Notice for the OJ

 

    

Action brought on 4 February 2002 by First Data Corporation, FDR Limited and First Data Merchant Services Corporation against the Commission of the European Communities

    (Case T-28/02)

    Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 4 February 2002 by First Data Corporation, FDR Limited and First Data Merchant Services Corporation, represented by Mr Pierre Bos and Mr Morten Nissen of Dorsey & Whitney LLP, Brussels (Belgium).

The applicants claim that the Court should:

listnum "WP List 1" l 1annul the Commission's Decision dated 9 August 2001 relating to proceedings under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case No COMP/29.373 - Visa International) as regards Article 1, fifth indent;

listnum "WP List 1" \l 1order that the Commission pay the costs incurred by the applicants in the present proceedings.

Pleas in law and main arguments:

The applicants contest the Decision of the Commission that the "no-acquiring-without-issuing rule" of the Visa Corporation is not an appreciable restriction on trade and therefore falls outside the scope of Article 81(1) of the EC Treaty and Article 53 of the EEA Agreement. This rule requires that a company that wishes to acquire merchants, i.e. process payments made with a credit card by customers at those merchants' businesses, must first issue a certain number of credit cards to customers. The applicants specialise in acquiring activities.

According to the applicants, the contested decision violates the EC Treaty and the EEA Agreement.

Firstly, the applicants state that the decision lacks adequate reasoning on why the rule in question does not constitute a significant barrier to trade.

The applicants also claim that the Commission erred in law when substituting reasoning under Article 81(3) EC Treaty for reasoning under Article 81(1) EC Treaty. According to the applicants, the pro-competitive and anti-competitive effects of a restriction on competition can only be assessed under Article 81(3) EC Treaty. In the contested Decision, however, the Commission seems to argue that the rule in question falls outside the scope of Article 81(1) EC Treaty since its benefits outweigh the restriction on competition. This type of reasoning can, according to the applicants, only be applied under Article 81(3) EC Treaty.

Finally, the applicants claim that the rule in question does restrict competition. The consequence of the rule is that, in order to start acquiring activities, a company must first build up banking activities to be able to issue cards to customers. This is, according to the applicants, a barrier to entry into the market of acquiring activities. Furthermore, the applicants point out that the application of this rule is unclear, since the number of cards to be issued is dependent on undefined criteria. According to the applicants, the Commission should have conducted an investigation on whether this rule is applied in a uniform and non-discriminatory way.

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