Opinion of the Advocate General — ECLI:EU:C:2026:200
Date: 2026-03-12
Language of the case: French

summary manner. 92. In those circumstances, I take the view that the state of the proceedings does not enable the Court of Justice to rule definitively on that issue. I therefore propose that the Court (i) uphold the Commission’s cross-appeal and set aside the judgment under appeal in so far as it annuls Article 2(a) of the contested decision; (ii) refer the case back to the General Court; and (iii) reserve the costs. 93. In the ensuing proceedings, the General Court will be required to address two principal issues. First, it will have to rule on CA’s claim that the amending decision is unlawful and should therefore be annulled. Second, should it find that the amending decision to be valid, it will then have to determine whether the contested decision, as amended, contains an adequate statement of reasons. 94. As explained above, if the Court were to endorse my conclusion on the Commission’s cross-appeal, it would not be necessary to examine CA’s fourth plea. Nevertheless, should the Court take a different view and, in any event, for the sake of completeness, I will address below the main issues raised by that plea. B. The fourth plea in the main appeal 95. By its fourth plea, CA challenges paragraphs 454 to 683 of the judgment under appeal, in which the General Court exercised its unlimited jurisdiction as regards the amount of the fine to be imposed. After examining the arguments advanced by the parties, the General Court concluded that, ‘on a fair assessment of the circumstances of the case, having regard to the principle that the fine must be made to fit the offence and to the proportionality of that fine, the amount of the fine for which [CA was] liable should be set at EUR 110 000 000’. 1. Arguments of the parties 96. At the outset, I must express a certain perplexity as to the formulation of this plea by CA. It is divided into two parts, each of which is itself composed of several components and a combination of principal and alternative arguments. The alleged errors include, inter alia, ruling ultra petita, erroneous exercise of unlimited jurisdiction, unlawful reversal of the burden of proof, failure to state reasons, failure to take account of relevant factors, and infringements of the principles of equal treatment, adversarial proceedings and proportionality. 97. Faced with this accumulation of alleged defects, it is not straightforward to ‘separate the wheat from the chaff’, (52) in other words, to discern which complaints are sufficiently substantiated and which are not. (53) Several arguments appear to overlap, while others seem to have been advanced more to reinforce the overall criticism than to articulate distinct and autonomous grounds of appeal. 98. That said, one complaint nonetheless stands out clearly and appears to constitute one of the main grievances raised by CA against this part of the judgment under appeal. CA recalls that the General Court held that, in the absence of a more detailed explanation of the reasons why the Commission set the discount factor at 98.849%, it was ‘unable to conduct an in-depth review, in law and in fact, on a factor of the decision which could have had a significant effect on the amount of the fine imposed on [CA]’. (54) 99. Having reached that conclusion, however, the General Court itself adopted the same discount factor as that applied by the Commission without – according to CA – providing any further explanation as to its basis. CA submits that the reasoning of the judgment is therefore vitiated by the very same failure to state reasons that led the General Court to substitute the fine imposed in the contested decision. 100. The Commission disputes that view. It contends that the General Court correctly exercised its unlimited jurisdiction and, in doing so, fixed an appropriate amount of the fine. In particular, it argues that the General Court has sufficiently explained the various factors it took into account in setting the discount factor at 98.849%, thereby satisfying its obligation to state reasons. 2. Analysis 101. In my view CA’s fourth plea is well founded. To explain why, I shall begin with some general remarks, on (a) the notion of ‘unlimited jurisdiction’, and (b) on the General Court’s obligation to state reasons when exercising that jurisdiction. I shall then turn to (c) the specific complaint identified in points 98 and 99 above, before addressing, more briefly, (d) the remaining arguments raised under this plea. (a) General remarks I: unlimited jurisdiction 102. Article 261 TFEU provides that ‘regulations adopted jointly by the European Parliament and the Council, and by the Council … may give the Court of Justice of the European Union unlimited jurisdiction with regard to the penalties provided for in such regulations’. In that regard, according to Article 31 of Regulation No 1/2003, ‘the Court of Justice shall have unlimited jurisdiction to review decisions [adopted under that regulation] whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’ 103. Put simply, the notion of ‘unlimited jurisdiction’ designates the power of the EU Courts to review in full the amount of the fines imposed by the Commission in decisions adopted under Articles 101 and 102 TFEU. That notion should not, however, be equated with an ‘unfettered’ power of review. As will be explained below, the exercise of unlimited jurisdiction is circumscribed by a number of procedural and substantive principles. What the term signifies is that, when exercising such jurisdiction, the EU Courts are not confined to the limits inherent in an action for annulment under Article 263 TFEU, but may themselves confirm or set aside a fine, as well as vary its amount, whether upwards or downwards. 104. Under Article 263 TFEU, the EU Courts are called upon to review the legality of the acts of the institutions challenged before them. In principle, that review extends to all elements of fact and law relied upon in the contested act. (55) Nonetheless, it is settled case-law that, where the EU institutions enjoy a margin of discretion, or are required to carry out complex technical assessments, the EU Courts must exercise judicial review with an appropriate degree of restraint. (56) 105. In particular, where the EU Courts are called upon to review the outcome of a discretionary policy assessment or of a complex technical assessment, they may annul the contested act only if that assessment is vitiated by a ‘manifest’ error. An error may be regarded as manifest where the applicant demonstrates that the analysis carried out by the institution concerned is unreasonable, or that the conclusions reached are implausible. Conversely, so long as the decision adopted by that institution is reasonably justified in the light of the factual and evidential circumstances existing at the time of its adoption, it cannot be considered unlawful. 