As long as Paul must, under the second condition, receive a fair share of the advantages, I don’t see why the GC is wrong in saying that it is necessary to demonstrate, within the framework of the first condition, that it benefits from the MIF. If it is not done the second condition would never be met.

I would actually agree with Madrid lawyer. This is all about regulation. Following MasterCard’s approach would have meant that the level of MIFs is a no go area for competition authorities. Is that really desirable when one considers the importance payment cards in our economy? or the limited constraint merchants can exercise on MIFs?

Actually, it appears the GC, by an obiter dicta, set up the criteria that a MIF should match so as to be compatible article 101 (3):

(223) “inasmuch as it is not possible to establish precisely the extent of the advantages that can be deemed to justify some financial compensation from merchants for the costs incurred by issuing banks, it is reasonable to conclude that it was for the applicants – in order to prove that the MIF satisfied the first condition laid down in Article 81(3) EC – to identify the services provided by the banks issuing debit, charge or credit cards capable of constituting objective advantages for merchants. It was also for them to establish that there was a sufficiently clear correlation between the costs involved in the provision of those services and the level of the MIF. As regards the last point, it must be noted that those costs cannot be determined without taking into account other revenues obtained by issuing banks on the provision of those services or by including costs which are not directly linked to them.”