2003/25/EC: Commission Decision of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E - 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) (notified under document number C(2001) 3693)
Date: 2001-12-11
Institutions: European Commission
Subjects: Germany, bank, bank charges, euro area, exchange transaction, fine, foreign currency, infringement procedure (EU)

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 11 December 2001

relating to a proceeding under Article 81 of the EC Treaty

(Case COMP/E - 1/37.919 (ex 37.391) (cid:151) Bank charges for exchanging euro-zone currencies (cid:151)

Germany)

(notified under document number C(2001) 3693)

(Only the German text is authentic)

(2003/25/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

A. INTRODUCTION

Having regard to the Treaty establishing the European
Community,

(1)

This Decision concerning an infringement of Article 81
of
following
undertakings:

the EC Treaty is

addressed to the

Having regard to Council Regulation No 17 of 6 February
1962, First Regulation implementing Articles 85 and 86 of the
Treaty (1),
(EC) No
1216/1999 (2), and in particular Articles 3 and 15(2) thereof,

by Regulation

amended

last

as

Having regard to the Commission decision of 1 August 2000
to initiate proceedings in this case,

the

and

given

associations

Having
of
undertakings
undertakings concerned the opportunity to make known their
views on the objections raised by the Commission pursuant to
Article 19(1) of Regulation No 17 and Commission Regulation
(EC) No 2842/98 of 22 December 1998 on the hearing of
parties in certain proceedings under Articles 85 and 86 of the
EC Treaty (3),

Having consulted the Advisory Committee on Restrictive
Practices and Dominant Positions,

Having regard to the final report of the Hearing Officer in this
case,

Whereas:

(cid:151) Commerzbank AG,

(cid:151) Dresdner Bank AG,

(cid:151) Bayerische Hypo- und Vereinsbank AG,

(cid:151) Deutsche VerkehrsBank AG,

(cid:151) Vereins- und Westbank AG.

(2)

The banks participating in the meeting of 15 October
1997 at Deutsche Verkehrsbank AG in Frankfurt am
Main agreed to a commission of about 3 % for the
buying and selling of euro-zone banknotes during the
three-year transitional period beginning on 1 January
1999. The purpose was to recover about 90 % of the
(cid:145)exchange margin(cid:146)
the
(cid:145)spread(cid:146)
(i.e. buying and selling rates) on 1 January
1999.

income after the abolition of

B. THE RELEVANT PRODUCT AND TRADE BETWEEN

MEMBER STATES

(*) Confidential information has been deleted; it is replaced by square

1. The relevant product market

brackets and marked by an asterisk.

(1) OJ 13, 21.2.1962, p. 204.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ L 354, 30.12.1998, p. 18.

(3)

On 1 January 1999, the euro was introduced as the
European single currency. The twelve participating

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euro-zone countries are: Austria, Belgium, Finland,
France, Germany, Ireland, Italy, Luxembourg, Portugal,
the Netherlands and Greece (4). During the
Spain,
transitional period (1 January 1999 to 31 December
2001), the euro existed in different denominations. The
national currency units (ATS, BEF/LUF, DEM, ESP, FIM,
FRF, IEP, ITL, NLG, PTE and GRD) were sub-units of the
euro according to the conversion rates which were
irrevocably fixed as from 1 January 1999.

(9)

(4)

The relevant product market is defined as the service of
(5) of the euro where at least
exchanging the (cid:145)subunits(cid:146)
one part of the transaction concerns notes and coins
((cid:145)in-currency banknotes(cid:146)) (6). This service (cid:151) buying and
selling foreign euro-zone currencies (cid:151) was offered
mainly by banks and by bureaux de change. The
following are
such exchange
transactions:

examples of

typical

(cid:151) foreign in-currencies (cash) exchanged to be debited
from or credited to an account denominated in euro
or in the national in-currency,

(cid:151) foreign in-currencies

(cash)

exchanged for

the

national in-currency (cash), and vice versa.

(5) Whatever

(partly)

supply
the

substitutability,
cash

demand
the
of
substitution
for
in-currencies is very limited,
In
particular as far as tourism is concerned, customers
follow tour operators’ and banks’ advice to carry only
small amounts of cash on them and to use their debit
or credit cards abroad.

exchange
if not non-existent.

(6)

As for other categories of customer such as small
businesses which exchange larger amounts of currency
to carry out payments in other countries, cross-border
viable
bank-to-bank transfers may not present
alternative.

a

2. Trade between Member States

(7)

The data on volumes of note and coin transactions
come from the answers to a questionnaire sent
in
October and December 1999 to about 240 banks in the
euro zone (see recitals 22 to 24).

(8)

The 1998 selling and buying volumes for note and coin
transactions per euro-zone country for all euro-zone

(4) Greece joined the euro-zone countries on 1 January 2001.
(5) See first preamble to the Commission’s recommendation of 23

(12)

April 1998.

(6) Most banks buy only foreign currency notes and no coins. Most
bureaux de change also buy foreign currency coins, although at a
higher rate than for notes.

currencies are shown in Annex I. The amounts shown
are underestimates because not all banks were able to
provide data on transaction volumes. Furthermore, not
all banks in the euro zone were sent the questionnaire.
Also,
the questionnaire did not systematically cover
bureaux de change operations so that the transaction
volumes for this business are not included in the data.

For selling,
the transaction volume for all euro-zone
currencies was about EUR 17,5 billion in 1998. About
35 % of this transaction volume was attributable to the
selling of DEM. For buying, the transaction volume was
about EUR 24,7 billion. Over 50 % of this transaction
volume was attributable to the buying of DEM. The
total
transaction volume for buying and selling was
about EUR 42,2 billion in 1998. Within the euro zone,
the DEM was by far the most exchanged (bought and
sold) currency (see Annex euro zone). Annex shows that
euro-zone
there was
currencies in each Member State.

considerable

exchange

of

C. THE MARKET IN GERMANY

1. The banks

(10) Universal banks that engage in a wide range of banking
activities dominate the German banking system. At the
end of 1998 there were more than 3 400 banks with
over 45 000 branches.

(11) Universal banks can be classified into three major

groups:

(cid:151) commercial

banks

(Kreditbanken):

group
includes Deutsche Bank, Bayerische Hypo- und
Vereinsbank, Dresdner Bank and Commerzbank (the
(cid:145)Big Four(cid:146)),

This

(cid:151) savings banks and their regional giro institutions
(Sparkassen and Landesbanken): This group is made
up of 594 savings banks, 12 Landesbanks and DGZ
DekaBank Deutsche Kommunalbank,

(cid:151) cooperative banks (Volks- und Raiffeisenbanken) and
their central
institutions (Zentralbanken): this sector
consists of 2 256 local cooperative banks and four
central banks (DG Bank, SGZ-Bank, WGZ-Bank and
GZB-Bank).

specialised

In addition to the universal banks there is a wide range
of
banks
such
(Hypothekenbanken) and banks with special functions and
other financial
institutions such as building societies
(Bausparkassen).

as mortgage

banks

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2. Currency exchange transaction volumes

(13) Of the survey sample of 42 banks (see recitals 22 and
23), 35 banks carry out currency exchange transactions.

these 35 banks,

For
the volumes of Community
currencies bought and sold per currency in 1998 are
shown in Figure 1 below.

Figure

Volumes of currencies bought and sold in Germany (1998)

GERMANY

(in EUR)

400 000 000

300 000 000

200 000 000

100 000 000

0

S
T
A

F
U
L
/
F
E
B

M
E
D

P
S
E

M
F

I

F
R
F

P
E

I

L
T

I

G
L
N

E
T
P

K
K
D

P
B
G

D
R
G

K
E
S

(14)

For the currencies shown in Figure 1, the total value of
notes bought and sold in 1998 was approximately EUR
2,1 billion, with about twice as much being sold than
bought. The buying and selling of ATS represented
about 22 % of the value of currencies bought and sold,
followed by ITL, FRF, ESP and NLG, which accounted
(in descending order) for between about 18 % and 13 %
each. The in-currencies represented about 90 % of the
value of the EU notes bought and sold (7).

(7) According to Westdeutsche Landesbank, German Bundesbank
statistics give the total value of notes and coin bought and sold by
German banks as EUR 6,8 billion; in-currencies represented 52 %
of the total. This indicates that the value of in-currencies bought
and sold was about EUR 3,4 billion and not EUR 2 billion as
indicated by the survey. Westdeutsche Landesbank’s reply to the
statement of objections, p. 7 (file, p. 3976).

D. PROCEDURE

1. The requests for information

und Giroverband

(15) On 8 February 1999 the Commission addressed
requests for information under Article 11 of Regulation
No 17 to three German banking associations, namely
the Deutscher
the Bundesverband deutscher Banken,
Sparkassen-
the Zentraler
and
Kreditausschuss. The associations were asked to provide
all minutes and/or records of meetings held within the
association where questions relating to euro conversion,
exchange of
in-currencies, as well as costs (to credit
institutions) and charges (to customers) were discussed.
Also requested were copies of all correspondence
exchanged between the association and its members,
circulars addressed by the association to its members,
and responses of the association to enquiries from its
members concerning the abovementioned questions.

(16)

The Deutscher Sparkassen- und Giroverband responded
by letter dated 3 March 1999. The Bundesverband
deutscher Banken and the Zentraler Kreditausschuss
each responded by letter dated 14 April 1999.

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(17) On 7 July 1999 the Commission addressed a further
request for information under Article 11 of Regulation
No 17 to the Bundesverband deutscher Banken asking
for clarification concerning a number of meetings
devoted to charges for foreign exchange transactions.
The Bundesverband deutscher Banken responded by
letter dated 29 July 1999.

(18) On 6 March 2000 the Commission addressed a further
request for information under Article 11 of Regulation
No 17 to the Bundesverband deutscher Banken and to
the German Bundesbank asking for details of any
discussions and/or recommendations on charges and
charging structures that had been made in Germany,
and more specifically on:

(23)

(24)

(cid:151) a 3 % charge and a minimum fee of DEM 5, and/or

(cid:151) a 4 % charge and a minimum fee of DEM 3.

(19)

By letters dated 21 March 2000,
the Bundesverband
deutscher Banken and the Bundesbank both replied that
they had no knowledge of any such discussions and/or
recommendations on charges and charging structures.

(25)

2. The February and October 1999 inspections

(20) Under Article 14(3) of Regulation No 17,

inspections
were carried out on 16 and 17 February 1999 at two
locations in Germany:

(cid:151) Deutsche Bank AG (Frankfurt head office),

(cid:151) Dresdner Bank AG (Frankfurt head office).

(21) Under Article 14(3) of Regulation No 17 an inspection
was carried out on 20 and 21 October 1999 at a
location in the Netherlands:

(cid:151) GWK

Bank NV/De Grenswisselkantoren NV

(Diemen) (8).

3. Survey of bank charges for exchanging
banknotes

(22)

By letter dated 19 October 1999,
the Commission
a
under Article 11 of Regulation No 17 sent
questionnaire to about 240 banks in the euro zone
asking them to provide data on bank charges for foreign
exchange transactions before and after the introduction
of the euro. The addressee banks represent about 80 %
of banking turnover in the euro zone.

(8) GWK Bank specialises

foreign currency
banknotes and has 68 bureaux de change, including 33 at main
railway stations and 25 along the border.

in the exchange of

The questionnaire requested data on the buying, selling
and reference rates ((cid:145)official(cid:146) rate) for each currency on
15 January 1998 and 15 December 1998, and the
charges and charging structure on 15 January 1999.
Also requested were the selling and buying volumes (per
currency) of transactions carried out in 1998.

The
questionnaire
addressed to 42 banks
following addressees of this Decision:

dated 19 October 1999 was
including the

in Germany,

(cid:151) Bayerische Hypo- und Vereinsbank AG,

(cid:151) Commerzbank AG,

(cid:151) Deutsche VerkehrsBank AG,

(cid:151) Dresdner Bank AG.

4. The statement of objections

a

sent

letters dated 3 and 10 August 2000,
objections

the
By
Commission
to
Commerzbank AG, Deutsche Verkehrsbank AG,
Reisebank AG, Dresdner Bank AG, Bayerische Hypo-
und Vereinsbank AG, Vereins- und Westbank AG and
other banks (9).

statement

of

5. Replies to the statement of objections and the
hearing

(26)

Following requests from the parties, the Hearing Officer
informed the parties of his decision to extend the
deadline for responding to the statement of objections
(hereinafter called (cid:145)SO(cid:146))
to 27
November 2000.

from 3 November

(27) Deutsche Verkehrsbank AG and Reisebank AG (10)
requested access to all other country-specific files and

(9) In April and May 2001, with a view to termination of

the
proceedings, several banks proposed (a) for the general public, a
considerable and immediate reduction (from May/June onwards) in
charges and (b) a further substantial reduction in charges from
October 2001 onwards for account holders. On the basis that the
market for the exchange of in-currencies would disappear at the
end of the year, and given that the proposed measures would
produce immediate beneficial effects for consumers as well as
the Commission decided
facilitate the changeover to the euro,
the present case to
under
terminate proceedings against: Bayerische Landesbank Girozentrale,
SEB Bank AG (former BfG Bank AG), Hamburgische Landesbank
Girozentrale, Westdeutsche Landesbank Girozentrale, Landesbank
Hessen
Bank/De
Grenswisselkantoren NV (and parent companies Fortis NV, Fortis
Services Nederland NV and Fortis Bank Nederland NV).

the exceptional circumstances of

Girozentrale,

Th(cid:252)ringen

GWK

(10) Deutsche Verkehrsbank AG stated in its reply to the SO that, as
only Reisebank AG was active on the retail forex market, the
Reisebank AG reply to the SO would be referred to in its totality
by Deutsche Verkehrsbank AG: pp. 1 et seq. (file, pp. 3692 et
seq.).

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the complete Dutch file in particular. They claimed this
was necessary to safeguard their rights of defence as
they suspected that the Dutch National Bank (DNB) had
played a leading role in initiating the contacts between
GWK Bank and German banks. They believed that the
proving DNB
file
Dutch
involvement.

documents

included

(28)

to this

In response
the Hearing Officer
request,
examined the Dutch file (Case COMP/E-1/37.791) and
extracted all documents referring to Germany and other
countries. Under cover of a letter dated 12 January
2001, these documents were sent to addressees of the
SO, who were invited to submit observations by 24
January 2001.

(29) All parties except Deutsche Genossenschaftsbank AG
requested a hearing and received an invitation to such a
hearing scheduled for 1 and 2 February 2001. All
except Deutsche Genossenschaftsbank AG
parties
attended the hearing.

(30) During the hearing the parties present were informed
that they would be provided with a copy of an internal
note of the Internal market Directorate-General which
the approximately 700
contained a short analysis of
complaints received by the Commission departments
(Internal
protection
Directorates-General)
from Community consumers in
relation to bank charges for various payment means and
services following the introduction of the euro.

Consumer

market

and

(31)

(32)

By letter dated 26 February 2001, the Hearing Officer
sent the abovementioned copy of the internal note of
the Internal market Directorate-General to the parties
and requested them to submit their observations on the
note and on the hearing itself by 14 March 2001.

The banks taking the opportunity to comment on the
internal note argued that the only reason for complaints
was that for the first time customers were able to clearly
identify the charges as they were no longer hidden in
the difference between the buying rate and the selling
rate. Dresdner Bank AG stated that consumers were
disappointed as they had wrongly expected no charges
at all.

(34)

(35)

(36)

(37)

(38)

requests for supplementary access to the other parallel
country-specific files were also denied (11).

E. DESCRIPTION OF EVENTS

1. The introduction of the euro

Stage 3 of Economic

The Madrid European Council of 15 and 16 December
1995 adopted a timetable for the changeover to the
euro. The Madrid Council established the starting date
for
and Monetary Union
(hereinafter called (cid:145)EMU(cid:146)) as 1 January 1999. For a
period of three years from this date, the conversion
rates would be irrevocably fixed among the currencies
of participating countries (in-currencies) and against the
euro (12).

From 1 January 1999, and for a three-year transitional
period, the euro would exist as a (cid:145)virtual(cid:146) currency in
the euro-zone countries. National banknotes of each
euro-zone country would continue to circulate and
foreign exchange services for the buying and selling of
in-currencies would still be required during this period.
However, the (cid:145)conversion(cid:146) between in-currencies would
be carried out at the irrevocably fixed exchange rates,
and at no other rates.

By 1 February 2002 at the latest, euro banknotes and
coins would start to circulate alongside national notes
and coins. At most six months
the national
currencies would have been completely replaced by the
euro in all participating Member States.

later,

The use of the conversion rates was further stipulated in
Council Regulation No 1103/97 of 17 June 1997 on
certain provisions relating to the introduction of the
euro (13). According to Article 4(3) of the Regulation,
(cid:145)The conversion rates shall be used for conversions
either way between the euro unit and the national
currency units(cid:146).

the euro on 1 January
Prior to the introduction of
1999, customers were charged in Germany for the
exchange
coin
(hereinafter called (cid:145)exchange of in-currency banknotes(cid:146))

euro-zone

foreign

notes

and

of

(33) Also at the hearing on 1 and 2 February 2001, the
parties repeated their
full access to all
request
parallel country-specific files. By letter dated 6 August
2001 the Hearing Officer denied these requests. Further

for

(11) See Cases T-216/01 R and T-219/01 R.
(12) Presidency conclusions of the Madrid European Council of 15 and
16 December 1995 on the scenario for the changeover to the
single currency: http://europa.eu.int/euro/.

(13) OJ L 162, 19.6.1997, p. 1.

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almost exclusively via a spread (14). The irrevocable
fixing of the exchange rates as from 1 January 1999
meant the abolition of the different buying and selling
rates, i.e. the spread, as a means of expressing charges
for the exchange of in-currency banknotes.

chargeable because,
exchange rate risk will
disappear and thus reduce costs by some 20 %, other
costs will remain(cid:146).

