Abstract
In the field of competition, national competence and EU competence are autonomous and parallel, the latter being defined by the criterion of the effect of trade among Member States (Moussis(2013)). The CJEU remit to decide on the legitimacy of the behaviour of undertakings in the market is dictated by the actual or potential European dimension of the matter at stake, i.e. agreements, decisions or practices which may affect trade between EU countries within the meaning of Article 101 TFEU, as well as the interpretation of EU law.
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- 1.
Moussis (2013).
- 2.
See official website of the European Union at http://europa.eu/legislation_summaries/competition/firms/l26110_en.htm “Council Regulation (EC) No 1/2003 on the implementation of the competition rules laid down in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) (ex-Articles 81 and 82 of the Treaty Establishing the European Community (TEC)) establishes a system of parallel competences in which the Commission, European Union (EU) countries’ competent national competition authorities and national courts can all apply Articles 101 and 102 TFEU. National courts can apply Articles 101 and 102 TFEU without it being necessary to apply national competition law in parallel. However, where a national court applies national competition law to agreements, decisions or practices which may affect trade between EU countries within the meaning of Article 101(1) TFEU (ex-Article 81(1) TEC) or to any abuse prohibited by Article 102 TFEU, they also have to apply EU competition rules to those agreements, decisions or practices”.
- 3.
- 4.
- 5.
Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, OJ 2008 L 133/66.
- 6.
- 7.
Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010, OJ 2014 L 60/34.
- 8.
- 9.
Giannetti et al. (2010).
- 10.
Asnef, para 60.
- 11.
Giannetti et al. (2010).
- 12.
Conseil Constitutionnel, Décision n. 2014-690 DC du 13 mars 2014.
- 13.
- 14.
Article 8 of the Consumer Credit Directive (CCD), cit. supra at note n. 4.
- 15.
Ibid., Article 9.
- 16.
Art. 21(1) of the Mortgage Credit Directive (MCD), cit. supra at note n. 6.
- 17.
Ibid., Article 21(2).
- 18.
Ibid., Recital 60.
- 19.
European Commission, “Report on the retail banking sector inquiry”, Commission Staff Working Document accompanying the Communication from the Commission—Sector Inquiry under Art 17 of Regulation 1/2003 on retail banking (Final Report) [COM(2007) 33 final] SEC(2007) 106; see also Giannetti et al. (2010).
- 20.
For instance some Member States follow a comprehensive positive data reporting approach (every single credit is reported upon, independently as to whether the consumer is in arrears or not), while credit registers in other countries only engage in negative reporting (credits are only be reported upon once the consumer did not manage to meet his/her payment obligations).
- 21.
Commission adoption of a proposal for a Directive on credit agreements relating to residential property, COM(2011)142. The following provisions were deleted during the negotiations between the Council and the European Parliament:
Article 14(5)—“Powers are delegated to the Commission (…) to specify and amend the criteria to be considered in the conduct of a creditworthiness assessment as laid down in paragraph 1 of this Article and in ensuring that credit products are not unsuitable for the consumer as laid down in paragraph 4 of this Article”.
Article 16(2)—“Powers are delegated to the Commission (…) to define uniform credit registration criteria and data processing conditions to be applied to the databases referred to in paragraph 1 of this Article. In particular, such delegated acts shall define the registration thresholds to be applied to such databases and shall provide for agreed definitions for key terms used by such databases”.
- 22.
- 23.
Workers—Article 45 TFEU (ex Article 39 TEC) to Article 48 TFEU (ex Article 42 TEC). Right of Establishment—Article 49 TFEU (ex Article 43 TEC) to Article 54 TFEU (ex Article 48 TEC).
- 24.
Watson v Belmann (Case C-118/75) [1976] ECR 1185, [1976] 2 CMLR 552; Luisi v Ministero del Tesoro (Case C-286/82), [1984] ECR 377, [1985] 3 CMLR 52; Commission v Netherlands (Case C-68/89) [1991] ECR I-2637, [1993] 2 CMLR 389. Note that the impact of citizenship rights is also felt in this area of EU Law. See e.g. Carpenter (Case C-60/00) [2002] ECR I-6279 C-71/02.
