(Competition\u00a0\u2014 Agreements, decisions and concerted practices\u00a0\u2014 Yen interest rate derivatives sector\u00a0\u2014 Decision finding six infringements of Article\u00a0101 TFEU and Article\u00a053 of the EEA Agreement\u00a0\u2014 Manipulation of the JPY LIBOR and Euroyen TIBOR interbank reference rates\u00a0\u2014 Restriction of competition by object\u00a0\u2014 Participation of a broker in the infringements\u00a0\u2014 \u2018Hybrid\u2019 settlement procedure\u00a0\u2014 Principle of the presumption of innocence\u00a0\u2014 Principle of sound administration\u00a0\u2014 Fines\u00a0\u2014 Basic amount\u00a0\u2014 Exceptional adjustment\u00a0\u2014 Article\u00a023(2) of Regulation (EC) No\u00a01\/2003\u00a0\u2014 Obligation to state reasons)<\/p>\n
In Case T\u00a0180\/15,<\/p>\n
omitted<\/p>\n
applicants,<\/p>\n
v<\/p>\n
European Commission,\u00a0represented by \u2026.., acting as Agents,<\/p>\n
defendant,<\/p>\n
ACTION brought under Article\u00a0263 TFEU for annulment of Commission Decision C(2015) 432 final of 4\u00a0February 2015 relating to proceedings under Article\u00a0101 TFEU and Article\u00a053 of the EEA Agreement (Case AT.39861\u00a0\u2014 Yen Interest Rate Derivatives), and, in the alternative, for a reduction in the amount of the fines imposed on the applicants in that decision,<\/p>\n
THE GENERAL COURT (Second Chamber, Extended Composition),<\/p>\n
<\/p>\n
<\/p>\n
having regard to the written part of the procedure and further to the hearing on 10\u00a0January 2017,<\/p>\n
gives the following<\/p>\n
Judgment<\/p>\n
I.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Background to the dispute<\/p>\n
1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The applicants,……, are part of a voice and electronic interdealer broker which is also a provider of post-trade services (\u2018….).<\/p>\n
2\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0By its Decision C(2015) 432 final of 4\u00a0February 2015 relating to proceedings under Article\u00a0101 TFEU and Article\u00a053 of the EEA Agreement (Case AT.39861\u00a0\u2014 Yen Interest Rate Derivatives) (\u2018the contested decision\u2019), the European Commission held that … had participated in the commission of six infringements of Article\u00a0101 TFEU and Article\u00a053 of the EEA Agreement in connection with the manipulation of the\u00a0London Interbank Offered Rate\u00a0(LIBOR) and the\u00a0Tokyo Interbank Offered Rate\u00a0(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\u00a0December 2013 relating to a proceeding under Article\u00a0101 TFEU and Article\u00a053 of the EEA Agreement (Case AT.39861\u00a0\u2014 Yen Interest Rate Derivatives) (\u2018the 2013 decision\u2019).<\/p>\n
3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 17\u00a0December 2010, \u2026. applied to the Commission for a marker under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C\u00a0298, p.\u00a017, \u2018the Leniency Notice\u2019), informing it of the existence of a cartel in the Japanese Yen interest rate derivatives sector.<\/p>\n
4\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 24\u00a0April 2011, 18\u00a0November 2011, 28\u00a0September 2012 and 3\u00a0December 2012, \u2026… respectively submitted applications under the Leniency Notice (recitals 47 to 50 of the contested decision). On 29\u00a0June 2011 and 12\u00a0February 2013, the Commission granted….. conditional immunity pursuant to point\u00a08(a) of that notice (recitals 45 and 47 of the contested decision).<\/p>\n
5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 12\u00a0February 2013, pursuant to Article\u00a011(6) of Council Regulation (EC) No\u00a01\/2003 of 16\u00a0December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L\u00a01, p.\u00a01), the Commission initiated infringement proceedings against…. (recital 51 of the contested decision).<\/p>\n
6\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 29\u00a0October 2013, the Commission addressed a statement of objections to the companies referred to in paragraph\u00a05 above (recital 52 of the contested decision).<\/p>\n
7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On the basis of the settlement procedure under Article\u00a010a of Commission Regulation (EC) No\u00a0773\/2004 of 7\u00a0April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L\u00a0123, p.\u00a018), as amended by Commission Regulation (EC) No 622\/2008 of 30 June 2008 (OJ 2008 L 171, p. 3), the Commission adopted the 2013 decision by which it found that the companies referred to in paragraph\u00a05 above had infringed the provisions of Article\u00a0101 TFEU and Article\u00a053 of the EEA Agreement by participating in agreements or concerted practices which had as their object the restriction or distortion of competition in the Japanese Yen interest rate derivatives sector.<\/p>\n
A.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Administrative procedure prior to the contested decision<\/p>\n
8\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 29\u00a0October 2013, the Commission initiated infringement proceedings against the applicants pursuant to Article\u00a011(6) of Regulation No\u00a01\/2003 (recital 53 of the contested decision).<\/p>\n
9\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 31\u00a0October 2013, a settlement meeting was held in accordance with Article\u00a010a of Regulation No\u00a0773\/2004, in the course of which the Commission informed the applicants of the objections it envisaged raising against \u2026. and disclosed the main pieces of evidence in its file underlying those objections (recital 54 of the contested decision).<\/p>\n
10\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 12\u00a0November 2013, the applicants informed the Commission of their intention not to opt for a settlement procedure (recital 55 of the contested decision).<\/p>\n
11\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 6\u00a0June 2014, the Commission addressed a statement of objections to the applicants. The applicants responded on 14\u00a0August 2014 and during the hearing which took place on 12\u00a0September 2014 (recitals 58 and 59 of the contested decision).<\/p>\n
12\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 4\u00a0February 2015, the Commission adopted the contested decision, finding Icap guilty of having \u2018facilitated\u2019 six infringements and imposing on it six fines of EUR\u00a014\u00a0960\u00a0000 in total.<\/p>\n
B.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Contested decision<\/p>\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The products at issue<\/p>\n
13\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The infringements at issue relate to Japanese Yen Interest Rate Derivatives referencing the JPY LIBOR or the Euroyen TIBOR.\u00a0The JPY LIBOR is a set of reference interest rates set in London (United Kingdom) which, at the time that the contested decision was adopted, was set and published by the British Bankers Association (BBA) and used for many financial instruments denominated in Japanese Yen. It is calculated on the basis of the rate estimates submitted daily by a panel of banks which are members of that association (\u2018the JPY LIBOR panel\u2019). Those submissions reflect the \u2018average\u2019 rate from which each panel bank could borrow funds by asking for and then accepting interbank offers in a reasonable size. On the basis of the submissions from those banks and excluding the four highest references and the four lowest references, the BBA thus set the daily JPY LIBOR rates. The Euroyen TIBOR is a set of reference interest rates used in Tokyo (Japan) which fulfils an equivalent function but is calculated by the Japanese Bankers Association (JBA) on the basis of the submissions from a panel of the members of that association and excluding the two highest references and the two lowest ones. The Commission found that the JPY LIBOR and Euroyen TIBOR rates are reflected in the pricing of Japanese Yen interest rate derivatives. They may affect the cash flow that a bank will either pay or receive on the expiry of the term of its counterparty or at specific intervals. The most common derivatives are forward rate agreements, interest rate swaps, interest rate options and interest rate futures (see recitals 9 to 19 of the contested decision).<\/p>\n
2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Conduct of which Icap was found guilty<\/p>\n
14\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The conduct of which … was found guilty consists in the \u2018facilitation\u2019 of six infringements, namely:<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u2018…..2007 infringement\u2019, from 14 August until 1\u00a0November 2007;<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u2018the…. 2008 infringement\u2019, from 28 August until 3\u00a0November 2008;<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u2018the…. infringement\u2019, from 22\u00a0May until 10\u00a0August 2009;<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u2018the…. infringement\u2019, from 3 March until 22\u00a0June 2010;<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u2018the… infringement\u2019, from 7 April until 7\u00a0June 2010;<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u2018the… infringement\u2019, from 28 April until 2\u00a0June 2010.<\/p>\n
15\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the first place, the Commission noted in particular that \u2026. participated in the cash deposit Japanese Yen active market as a broker, through its \u2018Cash\/Money Market desk\u2019, which is based in London. As part of that activity, it distributed quotes to participants on that market showing both the volumes available and the price, the purpose of which was to facilitate the conclusion of agreements between those participants. With regard, more specifically, to the quotes provided by Icap to those participants, the Commission stated, in essence, that they included quotes for the daily JPY LIBOR rates in the form of a spreadsheet circulated to financial institutions, including members of the JPY LIBOR panel. The Commission considered that that spreadsheet had a decisive influence over the conduct of the banks when they circulated their rate submissions (recitals 98 to 101 of the contested decision).<\/p>\n
16\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the second place, the Commission held that Icap was also a broker in the Japanese Yen interest rate derivatives market, that role being performed by a specific desk. It considered that some of the traders on that desk, in addition to legitimate transactions with Mr\u00a0…, a trader for…. and later for …, also attempted, at his request, to affect the JPY LIBOR rate by adjusting the spreadsheet in question and by using…. contacts with certain JPY LIBOR panel banks (recitals 102 and 103 of the contested decision).<\/p>\n
17\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the third place, the Commission considered that this had led … to facilitate the commission of the six infringements found in the 2013 decision (recitals 165 to 171 of the contested decision). With regard, first, to the \u2026.. 2007, \u2026. 2008 and … infringements, the Commission stated that a trader of … had used Icap\u2019s services with the aim of influencing the submissions of certain JPY LIBOR panel banks that did not participate in those three cartels. In this regard, the Commission found that … had used its contacts with those panel banks in a direction desired by UBS and had disseminated misleading information on future JPY LIBOR rates (recital 77(a) and (b) and recitals 106 to 141 of that decision). With regard, second, to the…. and … infringements, the Commission held that a trader of … used … services with the aim of influencing the submissions of certain JPY LIBOR panel banks that did not participate in those two infringements. In this connection, the Commission also found that … had used its contacts with banks that were members of that panel and disseminated misleading information (recital 83(a) and (b) and recitals 154 to 164 of that decision). With regard, third, to the … infringement, the Commission found that … had served as a communication channel between a trader of … and a trader of… with the aim of facilitating its implementation (recitals 84 and 142 to 153 of that decision).<\/p>\n
3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Calculation of the fine<\/p>\n
18\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Commission made the preliminary observation that, under the Guidelines on the method of setting fines imposed pursuant to Article\u00a023(2)(a) of Regulation (EC) No\u00a01\/2003 (OJ 2006 C\u00a0210, p.\u00a02, \u2018the 2006 Guidelines\u2019), 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).<\/p>\n
19\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Commission observed that the 2006 Guidelines provided only limited guidance on the calculation of the fine for facilitators. Since … 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\u00a037 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).<\/p>\n
20\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In view of the gravity of the conduct at issue and the duration of the … participation in each of the six infringements at issue, the Commission set, for each infringement, a basic amount of the fine, namely EUR\u00a01\u00a0040\u00a0000 for the \u2026. 2007 infringement, EUR\u00a01\u00a0950\u00a0000 for the \u2026. 2008 infringement, EUR\u00a08\u00a0170\u00a0000 for the \u2026. infringement, EUR\u00a01\u00a0930\u00a0000 for the \u2026. infringement, EUR\u00a01\u00a0150\u00a0000 for the … infringement and EUR\u00a0720\u00a0000 for the … infringement (recital 296 of the contested decision).<\/p>\n
21\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In 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\u00a02 of the operative part of the contested decision therefore imposes on the applicants fines whose final amount is equivalent to their basic amount.<\/p>\n
II.\u00a0\u00a0\u00a0\u00a0Procedure and forms of order sought<\/p>\n
22\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0By application lodged at the Court Registry on 14\u00a0April 2015, the applicants brought the present action.<\/p>\n
23\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 15\u00a0February 2016, on a proposal from the Judge-Rapporteur, by way of measures of organisation of procedure provided for in Article\u00a089 of its Rules of Procedure, the Court (Fourth Chamber) invited the applicants to reply to a question concerning their second plea in law, following the delivery of the judgment of 22\u00a0October 2015,\u00a0AC-….\u00a0v\u00a0Commission\u00a0(C\u00a0194\/14\u00a0P, EU:C:2015:717).<\/p>\n
24\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 29\u00a0February 2016, the applicants replied to the question put by the General Court, abandoning a part of their second plea in law.<\/p>\n
25\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0When the composition of the chambers of the Court was altered, the Judge-Rapporteur was assigned to the Second Chamber, to which this case was, consequently, assigned.<\/p>\n
26\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On a proposal from the Second Chamber, the Court decided, pursuant to Article\u00a028 of the Rules of Procedure, to assign the case to a Chamber sitting in extended composition.<\/p>\n
27\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On a proposal from the Judge-Rapporteur, the Court (Second Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article\u00a089 of its Rules of Procedure, put written questions to the parties and asked the Commission to produce the applications for settlement submitted by … in respect of the \u2026. 2007 and … 2008 infringements.<\/p>\n
28\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 30\u00a0November 2016, the Commission declined to accede to the request for production of documents. By an order of 1\u00a0December 2016, the General Court ordered the Commission to provide it with those two documents. In accordance with the first subparagraph of Article\u00a092(3) of the Rules of Procedure, and with a view to reconciling the adversarial principle and the characteristics of the settlement procedure, the order of 1\u00a0December 2016 limited inspection of those two documents to the parties\u2019 representatives at the Registry, without the possibility of any copies being made. On 7\u00a0December 2016, the Commission complied with the measure of inquiry.<\/p>\n
29\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 8 and 9\u00a0December 2016, the applicants and the Commission respectively replied to the questions put by the Court. On 31\u00a0December 2016 and 5\u00a0January 2017, the Commission and the applicants respectively submitted their observations on the replies submitted by the other party.<\/p>\n
30\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The parties presented oral argument and replied to the Court\u2019s oral questions at the hearing on 10\u00a0January 2017.<\/p>\n
31\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The applicants claim that the Court should:<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0annul in whole or in part the contested decision;<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0in the alternative, annul or reduce the amount of the fines imposed;<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0order the Commission to pay the legal and other costs and expenses incurred in relation to this matter;<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0take any other measures that the Court considers appropriate.<\/p>\n
32\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Commission contends that the Court should:<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0dismiss the action in its entirety;<\/p>\n
\u2013\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0order the applicants to pay the costs.<\/p>\n
III.\u00a0Law<\/p>\n
A.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The admissibility of a document and of a head of claim<\/p>\n
33\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Commission contests the admissibility of the applicants\u2019 fourth head of claim and the admissibility of a letter addressed to the Court.<\/p>\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Admissibility of the applicants\u2019 fourth head of claim<\/p>\n
34\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0By their fourth head of claim, the applicants request the Court to \u2018take any other measures that [it] considers appropriate\u2019.<\/p>\n
35\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In so far as such a head of claim must be interpreted as a request that the Court should issue directions to the Commission, it must be recalled that it is settled case-law that the Courts of the European Union are not entitled, when exercising judicial review of legality, to issue directions to the institutions or to assume the role assigned to them. It is for the institution concerned, under Article\u00a0266 TFEU, to adopt the measures required to give effect to a judgment delivered in an action for annulment (see judgment of 30\u00a0May 2013,\u00a0Omnis Group\u00a0v\u00a0Commission, T\u00a074\/11, not published, EU:T:2013:283, paragraph\u00a026 and the case-law cited).<\/p>\n
36\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In so far as the fourth head of claim includes a request for an instruction to be issued, it must therefore be declared inadmissible.<\/p>\n
2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The challenge to the admissibility of a letter from the applicants<\/p>\n
