CJEC, July 14, 1981, No 172-80

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

1. By an order dated 14 July 1980 which was received at the Court on 29 July 1980 the Amtsgericht (local Court) Rosenheim referred to the Court for a preliminary ruling under Article 177 of the EEC treaty a question concerning the interpretation of Articles 85 and 86 of the treaty, in order to determine the scope of those provisions in connexion with a service charge imposed by a banking undertaking established in the Federal Republic of Germany on the transfer of a sum of money by means of a cheque from one Member State to another.

2. From the file forwarded by the national court it appears that the holder of a bank account with the Bayerische Vereinsbank in Rosenheim, Federal Republic of Germany, drew a cheque on the bank on 17 July 1979 in the amount of DM 10 000 in favour of a payee resident in Italy. The bank debited his account in respect of the transfer with a "service charge" (Bearbeitungsgebuhr) of DM 15, representing 0.15% of the sum transferred.

3. The holder of the account considered that the imposition of such a charge ran counter to the provisions of the EEC treaty and sued the bank before the Amtsgericht Rosenheim for repayment of the charge.

4. He maintained, inter alia, that the imposition of the charge was incompatible with Articles 85 and 86 of the treaty because it was part of a concerted practice followed by all or most banks both in the Federal Republic of Germany and in other Community States, which was contrary to the rules on competition and capable of affecting trade between the Member States.

5. In order to clarify that last point, in particular, the national court decided to refer the following question to the Court of Justice for a preliminary ruling pursuant to Article 177 of the treaty:

"In transfers of capital and other payments between banks within the common market, is the debiting of a general service charge at a rate of 0.15% of the sum transferred a concerted practice which may affect trade, and therefore contrary to Articles 85 and 86 of the EEC treaty?".

6. The defendant in the main action raised the initial objection in the course of the oral procedure that the question of interpretation raised by the national court was without purpose because the treaty provisions on competition did not apply, at least to a great extent, to banking undertakings. It maintained that by reason of the special nature of the services provided by such undertakings and the vital role which they play in transfers of capital they must be considered as undertakings "entrusted with the operation of services of general economic interest "within the meaning of Article 90 (2) and thus are not subject, pursuant to that provision, to the rules on competition in Articles 85 and 86 of the treaty. It also relied in support of its argument on the provisions in Article 104 et seq. Of the treaty concerning "economic policy".

7. Although the transfer of customers' funds from one Member State to another normally performed by banks is an operation which falls within the special task of banks, particularly in connexion with international movements of capital, that is not sufficient to make them undertakings within the meaning of Article 90 (2) of the treaty unless it can be established that in performing such transfers the banks are operating a service of general economic interest with which they have been entrusted by a measure adopted by the public authorities.

8. As to Article 104 et seq. Of the treaty, those provisions in No way have the effect of exempting banks from the competition rules of the treaty. They appear in chapter 2 of title ii of the treaty, which concerns "balance of payments", and are restricted to stipulating that there must be coordination between the Member States on economic policy, and to that end they provide for collaboration between the appropriate national administrative departments and the central banks of the Member States in order to attain the objectives of the treaty.

9. In the light of all those considerations the objection raised by the defendant in the main proceedings must therefore be dismissed.

10. The question of interpretation was raised by the national court with reference to the debiting of a uniform service charge of 0.15% on the relevant transactions. The question arose with regard to both Article 85 and Article 86 of the treaty. In view of the fact that the order submitting the reference considers only the existence of a concerted practice as a possible infringement of Community rules on competition and having regard to the fact that Article 86 deals with the abuse of a Dominant Position and does not cover the existence of concerted practices, to which solely the provisions of Article 85 apply, examination of the question which has been referred to the Court must be restricted to the latter Article.

11. According to Article 85 (1) of the treaty: "the following shall be prohibited as incompatible with the common market: all agreements between undertakings decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction of distortion of competition within the common market".

12. As the Court has stated, in particular in its judgment of 14 July 1972 (Case 48-69 Imperial Chemical Industries Ltd v Commission (1972) ECR 619) a concerted practice within the meaning of Article 85 (1) of the treaty is a form of coordination between undertakings which, without having reached the stage where an agreement properly so called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition.