- 25.
Article 45 TFEU (ex Article 39 TEC).
As required under Article 45(3)(d) TFEU (ex Article 39(3)(d) TEC) and Article 46 TFEU (ex Article 40 TEC), secondary legislation was introduced to give substance to the free movement of workers. Principal interventions include Directive 68/360/EEC, OJ L 257 p 0013-0016, governing rights of entry and residence; Regulation 1612/68, OJ L 257 p 0002-0012, governing access to, and conditions of, employment; Regulation 1251/70 OJ L 142 p 0024-0026, governing rights to remain in the territory of a Member State after having been employed there; Directive 64/221/EEC OJ L 56 p 0850-0857, governing Member States' right to derogate from the free movement provisions on the grounds of public policy, public security, or public health. Such measures were later repealed or updated by the so-called Citizenship Directive 2004/38/EC, infra below at note n. 26. The term 'worker' has been broadly construed by the following jurisprudence of the Court of Justice of the EU (ex European Court of Justice). See Hoekstra v BBDA (Case C-75/63) [1964] ECR 177, [1964] CMLR 319; Levin v Staatssecretaris van Justitie (Case C-53/81) [1982] ECR 1035, [1982] 2 CMLR 454; Kempf v Staatssecretaris van Justitie (Case C-139/85) [1986] EC 1741, [1987] 1 CMLR 764. For the free movement of students see Brown v Secretary of State for Scotland (Case C-197/86) [1988] ECR 3205, [1988] 3 CMLR 403; Lair v Universitat Hannover (Case C-39/86) [1989] ECR 3161, [1989] 3 CMLR 545. See also Directive 93/96/EC OJ L 317 p. 0059-0060 now replaced by the Citizenship Directive 2004/38/EC, infra below at note n. 26.
- 26.
Articles 49-54 TFEU (ex Articles 43-48 TEC) provide for the right of establishment. Articles 56-62 TFEU (ex Articles 49-55 TEC) establish the right to provide services.
- 27.
Directive 2004/38/EC, OJ L 317 p 0059-0060. Grounds for derogation are public security, public health, and public policy.
- 28.
Baumbast v R (Case C-413/99) [2002] ECR I-7091; Martinez Sala v Freistaat Bayern (Case C-85/96) [1998] ECR I-2691; Collins v Secretary of State of Work and Pensions (Case C-138/02) [2005] QB 145, [2004] 3 WLR 1236, [2004] ALL ER (EC) 1005; Trojani v Le Centre Public d'Aide Sociale de Bruxelles (Case C-456/02) [2003] C-144/13.
- 29.
Article 18 TFEU (ex Article 12 TEC).
- 30.
Union Royale Belge des Sociétés de Football Association v Bosman (Case C-415/93) [1995] ECR I-4921, [1996] 1 CMLR 645.
- 31.
Ministère Public v Even (Case C-207/78) [1979] ECR 2019, [1980] 2 CMLR 71.
Of particular interest for the subject matter of this work is Reina v Landeskreditbank Baden-Wurttemberg (Case C-65/81) [1982] ECR 33, [1982] 1 CMLR 744. An Italian couple living in Germany claimed a special State-financed childbirth loan from a bank, which was however payable only to German nationals living in Germany. The bank claimed that the loan was not a social benefit as it was not granted as a social right and in any event was granted as every other loan on a discretionary basis (arguing that the difference in treatment was justified on account of the practical difficulties of recovering loans from workers later returning to their home country). The CJEU (ex ECJ) held that the loan should have been granted by reason of the claimant's objective status and that social advantages covered not only benefits granted as of right but also those granted on a discretionary basis.
