CELEX: 62019CJ0883
Appeal
Competition
Agreements, decisions and concerted practices
Euro Interest Rate Derivatives sector
Decision establishing an infringement of Article 101 TFEU and Article 53 of the EEA Agreement
Manipulation of the Euribor interbank reference rates
Exchange of confidential information
Restriction of competition by object
Characterisation
Taking into account of procompetitive effects
Single and continuous infringement
‘Hybrid’ procedure having led successively to the adoption of a settlement decision and a decision made under the ordinary procedure
Charter of Fundamental Rights of the European Union
Article 41
Right to good administration
Article 48
Presumption of innocence

By their appeal, HSBC Holdings plc, HSBC Bank plc and HSBC Continental Europe, formerly HSBC France (together ‘the HSBC companies’) seek to have set aside in part the judgment of the General Court of the European Union of 24 September 2019, HSBC Holdings and Others v Commission (
T‑105/17
,
EU:T:2019:675
) (‘the judgment under appeal’), by which the General Court annulled Article 2(b) of Commission Decision C(2016) 8530 final 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) (‘the decision at issue’) and dismissed their action as to the remainder.
Background to the dispute
The factual background to the dispute was set out by the General Court in paragraphs 1 to 29 of the judgment under appeal. For the purposes of the present proceedings, it can be summarised as follows.
By the decision at issue, the European Commission found that the HSBC companies had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (
OJ 1994 L 1, p. 3
) (‘the EEA Agreement’) by taking part, from 12 February to 27 March 2007, in a single and continuous infringement with the object of distorting the normal course of pricing on the market for Euro Interest Rate Derivatives (‘EIRD’ or ‘EIRDs’) linked to the Euro Interbank Offered Rate (‘Euribor’) and/or the Euro Over-Night Index Average (‘EONIA’) and imposed on them jointly and severally a fine of EUR 33606000.
The HSBC group (‘HSBC’) is a banking group, and one of its activities is global banking and markets. HSBC Holdings, the ultimate parent company of HSBC, is the parent company of HSBC France, now HSBC Continental Europe, which is itself the parent company of HSBC Bank. HSBC France and HSBC Bank were responsible for the negotiation of EIRDs. HSBC France was responsible for submitting rates to the Euribor panel.
On 14 June 2011, the Barclays banking group, which includes Barclays plc, Barclays Bank plc, Barclays Directors Ltd, Barclays Group Holding Ltd, Barclays Capital Services Ltd and Barclays Services Jersey Ltd (‘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 (
OJ 2006 C 298, p. 17
), informing it of the existence of a cartel in the EIRD sector and expressing its wish to cooperate with that institution. On 14 October 2011, Barclays was granted conditional immunity.
Between 18 and 21 October 2011, the Commission carried out inspections at the premises of a number of financial institutions in London (United Kingdom) and Paris (France), including at the premises of the HSBC companies.
On 5 March and 29 October 2013, pursuant to Article 11(6) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 [EC] (
OJ 2003 L 1, p. 1
), the Commission initiated infringement proceedings against the HSBC companies, Barclays, Crédit agricole SA and Crédit agricole Corporate and Investment Bank (together ‘the Crédit agricole companies’), Deutsche Bank AG, Deutsche Bank Services (Jersey) Ltd and DB Group Services (UK) Ltd (together ‘Deutsche Bank’), JPMorgan Chase & Co., JPMorgan Chase Bank, National Association and JPMorgan Services LLP (together ‘the JPMorgan Chase companies’), Royal Bank of Scotland plc and the Royal Bank of Scotland Group plc (together ‘RBS’), and Société générale.
Barclays, Deutsche Bank, Société générale and RBS wished to participate in a settlement procedure pursuant to 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 TFEU] and [102 TFEU] (
OJ 2004 L 123, p. 18
). The HSBC companies, the Crédit agricole companies and the JPMorgan Chase companies decided not to participate in that settlement procedure.
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.
The administrative procedure
On 19 March 2014, the Commission sent a statement of objections to the HSBC companies, the Crédit agricole companies and the JPMorgan Chase companies.
The HSBC companies were able to consult the accessible parts of the Commission’s file on DVDs, and their legal representatives received further access to the file at the Commission premises. The HSBC companies also had access to the statement of objections sent to the settling parties, the replies of those parties and the settlement decision.
On 14 November 2014, the HSBC companies submitted their written observations on the statement of objections and presented their views orally at the hearing which took place on 15 to 17 June 2015.
On 6 April 2016, the Commission amended the settlement decision as regards the determination of the amount of the fine imposed on Société générale. The HSBC companies had access to the amending decision, the underlying correspondence and the corrected financial data submitted by Société générale.
The decision at issue
On 7 December 2016, the Commission adopted the decision at issue. Article 1(b) and Article 2(b) of that decision are worded as follows:
‘Article 1
The following undertakings have infringed Article 101 [TFEU] and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous infringement regarding Euro Interest Rate Derivatives covering the entire [European Economic Area (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:
…
(b)
[the HSBC companies] from 12 February 2007 to 27 March 2007 …
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
…
(b)
[the HSBC companies], jointly and severally liable: 33606000 EUR’.
Relevant products
The infringements at issue relate to EIRDs, that is to say Euro Interest Rate Derivatives linked to Euribor or EONIA.
Euribor is a set of benchmark interest rates intended to reflect the cost of interbank loans frequently used on the international capital markets. It is defined as an index of the rate at which euro interbank term deposits are offered by one prime bank to another prime bank within the euro area. Euribor is calculated on the basis of the average of the prices offered daily by a panel – composed of 47 prime banks during the period concerned by the decision at issue, including the banks referred to in paragraph 7 above – submitted to Thomson Reuters acting as the calculation agent to the European Banking Federation (‘EBF’) between 10.45 a.m. and 11.00 a.m. The banks provide contributions for the 15 different Euribor interest rates, which vary according to their term which ranges from 1 week to 12 months. EONIA fulfils an equivalent function to Euribor, but with regard to daily rates. It is calculated by the European Central Bank (‘ECB’) on the basis of an average of the rates for unsecured interbank deposits from the same panel of banks as is used to set Euribor.
The most frequent EIRDs are forward rate agreements, interest rate swaps, interest rate options and interest rate futures.
Alleged conduct of the HSBC companies
In recital 113 of the decision at issue the Commission described the conduct of the banks referred to in paragraph 7 of the present judgment as follows:
‘Barclays, Deutsche Bank, [the JPMorgan Chase companies], Société générale, [the Crédit agricole companies], [the HSBC companies] and RBS have participated in a series of bilateral contacts in the EIRD sector that largely consisted of the following practices between different parties.
(a)
On occasions, certain traders employed by different parties communicated and/or received preferences for an unchanged, low or high fixing of certain Euribor tenors. These preferences depended on their trading positions/exposures.
(b)
On occasions, certain traders of different parties communicated and/or received from each other detailed not publicly known/available information on the trading positions or on the intentions for future Euribor submissions for certain tenors of at least one of their respective banks.
(c)
On occasions, certain traders also explored possibilities to align their EIRD trading positions on the basis of such information as described under (a) or (b).
(d)
On occasions, certain traders also explored possibilities to align at least one of their banks’ future Euribor submissions on the basis of such information as described under (a) or (b).
(e)
On occasions, at least one of the traders involved in such discussions approached the respective bank’s Euribor submitters, or stated that such an approach would be made, to request a submission to the EBF’s calculation agent towards a certain direction or at a specific level.
(f)
On occasions, at least one of the traders involved in such discussions stated that he would report back, or reported back on the submitter’s reply before the point in time when the daily Euribor submissions had to be submitted to the calculation agent or, in those instances where that trader had already discussed this with the submitter, passed on such information received from the submitter to the trader of a different party.
(g)
On occasions, at least one trader of a party disclosed to a trader of another party other detailed and sensitive information about his bank’s trading or pricing strategy regarding EIRDs.’
In recital 114 of the decision at issue, the Commission added that, ‘in addition, on occasions certain traders employed by different parties discussed the outcome of the Euribor rate setting, including specific banks’ submissions, after the Euribor rates of a day had been set and published’.
The Commission found that those instances of conduct constituted a single and continuous infringement.
In order to substantiate that finding, the Commission declared, in the first place, that those instances of conduct pursued a single economic aim of reducing the cash flows which the participants would have to pay under the EIRDs or increasing those which they were to receive. In the second place, it declared that the various instances of conduct formed a common pattern of behaviour, in so far as a stable group of individuals was involved in the cartel, the parties had followed a very similar pattern in their anticompetitive activities and the various discussions between the parties covered the same or overlapping topics and had therefore the same or almost the same content. In the third place, it declared that the traders participating in the anticompetitive exchanges were skilled professionals and knew or should have been aware of the general scope and the essential characteristics of the cartel as a whole.
It found that the HSBC companies had participated in that single and continuous infringement, emphasising that the bilateral contacts with Barclays themselves constituted an infringement of Article 101(1) TFEU.
As regards the duration of HSBC’s participation, the Commission took 12 February 2007 as its starting date and 27 March 2007 as its end date.
Calculation of the amount of the fine
–
Basic amount of the fine
As regards, in the first place, the determination of the value of sales of the banks that participated in the cartel, since EIRDs do not generate any sales in the usual sense of the term, the Commission determined the value of sales by means of a proxy. Furthermore, in the light of the circumstances in the present case, it concluded that it was preferable not to use an annualised proxy, but to take as its basis a proxy based on the months corresponding to the banks’ participation in the infringement. It pointed out that it was not required to apply a mathematical formula and that it had a margin of discretion when determining the amount of each fine.
The Commission considered it appropriate to use as its proxy the cash receipts generated by the cash flows that each bank received from their portfolio of EIRDs linked to any Euribor tenor and/or EONIA and entered into with EEA-located counterparties, to which a uniform reduction factor of 98.849% was applied.
Accordingly, the Commission took the amount of EUR 192081799 as the value of sales for the HSBC companies.
As regards, in the second place, the gravity of the infringement, the Commission used a gravity factor of 15% as the infringement related to price coordination and price-fixing arrangements. It added a gravity factor of 3% by reference to the fact that the cartel had concerned the whole of the EEA and had related to rates that were relevant for all EIRDs and that, as those rates related to the euro, they were of fundamental importance to the harmonisation of financial conditions in the internal market and for banking activities in Member States.
