Contents
Judgment of the General Court (Tenth Chamber, Extended Composition)20 December 2023note(Competition — Agreements, decisions and concerted practices — Euro Interest Rate Derivatives sector — Decision establishing an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Manipulation of the Euribor Interbank Benchmark Rates — Exchange of confidential information — Restriction of competition by object — Single and continuous infringement — Hybrid procedure staggered over time — Presumption of innocence — Impartiality — Fines — Basic amount — Value of sales — Article 23(2) and (3) of Regulation (EC) No 1/2003 — Obligation to state reasons — Amending decision supplementing the statement of reasons — Equal treatment — Unlimited jurisdiction)In Case T‑113/17,Crédit agricole SA, established in Montrouge (France),Crédit agricole Corporate and Investment Bank, established in Montrouge,represented by J.-P. Tran Thiet, M. Powell and J. Jourdan, lawyers,vEuropean Commission, represented by M. Farley and T. Baumé, acting as Agents, and by N. Coutrelis, lawyer,THE GENERAL COURT (Tenth Chamber, Extended Composition),composed, at the time of the deliberations, of S. Papasavvas, President, A. Kornezov, E. Buttigieg (Rapporteur), K. Kowalik-Bańczyk and G. Hesse, Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure, in particular:– the decisions of 8 June 2019 and 30 March 2021 to stay the proceedings in accordance with Article 69(d) of the Rules of Procedure of the General Court;– the statement of modification lodged by the applicants at the Court Registry on 8 September 2021 and the Commission’s observations on that statement lodged at the Court Registry on 19 November 2021,further to the hearing on 17 March 2022,having regard to the judgment of 12 January 2023, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2023:11), and the observations of the parties on that judgment,gives the following
JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.
1By their action under Article 263 TFEU, the applicants, Crédit agricole SA and Crédit agricole Corporate and Investment Bank (‘CACIB’) (together, ‘Crédit agricole’), seek, first, the annulment in part of Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39914 – Euro Interest Rate Derivatives (EIRD)) (‘the contested decision’) and, second, in the alternative, the reduction of the fine imposed on them in that decision. Furthermore, they seek the annulment of Commission Decision C(2021) 4610 final of 28 June 2021 amending the contested decision (‘the amending decision’) or, failing that, a declaration that the latter decision could not remedy the inadequate statement of reasons of the contested decision.
I.Background to the dispute…
A.Events subsequent to the bringing of the present action
21By judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675), the General Court annulled Article 2(b) of the contested decision, by which the Commission had imposed a fine on HSBC, on the grounds that the Commission had failed to state reasons to the requisite legal standard as to why the uniform discount factor applied to the cash receipts of the undertakings concerned for the purpose of calculating the fines imposed on them (‘the discount factor’) had been set at 98.849% rather than at a higher level, and dismissed the action as to the remainder.
22By letter of 24 February 2021, the Commission informed the applicants and JP Morgan of its intention to amend the contested decision in the light of the judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675). By the same letter, and by letter of 16 April 2021, the Commission provided to all the addressees of the contested decision further information and explanations on why the level of the discount factor was set at 98.849%. The applicants submitted their observations on those letters on 7 May 2021.
23On 28 June 2021, the Commission adopted the amending decision. It took the view that, since the discount factor in the contested decision was the same for all its addressees, it was likely that the General Court would consider the reasoning in the judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675), concerning the inadequacy of the statement of reasons for the determination of that discount factor, to be transposable to the fines imposed on the applicants and on the other addressee of the decision, and that it was therefore in line with the principle of sound administration to correct the errors identified by the General Court in that judgment and amend the contested decision with respect to the applicants and the other addressee by supplementing the reasons stated for the determination of the discount factor.
24By judgment of 12 January 2023, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2023:11), first, the Court of Justice set aside the judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675), in so far as the General Court had rejected the primary claim for annulment of Article 1 of the contested decision and the claim in the alternative for annulment of Article 1(b) of that decision. Second, the Court of Justice dismissed the action brought by HSBC in Case T‑105/17, in so far as it sought the annulment of Article 1 of the contested decision and, in the alternative, Article 1(b) of that decision.
II.Forms of order sought
25The applicants claim that the General Court should:– principally, annul Article 1(a) and Article 2(a) of the contested decision;– in the alternative, exercising its unlimited jurisdiction, significantly reduce the amount of the fine imposed on them by Article 2(a) of the contested decision;– additionally, annul the decisions of the hearing officer of 2 October 2014, of 4 and 27 March, of 29 July 2015 and of 16 September 2016 and, as a result, annul Article 1(a) and Article 2(a) of the contested decision;– annul the amending decision or, failing that, hold that it could not remedy the inadequate statement of reasons of the contested decision, and annul Article 2(a) of the contested decision, as amended;– order the Commission to pay the costs.…
III.Law…
A.The claim for annulment of Article 1(a) and Article 2(a) of the contested decision, in so far as that claim is based on the infringement of the rights of the defence due to the refusal of access to the file…
1.The administrative procedure leading to the adoption of the contested decision (first and second pleas of the application and third part of the ninth plea of the application)…
(b)The first plea of the application, alleging infringement of the right of access to the courts, the principle of good administration, the rights of the defence and the adversarial principle…
(2)The refusal to answer the questions put by the applicants at the hearing
52In the second complaint of the first plea, the applicants submit that the Commission failed to observe their rights of defence and the adversarial principle by refusing to answer certain questions which they had addressed to it at the hearing.…
57Lastly, it should also be recalled that the purpose of the hearing conducted by the hearing officer – which is one of the guarantees under the right to be heard in the administrative procedure implemented by the Commission pursuant to Article 101 TFEU – is to give the addressees of the statement of objections the opportunity to develop their views as to the preliminary findings of the Commission, as is apparent, in essence, from Article 12 of Regulation No 773/2004 and Article 10(4) of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29). Admittedly, under Article 14(7) of Regulation No 773/2004 and Article 12(3) of Decision 2011/695, the hearing officer may allow the parties to whom a statement of objections has been addressed, among others, to ask questions during the hearing. However, that is optional, since the main objective of the hearing is to give the opportunity, to the addressees of the statement of objections, among others, to develop their arguments, as noted, in the present case, by the hearing officer during the Crédit agricole hearing.
58Furthermore, it is important to note that the questions at issue, addressed to the Commission by the applicants, concerned the alleged contradictions in the methods of calculating the proposed penalty.
59In that regard, the Commission correctly refers to the fact that the adversarial principle and respect for the rights of the defence do not require it to provide, at the stage of the administrative procedure, details on how it intends to implement the criteria relating to the gravity and duration of the infringement in determining the amount of fines.
60It follows that, while the addressee of the statement of objections may put forward, in particular at the hearing, all the arguments that it considers relevant in order to draw the Commission’s attention to the existence of certain contradictions in the responses of the other parties to the requests for information, which could influence the Commission’s decision concerning it, or suggest that the Commission continue its investigation to ensure that it receives equal treatment, the guarantee of respect for the rights of the defence does not require the Commission to respond, at the hearing stage, to such arguments or questions from the parties.…
(c)Failure to observe the rights of the defence on account of the refusal to grant access to the file (fourth part of the second plea and third part of the ninth plea of the application)…
(2)The request for access to documents relating to the value of sales
171It should be noted that, following Crédit agricole’s request to access the data relating to the value of sales submitted to the Commission by the other parties and the methods they used to produce them, the hearing officer, in his decision of 2 October 2014, put in place a mixed-access system by granting the applicants direct access to certain data and giving their external counsel the possibility of consulting the confidential versions of the documents concerned in accordance with the data room procedure (recital 101 of the contested decision). Another data room was set up after the Commission adopted the amending decision in respect of Société générale, taking into account the corrected financial data submitted by the latter (recital 106 of the contested decision). In addition, the hearing officer granted the applicants more extensive direct access to certain data requested by the latter in his decisions of 4 March 2015 and in his intervention of 25 March 2015, as set out in his decision of 27 March 2015.
