General Court restates the test for abusive discrimination contrary to Article 102 TFEU in the Clearstream appeal

26 October 2009

Richard Eccles

The General Court has restated the test for a finding of discriminatory conduct as abusive dominant position contrary to Article 102 TFEU.  The Court upheld a decision of the European Commission to the effect that Clearstream Banking AG had abused its dominant position in the provision of primary clearing and settlement services for German securities by means of discriminatory pricing, to the detriment of Euroclear Bank SA, a provider of secondary clearing and settlement services.  The Court stated that where the behaviour of the dominant undertaking tends, in all the circumstances, to lead to the distortion of competition, it is not necessary also to prove an actual quantifiable deterioration of the competitive position as between the affected business partners taken individually.

The European Commission, upheld by the Court, found that the relevant market was the provision by Clearstream Banking of primary clearing and settlement services in respect of securities issued under German law, to intermediaries such as central securities depositories and international central securities depositories.  Clearstream Banking held a de facto monopoly over this activity and was therefore an indispensable commercial partner.  Moreover, Euroclear was one of only two international central securities depositories in the EU, the other being Clearstream Banking Luxembourg SA, part of the same Clearstream Banking group.

No other company would be in a position in the near future to provide primary clearing and settlement services of the kind required by such depositories, including Euroclear, for trade in securities issued under German law.  For intermediaries requiring primary clearing and settlement services in order to be able efficiently to provide secondary clearing and settlement, secondary clearing and settlement were not a valid economic alternative. 

Clearstream refused to supply Euroclear with clearing and settlement services in respect of German registered shares, which forced Euroclear to use the more expensive services of an intermediary.  The refusal to provide access to Clearstream’s computerised Cascade RS settlement system, together with Clearstream’s unjustified discrimination against Euroclear, in terms of high prices, were regarded as different aspects of the same behaviour.  By contrast, a competitor of Euroclear Bank was granted direct access to Cascade RS in only four months.

Clearstream had not established that the services it supplied to Euroclear differed to those provided to other customers or reflected any special need of Euroclear. The Court upheld the Commission’s conclusion that the primary clearing and settlement services provided by Clearstream to the central securities depositories and the international central securities depositories were equivalent.  Even though Euroclear had a higher transaction volume, this factor did not in itself justify higher prices, as the resulting higher level of automation could be expected to lead to a price reduction rather than a price increase. 

Clearstream’s refusal to provide Euroclear with primary clearing and settlement services for its shares hindered Euroclear’s capacity to provide comprehensive, pan-European and innovative services. 

The Court concluded that in order for there to be an abusive discrimination contrary to Article 102, there must be a finding not only that the behaviour of the dominant undertaking is discriminatory, but also that it tends to distort that competitive relationship, that is, to hinder the competitive position of some of the business partners of that undertaking in relation to the others (the Court cited the British Airways case, Case C-95/04P British Airways v Commission [2007] ECR I -2331).  However, provided that such a distortion of competition is shown, it is not also necessary to provide proof of an actual quantifiable deterioration of the competitive position of the business partners taken individually (paragraph 193 of the Clearstream judgement).  The Court concluded (paragraph 194) that the application of different prices for different services continuously over a five year period by an undertaking having a de facto monopoly on an upstream market could not fail to cause that partner a competitive disadvantage.

One of the most interesting features of the judgment is the qualification that the Court placed on the established requirement for a distortion of competition as a key element of an abusive discrimination.  Specifically, the Court in effect allowed for what amounts to a presumption that the application by a de facto monopolist of different prices for equivalent services over a five year period causes a competitive disadvantage to the victim of such differentiation.