given, only the matter of the initial determination of the rate of interest payable and the commission on the maximum indebtedness per currency reflects any direct negotiation between the parties. That element of the contract, however, is offset by the right accorded to the bank, in the text of the NBU, to increase the interest rate (at any time, by means of a notice to be displayed at its premises `or in such other manner as it deems fit as a result of money market fluctuations', and therefore in relation to indices recording variations which are unforeseeable or at least difficult to predict for the average bank customer. Article 1284 of the Italian Civil Code fixes the legally prescribed rate of interest at 10% per annum, while any interest charged at a higher rate `must be stipulated in writing', the legally prescribed rate being applicable if it is not. Consequently, only an agreement in written form - although not necessarily by means of an actual indication in figures of the agreed rate, but possibly by means of an automatic calculation carried out on the basis of objective and accessible data - ensures that the rate is determined and quantified: in this case it derives from a general reference to `money market fluctuations' and to a mechanism which also gives the bank the power to choose the timing of the variations and the procedures for notifying them to the customer.
9 As regards the general guarantee agreements linked to the opening of credit facilities, the national court considers that the relevant clauses of the NBU and of the contracts under consideration in these cases concern the following:
- the giving of a guarantee `at the same rate of interest as that prescribed for the transaction covered and, in any event, at a rate not lower than the current bank rate in respect of any breach of any obligation vis-à-vis the bank in connection with banking transactions of any kind, already made available or to be made available in the future to the said person (or to any subrogated party)', as indicated in a list given below; the guarantee also covers `any other obligation which the principal debtor may be under at any time vis-à-vis the bank in relation to guarantees already given or to be given hereafter by the same debtor to the bank for the benefit of third parties' (thus triggering the mechanism of the `guarantee of a guarantee', which is capable of being extended, as regards the persons concerned, to a practically unlimited and uncontrollable extent);
- the guarantor's obligation to keep himself apprised of the debtor's financial situation and in particular to obtain information from the debtor regarding the course of his relations with the bank, the latter being released from any obligation to seek from the guarantor the special authorisation provided for in Article 1956 of the Civil Code; (1)
- the release which the guarantor gives the bank from its obligation to act within the time-limits laid down in Article 1957 of the Civil Code, (2) intending to remain liable in derogation from that provision, `even if the bank has not commenced proceedings against the debtor and any joint obligors and has not pursued them diligently', thus continuing to be jointly and severally liable `until total extinguishment of the debt, without limitation as to time or the fulfilment of any other conditions';
- the obligation undertaken by the guarantor `to pay immediately to the bank, upon simple written request, even in the case of opposition by the debtor, whatever is owing to it by way of capital, interest, expenses, taxes, charges and any other incidentals';
- the statement that `for determination of the debt secured by the guarantee, the figures set out in the bank's accounting records shall be conclusive in any proceedings against the guarantor, his heirs and successors and assigns, and the bank shall not be required to send to the guarantor, on its own initiative, any communication regarding the state of the accounts and relations with the debtor';
- the derogation from Article 1939 of the Civil Code, (3) with the result that the `obligation shall remain effective in every respect even if the principal obligation is invalid for any reason, the guarantor thus intending, in the event of the obligation being declared void or being annulled, to commit himself as if he had undertaken the obligation personally'.
10 In order to dispose of the proceedings brought by Carlo Bagnasco and his guarantors against BPN and Carige, the Tribunale di Genova has considered it necessary to refer the following questions to the Court of Justice:
`(1) Whether the Norme Bancarie Uniforme (Standard Bank Conditions) laid down by the ABI for its members in relation to contracts for the opening of current-account credit facilities - since they are laid down and applied in a uniform and binding manner by the banks belonging to the ABI - are compatible with Article 85 of the Treaty, where they make the credit facility subject to conditions for determination of an interest rate which is not previously determined and is not determinable by the customer, and they are liable adversely to affect trade between the Member States and have as their object and effect the prevention, restriction or distortion of competition within the Common Market;
(2) What effects any finding of incompatibility in accordance with (1) may have on the corresponding clauses of the contracts for the opening of a current-account credit facility, concluded "downstream" by member banks with individual customers, since, as a group, the banks belonging to the ABI may be regarded, within the meaning and for the purposes of Article 86 of the Treaty, as holding a joint dominant position in the national credit market, whose specific application of the rules in question (in connection with determination of the interest payable on the loan) is regarded as an abuse;
(3) Whether the NBU laid down by the ABI for its members in relation to the "all-embracing" guarantee covering the credit facility - since they are applied in a uniform and binding manner by the member banks - are, taken as a whole, compatible with Article 85 of the Treaty, in relation to the individual clauses discussed in the grounds of this order, in that they are liable adversely to affect trade between the Member States and have as their object and effect the prevention, restriction or distortion of competition within the Common Market;
(4) What effects any finding of incompatibility in accordance with (3) may have on the corresponding clauses of the "all-embracing" guarantee agreements and on the agreements themselves concluded "downstream" by individual banks, since, as a group, the banks belonging to the ABI may be regarded, within the meaning and for the purposes of Article 86 of the Treaty, as holding a joint dominant position in the national credit market, whose specific application of the rules in question is regarded as an abuse.'
11 Before I suggest an answer to those questions, it is necessary to place the legal issues raised by the ABI's NBU within the context of the Italian legal system, and to examine the Community rules on competition in the banking sector as hitherto applied by the Community institutions.
The NBU under Italian national law
12 Subsequent to the events which gave rise to the two actions pending before the Tribunale di Genova, legislative amendments were introduced and administrative measures adopted in Italy which had a bearing on the general conditions applied by banks in contracts for the opening of credit facilities and general guarantee agreements.
