Appeal brought on 8 February 2013 by the Groupement des cartes bancaires (CB) against the judgment of the General Court (Seventh Chamber) delivered on 29 November 2012 in Case T-491/07 CB v Commission

(Case C-67/13 P)

2013/C 114/38

Language of the case: French

Parties

Appellant: Groupement des cartes bancaires (CB) (represented by: F. Pradelles, avocat, J. Ruiz Calzado, abogado)

Other parties to the proceedings: European Commission, BNP Paribas, BPCE, formerly Caisse Nationale des Caisses d’Epargne et de Prévoyance (CNCEP), Société générale

Form of order sought

The appellant claims that the Court should:

Grounds of appeal and main arguments

The appellant relies on three grounds in support of its appeal.

First, the appellant claims that the General Court erred in law in the application of the concept of restriction of competition by object.

The General Court erred in law in the application of Article 101(1) TFEU concerning the content of the measures of the Groupement des cartes bancaires ‘CB’ (‘the Groupement’). More specifically, the General Court, inter alia, erroneously interpreted the case-law on the concept of restrictive practice of competition by object in considering that the abovementioned measures constituted a restriction by object, even though they were not sufficiently injurious to competition in themselves. Furthermore, the General Court erred in law by taking into account the ‘genesis’ of the adoption of the measures. It misinterpreted the case-law on the concept of the decision of association of undertakings, as an expression of the intention of the Groupement, and distorted the clear sense of the evidence put before it to find an anti-competitive intention on the part of the Groupement in the adoption of the measures in question.

The General Court also erred in law in the application of Article 101(1) TFEU concerning the objectives of the measures of the Groupement. More specifically, the General Court misinterpreted the case-law in finding that the avoidance of free-riding, a legitimate objective referred to by the measures adopted by the Groupement and recognised by the General Court, could be taken into account only at the stage of Article 101(3) TFEU and not that of Article 101(1) TFEU.

The General Court also erred in law in applying Article 101(1) TFEU concerning the correct context of the Groupement’s measures. More specifically, the General Court misinterpreted the case-law on the taking into account of the legal context by erring in relation to its obligation to take account of established experience. In addition, it misinterpreted, inter alia, the judgment of the Court of 20 November 2008 in Case C-209/07 Beef Industry Development and Barry Brothers, in wanting to apply that judgment to the present case, even though the two situations are fundamentally different. Furthermore, the General Court erred in law repeatedly in the taking into account of the economic context and the two-sided operation of the market in this case. Finally, the General Court ignored the case-law on the nature and scope of its review of complex economic assessments, by failing to carry out the minimum review for which it is responsible.

Second, the appellant submits that the General Court erred in law in the application of the concept of restriction of competition by effect. The General Court erred in law in its examination of the effect of the Groupement’s measures. By not responding to the pleas in law raised by the appellant as to the alleged anti-competitive effects of the measures, it failed to comply with its obligation to state reasons.

Third, the appellant claims that the General Court infringed the principles of proportionality and legal certainty by not annulling the injunction contained in the second paragraph of Article 2 of Commission Decision C(2007) 5060 final. It infringed the principle of proportionality by maintaining the injunction imposed by the Commission, even though it was not only unnecessary to end the alleged infringement but also disproportionate with regard to the intended purpose. Furthermore, the General Court infringed the principle of legal certainty by not annulling the abovementioned injunction, even though the terms thereof are general and ambiguous, leaving the Groupement uncertain as to the measures which it may take to combat free-riding and ensure the protection of the ‘CB’ system.