Europe, Middle East And Africa Antitrust Review 2020

European Union: Financial Services

Cadwalader, Wickersham & Taft LLP

Over the past decade, the financial services sector has been subject to an unprecedented level of antitrust scrutiny in the EU.

Previously, EU competition enforcement in the financial services sector had focused mainly on the areas of state aid and merger control – and not much else.

In state aid, the European Commission (Commission) has long used its powers in the financial services sector just like in any other. There was, naturally, a surge in cases generated by the financial crisis. 1 The restructuring or liquidation of around 117 European banks in the period 2007–2015 required policing and procedural innovation by the Commission, 2 but the substance was not new.

However, according to the Commission, state aid in 2017 was at its lowest level since the beginning of the financial crisis, showing that ‘legacy issues are being addressed, while the European banking sector is able to find more and more of the necessary liquidity in the market’. 3 The effectiveness of the Commission’s post-crisis decisional practice concerning state aid to banks is to be reviewed by the European Court of Auditors. 4 In the meantime, the Commission continues to actively monitor aid and related commitments. 5 For example, the Commission opened an in-depth investigation into Slovenia following delays to the partial sale of its stake in Nova Ljublijanska Banka. 6

From a judicial review perspective, the General Court recently issued an important judgment on state aid in the financial services sector. According to the General Court, funds provided by an interbank consortium in support of Italy’s Banca Tercas did not involve public aid, 7 which could influence how bailouts of banks are structured and reviewed in the future.

Similarly, the Commission has long exercised its merger control powers in the financial services sector. Some mergers between financial institutions arose out of the financial crisis and raised novel or esoteric questions, such as the application of the ‘failing firm’ theory. This issue was again considered recently in June 2017, when the European Central Bank judged Spanish bank Banco Popular to be ’failing or likely to fail‘. As a result, the Commission allowed Banco Santander to complete its acquisition of Banco Popular prior to obtaining formal merger clearance. 8 More broadly, there has been a continued and steady flow of mergers and merger reviews in this sector since the financial crisis.

However, until after the financial crisis, there were few instances of EU antitrust enforcement in financial services. The Commission had barely lifted the lid on antitrust infringements, notably in wholesale financial services. The scrutiny of rogue traders and poorly managed institutions was essentially left to national financial regulators and newspapers. Indeed, until the early 1980s, some in the industry still held onto the hope that competition laws did not apply to banks. While the Commission always rejected that view, 9 as a matter of fact, prior to the financial crisis, there were few cartel investigations of note in the financial services sector, and these probes were focused on retail banking and payments services, rather than wholesale financial services.

This has changed – radically. Since 2011, the Commission or those involved have publicised the existence of at least 11 antitrust investigations into the conduct of banks. There are likely more still under the radar. Furthermore, the Commission has already imposed fines totalling more than €3 billion; and with at least five ongoing and new investigations on the horizon, more fines are expected. 10

The rise in antitrust investigations against financial institutions has also seen the development of criminal enforcement against bank employees for related misconduct, notably in the UK. For example, the UK’s Serious Fraud Office has secured nine convictions against individuals involved in the manipulation of LIBOR and EURIBOR interest rate benchmarks, with further criminal trials scheduled for 2019. 11

There is now also a steady flow of private actions for damages in the EU. In October 2015, a claimant firm announced its intention to bring private actions against a number of banks in the English High Court ‘in anticipation of an infringement decision from the European Commission’ in the CDS Information Market investigation. However, that investigation was subsequently closed due to a lack of evidence, and there has been no sign of the related claim. In March 2017, the United States Federal Deposit Insurance Corporation (FDIC) brought the first LIBOR-related antitrust claim in the English High Court. 12 In December 2018, more than 100 investors (including investment funds Allianz Global Investors, Brevan Howard and PIMCO) filed an FX-related claim in the English High Court seeking damages for the alleged manipulation of the WM/Reuters and European Central Bank FX benchmarks. 13 The hotly anticipated claim remains in its early stages, and might have been complicated or delayed by Credit Suisse’s decision last year to contest the Commission’s FX case rather than settle.

One can debate at length the precise causes of this surge in antitrust enforcement activity, and why it did not occur sooner. However, aside from its coincidence with the financial crisis, one cannot ignore the influence of active enforcement by national financial regulators. Indeed, in this sector, conduct that infringes article 101 TFEU (article 101) will typically also infringe financial regulatory rules. As financial regulators started to probe concerted manipulation of the LIBOR fixing, it quickly became apparent that antitrust regulators would also need to act. Since then there has been a flurry of allegations and investigations by both financial and antitrust regulators across asset classes, including credit default swaps, interest rate derivatives, foreign exchange, precious metals, bonds and, most recently, banking syndicates and fintech.

As a result, banks have paid out vast sums in fines, and some former bank employees are serving or facing the possibility of jail sentences. In the current post-crisis scenario, the financial services sector now has a heightened awareness of the importance of antitrust law compliance. Evidence of this can be seen in: more internal investigations with an antitrust angle; an increase in self-reporting to regulators and related immunity applications; and a renewed interest in in-house training. Those are positive developments, which should help to improve the future conduct of employees.

However, with a number of investigations ongoing or recently launched, the full extent of antitrust enforcement by the Commission in this sector remains to be seen. Therefore, and as private litigation starts in earnest, the scrutiny of banks’ past transgressions still has some way to run.

The remainder of this article provides an overview of the most important EU antitrust cases over time and describes the recent enforcement developments and trends, whilst outlining certain practical aspects that should be considered when dealing with antitrust cases in the financial services sector.

EU antitrust enforcement in the financial services sector

From the early 1980s to the early 2000s: the beginning of an era

In 1981, with its Züchner judgment, the Court of Justice had the opportunity to confirm, to the extent it was ever in doubt, that EU rules are fully applicable to the banking sector. 14 However, from the early 1980s to the early 2000s, the Commission’s antitrust enforcement in the financial services sector remained fairly limited.

The Commission adopted its first prohibition decision in financial services – in relation to the insurance sector – in 1984. 15 That was followed, in 1992, by a cartel decision concerning an agreement on commissions payable under the Eurocheque system. 16 The Commission’s next cartel decisions in the sector were not for another nine years: the first, in 2001, concerned agreements to fix commissions for the exchange of Eurozone currencies; 17 and the second, in 2002, concerned price-fixing agreements between a cartel of Austrian banks. 18

The 2000s: focus on payment systems

From the late 1990s and for much of the 2000s, the Commission’s antitrust enforcement activities focused on payment services providers, including Visa, MasterCard and Groupement des Cartes Bancaires. This culminated in a series of Commission investigations and decisions, some of which were appealed with varying degrees of success.