106. It follows that, in proceedings under Article 263 TFEU, the EU Courts are not empowered to undertake a de novo assessment of the situation which led the institution concerned to adopt the contested act, nor to substitute their own appraisal for that of the institution as to what would have constituted, in their own view, the most appropriate course of action in the circumstances. Their role is confined to reviewing the legality of the act and, where appropriate, declaring it null or invalid. (57) 107. By contrast, when exercising the unlimited jurisdiction conferred by Article 261 TFEU, and notwithstanding the broad discretion enjoyed by the Commission in defining and implementing its fining policy, the EU Courts may: first, cancel or vary the amount of a fine even in the absence of any error of law, let alone a manifest one; second, do so by substituting their own assessment for that of the Commission as to the appropriate level of the fine; (58) and third, take into account any relevant legal or factual element, including factors not relied upon by the Commission or raised by the undertakings during the administrative procedure, as well as events subsequent to the adoption of the contested decision, (59) without being bound by the methodology set out in the Commission’s Fining Guidelines. (60) In other words, a de novo assessment is permissible. 108. In exercising its powers under Article 261 TFEU, the EU Courts are not, strictly speaking, reviewing the lawfulness of the contested decision, or of the reasoning underpinning it, but rather assessing the appropriateness of (only) one specific component thereof, namely the fine. (61) Unlimited jurisdiction thus constitutes a complementary form of judicial power or, viewed from another perspective, an additional head of jurisdiction given to the EU Courts. (62) Whereas judicial review under Article 263 TFEU is guided by the applicable rules of higher rank, in casu, Articles 101 and 102 TFEU, the provisions of Regulation No 1/2003, and the general principles of EU law, the exercise of unlimited jurisdiction under Article 261 TFEU is informed, above all, by considerations of equity. (63) 109. That concept of ‘equity’ must be understood in a broad sense. While it undoubtedly encompasses proportionality, fairness and non-discrimination, it goes beyond those requirements. (64) It permits the EU judicature to carry out an overall and, to some extent, more subjective appraisal of the fine and of its amount. (65) Accordingly, even where the Commission has committed no breach of the applicable rules and its determination of the fine is, in general terms, reasonable, the EU Courts remain entitled to vary its amount if they consider that a different level of fine would be more appropriate in the light of the circumstances of the case. (66) 110. It is, however, for the applicants and, where appropriate, for the Commission, should it seek an increase in the fine, to advance the arguments justifying the exercise of unlimited jurisdiction and, where necessary, adduce the relevant evidence. The EU Courts do not exercise that jurisdiction ex officio. (67) 111. It must, however, be made clear that this does not mean that, when they exercise unlimited jurisdiction, the EU Courts are bound to the same extent by the principle ne ultra petita as in the review of validity. (68) According to settled case-law, the EU Courts are empowered to make full use of that jurisdiction in so far as the determination of the amount of a fine is submitted for their consideration. (69) Such a question may be brought before them either directly, through an explicit request inviting the Court to exercise its unlimited jurisdiction, or indirectly, where a party seeks a reduction of the fine as a logical consequence of a partial annulment of the impugned decision. 112. That conclusion stems from the dual nature of the EU Courts’ unlimited jurisdiction. Its principal objective is to afford the undertakings upon which the Commission – acting in its capacity as an administrative authority – has imposed a fine, an additional safeguard of judicial protection. (70) At the same time, it pursues a secondary and complementary objective, namely, to ensure the coherence and effectiveness of the overall system of enforcement. 113. Once the power to determine, in a comprehensive manner, the amount of the fine, is transferred from the administrative authority to the judiciary, the latter must also ensure that the sanction achieves its intended purpose. The fine must, accordingly, possess a sufficiently deterrent character with respect to undertakings whose conduct may impair the structure or functioning of the internal market, and, consequently, diminish its full economic efficiency, particularly to the detriment consumers. (71) It is for that reason that, when determining the amount of the fine, the EU Courts must take into account, inter alia, its deterrent effect (72) and may, where appropriate, impose a fine exceeding that determined by the Commission. (73) (b) General remarks II: the General Court’s duty to state reasons 114. In the light of the foregoing considerations, the next question to be addressed concerns the scope of the General Court’s duty to state reasons when it exercises its unlimited jurisdiction in the review a fine. 115. The answer to such a question is, in principle, straightforward. The broad discretion conferred upon the EU Courts under Article 261 TFEU does not in any way diminish their duty to provide an adequate statement of reasons, in accordance with Article 296 TFEU, Article 36 of the Statute of the Court of Justice of the European Union, and Article 47 of the Charter. (74) 116. The main principles governing this matter are well established. According to settled case-law, the statement of the reasons underlying a judgment must clearly and unequivocally reveal