On 7 February 2013, the Court of Justice of the European Union ("ECJ") ruled that the fact that an anticompetitive agreement between undertakings was aimed at excluding another undertaking which was operating illegally on the relevant market was irrelevant for the purposes of applying Article 101(1) TFEU. The issue came before the ECJ on a request for a preliminary ruling from a Slovak court in a case concerning measures taken by a number of Slovak banks to exclude the Czech competitor Akcenta from the Slovak market.
Akcenta, based in the Czech Republic, provides various banking services. At the relevant time, Akcenta was also active in Slovakia, although it did not have the banking licence required under Slovak law for it to conduct business in Slovakia. Three Slovak banks considered that Akcenta's activities were adversely affecting their profits and agreed to terminate their current account contracts with Akcenta and refrain from concluding new contracts with Akcenta in a bid to drive Akcenta off the market. In June 2009, the Slovak Competition Authority ("SCA") fined the three Slovak banks for entering into this collective boycott arrangement, finding it to breach Article 101 TFEU and the equivalent provisions of Slovak national law.
One of the Slovak banks, Slovenská sporiteľňa, brought proceedings against the SCA's decision before the Slovak courts, arguing in particular that it had not breached the competition rules as Akcenta, which was operating illegally on the Slovak market, could not properly be regarded as its competitor. The first instance court upheld Slovenská sporiteľňa's appeal and the SCA appealed to the Slovak Supreme Court, which referred questions to the ECJ for a preliminary ruling.
In its judgment, the ECJ noted that, for the purposes of applying Article 101(1) TFEU, it is not necessary to take account of the concrete effects of an agreement once it appears that the agreement had the object of preventing, restricting or distorting competition. The ECJ indicated that the agreement entered into by the Slovak banks had as its object the restriction of competition and stated that the alleged illegality of Akcenta's situation was irrelevant for the purpose of determining whether the conditions of an infringement of the competition rules were met. The ECJ also noted that none of the Slovak banks had challenged the legality of Akcenta's business presence in Slovakia before they were investigated by the SCA.
Responding to another claim raised before the Slovak Supreme Court, the ECJ also held that the Slovak banks could not avoid liability for the breach of Article 101(1) TFEU on the basis that the employees who took part in the anti-competitive arrangements had not been authorised to do so.
Finally, as regards the possible application of Article 101(3) TFEU, the ECJ noted that, even if it could be seen that the agreement promoted economic progress by excluding an illegal actor from the market, it seemed doubtful that the agreement met the other three conditions for the application of Article 101(3) TFEU. In particular, the ECJ remarked that the objective of removing an allegedly illegal competitor from the market could have been achieved by the Slovak banks in a manner that was less restrictive of competition, notably by lodging a complaint with the relevant authorities rather than taking it upon themselves to eliminate the competing company.
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