EMERGING ANTI-COMPETITIVE PRACTICES IN FINANCIAL MARKETS: WHEN INFORMATION SHARING VIOLATES ARTICLE 101 TFEU

by Marco Sepe and Michele Sances

ABSTRACT: With the proliferation of new technologies, novel streams of restricting competition have emerged, evolved and proliferated across all sectors, including the finance sector, thereby seriously challenging traditional definitions and enforcement mechanisms. The European regulatory framework, shaped in the application of Article 101 TFEU, requires thorough upgrading, a process currently being provided for by the continuous efforts being made by the European Commission and jurisprudence. This article intends, therefore, to examine these developments with particular reference to the financial markets and the qualification of exchanges of information between market participants, as restrictive by-object agreements. Two landmark cases are analysed as point of reference: the SSA Bonds (AT.40346) and European Government Bonds (EGB), where the Commission and the General Court of the EU classified the exchange of information using chatrooms, telephone conversations, and broker contacts, as parts of a single and continuous practice of infringement. In both cases examined, communications between competitors regarded prices, trading strategies, market positions, and future intentions, thereby reducing the mandatory degree of strategic uncertainty and replacing competitive rivalry with surreptitious cooperation. The decisions held: (i) the by-object restrictive nature of exchanges of sensitive information; (ii) the possibility of reconstructing a single, continuous course of conduct using fragmented episodes; and (iii) the legitimacy of using economic proxies to determine fines, adapted to the structure of OTC markets. Finally, this contribution provides a critical reflection on the systemic implications of these developments, highlighting how digitalisation can amplify the risks of “conversational cartels”, which compel financial institutions to undertake a profound revision of their internal communications models. The two cases analysed reveal the contribution made to the forging of a renewed interpretative framework for Article 101 TFEU in financial markets, strengthening the protection of competitive integrity in contexts characterised by high informational interdependence.

SUMMARY: 1. Background of Article 101 TFEU – Article 101 TFEU in the Financial Sector – 2.1. The SSA Bonds Case (AT.40346) – 2.2. The Commission’s Qualification of “By Object” and Its Reasoning – 2.3. Judicial Confirmation: EU General Court (6 November 2024) – 3. The EGB Case (T-441/21 and Others): Judgment of the EU General Court of 26 March 2025 – 3.1. The Decisions and Reasoning of the Court – 4. Comparative Reflections: Structural and Interpretative Similarities – 5. Conclusion

1. Background of Article 101 TFEU

It is generally considered that the financial sector is one of the central pillars of economic growth, as it facilitates the flow of capital between surplus and deficit players, thereby promoting the  efficient allocation and distribution of resources.

The financial sector has undergone a profound digital transformation in recent years, leading to the emergence of numerous new players, products, tools, and processes, revolutionising their internal structure and the value chains through which value is created.  This change has forced authorities to update their control and intervention mechanisms to adapt them to the needs of the new environment.

Among other things, new forms of competition-restricting conduct have emerged such  as the collusive arrangements between market partecipants based on advanced technologies, which facilitate increasingly complex and elusive coordination mechanisms, that are difficult to detect with traditional investigative methods.

These agreements test the soundness of the European competition system, which with regard to restrictive agreements, is based on Article 101 TFEU. This provision, with a two-phase structure, in paragraph 1 prohibits “all agreements between enterprises, decisions between associations of enterprises, and concerted practices which, by their object or effect, prevent, restrict, or distort competition within the internal market”, penalising them with nullity (paragraph 2), and introduces (paragraph 3) an exemption regime, applicable when the agreement produces efficiencies that offset the restrictive effects.[1]

This prohibition plays a key role in ensuring the proper functioning of the single market, ensuring that companies compete on the merits and not through collusive behavior. It should be noted that Community law makes a clear distinction between the unilateral behavior of a company (subject to Article 102 on abuse of a dominant position) and the coordination of behavior or collusion between companies (subject to the provision in question).