(cid:145)while

(39)

Furthermore, the (cid:145)exchange rate risk(cid:146) cost element that
existed prior to the introduction of the euro as a result
of
the fluctuating exchange rates between currencies
disappeared with the fixing of euro-zone currencies’
exchange rates on 1 January 1999.

and

queries

(40) While the scenario adopted by the Madrid Council in
December 1995 provided the basic framework for the
changeover, many practical details relating to technical
to Stage 3 remained
preparation of
the move
the Commission received
outstanding. During 1996,
written comments
from associations
representing currency users on various aspects of the
changeover. With a view to addressing concerns
expressed by these associations and to advance technical
the Commission organised on 15 May
preparations,
1997 a Round Table on practical aspects of
the
changeover to the euro. The Round Table provided a
forum for dialogue among all
interested parties, both
public and private, and addressed two main sets of
issues:
smooth
changeover to the euro and helping currency users
adjust to the euro (15).

the practical

arrangements

for

a

(41) Under the two main sets of issues, the Round Table
discussed a broad range of EMU questions. Among these
was a question on the costs of conversion during 1999
to 2001 and during the final changeover. The discussion
on this subject mainly concerned the conversion of
national currency units to euro units (and vice versa).
Regarding the exchange of one participating Member
State’s banknotes to another during the transitional
be
period, participants

argued

should

that

this

(14) For the buying and selling of notes and coin to the public, the
spread is determined with respect to a market reference rate. In
the present case, the buying and selling rate is defined as the rate
the bank applies to buy from, or sell to, a customer. This means
that the buying rate is lower than the reference rate whereas the
selling rate is higher. Depending on whether a buying or selling
transaction is being carried out, the spread is either the difference
between a reference rate and a buying rate, or the difference
between a selling rate and a reference rate. For currency exchange,
the spread (with respect
to a reference rate) may be in the
percentage range.
In foreign exchange trading, a spread is simply the difference
between a bid (buy) and offer (sell) rate. Such spreads vary in size
according to market volatility. Spreads can be so small that they
are quoted to one hundredth of one percent (0,01 percentage
commission) of the currency unit, usually called a (cid:145)pip(cid:146).

(15) See (cid:145)Round table on practical aspects of the changeover to the
euro. Summary and conclusions. Brussels, May 15, 1997(cid:146):
http://europa.eu.int/comm/internal_market/en/finances/banks/ex-
pert.htm.

(42)

(43)

(44)

Following the Round Table of 15 May 1997 the
Commission set up an Expert Group on Banking
Charges for Conversion to the Euro (hereinafter called
(cid:145)Expert Group(cid:146)),
in parallel with a number of other
groups. The Expert Group (cid:151) comprised of experts
drawn from banking, payment systems, enterprises and
consumer organisations (cid:151) met six times in Brussels
(between 10 September and 20 November 1997), and
received written and oral contributions from a wide
range of market associations and institutions. It received
assistance also from the Commission and the European
Monetary Institute (hereinafter called (cid:145)EMI(cid:146)).

entitled to charge

The Expert Group’s terms of reference were to consider
whether banks would be
for
conversion to the euro, whether they intended to do so,
whether any new rules were necessary at Community
level and how to ensure transparency of any conversion
In its report of 20 November 1997 (16) the
charges.
Expert Group defines (cid:145)conversion(cid:146) as relating to the
of
process
participating Member States into the euro. Conversion
thus refers to an arithmetical calculation for quoting
national currency units in euro units, and vice versa (17).
The report expressly states that it did not deal with
charges for bank services (18).

the national

currencies

changing

of

The European Banking Federation gave evidence to the
Expert Group on 24 September 1997. At this meeting,
the Chairman of the Expert Group asked the Federation
if it might be possible to draw up a list of specific
euro-related services which would be free or be subject
to charges per country. By letter dated 3 October 1997,
the Federation requested its EMU Committee to provide
this information giving a deadline of 10 October 1997
for a response. The Expert Group concluded in its

(16)

(cid:145)Report of the Expert Group on Banking Charges for Conversion
to the Euro(cid:146) to the European Commission, Brussels, 20 November
1997, p. 2.

such as

(cid:145)convertibility(cid:146) or

(17) In legal terms a conversion, as that term is used here, is for all
practical purposes an unknown phenomenon. This is because
(cid:145)conversion(cid:146) has little in common with similar-sounding legal
concepts
(cid:145)currency exchange(cid:146). The
national currency unit
is no more than a description (albeit
transitional) of the currency (cid:145)euro(cid:146). A sum of money will have the
same legal identity whether, temporarily, it is being expressed in
one way or the other.
Indeed the nearest legal analogy is the
situation of units and sub units of a national currency. Thus 70
pfennigs is equal to DEM 0,70 and the way in which the book
learned legal
entry is carried out has not been the subject of
expertise but more
technical
convenience. See (cid:145)Report of the Expert Group on Banking Charges
for Conversion to the Euro(cid:146), Annex A: Legal aspects of charging
for conversion.

inspired by

search for

the

(18) See paragraph 4 (cid:145)What is conversion?(cid:146) of the Report of the Expert
Group on Banking Charges for Conversion to the Euro to the
European Commission, Brussels, 20 November 1997.

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report of 20 November 1997 that (cid:145)most banks intended
to charge their customers for the exchange of euro area
national banknotes during the
transitional period,
though charges should be less than at present because
the exchange rate risk will have been removed. Charges
would cover handling, storage, insurance and processing
the opportunity cost of holding stocks of
costs,
banknotes
counterfeit
banknotes.(cid:146)

accepting

and the

risk of

(45)

In its
recommends, among other things, the following:

Expert Group concludes

report

the

and

charge,

the Group considers

(cid:151) (cid:145)To encourage (cid:147)good practice(cid:148) relating to conversion
without
the
Commission should recommend the standard of
(cid:147)good practice(cid:148) for banks on conversion without
charge (cid:133) The standard would be advisory rather
than binding.(cid:146),

that

(cid:151) (cid:145)Where banks are entitled to charge for conversion,
and decide to do so, the conversion rate must be
used (i.e. the irrevocably fixed rate in relation to
euro). The Group recommends (cid:133) that the use of
the conversion rate and any charges should be
transparent, and included in the standard of (cid:147)good
practice(cid:148). To reduce
consumers
the
attribute existing charges to the introduction of the
euro, the Group recommends (cid:133) that the standard
should be implemented by banks in advance of
1 January 1999, wherever possible.(cid:146)

risk that

(cid:145)a

good

banking

practice(cid:146)

regarding

concerning

operations where

the Commission issued

euro (19). The
of
charge

a
(46) On 23 April 1998,
charges
for
recommendation
recommendation
conversion to the
on
established
standard
conversion (20) without
certain
legal
is
conversion
requirement not
and on certain other
conversion operations in order to facilitate the smooth
introduction of the euro (Article 2). For example, banks
are legally required to make the conversion without
charge of incoming payments denominated in the euro
unit
currency unit during the
transitional period. The Commission recommends that
banks should also convert without charge comparable
outgoing payments.

into the national

to charge

there

a

(47)

The standard of good practice does not
include the
exchange of in-currency banknotes without charge. The
recommendation does not restrict the banks’ freedom in
independently defining charges
according to each
individual bank’s commercial policy.

(19) 98/286/EC; (OJ L 130, 1.5.1998, p. 22).
(20)

(cid:145)Conversion(cid:146) within the meaning of the recommendation is the
change of denomination of a monetary amount from the national
currency unit to the euro unit and vice versa at the conversion
rate,
in accordance with the provisions of Regulation (EC) No
1103/97.

(48)

(49)

of

the

States

related

conversion rates

participating Member

The only (cid:145)obligation(cid:146) that the recommendation imposed
on banks with regard to exchange of banknotes and
coin
to
transparency: (cid:145)banks should show clearly the application
of
in accordance with the
provisions of Regulation (EC) No 1103/97, and they
should identify separately from the conversion rate any
charges of any kind whatever which have been applied(cid:146)
(Article 3(1)). The recommendation also says that banks
should provide
information
concerning those exchange charges by providing their
customers in writing with both general prior (ex ante)
information and specific
information on
charges which they respectively propose to apply or
have applied (Article 3(2)).

and transparent

(ex post)

clear

The recommendation also provided that banks should
inform their customers before 1 January 1999 about
whether and to what extent they would implement the
also
recommendation
in
recommended to publicise, either
groups,
the
to
recommendation (Article 4(3)).

individually or
implement

(Article 4(2)). Banks were

intention

their

(50) On 8 December 1998 the Commission published a
report entitled (cid:145)Implementation of
the Commission
recommendation on banking charges for conversion to
the euro(cid:146) (21). The report sets out the information that
the Commission had received from European banking
associations about the intention of their member banks
to implement the recommendation. In July 1998, the
Commission asked four banking associations
(The
European Banking Federation,
the European Savings
Banks Group, the European Association of Cooperative
Banks and the European Mortgage Federation) to report
by 1 November 1998 on whether, and to what extent,
their member banks were intending to implement the
recommendation. Each association’s assessment and
evidence is published in the annexes to the report.

(51)

Regarding Germany the report notes,
following:

in part,

the

(cid:145)C o m p l i a n c e w i t h t h e r e c o m m e n d a t i o n

i n e a c h p a r t i c i p a t i n g M e m b e r S t a t e

The Central Credit Committee
(ZKA), which
represents the whole German credit sector, has agreed
to respect the provisions of the recommendation. The
Bundesverband deutscher Banken considers that all its
members intend to implement the recommendation.
This is the case with member banks of the EACB and
ESBG in Germany as well.

(cid:133)

(21) This

document

is publicly

available on the

http://europa.eu.int/comm/dgs/internal_market/
included).

Internet

at
(Annexes

L 15/8

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Official Journal of the European Communities

21.1.2003

I n f o r m a t i o n f o r c u s t o m e r s (cid:133)

because any adaptation would give rise to additional
costs resulting in higher charges to customers (24):

In Germany, where banks have issued a great number
of publications on the introduction of the euro, EBF
member banks will explain the contents of
the
recommendation with letters or brochures.(cid:146)

to exchange euro-zone currencies

the participating countries
(cid:145)(cid:133)The central banks of
the exchange
have undertaken, after the fixing of
free of
rates,
charge. However,
the
Bundesbank and the regional Landeszentralbanks,
there is no interest
the private
customer business of banks as a new infrastructure
for this purpose would first need to be created.

from the point of view of

in taking over

2. The background in Germany

Owing to the planned obligation on the Bundesbank
free of charge, a rush of
to buy in-currencies
consumers
to the Landeszentralbanks would be
inevitable as the commercial banks, for cost reasons,
would refuse to buy currencies without a spread.

(52) A general presentation was made during the hearing on
1 and 2 February 2001 on the legal and economic
background. According
and
to
Westdeutsche Landesbank, a series of meetings took
place between commercial banks and the Bundesbank
prior to October 1997.

this presentation

(53) On 8 July 1997, a meeting took place between several
commercial banks and the Bundesbank in Frankfurt at
which the consequences of the introduction of the euro
for the buying and selling of foreign banknotes and coin
were discussed (22).

(54)

this meeting,

a
sent
concerning

questionnaire
the buying

on 22 July 1997 the
Following
commercial
to
Bundesbank
banks (23)
and selling of
banknotes in the retail and wholesale markets. The
questionnaire asked for data on volumes of banknotes
the transparency of charges during the
exchanged,
transitional phase,
the retail
business if the Bundesbank were to offer a free service
to the public, and the consequences for the wholesale
business
the Bundesbank were to offer a free
banknote repatriation service to the commercial banks.
The
treated
confidentially by the Bundesbank.

the consequences

each bank was

response of

to be

for

if

(55)

banks

Following the meeting on 8 July 1997 and the
Bundesbank questionnaire of 22 July 1997,
four
commercial
(Commerzbank AG, Deutsche
Verkehrsbank AG, Reisebank AG and Westdeutsche
Landesbank) sent a letter dated 25 July 1997 to the
Bundesbank stating their view that the spread should be
maintained. This was because the necessary information
technology changes could not be made in time and also

(24)

(22) Reply of Westdeutsche Landesbank to the SO, p. 16 (file,

p. 3985).

(23) Reply of Westdeutsche Landesbank to the SO, p. 16 (file,

p. 3985).

The turnover in forex business in bank branches in
Germany amounts to DEM 16 billion. The turnover
in DEM clearing with foreign correspondent banks
should be added to this
figure. The volume of
purchases from customers and repatriation volumes
will be
separate
Bundesbank questionnaire.

estimated on the basis of

a

The practical
the necessary
implementation of
measures has been discussed between the signatories,
who are heavily involved in the currency exchange
business.

The question of charging instead of
spread (selling/buying rates) was
problematic.

the current
seen as highly

As a result of the discussion, all participants have in
principle rejected a change as the resulting costs for
IT adaptation would make the exchange of banknotes
more expensive, and the public would not appreciate
higher charges. Consumers would not understand the
introduction of a charge when exchange rates were
fixed and central banks purchased in-currencies free
of charge.

It is also important to note that IT changes cannot be
made at such short notice.

A survey among our euro-business partners has
shown that foreign banks also insist on keeping the
spread.

A separation between fixed rate plus commission in
retail business and keeping the margins in interbank
business may be possible for banks with branches as
In the
they can directly influence their branches.
sector
and
banks)
Genossenschaftsbanken (cooperative banks), such an

Sparkassen

(savings

of

c/o

[(cid:133)]*

from
(cid:145)Auswirkungen der EWWU auf das Sortengesch(cid:228)ft(cid:146), Letter
Interessengemeinschaft
(Deutsche
Sortenhandel
Verkehrsbank AG) to [(cid:133)]* (Landeszentralbank Hessen) of 25 July
1997 signed by Commerzbank AG, Deutsche Verkehrsbank AG,
Reisebank AG and Westdeutsche Landesbank and copied to
Deutsche
Banken,
Bundesverband der Deutschen Volksbanken und Raiffeisenbanken
and Deutscher Sparkassen und Giroverband (file, pp. 2965 et
seq.).

Bundesverband Deutscher

Bundesbank,

21.1.2003

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Official Journal of the European Communities

L 15/9

the

independent

approach could only be implemented with difficulty
and
as
Genossenschaftsbanken could hardly accept charging
their customers fixed rates plus commission while
they themselves applied buying/selling rates with their
central institutions.

Sparkassen

For the above reasons, the signatories, as specialists in
the currency exchange business, advocate maintaining
selling
to
tried-and-tested procedures to avoid any hitches in
the run-up to the introduction of the euro(cid:146).

sticking

buying

rates

and

and

(56) During July and August 1997, the commercial banks
replied to the abovementioned (recital 54) Bundesbank
questionnaire (25).

(57) As a follow-up to the informal Ecofin Council meeting
on 12 and 13 September 1997 in Luxembourg, a
meeting took place on 15 September 1997 between
commercial banks and the Bundesbank in Frankfurt. The
meeting provided further clarification that charging via
a spread (i.e. buying and selling rates) would not be
possible after 1 January 1999. Any charges would have
to be shown separately:

1997,

September

addressed. On

(cid:145)The issue of fees, in particular exchange fees, was
also
the
1
Landeszentralbanks sent around a questionnaire by
letter in order to determine whether the commercial
banks would set a fee for the exchange of national
euro-zone banknotes or whether they would practice
a spread between two exchange rates. In this respect,
the Bundesbank stated that charging for the exchange
by way of a spread would no longer be possible. A
solution would only be possible by way of a fee(cid:146).

3. Facts

(58)

In April 1997 GWK Bank, with its 68 bureaux de
change (including 33 at main railway stations and 25
along the border), became concerned at the pricing to
be implemented in Germany for the buying and selling
of in-currency banknotes following the disappearance of
the spread on 1 January 1999.

(59) GWK Bank contacted a similar institution in Germany,
Reisebank AG (with 59 bureaux de change at big
railway stations and border crossings), initially to make

them aware that the German Bundesbank might use its
network of about 200 offices to provide a free service
to the public for the buying of euro-zone banknotes
during the transitional period (1 January 1999 to 31
the
December
a
the
implementation of Article 52 of
European System of Central Banks (hereinafter called
(cid:145)ESCB Statute(cid:146)). This would pose a threat not only to
Reisebank AG, but also to the main business of GWK
Bank, which was the buying and selling of DEM.

the Statute of

consequence

2001)

of

as

(60) GWK Bank urged Reisebank AG to begin discussions
with other German banks, in the first instance to try to
ensure that the Bundesbank would not provide a free
service to consumers via its network of 200 offices.

(61)

(62)

These discussions and contacts led to a meeting at
Deutsche Verkehrsbank AG (Frankfurt) on 15 October
1997 where price fixing between several German banks
took place.

The documentary evidence of the infringement is to be
found in the
and telephone
reports of meetings
conversations found during the inspection of 20 and 21
October 1999 at the premises of GWK Bank (Diemen)
in the Netherlands.

3.1. Meeting between GWK Bank and Reisebank AG on

29 April 1997

(63) On 29 April 1997, a meeting took place in Frankfurt
between GWK Bank and Reisebank AG. According to
this meeting (26), GWK Bank was
the minutes of
information on
surprised at Reisebank AG’s lack of
changes to be expected in the market for the exchange
of euro-zone banknotes after 1 January 1999. Reisebank
AG was under
the exchange
margins and fee structure for the exchange of euro-zone
banknotes would be maintained until the introduction
of euro cash in 2002:

the impression that

the meeting with
(cid:145)Minutes of 29 April 1997 of
Deutsche Reisebank (27) in Frankfurt concerning the
euro problem (dated 2 May 1997).

