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EUROPEAN COMMISSION
VERSUS
STANDARDS & POORS
Defendant,
Standards & Poors, represented by C. Sahin, principal
legal advisor and P. Jolly, principal legal advisor.
CONTENT
FACTS
COMPLAINT
DOMINANT POSITION
RIGHT OF STANDARD & POORS
FIRST CHARGE: EXCESSIVE PRICING
I UNITED BRANDS TEST
II NON-DISCRIMINATION OF END USERS
III INTANGIBLE ASSETS ( BENEFITS)
FACTS
S&P is the only allocator of US ISINs and the only operator to receive
first-hand information from all US securities users.
US ISIN records are used by almost all players in both the financial
services industry and service providers, such as financial institutions,
banks, brokers, fund managers and insurance companies ISPs, market
places, clearing houses, Central Securities Depositories (CSDs) and
custodians. S&P Capital IQ operates CUSIP Global Services (CGS), the
identifiers developed for the national purposes in the US.
The identifiers are extremely important for clearing and settlement,
database management of securities for various financial institutions and
the interbank communication.
American Bankers Association, owners of CUSIP (Committee on Uniform
Security Identification Procedures) has designated S&P as the competent
National Numbering Agency (NNA) to generate, allocate and distribute
US ISINs to market participants. Thus, S&P enjoys a legal monopoly to
issue and distribute US ISINs.
[http://europa.eu/rapid/press-release_IP-11-1354_en.htm?locale=en]
CHARGES
DOMINANT POSITION
Article 102 TFEU (ex Article 82 TEC):
Justification grounds
Though economist argue that in some situation one single firm
can produce a total output at a lower unit cost and with that
having an efficient output, providing systemic stability within
and to the financial markets clearly prevails as an justification
ground.
[http://www.un.org/esa/esa99dp8.pdf; Sharon E. Foster, Systemic Financial-Service Institutions and Monopoly Power, 60
Cath. U. L. Rev. 357 (2011).]
Though S&P is not the original creator of the US ISIN (records and
numbers), it possesses the distribution rights (authorized by the
ISO standard 6166).
[To be found at http://www.sdc.com.jo/arabic/images/stories/pdf/iso_6166_2001_.pdf]
This has the consequence that S&P is the (and only) responsible
National Numbering Agency (NNA).
Also, no other company or institution can issue US ISINs or
become the NNA for US securities in the near future.
[Commission decision of 15.11.2011, case COMP/39.592-Standard & Poors, para. 24.]
Statement of S&Ps
Based on the facts, S&P recognizes being in a dominant position
and argues that it is legitimate one referring to presence the
systemic stability. Hence, clearly there is no other company
enjoying a similar position meaning there is no comparable.
substantial contribution the derived work is also copyrighted in its own right;
and
Freedom Law
For instance: Author of the original book has the right to say whether a
translation of his work can be distributed or not and if distributed can expect a
royalty from the derived work which is a result of creative process.
[William Landes and Richard Posner, "An Economic Analysis of Copyright Law," Journal of Legal Studies, 18 (1989): 325. ;
Commission decision of 15.11.2011, case COMP/39.592-Standard & Poors, para. 25.]
Prosecutor argues that there is an infringement of Article 102 sub (a) TFEU
meaning that the purchase or selling prices are excessive and with that unfair.
Demanding payment for services that have not been requested by the customers could be considered
as unfair. [Case C-179/90 Merci convenzionaliporto di GenovaSpA v Siderurgica Gabriella SpA[1991] ECR 5889, paragraph 19.]
Also, it may be possible to infer interpretative criteria to determine if a price is excessive from sectorspecific rules and regulations. [Case C-66/86 Ahmed Saeed [1989] ECR 809, paragraph 43.]
2. Profit margin between the products (either identical or at least comparable) or profit margin by the
competitors in other markets; and
3. Return on capital between products or sectors.
BUT, high prices charged by the dominant company when compared with other comparable prices can
be explained by the differences in cost conditions. [Case 27/76 United Brands, paragraph 228.]
