Thursday, 7 February 2013

Institutional design, markets and consumers - CJEU judgment in Case C-68/12 Slovenská sporitel’ňa

To what extent can EU competition law contribute to the protection of consumer interests? Today's judgment in the Slovenská sporiteľňa case shows that the Court of Justice of the EU takes a cautious approach towards the possible extension of competition law measures beyond market-related concerns. The Court holds that:

'Article 101 TFEU [which establishes the nullity of agreements violating EU competition law; CM] must be interpreted as meaning that the fact that an undertaking that is adversely affected by an agreement whose object is the restriction of competition was allegedly operating illegally on the relevant market at the time when the agreement was concluded is of no relevance to the question whether the agreement constitutes an infringement of that provision. (...)'

This ruling is based on the consideration that:

'18 Article 101 TFEU is intended to protect not only the interests of competitors or consumers but also the structure of the market and thus competition as such (Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission and Others [2009] ECR I‑9291, paragraph 63).
19 In that regard, it is apparent from the order for reference that the agreement entered into by the banks concerned specifically had as its object the restriction of competition and that none of the banks had challenged the legality of Akcenta’s business before they were investigated in the case giving rise to the main proceedings. The alleged illegality of Akcenta’s situation is therefore irrelevant for the purpose of determining whether the conditions for an infringement of the competition rules are met.'

The CJEU emphasises that 'it is for public authorities and not private undertakings or associations of undertakings to ensure compliance with statutory requirements' (para. 20). In this context, questions of institutional design arise: What institutions are in the best position to effectively enforce competition and consumer law? For further observations regarding some recent developments in this area, I refer to our colleagues on the ACELG blog - 'Integrate or separate: institutional design for the enforcement of competition law and consumer law'.

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