Groupement des cartes bancaires (CB) v European Commission.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Ó Caoimh
• ECLI: ECLI:EU:C:2014:2204
• Date: 11 September 2014
• Docket Number: C‑67/13
• Procedure Type: Recurso de casación - fundado

JUDGMENT OF THE COURT (Third Chamber)

11 September 2014 ( *1 )

‛Appeal — Competition — Agreements, decisions and concerted practices — Article 81(1) EC — Payment cards system in France — Decision by an association of undertakings — Issuing market — Pricing measures applicable to ‘new entrants’ — Membership fee, mechanism for ‘regulating the acquiring function’ and ‘dormant member “wake-up”’ mechanism — Concept of restriction of competition ‘by object’ — Examination of the degree of harm to competition’

In Case C‑67/13 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 February 2013,

Groupement des cartes bancaires (CB), established in Paris (France), represented by F. Pradelles, O. Fauré and C. Ornellas-Chancerelles, avocats, and by J. Ruiz Calzado, abogado,

appellant,

the other parties to the proceedings being:

European Commission, represented by O. Beynet, V. Bottka and B. Mongin, acting as Agents,

defendant at first instance,

BNP Paribas, established in Paris, represented by O. de Juvigny, D. Berg and P. Heusse, avocats,

BPCE, formerly Caisse Nationale des Caisses d’Épargne and de Prévoyance (CNCEP), established in Paris, represented by A. Choffel, S. Hautbourg, L. Laidi and R. Eid, avocats,

Société Générale SA, established in Paris, represented by P. Guibert and P. Patat, avocats,

interveners at first instance,

THE COURT (Third Chamber),

composed of M. Ilešič, President of the Chamber, C.G. Fernlund, A. Ó Caoimh (Rapporteur), C. Toader and E. Jarašiūnas, Judges,

Advocate General: N. Wahl,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 22 January 2014,

after hearing the Opinion of the Advocate General at the sitting on 27 March 2014,

gives the following

Judgment

1 By its appeal, the Groupement des cartes bancaires (CB) (‘the Grouping’) asks the Court to set aside the judgment of the General Court of the European Union in CB v Commission, T‑491/07, EU:T:2012:633, (‘the judgment under appeal’), by which that court dismissed its action for the annulment of Commission Decision C (2007) 5060 final of 17 October 2007 relating to a proceeding under Article [81 EC] (COMP/D1/38606 — Groupement des cartes bancaires ‘CB’) (‘the decision at issue’).

Background to the dispute and the decision at issue

2 The background to the dispute and the essential elements of the decision at issue as apparent from paragraphs 1 to 48 of the judgment under appeal may be summarised as follows.

3 The appellant is an economic interest grouping governed by French law, created in 1984 by the main French banking institutions in order to achieve the interoperability of the systems for payment and withdrawal by bank cards (‘CB cards’) issued by its members (‘the CB system’). That interoperability enables, in practice, a CB card issued by a member of the Grouping to be used to make payments to all traders affiliated to the CB system through any other member of the Grouping and/or to make withdrawals from automatic teller machines (ATMs) operated by all other members. The members of the Grouping, which numbered 148 on 29 June 2007, are either ‘main members’ or institutions linked to a main member. Under the Grouping’s constitutive agreement, BNP Paribas, BPCE and Société Générale SA (‘Société Générale’) are among the eleven main members.

