Sainsbury's Supermarkets Ltd v Visa Europe Services LLC & Anor [2017] EWHC 3047 (Comm)

“7.1.HReimbursement for Interchange Transactions Each Issuer must pay the Acquirer the amount due for Transactions occurring with the use of a valid Card. This includes Transactions resulting from geographically restricted Card use outside the country of issuance.”

“This Chapter 9 details Member-to-Member fees applicable to Domestic Transactions in the United Kingdom and Gibraltar… where these fees differ from the [Scheme Regulations] and in the absence of Private Agreements.”

“5.4.B Honouring Cards 5.4.B.1 Card Types 5.4.B.1.a A Merchant must accept all Cards properly presented for payment …..”

“transactors” and “revolvers”

“This level however probably is a conservative estimate of the socially desirable IF for two reasons: - It does not reflect industry profit and its long-run impact on entry, innovation and end-user welfare. - It does not reflect the negative social externalities exerted by alternative means of payment (tax evasion for cash, subsidized use for checks).”

“For large merchants - accounting for at least half of the card transactions in the EU 28 - the analysis found that in the medium-term, the merchant indifference thresholds stay well below the benchmarks applied in the settlements and the Interchange Fee Regulation and range between 0.06% and 0.16% for debit and between -0.04% and 0.13% for credit cards. In the short-term, the indifference benchmarks for debit and credit cards are slightly lower, while looking ahead more long-term, they are slightly higher. The data collected did not permit drawing conclusions for all merchants, beyond large merchants.”

“(10) Interchange fees are usually applied between the card-acquiring payment service providers and the card-issuing payment service providers belonging to a certain payment card scheme. Interchange fees are a main part of the fees charged to merchants by acquiring payment service providers for every card-based payment transaction. Merchants in turn incorporate those card costs, like all their other costs, in the general prices of goods and services. Competition between payment card schemes to convince payment service providers to issue their cards leads to higher rather than lower interchange fees on the market, in contrast with the usual price-disciplining effect of competition in a market economy. In addition to a consistent application of the competition rules to interchange fees, regulating such fees would improve the functioning of the internal market and contribute to reducing transaction costs for consumers. (11) The existing wide variety of interchange fees and their level prevent the emergence of new pan-Union players on the basis of business models with lower or no interchange fees, to the detriment of potential economies of scale and scope and their resulting efficiencies. This has a negative impact on merchants and consumers and prevents innovation. As pan-Union players would, as a minimum, have to offer issuing banks the highest level of interchange fee prevailing in the market they want to enter, it also results in persisting market fragmentation. Existing domestic schemes with lower or no interchange fees may also be forced to exit the market because of the pressure from banks to obtain higher interchange fees revenues. As a result, consumers and merchants face restricted choice, higher prices and lower quality of payment services, while their ability to use pan-Union payment solutions is also restricted. In addition, merchants cannot overcome the fee differences by making use of card acceptance services offered by banks in other Member States. Specific rules applied by the payment card schemes require the application of the interchange fee of the ‘point of sale’ (country of the merchant) for each payment transaction, on the basis of their territorial licensing policies. This requirement prevents acquirers from successfully offering their services on a cross-border basis. It can also prevent merchants from reducing their payment costs to the benefit of consumers. (12) The application of existing legislation by the Commission and national competition authorities has not been able to redress this situation. (13) Therefore, to avoid fragmentation of the internal market and significant distortions of competition through diverging laws and administrative decisions, there is a need, in line with Article 114 of the Treaty on the Functioning of the European Union, to take measures to address the problem of high and divergent interchange fees, to allow payment service providers to provide their services on a cross-border basis and for consumers and merchants to use cross-border services. … (20) The caps in this Regulation are based on the so-called ‘Merchant Indifference Test’ developed in economic literature, which identifies the fee level a merchant would be willing to pay if the merchant were to compare the cost of the customer's use of a payment card with those of non-card (cash) payments (taking into account the fee for service paid to acquiring banks, i.e. the merchant service charge and the interchange fee). It thereby stimulates the use of efficient payment instruments through the promotion of those cards that provide higher transactional benefits, while at the same time preventing disproportionate merchant fees, which would impose hidden costs on other consumers. Excessive merchant fees might otherwise arise due to the collective interchange fee arrangements, as merchants are reluctant to turn down costly payment instruments for fear of losing business. Experience has shown that those levels are proportionate, as they do not call into question the operation of international card schemes and payment service providers. They also provide benefits for merchants and consumers and provide legal certainty.”