Visa

In 2001, the Commission issued a negative clearance decision to Visa in respect of certain provisions of Visa’s international payment card system, including a ‘no-discrimination rule’ that prohibited merchants from favouring cash payments. Subsequently, in 2002, Visa’s multilateral interchange fee (MIF) arrangements on cross-border payments were exempted from prohibition under article 101(3) until 31 December 2007, after Visa agreed to reduce the fee levels. 19 In 2008, following expiry of the exemption, the Commission initiated formal proceedings against Visa, 20 and it issued two statements of objections, the first in 2009 and the second in 2012, regarding various aspects of Visa’s system of MIFs. 21 However, Visa managed to avoid the adoption of infringement decisions by offering commitments, in 2010 and 2014, to reduce further its MIFs on intra-EEA cross-border and national card payments.

The Commission sought to close out this area of antitrust enforcement with an investigation of fees on card payments between non-EEA cardholders and EEA-based merchants, so-called ‘inter-regional MIFs’. The Commission sent a supplementary statement of objections to Visa in August 2017, 22 and conducted an oral hearing in February 2018. 23 Visa again offered commitments, ie, to reduce inter-regional MIFs by at least 40 per cent and to publish them clearly on its website. In April 2019, the Commission adopted a decision to make the commitments binding, putting an end to the multi-year investigation. 24

MasterCard

MasterCard faced similar Commission scrutiny of MIFs on cross-border MasterCard card payments in the 2000s. That scrutiny was somewhat delayed since MasterCard originally notified its arrangements to the Commission between 1992 and 1997 (under the old notification regime) and therefore benefited from an exemption. 25 In fact, it wasn’t until MasterCard informed the Commission, on 25 July 2003, of its intention to bring an ‘action for failure to act’, 26 that the Commission proceeded to issue, in relation to the MIFs, a first statement of objections in September 2003, a supplementary one in June 2006, and an infringement decision in 2007. That infringement decision was hotly contested until the Court of Justice issued its definitive view in 2014 that MasterCard’s MIFs infringed article 101(1). 27

As with Visa, the Commission sought to close out this area of antitrust enforcement with an investigation of ‘inter-regional MIFs’. The Commission opened a formal investigation into these fees, as well as into MasterCard’s cross-border acquiring rules, in April 2013. 28 A statement of objections was issued, and an oral hearing was held in May 2016. 29 In a May 2017 regulatory filing, MasterCard warned investors that the fines ‘could be substantial, potentially in excess of $1 billion if the Commission were to issue a negative decision’. 30 The Commission has now concluded its investigation. In January 2019, it fined MasterCard €570 million for its rules preventing acquiring banks from benefitting from lower fees in other member states. 31 Concerning the issue of inter-regional MIFs, in April 2019, the Commission accepted from MasterCard the same commitments as from Visa. 32

Groupement des Cartes Bancaires

The American card payment schemes were not the only ones under the spotlight. In 2007, Groupement des Cartes Bancaires was sanctioned for the fees it charged to some issuing banks whose acquiring activities (ie, recruiting merchants to accept Cartes Bancaires payment cards) did not meet certain thresholds. In 2014, the Commission’s decision was the subject of a high profile reversal by the Court of Justice, which found that the General Court had incorrectly assessed whether the conduct amounted to a restriction of competition ‘by object’. The Court of Justice set aside the General Court’s judgment and referred the case back to the lower court. 33 At the second time of asking, and bound by the Court of Justice’s findings, the General Court annulled the Commission’s finding of an anticompetitive object, but it upheld the finding of anticompetitive effects. 34

As the Commission focused its efforts on the scrutiny of payment systems providers, the activities of the banks were largely overlooked for much of the 2000s.

From 2011 to date: antitrust enforcement gains momentum

What happened next caused a sea change in perceptions of the Commission’s antitrust enforcement activities in financial services. As a consequence, investigations into the conduct of banks, in particular investment banks, are now seen as front and centre of the Commission’s agenda.

In the eight years since 2011, the Commission has announced, or there have been reports of, cartel investigations involving banks across a range of asset classes and products, including: credit default swaps (CDS); interest rate derivatives (IRD); foreign exchange (FX); precious metals; and bonds. The genesis for this surge in enforcement activity was both the financial crisis, which attracted scrutiny of financial products considered to be at the root of the crisis, and the exposure by national financial regulators that traders from multiple banks were involved in the concerted manipulation of LIBOR, a global benchmark for short-term interest rates. 35

So far, the Commission has reached conclusions in its CDS, IRD, FX, and reportedly in its precious metals investigations. 36 The Commission’s bonds investigations are making progress, with statements of objections having been recently sent to the parties. Commission investigations have so far resulted in fines totalling more than €3 billion, with €466 million the largest individual fine. The Commission’s decisions to close its CDS Clearing investigation and CDS Information Market proceedings against the banks, in both cases due to a lack of evidence, shows that not all investigations identify wrongdoing. Nevertheless, with a number of investigations still on the go, more significant fines are expected, in particular from the Commission’s FX and bond-related investigations.

The CDS cases

The first Commission investigations concerned CDS Clearing and CDS Information Market:

CDS Clearing 37

It is unclear what prompted the Commission’s CDS Clearing investigation. First announced in April 2011, the investigation is understood to have started as early as 2009. The Commission announced that it was investigating whether the terms of certain agreements between ICE’s CDS clearinghouse, ICE Clear, and nine banks prevented other clearing houses from entering the market or discriminated against other banks, or both. It is perhaps no coincidence that CDS and central clearing of CDS were, at the time, at the centre of the political and economic debate over what caused the financial crisis. Ultimately, the Commission found no evidence of an infringement and closed its proceedings against ICE Clear and the banks in December 2015, although the Commission had already suspended its investigation in 2012.

CDS Information Market 38

In April 2011, the Commission also announced an investigation into CDS Information Market, which, according to the press release, concerned a possible concerted refusal by 16 banks to provide CDS price data to information service providers other than Markit. However, by July 2013, the Commission’s theory of harm had changed to one in which the banks, together with Markit and ISDA, were alleged to have foreclosed entry to the market for exchange-traded unfunded credit derivatives. Those allegations brought the Commission’s case in line with parallel proceedings by the US Department of Justice (DOJ), which commenced in 2009 but went dormant in 2011. Rather than take action, the DOJ was, perhaps, content to let a class action brought in the US against the banks play out. It did so in spectacular fashion, with the defendant banks agreeing to settle the claim, without admitting liability, for a reported total amount of US$1.87 billion. 39 This encouraged a claimant firm to announce in October 2015 its intention to bring equivalent claims against the banks in the English High Court. 40 In parallel, the Commission persisted with its case, and issued a statement of objections in July 2013 against Markit, ISDA and 13 banks – including Bank of America, Barclays, Bear Stearns, BNP Paribas, Citigroup, Crédit Suisse, Deutsche Bank, Goldman Sachs, HSBC, JP Morgan, Morgan Stanley, RBS and UBS. However, the Commission closed proceedings against the banks in December 2015, after the oral hearing, due to a lack of evidence. 41 In July 2016, the Commission accepted commitments from Markit and ISDA aimed at facilitating access to their respective IP and data for exchange trading purposes. 42 To date, the threatened UK private litigation has not materialised.