37\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the rejoinder, the Commission contends that a letter from the applicants addressed to the General Court and a copy of which was communicated directly to the Commission by the applicants must be declared inadmissible because it fails to comply with the provisions of the Rules of Procedure.<\/p>\n
38\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0It is sufficient in that regard to note that, by a decision of 2\u00a0March 2016, it was decided not to place that letter on the case file. The Commission\u2019s challenge of admissibility is therefore devoid of purpose.<\/p>\n
B.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The action for annulment<\/p>\n
39\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In support of its action for annulment of the contested decision, the applicants put forward six pleas in law. The first four pleas in law concern, respectively: first, the interpretation and application of the concept of restriction or distortion of competition \u2018by object\u2019 within the meaning of Article\u00a0101(1) TFEU; second, the application of the concept of \u2018facilitation\u2019 to the facts of the present case; third, the duration of the six infringements at issue and; fourth, a breach of the principles of presumption of innocence and good administration, regarding the legality of Article\u00a01 of that decision, relating to the existence of those infringements. The fifth and sixth pleas in law, relating, respectively, to the determination of the amount of the fines and a breach of the\u00a0ne bis in idem\u00a0principle, concern the legality of Article\u00a02 of that decision, relating to the fines imposed by the Commission for each of those infringements.<\/p>\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The first plea in law, alleging errors in the interpretation of the concept of restriction or distortion of competition \u2018by object\u2019 within the meaning of Article\u00a0101(1) TFEU<\/p>\n
40\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the first plea, the applicants challenge the characterisation of the conduct with which the Commission takes issue as an infringement by object, inasmuch as that conduct is not likely to influence competition, and infer from this that … cannot be held liable for the \u2018facilitation\u2019 of any infringement.<\/p>\n
41\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Commission contends that this plea should be dismissed.<\/p>\n
42\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In so far as the Commission\u2019s characterisation as infringements by object is at issue, it must be recalled that, to be caught by the prohibition laid down in Article\u00a0101(1) TFEU, an agreement must have \u2018as [its] object or effect\u2019 the prevention, restriction or distortion of competition within the internal market.<\/p>\n
43\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In that regard, it is apparent from the case-law of the Court of Justice that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (judgments of 11\u00a0September 2014,\u00a0CB\u00a0v\u00a0Commission, C\u00a067\/13\u00a0P, EU:C:2014:2204, paragraph\u00a049, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0113; see also, to that effect, judgment of 14\u00a0March 2013,\u00a0Allianz Hung\u00e1ria Biztos\u00edt\u00f3 and Others, C\u00a032\/11, EU:C:2013:160, paragraph\u00a034).<\/p>\n
44\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Certain forms of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (judgments of 11\u00a0September 2014,\u00a0CB\u00a0v\u00a0Commission, C\u00a067\/13\u00a0P, EU:C:2014:2204, paragraph\u00a050, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0114; see also, to that effect, judgment of 14\u00a0March 2013,\u00a0Allianz Hung\u00e1ria Biztos\u00edt\u00f3 and Others, C\u00a032\/11, EU:C:2013:160, paragraph\u00a035).<\/p>\n
45\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article\u00a0101(1) TFEU, to prove that they have actual effects on the market. Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (judgments of 11\u00a0September 2014,\u00a0CB\u00a0v\u00a0Commission, C\u00a067\/13\u00a0P, EU:C:2014:2204, paragraph\u00a051, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0115).<\/p>\n
46\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (judgments of 14\u00a0March 2013,\u00a0Allianz Hung\u00e1ria Biztos\u00edt\u00f3 and Others, C\u00a032\/11, EU:C:2013:160, paragraph\u00a034; of 11\u00a0September 2014,\u00a0CB\u00a0v\u00a0Commission, C\u00a067\/13\u00a0P, EU:C:2014:2204, paragraph\u00a052, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0116).<\/p>\n
47\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0According to the case-law of the Court of Justice, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition \u2018by object\u2019 within the meaning of Article\u00a0101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (judgments of 11\u00a0September 2014,\u00a0CB\u00a0v\u00a0Commission, C\u00a067\/13\u00a0P, EU:C:2014:2204, paragraph\u00a053, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0117; see also, to that effect, judgment of 14\u00a0March 2013,\u00a0Allianz Hung\u00e1ria Biztos\u00edt\u00f3 and Others, C\u00a032\/11, EU:C:2013:160, paragraph\u00a036).<\/p>\n
48\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In addition, although the parties\u2019 intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account (judgments of 14\u00a0March 2013,\u00a0Allianz Hung\u00e1ria Biztos\u00edt\u00f3 and Others, C\u00a032\/11, EU:C:2013:160, paragraph\u00a037; of 11\u00a0September 2014,\u00a0CB\u00a0v\u00a0Commission, C\u00a067\/13\u00a0P, EU:C:2014:2204, paragraph\u00a054, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0118).<\/p>\n
49\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In so far as concerns, in particular, the exchange of information between competitors, it should be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the common market (judgments of 4\u00a0June 2009,\u00a0T-Mobile Netherlands and Others, C\u00a08\/08, EU:C:2009:343, paragraph\u00a032, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0119).<\/p>\n
50\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (judgments of 4\u00a0June 2009,\u00a0T-Mobile Netherlands and Others, C\u00a08\/08, EU:C:2009:343, paragraph\u00a033, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0120).<\/p>\n
51\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Court of Justice has therefore held that the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted (judgments of 2\u00a0October 2003,\u00a0Thyssen Stahl\u00a0v\u00a0Commission, C\u00a0194\/99\u00a0P, EU:C:2003:527, paragraph\u00a089; of 4\u00a0June 2009,\u00a0T-Mobile Netherlands and Others, C\u00a08\/08, EU:C:2009:343, paragraph\u00a035, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0121).<\/p>\n
52\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (judgment of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0122; see also, to that effect, judgment of 4\u00a0June 2009,\u00a0T-Mobile Netherlands and Others, C\u00a08\/08, EU:C:2009:343, paragraph\u00a041).<\/p>\n
53\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Moreover, a concerted practice may have an anticompetitive object even though there is no direct connection between that practice and consumer prices. Indeed, it is not possible on the basis of the wording of Article\u00a0101(1) TFEU to conclude that only concerted practices which have a direct effect on the prices paid by end users are prohibited (judgment of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0123; see also, to that effect, judgments of 4\u00a0June 2009,\u00a0T-Mobile Netherlands and Others, C\u00a08\/08, EU:C:2009:343, paragraph\u00a036).<\/p>\n
54\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On the contrary, it is apparent from Article\u00a0101(1)(a) TFEU that concerted practices may have an anticompetitive object if they \u2018directly or indirectly fix purchase or selling prices or any other trading conditions\u2019 (judgments of 4\u00a0June 2009,\u00a0T-Mobile Netherlands and Others, C\u00a08\/08, EU:C:2009:343, paragraph\u00a037, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0124).<\/p>\n
55\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In any event, Article\u00a0101 TFEU, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such. Therefore, in order to find that a concerted practice has an anticompetitive object, there does not need to be a direct link between that practice and consumer prices (judgments of 4\u00a0June 2009,\u00a0T-Mobile Netherlands and Others, C\u00a08\/08, EU:C:2009:343, paragraphs\u00a038 and 39, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0125).<\/p>\n
56\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Lastly, it should be pointed out that the concept of a concerted practice, as it derives from the actual terms of Article\u00a0101(1) TFEU implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two (judgments of 4\u00a0June 2009,\u00a0T-Mobile Netherlands and Others, C\u00a08\/08, EU:C:2009:343, paragraph\u00a051, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0126).<\/p>\n
57\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In that regard, the Court of Justice has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court of Justice has concluded that such a concerted practice is caught by Article\u00a0101(1) TFEU, even in the absence of anticompetitive effects on that market (judgments of 4\u00a0June 2009,\u00a0T-Mobile Netherlands and Others, C\u00a08\/08, EU:C:2009:343, paragraph\u00a051, and of 19\u00a0March 2015,\u00a0Dole Food and Dole Fresh Fruit Europe\u00a0v\u00a0Commission, C\u00a0286\/13\u00a0P, EU:C:2015:184, paragraph\u00a0127).<\/p>\n
58\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the present case, in recitals 77 and 78 of the contested decision, the Commission found that the six infringements at issue all included two types of conduct, namely, first, discussion of the submissions of at least one of the banks in order to influence the direction of that submission and, second, the communication or receipt of commercially sensitive information relating either to trading positions or to the future submissions of at least one of the respective banks. Moreover, as regards the … infringement, the Commission also stated, in recital 78 of that decision, that the banks explored the possibility of executing trades designed to align their trading interests in respect of derivatives, and may on a few occasions have entered into such trades.<\/p>\n
59\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Commission found that the conduct at issue had as its object a manipulation of the JPY LIBOR rates, which enabled an improvement of the position of the participating banks on the Japanese Yen interest rate derivatives market.<\/p>\n
60\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In recitals 13 to 17 of the contested decision, the Commission stated that derivatives and in particular forward rate agreements and interest rate swaps had two \u2018legs\u2019, one corresponding to a flow to be paid, the other to a flow to be received. One is made up of a fixed rate, the other of a floating rate. One party makes a payment calculated on the basis of the floating rate to the other party and receives a payment determined on the basis of the fixed rate set when the agreement is entered into, and vice versa.<\/p>\n
61\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Commission observed that the manipulation of the JPY LIBOR rates had a direct effect on the cash-flow received or paid in respect of the \u2018floating\u2019 leg of the contracts referred to in paragraph 60 above (recitals 199 and 201 of the contested decision), since those contracts were calculated directly by reference to those rates.<\/p>\n
62\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Commission took the view that the manipulation of the JPY LIBOR rates had also had an effect on the \u2018fixed\u2019 leg of the contracts referred to in paragraph 60 above, in so far as the current level of those rates was indirectly reflected in the fixed rate of future contracts, since, in essence, those contracts constituted an estimate of what those rates would be in the future (recitals 200 and 201 of the contested decision).<\/p>\n
63\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the contested decision, the Commission found that the coordination of the JPY LIBOR panel submissions and the exchange of confidential information among the participating banks resulted in a restriction of the competition that would normally have prevailed among them, which led to a distortion of competition to their advantage and to the detriment of the non-participating banks. That also enabled the creation of a situation of \u2018asymmetrical information\u2019 to the advantage only of the participating banks, allowing them to offer contracts on better terms than other banks operating on the Japanese Yen interest rate derivatives market (recitals 202 to 204 of that decision). The conduct at issue thus distorted competition to the advantage of the participating banks and to the detriment of the other players on that market. The Commission inferred from this that the six infringements at issue were sufficiently harmful to be classified as infringements by object (recitals 219 and 220 of that decision).<\/p>\n
64\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In response to this analysis, the applicants highlight the restrictive definition of the concept of infringement by object adopted in the case-law of the Court of Justice. They assert that the conduct at issue does not reveal a degree of harm to the proper functioning of normal competition in the Japanese Yen interest rate derivatives market such as to justify its classification as an infringement by object. They add that the information exchanges complained of do not amount to a restriction or distortion of competition \u2018by object\u2019. They further state that certain material relevant for the classification of infringement by object was put forward for the first time in recital 200 of the contested decision. Lastly, they maintain that, with regard to the … infringement, the Commission did not prove that trades were entered into between the banks to align their commercial interests in respect of derivatives and did not classify that conduct as constituting an information exchange.<\/p>\n
65\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In so far as, for the six infringements at issue, the Commission found the existence of both coordination of the JPY LIBOR panel submissions and of an exchange of confidential information, it is sufficient to ascertain whether one of those two types of conduct has an anticompetitive object.<\/p>\n
66\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As regards the first type of conduct common to the six infringements at issue, namely the coordination of the JPY LIBOR panel submissions, it must be stated that the Commission was right to find that the payments due by one financial establishment to another one, in respect of a derivative, were either directly or indirectly linked to the level of the JPY LIBOR rates.<\/p>\n
67\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Thus, as regards, in the first place, the payments due in respect of the ongoing contracts, the effect of the JPY LIBOR rates may be regarded as self-evident. It relates to the payments due in respect of the \u2018floating\u2019 leg of the contracts referred to in paragraph 60 above, which are based directly on those rates. Thus, with regard to them, a coordination of the JPY LIBOR panel submissions was capable of influencing the level of those rates in a manner favourable to the interests of the banks which were behind that coordination, as the Commission essentially found in recitals 199 and 201 of the contested decision.<\/p>\n
68\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As regards, in the second place, the payments due in respect of the future contracts, it must be stated that the Commission was also right to find that the coordination of the JPY LIBOR panel submissions had an effect on the payments due in respect of the \u2018fixed\u2019 leg of the contracts referred to in paragraph 60 above.<\/p>\n
69\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0It should first be noted that in recitals 34 to 44 and 200 of the contested decision, the Commission set out in detail the reasons why the level of the JPY LIBOR rates had an effect on the \u2018fixed\u2019 leg of the contracts referred to in paragraph 60 above. The Commission stated in essence that the fixed rates were determined by a projection, based on a mathematical formula, of the current yield curve of the derivatives, which was itself dependent on the current levels of the JPY LIBOR rates.<\/p>\n
70\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Moreover and consequently, it may be considered that coordination of the JPY LIBOR panel submissions enabled the banks participating in the coordination to reduce considerably the uncertainty as to the levels of the JPY LIBOR rates and, therefore, gave them a competitive advantage when negotiating and offering derivatives over the banks that did not participate in that coordination, which the Commission correctly found in recitals 201 to 204 of the contested decision.<\/p>\n
71\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0It is apparent from the foregoing that the coordination of the JPY LIBOR panel submissions is relevant for the payments due in respect of the contracts referred to in paragraph 60 above as regards both their \u2018floating\u2019 leg and their \u2018fixed\u2019 leg.<\/p>\n
72\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Inasmuch as such coordination of the JPY LIBOR panel submissions is intended to influence the extent of the payments due by, or due to, the banks concerned, it clearly has an anticompetitive object.<\/p>\n
73\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In so far as the six infringements at issue all involve coordination of the JPY LIBOR panel submissions\u00a0\u2014 that coordination being capable of justifying the Commission\u2019s classification of infringement by object\u00a0\u2014 it is not necessary to examine whether the other conduct common to those infringements, namely the exchange of confidential information, is also capable of justifying such classification.<\/p>\n
74\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0It is clear from settled case-law that where some of the grounds in a decision on their own provide a sufficient legal basis for the decision, any errors in the other grounds of the decision have no effect on its operative part (see, to that effect and by analogy, judgments of 12\u00a0July 2001,\u00a0Commission and France\u00a0v\u00a0TF1, C\u00a0302\/99\u00a0P and C\u00a0308\/99\u00a0P, EU:C:2001:408, paragraph\u00a027, and of 12\u00a0December 2006,\u00a0SELEX Sistemi Integrati\u00a0v\u00a0Commission, T\u00a0155\/04, EU:T:2006:387, paragraph\u00a047).<\/p>\n