13. The Court also stated, in its judgment of 16 December 1975 (joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114-73, Suiker Unie v Commission (1975) ECR 1663, at p. 1942) that the criteria of coordination and co-operation necessary for the existence of a concerted practice in No way require the working out of an actual "plan" but must be understood in the light of the concept inherent in the provisions of the treaty relating to competition, according to which each trader must determine independently the policy which he intends to adopt on the common market and the conditions which he intends to offer to his customers.

14. Although it is correct to say that this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contract between such traders, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market.

15. The applicant in the main proceedings is of the opinion that in this case there is a concerted practice consisting in the debiting by all or most banks within the common market, or at least in the Federal Republic of Germany, of a uniform service charge for transfers of sums of a similar amount to other Member States.

16. The defendant in the main proceedings has not denied that, for transfers of funds of this nature a charge at the same rate is imposed by other banks, both in the Federal Republic of Germany and in other Member States. It has however pointed out that this similarity of conduct is not the result of an agreement or concerted practice between those banks, the object or effect of which is to produce results prohibited by Article 85 of the treaty. It has explained that the justification for imposing the charge lies in the costs involved in such transfers owing in particular to the complex nature of the exchange transactions involved, and it has observed, in addition, that the charge uniformly levied in respect of every transfer above a certain amount represents only a partial contribution towards the total cost of the transfers usually effected.

17. The fact that the charge in question is justified by the costs involved in all transfers abroad normally effected by banks on behalf of their customers, and that it therefore represents partial reimbursement of such costs, debited uniformly to all those who make use of such service, does not exclude the possibility that parallel conduct in that sphere may, regardless of the motive, result in coordination between banks which amounts to a concerted practice within the meaning of Article 85 of the treaty.

18. Such a practice is capable, precisely because of the fact that it covers international transactions, of affecting "trade between Member States" within the meaning of the above- mentioned Article, the concept of "trade" used in that Article having a wide scope which includes monetary transactions.

19. Moreover, it would fall within the prohibition in Article 85 (1) of the treaty if it were established that its object or effect was to affect significantly conditions of competition in the market in monetary transfers by banks from one Member State to another.

20. That would be the case, in particular, if a concerted practice enabled the banks participating in it to congeal conditions in their present state thus depriving their customers of any genuine opportunity to take advantage of services on more favourable terms which would be offered to them under normal conditions of competition.

21. That is a question of fact which only the Court adjudicating on the substance of the case has jurisdiction to decide. In doing so, it must consider whether between the banks conducting themselves in like manner there are contacts or, at least, exchanges of information on the subject of, inter alia, the rate of the charges actually imposed for comparable transfers which have been carried out or are planned for the future and whether, regard being had to the conditions of the market in question, the rate of charge uniformly imposed is No different from that which would have resulted from the free play of competition. Consideration must also be given to the number and importance in the market in monetary transactions between Member States of the banks participating in such a practice, and the volume of transfers on which the charge in question is imposed as compared with the total volume of transfers made by the banks from one member country to another.

22. On all those grounds, the reply to the question which has been referred to the Court must be that parallel conduct in the debiting of a uniform bank charge on transfers by banks from one Member State to another of sums from their customers' funds amounts to a concerted practice prohibited by Article 85 (1) of the treaty if it is established by the national court that such parallel conduct exhibits the features of coordination and cooperation characteristic of such a practice and if that practice is capable of significantly affecting conditions of competition in the market for the services connected with such transfers.

The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As this case is, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings before the national court, the decision as to costs is a matter for that Court.

THE COURT,

In answer to the questions referred to it by the Amtsgericht Rosenheim by an order dated 14 July 1980, hereby rules:

Parallel conduct in the debiting of a uniform bank charge on transfers by banks from one Member State to another of sums from their customers' funds amounts to a concerted practice prohibited by Article 85 (1) of the treaty if it is established by the national court that such parallel conduct exhibits the features of coordination and cooperation characteristic of such a practice and if that practice is capable of significantly affecting conditions of competition in the market for the services connected with such transfers.