• No results found

Reports of Cases. JUDGMENT OF THE COURT (Third Chamber) 10 July 2019 *

N/A
N/A
Protected

Academic year: 2021

Share "Reports of Cases. JUDGMENT OF THE COURT (Third Chamber) 10 July 2019 *"

Copied!
8
0
0

Loading.... (view fulltext now)

Full text

(1)

Reports

of

Cases

JUDGMENT OFTHE COURT (ThirdChamber) 10 July 2019*

(Appeal — Competition — Agreements,decisions andconcerted practices — Japanese yeninterestrate derivatives sector — Decisionfinding an infringement of Article101 TFEUand Article53 of theEEA Agreement — Liabilityof an undertaking foritsroleas facilitator of thecartel— Calculationofthe

fine— Obligationtostate reasons) In Case C-39/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 January 2018,

EuropeanCommission,representedbyB. Mongin,M.Farley, T.Christoforouand V.Bottka, actingas Agents,

applicant, the otherpartiesto theproceedingsbeing:

NEX International Limited,formerly Icap plc, established inLondon (United Kingdom),

Icap Management Services Ltd,established in London,

Icap New Zealand Ltd, established in Wellington (New Zealand), represented by C. Riis-Madsen, advokat,and by S.Frank,avocat,

applicantsat first instance, THE COURT(ThirdChamber),

composed of A. Prechal, President of the Chamber, F. Biltgen, J. Malenovský, C.G. Fernlund (Rapporteur) and L.S. Rossi,judges,

Advocate General:E.Tanchev,

Registrar:L. Hewlett,PrincipalAdministrator,

having regardto thewritten procedureand furthertothe hearing on14 February2019, after hearing the Opinionofthe AdvocateGeneral at thesitting on2May 2019,

gives the following

(2)

Judgment

1 By itsappeal,theEuropean CommissionaskstheCourttosetasidethejudgmentoftheGeneral Court

of theEuropeanUnion of10November 2017,IcapandOthersv Commission(T-180/15, ‘the judgment under appeal’, EU:T:2017:795), by which that court annulled in part Commission Decision C(2015) 432 of 4 February 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39861 — Yen Interest RateDerivatives) (‘the contested decision’).

Background tothe disputeand the contesteddecision

2 It is apparent from the background to the dispute set out in paragraphs 1 to 21 of the contested

decision that Icap plc (NEX International Limited being the successor to Icap plc’s rights and obligations), Icap Management Services Ltd and Icap New Zealand Ltd (together, ‘Icap’), are part of avoice and electronic interdealerbroker whichis alsoa provider ofpost-trade services.

3 By the contested decision, the Commission held that Icap had participated in six infringements of

Article 101 TFEU and Article 53 of the EEA Agreement of 2 May 1992 (OJ 1994 L 1, p. 3), in connection with the manipulation of the London Interbank Offered Rate (LIBOR) and the Tokyo InterbankOffered Rate(TIBOR) interbank referencerates ontheJapanese Yeninterestrate derivatives market; those infringementshad been previouslyfound byCommissionDecision C(2013) 8602final of 4 December 2013 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39861 — Yen Interest RateDerivatives).

4 On 29 October2013the Commissioninitiatedan infringement procedureagainst Icap.

5 On 12 November 2013, Icap informed the Commission of its intention not to opt for a settlement

procedure.

6 On 4 February 2015,the Commission adopted thecontested decision, imposing sixfines on Icap fora

total amount of EUR 14 960 000 for having ‘facilitated’ the following six infringements: – ‘the UBS/RBS 2007infringement’, from14 August until 1November 2007;

– ‘the UBS/RBS 2008infringement’, from28 August until 1November 2007; – ‘the UBS/DB infringement’, from 22 May until 10 August 2009;

– ‘the Citi/RBSinfringement’, from 3May until 22 June2010; – ‘the Citi/DBinfringement’, from 7April until7 June2010; and – ‘the Citi/UBS infringement’, from 28April until 2June 2010.

7 Paragraphs 18 to21 of thejudgmentunder appeal areworded as follows:

‘18. The Commission made the preliminary observation that, under the Guidelines on the method of setting fines imposed pursuant toArticle 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006C 210, p. 2,‘the 2006Guidelines’), thebasic amount ofthe finemustbe determinedhaving regardtothe context inwhichtheinfringementwas committedand inparticularthegravityand durationofthe infringement and that therole playedby eachparticipant mustbe assessedonan individual basis, reflecting anyaggravatingand attenuating circumstances (recital284 ofthecontested decision).