75\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In any event, in the light of the significance of the impact of the level of the JPY LIBOR rates on the amount of the payments effected in respect of both the \u2018floating\u2019 leg and the \u2018fixed\u2019 leg of the contracts referred to in paragraph 60 above, it must be stated that the mere communication of information regarding the future submissions of a bank which is a member of the JPY LIBOR panel was capable of giving an advantage to the banks concerned, removing them from the application of normal competition on the Japanese Yen interest rate derivatives market in a manner such that that exchange of information may be considered as having as its object the restriction of competition within the meaning of Article\u00a0101(1) TFEU, under the case-law cited in paragraphs 49 to 52 above. The same reasoning is applicable to the conduct relating to the exchange of confidential information regarding the future submissions relating to the Euroyen TIBOR, found by the Commission only in connection with the \u2026. infringement.<\/p>\n
76\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the light of the foregoing, it must be concluded that the Commission did not commit an error of law or assessment in finding that the six infringements at issue were restrictive of competition by their object.<\/p>\n
77\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0That conclusion is not affected by the various arguments put forward by the applicants.<\/p>\n
78\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0That is the case, in the first place, with the applicants\u2019 rebuttal of the harmfulness to normal competition of the conduct at issue.<\/p>\n
79\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0First, the applicants are wrong to claim that there is no competitive relationship among the banks on the Japanese Yen interest rate derivatives market. Since the conclusion of contracts on that market entails negotiation of those products, and more particularly of the applicable fixed rate, there is necessarily a competitive process with regard to the offer of those products among the various banks operating on that market.<\/p>\n
80\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Second, and consequently, nor can the Court accept the applicants\u2019 assertion that there is a contradiction between (i) the possibility for the banks concerned to offer better conditions than their competitors and (ii) the classification as an infringement by object. On the contrary, that possibility demonstrates rather that the competitive process on the Japanese Yen interest rate derivatives market was distorted to the advantage of the banks participating in the collusion.<\/p>\n
81\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Third, the applicant\u2019s emphasis on the fact that the banks conclude a large number of transactions in which they adopt opposing positions is irrelevant. Indeed, one of the attractions of manipulating the JPY LIBOR rates, with regard in particular to ongoing contracts, is to enable those rates to reflect as effectively as possible the interests of the banks concerned, namely a high rate in the event of a net credit position and a low rate in the event of a net debit position.<\/p>\n
82\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the second place, the applicants allege, in essence, a breach of their rights of defence in so far as certain material relevant for the classification of infringement by object was put forward for the first time in recital 200 of the contested decision.<\/p>\n
83\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0It is true that, according to settled case-law, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, properly to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (see judgment of 24\u00a0May 2012,\u00a0MasterCard and Others\u00a0v\u00a0Commission, T\u00a0111\/08, EU:T:2012:260, paragraph\u00a0265 and the case-law cited).<\/p>\n
84\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Article\u00a027(1) of Regulation No\u00a01\/2003 reflects that principle in so far as it provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the procedure, to enable the parties concerned properly to identify the conduct complained of by the Commission and to defend themselves properly before the Commission adopts a final decision. That obligation is satisfied if the final decision does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and takes into consideration only facts on which the persons concerned have had the opportunity of stating their views (see judgment of 24\u00a0May 2012,\u00a0MasterCard and Others\u00a0v\u00a0Commission, T\u00a0111\/08, EU:T:2012:260, paragraph\u00a0266 and the case-law cited).<\/p>\n
85\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0However, that may be done summarily and the final decision is not necessarily required to be a replica of the statement of objections, since the statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature. Thus, it is permissible for the Commission to supplement the statement of objections in the light of the response of the parties, whose arguments show that they have actually been able to exercise their rights of defence. The Commission may also, in the light of the administrative procedure, revise or supplement its arguments of fact or law in support of its objections (see judgment of 24\u00a0May 2012,\u00a0MasterCard and Others\u00a0v\u00a0Commission, T\u00a0111\/08, EU:T:2012:260, paragraph\u00a0267 and the case-law cited).<\/p>\n
86\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Thus, communication to the parties concerned of further objections is necessary only if the result of the investigations leads the Commission to take new facts into account against the undertakings or to alter materially the evidence for the contested infringements (see judgment of 24\u00a0May 2012,\u00a0MasterCard and Others\u00a0v\u00a0Commission, T\u00a0111\/08, EU:T:2012:260, paragraph\u00a0268 and the case-law cited).<\/p>\n
87\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Lastly, it should be recalled that, according to the case-law, the rights of the defence are infringed where it is possible that the outcome of the administrative procedure conducted by the Commission might have been different as a result of an error committed by it. An applicant undertaking establishes that there has been such an infringement where it adequately demonstrates, not that the Commission\u2019s decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no error, for example because it would have been able to use for its defence documents to which it was denied access during the administrative procedure (see judgment of 24\u00a0May 2012,\u00a0MasterCard and Others\u00a0vCommission, T\u00a0111\/08, EU:T:2012:260, paragraph\u00a0269 and the case-law cited).<\/p>\n
88\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the present case, it must be held that the reference to indirect price fixing in recital 200 of the contested decision is not novel in character, as alleged by the applicants. Admittedly, paragraphs\u00a0137 and 175 of the Statement of Objections to which the Commission refers cannot be regarded as the clarification of an objection alleging indirect price fixing inasmuch as those paragraphs merely recall the legal principles governing the application of Article\u00a0101(1) TFEU.\u00a0Nevertheless, it is apparent from reading the Statement of Objections that the substance of the arguments set out therein was the same as that presented in that decision, and in particular in recital 200 thereof, namely the effect of the level of the JPY LIBOR on the level of the rates applicable to future contracts (see, in particular, paragraph\u00a0157 of the Statement of Objections). The applicants were therefore in a position to submit their observations on that objection during the administrative procedure.<\/p>\n
89\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Moreover, as regards the alleged novel character of the reference, in recital 200 of the contested decision, to the fact that the manipulation of the JPY LIBOR also constitutes a fixing of trading conditions within the meaning of Article\u00a0101(1)(a) TFEU, it should be observed that, for the reasons set out in paragraphs 66 to 76 above, the effects of that manipulation on the level of the payments due in respect of derivatives suffice to justify the classification as infringements by object found by the Commission. Accordingly, the view cannot be taken that the possibility that the applicants may have been unable to submit their observations on the objection alleging a fixing of trading conditions prevented them from being better able to ensure their defence within the meaning of the case-law cited in paragraph 87 above.<\/p>\n
90\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the third place, with respect to the applicants\u2019 criticisms of the Commission\u2019s finding of the existence of conduct consisting in the banks\u2019 exploring the possibility of executing trades designed to align their trading interests in respect of derivatives, and that they may on a few occasions have entered into such trades\u00a0\u2014 a finding which relates solely to the \u2026. infringement\u00a0\u2014 it is apparent from reading recital 78 of the contested decision that that conduct was considered by the Commission only as aimed at facilitating future JPY LIBOR panel submissions. In so far as that conduct does not appear to be independent of that of that coordination whose anticompetitive object has been established to the requisite legal standard, it is not necessary to respond to that aspect of the applicants\u2019 line of argument.<\/p>\n
91\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the light of the foregoing, the first plea in law must be rejected.<\/p>\n
2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The second plea in law, alleging errors in the application of the concept of \u2018facilitation\u2019 within the meaning of Article\u00a0101(1) TFEU and related case-law<\/p>\n
92\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The applicants assert that the Commission wrongly found that … had \u2018facilitated\u2019 the six infringements at issue. After the judgment was delivered in\u00a0AC-….\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, the applicants withdrew parts of their arguments with the result that this plea in law now consists of three limbs.<\/p>\n
93\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0By the first limb of the second plea in law, which does not relate to the … infringement, but solely to the five other infringements at issue, the applicants claim that the \u2018facilitation\u2019 test applied to Icap is too broad and a novelty and breaches the principle of legal certainty. By the second limb of that plea, which relates to those five infringements, the applicants submit that the role played by Icap does not meet the \u2018facilitation\u2019 tests set out by case-law. Lastly, by the third limb of that plea, which relates only to the…. 2007, \u2026.. and … infringements, the applicants contest the validity of the grounds of the contested decision concerning the use by … of its contacts with certain banks to try to influence their JPY LIBOR panel submissions.<\/p>\n
94\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Court considers that it is appropriate to analyse, first, the second and third limbs of this plea, since they relate, in essence, to the unlawful nature of the conduct alleged against …, and, next, the challenge\u00a0\u2014 contained in the first limb of that plea\u00a0\u2014 to the compatibility with the principle of legal certainty of the unlawful nature found.<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0The second limb, alleging that the Commission misconstrued the \u2018facilitation\u2019 tests set out by case-law<\/p>\n
95\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the context of this limb, the applicants submit in essence that the finding that \u2026. conduct fell within the scope of Article\u00a0101 TFEU is incorrect.<\/p>\n
96\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Commission contends that this limb should be rejected.<\/p>\n
97\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0It should be recalled that there is nothing in the wording of Article\u00a0101(1) TFEU that indicates that the prohibition laid down therein is directed only at parties to agreements or concerted practices who are active on the markets affected by those agreements or practices (judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraph\u00a027).<\/p>\n
98\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Moreover, according to the case-law of the Court of Justice, in order for there to be an \u2018agreement\u2019, there must be the expression of the concurrence of wills of at least two parties, the form in which that concurrence is expressed not being by itself decisive (see judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraph\u00a028 and the case-law cited).<\/p>\n
99\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As regards the term \u2018concerted practice\u2019, it is apparent from the case-law of the Court of Justice that Article\u00a0101(1) TFEU makes a distinction between that term and, in particular, the terms \u2018agreement\u2019 and \u2018decision by an association of undertakings\u2019, with the sole intention of catching various forms of collusion between undertakings which, from a subjective point of view, have the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves (see judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraph\u00a029 and the case-law cited).<\/p>\n
100\u00a0\u00a0\u00a0\u00a0Moreover, when the infringement involves anticompetitive agreements and concerted practices, it is apparent from the case-law of the Court of Justice that the Commission must demonstrate, in order to be able to find that an undertaking participated in an infringement and was liable for all the various elements comprising the infringement, that the undertaking concerned intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (see judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraph\u00a030 and the case-law cited).<\/p>\n
101\u00a0\u00a0\u00a0\u00a0In that regard, the Court of Justice has inter alia held that passive modes of participation in the infringement, such as the presence of an undertaking in meetings at which anticompetitive agreements were concluded, without that undertaking clearly opposing them, are indicative of collusion capable of rendering the undertaking liable under Article\u00a0101(1) TFEU, since a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, encourages the continuation of the infringement and compromises its discovery (see judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraph\u00a031 and the case-law cited).<\/p>\n
102\u00a0\u00a0\u00a0\u00a0Although the Court has already stated that an \u2018agreement\u2019 within the meaning of Article\u00a0101(1) TFEU referred to whether the parties had expressed their concurrent intention to conduct themselves on the market in a particular manner and that the criteria of coordination and cooperation which are constituent elements of a \u2018concerted practice\u2019 within the meaning of that provision must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition, to the effect that each economic operator must determine independently the policy which he intends to adopt on the common market, it cannot be inferred from those considerations that the terms agreement and concerted practice presuppose a mutual restriction of freedom of action on one and the same market on which all the parties are present (judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraphs\u00a032 and 33).<\/p>\n
103\u00a0\u00a0\u00a0\u00a0Moreover, it cannot be inferred from the Court\u2019s case-law that Article\u00a0101(1) TFEU concerns only either (i) the undertakings operating on the market affected by the restrictions of competition or indeed the markets upstream or downstream of that market or neighbouring markets or (ii) undertakings which restrict their freedom of action on a particular market under an agreement or as a result of a concerted practice. Indeed, it is apparent from the Court\u2019s well established case-law that the text of Article\u00a0101(1) TFEU refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the common market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraphs\u00a034 and 35 and the case-law cited).<\/p>\n
104\u00a0\u00a0\u00a0\u00a0It should also be noted that the main objective of the prohibition laid down in Article\u00a0101(1) TFEU is to ensure that competition remains undistorted within the common market and that its full effectiveness entails that the active contribution of an undertaking to a restriction of competition is caught even if that contribution does not relate to an economic activity forming part of the relevant market on which that restriction comes about or is intended to come about (see judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraph\u00a036 and the case-law cited).<\/p>\n
105\u00a0\u00a0\u00a0\u00a0In the present case, it should be noted at the outset that the Commission did not find the existence of separate infringements between \u2026. and …, then … and …, whose object was to manipulate the level of the submissions of the banks in a manner consistent with the interests of …, and then of …, by means of the dissemination by … of incorrect information. In the contested decision, … liability is incurred on the basis of its participation in the anticompetitive conduct found by the Commission, which it classified as \u2018facilitation\u2019.<\/p>\n
106\u00a0\u00a0\u00a0\u00a0In view of the reasoning followed by the Commission in the contested decision, it is necessary to ascertain whether … participation satisfies the criteria highlighted in the case-law cited in paragraph 100 above; only the fulfilment of those criteria is capable of justifying Icap\u2019s liability being incurred in respect of the infringements committed by the banks concerned.<\/p>\n
107\u00a0\u00a0\u00a0\u00a0In that regard, it should be pointed out that the applicants dispute that those criteria have been fulfilled in the context of three complaints alleging that the Commission did not prove, first, that… had knowledge of the existence of collusion between the banks concerned in connection with some of the six infringements at issue (first complaint), second, that … intended to contribute to the common objective pursued by the banks concerned (second complaint) and, third, that … contributed to the common objectives pursued by the banks concerned (third complaint). The Court considers that it is appropriate to examine, first of all, the first complaint, next, the third complaint and, lastly, the second complaint.<\/p>\n
(1)\u00a0\u00a0\u00a0\u00a0The first complaint: the Commission did not prove that … had knowledge of the existence of collusion between the banks concerned in connection with some of the six infringements at issue<\/p>\n
108\u00a0\u00a0\u00a0\u00a0In the first complaint, the applicants submit that the Commission did not prove to the requisite legal standard that … had knowledge of the existence of collusion between the banks concerned in connection with the \u2026. 2007, … 2008, … and … infringements, but only, where relevant, of unilateral attempts by a trader to manipulate the JPY LIBOR rates.<\/p>\n
109\u00a0\u00a0\u00a0\u00a0This complaint therefore relates only to four of the six infringements at issue.<\/p>\n
110\u00a0\u00a0\u00a0\u00a0The applicants claim that the short messages used as evidence by the Commission could demonstrate only that a trader of one of the banks concerned was aware of the future submissions of another bank. In a context characterised, inter alia, by the existence of legitimate contacts between those banks, it cannot be inferred from this that \u2026. was made aware of those banks\u2019 joint intention to coordinate their JPY LIBOR panel submissions. That is the case in respect of the \u2026. 2007, … 2008, … and … infringements.<\/p>\n
