C-172/80
ECLI:EU:C:1981:178
- Súd
- Súdny dvor Európskej únie
- IČS
- 61980CJ0172
- Zdroj
- eur-lex.europa.eu ↗
ZÜCHNER ν BAYERISCHE VEREINSBANK
In Case 172/80,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Amtsgericht [Local Court] Rosenheim for a preliminary ruling in the action pending before that court between
GERHARD ZÜCHNER, Rosenheim,
and
BAYERISCHE VEREINSBANK AG, Munich,
on the interpretation of Articles 85 and 86 of the EEC Treaty,
THE COURT
composed of: J. Mertens de Wilmars, President, P. Pescatore, Lord Mackenzie Stuart and T. Koopmans, (Presidents of Chambers), A. O'Keeffe, G. Bosco, A. Touffait, O. Due and U. Everling, Judges,
Advocate General : Sir Gordon Slynn Registrar: J. A. Pompe, Deputy Registrar
gives the following
JUDGMENT
Facts and Issues
I — Facts and written procedure Rosenheim in the Federal Republic of Germany. On 17 July 1979 he drew a Mr Züchner, the plaintiff in the main cheque on the defendant bank in the action, has an account with the amount of DM 10 000 in favour of a Bayerische Vereinsbank AG, the payee resident in Italy. For this a defendant in the main action, at "service charge" of DM 15, representing
JUDGMENT OF 14. 7. 1981 — CASE 172/80
0.15% of the sum transferred, was The order making the reference was debited to his account by the defendant. lodged at the Court Registry on 29 July 1980.
An appeal by the Bayerische Vereinsbank Mr Züchner sued the Bayerische AG against the order, on the ground that Vereinsbank AG before the Amtsgericht as the sum of D M 15 had in the Rosenheim for repayment of the charge. meantime been reimbursed the plaintiff H e maintains, inter alia, that the no longer had an interest in the reference imposition of the "service charge" is for a preliminary ruling, was dismissed incompatible with Article 67 of the EEC by the Landgericht [Regional Court] Treaty because it introduces dis- Traunstein. The latter held that in the crimination between transfers of capital present instance the plaintiff still had an within the country and transfers abroad, interest in obtaining confirmation that and with the competition rules in the his action for recovery was well-founded Treaty because it is a practice followed as the defendant could at any time ask by all the banks, or most of them, both him to pay transfer charges for in Germany and in the other Community transactions such as those which were countries and is liable to affect trade the subject-matter of the action. between Member States. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted by Mr Züchner, the The Amtsgericht considered that Article Bayerische Vereinsbank AG, represented 67 of the EEC Treaty was not relevant by Gleiss, Lutz, Hootz, Hirsch & to a decision in the case, being a Partners of the Stuttgart Bar, and by provision which binds only the Member the Commission of the European States and has no direct effect as regards Communities, represented by Götz zur citizens of the European Economic Hausen, a member of its Legal Community. It allowed that that was not Department, acting as Agent. so, however, in the case of Articles 85 and 86 of the EEC Treaty because they are also binding on citizens of the On hearing the report of the Judge- common market. By an order dated Rapporteur and the views of the 14 July 1980, therefore, it stayed the Advocate General the Court decided to proceedings and requested a ruling from open the oral procedure without any the Court of Justice on the following preparatory inquiry. However, it asked question: the parties to the main action and the Commission to state during the oral procedure "on what basis a charge of 0.15% on transfers of sums similar in magnitude to that which is the subject- "In transfers of capital and other matter of the action in question from one payments between banks within the Member State to another may generally common market, is the debiting of a be considered as the minimum necessary general service charge at a rate of 0.15% to cover the intrinsic costs of sucn of the sum transferred a concerted transactions". The Court also decided to practice which may affect trade, and assign the case to the First Chamber in therefore contrary to Articles 85 and 86 application of Article 95 (1) and (2) of of the EEC Treaty?". the Rules of Procedure.
