On January 29, 2020, the Cour de Cassation annulled the judgment of the Paris Court of Appeal in the interbank fees case for interpreting the concept of restriction by object too broadly. The Cour de Cassation noted that only coordination practices that harm competition to a sufficient degree may be qualified as restrictions by object. Absent a clearly established anticompetitive object, likely anticompetitive effects must be proven to establish an infringement of Articles 101(1) TFEU and L. 420-1 of the French Commercial Code.
In September 2010, the FCA had fined 11 French banks €384.9 million for raising unjustified interbank fees during the transition towards a digital check-processing system. The FCA considered that the conduct had an anticompetitive object and, as such, did not examine the likely effects of the conduct. After a first appeal, the Paris Court of Appeals overturned the FCA decision, considering that it had not demonstrated the alleged anticompetitive object of the conduct. In cassation, the Cour de cassation remanded the case to the Paris Court of Appeal for de novo judgment, considering that the Paris Court of Appeal had not examined pleas raised by two parties.
On December 21, 2017, the Paris Court of Appeal issued a second judgement on the case, this time confirming the FCA decision. The Court found that the exchange check-image fee (“CEIC”) – a fixed fee per check paid by the “remittent bank” (the bank of the beneficiary of the check) to the “drawee bank” (the bank of the issuer of the check) – amounted to a uniform cost input for remittent banks which did not correspond to any rendered service and, therefore, artificially increased remittent banks’ costs. It further found that the fee restricted banks’ freedom to define their pricing policy. Moreover, the Court considered that the fee would necessarily influence banking service prices overall, because it would be passed on to final customers through the cross subsidies system that financed the check service, but also because costs are generally passed on to final prices. The Court concluded that the CEIC qualified as a restriction by object, and did not assess the likely effects of the agreement on the market. The banks appealed in cassation.
On January 29, 2020, the Cour de Cassation annulled the judgment. It held that, in the absence of past experience establishing that the practices at stake were harmful, the Paris Court of Appeal could not presume – without proving it – that the fee would necessarily be passed on to final customers. The Cour de Cassation held in particular that the Paris Court of Appeals had failed to demonstrate that the fee would be passed on to final customers through the cross subsidies system. By qualifying the conduct as a restriction by object without clearly establishing its anticompetitive object, the Paris Court of Appeal infringed the so-called principle of restrictive interpretation of the concept of restriction by object, in violation of Articles 101(1) TFEU and L. 420-1 of the French Commercial Code.
The ruling of the Cour de Cassation is in line with consistent EU case-law in Groupement des Cartes Bancaires v European Commission and SIA „Maxima Latvija” v Konkurences padome. In these cases, the European Court of Justice held that “the concept of restriction of competition ‘by object’, […] must be interpreted restrictively and can be applied only to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects”.
 Decision n° 10-D-28 of September 20, 2010 (the “FCA Decision”).
 ECJ judgment of September 11, 2014, Groupement des cartes bancaires (CB) v European Commission, case C-67/13 P.
 ECJ judgment of November 26, 2015, SIA „Maxima Latvija” v Konkurences padome, case C-345/14.
 SIA „Maxima Latvija” v Konkurences padome, para.18.