13 Law No 154/92 (4) on banking transparency amended the rules governing general guarantee agreements by requiring that the maximum amount guaranteed be determined at the outset.
14 By letter of 22 February 1993, the ABI notified its NBU to the Commission with a view to obtaining negative clearance or an individual exemption under Article 85(3). The NBU were also brought to the attention of the Bank of Italy as the national authority competent to apply the competition and market rules in the banking sector, in accordance with Law No 287/90. (5)
15 By letter of 7 July 1993, the Commission informed the Bank of Italy that it had decided to examine only three of the twenty-six agreements notified by the ABI, in particular those concerning the conditions applicable to foreign-currency current accounts, to services for the collection and acceptance of bills and credit instruments payable in Italy and abroad, as well as the conditions governing foreign-currency financing. With regard to the other twenty-three agreements notified, which include those relating to the conditions applied in contracts for the opening of current-account credit facilities and general guarantee agreements, the Commission, without commenting on their potentially restrictive effects on competition, took the view that they did not significantly affect trade between Member States and were not therefore subject to Article 85. The Commission pointed out that those banking services were confined to the national territory and concerned economic activities which, by their very nature or by virtue of contractual provisions, are carried out primarily in Italy or have a very limited impact on trade between Member States; moreover, subsidiaries or branches of non-Italian banks participate in services of this kind only to a limited extent.
16 On 23 November 1993, the Bank of Italy commenced a procedure to examine the compatibility with Law No 287/90 of the twenty-three agreements excluded from the Commission's investigation. That procedure culminated in the adoption by the Bank of Italy of Decision No 12 of 3 December 1994, (6) which concluded that several of the conditions laid down in the NBU, including some of those at issue in these proceedings, affected competition and were contrary to Article 2 of Law No 287/90, which prohibits agreements restricting competition in terms similar to those of Article 85 of the EC Treaty. That decision called upon the ABI to amend its NBU in several respects and to communicate those amendments to its members, also making it clear that the NBU were intended merely as a guide. The ABI complied with the decision adopted by the Bank of Italy and amended its NBU, although the amendments it made do not have retroactive effect and therefore have no bearing on the proceedings before the Tribunale di Genova.
Application of Community competition law to the banking sector
17 Initially, doubts were raised as to the applicability of Community competition law to the banking sector, since its activities related to the economic and monetary policies of the Member States. Article 90(2) and Article 104 of the EEC Treaty could therefore be relied upon to prevent the application of Articles 85 and 86 to banking activities.
18 The Court of Justice dispelled those doubts entirely in 1981 in its judgment in Züchner, (7) where it held that the banking sector is subject to the competition rules, unless its activities are performed in pursuance of a measure adopted by the public authorities, in which case they are subject to Article 90(2).
19 Thereafter, the Commission discarded its initial doubts and began to examine the interbank agreements which were notified to it. (8) The first Commission decision relating to the banking sector dates back to 1984, (9) and it has since adopted a limited number of decisions in which it has stated that banks and other credit institutions constitute undertakings within the meaning of Article 85 because they are entities engaging in economic activities. The Commission's attitude towards interbank agreements has none the less been fairly `tolerant' given that it has only once imposed fines on banking undertakings. It did so in the Eurocheque: Helsinki Agreement Decision, (10) against which proceedings were brought before the Court of First Instance; the latter, in its judgment in CB and Europay v Commission, (11) partially annulled the Decision and reduced the fine.
20 In order to answer the questions referred in these cases, it is important to bear in mind some of the criteria which the Commission employs in such decisions when examining the compatibility of interbank agreements with Article 85. (12) To that end, a distinction should be drawn between agreements concerning services between banks, agreements concerning services provided by banks to customers, agreements on determination of debit and credit interest rates, and finally, other types of interbank agreements.
21 The Commission has deemed to be contrary to Article 85(1) multilateral interbank agreements between banks in a single Member State and decisions by national banking associations relating to the payment of uniform rates of commission for certain services which banks provide to each other. It has, however, granted such agreements and decisions individual exemptions under Article 85(3), and recently did so in respect of a bilateral agreement concerning general cooperation between two banks belonging to different Member States. (13) These are agreements on the price of interbank services which eliminate competition because they are adopted multilaterally, but to which the Commission grants exemptions because they facilitate the standardisation and conduct of banking activities and avoid a profusion of bilateral banking negotiations which would slow down and increase the price of the service. (14) The interbank agreements of this kind to which the Commission has granted exemptions include the following:
- The Eurocheque system agreement, whereby a maximum commission of 1.25% of the amount is applied to all Eurocheques made out abroad in local currency; that commission is borne by the drawer bank and the bank which cashes the cheque, and is not passed on to customers (Uniform Eurocheque Decision);
- The agreement applied by Belgian banks in relation to the maximum commissions that may be charged between them on any international foreign-exchange payment transaction originating abroad (Association Belge des Banques Decision); (15)
- The agreements on the rates of commission payable for the collection and/or acceptance of bills, documents, bank cheques and other instruments payable in Italy (ABI Decision). (16)
22 The Commission has adopted a more rigorous approach, especially since the judgment in Züchner, with regard to interbank agreements which lay down the rates of commission payable by customers for particular banking services. It has taken the view that such agreements deprive banks of the freedom to determine the price of the services which they offer to customers and constitute a serious infringement of Article 85(1) which cannot benefit from an exemption. In the Eurocheque: Helsinki Agreement Decision, the Commission censured an agreement between the French banks belonging to Groupement des Cartes Bancaires `CB' whereby it was decided that traders affiliated to the Groupement would be charged a commission on presenting for payment Eurocheques drawn on a foreign bank; this commission would be additional to the one which the French banks received from foreign banks through the Eurocheque system. (17)
23 As regards interbank agreements concerning determination of debit and credit interest rates, the Commission did not draw any inferences from Züchner and did not comment on that issue in the ABI Decision or in the Association Belge des Banques Decision. The Court of Justice nevertheless confirmed the applicability of the Community rules on competition to such interbank agreements on debit and credit interest rates in Van Eycke, (18) from which it follows that national legislation which restricts the benefit of an exemption from income tax solely to deposits on which the interest rates and premiums paid do not exceed the legally prescribed maximum levels is contrary to Article 3(g) and Articles 5 and 85 if the legislation in question reproduces the substance of a pre-existing interbank agreement. Following that judgment, the Commission began to examine the agreements determining interest rates which were notified to it, but has in each case completed its investigations without adopting a punitive decision.
