Luxemburg, 15/12/2006 (Agence Europe) - Eight major Austrian banks, acting in concert, had their appeals against sanctions imposed by the Commission for participating in a series of agreements and concerted practices between 1st January 1995 and 24 June 1998 rejected (joint cases T-259/02 to T264/02 and T271/02). The Commission found that the aim of the regular meetings of banks in Austria (“Bankenrunden”) was to hamper the free play of competition on the Austrian banking market, infringing Article 81 of the EC Treaty. Consequently, the Commission, in its decision of 11 June 2002 (2002/138/EC) imposed fines on the banks concerned. The banks appealed against this decision, but it was upheld by the Court of First Instance, with the exception of the fine imposed on the Österreichische Postsparkasse AG, which was reduced to €3.795 million.
The appeal was based on several points of law and procedure, but virtually none was accepted by the Court. The banks (Raiffeisen Zentralbank Österreich AG, Bank Austria Creditanstalt AG, Anteilsverwaltung BAWAG PSK AG, Raiffeisenlandesbank Niederösterreich-Wien AG, BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postparkasse AG, Erste Bank der oesterreichischen Sparkassen AG, Österreichische Volksbanken AG, and Niederösterreichische Landebank-Hypothekenbank AG) had met regularly for over fifty years and this, they claimed, with the at least tacit approval of the Austrian government. These meetings, they argued, did not discuss limiting competition in Austria, and certainly not in the EU. The Court concluded, however, that, even though some meetings did not focus on anti-competition practices, there was no doubt of their illegal nature as a whole, all the more so since a number of these meetings dealt explicitly with cross-border markets.
The members of the cartel also contested the description of the offence as “very serious” and requested a reduction in the fines imposed. The Court once again did not agree, since the conspiracy involved, among other things, an agreement on prices, which is deemed to be a serious offence. In addition, the seriousness of the infringement was compounded by the importance of the banking sector for the economy in general, and was not in any way attenuated by the limited size of the geographical market, since it would inevitably have international consequences.
It was only with regard to the calculation of the fines that the Court found slight fault with the Commission's decision. The Court reduced the fine imposed on Postparkasse, ruling that the Commission did not have the necessary data to be certain of the market share it was granted, and on which the calculation was based. However, all the other classifications and calculations remained valid; in particular, the importance of three banks - Raiffeisen Zentralbank Österreich AG, Erste Bank de oesterreichischen Sparkassen AG and Österrichische Volksbanken AG - owes much to their carrying out a central function (commonly called “the lead institutions”). Any estimation of their market share had, therefore, to take account of the activities of the whole grouping of which they were they formed the central establishment.
The banks now have two months to prepare an appeal to the Court of Justice. When asked about the likelihood of an appeal, a representative of the Raiffeisen Zentralbank said that it was a possibility, but stressed that the Court's justifications, which had yet to be received, would first have to be analysed.
Such an appeal would have very little chance of success. An official from DG Competition, involved in the investigation from the start, told EUROPE that the agreements made clearly constituted “hard core restrictions”, also known as “black clauses”. Under competition rules, he said, this means that “there is no need even to demonstrate any impact on the market to justify a sanction”.
The Commission expressed satisfaction at the judgment, given its work and investigations to improve competition in the financial services sector since 2005. Two interim reports in 2006 (one on payment cards in April and the other on NOW accounts in July) have highlighted several structural and technical obstacles to free competition in this sector. The final report, which will provide concrete suggestions to counter these problems, is expected in spring 2007. Austria was already among the Member States mentioned in the interim reports. It is likely, then, that other countries will be subject to the same scrutiny. (cd)