On the existence of collusion

a) On the agreement of the parties

277. For there to be an agreement within the meaning of article 81 EC and article L 420-1 of the Commercial Code, it suffices that at least two undertakings have expressed their joint desire to behave in a determined manner on the market (see in particular the judgments of the European Court of Justice of 15 July 1970, ACF Chemiefarma v. Commission, 41/69, ECR 661, point 112, and 8 July 1999, Commission v. Anic Partecipazioni, C‑49/92 P, ECR I‑4125, point 130, and the judgment of the Court of First Instance of the European Communities of 27 September 2006, GlaxoSmithKline Services v. Commission, T-168/01, ECR II-2969, point 76; see also the 1980 annual report of the Commission de la concurrence, p. 223).

278. In the case in point, the 12 offending banks do not contest that they have participated in meetings of the CIR during which they agreed to establish the CEIC and fees for related services and to fix their amounts. It is also common grounds that they then implemented the contentious agreement, as emerges from the report of the meeting of the CIR of 3 February 2000.

b) On the individual participation of the offending undertakings in the collusion On the participation of the Banque de France in the collusion

279. The Banque de France alleges that it participated in the meetings of the CIR as a central bank responsible for overseeing the proper functioning and security of the payment systems. It therefore considers that it cannot be categorised as an undertaking within the meaning of article L 420(1) of the Commercial Code as regards its participation in these meetings.

280. The Banque de France is both an institution whose capital belongs to the State, responsible for public service missions and endowed with public authority prerogatives, notably in the means of payment sector – but it does not, as it itself acknowledges, have

regulatory authority to organise payment systems – and a bank carrying out a commercial banking activity, coming in this respect under article L 410(1) of the Commercial Code.

281. In the case in point, it should be pointed out that the Banque de France participated in meetings of the CIR during which the financial consequences of the switch to the EIC for banks, including itself as remitting bank, particularly of the French Treasury, were examined. Furthermore, following the example of the other 11 banks, the Banque de France paid the CEIC €0.043 per cheque remitted until 2007.

282. Consequently, the Banque de France must be categorised as an undertaking within the meaning of competition law as regards its participation in meetings of the CIR.

On the participation of Crédit du Nord in the collusion

283. Crédit du Nord takes the view that, insofar as it was present at only one meeting of the CIR, whose anti-competitive object it could not know, its participation in the collusion cannot be established.

284. In this respect, it is first of all appropriate to recall the decisional practice of the Conseil de la concurrence regarding the standard of proof of the participation of an undertaking in a horizontal collusion. The Conseil has distinguished situations in which anti-competitive collusion is agreed on during meetings within the statutory framework of a professional organisation and those in which the collusion is developed during informal meetings, most often of hidden and secret nature, in which competing undertakings participate on their own initiative (decision No. 07-D-48 of 18 December 2007 on practices implemented in the national and international removal sector, points 178 et seq., confirmed by the judgments of the Paris Court of Appeal of 25 February 2009, Transeuro Desbordes Worldwide Relocations SAS, and the Cour de Cassation of 7 April 2010).

285. In the first case, to which the case in point pertains, it is considered that the sole fact of having participated in a meeting held within the statutory framework of a professional organisation whose agenda would have effectively evolved towards an anti-competitive object is not enough to characterise the involvement of undertakings in the collusion, since the duly convened undertaking is not in a position to know the anti-competitive object of this meeting. Proof of involvement in the collusion then necessitates additional proof, like the distribution of information prepared at the time of the meeting, the application of concrete measures decided at the meeting or the participation in a subsequent meeting having the same anti-competitive object (same decision, point 179).

286. In the case in point, contrary to what Crédit du Nord maintains, its participation in the practices at issue does not result solely from its presence at one of the meetings of the CIR.

Indeed, it appears notably that Crédit du Nord was the recipient of documents concerning the meetings in which it did not participate, that it did not oppose the decision of the other members of the CIR to institute the nine interbank fees at issue and that it implemented the contentious agreements for almost six years.

287. It follows from the foregoing that the participation of Crédit du Nord in the collusion is established.

On the participation of the non-offending undertakings in the collusion

288. LCL, Crédit Agricole and La Banque Postale criticise the investigation services for not having accused certain undertakings that participated directly in the decisions of the CIR or indirectly through a member agent of the CIR. Several hundred credit institutions had thus

allegedly been represented within the CIR and then applied the contentious agreement, whereas the Statement of objections was sent to only 12 of them.

289. La Banque Postale adds that the decision of the Case Officers to restrict the number of offending credit institutions constitutes a breach of equality, the financial penalty incurred by each of them being proportionate to the total damage to the economy and not to the damage for which they are individually responsible.

290. In this respect it should be recalled that the Cour de Cassation has acknowledged that the Case Officer possesses a power of assessment as regards the conduct of his investigations (judgment of 15 June 1999, Lilly France). He may notably institute proceedings only against the undertakings that took an active part in the organisation and implementation of the collusion (judgment of the Paris Court of Appeal of 17 October 1991, Salomon).