Its broad wording, however, has given rise to difficulties in interpretation, especially in financial markets, sometimes allowing operators to exploit ambiguities for anti-competitive purposes.

In this context, the Court of Justice of the European Union (CJEU) has played a decisive role in interpreting the scope of the provision, clarifying key concepts such as “enterprise”, “agreement”, and especially the distinction between restrictions “by object” and “by effect”, which is the core of analysis in the field of competition.

With regard to the concept of an enterprise, the CJEU has adopted a broad and functional definition, defining it as any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Höfner judgment, C 41/90). This definition allows a variety of entities to be included within the scope of Article 101 TFEU, including public entities when they operate on the market. Similarly, the Court has progressively broadened the definition of “cartel”, which includes agreements, decisions by associations, and concerted practices), extending it to subtle forms of coordination.

Specifically, the Court has defined a concerted practice as a form of coordination that, while not resulting in a formal agreement, reduces competitive uncertainty (Dyestuffs 48/69); it has also clarified that it is not necessary to rigidly distinguish between an agreement and a concerted practice: what matters is the existence of coordination (Anic C-49/92 P). Finally, it has affirmed that even a single contact can constitute a concerted practice if it is capable of reducing uncertainty about the future behavior of enterprises (T-Mobile C-8/08).

The Court’s role in identifying the criteria distinguishing between restrictions “by object” and restrictions “by effect” has also been crucial, given that this distinction is not merely terminological, but substantive, as it affects the standard and intensity of proof required of the authorities to establish an infringement. In its ruling in Société Technique Minière v. Maschinenbau Ulm (June 30, 1996, C 56-65), the Court of Justice held that object and effect have different meanings and must therefore be interpreted separately.

Restrictions of competition by object are those that by their very nature can restrict competition. These are restrictions that, in light of the objectives of the Community competition rules, have such a high potential to produce negative effects on competition that it is unnecessary, for the purposes of applying Article 101TFEU, to demonstrate the existence of specific effects on the market.[2]

When an agreement is considered restrictive by object, it is not necessary to demonstrate actual, concrete, or measurable harm to market competition, since its intrinsically harmful nature and infringement of the rule are presumed.[3]

The Court of Justice of the European Union (CJEU) has repeatedly emphasized in this regard that the category of restrictions by object must be interpreted restrictively. A “restriction” can only be classified as “by object” when it presents a sufficient degree of harm to competition, given the content of its provisions, the objectives it seeks to achieve, and the economic and legal context in which it occurs. In assessing this context, it is also necessary to take into account the nature of the goods or services involved and the actual conditions of the functioning and structure of the market or markets in question (Groupement des Cartes Bancaires C 67/13 P).

Proof of the parties’ subjective intention to restrict competition, while an important factor, is not a necessary condition. Indeed, it is not necessary to investigate the subjective element of an agreement if, in itself, it entails a sufficient degree of harm to competition, which must be assessed in light of the context of the agreement itself.

In this regard, the Court of Justice—emphasising that the key legal criterion for considering coordination between enterprises as restrictive by object is determining whether “the finding that such coordination in itself reveals a sufficient degree of harm to competition”—has held that the term “by object” in Article 101 TFEU must refer to the objective meaning and purpose of the agreement in its economic context, rather than to the subjective intention of the parties, thus negating the need to investigate the subjective element and demonstrate that the parties themselves intended to limit competition when the agreement was concluded.

Commonly recognized examples of “restrictions by object” include agreements relating to price fixing, market sharing, output limitations, and the exchange of sensitive information in specific contexts. Such restrictions lead to reductions in production and price increases, resulting in a misallocation of resources, as the goods and services demanded by consumers are not produced. More generally, they also lead to a reduction in consumer welfare, as consumers must pay a higher price for the goods and services in question.

Non-exhaustive guidance on what are considered restrictions by object is provided in the block exemption regulations, guidelines, and Commission Communications. The Court of Justice of the European Union has also clarified that the “de minimis” threshold does not apply to restrictions by object: their intrinsic severity renders the market share of the companies involved irrelevant (Expedia ruling C-226/11).