As such, the first exchanges between the Commission and the banks were in an area of investment banking that did not hit the headlines in quite the same way as allegations of concerted manipulation of LIBOR and other benchmarks would.

The IRD investigations

In 2008, certain industry observers and academics first noted that several large international banks were underreporting LIBOR rates. Subsequently, financial regulators, including the DOJ, the US Commodity Futures Trading Commission (CFTC) and the UK’s Financial Conduct Authority (FCA), launched probes over allegations of manipulation of LIBOR benchmark interest rates. These regulators did much of the early running, and were the first to impose fines for LIBOR manipulation. In June 2012, Barclays paid fines to these three regulators for a total of US$453 million.

There followed three LIBOR-related investigations by the Commission (the IRD investigations), which were an early sign of the now common theme of parallel financial regulatory and antitrust investigations into the same or related conduct.

The Commission’s IRD investigations were all prompted by immunity applicants, and were announced over a period of 14 months starting with Euro IRDs in October 2011, Yen IRDs in March 2012 and Swiss Franc IRDs in February 2013. All three investigations have resulted in fines, in most cases pursuant to the Commission’s settlement procedure. 43 Some of the fines against non-settling banks remain subject to ongoing appeals. 44

Euro IRDs 45

Barclays Bank was the whistle-blower. In December 2013, following settlement discussions, the Commission imposed fines totalling €824 million against four banks – Barclays, Deutsche Bank, Société Générale and RBS – for discussions between traders at those banks about their EURIBOR submissions and trading and pricing strategies. 46 In February 2014, Société Générale appealed the calculation of its settlement fine. 47 However, the French bank subsequently withdrew its appeal after the Commission reduced its fine from €445.9 million to €227.7 million, following submission of revised sales data. 48

Crédit Agricole, HSBC and JP Morgan refused to settle, which means that the Commission had to pursue a ‘hybrid case’. In December 2016, more than two and half years after its settlement decision in the same case, the Commission issued a decision imposing fines of €485 million on those three non-settling banks. 49 All three banks appealed the Commission’s decision to the EU General Court, challenging not just the substance of the decision, but also whether the Commission’s two-stage approach in these cases breached the presumption of innocence as regards the non-settling parties (ie, pre-judging the non-settling banks’ cases before they had been given a full opportunity to respond). 50 As noted below, the Commission’s practice of staggering the settlement and infringement decisions in Yen IRDs was criticised by the General Court in the appeal by broker ICAP. In response, in FX, the Commission appears to have reverted to its original approach of issuing decisions in such cases in tandem.

Yen IRDs 51

UBS was the whistle-blower. In December 2013, following settlement discussions, the Commission imposed fines totalling €670 million against five banks and one broker – UBS, RBS, Deutsche Bank, JP Morgan, Citibank and broker RP Martin – for discussions between traders at those banks about their Japanese Yen LIBOR submissions and trading positions. 52 ICAP did not reach a settlement with the Commission, leading to another hybrid case, and was fined €15 million in February 2015. 53 ICAP subsequently appealed the Commission’s decision to the EU General Court, which in November 2017 annulled part of the Commission’s decision against ICAP regarding the extent of its participation in the cartel and calculation of its fine. 54 In the appeal, the General Court also criticised the Commission’s practice of reaching settlement before concluding the proceedings with non-settling parties, based on concerns that the latter’s fundamental rights of defence could be undermined. 55 However, it ruled that doing so did not invalidate the Commission’s decision against ICAP, because its rights of defence had been respected in the proceedings that followed the settlement decision. Nevertheless, it highlighted the difficulties that the Commission faces with ‘hybrid cases’, and has forced the Commission to reassess how it prosecutes such cases, notably in FX.

Swiss Franc IRDs 56

RBS was the whistle-blower. In October 2014, following settlement discussions, the Commission imposed fines totalling €94 million against four banks – RBS, JP Morgan, Crédit Suisse and UBS – for agreements to quote wider bid-offer spreads to the market on certain categories of Swiss Franc IRDs, whilst maintaining narrower bid-offer spreads as between themselves, and exchanging competitively sensitive information concerning trading positions and intended prices for future Swiss Franc LIBOR submissions. 57

Proliferation of antitrust investigations

This early activity made the banks all too aware of the risks and costs of non-compliance with antitrust laws. It is quite likely that the Commission investigations that have followed, including into FX, Precious Metals and Bonds, were prompted by immunity applications brought about by that heightened awareness within the banking community. The Commission has also started to probe other areas, raiding Polish and Dutch banking associations in 2017, and publishing a study on EU loan syndication in 2019.

In any event, the Commission appears to have developed an appetite for investigations into the conduct of investment banks – which may see further scrutiny in this sector.

The FX investigations

The Commission has finally reached a conclusion in its long-running investigation into manipulation and coordinated trading around the WM/Reuters and European Central Bank FX benchmarks. More recently, there have also been reports of another Commission probe into this sector, in particular focused on FX options trading.

FX

In October 2013, former Commissioner Joaquin Almunia announced that the Commission had opened a preliminary investigation into the possible manipulation by traders at multiple banks of foreign exchange rates. 58 However, progress by the Commission was slow. Commissioner Vestager said of the investigation in January 2015 ‘we will finalise that relatively shortly’. 59 In May 2019, the Commission finally reached decisions in the first two of its three cases, resulting in €1.07 billion in fines. 60 Further FX-related fines are expected imminently in the third case, which is now a ‘hybrid case’ resulting from Credit Suisse’s decision last year to break away from settlement discussions. The Swiss bank stated that it does not believe that its employees were involved in ‘systemic conduct in the FX markets that violated the European Union’s competition rules’. 61 This could reflect disagreement with the way the Commission has characterised the conduct in settlement discussions, or a litigation tactic to deter would-be claimants. As noted above, in light of the criticism by the General Court in ICAP’s appeal in Yen IRDs, the Commission appears, for its third FX case, to have reverted to its original approach of issuing its decisions in such hybrid cases simultaneously.

