Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 12 May 2022(1)

Case C‑883/19 P

HSBC Holdings plc,

HSBC Bank plc,

HSBC Continental Europe, formerly HSBC France

v

European Commission

(Appeal – Competition – Article 101 TFEU – Manipulation of the Euribor interbank reference rates – Exchange of confidential information – Restriction ‘by object’ – Single and continuous infringement – Settlement – Hybrid procedure – Presumption of innocence – Right to good administration – Duty of impartiality)

I.      Introduction

1.        Euro Interest Rate Derivatives (‘EIRDs’) are often used as hedges by banks, institutional investors, companies and individuals to protect themselves against changes in market interest rates. Euro Interbank Offered Rates (‘Euribor’) are important because these rates provide the benchmark for the price of interest rates of all kinds of financial products, such as interest rate swaps, interest rate futures, saving accounts and mortgages. On the other hand, the Euro Over-Night Index Average (‘EONIA’) used to serve as the interbank overnight reference rate for the euro. EONIA has been discontinued with effect from 3 January 2022.

2.        In this appeal, some companies belonging to the HSBC banking group ask the Court of Justice to set aside the judgment of the General Court, (2) dismissing in part their action for annulment of a Commission decision which imposed a fine on them for taking part, from 12 February to 27 March 2007, in a cartel on the EIRDs market linked to the Euribor and/or the EONIA. (3)

3.        This appeal raises a number of procedural and substantive issues regarding EU competition law. Among those issues, of particular significance, are the duties of the European Commission to act impartially and to respect the principle of the presumption of innocence of non-settling parties when carrying out hybrid procedures, (4) and the concept of ‘infringement by object’.

II.    Factual and legal background

4.        The facts and the legal background of the present case, as stated in the judgment under appeal, (5) can be summarised as follows.

5.        On 14 June 2011, the Barclays banking group (‘Barclays’) applied to the Commission for the grant of a marker under the Commission Notice on Immunity from fines and reduction of fines in cartel cases, (6) informing it of the existence of a cartel in the EIRD sector and expressing its wish to cooperate. On 14 October 2011, Barclays was granted conditional immunity.

6.        On 5 March and 29 October 2013, pursuant to Article 11(6) of Regulation No 1/2003, the Commission initiated infringement proceedings against HSBC Holdings plc, HSBC Bank plc, and HSBC Continental Europe (formerly HSBC France) (together ‘HSBC’ or ‘the appellants’) and Barclays, Crédit Agricole SA and Crédit agricole Corporate and Investment Bank (together ‘Crédit agricole’), Deutsche Bank AG, Deutsche Bank Services (Jersey) Ltd and DB Group Services (UK) Ltd (together ‘Deutsche Bank’), JP Morgan Chase & Co., JP Morgan Chase Bank National Association and JP Morgan Services LLP (together ‘JP Morgan’), Royal Bank of Scotland plc and the Royal Bank of Scotland Group plc (together ‘RBS’), and Société Generale.

7.        Barclays, Deutsche Bank, Société générale and RBS wished to participate in a settlement procedure pursuant to Article 10a of Regulation No 773/2004. The appellants, Crédit Agricole and JP Morgan decided not to participate in that settlement procedure.

8.        On 4 December 2013, the Commission adopted, with regard to Barclays, Deutsche Bank, Société générale and RBS, decision C(2013) 8512 final, relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39914, Euro Interest Rate Derivatives (EIRD)(Settlement)) (‘the settlement decision’) by which it concluded that those undertakings had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in a single and continuous infringement with the object of distorting the normal course of pricing on the EIRD market.

9.        On 19 March 2014, the Commission sent a statement of objections to the appellants, and to Crédit Agricole and JP Morgan.

10.      The appellants were able to consult the accessible parts of the Commission’s file, and their legal representatives received further access to the file at the Commission premises. The appellants also had access to the statement of objections sent to the settling parties, the replies of those parties and the settlement decision.

11.      On 14 November 2014, the appellants submitted their written observations on the statement of objections and presented their views orally at the hearing that took place between 15 June and 17 June 2015.

12.      On 7 December 2016, the Commission adopted the contested decision on the basis of Articles 7 and 23 of Regulation No 1/2003.

13.      Article 1 of the contested decision stated, inter alia, that the appellants had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, between 12 February 2007 and 27 March 2007, ‘in a single and continuous infringement regarding [EIRDs] covering the entire EEA, which consisted of agreements and/or concerted practices that had as their object the distortion of the normal course of pricing components in the EIRD sector …’.

14.      Article 2 of the contested decision imposed on the appellants a fine, for which they are jointly and severally liable, of EUR 33 606 000.

III. Proceedings before the General Court and the judgment under appeal

15.      By their action under Article 263 TFEU, lodged on 17 February 2017, the appellants requested the General Court to, in essence, annul the contested decision or, in the alternative, vary the amount of the fine.

16.      In its judgment of 24 September 2019, the General Court rejected the appellants’ pleas which concerned: (i) the Commission’s finding of an infringement by object; (ii) the Commission’s finding of a single and continuous infringement; and (iii) an alleged error of law and infringement of the essential procedural requirements during the administrative procedure. However, the General Court found that the contested decision was vitiated by an inadequate statement of reasons with regard to the determination of the amount of the fine.

17.      Accordingly, the General Court partly annulled (point 1 of the operative part) and partly upheld (point 2 of the operative part) the contested decision, ordering both the appellants and the Commission to bear their own costs (points 3 and 4 of the operative part).

IV.    Proceedings before the Court of Justice and the form of order sought

18.      In their appeal before the Court, lodged on 3 December 2019, the appellants ask the Court to: (i) set aside point 2 of the operative part of the judgment under appeal, (ii) annul Article 1(b) of the contested decision or, in the alternative, annul Article 1(b) in so far as it refers to HSBC’s participation in a single and continuous infringement after 19 March 2007, and (iii) order the Commission to pay the costs.

19.      For its part, the Commission asks the Court to dismiss the application and order the appellants to pay the costs.

20.      By orders of the President of the Court of 16 July 2020, Crédit Agricole and JP Morgan (‘the interveners’) were granted leave to intervene in support of the form of order sought by the appellants.

21.      By decision of 28 June 2021, the Commission amended and re-adopted the contested decision in order to remedy the inadequate statement of reasons with regard to the fine imposed on the appellants (‘the 2021 decision’). (7)

22.      On 7 September 2021, by means of a measure of organisation of procedure adopted under Article 62 of the Rules of Procedure of the Court of Justice, the Commission was asked to produce a copy of the 2021 decision and to answer three questions regarding the effects of that decision vis-à-vis the (original) decision which is the subject matter of the judgment under appeal. By letter of 16 September 2021, the Commission informed the Court that the 2021 decision amended only the recitals and the operative part of the contested decision concerning the amount of the fine imposed on the appellants. Conversely, the 2021 decision did not amend the parts of the contested decision that are the subject of the present appeal proceedings.

23.      The appellants, the interveners and the Commission presented their views at the hearing before the Court, held on 26 January 2022.

V.      Assessment

24.      This Opinion will deal with each of the six grounds of appeal in the order in which they have been presented by the appellants, and will consider the grounds which concern the same issue together.

25.      Accordingly, I shall first deal with the allegations concerning a breach, by the Commission, of some procedural rights and guarantees of the appellants (A). Second, I shall turn to the appellants’ grounds of appeal which concern the characterisation, by the General Court, of the appellants’ conduct as an infringement ‘by object’ within the meaning of Article 101(1) TFEU (B). Third and lastly, I will deal with the appellants’ arguments concerning the General Court’s findings that they had participated in a ‘single and continuous infringement’ (C).

26.      In view of the number and importance of the issues raised by the present appeal, this Opinion will discuss in more detail those that appear to raise new questions of law or, in any event, to have a certain degree of complexity. By contrast, I shall address the remaining issues more concisely since, in my view, it is possible to resolve them on the basis of well-established case-law.

A.      The first ground of appeal: the presumption of innocence and the right to good administration

1.      Arguments of the parties

27.      By their first ground of appeal, directed against paragraphs 287 to 292 of the judgment under appeal, the appellants argue that the General Court erred in law in assessing their pleas concerning breaches, by the Commission, of the principle of the presumption of innocence, of their right to good administration and of respect for their rights of the defence.

