MasterCard Inc. and Others v European Commission.
Date: 2014-09-11
39. It is clear from the case-law of the Court of Justice that the ‘summary of the pleas in law’ which must be stated in any application, as provided for by those articles, means that the application must specify the nature of the grounds on which the application is based (see judgments in Fives Lille Cail and Others  v High Authority , 19/60, 21/60, 2/61 and 3/61, EU:C:1961:30, 295, and Grifoni  v EAEC , C‑330/88, EU:C:1991:95, paragraph 18).
40. Thus, in particular, it is necessary, for an action before the General Court to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (see, to that effect, judgments in Dansk Rørindustri and Others  v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 94 to 100, and Versalis v Commission , C‑511/11 P, EU:C:2013:386, paragraph 115).
60. The Court must also uphold the objection of inadmissibility raised by the United Kingdom, set out in paragraph 55 of the present judgment. In that regard, it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice 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, judgments in General Motors  v Commission , C‑551/03 P, EU:C:2006:229, paragraph 51, and Evonik Degussa  v Commission , C‑266/06 P, EU:C:2008:295, paragraph 72). It follows from this that, in so far as the appellants are, by the argument set out in paragraph 53 of the present judgment, attempting to obtain from the Court of Justice a reassessment of the facts found by the General Court, their argument must be rejected as inadmissible.
62. Without prejudice to the right of economic operators to adapt themselves intelligently, but independently, to the existing or anticipated conduct of their competitors (see judgments in Suiker Unie and Others  v Commission , 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraph 174; Ahlström Osakeyhtiö and Others  v Commission , C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraph 71; and Asnef-Equifax and Administración del Estado , C‑238/05, EU:C:2006:734, paragraph 53 and the case-law cited), Article 81 EC catches all forms of cooperation and of collusion between undertakings, including by means of a collective structure or a common body, such as an association, which are calculated to produce the results which that provision aims to suppress (see, to that effect, judgments in Nederlandse Vereniging voor de fruit en groentenimporthandel and Frubo  v Commission , 71/74, EU:C:1975:61, paragraph 30; van Landewyck and Others  v Commission , 209/78 to 215/78 and 218/78, EU:C:1980:248, paragraph 88; and Eurofer  v Commission , C‑179/99 P, EU:C:2003:525, paragraph 23).
63. Thus, it is settled case-law that, although Article 81 EC distinguishes between ‘concerted practice’, ‘agreements between undertakings’ and ‘decisions by associations of undertakings’, the aim is to have the prohibitions of that article catch different forms of coordination between undertakings of their conduct on the market (see, in particular, judgments in Imperial Chemical Industries  v Commission , 48/69, EU:C:1972:70, paragraph 64; Commission  v Anic Partecipazioni , C‑49/92 P, EU:C:1999:356, paragraph 112; and Asnef-Equifax and Administración del Estado , EU:C:2006:734, paragraph 32) and thus to prevent undertakings from being able to evade the rules on competition on account simply of the form in which they coordinate that conduct.
73. As to the reference, in paragraph 251 of the judgment under appeal, to the judgment in Verband der Sachversicherer  v Commission  (EU:C:1987:34, paragraph 29), it should be noted that that reference is intended simply to respond to the criticism, reproduced in paragraph 239 of the judgment under appeal, that the criterion of the existence of a commonality of interests between MasterCard and the banks was not based on any legal authority. Contrary to what is suggested by the appellants, in recalling in that context that ‘it follows from the case-law of the Court of Justice that the existence of a commonality of interests or a common interest is a relevant factor for the purposes of assessing whether there is a decision by an association of undertakings within the meaning of Article 81(1) EC’, the General Court did not seek to impose a general criterion, much less an exclusive criterion.
74. As regards, in the second place, the arguments summarised in paragraph 50 of the present judgment, it is admittedly apparent from the case-law of the Court that a decision taken by a body having regulatory powers within a given sector might fall outside the scope of Article 81 EC where that body is composed of a majority of representatives of the public authorities and where, on taking a decision, it must observe various public-interest criteria (see, in particular, judgment in Pavlov and Others , C‑180/98 to C‑184/98, EU:C:2000:428, paragraph 87 and the case-law cited).
