Allianz Hungária Biztosító Zrt. and Others v Gazdasági Versenyhivatal.
Date: 2013-03-14
19. In that regard, it must be recalled that, under Article 267 TFEU, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and acts of the EU institutions. In the context of cooperation between the Court and the national courts, established by Article 267 TFEU, it is for the national courts alone to assess, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, obliged to give a ruling (see Case C‑482/10 Cicala  [2011] ECR I‑0000, paragraphs 15 and 16 and the case-law cited).
20. Applying that case-law, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning European Union law in situations where the facts of the cases being considered by the national courts were outside the direct scope of European Union law but where those provisions had been rendered applicable by domestic law, which adopted, for internal situations, the same approach as that provided for under European Union law. In those circumstances, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from European Union law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, to that effect, inter alia, Joined Cases C‑297/88 and C‑197/89 Dzodzi  [1990] ECR I‑3763, paragraph 37; Case C‑28/95 Leur-Bloem  [1997] ECR I‑4161, paragraphs 27 and 32; Case C‑1/99 Kofisa Italia  [2001] ECR I‑207, paragraph 32; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑11987, paragraph 19; Case C‑280/06 ETI and Others  [2007] ECR I‑10893, paragraph 21; Case C‑352/08 Modehuis A. Zwijnenburg  [2010] ECR I‑4303, paragraph 33; and Case C‑603/10 Pelati  [2012] ECR I‑0000, paragraph 18).
21. Concerning this request for a preliminary ruling, it should be noted that Paragraph 11(1) and (2) of the Tpvt faithfully reproduces Article 101(1) TFEU. It is clearly apparent, moreover, from the preamble to and the explanatory memorandum for the Tpvt that the Hungarian legislature sought to harmonise domestic competition law with that of the European Union and that, in particular, Paragraph 11(1) aims to prohibit ‘in application of Article 85 of the EEC Treaty’, now Article 101 TFEU, ‘everything which distorts competition’. It is therefore not contested that that legislature decided to treat internal situations and situations governed by European Union law in the same way.
26. According to settled case-law, the Court may refuse to rule on a question submitted by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its subject-matter, where the problem is hypothetical, or where 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, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 39; Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 25; and Case C‑180/11 Bericap Záródástechnikai  [2012] ECR I‑0000, paragraph 58).
27. With regard, more particularly, to the information that must be provided to the Court in an order for reference, that information does not serve only to enable the Court to provide answers which will be of use to the national court; it must also enable the governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. For those purposes, it is necessary that the national court should define the factual and legislative context of the questions which it is asking or, at the very least, explain the factual circumstances on which those questions are based (see Case C‑25/11 Varzim Sol  [2012] ECR I‑0000, paragraph 30 and the case-law cited).
33. It must first of all be recalled that, to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement must have ‘as [its] object or effect the prevention, restriction or distortion of competition within the internal market’. According to established case-law since the judgment in Case 56/65 LTM  [1966] ECR 337, the alternative nature of that requirement, indicated by the conjunction ‘or’, leads, first of all, to the need to consider the precise object of the agreement in the economic context in which it is to be applied.
34. Accordingly, where the anti-competitive object of the agreement is established it is not necessary to examine its effects on competition. Where, however, the analysis of the content of the agreement does not reveal a sufficient degree of harm to competition, the effects of the agreement should then 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 (see Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraphs 28 and 30; Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others  v Commission and Others  [2009] ECR I‑9291, paragraph 55; Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑0000, paragraph 135; and Case C‑439/09 Pierre Fabre Dermo‑Cosmétique  [2011] ECR I‑0000, paragraph 34).
35. The distinction between ‘infringements by object’ and ‘infringements by effect’ arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition (see Case C‑209/07 Beef Industry Development Society and Barry Brothers  [2008] ECR I‑8637, paragraph 17; T-Mobile Netherlands and Others , paragraph 29; and Case C‑226/11 Expedia  [2012] ECR I‑0000, paragraph 36).
36. In order to determine whether an agreement involves a restriction of competition ‘by object’, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part (see GlaxoSmithKline Services and Others  v Commission and Others , paragraph 58; Football Association Premier League and Others , paragraph 136; and Pierre Fabre Dermo-Cosmétique , paragraph 35). When determining that context, it is also appropriate 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 Expedia , paragraph 21 and the case-law cited).
37. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement 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, to that effect, GlaxoSmithKline Services and Others  v Commission and Others , paragraph 58 and the case-law cited).
38. The Court has, moreover, already held that, in order for the agreement to be regarded as having an anti-competitive object, it is sufficient that it has the potential to have a negative impact on competition, that is to say, that it be capable in an individual case of resulting in the prevention, restriction or distortion of competition within the internal market. Whether and to what extent, in fact, such an effect results can only be of relevance for determining the amount of any fine and assessing any claim for damages (see T-Mobile Netherlands and Others , paragraph 31).
42. Moreover, it is necessary to take account of the fact that such an agreement is likely to affect not only one, but two markets, in this case those of car insurance and car repair services, and that its object must be determined with respect to the two markets concerned.
43. In that regard, it must, first, be noted that, in contrast to the view apparently held by Allianz and Generali, the fact that both cases concern vertical relationships in no way excludes the possibility that the agreement at issue in the main proceedings constitutes a restriction of competition ‘by object’. While vertical agreements are, by their nature, often less damaging to competition than horizontal agreements, they can, nevertheless, in some cases, also have a particularly significant restrictive potential. The Court has thus already held on several occasions that a vertical agreement had as its object the restriction of competition (see Joined Cases 56/64 and 58/64 Consten and Grundig  v Commission  [1966] ECR 429; Case 19/77 Miller International Schallplatten  v Commission  [1978] ECR 131; Case 243/83 Binon  [1985] ECR 2015; and Pierre Fabre Dermo-Cosmétique ).
48. Furthermore, those agreements would also amount to a restriction of competition by object in the event that the referring court found that it is likely that, having regard to the economic context, competition on that market would be eliminated or seriously weakened following the conclusion of those agreements. In order to determine the likelihood of such a result, that court should in particular take into consideration the structure of that market, the existence of alternative distribution channels and their respective importance and the market power of the companies concerned.
49. Finally, with regard to determining the object of the agreements at issue in the main proceedings with respect to the car repair service market, it is necessary to take account of the fact that those agreements appear to have been concluded on the basis of ‘recommended prices’ established in the three decisions taken by GÉMOSZ from 2003 to 2005. In that context, it is for the referring court to determine the exact nature and scope of those decisions (see, to that effect, Case C‑260/07 Pedro IV Servicios  [2009] ECR I‑2437, paragraphs 78 and 79).