Competition Commissioner Mario Monti said: « Today’s decision makes clear that the competition rules are being applied in the financial industry. I am convinced that fair competition on the merits will make European financial markets more efficient. Smooth cross-border trade in securities requires functioning co-operation in clearing and settling of trades. This is in the interest of creating an integrated single capital market that will promote growth.”
“We are aware that a discussion is being held amongst regulators, banks and securities depositories on which regulatory and business models should be adopted in the future. Today’s decision does not favour one particular model, it is not directed against Deutsche Börse’s business model or any other. The Commission will continue to monitor whether all significant providers of securities trading, clearing and settlement services observe the competition rules,” the Commissioner continued.
The Commission’s enquiry into this case identified two types of abuse: refusal to supply and discriminatory pricing.
Refusal to supply. Clearstream refused to supply to Euroclear Bank clearing and settlement services for registered shares[1] issued under German law. While competition law recognises the freedom of companies to freely choose their trading partners, companies in a dominant position have a special responsibility. In the present case, Clearstream’s behaviour qualified as refusal to supply because:
- Clearstream Banking AG is the only final custodian of German securities kept in collective safe custody, which is the only significant form of custody today for securities traded. New entry into this activity is unrealistic for the foreseeable future. Therefore, Clearstream Banking AG is an unavoidable trading partner;
- Euroclear Bank could not duplicate the services that it was requesting; and
- Clearstream’s behaviour had the effect of impairing Euroclear Bank’s ability to provide efficient cross-border clearing and settlement services to clients in the single market.
Euroclear Bank eventually obtained the clearing and settlement services from Clearstream Banking AG in November 2001 - more than two years after it requested those services. During the entire period Clearstream Banking AG denied Eurclear Bank clearing and settlement for services registered shares. The dilatory behaviour of Clearstream vis-à-vis Euroclear Bank contrasts with the usual delay of a maximum four months within which other comparable customers were supplied with clearing and settlement services.
Price discrimination. Between January 1997 and January 2002, Clearstream, for equivalent clearing and settlement services, charged a higher per transaction price to Euroclear Bank than to other securities depositories outside Germany. The Commission examined in detail the content of the services and the costs of providing them in order to establish whether the price difference could be justified and concluded that it was not.
The infringements have ceased
While the infingements have meanwhile come to an end, the Commission adopted today’s decision in order to clarify the legal situation. The decision should provide the necessary clarity to Clearstream and to other companies active in clearing and settlement. The decision comes at a moment when cross-border trade in securities is becoming more important within the EU.
The Commission decided not to impose a fine. Among other factors, the Commission took into account that there is no Community case law or jurisprudence dealing with the competition analysis of clearing and settlement. In addition, there has been a wide-ranging debate on clearing and settlement within different institutions and fora in order to better define the role of the different protagonists in the industry.
Background
Securities clearing and settlement are necessary steps for a securities trade to be completed.
Clearing is the process by which the contractual obligations of the buyer and the seller are established.
Settlement is the transfer of securities from the seller to the buyer and the transfer of funds from the buyer to the seller.
The procedure that led to the adoption of the decision originated in a Commission enquiry aimed at examining if EU competition law is properly applied in the clearing and settlement sector, in particular as regards access and prices.
Clearstream Banking AG is Germany’s only Wertpapiersammelbank (Central Securities Depository[2]). The Commission considered that during the reference period concerned, 1997 through 2001, Clearstream held a dominant position for providing cross-border clearing and settlement services to intermediaries situated in other Member States. The investigation therefore focused on a specific cross-border market and the decision does not set out findings that go beyond that relevant market.
Note to editors
- The European Commission enforces EU competition rules on restrictive business practices and abuses of monopoly power when cross-border trade within the European Union and competition are affected.
- The Commission has the power to force changes in company behaviour and to impose financial penalties for antitrust violations of up to 10% of a company’s annual world-wide turnover.
- Commission decisions can be appealed to the European Court of First Instance in Luxembourg.
[1] The most widely internationally-traded German shares (blue chip shares such as Daimler Chrysler, Siemens, Allianz, Deutsche Post, Deutsche Telekom, Deutsche Bank, Lufthansa and others) are registered shares, as opposed to bearer shares.
[2] Central Securities Depositories hold securities and enable securities transactions to be processed through book entry. In its home country, the Central Securities Depository provides processing services for trades of those securities that it holds in final custody. It can also offer processing services as an intermediary in cross-border clearing and settlement, where the primary deposit of securities is in another country.