(cid:133)

(26)

(cid:145)Zusammenfassung der Gespr(cid:228)che vom 29 April 1997 mit der
Deutschen Reisebank in Frankfurt (cid:252)ber die Euro-Problematik(cid:146).
Present: Mr [(cid:133)]* (Reisebank AG), Mr [(cid:133)]* (Reisebank AG), Mr
[(cid:133)]* (GWK), Mr [(cid:133)]* (GWK); cc: [(cid:133)]* (GWK), [(cid:133)]* (GWK) and
[(cid:133)]* (GWK); memo No AS/HB/Orig97/061 dated 2 May 1997
(file, pp. 2939 et seq.).

(25) Reply of Westdeutsche Landesbank to the SO, p. 17 (file,

(27) The documents found at GWK almost always refer to Reisebank

p. 3986).

AG as Deutsche Reisebank.

L 15/10

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Official Journal of the European Communities

21.1.2003

feeling at

The predominant
the discussions was
astonishment on the part of GWK that Deutsche
Reisebank
and
up-to-date
astonishment on the part of Deutsche Reisebank at
the position taken by the German Bundesbank and
[because of ] the other short-term euro problems.(cid:146)

information

lacked

A s s u m p t i o n s b y R e i s e b a n k

The gentlemen of Reisebank AG felt they were prepared
for the euro. The development of the (cid:145)card-sales(cid:146) product,
the opening of bureaux de change on Germany’s eastern
border and the improvement of its market share in the
exchange market would provide sufficient compensation
for it to be able to face the future with confidence. In this
scenario, however, Reisebank AG assumed that the euro
problem would not arise until 2002. It expected there
would be no changes to the cash exchange markets
between 1 January 1999 and 1 July 2002 (or even as
from May 1998), because:

1.

the current margin structure would be maintained;

2.

current

the
maintained;

commission

structure would

be

3.

the current network of exchange locations would
remain unchanged.

(64)

The information provided by GWK Bank to Reisebank
AG at the meeting caused both surprise and concern.
The main points raised were:

(cid:151) exchange margins would disappear in 1999 and be

replaced by a visible charge,

(cid:151) the national

central banks

the
influence of the European Monetary Institute (EMI),
were exerting pressure on the commercial banks to
reduce bank charges after 1 January 1999,

(NCBs), under

(cid:151) the Dutch National Bank had decided that

the
implementation of Article 52 vis-(cid:224)-vis Dutch
commercial banks would involve a free service for
the repatriation of foreign euro-zone banknotes to
their
origin. Other NCBs were
considering a free exchange service to the general
public,

country

of

(65) On the above points,

the meeting minutes state as

follows:

(cid:145)T h e i n f o r m a t i o n p a s s e d o n b y G W K

After we provided our
certain amount of disbelief and fear.

information,

there was a

We provided the following information.

1.

It is most probable that the margin structure will
disappear in 1999, which will put pressure on the
profit side; in the Netherlands, the banks consider
that the margin will be nil and will have to be
replaced by a (visible) commission. Public opinion
could then turn against this higher commission.

2. The Dutch National Bank has tried (and according
to Mr [(cid:133)]* is still trying) to induce the banks to
require a substantially reduced remuneration for
exchanging euro-zone cash and it is only because
the banks insisted (according to the information
provided by GWK) that a slight improvement in
to be observed. We
the DNB’s position is
that other central banks
conclude from this
(under the influence of
the EMI) are exerting
similar pressure on commercial banks.

3. This (political) pressure has been, together with
Article 52, the occasion for an EMI-scale survey
of the large commercial banks,
in which GWK
(because of its specialisation) has been included.

4. The DNB wishes to interpret Article 52 narrowly
to mean that
the European central banks are
obliged to repatriate without charge only excess
euro-zone
participating
countries concerned and it does not wish to
modify the existing infrastructure of the (retail)
exchange business during the relevant period.

currencies

the

to

5. The DNB has taken this position after having
been informed (mainly by GWK) of the problems
that are to be expected.

6. GWK and the large banks are exploring the
possibility of
transforming the current margin-
and commission-based remuneration structure
into a purely commission-based remuneration as
from the beginning of 1999 to avoid having to
increase charges
in parallel with the highly
mediatised introduction of the euro.

(cid:151) there were rumours that German commercial banks
were prepared to offer a free service for
the
exchange of euro-zone banknotes from 1 January
1999.

7. More specifically,

the German Bundesbank and
the French and Italian central banks have insisted
on a broad interpretation of Article 52 so that the
public can enjoy a free service.

21.1.2003

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Official Journal of the European Communities

L 15/11

8. Rumours are circulating (according to Mr [(cid:133)]*)
that German commercial banks are prepared to
offer the public free cash-exchange transactions.

9. This would mean that the changes that are being
planned by Deutsche Reisebank could most
probably not be implemented.(cid:146)

(66) According to the meeting minutes, Reisebank AG gave
no credence to the GWK information. They decided to
contact the Bundesbank and commercial banks in order
to focus attention on the issues relating to the exchange
of euro-zone banknotes after 1 January 1999:

(68)

Of
their current profits, approximately 80 % are
the
exchange profits and total profits will, after
introduction of the euro, decrease by 40 % (it is not
clear if these figures are based on the large or the
small euro). The charge levied and the commission
amount, as in the case of GWK, to around 3,5 %.(cid:146)

In its reply to the SO, Reisebank AG admits (28) that it
was not aware of the major changes in forex business
involving in-currencies during the transitional period,
and in particular that the buying and selling rates for
the
currencies had to be
abandoned.

exchange of

euro-zone

(cid:145)D e u t s c h e R e i s e b a n k ’ s r e a c t i o n

The disbelief about the coming threat was palpable.
Partly because of our presence and the conviction
with which we expressed our views,
this disbelief
changed to consternation.

Deutsche Reisebank had no knowledge of the EMI
survey. We have forwarded them a copy.

3.2. Contact between GWK Bank and Reisebank AG on 5

May 1997

(69) A week after the meeting of 29 April 1997, GWK Bank
sent Reisebank AG two documents by fax dated 5 May
1997 (29).

A c t i o n

(70)

Deutsche Reisebank will contact the Bundesbank and
other banking institutions in order to draw attention
in Germany also to the problems connected with the
conversion of cash into euro. We have agreed to keep
each other informed of developments.(cid:146)

(67)

The meeting minutes also note similarities in company
structure between GWK Bank and Reisebank AG, as
well as overlaps in product packages. Both banks made
a charge for exchanging cash of around 3,5 % of the
transaction value:

The first document was a copy of
the completed
(cid:145)Questionnaire to commercial banks and bureaux de
change(cid:146) which had been submitted to the central
bank (30). This was an EMI questionnaire on the
the ESCB Statute
implementation of Article 52 of
(exchange at par value of euro-zone banknotes between
1999 and 2002). The questionnaire had been sent by
the EMI
to the NCBs requesting information on the
annual volume of banknote exchange business, means
of banknote repatriation, buying and selling volumes of
euro-zone
existing
spreads and commissions, and breakdown of cost
components. The NCBs, according to selection criteria
chosen by each NCB, sent out the EMI questionnaire to
a sample of national banks and bureaux de change.

currencies,

variations,

seasonal

(cid:145)O t h e r i n f o r m a t i o n

Deutsche Reisebank has approximately 60 bureaux de
in railway stations) and approximately
change (e.g.
300 associates.

(71)

The questionnaire includes a section entitled (cid:145)You are
invited to make comments and suggestions on the
exchange of euro area banknotes on separate sheets of
paper,
if you so wish(cid:146). With the aim of maintaining
total income after 1 January 1999, GWK Bank proposed
a single handling fee of 3,8 % for the exchange of all
euro-zone currencies:

There is a clear overlap between product packages,
e.g.:

(cid:145)The total income from a normal euro area currency
exchange transaction is about 3,8 %. To maintain the

Foreign exchange (cid:151) Cash dispensers (cid:151) Western
Union (cid:150) Card sales under development.

The head office employs about 50 people. Deutsche
Reisebank’s
outsourced
automation to a central cashier.

company

parent

has

(28) Reply of Reisebank AG to the SO, pp. 21 et seq. (file, pp. 3715 et

seq.).

(29) Fax of 5 May 1997 from [(cid:133)]*, pp.

to [(cid:133)]*
(Reisebank AG), fax No 97.066 (file, pp. 2942 et seq.). Both of
these documents were found during the inspection at GWK.
(cid:145)Questionnaire to commercial banks and bureaux de change(cid:146),
dated 13 January 1997, AS/NvdN/HB/Orig97/002 (file, pp. 2943
et seq.).

[(cid:133)]* (GWK),

(30)

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21.1.2003

service to the public for the exchange of circulating
is necessary to have a
it
euro zone currencies,
compensating commission.

Income from a normal euro-zone currency exchange
transaction

(NLG 350 (cid:215) 3,8 %) = NLG 13,30

Total costs of a normal euro-zone currency exchange
transaction = NLG 11,60.

There will be no decrease in costs for our institution
after 1 January 1999 and from a euro point of view
it is not feasible to maintain different commissions
for each euro-zone currency. We therefore propose a
handling fee of 3,8 % on a normal
(without any
discount) euro-zone currency exchange transaction. A
figure of
too low,
particularly for euro-zone currencies with a relatively
low turnover (euro-zone currencies other than DEM,

than 3,8 % would be

less

BEF and FRF). Low turnovers result
interest
expenses.

in additional
and relatively higher back-offices

losses

The Dutch National Bank has appended to the
our
questionnaire
constitution.

comments

additional

on

A copy of our comments is obtainable from the
DNB.(cid:146)

(72)

The second document sent by GWK Bank to Reisebank
AG contains the detailed supplementary comments of
GWK Bank in the EMI questionnaire. This document
explains that, to maintain a total exchange income of
2,4 % for all euro-zone currencies, and taking into
account
the loss of exchange margin income after
1 January 1999 as well as discounts for special groups
and clients, an increased commission of 3,8 % would be
required (31):

(cid:145)R e t a i l e x c h a n g e t r a n s a c t i o n s

(cid:133).

The income as a percentage of turnover (2,5 %) is lower than the exchange rate margins in the
list of exchange rates for banknotes and the commission rates would suggest.

Margin according to exchange rate list

Commission

Total income

2,88 % (1)

1,00 %

3,88 %

(1) Average margin weighted according to purchase and sales turnover.

(cid:133).

A c c e p t a b l e c o m m i s s i o n r a t e a f t e r 1 J a n u a r y 1 9 9 9

From a social point of view, it is desirable that the service to the public for the exchange of
circulating EU currencies be maintained at current levels during the period 1 January 1999 to
1 July 2002. As a result, an increased commission will have to be charged to compensate for the
loss of the margin. For GWK, a 3,8 % commission charge on the equivalent of an ordinary
exchange transaction will suffice. Discounts for special groups and clients conducting large
transactions (including coupon cashing, see also p. 2) will ensure a total exchange income of
2,4 % (3,8 % (cid:151) 1,38 %) from the entire EU currency turnover. The 3,8 % results in a charge to
the consumer which is comparable to the charge for a current, average exchange transaction in
EU currencies (exchange rate margin for banknotes plus commission), as further specified below
(Annex 2 contains an extensive list of figures).

(31)

(cid:145)Supplementary comments on the questionnaire of 21 November
1996 regarding the euro, as drawn up by the European Monetary
Institute (EMI)(cid:146) dated 13 January 1997, NvdN//Orig97/007 (file,
pp. 2954 et seq.).

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Official Journal of the European Communities

L 15/13

Margin (1) for
banknotes as a
percentage of exchange
rate turnover

Current exchange rate
for an NLG 350
transaction

Current commission
for an NLG 350
transaction

Total customer charge
for an NLG 350
transaction

EU currency of the
euro zone

2,8 %

NLG 9,79

NLG 3,50

NLG 13,29

All currencies

2,88 %

NLG 10,08

NLG 3,50

NLG 13,58

EU currency exchange transaction with a 3,8 % commission

NLG 13,30

(1) The margin mentioned here is the average banknote margin for the respective currency group (see Annex 2), weighted

by purchase and sales turnover.

A percentage less than 3,8 is too low, particularly for EU currencies with relatively low turnover
(EU currencies other than DEM, BEF and FRF). Low turnovers result in greater loss of interest
and relatively higher back-office expenses (counting, storage, transportation and transaction costs,
etc.). From a (cid:147)euro(cid:148) point of view, it is not feasible to maintain different commissions for the
individual EU currencies.(cid:146)

(73) GWK Bank (32) and Reisebank AG confirmed that GWK
Bank sent the above-mentioned documents. According
to them, the proposal for a 3,8 % charge was merely a
statement made in response to the EMI questionnaire.
The
the
EMI
questionnaire.

disseminated

results of

itself

the

(74)

(75)

for

the

that

notes

neither

Commission

The
EMI
questionnaire nor the EMI results of the questionnaire
addressed bank charges for the exchange of euro-zone
banknotes. The EMI drafted a questionnaire which
included a request
information on the annual
volume of banknote exchange business, means of
banknote repatriation, buying and selling volumes of
euro-zone
existing
spreads and commissions, and a breakdown of cost
components. The purpose was to gather information on
the implementation by commercial banks of Article 52
of the ESCB Statute (i.e. the repatriation free of charge
of banks’ foreign euro-zone banknotes to their country
of origin).

currencies,

variations,

seasonal

the results of

at par value of

The EMI prepared a report dated 23 April 1997 entitled
euro area banknotes:
(cid:145)Exchange
Assessment of
the questionnaire to
commercial banks(cid:146). The report was based on the
answers to the questionnaire received by the NCBs from
banks and bureaux de change and reflected the situation
in 1996. The EMI questionnaire covered 14 Member
States and responses were received from approximately
150 commercial banks and 40 bureaux de change. The

(32) Reply of the Fortis group to the SO, p. 13 (file, p. 4285).

EMI eight-page report contains aggregated data and does
not discuss bank charges for the exchange of euro-zone
currencies. The report was not published but the EMI
Council agreed to release the assessment of the results
to the European Banking Federation and the European
Savings Banks Group (33).

3.3. Meeting on 11 August 1997 between Reisebank AG,

Deutsche Verkehrsbank AG, GWK Bank and
Landeszentralbank Hessen

(76) On 11 August 1997 a meeting took place in Frankfurt
between Reisebank AG, Deutsche Verkehrsbank AG,
Landeszentralbank Hessen and GWK Bank (34). The
purpose of
the meeting was to clarify the situation
regarding the exchange of euro-zone notes and coin
during the transitional period:

on

talks

Reisebank,
(cid:145)Report
Landeszentralbank, Deutsche Verkehrsbank and GWK
held on 11 August 1997 at
the head office of
Reisebank AG in Frankfurt, Germany

between

(34)

(33) E-mail of 5 May 1999 from the European Central Bank to DG
Competition in relation to a request for a copy of the report on
(cid:145)Exchange at par value of euro area banknotes: Assessment of the
results of the questionnaire to commercial banks(cid:146).
Reisebank/Landeszentralbank/Deut-
(cid:145)Gespr(cid:228)chszusammenfassung
sche Verkehrs-Bank/GWK vom 11 August 1997 am Hauptsitz der
Reisebank AG in Frankfurt am Main(cid:146); Present: [(cid:133)]* (Reisebank
AG), [(cid:133)]* (Reisebank AG), [(cid:133)]* (Reisebank AG), [(cid:133)]* (Deutsche
Verkehrsbank AG), [(cid:133)]* (Landeszentralbank); cc: Members of the
Board, [(cid:133)]*; [(cid:133)]*; memo No AS/HB/Orig97/130 (file, pp. 2967
et seq.).

L 15/14

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Official Journal of the European Communities

21.1.2003

Present:

Mr [(cid:133)]*
Mr [(cid:133)]*
Dr [(cid:133)]*
Mr [(cid:133)]*
Mr [(cid:133)]*
Mr [(cid:133)]*
Mr [(cid:133)]*
Mr [(cid:133)]*

Reisebank AG
Reisebank AG
Reisebank AG (lawyer)
Deutsche Verkehrsbank AG
Landeszentralbank in Hessen
GWK
GWK
GWK

O p e n i n g r e m a r k s

Mr [(cid:133)]* welcomed everyone to the meeting. He
pointed out that there were still many uncertainties
with regard to the foreign exchange market for the
period 1 January 1999 to 1 July 2002 and that one
of the reasons for this meeting was to clarify the
situation. After his brief introduction, he handed the
floor to Mr [(cid:133)]*, who was present in his capacity as
Reisebank AG’s expert on the euro.(cid:146)

(77)

exchange of

The legal representative of Reisebank AG made it clear
that commercial banks would be allowed to charge for
currencies during the
the
transitional period but that the exchange margin (i.e.
buying and selling rates) would cease to exist after
1 January 1999:

euro-zone

(cid:145)M r [ (cid:133) ] *

In Mr [(cid:133)]’s* opinion, most members of the EMI held
the following two points of view:

1. Commercial banks would be allowed to charge
in

for handling exchange operations

clients
euro-zone currencies.

2. Changing circulating euro-zone currencies into
euros would have to be free of charge to the
customer for the first half of 2002.

Point 1

(79)

exchange

transactions. The

The commercial banks would be able to charge for
handling
form this
payment would take would not be laid down by the
EMI. It could take the form of a fixed commission, a
percentage commission or even the current exchange
margin, which could vary from currency to currency
(combinations were also possible). Mr [(cid:133)]* pointed
out to Mr [(cid:133)]* that after 1 January 1999 changing
euro-zone currencies would in fact be like changing a
single currency, but
forms, and that
consequently price differentiation between euro-zone
currencies was not a straightforward matter. As Mr
[(cid:133)]* saw it, price differentiation was only possible in
the case of different cost prices. There were no

in different

demonstrable,
in cost price
significant differences
between the different euro-zone currencies and it was
therefore unlikely that the present exchange margin
structure would be preserved.

