Abstract;Judgment — ECLI:EU:T:2019:675
Date: 2019-09-24
Language of the case: English
Court formation: Second Chamber, Extended Composition
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty
Origin: France;United Kingdom

summary form and only at the reply stage, it can nevertheless be examined by the Court. First, the Court understands the sense of this criticism and, second, it is merely a development of the line of argument already appearing in the application and does not constitute the submission of a new plea in law, which is prohibited by Article 84(1) of the Rules of Procedure. This criticism has a connection with the application that is sufficiently close to allow it to be considered as forming part of the normal evolution of debate in proceedings before the Court (see, to that effect, judgment of 20 November 2017, Petrov and Others v Parliament, T‑452/15, EU:T:2017:822, paragraph 46 and the case-law cited). 224 With regard to the merits of that criticism, while the case-law referred to in paragraph 216 above prevents the Commission from adopting a definition of the single aim that is so broad as to be similar to a general reference to the distortion of competition in a given sector, it would be contrary to the logic of the concept of a single infringement to require the Commission, when defining that single aim, to be so precise that it de facto prevents it from including in that same infringement different forms of conduct. 225 Accordingly, it must be concluded that various manipulations of reference rates can have the same single aim. 226 In the second place, as regards the exchanges relating to trading positions and those about detailed and not publicly available information on EIRD pricing intentions and strategies, it should be noted, at the outset, that the exchanges at issue here are only those that did not take place either in view of a manipulation of reference rates or jointly with such manipulation. 227 The discussions between traders that occurred in view of a manipulation of reference rates or jointly with such manipulation have the single aim of the infringement for the reasons set out in paragraphs 219 to 225 above. As regards HSBC, this is also the case for the discussions on trading positions which the traders participated in on 12, 13 and 28 February and 19 March 2007, for the reasons set out in paragraphs 181 and 182 above. 228 Contrary to what the applicants seem to claim, it cannot be automatically excluded that exchanges on trading positions and those about detailed and not publicly available information on EIRD pricing intentions and strategies have the single aim found by the Commission, despite the fact that they did not occur in view of manipulation of reference rates or jointly with such manipulation. Nevertheless, for the reasons explained in paragraphs 216 and 217 above, they can be found to have that aim only if the Commission has demonstrated that the purpose of those exchanges is to distort the normal course of either the fixed rate or the variable rate of EIRDs. With regard to HSBC, it is clear from paragraphs 139 to 161 above that that was the case for the discussions of 14 and 16 February 2007 in which its traders participated. 229 In the light of the foregoing, the first part of the plea in law must be rejected. (2) The second part of the plea, disputing the existence of an ‘overall plan’ 230 In essence, the applicants dispute the Commission’s assertion that the various forms of collusive conduct formed part of an overall plan with the aim of improving their bank’s current and future trading positions, on the ground that there is no evidence of a global plan. In that regard, they submit, in essence, that the evidence that there was a ‘stable group of individuals’ that were involved in the conduct does not apply to HSBC. Additionally, the reference to secrecy in the contested decision is insufficient to establish that forms of conduct which are, by their nature, very different share a single economic aim. They also submit that, at least with regard to HSBC, the Commission’s assertions that the discussions had ‘the same or almost the same content’ or were ‘always for the same types of operations’ are incorrect as a matter of fact. 231 The Commission claims, in essence, that it established to the requisite legal standard the existence of an ‘overall plan’ in the contested decision. 232 In the contested decision, the Commission essentially based the existence of an ‘overall plan’, in recital 446 of the contested decision, on the fact that the parties clearly adhered to a common strategy which limited their individual commercial conduct by determining the course of their mutual action or abstention from action in the market thereby replacing the competition between themselves with cooperation, to the detriment of other market participants. It also stated, in recital 451, that the cartel was ‘controlled and maintained’ by a stable group of persons and, in recital 452, that the parties had followed a very similar pattern in their anticompetitive activities. In that regard, it highlighted, in recitals 452 to 456, that the contacts between the banks had often taken place in parallel or in close proximity, that the language used showed that those communications were commonly used by the individuals participating in the cartel, that the parties took precautions to conceal their contacts and that the various communications had the same or almost the same content. 