28.      The appellants claim that, by adopting a staggered hybrid procedure, (8) the Commission irremediably prejudiced their position before the contested decision was in fact adopted, thereby breaching the principle of the presumption of innocence. Indeed, the settlement decision, even though it was not addressed to HSBC, found that HSBC was party to bilateral practices with another bank which had the object of restricting competition. That finding could not, in the view of the appellants, be reversed in the subsequent (ordinary) procedure which concerned the non-settling parties, including the appellants.

29.      The appellants also claim that the Commission breached their right to good administration by failing to act impartially when assessing their case. According to the appellants, that failure has been/was confirmed by the European Ombudsman. In 2015, the Ombudsman found that the Commissioner responsible for competition (‘the then Commissioner’) had, in 2012 and 2014, made some public statements which could reasonably be perceived as suggesting that the Commission (or the Commissioner himself) had already decided the outcome of the ongoing investigation, and that this constituted an instance of maladministration. (9)

30.      The appellants contend that, in assessing the arguments raised concerning the presumption of innocence and the right to good administration, the General Court adopted the wrong legal test, requiring them to provide evidence that, in the absence of the breach, the decision would have been different (10) (‘the Suiker Unie test’ (11)). The correct legal test that ought to have been adopted, in the appellants’ view, is whether there was ‘even a slight chance’ that the relevant decision could have been different. (12)

31.      The interveners put forward similar arguments on this point. In particular, Crédit Agricole takes the view that, when respect for the principle of the presumption of innocence of the non-settling parties cannot be fully guaranteed in a settlement decision, the Commission ought to adopt the various decisions (that is, the settlement decision and the ordinary decisions) at the same time. With regard to the Commission’s duty of impartiality, Crédit Agricole argues that the judgment under appeal is vitiated by inadequate reasoning as it deals with the alleged breach of objective impartiality but not with that of subjective impartiality. JP Morgan considers that, by applying the Suiker Unie test, the General Court has placed an impossible burden of proof upon the appellants, which would thus result in a breach of their right to an effective remedy, provided by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

32.      The Commission, for its part, rejects the appellants’ criticism of the judgment under appeal. The Commission maintains that it respected both its duty of objective impartiality and the principle of the presumption of innocence when it adopted the settlement decision prior to the contested decision. In that connection, the Commission emphasises that a staggered hybrid settlement procedure is neither precluded by the relevant legislation, (13) nor by the case-law of the EU Courts. (14) The Commission takes the view that the General Court correctly ruled that the settlement decision (i) did not contain any finding of liability, nor any adverse finding against HSBC, and (ii) included only a few references to HSBC, which were limited to what was strictly necessary for describing and establishing the case against the settling parties.

33.      In addition, the Commission argues that, in adopting the Suiker Unie test, the General Court duly followed the case-law according to which any irregularity concerning objective impartiality by the Commission (or a member of its staff) would lead to the annulment of the relevant decision, if it is established that the content of that decision would have differed had that irregularity not occurred. (15) The test suggested by the appellants concerns, in the Commission’s view, another procedural error (infringement of an undertaking’s right of defence), which is different from that raised in the present case (lack of impartiality).

2.      Analysis

34.      In essence, the arguments put forward by the appellants boil down to two issues, which I will discuss in turn below.

(a)    Consequences of procedural errors 

35.      In the judgment under appeal, the General Court rejected the appellants’ pleas regarding the principle of the presumption of innocence and the right to good administration as ineffective. The General Court stated that, even if any breach in that regard had arisen, the procedural irregularity committed by the Commission would lead to the annulment of the contested decision only if the Suiker Unie test was met. However, in so far as it had already found that the contested decision did establish, to the requisite legal standard, HSBC’s participation in the anticompetitive conduct in question, the General Court considered the test not to be satisfied.

36.      The appellants criticise this line of reasoning, arguing that the General Court adopted the wrong legal test with regard to the consequences flowing from the Commission’s breaches.

37.      I agree.

38.      To explain why I am of this view, a brief overview of the case-law concerning the consequences of possible procedural errors committed by the Commission in carrying out procedures in the field of competition may be useful. Indeed, the European Union does not have, to date, comprehensive legislation which determines the consequences of procedural errors committed by the Commission during the administrative process. (16) Nor does Regulation No 1/2003 have a set of specific rules in that regard. It thus fell on the EU Courts to fill that gap.

39.      At first sight, the case-law may appear rather diversified, if not to say somewhat confused. (17) Admittedly, the reasons why the EU Courts have, for example, adopted different legal tests so as/in order to determine the consequences stemming from procedural errors and/or followed different principles with regard to the burden and standard of proof in that respect are not readily apparent.

40.      Yet, if one ventures beyond the mere terminology of the various rulings on this matter, which span several decades of judicial activity, and even though not all rulings fit neatly into defined groups, two main bodies of case-law may be identified.

41.      In a first body of case-law, the EU Courts have, without further ado, set aside decisions adopted following a procedure in which the Commission had infringed an ‘essential procedural requirement’. In those cases, the Court considered it unnecessary for the undertakings invoking a procedural error to demonstrate that such an error might have influenced the course of the proceedings and the content of the decisions in question to their detriment. (18)

42.      A rigorous approach in cases where the Commission fails to comply with essential procedural requirements – that is, fundamental provisions of a procedural nature set out in EU primary or secondary law – is, in my view, fully justified. In such cases, the Commission is essentially acting outside the legal framework laid down in the Treaties, in breach of the principles of legality and of conferred powers. (19)

43.      In that regard, it must be recalled that, pursuant to Article 13(2) TEU, EU institutions must ‘act within the limits of the powers conferred on [them] in the Treaties, and in conformity with the procedures, conditions and objectives set out in them’. (20) In addition, in accordance with the second paragraph of Article 296 TFEU, ‘[EU] legal acts shall state the reasons on which they are based’. Accordingly, when adopting acts which have binding legal effects, EU institutions cannot disregard the most basic procedural rules, in particular by following sui generis procedures (21) or by adopting acts that, not supported by an adequate statement of reasons, render judicial review impossible. (22)

44.      As a consequence, where the Commission fails to comply with essential procedural requirements, there is a clear (and imperative) public interest in ridding the EU legal order of the acts vitiated by such serious grounds for invalidity. That public interest justifies the immediate annulment of the acts in question, regardless of whether it coexists (and coincides) with the private interest of some undertakings whose procedural rights were breached. That is why the undertakings invoking a breach of an essential procedural requirement need not prove any adverse effect suffered as a result of the irregularity: the mere establishment of the irregularity entails the annulment of the relevant decision.

45.      In a second body of case-law, the EU Courts have dealt with procedural irregularities in respect of which no prevailing public interest in setting aside the act in question can be identified. In these cases, it is for the undertakings concerned to invoke the breach, prove it to the requisite standard, and – usually – explain the possible consequences flowing from it. In fact, in those cases, the EU Courts have generally adopted what could be referred to – borrowing a term coined in the United States of America – as a ‘harmless error’ test. Put simply, a procedural irregularity leads to the setting aside of the challenged act only if that irregularity has or may have influenced the outcome of the procedure.

46.      However, the precise formulation of the harmless error test in the various decisions differed, fluctuating – depending on the specific circumstances of each case – between a lighter form and a more stringent form. In addition, in some cases the Court seems to have made use of a presumption in that respect. Accordingly, within the body of case-law concerned with irregularities that mainly affect the rights of private parties, three distinct strands of judgments may be found.

47.      In a first strand of judgments, the Court followed the most stringent form of the harmless error test that, as mentioned above, was first formulated, at least in the field of competition law, in Suiker Unie. (23) It is also the test that was applied by the General Court in the judgment under appeal. According to this formulation of the test, a procedural error leads to the annulment of the Commission decision only where the applicant is able to prove that, absent the irregularity, the outcome of the procedure would have been different. Under this test, the onus of proving the ‘what if’ scenario is on the applicant, and the threshold triggering the annulment of the challenged decision is one of ‘near certainty’, or at least of ‘high probability’.

48.      Subsequently, in a second strand of judgments, the harmless error test appears to have evolved into a lighter form. Indeed, in several cases, the EU Courts stated that the decisions challenged were to be annulled if the applicants were to establish that, without the procedural irregularity, the outcome of the procedure might have been different. (24) In these cases too, at least initially, the burden of proof rests with the applicant. However, the standard of evidence required is lower (a mere ‘possibility’ normally suffices) with the consequence that, once met by the applicant, the burden shifts to the Commission.

