On October 5, 2023, Advocate General Rantos delivered his opinion on two questions referred to the Court of Justice by the Portuguese Competition, Regulation and Supervision Court (the “referring court”).[1]  The referring court seeks clarification on whether a ‘standalone’[2] exchange of information between competitors can be classified as a restriction by object under Article 101 TFEU, and whether that classification is permitted where it has not been possible to establish any uncertain or procompetitive effect on competition resulting from the exchange.  The case gives the Court of Justice an opportunity to clarify its recent evolution from a broad and formalistic interpretation of the concept of a restriction by object to a narrower, more  pragmatic interpretation of that concept.[3]

Background

On September 9, 2019, the Portuguese Competition Authority (Autoridade da Concorrência, “AdC”) imposed fines totalling €225 million on the fourteen largest credit institutions in Portugal for having participated in a standalone exchange of information in violation of Article 101 TFEU.[4]  The alleged exchange took place between May 2002 and March 2013, and concerned two types of non-publicly available information: (i) current and future commercial conditions (e.g., charts of credit spreads); and (ii) production volumes (i.e., the amount of loans granted by the respective bank in the preceding month).

The AdC did not allege that the banks in question participated in any other practice restrictive of competition to which the exchange of information could be linked.  It considered that such a ‘standalone’ exchange of information constitutes a restriction of competition by object, which relieves the authority of the obligation to investigate its possible effects on the market.[5]  The banks appealed the AdC’s decision on these points before the referring court, which submitted questions to the Court of Justice on the delineation between restrictions “by object” and “by effect” in the context of exchange of information between competitors.[6]

Clarification of the concept of a restriction of competition by object

A practice can be classified as a restriction of competition by object only if the conduct in question reveals “a sufficient degree of harm to competition” and, accordingly, can be regarded as being by its very nature harmful to the proper functioning of competition.[7]  Advocate General Rantos endorses and clarifies the two-step analysis for a by-object classification, which was initially proposed by Advocate General Bobek in the Budapest Bank case.[8] 

As a first step, competition authorities must determine whether a practice, given its content and objectives, falls within a category which is detrimental to competition in light of a “reliable and robust wealth of experience” or, failing that, is clearly detrimental to competition.  While the existence of “reliable and robust experience” regarding the harmful nature of an anticompetitive practice increases the likelihood that the same or similar practices would also be found to restrict competition by object, it is not a “precondition.”[9]  According to Advocate General Rantos, the absence of precedents does not prevent competition authorities from finding a restriction by object where: (i) the anticompetitive nature of a conduct is “obvious”; or (ii) the practice has “no credible explanation other than to restrict competition on the market.”[10] 

As a second step, the authority must carry out a “basic reality check” to verify whether specific circumstances of the legal and economic context of the practice “may cast doubt on [its] harmful nature.”[11]  The purpose of this second step is to avoid false positives: where the anticompetitive object is “easy to perceive,” the analysis of the economic and legal context in which a practice occurs must be limited to what is “strictly necessary to confirm or cast doubt on [its] harmful nature.”[12]  Here procompetitive effects could move the needle only if they are: (i) demonstrated; (ii) relevant; and (iii) sufficiently significant to justify a reasonable doubt as to whether the practice caused a sufficient degree of harm to competition.[13]  Indeed, competition authorities must switch to an effects analysis only if it is “impossible to establish that the practice is capable of restricting competition” under the two-step object analysis.[14]

Application of the concept of a restriction by object to exchanges of information

Not every exchange of information falls foul of Article 101 TFEU: only exchanges of strategic or commercially sensitive information which “reduce or remove the degree of uncertainty as to operation of the market” can be found to restrict competition.[15]  For information exchanges between competitors, the decisive criterion for establishing an infringement is the “reduction or removal of uncertainty as to the strategic conduct of a competitor on the market.”[16] 

Even when an information exchange falls within the scope of Article 101 TFEU, this does “not automatically mean that it is classified as a restriction of competition by object.”[17]  Advocate General Rantos clarifies that a standalone information exchange practice can constitute a restriction by object of competition only where the analysis of its content, objectives, and legal and economic context reveals a sufficient degree of harm to competition.  In other words, a by object classification requires that “it is clear and unambiguous” that an information exchange can, by its nature, “influence directly the commercial strategy of competitors.”[18]  According to Advocate General Rantos, this test would be met where the information exchanged relates to key elements of competition, such as future capacities and pricing.

Advocate General Rantos explains that the exchange between competitors of forward-looking strategic information (e.g., credit spreads) is far more likely to constitute a restriction by object than the exchange of historic data (e.g., product volumes).  While a by object classification cannot be ruled out either way, the exchange of aggregated historic data alone is unlikely to be indicative of competitors’ future conduct, or to provide a common understanding of the market.[19]  Accordingly, companies should be conscious of the risks of disclosing non-publicly available strategic data, in particular if it is forward-looking and/or disaggregated.

Conclusion Advocate General Rantos’ opinion brings welcome clarification of the Budapest Bank two-step object analysis and the need for a restrictive application of the by object classification.  In particular, it provides helpful guidance on the conditions under which an information exchange can be classified as a restriction of competition by object.  It remains to be seen whether and to what extent the Court of Justice will follow the opinion.

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[1]           Banco BPN v. BIC Português and Others (Case C-298/22), opinion of Advocate General Rantos, EU:C:2023:738. The request for a preliminary ruling was made in proceedings between banking institutions in Portugal, including Banco BPN/BIC Português AS, Banco Bilbao Vizcaya Argentaria SA, Portuguese branch, Banco Português de Investimento SA (BPI), and the Autoridade da Concorrência.

[2]           The term ‘standalone’ means that the information exchange in question constitutes the examined conduct in itself and is not ancillary to any other conduct.

[3]                 That evolution began with the Court of Justice’s judgment in Groupement des cartes bancaires v. Commission (Case C‑67/13 P) EU:C:2014:2204, which was subsequently confirmed and refined in a series of judgments, including Maxima Latvija v. Konkurences padome (Case C‑345/14) EU:C:2015:784, Budapest Bank and Others (Case C-228/18) EU:C:2020:265, Generics (UK) and Others (Case C‑307/18) EU:C:2020:52, and Super Bock Bebidas (Case C-211/22) EU:C:2023:529.

[4]           Autoridade da Concorrência, Case PRC/2012/9, decision of September 9, 2019 (case summary, in English, available here).

[5]           Banco BPN v. BIC Português and Others (Case C-298/22), opinion of Advocate General Rantos, EU:C:2023:738, paras. 6-7.

[6]           Ibid., para. 16.

[7]           See, e.g., Visma Enterprise v. Konkurences padome (Case C-306/20), EU:C2021:935, para 57.

[8]           Budapest Bank and Others (Case C-228/18), EU:C:2020:265, para. 76. For an analysis of the Budapest Bank case, see our April 2020 European Competition Law Newsletter, pp. 1-4.

[9]           Banco BPN v. BIC Português and Others (Case C-298/22), opinion of Advocate General Rantos, EU:C:2023:738, paras. 36-39.

[10]         Ibid., paras. 36, 38, and 40.

[11]         Ibid., para. 43.

[12]         Ibid., para. 44.

[13]         Ibid., paras. 49-50.

[14]         Ibid., para. 48.

[15]         Ibid., paras. 54 and 59.

[16]         Ibid., paras. 62-64.

[17]         Ibid., paras. 58-63.

[18]         Ibid., paras. 63-64.

[19]         Ibid., paras. 69-75, and 101-104.