Asnef-Equifax, Servicios de Información sobre Solvencia y Crédito, SL v Asociación de Usuarios de Servicios Bancarios (Ausbanc).
Date: 2006-11-23
14. At the outset, it must be observed that 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 (see Case C-10/92 Balocchi  [1993] ECR I-5105, paragraphs 16 and 17, and Case C-435/97 WWF and Others  [1999] ECR I-5613, paragraph 33).
15. Next, it must be borne in mind that, in accordance with settled case-law, 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 (see, in particular, Case C-415/93 Bosman  [1995] ECR I-4921, paragraph 59, and Joined Cases C-295/04 to C-298/04 Manfredi and Others  [2006] ECR I-0000, paragraph 26).
16. However, the Court has also stated that, in exceptional circumstances, it must examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction ( Manfredi , paragraph 27). 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 (Case C‑144/04 Mangold  [2005] ECR I‑9981, paragraph 36).
17. It is settled case-law that 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 (see, inter alia, Bosman , paragraph 61, and Case C-344/04 IATA and ELFAA  [2006] ECR I‑403, paragraph 24).
20. It is not impossible for the same factual situation to fall within the scope of both Community law and national competition law, even if they consider the practices concerned from different points of view (see, to that effect, Case C‑7/97 Bronner  [1998] ECR I‑7791, paragraph 19 and the case-law cited).
23. Finally, as regards the extent of the indications in the decision for referral relating to a possible effect on trade between Member States, it must be borne in mind that the need for precision with regard to the factual and legislative context applies in particular in the area of competition, which is characterised by complex factual and legal situations (see Case C-176/96 Lehtonen and Castors Braine  [2000] ECR I‑2681, paragraph 22, and also the order in Case C-190/02 Viacom  [2002] ECR I‑8287, paragraph 22).
32. In effect, while that provision distinguishes between ‘concerted practices’, ‘agreements between undertakings’ and ‘decisions by associations of undertakings’, the aim is to have the prohibitions of that article catch different forms of coordination and collusion between undertakings (see Case C-49/92 P Commission  v Anic Partecipazioni  [1999] ECR I‑4125, paragraph 112). Accordingly, in the present case, a precise characterisation of the nature of the cooperation at issue in the main proceedings is not liable to alter the legal analysis to be carried out under Article 81 EC.
The effect on trade between Member States
33. 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 (see Manfredi and Others , paragraph 41).
34. 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 (see Case 42/84 Remia and Others  v Commission  [1985] ECR 2545, paragraph 22, and Case C‑475/99 Ambulanz Glöckner  [2001] ECR I‑8089, paragraph 48). Moreover, that influence must not be insignificant (Case 22/71 Béguelin Import  [1971] ECR 949, paragraph 16; Case C‑306/96 Javico  [1998] ECR I-1983, paragraph 16; and Manfredi and Others , paragraph 42).
35. Thus, an effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive (Joined Cases C‑215/96 and C‑216/96 Bagnasco and Others  [1999] ECR I‑135, paragraph 47, and Case C‑359/01 P British Sugar  v Commission  [2004] ECR I‑4933, paragraph 27). 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 (see, to that effect, Case C‑393/92 Almelo  [1994] ECR I‑1477, paragraph 37).
36. 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 (see Manfredi and Others , paragraph 44).
37. On the other hand, the Court has already held that 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 (see Case 246/86 Belasco and Others  v Commission  [1989] ECR 2117, paragraph 33). 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 EC Treaty is designed to bring about (Case 8/72 Vereeniging van Cementhandelaren  v Commission  [1972] ECR 977, paragraph 29, and Manfredi and Others , paragraph 45).
40. However, when giving a preliminary ruling the Court may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, inter alia, Case C-79/01 Payroll and Others  [2002] ECR I‑8923, paragraph 29, and Manfredi and Others , paragraph 48).
43. According to settled case-law, and as follows from paragraph 34 of this judgment, Article 81(1) EC does not require that the arrangements referred to in that provision have actually affected trade between Member States, but it does require that it be established that those arrangements are capable of having that effect (see, to that effect, Case 19/77 Miller  v Commission  [1978] ECR 131, paragraph 15; Case C‑219/95 P Ferriere Nord  v Commission  [1997] ECR I-4411, paragraph 19; and Bagnasco and Others , paragraph 48).
49. In that regard, it should be emphasised that the appraisal of the effects of agreements or practices in the light of Article 81 EC entails the need to take into consideration the actual context to which they belong, in particular the economic and legal context in which the undertakings concerned operate, the nature of the goods or services affected, as well as the real conditions of the functioning and the structure of the market or markets in question (see, to that effect, Case C‑250/92 DLG  [1994] ECR I‑5641, paragraph 31; Case C‑399/93 Oude Luttikhuis and Others  [1995] ECR I‑4515, paragraph 10; and Javico , paragraph 22).
50. However, while Article 81(1) EC does not restrict such an assessment to actual effects alone, as that assessment must also take account of the potential effects of the agreement or practice in question on competition within the common market, an agreement will, however, fall outside the prohibition in Article 81 EC if it has only an insignificant effect on the market (Case 5/69 Völk  v Vervaecke  [1969] ECR 295, paragraph 7; John Deere  v Commission , paragraph 77; and Bagnasco and Others , paragraph 34).
51. According to the case-law on agreements on the exchange of information, such agreements are incompatible with the rules on competition if they reduce or remove the degree of uncertainty as to the operation of the market in question with the result that competition between undertakings is restricted ( John Deere  v Commission , paragraph 90, and Case C‑194/99 P Thyssen Stahl  v Commission  [2003] ECR I‑10821, paragraph 81).
52. In effect, 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, according to that case-law, 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 (see Commission  v Anic Partecipazioni , paragraphs 116 and 117, as well as the case-law cited).
53. 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 ( John Deere  v Commission , paragraph 87; Commission  v Anic Partecipazioni , paragraph 117; and Thyssen Stahl  v Commission , paragraph 83).
58. In that regard, first of all, if supply on a market is highly concentrated, the exchange of certain information may, according in particular to the type of information exchanged, be liable to enable undertakings to be aware of the market position and commercial strategy of their competitors, thus distorting rivalry on the market and increasing the probability of collusion, or even facilitating it. On the other hand, if supply is fragmented, the dissemination and exchange of information between competitors may be neutral, or even positive, for the competitive nature of the market (see, to that effect, Thyssen Stahl  v Commission , paragraphs 84 and 86). In the present case, it is common ground, as may be seen from paragraph 10 of this judgment, that the referring court premissed its reference for a preliminary ruling on the existence of ‘a fragmented market’, which it is for that court to verify.
65. The applicability of the exemption provided for in Article 81(3) EC is subject to the four cumulative conditions laid down in that provision. First, the arrangement concerned must contribute to improving the production or distribution of the goods or services in question, or to promoting technical or economic progress; secondly, consumers must be allowed a fair share of the resulting benefit; thirdly, it must not impose any non-essential restrictions on the participating undertakings; and, fourthly, it must not afford them the possibility of eliminating competition in respect of a substantial part of the products or services in question (see, to that effect, Joined Cases 43/82 and 63/82 VBVB and VBBB  v Commission  [1984] ECR 19, paragraph 61, as well as Remia and Others  v Commission , paragraph 38).
70. Under Article 81(3) EC, it is the beneficial nature of the effect on all consumers in the relevant markets that must be taken into consideration, not the effect on each member of that category of consumers.