The Court has also established that the concept of restriction by object must be interpreted in the strictest sense and that “the concept of restriction of competition ‘by object’ can only be applied to certain types of coordination between enterprises that reveal a sufficient degree of harm to competition for it to be considered that is not necessary to assess their effects; otherwise, the Commission would be exempt from the obligation to prove the actual effects on the market of agreements that do not, by their very nature, harm the proper functioning of normal competition” (Groupement des Cartes Bancaires C 67/13 P).

The CJEU therefore tends to favor the analysis of effects (rule of reason) over the presumption of unlawfulness, reserving the label “by object” only for the most serious and obvious infringements (so-called hardcore restrictions).

If an agreement is not restrictive of competition by object, it must be examined whether it nevertheless has restrictive effects on competition. In this regard, it is necessary to conduct a factual analysis of the impact on competition, considering the economic and legal context, the nature of the goods or services involved, and the structure and functioning of the market in question, taking into account both actual and potential effects (John Deere case C-7/95).

In other words, it must be plausible that the agreement will produce anticompetitive effects, without any presumption of anticompetitive effects being applicable. For an agreement to be restrictive by effect, it must therefore affect actual or potential competition to such an extent that, with reasonable probability, negative effects on prices, production, innovation, or the variety or quality of goods and services offered on the relevant market can be expected.

Such effects must be appreciable, since the prohibition does not apply when the anti-competitive effects are negligible (Communication 2004/C 101/08 para. 24).

A few years before the 2014 ruling (Groupement des Cartes Bancaires C 67/13 P), Advocate General Kokott, in her Opinion in the T-Mobile case (2009), examining the reasons why Article 101(1) TFEU distinguishes between restrictions by object and restrictions by effect, also highlighted some considerations of procedural economy and legal certainty, stating that classifying certain agreements as restrictive by object, “recognized as harmful to society, creates legal certainty and allows all market operators to adjust their conduct accordingly. Furthermore, it allows for the prudent conservation of the resources of competition authorities and the judicial system.”

The fact that certain practices, such as horizontal price fixing, are recognized as harmful per se exempts competition authorities from the obligation to prove specific economic harm. Furthermore, the existence of restrictions by object creates legal certainty and allows operators to adjust their conduct. It is added that, while the concept should not be interpreted excessively broadly, it should not be applied so restrictively as to be ineffective in practice.

2. Article 101 TFEU in the financial sector

Article 101 TFEU applies equally to the financial sector, including over-the-counter (OTC) markets. These markets are characterised by bilateral trading structures, significant informational complexity, and continuous flows of data, all of which influence the way in which potentially anti-competitive practices are identified and defined.

This creates interpretative challenges, which require acknowledgment of the fact that trading desks operate within high-speed environments, marked by widespread diffusion and availability of information, and technical complexity, where operators may justify exchanges of information on the grounds of risk management, market creation, transparency or stability.

However, despite the operational needs of the sector and the specificities of its context, both the case law and the action of the European Commission have made clear that even in environments of this kind it is unlawful for competing actors to exchange, systematically, commercially sensitive information — such as prices, future strategies, market positions or customer data — nor to coordinate their commercial conduct.

In some cases, the systematic exchange of information conflicts with the competitive process and actually replaces it with covert forms of cooperation capable of reducing strategic uncertainty, which, instead, is central to a genuinely competitive market. This issue has been addressed in two recent landmark cases: SSA Bonds (AT.40346) and EGB (European Government Bonds). These two judgments represent paradigmatic examples of how the systematic exchange of commercially sensitive information cannot be justified in any way, but, rather, that it constitutes an agreement restrictive by object. In both instances, the Commission and the EU Courts found that the exchange of real time information regarding prices and trading strategies using chatrooms and telephone communications.