(cid:133).

Point 2

If euro-zone currencies must be converted into euros
free of charge between 1 January 2002 to 1 July
2002, this would mean that as of 1 January 2002
GWK would no longer earn any profit from changing
foreign euro-zone
currencies. Hitherto we had
assumed that only circulating guilders would be
converted into euros free of charge.(cid:146)

(78) At the meeting, the Landeszentralbank Hessen explained
that, according to Article 52 of the ESCB Statute, the
Bundesbank was obliged to purchase foreign euro-zone
notes and coin from the banks and the public free of
charge. The Bundesbank had carried out a survey of
various banks to establish the number of transactions to
be expected (recital 54):

(cid:145)L a n d e s z e n t r a l b a n k

The Bundesbank wished to interpret Article 52 as
follows:

The central bank was under an obligation to buy
foreign euro-zone currencies from banks and the
public free of charge (at par was thus taken to mean
free of charge, as it was by the Dutch central bank).

The bank would make alterations to (invest in) the
present 180 (this number would fall) branches
(Landeszentralbanks) so that it would actually be able
to provide the service to the public. To establish how
many transactions to expect,
the Bundesbank had
carried out a survey among various banks. Mr [(cid:133)]*
stated that the Bundesbank was not happy with the
obligation under Article 52.(cid:146)

the

that

information

Bundesbank

and
This
Landeszentralbanks might offer a free service to the
public on a widespread basis caused alarm at GWK
Bank. It urged Reisebank AG to reach a consensus with
other German banks on the need to charge in order to
avoid loss of profits from the exchange of euro-zone
currencies during the transitional period:

(cid:145)F o l l o w - u p a c t i o n

After Mr [(cid:133)]* and Mr [(cid:133)]* had left, we reminded
Deutsche Verkehrsbank and Reisebank of their duty
to gather accurate information about
the German
exchange market as quickly as possible in order to

21.1.2003

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Official Journal of the European Communities

L 15/15

alert the Bundesbank, and other banks too, to the
from
possible loss of profits which would result
providing exchange services free of charge. If, before
the Bundesbank took its final decision, a consensus
could be reached between the commercial banks on
the
the need to charge for
Bundesbank could be convinced of the impossibility
of the task before it, it might be possible to avert the
threat
to Reisebank. Mr [(cid:133)]* reacted to this by
saying that this was a problem in Germany because
there was no consensus at all between the banks nor
could one be expected. It seemed that Mr [(cid:133)]* would
not make any attempt to reach a consensus anyway.(cid:146)

the service and if

(80) GWK Bank was alarmed that, if the Bundesbank offered
a free service on a widespread basis, then the German
commercial banks might follow suit with low or no
for the
charges. There was a risk that
exchange of euro-zone banknotes would shift from the
Netherlands to Germany. There would be pressure on
the Dutch banks to decrease charges accordingly:

the market

(cid:145)C o n c l u s i o n s

The developments in Germany were very alarming.
The Bundesbank was going to intervene on the
exchange market by providing services free of charge,
which could easily have a knock-on effect on the
level of charges levied by commercial banks, while
the institution most closely concerned (Reisebank AG)
could be expected to do little about it. The threat was
also very considerable
the Dutch exchange
for
market.

1.

If the public was charged a reasonable amount in
the
the Netherlands,
exchange market would
from the
Netherlands to Germany (or Austria etc.).

there was a risk that

shift

2. Low (or no) charges by commercial banks abroad
would pave the way for a fall in charges in the
Netherlands
(with considerable help from the
media).

3. The EMI could easily decide to opt

the
Bundesbank’s explanation, which would mean
that the DNB would also be forced to introduce
free exchange services and the consensus reached
on the Dutch exchange market would again be
up in the air.

for

on the Dutch market, before pressure from the EMI
and DNB upsets the consensus reached.(cid:146)

3.4. Telephone conversation between GWK Bank and

Deutsche Verkehrsbank AG on 29 September 1997

(81) A telephone conversation took place between Mr [(cid:133)]*
(GWK Bank) and Mr [(cid:133)]* (Deutsche Verkehrsbank AG)
on 29 September 1997. Apparently, Mr [(cid:133)]* had not
received the report of the meeting on 11 August 1997
and wanted to know about developments concerning
Article 52 of the ESCB Statute (35). A record of the
telephone conversation reads as follows:

(cid:145)Record of
Verkehrsbank AG, 29 September 1997

(telephone) conversation with Deutsche

Deutsche Verkehrsbank AG

GWK

Mr [(cid:133)]*

Mr [(cid:133)]*

R e a s o n

Mr
[(cid:133)]* of Deutsche Verkehrsbank AG had
somehow obtained the telephone number of Mr
[(cid:133)]*.

Because he was on holiday, Mr [(cid:133)]* could not be
present at
the discussion of 11 August 1997 at
Reisebank AG in Frankfurt, attended by:

Mr [(cid:133)]*

Mr [(cid:133)]*

Dr [(cid:133)]*

Mr [(cid:133)]*

Mr [(cid:133)]*

Mr [(cid:133)]*

Mr [(cid:133)]*

Landeszentralbank in Hessen

Reisebank AG

Reisebank AG (lawyer)

Deutsche VerkehrsBank AG

GWK

GWK

GWK

Mr [(cid:133)]* had evidently not received a report on this
meeting.

He was looking for someone in the Netherlands who
might know about developments regarding Article 52
and was looking for ways of doing something about
this article in the international sphere.(cid:146)

The above development
indicates that GWK must
introduce as quickly as possible a high exchange rate
commission in order to establish a new price balance

(35)

(cid:145)Zusammenfassung des Telefongespr(cid:228)chs mit der Deutschen
Verkehrsbank AG vom 29 September 1997(cid:146), between [(cid:133)]*
(Deutsche VerkehrsBank AG) and [(cid:133)]* (GWK) cc: [(cid:133)]* (all GWK),
memo No AS/HB/Orig97/149 of 29 September 1997 (file, pp.
2971 et seq.)

L 15/16

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Official Journal of the European Communities

21.1.2003

(82)

(83)

(84)

1997

The Commission notes that Deutsche Verkehrsbank AG
at this point took the view that the exchange margins
(i.e. buying and selling rates) should be replaced by a
commission. This was contrary to the letter sent on 25
Deutsche
July
Commerzbank
by
and
Verkehrsbank AG, Westdeutsche
Reisebank AG to the Landeszentralbank Hessen arguing
in favour of buying and selling rates being maintained
after 1 January 1999 (recital 55). The record of the
telephone conversation continues as follows:

Landesbank

AG,

Landesbank

Westdeutsche
on 15
October (36). The purpose of the meeting was to discuss
the state of play and possible measures.

a meeting

to

(85)

The meeting took place as planned on 15 October
1997 at Deutsche Verkehrsbank AG (Frankfurt) (37).

(cid:145)A s s e s s m e n t

(86)

The GWK Bank minutes of the meeting are entitled
(cid:145)Pricing of euro currencies between 1 January 1999 and
1 July 2002(cid:146). Several topics were addressed including:

exchange margins

view that
in Germany

Contrary to the letter Mr [(cid:133)]* had sent to Mr [(cid:133)]*
(Landeszentralbank) about Article 52, Mr [(cid:133)]* now
should
took
the
a
disappear
commission. His greatest
that no
consultations had taken place on this development
between
only
Commerzbank AG and Westdeutsche Landesbank
were sharing their thoughts on this problem.

the German

concern was

replaced by

and be

banks

that

and

(cid:151) whether banks could charge for the exchange of

euro-zone banknotes during the transitional period,

(cid:151) whether exchange margins (i.e. buying and selling
rates) could be maintained after 1 January 1999,

Four other German banks had pulled out. In Mr []’s*
opinion, this had been imposed at Board level.(cid:146)

(cid:151) whether different commissions could be used for

exchanging different euro-zone banknotes,

The record of
Deutsche Verkehrsbank AG made
invitation:

the telephone conversation notes that
following

the

(cid:145)S p e c i f i c i n v i t a t i o n

[(cid:133)]* was attempting to get Commerzbank,
Mr
Westdeutsche Landesbank, Verkehrsbank, Reisebank,
and Landeszentralbank (Mr [(cid:133)]*) round the table
during the week of 6 October 1997 to solve the
problem. He
specifically wanted GWK to be
represented at the meeting. I assured him that I was
in theory quite willing to attend this meeting with Mr
[(cid:133)]*.(cid:146)

3.5. Meeting at Deutsche Verkehrsbank AG on 15 October

1997

By telefax dated 2 October 1997 entitled (cid:145)Consequences
of EMU for the currency business(cid:146), Mr [(cid:133)]* (Deutsche
Verkehrsbank AG) invited representatives of SEB Bank
AG (former BfG Bank AG), Commerzbank AG,
Bank AG, GWK Bank, Hamburgische
Dresdner
Th(cid:252)ringen,
Landesbank,
and
AG
Landeszentralbank

Landesbank
Hessen,

Hessen
Reisebank

(cid:151) the calculation method for conversion between

different euro-zone currencies,

(cid:151) buying and selling rates in the interbank (wholesale)

banknote trade.

(87)

The Commission notes that the meeting rapidly clarified
that banks would be allowed to charge customers for
the exchange of euro-zone banknotes and that charges
must be shown in an explicit and transparent manner.
The meeting minutes state as follows:

(36) Fax entitled (cid:145)Auswirkungen der EWWU auf das Sortengesch(cid:228)ft(cid:146) of
2 October 1997 from Mr [(cid:133)]* (Deutsche Verkehrsbank AG) to
[(cid:133)]* (BfG Bank AG), [(cid:133)]* (Commerzbank AG), [(cid:133)]* (Dresdner
Bank AG), [(cid:133)]* (GWK), [(cid:133)]* (Hamburgische Landesbank), [(cid:133)]*
(Landesbank Hessen Th(cid:252)ringen), [(cid:133)]* (Landeszentralbank Hessen),
[(cid:133)]* (Reisebank AG) and [(cid:133)]* (Westdeutsche Landesbank) (file, p.
2973). The then Bayerische Vereinsbank AG received a separate
written invitation on 13 October 1997; see reply to the SO from
Bayerische Hypo- und Vereinsbank AG / Vereins- und Westbank
AG, p. 9 (file, p. 3896).
(cid:145)Zusammenfassung
Deutschen
Gespr(cid:228)che
VerkehrsBank am 15 Oktober betreffend: Preisgestaltung bei
Teilnehmerw(cid:228)hrungen vom 1 Januar bis 1 Juli 2002(cid:146), Present:
[(cid:133)]* (Bayerische Landesbank), [(cid:133)]* (Vereins- und Westbank AG),
[(cid:133)]* (DFG Bank AG, this being a typing error as it should read
(Deutsche
BfG Bank AG),
[(cid:133)]*
VerkehrsBank AG),
(Dresdner Bank AG),
[(cid:133)]*
(Landesbank Hessen Th(cid:252)ringen), [(cid:133)]* (Westdeutsche Landesbank),
[(cid:133)]*
(all GWK),
AS/NvdN/orig/160 (file, pp. 2974 et seq.).

[(cid:133)]* (Deutsche VerkehrsBank AG),
[(cid:133)]* (Hamburgische Landesbank),

(Commerzbank AG),

(GWK);

(GWK)

[(cid:133)]*

[(cid:133)]*

[(cid:133)]*

[(cid:133)]*

and

(37)

der

der

bei

cc:

21.1.2003

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Official Journal of the European Communities

L 15/17

(cid:145)R e c o r d
V e r k e h r s b a n k , 1 5 O c t o b e r 1 9 9 7

t a l k s

w i t h

o f

D e u t s c h e

protocol
would be made:

to the Bundesbank. The following points

Re: Pricing of euro currencies between 1 January
1999 and 1 July 2002

O p e n i n g r e m a r k s

Mr [(cid:133)]* welcomed everyone to the meeting. The
banks present at this meeting represented between
70 % and 80 % of
the German retail exchange
the
market. Mr [(cid:133)]* summarised the position of
Bundesbank and the EMI concerning the pricing of
euro-zone currencies in the period from 1 January
1999 to (at the latest) 1 July 2002.

Full agreement had not been reached within the EMI
on the question of the retail exchange of circulating
euro-zone currencies. The following point was clear,
however:

Banks would be allowed to pass on the costs they incurred
in changing euro-zone currencies to the public. Passing on
these charges must be done in a transparent manner.(cid:146)

(89)

(88)

the exchange margins

The Commission notes that the meeting also quickly
agreed that
(i.e. buying and
selling rates) would disappear after 1 January 1999. The
participants decided to inform the Bundesbank that they
would carry out the exchange of euro-zone banknotes
the fixed exchange rates and charge an explicit
at
commission. The minutes record the following:

(cid:145)O r a l c o m m u n i c a t i o n s

Mr [(cid:133)]* read out correspondence between himself
and the Bundesbank from which it was possible to
in the interests of transparency, current
infer that,
exchange margins would have to be abolished. The
oral explanation of
this was very clear. Nowhere,
however, was keeping the margin to offset costs
In the view of those
explicitly rejected in writing.
present who had already looked into the matter more
closely, the loss of the exchange rate margin could
not be passed on to the retail trade.

C o n v i c t i o n

convinced that

Following a remarkably short discussion, all of those
present were
rate
currencies was going to
margin on euro-zone
disappear and that both the value of
the money
changed and the commission charged would have to
be visible. This conclusion would be set out in a

exchange

the

exchange transactions involving the euro-zone currencies
will be carried out at fixed prices, to which a commission
will be added.

Although Mr [(cid:133)]* shared the meeting’s opinion,
there was little more he could do. In the absence of
written instructions from the Bundesbank, Mr [(cid:133)]*
the
could not do anything in-house
computer systems to the new charging structure. Not
everyone had this problem (e.g.
the Bayerische
Landesbank’s preparations for replacing the margin
with a
already well
advanced) but there was general dissatisfaction with
the lack of clarity in the Bundesbank’s written
statement.(cid:146)

commission charge were

to adapt

The Commission notes that
the meeting participants
also discussed whether the existing system of different
exchange margins per currency (i.e. different buying and
selling rates per currency) should be transposed into a
system whereby the existing exchange margins would
be expressed as explicit percentage commissions. As
complete consensus was not reached concerning the use
of a single percentage commission charge for all
currencies or different percentage commissions per
currency,
to the
the participants decided to report
Bundesbank that each bank would decide this for itself.
However, the banks set themselves the common target
exchange margins by percentage
of
commission(s) such as to recover 90 % of the exchange
margin income. This would amount
to an overall
commission of about 3 %. The minutes mention the
following:

replacing the

(cid:145)D i f f e r e n t i a t i o n
i n
e u r o - z o n e c u r r e n c i e s

p r i c i n g

b e t w e e n

various

The present pricing policy on the German exchange
market was more or less the same for all banks. This
meant, for example, that the Austrian schilling was
bought and sold cheaply while the Italian lira was
very expensive. Commerzbank’s Mr [(cid:133)]* felt that this
euro-zone
price difference between the
currencies must be allowed to remain. He argued
that, as current margins could be seen as a result of
market mechanisms, this price fixing could be copied
over into a differentiated charging structure. On this
point Mr [(cid:133)]* (Bayerische Landesbank) said that the
differentiation between currencies could only be
justified because
there were differing levels of
exchange risk involved. This argument would no
longer work after 1 January 1999 when all euro-zone
currencies had to be seen as denominations of the

L 15/18

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Official Journal of the European Communities

21.1.2003

euro. Mr [(cid:133)]* added here that it was not so much
that the market mechanism had influenced current
margin policy, but rather that this policy was the
result of a tacit agreement on exchange rates. The
EMI survey quoted by Mr [(cid:133)]*, which stated that the
German banking system’s costs would fall by only
10 % with the introduction into circulation of the
euro, showed that the price fixing on the exchange
market was not caused by prices. This also indicated
an oligopoly rather than a (cid:147)polypoly(cid:148).

for

the German mark could no longer be worked out
once the rules were applied). Several of those present
were aware of these calculating rules, but had not
considered the consequences
retail exchange
operations. Mr [(cid:133)]* pointed out that it might be a
good idea to do the same as the Belgian banks and
inform the EMI that for the retail trade such a vast
adaptation of computer systems for a period of only
since the
should be openly rejected,
three years
results of
for normal
various
the
exchange transactions showed no difference.

calculations

the replacement of
agreement

tacit
Accordingly,
differentiated-margin
tacit
differentiated-commission agreement need not lead to
major upheavals or loss of profits. Mr [(cid:133)]* was in
full agreement with this.

the current

by

a

In the absence of a complete consensus at
the
meeting on whether a single commission fee or a
commission fee
should be
introduced, the following would be reported to the
Bundesbank:

each currency

for

Hasty note-taking on the part of
seemed to imply that
taken on board.(cid:146)

those present
this problem too had been

(91) With regard to the wholesale

interbank trade

in
banknotes, the minutes note that the participants agreed
to maintain fixed buying and selling rates to avoid
changes to computer systems. Professional traders were
well aware of the charges being paid via the different
buying and selling rates:

each of the banks present will decide for itself the form to
be taken by its future charging structure.

(cid:145)I n t e r b a n k t r a d e

The banks present at
the meeting expressed the
income from
replacing their present
intention of
margins with income from commission fees up to a
level of approximately 90 %. According to the banks,
this would amount
to a global commission of
approximately 3 %(cid:146).

