Summary of Commission Decision

of 20 May 2021

relating to a proceeding under Article 101 of the TFEU and Article 53 of the EEA Agreement

(Case AT.40324 — European Government Bonds)

(notified under document C(2021)3489)

(Only the English and German texts are authentic)

(Text with EEA relevance)

(2021/C 418/08)

On 20 May 2021, the Commission adopted a decision relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (the ‘Treaty’) and Article 53 of the Agreement on the European Economic Area (the ‘EEA Agreement’). In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1) , the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets. A non-confidential version of the decision is available on the Competition Directorate-General website at the following address: http://ec.europa.eu/competition/antitrust/cases/

1. INTRODUCTION

(1) The addressees of the Decision participated in a single and continuous infringement of Article 101 of the Treaty and Article 53 of the EEA Agreement. The object of the infringement (a cartel) was the restriction and/or distortion of competition in the sector of European Government Bonds (‘EGB’).

2. PROCEDURE

(2) The Commission opened its investigation on 29 July 2015 on the basis of an immunity application of RBS (now NatWest) under the leniency programme. ( 2 ) The Commission sent requests for information pursuant to Article 18(2) of Regulation 1/2003 to various banks following which two of them, UBS and Natixis, applied for reduction of fines under the leniency programme. Next to the voluntary cooperation of leniency applicants, the investigation relied on further requests for information sent to the banks involved in the investigation.

(3) The Commission initiated proceedings pursuant to Article 11(6) of Regulation 1/2003 on 31 January 2019 and issued a Statement of Objections, to which the addressees replied in writing and orally during an Oral Hearing. Thereafter, the Commission sent another request for information, a letter of facts and a letter clarifying the calculation of the proxy for the value of sales in this case. All parties concerned submitted their observations.

(4) The Advisory Committee on Restrictive Practices and Dominant Positions was consulted and gave a positive opinion. The Hearing Officer also issued a final report. The Commission adopted the decision on 20 May 2021.

3. ANTICOMPETITIVE CONDUCT

(5) The infringement relates to cartel conduct in the primary and the secondary market for EGB trading for a period of almost five years.

(6) EGB are sovereign bonds issued in Euro by the central governments of the Eurozone Member States. EGB are a type of debt security which allows European governments to raise cash to fund expenditures or investments or to refinance existing debt. EGB allow the government issuing the bond (the issuer) to borrow money (the principal amount) from investors for a fixed term (the maturity date). In return, the government pays a fixed or floating rate of interest (the coupon) to the investor that holds the bond and repays the principal amount to the investor that holds the bond at the maturity date.

(7) EGB are issued on the primary market and subsequently traded on the secondary market. Governments delegate the issuing of bonds to their Treasury Department, and more specifically to their Debt Management Office. They can offer and place EGB in the market through auctions, which is a tendering process, or through syndication, which is a private placement process. Primary dealers acquire the bonds on the primary market and place them with their customers on the secondary market. On the secondary market, the bonds are traded between dealers and with other institutional investors. Typically, large investment banks trade all EGB within their EGB desk, irrespective of the date of issuance, principal amount or maturity date of the EGB.

(8) During the period between January 2007 and November 2011, a group of EGB traders were in close contact with each other in person, via telephone, instant messages and persistent chatrooms. Persistent chatrooms are multilateral meetings, in which the participants are not physically present and do not communicate orally, but communicate with each other by sending instant messages to the group that are accessible to all and to which all can react. A persistent chatroom is a continuous conference that is by ‘invitation only’, meaning that participation is limited to invited members who have automatic access to the full conversation(s).

(9) Two persistent chatrooms that were of particular relevance for exchanging information in this cartel were initiated early in 2007 by a group of four traders. This group had access to both chatrooms from the start and continued to have access throughout, even when changing employer and access had to be technically renewed. These traders were involved in the mutual contacts throughout their existence. They also invited other traders, from their or other banks, to one or both chatrooms. These traders thus also participated in the infringement, albeit to a more limited extent and for more limited periods in time. The conduct of all those traders engaged liability of their employing banks, on whose behalf they traded.

(10) Contacts in the persistent chatrooms occurred regularly, sometimes daily, in particular when EGB came up for auction. Communications could be lengthy, lasting all day or spanning multiple days. The traders used professional jargon, abreviations, nicknames and code words.

(11) The Commission has organised these contacts for the purpose of this Decision in four intertwined and partially overlapping categories of agreements and concerted practices regarding: (a) attempts to influence the prevailing market price on the secondary market in function of the conduct on the primary market; (b) attempts to coordinate the bidding on the primary market; (c) attempts to coordinate the level of overbidding on the primary market; (d) other exchanges of sensitive information, including on (i) pricing elements, positions and/or volumes and strategies for specific counterparties related to individual trades of EGB on the secondary markets; (ii) individual recommendations given to a DMO and (iii) the timing of pricing of syndicates.