2.1 The SSA Bonds Case (AT.40346)

In order to understand the approach adopted by the European authorities to classify an exchange of information as unlawful — and, in particular, as restrictive of competition by object — it is useful to examine the AT.40346 – SSA Bonds ruling.

The case is part of a broader line of enforcement action by the European Commission regarding the financial instruments sector, launched in the years following the 2008 financial crisis and aimed at suppressing collusive conduct in over-the-counter bond markets.

Specifically speaking, in 2018 the Commission opened an investigation into four banking institutions — Deutsche Bank, Bank of America, Crédit Agricole, and Credit Suisse — alleging that they had been part of a concerted practice capable of undermining the workings of free competition within the secondary SSA bonds market.

According to the European authority, the four banks had coordinated their trading and pricing strategies by means of an exchange of sensitive information relating to their current and future activities — in particular, their bid and ask prices, trading positions, strategies, and client behaviour.

The investigation, which ended in 2021, resulted in the imposition of pecuniary sanctions upon three of the four institutions involved (the fourth, the Deutsche Bank, had been granted immunity for cooperating with the investigation). However, the most intellectually interesting aspect of the case lies not in its outcome but in the logic developed by the Commission and subsequently sustained by the European Court.

The case concerned the specific category of SSA bonds denominated in US dollars.

SSA bonds constitute an umbrella category that encompasses various types of securities traded by dealers working in dedicated, separate trading units — the so called SSA desks[4]. These desks respond to institutional investors’ requests for quotations by formulating bid/ask spreads, while market makers act as providers of liquidity. The brokers, in turn, operate as intermediaries in multilateral exchanges between banks, facilitating the matching of supply and demand and contributing to the coordination of transactions.

In this case, following thorough investigations, the Commission established the link between Deutsche Bank, Credit Suisse, Crédit Agricole, the Bank of America Corporation, and Merrill Lynch International — banking institutions active in the secondary market for supra sovereign, sovereign, and agency securities denominated in US dollars (USD SSA bonds).

According to the European authority, operators of the banks in question maintained persistent chats (with always-on connections), communicated via messaging, telephone, or intermediary brokers, and exchanged information regarding current and prospective positions (axes, flow, long/short positions), asking prices, on-going intentions to buy or sell, tactical strategies, client lists, and so forth.

These exchanges were not limited to “general chit-chat,” but developed, instead, into systematic sharing of various kinds of sensitive information and the coordination of quotation and trading strategies[5].

These exchanges of information occurred within a broader context marked by limited transparency and strong interdependence among operators—an element that, in the assessments of both the Commission and, later, the European Court, reinforced the idea that this type of conduct was capable of distorting competitive dynamics and, consequently, competition in the financial market.

While assessing the issue, the Commission examined the structure and competitive dynamics of the secondary market for USD-denominated SSA bonds—a market where trading does not take place within a regulated trading milieu, but, rather, via bilateral transactions or specialised brokers. The very nature of this market attributes a central role to dealers when it comes to the processes of price discovery and the formation of liquidity, because they constitute the informational hub around which price expectations are forged and, in actual fact, determine access to the market itself.

Consequently, the systematic exchange of sensitive information—such as expected prices, the position of portfolios, or trading strategies—is capable of reducing strategic uncertainty among competitors, thereby distorting normal competitive mechanisms.

Given the nature of the information exchanged, as well as the manner and timing of similar exchanges, the Commission concluded that the conduct of the banking institutions involved in the case constituted a restrictive agreement by object, in violation of Article 101(1) TFEU, and was therefore anticompetitive by its very nature, regardless of the effects produced.

In the normal functioning of the market, the SSA desks of major banks respond to requests for quotes made by institutional clients, by providing bid/ask spreads, while market makers act as providers of liquidity. At the same time, brokers operate as intermediaries in multilateral exchanges between different institutions, facilitating the matching of supply and demand and contributing to the circulation of market information.