As regards, in the third place, the duration of the infringement, the Commission stated that it had taken into account the duration of the participation of each participant in the cartel on ‘a rounded down monthly and pro rata basis’, which led to a multiplier of 0.08% being applied in respect of the HSBC companies.
In the fourth place, the Commission added an additional amount of 18% of the value of sales, described as an ‘entry fee’ in so far as the infringement consisted of horizontal price-fixing, in order to deter undertakings from participating in such practices, irrespective of the duration of the infringement.
The Commission thus set the basic amount of the fine to be imposed on the HSBC companies at EUR 37340000.
–
Final amount of the fine
The Commission found that the HSBC companies had had a more peripheral or minor role in the infringement that could not be compared with that of the main players and granted it a 10% reduction of the basic amount of the fine. Consequently, Article 2(b) of the decision at issue therefore imposes on those companies a fine of a final amount of EUR 33606000.
The action before the General Court and the judgment under appeal
By application lodged at the Registry of the General Court on 17 February 2017, the HSBC companies brought an action for the annulment in part of the decision at issue.
In their action, the HSBC companies sought both the annulment of Article 1 and Article 2(b) of the decision at issue and, in the alternative, a variation of the amount of the fine imposed by Article 2(b) of that decision.
In the first place, in support of their application for annulment of Article 1 of the decision at issue and, in the alternative, Article 1(b) of that decision, the HSBC companies put forward five pleas in law.
Those pleas concerned, respectively:
–
the Commission’s finding of an infringement by object (first plea);
–
the Commission’s finding of a single and continuous infringement (second to fourth pleas), in particular its finding that the collusive arrangements established by the HSBC companies and the other parties formed part of an overall plan pursuing a single aim (second plea), the HSBC companies’ intention to contribute to that aim (third plea) and their awareness of the conduct of the other participants in the infringement (fourth plea); and
–
infringement of the presumption of innocence and of the right to good administration and of the HSBC companies’ rights of defence, in that the decision at issue had been adopted after a settlement decision in which the Commission had already adopted a position on the participation of those companies in the infringement at issue (fifth plea).
By the judgment under appeal, the General Court rejected all of those pleas.
As regards the first plea, concerning the finding of an infringement by object within the meaning of Article 101(1) TFEU, the General Court rejected the first part of that plea, disputing the application of that finding to the manipulation of Euribor on 19 March 2007. In that regard, in paragraphs 93 and 94 of the judgment under appeal, the General Court found that the Commission had not made an error of law or assessment in finding that all of the forms of conduct described in recital 392 of the decision at issue, including the manipulation of 19 March 2007, restricted competition by creating an informational asymmetry between market participants, since participants in the infringement, first, were better able to know in advance with a certain accuracy at what level Euribor would be and/or was intended to be set by their colluding competitors and, second, knew whether or not Euribor was at artificial levels.
As regards the second part of that plea, concerning the application of the finding of an infringement by object to other alleged conduct of the HSBC companies, the General Court examined, first of all, the merits of that finding as regards exchanges on mids and held that the Commission had not erred in finding that those exchanges contained in the discussions of 14 and 16 February 2007 had an object that restricts competition. Second of all, it examined the ground for complaint disputing the merits of the application of the finding of an infringement by object to exchanges on trading positions. The General Court held, in essence, that the vast majority of the discussions on trading positions in which the HSBC companies’ traders had participated, namely those of 12, 13 and 28 February and 19 March 2007, had a link to the Euribor manipulation of 19 March 2007, with the result that the Commission was entitled to characterise them as a restriction of competition by object. However, the General Court held that the discussions of 9 and 14 March 2007, either individually or jointly, could not be regarded as having an object that restricts competition, within the meaning of Article 101(1) TFEU, since, first, those discussions had not taken place in view of the Euribor manipulation of 19 March 2007 and, second, had not reduced or removed the degree of uncertainty on the market in such a way that the Commission could infer therefrom an impact on the normal course of pricing components in the EIRD sector without having to examine their effects.
As regards the second to fourth pleas, relating to the finding of a single and continuous infringement made by the Commission, the General Court started by rejecting the second plea, questioning the existence of an ‘overall plan’ with a single aim. The General Court then moved on to examine the fourth plea, questioning the HSBC companies’ awareness of the offending conduct by the other participants. In that regard, the General Court drew a distinction between, on the one hand, the manipulation of 19 March 2007 and the possibility of it being repeated and, on the other hand, the other conduct taken into account by the Commission in respect of the single and continuous infringement. In paragraph 273 of the judgment under appeal, the General Court concluded that the HSBC companies’ participation in a single and continuous infringement can be upheld only in respect, first, of their own conduct in that infringement and, second, of the conduct of other banks forming part of the manipulation of 19 March 2007 and any potential repeat of that manipulation. Lastly, the General Court rejected the third plea, relating to the HSBC companies’ intention to participate in the single and continuous infringement, given that, as regards the manipulation of 19 March 2007 and its repetition, the intention to participate in a single and continuous infringement was clear from the evidence adduced by the Commission.
As regards the fifth plea, alleging an error of law and infringement of the essential procedural requirements in the course of the procedure, the General Court rejected it as ineffective in paragraphs 283 to 293 of the judgment under appeal.
In the second place, the HSBC companies put forward a plea seeking to challenge the legality of Article 2(b) of the decision at issue, by which the Commission imposed a fine on them on account of their participation in the single and continuous infringement. The General Court found that that plea could be divided into four parts, since those companies dispute, first, the use of discounted cash receipts for the purposes of determining the value of sales, second, the gravity factor applied, third, the additional amount applied and, fourth, the assessment of the mitigating circumstances. Those companies sought, principally, the annulment of Article 2(b) of the decision at issue and, in the alternative, a reduction of the fine imposed on them.
In the context of the first part of this plea, the HSBC companies complain that the Commission based the value of sales on the basis of cash receipts under EIRDs received by those companies during the period of the infringement, to which a factor of 98.849% was applied. The General Court found that that part could be divided into three grounds for complaint; the first alleged that the Commission was wrong to take discounted cash receipts as its basis, the second alleged that the Commission was wrong to take into account cash receipts from contracts concluded before the start of the HSBC companies’ participation in the infringement, and, the third alleged that insufficient reasons were given for the 98.849% reduction factor applied by the Commission.
The General Court rejected the first and second grounds for complaint in that part. However, it upheld the third ground for complaint alleging that insufficient reasons were given for the 98.849% reduction factor applied by the Commission, and, consequently, it annulled Article 2(b) of the decision at issue and dismissed the action as to the remainder.
Procedure before the Court of Justice and forms of order sought
By their appeal, the HSBC companies claim that the Court of Justice should:
–
set aside point 2 of the operative part of the judgment under appeal;
–
annul Article 1(b) of the decision at issue and, in the alternative, annul Article 1(b) in so far as it refers to the HSBC companies’ participation in a single and continuous infringement after 19 March 2007; and
–
order the Commission to pay the costs incurred in proceedings before the General Court and the Court of Justice.
The Commission contends that the Court should dismiss the appeal and order the HSBC companies to pay all the costs.
By orders of the President of the Court of 16 July 2020, HSBC Holdings and Others v Commission (
C‑883/19 P
,
EU:C:2020:561
), and HSBC Holdings and Others v Commission (
C‑883/19 P
, not published,
EU:C:2020:601
), the applications submitted by the Crédit agricole companies and the JPMorgan Chase companies for leave to intervene in support of the forms of order sought by the HSBC companies were granted.
By order of the President of the Third Chamber of the Court of 12 August 2022, JPMorgan Services LLP, in liquidation, was removed in its capacity as intervener in the dispute. From that date, ‘the JPMorgan Chase companies’ must be understood as referring to only JPMorgan Chase & Co. and JPMorgan Chase Bank, National Association.
The application to reopen the oral part of the procedure
Following the delivery of the Advocate General’s Opinion, the HSBC companies requested, by letter of 8 July 2022, that the Court of Justice reopen the oral part of the procedure. In support of their request, those companies submit that that Opinion contains errors of fact or relates to certain aspects of the present case which must be debated so that the Court can give final judgment in that case.
It should be borne in mind that, according to Article 83 of the Rules of Procedure of the Court of Justice, that court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.
However, in the present case, the Court takes the view that it has before it all the necessary information to give judgment and that the information has been the subject of debate between the parties.
As regards the HSBC companies’ argument that the Advocate General’s Opinion contains errors of fact, the Court notes that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for parties to submit observations in response to the Advocate General’s Opinion (judgment of 8 March 2017, Viasat Broadcasting UK v Commission,
C‑660/15 P
,
EU:C:2017:178
, paragraph
and the case-law cited).
Additionally, it follows from the second paragraph of Article 252 TFEU that it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which require his or her involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions examined in that Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 8 March 2017, Viasat Broadcasting UK v Commission,
C‑660/15 P
,
EU:C:2017:178
, paragraph
and the case-law cited).
In the light of the foregoing, the Court, after hearing the Advocate General, considers that there is no need to order the reopening of the oral part of the procedure.
The appeal
In support of their appeal, the HSBC companies, supported by the interveners, rely on six grounds of appeal, alleging, in essence (i) an error of law in relation to the effects of the Commission’s infringement of the presumption of innocence and of the principles of good administration and respect for the rights of the defence, (ii) an error of law in the characterisation of the object of the manipulation of 19 March 2007 as an infringement by object within the meaning of Article 101(1) TFEU, (iii) an error of law in so far as the General Court regarded the two discussions on mids of 14 and 16 February 2007 as infringements by object, (iv) distortion of evidence in so far as it assessed the two discussions of 12 and 16 February 2007 to be infringements by object without having verified the content of those discussions, (v) errors of law in the assessment concluding that the various forms of conduct identified by the Commission pursued a single aim, and (vi) an error of law in the assessment concluding that the HSBC companies participated in a single and continuous infringement that included forms of conduct that the decision at issue had not characterised as unlawful.
The first ground of appeal
Arguments of the parties
The HSBC companies, supported by the interveners, submit that, in paragraphs 287 to 292 of the judgment under appeal, the General Court erred in law in its assessment of their fifth plea for annulment, alleging, in essence, that the adoption of the settlement decision infringed the presumption of innocence, their right to good administration and their rights of defence, in particular their right to be heard.