Commission.]
Reduces systemic risk by eliminating information asymmetry and with that creating certainty;
Geographical benefits are provided in more than 240 countries, including more instable countries;
It is more useful and universal from the other types of identifiers such as Ticker symbols provided by Bloomberg.
For example a company will have different ticker symbols in different countries whereas; the ISIN code is the same
throughout the global straight-through processing (GSTP) to provide certainty on securities. Thus, it eliminates the
cross border errors with respect to information asymmetry;
Custodians have an universal format to track holdings of institutional investors across international markets;
Firms can trade with one ISIN number trough more than 30 trading platforms and exchange worldwide, even if the
currencies differs (S&Ps network);
Multiple choices of using ISINs includes debt securities, shares, options, derivatives and futures;
Popularity to the companies and funds that have investors or are looking to raise capital;
Diversification of portfolios are more easy created which leads in most cases to a lower discount rate;
European countries use ISINs as their primary security identifier, whereas U.S. and Canada use it as an
secondary identifier;
Expertise and effort in providing the data in real time, hence reducing both cost and time.
Since, no other ISIN distributor is a comparable and do not provide any of the
mentoined benefits which S&P is providing, it would be unfair that end-users would
benefit of the effort and the position of S&P has in the market.
The European Commission states that S&P abuses its market dominance by refusing
financial institutions access to US ISINs through ISPs when these same financial
institutions do not pay the required license fees. This is a clear example of
financial institutions willing to benefit from the networking position of S&P for free. The
refusal to supply them has a legitimate ground and with that S&P seeks protection of its
rights.
Thus, the ISINs comes along with a lot of benefits which are created by the effort and
expertise that S&P. Without taken these benefits into account in the valuing the (1)
costs and the rights of S&P and (2) the time and costs savings for the users,
undervaluation of S&P is unavoidable.
Therefore, S&P pleads that the value of these benefits must be taken into
consideration and needs to be added up to the amount calculated by the cost
recovery rule. Here, S&P pleads that the judge appoints an independent analyst
providing the value of these benefits.
[We wanted to do a valuation (Reuters and Bloomberg) here, but we did not know what the benefits of the ISINs were due to the
consolidated annual report.]
SECOND CHARGE:
BUNDLING
With respect to the charge of the European
Commission as stated as S&P bundles two distinct
products, namely, ISIN numbers and ISIN records on the
one hand, and additional commercial data elements on
the other. The charges for the same, regardless of
whether the licensees use only the ISIN records or the
additional data as well. Most users, dont need the
additional commercial data elements but are obliged to
buy them, due to the bundling of the two products.
[Slide 7 of the Prosecutor, the European Commission.]
Statement of S&Ps
REJOINDER
FIRST CHARGE: The European Commission agrees that the benefits are all valid, but does
not agree that these benefits are provided by S&P. Since the appointment of S&P to be the
first distributor S&P and implemented the guidelines of the ISO standard 6166. The
implementation brings technical and practical issues along. S&P ensured that everthing
was implemented correctly. Though, the ISIN identifier provides standardization, it is the
actual use of the ISIN identifier by financial institution ensuring that there is in fact a
standardization. The use of the ISIN identifier of financial instutution is partly due to the
reputation of S&P and not the ISO standard 6166. Financial institutions knows the
trustworthy, network possibility and in general accepted identifier across the
whole world. The financial institutions knows that they have the possibility to obtain
another security identifier FOR FREE. However, they voluntarily choose for the ISINs
S&P is providing and the reason for this is due the intangible assets (benefits) of S&P. The
European Commission ignores the value of the position of S&P obatined by its own effort.
In the name of Law and Justice, S&P request the judge to reconsider these
legitimate (and as the European Commission itself states Valid) grounds and
take them into account in its judgement.
SECOND CHARGE: S&P agrees on these points and commits to incorporate the findings
and advises of the European Commission with respect to the arguments.
APPENDIX
REFERENCES