24 Finally, the Commission has taken the view that certain interbank agreements notified to it do not infringe Article 85(1) because they do not appreciably affect competition (19) or do not affect trade between Member States.
25 As regards the condition relating to the effect on trade between Member States, the criteria employed by the Commission in determining its existence do not strike me as being entirely consistent. (20)
First, the fact that the agreements are confined to the territory of a Member State has not prevented the Commission from establishing that they affect trade between Member States. The Commission has based that conclusion on the fact that branches and subsidiaries of banks in other Member States and foreign subsidiaries of national banks are members of the banking associations which drew up the agreements, (21) and on the argument that `national pricing agreements covering an entire Member State may have the effect of consolidating the isolation of a national market, thus hindering the economic interpenetration sought by the Treaty'. (22)
Second, the Commission has taken into account the nature of the banking service covered by the agreement in question in determining whether or not its provision gives rise to `cross-border' transactions. Where that has been the case (international payments, the collection and/or acceptance of foreign instruments of credit, foreign-exchange transactions etc.), the Commission has considered trade between Member States to be affected. Where the banking service has, by contract or for technical reasons, been of a `domestic' nature, the Commission has taken the view that it does not appreciably affect trade between Member States. In the ABI Decision, the interbank Bancomat convention on automated teller machines, the safe deposit service, (23) the safe custody service, and the water, telephone and gas bills payment service were deemed to be `domestic' banking services.
26 In my opinion, the criteria used by the Commission in its decisions on interbank agreements in determining whether trade between Member States is affected must be thoroughly revised with a view to strengthening the application of Articles 85 and 86 to the banking sector. The distinction between cross-border banking services and banking services of a clearly domestic or national nature is untenable nowadays, for several reasons which I shall now explain.
First, technological progress is revolutionising banking and means that banking services can be provided in States other than the State where the bank is situated. As the Commission has itself recognised, the application of new technologies to banking (electronic teller machines, telephones and computers; `home banking') will also facilitate the provision of banking services outside the domestic market. (24)
Secondly, the liberalisation of capital movements in the Community and throughout the world is facilitating the internationalisation of all banking activities, a phenomenon which is driven by the globalisation of the world economy.
Finally, Directive 89/646/EEC, (25) which laid down 1 January 1993 as the time-limit for changes to be made to the national law of the Member States, facilitated access for European banks to the banking markets of Member States other than the State in which they are situated by introducing the single banking licence. (26) This Second Directive on the harmonisation of banking legislation contains the three pillars on which the Community's single market in banking is built: minimum harmonisation of the conditions governing pursuit of the business of banking, mutual recognition of authorisations to carry on business granted by Member States to credit institutions, and sole control by the Member State where the institution is situated (home country control). The single market in banking will be further consolidated by the introduction of the single currency at the beginning of the third stage of economic and monetary union, in accordance with Article 109j(4) of the Treaty. The promotion of free competition between the banks of Member States is an important element in the proper functioning of the single market in banking and such free competition is to be extended to all services offered by banks. The view that some of those services must continue to be marketed on national markets confined to the territory of each Member State does not therefore seem acceptable.
27 That general consideration will underpin my proposed answers to the questions referred for a preliminary ruling in this case, which are set out below.
The questions referred
28 By its four questions, the Tribunale di Genova seeks from the Court of Justice a ruling on the compatibility of certain clauses in the ABI's NBU in relation to contracts for the opening of current-account credit facilities, and general guarantee agreements linked to them, with Article 85 (Questions (1) and (3)) and with Article 86 (Questions (2) and (4)). It also asks the Court to determine what consequences a finding as to the incompatibility of the NBU would have for
individual contracts concluded by banks with their customers (Questions (2) and (4)).
Application of Article 85
29 Article 85(1) applies where there is evidence of the existence of an agreement between undertakings, a decision by an association of undertakings, or a concerted practice which affects trade between Member States and which has as its object or effect the prevention, restriction or distortion of competition within the common market.
30 In these proceedings, the Tribunale di Genova considers it indisputable that the general conditions laid down by the ABI's NBU with regard to contracts for the opening of current-account credit facilities and general guarantee agreements constitute a decision by an association of undertakings within the meaning of Article 85(1). Accordingly, it does not ask the Court of Justice for a ruling on the matter. I agree with this assessment by the Italian court, which is consistent with the case-law of the Court of Justice on the existence of decisions by associations of undertakings (27) and had previously been adopted by the Commission in its ABI Decision and by the Bank of Italy in its Decision No 12/94.
31 The doubts which the Tribunale di Genova puts to the Court of Justice in its first and third questions have to do with whether the other two conditions necessary for the application of Article 85(1), that is to say a restriction of competition and an effect on trade between Member States, are both present in these cases.