ZÜCHNER ν BAYERISCHE VEREINSBANK
By an order of 26 March 1981 the First relied on that article before the national Chamber decided pursuant to Article 95 court principally in order to counter the (4) of the Rules of Procedure to refer defendant's allegation that there were the case to the full Court. not Community legal provisions appli cable to agreements made under private law. H e adds that the fact that the contested charge is imposed at the same II — Observations submitted rate in other Member States, and by all under Article 20 of the the banks in the Federal Republic of P r o t o c o l on t h e S t a t u t e of Germany, may amount to an indication t h e C o u r t of J u s t i c e of t h e that there is a concerted practice. EEC The Bayerische Vereinsbank AG submits that the question which has been referred Mr Ziichner considers that as the Court to the Court for a preliminary ruling is has a duty to interpret Community law open to different interpretations. in such a manner as to enable the court hearing the main action to apply that law If the intention is understood to be to it should examine in the course of the establish the existence of an infringement present proceedings not only the scope of Article 85 of the Treaty where the of the provisions expressly referred to by substantive requirements laid down in the court making the reference but also the rules are met, it must be conceded that of other articles of the Treaty which that under those conditions the existence may have been infringed by the bank's of an infringement is clear and as a result imposition of a transfer charge. the need to interpret the EEC Treaty does not arise. He is of the opinion that the prohibition of discrimination in Article 67 of the If, by contrast, the question is under Treaty is not necessarily directed stood as asking whether the service exclusively towards Member States charge of 0.15% is being imposed on the alone. H e maintains, further, that the basis of a concerted practice within the charge imposed by the banks for meaning of Article 85 the reply to that transfers abroad is not justified by any question requires consideration of the higher costs involved in such transfers facts of the case, which the Court of and that it may thus be found to be Justice has no jurisdiction to effect. In so contrary to Article 30 of the Treaty in so far as it may be relevant the Bayerische far as, being applied equally to payments Vereinsbank AG states that there is no for goods and services, it constitutes an concerted practice whatsoever between obstacle to the free movement of goods the banks regarding the imposition and and services within the Community. amount of the transfer charge. Lastly, he observes that the compatibility of the charge in question with The question which has been submitted Community law might likewise be for a preliminary ruling may also be examined in the light of Articles 13 and understood as asking whether the 95 of the EEC Treaty. imposition of the transfer charge ipso facto contravenes Article 85 or Article 86 As regards Article 85 of the Treaty, the of the EEC Treaty. subject of the question which has been referred to the Court for a preliminary As regards Article 85 it should be ruling, Mr Ziichner points out that he observed that the transfer charge
JUDGMENT OF 14. 7. 1981 — CASE 172/80
amounts to payment required by the Community law but in the light of bank of its customers as the price of a national law. service (the transfer of money abroad) which it performs for them. That is The Bayerische Vereinsbank AG then merely a normal exchange of service and considers, by way of precaution, the consideration for the service. Such an question whether the imposition of a exchange cannot amount to a concerted transfer charge may amount to an practice, any more than its object or infringement of Article 67 of the EEC effect is to prevent competition in trade Treaty, although it considers that the between Member States. power which the Court has to clarify the
substance of a question which is As to Article 86, it should be emphasized incorrectly framed does not go as far as that even an undertaking which has a to replace an ambiguous question with a dominant position on the market is fully completely different question. entitled to require payment in return for a service it performs for its own It observes, in the first place, that Article customers. 67 is addressed solely to Member States and their institutions and not to the In brief, the order making the reference nationals of Member States.
That article might be interpreted as raising the lays down a provision which, owing to question whether the transfer charge its form and basic content, can be may lawfully be made by a bank where followed only by the Member States. the movement of capital and payments between States is concerned even when the decision to make the charge has been It observes, further, that the purpose of taken in concert with other banks within Article 67 is solely to provide for liber- the meaning of Article 85 of the EEC alization of movements of capital, not of Treaty. the circulation of payments, whereas the circulation of cheques and other means Even if, for the sake of argument, the of transfer are precisely movements of basis on which the transfer charge was to payments. be made and its amount had been the subject of an agreement with other banks It points out that according to the within the meaning of Article 85 the wording of Article 69 of the EEC Treaty customer would be asked to pay the in conjunction with Article 67 thereof charge in his capacity as a third person the Member States have a duty to adopt not party to the agreement, on the basis specific measures to eliminate restrictions of an independent contract. Such a on the movement of capital only in contract is legally distinct from the accordance with directives adopted by agreement and may quite simply be the Council and that there is no Council
detached from it. According to the directive requiring the States to eliminate case-law of the Court of Justice any in addition "obstacles" in private law to elements which are severable from a the circulation of capital (or payments). contract which is incompatible with Article 85 (1) are not affected by the Lastly, it observes that the calculation of nullity referred to in paragraph (2) of the transfer charges for orders for payment · same article. That must apply even more to a foreign account does not constitute clearly in the case of a second contract discrimination, for transfers to a foreign which is legally independent. That account differ in many respects (the contract, not being caught by the necessity of maintaining funds with prohibition in Article 85 of the Treaty, foreign banks, the need to use specialist must be assessed not in the light of agents, higher costs of communication,
ZÜCHNER ν BAYERISCHE VEREINSBANK
more complex procedure for dealing conduct which is prohibited by Article 85 with cheques presented from abroad) (1) of the EEC Treaty. from those made to an account at home and those differences entail expenses The Commission states that at present which are appreciably greater than those there are no proceedings instituted by it involved in the domestic circulation of under Article 3 of Regulation N o 17 of payments. the Council in relation to transfer charges and that investigations carried As the service charge is imposed on all out in the past on charges levied on orders for payment to a foreign account payment of travellers' cheques and there is also no discrimination based on Eurocheques have not led to the the nationality of the holder of the institution of formal proceedings in account or on that of the payee. application of that article.