“27. For an agreement to have restrictive effects on competition within the meaning of Article 101(1) it must have, or be likely to have, an appreciable adverse impact on at least one of the parameters of competition on the market, such as price, output, product quality, product variety or innovation. Agreements can have such effects by appreciably reducing competition between the parties to the agreement or between any one of them and third parties. This means that the agreement must reduce the parties’ decision-making independence, either due to obligations contained in the agreement which regulate the market conduct of at least one of the parties or by influencing the market conduct of at least one of the parties by causing a change in its incentives. 28. Restrictive effects on competition with the relevant market are likely to occur where it can be expected with a reasonable degree of probability that, due to the agreement, the parties would be able to profitably raise prices or reduce output, product quality, product variety or innovation. This will depend on several factors such as the nature and content of the agreement, the extent to which the parties individually or jointly have or obtain some degree of market power, and the extent to which the agreement contributes to the creation, maintenance or strengthening of that market power or allows the parties to exploit such market power.”

“15. The type of co-ordination of behaviour or collusion between undertakings falling within the scope of Article [101(1)] is that where at least one undertaking vis-a-vis another undertaking undertakes to adopt a certain conduct on the market or that as a result of contact between them uncertainty as to their conduct on the market is eliminated or at least substantially reduced…. 16. Agreements between undertakings are caught by the prohibition of Article [101(1)] when they are likely to have an appreciable adverse impact on the parameters of competition on the market, such as price, output, product quality, product variety and innovation. Agreements can have this effect by appreciably reducing rivalry between the parties to the agreement or between them and third parties.”

“29. The assessment of whether a horizontal co-operation agreement has restrictive effects on competition within the meaning of Article 101(1) must be made in comparison to the actual legal and economic context in which competition would occur in the absence of the agreement with all of its alleged restrictions…”

“The general criterion for deciding whether an agreement restricts competition is how competition would have operated in the market in question in the absence of that agreement. The hypothetical position which would pertain in the absence of the agreement is known as the counterfactual. If the agreement leads to an appreciably less restrictive market than the counterfactual, then there is a ‘restriction of competition’ within the meaning of Article 101(1). The Court of Justice established this method in Société Technique Minière and it has been reaffirmed many times since. The General Court has said that taking account of the effect of the agreement on competition and the counterfactual are ‘intrinsically linked’.”

“164 … the Court should, to that end, assess the impact of the setting of the MIF on the parameters of competition, such as price, the quantity and quality of the goods or services. Accordingly, it is necessary, in accordance with the settled case-law referred to in paragraph 161 of the present judgement, to assess the competition in question within the actual context in which it would occur in the absence of those fees.”

“86. The proposition that the arrangements were designed to improve the profitability of the racecourses is correct, but I cannot agree with this submission that this was to be done by restricting competition. On the contrary, it was to be done by introducing competition into the previously monopsonistic upstream market. Nor is increasing profitability objectionable in itself. It is, after all, the motive of most commercial activity.”

“68. Moreover, in a case such as this, where it is accepted that the agreement does not have as its object a restriction of competition, the effects of the agreement should be considered and for it to be caught by the prohibition it is necessary to find that those factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent. The competition in question must be understood within the actual context in which it would occur in the absence of the agreement in dispute; the interference with competition may in particular be doubted if the agreement seems really necessary for the penetration of a new area by an undertaking … 71. The examination required in the light of [Article 101 (1)] consists essentially in taking account of the impact of the agreement on existing and potential competition … And the competition situation in the absence of the agreement … those two factors being intrinsically linked… 72. The examination of competition in the absence of an agreement appears to be particularly necessary as regards markets undergoing liberalisation or emerging markets … where effective competition may be problematic owing, for example, to the presence of a dominant operator, the concentrated nature of the market structure or the existence of significant barriers to entry …”

“… Since it is acknowledged that the MIF sets the floor for the MSC … it necessarily follows that the MIF has effects restrictive of competition. By comparison with an acquiring market operating without them, the MIF limits the pressure which merchants can exert on acquiring banks when negotiating the MSC by reducing the possibility of prices dropping below a certain threshold.”

