Brussels, 30/01/2014 (Agence Europe) - In an opinion issued on Thursday 30 January in case C-382.12 P, Advocate General Paolo Mengozzi recommends that the European Court of Justice endorse the May 2008 General Court ruling confirming the European Commission's December 2007 ban on multilateral interchange fees (MIFs) levied on traders by MasterCard for use of its credit cards (see EUROPE 10620). He recommends rejecting all the arguments raised by MasterCard, two MasterCard subsidiaries, and banks RBS, LTSB and BOS in appeals against the ruling.
Mengozzi says that the General Court was right in its judgment that MasterCard had continued to act as an “association of undertakings” vis-à-vis MIFs even after it was floated on the New York stock exchange. He explains: “The General Court found the existence of an institutionalised framework to which the banks belong and within which they cooperate among themselves and with MasterCard in order to achieve a joint project which entails limiting their commercial autonomy and defines the lines of their reciprocal action”. The companies challenging the decision cooperated to coordinate their behaviour on the market and their collective interests coincide with those of MasterCard. He found the “existence of restrictions on competition arising from the MIFs” to the detriment of traders and their clients. Mengozzi did not find any errors in the General Court's analysis of the impact of MIFs on competition or in its explanation of how MIFs create an uneven playing field. He found that MIFs were objectively not needed to ensure the viability of the MasterCard system, and the General Court correctly assessed the “objective necessity” aspect of MIFs, duly examining restrictions on competition and correctly assessing the Commission's views, which it had sufficiently verified. The judge says that the Commission did not require an excessive degree of evidence from the companies in question that the MIFs could be granted exemption under Article 81, paragraph 3, of the EU treaty. He says that the companies in question would have had to demonstrate and provide convincing proof, that the criteria laid down for the exemption had been met, but all they did in fact was to provide evidence that simply raised further questions. Moreover, the judge says that the General Court correctly assessed the market and categories of users covered by the exemption. He therefore recommends that the two appeals cases be rejected. (FG/transl.fl)