the General Court’s line of reasoning, thereby enabling the persons concerned to understand the justification for the decision adopted and permitting the Court of Justice to exercise its power of review. (75) Furthermore, the obligation to state reasons serves a broader purpose: it constitutes a safeguard against arbitrariness, ensuring that the parties to the dispute can ascertain that their arguments have been duly heard, while compelling the courts to base their decisions on objective and verifiable grounds. (76) 117. The scope of that obligation may, nonetheless, vary according to the nature of the judgment, and must be assessed in the light of the proceedings as a whole and all the relevant circumstances, taking due account of the procedural guarantees attached thereto. (77) The Court has, in particular, held that the General Court is not required to address exhaustively and in sequence every argument advanced by the parties. Its reasoning may, in certain circumstances, be implicit, provided that it enables the persons concerned to discern the reasons for the dismissal of their pleas, and that it affords the Court of Justice sufficient material to review the legality of the judgment under appeal. (78) 118. Against that background, and with particular regard to the exercise by the General Court of its unlimited jurisdiction, the scope of the duty to state reasons must be understood in the light of procedural and substantive considerations inherent in the exercise of such jurisdiction. In that respect, three sets of factors may, in my view, be regarded as particularly relevant. 119. First, while the General Court may, but is not required to, take into account elements, arguments and issues that have not been brought expressly to its attention by the parties, (79) it must, in principle, consider all those that have been duly raised before it by the parties. (80) That should naturally be reflected in the statement of reasons underpinning the judgment. Whether such arguments must be addressed explicitly, and the level of detail with which each is examined, will depend, self‑evidently, on their relevance, clarity, and probative significance. 120. Second, the General Court enjoys a wide margin of discretion when determining the amount of an appropriate fine in a given case. That discretion must, however, be exercised in compliance with the general principles of EU law, and in particular, the principles of proportionality, individualisation of the penalties and equal treatment. (81) Moreover, the fine should correspond principally to the gravity and duration of the infringement, while also ensuring its deterrent effect. (82) Consequently, whenever one or more of those issues genuinely arise, it can reasonably be expected that the statement of reasons will address them with sufficient detail. Indeed, as the General Court itself observed, in paragraph 661 of the judgment under appeal, ‘in the context of its obligation to state reasons, it [must] set out in detail the factors which it took into account when setting the amount of the fine’. (83) 121. Third, as previously explained, when determining the amount of a fine under Article 261 TFEU, the General Court is not bound by either the methodology set out in the Commission’s Fining Guidelines, nor, logically, by any alternative methodology which may have been applied in the contested decision. Likewise, the General Court in not required to adhere to a particular mathematical formula or economic calculation. (84) That said, nothing precludes it from doing so where it considers such an approach appropriate. That may, for instance, be the case where several undertakings are fined under the same decision and adherence to a specific methodology – such as that used by the Commission – may serve to ensure equal treatment between them. (85) 122. Conversely, when the General Court considers it appropriate to depart, in whole or in part, from those methodologies, it should take particular care to indicate the various elements that it has taken into account in determining the appropriate amount of the fine and, where relevant, to provide an indicative explanation of their relative importance. (86) This does not, however, require the statement of reasons to become a display of sophisticated and meticulous arithmetic orthodoxy. (87) It is clear that, under Article 261 TFEU, certain assessments ex bono et aequo are perfectly legitimate. Moreover, in some cases a concise reasoning – based on a global evaluation of all pertinent factors, or by reference to findings already made elsewhere in the judgment – may suffice. (88) 123. In essence, what may reasonably be expected of the General Court is that it sets out, with sufficient clarity, precision and internal coherence the essential steps of its reasoning, and the nature and significance of the factors taken into consideration. (89) 124. An alleged failure to state reasons is, of course, subject to review on appeal. Nevertheless, it must be recalled that, in the absence of any legal error committed by the General Court, the Court will not exercise its own unlimited jurisdiction so to substitute its assessment for that of the General Court. Accordingly, it is not sufficient for an applicant merely to contend that the fine imposed by the General Court is inappropriate or unjust. Such a fine may be set aside only where it is shown to be ‘excessive to the point of being disproportionate’. (90) 125. It is by reference to those principles that I shall now examine the arguments advanced by CA in this respect. (c) The failure to state reasons in the case at hand 126. In paragraphs 659 to 683 of the judgment under appeal, the General Court set out the factors that it took into account, in the exercise of its unlimited jurisdiction, when in determining the amount of the fine. It examined three categories of elements: the gravity and the duration of the infringement (paragraphs 663 to 679), the existence of mitigating circumstances (paragraphs 680 and 681) and the deterrent effect of the fine (paragraph 682). Having undertaken what it described as a ‘fair assessment’ of all the relevant circumstances, the General Court fixed the fine at EUR 110 000 000 (paragraph 683), a sum slightly lower than that imposed under Article 2(a) of the contested decision. (91) 127. In the light of the principles set out in the preceding section, the General Court’s statement of reasons concerning the exercise of its unlimited jurisdiction appears, at first sight, to be detailed and methodical. It is clearly structured in a manner enabling the reader to follow the logical progression of the judgment’s reasoning, it identifies the elements regarded as relevant to the assessment, indicating their relative importance, and it does so in line with established case-law. 128. However, upon closer examination – and in line with the arguments advanced by CA – certain aspects of that reasoning appear open to criticism. Some passages seem to lack internal consistency when compared with findings made in other parts of the same judgment. 