291. In the case in point, the objections were notified to undertakings which were members of the CIR and which then applied the contentious agreement. In fact, the undertakings mentioned by the parties do not fulfil this dual condition. This is because they are either professional associations that were not invited to personally apply the agreement, or undertakings that actually applied the agreement but that were not members of the CIR.

292. Furthermore, the Paris Court of Appeal has held that ‘a penalised company is not entitled to criticise the decision, in that it does not penalise other undertakings, this circumstance not being held against it’ (judgment of 28 January 2009, Epsé Joué Club, definitive judgment).

293. Finally, contrary to what La Banque Postale maintains, the financial penalty imposed is not intended to redress the sole damage for which the undertaking was responsible. While the assessment of the damage to the economy proceeds from an overall appraisal of the practices, this appraisal ‘constitutes only a reference to which each individualised financial penalty must be related, taking account of the situation specific to each undertaking’ (same judgment).

c) On the absence of constraint

294. The parties assert, in substance, that they had acted under pressure from the public authorities and the Banque de France, which would allegedly exempt them from all responsibility as regards the practices at issue.

295. The public authorities, by implicitly delegating their regulatory power to the banks, strongly incited them, they argue, and even constrained them to consult each other on the principle and the pricing of interbank fees for cheque processing.

296. As for the Banque de France, it had allegedly exercised a power of real influence within the framework of the negotiations of the CIR: it was, they argued, behind the compromise that led to the creation of nine interbank fees in February 2002 and played a decisive role as regards the abolition of the CEIC and the reduction in fees for related services in October 2007.

297. In both EU and national law, anti-competitive behaviour is reprehensible only if it is adopted by the undertakings that have freedom of choice (see in particular the judgment of the European Court of Justice of 11 November 1997, Commission and France v. Ladbroke Racing, C‑ 359/95 P and C‑ 379/95 P, ECR I‑ 6265, point 33). The EU judge has stipulated that, in the absence of a constraining legal provision requiring anti-competitive conduct and leaving undertakings no room for independent conduct, the absence of autonomy of undertakings may be concluded ‘only if it appears on the basis of objective,

relevant and consistent evidence that this conduct was unilaterally imposed upon them by the national authorities through the exertion of inexorable pressures, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial losses’

(judgment of the Court of First Instance of the European Communities of 18 September 1996, Asia Motor France and others v. Commission, T-387/94, ECR II-961, point 65).

298. In the judgment of 13 December 2006, FNCBV and others v. Commission (T-217/03 and T-245/03, ECR II-4987, point 92), rendered in the ‘Beef meat’ case, the Court of First Instance of the European Communities stated, as regards the role played by the French Minister of Agriculture in the conclusion of the contentious agreement, that, according to consistent case law, the fact that the behaviour of the undertakings was known, authorised or even encouraged by the national authorities had no effect on the applicability of article 81 EC.

299. In accordance with EU case law, the Autorité de la concurrence considers that the fact that anti-competitive practices had been approved and encouraged by the national authorities is not sufficient to release the offending undertakings from their responsibility. Public intervention may constitute such a case of exemption only if the legal framework that it fixes is constraining (see in this respect decision of the Conseil de la concurrence No. 05-D-10 of 15 March 2005 on practices implemented in the cauliflower market in Brittany).

300. As the Commission bancaire stated in its opinion of 22 May 2008, the implementation of the EIC constituted ‘a major political challenge, actively supported by all the public authorities within the framework of the euro changeover’. While, in the case in point, the incitement of the public authorities was real, this fact does not make it possible, however, to establish that the fixing of the nine interbank fees was imposed by the public authorities at the time of the switch to the EIC.

301. Likewise, it does not emerge from the reports of the meetings of the CIR that the Banque de France had exerted any pressure on the other banks regarding the establishment of said fees, notably of the CEIC. On the contrary, the Banque de France was clearly opposed to the creation of such a fee, as it stated at the time of the meeting of 1 July 1999 : ‘the fixed fee is not desirable’ (see point - above – Findings). While the Banque de France actually exercised an intermediation role within the framework of the negotiations of the CIR, by proposing to reduce the level of the CEIC or to limit it in time, it was solely a question for it of finding a compromise in order to enable the switch to the EIC.

302. Finally, as has been recalled earlier, the Banque de France does not have any regulatory power as regards the organisation of payment systems.

303. Whatever the case, supposing even that the banks had suffered pressure on the part of the public authorities and the Banque de France, such pressure should not be considered to be categorised as irresistible within the meaning of the case law described above. At the most, this circumstance could be examined in respect of mitigating facts within the framework of the appraisal of the financial penalty applied to the undertakings.

304. Hence, this defence must therefore be set aside.