49.      Finally, in a third strand of judgments, the Court, having detected an irregularity of the procedure that resulted in a serious and manifest infringement of some procedural right of the undertakings in question, presumed that that irregularity affected, or is likely to have affected, the outcome of the procedure. Accordingly, the Court did not require the undertakings in question to provide any evidence in that respect. (25)

50.      Why do these three forms of the harmless error test coexist in the case-law, and to which types of procedural error do they apply?

51.      To answer these questions, it may be appropriate to look into the rationale of the harmless error test.

52.      The adoption of such a test by the EU Courts is due to the fact that not every procedural irregularity results ipso facto in a breach of an undertaking’s rights. Some procedural errors simply do not (and cannot) affect the legal interests protected by the EU provisions which grant certain rights to the parties subject to an investigation. A draconian approach to procedural irregularities would, inter alia, give rise to formalism and ‘red-tape’ in the administrative process, (26) to the detriment of the effective pursuit of the general interest.

53.      In that connection, it must be borne in mind that – as the Court has consistently held – the effective enforcement of competition policy is an objective of general interest recognised by the European Union. Indeed, the Treaty provisions on competition law constitute fundamental provisions which are essential for the accomplishment of the tasks entrusted to the European Union and, in particular, for the functioning of the internal market. (27) Therefore, the enforcement of competition rules must respect the fundamental rights of the undertakings involved, but fundamental rights must also be interpreted and applied in such a manner as not to obstruct an effective enforcement of competition rules. (28)

54.      In addition, even when the Commission does breach, during the administrative procedure, some procedural right of an undertaking, it is obvious that the most appropriate remedy is not always the setting aside of the decision in question. If it is clear that, despite the breach of the undertaking’s rights, the procedural irregularity at issue could not have had any effect whatsoever on the outcome of the case, quashing the decision appears both inappropriate (since it does not remedy the breach that has occurred) (29) and disproportionate (as the sanction is not commensurate with the error). (30) Other legal remedies may be available to the undertakings in question that are more suited to the circumstances. (31)

55.      This logic applies also when the rights breached have the status of fundamental rights. In the light of the broad scope given, by both the European Court of Human Rights (‘the ECtHR’) and the EU Courts, to many of those rights, it is stating the obvious that not all breaches are comparable. Some breaches are clearly more serious and consequential than others.

56.      That being so, I find it logical that the harmless error test may take different forms in various cases, depending mainly on the seriousness of the breach and the likelihood that such a breach may influence the outcome of the procedure. In particular, the higher the degree of likelihood, the lower the threshold to be met by the applicant and vice versa. (32) Moreover, with regard to the standard of proof required of the applicant, account must also be taken of the capacity of that applicant to obtain and produce (some) evidence in support of its allegations. That is why, where the allocation of the burden of proof (partly or entirely) upon the undertakings in question may amount to requesting a probatio diabolica of them, a harmful error may be presumed. (33)

57.      In the light of the most recent case-law of the EU Courts, it seems to me that the lighter harmless error test has become the ‘standard’ one, at least when there is a genuine fundamental right issue in the case. This seems to me reasonable, mainly for two reasons. First, it is established that the burden of proving an infringement of the competition rules is on the Commission and any reasonable doubts should benefit the undertakings under investigation. (34) Second, it may often be particularly difficult for an undertaking to give positive proof of an alternative and hypothetical scenario (the outcome of the proceedings in the absence of the procedural irregularity), especially in the light of the margin of discretion that the EU competition rules grant the Commission when monitoring compliance with and enforcing those rules.

58.      The stringent form of the test (that is, the Suiker Unie form of the test) should, therefore, be reserved for situations in which the procedural errors invoked appear to concern irregularities of a lesser nature.

59.      Finally, there are certainly cases in which the repercussions on the overall correctness and fairness of the procedure stemming from an irregularity may be presumed. Those are the procedural errors that are not only particularly serious, but also of a structural nature: errors affecting the framework within which the procedure takes place, and not simply errors that take place within an otherwise properly run procedure. (35)

60.      Against that background, I agree with the appellants that, in the judgment under appeal, the General Court erred in subjecting their allegations concerning an infringement of the duty of impartiality and of the principle of the presumption of innocence to a stringent harmless error test (the Suiker Unie test), thereby requiring specific proof from them that the content of the contested decision would have differed if that irregularity had not occurred.

61.      A failure by the Commission to act as an impartial public administration when assessing a given case – because it was biased, or because it had a pre-conceived idea about the guilt of the undertakings under investigation – would constitute a serious infringement of its duties that is likely to have repercussions on the outcome of the procedure.

62.      Arguably, such an error cannot be compared with formalities or minutiae of the procedure, or viewed as comparable to the kind of errors whose gravity is likely to have little influence over the final decision. Therefore, in respect of such errors, it should be sufficient for the undertakings in question to provide elements showing that those errors may have had an influence on the outcome of the procedure.

63.      In the light of the above, I conclude that the General Court erred by applying a wrong legal test when reviewing the appellants’ claims concerning a failure by the Commission to comply with its duty of impartiality and with the principle of the presumption of innocence.

(b)    Staggered hybrid procedure

64.      Second, the appellants claim that the General Court erred in law in so far as it failed to check whether the settlement procedure included any express or implied expression of their guilt.

65.      On this point, I also agree with the appellants. Indeed, that conclusion seems to me to follow from the recent judgment of the Court of Justice in Pometon.

66.      In Pometon, the Court first recalled its case-law (and that of the ECtHR) concerning the presumption of innocence, according to which, in complex criminal proceedings involving several persons who cannot be tried together, ‘references … to the participation of third persons, who may later be tried separately, may be indispensable for the assessment of the guilt of those who are on trial separately. However, if facts related to the involvement of third parties have to be introduced, the relevant court should avoid giving more information than necessary for the assessment of the legal responsibility of those persons who are accused in the trial before it. In addition, the statement of reasons for judicial decisions must be worded in such a way as to avoid a potential prejudgment about the guilt of the third parties concerned, capable of jeopardising the fair examination of the charges brought against them in the separate proceedings’. (36)

67.      The Court went on to rule that those principles are, mutatis mutandis, also relevant where the Commission follows, in relation to one and the same cartel, a staggered hybrid procedure involving two distinct decisions. In the context of such a procedure, it may be objectively necessary for the Commission to address, in the settlement decision, certain facts and behaviour concerning participants in the alleged cartel which are the subject of the standard procedure. If that is the case, however, the Commission must ensure, in the settlement decision, that ‘the presumption of innocence of undertakings which have refused to enter into a settlement and which are the subject of an ordinary procedure’ is preserved. (37)

68.      Finally, the Court also ruled that ‘in order to review the Commission’s observance of the presumption of innocence, it is for the EU judicature to analyse a decision bringing the settlement procedure to an end and its reasoning as a whole and in the light of the particular circumstances in which that decision has been adopted. Any explicit reference, in certain parts of that decision, to the absence of guilt of the other participants to the alleged cartel would be devoid of sense if other parts of that decision were likely to be understood as a premature expression of their guilt’. (38)

69.      It is undisputed that, in the judgment under appeal, no analysis such as that required by the Court in Pometon has been conducted.

70.      However, the Commission argues that, although the General Court did not follow the ‘letter’ of Pometon – since that judgment was handed down after the delivery of the judgment under appeal – it did comply with its ‘spirit’. In its view, the General Court has, de facto, ascertained that there has been no breach of the principle of the presumption of innocence with regard to the appellants.

71.      I do no share that view.

72.      The General Court did not engage in any such form of review, either expressly or impliedly. As mentioned in point 35 above, that Court did not consider the merits of the appellants’ pleas on this point since those pleas were considered ineffective.

73.      Thus, leaving aside the question relating to the correctness of the legal test applied by the General Court in this context, it is rather clear that, in the judgment under appeal, the General Court has by no means analysed the text of the settlement decision in order to check whether it respected the principle of the presumption of innocence of HSBC.

74.      On that basis, I take the view that, in reviewing the appellants’ complaints with regard to the effects of the settlement decision on their position, the General Court erred in law.

75.      In the light of the above, I take the view that the first ground of appeal put forward by the appellants is, in principle, well founded.

B.       Second and third grounds of appeal: infringement ‘by object’

76.      The second and third grounds of appeal put forward by the appellants concern the concept of ‘infringement by object’ and the manner in which the General Court came to the conclusion that their conduct gave rise to such an infringement.

1.      Arguments of the parties

77.      By their second ground of appeal, the appellants submit that the General Court erred in law by misapplying Article 101 TFEU in its characterisation of the objective of the manipulation of Euribor of 19 March 2007 and/or by distorting the relevant evidence.