129. Thus, in paragraph 664 of the judgment under appeal, the General Court stated that it would ‘use a methodology that – much like the methodology used by the Commission in the present case – first identifies the basic amount of the fine which can subsequently be adjusted according to the specific circumstances of the case’. In that context, it deemed it appropriate to use discounted cash receipts as a proxy for the value of sales as initial data, considering other available methods of calculation cash to be unsuitable or unjustified. The value of cash receipts applied by the Commission for CA was therefore accepted (paragraphs 665 to 668 of the judgment under appeal). 130. Next, in paragraphs 669 to 673 of the judgment under appeal, the General Court observed, at the outset, that both parties agreed that ‘using only cash receipts as the basis for the calculation of the fine would lead to the imposition of a fine that is over-deterrent’. It therefore held that a discount factor had to be applied to reduce those receipts. Then, the General Court noted, in essence, five points. First, the Commission applied a uniform discount factor set at 98.849%. Second, that discount factor was ‘determined using a complex exercise reflecting a number of elements’, and was ‘an approximation of a constructed value [and, therefore,] by definition there [was] not only one single discount factor possible’. Third, the alternative discount factors proposed by CA were not considered appropriate. Fourth, the parties were in agreement that ‘the discount factor should be set at 98.849% at the very least’. Fifth, ‘the setting of a fine, in the exercise of its unlimited jurisdiction, is not an arithmetically precise exercise’. 131. Although the text of the judgement under appeal is not entirely clear on this point, it appears reasonable to infer from the foregoing that the General Court ultimately applied the same discount factor as that used in the contested decision, namely 98.849%. Indeed, the amount of the fine determined by the General Court in the exercise of unlimited jurisdiction is strikingly close to that imposed by the Commission. (92) This interpretation is further supported by the judgment of 20 December 2023, JPMorgan Chase and Others v Commission, (93) delivered by the General Court on the same day which, using almost identical reasoning on this issue, fixed the fine at exactly the same amount as that set out in the contested decision. (94) 132. However, in paragraphs 494 to 512 of the judgement under appeal, the General Court had found that the statement of reasons in the contested decision was inadequate is so far as it concerned the setting of the discount factor of 98.849%. It observed that only a few, and rather vague, passages in the contested decision provided insight into the Commission’s rationale for fixing the discount factor at that specific level. That deficiency was considered particularly problematic, given the central importance of the discount factor in the methodology used by the Commission to determine the fine. 133. Against that background, it is somewhat surprising that the General Court ultimately endorsed that very same discount factor. To be clear, it cannot be ruled out that, upon its own assessment, the General Court may have concluded that that factor was, in fact, the most appropriate one. The mere fact that the Commission had failed to adequately explain its calculation, does not necessarily imply that the underlying value was erroneous. (95) 134. Nevertheless, if that were indeed the General Court’s conclusion, it ought to have stated so expressly, clarifying that, in its own estimation, the discount factor of 98.849% represented the most appropriate coefficient, and explaining – at least briefly – the grounds why it came to that conclusion. 135. The judgment under appeal, however, contains neither of those elements. First, as noted in point 131 above, it does not even explicitly state that the discount factor applied by the General Court was set at 98.849%. Second, the judgment under appeal provides no indication as to why that particular value was deemed to be the most appropriate. 136. It was, of course, for CA to advance arguments in support of its contention that the methodology and the specific figures used by the Commission resulted in a fine that was disproportionate, discriminatory or otherwise unjust. Nevertheless, the fact that the alternative discount factors proposed by CA were considered excessive does not, in itself, entail that the General Court was required to endorse the value adopted in the contested decision. 137. This was clearly not a situation in which only a small and pre-determined set of alternatives existed. The General Court itself acknowledged that the value used by the Commission was merely an approximation of a constructed value and that, consequently, no single discount factor could be regarded as uniquely correct. 138. Yet, notwithstanding the absence of any discernible explanation in the contested decision as to why a discount factor of 98.849% should be considered appropriate, the General Court still endorsed that value, essentially on the ground that the alternatives proposed by CA were not preferable. Reading the judgment under appeal, one is left with the impression that the General Court opted for what it perceived to be the ‘lesser evil’ among the values submitted by the parties. 139. In my view, that approach does not reflect the type of assessment required of the General Court when exercising its unlimited jurisdiction under Article 261 TFEU. Where it decides to annul a fine imposed by a decision and replace it with another, the General Court must itself determine the amount that it considers most appropriate in the light of all the relevant circumstances. To that end, the General Court could have adopted any value it deemed suitable to substitute for that employed by the Commission, while continuing – if it so wished – to follow a broadly similar methodological framework. 