(90)

the quotation of

The minutes note that the banks discussed the question
rate of
of
exchange when converting between different euro-zone
currencies (38), particularly within the
context of
modifying existing computer systems:

the direct or

indirect

(cid:145)C o m p u l s o r y c a l c u l a t i n g r u l e s

The EMI had stated that for establishing the value in
German marks of an amount in guilders only one
calculating method would produce
correct
the present calculating
answer. This meant
method used by computer systems would have to be
completely reworked (the rate for the guilder against

that

the

(38) Article 4(4) of Regulation (EC) No 1103/97 states:

(cid:145)Monetary
amounts to be converted from one national currency unit into
another shall first be converted into a monetary amount expressed
in the euro unit, which amount may be rounded to not less than
three decimals and shall then be converted into the other national
currency unit. No alternative method of calculation may be used
unless it produces the same results.(cid:146)

the banks at

interbank trade

exchange margins

For
for
the
currency in circulation should disappear. For trade in
circulating currency, however,
the
meeting wanted to retain the current practice of using
exchange margins. In this way the systems would not
need to be adapted (for a three-year period) and there
would be no problem if a bank outside the euro-zone
needed circulating euro-zone currencies. Mr
[(cid:133)]*
(Landeszentralbank), who was following the meeting
by phone, stated that according to his assessment it
was unlikely that there would be binding legislation
interbank trade in circulating currencies. The
for
following
the
Bundesbank:

comment would

be made

to

trade

interbank

circulating

For
currencies,
in
euro-zone currencies should be bought and sold at
fixed buying and selling prices. The difference
between the buying and the selling price would be
the commission.

Mr [(cid:133)]* observed that the wording was not really
very well chosen since this argument had been
rejected in the case of the retail trade and there was
therefore no reason why it should be accepted in the
case of the banks.

A better
reference
professional

idea would therefore be to include a
transparency within
to the
trading did not need to be further

that

fact

21.1.2003

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Official Journal of the European Communities

L 15/19

increased, since the parties involved were well aware
the chosen
of
wording was kept.(cid:146)

the margins being paid. However,

3. none of the banks was too obviously dependent
on the exchange product, so developments after 1
January 1999 would not be life threatening;

(92)

The meeting minutes indicate that Deutsche Bank AG
was considering a free service to customers for the
exchange of euro-zone banknotes. This was seen as
much more of
the
participants for a commission fee of about 3 % (to
achieve 90 % exchange margin income recovery) than
any free service offered by the Landeszentralbanks:

to the agreed position of

threat

(cid:145)D e u t s c h e B a n k s p o i l s t h e p a r t y

of

services

In the course of the meeting it was suggested that
Deutsche Bank could spoil
things by allowing
exchange operations to go ahead free of charge. The
commercial banks present at the meeting considered
than the
this to be a much more serious threat
provision of
the
by
charge
free
Landeszentralbanks (which were not equipped for it).
This could undermine the position agreed at
the
meeting on a commission fee of approximately 3 %
(90 % of present income). Mr [(cid:133)]* pointed out that
this would in any case create a new situation, even
though, in his view, it would be a long time before
exchange activities would be carried out for nothing.
Others took a firmer line and said that if, for political
reasons, exchange operations were going to have to
be carried out at zero tariff, they would withdraw
exchange services for euro-zone currencies.(cid:146)

(93)

The meeting minutes record that the participants were
not in favour of introducing the new charging system
before 1 January 1999:

4.

the short time still remaining between then and 1
January 1999 was already felt
for
adapting
to the new charging
structure.(cid:146)

to be tight

systems

all

(94) Mr [(cid:133)]* (Commerzbank AG) wrote the official meeting
minutes entitled (cid:145)Meeting of banknote dealers(cid:146) (39).
These minutes were faxed on 17 October 1997 by
the meeting
Deutsche
participants (40). The theme of the meeting is given as
structure/price-setting for buying and selling banknotes
during the transitional period. Both the private customer
(retail) and interbank (wholesale) buying and selling of
banknotes were discussed.

Verkehrsbank

AG

to

(95) With regard to the retail business, the minutes note that
there was consensus on the use of fixed exchange rates
for in-currencies (i.e. no buying and selling rates) with
charges/fees
percentage
calculated
commission. The calculation method for converting
between in-currencies would be decided by each bank
individually:

be

to

as

a

(cid:145)Meeting of banknote dealers in Frankfurt on 15
October 1997

Held at Deutsche Verkehrsbank

Participants: see annex

M i n u t e s

(cid:145)E a r l y i n t r o d u c t i o n

Concerning rating/pricing in forex business in phase
3a (1 January 1999 to 1 January 2002) of EMU,
consensus was reached on the following points:

The banks were not aiming for the introduction of
the new charging structure before 1 January 1999:

1 . P r i v a t e c u s t o m e r b u s i n e s s

1. as much profit as possible would have to be
generated in 1998 (the idea of maintaining
exchange margins until 1 January 1999, but
charging a higher commission, was also felt to be
inadvisable). After 1 January 1999 profits could
fall sharply under outside pressure (Bundesbank,
EMI, Deutsche Bank,
the media), so the banks
should grab what they could;

2. a possible reduction in turnover as a result of
introducing the new charging structure in 1998
was therefore viewed as undesirable;

(cid:151) For private customers

exchange
for
charges/fees will be calculated separately.

rate

there will be a fixed
the
in-currencies

and

(39)

(cid:145)Sortenh(cid:228)ndlertreffen in Frankfurt, am 15. Oktober 1997 im
Hause der Deutschen VerkehrsBank(cid:146) of 15 October 1997 by [(cid:133)]*
(Commerzbank AG) (file, p. 2985).

Landesbank,

(40) Fax (cid:145)(cid:220)bersendung des Ergebnisprotokolls zum Sortenh(cid:228)ndlertreffen
am 15. Okt. 1997(cid:146) from [(cid:133)]* (Deutsche VerkehrsBank AG) to
Bayerische
AG([(cid:133)]*),
([(cid:133)]*),
Commerzbank AG ([(cid:133)]*), Dresdner Bank AG ([(cid:133)]*), GWK Bank
([(cid:133)]*), Hamburgische Landesbank ([(cid:133)]*), Landesbank Hessen
Th(cid:252)ringen ([(cid:133)]*), LZB Hessen ([(cid:133)]*), ReiseBank AG ([(cid:133)]*),
Vereins- und Westbank AG ([(cid:133)]*) and Westdeutsche Landesbank
([(cid:133)]*) (file, pp. 2983 et seq.).

Bank

BfG

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(cid:151) Charges/fees will be calculated as a percentage

Frankfurt, 15 October 1997

amount of the exchange value.

(cid:151) The decision whether the calculation will be done
using the direct or indirect rate of exchange is to
be taken individually by the banks(cid:146).

[(cid:133)]*

Annex(cid:146)

(96)

The Commission notes that the official and GWK Bank
minutes of the meeting correspond to the extent that
the customer charges would be in a percentage form.
The official minutes do not mention a charge of about
3 %. However, during the hearing on 1 and 2 February
its
Landesbank
2001,
representative at the meeting of 15 October 1997 (Mr
(cid:145)some representatives of individual
[(cid:133)]*) recalled that:
banks mentioned
these were
some
somewhere between 2 % and 4 %(cid:146). However, Mr [(cid:133)]*
(cid:145)could not recall the 3 %(cid:146).

Bayerische

figures,

stated

that

and

(97) With regard to the wholesale (interbank) banknote
the banks agreed to

the minutes note that
business,
maintain buying and selling rates:

(cid:145)2 . I n t e r b a n k t r a d e

In interbank trade all in-currencies will be traded with
buying and selling prices. These prices are the result
of the conversion of the commission. The quotation
of the indirect rate of exchange will become general
usage as of 1.2.2002. Until that date both quotation
methods are to be tolerated.

Reasons for the buying and selling quotation

In the interbank trade, where the usage has always
been set by the participating banks,
trading has
always been done via buying and selling rates. This
should not be changed as

(cid:151) we do not want to make any distinction in the
way of quotation between euro-zone currencies
and so-called out-currencies,

(cid:151) we

do

not want

between
to
contracting parties inside and outside the euro
zone,

distinguish

and last but not least as

(cid:151) a change in the present usage would only apply

for a limited time period.

3. Next meeting,
Frankfurt.

if needed,

at Commerzbank,

F. LEGAL ASSESSMENT

1. Article 81(1) of the EC Treaty

(98) Article 81(1) of the EC Treaty prohibits as incompatible
with the common market all agreements between
undertakings, decisions by associations of undertakings
or concerted practices which may affect trade between
Member States and which have as their object or effect
the prevention, restriction or distortion of competition
within the common market, and in particular those
which directly or indirectly fix purchase or selling prices
limit or control
or any other
production, markets,
or
development
investment, or share markets or sources of supply.

trading conditions,

technical

2. Agreements

their

individual

(99) An agreement can be said to exist when the parties
adhere to a common plan which limits or is likely to
limit
by
determining the
action or
abstention from action in the market. It does not have
to be made in writing; no formalities are necessary, and
no contractual sanctions or enforcement measures are
required. The fact of agreement may be express or
implicit in the behaviour of the parties.

their mutual

commercial

lines of

conduct

(100) According to the established case-law of the Court of
Justice of the European Communities and of the Court
of First Instance, there can be said to be an agreement
within the meaning of Article 81(1) of the EC Treaty
when the parties have expressed their joint intention to
conduct themselves on the market in a specific way (41).

(101) The concept of an agreement within the meaning of
Article 81(1) of the EC Treaty, as interpreted by the case
law, centres around the existence of concurrence of
wills between at least two parties, the form in which it

(41) Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661,
paragraph 112; Joined Cases 209/78 to 215/78 and 218/78 Van
Landewyck and Others v Commission [1980] ECR 3125, paragraph
86; Case T-7/89 Hercules Chemicals v Commission [1991] ECR
II-1711, paragraph 256; Case T-1/89 Rh(cid:244)ne-Poulenc v Commission
[1991] ECR II-867, at paragraph 120.

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as

the

faithful

so long

expression of

is manifested being unimportant
it
the parties’
constitutes
intention (42). An agreement for the purposes of Article
81(1) of the EC Treaty may also fall well short of the
certainty required for the enforcement of a commercial
contract. Its exact terms may never be expressed: the
fact of agreement may have to be inferred from all the
circumstances.

3. The nature of the infringement

3.1. The agreement

(102) The banks participating in the meeting of 15 October
1997 at Deutsche Verkehrsbank AG in Frankfurt agreed
to implement a global commission of about 3 % for the
buying and selling of euro-zone banknotes during the
three-year transitional period beginning on 1 January
1999. The purpose was to recover about 90 % of the
the
exchange margin income after
spread on 1 January 1999 (43).

the abolition of

(103) At the meeting of 15 October 1997, the participants
discussed whether
the existing system of different
exchange margins per currency (i.e. different buying and
selling rates per currency) should be transposed into a
system whereby the existing exchange margins would
be expressed as explicit percentage commissions. As
complete consensus was not reached concerning the use
of a single percentage commission charge for all
currencies or differentiated percentage commissions per
currency,
to the
the participants decided to report
Bundesbank that (recital 89):

(cid:145)Each of the banks present will decide for itself the
form to be taken by its future charging structure.(cid:146)

(104) However,

that

there was agreement

the percentage
commission(s) would be set with the purpose of
recovering about 90 % of the exchange margin income,
meaning an overall or average commission of about 3 %
for
the buying and selling of different euro-zone
banknotes (recital 89):

the meeting expressed the
(cid:145)The banks present at
intention of
income from
replacing their present
margins with income from commission fees up to a
level of approximately 90 %. According to the banks,
to a global commission of
this would amount
approximately 3 %.(cid:146)

(42) Case T-41/96 Bayer AG v Commission [1991] ECR II-3383,

paragraphs 68-69.

(105) The agreement was again referred to at the meeting of
15 October 1997. The banks were concerned that their
agreement would be put in jeopardy if, as seemed likely,
Deutsche Bank AG introduced a free service (recital 92):

(cid:145)In the course of the meeting it was suggested that
the Deutsche Bank could spoil
things by allowing
exchange operations to go ahead free of charge. The
commercial banks present at the meeting considered
than the
this to be a much more serious threat
provision of
the
by
charge
free
Landeszentralbanks (which were not equipped for it).
This could undermine the position agreed at
the
meeting on a commission fee of approximately 3 %
(90 % of present income).(cid:146)

services

of

(106) Mr [(cid:133)]* (Commerzbank AG) wrote the official meeting
minutes entitled (cid:145)Meeting of banknote dealers(cid:146). The
Commission notes that the official minutes and GWK
Bank minutes of the meeting correspond to the extent
that there was consensus on the use of fixed exchange
rates for in-currencies (i.e. no buying and selling rates)
after 1 January 1999, with charges/fees to be calculated
as a percentage commission (recitals 94 and 95):

(cid:145)1 . P r i v a t e c u s t o m e r b u s i n e s s

(cid:151) For private customers

exchange
for
charges/fees will be calculated separately.

rate

there will be a fixed
the
in-currencies

and

(cid:151) Charges/fees will be calculated as a percentage

amount of the exchange value.(cid:146)

some bank representatives at

(107) The official minutes are less descriptive than the GWK
Bank minutes and do not mention specific figures.
However Bayerische Landesbank and Commerzbank
acknowledge that
the
ideas about possible future
meeting expressed their
charges lying between 2 % and 4 % (44). At the hearing
on 1 and 2 February 2001, Bayerische Landesbank
the meeting of 15
stated that
(cid:145)some
that
October
recalled
(Mr
representatives of
individual banks mentioned some
figures, and these were somewhere between 2 and 4 %(cid:146).
However, Mr [(cid:133)]* (cid:145)could not recall the 3 %.(cid:146)

its representative at

[(cid:133)]*)

1997

(43) Prior to the introduction of the euro, the banks had no explicit
charges for the exchange of foreign banknotes. Instead, customers
were paying hidden bank charges via the different buying and
foreign currency (spreads and/or exchange
selling rates per
margins). The exchange margins
ranged from about 1,5 %
commission to 7 % depending on the currency being exchanged.

(44) Replies to the SO: Bayerische Landesbank, p. 30 (file, p. 3454);
Commerzbank AG, p. 35 (file, p. 3624); Bayerische Hypo- und
Vereinsbank AG / Vereins- und Westbank AG, p. 16 (file,
p. 3903); Westdeutsche Landesbank, p. 47 (file, p. 4016);
Hamburgische Landesbank mentions possible percentage charges
ranging from 2 % to 6 %, p. 6 (file, p. 3768).

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follows.

(108) The background to the agreement of 15 October 1997
In early 1997, GWK Bank became
is as
concerned that the German Bundesbank might use its
network of about 200 offices to provide a free service
to the public for the buying and selling of banknotes
during the transitional period (1 January 1999 to 31
December 2001). GWK Bank became concerned that if
a free service were to be offered on a widespread basis
by the Bundesbank and the Landeszentralbanks, then
the German commercial banks might follow with low
or no charges (recital 79).

its

(109) This prospect was alarming to GWK Bank since a large
turnover came from the exchange of
part of
in-currencies and the DEM in particular. There was a
for the exchange of euro-zone
risk that
banknotes would
to
from the Netherlands
Germany and/or there would be pressure on the Dutch
banks to decrease charges accordingly (recital 80).

the market

shift

1

not

was

This

1999.

January

percentage charge, it was a logical step that participants
in the meeting of 15 October 1997 agreed to express
the exchange margin as a visible percentage commission
after
a
competition-restricting agreement but arose out of the
legal necessity to display charges in an explicit and
transparent manner with the disappearance of
the
spread (45) (46). Landesbank Hessen Th(cid:252)ringen admits
having entered into an agreement on the charging
structure for the transitional period at the meeting of 15
there were hardly any
October 1997. As however
alternatives to calculating the charge other than in a
percentage form, this agreement on a common charging
structure only marginally influenced the freedom of the
banks to determine their own pricing policy (47).

(110)

similar
In April 1997, GWK Bank contacted a
institution in Germany, Reisebank AG, and urged them
to begin discussions with other German banks, in the
first
the German
Bundesbank and the Landeszentralbanks would not
provide a free service to consumers via their network of
offices (recital 63 to 67).

to try to ensure

instance

that

(111) These discussions and contacts led to a meeting which
took place at Deutsche Verkehrsbank AG (Frankfurt) on
15 October 1997 where several German banks agreed,
inter alia, to implement a charge of about 3 % for the
buying and selling of euro-zone banknotes during the
three-year
transitional period with the purpose of
recovering about 90 % of the exchange margin income
(recitals 85 to 93).

3.2. The parties’ arguments and the Commission’s replies

(cid:151) C o m m i s s i o n ’ s r e p l y

(114) The transparent and explicit display of charges does not
require any standardisation of prices, charging structures
or other service concepts in the banking sector. Each
bank must independently decide its commercial policy
with regard to charging. If a customer bank charge is to
be implemented at all,
then the charging policy (cid:151)
including charging structure (cid:151) must be determined
independently by each bank.

(115)

transposed the

It was not a natural or logical step that each bank
would individually have
exchange
margin into a percentage commission. Indeed, it seems
that Deutsche Bank was initially considering a free
service. In any case, the issue is not what may or may
not be
charging
economically
structure, but whether there was an agreement between
banks on the charging structure.

the most

rational

(cid:151) A r g u m e n t s o f t h e p a r t i e s i n r e l a t i o n t o

t h e i n t e r p r e t a t i o n o f t h e f a c t s

(112) The parties challenge the Commission’s interpretation of
the facts and deny that
the discussions between the
banks concerning charging structures and amounts for
in-currencies during the transitional
the exchange of
period amount
falling within the
scope of Article 81(1) of the EC Treaty.

to an (cid:145)agreement(cid:146)

(113) Several banks argue that, since the difference between
the buying and selling rates can be calculated as a

(116)

In the present case, there was an explicit agreement
between banks on an overall commission of about 3 %
with the aim of achieving about 90 % income recovery
after the abolition of the spread on 1 January 1999.