233 Among the various reasons highlighted by the Commission in the contested decision, the Court finds that the central element which establishes that there was an ‘overall plan’, as referred to in recital 451 of the contested decision, is the fact that the cartel was ‘controlled and maintained’ by a stable group of individuals. 234 While the other reasons appearing in the contested decision and summarised in paragraph 232 above — such as the similarity of the anticompetitive activities of the traders in the market, the frequency of those activities and the will of those traders to maintain the secrecy of that conduct — do bolster the impression that there was an ‘overall plan’, in the absence of more conclusive evidence, they do not in themselves prove that such a plan existed. 235 Consequently, it is only to the extent that those various forms of conduct can be considered to have been controlled or directed by the same group of individuals that the Court can find in favour of the existence of such an ‘overall plan’ which would substantiate a finding of a single infringement. 236 The applicants do not dispute the correctness of the ground that the cartel was controlled and maintained by a stable group of traders, but rather claim that none of HSBC’s traders formed part of that group. That line of argument does not relate to the merits of the Commission’s finding of a single infringement, but rather to whether it is imputable to HSBC, which falls within the scope of the fourth plea. 237 Subject to that reservation, the second part of the plea must be rejected, as, accordingly, must the second plea in law. (b) The fourth plea, disputing HSBC’s awareness of the offending conduct of the other participants 238 The applicants criticise the Commission for concluding that HSBC was or ought to have been aware of the allegedly unlawful conduct of the other banks. They claim that neither the grounds of the contested decision relating to all the banks, nor those specific to HSBC, show that HSBC was or ought to have been aware of the general scope and the essential characteristics of the cartel as a whole. 239 The applicants claim, inter alia, that it can be concluded from the discussion of 12 February 2007 only that the HSBC trader had a rough idea of the broad plan to manipulate the 3m Euribor on 19 March 2007 without, however, knowing which banks were participating, and, further, dispute the fact that the Barclays trader made the involvement of other banks in the manipulation clear to the HSBC trader or, alternatively, that the HSBC trader was fully aware of it. In any event, any knowledge of the participation of other banks in the manipulation of 19 March 2007 is not tantamount to awareness of the wider pattern of contacts between other banks which took place over an extended period of time. Moreover, the situation of 27 March 2007 referred to in recital 491 of the contested decision, in which the Barclays trader mentioned to an HSBC trader the prospect of repeating the manipulation of 19 March 2007 at some time in the future, is irrelevant in the context of an overall cartel between 12 February and 26 March 2007. 240 The Commission submits, as a preliminary point, that, through its contact with Barclays, HSBC participated in all of the anticompetitive conduct comprising the single and continuous infringement and that that situation is sufficient to render it liable for the entirety of that conduct. 241 The Commission claims that it has nevertheless proved that HSBC was aware or could reasonably have foreseen the offending conduct of the other undertakings. In this respect, that institution refers to the content of the exchanges between HSBC and Barclays on 12 February and 7 and 19 March 2007. The Commission refutes the applicants’ argument that HSBC’s awareness of the manipulation of 19 March 2007 does not mean that it was aware of other anticompetitive conduct. 242 The grounds of the contested decision relating to awareness of the offending conduct appear in recitals 457 to 465 of the contested decision, which cover grounds common to all the banks, and in recitals 471 to 476 of that decision, which cover grounds relating to HSBC alone. 