Press Release 18/2024
July 29, 2024

The Court of Justice of the European Union (CJEU) issued a judgment today confirming that the exchange of sensitive information among the 14 banks sanctioned by the Portuguese Competition Authority (AdC) in the case known as the "Banking Case" constitutes a restriction of competition by object.

The Judgment

The CJEU's judgment responds to a question posed by the Competition, Regulation, and Supervision Court (TCRS), which, in the context of the banks' appeal against the AdC's decision, asked whether an information exchange with the characteristics of the one that occurred among the 14 banks over more than 10 years could be classified as a restriction of competition by object.
In this judgment, the CJEU stated that "a comprehensive and reciprocal monthly exchange of information between competing credit institutions, which took place in markets where concentration is high and there are barriers to entry, relating to the conditions applicable to transactions carried out on those markets, in particular current and future credit spreads and risk variables, and individual production figures of the participants in that exchange, in so far as, at the very least, the spreads thus exchanged are those which hose institutions intend to apply in the future, must be classified as a restriction of competition by object."
This judgment is a significant milestone in the interpretation of competition law, establishing precedent on the standalone offense of exchanging sensitive information.
It is now up to the TCRS to decide the case in accordance with the CJEU's decision, and a ruling from the TCRS is expected soon, given the urgent nature of the case.
This preliminary ruling was initiated by the TCRS in April 2022 and was pending before the CJEU for approximately two years and three months, during which the national proceedings and the limitation period were suspended.
The "preliminary ruling" mechanism allows the courts of the Member States, in the context of a dispute before them, to refer questions to the Court of Justice regarding the interpretation of Union law. The CJEU does not decide the national dispute; it is up to the national court to resolve the case in accordance with the CJEU's decision. This decision is binding on other national courts facing similar issues.

The Case

In 2019, the AdC fined 14 banks operating in Portugal a total of 225 million euros for engaging in a concerted practice of exchanging sensitive commercial information over a period of more than ten years.
Between 2002 and 2013, the participating banks exchanged sensitive information related to the offering of credit products in retail banking, specifically mortgage loans, consumer credit, and business credit.
In this scheme, each bank shared sensitive information about their commercial offers with the others, such as the spreads to be applied in the near future for mortgage loans or the amounts of credit granted in the previous month—data that would not otherwise be accessible to competitors.
The banks sanctioned included BBVA, BIC (for acts committed by the former BPN), BPI, BCP, BES, BANIF, Barclays, CGD, Caixa Central de Crédito Agrícola Mútuo (CCCAM), Montepio, Santander (for acts committed by itself and by Banco Popular), Deutsche Bank, and UCI.
The AdC determined that these institutions had violated both national and European Union competition law.
Following the AdC's decision, 12 appeals were filed against the final decision (including by the leniency applicant, Barclays, disputing the determination of the fine amount they were exempted from paying). Banif and BES did not file appeals.