(45) Replies to the SO: BfG Bank AG, pp. 17 et seq. (file, pp. 3538 et
seq.); Commerzbank AG, p. 31 (file, p. 3620); Bayerische Hypo-
und Vereinsbank AG / Vereins- und Westbank AG, p. 14 (file, p.
3901); Westdeutsche Landesbank, p. 48 (file, p. 4017).

(46) Reply of Westdeutsche Landesbank to the SO, pp. 20 et seq. (file,

pp. 3989 et seq.).

(47) Reply of Landesbank Hessen Th(cid:252)ringen to the SO, p. 4 (file, p.
3817); Bayerische Hypo- und Vereinsbank AG / Vereins- und
Westbank AG, p. 14 (file, p. 3901) also claims that there was no
other viable alternative to a percentage charge, as a fixed-fee
changing of small amounts would have discriminated against the
small consumer.

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(cid:151) A r g u m e n t s o f t h e p a r t i e s t o t h e e f f e c t

t h a t n o a g r e e m e n t w a s r e a c h e d

figures, and these were somewhere between 2 and 4 %(cid:146).
However, Mr [(cid:133)]* (cid:145)could not recall the 3 %(cid:146). This shows
that the GWK Bank minutes, written within a day of the
meeting, are a credible and complete record of the 15
October 1997 meeting.

(117) Several banks argue that no agreement on a percentage
charge of about 3 % was reached (48). Some banks also
argue that there was no agreement to recover about
90 % of income nor was the figure of 90 % of the costs
mentioned as the calculation basis for the new charges
after the introduction of the euro (49).

(120) The Commission considers on the basis of

the
documentary evidence that the banks participating in
the meeting of 15 October 1997 agreed to introduce an
overall commission of about 3 % (to achieve 90 %
income recovery) after 1 January 1999.

(cid:151) C o m m i s s i o n ’ s r e p l y

(cid:151) A r g u m e n t s o f t h e p a r t i e s a g a i n s t e a r l y

i n t r o d u c t i o n

(118) The question arises as to the credibility of the GWK
Bank meeting minutes of 15 October 1997. The official
the meeting
minutes and GWK Bank minutes of
correspond to the extent that there was consensus on
the use of fixed exchange rates for in-currencies (i.e. no
buying and selling rates) after 1 January 1999, with
charges/fees
percentage
calculated
commission. Westdeutsche Landesbank notes that only
one point of the alleged infringement, the fixing of a
charging structure, is included in the official minutes of
the meeting produced by Mr [(cid:133)]* (50).

be

to

as

a

(119)

that

about possible

some bank representatives at

Indeed, Bayerische Landesbank and Commerzbank AG
the
acknowledge that
meeting expressed opinions
future
charges lying between 2 % and 4 % (51). Commerzbank
AG states
the meeting
mentioned that 90 % income recovery would lead to a
charge of 2 % to 4 %, or an average commission of 3 %.
At the hearing on 1 and 2 February 2001, Bayerische
Landesbank stated that its representative at the meeting
of 15 October 1997 (Mr [(cid:133)]*) recalled that
(cid:145)some
individual banks mentioned some
representatives of

some participants at

(48) Replies to the SO: BfG Bank AG, pp. 19 et seq. (file, pp. 3540 et
seq.); Commerzbank AG, p. 35 (file, p. 3624); Reisebank AG, p.
27 (file, p. 3721); Bayerische Hypo- und Vereinsbank AG /
Vereins- und Westbank AG, p. 16 (file, p. 3903); Westdeutsche
Landesbank, p. 47 (file, p. 4016).

(49) Replies to the SO: Bayerische Landesbank, p. 30 (file, p. 3454);
BfG Bank AG, pp. 18 et seq. (file, p. 3539); Commerzbank AG,
pp. 33 et seq. (file, pp. 3622 et seq.); Reisebank AG, pp. 26 et
seq. (file, pp. 3720 et seq.); Landesbank Hessen Th(cid:252)ringen, pp. 16
et seq. (file, pp. 3830 et seq.); Bayerische Hypo- und Vereinsbank
AG / Vereins- und Westbank AG, p. 15 (file, p. 3902);
Westdeutsche Landesbank, pp. 47 et seq.
(file, p. 4016); Fortis
group, p. 23 (file, p. 4295).

(50) Westdeutsche Landesbank reply to the SO, p. 43 (file, p. 4012).
(51) Replies to the SO: Bayerische Landesbank, p. 30 (file, p. 3454);
Commerzbank AG, p. 35 (file, p. 3624); Bayerische Hypo- und
Vereinsbank AG / Vereins- und Westbank AG, p. 16 (file, p.
3903); Westdeutsche
Landesbank, p. 47 (file, p. 4016);
Hamburgische Landesbank mentions possible percentage charges
ranging from 2 % to 6 %, p. 6 (file, p. 3768).

(121) The banks also argue that fixing charges in 1997 would
have made no sense because of the long period of 14
months before the introduction of the euro combined
with all the economic uncertainties that could arise in
such a time period (52). The banks argue that they fixed
their charges independently in late 1998 (53).

(cid:151) C o m m i s s i o n ’ s r e p l y

contradicted by

(122) The argument that it would have been premature for
the banks to agree on charging structures and charges
in October 1997 is
the banks
themselves. The letter sent by four commercial banks
(Commerzbank AG, Deutsche Verkehrsbank AG,
to the
Reisebank AG and Westdeutsche Landesbank)
Bundesbank on 25 July 1997 states their view that the
exchange margin (i.e. buying and selling rates
for
in-currencies) should be maintained because, amongst
other reasons, the necessary information technology (IT)
changes could not be made in time for 1 January 1999
(recital 55):

(cid:145)The question of charging instead of
spread (selling/buying rates) was
problematic.

the current
seen as highly

As a result of the discussion, all participants have in
principle rejected a change as the resulting costs for
IT adaptation would make the exchange of banknotes
more expensive, and the public would not appreciate
higher charges. Consumers would not understand the

(52) Reply to the SO: Dresdner Bank AG, p. 10 (file, p. 3750);

Westdeutsche Landesbank, p. 42 (file, p. 4011).

(53) Replies to the SO: Bayerische Landesbank, pp. 34 et seq. (file, pp.
3458 et seq.); BfG Bank AG, p. 20 (file, p. 3541); Commerzbank
AG, pp. 36 et seq. (file, pp. 3625 et seq.); Dresdner Bank AG, p.
10 (file, p. 3750); Hamburgische Landesbank, pp. 9 et seq. (file,
pp. 3771 et seq.); Landesbank Hessen Th(cid:252)ringen, pp. 12 et seq.
(file, pp. 3826 et seq.); Bayerische Hypo- und Vereinsbank AG /
Vereins- und Westbank AG, pp. 22 et seq. (file, pp. 3909 et seq.);
Westdeutsche Landesbank, pp. 33 et seq. (file, pp. 4002 et seq.).

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introduction of a charge when exchange rates were
fixed and central banks purchased in-currencies free
of charge.

It is also important to note that IT changes cannot be
made at such short notice.(cid:146)

eventual conduct to be expected of each other on the
market with regard to bank charges for the buying and
selling of in-currency banknotes. The banks themselves
admit
that charges of 2 % to 4 % were discussed.
However, following the introduction of the euro, none
of the parties introduced a commission of less than 3 %
(recitals 147 and 148).

(123) The GWK Bank meeting minutes of 15 October 1997
also mention that
the time remaining for adapting
information technology systems to the new charging
structure was short (recital 93):

(cid:145)4. The short time still remaining between then and 1
January 1999 was already felt to be tight for adapting
all systems to the new charging structure.(cid:146)

(124) The conclusion to be drawn from the above is that the
price-fixing agreement of 15 October 1997 was most
opportune and timely for the banks.

(cid:151) A r g u m e n t s o f t h e p a r t i e s c o n c e r n i n g

t h e d i f f e r e n t c h a r g e s

(125) The banks claim that the banks present at the meeting
of 15 October 1997 apply different charges ranging
from 3 % to 4 %. Only 2 banks actually apply a 3 %
charge (54).

(cid:151) C o m m i s s i o n ’ s r e p l y

(126) Firstly,

it should be noted that

the
existence, content and object of an agreement infringing
Article 81(1) of the EC Treaty and described in the SO
was based on specific documentary evidence and not on
parallel pricing behaviour in the market.

the finding of

(127) Secondly, since the agreement was to introduce an
overall commission of about 3 % aimed at achieving
about 90 % income recovery, it is not to be expected
identical percentage
that
commissions. The agreement eliminated or, at the very
to the
least,

banks would have

reduced uncertainty

substantially

all

as

4. Restriction of competition

(128) The banks participating in the meeting of 15 October
1997 agreed to an overall commission of about 3 %
with the aim of achieving about 90 % income recovery
after the abolition of the spread on 1 January 1999.
This agreement had both the object and effect of
restricting competition in the Community.

4.1. Object of the agreement

of

(129) Article 81(1) of the EC Treaty expressly mentions as
between
competition
restrictive
of
decisions
undertakings
undertakings which directly or indirectly fix purchase or
selling prices or any other trading conditions.
In the
present case, the direct fixing of prices is the object of
the agreement.

agreements
by

associations

and

(130) Faced with the disappearance of the exchange margin
(i.e. buying and selling rates)
income after 1 January
1999, the object of the agreement concluded by the
banks present at the meeting of 15 October 1997 was
to fix the participating banks’ commissions for the
buying and selling of in-currency banknotes at about
3 % with the aim of achieving about 90 % income
recovery after the abolition of the spread on 1 January
1999.

(131) Therefore, it must be concluded that the agreement had
as its object a harmonisation of banks’ future pricing
policies and the alignment of prices in the buying and
selling of in-currency banknotes.

(54) Replies to the SO: Bayerische Landesbank, p. 43 (file, p. 3467));
BfG Bank AG, p. 20 (file, p. 3541); Commerzbank AG, p. 41 (file,
p. 3630); Deutsche Verkehrsbank AG / Reisebank AG, p. 28 (file,
p. 3722); Dresdner Bank AG, p. 10 (file, p. 3750); Bayerische
Hypo- und Vereinsbank AG / Vereins- und Westbank AG, pp. 25
et seq. (file, pp. 3912 et seq.); Westdeutsche Landesbank, pp. 43,
53 (file, pp. 4012, 4022).

(132)

It follows from the above that the agreement concluded
the meeting of 15
between the banks present at
October 1997 is caught by Article 81(1) of
the EC
Treaty in that it directly fixes the way of charging for
the exchange of in-currency banknotes (i.e. a percentage
commission) and the level of charges in the form of a
target price.

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4.2. The parties’ arguments and the Commission’s replies

bank charges for the exchange of euro-zone banknotes
after 1 January 1999.

(cid:151) A r g u m e n t s o f t h e p a r t i e s c o n c e r n i n g

t h e i n t e r p r e t a t i o n o f A r t i c l e 5 2 o f t h e
E S C B S t a t u t e

(cid:151) A r g u m e n t s o f t h e p a r t i e s t o t h e e f f e c t
t h a t t h e C o m m i s s i o n w a s t h e i n i t i a t o r
o f t h e d i s c u s s i o n s

(133) The parties argue that their discussions were held to
address considerable regulatory uncertainty concerning
the implementation of Article 52 of the ESCB Statute,
the German
particularly as regards whether or not
Bundesbank would offer a free forex service to the
public.

(cid:151) T h e C o m m i s s i o n ’ s r e p l y

(134)

banks principally

In 1997, the German Bundesbank had discussions with
German commercial
concerning
implementation of Article 52 of the ESCB Statute. A
meeting took place on 8 July 1997 between the
commercial banks and the Bundesbank at which the
consequences of the introduction of the euro for the
exchange of banknotes was discussed. Following this
meeting,
the Bundesbank on 22 July 1997 sent a
questionnaire to commercial banks concerning the
buying and selling of banknotes
in the retail and
wholesale markets. The questionnaire asked for data on
volumes of banknotes exchanged, the transparency of
charges during the transitional phase, the consequences
on the retail business if the Bundesbank were to offer a
free service to the public, and the consequences for the
wholesale business if the Bundesbank were to offer a
free banknote repatriation service to the commercial
banks. The response of each bank was to be treated
confidentially
a
consequence of the 8 July 1997 meeting, on 25 July
1997 four
(Commerzbank AG,
Deutsche Verkehrsbank AG, Reisebank AG and
the
to
Westdeutsche
Bundesbank expressing their view that
the exchange
margin (i.e. buying and selling rates for in-currencies)
should be maintained, in part, because the necessary IT
changes could not be made in time and because any
adaptation would give rise to additional costs giving rise
to higher charges. A meeting took place on 15
September 1997 between commercial banks and the
Bundesbank, which clarified that charging via the
exchange margin (i.e. buying and selling rates) would
not be possible after 1 January 1999. Any charges
would have to be shown separately (recitals 53 to 57).

Bundesbank. Also

commercial banks

Landesbank)

letter

sent

the

by

as

a

(136) According to the parties

the Commission was

the
initiator of the discussions and contacts between the
banks. The starting point was the Round Table on 15
May 1997 organised by the Commission and dealing
with practical aspects of the transition to the euro (55).
The banks argue that the reason for the meeting of 15
October 1997 is
regulatory
uncertainties and as a consequence of the initiatives of
the European Commission and discussions with the
German Bundesbank.

found in the

to be

(cid:151) T h e C o m m i s s i o n ’ s r e p l y

(137) The Commission organised the Round Table of 15 May
1997 on practical aspects of the changeover to the euro
to address concerns expressed by various associations
and to advance technical preparations. The Round Table
provided a forum for dialogue among all
interested
parties, both public and private, and addressed two
issues: the practical arrangements for a
main sets of
smooth changeover to the euro and ways of helping
currency users adjust to the euro. The Expert Group
report of 20 November 1997 expressly states that it did
not deal with charges for bank services (56) (recitals 40
to 43).

(cid:151) A r g u m e n t s o f t h e p a r t i e s o n t h e

q u e s t i o n o f t h e a d m i s s i b i l i t y o f c h a r g e s

(138) According to the parties,

their discussions were also
held to address the question as to whether or not it
would be permissible for
the commercial banks to
charge for
the exchange of banknotes by way of
spreads.

(cid:151) T h e C o m m i s s i o n ’ s r e p l y

(139) As early as 1995 it was known that the exchange rates
would be irrevocably fixed and that only those fixed
rates should be used. This is clearly and explicitly stated

(135) As is clear from the above, the discussions between the
Bundesbank and commercial banks
concerned the
application of Article 52 as well as the abolition of the
buying and selling rates on 1 January 1999. The
meetings did not encompass collective discussions on

(55) Reply of Westdeutsche Landesbank to the SO, pp. 32 et seq. (file,

pp. 4001 et seq.).

(56) See paragraph 4 (cid:145)What is conversion(cid:146) of the Report of the Expert
Group on Banking Charges for Conversion to the Euro to the
European Commission, Brussels, 20.11.1997.

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in the Presidency conclusions of the Madrid European
Council of 15 and 16 December 1995 on the scenario
for the changeover to the single currency. Article 4(3)
of Council Regulation (EC) No 1103/97, which has been
directly applicable law in all Member States since 20
June 1997, states that (cid:145)The conversion rates shall be
used for conversions either way between the euro unit
and the national currency units(cid:146) (recitals 34 to 37). The
direct consequence of this is that the use of spreads
would not be permissible, and that any charges should
be explicitly and transparently shown. All this is also
clearly stated in the document setting the terms of
reference of the Expert Group on Banking Charges for
Conversion to the euro and in the final report of this
Expert Group (recital 45).

(140)

In any case, prior to the meeting of 15 October 1997, a
meeting took place (on 15 September 1997) between
commercial banks and the Bundesbank which clarified
that charging via the exchange margin (i.e. buying and
selling rates) would not be possible after 1 January
1999 (recital 57).

banks’ representatives were competent to discuss pricing
for both retail and wholesale aspects of the banknote
exchange business. The Commission considers on the
basis of
the banks
the documentary evidence that
participating in the meeting of 15 October 1997 agreed
to introduce a global commission for private customers
of about 3 % (to achieve 90 % income recovery) after 1
January 1999.

(143) With

to

the

(IT)

regard

means

systems

systems,

program).

retail and wholesale

This
for both the

the
computer
Commerzbank AG representative explained during the
information
hearing that
the same
technology systems are interlinked (if not
the
computer
pricing/charging
and
wholesale business would need to be known prior to
any adaptation of the IT systems.
Indeed, for private
customers, the official minutes indicate that during the
three-year transitional period beginning on 1 January
(cid:145)Charges/fees will be
1999 the parties agreed that
calculated as a percentage amount of
the exchange
value(cid:146) (recital 95). With regard to the interbank trade,
the parties opted to keep buying and selling rates.

that
retail

(cid:151) A r g u m e n t s o f t h e p a r t i e s c o n c e r n i n g

t h e i n v i t a t i o n f a x

4.3. Implementation of the agreement

issues (57).

(141) Several banks claim that, as can be seen from the
agenda attached to the invitation fax, the meeting of 15
October 1997 was focused on questions of interbank
trade (cid:151) where pricing was mentioned (cid:151) as well as on
the
for
IT
representatives present at the meeting were either from
the department dealing with the buying and selling of
notes in interbank trade or from the IT department. The
private customer department, being the only one with
decision-making power concerning the setting of forex
charges for private customers, was not represented (58).

reason

that

this

is

It

(cid:151) T h e C o m m i s s i o n ’ s r e p l y

(144)

In order to conclude that Article 81(1) of the EC Treaty
applies, there is no need to consider the actual effects
upon competition of an agreement once it is established
that
restricting
agreement had the object of
competition.

the

(145)

In the present case, there was an agreement between
banks on a global commission of about 3 % with the
aim of achieving about 90 % income recovery after the
abolition of the spread on 1 January 1999.

