Groupement des cartes bancaires (CB) v European Commission.
Date: 2014-09-11
21. In addition, the appellant considers that the General Court distorted the evidence when concluding, in paragraphs 127, 170 and 178 to 183 of the judgment under appeal, that a number of obstacles made it very difficult in practice for a new entrant to expand its acquisition activities, relying principally on the statements made by the Commission and rejecting the evidence to the contrary without any valid explanation.
41. It must be noted at the outset that it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, secondly, to assess those facts. However, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, in particular, judgment in Alliance One International and Standard Commercial Tobacco  v Commission , C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 84 and the case-law cited).
42. In addition, it must be noted that, in accordance with the rules of the EU and FEU Treaties, relating to the division of powers between the Commission and the Courts of the European Union, it is for the Commission, subject to review by the General Court and the Court of Justice, to ensure application of the principles laid down in Articles 81 EC and 82 EC (see, to that effect, in particular, judgment in Masterfoods and HB , C‑344/98, EU:C:2000:689, paragraph 46).
43. It must also be noted that the principle of effective judicial protection is a general principle of EU law to which expression is now given by Article 47 of the Charter of Fundamental Rights of the European Union (see, to that effect, in particular, judgment in Chalkor  v Commission , C‑386/10 P, EU:C:2011:815, paragraph 52 and the case-law cited).
44. Consequently, it is apparent from the EU case-law that, when an action is brought before it under Article 263 TFEU for the annulment of a decision applying Article 81(1) EC, the General Court must generally undertake, on the basis of the evidence adduced by the applicant in support of the pleas in law put forward, a full review of whether or not the conditions for applying that provision are met (see, to that effect, judgment in Remia and Others  v Commission , 42/84, EU:C:1985:327, paragraph 34; judgment in Chalkor  v Commission  (EU:C:2011:815), paragraphs 54 and 62; and judgment in Otis and Others , C‑199/11, EU:C:2012:684, paragraph 59). The General Court must also establish that the Commission has stated reasons for its decision (see, to that effect, judgment in Chalkor  v Commission  (EU:C:2011:815), paragraph 61 and the case‑law cited, and judgment in Otis and Others  (EU:C:2012:684), paragraph 60).
45. In carrying out such a review, the General Court cannot use the margin of assessment which the Commission enjoys by virtue of the role assigned to it in relation to competition policy by the EU and FEU Treaties, as a basis for dispensing with an in-depth review of the law and of the facts (see, to that effect, judgment in Chalkor  v Commission  (EU:C:2011:815), paragraph 62, and judgment in Otis and Others  (EU:C:2012:684), paragraph 61).
46. In particular, although the Commission has, in accordance with that role, a margin of assessment with regard to economic matters, in particular in the context of complex economic assessments, that does not mean, as is apparent from the preceding paragraph, that the General Court must refrain from reviewing the Commission’s legal classification of information of an economic nature. Although the General Court must not substitute its own economic assessment for that of the Commission, which is institutionally responsible for making those assessments (see, to that effect, in particular, judgment in Bertelsmann and Sony Corporation of America v Impala , C‑413/06 P, EU:C:2008:392, paragraph 145, and judgment in Frucona Košice  v Commission , C‑73/11 P, EU:C:2013:32, paragraph 89 and the case-law cited), it is apparent from now well-settled case-law that not only must the EU judicature establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, to that effect, in particular, judgment in Chalkor  v Commission  (EU:C:2011:815), paragraph 54 and the case-law cited, and judgment in Otis and Others  (EU:C:2012:684), paragraph 59).
49. In that regard, it is apparent from the Court’s case-law that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (see, to that effect, judgment in LTM , 56/65, EU:C:1966:38, paragraphs 359 and 360; judgment in BIDS , paragraph 15, and judgment in Allianz Hungária Biztosító and Others , C‑32/11, EU:C:2013:160, paragraph 34 and the case-law cited).
50. That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (see, to that effect, in particular, judgment in Allianz Hungária Biztosító and Others  (EU:C:2013:160) paragraph 35 and the case-law cited).
51. Consequently, it is established that 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 (see, to that effect, in particular, judgment in Clair , 123/83, EU:C:1985:33, paragraph 22). Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers.
52. 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 (judgment in Allianz Hungária Biztosító and Others  (EU:C:2013:160), paragraph 34 and the case-law cited).
53. According to the case-law of the Court, 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’ within the meaning of Article 81(1) EC, 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 (see, to that effect, judgment in Allianz Hungária Biztosító and Others  (EU:C:2013:160), paragraph 36 and the case-law cited).
54. 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 (see judgment in Allianz Hungária Biztosító and Others  (EU:C:2013:160), paragraph 37 and the case-law cited).
57. First, in paragraph 125 of the judgment under appeal, when the General Court defined the concept of the restriction of competition ‘by object’ within the meaning of that provision, it did not refer to the settled case-law of the Court of Justice mentioned in paragraphs 49 to 52 of the present judgment, thereby failing to have regard to the fact that the essential legal criterion for ascertaining whether coordination between undertakings involves such a restriction of competition ‘by object’ is the finding that such coordination reveals in itself a sufficient degree of harm to competition.
58. Secondly, in the light of that case-law, the General Court erred in finding, in paragraph 124 of the judgment under appeal, and then in paragraph 146 of that judgment, 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.
69. However, although the General Court thereby set 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 in no way explained — contrary to the requirements of the case-law referred to in paragraphs 49 and 50 above — 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, there being no analysis of that point in the judgment under appeal.
79. That must be the case, in particular, when that aspect is the taking into account of interactions between the relevant market and a different related market (see, by analogy, judgment in Delimitis , C‑234/89, EU:C:1991:91, paragraphs 17 to 23, and judgment in Allianz Hungária Biztosító and Others  (EU:C:2013:160), paragraph 42) and, all the more so, when, as in the present case, there are interactions between the two facets of a two-sided system.
88. Since the intentions of the Grouping could not in themselves, in accordance with the case-law referred to in paragraph 54 above, be sufficient to establish the existence of an anti-competitive object and the General Court moreover itself stated, in paragraphs 134, 136 and 267 of the judgment under appeal, that those intentions had been analysed as additional confirmation only, its findings in that regard, in particular, in paragraphs 251 to 266 of that judgment, cannot justify such a characterisation and there is no need to examine the arguments put forward by the appellant on that point.