Similarly, see Commission v Italy (Case C-63/86) [1986] ECR 29, [1988] CMLR 16 where it was held that a discounted mortgage facility available to Italian nationals was in breach of then Art. 7 EEC, now Article 18 TFEU (ex Article 12 TEC), and therefore should have been made available on a basis of equality to all residing EC nationals in Italy.
- 32.
Gravier v City of Liège (Case C-293/83) [1985] ECR 593, [1985] 3 CMLR 1; Luisi v Ministero del Tesoro (Case C-286/82), cit. supra at note n. 23.
- 33.
Directive 2004/38/EC, cit. supra at note n. 26. Such extension has some limitations applying to those who are not economically active (excluding family members of economically active ones) as far as it concerns social assistance during the first three months of residence or while seeking work.
- 34.
Some of the most interesting cases on the repercussions of citizenship can be observed in Grzelczyk (Case C-184/99) [2001] ECR I-6193; Collins v Secretary of State of Work and Pensions (Case C-138/02), cit. supra at note n. 27; Ioannidis (Case C-258/04) [2005] 3 CMLR 47.
- 35.
A voluntary system also provides an incentive to strategically report incomplete information on their good clients to deter others to attract them. See Giannetti et al. (2010), Bouckaert and Degryse (2004), pp. 27–52; Bouckaert and Degryse (2006), pp. 702–720; Gehrig and Stenbacka (2007), pp. 77–99.
- 36.
It should be acknowledged that the Commission mandated an Expert Group on Credit Histories to look at ways to facilitate the cross-border exchange of credit data. The report failed to find consensus and consumer organisation refused to underwrite it. See European Commission (2009). Nothing came out from the Report in policy or legislative terms. The Report remains a controversial document both in content and in its recommendations.
- 37.
Deutsche Bundesbank (2005).
- 38.
GlaxoSmithKline Services Unlimited v Commission (Joined cases C-501/06 P, C-513/06 P, C-515/06 P, and C-519/06 P) [2009] ECR I-9291, para 63.
- 39.
See Chillin’ Competition Blog, “The vertical expression of a horizontal desire” at http://chillingcompetition.com/2012/03/28/the-vertical-expression-of-a-horizontal-desire/.
- 40.
European Commission, Guidelines on Vertical Restraints [2010] OJ C130/1; in particular see para 211 where the European Commission is of the view that “agreements may facilitate collusion between distributors when the same supplier serves as a category captain for all or most of the competing distributors on a market and provides these distributors with a common point of reference for their marketing decisions”.
- 41.
Coöperatieve Vereniging ‘Suiker Unie’ Ua v Commission (Joined Cases 40–48, 50, 54–56, 111, 113, 114–73) [1975] ECR 1663. In the UK, see for example Office of Fair Trading (OFT) Decision of 1 August 2003 into Price-fixing of Replica Football Kits [2003] Case CP/0871/01; OFT Decision of 21 November 2003 into Agreements between Hasbro UK Ltd, Argos Ltd, and Littlewoods Ltd [2003] Case CP/0480–01; Allsports Limited v Office of Fair Trading [2004] CAT 17; JJB Sports plc v Office of Fair Trading [2006] EWCA Civ 1318; Dairy Tesco v Office of Fair Trading [2012] CAT 31.
- 42.
On vertical agreements see Commission Regulation (EU) No. 330/2010 of 20 April 2010 on the application of Article 101(3) TFEU to categories of vertical agreements and concerted practices, OJ No. L 102 of 23 April 2010, p. 1. See also cases Consten and Grundig vs Commission (Joined Cases 56/64 and 58/64 of 13 July 1966) [1966] ECR 299.
- 43.
See, for example, US v Apple et al. 12 Civ. 2826 (July 10, 2013).
- 44.
Odudu (2011), pp. 205–242.
- 45.
Giannetti et al. (2010).
- 46.