It observes, however, that the rules The Commission of the European governing competition are without doubt Communities observes that neither the equally applicable to the banking sector, actual question submitted for a pre as it stated long ago in its second report liminary ruling nor the reasons given in on competition policy. the order making the reference refer to the objective context in which the question has arisen. The question which For the purpose of replying to the has been put to the Court appears to question which has been submitted the have meaning only if there is assumed to Commission wonders whether the exist a concerted practice the aim of concept of a concerted practice in Article which is the application by the banks of 85 (1) may extend to a practice such as uniform charges for effecting transfers to may be supposed to exist in the present other Member States of the Community. instance. In that regard it submits the It is only on the assumption that such a following observations: practice exists that the question may be asked whether it falls within the (a) Merchant banks are undertakings prohibition enunciated in Article 85 (1) within the meaning of Article 85 (1) of the Treaty. of the Treaty.
Moreover, the national court has omitted (b) A concerted practice exists when to give any indication of how widespread those concerned knowingly sub that practice is in relation to the number stitute practical cooperation for the of banks which are party to it or to the risks of competition thereby creating amount levied by way of transfer charge. a situation which does not corre If the Court wishes to give a reply to the spond to normal market conditions. national court without proceeding to It suffices for those concerned to make its own inquiries, which it is not in inform each other of the amount of any case entitled to do, it will have to the charges actually imposed by them re-formulate the question on the basis of or contemplated for the future; for suppositions. the object or effect of such contacts is to influence the level of the charges imposed by the competitor It will then be for the court which has or, at least, to eliminate uncertainty made the reference to decide on the basis on the part of the competitor as to of the interpretation supplied by the the level of charges imposed by the Court whether in this case there is in fact first party. In practice the contact
JUDGMENT OF 14. 7. 1981 — CASE 172/80
between undertakings may take The expression "trade" used in various forms which the Commission Article 85 (1) must be interpreted does not consider it necessary to widely; it applies equally to examine here in the absence of infor- monetary transactions, which are a mation on the subject in the order form of economic transaction. making the reference. (c) The actual or proposed restriction The Commission thus shows that the affects competition between the reply to the question will differ various banks in regard to the depending on certain factors which have provision of services for the benefit not been specified in the order making of their customers. Transferring a the reference. Accordingly it suggests sum of money in favour of a third that the reply to the Amtsgericht person constitutes the provision of Rosenheim should be as follows: services. Competition in the pro- "There may be a concerted practice vision of services is equally subject to prohibited by Article 85 (1) of the Treaty the competition rules of the Treaty. when the object or effect of a practical Competition in prices is wholly cooperation between banks is the excluded if the banks concerned all imposition of identical charges on impose the same charges for a given transfers to other Member States of the transfer. Community." (d) In order to decide whether the restriction on competition is appreciable it is principally necessary Ill — Oral procedure to determine which banks, and how many of them, are involved and what Oral argument was presented at the the volume of transfers concerned is sitting on 6 May 1981 by the Bayerische in relation to the number and the Vereinsbank AG, represented by Martin total amount of transfers carried out Hirsch of the Stuttgart Bar, and by to all the other Member States. the Commission of the European Communities, represented by Mr Götz (e) A concerted practice governing the zur Hausen, a member of its Legal charges imposed in respect of sums Department, acting as Agent. of money transferred in other Member States is certainly liable to The Advocate General delivered his affect trade between Member States. opinion at the sitting on 3 June 1981.
