Alleged illegal operations no justification for a boycott by competitors

On 7 February 2013, the European Court of Justice ("ECJ") ruled on a reference from the Slovakian Supreme Court in a case concerning three major Slovakian banks (Case C-68/12). The ECJ ruled that the fact that a party, in this case: Akcenta, carried out illegal operations was no justification for such party to be boycotted by its competitors.

The three banks had terminated in a coordinated manner all contracts relating to Akcenta. The Slovakian competition authority had subsequently fined them for this behaviour. One of the banks, Slovenská spritel'ňa, disputed that the alleged boycott infringed competition law, as Akcenta was operating on the market illegally, i.e. without the required licence from the Slovak National Bank.

The ECJ considered that the agreement entered into by the banks had as its object to restrict competition. In addition, none of the banks had challenged the legality of Akcenta's business prior to being investigated. The alleged illegality of the operations of the undertaking affected is irrelevant for the assessment of an infringement, as there is no need to consider the concrete effects of an agreement once it becomes evident that its object is to restrict competition.

The ECJ further considers that the restriction was not justified either. The agreement to boycott Akcenta was not indispensable, as required pursuant to Article 101(3) TFEU. The ECJ stated that if it was indeed the aim of the banks to impel Akcenta into complying with the statutory requirements, then they should have filed a complaint with the competent authorities as opposed to organizing a boycott.