The HSBC companies explain that the staggered procedure followed by the Commission undoubtedly caused their liability to be prejudged and thus irremediably impaired their right to be heard. For that reason, the General Court should have annulled Article 1(b) of the decision at issue.
They allege that, by holding, in paragraph 289 of the judgment under appeal, that the procedural irregularities relied on by the HSBC companies could lead to the annulment of the decision at issue only if it were established that, but for those irregularities, that decision would have been substantively different, the General Court applied the incorrect test.
In accordance with the case-law arising from the judgment of 16 January 2019, Commission v United Parcel Service (
C‑265/17 P
,
EU:C:2019:23
, paragraph
), the General Court should have ascertained whether the Commission’s lack of objective impartiality meant that the HSBC companies had lost even a slight chance of better defending themselves. That same test should have been applied in order to examine whether the presumption of innocence and the right to good administration, enshrined in Article 41(1), Article 47(1) and Article 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), had been observed.
Moreover, the right of an undertaking to have its affairs handled impartially requires the Commission to examine carefully and impartially all the elements of the individual case. If the General Court had correctly applied that test in the present case, it would have concluded that the Commission’s lack of objective impartiality during the administrative procedure had had a decisive influence on the decision at issue. Thus, the General Court erred in law in paragraphs 289 and 292 of the judgment under appeal.
Furthermore, contrary to what is stated by the General Court in paragraph 291 of the judgment under appeal, the test applied in paragraph 289 of that judgment is not substantiated by the case-law resulting from 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
) (‘the judgment in
Suiker Unie
’).
In the alternative, the HSBC companies submit that, even if the General Court had applied the correct test in the present case, the content of the decision at issue would have been different but for the alleged procedural irregularities. That is apparent from paragraphs 165 to 195 and 263 to 274 of the judgment under appeal, in which the General Court held that the Commission had erred in material respects in the decision at issue. Those errors should have led it to annul Article 1(b) of that decision.
The Commission contends that the present ground of appeal must be rejected as unfounded.
First, the General Court correctly applied the principle of objective impartiality when it rejected the HSBC companies’ fifth plea for annulment as ineffective.
The General Court correctly concluded, in paragraph 287 of the judgment under appeal, that the issue whether any lack of objective impartiality on the part of the Commission and any infringement of the principle of the presumption of innocence with respect to the HSBC companies due to the public statements of the commissioner then in charge of competition policy or the adoption of the settlement decision were able to impact the lawfulness of the decision at issue ‘[was] indissociable from the question whether the findings made in that decision [were] properly supported by the evidence adduced by the Commission’.
Consequently, as the General Court correctly held in paragraph 289 of that judgment, an irregularity relating to objective impartiality would lead to annulment of that decision ‘only if it is established that the content of that decision would have differed if that irregularity had not occurred’.
First of all, those conclusions are consistent with the principles laid down in paragraphs 90 and 91 of the judgment in
Suiker Unie
and there is no reason to depart from those principles. Thus, only the content of the public statements of the commissioner then in charge of competition policy is relevant and not their form. Consequently, the fact that those statements were made by the commissioner or in the settlement decision is irrelevant.
Next, contrary to what is claimed by the HSBC companies, the judgment of 16 January 2019, Commission v United Parcel Service (
C‑265/17 P
,
EU:C:2019:23
), is not relevant to the present case. The HSBC companies confuse the infringement of objective impartiality with the existence of a separate right of undertakings to be heard prior to the adoption of a final decision affecting them. In the present case, the HSBC companies’ rights of defence were fully observed, in that it is not disputed that the Commission sent them a statement of objections, that they had full access to the file and that they were in a position to make known their views before the adoption of the decision at issue.
Lastly, contrary to what the HSBC companies claim, the question whether the decision at issue would have been different but for the settlement decision is a question of fact which is not relevant for assessing whether the General Court applied the correct legal test for assessing the effects of an alleged lack of objective impartiality. Thus, the conclusion in paragraph 289 of the judgment under appeal is a finding of fact which cannot be called into question at the appeal stage, with the result that the grounds for complaint raised by the HSBC companies concerning that conclusion are inadmissible. In addition, the Commission argues that, in any event, the decision at issue would not have been different if the settlement decision had not been adopted.
Second, the Commission both fulfilled its obligation of objective impartiality and observed the presumption of innocence of the HSBC companies when it adopted the settlement decision before adopting the decision at issue.
In the first place, a ‘hybrid’ process is not, as such, precluded by the principle of the presumption of innocence, which the HSBC companies expressly accept in their appeal. That finding is, moreover, confirmed by the applicable legislation and the relevant case-law of the Court of Justice and the General Court. Moreover, the settlement decision contains no finding of liability or any adverse finding affecting the HSBC companies.
In the second place, the references to the HSBC companies in the settlement decision should be assessed in the light of the procedural guarantees afforded at a later stage in the procedure. Those companies enjoyed all the proper guarantees, including the presumption of innocence, and a fair trial, before the decision at issue was adopted.
Findings of the Court
By their first ground of appeal, the HSBC companies, supported by the interveners, claim that, in paragraphs 287 to 292 of the judgment under appeal, the General Court erred in law in rejecting as ineffective their plea alleging infringement of the presumption of innocence and of the right to good administration and a failure to observe the rights of the defence.
In particular, the HSBC companies submit that the General Court applied an incorrect legal test in holding, in particular in paragraph 289 of that judgment, that the alleged irregularities, in particular those linked to an alleged lack of objective impartiality on the part of the Commission, were capable of leading to the annulment of the decision at issue only if it were established that, but for those irregularities, that decision would have been different in content.
As a preliminary point, it is necessary to reject the Commission’s arguments alleging that certain arguments raised in support of the present ground of appeal are inadmissible in so far as they seek to challenge factual assessments made by the General Court. It is clear from the wording of that ground of appeal and from all the arguments raised in support of it that the HSBC companies seek to challenge the legal test applied by the General Court when it rejected their fifth plea for annulment, which is a question of law.
As regards the fifth plea for annulment, the Court of Justice notes that, by that plea, the HSBC companies argued before the General Court that the decision at issue should be annulled on account of the fact that the settlement decision had been adopted by the Commission in breach, first, of the presumption of innocence and, second, of the right to good administration and the rights of the defence.
In that regard, it should be borne in mind that the Commission is required, during the administrative procedure, to respect the fundamental rights of the undertakings concerned. On that basis, the principle of impartiality, which is part of the right to good administration, must be distinguished from the presumption of innocence (see, to that effect, judgment of 18 March 2021, Pometon v Commission,
C‑440/19 P
,
EU:C:2021:214
, paragraphs
and
).
The right to good administration, enshrined in Article 41 of the Charter provides that every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union. That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (see, to that effect, judgment of 18 March 2021, Pometon v Commission,
C‑440/19 P
,
EU:C:2021:214
, paragraphs
and the case-law cited).
The presumption of innocence constitutes a general principle of EU law, laid down in Article 48(1) of the Charter. That principle of impartiality applies, having regard to the nature of the infringements in question and to the nature and degree of severity of the ensuing penalties, to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, judgment of 18 March 2021, Pometon v Commission,
C‑440/19 P
,
EU:C:2021:214
, paragraphs
and
and the case-law cited).
In accordance with Article 48 of the Charter, read in the light of Article 6(2) and (3) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), which it is necessary to take into account, under Article 52(3) of the Charter, for the purposes of interpreting Article 48 of the Charter, the principle of the presumption of innocence will be infringed if a judicial decision or a statement by a public official concerning a person charged with a criminal offence contains a clear declaration, in the absence of a final conviction that the person concerned has committed the crime in question. In that context, the Court emphasises the importance of the choice of words by the judicial authorities and of the particular circumstances in which they were made and the importance of the nature and context of the proceedings at issue (see, to that effect, judgment of 18 March 2021, Pometon v Commission,
C‑440/19 P
,
EU:C:2021:214
, paragraphs
and
and the case-law cited).
In complex criminal proceedings involving several persons who cannot be tried together, references by the competent court 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 reasoning of 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 (judgment of 18 March 2021, Pometon v Commission,
C‑440/19 P
,
EU:C:2021:214
, paragraph
and the case-law cited).
In the present case, in paragraphs 283 to 286 of the judgment under appeal, the General Court recalled, in essence, the principle of the presumption of innocence and the right to good administration, in accordance with the case-law referred to in paragraphs 77 and 78 of the present judgment.
In paragraph 287 of the judgment under appeal, the General Court concluded that the issue whether any lack of objective impartiality on the part of the Commission which may have arisen from an infringement of the presumption of innocence with respect to the HSBC companies when the settlement decision was adopted was able to impact the lawfulness of the decision at issue was indissociable from the question whether the findings made in that decision were properly supported by the evidence adduced by the Commission.
In that context, in paragraphs 289 and 291 of that judgment, the General Court held, referring in particular to the judgment in
Suiker Unie
, that the irregularity relating to a possible lack of objective impartiality on the part of the Commission would lead to annulment of the decision at issue only if it is established that the content of that decision would have differed if that irregularity had not occurred.
In paragraph 289 of that judgment, it held that, in the present case, as a result of a comprehensive review of the relevant grounds of that decision, with the exception of the aspects mentioned in paragraph 288 of the judgment under appeal, the Commission had established to the requisite legal standard the participation of the HSBC companies in the infringement at issue. Consequently, it concluded that there was no reason to assume that, if the settlement decision had not been adopted before the decision at issue, the content of the latter would have been different and rejected the plea summarised in paragraph 75 of the present judgment as ineffective.
However, such reasoning is vitiated by two errors of law.
First, the General Court disregarded the distinction, referred to in paragraph 76 of the present judgment, that must be made between the presumption of innocence and the right to good administration, in so far as, as is apparent from paragraph 287 of the judgment under appeal and the paragraphs that follow it, it found the HSBC companies’ line of argument alleging infringement of the presumption of innocence solely from the point of view of the Commission’s lack of objective impartiality. As is apparent from paragraph 77 of the present judgment, the requirement of objective impartiality constitutes only one aspect of the right to good administration.
Second, the General Court also erred in law in holding, in essence, that the irregularities relating to the presumption of innocence in the context of the adoption of the settlement decision could lead to the annulment of the decision at issue only if it were established that, but for those irregularities, the content of the decision at issue would have been different.