FX options

According to HSBC, the Commission sent out information requests to banks in October 2018 concerning ‘potential coordination in foreign exchange options trading’. 62 The bank described the Commission’s investigation as being ‘at an early stage’. It remains unclear what prompted the information request, for example whether it resulted from evidence gathered in the context of the Commission’s parallel FX investigation or from a fresh immunity application.

Precious Metals

The Commission did not formally announce an investigation into precious metals. However, in August 2015, in response to press enquiries, the Commission confirmed the existence of an investigation into alleged anticompetitive behaviour in precious metals spot trading. 63 However, there were few outward signs of progress by the Commission in the investigation, and it is understood that the Commission’s case has been closed. A parallel investigation by the Swiss Competition Authority was also recently closed. 64 This stands in contrast to the United States, where, for example, the DOJ has brought criminal charges against individual traders, 65 the CFTC has entered a settlement agreement with at least four banks, 66 and antitrust class actions are ongoing. 67

The Bonds investigations

The Commission has issued statements of objection in two separate bond-related investigations: USD-denominated sovereign, supra-national and agency (SSA) bonds, and Euro-denominated European government bonds. In parallel, the UK Competition & Markets Authority has also launched a bonds-related antitrust investigation.

SSA bonds

In February 2016, press reports suggested the existence of a Commission investigation into bonds. The reports were based on a questionnaire sent by the Commission to a number of market participants regarding the SSA bond market. 68 In December 2018, the Commission confirmed these reports by announcing the issuance of a statement of objections against four banks (Deutsche Bank, Credit Suisse, Crédit Agricole, and Bank of America). 69 The Commission’s concerns relate to secondary market trading for SSA bonds, in particular alleged information exchanges and price coordination in the period from 2009 to 2015.

European government bonds

In January 2019, the Commission issued a statement of objections to eight banks in relation to Euro-denominated European government bonds. 70 The Commission alleges that, between 2007 and 2012, traders at these banks exchanged competitively sensitive information and coordinated their trading strategies, mostly through online chatrooms. At the time of publication of this article, only UniCredit and Nomura have acknowledged being subject to the investigation, 71 with Bank of America and Royal Bank of Scotland suggested as recipients in a recently-filed US claim. 72

In the UK, in November 2018, the Competition & Markets Authority (CMA) announced that it had opened an investigation into ‘suspected anticompetitive arrangements in the financial services sector’, 73 which is reportedly also focused on bond trading. 74 If so, the decision by the Commission not to take on that case may have been due to a particular nexus to the UK, and possibly with Brexit in mind. The CMA’s initial investigation, which involves the collection and review of evidence, is set to run until August 2019.

Promoting access for fintech solutions

A more recent area of EU enforcement and regulatory focus in the financial services sector has been a renewed interest in financial technology (fintech). While fintech is not new, recent innovations and regulatory developments have created fertile ground for new business models that pose a threat to incumbents and the status quo.

From an antitrust enforcement perspective, the development of new technologies and services creates compliance risks for both the innovators and the incumbents. To the extent that the new technology involves collaboration between competitors, there are the usual coordination-related risks, such as related to information exchange or the development of industry standards. For incumbents, whose traditional business models might be under threat, there could be the temptation to engage in unfair, exclusionary conduct to hinder the development of new technologies. The Commission, which alleged – unsuccessfully – exclusionary conduct in its CDS Information Market investigation, has reiterated in its 2019 Management Plan that it ‘will specifically monitor whether traditional payment operators (eg, banks and card schemes) may violate the competition rules by trying to maintain their gate-keeping position’. 75 The Commission already has an active antitrust investigation open in this area. In early October 2017, the Commission raided banking associations in a number of member states, including Poland and the Netherlands, on suspicions that banks were ‘excluding non-bank owned providers of financial services by preventing them from gaining access to bank customers’ account data’. 76 The Commission indicated in its 2019 Management Plan that it intends to pursue this investigation. 77

At the Member State level, bank associations had already come under scrutiny for rules restricting third-party access in Germany in 2016. Following an investigation into online payment services, the Federal Cartel Office (FCO) declared anticompetitive certain bank association rules restricting customers’ use of PIN and TAN authentication with non-approved independent online payment services. 78 The FCO’s findings were upheld on appeal in January 2019. 79

From a regulatory perspective, at the EU-level, the introduction of the Payment Services Directive II 80 and the Markets in Financial Instruments Directive II (MiFID II) 81 has facilitated access to customer account information and increased transparency and standardisation of trade reporting, in order to promote the development of new services and technologies and to open up the market to new entrants. Similarly, in March 2018, the Commission’s ‘FinTech Action plan’ stated the Commission’s intention to encourage and support further the development of standardised platforms for the development of new financial services solutions. 82

At the Member State level, there are similar, and in some cases more far-reaching, reforms, such as the ‘Open Banking’ initiative in the UK, which was a consequence of the CMA’s retail banking market investigation in 2016. 83 In that context, in April 2019, the CMA issued enforcement directions to five banks (Bank of Ireland, Danske Bank, HSBC, and Lloyds Banking Group), for missing deadlines set to facilitate third-party access to account information. 84 Other member states’ antitrust agencies also have fintech in their sights: studies on the impact of innovative technologies on competition in the financial services sector have been published in Portugal, 85 the Netherlands, 86 and Spain, 87 so this looks set to remain an area of focus in the EU.

Spotlight on loan syndication and other multi-bank transactions

Another area of recent but increasing antitrust scrutiny has been banks’ interactions in the context of syndicated loans or similar multi-bank transactions, such as joint equity underwriting. Whilst antitrust law recognises the pro-competitive benefits of syndication (ie, to enable efficient financing and risk management for large deals or projects), antitrust risks are still present and banks must take care to distinguish stages at which they may cooperate with each other from stages at which they are expected to compete against one another.

As a result, syndicated lending and joint underwriting have attracted antitrust scrutiny in a number of jurisdictions. In recent years, investigations have been launched and have led to fines being issued against banks in Spain 88 and Turkey, 89 warnings being issued to banks in the UK, 90 and criminal charges being brought against banks and their senior executives in Australia. 91

Against this background, at the EU-level, the Commission in 2017 stated its intention to commission a study into loan syndication and its impact on competition in credit markets, based on its concerns that ‘this area exhibits close cooperation between market participants and opaque or in-transparent settings, such as over-the-counter (OTC) activities, which are particularly vulnerable to anticompetitive conduct’. 92 The study, conducted by external consultants in the course of 2018, focused on loan syndication for leveraged buy-outs, project finance and infrastructure finance in six member states (France, Germany, the Netherlands, Poland, Spain and the UK). ln April 2019, the Commission published the report of the study. 93 The study was not intended to, and did not find any direct evidence of anticompetitive behaviour. However, the report identified a number of situations where risks of anticompetitive conduct arise and set out proposed safeguards to mitigate these risks. The report could frame a future EU sector inquiry or antitrust and regulatory investigations into the activities of lenders, should they arise.