“On the contrary, as is apparent from the very wording of paragraph 143 of the judgment under appeal, high prices merely arise as a result of the MIF which limits the pressure which merchants could exert on acquiring banks, with a resulting reduction in competition between acquirers as regards the amount of the MSC.”

“Given market forces and the competition between Acquiring Banks, we conclude, on the basis of the factual material before us, that: (1) Bilateral Interchange Fees would be likely to be agreed between Issuing and Acquiring Banks, at a level that would result in Merchants paying less than the present UK MIF, but a rate that would encourage Issuing Banks to remain in the MasterCard Scheme, and not precipitate the fatal erosion that a zero MIF and no bilateral agreements would generate. (2) In part, Merchants would probably be prepared to pay such a price in order to retain the competition between MasterCard and Visa, and avoid what would, in effect, be a monopoly for Visa. They would also be sensitive to threats from MasterCard and the Issuing Banks that certain valuable services (free credit; fraud protection; immediate payment) would ultimately be stripped out of the Scheme or degraded unless a reasonable Interchange Fee was paid. (3) The manner in which the Interchange Fee would be paid might well radically change. It is likely that Acquiring Banks would, on the counterfactual hypothesis, be able properly to differentiate themselves, and to compete for the services of Merchants in a manner precluded by a default Interchange Fee like the UK MIF …”

“In the context of bilateral negotiating between Issuers and Acquirers we would, in principle, be willing to accept some positive level of BIF provided it could be justified, for example if it could be shown that Issuers’ costs exceeded the income they received from card use. In general, during my time in procurement, I had no problem in meeting a supplier’s relevant costs in a negotiation, provided they were fairly calculated and based on an efficient operation of their businesses. I was not necessarily looking for them to cover their costs from other customers but was always prepared to accept our share of that cost. However, I would also be looking for recognition of the benefit to them of our business, so that here I would be looking for Issuers to provide recognition for the substantial sums of money we generate for them from the use of payment cards by our customers.”

“432. Because of the competitive pressures on acquirers and the free-rider problem, it would be in no individual acquirer’s interest to agree to a positive interchange fee. Therefore, I consider that in the counterfactual, any Interchange fee is likely to be zero.”

“Caffarra (Visa): No. Even if the efficiencies arising from positive interchange fees meant a positive interchange fee was in merchants’ collective interests, free rider and co-ordination issues would prevent acquirers/merchants from agreeing positive interchange fees. And even if these issues could be overcome, merchants would favour interchange fees below the efficient level. Dryden (Arcadia): No: even if (contrary to my analysis) interchange fees benefit merchants collectively free-riding means that no individual merchant would agree to them. Hausman (Tesco): No, and all experts are agreed. The ability incentive of merchants and acquirers to “free-ride” on the bilateral fees paid by rivals lead to an equilibrium where bilateral fees are unlikely to be agreed. This is true regardless of whether MasterCard is subject to the same constraints (a symmetric counterfactual) or is free to continue to set a MIF (the asymmetric counterfactual). Holt (Visa): No. There would be little incentive for individual acquirers to agree positive bilateral interchange fees, so the settlement terms would be equivalent to a zero (MIF). Free riding is relevant to this answer: Each party (acquirer or merchant) would consider only their own interests rather than the interests of all participants in the payment card scheme as a whole. No individual acquirer would wish (nor be able) to put itself at a competitive disadvantage compared to rivals who can adopt the default rate. Von Hinten Reed (Sainsbury’s): (1) No. Any interchange fee would be zero because of the competitive pressures on acquirers and the free-rider problem. (2) The free-rider problem is relevant because it is one of the reasons why interchange fees would be zero in the counterfactual.”

“... if WorldPay were to agree to positive BIFs with issuera, it would be at a significant competitive disadvantage relative to any acquirers who had not entered such agreements. Anticipating this risk, I believe that WorldPay would be reluctant to agree to BIFs. If, for example, WorldPay was pitching a MSC incorporating a positive BIF to a typical merchant on the basis that such a fee was better for all industry participants because it kept Visa in the marketplace, but another acquirer was offering an MSC based on a zero MIF (meaning that only an acquirer margin would be payable), I would expect the merchant to choose the lower-cost acquirer because merchants tend to focus on their short-term costs. My experience has shown that retailers are always pressing their acquirers to lower their MSCs, even if that cost saving is only temporary. I would expect that to be the case even if that approach jeopardised the continuing existence of a payment scheme which could not set MIFs. Accordingly, in my view, it would be near impossible to persuade merchants to accept a higher interchange fee if other acquirers were offering a MSC which did not include a MIF component – I would expect large or small Merchant alike to choose the acquirer offering the lower MSC. Given this commercial reality I would expect WorldPay to be reluctant to agree a positive interchange fee unless it could be certain that all other acquirers were doing the same.”