243 As regards the grounds common to all the banks, they are based on the premiss, set out in recital 457 of the contested decision, that traders participating in the anticompetitive exchanges were skilled professionals and were aware or should have been aware of the general scope and characteristics of the cartel. In that regard, the Commission referred, first, in recital 458, to the very specific context in which the traders operate, characterised by bilateral, recorded and controlled exchanges. It claimed, second, in recital 459 of the contested decision, that the traders involved in the arrangements were aware that traders from other banks were ready to engage in the same type of collusive behaviour concerning pricing components and other trading conditions of EIRDs. It argued, third, in recitals 460 to 461 of the contested decision, that the evidence showed a wide-spread general awareness of the declaratory nature of the mechanism for setting the Euribor rate and, consequently, of the fact that it could be distorted by the panel banks’ submissions. Fourth, in recital 463 of that decision, it highlighted the fact that each of the banks in question had been active on the market in question for many years and that the traders had not expressed any surprise when they were asked to act in concert. In recitals 462 to 464 of that decision, it concluded, in essence, from the combination of those factors that the traders who participated in those bilateral exchanges were aware or could reasonably have foreseen that it was likely that several banks were involved in the collusive arrangements, even if that information was never explicitly disclosed to them. The Commission also stated, in recital 465, that the traders were subject to a high level of recording and supervision, which means that their management must be considered to have been aware or should have been aware of the essential characteristics of the collusive scheme and their employees’ involvement in it. It added that it had to take into account the precautions taken by traders to conceal their arrangements. 244 With regard to the grounds relating to HSBC alone, the Commission first highlighted, in recital 471 of the contested decision, that from the beginning of HSBC’s involvement in the infringement of 12 February 2007, the Barclays trader explained the scheme to the HSBC trader with a view to the manipulation of 19 March 2007 in a manner that implied that other banks were involved. Second, in recital 472, the Commission claimed that the HSBC trader was aware of the close relationship between the Barclays trader and the traders from JP Morgan, Société générale and Deutsche Bank. Third, in recital 472, it noted that the traders from Deutsche Bank and Barclays regarded the HSBC trader as a reliable partner for the cartel. It inferred from this, in recital 473, that the HSBC traders knew or, at least, should have known that their discussions with Barclays were part of a network of anticompetitive contacts that comprised at least Barclays, Deutsche Bank, Société générale, HSBC and one or more other banks that are not mentioned which would help to bring about the anticompetitive effects intended through the manipulation of 19 March 2007. In addition, in recitals 475 and 476, it added that, in view of the short period during which HSBC was involved in the collusive exchanges, its participation in the scheme had been continuous. 245 As a preliminary point, it should be noted that the Commission’s argument, set out in paragraph 240 above, that HSBC participated in all of the anticompetitive conduct at issue, which is sufficient to render it liable for the entirety of that conduct, cannot be upheld. 246 In that regard, it should be noted that, at least in the case of HSBC, the alleged anticompetitive conduct took place in bilateral discussions. Therefore, the submission that the discussions in which HSBC participated may have fallen within each of the categories referred to in recitals 113, 358 and 392 of the contested decision, if proved, cannot, in itself, be sufficient to render HSBC liable for the offending conduct of the banks with which it did not have direct contact. In accordance with the case-law cited in paragraph 198 above, it was for the Commission to show that HSBC was aware of the offending conduct planned or put into effect by other banks or that it could reasonably have foreseen it. 247 In that regard, a distinction must be drawn 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 infringement. (1) HSBC’s knowledge of the participation of other banks in the manipulation of 19 March 2007 and the possibility of it being repeated 248 From 12 February until 19 March 2007 HSBC participated in the manipulation described in paragraphs 85 to 90 above and sought to profit from the submission of low quotes on 19 March 2007 for the 3m Euribor. In addition, the prospect of repeating that manipulation was mentioned in a conversation of 19 March 2007 which took place between one of the HSBC traders and the Barclays trader, referred to in recital 329 of the contested decision. The Barclays trader mentions the prospect of repeating that manipulation in a discussion with another HSBC trader on 27 March 2007, referred to in recital 339 of the contested decision. 249 With regard to the manipulation of 19 March 2007, the Commission has direct evidence showing HSBC’s awareness that it was participating in a single and continuous infringement with other banks. 250 The Commission is right in identifying, in recital 471 of the contested decision, the conversation of 12 February 2007 as being indicative of HSBC’s awareness of the participation of other banks. 