The presumption of innocence, interpreted as prescribed in paragraphs 79 and 80 of the present judgment, also applies where the Commission adopts, in relation to one and the same cartel, two decisions which have different addressees following two separate procedures, namely, first, a decision taken following a settlement procedure and addressed to the undertakings which have entered into a settlement agreement and, second, a decision taken at the end of an ordinary procedure and addressed to the other undertakings having participated in the cartel (see, to that effect, judgment of 18 March 2021, Pometon v Commission,
C‑440/19 P
,
EU:C:2021:214
, paragraph
).
In such a case, described as a ‘hybrid’ procedure, which leads to the adoption of successive decisions, it may be objectively necessary for the Commission to address, in the decision terminating the settlement procedure, certain facts and behaviour concerning participants in the alleged cartel which are the subject of the standard procedure. It is nevertheless for the Commission to ensure, in the decision concluding the settlement procedure, to preserve the presumption of innocence of undertakings which have refused to enter into a settlement and which are the subject of an ordinary procedure (see, to that effect, judgment of 18 March 2021, Pometon v Commission,
C‑440/19 P
,
EU:C:2021:214
, paragraph
).
Accordingly, 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 (see judgment of 18 March 2021, Pometon v Commission,
C‑440/19 P
,
EU:C:2021:214
, paragraph
).
It follows that, since the HSBC companies alleged before it an infringement of the presumption of innocence as a result of the adoption of the settlement decision, the General Court could not merely reject those arguments as ineffective on the ground that it had not been established that, but for the alleged irregularities, the content of the decision at issue would have been different.
In the light of what has been stated in paragraph 90 of the present judgment, the General Court was therefore required to analyse the decision that closed the settlement procedure and its reasoning in its entirety, in the light of the particular circumstances in which that decision had been adopted, in order to ascertain whether, as the HSBC companies claimed, that decision could be understood as a premature expression of their liability.
Accordingly, by holding that the irregularities relating to the presumption of innocence in the context of the adoption of the settlement decision could lead to the annulment of the decision at issue only if it were established that, but for those irregularities, the content of the decision at issue would have been different, the General Court applied an incorrect test which led it not to examine whether the adoption of the settlement decision had undermined observance of the presumption of innocence in the procedure that led to the adoption of the decision at issue.
In that regard, the Commission cannot maintain that the approach taken by the General Court in the judgment under appeal was consistent with the case-law of the Court of Justice, in particular the judgment in
Suiker Unie
.
As the Advocate General observed in points 60 to 62 of his Opinion, an infringement by the Commission of the principle of impartiality and of the presumption of innocence in the context of the ‘hybrid’ procedure at issue in the present case constitutes a sufficiently serious infringement capable of vitiating the entire procedure that led to the adoption of the decision at issue. Such an irregularity, the effect of which is to disregard the fundamental rights of the undertakings concerned in the context of that procedure, cannot be compared to the type of errors the gravity of which is liable to have little influence on the final decision, such as the error at issue in the case that gave rise to the judgment in
Suiker Unie
, which, moreover, did not relate to a ‘hybrid’ procedure.
Accordingly, the General Court could not evade the obligation to examine the settlement decision in order to determine whether that decision observed that principle on the ground that it had not been established that the content of the decision at issue would have been different but for the settlement decision, for otherwise the presumption of innocence would be deprived of all meaning.
In the light of the findings above, the first ground must be upheld.
The second ground of appeal
Arguments of the parties
The HSBC companies, supported by the interveners, claim that the General Court erred in law in concluding that the attempted manipulation of the three-month tenor of Euribor (the 3m Euribor) on 19 March 2007 fell within the definition of an infringement by object under Article 101(1) TFEU.
In particular, in the light of the case-law of the Court of Justice, the General Court incorrectly held, in paragraphs 101 and 102 of the judgment under appeal, that the mere possibility that the parties to that manipulation might offer better conditions than their competitors was sufficient to conclude that that manipulation revealed a sufficient degree of harm to competition giving rise to an infringement by object. The informational asymmetry to which the General Court refers could restrict or distort normal competition on the fixed and/or variable rates of EIRDs only if that information gave traders the ability and incentive to offer more competitive rates. The theoretical ability to offer more competitive rates does not establish that the manipulation on 19 March 2007 was, in itself, harmful to the proper functioning process of competition for EIRDs.
Accordingly, the Commission failed to examine, either in the statement of objections or in the decision at issue, whether knowledge of the manipulation of 19 March 2007 gave traders the incentive to offer more competitive rates than their competitors.
The HSBC companies adduced evidence in that regard, namely the HSBC companies’ expert report, which was not challenged by the Commission. The General Court’s finding in paragraph 101 of the judgment under appeal that that evidence contained only general assertions is a manifest distortion of that evidence. In any event, there was no evidence before the General Court establishing, or even suggesting, that traders involved in the manipulation of the 3m Euribor rate had incentives to offer more competitive rates. The General Court appears to have considered, in paragraph 103 of the judgment under appeal, that it was sufficient in this regard to find that it was in the participating traders’ interest to modify their trading positions in the light of their knowledge of the manipulation. On the contrary, the traders had no incentive to adjust their prices to reflect that manipulation.
Consequently, the General Court erred in law, in paragraph 111 of the judgment under appeal, in finding that the manipulation of 19 March 2007 constituted a restriction by object.
The Commission claims that that ground is ineffective.
Findings of the Court
As a preliminary point, the Commission’s argument that the present ground is ineffective must be rejected. It is true that that ground of appeal relates essentially to paragraphs 101 and 102 of the judgment under appeal, in which the General Court rejected some of the arguments put forward by the HSBC companies to challenge the characterisation of the Euribor manipulation of 19 March 2007 as a restriction of competition by object. However, that ground of appeal relates more broadly to whether the General Court was entitled to find, at the end of its assessment in paragraph 85 of that judgment and the paragraphs that follow it, that that manipulation revealed a sufficient degree of harm to competition, in view of the fact relied on by the HSBC companies that the traders concerned had no interest in offering more competitive rates than their competitors.
By the second ground of appeal, the HSBC companies therefore claim, in essence, that the General Court erred in law by confirming the Commission’s characterisation of that manipulation as an infringement by object.
In that respect, the Court notes that, according to the case-law of the Court of Justice, the essential legal criterion for ascertaining whether an agreement involves a restriction of competition ‘by object’ is the finding that such an agreement reveals in itself a sufficient degree of harm to competition for it to be considered that it is not necessary to assess its effects (judgments of 26 November 2015, Maxima Latvija,
C‑345/14
,
EU:C:2015:784
, paragraph
, and of 2 April 2020, Budapest Bank and Others,
C‑228/18
,
EU:C:2020:265
, paragraph
).
In order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition to be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (judgment of 2 April 2020, Budapest Bank and Others,
C‑228/18
,
EU:C:2020:265
, paragraph
and the case-law cited).
In the present case, it is clear from the findings of fact made by the General Court in paragraphs 85 to 90 of the judgment under appeal that the manipulation of 19 March 2007 consisted of submitting low quotes for the 3m Euribor with a view to reducing that rate on that date for the purpose of making a gain on a category of EIRDs, namely interest rate futures linked to the 3m Euribor. According to those findings, which are not challenged by the HSBC companies, that manipulation consisted of gradually gaining a very large ‘buyer’ exposure, in respect of which the bank thus receives the fixed rate and pays the variable rate, and reducing the level of the variable rate at the maturity date by concerted action.
In paragraphs 92 and 93 of the judgment under appeal, the General Court took into account, in accordance with the case-law referred to in paragraph 107 above, the findings made by the Commission in the decision at issue relating to the functioning of the EIRD market and the determination of the cash flows on that market. Accordingly, it noted that the Euribor rate, which was the subject of the manipulation of 19 March 2007, directly determined the cash flows payable under the ‘variable leg’ of EIRDs and was also relevant for the determination of the cash flows payable under the ‘fixed leg’ of EIRDs.
It follows from those paragraphs of the judgment under appeal that the Commission’s characterisation of that manipulation as an infringement by object was essentially based on a restriction of competition created by an informational asymmetry between market participants, since participants in the manipulation, first, were better able to know in advance with a certain accuracy at what level Euribor would be and/or was intended to be set by their colluding competitors and, second, knew whether or not the Euribor on a given day was at artificial levels.
The Court of Justice must therefore find that the General Court was entitled to conclude that, for those reasons, the characterisation of the manipulation of 19 March 2007 as a restriction by object could be upheld.
It follows from paragraphs 59 to 67 of the judgment under appeal that the General Court was right to rely on the case-law of the Court of Justice relating to exchanges of information between competitors.
According to that case-law, the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he or she intends to adopt on the common market (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission,
C‑286/13 P
,
EU:C:2015:184
, paragraph
and the case-law cited).
While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission,
C‑286/13 P
,
EU:C:2015:184
, paragraph
and the case-law cited).
The Court has therefore held that the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission,
C‑286/13 P
,
EU:C:2015:184
, paragraph
and the case-law cited).
In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission,
C‑286/13 P
,
EU:C:2015:184
, paragraph
and the case-law cited).
In the present case, as the General Court held in paragraphs 95 to 97 of the judgment under appeal, the asymmetry of information resulting from the manipulation of 19 March 2007 did not correspond to the normal conditions of the market at issue in that it related to a variable that is essential to competition on the EIRD market, namely the variable rate relevant to determining cash flows on that market. Therefore, that manipulation led to the removal of uncertainties in the mind of the cartel participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market, to the detriment of their competitors who were not informed of that manipulation. The General Court noted, in that regard, with regard in particular to the HSBC companies, that when the traders negotiated the ‘fixed leg’ of the contracts at issue, they were in a position to do so knowing that the variable rate would be low.
That manipulation thus reduced or removed the degree of uncertainty as to the operation of the market in question causing competition between undertakings to be restricted, with the result that the General Court was correct to find that it revealed a sufficient degree of harm to competition to be characterised as an infringement ‘by object’.
That conclusion is not called into question by the HSBC companies’ argument that, contrary to what the General Court found in paragraph 96 of the judgment under appeal, it was not in the interest of the cartel participants to propose more competitive rates than those of competitors when they were aware that the cash flows linked to the contracts at issue were positive.
