The Contentious Chamber of the National Court has annulled the fines of 91 million euros imposed by the National Competition Market Commission (CNMC) on four banking entities for agreeing to offer interest rate derivatives under conditions other than those agreed upon. with the clients.
The court considers that it has not been proven that during the entire period investigated from 2006 to 2016 there was a common plan among the sanctioned entities that justifies the legal classification of a single and continuous violation.
The Sixth Section of Litigation has estimated the appeals presented by Banco Santander, BBVA, Sabadell and CaixaBank against the resolutions of February 13, 2018 of the CNMC for which fines of 31.8 million were imposed (CaixaBank), 23 .9 million (Santander), 19.8 million (BBVA) and 15.5 million (Banco Sabadell).
The competition body defended that they agreed to set the price above the prices under market conditions of the derivatives that were used to hedge the interest rate risk associated with syndicated loans for project financing.
The CNMC sanctioned these four entities considering that their actions committed a very serious infraction. Now the ruling recognizes that in some of the operations, such as the contracting with the VAPAT Group carried out between 2010 and 2012, collusive conduct has been proven, while the four banking entities, before making the offer to their clients, agreed on the interest rate on financial derivatives outside the client-investor.
The client, according to the court, believed that the interest rate offered at the time of closing the transaction corresponded to the market price, when in reality the interest rate they offered was the one they had previously set. common agreement, without taking into account market conditions.
Regarding the rest of the operations other than those of the VAPAT Group, the Chamber considers that the syndicated credit operation was associated with the signing of a hedging instrument (generally swap type) with the sanctioned entities at a fixed rate of identical percentage for all entities. , that is, there was prior agreement between them to set that rate.
But in the court's opinion, "it is not demonstrated that this determined a price of the derivative higher than the price under market conditions or, more importantly, that the process of determining the price of the swap was opaque to the client, that it was set at Their backs".
Even assuming as a hypothesis the concertation of the entities to set a fixed rate identical to the market rate
-adds the Chamber in one of its rulings- that does not prove that it was done behind the client's back, since it has not been proven that in these contracts the clients showed any complaint or surprise at having discovered margins or commissions whose amount is unknown, not described. when they formalized the coverage contract.
The Chamber recalls that the concerted action of financial entities to illicitly agree on a supposedly more beneficial price for them “is only illicit, as the appealed resolution itself reasons, if it is carried out with total ignorance of the client and this aspect, key to appreciating the illegality of the “Concertation only occurs in the operations of the VAPAT Group companies but not in the rest.”
For all these reasons, the court points out that in order to appreciate the existence of a single and continuous infringement, it would have been necessary for the CNMC in those other operations other than those of the VAPAT Group companies to analyze the circumstances of the contracting of the derivative in each operation to demonstrate that it was set above the market level price, determining what this was and the illegally imposed margin.
By not having done so, the court rules out that all the derivative contracting operations that appear in the sanctioning resolution are part of the same preconceived plan that could be sustained with respect to the companies of the VAPAT Group, nor that they can be covered under the figure of the infringement. unique and continuous.
For the Court, there is no doubt about the illicit nature of the conduct of the banking entities in the operations carried out with the VAPAT Group, but the legal classification of a single and continuous infringement that gives it coverage is contrary to law due to its extension to the rest of the operations examined. .