The Commission’s antitrust enforcement in financial services has come a long way since its early beginnings, and has already resulted in fines in excess of €3 billion, with the prospect of more to come. In addition, whilst the existence of the above investigations is known or suspected, there may be others under the radar. The steady flow of antitrust investigations involving banks is set to continue going forward.

Enforcement development and trends

Parallel financial regulatory and antitrust investigations

In addition to a general proliferation in antitrust investigations by the Commission, it is notable that investigations in this sector often involve parallel financial regulatory investigations. The main reason is that conduct that breaches antitrust laws will typically also breach financial regulatory laws.

That is understood to be so with many of the cases mentioned above. As already mentioned, the LIBOR scandal saw probes by financial regulators, including the DOJ, the CFTC and the FCA. In FX, alongside the antitrust investigations, the FCA, the German financial regulator (Bafin), and the Swiss financial regulator (Finma), also launched their own investigations. In Precious Metals, financial regulators in Europe (eg, Bafin) 94 and the US (eg, the fraud section of the DOJ 95 and the CFTC) 96 conducted investigations into similar conduct and some have issued criminal charges and fines. Likewise, financial regulators including the FCA have investigated suspected manipulation of trading in SSA 97 and government-issued bonds. 98

The interplay between antitrust law and financial regulation in this setting is perhaps most clearly demonstrated by the dual role of the FCA. The FCA has long been the main financial regulator in the UK. In 2015, the FCA was given concurrent powers (alongside the CMA) to enforce competition laws in the UK. In February 2019, the FCA exercised these antitrust powers for the first time when it fined asset management firms for sharing price-sensitive information about two initial public offerings (IPOs) and one share placement. 99 A wider FCA market study into Asset Management resulted in parallel financial regulatory and antitrust scrutiny when the FCA referred the market for investment consultancy services to the CMA to address perceived competition concerns. 100 In February 2019, both the CMA 101 and the FCA 102 issued additional rules to market participants aiming to improve transparency, customer choice and competition. Similarly, the FCA’s market study into investment banking resulted in a prohibition on restrictive contractual clauses (eg, ‘right of first refusal’ or ‘right to act’) in certain circumstances. 103 The prohibition, which came into effect in January 2018, goes beyond the existing antitrust rules prohibiting dominant firms from tying or bundling unrelated products or services.

From an antitrust enforcement perspective, the most notable FCA reform are the updates made to Principle 11, which requires authorised firms to report to the FCA ‘as soon as the authorised firm becomes aware, or has information which reasonably suggests, that a significant infringement of any applicable competition law has, or may have, occurred’. 104 This obligation to report suspected antitrust infringements to the FCA is in stark contrast to the situation in most other industries, in which no such obligation to self-report misconduct applies. As a consequence, where a firm self-reports a suspected antitrust infringement, the decision to apply for leniency in the UK – and possibly therefore other jurisdictions – is almost an automatic choice, given the FCA’s concurrent competition law powers. This increases the likelihood of more antitrust investigations to come, and in parallel more financial regulatory investigations.

Parallel investigations, concerning the same or related conduct, are therefore a recurrent theme that advisers must be alive to.

Criminal enforcement against individuals

A recent trend in the context of investigations in the financial services sector in Europe has been an increased focus on prosecuting individuals involved in infringements. While previously the threat of criminal enforcement against individuals mainly stemmed from the US, 105 individuals now also risk pursuit by European prosecutors, in particular the UK.

The UK Serious Fraud Office (SFO) has criminally pursued a number of individuals for manipulating interest rate benchmarks. 106 The SFO prosecuted these cases as fraud, although the underlying misconduct – involving coordination between employees across different banks – would also constitute an antitrust infringement. Thus far, the SFO has secured five convictions in relation to LIBOR manipulation, 107 and four convictions in relation to EURIBOR manipulation, 108 with the trial of another banker scheduled for June 2019. 109

Private actions for damages

Lastly, an increasingly important area of EU antitrust law enforcement, particularly following the adoption of the Damages Directive, 110 is private actions for damages.

In payment services, MasterCard and Visa are continuing to face multi-million pound claims in the UK in relation to the setting of MIFs. 111 Some cases have already resulted in judgments and appeals, with mixed results. In particular, the UK High Court and Competition Appeal Tribunal (CAT) reached conflicting judgments in parallel claims by different parties. The UK Court of Appeal ruled that the MIFs restricted competition and were unlawful, but remanded those cases to the CAT for reconsideration on the issues of the possible application of article 101(3) and quantum of damages. 112 In the meantime, MasterCard and Visa have been granted permission to appeal to the UK Supreme Court. 113

In July 2017, the UK’s second ever ‘opt-out’ class action, Merricks v Mastercard, which sought £14 billion in damages, was denied class certification by the CAT. 114 However, in January 2018, the Court of Appeal agreed to hear Merricks’ challenge of the CAT judgment on class certification. 115 In April 2019, the appellate court granted Merricks’ appeal and remitted the case to the CAT, squashing the prior refusal to grant class certification. 116 The ruling breathes new life into the UK’s largest ever claim, with improved chances for damages or for a significant settlement. It also revives the nascent regime for ‘opt-out’ class actions, which had been struggling to get off the ground since its recent introduction by the Consumer Rights Act 2015. MasterCard has stated its intention to appeal directly to the UK Supreme Court. 117

Banks too are now starting to face private antitrust litigation in the EU. In the wake of the US$1.87 billion settlement of the US CDS class action, a claimant firm announced its intention to bring equivalent actions against the banks in the UK. However, those claims have not materialised, presumably as a result of the Commission’s decision to close proceedings against the banks and to accept commitments from Markit and ISDA. Following the imposition of fines in the IRD investigations, there were reports of imminent related private claims, and at least one such case has come to light: In January 2017, the United States FDIC filed a stand-alone claim in the UK alleging that traders at a number of banks colluded on and misrepresented their LIBOR submissions. 118 The defendants have denied the allegations and have applied to have the claims struck out. 119 In addition, in December 2018, an FX-related claim – brought on behalf of more than 100 investors against Barclays, Citi, HSBC, JPMorgan, RBS and UBS – was filed in the London High Court. 120 The claim alleges that the banks coordinated their trading through online chatrooms to manipulate FX benchmarks and fix bid/ask spreads for currency pairs. These damages claims highlight the new normal in Europe, with private antitrust litigation almost certain to follow the issuance of an infringement decision.


