Case C‑382/12 P

MasterCard Inc. and Others

v

European Commission

‛Appeal — Cross-appeals — Admissibility — Article 81 EC — Open system of payment by debit, charge and credit cards — Multilateral fallback interchange fees — Association of undertakings — Restrictions of competition by effect — Standard of judicial review — Concept of ‘ancillary restriction’ — Objectively necessary and proportionate nature — Appropriate ‘counterfactual hypotheses’ — Two-sided systems — Treatment of annexes to the application at first instance’

Summary — Judgment of the Court (Third Chamber), 11 September 2014

1. Appeal — Cross-appeal — Admissibility — Obligation to introduce the cross-appeal by a separate document — Rule introduced by the new Rules of Procedure of the Court — Non-application of that rule to an appeal brought before the date on which those Rules entered into force — Cross-appeal contained in the response and brought before that date — Admissible

   (Rules of Procedure of the Court of Justice, Arts 57(7) and 176(2); Rules of Procedure of the Court of 1991, Art. 37(6))

2. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — Reference to elements in an annex — Inadmissibility

   (Art. 256(1) TFEU; Statute of the Court of Justice, Arts 21 and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))

3. Appeal — Pleas in law — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted — Legal classification of the facts — Admissibility

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

4. Agreements, decisions and concerted practices — Decisions by associations of undertakings — Meaning

   (Art. 81(1) EC)

5. Agreements, decisions and concerted practices — Adverse effect on competition — Ancillary restriction — Concept — Restriction necessary for the implementation of a main operation — Objective and proportionate nature — Restriction having made the main operation more difficult or less profitable — Concept excluded — Separate nature of the indispensability of a restriction that may be exempted

   (Art. 81(1) and (3) EC)

6. Agreements, decisions and concerted practices — Adverse effect on competition — Ancillary restriction — Concept — Restriction necessary for the implementation of a main operation — Objective and proportionate nature — Assessment of the proportionate nature

   (Art. 81(1) and (3) EC)

7. Appeal — Pleas in law — Inadequate statement of reasons — Reliance by the General Court on implied reasoning — Lawfulness — Conditions

   (Art. 256 TFEU; Statute of the Court of Justice, Arts 36 and 53, first para.; Rules of Procedure of the General Court, Art. 81)

8. Appeal — Pleas in law — Plea alleging that the General Court failed to respond to a plea — Rules on submission

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of 1991, Art. 112(1)(c))

9. Appeal — Pleas in law — Specific criticism of a point of the General Court’s reasoning necessary — Obscure plea — Inadmissible

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of 1991, Art. 112(1)(c))

10. Competition — Decision to apply competition rules — Judicial review — Scope — Legal and factual review of legality

    (Art. 81(1) EC; Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31)

11. Agreements, decisions and concerted practices — Adverse effect on competition — Assessment by reference to the economic and legal context — No examination of the impact on competition in the absence of the disputed agreement — Unlawful

    (Art. 81(1) EC)

12. Appeal — Pleas in law — Grounds of a judgment vitiated by an infringement of EU law — Operative part well founded for other legal reasons

    (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

13. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient

    (Art. 81(1) EC)

14. Appeal — Pleas in law — Mere repetition of the pleas and arguments put forward before the General Court — Error of law relied on not identified — Inadmissibility

    (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of 1991, Art. 112(1)(c))

15. Agreements, decisions and concerted practices — Prohibition — Exemption — Conditions — Improvement of the production or distribution of goods or contribution to technical or economic progress — Appreciable objective advantages of such a character as to compensate for the disadvantages for competition resulting from that agreement — Application of those criteria to a two-sided system — Beneficial nature of the effect on consumers in the separate but connected market — Insufficient — Need to establish the advantages in the relevant market

    (Art. 81(3) EC)

16. Agreements, decisions and concerted practices — Prohibition — Exemption — Conditions — Burden of proof — Scope

    (Art. 81(3) EC)

1.  See the text of the decision.

   (see paras 23, 24)

2.  See the text of the decision.

   (see paras 36-39)

3.  See the text of the decision.

   (see paras 60, 113, 119)

4.  See the text of the decision.

   (see paras 62, 63, 68, 71, 72, 76)

5.  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. 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.