111\u00a0\u00a0\u00a0\u00a0The applicants submit that the structure of the Japanese Yen interest rate derivatives market, which entails continuous negotiations between the banks concerned, may explain why a given bank had knowledge of the direction of the submissions of another bank, without that knowledge being the product of an information exchange. The applicants infer from this that Icap could reasonably take the view that references to the future position of another bank in the communications of a trader were not the result of an unlawful cartel. They take issue with the Commission for having failed to take account of that possible interpretation of the evidence, in respect of both the … 2007 infringement and the … 2008 infringement. As regards the Commission\u2019s reference to ….\u2019s acknowledgement of \u2026. facilitator role in …s application for settlement, the applicants claim, in particular, that the Settlement Decision expressly states that the facts accepted by the parties cannot establish any liability as far as Icap is concerned. As regards the … and … infringements, the applicants reiterate that the evidence put forward does not prove the existence of collusion between the banks concerned during the infringement period found.<\/p>\n
112\u00a0\u00a0\u00a0\u00a0The Commission contends that recitals 214 to 221 of the contested decision show to the requisite legal standard that … was aware or should have been aware that its actions contributed to infringements restricting competition. For each of the six infringements at issue, Icap was made aware by … and then … of the identity of the other JPY LIBOR panel bank with which … and … were in anticompetitive contact. That was the case in respect of both the \u2026. 2007 infringement and the \u2026. 2008 infringement. As regards those two infringements, the Commission observes that the evidence that … was aware of the collusion between the banks concerned is also based on the acknowledgement of UBS in its application for settlement of Icap\u2019s facilitator role, set out in recitals 115 and 126 of the contested decision, an acknowledgment that the applicants do not challenge. The Commission also refers to Icap\u2019s knowledge of the Japanese Yen interest rate derivatives market and its status of principal broker on this market in arguing that .. could not have been unaware of the anticompetitive nature of that collusion. As regards the … and … infringements, the Commission observes that the applicants do not dispute that … was aware of the collusion between the banks concerned, but only the temporal scope of that collusion. It notes, in that regard, that the date on which an infringement begins is that of the collusion and not of its implementation.<\/p>\n
113\u00a0\u00a0\u00a0\u00a0In that regard, it should be noted that, under the case-law cited in paragraph 100 above, it was for the Commission to demonstrate that .. was aware of the actual conduct planned or put into effect by each of the banks concerned or could reasonably have foreseen it.<\/p>\n
114\u00a0\u00a0\u00a0\u00a0Moreover, it should be recalled that, in the field of competition law, where there is a dispute as to the existence of an infringement, the Commission must prove the infringement found by it and adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (see judgment of 22\u00a0November 2012,\u00a0E.ON Energie\u00a0v\u00a0Commission, C\u00a089\/11\u00a0P, EU:C:2012:738, paragraph\u00a071 and the case-law cited).<\/p>\n
115\u00a0\u00a0\u00a0\u00a0In order to establish that there has been an infringement of Article\u00a0101(1) TFEU, the Commission must produce firm, precise and consistent evidence. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by that institution, viewed as a whole, meets that requirement (see judgment of 1\u00a0July 2010,\u00a0Knauf Gips\u00a0v\u00a0Commission, C\u00a0407\/08\u00a0P, EU:C:2010:389, paragraph\u00a047 and the case-law cited).<\/p>\n
116\u00a0\u00a0\u00a0\u00a0Moreover, where the Court still has a doubt, the benefit of that doubt must be given to the undertakings accused of the infringement. Indeed, the presumption of innocence constitutes a general principle of EU law, currently laid down in Article\u00a048(1) of the Charter of Fundamental Rights of the European Union (see judgment of 22\u00a0November 2012,\u00a0E.ON Energie\u00a0v\u00a0Commission, C\u00a089\/11\u00a0P, EU:C:2012:738, paragraph\u00a072 and the case-law cited).<\/p>\n
117\u00a0\u00a0\u00a0\u00a0It is also apparent from the case-law of the Court of Justice that the principle of the presumption of innocence applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see judgment of 22\u00a0November 2012,\u00a0E.ON Energie\u00a0v\u00a0Commission, C\u00a089\/11\u00a0P, EU:C:2012:738, paragraph\u00a073 and the case-law cited).<\/p>\n
118\u00a0\u00a0\u00a0\u00a0Moreover, according to settled case-law, in order to assess the probative value of a document, regard should be had to the credibility of the account it contains and, in particular, to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see judgment of 14\u00a0April 2011,\u00a0Visa Europe and Visa International Service\u00a0v\u00a0Commission, T\u00a0461\/07, EU:T:2011:181, paragraph\u00a0182 and the case-law cited).<\/p>\n
119\u00a0\u00a0\u00a0\u00a0It is in the light of those considerations that it is necessary to ascertain whether, in respect of each of the four infringements at issue, the Commission proved to the requisite legal standard that \u2026. was aware or could reasonably have foreseen that the requests addressed to it by…, and then…, were not effected in the sole interest of its interlocutor, but were the result of collusion between the banks concerned.<\/p>\n
120\u00a0\u00a0\u00a0\u00a0In that regard, although it is apparent from the case-law cited in paragraph 100 above that it was open to the Commission to prove either (i) that … was aware of the participation of the other bank concerned in each of the four infringements at issue or (ii) that … could reasonably have foreseen such participation, that second possibility must be considered taking into account the context in which the exchanges between…, and then …, and … took place.<\/p>\n
121\u00a0\u00a0\u00a0\u00a0As the applicants essentially submit, the requests addressed by …, and then .., to … with the aim of manipulating the JPY LIBOR rates did not imply, by their very nature, the existence of prior concerted action with another bank. Such requests could be legitimately interpreted by … as being made by…, and then by …, for the purposes of manipulating those rates in pursuit of their interests alone. It must be held that that circumstance makes it harder for the Commission to prove that … should reasonably have inferred from the requests of …, and then of .., that those requests formed part of collusion with another bank.<\/p>\n
(i)\u00a0\u00a0\u00a0\u00a0The Commission\u2019s evidence that was aware of the role played by … in the … 2007 infringement<\/p>\n
122\u00a0\u00a0\u00a0\u00a0With respect to the \u2026. 2007 infringement, the material evidence on which the Commission relied in order to find unlawful conduct by Icap is set out in paragraph\u00a05.3.2 of the contested decision.<\/p>\n
123\u00a0\u00a0\u00a0\u00a0In the first place, the Commission relied on the reference, in a conversation between Mr…, at the time a…. trader, and Mr\u00a0…, an I… member of staff, on 14\u00a0August 2007 (\u2018the conversation of 14\u00a0August 2007\u2019), that \u2018… and .. are going high 6m\u2019, in order to find that, as of this discussion, \u2018[Icap] was, or at least should have been, aware of the fact that […] was coordinating future JPY LIBOR submissions with .. and that assistance provided to […] after this chat was, or could have been, facilitating the anticompetitive practices between … and …\u2019 (recital 106 of the contested decision).<\/p>\n
124\u00a0\u00a0\u00a0\u00a0In the second place, the Commission drew attention to various communications between Mr\u00a0..\u00a0and Mr…\u00a0or between Mr\u00a0..\u00a0and other members of Icap\u2019s staff which took place on 15\u00a0August 2007 and 1\u00a0November 2007, for the purposes of demonstrating the role played by .. in the manipulation of the JPY LIBOR rates (recitals 107 to 114 of the contested decision).<\/p>\n
125\u00a0\u00a0\u00a0\u00a0Lastly, in the third place, the Commission referred to ..s acknowledgment, in its application for settlement, that it used I…\u2019s services with the aim of influencing the future JPY LIBOR submissions of certain JPY LIBOR panel banks. The Commission found that .. was not aware of the role played by … (recital 115 of the contested decision).<\/p>\n
126\u00a0\u00a0\u00a0\u00a0Thus, the contested decision mentions only two items of evidence that might be capable of proving that … knew of…\u2019s participation in the … 2007 infringement, namely (i) the conversation of 14\u00a0August 2007 and (ii) …\u2019s statements in its application for settlement. It is common ground between the parties that the exchanges between … and … after 14\u00a0August 2017 made no reference to …<\/p>\n
127\u00a0\u00a0\u00a0\u00a0As regards …\u2019s statements in its application for settlement, examination of that document does not show that … acknowledges therein that it informed … of ..\u2019s participation in the … 2007 infringement, … merely stating that it had used …\u2019s services.<\/p>\n
128\u00a0\u00a0\u00a0\u00a0It follows that the only item of evidence capable of showing that … knew of the role played by … in the … 2007 infringement is to be found in a passage of the conversation of 14\u00a0August 2017, in which Mr….\u00a0informs Mr\u00a0…\u00a0that \u2018… and … [are] going high 6m\u2019. In recital 106 of the contested decision, the Commission interpreted that sentence as meaning that Mr.., at the time a … trader, had informed Mr.., a member of I…\u2019s staff, of his ongoing discussions of future JPY LIBOR submissions with …<\/p>\n
129\u00a0\u00a0\u00a0\u00a0By way of measures of organisation of procedure, the parties were requested to give their opinion on the interpretation of that sentence in view of the following part of the conversation: \u2018[I…:] good that will help:); [..:] will doing me a favour; [..:] so he [should]\u2019, and to clarify whether the word \u2018will\u2019 referred to an … employee. It emerged from this that that conversation was referring to …., an … trader, whose exchanges with Mr\u00a0…\u00a0were taken into account for the purposes of finding the existence of the \u2026. 2007 infringement.<\/p>\n
130\u00a0\u00a0\u00a0\u00a0It must be inferred from this that, following that conversation, Mr…, an … member of staff, was informed in unambiguous terms by Mr…, at the time a … trader, that he had agreed with W.\u00a0…, an … trader, on an increase of their submissions relating to six-month interest rates. In so far as that item of evidence is made up of a conversation in which Mr\u00a0…\u00a0directly participated and in view of its content, it must be acknowledged, pursuant to the case-law mentioned in paragraph 118 above, that it has high probative value.<\/p>\n
131\u00a0\u00a0\u00a0\u00a0In those circumstances, the conversation of 14\u00a0August 2017 demonstrates on its own that … knew of the role played by … in the \u2026. 2007 infringement.<\/p>\n
132\u00a0\u00a0\u00a0\u00a0Accordingly, in so far as the first complaint relates to the … 2007 infringement, it must be rejected.<\/p>\n
(ii)\u00a0The Commission\u2019s evidence that Icap was aware of the role played by … in the … 2008 infringement<\/p>\n
133\u00a0\u00a0\u00a0\u00a0In point\u00a05.3.3 of the contested decision, entitled \u2018…\u2019s facilitation of the … 2008 infringement\u2019, the Commission referred, in the first place, to a conversation of 28\u00a0August 2008 in which Mr…, at the time a … trader, allegedly disclosed to Mr\u00a0…, an … member of staff, the direction of ..s JPY LIBOR panel submissions, namely submissions that were \u2018low across the board\u2019 (\u2018the conversation of 28\u00a0August 2008\u2019) (recital 116 of the contested decision).<\/p>\n
134\u00a0\u00a0\u00a0\u00a0In the second place, the Commission drew attention to various communications between Mr\u00a0…\u00a0and Mr…\u00a0or between Mr….\u00a0and other members of …\u2019s staff which took place on 28\u00a0August 2008 and 3\u00a0November 2008, for the purposes of demonstrating the role played by … in the manipulation of the JPY LIBOR rates (recitals 117 to 125 of the contested decision). Among those items of evidence is an internal Icap email of 5\u00a0September 2008, in which it was stated that … and .. had a vested interest in a low three-month JPY LIBOR rate.<\/p>\n
135\u00a0\u00a0\u00a0\u00a0In the third place, the Commission referred to the acknowledgment by .., in its application for settlement, that it used ..\u2019s services for the purposes of influencing future JPY LIBOR panel submissions. It found that … was not aware of the role played by … (recital 126 of the contested decision).<\/p>\n
136\u00a0\u00a0\u00a0\u00a0Thus, the contested decision mentions three items of evidence that might demonstrate that … knew of the role played by … in the … 2008 infringement, namely, first of all, the conversation of 28\u00a0August 2008, next, the internal … email of 5\u00a0September 2008 (see paragraph 134 above) and, lastly, …\u2019s statements in its application for settlement.<\/p>\n
137\u00a0\u00a0\u00a0\u00a0As regards, in the first place, …\u2019s statements in its application for settlement, it must be stated that, with regard to that infringement also, examination of that document merely shows that … acknowledges having used ..\u2019s services, but not that … claims to have informed .. of …s participation in the \u2026. 2008 infringement.<\/p>\n
138\u00a0\u00a0\u00a0\u00a0As regards, in the second place, the conversation of 28\u00a0August 2008, the Commission took the view that the fact that Mr\u00a0…, at the time a… trader, mentioned that …\u2019s submission would be \u2018low across the board\u2019 should have led Mr\u00a0.., an … member of staff, to conclude that there were contacts between … and .. and that assistance provided after this point to Mr…\u00a0in moving JPY LIBOR rates was, or could have been, also assistance to anticompetitive practices between … and .. (recital 118 of the contested decision).<\/p>\n
139\u00a0\u00a0\u00a0\u00a0It must be stated that the passage of the conversation of 28\u00a0August 2008 highlighted by the Commission does not have an unequivocal meaning, which could have only led … to suspect that … had received confidential information relating to the level of …\u2019s future JPY LIBOR panel submissions. That passage could also be interpreted as an analysis or opinion of Mr\u00a0…\u00a0on the probable future positions of one of its competitors.<\/p>\n
140\u00a0\u00a0\u00a0\u00a0Moreover, examination of the passage of the conversation of 28\u00a0August 2008 highlighted by the Commission does not make it possible, in the more general context of that conversation, to clarify its meaning. Although it appears from that passage that … and .. shared an intention to distort the normal course of setting the JPY LIBOR rates, no additional material is provided regarding any participation by .. in the … 2008 infringement.<\/p>\n
141\u00a0\u00a0\u00a0\u00a0Accordingly, that item of evidence on its own does not prove that … knew of the role played by…. in the … 2008 infringement. It must nevertheless be ascertained whether, in conjunction with other evidence, that item of evidence may constitute a body of evidence within the meaning of the case-law cited in paragraph 115 above.<\/p>\n
142\u00a0\u00a0\u00a0\u00a0As regards, in the third place, the email exchanged between two members of …\u2019s staff, it is written in that email that \u2018… and .. had a vested interest in low 3m JPY LIBOR\u2019 (recital 121 of the contested decision). It must be held that the interpretation favoured by the Commission, namely that that email demonstrates that Icap knew of the existence of an infringement between … and …, is not the only possible interpretation. In so far as, through its functions, … is in permanent contact with the banks concerned, it cannot be ruled out that .. forms its own view on the interests of each of the banks operating on the Japanese Yen interest rate derivatives market. The probability of that alternative interpretation may appear to be strengthened in the light of the truncated form of the quote used by the Commission, to which the applicants draw attention, since the exact wording of that email, namely \u2018[I] think […] and [..] have a vest[e]d interest in [the rates] being low\u2019, can be seen more as the expression of a personal opinion.<\/p>\n
143\u00a0\u00a0\u00a0\u00a0It must be stated that those two items cannot be classified as firm, precise and consistent evidence within the meaning of the case-law cited in paragraph 115 above. On the contrary, the ambiguity of the wording contained in those two items of evidence necessarily implies doubt as to whether … knew of the role played by … in the … 2008 infringement, the benefit of which must, under the case-law cited in paragraph 116 above, be given to Icap.<\/p>\n
144\u00a0\u00a0\u00a0\u00a0Moreover, for the reasons set out in paragraph 121 above, it cannot be concluded that … should have suspected that …\u2019s requests were part of the implementation of collusion with another bank, since it is entirely possible that such requests were made by Mr\u00a0….\u00a0solely in pursuit of …s interests.<\/p>\n
145\u00a0\u00a0\u00a0\u00a0In the light of the foregoing, it is necessary to uphold the first complaint, so far as concerns the … 2008 infringement, and to annul Article\u00a01(b) of the contested decision in so far as it finds that … participated in that infringement.<\/p>\n
(iii)\u00a0The evidence that Icap knew of the role played by … and … in the \u2026. and … infringements<\/p>\n
146\u00a0\u00a0\u00a0\u00a0In point\u00a05.3.6 of the contested decision, entitled \u2018…\u2019s facilitation of the \u2026. \u2026 infringement\u2019, the Commission relied on the reference to a conversation between Mr\u00a0…, by then a…trader, and Mr…., an .. member of staff, of 7\u00a0April 2010, relating to a concerted future decrease in the rates submitted by …, \u2026. and … to the JPY LIBOR panel after June 2010 (\u2018the conversation of 7\u00a0April 2010\u2019). The Commission also drew attention to two requests from Mr\u00a0….\u00a0to Mr\u00a0… of 18\u00a0May 2010, one for low one-year rates and the other in a general manner for low JPY LIBOR rates until June, and a request of 23\u00a0May 2010 for low rates for the one-year JPY LIBOR and a high rate for the three-year JPY LIBOR (recital 155 of the contested decision).<\/p>\n
147\u00a0\u00a0\u00a0\u00a0Moreover, the Commission also relied on a communication of 1\u00a0June 2010 between Mr\u00a0….\u00a0and Mr…., members of …\u2019s staff, relating to an adjustment of the spreadsheet referred to in paragraph 15 above (recital 157 of the contested decision), and on a conversation of 2\u00a0June 2010 in which Mr\u00a0….\u00a0informed Mr…, by then a…. trader, that Mr\u00a0…\u00a0had carried out the desired adjustments (recital 156 of that decision).<\/p>\n