(3)

JUDGMENTOF10.7.2019—CASEC-39/18P

COMMISSIONVICAPANDOTHERS

19. The Commission observed that the 2006 Guidelines provided only limited guidance on the calculation of thefine forfacilitators. Since Icap was an operator active onthe brokerageservices markets, and not on the interest rate derivatives market, the Commission held that it could not substitute brokerage fees for those for the prices of Japanese Yen interest rate derivatives in determining the value of sales and setting the fine, as such substitution does not reflect the gravity and nature of the infringement. It inferred, in essence, that it was necessary to apply point 37 of the 2006Guidelines, which makes it possible todepart from those Guidelines for the determination ofthe basic amount ofthe fine(recital287 ofthecontested decision).

20. Inview ofthegravityoftheconductatissueand thedurationof theIcap’s participationineachof the six infringements at issue, the Commission set, for each infringement, a basic amount of the fine, namelyEUR 1040000 forthe UBS/RBS 2007infringement, EUR 1950000 for theUBS/RBS 2008 infringement, EUR 8170000 forthe UBS/DB infringement, EUR 1930000 for theCiti/RBS infringement, EUR 1150000 for the Citi/DB infringement and EUR 720000 for the Citi/UBS infringement (recital296 ofthe contested decision).

21. Indetermining thefinalamount ofthefine,theCommissionfound thattherewerenoaggravating or mitigating circumstances and noted that the ceiling of 10% of annual turnover had not been exceeded (recital 299 of the contested decision). Article 2 of the operative part of the contested decisiontherefore imposes on theapplicants fines whose final amount is equivalent totheir basic amount.’

The procedurebefore the GeneralCourt and the judgmentunder appeal

8 By application lodged at the General Court Registry on14 April 2015, Icap broughtan action seeking

annulment of the contested decision and, in the alternative, a reduction in the amount of the fines imposed.

9 Icap put forward six pleas in law in support of its application for annulment. By the first four, it

challenged the legality of Article 1 of the contested decision, relating to the existence of the infringements. Thefifth and sixthpleaswere directed againstArticle 2of that decision, relating tothe fines imposed.

10 By the judgment under appeal, the General Court first overturned in part Article 1 of the contested

decision and,second, annulled Article2of that decision.

Forms of order soughtbythe parties beforethe Court of Justice

11 The Commission claims that the Court should:

– set aside the judgment under appeal in so far as it annuls the fines in Article 2 of the contested decision;

– dismiss the fifth and sixth pleas presented by Icap before the General Court, relating to the fines, and establish theappropriate fines onIcap byapplying its unlimitedjurisdiction; and

– orderIcap tobearthe entiretyofthecosts of these proceedingsand toadjusttheorderoncosts in thejudgment underappeal in ordertoreflectthe outcomeofthe presentappeal.

12 Icap contends thatthe Courtshould:

(4)

– order the Commission tobear theentirety of the costs of the present proceedingsincluding those at first instance.

The appeal

13 The Commissionrelies onasingle groundof appeal, allegingan error of law inthe interpretationand

application of thecase-law relatingtothe statement ofreasonsfordecisions imposing fines.

Arguments of the parties

14 The Commission claims that the General Court erredin law in holding that the determination of the

amount of thefines imposed onIcap was not sufficientlyreasoned inthecontested decision.

15 It argues that the General Court, in paragraphs 287 to 291 of the judgment under appeal, relied on a

misinterpretation of the duty to state reasons. In its view, the General Court failed to have regard to the case-law resulting from the judgments of 8 December 2011, Chalkor v Commission (C-386/10 P, EU:C:2011:815, paragraph 61), and of 22 October 2015, AC-Treuhand v Commission (C-194/14 P, EU:C:2015:717, paragraphs 66 to 68),according towhich the Commission fulfils that obligation when it indicates to an undertaking held liable for an infringement of Article 101 TFEU, for its role as facilitator, the factors which enabled it to determine the gravity of the infringement and its duration, and it is not required toindicate all thefigures and calculations madetodetermine theamount of the fine.

16 Moreover, the General Court, in paragraphs 295 and 296 of the judgment under appeal, did not take

into account the judgment of 28 January 2016, Quimitécnica.com and de Mello v Commission

(C-415/14 P, not published, EU:C:2016:58, paragraph 53), from which it follows however that the statement of reasons of a measure of the Commission must be assessed with regard to its context, which includes the exchanges between the Commission and the interested parties, which may have taken place beforeand after theadoption of themeasure inquestion.

17 The Commission takes the view that the contested decision indicates, to the requisite legal standard,

the factors relating to gravity and to the duration of Icap’s participation in the infringement and that its reasoning, in that regard, is comparable to that of the decision at issue in the casewhich gaverise to the judgmentof 22 October2015, AC-Treuhandv Commission(C-194/14 P,EU:C:2015:717).

18 The Commission is of the opinion that it has gone beyond what it was required to do, in order to

respond to Icap, which considered itself to have suffered from unequal treatment compared to the undertaking R.P. Martin, also ordered to pay fines for its role as a facilitator in the same cartel, but which, unlikeIcap, had optedforasettlement.

19 TheCommission statesthat itfirst tookas abasis the valueof salesand theglobalturnover appliedto

the participating banks. It then took into account the duration of Icap’s participation and, finally, applied a reduction to the hypothetical basic amount in order to obtain an adequate and proportionate lump sum fine. The same method was applied to the undertaking R.P. Martin, in accordance with the principle of equal treatment. However, the latter undertaking benefited from a 25% reduction, by way of leniency, as well as a 10% reduction under the settlement procedure. Its turnover was, moreover, almost 20 times lower than that of Icap and its participation in the infringement lastedapproximately 1month,whereas Icap’s was more than 2months.

20 In theevent that theCourt wishes torule on theamount of fines under itsunlimited jurisdiction, the

Commission invites it to set the amount of each fine in proportion to the reduction in the durations found bytheGeneral Court, whichhaveacquired theforceof resjudicata.

(5)

JUDGMENTOF10.7.2019—CASEC-39/18P

COMMISSIONVICAPANDOTHERS

21 Icap maintains that thatground ofappeal isunfounded.

Findings ofthe Court

22 Thegroundofappealraises, inessence, thequestionofwhether theGeneral Courthasdisregardedthe

scope of the duty to state reasons, which is incumbent on the Commission, in holding, in essence, in paragraphs 287 to 296 of the judgment under appeal, that the Commission may not merely rely on the general assurance that the basic amounts imposed on the undertakings liable for the infringements of Article 101 TFEU, for having facilitated a cartel, reflect the gravity, duration and nature of their participation in the infringements as well as the deterrent effect of the fines, even though it is common ground that those amounts have been determined on the basis of a specific methodology, whichwas not disclosed tothose undertakings.

23 As the General Court recalled in paragraphs 287 and 288 of the judgment under appeal, according to

settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court of the European Union to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question of whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C-367/95 P, EU:C:1998:154, paragraph 63, and of 8 May 2019, Landeskreditbank Baden-Württemberg v ECB, C-450/17 P,EU:C:2019:372,paragraph 87).

24 As regards the decisions imposing the fines on the undertakings for the infringement of Article 101

TFEU, the obligation tostate reasonsis of particular importance. It is fortheCommission tostate the reasonsforitsdecisionsand, inparticular,toexplain theweighting and assessmentofthefactors taken into account. The Courts must establish of their own motion that there is a statement of reasons (judgment of8 December2011, Chalkor vCommission, C-386/10 P,EU:C:2011:815, paragraph61).

25 Admittedly, theCommission enjoys abroad discretionas regards the calculationof fines in relationto

infringement of the EU competition rules (judgment of 19 December 2012, Heineken Nederland and Heineken v Commission, C-452/11 P, not published, EU:C:2012:829, paragraph 92 and the case-law

cited), it has nevertheless adopted, in the interests of transparency, the 2006 Guidelines, in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine (judgment of 8 December 2011, Chalkor v Commission, C-386/10 P, EU:C:2011:815, paragraph 59).

26 The 2006 Guidelines, accordingly, are based on taking into account the value of sales of the products

concerned to which the infringement relates in determining thebasic amount of fines tobe imposed. Those Guidelines provide, in paragraphs 6 and 13, that the value of those sales, in combination with the duration of the infringement, are intended to ‘reflect the economic importance of the infringement, as well asthe relativeweightof eachundertaking inthe infringement’.

27 However,that methodmaysometimesprove unsuitedtotheparticularcircumstancesof acase.Thatis

particularly the case when an undertaking found liable for an infringement of Article 101 TFEU for facilitating an agreement does not generate any turnover in the relevant product markets. In such a situation, theCourt found thatthe Commissionwas justified inusing a calculationmethod otherthan that described in the 2006 Guidelines and, in accordance with paragraph 37 of those Guidelines, in settingalump sumbasic amount ofthefineimposed ontheundertaking which,throughitsconsulting activity, hadfacilitated an agreement(see, tothateffect,judgment of22 October2015,AC-Treuhand v

(6)

28 As regards determining the scope of the Commission’s obligation to state reasons when it sets aside

the general methodology laid down by the 2006 Guidelines, it should be borne in mind that, according tosettled case-law,although adecisionof theCommission whichfits intoawell-established line of decisions may be reasoned in a summary manner (for example by a reference to those decisions), the Commission must, if a decision goes appreciably further than the previous decisions, provide a fuller account of its reasoning (see, inter alia, judgment of 26 November 1975, Groupement des fabricants de papiers peints de Belgique and Others v Commission, 73/74, EU:C:1975:160, paragraph 31, and of 29 September 2011, Elf Aquitaine v Commission, C-521/09 P, EU:C:2011:620, paragraph 155).

29 It is appropriate also to refer to the settled case-law to the effect that those Guidelines lay down a rule

of conduct indicating the approach to be adopted from which the Commission cannot depart, in an individual case, without giving reasons which are compatible with, inter alia, the principle of equal treatment (see, to that effect, judgments of 30 May 2013, Quinn Barlo and Others v Commission,

C-70/12 P, not published, EU:C:2013:351, paragraph 53, and of 11 July 2013, Ziegler v Commission, C-439/11 P,EU:C:2013:513, paragraph60 and thecase-law cited).

30 Where the Commission relies on paragraph 37 of the 2006 Guidelines, it is therefore obliged to set out

the reasons enabling it to consider that the particularities of the case before it or the need to achieve deterrence justify that it departs from the method set out in those Guidelines, as the General Court found, inessence, at paragraph 289of thejudgment underappeal.

31 Furthermore, theCommission fulfils itsobligation tostate reasonswhenit setsout,in itsdecision, the

factors which enabled it to determine the gravity of the infringement and its duration (judgment of 22 October 2015, AC-Treuhand v Commission, C-194/14 P, EU:C:2015:717, paragraph 68). Although it is not required to provideall of the figures relating toeach of theintermediate stepsrelating to the method ofcalculation, it isnevertheless incumbentonit, astheGeneral Court foundinparagraph 291 of the judgment under appeal, to explain the weighting and assessment of the factors taken into account (judgment of 8 December 2011, Chalkor v Commission, C-386/10 P, EU:C:2011:815,

paragraph 61).

32 Although reference to those factors is necessary, the question of whether that reference is sufficient

must be assessed in light of the circumstances at issue and the context in which the Commission’s decision isbased.

33 Admittedly, in a case in which the Commission had set as a lump sum the basic amount of the fine

imposed ontheundertaking which hadfacilitated thecartel, theCourt has foundthat it was sufficient that the reasoning solely stated that account had been taken of the gravity and duration of the infringements when determining that amount (see, to that effect, judgment of 22 October 2015,

AC-Treuhand v Commission, C-194/14 P, EU:C:2015:717, paragraphs 68 and 69). However, it cannot be inferred from that judgment that such reasoning is always sufficient, irrespective of the particularities ofthe situationin question.

34 Moreover, where the Commissiondeparts fromthe 2006Guidelines and applies another methodology

specifically adaptedtotheparticularitiesofthesituationof undertakingsthathavefacilitated acartel,it is necessary, in view of the rights of thedefence, that that methodology be disclosed tothe interested parties, so that they can be put in a position to make their views known on the factors on which the Commission intends to base its decision (see, by analogy, judgment of 22 October 2013, Sabou,

C-276/12, EU:C:2013:678, paragraph 38 and the case-law cited). That disclosure contributes to the fairness, impartiality and quality of the Commission’s decisions which, ultimately, is the basis of the trust that the public and business place in the legitimacy of the Commission’s action in competition matters (see, to that effect, judgment of 16 January 2019, Commission v United Parcel Service, C-265/17 P,EU:C:2019:23,paragraphs 31,33, 34 and 53).

(7)

JUDGMENTOF10.7.2019—CASEC-39/18P

COMMISSIONVICAPANDOTHERS

35 In the present case, it is common ground that the Commission determined the basic amount of the

fines imposed on Icap and on R.P. Martin on the basis of the same method specifically developed to deal with theparticular situation of the facilitators and based on afive-step testwhich determines the duration and gravity of theirinvolvement inthe infringementsin question. Thus,thecircumstances of the present case differ from those at issue in thecase which gaverise to the judgment of 22 October 2015, AC-Treuhand v Commission (C-194/14 P, EU:C:2015:717), in which the Commission had defined as alump sum thebasic amount of thefineimposed on thesolefacilitator of thecartel.