251 That exchange shows that the Barclays trader turns the conversation towards the profit that could be made from manipulating the spread between two derivatives, specifically futures linked to the 3m Euribor and swaps linked to EONIA on 19 March 2007. 252 First, it follows from that discussion that it is here that the Barclays trader discloses to HSBC the ‘overall plan’ for the manipulation envisaged: namely, a gradual increase of the ‘buyer’ position on futures linked to the 3m Euribor, followed by concerted action to reduce that rate on 19 March 2007. 253 In that respect, contrary to what is claimed by the applicants, the later conversation on 13 February 2007, in which the HSBC trader notes that the Barclays trader’s conduct is not coherent with the plan explained the day before, reveals that the HSBC trader has a good comprehension of how the manipulation is to function. The HSBC trader finds it suspicious that the conduct of Barclays departs from the defined strategy. Although the reply from Barclays (‘je clean juste quelque truc’) does not seem to convince him (‘mouai’), the fact remains that the HSBC trader’s focus on the fact that the conduct of Barclays seems to run counter to the envisaged manipulation is a sign of his thorough comprehension. 254 Second, the Barclays trader made it clear in the conversation of 12 February 2007 that other banks were participating in that manipulation, even though he did not wish to disclose their identity. It is apparent from this that the HSBC trader was entirely aware that other banks were participating in that manipulation. 255 Thus, even if their identity was not disclosed by the Barclays trader, after that conversation, the HSBC trader was aware of the fact that a certain number of banks were going to lower the Euribor rate on 19 March 2007 by means of concerted action. Accordingly, HSBC must have been aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives within the meaning of the case-law cited in paragraph 198 above. 256 That conclusion must also be extended to the discussions on the prospect of repeating that manipulation which took place on 19 and 27 March 2007. The HSBC traders who participated in those discussions could reasonably foresee that such repetition would be done in an equivalent manner and thus with other banks. 257 Furthermore, it must be concluded that HSBC’s participation in that single infringement continued from 12 until 27 March 2007. 258 In this respect, it is apparent from the settled case-law that the principle of legal certainty requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 482 and the case-law cited). 259 Although the period separating two manifestations of infringing conduct is a relevant criterion in order to establish the continuous nature of an infringement, the fact remains that the question whether or not that period is long enough to constitute an interruption of the infringement cannot be examined in the abstract. On the contrary, it needs to be assessed in the context of the functioning of the cartel in question (see judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 483 and the case-law cited). 260 In the context of the functioning of the infringement at issue, it is indeed necessary to take into account that the Euribor rate is set on a daily basis. It necessarily follows that the effects of manipulating those rates are limited in time and that the manipulation needs to be repeated in order for those effects to continue (see, to that effect, judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 222). 261 Further, it should be recalled that, in circumstances where the pursuit of an agreement or of concerted practices requires special positive measures, the Commission cannot assume that the cartel has been pursued in the absence of evidence that those measures were adopted (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 223 and the case-law cited). 262 However, in the present case, it should be noted that on 19 March 2007 not only did HSBC participate in the manipulation planned for that date while being aware of the participation of other banks, but, through their traders, it also discussed the prospect of repeating that manipulation with Barclays, a discussion which was pursued by another HSBC trader on 27 March 2007. It can therefore be concluded that special positive measures were adopted within the meaning of the case-law cited in paragraph 261 above. (2) HSBC’s knowledge of the participation of other banks in the other conduct forming part of the single infringement 263 The point at issue here is whether, by virtue of HSBC’s participation in the single infringement, the Commission was entitled to attribute to it all the conduct of the other banks concerned. 264 It is apparent from the case-law cited in paragraphs 198 and 199 above that it was permissible for the Commission to show either that HSBC was aware of the existence of other offending conduct or that HSBC could reasonably foresee it. Similarly, in accordance with the case-law cited in paragraph 203 above, the Commission is entitled to rely on a body of evidence. 