Mif Agreement

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The ECJ`s decision in the GVH case against Budapest Bank and others is involved in a number of cases (starting with the alliance,15 and followed by Bank Cards, MasterCard,16Maxima Latvija17 and Hoffmann-La Roche – Novartis18) which reformed the concept of anti-competitive object. Although this is a specific aspect (uniform treatment of the two payment card systems), the GVH decision in favour of Budapest Bank, among others, deals with the general question of whether MICs can be considered naïve after a brief review of all the circumstances and provides another example of the ECJ`s attempt to return the genius cited by the alliance to the bottle. For a long time, the anti-competitive object was considered a classification doctrine that generated an amplified but relatively comprehensive list of hard core restrictions and recalled the concept of U.S. antitrust legislation of agreements per se. In its Allianz19 decision, the ECJ has changed this concept and has invited competition authorities and the courts to review the agreements on a case-by-case basis. In Vj-18/2008 MIF, the Hungarian Competition Office (HCO) applied a combination of two approaches: it condemned Hungarian banks to fix the national IJC and to treat the two payment card companies both objectively and efficiently and effectively. The decision was appealed and the Hungarian Supreme Court (“Kéria”) asked four preliminary questions. The European Court of Justice (ECJ) answered the first two questions, but ruled the rest inadmissible. The first question did not raise difficult questions of interpretation. The Court confirmed that the anti-competitive and anti-competitive effects of competition authorities and civil parties can be used as parallel legal bases: it is not against the law to characterize the same agreement as both its purpose and its anti-competitive effectiveness. The second question proved more difficult: the Hungarian Supreme Court asked the European Court of Justice whether the aim was to set interchange fees by Hungarian banks on a multilateral basis and uniformly for the two payment card systems (MasterCard and Visa).

In general, these fees were not set on a bilateral basis, but by a single multilateral interchange commission (“IJC”). This practice has led to various competition investigations in Europe (2) in which competition authorities have approached the IJC in various ways: some consider it an agreement that must be assessed on the basis of its effects, others calling it anti-competitive. In the end, the controversies over the IJC resulted in European legislation in the form of a regulatory cap3. Given that the remuneration fee paid taking into account the services provided by the issuing bank is set uniformly by competitors, this conclusion is overshadowed by the fact that the agreement covers both parts of the market (seller and buyer) and that the IJC can be seen as an incidental benefit for the effective operation of the payment card system and as a means of encouraging the use of this method of payment.

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