Decision
1 By an o r d e r d a t e d 14 July 1980 which was received at the C o u r t o n 29 July 1980 the Amtsgericht [Local C o u r t ] Rosenheim referred to the C o u r t for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y a question concerning the interpretation of Articles 85 and 86 of the T r e a t y , in o r d e r t o determine the scope of those provisions in connexion with a service charge
ZÜCHNER ν BAYERISCHE VEREINSBANK
imposed by a banking undertaking established in the Federal Republic of Germany on the transfer of a sum of money by means of a cheque from one Member State to another.
2 From the file forwarded by the national court it appears that the holder of a bank account with the Bayerische Vereinsbank in Rosenheim, Federal Republic of Germany, drew a cheque on the bank on 17 July 1979 in the amount of DM 10 000 in favour of a payee resident in Italy. The bank debited his account in respect of the transfer with a "service charge" (Bearbeitungsgebühr) of DM 15, representing 0.15% of the sum transferred.
3 The holder of the account considered that the imposition of such a charge ran counter to the provisions of the EEC Treaty and sued the bank before the Amtsgericht Rosenheim for repayment of the charge.
4 He maintained, inter alia, that the imposition of the charge was incompatible with Articles 85 and 86 of the Treaty because it was part of a concerted practice followed by all or most banks both in the Federal Republic of Germany and in other Community States, which was contrary to the rules on competition and capable of affecting trade between the Member States.
5 In order to clarify that last point, in particular, the national court decided to refer the following question to the Court of Justice for a preliminary ruling pursuant to Article 177 of the Treaty:
"In transfers of capital and other payments between banks within the common market, is the debiting of a general service charge at a rate of 0.15% of the sum transferred a concerted practice which may affect trade, and therefore contrary to Articles 85 and 86 of the EEC Treaty?".
6 The defendant in the main action raised the initial objection in the course of the oral procedure that the question of interpretation raised by the national court was without purpose because the Treaty provisions on competition did not apply, at least to a great extent, to banking undertakings. It maintained
JUDGMENT OF 14. 7. 1981 — CASE 172/80
that by reason of the special nature of the services provided by such under- takings and the vital role which they play in transfers of capital they must be considered as undertakings "entrusted with the operation of services of general economic interest" within the meaning of Article 90 (2) and thus are not subject, pursuant to that provision, to the rules on competition in Articles 85 and 86 of the Treaty. It also relied in support of its argument on the provisions in Article 104 et seq. of the Treaty concerning "Economic policy".
7 Although the transfer of customers' funds from one Member State to another normally performed by banks is an operation which falls within the special task of banks, particularly in connexion with international movements of capital, that is not sufficient to make them undertakings within the meaning of Article 90 (2) of the Treaty unless it can be established that in performing such transfers the banks are operating a service of general economic interest with which they have been entrusted by a measure adopted by the public authorities.
8 As to Article 104 et seq. of the Treaty, those provisions in no way have the effect of exempting banks from the competition rules of the Treaty. They appear in Chapter 2 of Title II of the Treaty, which concerns "Balance of payments", and are restricted to stipulating that there must be coordination between the Member States on economic policy, and to that end they provide for collaboration between the appropriate national administrative departments and the central banks of the Member States in order to attain the objectives of the Treaty.
9 In the light of all those considerations the objection raised by-the defendant in the main proceedings must therefore be dismissed.
10 The question of interpretation was raised by the national court with reference to the debiting of a uniform service charge of 0.15% on the relevant transactions. The question arose with regard to both Article 85 and Article 86 of the Treaty. In view of the fact that the order submitting the reference considers only the existence of a concerted practice as a possible infringement of Community rules on competition and having regard to the
ZÜCHNER ν BAYERISCHE VEREINSBANK
fact that Article 86 deals with the abuse of a dominant position and does not cover the existence of concerted practices, to which solely the provisions of Article 85 apply, examination of the question which has been referred to the Court must be restricted to the latter article.
1 1 According to Article 85 (1) of the Treaty: " T h e following shall be prohibited as incompatible with the common market: all agreements between under takings decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction of distortion of competition within , the common market".
12 As the Court has stated, in particular in its judgment of 14 July 1972 (Case 48/69 Imperial Chemical Industries Ltd ν Commission [1972] ECR 619) a concerted practice within the meaning of Article 85 (1) of the Treaty is a form of coordination between undertakings which, without having reached the stage where an agreement properly so called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition.