265 However, it is clear from that case-law that that body of evidence, viewed as a whole, must correspond to firm, precise and consistent evidence. Furthermore, in accordance with the case-law cited in paragraph 204 above, the presumption of innocence means that where the Court still has a doubt, the benefit of that doubt must be given to the undertakings accused of the infringement. 266 In the first place, it must be stated that the applicants are correct to claim, in essence, that the Commission has failed to demonstrate to the requisite legal standard in the contested decision that HSBC was aware, or should have been aware, of the existence of an ‘overall plan’ with a single aim that gives a reason why HSBC is to be held liable for all forms of conduct forming part of that single aim, regardless of whether or not it was directly involved in it. 267 For the reasons set out in paragraphs 233 to 235 above, it must be noted that the central element substantiating the existence of such an ‘overall plan’ is that the various forms of conduct referred to in the single infringement found were controlled or directed by the same group of persons. 268 The applicants are correct to point out that none of HSBC’s traders was in that group of persons. On the contrary, it is apparent from the contested decision that HSBC traders received from the Barclays trader only very fragmented information, which was limited to what was strictly necessary merely for its participation in the manipulation of 19 March 2007 and then in order to repeat that manipulation. 269 It cannot therefore be concluded that the HSBC traders ought themselves to have extrapolated from the pieces of information which had been communicated to them in the course of well-defined conduct — namely the manipulation of 19 March 2007 — that a stable group of traders whose identity was not disclosed to them was participating in other conduct restricting competition on the EIRD market. 270 In the second place and for similar reasons, the grounds of the contested decision, summarised in paragraphs 242 to 244 above, do not show that HSBC was aware of the offending conduct of other undertakings or could reasonably foresee it. 271 Aside from the Commission’s reference to the fact that the Barclays trader explained to the HSBC trader the plan for the manipulation of 19 March 2007 in a way that implied the involvement of other banks, the other evidence put forward by the Commission is, in fact, based on the premiss that the HSBC traders should have been able to infer from that fact that traders from other banks who operate on the EIRD market know each other and that they would undertake other practices which restrict competition that may have an influence on the cash flows generated by EIRDs. 272 Such a premiss cannot be accepted without disregarding the case-law cited in paragraph 203 above. 273 In the light of the foregoing, it must be concluded that HSBC’s participation in a single and continuous infringement can be upheld only in respect, first, of its 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. 274 The Commission was, therefore, wrong to hold HSBC liable for conduct other than that identified in paragraph 273 above. (c) The third plea, relating to HSBC’s intention to participate in the single and continuous infringement 275 In their third plea, the applicants claim, in essence, that the condition set out in paragraph 198 above — that an undertaking must intend, through its own conduct, to contribute to the common objectives pursued by all the participants — is not satisfied in so far as it relates to them. 276 In that context, they submit, in essence, that HSBC could not have been aware that it was participating in a single infringement in view of the diverse nature of the conduct of which it is accused. The applicants also highlight the fact that HSBC participated in the infringement in a different and more secondary way as compared with the main players. 277 The Commission submits that this plea must be rejected. 278 In the light of the Court’s finding regarding the fourth plea, as set out in paragraph 274 above, it is sufficient to examine the present plea in relation to the manipulation of 19 March 2007 and the repetition of that manipulation. 279 In so far as it relates to them, the intention to participate in a single infringement is clear from the evidence put forward by the Commission. With regard, more particularly, to the manipulation of 19 March 2007, while it is true that the HSBC trader seems to have had doubts as to the functioning of that manipulation — as is borne out by the discussion of 13 February 2007 and the regret that he seems to have then felt for having failed to have built up a greater ‘buyer’ position on futures linked to the 3m Euribor — the fact remains that he participated, jointly with traders from other banks, in the conduct that reduced the 3m Euribor rate on 19 March 2007 by asking the person responsible for submissions in his bank to submit low quotes on that day, which that person went on to do. 280 The third plea in law must therefore be rejected. 