140. Alternatively, had the General Court concluded that it was unable to identify an appropriate discount factor, it should have resorted to different methodology, rather than adhering to one whose application it itself recognised as uncertain or suboptimal. Its decision to do otherwise is therefore difficult to reconcile with the logic of the unlimited jurisdiction conferred upon it. 141. Accordingly, I am of the view that the General Court failed to provide an adequate statement of reasons regarding the manner in which it exercised the powers conferred upon it under Article 261 TFEU. (96) Even assuming that the parties agreed that ‘the discount factor should be set at 98.849% at the very least’ – a proposition strongly contested by CA and which, moreover, does not appear corroborated by the case file – that circumstance would, in any event, be immaterial in this context. Such finding would not address CA’s core contention that that value was excessively low, thus, resulting to an unjust fine. 142. Furthermore, the mere fact that none of the appellants proposed a discount factor with a value lower than that applied by the Commission cannot be treated, by the General Court, as an as evidence confirming the appropriateness of that figure. If I may be permitted a brief touch of irony, I would observe that no undertaking having been fined by the Commission has, to my knowledge, ever contested a decision on the ground that the sanction imposed was too low. Naturally, the EU Courts have never considered the absence of such challenges as an indication that the fine imposed by the Commission was necessarily reasonable. 143. The absence of a clear explanation as to why the General Court decided to apply the same discount factor as that used by the Commission – despite its own finding that the Commission had failed to provide an adequate justification for that factor – is particularly problematic in the specific circumstances of the present case. As need hardly be recalled, the proxy adopted by the Commission to substitute for the undertakings’ value of sales – namely, cash receipts – constitutes a novelty in this field. Given the novel character of that approach and the methodological questions which it raises as to its calculation, one would have expected a more comprehensive statement of reasons on this point. This was manifestly not a case in which, on so central an issue, a very concise or merely implicit reasoning could be regarded as sufficient. 144. For those reasons, I consider the statement of reasons to be inadequate and internally inconsistent as regards the calculation of the fine imposed by the General Court in the exercise of its unlimited jurisdiction. CA’s fourth plea should, consequently, be upheld and the judgment under appeal partially set aside. (d) The other parts and arguments in the fourth plea 145. Since I have concluded that the cross-appeal must be upheld and that, in the alternative, CA’s fourth plea should also succeed, it is scarcely necessary to examine in detail the remaining arguments advanced by CA in support of that plea. I shall, therefore, address them very briefly. 146. First, CA contends that the General Court ruled ultra petita by exercising its unlimited jurisdiction. In CA’s view, the General Court was precluded from imposing a fine within the framework of that jurisdiction, since it had granted its primary request for the annulment of the fine imposed by the Commission, while the request for reduction of the fine had been formulated merely as a subsidiary claim. 147. I do not share that assessment. As I have already explained, the ne ultra petita principle plays only a limited role when the General Court reviews a fine in the exercise of its unlimited jurisdiction. The EU Courts are empowered to exercise unlimited jurisdiction whenever the question of the amount of the fine is before them. What matters, therefore, is whether a party has requested the General Court to review that fine. That was manifestly so in the proceedings at first instance, as CA did so both directly and indirectly. The Court has already held that the fact that an applicant has sought the reduction of a fine in the alternative does not preclude the exercise of unlimited jurisdiction. (97) 148. Second, I am not persuaded by CA’s claim that the General Court could not exercise its unlimited jurisdiction without first adopting a measure of inquiry, on the ground that certain details regarding the Commission’s calculation methodology were lacking. The General Court was not bound by the methodology adopted in the contested decision and chose to apply a methodology that was similar, though not identical in all respects. (98) That choice, in itself, is not objectionable. In the present case the problem lies in the absence of adequate reasoning to explain that choice. 149. Third, I am likewise unpersuaded by CA’s contention that, in exercising its unlimited jurisdiction, the General Court failed to take into account certain relevant elements invoked by CA. The argument that CA had allegedly played a minor role in the infringement has been duly examined in paragraphs 635 to 639 of the judgment under appeal. Furthermore, the allegations that the Commission, in the contested decision, applied Article 101 TFEU to forms of conduct which produced no effects on the market, or from which CA derived no benefit are manifestly irrelevant. It is well established that proof of effects is not required in the case of a restriction by object. Nor, in my view, should the fact that an undertaking did not draw profit from an anticompetitive agreement result in the imposition of a lesser sanction. 150. Finally, I am inclined to agree with CA that there may be a breach of the principle of equal treatment or, at the very least, an erroneous application of the rules on the burden of proof, in so far as the General Court failed to take into account the differing methods used by certain banks to calculate cash receipts. 151. I must note, at the outset, that the existence of diverging approaches in that regard was acknowledged in the contested decision and is not disputed between the parties.