“458. If the concept of a restriction of competition within the meaning of Article [101(1)] … had to be interpreted as MasterCard suggests, then Article [101(1)] … would be entirely deprived of its effet utile. The MasterCard MIF not only creates an (artificial) common cost for acquirers and thereby sets a floor for the fees each acquirer charges to merchants. Acquirers also know precisely that all of their competitors pay the very same fees. The price floor and the transparency of it to all suppliers involved (that is to say the knowledge of each acquirer about the commonality of the MIF for all other acquirers in the MasterCard scheme) eliminate an element of uncertainty. 459. In the absence of MasterCard’s MIF, the prices acquirers charge to merchants would not take into account the artificial cost base of the MIF and would only be set taking into account the acquirer’s individual marginal cost and his mark up. 460. Statements of retailers demonstrate that they would be in a position to exert that pressure if acquirers were not able to refer to interchange fee as the “starting point” (that is to say, as the floor) for negotiating the MSC. This is because without a default that fixes an interchange fee rate in the absence of a bilateral agreement, merchants could shop around to contract with the acquirer who incurs the lowest interchange costs. Acquirers who bilaterally agree to pay relatively high interchange fees to issuers would ultimately not remain competitive, as other acquirers could undercut their merchant fees by refusing to enter into bilateral agreements with issuers or by agreeing on relatively lower interchange fees. The uncertainty of each individual acquirer about the level of interchange fees which competitors bilaterally agree to pay to issuers would exercise a constraint on acquirers. In the long run this process can be expected to lead to the establishment of inter-bank claims and debts at the face value of the payment, that is without deducting any interchange fees. A multi-lateral rule that by default sets a certain interchange fee rate in the absence of bilateral negotiations prevents this competitive process. In the absence of such a rule (and in the presence of a prohibition of ex post pricing) acquiring banks would eventually end up setting their MSCs merely by taking into account their own marginal cost plus a certain mark up.”

“129. The applicants and a number of interveners submit that the Commission failed to fulfil its obligation to assess the competition in question within the actual context in which it would occur in the absence of the MIF. Essentially they raise two complaints. 130. In the first complaint, the applicants refer to the absence of a competitive relationship between issuing and acquiring banks in forming the view that the Commission was not entitled to conclude that the MIF restricts competition, since its absence does not mean that there is a competitive process that would result in the reduction of interchange fees. They observe that the MasterCard system could not function without a default transaction settlement procedure. The applicants also take the view that the Commission wrongly concluded that, in the absence of the MIF, bilateral negotiations would be held between issuing banks and acquiring banks and that such negotiations would in due course lead to the disappearance of interchange fees ...”

“133. … as regards the criticism relating to the reference in the contested decision to bilateral negotiations between issuing and acquiring banks, it should be noted that although the Commission referred to such negotiations in recital 460 to the contested decision, it did so essentially in order to point out that in a MasterCard system operating without a MIF acquirers accepting interchange fees on a bilateral basis would risk failing to remain competitive in the acquiring market, and that, therefore, in the absence of a MIF, it was to be expected that interchange fees would in due course cease to be charged on the settlement of transactions. 134. It must be held that this analysis is not manifestly incorrect. The view might reasonably be taken that by allowing transparency between acquiring banks as to the level of interchange fees applied to transactions, the MIF helps to ensure that all, or at least a substantial portion, of those fees are passed on to merchants, the acquiring banks being assured that the resulting increase in the amount of the MSC will not affect their competitive position. However, the view might reasonably be taken that no such assurance would be available in a system operating without a MIF, and that, therefore, the passing on to merchants of an interchange fee accepted bilaterally would be likely to affect the competitive position of the acquiring bank in question.”

“143. This line of argument cannot be accepted. Since it is acknowledged that the MIF sets a floor for the MSC and in so far as the Commission was legitimately entitled to find that a MasterCard system operating without a MIF would remain economically viable, it necessarily follows that the MIF has effects restrictive of competition. By comparison with an acquiring market operating without them, the MIF limits the pressure which merchants can exert on acquiring banks when negotiating the MSC by reducing the possibility of prices dropping below a certain threshold.”