3. The fifth plea, alleging an error in law and an infringement of the essential procedural requirements in the course of the administrative procedure 281 The applicants maintain that the settlement decision prejudged HSBC’s liability and irremediably impaired the applicants’ right to be heard. They conclude that the contested decision should be annulled on account of an infringement, first, of the principle 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 Commissioner Almunia on the outcome of the EIRD investigation given prior to the adoption of the contested decision. 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. 282 The Commission claims that this plea in law should be rejected. 283 As regards the ground for complaint alleging that the settlement decision was adopted in breach of the principle of the presumption of innocence, it should be recalled that that principle is a general principle of EU law, currently laid down in Article 48(1) of the Charter of Fundamental Rights, which applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraphs 72 and 73 and the case-law cited). 284 The principle of the presumption of innocence means that every person accused is presumed to be innocent until his guilt has been established according to law. It thus precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits of the case (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 257 and the case-law cited). 285 In addition, it is settled case-law that the Commission is required during the administrative procedure relating to restrictive practices to respect the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights (see, to that effect, judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 154 and the case-law cited). 286 Article 41 of the Charter of Fundamental Rights provides that every person has the right, inter alia, to have his affairs handled impartially by the institutions of the European Union. That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (see judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 155 and the case-law cited). 287 However, the issue whether any lack of objective impartiality on the part of the Commission which may have arisen from an infringement of the principle of the presumption of innocence with respect to HSBC when the settlement decision was adopted was able to impact the lawfulness of the contested decision is indissociable from the question whether the findings made in that decision are properly supported by the evidence adduced by the Commission (see, to that effect, judgments of 6 July 2000, Volkswagen v Commission, T‑62/98, EU:T:2000:180, paragraph 270, and of 16 June 2011, Bavaria v Commission, T‑235/07, EU:T:2011:283, paragraph 226). 288 Thus, even if a lack of objective impartiality on the part of the Commission may have led it to find — wrongly — first, that the discussions of 9 and 14 March 2007 in which HSBC participated had an object that restricted competition or, second, that HSBC could be held responsible for certain forms of conduct of other banks which are not linked to the manipulation of 19 March 2007 or any repeat thereof by virtue of the single and continuous infringement, it should be pointed out that the unlawfulness of those aspects of the contested decision has already been established following the examinations of, respectively, the second part of the first plea and the fourth plea. 289 As regards the other findings made in the contested decision, the irregularity relating to a possible lack of objective impartiality on the part of the Commission would 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 (judgment of 6 July 2000, Volkswagen v Commission, T‑62/98, EU:T:2000:180, paragraph 283). In the present case, as a result of a comprehensive review of the relevant grounds of that decision, it was found that, with the exception of the aspects mentioned in paragraph 288 above, the Commission had established to the requisite legal standard HSBC’s participation in the infringement at issue. Therefore, there is no reason to assume that, if the settlement decision had not been adopted before the contested decision, the content of the latter would have been different. 290 In their reply, the applicants claim that, in the circumstances of the present case, the Commission’s lack of objective impartiality is more serious than in the cases that gave rise to the judgments of 6 July 2000, Volkswagen v Commission (T‑62/98, EU:T:2000:180, paragraphs 270 and 283) and of 16 June 2011, Bavaria v Commission (T‑235/07, EU:T:2011:283, paragraph 226), since, in those cases, the lack of impartiality arose after the parties had been heard. 