Restriction of competition
32 In order for a decision by an association of undertakings to be contrary to Article 85(1), it must have as its `... object or effect the prevention, restriction or distortion of competition within the common market ...'. According to the case-law of the Court of Justice, competition is restricted within the meaning of Article 85(1) where economic operators no longer determine their commercial strategy independently. While this requirement of independence does not prevent them from adapting themselves intelligently to the conduct of their competitors, it is however incompatible with any direct or indirect contact between such economic operators, the object or effect of which is to change the normal conditions of competition on the market in question, regard being had to the nature of the services or products offered, the size and number of the undertakings and the volume of the said market. (28)
33 Under the case-law of the Court of Justice, (29) it must be established first of all whether the object of the decision by an association of undertakings in itself constitutes a restriction of competition. If it does, the condition laid down in Article 85(1) is fulfilled and its effects need not be considered. If the object of the decision is not the restriction of competition, its effects must be examined in order to determine whether or not it restricts competition. (30)
The effects of a decision by an association of undertakings must be judged on the basis of the competition that would have prevailed on the relevant market if that decision had not existed. The Court of Justice therefore considers that the Commission's examination of practices which restrict competition in this way `[...] must be based on an assessment of the agreements as a whole [...]', which requires account to be taken of the effects, both real and potential, of such decisions by associations of undertakings on competition, (31) as well as the full economic context in which competition would take place in their absence. (32) The decision's effect on competition must also be appreciable. (33)
34 In these cases, the contested clauses of the NBU laid down by the ABI in relation to contracts for the opening of current-account credit facilities and the general guarantee agreements linked to them do not have the restriction of competition as their object but they do, in my view, have a clearly restrictive effect on competition.
35 The clauses of the NBU relating to determination of interest rates payable on credit facilities limit the autonomy of the banks belonging to the ABI in establishing their commercial strategy with regard to this type of financial service. Banks are compelled by the NBU to include in contracts for the opening of credit facilities clauses which entitle them to increase the interest rate according to money market fluctuations but do not require them to give the customer prior notice or obtain his consent, notification by means of a notice displayed at the bank's premises, or in such other manner as the bank deems fit, being sufficient. Although the interest rate which the bank charges for providing the service is not fixed directly, and may be negotiated with the customer, the aforementioned clauses of the NBU preclude banks from offering credit facilities to its customers on more favourable conditions, such as fixed interest rates, or variable interest rates with an obligation on the bank to give the customer prior notice of any changes.
36 The clauses of the ABI's NBU relating to general guarantee agreements also have a restrictive effect on competition in the provision of credit facilities. These clauses depart from the rules of the Italian Civil Code and lay down conditions in respect of the conclusion of such agreements which are very favourable to, and protective of, banks. (34) The existence of such clauses prevents banks from offering to customers requesting a credit facility more favourable conditions in respect of the associated general guarantee agreement. For the customer, the less restrictive the conditions of the general guarantee are, the easier it is to look for guarantors. Those conditions are thus an important factor when entering into a contract with a bank for a credit facility.
37 The general conditions laid down in the NBU therefore affect the ability of the banks belonging to the ABI to determine the conditions which they would like to apply to their customers on the basis of their internal profitability, their specialisation and their commercial policy. As the vast majority of Italian banks are members of the ABI, the scope for choice available to customers when entering into a contract for the opening of a current-account credit facility is drastically restricted, since the NBU restrict competition between banks, and customers have no prospect of deriving any benefit from seeking the credit facility from one banking institution rather than another.
The conditions laid down in the NBU relating to determination of interest rates are a component in the final price which the customer pays the bank for the credit facility and are therefore a fundamental element of competition which has a direct effect on relations between banking institutions and customers. The same is true of the conditions applied in general guarantee agreements, in so far as they affect the relationship between the bank and the customer, even though they are not directly linked to the price of the credit facility.
38 Furthermore, the provisions of the NBU relating to the opening of credit facilities and general guarantees have an appreciably restrictive effect on competition since the margin of manoeuvre available to a bank when first negotiating the interest rate and other conditions governing the opening of a credit facility with a customer is reduced because the rate is largely determined by interest rate levels on the capital markets.
Effect on trade between Member States
39 The Court of Justice has consistently held that `in order that an agreement, decision or concerted practice may affect 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 fact that the agreement, decision or concerted practice in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States. The influence thus foreseeable must give rise to a fear that the realisation of a single market between Member States might be impeded'. (35) Moreover, the effect on trade between Member States produced by the practices restricting competition must be sufficiently appreciable for trade between Member States to be affected within the meaning of Article 85(1). (36)
The Court of Justice has also stated that `... Article 85(1) of the Treaty does not require proof that such agreements have in fact appreciably affected such trade, which would moreover be difficult in the majority of cases to establish for legal purposes, but merely requires that it be established that such agreements are capable of having that effect'. (37) Actual proof of the restriction of trade between Member States is not therefore necessary; evidence of the existence of sufficient probability that the agreement may, at the present time or in future, affect trade between Member States is sufficient. (38)
40 As regards practices restricting competition which extend over the entire territory of a Member State, the Court of Justice takes the view that they affect trade between Member States because, by their very nature, they reinforce the compartmentalisation of markets on a national basis, thereby holding up the economic interpenetration which the EC Treaty is designed to bring about, and protecting domestic production. (39) This finding that practices employed throughout the territory of a Member State automatically affect trade between Member States seems to have been qualified in other judgments delivered by the Court of Justice where it has taken into account the means available to the parties to an agreement to ensure that customers remain loyal, the importance of the agreement on the market concerned and the economic context in which it exists. (40) There is therefore a strong presumption that a practice restricting competition which is employed throughout the territory of a Member State affects trade between Member States; that presumption disappears only if the characteristics of that practice and the economic context in which it exists show otherwise.
