Budapest Bank: New Light Shed on the Notion of Restriction of Competition ‘By Object’

Abstract

Judgment of the Court in Case C-228/18 Gazdasági Versenyhivatal/Budapest Bank Nyrt e.a., 2 April 2020 (ECLI:EU:C:2020:265). The Court of Justice clarifies that the same conduct can be held to infringe Article 101(1) TFEU for having both the object and the effect of restricting competition. It concludes that, in the credit card payment system, a multilateral interchange fee does not constitute a restriction ‘by object’ unless its terms, objectives, and context reveal a sufficient degree of harm to competition in the light of experience. Together with AG Bobek’s opinion, the ruling remarkably clarifies that a ‘by object’ restriction of competition shall be based on sufficiently common, robust, constant, and reliable experience and that the counterfactual is relevant. On 2 April 2020, the Court of Justice of the EU ruled on questions referred by the Hungarian Supreme Court pursuant to Article 267 TFEU. This case relates to an agreement adopted by banks active in Hungary, which introduced from October 1996 to July 2008 a uniform multilateral interchange fee (‘MIF’) in relation to credit card transactions.