148\u00a0\u00a0\u00a0\u00a0Lastly, the contested decision mentions a conversation of 7\u00a0June 2010 in which Mr\u00a0…., by then a … trader, requested from Mr…., an .. member of staff, low rates for that month (recital 158) ( \u2018the conversation of 7\u00a0June 2010\u2019). It should be pointed out that, in that conversation, Icap clearly alludes to the existence of collusion between …, …. and ….<\/p>\n
149\u00a0\u00a0\u00a0\u00a0In point\u00a05.3.7 of the contested decision, entitled \u2026.\u2019s facilitation of the … \u2026 infringement\u2019, the Commission relied exclusively on the material referred to in paragraphs 146 and 147 above (recitals 161 to 163), while the conversation of 7\u00a0June 2010 was not put forward as evidence with respect to that infringement.<\/p>\n
150\u00a0\u00a0\u00a0\u00a0In the first place, it should be pointed out that the key element on which the proof that … knew of the role played by…. and \u2026. in the … and … infringements is based consists in the content of the conversation of 7\u00a0April 2010.<\/p>\n
151\u00a0\u00a0\u00a0\u00a0First, it must be stated that, in that conversation, Mr\u00a0…, by then a … trader, explains to Mr\u00a0…, an … member of staff, in unambiguous terms, that he had reached agreement with two … and … traders with a view to obtaining a reduction in the rates submitted by …, … and .. to the JPY LIBOR panel after June 2010.<\/p>\n
152\u00a0\u00a0\u00a0\u00a0Second, it should be noted that the applicants do not contest the anticompetitive scope of the conversation of 7\u00a0April 2010, but its evidential value with respect to the … and … infringements, since the Commission found that those infringements ceased on 2\u00a0June 2010 and 7\u00a0June 2010 respectively, that is prior to the reduction in the rates envisaged in the conversation of 7\u00a0April 2010, which related to the period after June 2010.<\/p>\n
153\u00a0\u00a0\u00a0\u00a0Whilst it is true, as the Commission essentially states, that the conversation of 7\u00a0April 2010 suffices to demonstrate that .. knew of a concerted practice with a view to distorting the JPY LIBOR rates and, consequently, of the existence of unlawful conduct between…, … and .., the fact remains that that conduct related to an infringement period which differed from those found by the Commission in respect of the \u2026.. and … infringements which … is accused of having encouraged.<\/p>\n
154\u00a0\u00a0\u00a0\u00a0According to the case-law, the duration of an infringement constitutes an integral part of that infringement and, as such, is inseparable from any finding of an infringement (judgment of 16\u00a0November 2006,\u00a0Per\u00f3xidos Org\u00e1nicos\u00a0v\u00a0Commission, T\u00a0120\/04, EU:T:2006:350, paragraph\u00a021).<\/p>\n
155\u00a0\u00a0\u00a0\u00a0Accordingly, it must be inferred from this that the conversation of 7\u00a0April 2010 concerned an infringement different from the \u2026. and \u2026. infringements which .. is accused of having facilitated and that the conversation cannot, in itself, prove that … knew of those two infringements.<\/p>\n
156\u00a0\u00a0\u00a0\u00a0In the second place, as regards the other evidence highlighted in the contested decision, a distinction must be drawn between the … infringement and the … infringement.<\/p>\n
157\u00a0\u00a0\u00a0\u00a0With respect to the \u2026. infringement, in so far as the Commission puts forward as evidence the conversation of 7\u00a0June 2010, in which … refers itself to concerted intervention by …, … and …, it necessarily follows that … knowledge of collusion between \u2026. and … is demonstrated to the requisite legal standard.<\/p>\n
158\u00a0\u00a0\u00a0\u00a0As regards the … infringement, it should be noted that the Commission found that it ceased on 2\u00a0June 2010 and does not therefore rely on the conversation of 7\u00a0June 2010 as evidence.<\/p>\n
159\u00a0\u00a0\u00a0\u00a0It follows from this that, with respect to the … infringement, the Commission does not adduce any evidence demonstrating that … knew of the collusion between … and ….<\/p>\n
160\u00a0\u00a0\u00a0\u00a0Nevertheless, it is necessary to ascertain whether .., which was informed by the conversation of 7\u00a0April 2010 of future concerted manoeuvres by …,… and…, should have \u2018reasonably foreseen\u2019, within the meaning of the case-law cited in paragraph 100 above, that some of the requests that … made to … from 18\u00a0May 2010 onwards were part of the implementation of collusion between the banks concerned.<\/p>\n
161\u00a0\u00a0\u00a0\u00a0In that regard, it should be noted that a reading of the conversation of 7\u00a0April 2010, as a whole, gives the impression that the aim of …, … and .., as far as .. was made aware, was a drop in certain JPY LIBOR rates until December, followed by an increase in those rates, at the very least the three-month rates.<\/p>\n
162\u00a0\u00a0\u00a0\u00a0It is therefore necessary to ascertain whether some of the requests of Mr\u00a0…, by then a … trader, to Mr\u00a0…, an … member of staff, during the infringement period should reasonably have led … to consider that they formed part of the preparation of the collusion between the banks concerned referred to in the conversation of 7\u00a0April 2010.<\/p>\n
163\u00a0\u00a0\u00a0\u00a0It must be stated that it is apparent from recitals 161 to 163 of the contested decision that, with the exception of a reference to high three-year rates, the requests addressed by Mr\u00a0.., by then a .. trader, to .. on 18\u00a0May 2010 and 23\u00a0May 2010 were aimed at maintaining low rates. Accordingly, … could reasonably have foreseen that requests for a reduction or a stabilisation of the JPY LIBOR rates sent in April and May formed part of the preparation of the collusion between …, … and .., of which .. was made aware on 7\u00a0April 2010.<\/p>\n
164\u00a0\u00a0\u00a0\u00a0The first complaint must consequently be rejected so far as concerns the … and … infringements.<\/p>\n
(2)\u00a0\u00a0\u00a0\u00a0The third complaint, contesting Icap\u2019s contribution to the common objectives pursued by the banks concerned<\/p>\n
165\u00a0\u00a0\u00a0\u00a0By the third complaint, the applicants submit that the conduct of which .. is accused in five of the infringements at issue differs too much from that found in respect of the banks concerned for the existence of common objectives for the purposes of the case-law mentioned in paragraph 100 above to be found. Since the contested decision, inasmuch as it finds that … participated in the \u2026.. 2008 infringement, must be annulled for the reasons set out in paragraphs 133 to 145 above, it is sufficient to examine this complaint in relation to the \u2026.. 2007, \u2026., \u2026.. and \u2026.. infringements.<\/p>\n
166\u00a0\u00a0\u00a0\u00a0In essence, the applicants submit that, for each of the four infringements referred to in paragraph 165 above, a distinction should be drawn between, on the one hand, the conduct of the two banks concerned by each of the infringements, which concerns the manipulation of their own JPY LIBOR panel submissions, and, on the other, the conduct of which \u2026. is accused, which relates to an attempt to manipulate the JPY LIBOR submissions of other banks on that panel. The applicants note, moreover, that, in each of those infringements, one of the two banks concerned was not aware of the role played by \u2026…<\/p>\n
167\u00a0\u00a0\u00a0\u00a0The applicants submit that the Commission was wrong to take the view that the two types of conduct mentioned in paragraph 166 above formed part of the same infringement. Thus, the references to a common objective to restrict or distort competition on the Japanese Yen interest rate derivatives market or to shift the JPY LIBOR are vague, erroneous and unsupported. The applicants add that the fact that, with the exception of Mr\u00a0…., those two types of conduct did not involve the same participants amounts to an objective ground for a finding that they constitute separate occurrences. Similarly, the applicants submit that the methods used in each of those two types of conduct are radically different, which would preclude their falling within the same infringement.<\/p>\n
168\u00a0\u00a0\u00a0\u00a0Moreover, the applicants claim that the Commission undertook, at a meeting held during the administrative procedure, not to rely in the contested decision on the complaint that Icap amplified the effects of the infringements at issue. In the reply, they complain that the Commission failed to prepare minutes of that meeting and request that the Commission provide the Court with the notes that it had prepared for that meeting, and submit, in essence, that the failure to honour such a commitment is akin to a breach of the principle of the protection of legitimate expectations.<\/p>\n
169\u00a0\u00a0\u00a0\u00a0The Commission contends that that complaint should be rejected.<\/p>\n
170\u00a0\u00a0\u00a0\u00a0In the first place, it should be noted that, for the four infringements referred to in paragraph 165 above, the Commission accused \u2026… of having influenced, in particular by altering the spreadsheet referred to in paragraph 15 above, the level of the rate submissions of certain banks which were members of the JPY LIBOR panel (see paragraphs 15 to 16 above) and that the applicants do not dispute that that conduct was engaged in.<\/p>\n
171\u00a0\u00a0\u00a0\u00a0In the second place, it is clear that there is a complementary relationship between the conduct of which \u2026.. is accused and that of which the banks concerned are accused, since the JPY LIBOR rates are calculated on the basis of the submissions of the banks which are members of the JPY LIBOR panel. The alteration of those rates would therefore have had a much lesser probability of success if the four infringements referred to in paragraph 165 above had been based only on the alignment of the submissions of the two banks concerned by each infringement. It follows that \u2026… had a key role in the implementation of those infringements by influencing some of the JPY LIBOR panel submissions in the direction desired by the banks concerned.<\/p>\n
172\u00a0\u00a0\u00a0\u00a0The Commission was therefore right to find that the conduct of which \u2026.. is accused contributed to the common objectives pursued by the banks concerned by each of the four infringements referred to in paragraph 165 above.<\/p>\n
173\u00a0\u00a0\u00a0\u00a0That finding is not called into question by the applicants\u2019 line of argument that it had a legitimate expectation in the fact that the Commission would not rely, in the contested decision, on the amplification of the effects of the manipulations of the JPY LIBOR by Icap.<\/p>\n
174\u00a0\u00a0\u00a0\u00a0That line of argument is based on the existence of assurances allegedly provided by Commission officials to \u2026..s representatives during a meeting subsequent to the Statement of Objections.<\/p>\n
175\u00a0\u00a0\u00a0\u00a0However, without there being any need to consider whether assurances provided in the informal setting of a Commission meeting are capable of giving rise to a legitimate expectation on the part of the applicants, it is sufficient to observe that such a line of argument is based on a factually incorrect premiss. It is apparent from Annex C.1, provided by the applicants and made up of the handwritten notes of their representatives during that meeting, that such assurances were given by the Commission only as regards the calculation of the fine and not in connection with the recognition of the existence of an infringement. Each of the three sets of notes shows that that issue was dealt with during the discussion on the amount of the fine and in reaction to the terms used in paragraph\u00a0248 of the Statement of Objections, which concerned that calculation.<\/p>\n
176\u00a0\u00a0\u00a0\u00a0The third complaint must therefore be rejected, without there being any need to proceed with the measure of organisation of procedure sought by the applicants.<\/p>\n
(3)\u00a0\u00a0\u00a0\u00a0The second complaint, disputing that \u2026.. intended to contribute to the achievement of the common objectives pursued by the banks concerned<\/p>\n
177\u00a0\u00a0\u00a0\u00a0By the second complaint, the applicants submit that the Commission did not prove that \u2026. intended to contribute to the common objectives pursued by the banks concerned in the context of the five infringements. For the same reasons as those set out in paragraph 165 above, it is sufficient to examine this complaint with regard to the \u2026.. 2007, \u2026., \u2026. and \u2026. infringements.<\/p>\n
178\u00a0\u00a0\u00a0\u00a0The only thing that emerges from the evidence is Icap\u2019s desire to satisfy the wishes of a trader who was the sole customer of one of its brokers. The applicants submit that the Commission\u2019s line of argument seeks to call in question the intention test set out in the relevant case-law.<\/p>\n
179\u00a0\u00a0\u00a0\u00a0The Commission contends that this complaint should be rejected.<\/p>\n
180\u00a0\u00a0\u00a0\u00a0Since, first, for the four infringements which remain at issue, the Commission was right to find that \u2026.. knew of the existence of collusion between the banks concerned and, second, it was found that there was a very high degree of complementarity between the conduct of the banks concerned and that of \u2026., it necessarily follows that \u2026. intended to contribute to the achievement of the common objectives pursued by those banks.<\/p>\n
181\u00a0\u00a0\u00a0\u00a0It must be held that the applicants\u2019 line of argument is based on a confusion between the motives of \u2026., which may indeed have consisted in the desire to satisfy the requests of a trader, and the knowledge that its conduct had the objective of facilitating the manipulation of the JPY LIBOR rates by influencing the JPY LIBOR panel submissions in the direction desired by the banks concerned by the infringement.<\/p>\n
182\u00a0\u00a0\u00a0\u00a0The second complaint must therefore be rejected.<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0The third limb, alleging that the grounds of the contested decision relating to the use by \u2026. of its contacts with the aim of influencing the submissions of certain banks were incorrect<\/p>\n
183\u00a0\u00a0\u00a0\u00a0By this limb, which relates only to the \u2026… 2007, \u2026.. and … infringements, the applicants contest the Commission\u2019s interpretation of certain … communications with its customers. First, the Commission fails to explain how the communications taken into account as evidence are relevant to the infringements concerned. Second, it misconstrued those communications, which do not disclose an intention to manipulate the submissions of other JPY LIBOR panel banks.<\/p>\n
184\u00a0\u00a0\u00a0\u00a0The Commission contends that this limb should be rejected.<\/p>\n
185\u00a0\u00a0\u00a0\u00a0In the context of the … 2007 infringement, the Commission found in recital 79(a) of the contested decision that, on 24\u00a0October 2007, … had used its contacts to try to influence the conduct of a panel bank. In the context of the … and … infringements, the Commission found, in recital 83(a) of that decision, that .. had engaged in similar conduct on 30\u00a0April 2010.<\/p>\n
186\u00a0\u00a0\u00a0\u00a0In the present case, it is sufficient to note, on the one hand, that it is apparent from recital 79(b) and recital 83(b) of the contested decision that the Commission did not limit itself to finding …s participation in those three infringements solely on the basis that it used its contacts, but also based that finding on the dissemination of misleading information to JPY LIBOR panel banks via the spreadsheet referred to in paragraph 15 above, and, on the other, that the applicants do not contest that aspect of the Commission\u2019s reasoning.<\/p>\n
187\u00a0\u00a0\u00a0\u00a0Thus, in so far as the dissemination of misleading information is, in itself, capable of demonstrating …s participation in those three infringements, it is necessary, under the case-law cited in paragraph 74 above, to reject that limb as ineffective.<\/p>\n
(c)\u00a0\u00a0\u00a0\u00a0The first limb, alleging breach of the principle of legal certainty<\/p>\n
188\u00a0\u00a0\u00a0\u00a0By this limb, the applicants claim that the \u2018facilitation\u2019 test applied to … is too broad and a novelty and breaches the principle of legal certainty. The classification of \u2018facilitator\u2019 applied to … could not reasonably have been inferred from the judgment of 8\u00a0July 2008,\u00a0AC-Treuhand\u00a0v\u00a0Commission\u00a0(T\u00a099\/04, EU:T:2008:256), and is therefore contrary to both the principle of legal certainty and the principle that offences and penalties must be defined by law.<\/p>\n
189\u00a0\u00a0\u00a0\u00a0The applicants claim, in that regard, that the notion of \u2018facilitation\u2019 is recent and undeveloped. They add that …\u2019s situation clearly differs from the role played by AC-Treuhand both in the case which gave rise to the judgment of 8\u00a0July 2008,\u00a0AC-Treuhand\u00a0v\u00a0Commission\u00a0(T\u00a099\/04, EU:T:2008:256), and in that which gave rise to the judgment of 6\u00a0February 2014,\u00a0AC-Treuhand\u00a0v\u00a0Commission\u00a0(T\u00a027\/10, EU:T:2014:59). Whereas AC-Treuhand made the collusion possible, .. is merely accused of having acted in furtherance of the collusion or having contributed to the collusion. In that regard, the applicants observe that, in the present case, the collusion between the banks concerned would have existed even in the absence of any intervention by ….<\/p>\n
190\u00a0\u00a0\u00a0\u00a0Rather than \u2018facilitating\u2019 a horizontal agreement, ..\u2019s role was limited to a vertical restriction with a trader; that restriction neither restricted nor distorted competition in itself. The applicants add that, in five out of the six infringements at issue, the other bank which was party to the collusion was unaware of …\u2019s involvement. They submit that the application of a test as broad as the notion of \u2018facilitation\u2019 has particularly serious effects on undertakings which are third parties to collusion.<\/p>\n
191\u00a0\u00a0\u00a0\u00a0The Commission contends that this limb should be rejected.<\/p>\n
192\u00a0\u00a0\u00a0\u00a0Since the contested decision, inasmuch as it finds that .. participated in the \u2026. 2008 infringement, must be annulled for the reasons set out in paragraphs\u00a0133 to 145 above, it is sufficient to examine this limb of the plea with regard to the \u2026. 2007, \u2026., … and …infringements.<\/p>\n
193\u00a0\u00a0\u00a0\u00a0It should be recalled that the principle of legal certainty requires, inter alia, that rules of law be clear, precise and predictable in their effects, especially where they may have negative consequences on individuals and undertakings (see judgment of 17\u00a0December 2015,\u00a0X-Steuerberatungsgesellschaft, C\u00a0342\/14, EU:C:2015:827, paragraph\u00a059 and the case-law cited).<\/p>\n
194\u00a0\u00a0\u00a0\u00a0In criminal law, the principle of legal certainty finds specific expression in the principle of the legality of criminal offences and penalties enshrined in Article\u00a049(1) of the Charter of Fundamental Rights (see, to that effect, judgment of 3\u00a0June 2008,\u00a0Intertanko and Others, C\u00a0308\/06, EU:C:2008:312, paragraph\u00a070), which implies that the law must define clearly offences and the penalties which they attract, this requirement being satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts\u2019 interpretation of it, what acts and omissions will make him criminally liable (see, to that effect, judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraph\u00a040 and the case-law cited).<\/p>\n