41 In the observations which it has submitted in these proceedings, the Commission considers that the provisions of the NBU relating to contracts for the opening of current-account credit facilities and general guarantee agreements do not affect trade between Member States, and are therefore subject not to Article 85, but rather, where appropriate, to Italian competition law. The Commission bases its conclusion on two grounds, namely: the contracts in question relate to banking services which are not essentially of a cross-border nature; and the provision of this type of service is not a key factor in the entry on to the Italian financial market of banks established in other Member States.
42 In my opinion, the Commission's argument is not consistent with the case-law of the Court of Justice since the provisions of the NBU relating to contracts for the opening of current-account credit facilities and all-embracing guarantee agreements appreciably affect trade between Member States. There are various reasons which substantiate this conclusion.
First, the opening of a current-account credit facility is a financial service which can be provided in any of the ways known in Community law, and can therefore have a cross-border character. The globalisation of banking, the use of new technologies in the provision of financial services and the introduction of the single market in banking make it easier for banking transactions relating to the opening of credit facilities and general guarantees to be conducted between Member States. It is thus perfectly conceivable that an Italian customer may go to a bank established in another Member State in order to conclude a contract for the opening of a current-account credit facility if the conditions offered by that bank are more favourable to him than those applied by banks established in Italy. In the same way, a bank in another Member State may be interested in providing current-account credit facilities in Italy from the State in which it is situated or by opening subsidiaries or branches in Italy. The full establishment of the internal market is paving the way for the `communitisation' of all financial services, and I do not therefore consider the distinction which the Commission draws in its decisions between national financial services and cross-border financial services to be relevant.
Secondly, the NBU laid down by the ABI and applied by all its members, which account for almost all banks in Italy, give rise to a compartmentalisation of the Italian market in financial services for the openinig of credit facilities, which holds up the establishment of a single market in such services in all Member States and the economic interpenetration which the EC Treaty is designed to bring about.
Thirdly, many Italian banking institutions are subsidiaries or branches of banks in other Member States which are `forced' to apply the provisions of the NBU relating to the credit facility because of the advantages of belonging to the ABI.
Fourthly, the NBU constitute a decision by an association of undertakings which is applied throughout the territory of a Member State and affects almost all banking transactions, including the opening of credit facilities and general guarantees. The economic context in which the NBU exist does not, in my view, display any factor capable of disproving the presumption that a restrictive practice of this kind, employed throughout Italy, affects trade between Member States.
Finally, the opening of a current-account credit facility is the most important loan contract concluded by banks and is used to provide a financial service of great importance to businesses. (41) Given that the relevant market in these cases is the market in services for the opening of credit facilities and the general guarantees linked to them, it is indisputable that the ABI's NBU appreciably restrict trade between Member States because they are applied by almost all banks established in Italy and because they drastically reduce competition in the provision of those services. Even if one accepts as the relevant market all the banking services offered in Italy, the importance of credit facilities accompanied by general guarantees means that the provisions of the ABI's NBU relating to such services have an appreciable and significant impact on trade in them between Member States.
43 The foregoing reasons indicate with sufficient probability that the NBU may appreciably affect trade between Member States now or in the future.
44 I therefore consider that general conditions with the characteristics of those laid down in the ABI's NBU in relation to contracts for the opening of current-account credit facilities and general guarantee agreements are contrary to Article 85(1).
Application of Article 86
45 Article 86 prohibits `any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it ... in so far as it may affect trade between Member States'.
46 In the present cases, the Tribunale di Genova asks whether the banks belonging to the ABI hold a collective dominant position and, if so, whether application of the provisions of the NBU relating to contracts for the opening of current-account credit facilities and general guarantee agreements in dealings between those banks and their customers constitutes an abuse of that position contrary to Article 86.
47 In its observations, the Commission considers that the mere fact that almost all Italian banks belong to the ABI is not in itself sufficient to support the view that its members hold a collective dominant position on the Italian banking market. I fully share the Commission's view in this respect, which is clearly borne out by the case-law of the Court of Justice.
48 The Court of Justice and the Court of First Instance have upheld the application of Article 86 to collective dominant positions, pointing out that there is nothing to prevent two or more independent economic entities from being, on a specific market, united by economic links of such a kind that they together hold a dominant position vis-à-vis the other operators on the same market. (42) According to the Court of Justice, `... in order to find that a collective dominant position exists, the undertakings in question must be linked in such a way that they adopt the same conduct on the market'. (43)
The existence of a collective dominant position cannot be substantiated simply by `recycling' the facts constituting an infringement of Article 85, and affirming that the parties to an agreement or to an unlawful practice jointly hold a substantial share of the market; that, by virtue of that fact alone, they hold a collective dominant position, and that their unlawful behaviour constitutes an abuse of that position. (44)
49 In my opinion, the banks belonging to the ABI do not hold a collective dominant position on the Italian banking market, because membership of that association does not create between the various banking institutions economic links which are so close as to cause them to adopt the same commercial strategy.
50 Membership of the ABI does not preclude the banks belonging to it from trading on the market individually. ABI members present themselves on the market as undertakings pursuing independent commercial strategies which are the same only as regards those services in respect of which the ABI has adopted a decision restrictive of competition which is followed by all its members and which falls within the scope of Article 85.
51 If the view is taken that the members of the ABI hold a collective dominant position, the same could be said of all professional associations whose membership includes the majority of the undertakings in a particular economic sector, and the decisions adopted by those associations could in all cases be assessed on the basis of Article 86. This would give rise to a systematic `recycling' of the facts constituting an infringement of Article 85 whenever there was a possibility of Article 86 being applied on grounds of abuse of a collective dominant position.
In this connection, I think there is a clear difference between the degree of integration among the undertakings belonging to a professional association such as the ABI and that among the undertakings forming a shipping conference. The latter may hold a collective dominant position, as the Court of Justice and the Court of First Instance have recognised, (45) because, in relation to customers, they present themselves on the market as one and the same entity. Undertakings belonging to a professional association, on the other hand, do not act on the market as an integrated entity.