“192. Having properly relied on the ‘counterfactual hypothesis’ of a system operating on the basis of the prohibition of ex post pricing … the General Court did not regard the MIF, by their very nature, as being injurious to the proper functioning of normal competition, but analysed the competitive effects of those fees. It must be pointed out that the General Court’s analysis in that regard is not to be found only in paragraph 143 of the judgment under appeal … but also includes all of the analysis in paragraphs 123 to 193 of that judgment. 193. In particular, while the General Court clearly explained in paragraph 143 of the judgment under appeal that the MIF had restrictive effects in that they ‘[limit] the pressure which merchants can exert on acquiring banks when negotiating the MSC by reducing the possibility of prices dropping below a certain threshold’ … the General Court did not merely presume that the MIF set a floor for the MSC but, on the contrary, proceeded to carry out a detailed examination in paragraphs 157 to 165 of the judgment under appeal in order to determine whether that was in fact the case.”

“164… the Court should … assess the impact of the setting of the MIF on the parameters of competition, such as the price, the quantity and quality of the goods or services. Accordingly, it is necessary, in accordance with the settled case-law … to assess the competition in question within the actual context in which it would occur in the absence of those fees.” 165. In that regard, the Court of Justice has already had occasion to point out that, when appraising the effects of coordination between undertakings in the light of Article 81 EC, it is necessary to take into consideration the actual context in which the relevant coordination arrangements are situated, in particular the economic and legal context in which the undertakings concerned operate, the nature of the goods or services affected, as well as the real conditions of the functioning and the structure of the market or markets in question … 166. It follows from this that the scenario envisaged on the basis of the hypothesis that the coordination arrangements in question are absent must be realistic. From that perspective, it is permissible where appropriate to take account of the likely developments that would occur on the market in the absence of those arrangements.”

“(1) The agreement whose anti-competitive effect we are testing is the … agreement between MasterCard and its licensees to have a default UK MIF. (2) We stress that we are testing the anti-competitive effect of this agreement. It would be wholly wrong for us to enter upon this enquiry presuming the default UK MIF to be anti-competitive. The whole point of the counterfactual exercise we are undertaking is to provide an analytical framework whereby the effect of an agreement can be tested by hypothesising its absence. (3) That being the case, it would be wrong in principle to make any presumption as to the constraints on rivals to MasterCard, like Visa, that is not rooted or based on fact.”

“126. The question of knowing whether the restrictive effects of the measures on the issuing market would be counterbalanced by the alleged restrictive effects on competition on the payments systems market that would occur in their absence stems from the analysis under [Article 101(3)]. In this regard…the Commission deemed that the Group’s argument relating to the indispensability of the measures for the survival of the CB system would be examined within the context of [Article 101(3)]. 127. Furthermore, it should be noted that, in its previous decision-making practice, i.e, in recital 59 of the Visa 2002 decision, the Commission had considered that Visa’s argument that in the absence of the MIF, the extent of Visa’s activities, and therefore, their competitive impact, would be greatly reduced, would be examined with regard to [Article 101(3)] and not to [Article 101(1)] for which the question that arose was to determine whether a clause was technically necessary for the functioning of the Visa payment system.”

“91. Where it is a matter of determining whether an anti-competitive restriction can escape the prohibition laid down in [Article 101(1)] because it is ancillary to a main operation that is not anti-competitive nature, it is necessary to enquire whether that operation would be impossible to carry out in the absence of the restriction in question. Contrary to what the appellants claim, the fact that the operation is simply more difficult to implement or even less profitable without the restriction concerned cannot be deemed to give that restriction the ‘objective necessity’ required in order for it to be classified as ancillary … …. 93 … The objective necessity test… concerns the question of whether, in the absence of a given restriction of commercial autonomy, a main operation or activity which is not caught by the prohibition laid down in [Article 101(1)] and to which that restriction is secondary, is likely not to be implemented or not to proceed. …. 107 … It is necessary to consider not only whether that restriction is necessary for the implementation of the main operation or activity, but also whether that restriction is proportionate to the underlying objectives of that operation or activity. ”