89. It is apparent from the case-law of the Court of Justice that if a given operation or activity is not covered by the prohibition rule laid down in Article 81(1) EC, owing to its neutrality or positive effect in terms of competition, a restriction of the commercial autonomy of one or more of the participants in that operation or activity is not covered by that prohibition rule either if that restriction is objectively necessary to the implementation of that operation or that activity and proportionate to the objectives of one or the other (see to that effect, in particular, judgments in Remia and Others  v Commission , 42/84, EU:C:1985:327, paragraphs 19 and 20; Pronuptia de Paris , 161/84, EU:C:1986:41, paragraphs 15 to 17; DLG , C‑250/92, EU:C:1994:413, paragraph 35, and Oude Luttikhuis and Others , C‑399/93, EU:C:1995:434, paragraphs 12 to 15).
90. Where it is not possible to dissociate such a restriction from the main operation or activity without jeopardising its existence and aims, it is necessary to examine the compatibility of that restriction with Article 81 EC in conjunction with the compatibility of the main operation or activity to which it is ancillary, even though, taken in isolation, such a restriction may appear on the face of it to be covered by the prohibition rule in Article 81(1) EC.
91. Where it is a matter of determining whether an anti-competitive restriction can escape the prohibition laid down in Article 81(1) EC because it is ancillary to a main operation that is not anti-competitive in nature, it is necessary to inquire whether that operation would be impossible to carry out in the absence of the restriction in question. Contrary to what the appellants claim, the fact that that operation is simply more difficult to implement or even less profitable without the restriction concerned cannot be deemed to give that restriction the ‘objective necessity’ required in order for it to be classified as ancillary. Such an interpretation would effectively extend that concept to restrictions which are not strictly indispensable to the implementation of the main operation. Such an outcome would undermine the effectiveness of the prohibition laid down in Article 81(1) EC.
112. As regards the appellants’ argument, set out in paragraph 96 of the present judgment, concerning a failure to state reasons, it must be held that that argument is unfounded. As is apparent from paragraphs 95 and 96 of the judgment under appeal, the General Court, in its definitive assessment of the facts, held that the Commission was fully entitled to conclude that the prohibition of ex post pricing was less restrictive of competition as it does not set a minimum price level on either side of the scheme, thus stating to the requisite legal standard the reasons for the conclusion set out in paragraph 99 of that judgment. In that regard, it should be borne in mind that the obligation to state reasons which applies to the General Court does not require that court to provide an account that follows exhaustively and one by one all the reasoning articulated by the parties to the case (judgment in Aalborg Portland and Others  v Commission , C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 372).
113. Lastly, it must be stated that, as the Commission points out, the appellants’ arguments to the effect that the General Court wrongly substituted its own assessment for that of the Commission when examining the objective necessity of the MIF amount, in fact, to a challenge in respect of the General Court’s assessment of the evidence. On the grounds set out in paragraphs 94 to 120 of the judgment under appeal, at the end of a definitive appraisal of the facts of the case, which does not fall within the jurisdiction of the Court of Justice in the context of an appeal, the General Court held that ‘the Commission was legitimately able to conclude that the MIF was not objectively necessary for the operation of the MasterCard system’. Those arguments must therefore be rejected as inadmissible.
148. Furthermore, in so far as RBS complains, by its argument set out in paragraph 128 of the present judgment, that the General Court failed to carry out a certain analysis, it must be borne in mind that where an appellant submits that the General Court did not respond to a plea, its submission cannot be challenged, in terms of the admissibility of the ground of appeal, on the basis that it does not cite any passage or part of the contested judgment as the specific object of its argument since, by definition, it is a failure to respond that is being alleged (see judgment in Limburgse Vinyl Maatschappij and Others  v Commission , C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 423).
151. It is apparent, however, from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the latter’s Rules of Procedure in force on the date on which LBG’s cross-appeal was brought, that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, judgments in Limburgse Vinyl Maatschappij and Others  v Commission , EU:C:2002:582, paragraphs 497 and 618, and EFIM  v Commission , C‑56/12 P, EU:C:2013:575, paragraph 21 and the case-law cited). An appeal or a plea which is too obscure for a response to be given does not satisfy those requirements and must be declared inadmissible (see, in particular, judgments in Thyssen Stahl  v Commission , C‑194/99 P, EU:C:2003:527, paragraphs 101 and 106; Schindler Holding and Others  v Commission , C‑501/11 P, EU:C:2013:522, paragraphs 43 to 45; and EFIM  v Commission , EU:C:2013:575, paragraph 21).
155. As regards the extent of judicial review, it is apparent from EU case-law that where the General Court is seised, in accordance with Article 263 TFEU, of an action for annulment of a decision applying Article 81(1) EC, the General Court must as a general rule undertake, on the basis of the evidence adduced by the applicant in support of the pleas in law put forward, a full review of the question whether or not the conditions for the application of that provision are met (see, to that effect, judgments in Remia and Others v Commission , EU:C:1985:327, paragraph 34; Chalkor v Commission , C‑386/10 P, EU:C:2011:815, paragraphs 54 and 62; and Otis and Others , C‑199/11, EU:C:2012:684, paragraph 59). The General Court must also establish of its own motion that the Commission has stated reasons for its decision (see, to that effect, judgments in Chalkor v Commission , EU:C:2011:815, paragraph 61 and the case-law cited, and Otis and Others , EU:C:2012:684, paragraph 60).
156. In carrying out such a review, the General Court cannot use the Commission’s margin of discretion, by virtue of the role assigned to it in competition policy by the EU and FEU Treaties, as a basis for dispensing with the conduct of an in-depth review of the law and of the facts (see, to that effect, judgments in Chalkor  v Commission , EU:C:2011:815, paragraph 62, and Otis and Others , EU:C:2012:684, paragraph 61).
161. As regards RBS’s criticism, summarised in paragraph 128 of that judgment, that, in assessing whether a decision has a restrictive effect on competition, the Commission should have considered what the actual ‘counterfactual hypothesis’ would have been in the absence of the MIF, it should be noted that the Court of Justice has repeatedly held that in order to determine whether an agreement is to be considered to be prohibited by reason of the distortion of competition which is its effect, the competition in question should be assessed within the actual context in which it would occur in the absence of the agreement in dispute (see judgments in LTM , 56/65, EU:C:1966:38, 250; Béguelin Import , 22/71, EU:C:1971:113, paragraphs 16 and 17; Lancôme and Cosparfrance Nederland , 99/79, EU:C:1980:193, paragraph 26; L’Oréal , 31/80, EU:C:1980:289, paragraph 19; ETA Fabriques d’Ébauches , 31/85, EU:C:1985:494, paragraph 11; Bagnasco and Others , C‑215/96 and C‑216/96, EU:C:1999:12, paragraph 33 and the case-law cited; and also General Motors  v Commission , EU:C:2006:229, paragraph 72). As the General Court rightly held, in paragraph 128 of the judgment under appeal, the same applies in the case of a decision of an association of undertakings within the meaning of Article 81 EC.
165. In that regard, the Court of Justice has already had occasion to point out that, when appraising the effects of coordination between undertakings in the light of Article 81 EC, it is necessary to take into consideration the actual context in which the relevant coordination arrangements are situated, 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, in particular, judgments in Delimitis , C‑234/89, EU:C:1991:91, paragraphs 19 to 22; Oude Luttikhuis and Others , EU:C:1995:434, paragraph 10; Asnef-Equifax and Administración del Estado , EU:C:2006:734, paragraph 49 and the case-law cited; and Erste Group Bank and Others  v Commission , C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P, EU:C:2009:576, paragraph 54).
170. It should be noted, however, that if the grounds of a decision of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such infringement is not one that should bring about the annulment of that decision and it is appropriate to carry out a substitution of grounds (see, to that effect, judgments in Lestelle  v Commission , C‑30/91 P, EU:C:1992:252, paragraph 28, and FIAMM and Others  v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 187 and the case-law cited).
176. As to the argument, summarised in paragraph 140 of the present judgment, by which LBG accuses the General Court of having failed to recognise the importance of constraints from other systems, it is sufficient to note that, in paragraph 137 of the judgment under appeal, the General Court expressly found that the Commission was right to have taken inter-system competition into account in its analysis of the effects of the MIF. Based as it is on an erroneous interpretation of the judgment under appeal, that argument must therefore be rejected (see, to that effect, judgment in Ojha  v Commission , C‑294/95 P, EU:C:1996:434, paragraphs 48 and 49).
179. In those circumstances, the economic and legal context of the coordination concerned includes, as the appellants, RBS and LBG maintain, the two-sided nature of MasterCard’s open payment system, particularly since it is undisputed that there is interaction between the two sides of that system (see, by analogy, judgments in Delimitis , EU:C:1991:91, paragraphs 17 to 23, and Allianz Hungária Biztosító and Others , C‑32/11, EU:C:2013:160, paragraph 42).
184. In that regard, it is apparent from the case-law of the Court of Justice that certain types of coordination between undertakings reveal a sufficient degree of harm to competition for the examination of their effects to be considered unnecessary (see to that effect, in particular, judgments in LTM , EU:C:1966:38, 249; Beef Industry Development Society and Barry Brothers , C‑209/07, EU:C:2008:643, paragraph 15; and Allianz Hungária Biztosító and Others , EU:C:2013:160, paragraph 34 and the case-law cited).
