In MasterCard and Others v. Commission, the European Court of Justice adviser Advocate General Paolo Mengozzi, backed a European Commission decision drastically reducing MasterCard Inc.’s bank-to-bank credit card processing fees. Advocate general rejected MasterCard’s argument that the lower court used the wrong standard in deciding whether the court should treat the company’s conduct as a concerted practice by a group of companies once it went public. According to the advocate general, the concepts of “agreement,” “concerted practice” and “decision by an association of undertakings” are intended to catch all collusion between undertakings which produce the effects prohibited by that provision, irrespective of the form which it takes. Accordingly, undertakings cannot avoid the prohibition laid down in that provision by the mere fact that they coordinate their conduct on the market through a body or a joint structure or that they entrust such coordination to an independent body, according to Mengozzi.
Mengozzi also rejected MasterCard’s attempt to apply a stricter standard to determine whether it counts as an association of undertakings, saying the test MasterCard advocated applies to public bodies that serve a professional purpose — not purely private enterprises like MasterCard. Finally, Mengozzi dismissed MasterCard’s contentions that the General Court improperly relied on the fact that MasterCard and the banks had similar interests to support the notion that they formed an association of undertakings capable of violating the antitrust rules.
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