78.      The appellants – supported by the interveners – contend, in particular, that the General Court erred in law in concluding, in paragraphs 101 and 102 of the judgment under appeal, that the mere possibility that the parties to the manipulation would offer better conditions than their competitors (due to the informational asymmetry concerning the Euribor levels) reveals a sufficient degree of harm to competition that gave rise to an infringement ‘by object’. The General Court should have censured the Commission for failing to consider the key issue of whether knowledge of the manipulation on 19 March 2007 gave traders the incentive to offer more competitive rates than their competitors. In that regard, HSBC submitted, before the General Court, an expert report according to which the participating traders did not have the incentive to offer more competitive rates because to do so would have reduced their profits. The General Court’s finding, in paragraph 101 of the judgment under appeal, that this report ‘contained only general assertions’ is, according to the appellants, a manifest distortion of that evidence.

79.      In addition, by their third ground of appeal, the appellants – again supported by the interveners – argue that the General Court erred in law by concluding that the two discussions on mids (39) were infringements ‘by object’. In particular, the General Court erred in stating that the pro-competitive nature of those discussions could only be taken into account in the context of either restrictions ancillary to a main operation or of an assessment under Article 101(3) TFEU. In particular, in paragraphs 149 to 160 of the judgment under appeal, the General Court applied the doctrine of ‘ancillary restraints’ to assess the argument, advanced by the appellants, that the exchange of information on the mids could not be considered to be, by its very nature, harmful to the proper functioning of normal competition.

80.      In doing so, the General Court failed, according to the appellants, to deal with the actual argument they put forward at first instance. Before that Court, the appellants had argued that, when assessed in the relevant economic and legal context, the discussions on mids were actually pro-competitive. In the appellants’ view, those discussions reduced uncertainty as to the level of the mids in the market, enabling traders to set a narrower bid/offer spread to the benefit of their customers. Therefore, the conduct at issue could not be considered to infringe Article 101(1) TFEU, let alone constitute an infringement ‘by object’.

81.      The Commission defends the statement of reasons contained in the judgment under appeal. In its view, the appellants’ criticism focuses only on one part of the General Court’s findings, without questioning the more fundamental aspect consisting in the fact that the conduct in question altered the structure of competition in the market. The Commission also contests the allegation that the General Court distorted the clear sense of the expert report submitted by the appellants at first instance. In its view, the General Court simply found that report to be unconvincing.

2.      Analysis

82.      To begin with, I am not convinced by the appellants’ arguments raised in the context of their second ground of appeal.

83.      First, the concept of restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU refers, according to settled case-law, to types of collusive behaviour that are considered to be, by their very nature, harmful to the proper functioning of normal competition, so that it would be redundant to prove that they have actual effects on the market. (40) As such, if a competition authority, after examining the provisions and objectives of an agreement, as well as the legal and economic context in which that agreement was approved and implemented, comes to the conclusion that such an agreement belongs to a category of agreements whose harmful nature is, in the light of experience, commonly accepted and easily identifiable, that authority does not need to verify whether that agreement has actually distorted competition.

84.      The authority merely has to exclude the possibility that the agreement in question, ‘despite conforming to a category of agreements that is usually considered anticompetitive, is nonetheless, because of some specific circumstances, outright incapable of producing any deleterious effect in the marketplace, or is even pro-competitive’. (41) In other words, faced with a form of conduct that is inherently anticompetitive, the authority is simply required to check, in the specific case, ‘whether there are any legal or factual circumstances that preclude the agreement or practice in question from restricting competition’. (42)

85.      Therefore, elements pertaining to the awareness of the undertakings concerned and their willingness to restrict competition, or economic interest in doing so are normally of limited significance for a competition authority’s assessment as to whether their conduct may be classified as a restriction of competition by ‘object’. (43) A verification of the capacity of the conduct to restrict competition is, generally, in and of itself sufficient for that purpose.

86.      In this context, I would also recall that, according to settled case-law, it must be presumed that the undertakings taking part in a concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. There is thus no need to prove, in order to establish a breach of Article 101(1) TFEU, that such an exchange of confidential information has actually affected competition in the market. (44)

87.      For those reasons, I find no error of law in paragraphs 101 and 102 of the judgment under appeal. The General Court was, in my view, correct in considering that, for the purposes of qualifying the conduct in question as a restriction by object, the alleged lack of willingness and/or incentive of the traders involved to offer better rates was not decisive.

88.      Second, in the light of the above considerations, the appellants’ argument concerning an alleged distortion, by the General Court, of the clear sense of evidence with regard to the expert economic report submitted at first instance may be rejected as ineffective. Indeed, even if that report were to contain, as alleged by the appellants, ‘specific economic evidence looking in detail at the incentives of the traders that participated in the manipulation’, that would have no impact on the qualification of the conduct in question as a restriction by object.

89.      For the sake of completeness, I would add that, in any event, I agree with the Commission that the General Court appears to have simply considered the report to be unpersuasive. That is not a finding that can be subject to appeal. I do not detect any error of law in the (regrettably brief) statement of the General Court that the appellants take issue with.

90.      By contrast, I agree with the arguments put forward by the appellants in their third ground of appeal. Indeed, I am of the view that the General Court erred in law when evaluating the appellants’ allegations concerning the pro-competitive nature of the conduct in question.

91.      In paragraph 154 of the judgment under appeal, the General Court first stated that, ‘with the exception of restrictions ancillary to a main operation, … it is only in the context of the assessment of Article 101(3) TFEU that any pro-competitive effects can be taken into account’. The General Court went on to explain that Article 101(1) TFEU contains no ‘rule of reason’, permitting the weighing up of the pro- and anticompetitive effects of an agreement, in order to determine whether that agreement is to be characterised as a ‘restriction of competition’.

92.      However, that position is invalidated by recent case-law. In particular, as the Court made clear in UK Generics, where the parties to an agreement rely on its pro-competitive effects, those effects must, as elements of the context of that agreement, be duly taken into account for the purpose of its characterisation as a ‘restriction by object’ under Article 101(1) TFEU, in so far as they are capable of calling into question the overall assessment of whether the concerted practice concerned revealed a sufficient degree of harm to competition. (45)

93.      As the Court explained, the evaluation of the alleged pro-competitive effects of an agreement, does not amount to a rule of reason, but it is merely intended to assess the objective seriousness of the practice concerned. Indeed, when the undertakings in question demonstrate that those effects are relevant, specifically related to the agreement concerned, and sufficiently significant, that gives rise to ‘a reasonable doubt as to whether the … agreement concerned caused a sufficient degree of harm to competition, and, therefore, as to its anticompetitive object’. (46)

94.      Quite clearly, the General Court did not carry out any such assessment, as it examined only whether the exchanges of information on mids could be justified under the ‘ancillary restraint’ doctrine. However, that doctrine relates to a different type of analysis, aimed at checking whether some restrictions on the conduct of the parties to an agreement, which do not constitute the subject matter of the agreement, may be justified, even if restrictive of competition, because they are directly related to and necessary for the implementation of a non-anticompetitive agreement. (47)

95.      It follows that the judgment under appeal is, on this matter, vitiated by an error of law in so far as the General Court adopted a wrong legal framework to assess, and then dismiss, the appellants’ arguments.

96.      I thus conclude that the second ground of appeal should be rejected, whereas the third ground of appeal should be upheld.

C.      Fourth, fifth and sixth grounds of appeal: single and continuous infringement

97.      The fourth, fifth and sixth grounds of appeal concern the General Court’s finding that the appellants took part in a ‘single and continuous infringement’.

1.      Arguments of the parties

98.      The appellants, supported by the interveners, argue that the finding concerning their participation in a single and continuous infringement is based on several errors.

99.      To begin with, by their fourth ground of appeal, the appellants contend that the General Court manifestly distorted the facts and evidence as regards the discussions of 12 February 2007. The appellants argue that, on that day, there were two separate and unrelated discussions between the same traders. However, as opposed to what is stated in the judgment under appeal, the first of those discussions did not concern any manipulation of Euribor. Only the second discussion – the appellants contend – related to the planned manipulation of Euribor on 19 March 2007.

100. The appellants add that the General Court made a similar error with regard to the discussions that took place on 16 February 2007. On that day too, there were two distinct discussions between traders. Only the first discussion concerned the mids, whereas the second concerned a single historic transaction. The General Court – the appellants argue – thus distorted the evidence when it described the second discussion as ‘the same form of conduct’ as the earlier one. In their view, the first discussion did not give rise to any infringement of Article 101(1) TFEU.

