Notice for the OJ
Action brought on 27 December 2001 by EuroCommerce A.I.S.B.L. against the Commission of the European Communities
(Case T-336/01)
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 27 December 2001 by EuroCommerce A.I.S.B.L., represented by Mr Pierre V. F. Bos and Mr Morten Nissen of Dorsey & Whitney LLP, Brussels (Belgium).
The applicant claims that the Court should:
listnum "WP List 2" \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);
listnum "WP List 2" \l 1order that the Commission pay the costs of the proceedings;
listnum "WP List 2" \l 1order that the Commission pay the costs incurred by EuroCommerce in the present proceedings.
Pleas in law and main arguments:
The applicant is an international association with as its aim the research into and solution of problems concerning trade. The applicant has lodged in this respect several complaints with the Commission regarding the non-tariff rules and the multilateral interchange fees used by payment card organisations. The multilateral interchange fee is paid by the acquiring bank (the merchant's bank) to the issuing bank (the customer's bank). This fee has, according to the applicant, a direct influence on the fee that a merchant has to pay to his acquiring bank for the use of payment cards for payment by his customers. The non-tariff rules are a set of rules concerning the issuing and acquiring of payment cards.
The Commission decided, in the contested decision, that there was no need for any action under Article 81 EC Treaty with regard to the non-tariff rules. According to the applicant, this decision violates both the EC Treaty and the EEA agreement.
The applicant claims that the Commission did not respect its right to be heard. In its comments on the second letter sent under Article 6 of Commission Regulation 2842/98, the applicant made a conditional withdrawal of its complaints, in the belief that the Commission would prohibit the multilateral interchange fee. This fee, according to the applicant, is closely intertwined with the non-tariff rules. Later, the Commission changed its opinion on this point. According to the applicant, however, it had then no opportunity to give its comments.
Furthermore, the applicant claims that there has been a violation of Article 81 of the EC Treaty and the principle of sound administration, in that the Commission failed to consider the non-tariff rules and the multilateral interchange fees together. According to the applicant, they should have been considered together in order to establish whether or not they have a detrimental effect on competition. The Commission has cleared the non-tariff rules in the contested decision and has the intention of clearing the multilateral interchange fee. The applicant, however, states that these aspects are closely intertwined and that their joint effect on competition should have been investigated.
The applicant also states that the Commission has erred in law and in fact by clearing the "no-discrimination rule", according to which merchants are prohibited from charging their costs for the use of debit card by a customer to that customer. According to the applicant, this rule constitutes a restriction on competition, since it prevents the merchants from using the threat of such discrimination as pressure in order to bargain for lower merchant's fees. The applicant states that the Commission has made an incomplete market investigation on this point.
Likewise, the applicant claims that the Commission has erred in clearing several other rules with the contested decision. Thus the Commission clears the "cross-border issuing rules" that require that a bank wishing to start issuing cards in another state must comply with the rules applicable in that state. According to the applicant, this partitions the market de facto and prevents less restrictive rules in one state from being used by issuing banks as a competitive advantage in another state. Furthermore, the Commission erred in clearing the "cross-border acquiring rule", which prevents, according to the applicant, merchants in one state from seeking an acquiring bank in another state where the multilateral interchange fee is lower.
Finally, the Commission gives insufficient reasoning for its clearance of the "No acquiring without issuing rule". This rule requires that a bank, wishing to acquire merchants, must issue a certain number of cards to customers before it may begin its acquiring activities. This amounts, according to the applicant, to a market sharing agreement between the current issuers.
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