CASE LAW: Joined Cases T-39/92 and T-40/92, Groupement Des Cartes Bancaires CB and Europay International SA v. Commission of the European Communities, 1994 E.C.R. 11-49

1 Colum. J. Eur. L. 128 (1994)

Jan Vanhamme. Researcher, Institute for European Law, Catholic University, Leuven, Belgium.

In 1980, the banks and credit institutions participating in the Eurocheque system1 concluded a so-called “Package Deal Agreement,” to run from 1981 to 1986. In 1982, the Commission of the European Communities was notified of this agreement by the chairman of the Eurocheque Assembly. Although the Commission also received numerous complaints from consumers who claimed that they had been exposed by the Eurocheque System to certain “wild-cat” commissions and double charges, it exempted the Package Deal Agreement from the application of Article 85(1) of the EC Treaty.

In 1983, the Eurocheque Assembly met in Helsinki and concluded an agreement with French banks and financial institutions concerning the acceptance by traders in France of Eurocheques drawn on foreign financial institutions. Among other things, this “Helsinki Agreement” imposed an obligation on certain financial groups to charge the traders affiliated with them a service commission for the collection of payments made by Eurocheque. The Helsinki Agreement was not initially notified to the Commission. However, in 1989, the Commission discovered that commissions were being improperly charged in several Member States, and notably in France, and it requested information from Eurocheque International. Eurocheque International, which has been one of the parties to the Helsinki Agreement, revealed to the Commission that such an agreement had been concluded and provided it with the text. One year later, in 1990, another party to the agreement, the Groupement des Cartes Bancaires CB (“the Groupement”), formally notified the Helsinki Agreement to the Commission.

In the meantime, a new Package Deal Agreement had been drafted, and the Commission was again asked to exempt that agreement from Article 85(1) of the Treaty. This time, the Commission was more hesitant, due in part to the fact that the existence and nature of the Helsinki Agreement had raised suspicions about the Eurocheque system in general. Instead of granting an exemption, the Commission chose to open administrative proceedings against both Eurocheque International and the Groupement. These proceedings entailed Statements of Objections from the Commission, subsequent replies of Eurocheque International and the Groupement, a hearing, and finally a decision of the Commission, declaring the Helsinki Agreement incompatible with Article 85(1) of the Treaty, refusing the requested exemption, and imposing a fine of 5 million ECU on the Groupement and 1 million ECU on Eurocheque International.”

Both Eurocheque International (now appearing as “Europay International,” due to its merger into a new company) and the Groupement brought actions before the Court of First Instance (CFI), asking the Court to annul the Commission’s decision or, alternatively, to annul or at least reduce the fines. Although the two cases were joined, this did not lead to the same result in Eurocheque’s and the Groupement’s actions; in fact the Court reached very different conclusions.