101. Moreover, by their fifth ground of appeal, the appellants criticise the General Court for concluding, in paragraphs 214 to 229 of the judgment under appeal, that the various forms of conduct identified in the contested decision pursued a single aim. In their view, the General Court based that conclusion on a number of erroneous assessments.

102. Finally, in their sixth ground of appeal, the appellants criticise the General Court’s conclusion, in paragraphs 255 to 262 of the judgment under appeal, that HSBC was aware that it was participating in a single and continuous infringement that encompassed not only the manipulation of 19 March 2007, but also the discussions on the prospect of repeating that manipulation which took place on 19 and 27 March 2007. The appellants take the view that, in that respect, the judgment under appeal went beyond the findings included in the contested decision.

103. The Commission considers the fourth, fifth and sixth grounds of appeal to be inadmissible or ineffective, and in any event unfounded.

104. As far as the fourth ground of appeal is concerned, the Commission considers that the General Court correctly assessed the object of the discussions of 12 and 16 February 2007. In its view, HSBC’s attempts to split those conversations into separate exchanges, each having a different object, is artificial. The Commission adds that this ground of appeal is in any event ineffective, in so far as, even if the appellants’ arguments were to be upheld, the General Court’s findings with regard to the anticompetitive exchanges in the period between 12 February and 27 March 2007 would remain correct.

105. The Commission also argues that the General Court did not err in confirming its analysis that the various forms of conduct identified in the contested decision had a single aim. That aim was explained in recital 445 of the contested decision, which is not called into question by the judgment under appeal: ‘to reduce the cash flows [the colluding parties] would have to pay (or increase those they would receive) and thereby to increase the value of the EIRDs they had in their portfolio, to the detriment of the counterparties to those EIRDs’. The Commission adds that, at any rate, the appellants’ arguments on this point are inadmissible since they merely challenge some assessments of fact by the General Court.

106. Moreover, the sixth ground of appeal is – in the Commission’s view – both inadmissible and unfounded. It argues that, on this matter too, the appellants contest the General Court’s assessment of the facts and of the evidence concerning HSBC’s awareness of the participation of other banks in the conduct in question. In any event, the Commission maintains that the General Court’s assessment was correct and fully consistent with the findings made in the contested decision.

2.      Analysis

107. I am not persuaded by the arguments put forward by the appellants and the interveners to challenge the correctness of the General Court’s assessment with regard to HSBC’s participation in a single and continuous infringement.

108. In that regard, I would recall that it follows from the second subparagraph of Article 256(1) TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that, in principle, the General Court has exclusive jurisdiction to find the facts and to assess those facts. Only a distortion of the clear sense of the evidence by the General Court constitutes a question of law which is subject, as such, to review by the Court of Justice. (48)

109. The appellants invoke a distortion of the clear sense of evidence solely in the context of their fourth ground of appeal. No such claim is made with respect to the fifth and sixth grounds of appeal, although those grounds do not raise any real question of law.

110. The appellants and interveners neither criticise the General Court’s interpretation of the concept of a ‘single and continuous’ infringement (or of its constitutive elements, such as the ‘single aim’) nor, more generally, take issue with the legal framework applied in the judgment under appeal. In essence, they challenge specific findings made by the General Court with regard to the object, nature and context of a number of discussions between traders.

111. Therefore, as correctly argued by the Commission, the appellants and the interveners are, de facto, asking the Court of Justice to carry out a fresh assessment of the facts and the evidence with regard to whether the appellants participated in a single and continuous infringement. That is, however, inadmissible on appeal.

112. The fifth and sixth grounds of appeal should, accordingly, be declared inadmissible. Moreover, as far as the fourth ground of appeal is concerned, I am of the view that it should be dismissed as unfounded.

113. In that regard, I would point out that, according to settled case-law, distortion must be obvious from the documents in the file, without any need to carry out a new assessment of the facts and the evidence. (49) Advancing an interpretation of the evidence which differs from that adopted by the General Court is not sufficient to demonstrate that that evidence has been distorted. (50)

114. In the case at hand, establishing the ‘true’ content and meaning of the conversations of 12 and 16 February 2007 is, admittedly, no easy task. It requires one to decipher the written messages exchanged between traders and to take into account the fact that the exchange of those messages was interrupted by periods in which the traders spoke over the phone.

115. The appellants offer an explanation for those conversations that is different from that retained by the General Court. Yet, it is by no means apparent to me that the appellants’ account is more credible or likely than that of the General Court, let alone capable of establishing a material error in the General Court’s assessment of the facts and the evidence which would be required to prove a distortion.

116. In the light of the above, the fourth, fifth and sixth grounds of appeal should, in my view, be rejected.

VI.    Consequences of the assessment

117. In this Opinion, I have concluded that the first and third grounds of appeal are well founded.

118. Nevertheless, it is settled case‑law that, if the grounds of a decision of the General Court reveal an infringement of EU law but the operative part of the judgment can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made. (51) In such cases, the appeal must be dismissed. (52)

119. For the reasons which I shall explain below, that is the case here.

A.      Right to good administration, presumption of innocence and right of defence

120. At the outset, it should be recalled that the right to good administration is enshrined in Article 41 of the Charter, according to which ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’. (53) As the General Court stated in the judgment under appeal, 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. (54)

121. In turn, the principle of the presumption of innocence is set out in Article 48 of the Charter which, echoing Article 6(2) ECHR, provides that ‘everyone who has been charged shall be presumed innocent until proved guilty according to law’. It is well-established that, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, that principle applies also 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. (55)

122. Finally, the Court has consistently stated that the principle of respect for the rights of the defence is a fundamental principle of EU law. That principle would be infringed if a judicial decision were to be based on facts and documents of which the parties themselves, or one of them, have not been able to take cognisance and in relation to which they have not therefore been able to express a view. (56)

123. The appellants – supported by the interveners – argue that the Commission breached those rights in, essentially, two ways. First, the appellants claim that Commission did so by following a staggered hybrid procedure and by adopting a settlement decision which de facto found HSBC liable for an infringement of Article 101 TFEU. Second, the appellants complain about certain statements made by the then Commissioner in charge of competition policy before the contested decision had been adopted.

124. Neither line of argument is, in my view, persuasive. As I will explain below, there has been no breach of those principles and rights. In any event, the appellants did not provide any element which could suggest that, had the alleged irregularities not taken place, the contested decision may have been different.

1.      Hybrid procedure

125. In essence, the appellants claim that, by adopting a staggered hybrid procedure, the Commission had irredeemably prejudiced their position before the contested decision was actually adopted. The settlement decision, even though it was not addressed to them, contained several and unnecessary references to HSBC so that, de facto, HSBC’s liability had already been established.

126. I am not convinced by the appellants’ arguments.

127. To begin with, it must be recalled that the Court has previously found that there is nothing to preclude the Commission from making use of a staggered hybrid procedure in respect of the various participants to a cartel. (57) It would run counter to the aim of the settlement procedure, that is to simplify and speed up administrative procedures and to reduce the number of cases brought before the EU Courts, thereby enabling the Commission to handle more cases with the same resources, (58) to require the Commission to adopt both the settlement decision and the related ordinary decisions at the same time.

128. Crédit Agricole argues, however, that the Commission should do so when there are no sufficient guarantees that the presumption of innocence of the non-settling parties would be respected in the context of a staggered hybrid procedure.

129. Although, in theory, I may lean towards agreeing with such a hypothesis, in practice I have difficulty imagining the circumstances in which the adoption of a settlement decision by the Commission would – even if all the possible safeguards and precautions are adopted – inevitably result in establishing the liability of the non-settling parties.

130. Indeed, as the General Court correctly stated in a recent decision, in the context of a procedure governed by the provisions of Regulation No 1/2003, both the undertakings concerned and the Commission are, in relation to a previous settlement procedure, in a situation of ‘tabula rasa’, where liabilities have yet to be determined. In that procedure, the Commission is bound solely by the statement of objections addressed to the undertakings in question and – it hardly needs to be pointed out – has to afford those undertakings all the opportunities to be heard, duly taking into account the elements of law and fact provided by them. (59)

131. Nothing precludes the Commission, despite having made different findings in fact and in law in the settlement decision, from reaching a different conclusion in the subsequent ordinary decision, when presented with new arguments or new evidence. Put differently, in the subsequent decision, the Commission cannot simply rely on the findings made in the settlement decision. Any decision adopted by the Commission on the basis of the provisions of Regulation No 1/2003 must be, as a matter of principle, a self-standing decision in which the authorities’ conclusions are adequately and independently justified and substantiated. (60)

132. Turning now to the appellants’ main argument, I must state at the outset that I do not see how the references to HSBC included in the settlement decision could be considered to have irredeemably prejudiced the appellants’ position in the parallel procedure.