172In the fourth part of the second plea in law and the third part of the ninth plea in law, the applicants allege that, by restricting their access to the documents in question by means of the data room procedure and by refusing direct access to the information as a whole, which could no longer be described as sensitive, the Commission infringed their rights of defence.
173First of all, it is necessary to reject the complaint by which the applicants contest the access to the file by means of the data room procedure.
174In that regard, it should be recalled that, in accordance with the principle of the protection of business secrets, which is a general principle of EU law, to which concrete expression is given inter alia in Article 339 TFEU, the Commission is required not to disclose to the competitors of a private operator confidential information which that operator has provided (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 109 and the case-law cited). As for the right of access to the file in a competition investigation, it is clear from Article 15(2) of Regulation No 773/2004 that this does not extend to business secrets and other confidential information. However, in certain circumstances, the need to safeguard the rights of defence of the parties must be reconciled with the Commission’s duty to protect the confidential information of other parties contained in the file, as is apparent, in essence, from the third sentence of Article 27(2) of Regulation No 1/2003 and Article 15(3) of Regulation No 773/2004 (see also, to that effect, paragraph 24 of the Commission Notice on the rules for access to the Commission file).
175It follows that, in circumstances such as those of the present case, the data room procedure was an appropriate tool to reconcile the legitimate interests that the Commission was required to protect, namely, on the one hand, the right to confidentiality of the banks that provided the information to which access had been requested by the applicants, and on the other hand, the applicants’ rights of defence, as noted, in essence, by the hearing officer in his decisions of 2 October 2014 and 16 September 2016.
176Nevertheless, the applicants dispute that the information at issue should still be covered by legal professional privilege in view of its age and limited nature, which does not allow any confidential information, such as customers’ names, to be identified. They thus consider that that information could have been disclosed directly to Crédit agricole, which, unlike the access granted only to external counsel in the data room, would have ensured the effective exercise of the rights of the defence.
177First, it is clear from the case-law relied on in that regard by the applicants that information which was secret or confidential, but which is at least five years old, must, as a rule, on account of the passage of time be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or of that of interested third parties (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 64).
178In his decision of 16 September 2016, the hearing officer took into account a similar argument put forward by Crédit agricole during the administrative procedure. He considered, in essence, that, in view of their nature, the data in question had not lost their confidential nature despite their age. Indeed, according to the hearing officer, the complexity, specificity and volume of the data were such that they could not be regarded simply as the turnover of the banks concerned. Given the nature of the data in question, the hearing officer was entitled to find that the passage of time alone could not in itself sufficiently reduce the risk of seriously harming the banks’ legitimate interests if that information was disclosed directly to Crédit agricole’s in-house experts.
179Furthermore, it should be noted, as the Commission does, that, as regards the determination of the amount of the fines, the rights of defence of the undertakings concerned are guaranteed before it by the possibility for those undertakings to present their observations on the duration, the gravity and the anticompetitive nature of the impugned acts, but, on the other hand, do not require that that possibility cover the way in which the Commission proposes to employ the imperative criteria of gravity and duration when making that determination (see judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 428 and 439 and the case-law cited). This factor must be taken into account when balancing the interests of the other parties in the confidentiality of certain data they submitted in order to determine the amount of their fine, such as, in the present case, data allowing the value of sales to be calculated, with the rights of defence of the other parties, as the hearing officer noted, in essence, in his decisions of 4 March 2015 and 16 September 2016.
180The applicants do not put forward any argument aimed at demonstrating that the effective exercise of their rights of defence should, in the present case, prevail over the legitimate interests of confidentiality which could be invoked by the other banks concerning the information in question. They have failed to demonstrate that the conclusions of the hearing officer in his decisions of 2 October 2014, of 4 and 27 March 2015 and of 16 September 2016, referred to in paragraphs 171, 178 and 179 above, were incorrect.…
2.Whether there is infringing conduct attributable to the applicants (third, fourth and eighth pleas of the application)…
(b)The third plea of the application, concerning Crédit agricole’s participation in conduct relating to Euribor manipulations…
(2)Argument challenging Crédit agricole’s participation in Euribor rate manipulating practices…
213It is important to note that it appears from the exchanges between the traders referred to in the contested decision, as summarised in paragraphs 203 to 210 above, that the Commission had evidence of the participation of Crédit agricole traders in exchanges relating to the manipulation of the Euribor rate.
214First, during the discussion of 1 March 2007, the Crédit agricole trader took it upon himself to ask the Barclays trader for a submission from his bank to the Euribor panel in his interest (‘it’s in my interest for it to be high’), which the Barclays trader agreed to do (‘OK, I’ll tell them’).
215Second, during the discussions of 16 October, 13 November and 5 December 2006 and of 16 and 19 March 2007, the Barclays trader asked the Crédit agricole trader to request from his bank’s treasury a submission in a specific direction. The Crédit agricole trader agreed to this and even reported that he had done so, specifying the level of submission suggested or aimed at by the treasury (see exchanges of 16 October 2006 at 7.33 (‘I’ll tell them to try 3.36’) and at 7.46 (‘they’ll submit 3.36’), of 13 November 2006 (‘OK no problem, I don’t have any, I’ll do it’, then ‘I told them to put 37’), of 16 March 2007 at 14.06 (‘I told her we’d like it to be lower. She said OK, noted’) and of 19 March 2007 at 14.24 (‘Yeah I told them, they wanted to put 91 … they said “hmm we’ll see what we can do”’)).
216Third, it is unambiguously clear from the exchange of 16 November 2006 that the Barclays and Crédit agricole traders communicated their preferences regarding the level of that day’s 3m Euribor fixing and their associated trading positions. The purpose of that communication was to check whether their interests converged, with a view to continuing, where appropriate, their concerted action aimed at influencing the Euribor submissions of their respective banks in the direction of those interests. This is confirmed by the fact that the Barclays trader expressed regret that his interests regarding the level of the fixing were opposed to those of the Crédit agricole trader. Despite this, he told the Crédit agricole trader that he would ‘check’ after asking him what Euribor rate suited him.
217Fourth, during the telephone conversation of 14 February 2007, the Barclays trader informed the Crédit agricole trader of the key aspects of the manipulation envisaged on 19 March 2007. In addition, it appears from the exchange of 16 March 2007 that the Crédit agricole trader was willing to benefit from that manipulation by confirming that his interest in that day’s 3m Euribor fixing coincided with that of the Barclays trader (‘it’s in all our interests for it to be low’, ‘it’s definitely in our interest too’) and by confirming to the Barclays trader, during the exchange of 19 March 2007, that he had made money as a result of that fixing (‘I made EUR 156,000 thanks to that’).
218Fifth, after the submission deadlines, the traders thanked each other for their mutual involvement in the practices in question and congratulated each other on the success of their plans (see, in particular, the exchange of 19 March 2007), while monitoring the expected results or effects of their concerted actions.
219The applicants’ arguments do not call into question the participation of Crédit agricole traders in the conduct aimed at manipulating the Euribor rate.
220First, the applicants maintain that it has not been demonstrated that the Crédit agricole trader actually contacted his treasury to follow up on the promise made to his contact, and that he could have lied to him in saying he had done so. Crédit agricole’s participation in conduct aimed at manipulating the benchmark rates has not been established, given the lack of evidence of any actual involvement of their treasury department in such conduct.
221In that regard, it should be noted, first of all, as the Commission submits, in essence, that Crédit agricole’s alleged anticompetitive conduct does not consist of the manipulation of Euribor as such, but of exchanges of information between traders reflecting their intention to influence their banks’ submissions to the Euribor panel in the direction of their interests. As is clear from recital 113(a) to (f), recital 358(a) to (f) and recital 392(a) to (f) of the contested decision, as summarised in paragraph 15 above, those exchanges related to preferences for a certain level of Euribor rate, sometimes involving the communication of trading positions held, the possibility of aligning trading positions and Euribor submissions, a promise from the trader involved to contact a Euribor submitter in his bank with a view to asking for a submission in a certain direction or at a specific level, and an account of the latter’s response.
222The exchanges between traders clearly reveal the communication of rate preferences, associated trading positions and an offer or intention of Crédit agricole traders to influence their bank’s submission.
223In that regard, it is settled case-law that an undertaking’s participation in an anticompetitive meeting creates a presumption of the illegality of its participation, which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other parties to the cartel (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 81 and 82 and the case-law cited, and of 3 May 2012, Comap v Commission, C‑290/11 P, not published, EU:C:2012:271, paragraphs 74 to 76 and the case-law cited). The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has led the other participants to believe that it subscribed to what was decided there and would comply with it (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 82, and of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraph 48).
224In the present case, it is clear from the exchanges relied on by the Commission, as summarised in paragraphs 214 and 218 above, that the Crédit agricole trader, on one occasion, requested a submission to the Euribor panel in his interest with a view to manipulating that rate and that, on other occasions, far from publicly distancing himself from the requests of the Barclays trader, he gave that trader the impression that his bank would submit or had actually made a submission to the Euribor panel in accordance with what had been agreed and confirmed that he had spoken to his submitters, even giving him an account of the exact content of those conversations.
225More specifically, the fact that, during the conversation of 14 February 2007, the Crédit agricole trader was sceptical about the success of the manipulation plan of 19 March 2007 does not demonstrate a clear distancing from the plan explained to him by the Barclays trader.
226The foregoing is not called into question by recitals 125, 135 and 634 of the contested decision, on which the applicants rely. Indeed, in those recitals, the Commission found, in essence, that the arrangements between the traders had been supplemented and implemented through communications between those traders and their submitters within the treasury departments of the banks, and ‘on occasions’, by the latter actually submitting communicated, coordinated or agreed Euribor rates. The Commission correctly submits that the applicants’ arguments that the Crédit agricole treasury was not involved in the practices seeking to influence Euribor rates are at most capable of showing that the bank’s treasury did not implement the anticompetitive conduct, rather than showing that the traders were not participating in that conduct (see, to that effect, judgment of 24 October 1991, Atochem v Commission, T‑3/89, EU:T:1991:58, paragraph 100).
227The same applies to the argument that the rates actually submitted by Crédit agricole on the relevant dates were consistent with its other submissions and with the market and that they were even contrary to the interests of the cartel. Indeed, in view of the scope of the contested decision and the conduct alleged against Crédit agricole, which relates to the ‘arrangements’ between traders seeking to influence the benchmark rates in their interests, but not the actual manipulation of those rates with the involvement of the treasuries, those arguments are ineffective for the purpose of contesting Crédit agricole’s participation in the conduct relied on by the Commission against it.
228In that context, it should be noted that, in any event, several pieces of evidence relied on by the Commission show that Crédit agricole’s traders attempted to influence the submission of their bank’s treasury, or at least claimed to have done so. Indeed, during the exchanges of 16 October, 13 November and 5 December 2006 and of 16 and 19 March 2007, the Crédit agricole trader reported back to the Barclays trader on the reply he had received after contacting his treasury (see paragraph 215 above). In addition, it is apparent from the exchanges of 27 October (recital 191 of the contested decision) and 5 December 2006 (recital 224 of the contested decision), as well as of 19 March 2007 (recital 319 of the contested decision) that the traders regarded their concerted actions to manipulate the fixing as having been successful and congratulated each other. Those exchanges, read in the light of the exchange of 16 March 2007 between the Crédit agricole trader and that bank’s submitter (recital 305 of the contested decision), which shows that the traders were in contact with the treasury desk, during which they discussed the future fixing of rates and the interest that traders might have in a specific level of rates, suggest that the Crédit agricole traders acted upon the discussions with the Barclays trader as to the desired level of the Euribor rate by making contact with their bank’s submitters and thereby implemented the collusive exchanges.
229Second, the applicants’ argument by which they claim, relying on an expert report the credibility of which is contested by the Commission, that in view of the trading positions they held, the Crédit agricole traders had no real interest in participating in the manipulations at issue, in particular that of 19 March 2007, should also be rejected. In essence, the applicants maintain that participation in practices aimed at influencing the level of benchmark rates ‘made no sense’, unless the traders received the information in time to take advantage of it and had built up ‘huge trading positions’.
230However, irrespective of the question whether the data relied on by the applicants are reliable, as regards restrictions of competition by object – which is, according to the contested decision, what exchanges relating to manipulations of benchmark rates amount to – there is no need to examine whether an undertaking had a commercial interest in participating in them once that undertaking’s participation in conduct likely to restrict competition has been demonstrated (see, to that effect, judgment of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraphs 44 to 46 and the case-law cited).
231The circumstances alleged by the applicants, assuming they are established, are at most capable of demonstrating that, since he did not have a significant trading position, in particular on 19 March 2007, the Crédit agricole trader did not derive significant benefits from the plan involving him and, therefore, that the exchanges between the traders did not have anticompetitive effects on the market. That question is, however, irrelevant with regard to conduct that has the object of restricting competition (see, to that effect, judgment of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraphs 123 and 124). Such an argument could, where appropriate, be relevant where the applicants show that the Commission had made an error by finding that the conduct at issue has the object of restricting competition, which it is appropriate to examine in the context of the fourth plea.
232In so far as, in raising such an argument, the applicants seek to present evidence to the contrary in order to rebut the presumption that, by participating in the concerted action with the Barclays trader and by being active in the market, the Crédit agricole trader necessarily took account of the information exchanged with his competitor when determining his conduct on that market, in this case his trading strategy, by relying on the future manipulation (see, to that effect, judgments of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraph 121, and of 8 July 1999, Hüls v Commission, C‑199/92 P, EU:C:1999:358, paragraph 162), it should be noted that the mere allegation that the trader did not hold a significant position at the date of an intended manipulation or that his bank held a position contrary to the direction of the cartel does not constitute sufficient proof to the contrary, since such evidence does not of itself preclude the presumption that the concerted action enabled the trader to eliminate uncertainties regarding his conduct on the market, so that normal competition might have been prevented, restricted or distorted (see, to that effect and by analogy, judgment of 5 December 2013, Solvay Solexis v Commission, C‑449/11 P, not published, EU:C:2013:802, paragraph 39).
233Third, the fact that an undertaking has not taken part in all aspects of a cartel or that it has played only a minor role in the aspects in which it did participate is not material to the establishment of the existence of an infringement on its part. Those factors, relating to the number and intensity of the incidents of anticompetitive conduct, must be taken into consideration only when the gravity of the infringement or mitigating circumstances are assessed and if and when it comes to determining the fine (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 86 and the case-law cited, and of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraphs 197 and 199 and the case-law cited). Thus, the arguments put forward by the applicants seeking to demonstrate the minor role, from a qualitative and quantitative point of view, that Crédit agricole had in the manipulations at issue, in view of the fact that they were imagined, organised and implemented by a trader from Bank A and a trader from Bank D, must be rejected as ineffective when examining Crédit agricole’s participation in the conduct at issue.
234Similarly, fourth, the fact that Crédit agricole is a minor player on the EIRD market, assuming that to be established, does not call into question its participation in the conduct at issue, since it is active on that market. Indeed, as the Commission argues, in essence, the exchanges of confidential information concerning the planned manipulations of benchmark rates allowed the participants in those exchanges, regardless of their bank’s position on the market, to adapt their trading strategy by composing their portfolios specifically to take advantage of their knowledge of future manipulations and to maximise their profits or minimise their losses.
235In the light of the foregoing, subject to the examination of the fourth plea (see paragraphs 230 and 231 above), the third plea must be rejected as unfounded.…
3.The Commission’s finding of a single and continuous infringement (fifth, sixth and seventh pleas of the application)…
(b)The sixth plea of the application, disputing Crédit agricole’s knowledge of the existence of an overall plan and its willingness to participate therein…
(1)Crédit agricole’s knowledge of the existence of an overall plan…
(i)Crédit agricole’s knowledge of the infringing conduct planned or implemented by other companies consisting of attempts to manipulate Euribor…
402It should be noted, as the Commission does, that the Commission has direct evidence that Crédit agricole was aware that it was participating in a single infringement with other banks, since its traders knew or could reasonably have foreseen that the exchanges referred to in paragraph 401 above were part of an ‘overall plan’ going beyond the scope of bilateral exchanges.
403First, the Commission is right in identifying, in recital 467 of the contested decision, the conversation of 16 October 2006 as being indicative of Crédit agricole’s awareness of the existence of an ‘overall plan’ and the participation of other banks in that plan.
404During that conversation, the Barclays trader asked the Crédit agricole trader to request a high 1m Euribor submission from his treasury. Before agreeing to that request, the Crédit agricole trader asked how he could benefit from it, to which the Barclays trader replied that he could ask him for a ‘fixing’ in accordance with his own trading positions (‘it’s up to you, you can ask me for fixings whenever you want or need them’). Later, the Crédit agricole trader asked the Barclays trader how he had done, despite the Euribor rate being low. The Barclays trader responded by thanking him for his cooperation regarding his bank’s submission, saying that, thanks to the high submissions from some banks (‘mates’), he had been able to offset the low submissions from other banks (‘if some of my mates hadn’t been there … I had at least four banks against me on this thing’).
405On the one hand, the conversations show that the Crédit agricole trader was aware that the high submission he had promised to request from his treasury was part of an ‘overall plan’ to manipulate the level of the 1m Euribor on that day by coordinated submissions from several banks. His actions thus contributed to the plan’s success. On the other hand, by saying that he could ask him at other times for ‘fixings’ that were in his interest, the Barclays trader made it clear to the Crédit agricole trader that this was not an isolated attempt to manipulate the Euribor rate, but rather a practice that could be repeated.
406Second, similarly, the Commission is also right in identifying, in recital 461 of the contested decision, the conversation of 14 February 2007 as being equally indicative of Crédit agricole’s awareness both of the existence of an ‘overall plan’ and the participation of other banks.
407It is clear from this discussion that the Barclays trader disclosed to the Crédit agricole trader the constituent elements of the manipulation envisaged for the IMM date of 19 March 2007, asking him to keep it secret, namely a manipulation of the spread between two derivatives, ‘futures’ indexed to the 3m Euribor and swaps based on EONIA on 19 March 2007 (‘the basis will tighten’, ‘spread to 4’ (in other words, the spread between EONIA and the 3m Euribor would decrease to 4 basis points)). He also informed him of other aspects of the plan likely to contribute to its success, telling him that it was necessary to gradually increase ‘long’ positions on ‘futures’ indexed to the 3m Euribor, while lowering the cash market by a concerted action (‘you pay EONIA and buy the future … on the IMM; on the IMM date you reduce cash …’) – in other words, to create ‘short’ positions on EONIA and ‘long’ positions on Euribor in view of the fixing of 19 March 2007 and to lower the cash market on the day of the fixing. Moreover, the Barclays trader informed the Crédit agricole trader that Deutsche Bank was involved in the ‘overall plan’ (‘the Deutsche treasury is in’) and told him that it would be advantageous to involve four or five banks in the plan (‘if we can add four or five treasuries to the mix, do you see?’).
408It is clear from this that the Crédit agricole trader was made aware of Deutsche Bank’s participation in the plan thus described. In addition, although the identity of the other banks was not disclosed to the Crédit agricole trader, he was aware of the fact that the Barclays trader was considering involving a certain number of banks in the plan.
409Consequently, the Commission was right to conclude that Crédit agricole was aware of the infringing conduct planned or implemented by other participants in the cartel in pursuit of the objective of altering cash flows through concerted actions to manipulate the Euribor rate on 16 October 2006 and 19 March 2007.
410Furthermore, even if the Commission lacked direct evidence that Crédit agricole’s traders were aware that other banks were involved in other attempts to manipulate the Euribor rate that had been relied on against it, it was able to find that those traders could reasonably have foreseen such participation, within the meaning of the case-law cited in paragraph 354 above, given that Crédit agricole was aware of the participation of other banks in that type of conduct as early as 16 October 2006. Crédit agricole could therefore reasonably have foreseen that any other attempt at manipulation could only take place through concerted action by several banks. The applicants are therefore wrong to claim that the traders’ knowledge of the participation of other banks in the attempts to manipulate the rates should be limited solely to the manipulations of 16 October 2006 and 19 March 2007 or to a certain period of Crédit agricole’s participation in the single infringement relied on by the Commission.
411In that context, it is irrelevant that Crédit agricole was unaware of the intensity and daily frequency of the contact, in particular between the Barclays and Deutsche Bank traders, and of the more or less intense nature of the Barclays trader’s contacts with the other banks involved.
412The fact that the Crédit agricole trader was sceptical about the feasibility of the 19 March 2007 manipulation plan is also irrelevant. Indeed, the fact that he did not think the plan would succeed – although this is unclear from his position, since he says that ‘in any case it’s worth a try’ – in no way demonstrates that he was unaware of Deutsche Bank’s participation and, as the case may be, the participation of other banks in the implementation of that plan.
(ii)Crédit agricole’s knowledge of other conduct that was part of the single infringement planned or implemented by other undertakings
413As to the question whether the Commission was entitled to attribute the conduct of the other banks concerned to Crédit agricole as part of its participation in the single infringement, it should be noted that, unlike Crédit agricole’s knowledge of the existence of an overall plan aimed at manipulating the Euribor rate on different dates through the concerted actions of several banks (see paragraphs 402 to 408 above), the Commission did not adduce, in the contested decision, any direct evidence that Crédit agricole was aware or should have been aware of the fact that the exchanges that its traders had with the Barclays trader relating to information on pricing strategies or intentions went beyond the scope of bilateral exchanges and were part of an ‘overall plan’ involving other banks.
414Similarly, the indirect evidence, taken together as a body of evidence, has not established to the requisite legal standard that Crédit agricole was or should have been aware of such an overall plan, or that it could reasonably have foreseen its existence, such as to justify attributing the conduct of the other banks covered by that single objective to Crédit agricole, whether it directly participated in it or not.
415In that regard, the contested decision contains, in recitals 457 to 465, only grounds relating to the nature of the cartel and the functioning of the EIRD market, which apply to all the banks involved in the cartel and which were referred to in paragraph 396 above. Whether taken individually or as a whole, those grounds do not allow the conduct of the other banks, in which Crédit agricole did not, according to the contested decision, directly participate, aside from the conduct set out in paragraphs 409 and 410 above, to be attributed to Crédit agricole without departing from the case-law cited in paragraph 360 above.
416The applicants are correct to point out that the Commission does not establish any link between, on the one hand, the specific context in which the traders operate, noted in recital 458 of the contested decision (namely the fact that they are recorded and monitored, that the contacts are exclusively bilateral, that they use coded language and that they contact each other on a regular basis and always for the same type of operation), and on the other hand, the knowledge that Crédit agricole had or should have had of the other banks’ conduct in relation to pricing strategies and intentions in which it was not involved.
417In that regard, the Commission maintains that recital 458 of the contested decision should be read together with recitals 459 to 464 thereof. However, the grounds set out in recitals 459 to 462 of the contested decision at most support the argument that the traders should have been aware of other banks’ involvement in conduct aimed at manipulating Euribor rates, but not in conduct consisting of exchanges on pricing strategies or intentions.
418In the first place, the finding in recital 459 of the contested decision that, through their bilateral contacts, the traders knew that traders from other banks were willing to participate in the same type of collusive behaviour concerning pricing and other EIRD trading conditions applies to Crédit agricole only with regard to exchanges about the manipulation of Euribor (see paragraphs 403 to 408 above). By contrast, in none of the bilateral conversations on pricing strategies did the Barclays trader reveal to the Crédit agricole trader that other traders were involved in such exchanges or that the same information would be exchanged with other traders.
419In the second place, the reference in recital 460 of the contested decision to the existence of a ‘wide-spread general awareness’ among market players of the fact that the mechanism of benchmark rate setting was declaratory and, as a result, that the submissions could be shifted by panel banks depending on their interests at the time of the submission, assuming it is established, is relevant only in respect of practices aimed at manipulating those benchmark rates. The same is true, in so far as it is relevant to establishing knowledge of the involvement of other banks in collusive practices, of the circumstance noted in recitals 461 and 462 of the contested decision, whereby the traders could not ignore the fact that, if more banks changed their submissions on the same day and for the same Euribor tenor, the potential impact on the benchmark interest rate would increase in proportion to the number of banks involved, therefore the level of success of the collusive practices depended to a great extent on the involvement of more banks. Conversely, no link can be established between the mechanism for setting the level of Euribor through the submissions of the panel members, referred to in those statements, and the conduct described in recital 358(g) of the contested decision on exchanges about pricing intentions and strategies, such as ‘runs’ or ‘mids’.
420In addition, as noted in recital 463 of the contested decision, the fact that (i) the traders of the banks concerned had been active in the EIRD sector for many years, (ii) the bilateral contacts were maintained with the traders of banks which were among the largest market players and (iii) the traders did not show any surprise when they were asked to act in concert are irrelevant for establishing knowledge of conduct in which Crédit agricole was not directly involved. Moreover, as the applicants submit, knowledge of the ‘strength of the network behind the trader [who] engaged in anticompetitive discussions with them’, to which reference is also made in recital 463 of the contested decision, is mere speculation which is not substantiated by any evidence of such knowledge on the part of Crédit agricole of the existence and strength of that network and which cannot be inferred from the exchange of 14 February 2007 between the Crédit agricole trader and the Barclays trader, which the Commission relies on in support of that argument. Indeed, it is clear from that exchange that the Crédit agricole trader was made aware of Deutsche Bank’s involvement in attempts to manipulate rates and the Barclays trader’s intention to involve more banks (see paragraphs 406 to 408 above). However, it cannot be inferred from this that he had become aware of other banks’ involvement in conduct other than rate manipulation, let alone the existence of a network of contacts intended to exchange sensitive information on pricing strategies or intentions.
421Lastly, the fact highlighted by the Commission in recital 465 of the contested decision, that the recording of traders facilitates the detection, by the bank, of illicit behaviour by its employees, concerns at most the question of whether the conduct in which the bank’s traders participated can be attributed to the bank, a question which was rejected during the examination of the eighth plea (see paragraph 350 above). Nevertheless, as is apparent from paragraph 413 above, there is no evidence from the records of the bilateral exchanges between the Barclays trader and the Crédit agricole traders relating to information on pricing strategies or intentions to suggest that those exchanges went beyond the scope of bilateral exchanges and were part of an ‘overall plan’ involving other banks.
422The Commission seems to continue to maintain that since all the conduct at issue had the same objective (the subject of the fifth plea), the fact of having established that Crédit agricole was or should have been aware that the other banks were involved in attempts to manipulate the Euribor rate was sufficient to conclude that Crédit agricole knew of their participation in other conduct.
423However, it follows from the case-law that the finding of the existence of a single infringement is separate from the question whether liability for that infringement as a whole is imputable to an undertaking (judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 174). Furthermore, the mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice to render that undertaking responsible for the overall cartel. It should be recalled that Article 101(1) TFEU does not apply unless there exists a concurrence of wills between the parties concerned. The undertaking concerned must therefore be aware of the general scope and the essential characteristics of the cartel as a whole (see judgment of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraphs 62 and 64 and the case-law cited).
424It follows that, in the present case, it is not possible to hold Crédit agricole responsible for all the infringing conduct forming part of the single infringement, including the exchanges on pricing strategies and intentions in which it did not directly participate, solely because it was aware of the other banks’ conduct concerning the manipulation of the Euribor rate and because those practices had the same objective as those relating to pricing strategies and intentions.
425Accordingly, it must be concluded that the body of evidence on which the Commission relies – viewed as a whole and with direct evidence of knowledge of the infringing conduct planned or implemented by other undertakings consisting of attempts to manipulate Euribor, examined in paragraphs 402 to 412 above – does not amount to firm, precise and consistent evidence demonstrating beyond any doubt that Crédit agricole was aware that its exchanges with Barclays concerning pricing intentions and strategies went beyond the bilateral scope and were part of an overall plan involving other banks, or that it could reasonably have foreseen this and accepted the risk.
426In the light of the foregoing, it must be concluded that Crédit agricole’s participation in a single infringement can be upheld only in respect, first, of its own conduct in that infringement and, second, of the conduct of other banks forming part of the attempts to manipulate the Euribor rate.
427In that regard, it should also be borne in mind that the Court has held that it was conceivable that a Commission decision categorising an overall cartel as a single and continuous infringement can be divided only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 46). In the present case, the Commission clearly drew a distinction, both in the statement of objections and in the contested decision (see paragraph 15 above), between the different forms of alleged conduct of the banks involved in the cartel, including Crédit agricole, which constituted the single and continuous infringement. Moreover, as recalled, in essence, in paragraph 363 above, it is apparent, in particular, from recitals 365, 387, 393 and 442 of the contested decision that the Commission considered that the object of that conduct was to restrict competition, not only collectively but also on an individual basis.
428The applicants are therefore correct to submit, in the sixth plea, that the Commission wrongly attributed to Crédit agricole conduct other than that identified in paragraph 426 above. The first part of the sixth plea is therefore well founded, in part.…
B.The claim for annulment of Article 2(a) of the contested decision and the claim for a reduction of the fine…
1.The claim for annulment of Article 2(a) of the contested decision…
(a)The use of discounted cash receipts for the purposes of calculating the value of sales…
(2)Determination of the discount factor of 98.849% applied by the Commission…
(i)Compliance with the obligation to state reasons as regards the determination, in the contested decision, of the discount factor…
512In the light of the foregoing, the General Court finds that the statement of reasons in the contested decision is inadequate as far as concerns the determination of the discount factor of 98.849%.
513Nevertheless, the present complaint of the fourth part of the ninth plea may prove to be unfounded if it transpires that the Commission corrected the inadequate statement of reasons found above by adopting the amending decision (see paragraphs 21 to 23 above). Therefore, it is appropriate to examine the pleas raised by the applicants in the context of the statement of modification seeking to challenge the adoption by the Commission of the latter decision.
(ii)The amending decision…
516In that regard, the applicants claim that the Commission did not have the power to remedy the inadequacy of the statement of reasons of the contested decision, found by the General Court in the judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675), by means of the amending decision.
517The applicants note that, although the Commission may, in principle, amend a decision after its adoption, it does not have the power to adopt, as in the present case, a decision correcting or supplementing the inadequate statement of reasons of the contested decision during the judicial proceedings for the annulment of that decision, without adopting a new operative part for that decision. The Commission’s lack of jurisdiction to adopt the amending decision applies a fortiori in so far as, in reality, it would have to provide a different reasoning from that of the contested decision.
518The Commission disputes the applicants’ arguments and takes the view that it was entitled to adopt the amending decision, in compliance with the formal requirements and the procedures laid down in that regard in the Treaty, in order to supplement the reasons stated in the contested decision, by providing further explanations as to the methodology used to determine the discount factor without changing that methodology. In its view, the case-law to the effect that the deficient statement of reasons in an individual decision cannot be corrected during legal proceedings does not apply in the present case. Since the adoption of the amending decision afforded the applicants the opportunity to amend their application in order to contest the validity of the methodology at issue, their procedural rights were safeguarded and the General Court could fully exercise its power of judicial review.
519It should be noted, as the Commission does, that the Commission’s power to adopt a particular act necessarily also includes the power to amend that act, on condition that the provisions on the relevant power and the formal requirements and the procedures laid down in that regard in the Treaty are complied with (judgment of 9 December 2014, Lucchini v Commission, T‑91/10, EU:T:2014:1033, paragraph 108), which the applicants acknowledge.
520However, it must be found that, as the applicants have argued, it is explicit from the operative part of the amending decision and from recitals 11 to 13 thereof that the purpose of that decision is only to supplement the reasoning in the contested decision, without amending the operative part of that decision, and that, therefore, Article 1(a) and Article 2(a) of that decision ‘remain in force’.
521It is clear from the foregoing that, by adopting the amending decision, the Commission did not adopt a decision amending the operative part of the contested decision, but merely supplemented the reasoning allegedly underlying the operative part adopted in the contested decision, a matter which the Commission has essentially confirmed before the Court (see paragraph 518 above).
522It follows from the above that the amending decision cannot be regarded as a new decision modifying the contested decision within the meaning of the case-law cited in paragraph 519 above, but must be treated as a supplement to the reasoning added by the defendant in the context of judicial proceedings. According to settled case-law, the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him or her. The absence of reasoning cannot be legitimised by the fact that the person concerned becomes aware of the reasons for the decision during the procedure before the Courts of the European Union (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 149; of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 74; and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 46).
523There is neither a right of the EU institutions to remedy before the EU Courts their insufficiently reasoned decisions, nor an obligation on the part of the latter to take into account additional explanations provided by the author of the measure in question only during the proceedings in order to assess whether the obligation to state reasons has been satisfied. Such a state of law would risk blurring the division of powers between the administration and the EU Courts, weakening the review of legality and jeopardising the exercise of the right of appeal (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 58).
524Where the author of a contested decision provides explanations during the proceedings before the Court to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the EU Courts of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision. Thus, additional explanations going beyond the requirements of the duty to state reasons may enable undertakings to acquire a detailed knowledge of the method of calculating the fine imposed on them and, more generally, serve to render the administrative act more transparent and facilitate the exercise by the Court of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision, but also the appropriateness of the fine imposed. However, the availability of that possibility is not such as to alter the scope of the requirements resulting from the duty to state reasons (see, to that effect, judgment of 16 November 2000, Cascades v Commission, C‑279/98 P, EU:C:2000:626, paragraphs 45 and 47).
525In the present case, as is clear from paragraph 512 above, the statement of reasons in the contested decision is inadequate as far as concerns the determination of the discount factor. The Commission has made no submission to the effect that certain circumstances made it practically impossible to state to the requisite legal standard the reasons for the contested decision with the result that, by way of exception, a supplement to the statement of reasons, provided during the judicial proceedings, could be accepted (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 59). Consequently, and without it being necessary to examine the question whether the methodology explained in more detail in the amending decision was indeed the methodology underlying the contested decision and, therefore, to adopt the measure of inquiry proposed by the Commission, the Court finds that, in application of the case-law cited in paragraphs 522 to 524 above, the supplement to the statement of reasons in the contested decision provided by the Commission in the course of the present proceedings cannot be accepted.
526In those circumstances, the Court upholds the complaints put forward in the first plea in the statement of modification and disregards the supplemental statement of reasons added by the amending decision in the course of the present proceedings, without it being necessary to examine the other claims, complaints and pleas put forward by the applicants in that statement or to adopt the measure of organisation of procedure that they propose, which related to the merits of the statements made in the amending decision as regards the determination of the discount factor.
527It is clear from all of the foregoing that the complaint alleging that the statement of reasons for the contested decision is inadequate as far as concerns the determination of the discount factor is well founded.
(b)The inconsistency of the methods of calculating the value of sales used by the banks and the failure to observe the principles of good administration and equal treatment due to lack of scrutiny by the Commission on this point…
(2)Complaint alleging a failure to observe the principle of good administration due to insufficient verification of the data provided by the banks
557In the second part of the ninth plea, the applicants claim that the Commission failed to observe the principle of good administration in so far as it did not verify the consistency of the replies to the list of questions on the value of sales and did not carry out any additional investigative measures upon receiving the data to ensure compliance with the principle of equal treatment.
558The Commission maintains that it took ‘every precaution to avoid discrepancies between the values disclosed by the banks’, in so far as it sent the same precise and detailed request for information to all the parties and provided coordination. In addition, it required the replies to be accompanied by a methodological note and the accuracy of the calculations submitted to be certified by an independent external audit.
559In that respect, it should be recalled that there is no general obligation for the Commission to check the information provided in response to a request for information in the absence of evidence indicating that that information is inaccurate (see, to that effect, judgment of 11 July 2013, Spira v Commission, T‑108/07 and T‑354/08, EU:T:2013:367, paragraph 104 and the case-law cited).
560In the present case, it should be noted that several pieces of evidence, within the meaning of the case-law cited in paragraph 559 above, should have led the Commission to doubt the sufficiently uniform nature of the methods used by the banks concerned to provide the requested data.
561In the first place, the Commission does not deny that the parties had informed it of the difficulties they had experienced in replying to the list of questions. Moreover, contrary to what is maintained by the Commission, the fact highlighted by the applicants that Société générale (recital 703 of the contested decision, see paragraph 11 above) and JP Morgan (recital 680 of the contested decision) voluntarily submitted corrected data, making significant revisions to the data initially submitted, demonstrates those difficulties. It is important to note that the Commission accepted the revised data.
562In the second place, the applicants are also correct to highlight the differences between the methodological notes provided by each of the banks concerned, both in terms of their considerable difference in length and the variety of the level of information provided by the banks.
563In the third place, the applicants put forward the inconsistencies between the notional amounts declared by the banks concerned as an indication of inconsistencies in the data submitted by the parties in response to the request for information. Admittedly, as the Commission found in recital 700 of the contested decision, in the present case it did not base the value of sales on notional amounts, but on cash receipts. However, according to the report on the value of sales, the notional amounts and cash receipts submitted by the various banks do not appear to be consistent. It follows that the notional amounts are not entirely irrelevant as an indication of inconsistency in the methodologies used to respond to the Commission’s request for information, including with regard to the determination of the banks’ cash receipts.
564In that respect, it should also be noted that, during the hearing, the applicants had drawn the Commission’s attention to the existence of several contradictions in the other parties’ replies to the requests for information (see paragraphs 58 and 60 above).
565In the light of that evidence, the Commission should have continued its investigation, in compliance with the principle of good administration and, in particular, its obligation to carry out a diligent examination, in order to ensure that the cash receipts used as a basis for calculating the fine were calculated according to methodologies that were sufficiently uniform to ensure an adequate response to the request for information.
566However, in response to a written question from the General Court, the Commission acknowledged that it had not requested any clarification from the parties concerning their replies to the request for information or the methodologies used to calculate the data requested.
567In so far as the Commission refers to the audit report accompanying each of the replies of the banks concerned and argues, in essence, that it was for the auditors to verify the appropriateness of the methodologies followed to respond to the requests for information (recital 678 of the contested decision), that argument cannot succeed either.
568Indeed, it is clear from section I.2(ii) of the instructions accompanying the request for information that the ‘data’ requested had to be verified by an audit company or an auditor and that the reply had to be accompanied by a certificate stating that the ‘data’ had been verified. Contrary to what is apparent from recital 678 of the contested decision, such an instruction cannot necessarily be understood in the sense that reports or opinions of independent auditors had to confirm not only that the data provided were correct, but that the methodology followed to calculate them was appropriate for the purpose of responding to the request for information. The applicants rely, in that regard, on the comments contained in the audit reports produced by an audit company as regards their calculations, and those produced, in particular, for Bank A, Bank C and JP Morgan, the materiality of which is not disputed by the Commission. It is apparent from those comments that the independent auditors considered that their task was to verify the proper application of the methodology chosen by a bank, and not to examine that methodology with regard to the scope of the request for information.
569In the light of the foregoing, the Court concludes that, despite sufficient evidence to question the uniformity of the methodologies followed by the banks concerned in order to calculate their cash receipts, the Commission did not adopt additional investigative measures, in breach of its obligation to undertake a diligent examination in accordance with the case-law cited in paragraph 537 above. However, in the circumstances of the present case, such a failure to observe the principle of good administration could only lead to the annulment of the contested decision if the applicants were able to demonstrate that, as a result of the methodological differences in question, the basic amounts of the fines imposed were calculated in breach of the principle of equal treatment.