“108. It should be pointed out that, irrespective of the context or aim in relation to which a counterfactual hypothesis is used, it is important that the hypothesis is appropriate to the issue it is supposed to clarify and that the assumption on which it is based is not unrealistic. 109. Accordingly, in order to contest the ancillary nature of a restriction … the Commission may rely on the existence of realistic alternatives that are less restrictive of competition than the restriction at issue. … 163. As is apparent from paragraph 108 of the present judgment, the same ‘counterfactual hypothesis’ is not necessarily appropriate to conceptually distinct issues …”

“… The test for choosing the counterfactual for the purposes of the ancillary restraint doctrine provides a lower threshold for the regulator or other person complaining of a restraint than the test for choosing the counterfactual for the purposes of establishing a restriction of competition within the prohibition of Article 101(1). For the ancillary restraint doctrine it is enough for a person complaining of infringement to point to one or more counterfactuals which might arise, by comparison with which the ancillary restraint is not necessary for the survival of the main operation. By contrast, in order for the prohibition in Article 101 (1) to bite on the restriction, it must be a restriction on competition by comparison with the restriction counterfactual which likely would arise …”

“… examination of the objective necessity of a restriction in relation to the main operation cannot but be relatively abstract. It is not a question of analysing whether, in the light of the competitive situation on the relevant market, the restriction is indispensable to the commercial success of the main operation but of determining whether, in the specific context of the main operation, the restriction is necessary to implement that operation. If without the restriction, the main operation is difficult or even impossible to implement, the restriction may be regarded as objectively necessary for its implementation.”

“A restriction of competition may fall outside the scope of Article 101 TFEU if it can be shown that it is objectively necessary for the existence of an agreement of that type or nature. In MasterCard, however, the Commission concluded that a collective mechanism that shifts costs between acquiring and issuing banks is not indispensable for the operation of a four party payment scheme because issuing banks and acquiring banks can cover their costs directly via their respective customer groups. Indeed, the MasterCard decision identified five comparable payment card schemes that successfully operate in different Member states without a MIF.”

“89. As [Metropole] shows, examination of the objective necessity of a restriction is a relatively abstract exercise. Only those restrictions which are necessary in order for the main operation to be able to function in any event may be regarded as falling within the scope of the theory of ancillary restrictions. Thus, considerations relating to the indispensable nature of the restriction in the light of the competitive situation on the relevant market are not part of an analysis of the ancillary nature of the restriction … 90. Accordingly, the fact that the absence of the MIF may have adverse consequences for the functioning of the MasterCard system does not, in itself, mean that the MIF must be regarded as being objectively necessary, if it is apparent from an examination of the MasterCard system in its economic and legal context that it is still capable of functioning without it.”

“19. If that were the case, and should the vendor and the purchaser remain competitors after the transfer, it is clear that the agreement for the transfer of the undertaking could not be given effect. The vendor, with his particularly detailed knowledge of the transferred undertaking, would still be in a position to win back his former customers immediately after the transfer and thereby drive the undertaking out of business. Against that background, non-competition clauses incorporated in an agreement for the transfer of an undertaking in principle have the merit of ensuring that the transfer has the effect intended. By virtue of that very fact they contribute to the promotion of competition because they lead to an increase in the number of undertakings in the market in question.”

“32. In a market where product prices vary according to the volume of orders, the activities of co-operative purchasing associations may, depending on the size of their membership, constitute a significant counterweight to the contractual power of large producers and make way for more effective competition. 33. Where some members of two competing co-operative purchasing associations belong to both at the same time, the result is to make each association less capable of pursuing its objectives for the benefit of the rest of its members, especially where the members concerned, as in the case in point, are themselves co-operative associations with a large number of individual members. 34. It follows that such dual membership would jeopardize both the proper functioning of the co-operative and its contractual power in relation to producers. Prohibition of dual membership does not, therefore, necessarily constitute a restriction of competition within the meaning of [Article 101(1)]and may even have beneficial effects on competition. 35. Nevertheless, a provision in the statutes of a co-operative purchasing association, restricting the opportunity for members to join other types of competing co-operatives and thus discouraging them from obtaining supplies elsewhere, may have adverse effects on competition. So, in order to escape the prohibition laid down in [Article 101(1)], the restrictions imposed on members by the statutes of co-operative purchasing associations must be limited to what is necessary to ensure that the co-operative functions properly and maintains its contractual power in relation to producers.”