(99) The Commission nevertheless maintained, both in the contested decision and before the General Court, that the impact of those differences on the calculation of the fines was insignificant. (100) CA, for its part, contends that, given the central role played by the discount factor, even minor variations in the cash receipt data used in the calculation of the fines could potentially produce differences in the final amounts that are far from negligible. 152. In the absence of reliable data on this issue in the case file, I consider that it is impossible for the Court to verify whether the data used, despite some heterogeneity, produced comparable results. 153. In that connection, it is noteworthy that the General Court found that the Commission had failed to adopt additional investigative measures to clarify the differing methods employed by the various banks, although some of them had duly alerted the Commission to the difficulties they had encountered in providing the requested cash‑receipt data.(101) It is equally common ground that the banks involved were never granted full access to the detailed calculations carried out by the Commission. (102) Nor did the General Court request the Commission to produce those calculations during the first instance proceedings, despite the matter having been thoroughly debated between the parties. 154. It is indeed true, as the Commission observed at the hearing, that even where it applies the more traditional methodology set out in its Fining Guidelines, the calculations must necessarily rely on the sales data supplied by the undertakings themselves. Such data may naturally reflect the different organisational structures, commercial strategies and accounting practices among the various undertakings. 155. However, it seems to me evident that, in those situations, the risk of significant disparities in the calculation of sales data is, at least potentially, far more limited than in a case such as the present one. As mentioned above, in the present case the methodology set out in the Fining Guidelines has been applied in an innovative manner, through the use of a newly devised proxy, whose suitability was disputed by the parties, and whose implementation led to diverging approaches among the various undertakings involved. 156. In any event, while the Commission cannot reasonably be expected to verify every tiny detail of the data submitted by each and every undertaking subject to proceedings under Regulation No 1/2003, it nonetheless remains under a duty to ensure respect for the principle of equal treatment. That entails, first, verifying the comparability of the data where doubts arise in that regard, and second, employing the most appropriate set of data for each undertaking, where their respective situations are not fully comparable.(103) 157. Against that background, I find it difficult to understand why the General Court (i) relied on the Commission’s unsubstantiated assertion that the heterogeneity of the data used had no material impact on the outcome, and (ii) concluded that CA had failed to demonstrate, to the requisite legal standard, that the Commission’s assessment was incorrect. In my view, such reasoning effectively imposed on CA a probatio diabolica or, more prosaically, an undue evidential burden, thus, reflecting an incorrect application of the rules governing the burden of proof. In doing so, the General Court failed to verify properly whether CA’s plea alleging a breach of the principle of equal treatment was well founded. VI. Conclusion 158. In the light of the foregoing considerations, I propose that the Court of Justice uphold the cross-appeal brought by the Commission, or, in the alternative, the fourth plea advanced by Crédit agricole SA and Crédit agricole Corporate & Investment Bank. 1 Original language: English. 2 Judgment of 20 December 2023, Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission (T‑113/17, ‘the judgment under appeal’, EU:T:2023:847). 3 Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 of the TFEU and Article 53 of the EEA Agreement (Case AT.39914 – Euro Interest Rate Derivatives (EIRD)). 4 Commission Decision C(2021) 4610 final of 28 June 2021 amending the contested decision. 5 Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 6 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the Fining Guidelines’). 7 ‘Euribor’ is short for Euro Interbank Offered Rate, and ‘EONIA’ is short for Euro Overnight Index Average. 8 See recitals 639 to 648 of the contested decision. 9 T‑105/17, ‘the judgment of the General Court in HSBC’, EU:T:2019:675. 10 Judgment of 12 January 2023, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2023:11). In those proceedings, by order of the President of the Court of 16 July 2020, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2020:601), CA was granted leave to intervene in support of the forms of order sought by the appellants. 11 Judgment of 27 November 2024, HSBC Holdings and Others v Commission (T‑561/21, EU:T:2024:869). 12 See above, point 11 of this Opinion. 13 See, inter alia, judgment of 5 September 2024, Commission v Czech Republic (Pocket lighters) (C‑494/22 P, EU:C:2024:684, paragraphs 129 and 130 and the case-law cited). 14 See, by analogy, judgment of 3 September 2024, Illumina and Grail v Commission (C‑611/22 P and C‑625/22 P, EU:C:2024:677, paragraph 134). 15 See, inter alia, judgment of 10 September 2019, HTTS v Council (C‑123/18 P, EU:C:2019:694, paragraph 100 and the case-law cited). 16 See above, point 13 of this Opinion. 17 See, to that effect, judgment of 17 June 2010, Lafarge v Commission (C‑413/08 P, EU:C:2010:346, paragraphs 81 to 86). 18 View of Advocate General Tizzano in Commission v Council (C‑27/04, EU:C:2004:313, point 135). 19 See, in particular, the second paragraph of Article 263 TFEU. 20 See, for example, judgment of 20 September 2017, Tilly-Sabco v Commission (C‑183/16 P, EU:C:2017:704, paragraph 64 and the case-law cited). 21 See, for example, judgment of 20 June 1991, Cargill v Commission (C‑248/89, EU:C:1991:264, paragraph 20 and the case-law cited). 22 See, inter alia, judgment of 22 September 1983, Verli-Wallace v Commission (159/82, EU:C:1983:242, paragraph 8 and the case-law cited). 23 See, for example, judgment of 30 June 1993, Parliament v Council and Commission (C‑181/91 and C‑248/91, EU:C:1993:271, paragraph 14). 