195\u00a0\u00a0\u00a0\u00a0The principle that offences and penalties must be defined by law cannot therefore be interpreted as precluding the gradual, case-by-case clarification of the rules on criminal liability by judicial interpretation, provided that the result was reasonably foreseeable at the time the offence was committed, especially in the light of the interpretation put on the provision in the case-law at the material time (see judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraph\u00a041 and the case-law cited).<\/p>\n
196\u00a0\u00a0\u00a0\u00a0The scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it covers and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. Such persons can therefore be expected to take special care in evaluating the risk that such an activity entails (see judgment of 22\u00a0October 2015,\u00a0AC-Treuhand\u00a0v\u00a0Commission, C\u00a0194\/14\u00a0P, EU:C:2015:717, paragraph\u00a042 and the case-law cited).<\/p>\n
197\u00a0\u00a0\u00a0\u00a0In the present case, it must be held that … should have expected, if necessary after taking appropriate legal advice, its conduct to be declared incompatible with the EU competition rules, especially in the light of the broad scope of the terms \u2018agreement\u2019 and \u2018concerted practice\u2019 established by the case-law of the Court of Justice.<\/p>\n
198\u00a0\u00a0\u00a0\u00a0As regards the applicants\u2019 line of argument aimed at playing down Icap\u2019s role in the infringements at issue by comparing it with the role attributed to AC-Treuhand in the cartels which were the subject of the cases which gave rise to the judgment of 8\u00a0July 2008,\u00a0AC-Treuhand\u00a0v\u00a0Commission\u00a0(T\u00a099\/04, EU:T:2008:256), and to the judgment of 6\u00a0February 2014,\u00a0AC-Treuhand\u00a0v\u00a0Commission\u00a0(T\u00a027\/10, EU:T:2014:59), it is necessary, on the contrary, to point out the significance of that participation for some of those infringements. In so far as JPY LIBOR rates are calculated on the basis of the submissions of the panel members, the influence exerted by Icap over its customers which were members of that panel via the spreadsheet referred to in paragraph 15 above made it possible to amplify the manipulations of those rates to a much greater extent than if those manipulations had remained confined only to the submissions of the two banks concerned by each of those infringements.<\/p>\n
199\u00a0\u00a0\u00a0\u00a0The first limb of the plea must therefore be rejected.<\/p>\n
200\u00a0\u00a0\u00a0\u00a0In the light of the foregoing, this plea must be upheld so far as concerns the \u2026… 2008 infringement and rejected as to the remainder.<\/p>\n
3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The third plea in law, alleging that the duration of the infringements at issue was incorrect<\/p>\n
201\u00a0\u00a0\u00a0\u00a0The applicants take issue with the Commission for failing to adduce evidence justifying the choice of the duration of the infringements at issue. In the applicants\u2019 submission, the Commission fails to show, first, that … participation in those infringements was of equivalent duration to that of the banks concerned and, second, that participation continued unabated between the dates for which the Commission considers that it has evidence. In particular, the Commission is required to demonstrate continued knowledge by … of the offending conduct of the banks concerned throughout the period in question in respect of each of those infringements.<\/p>\n
202\u00a0\u00a0\u00a0\u00a0That is all the more necessary in view of both the fact that interest rates were set on a daily basis and the Commission\u2019s admission that \u2026. was not aware of all the measures adopted by the banks concerned. Moreover, in essence, the applicants stress the diversity in tenor, and even the contradictory nature, of the unilateral requests from …, and later from …, in arguing that it was reasonable for … to regard those requests as not being part of the offending conduct of the banks concerned.<\/p>\n
203\u00a0\u00a0\u00a0\u00a0The Commission asserts that the evidence put forward in the contested decision is relevant as regards both the existence of the infringements and their duration. It is apparent from that evidence that regular contacts occurred at intermittent periods based on the needs of the banks concerned. It would therefore be artificial to split up a series of interrelated occurrences into individual instances of a few days\u2019 duration merely because JPY LIBOR rates are set on a daily basis. The Commission refers, in that regard, to the line of argument set out in recital 234(c) of the contested decision and observes that … intentional adherence to the common objectives of the infringements concerned has been demonstrated.<\/p>\n
204\u00a0\u00a0\u00a0\u00a0The Commission further states that, for each of the infringements at issue, the banks concerned have all admitted to the same duration as held against … and that for each infringement one of the banks concerned acknowledged the role played by \u2026. . That renders irrelevant the line of argument that Icap could have thought that each infringement was over after a short initial period.<\/p>\n
205\u00a0\u00a0\u00a0\u00a0According to settled case-law, an infringement of Article\u00a0101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an \u2018overall plan\u2019 because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see judgment of 24\u00a0June 2015,\u00a0Fresh Del Monte Produce\u00a0v\u00a0Commission\u00a0and\u00a0Commission\u00a0v\u00a0Fresh Del Monte Produce, C\u00a0293\/13\u00a0P and C\u00a0294\/13\u00a0P, EU:C:2015:416, paragraph\u00a0156 and the case-law cited).<\/p>\n
206\u00a0\u00a0\u00a0\u00a0An undertaking which has participated in a single and complex infringement of that kind by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article\u00a0101(1) TFEU and was intended to help bring about the infringement as a whole, may thus be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see judgment of 24\u00a0June 2015,\u00a0Fresh Del Monte Produce\u00a0v\u00a0Commission\u00a0and\u00a0Commission\u00a0v\u00a0Fresh Del Monte Produce, C\u00a0293\/13\u00a0P and C\u00a0294\/13\u00a0P, EU:C:2015:416, paragraph\u00a0157 and the case-law cited).<\/p>\n
207\u00a0\u00a0\u00a0\u00a0An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 24\u00a0June 2015,\u00a0Fresh Del Monte Produce\u00a0vCommission\u00a0and\u00a0Commission\u00a0v\u00a0Fresh Del Monte Produce, C\u00a0293\/13\u00a0P and C\u00a0294\/13\u00a0P, EU:C:2015:416, paragraph\u00a0158 and the case-law cited).<\/p>\n
208\u00a0\u00a0\u00a0\u00a0On the other hand, if an undertaking has directly taken part in one or more of the forms of anticompetitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk (see judgment of 24\u00a0June 2015,\u00a0Fresh Del Monte Produce\u00a0v\u00a0Commission\u00a0and\u00a0Commission\u00a0v\u00a0Fresh Del Monte Produce, C\u00a0293\/13\u00a0P and C\u00a0294\/13\u00a0P, EU:C:2015:416, paragraph\u00a0159 and the case-law cited).<\/p>\n
209\u00a0\u00a0\u00a0\u00a0In the present case, in order to determine the duration of the infringements at issue, the Commission relied on their classification as single and continuous infringements, as is apparent from recitals 210 to 217 of the contested decision. In recital 234(c) of that decision, the Commission took the view that the evidence adduced demonstrated the existence of regular contacts that occurred at intermittent periods based on the needs of the individual participants and concluded from this that it would be artificial to split them up into individual instances of a few days\u2019 duration, on the ground that the JPY LIBOR rate-setting process occurs on a daily basis. In recital 234(d) of that decision, the Commission considered that the awareness of contacts between……, then …, and the other bank concerned implied that … was in a position to assume that all of its routine actions for the benefit of … and then of .. could also be in support of a scheme between these banks and the other banks concerned by those infringements.<\/p>\n
210\u00a0\u00a0\u00a0\u00a0The applicants\u2019 line of argument can be divided into two complaints. They contest, first, the relevance of some of … conduct on which the Commission relied and, second, the inclusion in the infringement periods of intervals for which no evidence of … participation has been adduced.<\/p>\n
211\u00a0\u00a0\u00a0\u00a0Since the contested decision, inasmuch as it finds that Icap participated in the … 2008 infringement, must be annulled for the reasons set out in paragraphs\u00a0133 to 145 above, it is sufficient to examine this plea with regard to the … 2007, \u2026., \u2026., \u2026. and \u2026. infringements.<\/p>\n
212\u00a0\u00a0\u00a0\u00a0It is necessary to make two preliminary observations before assessing the legality of the contested decision in relation to each of the infringement periods found by the Commission.<\/p>\n
213\u00a0\u00a0\u00a0\u00a0As regards the first complaint, it is necessary to recall the finding made in paragraph 105 above that, in the contested decision, the Commission did not find the existence of separate infringements between \u2026. and …, then between \u2026. and …, whose object was to manipulate the JPY LIBOR rates at issue in a manner consistent with the interests of …, and then of .., by means of the dissemination by … of incorrect information. The Commission relied on … implementation of infringements decided upon each time between two banks. Accordingly, for reasons similar to those set out in paragraphs 119 to 121 above, only evidence capable of proving that … was aware of or could reasonably have foreseen that the requests addressed to it by …, and then …, formed part of the common objectives pursued by the two banks concerned by each of the infringements could be taken into account as proof of its participation in those infringements.<\/p>\n
214\u00a0\u00a0\u00a0\u00a0As regards the second complaint, it should be noted that the applicants\u2019 line of argument is based essentially on the fact that JPY LIBOR rates are set on a daily basis and that, therefore, the manipulation had to be repeated each day in order to continue to produce its effects.<\/p>\n
215\u00a0\u00a0\u00a0\u00a0It must be stated that such a line of argument is tantamount to contesting the merits of the Commission\u2019s finding of the continuous nature of .. participation in the infringements at issue.<\/p>\n
216\u00a0\u00a0\u00a0\u00a0In that regard, it should be pointed out that, depending on the circumstances, a single infringement may be continuous or repeated.<\/p>\n
217\u00a0\u00a0\u00a0\u00a0Although the notion of a single infringement covers a situation in which several undertakings participated in an infringement in which continuous conduct in pursuit of a single economic aim was intended to distort competition and also individual infringements linked to one another by the same object and the same undertakings, the way in which the infringement was committed determines whether it may be categorised as a single, continuing infringement or a single, repeated infringement (see, to that effect, judgments of 17\u00a0May 2013,\u00a0Trelleborg Industrie and Trelleborg\u00a0v\u00a0Commission, T\u00a0147\/09 and T\u00a0148\/09, EU:T:2013:259, paragraphs\u00a085 and 86, and of 16\u00a0June 2015,\u00a0FSL and Others\u00a0v\u00a0Commission, T\u00a0655\/11, EU:T:2015:383, paragraph\u00a0484).<\/p>\n
218\u00a0\u00a0\u00a0\u00a0With regard to a continuous infringement, the concept of an overall plan means that the Commission may assume that an infringement has not been interrupted even if, in relation to a specific period, it has no evidence of the participation of the undertaking concerned in that infringement, provided that that undertaking participated in the infringement prior to and after that period and provided that there is no proof or indication that the infringement was interrupted so far as concerns that undertaking. In that case, it will be able to impose a fine in respect of the whole of the period of infringement, including the period in respect of which it does not have evidence of the participation of the undertaking concerned (see, to that effect, judgments of 17\u00a0May 2013,\u00a0Trelleborg Industrie and Trelleborg\u00a0v\u00a0Commission, T\u00a0147\/09 and T\u00a0148\/09, EU:T:2013:259, paragraph\u00a087, and of 16\u00a0June 2015,\u00a0FSL and Others\u00a0v\u00a0Commission, T\u00a0655\/11, EU:T:2015:383, paragraph\u00a0481).<\/p>\n
219\u00a0\u00a0\u00a0\u00a0However, the principle of legal certainty requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see judgment of 16\u00a0June 2015,\u00a0FSL and Others\u00a0v\u00a0Commission, T\u00a0655\/11, EU:T:2015:383, paragraph\u00a0482 and the case-law cited).<\/p>\n
220\u00a0\u00a0\u00a0\u00a0Although the period separating two manifestations of infringing conduct is a relevant criterion in order to establish the continuous nature of an infringement, the fact remains that the question whether or not that period is long enough to constitute an interruption of the infringement cannot be examined in the abstract. On the contrary, it needs to be assessed in the context of the functioning of the cartel in question (see judgment of 16\u00a0June 2015,\u00a0FSL and Others\u00a0v\u00a0Commission, T\u00a0655\/11, EU:T:2015:383, paragraph\u00a0483 and the case-law cited).<\/p>\n
221\u00a0\u00a0\u00a0\u00a0Lastly, if the participation of an undertaking in the infringement may be regarded as having been interrupted and the undertaking may be regarded as having participated in the infringement prior to and after that interruption, that infringement may be categorised as repeated if\u00a0\u2014 as in the case of a continuing infringement\u00a0\u2014 there is a single objective which it pursued both before and after the interruption, a circumstance which may be deduced from the identical nature of the objectives of the practices at issue, of the goods concerned, of the undertakings which participated in the collusion, of the main rules for its implementation, of the natural persons involved on behalf of the undertakings and, lastly, of the geographical scope of those practices. The infringement is then single and repeated and, although the Commission may impose a fine in respect of the whole of the period of the infringement, it may not do so for the period during which the infringement was interrupted (judgments of 17\u00a0May 2013,\u00a0Trelleborg Industrie and Trelleborg\u00a0v\u00a0Commission, T\u00a0147\/09 and T\u00a0148\/09, EU:T:2013:259, paragraph\u00a088, and of 16\u00a0June 2015,\u00a0FSL and Others\u00a0v\u00a0Commission, T\u00a0655\/11, EU:T:2015:383, paragraph\u00a0484).<\/p>\n
222\u00a0\u00a0\u00a0\u00a0In the present case, in terms of the context of the functioning of the cartel in question, which is relevant for the purposes of assessing whether the period separating two manifestations of unlawful conduct means that there has been an interruption in an undertaking\u2019s participation under the case-law cited in paragraph 220 above, it is indeed necessary to take into account that JPY LIBOR rates are set on a daily basis. It necessarily follows that the effects of manipulating those rates are limited in time and that the manipulation needs to be repeated in order for those effects to continue.<\/p>\n
223\u00a0\u00a0\u00a0\u00a0In that regard, it should be recalled that, in circumstances where the pursuit of an agreement or of concerted practices requires special positive measures, the Commission cannot assume that the cartel has been pursued in the absence of evidence that those measures were adopted (see, to that effect, judgment of 15\u00a0March 2000,\u00a0Cimenteries CBR and Others\u00a0v\u00a0Commission, T\u00a025\/95, T\u00a026\/95, T\u00a030\/95 to T\u00a032\/95, T\u00a034\/95 to T\u00a039\/95, T\u00a042\/95 to T\u00a046\/95, T\u00a048\/95, T\u00a050\/95 to T\u00a065\/95, T\u00a068\/95 to T\u00a071\/95, T\u00a087\/95, T\u00a088\/95, T\u00a0103\/95 and T\u00a0104\/95, EU:T:2000:77, paragraphs\u00a02803 and 2804).<\/p>\n
224\u00a0\u00a0\u00a0\u00a0It follows that proof of …s participation in single and continuous infringements and, therefore, the incurring of its liability for the whole of the infringement periods required the Commission to produce evidence of positive measures adopted by …, if not on a daily basis, at least sufficiently limited in time. Otherwise, it was for the Commission to find the existence of single and repeated infringements and not to include in the infringement periods found against … the intervals in respect of which it does not possess evidence of its participation.<\/p>\n
225\u00a0\u00a0\u00a0\u00a0It is appropriate to examine jointly, for each of the infringements at issue, the two complaints put forward by the applicants.<\/p>\n
(a)\u00a0\u00a0\u00a0\u00a0The duration of Icap\u2019s participation in the \u2026. 2007 infringement<\/p>\n
226\u00a0\u00a0\u00a0\u00a0As regards the infringement period found with respect to Icap for the \u2026. 2007 infringement, as was already explained in paragraphs 128 to 131 above, \u2026. knowledge of the common objectives pursued by … and … is based on the conversation of 14\u00a0August 2007 alone, mentioned in recital 106 of the contested decision. Although that conversation enabled … to learn of the existence of an infringement between … and…, the fact remains that the information referred to in that conversation was limited in two respects. First, it concerned only manipulations relating to the six-month JPY LIBOR rate. Second, it referred solely to an upwards manipulation of that rate.<\/p>\n
227\u00a0\u00a0\u00a0\u00a0In the first place, it should be pointed out that attention is drawn in recital 107 of the contested decision to requests from Mr\u00a0…, at the time a … trader, to Mr\u00a0…, an … member of staff, made on 15, 16 and 17\u00a0August 2007 and referring to high six-month rates. It must be stated that such requests are consistent with the tenor of the conversation of 14\u00a0August 2007 and all occur within a short period of time. It necessarily follows that they are capable of proving Icap\u2019s participation in a single and continuous infringement until that date.<\/p>\n
228\u00a0\u00a0\u00a0\u00a0In the second place, it should however be pointed out that the subsequent evidence taken into account by the Commission against … relates either to rates with maturities different from those referred to in the conversation of 14\u00a0August 2007, or rate manipulations which ran counter to the content of that conversation.<\/p>\n
229\u00a0\u00a0\u00a0\u00a0Thus, the request of Mr\u00a0…., at the time a … trader, to Mr\u00a0…, an … member of staff, of 20\u00a0August 2007, mentioned in recital 107 of the contested decision, sought high rates for the three-month JPY LIBOR, whereas … had been informed only of an agreement between … and .. on an increase in the six-month rates. Furthermore, Mr\u00a0…\u2019s request to Mr\u00a0….\u00a0of 22\u00a0August 2007, mentioned in recital 108 of that decision, sought low rates for the six-month JPY LIBOR, that is the opposite of the content of the agreement between … and …, as brought to … attention.<\/p>\n
230\u00a0\u00a0\u00a0\u00a0Thus, at the very least from 22\u00a0August 2007 onwards, … could have reasonably taken the view that the … infringement had ceased. Accordingly, in the absence of any subsequent information brought to … attention regarding a continuation or repetition of the collusion between \u2026. and …, … cannot be accused of having participated in that infringement from that date onwards.<\/p>\n
