Case T‑180/15
Icap plc and Others
v
European Commission
(Competition — Agreements, decisions and concerted practices — Yen interest rate derivatives sector — Decision finding six infringements of Article 101 TFEU and Article 53 of the EEA Agreement — Manipulation of the JPY LIBOR and Euroyen TIBOR interbank reference rates — Restriction of competition by object — Participation of a broker in the infringements — ‘Hybrid’ settlement procedure — Principle of the presumption of innocence — Principle of sound administration — Fines — Basic amount — Exceptional adjustment — Article 23 (2) of Regulation (EC) No 1/2003 — Obligation to state reasons)
Summary — Judgment of the General Court (Second Chamber, Extended Composition), 10 November 2017
Actions for annulment — Jurisdiction of the EU judicature — Claim seeking that directions be issued to an institution — Inadmissibility
Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Content and objective of a cartel and economic and legal context of its development — Distinction between infringements by object and infringements by effect — Intention of the parties to an agreement to restrict competition — Not a necessary criterion — Infringement by subject-matter — Sufficient degree of harmfulness — Criteria for assessment
(Art. 101(1) TFEU)
Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Anti-competitive object or effect — Presumption — Conditions
(Art. 101(1) TFEU)
Agreements, decisions and concerted practices — Concerted practice — Concept — Anti-competitive object — Criteria for assessment — No anti-competitive effects on the market — No direct link between the concerted practice and consumer prices — Irrelevant
(Art. 101(1) TFEU)
Agreements, decisions and concerted practices — Concerted practice — Concept — Need for a causal link between the concerted action and the conduct of the undertakings on the market — Presumption that the causal link exists — Burden of rebutting that presumption incumbent on the undertaking concerned — Evidence
(Art. 101(1) TFEU)
Actions for annulment — Subject-matter — Decision based on several pillars of reasoning, each sufficient to justify the operative part — Annulment of such a decision — Conditions
(Art. 263 TFEU)
Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Scope
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 27(1))
Competition — Administrative procedure — Observance of the rights of the defence — Right of access to the file — Infringement — Denial of access to documents which might be useful for the defence of the undertaking
(Art. 101 TFEU)
Agreements, decisions and concerted practices — Imputation to an undertaking — Commission Decision alleging that an undertaking facilitated infringements of the competition rules — Whether permissible — Conditions
(Art. 10(1) TFEU)
Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Presumption of innocence — Applicability
(Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 48(1); Council Regulation No 1/2003, Art. 2)
Competition — Agreements, decisions and concerted practices — Evidence — Assessment of the probative value of a document — Criteria — Reliability of evidence produced
(Art. 101(1) TFEU)
EU law — Principles — Principle that penalties must be defined by law — Scope
(Charter of Fundamental Rights of the European Union, Art. 49(1))
Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for the entire infringement to an undertaking — Conditions
(Art. 101(1) TFEU)
Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Single and continuous infringement — Lack of evidence relating to certain specific periods of the overall period considered — Interruption of the participation of the undertaking in the infringement — Repeated infringement — Consequences for the determination of the fine
(Art. 101 TFEU)
Competition — Administrative procedure — Settlement procedure — Applicability of the principle of the presumption of innocence — Scope
(Art. 6 TEU; Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 48(1); Council Regulation No 1/2003, Art. 33; Commission Regulation No 773/2004, as amended by Regulation No 622/2008, Art. 10a)
Competition — Administrative procedure — Settlement procedure — Procedure not involving all the participants in a cartel — Adoption by the Commission of two decisions concerning (i) participants who have decided to enter into a settlement and (ii) participants who have decided not to enter into a settlement — Whether permissible — Condition — Compliance with the principle of the presumption of innocence
(Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 48(1); Commission Regulation No 773/2004, as amended by Regulation No 622/2008, Art. 10a)
Competition — Administrative procedure — Principle of sound administration — Requirement of impartiality — Scope
(Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 41)
Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Possibility of the Commission departing from the Guidelines for the calculation of fines — Obligation to state reasons all the stricter
(Arts 101 TFEU and 296, second para. TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 37)
Acts of the institutions — Statement of reasons — Obligation — Scope — Correction of an error of reasoning during the proceedings before the Court — Not permissible
(Art. 296 TFEU)
Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Indication of the factors which led the Commission to assess the gravity and the duration of the infringement — Sufficient indication — Whether the Commission is required to indicate the figures relating to the method of calculating the fine — No such requirement
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)
See the text of the decision.
(see para. 35)
See the text of the decision.
(see paras 42-48)
See the text of the decision.
(see paras 49-52)
See the text of the decision.
(see paras 53-55)
See the text of the decision.
(see paras 56, 57)
See the text of the decision.
(see para. 74)
See the text of the decision.
(see paras 83-86)
See the text of the decision.
(see para. 87)
See the text of the decision.
(see paras 97-104)
See the text of the decision.
(see paras 114-117, 154)
See the text of the decision.
(see para. 118)
See the text of the decision.
(see paras 193-196)
See the text of the decision.
(see paras 205-208)
See the text of the decision.
(see paras 217-221, 223)
The principle of the presumption of innocence constitutes a general principle of EU law, currently laid down in Article 48(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. As regards the settlement procedure laid down in Article 10a of Regulation No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 101 TFEU and 102 TFEU, as amended by Regulation No 622/2008, 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 48 of the Charter.
Although the principle of the presumption of innocence is enshrined in Article 48 of the Charter, which, pursuant to Article 6 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 33 of Regulation No 1/2003, namely Regulation No 622/2008, and the procedure is optional for both the Commission and the undertakings concerned.
(see paras 256, 265, 266)
In relation to cartels, where a settlement procedure 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. However, the implementation of such a ‘hybrid’ 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 — including possible adoption on the same date of the decisions relating to all the undertakings concerned by the cartel — enabling that presumption of innocence to be safeguarded.
(see paras 267, 268)
See the text of the decision.
(see paras 271, 272, 276, 278)
See the text of the decision.
(see paras 287-289)
See the text of the decision.
(see para. 290)
See the text of the decision.
(see para. 291)