Memo: Antitrust: Commission welcomes Court of First Instance Clearstream judgement

The European Commission welcomed judgement by the European Court of First Instance (CFI) on 9 September, 2009, dismissing the action by Clearstream against a Commission decision of June 2004. In its decision, the Commission found that Clearstream Banking AG and its parent company Clearstream International SA violated the EC Treaty's ban of abusing a dominant market position (Article 82) by refusing to supply certain clearing and settlement services to one of its customers (Euroclear Bank SA), and by applying discriminatory prices to that same customer. Clearing and settlement are necessary steps for a securities trade to be completed. At the time of the decision both functions were performed by Clearstream Banking AG, the German Central Securities Depository. Although these services are provided by professionals to professionals, their cost is also passed on to consumers, for example when they buy or sell shares. The Court of First Instance upheld the Commission's decision in its entirety, both as regards the finding of a dominant position and the finding of a violation of Article 82. This judgement is important because it confirms the special responsibilities of dominant service providers for not impairing the provision of efficient and cheaper services in a market where the costs of cross-border securities transactions continue to be higher than for national ones within the Single Market.

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