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I. Introduction

On 2 April 2020, the Court of Justice of the European Union (CJEU) delivered its preliminary reference ruling in Case C-228/18 Budapest Bank Nyrt., and others.1 This ruling concerned a litigation before Hungary’s Supreme Court on a decision of the National Competition Authority (Gazdasági Versenyhivatal, HCA) adopted in 2009 in respect of six banks (Budapest Bank Nyrt., the ING Bank NV’s Hungarian subsidiary, OTP Bank Nyrt., Kereskedelmi és Hitelbank Zrt., Magyar Külkereskedelmi Bank Zrt. and ERSTE Bank Hungary Zrt., ‘the banks’), as well as two companies active in the credit card payment system, Visa Europe Ltd. (Visa) and MasterCard Europe SA (MasterCard). The decision concluded that the multilateral interchange fee (MIF) agreed by the parties, including Visa and MasterCard (together ‘the credit card companies’), infringed Article 101(1) TFEU both ‘by-object’ and ‘by-effect’ and sanctioned them with fines.

The preliminary ruling provided the Court with an opportunity to further clarify the concepts of restriction ‘by object’ and ‘by effect’ and the standard of evidence required from the competition authority and the parties in case of investigation pursuant to Article 101 TFEU. In particular, drawing on the precedents Groupement des Cartes Bancaires (CB)2 and Maxima Latvija3, the Court – and the Advocate General, Michal Bobek, in his Opinion4 – explains in great details the following three key issues:

  • when a conduct constitutes an anticompetitive restriction ‘by object’ contrary to Article 101(1) TFEU;

  • when and how the effects of such a conduct should be taken into account; and

  • whether MIF agreements, such as those sanctioned by the HCA’s decision, should be assessed in the light of their object or effects in the market.

II. Background and Questions Referred to the Court

Typically, transactions with credit cards involve four parties: the cardholder, the financial institution that issued the credit card (‘the issuing bank’), the merchant where the card payment is made by the cardholder and the financial institution providing that merchant with services enabling him to accept the card (‘the acquiring bank’). In the mid-90s the seven banks active in credit card payments in Hungary, on the one hand, and Visa and MasterCard, on the other hand, set up a multilateral cooperation mechanism (‘forum’), where...

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