Judgment_paragraph 86 · MasterCard Inc. and Others v European Commission (C-382/12 P)

86The appellants submit that the General Court misapplied the test of the ‘objective necessity’ of a restriction. Instead of applying the test under which a given limitation on commercial autonomy is ‘objectively necessary’ if, without it, it is either impossible or difficult to achieve the main operation, the General Court applied, notably in paragraphs 89 and 90 of the judgment under appeal, an incomplete test according to which a restriction is objectively necessary only if, without it, the main operation is incapable of functioning. The appellants rely in that respect on paragraph 109 of the judgment of the General Court in M6 and Others v Commission (T‑112/99, EU:T:2001:215), according to which ‘[i]f, without the restriction, the main operation is difficult or even impossible to implement, the restriction may be regarded as objectively necessary for its implementation’. According to the appellants, in paragraph 89 of the judgment under appeal, the General Court amalgamated the objective necessity test for the purpose of determining the ancillary nature of the restriction with the indispensability test under Article 81(3) EC.