By contrast, through persistent (“always-on”) chats, ongoing contact via messaging, telephone, or brokers, and the systematic sharing of sensitive information—such as current or prospective positions (axes, flow, long/short positions), requested or expected prices, intentions to buy or sell, tactical strategies and client lists—the traders of  the major institutions indicted disrupted the proper functioning of the market, and in particular, distorted competition[6].

These exchanges were not merely occasional communications, but represented a steady, continuous channel of the coordination of information between competitors—capable of replacing the inherent risk of competition with forms of covert anti-competitive cooperation.

The occurrence of repeated patterns, temporal synchronisation, correlation between messages and actual transactions, and cross-references to market content (such as indicative prices and screen quotes) visible even to third parties was considered by the Commission to be effective coordination of strategies, rather than innocuous cooperation. Therefore, it constituted a single course of conduct belonging to a general agreement to restrict competition.

2.2 The Commission’s qualification of “by object” and its reasoning

The Commission classified the conduct of this kind on the whole as a restriction by object. Based on the well-established definition of a restriction like this, it sustained that it was not necessary to provide indisputable proof of harm. In the words of the Court of Justice in Case C-591/16 P, Lundbeck v Commission (paragraph 156) — and as reiterated by the Commission in its decision — it was sufficient that the characteristics were “so likely to have negative effects on competition that it is not necessary to demonstrate that they had such effects in the particular case at hand”.[7]

The heart of the Commission’s reasoning is that, in this type of market, concerted cooperation regarding prices or strategies reduces, inherently and directly, competitive tension, making proof of concrete effects unnecessary. Moreover, since the market is structurally sensitive (with moving spreads, rapid information flows, and dependence on internal signals), the mere disclosure of sensitive information among competitors constitutes sufficient risk that the behaviour be deemed illicit by object.[8] 

As to the element of unity, the Commission availed itself of a chronological reconstruction to demonstrate that the traders had interacted daily, that messages had been exchanged at recurring times, and that the overall set of practices formed a coherent system aligned with anti-competitive objectives. The frequency, methods, and operational correlation all served to indicate that each individual action was by no means isolated from all the others but, rather, was part of a single, commonly shared plan.

Finally, the Commission concluded by developing a proxy for the value of sales, based on the notional amounts traded, adjusted by representative spreads—since, in the OTC market, the traditional concept of “sales” does not apply when seeking to determine sanctions[9].

• Judicial confirmation: EU General Court (the 6th of November 2024)

The Commission’s decision, appealed by the institutions sanctioned, came before the General Court of the European Union and was decided by judgment on the 6th of November 2024 (Cases T 386/21 and T 406/21). This ruling confirmed the European Commission’s findings, while introducing some interesting clarifications of a systematic and evidentiary nature.

The General Court first held that presumption of knowledge also applied to individuals who, although having access to the permanent chats, did not always participate actively in the conversations.

Analysing the context in which the exchanges of information occurred, the judges stated that, in the presence of real-time communications accessible to a trader, it was legitimate to presume that traders were aware of the content of the messages, regardless of their actual intervention or explicit reactions.

The burden of proof to demonstrate that a trader was not aware of a message lay with the enterprise. In the words of the Court: “That could only have been the case if […] (the bank) had demonstrated, by means of evidence that was certain and precisely time-stamped, that its trader had in fact not been aware of the offending message(s).”[10]  This presumption—not absolute, but functional—render the mechanisms of compliance or internal control more stringent.

Moreover, in rejecting the arguments claiming the absence of a restriction by object on the basis of alleged informational asymmetries or potential positive side effects, the Court reaffirmed that the assessment must be based on the objective characteristics of the agreement, not on the subjective position of the undertakings involved[11]. 

From this perspective, the judge confirmed that the establishment of the “object” of an anticompetitive agreement does not require verification of its actual effects — it is sufficient that, by its very nature, the agreement be capable of harming the normal workings of competition.