52 I therefore take the view that the undertakings belonging to a professional association with the characteristics of the ABI do not hold a collective dominant position on the market such as to warrant the application of Article 86 to its uniform commercial practices.
The effects of a finding that the NBU are incompatible with Articles 85 and/or 86 on contracts concluded by banks with their customers
53 By its second and fourth questions, the Tribunale di Genova asks the Court of Justice to determine what consequences a finding as to the incompatibility with Articles 85 and/or 86 of the provisions of the NBU relating to contracts for the opening of current-account credit facilities and general guarantee agreements would have for individual contracts concluded by banks with customers which contain the general conditions laid down in the NBU.
54 Article 85(2) renders automatically void agreements or decisions which infringe paragraph (1) of that Article. According to the case-law of the Court of Justice, such nullity affects the agreement or decision by an association of undertakings in its entirety, in so far as the parts of it which specifically infringe Article 85(1) are inseparable from the decision or agreement as a whole. Furthermore, national courts are competent to declare agreements or decisions void under Article 85(2) (46) by virtue of the direct effect of Article 85.
As regards the consequences of a declaration of automatic nullity, the Court of Justice has consistently held that `... the consequences of the fact that those contractual provisions which are incompatible with Article 85(1) are automatically void for all other parts of the agreement or for other obligations flowing from it are not a matter for Community law. It is for the national court to determine in accordance with the relevant national law the extent and consequences, for the contractual relations as a whole, of the nullity of certain contractual provisions by virtue of Article 85(2). It is on the basis of national law that it is necessary in particular to determine whether such incompatibility may have the effect of obliging the contracting parties to amend the content of their agreement in order to prevent it from being void ...'. (47)
55 According to that case-law, the national court must apply its national law in order to determine the consequences, for the entirety of a decision by an association of undertakings such as the ABI's NBU, of applying Article 85(2) to the general conditions relating to contracts for the opening of credit facilities and general agreements which are considered to be contrary to Article 85(1).
However, the question raised by the Tribunale di Genova is different. The Italian court asks what consequences the nullity of the ABI's NBU would have for contracts for the opening of credit facilities and general guarantee agreements concluded by banks with their customers which are based on the general conditions contrary to Article 85(1).
56 Although the question is different, the aforementioned case-law of the Court of Justice makes it possible, as the Commission made clear in its observations, to give essentially the same answer.
If the consequences of the nullity of certain clauses of a decision by an association of undertakings for the other parts of that decision are governed by the provisions of national law, the consequences of such nullity, for contracts concluded pursuant to that decision, must all the more so be determined in the light of the provisions of national law on the nullity of contracts. For these purposes, the national rules on defects invalidating consent and on the lawfulness of the subject-matter or the legal basis of contracts will be particularly significant.
National courts are not compelled to deduce automatically from the nullity of those parts of a decision by an association of undertakings deemed void under Article 85(2) that individual contracts concluded pursuant to that decision are also void. Other penalties provided for in national contract law, such as voidability, the unenforceability of certain clauses, compensation for damage sustained, or recovery of any sums unduly paid, may be more appropriate for the purposes of disposing of the case in question.
57 That freedom of national courts to apply their own law in this way in determining the consequences for individual contracts concluded on the basis of parts of a decision by an association of undertakings which are in breach of Article 85 is subject to an important limitation laid down in the general case-law of the Court of Justice relating to effective judicial protection for rights conferred on individuals by provisions of Community law. (48) That case-law requires equivalence, both procedural and substantive, between the protection afforded to individuals' rights infringed as a result of the breach of a provision of Community law and the protection afforded against the infringement of individuals' rights as a result of the breach of a similar provision of national law.
As far as these proceedings are concerned, Italian law contains a provision which is almost identical to Article 85. Accordingly, the consequences, for individual contracts between banks and customers, of the nullity of certain general conditions laid down in the ABI's NBU, by virtue of their infringement of Article 85, must be similar to those that would flow from the infringement of an equivalent provision to that article in Law No 287/90.
58 The banks belonging to the ABI do not, in my opinion, hold a collective dominant position and I do not therefore consider that the NBU infringe Article 86. None the less, if such an infringement did exist, its consequences for individual contracts concluded between banks and customers pursuant to the NBU would be determined on the basis of national law. (49) The case for this approach is even stronger in relation to Article 86, because Article 86 does not contain a similar provision to Article 85(2).
59 Consequently, the effects of the incompatibility with Article 85 of general conditions such as those laid down in the ABI's NBU in relation to contracts for the opening of current-account credit facilities and general guarantee agreements, on individual contracts concluded by banks with customers, must be determined by national courts in accordance with the relevant provisions of national law.
Conclusion
60 Having regard to the foregoing considerations, I propose that the Court of Justice answer the questions referred to it for a preliminary ruling by the Tribunale di Genova as follows:
(1) General conditions with the characteristics of those laid down in the ABI's standard banking conditions for contracts for the opening of current-account credit facilities and general guarantee agreements are contrary to Article 85(1);
(2) Undertakings belonging to a professional association with the characteristics of the ABI do not hold a collective dominant position on the market such as to warrant the application of Article 86 to its uniform commercial practices;
(3) The effects of the incompatibility with Article 85 of general conditions, such as those laid down in the ABI's standard bank conditions for contracts for the opening of current-account credit facilities and general guarantee agreements, on individual contracts concluded by banks with customers must be determined by national courts in accordance with the relevant provisions of national law.
(1) - Article 1956 is worded as follows: `A guarantor of a future obligation is released from his liability if the creditor, without special authorisation from the guarantor, has granted credit to a third party, even though he knows that the latter's financial circumstances are such as to make it considerably more difficult to pay off the loan'. Law No 154/1992 on `banking transparency' added a second paragraph which declares to be invalid any `prior waiver of the availability of the release from liability'.
