In a recent judgment (Case C-68/12 Protimonopolný úrad Slovenskej republiky v Slovenská sporitel’ňa a.s.), the Court of Justice held that the fact that the undertaking that is being affected by an anticompetitive agreement might be operating illegally on the market is irrelevant for the application of Article 101 TFEU.
The Slovak competition authority had imposed a fine on three banks that had decided, by common agreement, to terminate in a coordinated manner the contracts they had concluded with Akcenta, a non-bank financial institution that was providing competing services. The case eventually made it to the Slovak Supreme Court which referred questions to the Court of Justice for a preliminary ruling.
In essence, the Supreme Court asked the Court of Justice to determine the legal relevance for the assessment under Article 101(1) and 101(3) TFEU of the fact that the competitor that was adversely affected by the agreement was allegedly operating illegally on the relevant market when the agreement was concluded.
The Court of Justice found that the alleged illegality of Akcenta’s situation was irrelevant for the assessment under Article 101(1) TFEU because “it is apparent from the order of 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.” (para. 19) The Court added that “it is for public authorities and not private undertakings or associations of undertakings to ensure compliance with statutory requirements.” (para. 20)
On the possible application of Article 101(3) TFEU, the Court held that the conditions described in that article, and in particular, the third condition, whereby an agreement must not impose on the undertakings concerned restrictions which are not indispensable, were not met in the present case. The Court found that “[e]ven if, as stated by the parties to that agreement, the purpose was to force Akcenta to comply with Slovak law, it was for those parties […] to lodge a complaint with the competent authorities in that respect and not to take it upon themselves to eliminate the competing undertaking from the market.” (para. 35)
This judgment is somewhat disappointing, as the exclusion of an undertaking operating illegally on a market would not seem to have any effect on competition. The Court conveniently ignored this issue by stating that the agreement restricted competition “by object”. It remains to be seen whether the Court will adopt a similar judgment in cases involving a restriction by effect or an abuse of a dominant position.
Otherwise, the case appears to be in line with the principles developed in cases such as Wouters and Meca Medina where the Court found that restrictions of competition which are inherent to the pursuit of a legitimate objective do not infringe Article 101(1) TFEU. In the present case, ensuring compliance with statutory requirements does not seem to be a legitimate objective, or at least the competition restrictions do not seem to be inherent to the pursuit of this objective because the banks could have challenged the legality of Akcenta before the relevant authorities.
The judgment also echoes the General Court’s findings in Hilti where, in reply to the argument that the anticompetitive conduct was justified by safety considerations, it found that: “there are laws in the United Kingdom attaching penalties to the sale of dangerous products and to the use of misleading claims as to the characteristics of any product. There are also authorities vested with powers to enforce those laws. In those circumstancesit is clearly not the task of an undertaking in a dominant position to take steps on its own initiative to eliminate products which, rightly or wrongly, it regards as dangerous or at least as inferior in quality to its own products.” (para. 118).