185. That case-law arises from the fact that certain forms of coordination between undertakings can be regarded, by their very nature, as being injurious 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).
187. In those circumstances, contrary to what is suggested by the Commission, mere suppositions or assertions that the anti-competitive effects of the MIF are ‘obvious’ cannot therefore, on the basis of the case-law set out in paragraph 184 of the present judgment, be relied upon (see to that effect, in particular, judgment in Compagnie royale asturienne des mines and Rheinzink  v Commission , 29/83 and 30/83, EU:C:1984:130, paragraphs 16 and 20).
188. As regards the arguments with which paragraphs 131, 139 and 142 of the present judgment are concerned, which intersect to a certain extent with RBS’s argument set out in paragraph 129 of the present judgment, it must be observed that the obligation to state the reasons on which a judgment is based arises under Article 36 of the Statute of the Court of Justice, which applies to the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 81 of the Rules of Procedure of the General Court (see, in particular, judgment in Deutsche Telekom  v Commission , C‑280/08 P, EU:C:2010:603, paragraph 135).
189. It has consistently been held that the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (see, in particular, judgments in France Télécom  v Commission , C‑202/07 P, EU:C:2009:214, paragraph 29, and Ziegler  v Commission , C‑439/11 P, EU:C:2013:513, paragraph 81). As has already been stated in paragraph 112 of the present judgment, the obligation to state reasons does not, however, require the General Court to provide an account that follows exhaustively and one by one all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, in particular, judgment in Ziegler  v Commission , EU:C:2013:513, paragraph 82 and the case-law cited).
216. That requirement is not satisfied by an appeal confined to repeating or reproducing word for word the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by that court. In so far as such an appeal does not contain any arguments specifically contesting the judgment appealed against, it amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which, under Article 58 of the Statute of the Court of Justice, the latter does not have jurisdiction to undertake (see judgment in John Deere  v Commission , C‑7/95 P, EU:C:1998:256, paragraph 20 and the case-law cited).
218. It must also be stated that, by referring back to the arguments put forward in its statement of intervention at first instance, LBG is repeating the same arguments as those which it had already put before the General Court and is in fact seeking re-examination of its arguments without even attempting to adduce legal arguments specifically establishing that the General Court, by its approach, erred in law (see, to that effect, judgment in John Deere  v Commission , EU:C:1998:256, paragraph 41).
230. The Court must reject at the outset the argument that the General Court wrongly ignored the advantages to cardholders resulting from the MasterCard scheme. It will be recalled that any decision by an association of undertakings which proves to be contrary to the provisions of Article 81(1) EC may be exempted under Article 81(3) EC only if it satisfies the conditions in that provision, including the condition that it contribute to improving the production or distribution of goods or to promoting technical or economic progress (see, to that effect, judgment in Remia and Others  v Commission , EU:C:1985:327, paragraph 38). Furthermore, as is apparent from paragraphs 89 and 90 of the present judgment, where it is not possible to dissociate a decision by an association of undertakings from the main operation or activity with which it is associated without jeopardising its existence and aims, it is appropriate to examine the compatibility of that decision with Article 81 EC in conjunction with the compatibility of the main operation or activity to which it is ancillary.
231. By contrast, where it is established that such a decision is not objectively necessary to the implementation of a given operation or activity, only the objective advantages resulting specifically from that decision may be taken into account in the context of Article 81(3) EC (see, by analogy, judgment in Remia and Others  v Commission , EU:C:1985:327, paragraph 47).
235. Next, the Court notes that the examination of an agreement for the purposes of determining whether it contributes to the improvement of the production or distribution of goods or to the promotion of technical or economic progress, and whether that agreement generates appreciable objective advantages, must be undertaken in the light of the factual arguments and evidence provided by the undertakings (see to that effect, in connection with a request for exemption under Article 81(3) EC, judgment in GlaxoSmithKline Services and Others  v Commission and Others , C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 102).
236. Such an examination may require the nature and specific features of the sector concerned by the agreement in question to be taken into account if its nature and those specific features are decisive for the outcome of the analysis (see judgment in GlaxoSmithKline Services and Others  v Commission and Others , EU:C:2009:610, paragraph 103). Furthermore, 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 (see, to that effect, judgment in Asnef-Equifax and Administración del Estado , EU:C:2006:734, paragraph 70).