(2) - According to this article, `the guarantor shall remain liable even after the principal obligation has expired, provided that the creditor has, within six months, commenced proceedings against the debtor and has pursued them diligently'.
(3) - According to Article 1939 of the Civil Code, `the guarantee shall not be valid if the principal obligation is not valid, unless it is given in respect of an obligation undertaken by a person subject to an incapacity'.
(4) - Law No 154/92 of 17 February 1992, GURI No 45 of 24 February 1992.
(5) - Law No 287/90 of 10 October 1990, GURI No 240 of 13 October 1990.
(6) - Bolletino dell'Autorità Garante della Concorrenza e del Mercato, 19 December 1994, year IV, No 48, p. 75.
(7) - Case 172/80 Züchner v Bayerische Vereinsbank [1981] ECR 2021, paragraphs 7 and 8.
(8) - For an analysis of the Commission's practice in this field, see J.F. Bellis: `La banque et le droit communautaire de la concurrence', Mélanges Jean Pardon, Bruylant, Brussels, 1996, p. 1; J. Biancarelli: `L'application du droit communautaire de la concurrence au secteur financier (banque et assurance)', Gazette du Palais, 1991, p. 247; Ehlermann, C.D.: `L'huile et le sel: le secteur bancaire et le droit européen de la concurrence', Revue Trimestrielle de Droit Européen, 1993, p. 457; R. Greaves: EC Competition Law: Banking and Insurance Services, Chancery Law Publishing, London, 1992; L. Gyselen: `EU Antitrust Law in the Area of Financial Services - Capita Selecta for the Cautious Shaping of a Policy', Annual Proceedings of the Fordham Corporate Law Institute, 1996, p. 329 et seq.; B. Sousi-Roubi: Droit Bancaire Européen, Dalloz, Paris, 1995, pp. 333 to 378.
(9) - Commission Decision 85/77/EEC of 10 December 1984 relating to a proceeding under Article 85 of the EEC Treaty (IV/30.717 - Uniform Eurocheques) (OJ 1985 L 35, p. 43).
(10) - Commission Decision 92/212/EEC of 25 March 1992 relating to a proceeding under Article 85 of the EEC Treaty (IV/30.717-A - Eurocheque: Helsinki Agreement) (OJ 1992 L 95, p. 50).
(11) - Judgment of the Court of First Instance in Joined Cases T-39/92 and T-40/92 CB and Europay v Commission [1994] ECR II-49.
(12) - See B. Sousi-Roubi, op. cit., p. 346 et seq.; M. Dassesse, S. Isaacs, and G. Penn, EC Banking Law, Lloyds of London Press Ltd, London, 1994, p. 273 et seq.; M. Waelbroeck, and A. Frignani, Concurrence. Commentaire J. Mégret. Le Droit de la CE, vol. 4, Editions de l'Université de Bruxelles, Brussels, 1997, pp. 74 to 79.
(13) - Commission Decision 96/454/EC of 24 June 1996 relating to a proceeding under Article
85 of the EC Treaty and Article 53 of the EEA Agreement (IV/34.607 - Banque nationale de Paris - Dresdner Bank) (OJ 1996 L 188, p. 37).
(14) - Sousi-Roubi considers that the Commission's approach is misguided. In his opinion, it is wrong to use the term market in the case of interbank agreements of this kind because the banks of debit and credit customers come into contact with each other on an indirect and involuntary basis through the activities of their customers. As there is no market in the strict sense, it is wrong to talk of a restriction of competition (Sousi-Roubi, B.: op. cit., pp. 355 to 357). The same view is defended by Pombo, F.: `EU Antitrust Law in the Area of Financial Services', Annual Proceedings of the Fordham Corporate Law Institute, 1996, pp. 397 to 398. The Commission is starting to be more responsive to this argument, as is shown by its Notice 95/C 251/03 on the application of the EU competition rules to cross-border credit transfers (OJ 1995 C 251, p. 3).
(15) - Commission Decision 87/13/EEC of 11 December 1986 relating to a proceeding under Article 85 of the EEC Treaty (IV/261-A - Association Belge des Banques/Belgische Verenigung der Banken) (OJ 1987 L 7, p. 27).
(16) - Commission Decision 87/103/EEC of 12 December 1986 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.356 - ABI) (OJ 1987 L 43, p. 51).
(17) - This aspect of the Decision was upheld by the Court of First Instance in its judgment in CB and Europay v Commission, cited above.
(18) - Judgment in Case 267/86 Van Eycke v ASPA [1988] ECR 4769.
(19) - In particular, the Commission has taken the view that competition is not restricted by agreements between banks in a single Member State relating to opening hours, to a bank clearing system, to a joint clearing scheme which allows banks to make direct debits on their customers' accounts (Commission Decision 86/507/EEC of 30 September 1986 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.362 - Irish Banks' Standing Committee) (OJ 1986 L 295, p. 28)), and to the production of Eurocheques exclusively by undertakings authorised by the Members of the Eurocheque system (Uniform Eurocheques system), or by the agreement on foreign-exchange and/or non-resident account lira dealings (ABI
Decision).
(20) - See also the criticisms made by M. Dassesse, S. Isaacs, and G. Penn, op. cit., pp. 273
to 277.
(21) - Paragraph 46 of the ABI Decision, cited above, concerning the agreements drawn up by the ABI in respect of the uniform type of lira traveller's cheque and the service for the collection and/or acceptance of bills, documents, bank cheques and other instruments of credit in Italy.
(22) - Association Belge des Banques Decision, cited above, paragraph 39.