(146) The Commission considers that, having concluded that
the agreement was to directly fix the level of charges,
there is no need to demonstrate any effect.

(147)

In any case, the agreement did have an effect on charges
that were implemented on the market:

(142) Even the official minutes of the meeting produced by
Mr [(cid:133)]* record that discussions took place on pricing
for both the private customer business and interbank
It seems therefore that the
trade (recitals 94 to 97).

Dresdner Bank AG

3 %

Commerzbank AG

3,75 %

(57) Replies to the SO: Commerzbank AG, p. 29 (file, p. 3618) and
Annex 16 (file, p. 3671); BfG Bank AG, p. 15 (file, p. 3536);
Hamburgische Landesbank, p. 4 (file, p. 3766).

(58) Replies to the SO: Bayerische Landesbank, p. 29 (file, p. 3543);
BfG Bank AG, p. 16 (file, p. 3537); Dresdner Bank AG, p. 5 (file,
p. 3745); Landesbank Hessen Th(cid:252)ringen, p. 10 (file, p. 3824);
Bayerische Hypo- und Vereinsbank AG / Vereins- und Westbank
AG, p. 10 (file, p. 3897).

Bayerische Hypo- und
Vereinsbank AG

3,0 % (minimum DEM 10) (59)

Vereins- und
Westbank AG

3,0 % (minimum DEM 10) (60).

(59) Minimum reduced from DEM 10 to DEM 6 on 11 March 1999.
(60) Minimum abolished on 2 August 1999.

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(148) According to Reisebank AG,

the charges with the

introduction of the euro were (61):

(152) The import and export of euro-zone currencies by the
banks are commercial operations that directly affect
intra-Community trade.

Selling:

3,5 % plus a service fee of DEM 5 (62)

Buying: 4,5 % plus a service fee of DEM 5

These are the same selling and buying percentage
commissions as introduced by GWK on 16 June 1998:

Selling:

3,5 % (for transactions up to NLG 5 000),
minimum NLG 5

Buying: 4,5 % (for transactions up to NLG 5 000),

minimum NLG 5 (63)

5. Effect on trade between Member States

5.1. Currency exchange

(149) The infringement at issue concerns a service which is
cross border in nature and, for that reason alone, likely
to affect trade between Member States. As shown above,
there
currencies
exchanged in each Member State (recitals 7 to 9).

large volume of

euro-zone

is

a

(150) Selling and buying of foreign currencies within the euro
zone are operations concerning essentially consumers,
and in particular
and
non-Community) who wish to make payments within
the euro zone. Payments made by consumers with
currencies other than those of their country of origin
constitute transactions which affect
intra-Community
trade.

(both Community

tourists

(151)

It should be noted that,
if consumers buy foreign
currencies in their home countries, the bank selling the
currencies must first have imported the bank notes. If,
on the other hand, consumers buy currencies in the
countries of destination with foreign cash, the selling
bank must export (or repatriate) the foreign cash to the
country of origin. For each bank within the euro zone,
there is never a perfect balance at a given time between
the volumes of foreign currencies bought from, and sold
to, the public.

(61) Reply of Reisebank AG to the SO, pp. 18 et seq. (file, pp. 3712 et

seq.).

(62) Three weeks

later, Reisebank AG changed its percentage

commissions for selling to:
DEM 0,01 (cid:151) DEM 500
DEM 500,01 (cid:151) DEM 1 000
DEM 1 000,01 (cid:151) DEM 2 000
DEM 2 000,01 (cid:151) DEM 5 000
from DEM 5 000,01

3,5 %,
3,25 %,
3,0 %,
2,75 %,
2,5 %.

(63) 1,5 % for selling transactions above NLG 5 000.
2,5 % for buying transactions above NLG 5 000.

5.2. The parties’ arguments and the Commission’s replies

(cid:151) A r g u m e n t s o f t h e p a r t i e s c o n c e r n i n g

t h e e f f e c t o n t r a d e b e t w e e n M e m b e r
S t a t e s

(153) At the hearing (64) the banks argued that the German
case was a purely national case thus not having any
effect on trade between Member States. The exchange of
foreign currencies was a local service, provided on
different national markets. Despite being present at the
meeting of 15 October 1997, GWK Bank was not active
on the German market just as the German banks were
not active on the Dutch market.

(cid:151) T h e C o m m i s s i o n ’ s r e p l y

(154) The Court of Justice has consistently held that, in order
that an agreement between undertakings may affect
it must be possible to
trade between Member States,
foresee with a sufficient degree of probability on the
basis of a set of objective factors of law or of fact that it
may have an influence, direct or indirect, actual or
potential, on the pattern of
trade between Member
States, such as might prejudice the realisation of the aim
States (65).
of
Accordingly,
the effect on
the Court has held that
intra-Community trade is normally the result of a
combination of several factors which, taken separately,
are not necessarily decisive (66). It is also settled case
law that it is enough to establish that an agreement is
capable of having an effect on trade between Member
States (67).

single market between Member

a

(155) The Commission has described in the statement of
objections and the present Decision (see recitals 149 to
152) several factors which have been taken into account
when concluding that the agreement has an effect on
trade between Member States. Following the case-law of
the Court of Justice, the Commission holds that in this
case the effect on trade is a combination of several
factors, which taken as a whole, show that there is an
effect on trade.

(64) Presentation given by Dr Satzky on behalf of all the banks at the

hearing on 1.2.2001.

(65) Case 56/65 SociØtØ Technique MiniŁre [1966] ECR 282, paragraph 7
and Case 42/84 Remia and Others v Commission [1985] ECR 2545,
paragraph 22.

(66) Case C-250/92 Gottrup-Klim [1994] ECR I-5641, paragraph 54.
(67) Case C-219/95 P Ferriere Nord SpA v Commission [1997] ECR

I-4411, paragraph 19.

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(156)

In the present case, however, particular attention should
be paid to the special nature of the service and the
product concerned. As noted above,
the service is
already cross-border in nature. This stems from the fact
that the products concerned are the currencies of other
Community Member States, which are exchanged in
large volumes in each Member State.

(cid:151) A r g u m e n t s o f t h e p a r t i e s c o n c e r n i n g

t h e l a c k o f a m a r k e t d e f i n i t i o n

(157) The banks claim that

the Commission has failed to
define the geographic market and has therefore made an
incorrect assessment of the effect on trade.

(160)

In particular, the relevant product has been defined as
the service of exchanging in-currencies where at least
one part of the transaction concerns notes. The banks
have to buy and sell banknotes on the international
wholesale markets as a direct consequence of national
demand for foreign currency. The Court of Justice has
held in Stichting Sigarettenindustrie (70) that an agreement
concluded between undertakings established in one
Member State and covering only the market of that state
affects trade between Member States if it concerns, even
partly, a product imported from another Member State.

G. ADDRESSEES OF THE DECISION

(161)

It is clearly established by the facts that Commerzbank
AG and Dresdner Bank AG have directly participated in
the infringement.

(cid:151) T h e C o m m i s s i o n ’ s r e p l y

(162) The question of appropriate addressees arises only in

relation to:

(158) The Commission contends

that a definition of

the
geographic market is not decisive in this case. This is
due to the fact that the documentary evidence proves
the parties committed an infringement whose
that
object and effect was
to restrict competition. The
infringement was also by its nature liable to affect trade
between Member States. This conclusion is in line with
the Court of First Instance rulings in European Night
Services and Volkswagen AG (68), in which the Court held
that there is an obligation on the Commission to define
the market
in a decision applying Article 85 (now
Article 81) of the EC Treaty where it is impossible,
without such a definition,
to determine whether the
agreement, decision by an association of undertakings
or concerted practice at issue is liable to affect trade
between Member States and has as its object or effect
the prevention, restriction or distortion of competition
within the common market.

(159) The fact that the agreement on charges for the exchange
of
in-currencies concerns mainly Germany and the
Dutch regions bordering on Germany does not preclude
an effect on trade between Member States. The Court of
Justice has ruled in a number of cases that behaviour
restricting competition and extending over the whole
territory of a Member State by its very nature has the
effect of
compartmentalisation of
markets on a national basis, thereby holding up the
economic interpenetration which the Treaty is designed
to bring about (69).

reinforcing

the

(68) Joined Cases T-374/94, T-375/94, T-384/94 and T-388/94
European Night Services and Others v Commission [1998] ECR
II-3141, paragraphs 93 to 95 and 105 and Case T-62/98
Volkswagen v Commission [2000] ECR II-2707, paragraphs 230 and
231.

(69) See inter alia Case 8/72 Vereeniging van Cementhandelaren v
Commission [1972] ECR 977, paragraph 29 and Case T-29/92
SPO v Commission [1995] ECR II-289, paragraph 229.

(cid:151) Bayerische Hypo- und Vereinsbank AG / Vereins-

und Westbank AG,

(cid:151) Deutsche

Genossenschaftsbank
Verkehrsbank AG / Reisebank AG.

/

Deutsche

(163) At the time of the meeting of 15 October 1997 the
majority shareholder in Vereins- und Westbank AG was
then Bayerische Vereinsbank AG. Bayerische
the
Vereinsbank AG and Bayerische Hypotheken- und
Wechselbank AG merged on 1 September 1998 to form
Bayerische Hypo- und Vereinsbank AG. This merger
made Bayerische Hypo- und Vereinsbank AG the major
shareholder in Vereins- und Westbank AG.

(164) Bayerische Hypo- und Vereinsbank AG is the second
biggest banking group in Germany and considers itself
to be a (cid:145)bank of the regions(cid:146)
in which Vereins- und
Westbank AG has an individual identity as (cid:145)bank of the
region of Northern Germany(cid:146).

(165) Although the

invitation fax for

incriminating
meeting of 15 October 1997 was sent only to the then
Bayerische Vereinsbank AG, no employee of the then
Bayerische Vereinsbank AG participated in the meeting.

the

(166) The recipient of the invitation fax for the meeting of 15
October 1997 in the then Bayerische Vereinsbank AG
that
showed

superior, who

decided

his

to

it

(70) Joined Cases 240-242, 261, 262, 268 and 269/82 Stichting
Sigarettenindustrie and Others v Commission [1985] ECR 3831,
paragraph 49.

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Official Journal of the European Communities

L 15/29

participation was not necessary. The fax recipient
however passed the invitation on to a colleague at
Vereins- und Westbank AG as he was of the opinion, in
contrast to his superior, that it might be possible to
obtain some useful information at the meeting.

(167) Vereins- und Westbank AG was not
of

but nonetheless

meeting,
participated
and
Bayerische Vereinsbank AG (72).

also

invited to the
employees
its
represented (71)
then
the

one

(168) As a result both Vereins- und Westbank AG and
the
Bayerische Vereinsbank AG were represented at
meeting of 15 October 1997 through the employee of
Vereins- und Westbank AG.

(169) The

reply to the SO of Bayerische Hypo- und
Vereinsbank AG/Vereins- und Westbank AG states that
Vereins- und Westbank AG was not bound by the
policy of Bayerische Hypo- und Vereinsbank AG
concerning the fixing of charges for the exchange of
euro-zone bank notes (73). This shows that both banks
operated independently on the market
and that
Bayerische Hypo- und Vereinsbank AG did not influence
Vereins- und Westbank AG’s decision on charges.

(170)

In the light of
the above the Decision is therefore
addressed to Vereins- und Westbank AG in its own
right and to Bayerische Hypo- und Vereinsbank AG as
the legal successor to the former Bayerische Vereinsbank
AG.

(171) Deutsche Genossenschaftsbank AG has

a

67 %
shareholding in Deutsche Verkehrsbank AG. Deutsche
Verkehrsbank AG owns all the shares in Reisebank AG
with three members of the managing board of Deutsche
the
the
Verkehrsbank AG as
supervisory board of Reisebank AG. Reisebank AG is
the
Deutsche
Genossenschaftsbank AG group that is active exclusively
in the retail forex business (74). Deutsche Verkehrsbank
times exercised decisive influence over its
AG at all

sole members of

company

within

only

the

(71) In the reply of Bayerische Hypo- und Vereinsbank AG / Vereins-
und Westbank AG to the SO, p. 4 (file, p. 3891) the banks claim
invited to the
that Vereins- und Westbank AG, although not
meeting of 15 October 1997, sent an employee as representative
of the then Bayerische Vereinsbank AG.

(72) In the reply of Bayerische Hypo- und Vereinsbank AG / Vereins-
und Westbank AG to the SO, pp. 9 et seq. (file, pp. 3896 et seq.)
it is stated that the recipient of the invitation fax for the meeting
of 15 October 1997 in the then Bayerische Vereinsbank AG
showed it to his superior, who decided that participation was not
necessary. The fax recipient however passed the invitation on to a
colleague of his at Vereins- and Westbank AG as he was of the
opinion, in contrast to his superior, that it might be possible to
obtain some useful information at the meeting.

(73) Reply of Bayerische Hypo- und Vereinsbank AG / Vereins- und

Westbank AG, p. 24 (file, p. 3911).

(74) Reisebank AG reply to the SO, pp. 2 et seq. (file, pp. 3696 et
seq.). In its reply to the SO, DG Bank stated that it is not active in
the forex business (file, p. 3689).

by

and

times

participating

in meetings

subsidiary
in
discussions with other banks (see recitals 58 to 97).
Deutsche Verkehrsbank AG was at all
fully
informed and aware of all
the discussions between
banks concerning charges for the exchange of euro-zone
banknotes. According to the case law of the Court of
Justice, the decisive criterion in deciding if Article 81(1)
the EC Treaty can be applied between a parent
of
company and a subsidiary is whether or not
the
subsidiary was able to determine its market behaviour
independently of
In the
present case, Reisebank AG enjoyed no real autonomy
in determining its own course of action vis-(cid:224)-vis
Deutsche Verkehrsbank AG. Reisebank was therefore
not capable of infringing Article 81(1) of the EC Treaty
independently of Deutsche Verkehrsbank.

company (75).

the parent

(172)

this Decision is therefore
In the light of
addressed to Deutsche VerkehrsBank AG as the parent
company of Reisebank AG (76).

the above,

H. DURATION OF THE INFRINGEMENT

(173) Commerzbank AG, Dresdner Bank AG, Deutsche
VerkehrsBank AG, Bayerische Hypo- und Vereinsbank
AG and Vereins- und Westbank AG concluded the
agreement infringing Article 81(1) of the EC Treaty in
October 1997. The agreement was concluded for the
duration of the (cid:145)transitional(cid:146) period 1 January 1999 to
31 December 2001.

(75) The leading case for determining whether Article 81(1) can be
applied between parent and subsidiary company and whether they
can thus be independent members of a cartel is Case T-102/92
Viho v Commission [1995] ECR II-17, paragraphs 47 to 55 (as
Justice in Case C-73/95 P Viho v
confirmed by the Court of
Commission [1996] ECR I-5457), in which it is stated that: Article
85(1)
(now Article 81(1)) does not apply to the relationship
between the subsidiary and the parent company with which it
forms an economic unit
the subsidiary, although having a
separate legal personality, does not freely determine its conduct on
the market but carries out the instructions given to it directly or
indirectly by the parent company by which it is wholly controlled.
Paragraph 16 of the judgment in Case C-73/95 P reads as follows:
Parker and its subsidiaries thus form a single economic unit
within which the subsidiaries do not enjoy real autonomy in
determining their course of action in the market, but carry out the
instructions issued to them by the parent company controlling
them.

if

follows:

(76) The judgment in Case C-286/98P Stora v Commission [2000] ECR I
should be
It
(cid:151) 9925 reads, at paragraph 26, as
remembered that, as the Court of
Justice has held on several
occasions, the fact that a subsidiary has separate legal personality
is not sufficient to exclude the possibility of its conduct being
imputed to the parent company, especially where the subsidiary
does not independently decide its own conduct on the market, but
carries out, in all material respects, the instructions given to it by
the parent company (see, inter alia, Case 48/69 ICI v Commission
[1972] ECR 619, paragraphs 132 and 133; Case 52/69 Geigy v
Commission [1972] ECR 787, paragraph 44; and Case 6/72
Europemballage and Continental Can v Commission [1973] ECR 215,
paragraph 15).

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(174)

In the light of the above, the duration of infringement
established for all addressees of this Decision is from 15
October 1997 to the present time.

imposed pursuant

setting fines
to Article 15(2) of
Regulation No 17 (hereinafter called (cid:145)guidelines on
fines(cid:146)) (78).

I. REMEDIES

1. Article 3 of Regulation No 17

(181) The role played by each undertaking party to the
infringement will be assessed on an individual basis. In
particular,
in the fine
imposed any aggravating or attenuating circumstances
and will apply, where appropriate, the notice on the
non-imposition or reduction of
fines in cartel cases
(hereinafter called (cid:145)leniency notice(cid:146)) (79).

the Commission will

reflect

(175) Where

the Commission finds

an
infringement of Article 81(1) of the EC Treaty, it may
require the undertakings concerned to bring such
infringement to an end in accordance with Article 3 of
Council Regulation No 17 (77).

there

that

is

2.2. Basic amount of the fines

(176)

the way of charging for

In the present case, the agreement, whose object was to
fix (a)
the exchange of
in-currency banknotes (i.e. a percentage commission)
and (b) a target price level of about 3 % (to achieve
90 % exchange margin income recovery), was concluded
for a future three-year period beginning on 1 January
1999 and ending on 31 December 2001.

(182)

the fines,
the
In order to determine the amount of
Commission calculates a basic amount
that will be
increased to take account of aggravating circumstances,
or reduced to take account of attenuating circumstances.
The basic amount is determined according to the gravity
and duration of the infringement.