1 3 The Court also stated, in its judgment of 16 December 1975 (Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, Suiker Unie ν Commission [1975] ECR 1663, at p. 1942) that the criteria of coordination and co operation necessary for the existence of a concerted practice in no way require the working out of an actual "plan" but must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition, according to which each trader must determine independently the policy which he intends to adopt on the common market and the conditions which he intends to offer to his customers.
1 4 Although it is correct to say that this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contract between such traders, the object or effect of which is to create conditions of competition which do not correspond to the
JUDGMENT OF 14. 7. 1981 — CASE 172/80
normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market.
15 The applicant in the main proceedings is of the opinion that in this case there is a concerted practice consisting in the debiting by all or most banks within the common market, or at least in the Federal Republic of Germany, of a uniform service charge for transfers of sums of a similar amount to other Member States.
16 The defendant in the main proceedings has not denied that, for transfers of funds of this nature a charge at the same rate is imposed by other banks, both in the Federal Republic of Germany and in other Member States. It has however pointed out that this similarity of conduct is not the result of an agreement or concerted practice between those banks, the object or effect of which is to produce results prohibited by Article 85 of the Treaty. It has explained that the justification for imposing the charge lies in the costs involved in such transfers owing in particular to the complex nature of the exchange transactions involved, and it has observed, in addition, that the charge uniformly levied in respect of every transfer above a certain amount represents only a partial contribution towards the total cost of the transfers usually effected.
17 The fact that the charge in question is justified by the costs involved in all transfers abroad normally effected by banks on behalf of their customers, and that it therefore represents partial reimbursement of such costs, debited uniformly to all those who make use of such service, does not exclude the possibility that parallel conduct in that sphere may, regardless of the motive, result in coordination between banks which amounts to a concerted practice within the meaning of Article 85 of the Treaty.
18 Such a practice is capable, precisely because of the fact that it covers inter- national transactions, of affecting "trade between Member States" within the meaning of the above-mentioned article, the concept of "trade" used in that article having a wide scope which includes monetary transactions.
ZÜCHNER ν BAYERISCHE VEREINSBANK
19 Moreover, it would fall within the prohibition in Article 85 (1) of the Treaty if it were established that its object or effect was to affect significantly conditions of competition in the market in monetary transfers by banks from one Member State to another.
20 That would be the case, in particular, if a concerted practice enabled the banks participating in it to congeal conditions in their present state thus depriving their customers of any genuine opportunity to take advantage of services on more favourable terms which would be offered to them under normal conditions of competition.
21 That is a question of fact which only the court adjudicating on the substance of the case has jurisdiction to decide. In doing so, it must consider whether between the banks conducting themselves in like manner there are contacts or, at least, exchanges of information on the subject of, inter alia, the rate of the charges actually imposed for comparable transfers which have been carried out or are planned for the future and whether, regard being had to the conditions of the market in question, the rate of charge uniformly imposed is no different from that which would have resulted from the free play of competition. Consideration must also be given to the number and importance in the market in monetary transactions between Member States of the banks participating in such a practice, and the volume of transfers on which the charge in question is imposed as compared with the total volume of transfers made by the banks from one member country to another.
22 On all those grounds, the reply to the question which has been referred to the Court must be that parallel conduct in the debiting of a uniform bank charge on transfers by banks from one Member State to another of sums from their customers' funds amounts to a concerted practice prohibited by Article 85 (1) of the Treaty if it-is established by the national court that such parallel conduct exhibits the features of coordination and cooperation char acteristic of such a practice and if that practice is capable of significantly affecting conditions of competition in the market for the services connected with such transfers.
JUDGMENT OF 14. 7. 1981 — CASE 172/80
Costs
The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As this case is, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings before the national court, the decision as to costs is a matter for that court.
On those grounds,
T H E COURT,
in answer to the questions referred to it by the Amtsgericht Rosenheim by an order dated 14 July 1980, hereby rules:
Parallel conduct in the debiting of a uniform bank charge on transfers by banks from one Member State to another of sums from their customers' funds amounts to a concerted practice prohibited by Article 85 (1) of the Treaty if it is established by the national court that such parallel conduct exhibits the features of coordination and cooperation characteristic of such a practice and if that practice is capable of significantly affecting conditions of competition in the market for the services connected with such transfers.
Mertens de Wilmars Pescatore Mackenzie Stuart Koopmans O'Keeffe
Bosco Touffait Due Everling
Delivered in open court in Luxembourg on 14 July 1981.
A. Van Houtte J. Mertens de Wilmars Registrar President