Further, in examining the unity and continuity of the conduct carried out by the traders involved, the judge observed that the various means of communication — chats, telephone conversations, and interaction through brokers —constituted, nonetheless, elements of a single anticompetitive plan, reflecting a common, coordinated strategy. The fact that interaction was less frequent during certain periods did not suffice to break the unity of the conduct, provided that evidence still showed the existence of a shared, persistent plan aimed at distorting the normal course of competition[12]. 

Finally, it confirms the determination of the sanctioning treatment by accepting the methodology, including the weighting criteria with representative spreads, recognising the need to adapt the calculation to the OTC context and the limits of traditional “sales.” It therefore rejects the main appeals, leaving intact the Commission’s reasoning regarding the substance of the infringement.

3. The EGB case (T-441/21 and others): judgment of the EU General Court of 26 March 2025

Another fundamental step in identifying restrictive agreements through the exchange of commercially sensitive information is the European Government Bonds (EGB) case.

It stems from Commission Decision C (2021) 3489[13], by which the Commission found a violation of Article 101(1) TFEU on the Eurozone government bond market. The Commission imposed fines upon seven banks — UBS, Natixis, UniCredit, Nomura, Bank of America, NatWest, and Portigon — for taking part in concerted practices involving the exchange of sensitive information and the coordination of trading strategies.

The banks lodged appeals before the General Court of the European Union, alleging legislative errors and insufficient logic, contesting, in particular, the characterisation of the agreement as a restriction by object, the unified reconstruction of the conduct, and the existence of sufficient evidence underpinning the infringement.

The Commission found that traders from these banks participated in a cartel operating through exchanges of information in chatrooms (notably the “CODS” and “CHIPS” chats), as well as by means of telephone conversations and interaction mediated by brokers, aimed at coordinating their respective buying and selling strategies on the secondary markets. This indirect coordination also influenced the conditions of the primary market handling government bond auctions, thereby mutually reinforcing their collusive conduct. This meant that the traders had collaborated through exchanges of commercially sensitive information to gain competitive advantages in the issuance, placement, or trading of securities, with a consequent impact on the entire market of the European Economic Area.

According to the European authority — as in Decision AT.40346 —conduct of this kind constituted a single and continuous infringement of a restrictive agreement by object, since, by its very nature, it was capable of distorting normal competitive dynamics.

Following a similar approach to that adopted in Decision AT.40346, the Commission concluded by applying a sanctioning methodology based on proxies derived from notional amounts and bid-ask spreads, considered appropriate parameters for reflecting both the economic scale of the transactions and the intensity of the collusive behaviour, which was aggravated further by having occurred during the sovereign-debt crisis.

3.1.  The decisions and reasoning of the Court

The decision, appealed by the banking institutions, was brought before the General Court of the European Union (Extended Fifth Chamber), which, in its judgment of  the 26th of March 2025, ruled on the matter by confirming the findings of the European Commission, while placing particular emphasis on the existence of a single course of conduct and a single infringement arising from multiple instances of behaviour, even those separated in time.

In its judgment, the Court rejected the applicants’ argument that the Commission should have treated the behaviour of the banks as several separate infringements, reaffirming that “there is no doubt that, in the contested decision, the Commission criticises the banks concerned for their participation in only one single and continuous infringement, and that any other interpretation results from a misreading of the contested decision”[14].

From this perspective, the Court notes that the chats and exchanges of information identified during the investigation do not constitute isolated or independent episodes, but rather instrumental and interconnected elements of a single collusive scheme aimed at coordinating the participants’ strategies and distorting competition within the government bond market.

Furthermore, the Court highlights that the 380 discussions examined, present an overall anti-competitive purpose, since, when considered as a whole, they reveal a common and restrictive intent toward competition[15]. In its qualification, the Court adopts a unified, overall approach, stating that it is not necessary for each individual conversation or category of information exchange to meet the threshold of seriousness required to constitute a restriction by object independently. The analysis of the “object” needs, in fact, to be conducted in a systemic manner, assessing the set of practices, their mutual interaction, and the whole of the economic and legal context in which they occur.