(3)Observance of the principle of equal treatment in the calculation of the amount of the fine
570The applicants submit, in essence, that a breach of the principle of good administration resulted, in the present case, in the Commission failing to observe the principle of equal treatment in that, without further investigation, the Commission determined the amounts of the fines by taking into account data that were not sufficiently reliable and consistent to constitute a basis for the calculation of those fines.
571Nevertheless, the applicants fail to demonstrate that, in the present case, the application by the banks of different methodologies for calculating their cash receipts, as accepted by the Commission, led the latter to use data that were not comparable from one bank to another, and therefore to determine the amount of the fine imposed on Crédit agricole in breach of the principle of equal treatment.
572In the first place, the Court notes that, according to the Commission, the existence of differences concerning, first, the scope of the cash flows taken into account by Bank A, in that it excluded the fixed leg of swaps from its calculations where the swaps involved both a fixed leg and a variable leg, second, the scope of netting between amounts paid and received under trades and, third, the exclusion of ‘exotic’ derivatives had only an immaterial impact on the result of the calculation of cash receipts and, thus, on the determination of the value of sales (see paragraphs 549, 551 and 554 above).
573The applicants dispute the immaterial impact of the methodological differences on the level of cash receipts.
574First, they argue that the Commission’s finding in the contested decision that the impact of the methodology followed by Bank A on the value of its cash receipts as regards the exclusion of fixed legs for contracts with both a fixed leg and a variable leg amounted to only 0.1%, and thus was immaterial, cannot be verified. They submit, in essence, that the access to the other parties’ financial data that they obtained under the data room procedure was not sufficient to allow them to perform the same calculations as the Commission, given the refusal to grant access to the data in question to Crédit agricole’s experts and the limited access time.
575In that regard, it should be noted, first of all, that the Commission calculated the impact of the methodology applied by Bank A on the value of its cash receipts to be 0.1%, based on calculation files containing certain program codes submitted by that bank in its reply to the request for information (recital 685 of the contested decision). The applicants’ legal and economic advisors had access to those documents under the data room procedure (see footnote 720 to the contested decision).
576In addition, it is apparent from the examination of the complaints regarding the refusal of access to the value of sales data that the Commission did not infringe the applicants’ rights of defence by setting up a mixed system of access to the data in question, which consisted in allowing access to the confidential data only to Crédit agricole’s external counsel under the data room procedure (see paragraphs 173 to 180 above). Moreover, while the applicants considered that the duration of the access thus granted to external counsel was insufficient, there was nothing to prevent them from requesting from the Commission’s services or the hearing officer an extension or additional access under the same procedure. Yet they made no such request.
577The arguments put forward by the applicants are therefore not capable of calling into question the Commission’s finding, in the contested decision, that the 0.1% impact on the value of Bank A’s cash receipts was immaterial.
578Second, as regards the differences in netting methods, it should be noted, first of all, that the applicants do not deny that netting on a daily basis, as applied by Crédit agricole, is a market norm. Moreover, the applicants do not even attempt to demonstrate that the application of netting on a monthly basis rather than on a daily basis would have had a material impact on their own cash receipts figures.
579Furthermore, the applicants consider that the Commission’s finding in recital 702 of the contested decision that the fact that the banks followed different methodologies for netting did not lead to material differences or unequal treatment is contradicted by the fact that Société générale’s fine was halved in the amending decision.
580However, it is clear from recital 703 of the contested decision that the Commission adopted a decision amending the settlement decision as regards Société générale when the latter informed the Commission that it had failed to apply the netting for a substantial part of its transactions, and not because it had revised its data by applying another netting method. In addition, it is clear from recital 702 of the contested decision that the results of the calculations following the two approaches (netting on a daily basis and netting on a monthly basis), as carried out by Bank C, show a difference of about 0.4%. The applicants are not disputing that such a difference is immaterial.
581Third, the Court notes, as the Commission does, that the applicants do not present any argument to refute Bank A’s explanations, as set out in recital 694 of the contested decision, as to the immaterial impact of its exclusion of ‘exotic’ derivatives from its calculations.
582Fourth, the applicants also rely on the revised data submitted to the Commission on 14 October 2016, calculated according to what they considered to be the methodology followed by Bank A, namely the ‘neutralisation’ of the fixed leg and the exclusion of ‘exotic’ derivatives.
583It should be noted that, in recital 687 of the contested decision, the Commission gave reasons for its refusal to accept the revised data submitted by Crédit agricole, stating that the methodology that it had used to present the data was inappropriate and that the data were incorrect. In that regard, the Commission noted that the proposed methodology did not comply with the instructions from the request for information or the methodology followed by Bank A, and had been submitted without confirmation from the auditor. According to the Commission, the applicants had excluded from their calculations the cash receipts from the fixed leg of the swaps, among other things, but had not revised the amounts of the cash receipts obtained by netting between the variable leg and the fixed leg, which would result in lower cash receipts. The Commission concluded that Crédit agricole’s proposed methodology would have an impact of around 43% on its cash receipts, such that it would lead to material differences. That information is sufficient to allow the applicants to understand the reasons for the Commission’s refusal to accept the revised data and the Court to exercise its judicial review within the meaning of the case-law cited in paragraph 255 above. The complaint alleging infringement of the obligation to state reasons must therefore be rejected as unfounded.
584Furthermore, it should be noted that, according to the Commission (recital 687 of the contested decision), the methodology followed had an impact of 43% on Crédit agricole’s figures, which is also reflected, in essence, in the applicants’ request to the Court to reduce in that proportion, in the exercise of its own unlimited jurisdiction, the amount of Crédit agricole’s fine.
585Assuming that the applicants thus seek to demonstrate that the impact of the methodology followed by Bank A on their own cash receipts was not immaterial, and not to have the methodology followed by Bank A applied to them (see paragraph 588 below), that argument cannot be upheld. First, it is common ground between the parties that the methodology applied by Bank A does not comply with the request for information.
586Second and in any case, the applicants fail to demonstrate that the methodology they followed to present the revised data was that applied by Bank A. In that regard, they in no way dispute the Commission’s finding in recital 687 of the contested decision (see paragraph 583 above) and do not even attempt to show that the ‘neutralisation’ of the fixed legs under which amounts were receivable that they would have carried out to calculate the revised data resulted solely from the exclusion of the fixed leg from swap contracts having both a fixed leg and a variable leg, as in the methodology followed by Bank A, and not also from the netting of fixed legs under which amounts were payable and variable legs under which amounts were receivable, as was noted, in essence, by the Commission in recital 687 of the contested decision.
587The Court thus concludes that the applicants fail to demonstrate that the Commission erred in finding that the differences in the methodologies applied by the banks to calculate their cash receipts led to immaterial differences in the data submitted. Such immaterial differences are not liable to cause a breach of the principle of equal treatment, in so far as they do not result in non-comparable values being used to calculate the fines.
588In the second place, given that the methodology followed by Bank A to calculate its cash receipts does not correspond to the request for information, the applicants’ argument that compliance with the principle of equal treatment should have led the Commission to allow them to submit the data calculated according to the methodology applied by Bank A, or to accept the revised data submitted on 14 October 2006, cannot be upheld. It is sufficient to note that, according to settled case-law, the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, to his or her benefit, on an unlawful act committed in favour of a third party (see judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 58 and the case-law cited). The applicants’ argument in actual fact amounts to demanding the Commission to apply a methodology to them which does not comply with the request for information.