133. On a formal level, it is common ground between the parties that the settlement decision is not meant to, and cannot, deploy any legal effect, at least directly, vis-à-vis the appellants since they are not the addressees of that decision, (61) and they are not mentioned in the operative part thereof.

134. In addition, recital (3) of the settlement decision unequivocally states that that decision is based only on facts accepted by the settling parties and that it ‘does not establish any liability of [the] non-settling parties for any participation in an infringement of EU competition law in this case’. That recital also includes a footnote (footnote 4) in which it is stated that the conduct referred to in that decision ‘involving the non-settling parties is exclusively used to establish the liability of the settling parties …’.

135. True, the existence of those ‘disclaimers’ is not enough to exclude the breach alleged by the appellants since, as it follows from Pometon, in a settlement decision the Commission should avoid giving more information than is necessary for the assessment of the legal responsibility of the undertakings that do not participate in that procedure. In addition, the statement of reasons for settlement decisions should be worded in such a way as to avoid a potential prejudgment about the guilt of the non-settling parties, which should be the subject of separate procedures. 

136. Therefore, the settlement decision in the case at hand must be examined, it is entirety, in order to verify whether – despite the elements listed in points 133 and 134 above – the references to HSBC contained therein may, de facto, be understood as premature expressions of their guilt. In other words, using the expressions employed by the appellants in their application, does the settlement decision ‘crystallise’ HSBC’s position to an extent that that aspect could not be ‘rectified’ in the subsequent procedure?

137. In that regard, the appellants take issue with the fact that, in footnote 4 of the settlement decision, the Commission defined the term ‘parties’ as ‘all undertakings subject to the proceedings’, which thus includes also the non-settling parties. Subsequently, the Commission described the practices in question (in Section 4 of the settlement decision) and ascribed them to ‘the parties’. (62) In that context, the Commission also referred to the bilateral contacts between Barclays and, among others, HSBC. (63) In addition, when assessing the restrictive nature of the practices in question, the settlement decision refers to those described in Section 4 thereof.

138. Yet, none of those references, either alone or combined, appear problematic to me.

139. First, the references to the non-settling parties in the settlement decision are rather few, and none are included in the ‘legal assessment’ part thereof. (64) Second, and more importantly, all of those references are descriptive in nature and do not entail – expressly or impliedly – an assessment of the legal position of HSBC.

140. Admittedly, in the legal assessment part of the settlement decision, the Commission does make some cross-references to the descriptive part thereof, in which HSBC is mentioned either directly or indirectly.

141. However, to the extent that the conduct of the settling parties which is the subject of the settlement decision included contacts with the non-settling parties, and that those contacts have a certain importance in the scheme of the decision, the Commission could not be expected to omit that information. The interest of HSBC in this regard must be balanced against the Commission’s duty to adopt a decision that is, as much as possible, complete and transparent, and that includes an adequate statement of reasons, both in fact and in law. Those references are thus ‘objectively necessary’ to establish the liability of the settling parties, within the meaning of the judgment in Pometon.

142. Accordingly, it seems to me that there is no concealed or incidental assessment of HSBC’s liability in the settlement decision. Nor is there any reference to HSBC in that decision that appears unnecessary or redundant.

143. The examination of the contested decision confirms my conclusion. Indeed, the references to the settlement decision are – yet again – confined to the descriptive parts of the contested decision. The legal assessment of the conduct in question, and the liability of the non-settling parties in that respect, are based on an independent analysis which at no point relies on the findings made in the settlement decision. The whole assessment is carried out ex novo, in the light of the arguments and evidence provided by the addressee of the contested decision. The Commission’s findings are, consequently, independently justified and substantiated.

144. In the light of the above, I do not see any convincing argument that leads me to conclude that the appellants’ liability was, de jure or de facto, established in the settlement decision so that the Commission was, for all practical purposes, unable to vary its findings in the subsequent decision. The arguments alleging a breach of the principle of the presumption of innocence stemming from the adoption of a staggered hybrid procedure must thus be rejected.

2.      The Commissioner’s statements

145. According to settled case-law, the principle of the presumption of innocence requires, first and foremost, that when carrying out their duties, the members of a court should not start with a preconceived idea that the accused has committed the offence charged; and that the burden of proof is on the prosecution, any doubt in that regard benefiting the accused. (65)

146. Furthermore, according to a consistent line of case-law of the ECtHR, the principle of the presumption of innocence also precludes the premature expression, by public authorities, of the opinion that the person charged with an offence is guilty before he or she has been so proved according to law. Those expressions may, in fact, encourage the public to believe in the guilt of the person concerned, thereby affecting his or her reputation and dignity, and prejudice a serene and impartial assessment of the matter by the competent authorities. (66)

147. The public authorities in question not only include judges, but also other public officials (such as, for example, investigative authorities and other representatives of the State). (67) However, the statements made by the latter are subject to a less rigorous form of review than those of the judicial authorities. (68)

148. In addition, the ECtHR has found that, in the light of the freedom of expression – and, I would add, of the requirements of openness and transparency of the public administration (69)– the principle of the presumption of innocence cannot be understood as preventing the public authorities from informing the public about investigations in progress. That is so under the condition that the authorities do so with the necessary discretion and circumspection. (70)

149. A fundamental distinction has been consistently made in the case-law between, on the one hand, statements that someone is merely suspected of having committed a crime and, on the other hand, clear declarations – in the absence of a final conviction – that someone has actually committed the crime in question. The former have generally been regarded as legitimate, whereas the latter infringe the principle of the presumption of innocence. (71)

150. The choice of language by the authorities in their statements is, obviously, of critical importance in that respect. (72) Nevertheless, what matters most, especially in ‘borderline’ situations, is the real meaning of the statements made by the authorities and not their literal form. (73)

151. In certain circumstances, the use of some unfortunate language, which could be open to criticism, was found – by the ECtHR – not to be decisive with regard to alleged infringements of the presumption of innocence. (74) Indeed, according to settled case-law, whether the statement of a public authority constitutes a breach of the principle of the presumption of innocence must be resolved in the context of the particular circumstances in which that statement is made. (75)

152. Against this background, was there a breach of the principle of the presumption of innocence in the case of the appellants as a result of the statements made by the then Commissioner in 2012 and 2014?

153. Although I have some sympathy for the appellants’ arguments, I take the view that no such breach occurred.

154. At the outset, it must be pointed out that the then Commissioner was a member of an administrative institution (the Commission) which, in the case at hand, acted as the investigative authority. Therefore, the standard to be applied to his statements is not as high as it would have been had the Commissioner been part of the judiciary.

155. That said, it must be acknowledged that those statements, because of the words used and the manner in which they were delivered, tread a fine line between declarations of mere suspicion and premature declarations of guilt. In view of a number of elements, I am nonetheless inclined to consider that those statements are unfortunate but relatively ‘harmless’.

156. First, with regard to the content of the statements at issue, it is true that several remarks made were ambiguous, and that some of them could be perceived by part of the audience as an insinuation that (some or all) of the undertakings being investigated were likely to have committed a breach of EU competition rules. (76) Yet, it cannot be denied that those statements remained rather vague and generic, and stopped short of declaring the guilt of the undertakings under investigation. Nor did those statements employ any derogatory or acrimonious language about the undertakings being investigated. They also did not refer to one or more undertakings in particular, give any particular detail that could permit the identification of one or more specific undertakings, or reveal any confidential information or business secret that could have harmed those undertakings.

157. Second, as regards the context in which the statements at issue were made, the ‘where’, ‘why’ and ‘when’ seem to me to be particularly relevant. Those statements were made, respectively, (i) in the European Parliament, (ii) in the French Senate, and (iii) during an interview with specialised press. The purpose of the statements at issue was to inform other (EU or national) institutions and the operators of the sectors concerned of the status of an on-going investigation. In a world still recovering from the devastating effects of the 2007-2008 financial crisis (whose roots are to be found in the reckless conduct of a number of global financial institutions), and with the European Union undergoing a significant reform of the financial services sector, such information was clearly of significant interest to the public. In addition, the statements were made after the existence of an investigation in the EIRDs sector had already been made public. (77)

158. Third, with regard to the possible consequences of the statements at issue, I fail to see – nor have the appellants sought to explain in any detail – how those statements may have affected the appellants’ reputation and dignity, or prejudiced a serene and impartial assessment of the matter by the Commission. (78)

159. In particular, the appellants do not contest that (i) in the context of the administrative procedure, they enjoyed all the procedural guarantees laid down in the EU legislation; (ii) both the settlement decision and the contested decision are acts adopted by the Commission (that is, by the College of Commissioners) and not by the Commissioner responsible for competition policy; and (iii) at the time the contested decision was adopted, the person who had made the statements at issue was no longer Commissioner in charge of competition policy.