In that regard, as is apparent from the case-law of the Court of Justice, a concerted practice may have an anticompetitive object even though there is no direct connection between that practice and consumer prices. Indeed, it is not possible on the basis of the wording of Article 101(1) TFEU to conclude that only concerted practices which have a direct effect on the prices paid by end users are prohibited. On the contrary, it is apparent from Article 101(1)(a) TFEU that concerted practices may have an anticompetitive object if they ‘directly or indirectly fix purchase or selling prices or any other trading conditions’ (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
and
and the case-law cited).
In any event, Article 101 TFEU, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such. Therefore, in order to find that a concerted practice has an anticompetitive object, there does not need to be a direct link between that practice and consumer prices (see, by analogy, judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission,
C‑286/13 P
,
EU:C:2015:184
, paragraph
and the case-law cited).
In the present case, it is not disputed by the HSBC companies that, as the General Court found in paragraphs 100 and 101 of the judgment under appeal, the cash flows generated by an EIRD result from the netting of payments payable under the ‘fixed leg’ and the ‘variable leg’ of the EIRD. Thus, the General Court was fully entitled to find that the fact of benefiting from advanced information on the variable rate applicable to the relevant dates put traders of the banks participating in the infringement in a position to determine the fixed rate that they should propose in order to ensure the profitability of EIRDs.
As regards the case-law of the Court of Justice referred to, inter alia, in paragraph 116 above, such a finding was sufficient for it to be concluded that conduct had occurred that did indeed constitute distortion of the competitive process on the EIRD market, without it being relevant, in that regard, to determine whether the traders concerned had a commercial interest in determining the variable rate at a particular level.
It is apparent from the findings of the General Court which are not disputed by the HSBC companies that, in the light of the functioning of the EIRD market, the setting of a lower variable rate was due solely to the commercial interest of the traders concerned not to compete on the merits. By agreeing on the level of a variable capable of determining the fixed rate of EIRDs, they knowingly substituted practical cooperation between them for the risk of competition, which falls within the characterisation of a restriction by object.
Accordingly, without it being necessary to rule on the argument that the General Court distorted the evidence put forward by the HSBC companies, the Court must hold that the General Court did not err in law in finding, in paragraph 111 of the judgment under appeal, that the manipulation of 19 March 2007 constituted a restriction by object within the meaning of Article 101(1) TFEU.
Accordingly, the second ground must be rejected as unfounded.
The third ground of appeal
Arguments of the parties
By their third ground of appeal, the HSBC companies, supported by the interveners, dispute the General Court’s assessment in paragraphs 149 to 160 of the judgment under appeal relating to the conversations on mids which took place on 14 and 16 February 2007.
The General Court erred in law, in particular in paragraphs 154 and 157 to 160 of the judgment under appeal, by examining their arguments relating to the procompetitive effects of the exchanges of information on those prices in the light of the doctrine of ‘ancillary restraints’. The General Court should instead have referred to the case-law on the concept of ‘restriction by object’, which would have led it to analyse those arguments in the economic and legal context of the conduct at issue.
Neither the HSBC companies nor the Commission relied on that doctrine before the General Court, which is not relevant in the present case. Rather, that doctrine refers to conduct that is part of a particular commercial operation or activity on a market, such as the sale of a business or a franchising agreement. Furthermore, the same doctrine is not the only circumstance in which an argument based on the procompetitive nature of given conduct can be assessed.
In their reply, the HSBC companies submit that, after the appeal was lodged, the Court confirmed, in the judgments of 30 January 2020, Generics (UK) and Others (
C‑307/18
,
EU:C:2020:52
, paragraph
), and of 2 April 2020, Budapest Bank and Others (
C‑228/18
,
EU:C:2020:265
, paragraphs
,
,
and
), that, where the parties to an agreement rely on its procompetitive effects, those effects must, as elements of the context of that agreement, be duly taken into account when determining whether it has the object of restricting competition.
Accordingly, the HSBC companies criticise the General Court for failing to take into account the procompetitive effects of the discussions on mids as a relevant part of the context because it incorrectly regarded those effects as irrelevant to Article 101(1) TFEU, save in the context of the ‘ancillary restraints’ doctrine.
The procompetitive effects of the discussions concerned were demonstrated by HSBC’s expert report. That piece of evidence satisfies the requirements arising from the judgment of 30 January 2020, Generics (UK) and Others (
C‑307/18
,
EU:C:2020:52
, paragraph
), with the result that the General Court was incorrect not to examine it. In addition, the General Court did not point to any other evidence of solid and reliable experience to show that the exchanges on mids were by their nature sufficiently harmful to competition.
The Commission claims that the General Court was correct in confirming that exchanges on mids constitute an infringement by object within the meaning of Article 101(1) TFEU. The HSBC companies’ line of argument is based on a partial and erroneous reading of the judgment under appeal.
In paragraphs 128 to 139 of that judgment, the General Court responded to the HSBC companies’ arguments that the exchanges on mids had procompetitive effects and confirmed the Commission’s finding that those prices represented the individual perception of the market price by the trader. Next, in paragraphs 128 to 148 of the judgment under appeal, which are not disputed by the HSBC companies, the General Court examined to what extent mids were relevant for pricing in the EIRD sector and the reasons why the exchanges in question, in particular those of 14 and 16 February 2007, constituted infringements by object. In that context, in paragraphs 154 and 157 to 160 of the judgment under appeal, the General Court assessed those exchanges in the light of the ‘ancillary restraints’ doctrine, after finding that those exchanges fell within the scope of Article 101(1) TFEU. The HSBC companies do not dispute that reasoning.
The HSBC companies’ arguments that the General Court erred in law by failing to take account of the procompetitive elements of the exchanges at issue in its assessment of the economic and legal context are in any event unfounded. Those arguments are not such as to give rise to reasonable doubt that those exchanges were indeed sufficiently harmful to competition to be characterised as a restriction of competition by object.
In its rejoinder, the Commission submits that the judgments of 30 January 2020, Generics (UK) and Others (
C‑307/18
,
EU:C:2020:52
), and of 2 April 2020, Budapest Bank and Others (
C‑228/18
,
EU:C:2020:265
), are not capable of substantiating the HSBC companies’ argument. In addition, the HSBC companies’ reference to their expert report is inconsequential, since that report was correctly found not to be relevant in paragraph 101 of the judgment under appeal. Furthermore, contrary to what those companies claim, the Commission did not recharacterise the exchanges at issue, but relied on the case-law of the Court of Justice relating to practices which are capable of removing the degree of uncertainty of competitors on the market. Lastly, even if the Court were to conclude that the General Court erred in law by failing to take account of procompetitive effects, that conclusion could not lead the judgment under appeal to be set aside. The HSBC companies’ argument that the exchanges are procompetitive does not reasonably cast doubt on the Commission’s finding that the exchanges were intended to distort competition.
Findings of the Court
As regards the exchanges on mids, which form the subject matter of the present ground, the General Court held, in paragraph 138 of the judgment under appeal, that the Commission had not erred in finding that the exchanges in the discussions of 14 and 16 February 2007 had an object that restricted competition.
By the present ground, the HSBC companies claim that the General Court applied an incorrect test in order to reject their arguments based on the claim that those exchanges had procompetitive effects capable of calling into question the characterisation of those exchanges as a restriction by object. They complain, in essence, that the General Court relied on the doctrine of ‘ancillary restraints’, resulting in particular from the judgment of 11 July 1985, Remia and Others v Commission (
42/84
,
EU:C:1985:327
), and of 11 September 2014, MasterCard and Others v Commission (
C‑382/12 P
,
EU:C:2014:2201
).
In that regard, the Court held that, where the parties to an agreement rely on its procompetitive 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’, 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 and, consequently, of whether it should be characterised as a ‘restriction by object’ (judgment of 30 January 2020, Generics (UK) and Others,
C‑307/18
,
EU:C:2020:52
, paragraph
).
Since taking account of those procompetitive effects is intended not to undermine characterisation as a ‘restriction of competition’ within the meaning of Article 101(1) TFEU, but merely to appreciate the objective seriousness of the practice concerned and, consequently, to determine the means of proving it, that is in no way in conflict with the Court’s settled case-law that EU competition law does not recognise a ‘rule of reason’, by virtue of which there should be undertaken a weighing of the pro and anticompetitive effects of an agreement when it is to be characterised as a ‘restriction of competition’ under Article 101(1) TFEU (judgment of 30 January 2020, Generics (UK) and Others,
C‑307/18
,
EU:C:2020:52
, paragraph
and the case-law cited).
It follows from that case-law that the General Court erred in law in holding, in paragraph 154 of the judgment under appeal, 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 procompetitive effects can be taken into account.
In so doing, the General Court applied an incorrect test by holding, in paragraph 155 of the judgment under appeal, that it was therefore for the HSBC companies either to show that the discussions on mids were directly related and necessary to the functioning of the EIRD market or that they met the conditions in Article 101(3) TFEU.
Such an error led it not to examine the HSBC companies’ arguments that the exchanges on mids had procompetitive effects, whereas those exchanges had been raised by those companies in order to call into question the characterisation of those exchanges as a restriction by object.
Accordingly, the third ground must be upheld.
The fourth ground of appeal
Arguments of the parties
By this ground of appeal, the HSBC companies criticise paragraph 164 of the judgment under appeal, in which the General Court held that the discussion of 12 February 2007 was part of the manipulation of 19 March 2007 and therefore constituted an infringement of Article 101 TFEU, as was the discussion of 16 February 2007 to the extent that the exchange related to mids. By relying solely on that reason in order to conclude that it was not necessary to ascertain whether the discussions of 12 and 16 February 2007 could also be characterised as an infringement by object, the General Court manifestly distorted the evidence before it.
The HSBC companies claim that the discussion of 12 February 2007 covered two separate conversations between the two traders concerned, which is why those companies, in their action for annulment, distinguished between those two conversations. If the General Court had treated the first conversation as being distinct from the second – as it should have done – it would necessarily have concluded that that first conversation did not constitute an infringement of Article 101 TFEU.
As regards the discussion of 16 February 2007, the General Court made an error of law and of assessment which was similar to the one referred to in the preceding paragraph, in so far as two separate conversations were held on that day, namely, one conversation on mids and a second conversation on an isolated historic trade and a current trading position. As the General Court itself acknowledged in paragraph 124 of the judgment under appeal, the first discussion was the subject of the first ground for complaint put forward in the second part of the first plea for annulment and the second discussion was challenged in the second ground for complaint in that same part. For the reasons given in the action for annulment, that second discussion is not such as to restrict or distort competition.