It follows that individual discussions or exchanges, which, if examined in isolation, might not constitute a restriction by object, acquire, nevertheless, an anti-competitive qualification when assessed collectively. This approach makes it possible to emphasise the internal coherence and overall purpose of the conduct, highlighting their combined capacity to distort normal competitive dynamics within the relevant market.

Indeed, in relation to the exchange of information, the Court points out that the transfer of information was often aimed at sharing commercially sensitive data, such as the timing of pricing policies, intentions to buy or sell, and lists of potential transactions. This behaviour had the effect of significantly reducing the degree of uncertainty, thereby facilitating strategic alignment and an easier coordination of the parties’ respective market conduct, to the detriment of competition.

From this perspective, the exchange of information does not assume a merely accessory or neutral character, but constitutes a central element of the collusive mechanism designed to secure an undue competitive advantage and undermine the normal functioning of the market[16]. This interpretation is totally coherent with the logic of an overall anti-competitive objective, as it confirms the unified purpose of the conduct under examination and its capacity to restrict competition on the whole.

Finally, the Court addresses the interrelations between multiple chatrooms and the validation of the sanctioning proxy.

Starting from the conversations conducted in parallel or simultaneously in the CODS and CHIPS chats by the traders, the Court states that the documentary evidence shows that the operators used both platforms to discuss similar matters—such as the dynamics of a French auction—leading to overlapping content, cross and mutual references. This integrated communications network reveals the existence of a constant and coordinated flow of information, not limited to isolated interactions but forming part of a consistent and continuous collusive scheme.

This finding strengthens the notion of an overall anti-competitive objective further by demonstrating the concerted intention of the banks involved to maintain stable and systematic coordination across the different channels of communication[17].

With regard to the methodological issue concerning the validation of the sanctioning proxy, the Court finds that the parameter adopted by the Commission in calculating the fine is correct.

The use of a composite indicator based on the combination of notional amounts and bid ask spreads is confirmed as legitimate, being considered appropriate to the specific context of the financial market and methodologically suitable to reflect the seriousness and the economic scope of the conduct. The weightings and daily calculations used by the Commission are deemed consistent and proportionate, ensuring a balanced assessment of the impact of the agreement on the market.

The Court’s approval of this methodology therefore contributes to consolidating the overall legitimacy of the sanctioning process and to strengthening the coherence of the reasoning underlying the decision.

4. Comparative reflections: structural and interpretative similarities

It is now necessary to proceed with a comparative analysis of the two rulings, which reveal a new yet coherent conceptual framework concerning restrictive agreements in the financial sector.

Both decisions adopt an increasingly stringent interpretation of informational-coordination practices among economic operators, emphasising the preventive function of antitrust law and the need to ensure the integrity of financial markets—particularly those operating over the counter (OTC).

First, both decisions reaffirm the principle that the coordination of sensitive information among competitors may constitute a by object agreement even in the absence of concrete evidence of actual harm to competition, since such exchanges are, by their very nature, capable of undermining the independent decision making autonomy of undertakings (EGB judgment).

Secondly, both rulings consolidate the view that chats, telephone calls, communications with brokers, and other forms of informational interaction may constitute elements of a unified and continuous plan designed to implement a coherent and structured collusive strategy.

Thirdly, they establish that the methodological approach to be adopted in such cases must be a global one—namely, an assessment of all conduct taken as a whole. Thus, individual discussions or exchanges which, if considered in isolation, might not fall within the area of the prohibition of restrictive agreements, may, when assessed collectively, amount to a restriction by object.

With regard to sanctions, both judgments confirm the legitimacy of using economic “proxy” indicators instead of traditional sales values for the purpose of calculating fines, provided that the methodology employed is proportionate, adequately reasoned, and capable of reliably reflecting the economic scale of the infringement.