231\u00a0\u00a0\u00a0\u00a0Accordingly, the third plea must be upheld to the extent that the contested decision found that Icap had participated in the \u2026.. 2007 infringement after 22\u00a0August 2007.<\/p>\n
(b)\u00a0\u00a0\u00a0\u00a0The duration of \u2026. participation in the \u2026. infringement<\/p>\n
232\u00a0\u00a0\u00a0\u00a0As regards the infringement period found with respect to \u2026. for the \u2026. infringement, it should be noted that the applicants do not contest … participation in that infringement for the dates in relation to which the Commission adduces evidence. Their line of argument seeks solely to contest the continuous nature of that participation for the whole of the infringement period found, namely from 3 March until 22\u00a0June 2010.<\/p>\n
233\u00a0\u00a0\u00a0\u00a0In that regard, it should be observed that it is apparent from point\u00a05.3.5 of the contested decision, relating to … \u2018facilitation\u2019 of the … infringement, that the Commission adduces evidence only with respect to the following dates: 3 and 4\u00a0March 2010 (recitals 142 to 144), 28 and 29\u00a0April 2010 (recitals 146 and 147), 4\u00a0May 2010 (recital 149), 12\u00a0May 2010 (recital 148), 13\u00a0May 2010 (recital 149), 25\u00a0May 2010 (recital 150), 15\u00a0June 2010 (recital 151) and 22\u00a0June 2010 (recital 152).<\/p>\n
234\u00a0\u00a0\u00a0\u00a0In the first place, since all the forms of conduct of which … is accused consisted in obtaining, at the request of Mr\u00a0…, by then a … trader, information from … relating to the level of its future JPY LIBOR panel submissions as well as, sometimes, influencing them, it necessarily follows that they form part of a single infringement.<\/p>\n
235\u00a0\u00a0\u00a0\u00a0In the second place, as regards whether the classification of continuous infringement applied to the infringement at issue is well founded, it should be pointed out that, although, from 28 April until 22\u00a0June 2010, the Commission adduces evidence of regular intervention by … and at relatively frequent intervals, no evidence is adduced for the period from 5 March until 27\u00a0April 2010, that is for more than seven weeks.<\/p>\n
236\u00a0\u00a0\u00a0\u00a0In addition, although the evidence pertaining to 3 and 4\u00a0March 2010 shows clearly that … intervened at the request of Mr\u00a0…, by then a … trader, with a view to obtaining a reduction in \u2026.s JPY LIBOR panel submissions, it is also apparent from that evidence that Mr\u00a0…\u00a0sought a one-off reduction in the three-month JPY LIBOR with a view to improving his positions on 3\u00a0March 2010. It is not possible to infer from this the existence of a framework agreement by which .. agreed to alter over a longer period its submissions in the direction desired by Mr\u00a0….<\/p>\n
237\u00a0\u00a0\u00a0\u00a0It follows that, for the reasons set out in paragraphs 222 to 223 above and in the light in particular of the fact that JPY LIBOR rates are set on a daily basis, the absence of evidence of intervention by \u2026. for a period of that length should have led the Commission to conclude that there was an interruption in its participation between 5 March and 27\u00a0April 2010.<\/p>\n
238\u00a0\u00a0\u00a0\u00a0Accordingly, the third plea must be upheld to the extent that the contested decision found that … had participated in the … infringement between 5 March and 27\u00a0April 2010.<\/p>\n
(c)\u00a0\u00a0\u00a0\u00a0The duration of \u2026. participation in the \u2026. and … infringements<\/p>\n
239\u00a0\u00a0\u00a0\u00a0So far as concerns the legality of the infringement periods found against … in respect of the \u2026. and … infringements, the applicants contest both the relevance of the evidence used against .. and the continuous nature of its participation in those infringements.<\/p>\n
240\u00a0\u00a0\u00a0\u00a0As regards, in the first place, the relevance of the evidence taken into account by the Commission in the case of the … infringement and the … infringement, the Court makes the following observations.<\/p>\n
241\u00a0\u00a0\u00a0\u00a0As regards, first, the conversation of 7\u00a0April 2010 mentioned in recitals 154 and 160 of the contested decision, for reasons similar to those set out in paragraphs 152 to 155 above, it should be noted that the conversation related to an infringement different from those found by the Commission. Thus, just as it was held that that conversation was in itself incapable of proving that … knew of the infringements at issue, it must be inferred that conversation cannot constitute proof of its participation in the \u2026. infringement.<\/p>\n
242\u00a0\u00a0\u00a0\u00a0With regard, second, to the requests of Mr\u00a0…\u00a0(by then a … trader) to Mr\u00a0…\u00a0(an .. member of staff) of 18 May and of 23\u00a0May 2010 considered in recitals 155 and 161 of the contested decision, for reasons similar to those explained in paragraph 163 above, it must be concluded that … could reasonably have foreseen that those requests formed part of the implementation of collusion between …, … and ….\u00a0The Commission was therefore right to take those requests into account.<\/p>\n
243\u00a0\u00a0\u00a0\u00a0The same is true, third, of the communication between Mr\u00a0…\u00a0and Mr…, members of … staff, seeking an adjustment of the spreadsheet referred to in paragraph 15 above of 1\u00a0June 2010, considered in recitals 157 and 163 of the contested decision, in so far as that communication postdates the requests mentioned in paragraph 242 above and may, therefore, appear to implement them. That is, moreover, confirmed by the conversation of the following day, on 2\u00a0June 2010, between Mr\u00a0…\u00a0and Mr\u00a0…\u00a0(by then a \u2026. trader), mentioned in recitals 156 and 162 of that decision, in which Mr\u00a0…\u00a0informs Mr\u00a0….\u00a0that Mr\u00a0…\u00a0had effected the desired adjustments.<\/p>\n
244\u00a0\u00a0\u00a0\u00a0Lastly, fourth, and with regard to the … infringement, the Commission was also right to take account of the conversation of 7\u00a0June 2010, mentioned in recital 158 of the contested decision, since, for the reasons set out in paragraph 157 above, the content of that conversation clearly demonstrates that … knew of the existence of collusion between \u2026. and….<\/p>\n
245\u00a0\u00a0\u00a0\u00a0As regards, in the second place, the examination of whether the Commission\u2019s finding of the continuous nature of … participation in the … infringement between 7 April and 7\u00a0June 2010 is well founded, it must be stated that the contested decision is not based on any evidence of any request addressed to … to manipulate the JPY LIBOR panel submissions before 18\u00a0May 2010. By contrast, after that date, it is apparent from paragraphs 242 to 244 above that the Commission adduces evidence of regular intervention by … and at relatively frequent intervals until 7\u00a0June 2010.<\/p>\n
246\u00a0\u00a0\u00a0\u00a0It follows that the Commission was wrong to fix 7\u00a0April 2010 as the starting point for … participation in the … infringement when it is able to prove such participation only from 18\u00a0May 2010.<\/p>\n
247\u00a0\u00a0\u00a0\u00a0Accordingly, the third plea must be upheld to the extent that the contested decision found that the applicants participated in the … infringement between 7 April and 18\u00a0May 2010.<\/p>\n
248\u00a0\u00a0\u00a0\u00a0As regards, in the third place, the examination of whether the Commission\u2019s finding of the continuous nature of … participation in the … infringement between 28 April and 2\u00a0June 2010 is well founded, it is sufficient to note that the Commission relies on the same items of evidence as those put forward in the context of the … infringement. It necessarily follows that the Commission was wrong to fix 28\u00a0April 2010 as the starting point of that participation when it is able to prove such participation only from 18\u00a0May 2010.<\/p>\n
249\u00a0\u00a0\u00a0\u00a0Accordingly, the third plea must be upheld to the extent that the contested decision found that … participated in the .. infringement between 28 April and 18\u00a0May 2010.<\/p>\n
(d)\u00a0\u00a0\u00a0\u00a0The duration of \u2026. participation in the \u2026. infringement<\/p>\n
250\u00a0\u00a0\u00a0\u00a0As regards the legality of the contested decision with respect to the infringement period found against Icap for the … infringement, namely from 22 May to 10\u00a0August 2009, it must be observed, in the first place, that the applicants do not contest the relevance of the evidence used against ….<\/p>\n
251\u00a0\u00a0\u00a0\u00a0In the second place, it is apparent from point\u00a05.3.4 of the contested decision and in particular from recitals 129 to 139 of that decision that the Commission adduces evidence of regular intervention by …, at very frequent intervals and over the whole of the infringement period found. The Commission was therefore right to find that … participated continuously in the … infringement from 22 May to 10\u00a0August 2009.<\/p>\n
252\u00a0\u00a0\u00a0\u00a0In the light of the foregoing, it is necessary to uphold this plea and annul Article\u00a01(a) of the contested decision inasmuch as it finds that \u2026. participated in the \u2026. 2007 infringement after 22\u00a0August 2007, Article\u00a01(d) of that decision inasmuch as it finds that \u2026. participated in the \u2026. infringement between 5 March and 27\u00a0April 2010 and Article\u00a01(e) and (f) of that decision inasmuch as it finds that Icap participated in the \u2026. and … infringements prior to 18\u00a0May 2010.<\/p>\n
4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The fourth plea, alleging breach of the principles of presumption of innocence and good administration<\/p>\n
253\u00a0\u00a0\u00a0\u00a0In the context of this plea, the applicants submit that the contested decision should be annulled on account of the references as of the 2013 decision to … conduct and put forward two complaints alleging breach of (i) the principle of presumption of innocence and (ii) the principle of good administration.<\/p>\n
254\u00a0\u00a0\u00a0\u00a0The Commission contends that this plea should be rejected.<\/p>\n
255\u00a0\u00a0\u00a0\u00a0Since the contested decision, inasmuch as it finds that … participated in the \u2026.. 2008 infringement, must be annulled for the reasons set out in paragraphs\u00a0133 to 145 above, it is sufficient to examine this plea with regard to the \u2026. 2007, \u2026., \u2026., \u2026. and … infringements.<\/p>\n
256\u00a0\u00a0\u00a0\u00a0As regards the complaint alleging that the 2013 decision was adopted in breach of the principle of presumption of innocence, it should be recalled that that principle constitutes a general principle of EU law, currently laid down in Article\u00a048(1) of the Charter of Fundamental Rights, which applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see judgment of 22\u00a0November 2012,\u00a0E.ON Energie\u00a0v\u00a0Commission, C\u00a089\/11\u00a0P, EU:C:2012:738, paragraphs\u00a072 and 73 and the case-law cited).<\/p>\n
257\u00a0\u00a0\u00a0\u00a0The principle of the presumption of innocence implies that every person accused is presumed to be innocent until his guilt has been established according to law. It thus precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits of the case (judgments of 6\u00a0October 2005,\u00a0Sumitomo Chemical and Sumika Fine Chemicals\u00a0v\u00a0Commission, T\u00a022\/02 and T\u00a023\/02, EU:T:2005:349, paragraph\u00a0106; of 12\u00a0October 2007,\u00a0Pergan Hilfsstoffe f\u00fcr industrielle Prozesse\u00a0v\u00a0Commission, T\u00a0474\/04, EU:T:2007:306, paragraph\u00a076, and of 16\u00a0September 2013,\u00a0Villeroy & Boch Austria\u00a0v\u00a0Commission, T\u00a0373\/10 and T\u00a0374\/10, not published, EU:T:2013:455, paragraph\u00a0158).<\/p>\n
258\u00a0\u00a0\u00a0\u00a0In the present case, first, it should be noted that, in the part of the 2013 decision entitled \u2018Description of the events\u2019, the Commission specifies, in particular in recitals 43, 45, 46, 49, 50, 54, 56, 59, 60, 62 and 64, how … \u2018facilitated\u2019 the infringements at issue imputed to the banks participating in the settlement procedure.<\/p>\n
259\u00a0\u00a0\u00a0\u00a0It must be stated that although those passages appear in the part of the 2013 decision setting out the facts and do not include as such a legal classification under Article\u00a0101(1) TFEU, they nonetheless reveal very clearly the Commission\u2019s position on … participation in the unlawful conduct found with respect to the banks concerned. In that regard, recital 45 of that decision is particularly revealing of the existence of a position adopted by the Commission on that question, since it is stated therein as follows:<\/p>\n
\u2018\u2026 … sought to influence [its] JPY LIBOR submissions in directions desired by the trader at \u2026.; \u2026 [o]n certain occasions, by disseminating misleading information to certain JPY LIBOR panel banks via the so-called \u201crun-throughs\u201d, which were veiled as \u201cpredictions\u201d or \u201cexpectations\u201d of where the JPY LIBOR rates would be set. This misleading information was aimed at influencing certain panel banks that did not participate in these infringements, to submit JPY LIBOR rates in line with the adjusted \u201cpredictions\u201d or \u201cexpectations.\u201d\u2019<\/p>\n
260\u00a0\u00a0\u00a0\u00a0Second, although recital 51 of the 2013 decision states that that decision does not make any finding as regards the legal qualification of, and liability for, its conduct, the fact remains that the Commission\u2019s position on the legal classification of … conduct and the incurring of its liability of the six infringements at issue could easily be inferred from a reading of that decision.<\/p>\n
261\u00a0\u00a0\u00a0\u00a0First, in recital 69 of the 2013 decision, the Commission reproduces the content of paragraph\u00a0130 of the judgment of 8\u00a0July 2008,\u00a0AC-Treuhand\u00a0v\u00a0Commission\u00a0(T\u00a099\/04, EU:T:2008:256), to which it refers, in which the Court clarified the conditions under which the liability of an undertaking is incurred in respect of what the Commission classifies as \u2018facilitation\u2019 of an infringement. Moreover, that decision refers, in particular, in the title of its points\u00a04.1.2.1, 4.1.2.3, 4.1.2.4 and 4.1.3, to the \u2018facilitation\u2019 of the infringements concerned by ….<\/p>\n
262\u00a0\u00a0\u00a0\u00a0Third, it should be pointed out that the 2013 decision constitutes a \u2018final decision\u2019 within the meaning of the case-law cited in paragraph 257 above.<\/p>\n
263\u00a0\u00a0\u00a0\u00a0In that regard, the parallel drawn by the Commission at the hearing between the expression of a view on the legality of … conduct in the 2013 decision with the view that might appear in a statement of objections is irrelevant. In a statement of objections, the undertaking concerned is able to defend itself properly before the Commission adopts a final decision. Having decided not to participate in the settlement procedure, the applicants were not afforded an opportunity to make known their view before the adoption of that decision. Similarly, the possibility for the applicants to exercise their rights of defence in the action against the contested decision in no way detracts from the fact that, in a final decision prior to the contested decision, the Commission had already made a formal finding that \u2026. had participated in six infringements of Article\u00a0101 TFEU.<\/p>\n
264\u00a0\u00a0\u00a0\u00a0Lastly, fourth, that conclusion is not called in question by the Commission\u2019s line of argument alleging, in essence, that references to the participation of third persons may be necessary for the assessment of the guilt of those participating in a settlement procedure. The Commission observes that one of the objectives of the settlement procedure is to ensure greater rapidity and efficiency and infers from this that it would be contrary to the achievement of those objectives to allow a party which does not wish to enter into a settlement to delay the adoption of the settlement decision with regard to the other parties.<\/p>\n
265\u00a0\u00a0\u00a0\u00a0In that regard, it should be pointed out that, although the principle of presumption of innocence is enshrined in Article\u00a048 of the Charter of Fundamental Rights, which, pursuant to Article\u00a06 TEU, has the same legal value as the Treaties, the origin of the settlement procedure is to be found in a regulation adopted by the Commission alone, on the basis of Article\u00a033 of Regulation No\u00a01\/2003, namely Regulation No\u00a0622\/2008, and that the procedure is optional for both the Commission and the undertakings concerned.<\/p>\n
266\u00a0\u00a0\u00a0\u00a0Accordingly, the requirements relating to compliance with the principle of presumption of innocence cannot be distorted by considerations linked to the safeguarding of the objectives of rapidity and efficiency of the settlement procedure, no matter how laudable those objectives may be. On the contrary, it is for the Commission to apply its settlement procedure in a manner that is compatible with the requirements of Article\u00a048 of the Charter of Fundamental Rights.<\/p>\n
267\u00a0\u00a0\u00a0\u00a0It is true, as the Court noted in its judgment of 20\u00a0May 2015,\u00a0Timab Industries and CFPR\u00a0v\u00a0Commission\u00a0(T\u00a0456\/10, EU:T:2015:296, paragraph\u00a071), that where the settlement does not involve all the participants in an infringement, the Commission is entitled to adopt, on the one hand, following a simplified procedure, a decision addressed to the participants in the infringement who have decided to enter into a settlement and reflecting the commitment of each of them and, on the other hand, according to the standard procedure, a decision addressed to participants in the infringement who have decided not to enter into a settlement.<\/p>\n
268\u00a0\u00a0\u00a0\u00a0However, the implementation of such a \u2018hybrid\u2019 settlement procedure must be carried out in compliance with the presumption of innocence of the undertaking which has decided not to enter into a settlement. Accordingly, in circumstances where the Commission considers that it is not in a position to determine the liability of the undertakings participating in the settlement without also taking a view on the participation in the infringement of the undertaking which has decided not to enter into a settlement, it is for the Commission to take the necessary measures\u00a0\u2014 including possible adoption on the same date of the decisions relating to all the undertakings concerned by the cartel, as it did in the case which gave rise to the judgment of 20\u00a0May 2015,\u00a0Timab Industries and CFPR\u00a0v\u00a0Commission\u00a0(T\u00a0456\/10, EU:T:2015:296)\u00a0\u2014 enabling that presumption of innocence to be safeguarded.<\/p>\n
269\u00a0\u00a0\u00a0\u00a0In the light of the foregoing, it must be held that the Commission infringed the presumption of … innocence when adopting the 2013 decision. Admittedly, that breach of the presumption of its innocence at the time of the adoption of the 2013 decision cannot have a direct impact on the legality of the contested decision, in view of the separate and independent nature of the proceedings which gave rise to those two decisions.<\/p>\n
