In its Cartes Bancaires judgment the Court of Justice recently made it clear that an infringement of the cartel prohibition is a fact if it is apparent from an (initial) analysis that an agreement between undertakings sufficiently distorts competition. If that is not the case, the consequences of the agreement must first be (thoroughly) investigated. The judgment has raised a dust, since it might imply that competition authorities will have to perform more thorough investigations in future. It remains to be seen whether the judgment will have major consequences in practice, but it in any event clarifies the manner in which the cartel prohibition is applied.
The background of the judgment is the decision of the European Commission in which it held that the cooperation between the leading French banks in the field of bank card payments (Groupement des Cartes Bancaires) is an infringement of the cartel prohibition. The Commission objected to certain rates charged to the participants. The Commission believed that those rates deliberately benefited the larger banks to the detriment of new entrants. The General Court confirmed that the measures had the object of restricting competition and that the Commission did not need to investigate the specific effects.
The Court of Justice disagreed. It drew attention to earlier case law (LTM, BIDS and Allianz) from which it follows that certain agreements or practices have a negative impact on competition to such an extent that the consequences need not be investigated. Concerted market practices must then be involved that can be regarded, by their very nature, as being injurious to the proper functioning of normal competition. Price agreements between competitors are a case in point. The question whether an agreement or practice has as its object the restriction of competition coincides with the question whether the agreement or practice sufficiently disrupts competition. The Court of Justice found in that regard that it had been insufficiently substantiated that the rates charged by Groupement des Cartes Bancaires constitute restrictions of competition by object. The Court of Justice thereby noted that, unlike the General Court had found, the term restriction of competition “by object” must be given a restrictive interpretation.
T-Mobile and Expedia
The Court of Justice thereby appears to have reconsidered, or in any event refined, its T‑Mobile judgment. In that judgment the Court of Justice held that the object of restricting competition could exist even if a practice “has the potential” to have a negative impact on competition. In future it is a requirement that the practice “sufficiently distorts” competition. That is in keeping with the Expedia judgment, which provides that a practice whose object is to restrict competition and affect trade between Member States is appreciable by its very nature. The applicability of the (European) cartel prohibition recorded in Article 101 of the Treaty on the Functioning of the European Union (TFEU) is then a given. The Expedia judgment was reason for the Commission to amend the Notice on agreements of minor importance which do not appreciably restrict competition (De Minimis Notice). In the related Working Document the Commission provided an extensive list of examples of practices that generally constitute restrictions of competition by object and appreciably affect competition (including price, market sharing and production agreements between competitors, resale price maintenance and types of information exchange).
Appreciability and Article 6 of the Competition Act
In an earlier blog we addressed the (fairly academic) debate between competition lawyers regarding the consequences of the Expedia judgment for the application of the (Dutch) cartel prohibition recorded in Article 6 of the Competition Act. That possible discrepancy between Article 101 of the TFEU and Article 6 of the Competition Act appears to have been remedied by the Cartes Bancaires judgment. The term “sufficiently” most likely has the same meaning as “appreciably”. This means that also in establishing restrictions of competition by object, Article 6 of the Competition Acted provides that it must (still) be assessed whether competition is sufficiently (read: appreciably) restricted.
Consequences for cartel investigations
So what does the Cartes Bancaires judgment specifically mean for the Dutch practice? Not a great deal at first sight. In the Modint judgment the CBb (Trade and Industry Appeals Tribunal) already pointed out to the NMa (Netherlands Competition Authority) that, in answering the question whether an agreement has as its object the restriction of competition, the economic context and the effect of the agreement on the market must be sufficiently investigated. That set the (evidentiary) bar high for the ACM. Moreover, all the fine decisions of the ACM nowadays relate to hard-core cartels, such as price or market sharing agreements between competitors, whereby it is almost immediately likely that those agreements sufficiently distort competition, such as the fines in the flour sector, the seed onion and silver-skin onion sectors and the sweet pepper sector. Most of the latest decisions of the Commission are also related to obvious cartel formation, such as the fines for producers of smart card chips, canned mushrooms, bed and chair foam, power cables, automotive bearings and steel abrasives. The Cartes Bancaires judgment will not have any impact on this type of case.
The Cartes Bancaires judgment may, however, have an impact on investigations into (more atypical) practices of which it is not immediately obvious that they distort competition. They will relate to collaborations that are legitimate in principle but may nevertheless disrupt the market, such as the fine and the prohibition that the Commission imposed on Visa and Mastercard, respectively, in the past. Another example are the settlements between companies in patent disputes. The Commission has previously imposed fines on, for instance, pharmaceutical producers (Servier and Lundbeck) for keeping competing products of the market by means of patent settlements (pay for delay).
Consequences for civil proceedings
The judgment will also have limited consequences for Dutch civil proceedings in which the cartel prohibition and the nullity of an agreement are relied on. They are usually disputes regarding a non-compete clause or an exclusive purchase clause. A company that argues that such a clause has as its object the restriction of competition will have to prove that the agreement sufficiently (read: appreciably) distorts competition. Recent examples in which companies succeeded in doing so are the Mantje B.V./Rab and the Koelhuis Dronten/The Greenery cases. An example in which that attempt was unsuccessful is the Berkhof & Partners/X case. The Cartes Bancaires judgment will not change this. As in the past, a claimant will have to substantiate its argument with sufficient evidence.
The consequences of the judgment will be relatively limited in the Dutch practice. However, the judgment is an important signal to competition authorities and the judiciary that the term “restriction of competition by object” must be given a restrictive interpretation. In many commercial collaborations (such as joint production, specialisation, distribution and sale, or activities of a trade association) restriction of competition by object is rarely a given.