Finally, both decisions stress the need that the analysis of the object of an agreement be based on the objective characteristics of the conduct rather than on any potential economic benefits or the subjective intentions of the enterprises involved. This reaffirms the conceptual autonomy of a by object restriction from its actual effects on the market, thereby strengthening a systematic approach aimed at preserving competition through the sanctioning of conduct that is intrinsically detrimental to its structure.

5. Conclusion

The judicial decisions  examined above show that the exchange of sensitive information among competitors — even when it takes place through chatrooms, telephone conversations, or by indirect forms of communication, even when the various interactions occur at considerable temporal distance between them— may, in the light of a comprehensive and systemic assessment, amount to a single and continuous course of conduct contrary to Article 101(1) TFEU, and thus qualify as a restriction by object. This conclusion requires a critical reflection on practices of communication within financial markets, where speed, information flows, and technological tools constitute essential competitive factors, crucial both for innovation and for the broader growth of the economic system, as well as for maintaining market competitiveness.

Indeed, it is not the use of technological instruments per se that is censured by the General Court, but rather the abuse that arises when communication is transformed into a genuine “conversational cartel” aimed at coordinating prices or market strategies. This is not an issue that lends itself to any easy solution, given the difficulty of monitoring chats and digital channels and, taking into account that the prevention of conduct of this kind requires a profound transformation of internal communication patterns. Yet this shift—although time-consuming and potentially capable of slowing down the speed of exchanges of information—could strengthen market transparency and competitiveness.

From a broader perspective, this “temporal penalty” may ultimately prove functional to ensuring a higher level of competitive fairness and overall efficiency, while also generating benefits for financial markets, which currently  represent a driving force of the global economy.

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[1] See also the consolidated version of Council Regulation No. 19/65 and Commission Communication (EU) 2004/C 101/08)

[2] In particular Court of Justice of the European Union (CJEU) pointed out, there is no need to establish effects where the agreement reveals that “a sufficient degree of harm  to competition for it to be considered that it is not necessary to assess its effects” (2020, April 2). Judgment of the Court (Fifth Chamber), Case C-228/18, Gazdasági Versenyhivatal v Budapest Bank Nyrt. & Ors. [ECLI:EU:C:2020:265, para. 37].

[3] On this pointsee G. Bruzzone, ‘Restrictions by object in the case law of the Court of Justice: in search of a systematic approach’, V Antitrust Conference Trento, 17.04.2015.

[4] These are specialised and separate trading desks where SSA bonds are traded over the counter (“OTC”), without any central stock exchange. The following instruments are traded on SSA desks: (a) supranational bonds; (b) foreign sovereign bonds; and (c) agency or sub-sovereign bonds. See European Commission. (2021). Commission Decision of 28 April 2021 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (AT.40346 – SSA Bonds). C(2021) 2871 final, recital 55.

[5] Ivi recital 669.

[6] Ivi recitals 667-672.

[7] Ivi recital 738.

[8] Ivi recitals 739-742.

[9] Ivi recitals 868-876.

[10] General Court of the European Union. (2024). Crédit Agricole SA and Others v. European Commission (Joined Cases T-386/21 and T-406/21), para. 132.

[11] Ivi, paras 183 et seq..

[12] Ivi paras 418-433.

[13] European Commission. (2021). Commission Decision C(2021) 3489 final of 20 May 2021 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.40324 – European Government Bonds). Brussels.

[14] General Court of the European Union. (2025, March 26). UBS Group AG & Others v European Commission, Case T-441/21 et al., ECLI:EU:T:2025:337; CELEX 62021TJ0441 para. 88.

[15] Ivi paras. 93-94.

[16] Ivi paras. 432-434.

[17] Ivi paras. 1062-1069.

Authors:

Although the paper is the result of a shared reflection, section 1 is attributed to Marco Sepe and sections 2, 3 e 4 to Michele Sances.

Marco Sepe is Full Professor in Economic Law, Unitelma Sapienza University, Rome.

Michele Sances is Ph.D. Candidate in Law and Economics of the Digital Society, Uninettuno University of Rome.