18 avr. 2011

“Finding a business partner” as a criterion in competition law, Visa, T-461/07

The EU General Court confirmed the fine of EUR 10 200 000 imposed by the European Commission on Visa International and Visa Europe Ltd. for their refusal to allow their competitor Morgan Stanley Bank International Ltd. (UK) issuing Discover Cards to issue Visa and Master Cards.

Visa International argued that despite refusing to allow the Discover Card issuer to issue Visa and Master Cards, Morgan Stanley could find a fronting partner, i.e. an entity that had already been authorized to issue Visa, and enter into a relationship with that entity. The EU General Court applied the finding a business partner criterion and concluded that this option had been excluded for Morgan Stanley, since:

1) a fronting agreement does not allow a new competitor to enter the market but rather reinforces the already existing service providers (§ 91);
2) previously fronting arrangement granted the access to the market to processing companies only, and not to banks (§ 92);
3) other large international banks would not be interested in entering in such a relationship with Morgan Stanley (§ 93).

It is remarkable that Morgan Stanley was not required to prove any attempt to find a business partner.

It is also interesting how the European Commission defined the period of violation: not from the date of the refusal to enter into a relationship (22/03/2000, § 4) but from the date of statement of objection by the Commission (02/08/2004, § 28).

Aucun commentaire: