Carlo Bagnasco and Others v Banca Popolare di Novara soc. coop. arl. (BNP) (C-215/96) and Cassa di Risparmio di Genova e Imperia SpA (Carige) (C-216/96).
Date: 1999-01-21
20 According to settled case-law, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the particular facts of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (see Case C-472/93 Spano and Others v Fiat Geotech and Fiat Hitachi [1995] ECR I-4321, paragraph 15, and Case C-373/95 Maso and Others v INPS and Italian Republic [1997] ECR I-4051, paragraph 26). A request for a preliminary ruling may be rejected as inadmissible only where it is plain that the interpretation or the examination of the validity of a Community rule requested by the national court has no bearing on the actual facts or subject-matter of the case before the national court (see, in particular, Case C-472/93 Spano and Others, cited above, paragraph 15, and Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 61).
33 According to settled case-law of the Court, 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 Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 76, and Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175, paragraph 90).
34 Whilst Article 85(1) of the Treaty does not restrict such an assessment to actual effects alone, in so far as it must also take account of the agreement's potential effects on competition within the common market, an agreement will nevertheless fall outside the prohibition in Article 85 if it has only an insignificant effect on the market (Case C-7/95 P Deere v Commission, cited above, paragraph 76, and Case C-8/95 P New Holland Ford v Commission, cited above, paragraph 91).
45 On the other hand, since those rules are, according to the findings of the national court, binding on the members of the ABI, they limit the contractual freedom of the banks by preventing them from offering to customers who apply for a credit facility more favourable conditions for the associated guarantee contract. The latter, however, is merely ancillary to the principal contract, of which in practice it is usually a precondition (see Case C-45/96 Dietzinger [1998] ECR I-I-1199, paragraph 18).
47 In that regard, the Court has consistently held that, in order that an agreement between undertakings 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 it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market in all the Member States (Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 22). Accordingly, the effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive (Case C-250/92 Gottrup-Klim v Dansk Landbrugs Grovvareselskab [1994] ECR I-5641, paragraph 54).
48 It is also settled case-law that, whilst Article 85(1) of the Treaty does not require that agreements referred to in that provision have actually affected trade between Member States, it does require that it be established that the agreements are capable of having that effect (Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 19).
50 It is true that, in principle, the answer to the question whether or not the conditions for the application of Article 85(1) of the Treaty are fulfilled depends on complex economic assessments which it is for the national court to undertake, if appropriate, in accordance with the criteria laid down by a the case-law of the Court of Justice. However, in certain circumstances, and having regard to the indications given by the Court, no such analysis appears necessary (see Case C-250/92 Gottrup-Klim v Dansk Landbrugs Grovvareselskab, cited above, paragraph 55). Such is the position in the present case.
56 The Commission states first, referring to the case-law of the Court (see Joined Cases C-140/94 to C-142/94 DIP and Others v Comune di Bassano del Grappa and Comune di Chioggia [1995] ECR I-3257, paragraphs 26 and 27), that the mere fact that the ABI's membership includes almost all Italian banks is not a sufficient reason to conclude that its members together hold a collective dominant position.
60 As regards the NBU relating to the provision of general guarantees to secure the opening of a current-account credit facility, it is clear from consideration of the third question that the application of those NBU, taken as a whole, is not liable appreciably to affect trade between Member States.