24 That is, save exceptions, such as those set out in Article 24(1) TEU and Article 275 TFEU. 25 This is an issue that the drafters of the Treaties themselves had in mind from the beginning. See Opinion of Advocate General Lagrange in Assider v High Authority (3/54, EU:C:1954:6, p. 171). See also Arena, A., ‘La tutela giurisdizionale dinanzi alla Corte di giustizia: origini, evoluzione e tratti distintivi’, in Mastroianni, R., Il diritto processuale dell’Unione europea, Giappichelli, 2025, pp. 10 to 16. 26 See, inter alia, judgment of 26 March 2020, Hungeod and Others (C‑496/18 and C‑497/18, EU:C:2020:240, paragraph 69 and the case-law cited). 27 See, to that effect, judgment of 13 December 2013, Hungary v Commission (T‑240/10, EU:T:2013:645, paragraphs 89 and 90). 28 See, in particular, judgments of 26 November 1981, Michel v Parliament (195/80, EU:C:1981:284, paragraphs 20 to 22); of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others (C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 77); of 20 September 2011, Evropaïki Dynamiki v EIB (T‑461/08, EU:T:2011:494, paragraphs 109 and 115); and of 12 December 2013, Nabipour and Others v Council (T‑58/12, EU:T:2013:640, paragraphs 36 to 39). 29 See, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 148 and the case-law cited). 30 See, for example, judgment of 10 July 2019, Commission v Icap and Others (C‑39/18 P, EU:C:2019:584, paragraphs 39 to 41). 31 To that effect, see, for example, judgment of 22 November 2022, Luxembourg Business Registers (C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 88). 32 See the first paragraph of Article 266 TFEU. 33 See above, points 7, 8, 15 and 16 of this Opinion. 34 See, to that effect, judgments of 25 January 1979, Racke (98/78, EU:C:1979:14, paragraph 19); of 21 February 1991, Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest (C‑143/88 and C‑92/89, EU:C:1991:65, paragraph 49); and of 25 January 2022, VYSOČINA WIND (C‑181/20, EU:C:2022:51, paragraphs 47 to 49). 35 See, in particular, Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). 36 See, inter alia, judgments of 3 March 1982, Alphasteel v Commission (14/81, EU:C:1982:76, paragraphs 7 and 8); of 2 February 2012, Dow Chemical v Commission (T‑77/08, EU:T:2012:47, paragraph 35); of 12 December 2013, Nabipour and Others v Council (T‑58/12, EU:T:2013:640, paragraph 20); and of 17 December 2014, Pilkington Group and Others v Commission (T‑72/09, EU:T:2014:1094, paragraph 46). 37 In case of an appeal against a judgment of the General Court, the same principle applies in the proceedings before the Court of Justice, by virtue of Article 141 of the Rules of Procedure of the Court of Justice. 38 See, mutatis mutandis, judgment of 3 March 1982, Alphasteel v Commission (14/81, EU:C:1982:76, paragraph 8). 39 Judgment of 7 February 1990 (C‑343/87, ‘the judgment in Culin’, EU:C:1990:49). 40 Ibid., paragraph 11. 41 Emphasis added. See Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ, English Special Edition: Series I Volume 1959-1962, p. 135), as amended (‘the Staff Regulations’). 42 See, in that regard, judgments of 23 April 2002, Campogrande v Commission (C‑62/01 P, EU:C:2002:248, paragraph 33), and of 8 March 2023, SE v Commission (T‑763/21, EU:T:2023:113, paragraph 14). 43 See, to that effect, judgments of 23 April 2002, Campogrande v Commission (C‑62/01 P, EU:C:2002:248, paragraph 34), and of 11 November 2020, AD v ECHA (T‑25/19, EU:T:2020:536, paragraph 32). 44 See, to that effect, judgment of 23 April 2002, Campogrande v Commission (C‑62/01 P, EU:C:2002:248, paragraph 34 and the case-law cited). 45 Opinion of Advocate General Mischo in Culin v Commission (343/87, EU:C:1989:342, points 6 to 17). 46 Judgment of 11 June 2020, Commission v Di Bernardo (C‑114/19 P, EU:C:2020:457). 47 Judgment of 9 December 2014 (T‑91/10, ‘the judgment in Lucchini’, EU:T:2014:1033). 48 Ibid., paragraphs 42 to 45. 49 Ibid., paragraphs 74 and 75. 50 Ibid., paragraphs 76 to 102. 51 It may also be added that, in paragraphs 107 to 110 of the judgment in Lucchini, the General Court expressly examined, and rejected, the applicant’s arguments alleging that the adoption of the amending decision infringed the principles of legal certainty and respect for the rights of the defence. 52 This expression is generally considered to derive from the Bible, Matthew 3:12. 53 See, mutatis mutandis, Opinion of Advocate General Wathelet in Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2013:619, points 7 to 9). In that connexion, I would add, in passing, that I share the view expressed by my learned colleague Advocate General Wahl who has previously invited the Court, when determining the allocation of costs, to take into consideration the unnecessary length and complexity of the parties’ submissions, and their lack of clarity and precision. See Opinion of Advocate General Wahl in Feralpi and Others v Commission (C‑85/15 P, C‑86/15 P and C‑87/15 P, C‑88/15 P and C‑89/15 P, EU:C:2016:940, points 134 to 139). 54 With reference to paragraph 511 of the judgment under appeal. 55 See, in particular, judgment of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 67). 56 See, in that respect, my Opinion in ECB v Crédit lyonnais (C‑389/21 P, EU:C:2022:844, points 49 and 50). 57 See, in more detail and with further references, ibid., points 41 to 74. 58 See, for example, judgment of 8 February 2007, Groupe Danone v Commission (C‑3/06 P, EU:C:2007:88, paragraph 61 and the case-law cited). In this context, see also judgment of 4 July 2024, Westfälische Drahtindustrie and Pampus Industriebeteiligungen v Commission (C‑70/23 P, EU:C:2024:580, point 47). 59 See, inter alia, judgment of 16 November 2000, SCA Holding v Commission (C‑297/98 P, EU:C:2000:633, paragraph 55); and Opinion of Advocate General Mengozzi in Commission v Tomkins (C‑286/11 P, EU:C:2012:499, point 43 and the case-law cited). 60 See, inter alia, judgment of 16 June 2022, Quanta Storage v Commission (C‑699/19 P, EU:C:2022:483, paragraph 167 and the case-law cited). 61 See judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraphs 76 and 77). 62 See, for example, judgment of 8 December 2011, KME Germany and Others v Commission (C‑389/10 P, EU:C:2011:816, paragraph 130), and Opinion of Advocate General Kokott in Pilkington Group and Others v Commission (C‑101/15 P, EU:C:2016:258, point 116). See also Bernardeau, L. and Christienne, J.