36 In addition, theGeneral Courtstated, in paragraph 293of the judgmentunder appeal, that recital 287

of the contested decision ‘does not provide details on the alternative method favoured by the Commission, but is limited to a general assurance that the basic amounts reflect thegravity, duration and nature ofIcap’s involvement in theinfringements at issue, as wellas theneed toensure that fines have asufficientlydeterrent effect.’

37 In the light of the points of law set out in paragraphs 28 to 34 of the present judgment, the General

Court was right to agree with the assessment, in paragraph 294 of the judgment under appeal, according to which, first, ‘drafted in that manner, recital 287 of the contested decision does not enable the applicants to understand the justification for the methodology favoured by the Commission, ortheCourt toverify thatjustification’ and, second, ‘that insufficient reasoning is alsoto befound inrecitals290to296ofthat decision, whichdonotprovidetheminimuminformation which might have made it possible to understand and ascertain the relevance and weighting of the factors taken intoconsideration by the Commission in thedetermination of thebasic amount of thefines, in breach of the case-law’ (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C-386/10 P, EU:C:2011:815, paragraph 61).

38 Contrary totheCommission’s contention, theobligation toprovidesufficient reasonsfortherelevance

and weighting of the factors which it has taken into account in determining the alternative method it has favoured does not mean, having regard to the case-law set out in paragraph 31 of the present judgment, that it is required toprovide figuresrelating to themethod of calculating thefine orthat it is required to explain in detail the internal calculations which it has carried out. In the present case, the Commission did not, moreover, claim that the enumeration of thefive steps which comprises the alternative methodadopted, and which itset out solelyat thestage of theproceedingsfollowed before the GeneralCourt, led itto revealnumericaldata orinternal calculations.

39 The Commission also contends that the General Court failed to take into account the information

relating to the calculation methodology, which has been provided to the applicant in the context of the administrativeprocedureas wellas at thelitigation stage.

40 However, taking account ofthe importance ofthe obligation tostate reasonshaving regardthe factors

set out in paragraph 34 of the present judgment, the General Court did not err in law in finding, in paragraph 295 of thejudgment under appeal, that ‘the reasoning ofa contested act must be examined taking into account its context, the view cannot be taken that holding … exploratory and informal discussions can relieve the Commission of its obligation to explain, in the contested decision, the methodology that it appliedforthepurposes of determiningthe amountsof thefines imposed.’

41 Moreover, having regard to the absence of any explanation as to the relevance and weighting of the

factors taken into account by the Commission in determining the method of calculating the basic amount of the fine imposed on Icap, it is right that the General Court held, in paragraph 296 of the judgment under appeal, that an ‘an explanation provided at the stage of the proceedings before the Court [could] not be taken into account for the purposes of assessing whether the Commission has complied withitsobligation tostate reasons’.

(8)

43 It follows fromalltheforegoing thatthe appealmust bedismissed.

Costs

44 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of

Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Icap applied for costs against the Commission and the latter hasbeen unsuccessful,theCommission mustbeordered topaythecosts.

On those grounds,the Court(ThirdChamber) hereby:

1. Dismissesthe appeal;

2. Ordersthe EuropeanCommissionto paythe costs.

Prechal Biltgen Malenovský

Fernlund Rossi

Delivered in open courtin Luxembourg on10 July2019.

A. Calot Escobar A. Prechal

References

Related documents

In this study, it is also found that satisfaction has mediating effect on the relationships between service quality dimensions (tangibles, reliability, responsiveness, empathy

In the first published study of its kind, researchers from the Catholic University/ Policlinico Gemelli in Rome, Italy, and NewYork-Presbyterian/Weill Cornell Medical Center

As a result, as summarized in Section IV.E, a detailed policy announcement is regarded as a feasible, less costly, and less risky option, although additional effects of monetary

○ If BP elevated, think primary aldosteronism, Cushing’s, renal artery stenosis, ○ If BP normal, think hypomagnesemia, severe hypoK, Bartter’s, NaHCO3,

i)to%i!no v. Tuve%! Case No.. STATUTORY CONSTRUCTI ON Butie%%e- v. C!%pio Case No.. STATUTORY CONSTRUCTI ON U.S. CA Case No. In Con)ep)ion v.. STATUTORY CONSTRUCTI ON Hid!lo

Proposition 1: In emerging markets, a favorable reputation – comprising prominence; beliefs about quality; and beliefs about resilience – can help firms overcome and capitalize

The Toulouse-Matabiau railway station is located in the city center of Toulouse, 14 minutes’ walk to ENSEEIHT (conference location).. This train station has a metro station