Lisbon, Sept. 17, 2024 (Lusa) - The trial of the case known as the "banking cartel" is in its final phase this week. The banks' arguments on the European court's judgement are scheduled for Wednesday, and the judgement's reading is scheduled for Friday.
In recent years, the Court of Competition, Regulation and Supervision (TCRS), in Santarém, has heard the appeals of 11 banks fined in 2019 by the Competition Authority (AdC) for the concerted practice of exchanging sensitive credit information.
According to the regulator, between 2002 and 2013, more than 10 banks shared information with each other, namely tables of spreads (commercial profit margins) to be applied to loans to customers (housing, consumer, and corporate) and production volumes, which resulted in a fine of €225 million.
In the case, which originated in a leniency application submitted in 2013 by Barclays, the Competition Authority ordered Portugal's state-owned CGD to pay €82 million, Banco Comercial Português (BCP) to pay €60 million, Santander Totta to pay €35.65 million, BPI to pay €30 million, Montepio to pay €13 million (the fine was halved because it joined the leniency application), Banco Bilbao Vizcaya Argentaria to pay €2.5 million, BES to pay €700. 000 euros, Banco BIC €500,000, Deutsche Bank (whose offence expired in October 2020) and Caixa Central de Crédito Agrícola Mútuo €350,000 each. The Union de Créditos Inmobiliarios was ordered to pay €150,000 and Banif (which didn't appeal) €1,000.
Abanca, which was also involved in the case, had its offence statute barred during the administrative phase, and Barclays, which applied for leniency, had its fine of eight million euros suspended.
During the appeals trial, which began in October 2021, the banks asked for an acquittal, generally arguing that there was no price combination and that the sharing of information did not harm competition. In its final arguments, BCP was particularly critical of this process, considering that the Competition Authority had intended to "promote a public and media trial of those targeted".
The banks, in the case of BCP and BPI, also questioned the differentiated amounts of the fines and accused the fines of lacking justification.
In April 2022, Judge Mariana Gomes Machado ruled that the banks had exchanged information on prices/rates (current and future) that were not in the public domain or that were difficult to access and systematise, that they shared monthly production figures and that this exchange of information, which took place in a relatively concentrated market, "facilitated alignment" and allowed for the "establishment of informal coordination between the banking institutions".
However, at the same time, it decided to stay the proceedings and refer them to the Court of Justice of the European Union (CJEU) for a ruling on whether the facts constitute a restriction of competition by object, as it has not been proven whether or not the exchange of information affected consumers.
Recently, at the end of July, the European court ruled. The CJEU acknowledged that the exchange of information maintained by the banks for more than a decade "may constitute a restriction of competition by object" and that "it is sufficient for that exchange to constitute a form of coordination which, by its very nature, is necessarily (...) detrimental to the proper and normal functioning of competition".
According to the CJEU, for a market to function under normal conditions, "operators must determine autonomously the policy they intend to pursue and must remain uncertain as to the future behaviour of other participants".
Following this interpretation by the European court, it is now up to the Competition Court to decide whether or not the facts are a "restriction by object" - generally, national courts follow the European court's understanding - and to decide the fines to be applied to the proven facts (whether the Competition Authority's figures are maintained or revised).
Judge Mariana Gomes Machado is scheduled to read the judgment on Friday at 14:00.
Before that, on Wednesday, the banks will make their final arguments on the European court's judgement.
IM/ADB // ADB.
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