(12) In these contacts, the traders exchanged commercially sensitive information that kept them informed about each other’s conduct and strategies for acquiring EGB on the primary market and trading them on the secondary market. These exchanges allowed them to align and/or coordinate their conduct and help each other gain competitive advantages when EGB were issued, placed in the market and traded. Relevant information exchanged included information on prices, volumes and trading positions: mid-prices, yield curves and spreads of bonds recently traded or being offered on the secondary market, volumes envisaged to purchase at the auctions, information on the bids, the level of overbidding and overbidding strategies at the auctions and so forth. The information exchanged between competitors was often precise and commercially sensitive. It was relevant to the traders’ decision making and allowed them to adjust their trading strategies as a result.

(13) The overall aim of the collaboration between the group traders was to help each other in their operation on the market through increased transparency and reduced uncertainties regarding the issuing and/or trading of EGB, knowingly substituting the risks of competition to the detriment of other market participants, banks, their customers or DMOs.

(14) These anticompetitive contacts were linked and complementary in nature. Considering a variety of objective elements such as the content and frequency of the contacts, the product concerned, the methods used, the pattern, time period and actors involved, they formed a single and continuous infringement consisting of agreements and/or concerted practices that had as their object the restriction of competition in the EGB sector.

(15) The geographic scope of the infringement covered at least the whole EEA.

4. INDIVIDUAL INVOLVEMENT

(16) The following undertakings have participated in the conduct and therefore infringed Article 101 (1) TFEU and Article 53 (1) of the EEA Agreement during the periods indicated below. — Bank of America from 29 January 2007 until 6 November 2008, — Natixis from 26 February 2008 until 6 August 2009, — NatWest from 4 January 2007 until 28 November 2011 (3), — Nomura from 18 January 2011 until 28 November 2011, — Portigon from 19 October 2009 until 3 June 2011, — UBS from 4 January 2007 until 28 November 2011, and — UniCredit from 9 September 2011 until 28 November 2011.

5. REMEDIES

(17) The individual participation of Bank of America and Natixis in the conduct ended more than five years before the start of the Commission investigation. Under Article 25 of Regulation No 1/2003 the Commission can no longer apply Article 23 (2) (a) of that Regulation and cannot impose a fine on Bank of America and Natixis. The Decision therefore only imposes fines on the undertakings NatWest, Nomura, Portigon, UBS and UniCredit.

(18) The Decision applies the 2006 Guidelines on Fines. ( 4 ) The basic amount of the fine is set by reference to a proxy for the value of sales. The Commission calculated the annual value of sales on the basis of the notional amount of EGB traded by the parties on the secondary market in the EEA during their period of individual involvement, discounted by a factor that takes account of the particularities of the EGB industry, and more in particular that these products are constantly traded. For this purpose, the Commission adjusted or discounted the annualised notional amounts of EGB traded by a factor that takes into account the bid-ask spread levels inherent to this market. The Commission applied a different discount factor for each party because of the high volatility of EGB bid-ask spread levels and discrepancy across issuing countries, maturities and throughout the infringement period.

(19) The amount of the fines takes into account the very serious nature of cartel infringements, the duration and geographic scope of the cartel, the fact that the conduct permeated the whole EGB industry on the primary and secondary market and that EGB are used for raising public funding and the conduct took place at the time of a very serious financial crisis. In line with Commission practice, an additional amount is added to deter undertakings from ever entering into such illegal practices (so called ‘entry-fee’).

(20) There are no aggravating or mitigating circumstances for the undertakings subject to fines, but the fact that the trader of UniCredit was only active on the secondary market is recognised in the calculation of the gravity factor for UniCredit.

(21) The fine imposed on each undertaking does not exceed 10 % of its total turnover relating to the business year preceding the date of the Commission decision, except for West LB/Portigon. Its latest net turnover (2020) is negative and the fine is therefore capped to zero.

(22) The Commission grants full immunity from fines to NatWest and a reduction of 45 % of the fine to UBS for their cooperation in the investigation.

6. CONCLUSION

(23) The Decision addresses the following undertakings for having infringed Article 101 of the Treaty and Article 53 of the EEA Agreement and imposes a fine pursuant to Article 23(2) of Regulation (EC) No 1/2003 on the following legal entities that are jointly and severally liable to pay the fine. Undertaking and legal entities Fines (EUR) Bank of America: Bank of America Corporation Bank of America, National Association Not applicable (time-barred) Natixis: Natixis S.A. Not applicable (time-barred) NatWest: NatWest Group plc NatWest Markets plc NatWest Markets N.V 0 (immunity applicant) Nomura: Nomura Holdings Inc Nomura International plc 129 573 000 Portigon: Portigon AG 0 (negative net turnover in 2020) UBS: UBS Group AG UBS AG 172 378 000 UniCredit: UniCredit S.p.A. Unicredit Bank AG 69 442 000

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(2) Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ C 298, 8.12.2006, p. 17).

(3) NatWest Group plc and NatWest Markets plc from 4 January 2007 until 28 November 2011 and NatWest Markets N.V. from 17 October 2007 until 28 November 2011.

(4) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ C 210, 1.9.2006, p. 2).