The Commission claims that the present ground is ineffective and, in any event, unfounded.
Findings of the Court
By the present ground of appeal, the HSBC companies take issue with paragraph 164 of the judgment under appeal, by which the General Court held, in essence, that the discussions of 12 and 16 February 2007 were either connected to the manipulation of 19 March 2007 or related to mids, which substantiated why the Commission was fully entitled to characterise those discussions as restrictions by object. They claim that that conclusion was reached through a distortion of the evidence.
In that regard, the Court finds that, as the Commission submits, that ground is ineffective.
Even if, as the HSBC companies claim, the discussions of 12 and 16 February 2007 should be understood as having covered several subjects some of which did not relate to the manipulation of 19 March 2007 or mids, those companies do not dispute that those discussions had, at least in part, an anticompetitive object in connection with that manipulation.
Consequently, that ground cannot lead the judgment under appeal to be set aside and must therefore be rejected as ineffective.
The fifth ground of appeal
Arguments of the parties
By that ground, the HSBC companies, supported by the interveners, dispute paragraphs 214 to 229 of the judgment under appeal, in which the General Court held that the various forms of conduct identified by the Commission pursued a single aim.
The HSBC companies acknowledge that, as the General Court correctly stated in paragraph 216 of that judgment, the concept of a ‘single aim’ cannot be determined by a general reference to the distortion of competition in a given sector, since such an interpretation would deprive the concept of a ‘single and continuous infringement’ of a part of its meaning. Furthermore, the HSBC companies do not contest the statement in paragraph 217 of that judgment, according to which only restrictions of competition whose aim has been established to be the distortion of the normal course of either the fixed rate or the variable rate of EIRDs can have the single aim found by the Commission.
However, the HSBC companies claim that the General Court incorrectly assessed whether the conduct of the HSBC companies connected with the manipulation of 19 March 2007, in so far as that manipulation related to submissions to Euribor, the other exchanges on trading positions and EIRD pricing intentions and strategies, pursued a single aim.
First, if the Court upholds the second ground of the present appeal, it follows that the General Court made an error in law in concluding, in paragraphs 219 and 220 of the judgment under appeal, that the manipulation on 19 March 2007 pursued the single anticompetitive aim identified by the General Court in paragraph 217 of that judgment.
Second, in any event, the General Court erred in law in paragraphs 221 to 225 of that judgment by finding that the anticompetitive object of the discussion of 27 March 2007 was not contested.
The HSBC companies never conceded that that discussion had such an anticompetitive object and the Commission made no such finding in the decision at issue. Rather, the only part of the 27 March 2007 discussion that that decision identified as forming part of the single and continuous infringement was the exchange of information regarding the size of the Barclays traders’ trading position for the 19 March 2007 manipulation. Thus, even though the General Court correctly held, in paragraph 225 of the judgment under appeal, that different manipulations of reference rates may, in principle, have the same single aim, it substituted its own reasoning for that of the Commission and thus exceeded the limits of its review by holding that the discussion of 27 March 2007 pursued that single aim.
Third, as regards the exchanges relating to trading positions, pricing intentions and strategies, the General Court incorrectly stated in paragraph 228 of the judgment under appeal that the discussions of 14 and 16 February 2007, which related to mids, had the common objective of distorting the normal course of either the fixed rate or the variable rate of EIRDs. There is nothing in paragraphs 139 to 161 of the judgment under appeal to indicate that the discussions on mids pursued such an objective. If, contrary to what the HSBC companies claim in the context of the third ground of appeal, the General Court was right to find that the object of those discussions was anticompetitive, the objective of those discussions was not to distort the normal course of the fixed or variable rate of EIRDs, as described in paragraph 217 of the judgment under appeal. The mechanism described in paragraphs 139 to 161 of that judgment refers to a situation that is different from that of distorting EIRD prices.
According to the HSBC companies, paragraph 228 of the judgment under appeal is therefore based on an error of law. The Court should have found that if the two conversations on mids were to be regarded as restricting competition by object – which those companies dispute in the third ground of appeal – those conversations nevertheless pursued an aim that is different from the aim of the manipulation on 19 March 2007.
The Commission submits that the present ground must be rejected as inadmissible, since it amounts to asking the Court to carry out a new assessment of the facts and evidence. In any event, according to the Commission, taken individually, the arguments of the HSBC companies in support of that ground are either inadmissible, ineffective or unfounded.
Findings of the Court
By the present ground of appeal, the HSBC companies call into question the General Court’s findings which led it to conclude that some of their conduct had the single aim identified by the Commission, as described in paragraph 217 of the judgment under appeal, which was a constituent element of a single and continuous infringement.
In the first place, as regards the discussion of 27 March 2007 relating to the possibility of a future manipulation of reference rates, the HSBC companies submit, first, that the General Court relied on an incorrect premiss in paragraph 222 of the judgment under appeal, by stating that the object that restricted competition pursued by that discussion was not disputed by those companies.
In the present appeal, the HSBC companies merely maintain that they have never accepted that that discussion had such an object. However, as the General Court pointed out in paragraph 222 of the judgment under appeal, it is common ground that they did not put forward any plea for annulment challenging the fact that the end of the infringement period established in respect of them had been set at 27 March 2007, that is to say, the date of the discussion at issue. In the light of the General Court’s findings in paragraphs 216 and 217 of that judgment, which are not disputed by the HSBC companies, such a finding necessarily implied that that discussion pursued an objective that restricted competition.
Under Article 127(1) of the Rules of Procedure, which is applicable to the appeal proceedings under Article 190 of those rules, fresh submissions not contained in the original application may not be raised in an appeal, with the result that the HSBC companies’ line of argument is inadmissible (see, to that effect, judgment of 23 November 2000, British Steel v Commission,
C‑1/98 P
,
EU:C:2000:644
, paragraph
and the case-law cited).
Second, by submitting, through their line of argument, that the conclusion in paragraph 222 of the judgment under appeal runs counter to the findings in the decision at issue, the HSBC companies claim, in essence, that the General Court distorted that decision.
According to the Court of Justice’s settled case-law, where an appellant alleges distortion of the evidence by the General Court, he or she must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 168(1)(d) of its Rules of Procedure, indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led to such distortion. In addition, that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (judgment of 30 November 2016, Commission v France and Orange,
C‑486/15 P
,
EU:C:2016:912
, paragraph
and the case-law cited).
In the present case, it is not obvious from the evidence put forward by the HSBC companies that, in paragraph 222 of the judgment under appeal, the General Court distorted recitals 339, 358 and 491 of the decision at issue.
Accordingly, the HSBC companies’ line of argument relating to the discussion of 27 March 2007 is inadmissible.
In the second place, as regards the discussions of 14 and 16 February 2007 relating to the pricing of mids, it should be noted that, by their line of argument, the HSBC companies dispute the factual assessments made by the General Court relating to the objective pursued by those discussions.
However, such a line of argument is inadmissible at the appeal stage.
Having regard to the foregoing, the fifth ground must be rejected as inadmissible.
The sixth ground of appeal
Arguments of the parties
By that ground of appeal, the HSBC companies challenge the General Court’s conclusion in paragraphs 255 to 262 of the judgment under appeal that those companies were aware that they were participating in a single and continuous infringement that encompassed not only the manipulation of 19 March 2007 but also the discussions that took place on 19 and 27 March 2007 on the prospect of repeating that manipulation.
They state that that ground of appeal, the treatment of which does not depend entirely on the treatment of the fifth ground of appeal, concerns the awareness that those companies had of a single and continuous infringement continuing until 27 March 2007, irrespective of whether the discussion relating to the repeat of the manipulation on that date pursued the single aim identified by the General Court.
In the light of the principles applicable to the concept of a ‘single and continuous infringement’ which, according to the HSBC companies, were correctly recalled in paragraphs 198, 260 and 261 of the judgment under appeal, the General Court’s conclusion that those companies participated in a single and continuous infringement which went on until 27 March 2007 is based on the premiss that the reference made on 27 March 2007 to the prospect of repeating the manipulation itself constitutes, first, an infringement within the meaning of Article 101(1) TFEU and, second, a ‘special positive measure’ within the meaning of the case-law relied on by the General Court.
However, the decision did not state anywhere that any discussion as to ‘any potential repeat’ of the manipulation of 19 March 2007 had to be regarded as infringing conduct for the purposes of Article 101(1) TFEU.
In that context, according to the HSBC companies, the General Court could not conclude, without unlawfully substituting its own reasoning for that of the Commission, that their participation in the single and continuous infringement continued until 27 March 2007, solely on the basis of the reference to the prospect of repeating the manipulation made in the course of the meeting that took place on that date.
Nor, moreover, can the exchange of information of 27 March 2007 concerning trading positions be regarded as a ‘special positive measure’, within the meaning of the case-law stemming from the judgment of 10 November 2017, Icap and Others v Commission (
T‑180/15
,
EU:T:2017:795
, paragraph
) which would justify a finding that the infringement continued beyond 19 March 2007. Although that exchange of information took place on 27 March 2007, it could not have had any effects other than the effects of the manipulation of 19 March 2007.
It follows that the conclusion in paragraph 273 of the judgment under appeal that the HSBC companies’ participation in a single and continuous infringement could be upheld in respect of the conduct of other banks forming part of the manipulation of 19 March 2007 and any potential repeat of that manipulation is based on an error of law.
Moreover, that conclusion is based on a division of and failure to take account of the findings of the decision at issue, which is not permitted by the case-law of the Court and which in itself constitutes an error of law.
The Commission claims that the treatment of the present ground depends entirely on the way in which the fifth ground is dealt with and that the present ground must therefore be rejected for the same reasons.
Findings of the Court
By the present ground of appeal, the HSBC companies criticise the General Court’s assessments in paragraphs 255 to 262 of the judgment under appeal concerning the discussion of 27 March 2007.
In their reply, they state that that ground does not concern whether that discussion pursued the single aim identified by the General Court.
However, the Court notes that the line of argument put forward by the HSBC companies in support of that ground seeks, in essence, to argue that the General Court erred in finding that that discussion pursued an anticompetitive object.
Accordingly, it must be held that the present ground is inadmissible for the same reasons that the fifth ground is inadmissible.