   That interpretation does not amalgamate, on the one hand, the conditions for the classification — for the purposes of the application of Article 81(1) EC — of a restriction as ancillary, and, on the other hand, the criterion of the indispensability required under Article 81(3) EC in order for a prohibited restriction to be exempted. Those two provisions have different objectives and the latter criterion relates to the issue whether coordination between undertakings that is liable to have an appreciable adverse impact on the parameters of competition, such as the price, the quantity and quality of the goods or services, which is therefore covered by the prohibition rule laid down in Article 81(1) EC, can none the less, in the context of Article 81(3) EC, be considered indispensable to the improvement of production or distribution or to the promotion of technical or economic progress, while allowing consumers a fair share of the resulting benefits. By contrast, the objective necessity test concerns the question whether, in the absence of a given restriction of commercial autonomy, a main operation or activity which is not caught by the prohibition laid down in Article 81(1) EC and to which that restriction is secondary is likely not to be implemented or not to proceed. Accordingly, only those restrictions which are necessary in order for the main operation to be able to function in any event may be regarded as falling within the scope of the theory of ancillary restrictions, and the fact that the absence of those ancillary restrictions may have adverse consequences for the main operation does not, in itself, mean that the ancillary restrictions must be regarded as being objectively necessary if the main operation is still capable of functioning without them.

   (see paras 91-94, 180)

6.  In the context of the assessment, for the purposes of the application of Article 81(1) EC, of the ancillary nature of a given restriction of commercial autonomy in relation to a main operation or activity, it is necessary to consider not only whether that restriction is necessary for the implementation of the main operation or activity, but also whether that restriction is proportionate to the underlying objectives of that operation or activity.

   Accordingly, in order to contest the ancillary nature of a restriction, reliance may be placed on the existence of realistic alternatives that are less restrictive of competition than the restriction at issue. The alternatives on which reliance may be placed in the context of the assessment of the objective necessity of a restriction are not limited to the situation that would arise in the absence of the restriction in question but may also extend to other counterfactual hypotheses based, inter alia, on realistic situations that might arise in the absence of that restriction.

   (see paras 107, 109, 111)

7.  See the text of the decision.

   (see paras 112, 188, 189)

8.  See the text of the decision.

   (see para. 148)

9.  See the text of the decision.

   (see para. 151)

10.  See the text of the decision.

    (see paras 155, 156)

11.  The General Court errs in law when, in the context of its analysis of the restrictive effects on competition of multilateral interchange fees in a payment system operated by an international organisation — fees which apply above all to cross-border bank card payments within the European Economic Area or the euro area — it does not in any way address the likelihood, or even plausibility, of the prohibition of ex post pricing (pricing effected after a purchase has been made by one of the issuing bank’s cardholders from one of the acquiring bank’s merchants and the transaction has been submitted for payment) if there were no such fees, but merely relies on the single criterion of the economic viability of a system operating without those fees, and solely on the basis of a prohibition of ex post pricing, in order to justify taking into consideration such a prohibition.

    (see paras 161, 165-167, 169, 173-175, 177)

12.  See the text of the decision.

    (see paras 170, 174, 175, 190, 198)

13.  See the text of the decision.

    (see paras 184, 185)

14.  See the text of the decision.

    (see paras 215, 216, 218)

15.  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. Furthermore, 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.

    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.

    Furthermore, the improvement, within the meaning of the first condition laid down in Article 81(3) EC, cannot be identified with all the advantages which the parties obtain from the agreement in their production or distribution activities. The improvement must in particular display appreciable objective advantages of such a character as to compensate for the disadvantages which that agreement entails for competition.

    In that context, in the case of a two-sided system, in order to assess whether a measure which in principle infringes the prohibition laid down in Article 81(1) EC — in so far as it creates restrictive effects in regard to one of the two groups of consumers associated with that system — can fulfil the first condition laid down in Article 81(3) EC, it is necessary to take into account the system of which that measure forms part, including, where appropriate, all the objective advantages flowing from that measure not only on the market in respect of which the restriction has been established, but also on the market which includes the other group of consumers associated with that system, in particular where there is interaction between the two sides of the system in question. To that end, it is necessary to assess, where appropriate, whether such advantages are of such a character as to compensate for the disadvantages which that measure entails for competition. In particular, it is necessary, in principle, when examining the first condition laid down in Article 81(3) EC, to take into account all the objective advantages, not only on the relevant market, but also on the separate but connected market.

    However, where restrictive effects have been found on only one market of a two-sided system, the advantages flowing from the restrictive measure on a separate but connected market also associated with that system cannot, in themselves, be of such a character as to compensate for the disadvantages resulting from that measure in the absence of any proof of the existence of appreciable objective advantages attributable to that measure in the relevant market, in particular where the consumers on those markets are not substantially the same.

    (see paras 230, 231, 234, 237, 240, 242)

16.  See the text of the decision.

    (see paras 235, 236)