589It follows that the applicants have not shown that, in the present case, the acceptance by the Commission of the data calculated according to different methodologies had led it to use data on cash receipts that were not comparable and, thus, to fail to observe the principle of equal treatment in its calculation of Crédit agricole’s fine. Consequently, this complaint must be rejected, as must, therefore, the second complaint of the first part of the ninth plea and the second part of this plea.…
2.The claim for a reduction of the amount of the fine…
657In the present case, even though the primary claim seeking the annulment of Article 2(a) of the contested decision has been upheld, the Court considers that it is entitled to exercise its unlimited jurisdiction in so far as the question of the amount of the fine was submitted to it for assessment, even if the claim seeking the reduction of the amount of the fine was submitted in the alternative to the application for annulment of Article 2(a) of the contested decision (see, to that effect, judgment of 13 December 2018, Deutsche Telekom v Commission, T‑827/14, EU:T:2018:930, paragraphs 551 to 562).…
662In the present case, in order to determine the amount of the fine to be imposed as a sanction on Crédit agricole for its infringing conduct, as results from the examination of the first eight pleas, it is appropriate to take into account the following factors.
663In the first place, as far as concerns the gravity and duration of the infringement, the Court makes the following findings.
664First, it is appropriate to use a methodology that – much like the methodology used by the Commission in the present case – first identifies the basic amount of the fine which can subsequently be adjusted according to the specific circumstances of the case.
665At the outset, with regard to the value of sales as initial data, it is appropriate to use discounted cash receipts as a proxy for that value. As is clear from an examination of the first part of the ninth plea, the value of the discounted cash receipts does, in the present case, provide an appropriate starting point for determining the amount of the fine, since that value reflects the economic significance of the infringement and the strength of the undertaking in the infringement.
666In that regard, the Court had indeed found, in the context of the first part of the ninth plea, that when the banks determined their cash receipts, in certain cases they did use different approaches. However, as follows from paragraph 571 above, those differences do not give rise to a failure to observe the principle of equal treatment.
667In addition, the Court takes the view that other methodologies for calculating cash receipts, such as the one followed by the applicants to determine the revised data submitted to the Commission on 14 October 2006, would not be more appropriate for establishing cash receipts. A methodology that excludes the fixed legs of trades where those trades have both fixed legs and variable legs, that excludes ‘exotic’ derivatives or that applies netting on a monthly basis instead of a daily basis is not more appropriate for determining, in the present case, the value of sales for the purpose of the infringement for which a sanction is being imposed and thus for reflecting adequately the genuine nature and economic scale of that infringement or the position of undertakings in that infringement. In the first place, as regards EIRD contracts with both a fixed leg and a variable leg, the cash flows reflect the difference between the fixed leg and the variable leg on the fixing date, as is clear from paragraph 188 above. The Court takes the view that there is no reason to exclude flows under one of the ‘legs’ in such EIRDs in particular. In the second place, nothing justifies excluding ‘exotic’ derivatives from the calculation of cash receipts where they are also part of the relevant EIRD market. In the third place, given that the parties agree that netting on a daily basis is the market norm, there is no particular circumstance in the present case justifying departing from that.
668In the light of those circumstances, the Court has decided to use the value of cash receipts for Crédit agricole as applied by the Commission in the contested decision when determining the amount of the fine.
669Furthermore, it is important to note that the parties agree that using only cash receipts as the basis for the calculation of the fine would lead to the imposition of a fine that is over-deterrent. The parties therefore agree that it is necessary to reduce those cash receipts by applying a discount factor.
670In the contested decision, the Commission applied a uniform discount factor set at 98.849%.
671That discount factor was determined using a complex exercise reflecting a number of elements, in particular the netting inherent in the negotiation of derivatives in general and the specificities of derivatives netting and, specifically, EIRD netting. It is, therefore, an approximation of a constructed value. Thus, by definition, there is not only one possible discount factor, which is moreover confirmed by the fact that the applicants themselves put forward several different discount factors in their written submissions.
672Thus, for example, according to one study submitted as an annex to the application, an alternative discount factor of 99.849% ‘could also be justified’. Furthermore, in another study submitted as an annex to the statement of modification of the form of order sought, the applicants propose several alternative discount factors, calculated according to a personalised approach, ranging from 99.54% to 99.90%. However, without there being any need to rule on the probative value of those studies or on the merits of the methods for determining the alternative discount factors proposed by the applicants, the Court finds that the application of such alternative discount factors which are particularly high, even excessive, risks making the penalty nugatory by making it immaterial and by undermining the need to ensure that the fine is sufficiently deterrent. The application of such alternative discount factors as proposed by the applicants would therefore lead to the imposition of a fine that does not reflect the economic significance of the infringement or the relative strength of Crédit agricole in that infringement.
673In any event, the parties agree that the discount factor should be set at 98.849% at the very least. In addition, the Court notes that the setting of a fine, in the exercise of its unlimited jurisdiction, is not an arithmetically precise exercise.
674Second, with regard to the gravity of the infringement, the Court takes the view that it is appropriate to take into consideration the nature of the infringement, its geographic scope and whether or not the infringement was implemented.
675As regards the nature of the infringement, since the conduct at issue relates to factors that are relevant to the determination of the prices of EIRDs, they are, by their very nature, among the most serious of restrictions to competition. In addition, the practices at issue are particularly serious and harmful since they are liable not only to distort competition on the EIRD market, but also, more broadly, to compromise the trust placed in the banking system and the financial markets as a whole and their credibility.
676As the Commission found in recital 721 of the contested decision, without those aspects being disputed by the applicants, the benchmarks concerned which are reflected in the pricing of EIRDs apply to all participants in the EIRD market. In addition, since those rates are euro-based, they are of paramount importance for the harmonisation of financial conditions in the internal market and for banking activities in the Member States.
677With regard to the geographic scope of the infringement, as appears from recitals 47 and 721 of the contested decision, the cartel covered at the very least the entire EEA, with the result that the conduct at issue was capable of having an impact on the banking activities of all Member States.
678It is also appropriate to take account of the fact that the Crédit agricole traders admitted to having implemented the conduct arranged with the Barclays trader by making contact with their bank’s submitters (see paragraph 641 above).
679Third, it is appropriate to use the duration of the applicants’ participation in the infringement as found in the contested decision, as it was not disputed by the applicants and since it is not affected by the conclusion reached in paragraph 426 above concerning Crédit agricole’s participation in the single infringement at issue.
680In the second place, with regard to the mitigating circumstances, the Court finds that Crédit agricole played a less important role in the infringement than the main players, such as, for example, Bank D and Bank A. Similarly, the intensity of the contact in which the Crédit agricole traders participated was less than that of the main players. Furthermore, it has not been shown that Crédit agricole knew or could reasonably have presumed that other banks were participating in exchanges relating to pricing intentions and strategies that did not take place with a view to manipulating rates.
681Nevertheless, it is still the case that Crédit agricole’s participation in the infringing conduct was intentional and that the applicants have not demonstrated that they should benefit, in the present case, from the mitigating circumstance relating to negligence. Furthermore, as follows from paragraph 675 above, the conduct at issue is particularly serious. Consequently, the impact on the final amount of the fine of the mitigating circumstances in the form of the limited participation of Crédit agricole in the infringement at issue and the less important role it had in that infringement as compared with the main players can be only marginal.
682In the third place, the amount of the fine determined by the Court takes due account of the need to impose on Crédit agricole a fine of an amount that has a deterrent effect, in accordance with the principles set out in paragraphs 618 to 624 above.
683In the light of all the findings above, the Court finds that, on a fair assessment of the circumstances of the case, having regard to the principle that the fine must be made to fit the offence and to the proportionality of that fine, the amount of the fine for which Crédit agricole SA and CACIB are jointly and severally liable should be set at EUR 110000000.…
Operative part
On those grounds,THE GENERAL COURT (Tenth Chamber, Extended Composition)hereby:
1.Annuls Article 2(a) of Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39914 – Euro Interest Rate Derivatives (EIRD));
2.Sets the amount of the fine for which Crédit agricole SA and Crédit agricole Corporate and Investment Bank are jointly and severally liable at EUR 110000000;
3.Dismisses the action as to the remainder;
4.Orders each party to bear its own costs.
Delivered in open court in Luxembourg on 20 December 2023.
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