Access Investments-European Union- ROMANIA

Earlier this month, the Court of Justice handed down two decisions on appeals against European Commission decisions which had found payment card systems to infringe the Article 101 TFEU prohibition against anti-competitive agreements.  These judgments highlight the proper test to be applied both by the competition authorities and by the courts when considering whether payment card systems - and any other forms of horizontal cooperation agreements - breach EU competition law.  In its judgment on the French card payment system, Cartes Bancaires, the Court of Justice allowed the CB group’s appeal against the General Court judgment of 2012, finding that the reasoning had been defective and that the Court had misinterpreted and misapplied Article 101(1) TFEU. MasterCard’s appeal against the General Court’s 2012 judgment upholding the Commission prohibition decision against MasterCard's multilateral interchange fees (“MIF”) for cross-border payment card transactions within the EEA was less successful.  The Court dismissed the appeal, upholding the General Court’s judgment and the original 2007 Commission decision.  It does however also mark important issues around the proper tests to be applied when considering whether payment card systems include restrictions that bring them within the scope of the Article 101(1) prohibition and, where they do, the tests to be applied to whether those agreements nevertheless meet the criteria for exemption under Article 101(3).  The appeal in the MasterCard case follows the Commission’s acceptance of binding commitments from Visa Europe to cap interchange fees for Visa’s credit cards and to facilitate cross-border competition within the EEA, and also legislative proposals from the Commission to cap interchange fees for both consumer debit and credit cards in the EU.