JUDGMENT OF THE COURT (Third Chamber)

10 July 2019 ( *1 )

(Appeal — Competition — Agreements, decisions and concerted practices — Japanese yen interest rate derivatives sector — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Liability of an undertaking for its role as facilitator of the cartel — Calculation of the fine — Obligation to state 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,

European Commission , represented by B. Mongin, M. Farley, T. Christoforou and V. Bottka, acting as Agents,

applicant,

the other parties to the proceedings being:

NEX International Limited , formerly Icap plc, established in London (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,

applicants at first instance,

THE COURT (Third Chamber),

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, Principal Administrator,

having regard to the written procedure and further to the hearing on 14 February 2019,

after hearing the Opinion of the Advocate General at the sitting on 2 May 2019,

gives the following

Judgment

1By its appeal, the European Commission asks the Court to set aside the judgment of the General Court of the European Union of 10 November 2017, Icap and Others v 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 Rate Derivatives) (‘the contested decision’).

Background to the dispute and the contested decision

2It 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 a voice and electronic interdealer broker which is also a provider of post-trade services.

3By 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 Interbank Offered Rate (TIBOR) interbank reference rates on the Japanese Yen interest rate derivatives market; those infringements had been previously found by Commission Decision C(2013) 8602 final of 4 December 2013 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39861 — Yen Interest Rate Derivatives).

4On 29 October 2013 the Commission initiated an infringement procedure against Icap.

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

6On 4 February 2015, the Commission adopted the contested decision, imposing six fines on Icap for a total amount of EUR 14960000 for having ‘facilitated’ the following six infringements:

–

‘the UBS/RBS 2007 infringement’, from 14 August until 1 November 2007;

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‘the UBS/RBS 2008 infringement’, from 28 August until 1 November 2007;

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‘the UBS/DB infringement’, from 22 May until 10 August 2009;

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‘the Citi/RBS infringement’, from 3 May until 22 June 2010;

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‘the Citi/DB infringement’, from 7 April until 7 June 2010; and

–

‘the Citi/UBS infringement’, from 28 April until 2 June 2010.

7Paragraphs 18 to 21 of the judgment under appeal are worded as follows:

‘18.

The Commission made the preliminary observation that, under the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 ( OJ 2006 C 210, p. 2 , ‘the 2006 Guidelines’), the basic amount of the fine must be determined having regard to the context in which the infringement was committed and in particular the gravity and duration of the infringement and that the role played by each participant must be assessed on an individual basis, reflecting any aggravating and attenuating circumstances (recital 284 of the contested decision).

19.The Commission observed that the 2006 Guidelines provided only limited guidance on the calculation of the fine for facilitators. Since Icap was an operator active on the brokerage services 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 2006 Guidelines, which makes it possible to depart from those Guidelines for the determination of the basic amount of the fine (recital 287 of the contested decision).

20.In view of the gravity of the conduct at issue and the duration of the Icap’s participation in each of the six infringements at issue, the Commission set, for each infringement, a basic amount of the fine, namely EUR 1040000 for the UBS/RBS 2007 infringement, EUR 1950000 for the UBS/RBS 2008 infringement, EUR 8170000 for the UBS/DB infringement, EUR 1930000 for the Citi/RBS infringement, EUR 1150000 for the Citi/DB infringement and EUR 720000 for the Citi/UBS infringement (recital 296 of the contested decision).

21.In determining the final amount of the fine, the Commission found that there were no aggravating 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 decision therefore imposes on the applicants fines whose final amount is equivalent to their basic amount.’

The procedure before the General Court and the judgment under appeal

8By application lodged at the General Court Registry on 14 April 2015, Icap brought an action seeking annulment of the contested decision and, in the alternative, a reduction in the amount of the fines imposed.

9Icap 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. The fifth and sixth pleas were directed against Article 2 of that decision, relating to the fines imposed.

10By the judgment under appeal, the General Court first overturned in part Article 1 of the contested decision and, second, annulled Article 2 of that decision.

Forms of order sought by the parties before the Court of Justice

11The 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 the appropriate fines on Icap by applying its unlimited jurisdiction; and

–

order Icap to bear the entirety of the costs of these proceedings and to adjust the order on costs in the judgment under appeal in order to reflect the outcome of the present appeal.

12Icap contends that the Court should:

–

dismiss the appeal in whole or in part; and

–

order the Commission to bear the entirety of the costs of the present proceedings including those at first instance.

The appeal

13The Commission relies on a single ground of appeal, alleging an error of law in the interpretation and application of the case-law relating to the statement of reasons for decisions imposing fines.

Arguments of the parties

14The Commission claims that the General Court erred in law in holding that the determination of the amount of the fines imposed on Icap was not sufficiently reasoned in the contested decision.

15It 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 to which 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 to indicate all the figures and calculations made to determine the amount of the fine.