160. In the light of the above, it seems to me that the statements at issue – which are indeed open to criticism, as stated by the Ombudsman – are, however, not of such a kind and gravity as to cast doubt on the degree of impartiality with which the Commission carried out its investigation and assessed their position in the contested decision.

161. In any event, I take the view that, even if the Court were to consider that the statements at issue did give rise to a breach of the principle of the presumption of innocence, the appellants did not provide any element showing that those statements may have had an influence on the outcome of the procedure.

162. Finally, I would only add that the further allegations made, in this context, by the appellants with respect to a breach of their rights of defence do not raise any points additional to those covered above. It is therefore unnecessary to examine those allegations separately.

163. Accordingly, the appellants’ claims relating to the breaches of the principle of the presumption of innocence, the right to good administration and the rights of the defence should, in my view, be dismissed.

B.      Restriction by object

164. In essence, the appellants argue that, by reducing the traders’ uncertainty as to the level of the market mids, the exchange of information in question enabled them to set a narrower bid/offer spread to the benefit of customers, which would result in increased competition in the relevant market.

165. That argument too is, in my view, unconvincing. The case-law in that regard is relatively clear and, as such, I shall limit my analysis to a few brief remarks.

166. To begin with, I doubt that the conduct in question, because/in view of its effect, may be regarded as being pro-competitive. In that respect, I note that information on mids is, at least for certain derivatives, generally confidential and not publicly available. HSBC and JP Morgan themselves have, during the investigation, confirmed the lack of transparency in the EIRD market. (79) In addition, and importantly, information relating to mids is particularly relevant for pricing in the EIRD sector. A trader who is aware of its competitors’ mids is in a better position to determine more accurately those competitors’ final bid or offer prices. (80)

167. I fail to see any pro-competitive aspect of this conduct. The exchange of confidential information on mids did not permit the banks in question to – by way of providing a few examples of pro-competitive effects – offer new or improved services, enter into new markets, open the market to new customers, or more generally improve the functioning of the market or correct its failures. By exchanging the information in question, some banks removed uncertainty about their future pricing behaviour, to the benefit of the banks participating in the collusion, and to the detriment of the banks/those not involved in it. (81)

168. Moreover, the fact that the banks in question may have passed some of the benefits on to their clients does not exclude the anticompetitive nature of the conduct in question. It is well established that EU competition law is designed to protect not only the immediate interests of consumers, but also the structure of the market. (82) This means that, when the relevant conditions of Article 101 and/or Article 102 TFEU are fulfilled, conduct that is also capable of affecting the incentive and ability of (equally efficient) competitors to compete in the market may be regarded as being anticompetitive.

169. Thus, in order to find that a given conduct has an anticompetitive object, there is no need for an immediate and direct link between that conduct and an increase in consumer prices. (83) Even conduct which may give rise to some reduction in the price of the relevant products or services may, under certain circumstances, be regarded as being inherently anticompetitive. (84)

170. In the light of the above, I am of the view that the appellants’ plea alleging a pro-competitive nature of the exchange of information on mids, which would exclude its characterisation as an infringement by object of Article 101 TFEU, should be dismissed.

VII. Costs

171. Under Article 138(1) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

172. Since the Commission has applied for costs and the appellants have been unsuccessful, the latter should in principle be ordered to pay the costs relating to the present appeal proceedings. However, given that the appellants successfully challenged a number of errors in law, included in the judgment under appeal, I am of the view that – pursuant to Article 138(3) of the Rules of Procedure – it appears justified to order the appellants and the Commission to bear their own costs relating to the present appeal proceedings.

173. In the present case, it also appears justified to apply Article 140(3) of the Rules of Procedure, which is applicable to the appeal proceedings under Article 184(1) thereof, pursuant to which the Court may decide that private parties intervening in appeal proceedings should bear their own costs.

174. Finally, I see no reason to alter the General Court’s decision as to the costs of the proceedings at first instance.

VIII. Conclusion

175. In the light of the foregoing, I suggest that the Court of Justice should:

–        dismiss the appeals;

–        order HSBC Holdings plc, HSBC Bank plc, HSBC Continental Europe (formerly HSBC France), and the European Commission each to bear their own costs in relation to the present appeal proceedings;

–        order Crédit Agricole SA and Crédit Agricole Corporate and Investment Bank and JP Morgan Chase & Co., JP Morgan Chase Bank National Association and JP Morgan Services LLP to bear their own costs in relation to the present appeal proceedings.

1      Original language: English.

2      Judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675, paragraphs 1 to 12) (‘the judgment under appeal’).

3      Commission Decision of 7 December 2016 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39914 – Euro Interest Rate Derivatives) (C(2016) 8530 final) (‘the contested decision’).

4      A ‘hybrid procedure’ is a proceeding in which a settlement procedure under Article 10a of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), as amended by Commission Regulation (EC) No 622/2008 of 30 June 2008 as regards the conduct of settlement procedures in cartel cases (OJ 2008 L 171, p. 3), and a standard administrative procedure under Article 7 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) are conducted in parallel by the Commission.

5      Paragraphs 1 to 11 of the judgment under appeal.

6      OJ 2006 C 298, p. 17.

7      Commission Decision C(2021) 4600 final of 28 June 2021, amending Commission Decision C(2016) 8530 final of 7 December 2016 (AT.39914 – Euro Interest Rate Derivatives).

8      A hybrid procedure is referred to as ‘staggered’ when the settlement decision and the ordinary decision(s) are not adopted at the same time but staggered over time.

9      Decision of the European Ombudsman of 11 November 2015 in the inquiry into complaint 1021/2014/PD against the European Commission (‘the Ombudsman decision’).

10      Paragraphs 289 and 291 of the judgment under appeal.

11      Formulated for the first time in the judgment of 16 December 1975, Suiker Unie and Others v Commission (40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraphs 90 and 91).

12      In that regard, the appellants refer mainly to the judgment of 16 January 2019, Commission v United Parcel Service (C‑265/17 P, EU:C:2019:23, paragraph 56).

13      The Commission refers to Article 10a of Regulation No 773/2004, and to point 9 of Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of [Regulation No 1/2003] in cartel cases (OJ 2008 C 167, p. 1).

14      See, especially, judgment of 18 March 2021, Pometon v Commission (C‑440/19 P, EU:C:2021:214) (‘Pometon’).

15      The Commission points to two decisions of the General Court confirming that test: judgments of 6 July 2000, Volkswagen v Commission (T‑62/98, EU:T:2000:180, paragraphs 281 and 283), and of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795, paragraph 278).

16      On this topic, in detail, see Lenaerts, K., Vanhamme, J., ‘Procedural Rights of Private Parties in the Community Administrative Process’, Common Market Law Review, Vol. 34, 1997, pp. 531 and 568.

17      For an overview, and with further references to legal scholarship, see, inter alia, Barbier de La Serre, E., ‘Procedural Justice in the European Community Case-law concerning the Rights of the Defence: Essentialist and Instrumental Trends’, European Public Law, 2006, pp. 225 to 250; and Nehl, H.P., Principles of Administrative Procedure in EC Law, Hart Publishing, Oxford, 1999, pp. 167 to 170.

18      See, for example, judgments of 15 June 1994, Commission v BASF and Others (C‑137/92 P, EU:C:1994:247, paragraphs 75 and 76); of 6 April 2000, Commission v ICI (C‑286/95 P, EU:C:2000:188, paragraphs 40, 41 and 51); and of 21 September 2017, Feralpi v Commission (C‑85/15 P, EU:C:2017:709, paragraphs 45 and 46).

19      On the principle of conferred powers, see judgment of 21 June 2018, Poland v Parliament and Council (C‑5/16, EU:C:2018:483, paragraph 84 and the case-law cited). In legal scholarship, see Schwarze, J., European Administrative Law, Sweet & Maxwell, 1992, pp. 253 to 256.

