BPI to question seizure of emails in ‘banking cartel’ appeal trial

BPI will raise email seizure in the process in which the Competition Authority (AdC) fined 12 banks €225 million, invoking the recent ruling of the Constitutional Court on the Cybercrime Law.

In the preparatory session for the trial of the appeals of the so-called “banking cartel” case, which will start on October 6 in the Competition, Regulation and Supervision Court (TCRS) in Santarém, BPI’s representative invoked the ruling of the Constitutional Court that resulted from the request for preventive monitoring of the Cybercrime Law made by the president.

According to the representative, that ruling has relevant considerations regarding the seizure of electronic mail when speaking about open and closed correspondence, pointing out that it is his understanding that practically all of AdC’s evidence is based on emails.

The remaining representatives asked the TCRS to analyse this issue before the first session of the trial to not practice useless acts with means of production of evidence that result from an illegal seizure.

The preparatory session of the trial was held today at the TCRS, after the local Health delegate approved the increase in the capacity of the room, which has since been adapted to accommodate all the representatives involved in the case, having ruled out the possibility of using a room provided by the Administrative Court of Lisbon.

The process concerns appeals presented by 12 banks (one of which is already out of the process, due to statute of limitations) that were found guilty by the Competition Authority (AdC) for exchanging sensitive information regarding home loans, consumer credit and credit to companies for more than 10 years.

The AdC said this was a concerted practice between competitors (i.e., informal coordination between companies that replaces competition risks by conscious practical cooperation between them).

Caixa Geral de Depósitos (CGD) was fined €82 million, Banco Comercial Português (BCP) €60 million, Santander Totta €35.65 million, BPI €30 million, Caixa Económica Montepio Geral (CEMG) €13 million, Banco Bilbao Vizcaya Argentaria €2.5 million, BES €700. 000, Banco BIC in €500,000 , Deutsche Bank (whose infringement was time-barred in October 2020) and Caixa Central de Crédito Agrícola Mútuo in €350,000 each, Union de Créditos Inmobiliarios in €150,000 and Banif in €1,000 .

Abanca, also targeted in the process, saw the infraction hit the statute of limitations in the administrative phase, for having exceeded the deadline concerning the date on which it ceased such participation, and, in a session held in April, the statute of limitation was also verified concerning Deutsche Bank, which had been sentenced to a fine of €350,000, which occurred in October 2020.

The session on Monday was marked by a discussion of the number of witnesses to be admitted, with the representative of Santander Totta announcing that it will invoke the nullity of the decision of Judge Mariana Gomes Machado to admit a list of 23 witnesses from AdC and limit the list of each defendant to a maximum of 10 or 11.

Mariana Machado ruled that the PCA can call up to three witnesses for each of the defendants and granted each of the banks in question the right to call between 10 and 11 witnesses, including one or two exonerating witnesses, given that the infraction of which they are accused includes three sub-themes, thus increasing the number provided for in the General Regime of Administrative Offences.

At the session, Montepio and Barclays asked CGD to remove from its non-confidential version elements that they consider confidential. These two banks benefited from the leniency regime (waiver and reduction of the fine).

The trial has been scheduled (two to three sessions per week) from 6 October, the date each of the trustees will make its initial statement, until January 21 2022.