Conclusion on the appeal
Since the first and third grounds of appeal have been upheld, the judgment under appeal must be set aside in so far as it dismisses, in point 2 of the operative part, the HSBC companies’ action for annulment of Article 1 of the decision at issue and, in the alternative, of Article 1(b) of that decision. However, the judgment under appeal stands in so far as it annuls Article 2(b) of that decision in point 1 of the operative part.
The action before the General Court
According to the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.
As is apparent from paragraph 42 of the judgment under appeal, in their action, the HSBC companies submitted, first, a claim for annulment of Article 1 of the decision at issue and, in the alternative, of Article 1(b) of that decision. Second, they sought annulment of Article 2(b) of that decision and variation of the amount of the fine imposed under that article.
As regards the claims for annulment of Article 1 of the decision at issue and, in the alternative, of Article 1(b) of that decision, the HSBC companies put forward five pleas in law, as summarised by the General Court in paragraphs 48 to 51 of the judgment under appeal, which concern:
–
the Commission’s finding of an infringement by object (first plea);
–
the Commission’s finding of a single and continuous infringement (second to fourth pleas);
–
breach of the presumption of innocence, of the right to good administration and of the rights of the defence (fifth plea).
In view, in particular, of the fact that those pleas were the subject of an exchange of arguments before the General Court and an examination of them does not require any further measure of organisation of procedure or inquiry to be taken in the case, the Court of Justice considers that the state of the proceedings in Case T‑105/17 is such that it may give final judgment in the case as regards those pleas and that it should do so (see, to that effect, judgment of 4 March 2021, Commission v Fútbol Club Barcelona,
C‑362/19 P
,
EU:C:2021:169
, paragraph
).
The first plea in law, concerning the finding of an infringement by object within the meaning of Article 101(1) TFEU
First part of the plea, disputing the finding of restriction of competition by object applied to the manipulation of Euribor on 19 March 2007
For the same reasons as those set out in paragraphs 85 to 114 of the judgment under appeal, which the Court proposes to uphold, and in the light of paragraphs 104 to 126 of the present judgment, that first part must be rejected.
Second part of the plea, relating to the finding of an infringement by object applied to other forms of conduct alleged against the HSBC companies
As the General Court noted in paragraph 124 of the judgment under appeal, the HSBC companies’ line of argument can be divided into two grounds for complaint, the first of which relates to the merits of the finding of restriction by object applied by the Commission to discussions that it described as exchanges on mids and the second of which relates to the merits of the equivalent finding applied to discussions that it described as exchanges on trading positions.
–
Ground for complaint contesting the merits of the finding of restriction by object applied to the exchanges on mids
The HSBC companies dispute the merits of the finding of restriction by object applied to the exchanges on mids, namely the discussions of 14 and 16 February 2007. First, such exchanges do not restrict competition, since mids do not constitute the price or a pricing component of an interest rate derivative. Second, those exchanges made it possible to offer more favourable terms to customers. In that regard, the decision at issue is vitiated by manifest errors of assessment and a failure to state reasons.
The Commission contends that that ground for complaint should be rejected.
As regards the arguments claiming that the exchanges on mids did not restrict competition in view of the nature of mids, the Court of Justice, adopting the reasoning set out in paragraphs 139 to 148 of the judgment under appeal, takes the view that the Commission did not err in finding that those exchanges pursued an aim that restricted competition.
As regards the line of argument that those exchanges were procompetitive, it follows from paragraphs 139 and 140 of the present judgment that the purpose of taking into account the procompetitive effects of a given practice is not to reject the characterisation of that practice as a ‘restriction of competition’ within the meaning of Article 101(1) TFEU. Such effects must nevertheless be duly taken into account as part of the context of that practice for the purposes of characterising it as a ‘restriction by object’, in so far as those effects are capable of calling into question the overall assessment of whether the practice concerned is sufficiently harmful to competition.
However, the Court of Justice has held that taking into consideration such matters presupposes that the procompetitive effects are not only demonstrated and relevant, but also specifically related to the agreement concerned. Further, the mere existence of such procompetitive effects cannot as such preclude characterisation as a ‘restriction by object’. If such effects are demonstrated, relevant and specifically related to the agreement concerned, those procompetitive effects must be sufficiently significant, such that they justify a reasonable doubt as to whether the agreement concerned caused a sufficient degree of harm to competition, and, therefore, as to its anticompetitive object (judgment of 30 January 2020, Generics (UK) and Others,
C‑307/18
,
EU:C:2020:52
, paragraphs
to
).
In that regard, the Court notes that the HSBC companies’ line of argument is based on the assertion that it is in the interest of customers of a bank that is a market maker for that bank to reduce uncertainty as to the level of the market ‘mid’ in order to narrow the bid/offer spread. Such a reduction in uncertainty thus enables traders to offer prices which are more favourable to those customers.
Even if it were established, such an assertion is insufficient to give rise to reasonable doubt as to whether the exchanges in question are sufficiently harmful to competition.
The HSBC companies themselves acknowledge that ‘mids’ reflect bilateral and private negotiations between market makers and that the resulting reduction in uncertainty on mids makes it possible to reduce the risks which traders take as a result of their market making activities.
In recital 395 of the decision at issue, the Commission emphasised, in that regard, that those exchanges went beyond an exchange of information in the public domain and had the objective of increasing transparency between the parties and therefore significantly reducing normal market uncertainties to benefit the parties to the detriment of other market participants. It found that the banks participating in the cartel had thus revealed to each other information about fundamental aspects of their market strategy and conduct on the market, which reduced significantly the uncertainty inherent to a market in which risk and uncertainty management is one of the key parameters of competition.
As has been recalled in paragraphs 113 and 114 of the present judgment, the requirement of autonomy inherent in Article 101 TFEU strictly precludes any direct or indirect contact between such operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which it has decided to adopt on that market or contemplates adopting on that market, where those contacts have the object or effect of leading to conditions of competition which do not correspond to the normal conditions of the market in question.
Therefore, in accordance with the case-law referred to in paragraph 116 of the present judgment, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object regardless of the direct effects in the prices paid by end users.
In so far as the Commission found that exchanges on mids significantly reduced the uncertainties inherent in a market on which the management of risk and uncertainties constitutes one of the key parameters of competition, that finding was sufficient for it to be accepted that those exchanges entailed a restriction of competition by object within the meaning of Article 101(1) TFEU.
In that context, the HSBC companies’ argument that those exchanges made it possible to offer prices which were more favourable to customers of the banks concerned does not give rise to any reasonable doubt as to the harmful nature of those exchanges with regard to competition on the market concerned.
In the light of the findings above, the complaint disputing the merits of characterising the exchanges on mids as a restriction by object must be rejected.
–
Ground for complaint contesting the merits of the finding of restriction by object applied to the exchanges on trading positions
For the same reasons as those set out in paragraphs 162 to 164 of the judgment under appeal and taking account of paragraphs 151 and 152 of the present judgment, the Court must reject the arguments of the HSBC companies relating to the characterisation of, first, the discussions of 13 and 28 February and of 19 March 2007 and, second, of 12 and 16 February 2007.
Since paragraphs 165 to 195 of the judgment under appeal have not been challenged in the present appeal, the Court must conclude that the General Court’s assessments concerning that ground for complaint have acquired the force of
res judicata
.
Second, third and fourth pleas in law, concerning the Commission’s finding of a single and continuous infringement
It is appropriate to examine the second, third and fourth pleas in the same order as that chosen by the General Court in the judgment under appeal.
The second plea by which the HSBC companies dispute the existence of an ‘overall plan’ with a single objective must be rejected for the same reasons as those set out in paragraphs 209 to 237 of the judgment under appeal and in the light of paragraphs 162 to 172 of the present judgment.
As regards the fourth plea by which the HSBC companies dispute their awareness of the offending conduct of the other participants, a distinction must be drawn, as the General Court did in paragraph 247 of the judgment under appeal, between, on the one hand, the manipulation of 19 March 2007 and the possibility of it being repeated and, on the other hand, the other conduct taken into account by the Commission in respect of the single and continuous infringement.
In the first place, the HSBC companies’ arguments relating to the manipulation of 19 March 2007 and the possibility of it being repeated must be rejected for the same reasons as those set out in paragraphs 248 to 262 of the judgment under appeal and in the light of paragraphs 182 to 185 of the present judgment.
In the second place, since the reasons set out in paragraphs 263 to 274 of the judgment under appeal have not been challenged in the present appeal, the Court must conclude that the General Court’s findings concerning the HSBC companies’ awareness of the participation of other banks in the other conduct forming part of the single and continuous infringement have acquired the force of
res judicata
.
Lastly, as regards the third plea, relating to the HSBC companies’ intention to participate in the single and continuous infringement, the reasons set out in paragraphs 275 to 280 of the judgment under appeal have not been challenged in the present appeal and have, consequently, acquired the force of
res judicata
.
The fifth plea, alleging an infringement of the presumption of innocence, good administration and rights of the defence
Arguments of the parties
The HSBC companies maintain that the settlement decision prejudged HSBC’s liability and irremediably impaired their right to be heard. They infer from this that the decision at issue should be annulled on account of an infringement, first, of the presumption of innocence and, second, of the principles of good administration and of respect for the rights of the defence. They also refer to the statements by the commissioner who was then in charge of competition policy on the outcome of the EIRD investigation given prior to the adoption of the decision at issue. They also note that they were not given the opportunity to give comments on the statement of objections sent to the parties who decided to settle.
The Commission claims that that plea should be rejected.
Findings of the Court
–
Infringement of the presumption of innocence and of the rights of the defence
The HSBC companies submit that the adoption of the settlement decision in the context of the hybrid procedure led to an infringement of the presumption of innocence in so far as that decision prejudged their liability and irremediably undermined their right to be heard.
As was recalled in paragraph 90 of the present judgment, in order to review the Commission’s observance of the presumption of innocence in a hybrid procedure, 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.
According to the case-law recalled in paragraphs 79 and 80 of the present judgment, it is necessary to verify, first, whether the Commission took sufficient drafting precautions in the settlement decision in order to avoid premature judgment as to the HSBC companies’ participation in the cartel and, second, whether the references to those companies in that decision were necessary.
In the first place, as regards the drafting precautions that the Commission was required to take, the settlement decision included, as the Commission pointed out in recital 529 of the decision at issue, various explicit disclaimers in order not to establish any liability on the part of the non-settling parties, in particular the HSBC companies.
