Frederic Pradelles, Andreas Scordamaglia-Tousis, Jan 30, 2015
The European Court of Justice recently delivered two seminal rulings in Groupement des Cartes Bancaires v Commission and MasterCard v Commission. These two judgments brought much awaited clarification to the application of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) in two important areas. First, they spelled out the distinction between “by object” and “by effect” restrictions of competition. Second, they presented a novel analysis for the assessment of efficiencies under Article 101(3) TFEU in the context of multi-sided market. These clarifications will have important implications on the future assessment of two-sided markets under Article 101(1) TFEU. All the more, the Court in Cartes Bancaires made some important statements that have the effect of intensifying the level of judicial review of matters over which the Commission has traditionally enjoyed a “margin of appraisal,” such as for complex economic matters.
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