20      Emphasis added.

21      In the field of competition law, see, similarly, Opinion of Advocate General Wahl in Feralpi and Others v Commission (C‑85/15 P, C‑86/15 P and C‑87/15 P, C‑88/15 P and C‑89/15 P, EU:C:2016:940, point 60).

22      See, to that effect, judgment of 10 March 2016, HeidelbergCement v Commission (C‑247/14 P, EU:C:2016:149, paragraph 16 and the case-law cited).

23      See point 30 above.

24      See, inter alia, judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773, paragraph 78 and the case-law cited). In some cases, the test is (due to the nature of the right allegedly infringed) phrased differently, however, the substance thereof is equivalent: see judgment of 26 January 2017, Duravit and Others v Commission (C‑609/13 P, EU:C:2017:46, paragraph 100 and the case-law cited).

25      See, for example, judgment of 25 October 2011, Solvay v Commission (C‑109/10 P, EU:C:2011:686, paragraphs 62 to 65).?

26      See, on this issue, Hartley, T.C., The Foundations of European Union Law, 8th ed., Oxford University Press, Oxford, 2014, p. 421.

27      See, to that effect, judgment of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 20 and the case-law cited).

28      See, to that effect, Opinion of Advocate General Geelhoed in Commission v SGL Carbon (C‑301/04 P, EU:C:2006:53, point 67). In legal scholarship, see Wils, W., ‘Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network,’ World Competition, 2020, pp. 15 to 18.

29      See, by analogy, judgment of 26 November 2013, Gascogne Sack Deutschland v Commission (C‑40/12 P, EU:C:2013:768, paragraph 82).

30      Similarly, judgment of 8 July 1999, Hercules Chemicals v Commission (C‑51/92 P, EU:C:1999:357, paragraph 68).

31      Such as, for example, an action for non-contractual liability against the European Union: see, to that effect, judgment of 18 September 2003, Volkswagen v Commission (C‑338/00 P, EU:C:2003:473, paragraph 165). According to Article 340 TFEU, ‘in the case of non-contractual liability, the Union shall … make good any damage caused by its institutions or by its servants in the performance of their duties’ (emphasis added). In that regard, it must be pointed out that the concept of ‘servants’ also covers the members of the Commission: see, to that effect, judgment of 15 July 2021, OH (Immunity from jurisdiction) (C‑758/19, EU:C:2021:603).

32      Cf., for example, the approach taken with regard to alleged breaches of the right of the defence (judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773, paragraph 78 and the case-law cited), with that taken with regard to alleged breaches of confidentiality (judgment of 3 December 2009, Evropaïki Dynamiki v Commission (C‑476/08 P, not published, EU:C:2009:752, paragraphs 33 to 35).

33      See, similarly, Opinion of Advocate General Kokott in Solvay v Commission (C‑110/10 P, EU:C:2011:257, points 37 and 47).

34      Article 2 of Regulation No 1/2003. See also, among many, judgment of 22 November 2012, E.ON Energie v Commission (C‑89/11 P, EU:C:2012:738, paragraphs 71 and 72).

35      Here, I am paraphrasing a passage in the judgment of the U.S. Supreme Court of 26 March 1991 in Arizona v. Fulminante, 499 U.S. 279 (1991), at 316.

36      Ibid., paragraph 63.

37      Ibid., paragraphs 64 and 65.

38      Ibid., paragraph 66.

39      Recital (34) of the contested decision (reproduced at paragraph 128 of the judgment under appeal) explains that the term ‘mids’ ‘refers to the mid-point or average of the bid and offer prices (for example perceived, modelled, quoted or traded) for a particular product. The mid often serves as a reliable approximation of where a market maker would trade with a client, in particular where the market is liquid and the bid-offer spread is narrow’.

40      See, to that effect, judgment of 2 April 2020, Budapest Bank and Others (C‑228/18, EU:C:2020:265, paragraph 36).

41      Opinion of Advocate General Bobek in Budapest Bank and Others (C‑228/18, EU:C:2019:678, point 45).

42      Ibid., point 49.

43      See, for example, judgment of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 335).

44      See, to that effect, judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission (C‑286/13 P, EU:C:2015:184, paragraph 127 and the case-law cited).

45      Judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 103).

46      Ibid., paragraphs 104 to 107.

47      See, inter alia, judgment of 11 September 2014, MasterCard and Others v Commission (C‑382/12 P, EU:C:2014:2201, paragraphs 89 to 91 and the case-law cited).

48      See, to that effect, judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission (C‑466/19 P, EU:C:2021:76, paragraph 42 and the case-law cited).

49      See judgment of 4 April 2017, Ombudsman v Staelen (C‑337/15 P, EU:C:2017:256, paragraph 83 and the case-law cited).

50      See judgment of 25 July 2018, QuaMa Quality Management v EUIPO (C‑139/17 P, not published, EU:C:2018:608, paragraph 35 and the case-law cited).

51      See, recently, judgment of 11 November 2021, Autostrada Wielkopolska v Commission and Poland (C‑933/19 P, EU:C:2021:905, paragraph 58 and the case-law cited).

52      See judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742, paragraph 47 and the case-law cited).

53      See paragraph 1 thereof (emphasises added).

54      See paragraph 286 thereof, with references to the Court’s case-law.

55      See, inter alia, judgment of 22 November 2012, E.ON Energie v Commission (C‑89/11 P, EU:C:2012:738, paragraph 73 and the case-law cited).

56      See, for example, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363, paragraph 30 and the case-law cited).

57      See, especially, Pometon (paragraph 63).

58      See judgment of 20 May 2015, Timab Industries and CFPR v Commission (T‑456/10, EU:T:2015:296, paragraph 60).

59      Judgment of 2 February 2022, Scania and Others v Commission (T‑799/17, EU:T:2022:48, paragraph 129).

60      See, by analogy, Opinion of Advocate General Bobek in Glencore Agriculture Hungary (C‑189/18, EU:C:2019:462, points 42 and 48)

61      See, in particular, recitals 1 and 2 of the settlement decision.

62      Recital 32.

63      Recital 36.

64      Recitals 42 to 109.

65      See, inter alia, ECtHR, 6 December 1988, Barberà, Messegué and Jabardo v. Spain (CE:ECHR:1988:1206JUD001059083, § 77).

66      See ECtHR, 24 April 2008, Ismoilov and Others v. Russia (CE:ECHR:2008:0424JUD000294706, § 161 and the case-law cited.)

67      See, for example, ECtHR, 10 February 1995, Allenet de Ribemont v. France (CE:ECHR:1995:0210JUD001517589, § 35).

68      See, inter alia, ECtHR, 21 September 2006, Pandy v. Belgium (CE:ECHR:2006:0921JUD001358302, § 43).

69      See, especially, Article 10(3) and Article 11(2) TEU.

70      See ECtHR, 10 February 1995, Allenet de Ribemont v. France (CE:ECHR:1995:0210JUD001517589, § 38).

71      See, among many, ECtHR, 12 November 2015, El Kaada v. Germany (CE:ECHR:2015:1112JUD000213010, § 54).

72      See, for example, ECtHR, 27 March 2014, Müller v. Germany (CE:ECHR:2014:0327JUD005496308, § 46).

73      See, inter alia, ECtHR, 28 November 2002, Lavents v. Latvia (CE:ECHR:2002:1128JUD005844200, § 126).

74      See ECtHR, 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310, § 63 and the case-law cited).

75      See ECtHR, 28 October 2004, Y.B. and Others v. Turkey (CE:ECHR:2004:1028JUD004817399, § 44), and 24 May 2011, Konstas v. Greece (CE:ECHR:2011:0524JUD005346607, § 33).

76      See the Ombudsman decision, pp. 1 and 5.

77      See, for example, European Commission, Press Release of 19 October 2011, ‘Antitrust: Commission confirms inspections in suspected cartel in the sector of Euro interest rate derivatives’ (MEMO/11/711).

78      On this point, see also the Ombudsman decision, p. 4.

79      See recitals (45) and (46) of the contested decision. Not able to check this

80      See, especially, recital (34) of the contested decision.

81      See, to that effect, paragraph 132 of the judgment under appeal which reproduces, in essence, recital (395) of the contested decision.

82      See, for example, judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission (C‑286/13 P, EU:C:2015:184, paragraph 125 and the case-law cited).

83      See, judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission (C‑286/13 P, EU:C:2015:184, paragraphs 123 to 125 and the case-law cited).

84      Judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraphs 109 and 110).

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