4 On 10 December 2002, the Grouping notified the Commission pursuant to Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-62, p. 87), of various new rules envisaged for the CB system, including three pricing measures (‘the measures at issue’), which can be described as follows: — A device known as the ‘Mécanisme de regulation de la function acquéreur’ (‘mechanism for regulating the acquiring function’) (‘MERFA’) which, according to the Grouping, aimed to encourage members that are issuers more than acquirers to expand their acquisition activities and to take account financially of the efforts of members whose acquisition activity is considerable in relation to their issuing activity. The formula provided for in that regard compared (i) the share of the member’s activities in the total acquisition activities under the CB system, those activities being measured in the context of the company identification number or ‘SIREN’ system (‘Système d’identification au répertoire des entreprises’) and the operation of ATMs, with (ii) that member’s share in the total issuing activities under that system, which are represented by a bank’s issue of CB payment or withdrawal cards to a cardholder. MERFA was to apply where the ratio of acquisition activities to issuing activities was less than 0.5. The sums levied under MERFA were to be distributed among members of the Grouping that were not charged any such sum, according to their contribution to the acquisition business. Those members could freely use the sums thus levied; — A reform of the membership fee for the Grouping comprising, in addition to a fixed sum of EUR 50 000 levied on membership, a fee per active CB card issued in the three years following membership and, where appropriate, a supplementary membership fee applicable to members that triple the number of CB cards in stock in the course or at the end of their sixth year of membership compared with their number of CB cards in stock at the end of their third year of membership; — A mechanism known as ‘dormant member “wake-up”’ consisting in a fee per CB card issued; it is applicable to members that were inactive or not very active before the date of entry into force of the new pricing measures and whose share in the CB card issuing activity within the entire CB system, in the course of either 2003, 2004 or 2005, was more than three times higher than their share in the total CB cards activity in the entire CB system in the course of 2000, 2001 or 2002.

5 On 6 July 2004, the Commission adopted a first statement of objections, sent to the Grouping and to nine main members on which checks had been carried out, in which it alleged that they had concluded a ‘secret anti-competitive agreement’ which had the ‘object of generally limiting competition between the banks party to the agreement and to restrict competition, in a concerted manner, of new entrants (in particular large retailers, online banks and foreign banks) on the market for the issue of [CB cards]’. The Commission considered that ‘the notification [of 10 December 2002 had been] made with the aim of concealing the real content of the anti-competitive agreement’. It intended to render the notification ineffective and to impose a fine on the addressees of that statement of objections. The Grouping responded to that statement of objections on 8 November 2004 and a hearing was held on 16 and 17 December 2004.

6 On 17 July 2006, the Commission adopted a second statement of objections, which was sent only to the Grouping. It stated that the first statement of objections was to be considered to have been withdrawn. That second statement of objections concerned a decision by an association of undertakings establishing a series of pricing measures with an anti-competitive object or effect. The Grouping responded to that second statement of objections on 19 October 2006 and a hearing was held on 13 November 2006.

7 On 20 July 2007, the Grouping submitted an offer of commitments pursuant to Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), which the Director-General of the Commission’s Directorate-General for Competition considered to be out of time and inadequate.

8 The Commission therefore adopted the decision at issue in which it took the view that the Grouping had infringed Article 81 EC. That decision included the following considerations: — The relevant market is the market for the issue of payment cards in France. — The measures at issue constitute a decision by an association of undertakings. — Those measures have an anti-competitive object. That object is evident from the actual formulas envisaged for those measures and runs counter to the objectives of those measures as declared in the notification of 10 December 2002. First, those measures are not appropriate for encouraging acquisition and they have the effect of either imposing an additional charge on members that are subject to them or limiting the issuing activities of members that would otherwise have been subject to them. Secondly, the function of stimulating acquisition activity given to MERFA is inconsistent with the function given to interchange fees and with the function of the supplementary membership fee and the ‘dormant member’ fee. That anti‑competitive object reflects the genuine objectives of those measures, stated by the main members in the course of their preparation, namely the intention to (i) impede competition of new entrants and to penalise them, (ii) to safeguard the main members’ revenue and (iii) to limit the price reduction for bank cards. — The measures at issue also have the effect of restricting competition. In particular, in the course of the period in which they applied (between 1 January 2003 and 8 June 2004), the measures resulted in a reduction in issue plans for CB cards of new entrants and the prevention of a price reduction for CB cards, both for new entrants and for main members. — The conditions for the application of Article 81(3) EC are not satisfied. In...