Notes

1 See Laitenberger, ‘From bail out to bail-in: laying foundations for a restructured banking sector in Europe’, 25 January 2016, available at: http://ec.europa.eu/competition/speeches/index_theme_23.html.

2 State aid rules were updated through six ‘Crisis Communications’ and with the advent of the Banking Union supplemented by the Bank Recovery and Resolution Directive (BRRD).

3 See Commission note ‘State aid Scoreboard 2018: Results, trends and observations regarding EU28 State Aid expenditure reports for 2017’ of 7 January 2019.

4 See European Court of Auditors, Audit preview, ‘Control of State aid to banks’, March 2019.

5 See MEMO/12/1018 ‘State aid: Overview of decisions and ongoing in-depth investigations of Financial Institutions in Difficulty’ of 31 December 2017.

6 See Commission Decision of 10 August 2018 in SA.33229 (2018/N-4) – Slovenia – Amendment of the restructuring commitments of Nova Ljublijanska Banka d.d. The Commission opened an in-depth investigation after Slovenia failed to meet deadlines for the partial sale of its shares in the bank, based on which significant aid was approved back in 2013. In the course of the investigation, Slovenia submitted amended commitments, which the Commission approved.

7 Joint Cases T-98/16, Italy v Commission, T-196/16, Banca Popolare di Bari SCpA v Commission, and T-198/16, Fondo interbancario di tutela dei depositi v Commission. The General Court ruled that the Commission lacked sufficient evidence to conclude that rescue funds provided by an interbank fund were imputable to the Italian state or granted through state resources.

8 See Commission Decision (Article 7(3)) of 7 June 2017 in Case M.8553, Banco Santander SA/Banco Popular Group SA.

9 This was made clear in the Commission’s Second Report on Competition Policy, where it is stated that ‘the Commission’s basic principle is that the Treaty’s rules of competition and the implementing regulations are of general application’. The Report is available at: http://ec.europa.eu/competition/publications/annual_report/ar_1972_en.pdf.

10 Since 2011, the Commission has completed: two investigations into credit default swaps, three investigations into interest rate derivatives, and one investigation into precious metals. Ongoing investigations include: two investigations into foreign exchange, two investigations into bonds, and one investigation into access to customer account information. See further below for details.

11 See Serious Fraud Office case information for Libor, available at: https://www.sfo.gov.uk/cases/libor-landing/; and for Euribor, available at https://www.sfo.gov.uk/cases/euribor/.

12 See the Financial Times, ‘FDIC sues Barclays, RBS and other banks over Libor’, 17 August 2017.

13 See Law360, ‘Banking giants hit with UK suit over forex rigging’, 11 January 2019.

14 Judgment of the Court of 14 July 1981, Gerhard Züchner v Bayerische Vereinsbank AG, Case 172/80. The judgment, a preliminary ruling on a reference from a German court, concerned a concerted practice between German banks on certain fees charged to customers.

15 Commission Decision of 5 December 1984 in Case IV/30.307, Fire insurance.

16 Commission Decision of 25 March 1992 in Case IV/30.717-A, Eurocheque: Helsinki Agreement.

17 Commission Decision of 11 December 2001 in Case COMP/37.919, German banks.

18 Commission Decision of 11 June 2002 in Case COMP/36.571, Austrian banks.

19 Commission Decision of 24 July 2002 in Case COMP/29.373, Visa International – Multilateral Interchange Fee.

20 See MEMO/08/170. In the same years, the Commission also investigated Visa in relation to issues of access. This led to a prohibition decision for refusing, without objective justification, to admit Morgan Stanley as a Visa member from 2000 to 2006 – Commission Decision of 3 October 2007 in Case COMP/37.860, Morgan Stanley Dean Witter/Visa.

21 In particular, the first SO concerned all MIFs set directly by Visa in the EEA for point of sales transactions with consumer debit cards, which applied to all cross-border transactions in the EEA, as well as to domestic transactions in certain EU member states. The second supplementary statement of objections related to MIFs set by Visa for transactions with consumer credit cards in the EEA, which applied to all cross-border transactions in the EEA, as well as to domestic transactions in certain EU member states.

22 See Press Release MEX/17/2341.

23 See MLex Insight report ‘Visa to contest EU charges over card-fees at hearing this month’ by Lewis Crofts of 14 February 2018.

24 See Press Release IP/19/2311.

25 Commission Decision of 19 December 2007 in Case COMP/34.579, MasterCard.

26 The action for failure to act pursuant to article 265 TFEU provides that the applicant may initiate proceedings where the institution failed to adopt an act.

27 Case C-382/12 P, MasterCard v Commission.

28 See Press Release IP/13/314.

29 See MLex Insight report ‘MasterCard to contest EU card-fee charges at closed-door hearing’ by Lewis Crofts of 27 May 2016.

30 See MasterCard SEC Filing (Form 10-Q) for the quarterly period ended March 31, 2017, filed on 2 May 2017.

31 See Press Release IP/19/582.

32 See Press Release IP/19/2311.

33 In particular, according to the Court of Justice, by explaining the reasons why the measures at stake were capable of impeding competition from new entrants in the market, the General Court had assessed the potential effects of those measures, and not their object. See Judgment of the Court of 11 September 2014 in Case C-67/13 P, Groupement des cartes bancaires v European Commission.

34 Case T-491/07, Groupement des cartes bancaires v European Commission, judgment of 30 June 2016.

35 As early as 2007, Barclays alerted UK and US regulators about its concerns that banks were submitting dishonestly low interbank rates.

36 As noted below, certain aspects of the IRD investigations are ongoing, and further fines are expected in the FX investigation.

37 Case COMP/39.730.

38 Case COMP/39.745.

39 See Bloomberg, ‘Wall Street Banks to Settle CDS Lawsuit for $1.87 Billion’, 11 September 2015.

40 See Quinn Emanuel and Fideres Capital Press Release, ‘Investment banks to face multi-billion pound CDS claims in UK courts’, 5 October 2015.

42 See Press Release IP/16/2586.

43 Pursuant to article 10a of Commission Regulation (EC) No. 773/2004.

44 For example, fines against Credit Agricole, HSBC and Credit Agricole in relation to the manipulation of Euro interest rate derivatives are currently under appeal before the General Court.

45 Case COMP/39.914.

46 Commission Decision of 4 December 2013 in Case COMP/39.914, Euro Interest Rate Derivatives.

47 Case T-98/14, Société Générale v Commission.

48 By decision of 6 April 2016, the Commission amended the fine for Société Générale. The amended fine was based on amended value of sales data provided by Société Générale in February 2016 after the bank realised that it had initially provided incorrect data to the Commission.