In recital 3 of the settlement decision, the Commission stated that that decision was based on matters of fact accepted only by the settling parties at that stage of the proceedings and that that decision did not establish the liability of non-settling parties for any participation in an infringement of EU competition law in the case at issue. That statement was repeated in recital 40 of that decision.
Similarly, in footnote 4 of the settlement decision, the Commission stated that the conduct referred to in that decision involving the non-settling parties was exclusively used to establish the liability of the settling parties for an infringement of Article 101 TFEU and Article 53 of the EEA Agreement.
In the light of those factors, the Court must conclude that the Commission took sufficient drafting precautions by demonstrating that it was not required to issue a decision on the participation of the HSBC companies in the alleged cartel.
In so doing, the Commission avoided any deliberate, or even definitive, bias as to the liability of those companies. Further, in accordance with the case-law recalled in paragraph 80 of the present judgment, it had refrained from expressing any prejudgment, even if potential, as to that liability (see, by analogy, judgment of 18 March 2021, Pometon v Commission,
C‑440/19 P
,
EU:C:2021:214
, paragraph
).
In the second place, as regards the issue of knowing whether the references made to the HSBC companies in the settlement decision were necessary, it should be noted that, in the context of a hybrid procedure leading to the adoption of successive decisions, the Commission must, subject to review by the EU judicature, avoid disclosing more information concerning the involvement of a third party than is necessary for the characterisation of the liability of the addressees of that decision (see, to that effect, judgment of 18 March 2021, Pometon v Commission,
C‑440/19 P
,
EU:C:2021:214
, paragraph
and the case-law cited).
In that regard, it follows from recitals 3, 36, 37 and 40 and footnote 4 of the settlement decision that, in the description of events in that decision, the reference to non-settling parties is limited to what was strictly necessary for the purposes of a proper understanding of the facts of the case.
Similarly, in the legal assessment, no individual reference was made to the non-settling parties, either individually or jointly. Furthermore, in view of the drafting precautions taken by the Commission, the settlement decision did not reach any conclusion as regards those parties.
As the Commission stated in recital 533 of the decision at issue, in that context, the limited number of references in the settlement decision to the participation of parties other than the settling parties cannot lead to any conclusion whatsoever in respect of the non-settling parties.
In those circumstances, the Court must conclude that those references were strictly necessary for understanding and establishing the facts, which means that they were compatible with the presumption of innocence.
Such a finding is not called into question by the HSBC companies’ arguments alleging that, in footnote 4 of the settlement decision, the Commission defined the term ‘parties’ as ‘all undertakings subject to the proceedings’ and that the Commission referred, inter alia, in recital 36 of that decision, to bilateral contacts between Barclays and those companies in the description of the practices at issue.
There are few references to non-settling parties, which includes the HSBC companies, and, contrary to what those companies suggest, there are no such references in Section 5 of the settlement decision, headed ‘Legal assessment’. Moreover, as is apparent from the findings set out in particular in paragraph 226 above, those references are merely descriptive and do not constitute any assessment, whether express or implied, of the legal situation of those companies. In a hybrid procedure which led to the successive adoption of two decisions, those references appear to be objectively necessary in order to establish the liability of the settling parties.
Accordingly, the HSBC companies’ arguments alleging that the settlement decision contains elements which led to an infringement of the presumption of innocence must be rejected.
It is also necessary to reject the arguments alleging that that decision infringed the rights of defence of those companies, in so far as it is not disputed that the Commission sent them a statement of objections, that they had access to the file and that they were in a position to make known their views prior to the adoption of the decision at issue.
–
Infringement of the right to good administration
In the first place, the HSBC companies submit that the 2012 and 2014 public statements of the commissioner then in charge of competition policy led to an infringement, by the Commission, of the right to good administration.
In that regard, it should be recalled that the institutions, bodies, offices and agencies of the European Union are required to respect the fundamental rights guaranteed by EU law, which include the right to good administration, enshrined in Article 41 of the Charter. Paragraph 1 of that article states, inter alia, that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the European Union.
The requirement of impartiality is intended to guarantee equality of treatment, which is at the heart of the European Union. That requirement is intended, inter alia, to avoid a situation where there could be a conflict of interest on the part of officials or agents acting on behalf of those institutions, bodies, offices and agencies. Having regard to the fundamental importance of ensuring the independence and probity of EU institutions, bodies, offices and agencies as regards both their internal functioning and external reputation, the requirement of impartiality covers all circumstances in which an official or agent who is called upon to decide on an issue must reasonably consider that issue as being of such a nature as to be viewed by third parties as a possible source of impairment of his or her independence in that matter (judgment of 27 March 2019, August Wolff and Remedia v Commission,
C‑680/16 P
,
EU:C:2019:257
, paragraph
and the case-law cited).
As recalled in paragraph 77 above, it is for the institutions, bodies, offices and agencies of the European Union to comply with both components of the requirement of impartiality, namely, first, subjective impartiality, in accordance with which no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, second, objective impartiality, according to which there must be sufficient guarantees to exclude any legitimate doubt as to any bias.
In so far as the HSBC companies call into question the public statements of the commissioner then in charge of competition policy, the Court must hold that their ground for complaint relates essentially to the first component of the principle of impartiality.
In that regard, the Court draws a distinction between the declarations made in 2012, made before the adoption of the settlement decision, and those made in 2014, which occurred after the adoption of that decision.
As regards, first, the 2012 statements, those statements remained general, with the result that they cannot be regarded as the expression of the bias or prejudice as to culpability on the part of the commissioner then in charge of competition policy vis-à-vis the HSBC companies.
As regards, second, the 2014 statements, the HSBC companies submit that the commissioner then in charge of competition policy publicly made comments suggesting that he had already reached a conclusion before the investigation was closed.
Admittedly, some of those statements are couched in language which does not reflect the caution which would have been expected of the member of the Commission in charge of competition policy in the context of an ongoing case. However, those statements are not such as to give rise to doubt as to the impartiality with which the Commission conducted its investigation into the infringement in question. Accordingly, those statements do not in themselves vitiate the legality of the decision at issue adopted by the College of Commissioners.
It is apparent from those statements that the commissioner then in charge of competition policy merely informed the public about an ongoing investigation, stating that that case was continuing after the settlement decision was adopted. In that context, those statements did not disclose information which did not appear in that decision. The fact that those statements revealed that the Commission was preparing a statement of objections with regard to the non-settling parties does not support the conclusion, given the provisional nature of that document, that the Commission had reached a conclusion as to their liability before the investigation was closed. Nor is it of such a kind as to suggest that the commissioner had a bias or prejudice as to the culpability of the HSBC companies.
Lastly, the Court rejects the HSBC companies’ argument that the European Ombudsman found an instance of maladministration on the part of the commissioner then in charge of competition policy on account of the public statements referred to in paragraph 234 above.
It should be recalled that a finding by the Ombudsman of an ‘act of maladministration’ is not binding on the EU judicature and can constitute nothing more than an indication of infringement, by the institution concerned, of the principle of good administration. Proceedings before the Ombudsman, who does not have the power to make binding decisions, are for EU citizens an extrajudicial alternative remedy to an action before those Courts, which meets specific criteria and does not necessarily have the same objective as legal proceedings (see, to that effect, judgment of 25 October 2007, Komninou and Others v Commission,
C‑167/06 P
, not published,
EU:C:2007:633
, paragraph
).
In the light of the reasons set out in paragraphs 240 to 243 above, the conclusions of the Ombudsman relating to the public statements referred to in paragraph 234 of that judgment are not capable, by themselves or assessed together with the other elements in the file, of establishing the existence of an infringement of the right to good administration.
In the light of the foregoing, the HSBC companies’ arguments alleging an infringement of the right to good administration must be rejected and as must, consequently, the fifth plea.
Conclusion on the action before the General Court
The action of the HSBC companies, in so far as it seeks the annulment of Article 1 of the decision at issue and, in the alternative, Article 1(b) of that decision, is dismissed.
Costs
Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs.
Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 138(3) of those rules states that where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
In the present case, the HSBC companies have asked for the Commission to be ordered to pay the costs relating to the proceedings at first instance and on appeal and the Commission has been unsuccessful in its submissions at the appeal stage and, in part, in its submissions at first instance. The HSBC companies were unsuccessful in part in their claims at first instance.
In those circumstances, the Commission must be ordered to pay the costs of the appeal. As regards the costs relating to the action before the General Court, each party must bear its own costs.
Furthermore, under Article 140(3) in conjunction with Article 184(1) of the Rules of Procedure, the Court may order an intervener to bear its own costs.
The Crédit Agricole companies and the JPMorgan Chase companies, as interveners in the appeal, must bear their own costs.

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

1.
Sets aside the judgment of the General Court of the European Union of 24 September 2019, HSBC Holdings and Others v Commission (
T‑105/17
,
EU:T:2019:675
) in so far as it dismisses, in point 2 of the operative part thereof, the action brought in Case T‑105/17 by HSBC Holdings plc, HSBC Bank plc and HSBC France, now HSBC Continental Europe, seeking the annulment of Article 1 of Commission Decision C(2016) 8530 final 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 (EIRD)) and, in the alternative, of Article 1(b) of that decision
;

2.
Dismisses the action lodged in Case T‑105/17 by HSBC Holdings plc, HSBC Bank plc and HSBC France, now HSBC Continental Europe, seeking the annulment of Article 1 of Decision C(2016) 8530 final and, in the alternative, Article 1(b) of that decision;

3.
Orders the European Commission to bear its own costs and to pay those incurred by HSBC Holdings plc, HSBC Bank plc and HSBC Continental Europe, formerly HSBC France, relating to the appeal and to bear its own costs incurred in the proceedings at first instance;

4.
Orders HSBC Holdings plc, HSBC Bank plc and HSBC Continental Europe, formerly HSBC France, to bear their own costs incurred in the proceedings at first instance;

5.
Orders Crédit agricole SA and Crédit agricole Corporate and Investment Bank to bear their own costs relating to the appeal;

6.
Orders JPMorgan Chase & Co. and JPMorgan Chase Bank, National Association, to bear their own costs relating to the appeal.

Jürimäe
Safjan
Piçarra
Jääskinen
Gavalec
Delivered in open court in Luxembourg on 12 January 2023.
A. Calot Escobar
Registrar
K. Jürimäe
President of the Chamber
(
*1
)	Language of the case: English.