(23) - In Commission Decision 89/512/EEC of 19 July 1989 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.499 - Nederlandse Banken) (OJ 1989 L 253, p. 1), paragraph 58, the Commission also considers that safe-renting services are `domestic' and do not appreciably affect trade between Member States.
(24) - BNP - Dresdner Bank Decision, cited above, paragraph 15.
(25) - Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC (OJ 1989 L 386, p. 1).
(26) - The ABI Decision should be reconsidered in the light of this directive, according to A. Bertolotti, `Le norme bancarie uniformi (NBU) e le regole antitrust: una questione ancora aperta', Giurisprudenza Italiana, 1997, No 3 March, p. 170.
(27) - See, inter alia, the judgments in Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, and Case 45/85 Verband der Sachversicherer v Commission [1987] ECR 405.
(28) - Judgments in Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 173 and 174, and Züchner, cited above, paragraphs 13 and 14.
(29) - See in particular the judgments in Case 56/65 Société Technique Minière v Maschinenbau ULM [1966] ECR 235 et seq., in particular 249; Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299; Case 31/80 L'Oréal v De Nieuwe AMCK [1980] ECR 3775, paragraph 19; Case 42/84 Remia v Commission [1985] ECR 2545, paragraph 18; Verband der Sachversicherer v Commission, cited above, paragraph 39; and Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487.
(30) - See the Opinion of Advocate General Tesauro in Case C-250/92 Gottrup-Klim v Dansk Landbrugs Grovvareselskab AmbA [1994] ECR I-5641, paragraphs 15 and 16.
(31) - BAT and Reynolds v Commission, cited above, paragraphs 54 and 61, and the judgment of the Court of First Instance in Case T-19/91 Vichy v Commission [1992] ECR II-415, paragraph 59.
(32) - Case C-399/93 Oude Luttikhuis and Others v Coberco [1995] ECR I-4515, paragraph 10.
(33) - Case 5/69 Völk v Vervaecke [1969] ECR 295.
(34) - See footnote 9 above.
(35) - Judgments in Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 20; Van Landewyck v Commission, cited above, paragraph 170; and Société Technique Minière v Maschinenbau ULM, cited above. See also the judgment of the Court of First Instance in Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, paragraph 175.
(36) - Judgments in Case 22/71 Béguelin Import v SAGL Import-Export and Others [1971] ECR 949, paragraph 16; and Case 19/77 Miller v Commission [1978] ECR 131, paragraph 15.
(37) - Ferriere Nord v Commission, cited above, paragraph 19; and Miller v Commission, cited above, paragraph 15.
(38) - See M. Waelbroeck and A. Frignani, op. cit., pp. 206 and 207.
(39) - Case 8/72 Cementhandelaren v Commission [1972] ECR 977, paragraph 29; and Remia v Commission, cited above, paragraph 22. See also the judgments of the Court of First Instance in Case T-29/92 SPO and Others v Commission [1995] ECR II-289, paragraph 229; and
SCK and FNK v Commission, cited above, paragraph 179.
(40) - Case 73/74 Papiers Peints v Commission [1975] ECR 1491, paragraph 27.
(41) - M.A. Sánchez Miguel: `Préstamos, anticipos bancarios. Apertura de crédito', in García R. Villaverde (dir.): Contratos Bancarios, Civitas, Madrid, 1992, p. 160, says that the opening of a credit facility is the archetypal loan function and is `... the contract most used by businesses, which in turn generates substantial profits for banks through the heavy loan servicing costs which it involves ...'.
(42) - Case C-393/92 Almelo [1994] ECR I-1477, paragraph 42; Case C-96/94 Centro Servizi Spediporto v Spedizioni Marittima del Golfo [1995] ECR I-2883, paragraphs 32 and 33; and Joined Cases C-140/94, C-141/94 and C-142/94 DIP and Others v Commune di Bassano del Grappa and Commune di Chioggia [1995] ECR I-3257, paragraphs 25 and 26. See also the judgments of the Court of First Instance in Joined Cases T-68/89, T-77/89 and T-78/89 SIV v Commission [1992] ECR II-1403, paragraph 358; and Joined Cases T-24/93, T-25/93, T-26/93 and T-28/93 Compagnie Maritime Belge Transports and Others v Commission [1996] ECR II-1201, paragraph 60.
(43) - DIP and Others v Commune di Bassano del Grappa and Commune di Chioggia, cited above, paragraph 26; and Almelo, cited above, paragraph 42.
(44) - Judgments of the Court of First Instance in SIV v Commission, cited above, paragraph 360; and Compagnie Maritime Belge Transports and Others v Commission, cited above, paragraph 67.
(45) - Judgments of the Court of First Instance in SIV and Others v Commission, cited above, paragraph 359; and Compagnie Maritime Belge Transports and Others v Commission, cited above, paragraph 65.
(46) - Case 48/72 Brasserie de Haecht v Wilkin-Janssen [1973] ECR 77, paragraph 4.
(47) - Case 10/86 VAG France v Magne [1986] ECR 4071, paragraphs 14 and 15; Case 319/82 Société de Vente de Ciments et Bétons v Kerpen & Kerpen [1983] ECR 4173, paragraphs 11 and 12; and Société Technique Minière v Maschinenbau ULM, cited above, ECR 337.
(48) - See, inter alia, Case C-90/94 Haar Petroleum v benrå Havn and Others [1997] ECR I-4085, paragraph 46; Case C-242/95 GT-Link v DSB [1997] ECR I-4449, paragraph 27; Case C-177/95 Ebony Maritime and Loten Navigation v Prefetto della Provincia di Brindisi and Others [1997] ECR I-1111, paragraph 35; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 90; and Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599, paragraph 12.
(49) - Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekämpfung unlauteren Wettbewerbs [1989] ECR 803, paragraph 45.