In a ruling published on Monday 29 July (case C-298/22), the Court of Justice of the European Union (CJEU) ruled that the exchange of sensitive information over a period of more than ten years between 14 credit institutions in Portugal could constitute a restriction of competition by object.
In September 2019, the Portuguese Competition Authority fined these banks (including Portugal’s six largest) a total of €225 million, accusing them of breaching national and EU competition law through their participation in an extensive monthly exchange of information from 2002 to 2013. The information covered the mortgage, consumer credit and business credit markets.
Following an action brought against this decision before Portugal’s Court of Competition, the Court of Justice, when asked about the classification conditions for “restriction of competition by object”, replied that, for a market to function under normal conditions, operators must determine independently the policy they intend to follow and remain uncertain as to the future behaviour of other participants.
“An exchange of information is a form of coordination which may be classified as a restriction by object where it enables such uncertainty to be eliminated. This is the case where the information exchanged is confidential and strategic in the sense that it may reveal the future conduct of a competitor on the markets in question”, concluded the Court.
However, the Court stated that it was for the Portuguese court to determine whether this was the case in the facts at issue, in particular by determining whether the information had related to the intentions of the participants in the exchange to alter their credit spreads in the future.
“Given that credit spreads are one of the parameters on the basis of which competition is established on a market, such an exchange could only have had the objective of distorting competition on that market”, the Court stated on Monday.
Read the ruling: https://aeur.eu/f/d6p (Original version in French by Bernard Denuit)