-P., Les amendes en droit de la concurrence: pratique décisionnelle et contrôle juridictionnel du droit de l’Union, Larcier, 2013, pp. 800-801. 63 See, for example, judgment of 28 March 1984, Officine Bertoli v Commission (8/83, EU:C:1984:129, paragraph 29). 64 On the importance of a broad construction of that concept, see Opinion of Advocate General Tizzano in Dansk Rørindustri and Others v Commission (C‑189/02 P, EU:C:2004:415, points 129 to 133). In this context, see also Arabadjiev, A., ‘Unlimited Jurisdiction: What Does It Mean Today?’, in Cardonnel, P. et al. (eds), Constitutionalising the EU Judicial System – Essays in Honour of Pernilla Lindh, Hart, 2012, p. 400. 65 See Wahl, N., ‘Enjeu et limites actuelles de la jurisprudence relative à la compétence de pleine juridiction conférée au juge de l’Union en matière de concurrence’, in Tizzano, A. et al., La Cour de justice de l’Union européenne sous la présidence de Vassilios Skouris – Liber amicorum, Bruylant, 2017, p. 735. 66 See, to that effect, judgment of 10 December 2025, Intel Corporation v Commission (T‑1129/23, EU:T:2025:1091, paragraph 107). 67 See, to that effect, judgments of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 64), and of 26 January 2017, Duravit and Others v Commission (C‑609/13 P, EU:C:2017:46, paragraph 32). 68 Similarly, Opinions of Advocate General Poiares Maduro in Groupe Danone v Commission (C‑3/06 P, EU:C:2006:720, point 49); of Advocate General Mengozzi in Commission v Tomkins (C‑286/11 P, EU:C:2012:499, point 37); and of Advocate General Wahl in Total v Commission (C‑597/13 P, EU:C:2015:207, point 58). 69 See, inter alia, judgment of 26 September 2013, Alliance One International v Commission (C‑679/11 P, EU:C:2013:606, paragraph 103 and the case-law cited). 70 See, for example, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 445). 71 See, by analogy, judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 36). 72 See below, point 120 of this Opinion. 73 See, for example, judgment of 12 December 2007, BASF and UCB v Commission (T‑101/05 and T‑111/05, EU:T:2007:380, paragraph 222). 74 To that effect, see, for example, judgment of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12, paragraph 154 and the case-law cited). See also, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin (C‑434/13 P, EU:C:2014:2456, paragraphs 81 to 85). 75 See, for example, judgment of 11 July 2013, Ziegler v Commission (C‑439/11 P, EU:C:2013:513, paragraph 81). 76 See ECtHR, 15 December 2022, Rutar and Rutar Marketing d.o.o. v. Slovenia (CE:ECHR:2022:1215JUD002116420, § 62). 77 See, for example, judgment of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraph 52). 78 See, for example, judgment of 18 July 2013, Dow Chemical and Others v Commission (C‑499/11 P, EU:C:2013:482, paragraph 57). 79 See above, point 110 of this Opinion. 80 See, to that effect, judgments of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraph 57); of 12 January 2017, Timab Industries and CFPR v Commission (C‑411/15 P, EU:C:2017:11, paragraph 108); and of 9 November 2023, Altice Group Lux v Commission (C‑746/21 P, EU:C:2023:836, paragraphs 221 to 223 and 229). 81 See, inter alia, judgment of 16 June 2022, Quanta Storage v Commission (C‑699/19 P, EU:C:2022:483, paragraph 167 and the case-law cited). 82 See, by analogy, judgment of 9 November 2023, Altice Group Lux v Commission (C‑746/21 P, EU:C:2023:836, paragraph 246). Other factors that may be taken into account include, in particular, ‘the conduct of each of the undertakings concerned, the role played by each of them in the establishment of the concerted agreements or practices, the profit which they were able to derive from those agreements or practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union’ (see judgment of 10 April 2014, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraphs 53 and 91). See also Opinion of Advocate General Bot in E.ON Energie v Commission (C‑89/11 P, EU:C:2012:375, points 113 to 115). 83 Emphasis added. 84 See, by analogy, judgment of 16 November 2000, Finnboard v Commission (C‑298/98 P, EU:C:2000:634, paragraph 87). 85 See, for example, judgments of 18 September 2003, Volkswagen v Commission (C‑338/00 P, EU:C:2003:473, paragraphs 146 and 147), and of 4 September 2014, YKK and Others v Commission (C‑408/12 P, EU:C:2014:2153, paragraph 98). 86 See, to that effect, order of 9 March 2000, Sarrió v Commission (C‑291/98 P, EU:C:2000:112, paragraph 98). 87 See, to that effect, judgment of 14 September 2016, Trafilerie Meridionali v Commission (C‑519/15 P, EU:C:2016:682, paragraph 55). 88 See, for example, judgments of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778, paragraph 82), and of 9 October 2014, ICF v Commission (C‑467/13 P, EU:C:2014:2274, paragraph 64). 89 See, by analogy, judgment of 29 September 2011, Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 151). 90 See, inter alia, judgment of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12, paragraph 153 and the case-law cited). 91 See above, point 17 of this Opinion. That was due to the fact that the General Court found that, in the contested decision, the Commission had wrongly attributed certain forms of conduct to CA. See paragraphs 413 to 428, 451 to 453, and 679 of the judgment under appeal. 92 As regards the reason for that, see footnote 89 above. 93 T‑106/17, EU:T:2023:832. 94 See points 124 of my Opinion in JPMorgan Chase and JPMorgan Chase Bank, National Association v Commission, C‑160/24 P, also delivered today. 95 See, to that effect, judgments of 8 May 2013, Eni v Commission (C‑508/11 P, EU:C:2013:289, paragraph 99), and of 9 June 2016, PROAS v Commission (C‑616/13 P, EU:C:2016:415, paragraph 51). 96 See, mutatis mutandis, Opinion of Advocate General Kokott in Servier and Others v Commission (C‑201/19 P, EU:C:2022:577, point 257). 97 See judgment of 26 September 2013, Alliance One International v Commission (C‑679/11 P, EU:C:2013:606, paragraphs 105 to 107). 98 Paragraph 664 of the judgment under appeal. 99 See, in particular, paragraphs 539 to 556 of the judgment under appeal. 100 See, in particular, paragraphs 531, 549, 551, 554, 572, 574, 575, 577, 579 to 581 and 587 of the judgment under appeal. 101 Paragraphs 560 to 569 of the judgment under appeal. 102 Ibid., paragraph 576. 103 See, to that effect, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363, paragraphs 51 to 66).