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Antitrust damages action: foreign exchange cartel

Competition damages action: Cartel in the foreign exchange market
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The European cartel in the foreign exchange market

In May 2019, we heard the news of the Decision issued by the European Commission regarding the fine to five financial institutions for participating in a cartel whose clear objective was to alter the currency market (a total of 11 currencies, including the Euro). The sanctioned entities are Barclays, RBS, Citigroup, JPMorgan and MUFG and the fine has amounted to a total of 1.000 million Euros.

As demonstrated by the European Commission’s investigation, several operators employed by the sanctioned financial institutions exchanged sensitive information relating to various transactions such as customer currency bid-ask spreads applicable to specific transaction exchange orders, which led to a decision based on obtaining this information. In addition, this information often allowed some operators to identify opportunities for coordination in “withdrawal” operations.

How can i claim

Any person or company affected by anti-competitive behaviour as described in this case may bring the matter before the courts of the Member States and seek damages. The case law of the Court and Council Regulation 1/2003 both confirm that in cases before national courts, a Commission decision constitutes binding proof that the behaviour took place and was illegal. Even though the Commission has fined the cartel participants concerned, damages may be awarded without being reduced on account of the Commission fine.

The right of damages provided in Union law is enshrined and recognized in Articles 101 and 102 of the Treaty on the Functioning of the European Union, which aim to ensure that competition in the internal market is not distorted.
The full effectiveness of these articles, and in particular the practical effect of the prohibitions laid down therein, require that any person, whether an individual, including consumers and undertakings, or a public authority, may claim before national courts compensation for damage caused by an infringement of these provisions.

To ensure the effectiveness of these actions, we have the Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition laws of the Member States and the EU was published.

At Spanish level this directive has been transposed through Real Decreto 9/2017 of 26 May 2017.

Lawyers specialising in foreign exchange cartels

The European Commission has fined banks Barclays, Citigroup, JPMorgan, RBS and MUFG in excess of €1 billion for demonstrating their involvement in the cooperation and exchange of sensitive currency-related information.

According to the European Commission, this is a clear violation of competition law, and all those affected – such as multi-currency-mortgage debtors – are given a way to claim compensation if during the period 2007-2012 they suffered damage from the exchange of sensitive information such as customer exchange orders, differences between the purchase and sale prices of two currencies in specific transactions and other details of already planned currency exchange operations.

The eleven currencies affected are, in addition to the euro, the US, Canadian, New Zealand and Australian dollars; the British pound; the Japanese yen; the Swiss franc; and the Danish, Swedish and Norwegian kroner.

In Navas & Cusí Abogados we have a department of lawyers specialized in financial, banking and European Union law, which will advise you to assess a possible claim for damages for the concentration of prices in the so-called currency cartel.

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