16Moreover, 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.comand 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 before and after the adoption of the measure in question.

17The 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 case which gave rise to the judgment of 22 October 2015, AC-Treuhand v Commission ( C‑194/14 P , EU:C:2015:717 ).

18The 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, unlike Icap, had opted for a settlement.

19The Commission states that it first took as a basis the value of sales and the global turnover applied to 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 lasted approximately 1 month, whereas Icap’s was more than 2 months.

20In the event that the Court wishes to rule on the amount of fines under its unlimited jurisdiction, the Commission invites it to set the amount of each fine in proportion to the reduction in the durations found by the General Court, which have acquired the force of res judicata .

21Icap maintains that that ground of appeal is unfounded.

Findings of the Court

22The ground of appeal raises, in essence, the question of whether the General Court has disregarded the 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, which was not disclosed to those undertakings.

24As regards the decisions imposing the fines on the undertakings for the infringement of Article 101 TFEU, the obligation to state reasons is of particular importance. It is for the Commission to state the reasons for its decisions and, in particular, to explain the weighting and assessment of the factors taken into account. The Courts must establish of their own motion that there is a statement of reasons (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P , EU:C:2011:815 , paragraph 61 ).

25Admittedly, the Commission enjoys a broad discretion as regards the calculation of fines in relation to 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 ).

26The 2006 Guidelines, accordingly, are based on taking into account the value of sales of the products concerned to which the infringement relates in determining the basic amount of fines to be 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 as the relative weight of each undertaking in the infringement’.

27However, that method may sometimes prove unsuited to the particular circumstances of a case. That is 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, the Court found that the Commission was justified in using a calculation method other than that described in the 2006 Guidelines and, in accordance with paragraph 37 of those Guidelines, in setting a lump sum basic amount of the fine imposed on the undertaking which, through its consulting activity, had facilitated an agreement (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P , EU:C:2015:717 , paragraphs 65 to 67 ).

28As 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 to settled case-law, although a decision of the Commission which fits into a well-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 ).

29It 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 , paragraph 60 and the case-law cited).

30Where 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, in essence, at paragraph 289 of the judgment under appeal.

31Furthermore, the Commission fulfils its obligation to state reasons when it sets out, in its decision, 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 provide all of the figures relating to each of the intermediate steps relating to the method of calculation, it is nevertheless incumbent on it, as the General Court found in paragraph 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 ).

32Although 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 is based.

33Admittedly, in a case in which the Commission had set as a lump sum the basic amount of the fine imposed on the undertaking which had facilitated the cartel, the Court has found that 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 of the situation in question.

34Moreover, where the Commission departs from the 2006 Guidelines and applies another methodology specifically adapted to the particularities of the situation of undertakings that have facilitated a cartel, it is necessary, in view of the rights of the defence, that that methodology be disclosed to the 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 ).

35In 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 the particular situation of the facilitators and based on a five-step test which determines the duration and gravity of their involvement in the infringements in question. Thus, the circumstances of the present case differ from those at issue in the case which gave rise 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 a lump sum the basic amount of the fine imposed on the sole facilitator of the cartel.

36In addition, the General Court stated, in paragraph 293 of the judgment under 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 the gravity, duration and nature of Icap’s involvement in the infringements at issue, as well as the need to ensure that fines have a sufficiently deterrent effect.’

37In 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, or the Court to verify that justification’ and, second, ‘that insufficient reasoning is also to be found in recitals 290 to 296 of that decision, which do not provide the minimum information which might have made it possible to understand and ascertain the relevance and weighting of the factors taken into consideration by the Commission in the determination of the basic amount of the fines, 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 ).

38Contrary to the Commission’s contention, the obligation to provide sufficient reasons for the relevance 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 to provide figures relating to the method of calculating the fine or that 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 the five steps which comprises the alternative method adopted, and which it set out solely at the stage of the proceedings followed before the General Court, led it to reveal numerical data or internal calculations.

39The 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 administrative procedure as well as at the litigation stage.

40However, taking account of the importance of the obligation to state reasons having regard the factors set out in paragraph 34 of the present judgment, the General Court did not err in law in finding, in paragraph 295 of the judgment under appeal, that ‘the reasoning of a 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 applied for the purposes of determining the amounts of the fines imposed.’

41Moreover, 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 with its obligation to state reasons’.

42The sole ground of appeal must therefore be dismissed as being unfounded.

43It follows from all the foregoing that the appeal must be dismissed.

Costs

44Under 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 has been unsuccessful, the Commission must be ordered to pay the costs.

On those grounds, the Court (Third Chamber) hereby:

1.Dismisses the appeal;

2.Orders the European Commission to pay the costs.

Prechal

Biltgen

Malenovský

Fernlund

Rossi

Delivered in open court in Luxembourg on 10 July 2019.

A. Calot Escobar

Registrar

A. Prechal

President of the Third Chamber

( *1 ) Language of the case: English.