On 9 September 2009, the Court of First Instance (CFI) dismissed an action by Clearstream Banking AG (Clearstream) and its parent, Clearstream International SA, against a Commission decision that they had breached Article 82 of the EC Treaty. The CFI upheld the Commission’s decision in its entirety, both in finding that Clearstream was in a dominant position and that it had abused this position by applying discriminatory prices and refusing to supply clearing and settlement services for registered shares to Euroclear Bank SA, one of its customers.
Clearstream acts as the German Central Securities Depository and is responsible for carrying out all clearing and settlement, both essential requirements for a securities trade to be completed in Germany. The relevant market was, therefore, the provision of clearing and settlement for securities issued under German law. The Commission found that Clearstream had a de facto monopoly and its behaviour towards Euroclear resulted in Euroclear being put at a competitive disadvantage.
Although Clearstream’s parent company, Clearstream International SA, was not found to be in a dominant position and could not, therefore, have abused its position, it did hold 100% of the capital in its subsidiary, Clearstream. In accordance with established case law, the burden fell on Clearstream’s parent company to provide evidence that its subsidiary acted independently, which it failed to do. The Commission was, therefore, entitled to find Clearstream International SA, and Clearstream, jointly and severally liable for the infringements committed by Clearstream alone.
The Commission has welcomed this judgement as it confirms the special duty of dominant service providers not to impair the provision of efficient and cheaper services in a market where the costs of cross-border securities transactions are higher than for national transactions within the common market.