291 However, it must be found that the principle that an irregularity of that type can lead to the annulment of the contested decision only if it has been established that the content of that decision would have differed if that irregularity had not occurred has its origin in the judgment of 16 December 1975, Suiker Unie and Others v Commission (40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraphs 90 and 91). In that regard, it should be noted that that judgment was delivered against a background that is relatively similar to that of the present case, since the applicants were arguing that the Commission had infringed the principle of the right to a fair hearing by issuing certain public statements making the existence of the alleged infringements appear to have been established at a time when the parties concerned had not yet had an opportunity to express a view on the allegations against them. 292 For similar reasons, the other arguments put forward by the applicants in support of their ground for complaint alleging infringement of the principle of good administration and the ground for complaint alleging infringement of their rights of defence must also be rejected as ineffective. 293 In the light of the foregoing, the fifth plea in law must be rejected. 4. The effects of the errors established in the context of the first and fourth pleas in law on the lawfulness of Article 1 of the contested decision 294 According to Article 1 of the contested decision, ‘the following undertakings have infringed Article 101 of the Treaty 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 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 applicants] from 12 February 2007 to 27 March 2007’. 295 It should be noted that the errors made by the Commission in its finding relating to the discussions of 9 and 14 March 2007, referred to in paragraphs 166 to 195 above, have no effect on the lawfulness of Article 1 of the contested decision and, in particular, on Article 1(b) of the contested decision, since the conclusion it contains remains substantiated even if those discussions are discounted. 296 The same applies to the errors made by the Commission relating to the precise determination of the conduct for which HSBC could be held liable by virtue of its participation in a single and continuous infringement, as referred to in paragraphs 263 to 274 above. HSBC’s participation, along with other banks, in the manipulation of 19 March 2007 and the fact that HSBC considered repeating that manipulation in themselves substantiate Article 1(b) of the contested decision to the sufficient legal standard. 297 However, to the extent that the factors capable of affecting the assessment of the gravity of an infringement include the number and intensity of the incidents of anticompetitive conduct and for the reasons set out in paragraph 123 above, it is in its assessment of whether the amount of the fine is proportionate that the Court may give due effect to the fact that those assessments were vitiated by error. B. Application for annulment of Article 2(b) of the contested decision and, in the alternative, for variation of the amount of the fine imposed 298 The applicants contest the lawfulness of Article 2(b) of the contested decision, in which the Commission imposed on them a fine on account of HSBC’s participation in the infringement. That plea can be divided into four parts, since the applicants dispute, first, the use of discounted cash receipts for the purposes of assessing the value of sales, second, the gravity factor applied, third, the additional amount applied and, fourth, the assessment of the mitigating circumstances. The applicants seek, principally, annulment of Article 2(b) of the contested decision and, in the alternative, request that the Court exercise its unlimited jurisdiction in order to reduce the amount of the fine imposed on them. 299 In the context of the first part of this plea, the applicants complain that the Commission based the value of sales on the basis of cash receipts under EIRDs received by HSBC during the period of the infringement, to which a factor of 98.849% was applied. 300 The Commission’s reasoning is set out in recitals 639 to 648 of the contested decision. 301 In the first place, the Commission stated, in recital 639 of the contested decision, that interest rate derivatives did not generate any sales in the usual sense and, consequently, applied a specific proxy for the value of sales, which constitutes a starting point for its determination of the amounts of the fines. In recital 640, the Commission considered it to be preferable not to take as its basis the proxy value of the sales made during the last year and, in view of the short duration of the infringement of some parties, the varying market size of the EIRD business over the infringement period and the differences in the duration of the involvement of the banks concerned, concluded that it was more appropriate to take as its basis the value of sales actually made by the undertakings during the months corresponding to their respective participation in the infringement. 302 In recital 641 of the contested decision, it stated that sales in the usual sense corresponded to inflows of economic benefit, the form of which was in most cases in cash or cash equivalent and noted that the anticompetitive conduct of this case concerned, notably, the collusion on price components relevant for the cash-flows of EIRDs. For these reasons, it decided to determine the annual value of sales for all parties on the basis of cash receipts, that is to say ‘the cash flows that each bank received from their respective portfolio of EIRDs linked to any Euribor tenor and/or the EONIA and entered into with EEA-located counterparties’. 