49 See Press Release IP/16/4304.

50 HSBC v Commission, T-105/17; JPMorgan Chase v Commission, T-106/17; and Crédit Agricole v Commission, T-113/17. Crédit Agricole had previously complained to the Ombudsman in 2014 that public comments by then-Commissioner Almunia pre-judged the case against the non-settling banks. Whilst the Ombudsman found that the comments in question constituted maladministration, the Commission’s own Hearing Officer determined that the investigation was nevertheless conducted fairly, since the final decision against the non-settling banks was adopted after Almunia left office. Pending their appeals, and perhaps mindful of the risk of private litigation, Crédit Agricole and JP Morgan also sought to prevent the Commission from publishing the non-confidential version of its infringement decision. However, they were rebuffed by the Court of Justice, and the Commission published the non-confidential infringement decision in April 2019.

51 Case COMP/39.861.

52 Commission Decision of 4 December 2013 in Case COMP/39.861, Yen interest Rate Derivatives.

53 See Press Release IP/15/4104.

54 Case T-180/15, ICAP v Commission, judgment of 10 November 2017.

55 See MLex Comment ‘EU’s ‘hybrid’ cartel settlement suffers court criticism but isn’t fatally wounded’ by Lewis Crofts of 10 November 2017.

56 Case COMP/39.924.

57 See Press Releases IP/14/1189 and IP/14/1190.

58 See MLex Insight report ‘EU probes possible forex market manipulation, Almunia says’ by Karoline Soldon, John Rega and Matthew Newman of 7 October 2013.

59 See MLex interview of Commissioner Vestager published 22 January 2015.

60 See Press Release IP/19/2568.

61 See MLex Insight report ‘Credit Suisse breaks ranks in EU’s forex cartel settlement’ by Lewis Crofts of 24 April 2018.

62 See HSBC Holdings plc, Annual Report and Accounts 2018, 19 February 2019, p.292, available at: https://www.hsbc.com/investors/results-and-announcements/annual-report.

63 See Reuters, ‘EU antitrust regulators investigate precious metals trading’, 25 August 2015.

64 See Swiss Competition Commission Press Release of 6 June 2019, ‘La COMCO classe l’enquête sur les métaux précieux’.

65 See Plea Agreement in United States v David Liew, Case No. 17-CR-001, filed 1 June 2017. The DOJ’s Criminal Fraud Section reportedly closed its investigation in January 2019, while the DOJ’s Antitrust Division had closed its investigation in January 2016.

66 The CFTC has settled precious metals-related charges with Deutsche Bank (see press release 7682-18 of 29 January 2018, https://www.cftc.gov/PressRoom/PressReleases/pr7682-18), UBS (see press release 7683-18 of 29 January 2018, https://www.cftc.gov/PressRoom/PressReleases/pr7683-18), HSBC (see press release 7684-18 of 29 January 2018, https://www.cftc.gov/PressRoom/PressReleases/pr7684-18), and Bank of Nova Scotia (see press release 7818-18 of 1 October 2018, https://www.cftc.gov/PressRoom/PressReleases/7818-18).

67 In Re: London Silver Fixing Antitrust Litigation, 1:14-MD-2573; and In Re: Commodity Exchange Gold Futures and Options Trading Litigation, 1:14-MD-2548.

68 See the Financial Times, ‘EU probes suspected rigging of $1.5tn debt market’, 9 February 2016.

69 See Press Release IP/18/6895. Deutsche Bank disclosed it had received immunity in the relation to the investigation, with the other banks confirming receipt of the statement of objections in the days following the Commission’s announcement.

70 See Press Release IP/19/804.

71 See Reuters, ‘Italy’s UniCredit says it is among banks accused of running bond cartel’, 11 April 2019. See also Nomura’s Form 6-K, 27 May 2019, p. 12: ‘Various authorities continue to conduct investigations concerning . . . the Nomura Group and other parties in respect of government, supranational, sub-sovereign and agency debt securities trading. These investigations relate to various matters including certain activities of NIP in Europe for which NIP and the Company have received a Statement of Objections from the European Commission (Commission), which reflects the Commission’s initial views around certain historical conduct.’

72 In re: Europe Government Bonds Antitrust Litigation, 1:19-CV-02601.

73 See Competition & Markets Authority case information, ‘Financial services sector: suspected anticompetitive arrangements’, 16 November 2018, available at: https://www.gov.uk/cma-cases/financial-services-sector-suspected-anticompetitive-practices.

74 See Sky News, ‘Competition watchdog launches probe into ‘bond market cartel’, 18 November 2018.

75 See Commission – Management Plan 2019 – DG Competition, at page 10, available at: https://ec.europa.eu/info/sites/info/files/management-plan-comp-2019_en.pdf.

76 See the Financial Times, ‘EU raids Polish and Dutch banking group over fintech access’, 8 October 2017.

77 See Commission – Management Plan 2019 – DG Competition, at page 10, available at: https://ec.europa.eu/info/sites/info/files/management-plan-comp-2019_en.pdf.

78 Federal Cartel Office Decision B4 – 71/10.

79 OLG Düsseldorf Judgment of 30 January 2019 in case IV Kart 7/16[V].

80 Council Directive 2015/2366/EU.

81 Council Directive 2014/65/EU of 15 May 2014, in effect since January 2018.

82 See Commission Communication COM(2018) 109 final, ‘FinTech Action plan: For a more competitive and innovative European financial sector’, page 11, available at: http://eur-lex.europa.eu/resource.html?uri=cellar:6793c578-22e6-11e8-ac73-01aa75ed71a1.0001.02/DOC_1&format=PDF.

83 See CMA press release, ‘CMA paves the way for Open Banking revolution’, 9 August 2016.

84 See Open Banking website, ‘CMA Issues Directions to 5 Banks’, 1 April 2019.

85 See Autoridade da Concorrencia Issues Paper, ‘Technological Innovation and Competition in the Financial Sector in Portugal’, 3 October 2018. English summary of the study available at: http://www.concorrencia.pt/vEN/News_Events/Comunicados/Documents/Two%20Pager%20FinTech.pdf.

86 See Authority for Consumers & Markets Study, ‘Fintechs in the payment system – The risk of foreclosure’, 19 December 2017.

87 See Comision Nacional de los Mercados y la Competencia Study E/CNMC/001/18, ‘Market Study on the Impact on Competition of Technological Innovation in the Financial Sector (Fintech)’, 13 September 2018.

