Facts
Decision
Comment


On 2 December 2021, the European Commission (the Commission) completed its investigation into the foreign exchange spot trading market, which led to fines that totalled €344 million against Barclays, Credit Suisse, RBS and HSBC. As a leniency applicant, UBS avoided a penalty.

Facts

Since 2013, the Commission has already opened and conducted six antitrust investigations in the financial sector. The last decision was handed down on 20 May 2021, when the Commission found that Bank of America, Natixis, Nomura, RBS (NatWest), UBS, UniCredit and WestLB (Portigon) had violated EU antitrust rules through traders' cartel activities in the primary and secondary markets for European government bonds. While the Commission only fined Nomura, UBS and UniCredit at that time, NatWest was not fined because it disclosed the cartel to the Commission. Bank of America and Natixis were also spared, as their involvement in the cartel was time-barred, and Portigon (the successor to WestLB) received no fine because the bank had no net sales from the 2020-2021 fiscal year.

In the current investigation and 2 December 2021 decision, the Commission concluded the third part of its inquiry into the spot foreign exchange market, again demonstrating its rigorous approach to banks to ensure the soundness and competitiveness of the financial sector, which is quite important for investment and growth. Indeed, the spot foreign exchange market is one of the largest financial markets in the world and, in the opinion of the Commission, by coordinating their behaviour, the five banks had undermined the integrity of the financial sector at the expense of the European economy and European consumers.

While Barclays, RBS and HSBC decided to settle the case and were fined a total of €261 million, Credit Suisse decided not to settle, and it was fined €83 million under the ordinary procedure. Finally, UBS, as a leniency applicant, avoided a penalty of around €94 million.

This investigation focused on trading in the Group of 10 (G10) currencies. G10 currencies globally are the most liquid and traded currencies, five of which are used in the European Economic Area (EEA).(1)

Generally, companies exchange large amounts of different currencies by way of a foreign exchange dealer. The main customers of foreign exchange dealers include:

  • asset managers;
  • pension funds;
  • hedge funds;
  • large corporations; and
  • other banks.

According to the Commission's findings, certain traders responsible for foreign exchange spot trading in G10 currencies for the account of the fined banks exchanged sensitive information and trading intentions; they coordinated their trading strategies through the online chat room Sterling Lads.

Based on this exchange of information in the chat room, traders were able to decide precisely when and whether to sell or buy the currencies that they held in their portfolios, based on the market situation. This eliminated the risk of uncertainty, as under normal competitive conditions, traders must often independently take risks with their decisions. Moreover, by colluding in the chat room, traders were also able to identify when coordination was possible. For example, certain traders would temporarily forego trades so as not to interfere with those of other traders.

Decision

The fines were set in accordance with the Commission's 2006 guidelines on the method of setting fines. Concerning the level of fines, the Commission considered:

  • the turnover of the cartel participants for financial products relating to the EEA;
  • the gravity of the infringement;
  • the geographic scope of the cartel; and
  • the duration of the cartel and of individual participation therein.

UBS informed the Commission of the existence of the cartels and was granted full immunity from fines. The fines of Barclays, RBS and HSBC were reduced in consideration of their cooperation in the investigation and on the basis of the 2008 settlement notice:

  • Barclays received a 30% reduction under the leniency notice and a 10% reduction under the settlement notice; the total fine was €54.3 million.
  • RBS received a 50% reduction under the leniency notice and a 10% reduction under the settlement notice; the total fine was €32.5 million.
  • HSBC received a 15% reduction under the leniency notice and a 10% reduction under the settlement notice; the total fine was €174.3 million.
  • Credit Suisse did not cooperate in the leniency or settlement proceedings and, therefore, it did not benefit from any reductions in this regard. However, it received a total reduction of 4% to reflect the fact that it was not held liable for all allegations investigated; the total fine was €83.3 million.

Comment

Even after Brexit, this decision suggests that the Commission may still be responsible for fining banks that are based in the United Kingdom. In accordance with the EU-UK withdrawal agreement, the Commission continues to be the competent entity for this case, which was initiated before the end of the transition period. This is referred to as a "continued competence case". In accordance with these rules, the European Union shall reimburse the United Kingdom for its share of the amount of the fine once the fine has become definitive. However, the collection of the fine, the calculation of the United Kingdom's share and the reimbursement will be carried out by the Commission.

This decision completed the Commission's wider investigation into the foreign exchange market. Before this case, two other foreign exchange market infringements were concluded, with settlement decisions adopted on 16 May 2019:

  • the "three-way banana split" settlement decision, which concerned communications in three different, consecutive chatrooms that were named "three way banana split", "two and a half men" and "Only Marge". This cartel included traders from UBS, Barclays, RBS, Citigroup and JPMorgan. The Commission imposed a total fine of €811.1 million on Barclays, RBS, Citigroup and JPMorgan; and
  • the "Essex Express" decision, in which the Commission imposed a total fine of €257.7 million on Barclays, RBS and MUFG Bank (formerly Bank of Tokyo-Mitsubishi). UBS was an addressee of both decisions but was not fined as it revealed the existence of the cartels to the Commission.

Generally, banks and other companies are well advised to ramp up their compliance management systems to avoid cartels and other compliance issues, which often lead to heavy fines. Repeat offenders are fined more heavily. Under the 2006 guidelines for setting fines, companies that reoffend can face a 100% increase in their fine for having committed past infringements. In setting the fine, the Commission may take into account circumstances that result in an increase or decrease in the basic amount of the fine. This basic amount may be increased where the Commission finds that there are aggravating circumstances, such as:

  • a company continues or repeats the same or a similar infringement after the Commission or a national competition authority has made a finding that the company infringed competition law (in such case, the basic amount will be increased by up to 100% for each such infringement established);
  • refusal to cooperate with or obstruction of the Commission in carrying out its investigations; and
  • leadership or instigation of the infringement. The Commission will also pay particular attention to any steps taken to coerce other undertakings to participate in the infringement and/or any retaliatory measures taken against other undertakings with a view to enforcing the practices that constituted the infringement.

For further information on this topic please contact Sebastian Jungermann at Arnecke Sibeth Dabelstein by telephone (+49 69 979885 465) or email ([email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.

Endnotes

(1) The G10 actually includes 11 currencies:

  • Australian dollar;
  • British pound;
  • Canadian dollar;
  • Danish Crown;
  • Euro;
  • Japanese yen;
  • New Zealand dollar;
  • Norwegian crown;
  • Swedish crown;
  • Swiss Franc; and
  • US Dollar.