European Commission, “Report on the retail banking sector inquiry”, Commission Staff Working Document accompanying the Communication from the Commission—Sector Inquiry under Art 17 of Regulation 1/2003 on retail banking (Final Report) [COM(2007) 33 final] SEC(2007) 106; European Commission (2009).
- 47.
Fatur (2011).
- 48.
- 49.
Pagano and Jappelli (1993), pp. 1693-1718.
- 50.
Ibid. See also Olegario (2003), pp. 115–159.
- 51.
- 52.
According to Article 102 TFEU, “Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.
Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
- 53.
- 54.
Europemballage Corporation and Continental Can Company v Commission (Case 6/72) [1973] ECR 215.
- 55.
- 56.
Ibid.
- 57.
For e.g. a detailed and comprehensive account is provided by O’Donoghue and Padilla (2013).
- 58.
- 59.
Ibid.
- 60.
- 61.
As explicitly documented by the Deutsche Bundesbank (the Central Bank chairing the Working Group on Credit Registries), in fact, "data on the total amount of loans taken up will be available for each of the participating countries as well as on an aggregated basis. The data will also provide a breakdown into asset items and off balance-sheet transactions. There will be no cross-border exchange of information on loans to individuals" (emphasis added). See Deutsche Bundesbank (2005).
- 62.
Additionally, the existing technologies in use in the sector support the view that, for such a system to be complemented, radical organisational or innovative measures would not be required. Certainly, there may be one-off costs in the adaptation of existing systems or the creation of new ones for countries that may have a different system in place.
- 63.
Graef (2014), pp. 6–19.
- 64.
- 65.
The European Commission has studied the possible introduction of new legal measures to improve software interoperability but it concluded that legal intervention was not appropriate. See European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions—A Digital Agenda for Europe, COM (2010) 245 final, available at http://eur-lex.europa.eu/legal-content/EN/ALL/;jsessionid=dmKpTG3hGG13pMsFy2LVZCvnG2Nzb1Lb4g2ZDJnCDPpwnJYzvx7M!1011527203?uri=CELEX:52010DC0245R(01); European Commission, Commission Staff Working Document—Analysis of measures that could lead significant market players in the ICT sector to license interoperability information, SWD (2013) 209 final, available from http://ec.europa.eu/digital-agenda/en/news/analysis-measures-could-lead-significant-market-players-ict-sector-license-interoperability. See also Graef (2014), pp. 6–19.
- 66.
Schellingerhout (2011), pp. 3–9.
- 67.
Microsoft v Commission (Case T-201) [2004] ECR II-4463.
- 68.
European Commission, Communication from the Commission, Guidance on the Commission’s Enforcement Priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, C (2009) 864 final (Brussels, 9 February 2009).
- 69.
Graef (2014), pp. 6–19.
- 70.
Kuneva (2009)
- 71.
According to The Economist, “When the tide goes out” (March 24th–30th 2007), 36, interest rates on such loans are usually at least 50 % higher than those charged to lenders' best customers. See also The Economist, “The trouble with the housing market” (March 24th–30th 2007), sp. 11; The Economist, “Cracks in the facade” (March 24th–30th 2007), sp. 87–89.
- 72.
Microsoft v Commission (Case T-201), cit. supra at note n. 66.
- 73.
European Parliament (2011), Responsible Lending—Barriers to Competition, DG for Internal Policies, Economic and Monetary Affairs, Table 3, p. 81–82—IP/A/ECON/ST/2011-05, Brussels: European Parliament.
- 74.
See Jappelli and Pagano (2006), pp. 347–371.
- 75.
Garante per la Protezione dei Dati Personali (Italian Data Protection Authority), “Balancing of interests: data collection by CRAs without consent” (Rome, 16 November 2004), available at http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1671380.
- 76.
Ibid.
- 77.
In the EU no proprietary rights exist on information but the rights granted by data protection law.
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Ferretti, F. (2014). The Integration of EU Retail Financial Markets and Competition Law in Information Markets. In: EU Competition Law, the Consumer Interest and Data Protection. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-08906-5_4
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