88 See Comision Nacional de los Mercados y la Competencia Decision of 13 February 2018 in case S/DC/0579 Financial Derivatives. English summary note available at: https://www.cnmc.es/sites/default/files/editor_contenidos/Notas%20de%20prensa/2018/20180214_Nota_aclaratoria_S_DC_0579_16_eng.pdf.

89 See Daily Sabah, ‘Turkish watchdog fines ING, RBS for unfair competition in corporate loans’, 29 November 2017.

90 See for example Financial Conduct Authority (FCA) Regulation round-up for February 2017, ‘Hot topic: Competition law concerns involving syndicated lending firms’.

91 See ACCC Press Release 103/18, ‘Criminal cartel charges laid against ANZ, Citigroup and Deutsche Bank’, 5 June 2018. The landmark trial is set to proceed before the Federal Court later in 2019.

92 See Commission – Management Plan 2017 – DG Competition, at page 11.

93 See Final Report by Europe Economics & Euclid Law, ‘EU loan syndication and its impact on competition in credit markets’, published 5 April 2019.

94 See Bloomberg, ‘Bafin Reviews Gold, Silver Pricing as Part of Libor Review’, 27 November 2013.

95 See Bloomberg, ‘US Precious-Metals Trade Probe Shifts From Antitrust to Fraud’, 27 February 2016.

96 See Reuters, ‘Banks face scrutiny over pricing of precious metals: WSJ’, 24 February 2015.

97 See Bloomberg, ‘U.K. Said to Open Probe Into Rigging of Agency-Bonds Market’, 20 January 2016. The FCA reportedly dropped the probe in October 2017, possibly handing the investigation over to the Commission. See Bloomberg, ‘Agency Bond-Rigging Probe Is Said to Be Dropped by Britain’s FCA’, 31 October 2017.

98 For example, manipulation of government bonds has been subject to a probe in Mexico by securities regulator CNBV, which in November 2018 issued minor fines against five banks (Citibanamex, Bancomer, Barclays, Credit Suisse and Deutsche Bank), as well as two brokers and eight traders. See Reuters, ‘Mexico fines global banks for inflating bonds trading volumes’, 14 November 2018. A parallel investigation by Mexico’s antitrust authority, COFECE, remains ongoing. See COFECE Press Release 022/2017, ‘COFECE investigates the market for financial intermediation of Mexican Government securities’, 19 April 2017.

99 See FCA Press Release, ‘FCA issues first decision under competition law’, 21 February 2019, available at: https://www.fca.org.uk/news/press-releases/fca-issues-its-first-decision-under-competition-law.

100 See FCA Press Release, ‘FCA makes Market Investigation Reference for investment consultancy services’, 14 September 2017.

101 See CMA Notice of intention to make an order of 11 February 2019, available at: https://assets.publishing.service.gov.uk/media/5c6143c8e5274a31747380b8/Notice_of_intention_to_make_order.pdf.

102 See FCA Policy Statement PS19/4, ‘Asset Management Market Study – further remedies’, published 4 February 2019, available at: https://www.fca.org.uk/publication/policy/ps19-04.pdf.

103 See FCA Policy Statement PS17/13, ‘Investment and corporate banking: prohibition of restrictive contractual clauses’, published June 2017, available at: https://www.fca.org.uk/publication/policy/ps17-13.pdf.

104 See FCA Handbook, SUP 15.3.32 R.

105 In 2018, the DOJ obtained convictions for fraud against two former traders for their role in manipulating LIBOR. See DOJ Press Release 18-1354, ‘Two Former Deutsche Bank Traders Convicted for Role in Scheme to Manipulate a Critical Global Benchmark Interest Rate’, 17 October 2018. The DOJ also unsuccessfully sought to prosecute under antitrust laws three former traders involved in FX manipulation. See the Financial Times, ‘Bank traders acquitted in forex manipulation trial’, 26 October 2018. Another former FX trader was indicted in May 2018, and will face trial in October 2019. See DOJ Press Release 18-612, ‘Former Currency Trader Indicted for Participating in Antitrust Conspiracy’, 10 May 2018.

106 While the misconduct in question is the same which has given rise to antitrust scrutiny against banks, the SFO has criminally pursued individuals for fraud, rather than under the ‘cartel offence’.

107 See SFO LIBOR case information, available at: https://www.sfo.gov.uk/cases/libor-landing/.

108 See SFO EURIBOR case information, available at: https://www.sfo.gov.uk/cases/libor-landing/.

109 See SFO court calendar, R v Andreas Hauschild, scheduled in the Southwark Crown Court for 10 June 2019.

110 Council Directive 2014/104/EU of 26 November 2014. The Damages Directive has been implemented by all member states.

111 MasterCard indicated in its annual report for 2018 that “alleged damages claims from the U.K. and Pan-European Merchant claimants were in the amount of approximately £3 billion (approximately $4 billion as of December 31, 2018 )”, of which the company “has resolver over £2 billion (approximately $3 billion as of December 31, 2018)”. Significant settlements include resolving claims by Deutsche Bahn, Transport for London, and British Telecom. Visa stated in its quarterly report for Q4/2018 that it had “settled the claims asserted by over 75 Merchants, leaving more than 350 Merchants with outstanding claims”.

112 See appeals in cases A3/2017/3493 Sainsbury’s v Visa; A3/2017/0892 Asda Stores v Mastercard; A3/2017/0890 WM Morrison v Mastercard; A3/2017/0880 Argos v Mastercard; and C3/2016/4520 Sainsbury’s v Mastercard.

113 See UK Supreme Court “Permission to Appeal results – November and December 2018 and January 2019”, available at: https://www.supremecourt.uk/docs/permission-to-appeal-2018-11-2019-01.pdf.

114 Case 1266/7/7/16, Walter Hugh Merricks CBE v Mastercard, judgment of 21 July 2017.

115 Order by Justice Hickinbottom in Case C3/2017/2778 and CO/5003/2017 of 19 January 2018.

116 See Judgment by Lords Patten, Hamblen and Coulson of 16 April 2019 in Case C3/2017/2778, [2019] EWCA Civ 674.

117 See The Guardian, ‘Mastercard ruling: almost every UK adult could receive payout’, 16 April 2019.

118 See Particulars of Claim in Case FL-2017-000002, FDIC v Barclays and others, filed 7 July 2017.

119 See Law360, ‘FDIC Slams European Banks’ Libor-Rigging Defenses in UK’, 4 April 2018. In addition, in November 2018, defendant UBS challenged the claims as being time-barred. See Law360, ‘UBS Says FDIC’s Competition Claim Over Libor Is Too Late’, 14 November 2018.

120 Case CL-2018-000840, Allianz Global Investors GmbH and others v Barclays Bank and others, filed 31 December 2018.

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