Clearstreams appeal against the ECs 2004 ruling that it had abused a dominant market position has been rejected. The Court of First Instance has upheld the Commissions decision in its entirety.
The commission had found that Clearstream Banking AG and its parent company Clearstream International SA had violated Article 82 of the EC Treaty. Clearstream had refused to supply certain clearing and settlement services to one of its customers (Euroclear Bank SA), and applied discriminatory prices to that same customer.
The Court of First Instance confirmed Clearstream’s dominant position on the market for primary clearing and settlement and pointed out that intermediaries, such as Central Security Depositories (CSDs) and International CSDs (ISCDs), can only provide clearing and settlement services for securities issued in Germany to their customers if they can make use of Clearstreams services. The Court of First Instance held that Clearstreams monopoly for custody services stipulated in German law resulted in a corresponding monopoly for clearing and settlement services.
In its judgment the Court of First Instance also confirmed that Clearstream Banking AG and Clearstream International abused their dominant position by not providing Euroclear access to the services it had requested for more than 2 years, whereas they provided access to other customers including Clearstream Banking Luxembourg in a matter of months. The Court pointed out the special responsibility of undertakings in a dominant position not to allow their conduct to impair the genuine undistorted competition on the common market and rejected Clearstream’s arguments. As to the question of charging a higher per transaction fee to Euroclear than to other similar customers between January 1997 and January 2002, it was held that the primary clearing and settlement services for cross-border transactions provided by Clearstream Banking to ICSDs and CSDs are equivalent services and consequently Clearstream’s behaviour amounted to discriminatory pricing which is prohibited by community law.
Although the infringements had been terminated, the Commission adopted the decision to provide the necessary legal clarity to Clearstream and to other companies active in post trading services given the importance of cross-border trading in securities within the EU.
The Commission decided not to impose a fine. Among other factors, it was taken into account that there is no Community case law or jurisprudence dealing with the competition analysis of clearing and settlement.
Sarah Keane