(177) Therefore, the Commission requires the undertakings to
which the present Decision is addressed to henceforth
refrain from any agreement, concerted practice or
decisions of associations which may have the same or
similar object or effect as the agreement which is the
subject of this Decision.

2 . 2 . 1 . G r a v i t y

(183)

In its assessment of the gravity of the infringement, the
Commission takes account of
its actual
impact on the market, where this can be measured, and
the size of the relevant geographic market.

its nature,

2. Article 15(2) of Regulation No 17

(184)

2.1. General considerations

(178) Under Article 15(2) of Council Regulation No 17, the
Commission may by decision impose upon undertakings
or associations of undertakings fines from one thousand
to one million euro, or a sum in excess thereof not
in the preceding
the turnover
exceeding 10 % of
and
business
each of
associations
in the
infringement where, either intentionally or negligently,
they infringe Article 81(1) of the EC Treaty.

undertakings participating

the undertakings

year of
of

(179)

regard

In fixing the amount of any fine the Commission must
and
have
particularly
the
infringement, which are the two criteria explicitly
referred to in Article 15(2) of Regulation No 17.

circumstances
of
duration

relevant
and

all
gravity

to
the

(180) The Commission follows the methodology explained in
its guidelines of 14 January 1998 on the method of

In this case the agreement had the object of fixing (a)
the way of charging for the exchange of in-currency
banknotes (i.e. a percentage commission) and (b) the
level of charges in the form of a target price (to achieve
90 % exchange margin income
the
exchange of in-currency banknotes. Article 81(1) of the
EC Treaty expressly prohibits both direct and indirect
fixing of prices or other trading conditions. By its
nature, the infringement is a very serious violation of
Article 81(1) of the EC Treaty.

recovery)

for

(185) The agreement was implemented by Commerzbank AG,
Dresdner Bank AG, Bayerische Hypo- und Vereinsbank
AG, Vereins-
und Westbank AG and Deutsche
Verkehrsbank AG (recitals 147 and 148).

(186) However, the infringement produced its effects within a
limited part of
common market, namely in
Germany, where the agreement covered the whole
country, and in the Dutch regions bordering on
Germany.

the

(77) OJ 13, 21.2.1962, p. 204/62.

(78) OJ C 9, 14.1.1998, p. 3.
(79) OJ C 207, 18.7.1996, p. 4.

21.1.2003

EN

Official Journal of the European Communities

L 15/31

(187) Given that

the infringement by its nature is a very
serious violation of Article 81(1) of the EC Treaty but
limited in its effect to Germany and the Dutch regions
bordering on Germany,
the Commission on balance
concludes that the agreement concerned falls within the
category of a serious infringement of the Community
competition rules.

(188) Within the category of

serious

infringements,

the effective economic capacity of

the
proposed scale of likely fines makes it possible to apply
differential treatment to undertakings in order to take
account of
the
offenders to cause significant damage to competition
and to set the fine at a level which ensures that it has
sufficient
seems
particularly necessary where, as in the present case,
there is considerable disparity in the size of
the
undertakings participating in the infringement.

deterrent

exercise

effect.

This

(189) For this purpose the undertakings concerned can in
principle be divided into two categories according to
their size and their relative importance in the relevant
market. The comparison is made on the basis of the
income information for the last business year for which
audited results are available.

(190)

Into the first category fall Commerzbank AG, Dresdner
Bank AG, Bayerische Hypo- und Vereinsbank AG and
Deutsche Verkehrsbank AG. Vereins- und Westbank AG
falls into the second category.

(194) On the basis of

the

that,

foregoing,

the Commission
in the case of Commerzbank AG,
considers
Dresdner Bank AG and Bayerische Hypo-
und
Vereinsbank AG, the need for deterrence requires that
the starting point of its fine determined under recital
191 should be increased by EUR 10 million to EUR 20
million.

2 . 2 . 2 . D u r a t i o n

(195) As mentioned earlier,

the Commission considers the
duration of the infringement of Article 81(1) of the EC
Treaty for all addressees of this Decision to be from 15
October 1997 until the present time (recitals 173 and
174). The starting amounts of the fines determined for
gravity (recital 191) are therefore increased by 40 % for
each of the undertakings.

(196) The Commission accordingly sets the basic amount of

the fines as follows:

Commerzbank AG

Dresdner Bank AG

Bayerische Hypo- und
Vereinsbank AG

EUR 28 million,

EUR 28 million,

EUR 28 million,

Deutsche VerkehrsBank AG

EUR 14 million,

Vereins- und Westbank AG

EUR 2,8 million.

(191) On the basis of the foregoing, the appropriate starting
point for a fine resulting from the criterion of relative
importance in the relevant market is for each category
as follows:

2.3. Individual fines

Commerzbank AG

Dresdner Bank AG

Bayerische Hypo- und
Vereinsbank AG

(197)

EUR 10 million,

EUR 10 million,

In setting the fine for each company, the Commission is
obliged to assess
attenuating
circumstances on an individual basis and to apply, as
appropriate, the leniency notice.

aggravating or

any

EUR 10 million,

(198)

In the present case there are no aggravating or
attenuating circumstances.

Deutsche VerkehrsBank AG

EUR 10 million,

Vereins- und Westbank AG

EUR 2 million.

2.4. Amount of the fines imposed in the present proceedings

(192)

In order to ensure that the fine has a sufficient deterrent
effect,
the Commission will determine whether any
further adjustment of the starting point is needed for
any undertaking.

(199)

In conclusion,
the Commission fixes the fines to be
imposed pursuant to Article 15(2) of Regulation No 17
as follows:

(193)

In the case of Commerzbank AG, Dresdner Bank AG
the
and Bayerische Hypo- und Vereinsbank AG,
the appropriate starting
Commission considers
point
the
relative importance in the relevant market
requires
further upward adjustment to take account of their size
and their overall resources.

for a fine resulting from the criterion of

that

Commerzbank AG

Dresdner Bank AG

Bayerische Hypo- und
Vereinsbank AG

EUR 28 million,

EUR 28 million,

EUR 28 million,

Deutsche VerkehrsBank AG

EUR 14 million,

Vereins- und Westbank AG

EUR 2,8 million.

L 15/32

EN

Official Journal of the European Communities

21.1.2003

HAS ADOPTED THIS DECISION:

Account No: 642-0029000-95

Article 1

Commerzbank AG, Dresdner Bank AG, Bayerische Hypo- und
Vereinsbank AG, Deutsche Verkehrsbank AG and Vereins- und
Westbank AG have infringed Article 81(1) of the EC Treaty by
participating in an agreement whose object was to fix (a) the
way of charging for the exchange of in-currency banknotes
(i.e. a percentage commission) and (b) a target price level of
about 3 % (to achieve 90 % exchange margin income recovery)
during the transitional period beginning on 1 January 1999.

Article 2

The undertakings named in Article 1 shall put an end to the
infringement.

They shall henceforward refrain in relation to their activities
from any agreements or concerted practices which may have
the same or a similar object or effect as the infringement.

Code IBAN: BE76 6420 0290 0095

Code SWIFT: BBVABEBB

of the European Commission with:

Banco Bilbao Vizcaya Argentaria (BBVA) SA
Avenue des Arts/Kunstlaan, 43
B-1040 Brussels.

After expiry of that period,
interest shall be payable at the
interest rate applied by the European Central Bank to its main
refinancing operations on the first working day of the month
in which this decision is adopted, plus 3,5 percentage points.

Article 5

This decision is addressed to:

1. Commerzbank AG

Kaiserplatz
D-60261 Frankfurt am Main;

2. Dresdner Bank AG

J(cid:252)rgen-Ponto-Platz 1
D-60329 Frankfurt am Main;

Article 3

3. Bayerische Hypo- und Vereinsbank AG

The following fines are hereby imposed on the undertakings
found
named in Article 1 in respect of
herein:

the infringement

Commerzbank AG

Dresdner Bank AG

EUR 28 million,

EUR 28 million,

Bayerische Hypo- und Vereinsbank AG

EUR 28 million,

Deutsche VerkehrsBank AG

EUR 14 million,

Vereins- und Westbank AG

EUR 2,8 million.

Am Tucherpark 16
D-80538 M(cid:252)nchen;

4. Deutsche VerkehrsBank AG
Friedrich-Ebert-Anlage 2-14
D-60325 Frankfurt am Main;

5. Vereins- und Westbank AG

Alter Wall 22
D-20454 Hamburg.

This decision shall be enforceable pursuant to Article 256 of
the EC Treaty.

Article 4

Done at Brussels, 11 December 2001.

The fines imposed by Article 3 shall be paid within three
months of the date of notification of this Decision to the
following account:

For the Commission

Mario MONTI

Member of the Commission

21.1.2003

EN

Official Journal of the European Communities

L 15/33

ANNEX

AUSTRIA

BELGIUM

(in EUR)

(in EUR)

1 600 000 000
1 600 000 000

1 400 000 000
1 400 000 000

1 200 000 000
1 200 000 000

1 000 000 000
1 000 000 000

800 000 000
800 000 000

600 000 000
600 000 000

400 000 000
400 000 000

200 000 000
200 000 000

0
0

1 600 000 000
1 600 000 000

1 400 000 000
1 400 000 000

1 200 000 000
1 200 000 000

1 000 000 000
1 000 000 000

800 000 000
800 000 000

600 000 000
600 000 000

400 000 000
400 000 000

200 000 000
200 000 000

0
0

1 600 000 000

1 400 000 000

1 200 000 000

1 000 000 000

800 000 000

600 000 000

400 000 000

200 000 000

0

1 600 000 000

1 400 000 000

1 200 000 000

1 000 000 000

800 000 000

600 000 000

400 000 000

200 000 000

0

1 600 000 000

1 400 000 000

1 200 000 000

1 000 000 000

800 000 000

600 000 000

400 000 000

200 000 000

0

FINLAND

FRANCE

(in EUR)

(in EUR)

1 600 000 000
1 600 000 000

1 400 000 000
1 400 000 000

1 200 000 000
1 200 000 000

1 000 000 000
1 000 000 000

800 000 000
800 000 000

600 000 000
600 000 000

400 000 000
400 000 000

200 000 000
200 000 000

0
0

GERMANY

IRELAND

(in EUR)

(in EUR)

1 600 000 000

1 400 000 000

1 200 000 000

1 000 000 000

800 000 000

600 000 000

400 000 000

200 000 000

0

ITALY

LUXEMBOURG

(in EUR)

(in EUR)

1 600 000 000

1 400 000 000

1 200 000 000

1 000 000 000

800 000 000

600 000 000

400 000 000

200 000 000

0

A
T
S
B
E
F
/
L
U
F
D
E
M
E
S
P
F
I
M
F
R
F
I
E
P
I
T
L
N
L
G
P
T
E
D
K
K
G
B
P
G
R
D
S
E
K
 
 
 
 
 
0
 
 
 
2
0
0
 
0
0
0
 
0
0
0
 
 
 
4
0
0
 
0
0
0
 
0
0
0
 
 
 
6
0
0
 
0
0
0
 
0
0
0
 
 
 
8
0
0
 
0
0
0
 
0
0
0
 
1
 
0
0
0
 
0
0
0
 
0
0
0
 
1
 
2
0
0
 
0
0
0
 
0
0
0
 
1
 
4
0
0
 
0
0
0
 
0
0
0
 
1
 
6
0
0
 
0
0
0
 
0
0
0
A
T
S
B
E
F
/
L
U
F
D
E
M
E
S
P
F
I
M
F
R
F
I
E
P
I
T
L
N
L
G
P
T
E
D
K
K
G
B
P
G
R
D
S
E
K
A
T
S
B
E
F
/
L
U
F
D
E
M
E
S
P
F
I
M
F
R
F
I
E
P
I
T
L
N
L
G
P
T
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D
K
K
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B
P
G
R
D
S
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K
A
T
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B
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F
/
L
U
F
D
E
M
E
S
P
F
I
M
F
R
F
I
E
P
I
T
L
N
L
G
P
T
E
D
K
K
G
B
P
G
R
D
S
E
K
 
 
 
 
 
0
 
 
 
2
0
0
 
0
0
0
 
0
0
0
 
 
 
4
0
0
 
0
0
0
 
0
0
0
 
 
 
6
0
0
 
0
0
0
 
0
0
0
 
 
 
8
0
0
 
0
0
0
 
0
0
0
1
 
0
0
0
 
0
0
0
 
0
0
0
1
 
2
0
0
 
0
0
0
 
0
0
0
1
 
4
0
0
 
0
0
0
 
0
0
0
1
 
6
0
0
 
0
0
0
 
0
0
0
A
T
S
B
E
F
/
L
U
F
D
E
M
E
S
P
F
I
M
F
R
F
I
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P
I
T
L
N
L
G
P
T
E
D
K
K
G
B
P
G
R
D
S
E
K
 
 
 
 
 
0
 
 
 
2
0
0
 
0
0
0
 
0
0
0
 
 
 
4
0
0
 
0
0
0
 
0
0
0
 
 
 
6
0
0
 
0
0
0
 
0
0
0
 
 
 
8
0
0
 
0
0
0
 
0
0
0
1
 
0
0
0
 
0
0
0
 
0
0
0
1
 
2
0
0
 
0
0
0
 
0
0
0
1
 
4
0
0
 
0
0
0
 
0
0
0
1
 
6
0
0
 
0
0
0
 
0
0
0
A
T
S
B
E
F
/
L
U
F
D
E
M
E
S
P
F
I
M
F
R
F
I
E
P
I
T
L
N
L
G
P
T
E
D
K
K
G
B
P
G
R
D
S
E
K
 
 
 
 
 
0
 
 
2
0
0
 
0
0
0
 
0
0
0
 
 
4
0
0
 
0
0
0
 
0
0
0
 
 
6
0
0
 
0
0
0
 
0
0
0
 
 
8
0
0
 
0
0
0
 
0
0
0
 
0
0
0
 
0
0
0
 
0
0
0
 
2
0
0
 
0
0
0
 
0
0
0
 
4
0
0
 
0
0
0
 
0
0
0
 
6
0
0
 
0
0
0
 
0
0
0
A
T
S
B
E
F
/
L
U
F
D
E
M
E
S
P
F
I
M
F
R
F
I
E
P
I
T
L
N
L
G
P
T
E
D
K
K
G
B
P
G
R
D
S
E
K
 
 
 
 
 
0
 
 
 
2
0
0
 
0
0
0
 
0
0
0
 
 
 
4
0
0
 
0
0
0
 
0
0
0
 
 
 
6
0
0
 
0
0
0
 
0
0
0
 
 
 
8
0
0
 
0
0
0
 
0
0
0
1
 
0
0
0
 
0
0
0
 
0
0
0
1
 
2
0
0
 
0
0
0
 
0
0
0
1
 
4
0
0
 
0
0
0
 
0
0
0
1
 
6
0
0
 
0
0
0
 
0
0
0
A
T
S
B
E
F
/
L
U
F
D
E
M
E
S
P
F
I
M
F
R
F
I
E
P
I
T
L
N
L
G
P
T
E
D
K
K
G
B
P
G
R
D
S
E
K
L 15/34

EN

Official Journal of the European Communities

21.1.2003

NETHERLANDS

PORTUGAL

(in EUR)

(in EUR)

2 400 000 000

2 100 000 000

1 800 000 000

1 500 000 000

1 200 000 000

900 000 000

600 000 000

300 000 000

0

6 000 000 000

5 000 000 000

4 000 000 000

3 000 000 000

2 000 000 000

1 000 000 000

0

1 600 000 000

1 400 000 000

1 200 000 000

1 000 000 000

800 000 000

600 000 000

400 000 000

200 000 000

0

SPAIN

EURO ZONE

(in EUR)

(in EUR)

14 000 000 000

12 000 000 000

10 000 000 000

8 000 000 000

6 000 000 000

4 000 000 000

2 000 000 000

0

Buying and selling volumes per euro-zone country for EU currencies (in EUR, 1998)

(Note: Different scales for the Netherlands, Spain and the euro zone).

 
 
 
 
 
0
 
 
3
0
0
 
0
0
0
 
0
0
0
 
 
6
0
0
 
0
0
0
 
0
0
0
 
 
9
0
0
 
0
0
0
 
0
0
0
 
2
0
0
 
0
0
0
 
0
0
0
 
5
0
0
 
0
0
0
 
0
0
0
 
8
0
0
 
0
0
0
 
0
0
0
 
1
0
0
 
0
0
0
 
0
0
0
 
4
0
0
 
0
0
0
 
0
0
0
A
T
S
E
F
/
L
U
F
D
E
M
E
S
P
F
I
M
F
R
F
I
E
P
I
T
L
N
L
G
P
T
E
D
K
K
G
B
P
G
R
D
S
E
K
 
 
 
 
 
0
 
 
 
2
0
0
 
0
0
0
 
0
0
0
 
 
 
4
0
0
 
0
0
0
 
0
0
0
 
 
 
6
0
0
 
0
0
0
 
0
0
0
 
 
 
8
0
0
 
0
0
0
 
0
0
0
 
1
 
0
0
0
 
0
0
0
 
0
0
0
 
1
 
2
0
0
 
0
0
0
 
0
0
0
 
1
 
4
0
0
 
0
0
0
 
0
0
0
 
1
 
6
0
0
 
0
0
0
 
0
0
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A
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L
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0
1
 
0
0
0
 
0
0
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0
0
0
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0
0
0
 
0
0
0
 
0
0
0
3
 
0
0
0
 
0
0
0
 
0
0
0
4
 
0
0
0
 
0
0
0
 
0
0
0
5
 
0
0
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0
0
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0
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8
 
0
0
0
 
0
0
0
 
0
0
0
 
1
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0
0
0
 
0
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0
 
0
0
0
 
1
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0
0
0
 
0
0
0
 
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