270\u00a0\u00a0\u00a0\u00a0However, it is necessary to ascertain whether such a finding by the Commission prior to the contested decision of … participation in the infringements at issue is capable of vitiating that decision with a lack of objective impartiality by the Commission and, accordingly, with a breach of the principle of good administration set out in Article\u00a041 of the Charter of Fundamental Rights, as the applicants submit in the context of their second complaint.<\/p>\n
271\u00a0\u00a0\u00a0\u00a0It is settled case-law that the Commission is required during the administrative procedure relating to restrictive practices to respect the right to good administration, enshrined in Article\u00a041 of the Charter of Fundamental Rights (see, to that effect, judgment of 11\u00a0July 2013,\u00a0Ziegler\u00a0v\u00a0Commission, C\u00a0439\/11\u00a0P, EU:C:2013:513, paragraph\u00a0154 and the case-law cited).<\/p>\n
272\u00a0\u00a0\u00a0\u00a0Article\u00a041 of the Charter of Fundamental Rights provides that every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union. That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (see judgment of 11\u00a0July 2013,\u00a0Ziegler\u00a0v\u00a0Commission, C\u00a0439\/11\u00a0P, EU:C:2013:513, paragraph\u00a0155 and the case-law cited).<\/p>\n
273\u00a0\u00a0\u00a0\u00a0This plea is concerned solely with the concept of objective impartiality. The applicants submit, in essence, that there are legitimate doubts as to the Commission\u2019s objective impartiality, since it was required to take a view on whether its own assessments were well founded.<\/p>\n
274\u00a0\u00a0\u00a0\u00a0However, it is clear that, in the circumstances of the present case, such a complaint cannot in itself lead to the annulment of the contested decision. It should be pointed out that the Commission did not exercise any discretion when classifying the infringements at issue or when examining … participation which could have been vitiated by a lack of objective impartiality, as is shown in the comprehensive review carried out by the Court in the context of the examination of the first, second and third pleas.<\/p>\n
275\u00a0\u00a0\u00a0\u00a0In that regard, it should be pointed out that the applicants\u2019 criticisms related to the merits of the classification as infringements by object found by the Commission (first plea) and the merits of the findings of … participation in those infringements (second and third pleas).<\/p>\n
276\u00a0\u00a0\u00a0\u00a0As regards, first, … participation in the infringements at issue, the issue whether a possible lack of objective impartiality on the part of the Commission could have affected the legality of the contested decision is indissociable from the question whether the findings made in that decision are properly supported by the evidence adduced by the Commission (see, to that effect, judgments of 6\u00a0July 2000,\u00a0Volkswagen\u00a0v\u00a0Commission, T\u00a062\/98, EU:T:2000:180, paragraph\u00a0270, and of 16\u00a0June 2011,\u00a0Bavaria\u00a0v\u00a0Commission, T\u00a0235\/07, EU:T:2011:283, paragraph\u00a0226), a question which was reviewed in the context of the examination of the second and third pleas.<\/p>\n
277\u00a0\u00a0\u00a0\u00a0Thus, even if a possible lack of objective impartiality on the part of the Commission might have led it to find wrongly that … participated in the UBS\/RBS 2008 infringement or for certain periods of the … 2007, \u2026., … and … infringements, it should be pointed out that the contested decision must already be annulled in that regard.<\/p>\n
278\u00a0\u00a0\u00a0\u00a0As regards the other findings made in the contested decision, the irregularity relating to a possible lack of objective impartiality on the part of the Commission would entail the annulment of that decision only if it were established that, were it not for that irregularity, that decision would have been different in content (judgment of 6\u00a0July 2000,\u00a0Volkswagen\u00a0v\u00a0Commission, T\u00a062\/98, EU:T:2000:180, paragraph\u00a0283). In the present case, in the context of the exercise of the comprehensive review of the relevant grounds of that decision, it was found that, with the exception of the aspects mentioned in paragraph 277 above, the Commission had established to the requisite legal standard … participation in five of the six infringements at issue.<\/p>\n
279\u00a0\u00a0\u00a0\u00a0As regards, second, the classification as infringements by object used in the contested decision, it must, similarly, be held that the irregularity arising from a possible lack of objective impartiality on the part of the Commission could not have had an impact on the content of that decision, since, in response to the first plea, it was held that the application of such a classification to the infringements at issue was not vitiated by any error of law or assessment.<\/p>\n
280\u00a0\u00a0\u00a0\u00a0The fourth plea in law must therefore be rejected.<\/p>\n
5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The fifth plea, relating to the determination of the amount of the fines<\/p>\n
281\u00a0\u00a0\u00a0\u00a0By this plea, the applicants contest the amount of the fines imposed on them. In that context, they put forward several complaints including that of insufficient reasoning of the contested decision.<\/p>\n
282\u00a0\u00a0\u00a0\u00a0The Court considers that that latter complaint should be examined first.<\/p>\n
283\u00a0\u00a0\u00a0\u00a0The applicants submit that the Commission was bound by its 2006 Guidelines and that the application of point\u00a037 of those Guidelines requires the Commission to provide justification as to why it departs from its general methodology. They submit that the contested decision does not contain any proper justification in that regard and that the fines should have been set based on Icap\u2019s brokerage fees. They add that the Commission also fails to state adequate reasons for the determination of the level of the fines imposed. The applicants submit that the methodology outlined by the Commission in its written submissions or at a meeting held in the administrative procedure is too complex, arbitrary and unsuitable.<\/p>\n
284\u00a0\u00a0\u00a0\u00a0The Commission counters, in reply to the claim that the choice not to calculate the fine based on the brokerage fees was insufficiently reasoned, by saying that its reasons are clearly set out in recital 287 of the contested decision.<\/p>\n
285\u00a0\u00a0\u00a0\u00a0As regards the claim that the method applied of calculating the fines was insufficiently reasoned, the Commission observes that, during the administrative procedure, the applicants were informed of the method that would be applied. The Commission adds that the contested decision contains a sufficient statement of reasons, since reference is made to the gravity, duration and the nature of \u2026. involvement in the infringements at issue. In its pleadings it provides additional explanations on the methodology that it followed in that decision, whilst noting that it was not required to do so.<\/p>\n
286\u00a0\u00a0\u00a0\u00a0It should be observed that, in point\u00a09.3 of the contested decision, relating to the calculation of the fines, the Commission first stated that it applied point\u00a037 of its 2006 Guidelines, which specifies that the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from the methodology set out in those guidelines (recitals 286 to 288). Second, the Commission specified in point\u00a09.3 that it applied an appropriate reduction when determining the basic amount of the fine for the \u2026. and … infringements, in respect of which the Commission assumes that … adopted the same conduct, in order to prevent a disproportionate level of sanctions, without providing any details on the level of that reduction (recital 289). Third, as regards the determination of the basic amount of the fine, the Commission stated that it took account of the gravity and duration of the infringements at issue and the nature of … involvement, without providing any explanations on the effect of those factors on the basic amounts applied (recitals 290 to 296). Fourth, regarding the determination of the final amount of the fines, in the absence of aggravating or mitigating circumstances or of the ceiling of 10% of turnover being exceeded, it was set at the same level as the basic amount (recitals 297 to 300).<\/p>\n
287\u00a0\u00a0\u00a0\u00a0It is established case-law that the obligation to state reasons laid down in the second paragraph of Article\u00a0296 TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. From that point of view, the statement of reasons required 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 competent court to exercise its power of review. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which such a decision is based is, therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgments of 29\u00a0September 2011,\u00a0Elf Aquitaine\u00a0v\u00a0Commission, C\u00a0521\/09\u00a0P, EU:C:2011:620, paragraphs\u00a0146 to 148 and the case-law cited; of 11\u00a0July 2013,\u00a0Ziegler\u00a0v\u00a0Commission, C\u00a0439\/11\u00a0P, EU:C:2013:513, paragraphs\u00a0114 and 115, and of 13\u00a0December 2016,\u00a0Printeos and Others\u00a0v\u00a0Commission, T\u00a095\/15, EU:T:2016:722, paragraph\u00a044).<\/p>\n
288\u00a0\u00a0\u00a0\u00a0Moreover, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article\u00a0296 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 (judgments of 29\u00a0September 2011,\u00a0Elf Aquitaine\u00a0v\u00a0Commission, C\u00a0521\/09\u00a0P, EU:C:2011:620, paragraph\u00a0150; of 11\u00a0July 2013,\u00a0Ziegler\u00a0v\u00a0Commission, C\u00a0439\/11\u00a0P, EU:C:2013:513, paragraph\u00a0116, and of 13\u00a0December 2016,\u00a0Printeos and Others\u00a0v\u00a0Commission, T\u00a095\/15, EU:T:2016:722, paragraph\u00a045).<\/p>\n
289\u00a0\u00a0\u00a0\u00a0When the Commission decides to depart from the general methodology set out in the 2006 Guidelines, by which it limited the discretion it may itself exercise in setting the amount of fines, and relies, as in the present case, on point\u00a037 of those guidelines, the requirements relating to the duty to state reasons must be complied with all the more rigorously (judgment of 13\u00a0December 2016,\u00a0Printeos and Others\u00a0v\u00a0Commission, T\u00a095\/15, EU:T:2016:722, paragraph\u00a048). In that regard, it is appropriate to refer to the settled case-law to the effect that the 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\u00a0May 2013,\u00a0Quinn Barlo and Others\u00a0v\u00a0Commission, C\u00a070\/12\u00a0P, not published, EU:C:2013:351, paragraph\u00a053, and of 11\u00a0July 2013,\u00a0Ziegler\u00a0v\u00a0Commission, C\u00a0439\/11\u00a0P, EU:C:2013:513, paragraph\u00a060 and the case-law cited). Those reasons must be all the more specific because point\u00a037 of the Guidelines simply makes a vague reference to \u2018the particularities of a given case\u2019 and thus leaves the Commission a broad discretion where it decides to make an exceptional adjustment of basic amount of the fines to be imposed on the undertakings concerned. In such a case, the Commission\u2019s respect for the rights guaranteed by the EU legal order in administrative procedures, including the obligation to state reasons, is of even more fundamental importance (see, to that effect, judgment of 21\u00a0November 1991,\u00a0Technische Universit\u00e4t M\u00fcnchen, C\u00a0269\/90, EU:C:1991:438, paragraph\u00a014).<\/p>\n
290\u00a0\u00a0\u00a0\u00a0It is also settled case-law that the statement of reasons must, therefore, in principle be notified to the person concerned at the same time as the decision adversely affecting him. A failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the EU courts (judgments of 29\u00a0September 2011,\u00a0Elf Aquitaine\u00a0v\u00a0Commission, C\u00a0521\/09\u00a0P, EU:C:2011:620, paragraph\u00a0149; of 19\u00a0July 2012,\u00a0Alliance One International and Standard Commercial Tobacco\u00a0v\u00a0Commission, C\u00a0628\/10\u00a0P and C\u00a014\/11\u00a0P, EU:C:2012:479, paragraph\u00a074, and of 13\u00a0December 2016,\u00a0Printeos and Others\u00a0v\u00a0Commission, T\u00a095\/15, EU:T:2016:722, paragraph\u00a046).<\/p>\n
291\u00a0\u00a0\u00a0\u00a0With respect to a decision imposing a fine, the Commission is required to provide a statement of reasons, inter alia for the amount of the fine imposed and for the method chosen in that regard (judgment of 27\u00a0September 2006,\u00a0Jungbunzlauer\u00a0vCommission, T\u00a043\/02, EU:T:2006:270, paragraph\u00a091). The Commission must indicate in its decision the factors which enabled it to determine the gravity of the infringement and its duration, there being no requirement for any more detailed explanation or indication of the figures relating to the method of calculating the fine (judgment of 13\u00a0July 2011,\u00a0Schindler Holding and Others\u00a0v\u00a0Commission, T\u00a0138\/07, EU:T:2011:362, paragraph\u00a0243). It must nevertheless explain the weighting and assessment of the factors taken into account (judgment of 8\u00a0December 2011,\u00a0Chalkor\u00a0v\u00a0Commission, C\u00a0386\/10\u00a0P, EU:C:2011:815, paragraph\u00a061).<\/p>\n
292\u00a0\u00a0\u00a0\u00a0In the present case, in the first place, it should be pointed out that the reasons why the Commission decided to depart from the methodology set out in the 2006 Guidelines, by applying point\u00a037 thereof, can be inferred from a reading of recital 287 of the contested decision. Those reasons stem from the fact that … was not active on the Japanese Yen interest rate derivatives market and that, therefore, taking into account the value of sales, namely the brokerage fees received, would not make it possible to reflect the gravity and nature of the infringements at issue.<\/p>\n
293\u00a0\u00a0\u00a0\u00a0In the second place, it must however be stated 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 \u2026. involvement in the infringements at issue, as well as the need to ensure that fines have a sufficiently deterrent effect.<\/p>\n
294\u00a0\u00a0\u00a0\u00a0Drafted 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. 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 cited in paragraph 291 above.<\/p>\n
295\u00a0\u00a0\u00a0\u00a0It is apparent from the parties\u2019 pleadings that the question of the methodology that the Commission envisaged using for the purposes of calculating the amount of the fines was broached during a discussion with the applicants\u2019 representatives, during the administrative procedure. Although, under the case-law cited in paragraph 288 above, the reasoning of a contested act must be examined taking into account its context, the view cannot be taken that holding such 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.<\/p>\n
296\u00a0\u00a0\u00a0\u00a0In paragraph\u00a0176 of the defence, the Commission highlights the existence of a five-stage test designed to calculate the basic amount of the fines. However, pursuant to the case-law cited in paragraph 290 above, such an explanation provided at the stage of the proceedings before the Court cannot be taken into account for the purposes of assessing whether the Commission has complied with its obligation to state reasons.<\/p>\n
297\u00a0\u00a0\u00a0\u00a0In the light of the foregoing, it must be held that, so far as concerns the determination of the fines imposed on Icap for the infringements at issue, the contested decision is vitiated by insufficient reasoning.<\/p>\n
298\u00a0\u00a0\u00a0\u00a0The fifth plea must, therefore, be upheld and Article\u00a02 of the contested decision must be annulled in its entirety, there being no need to examine the other complaints of that plea or those of the sixth plea, which relates exclusively to the legality of that article.<\/p>\n
299\u00a0\u00a0\u00a0\u00a0Moreover, in so far as Article\u00a02 of the contested decision is annulled in its entirety, it is not necessary to examine the applicants\u2019 claim for variation of the contested decision, which the applicants submitted in the alternative.<\/p>\n
Costs<\/p>\n
300\u00a0\u00a0\u00a0\u00a0Under Article\u00a0134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.<\/p>\n
301\u00a0\u00a0\u00a0\u00a0In the present case, the applicants have been successful in respect of a substantial part of their claims. In those circumstances, the Court will make an equitable assessment of the case in ruling that the Commission is to bear its own costs and to pay three quarters of the applicants\u2019 costs.<\/p>\n
302\u00a0\u00a0\u00a0\u00a0Lastly, in so far as the applicants claim that the Commission should be ordered to pay the legal and \u2018other costs and expenses incurred in relation to this matter\u2019, it should be pointed out that, pursuant to Article\u00a0140(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purpose of the proceedings are regarded as recoverable costs.<\/p>\n
On those grounds,<\/p>\n
THE GENERAL COURT (Second Chamber, Extended Composition)<\/p>\n
hereby:<\/p>\n
1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Annuls Article\u00a01(a) of European Commission Decision C(2015) 432 final of 4\u00a0February 2015 relating to proceedings under Article\u00a0101 TFEU and Article\u00a053 of the EEA Agreement (Case AT.39861\u00a0\u2014 Yen Interest Rate Derivatives), inasmuch as it relates to the period after 22\u00a0August 2007;<\/p>\n
2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Annuls Article\u00a01(b) of Decision C(2015) 432 final;<\/p>\n
3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Annuls Article\u00a01(d) of Decision C(2015) 432 final inasmuch as it relates to the period from 5 March to 27\u00a0April 2010;<\/p>\n
4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Annuls Article\u00a01(e) of Decision C(2015) 432 final inasmuch as it relates to the period prior to 18\u00a0May 2010;<\/p>\n
5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Annuls Article\u00a01(f) of Decision C(2015) 432 final inasmuch as it relates to the period prior to 18\u00a0May 2010;<\/p>\n
6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Annuls Article\u00a02 of Decision C(2015) 432 final;<\/p>\n
7.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Dismisses the action as to the remainder;<\/p>\n
8.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Orders…. to bear one quarter of their own costs;<\/p>\n
<\/p>\n
<\/p>\n
<\/p>\n
<\/p>\n
9.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Orders the Commission to bear its own costs and to pay three quarters of the costs of………..<\/p>\n
<\/p>\n
Source Curia<\/p>\n","protected":false},"excerpt":{"rendered":"
(Competition\u00a0\u2014 Agreements, decisions and concerted practices\u00a0\u2014 Yen interest rate derivatives sector\u00a0\u2014 Decision finding six infringements of Article\u00a0101 TFEU and Article\u00a053 of the EEA Agreement\u00a0\u2014 Manipulation of the JPY LIBOR and Euroyen TIBOR interbank reference rates\u00a0\u2014 Restriction of competition by object\u00a0\u2014 Participation of a broker in the infringements\u00a0\u2014 \u2018Hybrid\u2019 settlement procedure\u00a0\u2014 Principle of the presumption of innocence\u00a0\u2014 Principle of sound administration\u00a0\u2014 Fines\u00a0\u2014 Basic amount\u00a0\u2014 Exceptional adjustment\u00a0\u2014 Article\u00a023(2) of Regulation (EC) No\u00a01\/2003\u00a0\u2014 Obligation to state reasons) In Case T\u00a0180\/15, omitted applicants, v European Commission,\u00a0represented by \u2026.., acting as Agents, defendant, ACTION brought under Article\u00a0263 TFEU for annulment of Commission Decision C(2015) 432…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[223],"tags":[],"yoast_head":"\n