The €225 Million Question: When Does A Standalone Anti-Competitive Information Exchange Amount To A "By Object" Restriction?

Building on existing case law, the Court of Justice of the European Union (CJEU) recently considered the test for when a standalone anti-competitive information exchange will constitute a "by object" infringement of EU competition law, in a case concerning Portuguese banks.

Background

In 2019, the Portuguese competition authority (the Autoridade da Concorrência or AdC) imposed a fine of €225 million on 14 banks for participating in a decade long anti-competitive information exchange in relation to home loans, consumer credit and corporate lending. The banks had exchanged information on a monthly basis via phone calls and emails, in particular regarding (i) current and future credit spreads (i.e. the difference between the banks' own cost of funding and the interest rate applied to relevant products) and risk variables (i.e. factors which influence the spreads applied); and (ii) pastvolumes of the various types of loans that had been granted in the preceding