303 In recital 642 of the contested decision, it found that, with respect to HSBC, the amount of cash receipts was EUR 16 688 253 649. 304 In the second place, in recital 643 of the contested decision, the Commission concluded that it was it appropriate to discount the cash receipts figures found in respect of HSBC and the other banks by an appropriate, uniform factor in order to take account of the particularities of the EIRD market, and in particular the netting inherent in derivatives trading. In recital 648 of the contested decision, that uniform factor was set at 98.849%. 305 The justification for the level of that reduction factor in the contested decision is based on five sets of reasons. First, in recital 644, the Commission took into account the netting inherent in derivatives trading in general, assessed by the International Swap Dealer Association as involving a reduction of between 85% and 90%. 306 Second, in recital 645, it highlighted the specific nature of EIRD netting, since a comparison of the parties’ cash receipts with the net EIRD cash settlements shows that the application of a rate of between 85% and 90% would lead to fines that were over-deterrent. 307 Third, in recital 646, it found that the EIRD cartel caused an overcharge that was much lower than the 20% usually caused by that type of cartel in classical industries. 308 Fourth, in recital 647, the Commission stated that it was not required to apply a precise mathematical formula and had a margin of discretion when determining the amount of each fine. 309 Fifth, in recital 648, the Commission stated that it had applied to the addressees of the contested decision the same rate as that used to calculate the amounts of the fines imposed on the addressees of the settlement decision. 310 In the third place, the Commission responded to the criticisms made during the administrative procedure. In that context, in recitals 656 to 662 of the contested decision, it refuted the assertion that the use of discounted cash receipts was inappropriate. In that respect, it claimed that, as compared with net cash receipts and payments suggested by the applicants — which could lead to negative values — the use of discounted cash receipts was more consistent with the 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 2006 Guidelines’), according to which sales are the starting point for calculating fines, not profits. 311 As regards the criticism of the reduction factor, the Commission claimed, inter alia, in recital 710 of the contested decision, that it had been transparent about its intention to discount cash receipts by a uniform factor of at least 97.5%. It also claimed, in recital 713, that it had not applied individual discount factors because they could have given rise to unequal treatment. 312 In this part of the plea, the applicants essentially put forward three grounds for complaint challenging the legality of the calculation of the value of sales. First, they challenge the very principle of using cash receipts to which a reduction factor of 98.849% is applied. Second, they consider that the Commission was wrong to include the cash receipts arising from contracts that predated the cartel. Third and last, they dispute the statement of reasons on which the reduction factor is based. 1. First ground for complaint, alleging that the Commission was wrong to take discounted cash receipts as its basis 313 The applicants state that, while the Commission was right in observing, in recital 639 of the contested decision, that derivatives ‘[did] not generate any sales in the usual sense’, it erred in its assessment of the value of those sales by taking as its basis cash receipts received under EIRDs to which a reduction factor of 98.849% was applied. They complain that the Commission took into account only incoming payments under EIRDs and not outgoing payments, whereas a manipulation of reference rates has effects on both of those aspects. That approach helped vastly to overstate the revenues a bank generates from EIRD trading. They claim that the ground, set out in recital 659 of the contested decision, that using incoming payments cannot lead to no sales or negative sales, does not make cash receipts an appropriate proxy for the value of sales. They argue that the same is true of the statement, in recital 660 of that decision, that it is sales that are the starting point for calculating fines in the 2006 Guidelines. 314 The Commission contends that it was fully entitled to assess the value of sales by reference to the cash receipts to which a reduction factor has been applied. 315 It claims that outgoing payments under EIRDs have not been ignored. The purpose of applying the reduction factor is precisely to take account of the netting inherent in derivatives trading. From a deterrence perspective, such an approach would be more appropriate than the net cash receipts and payments approach suggested by the applicants, which could lead to negative values. 316 As a preliminary point, the Court notes that, with regard to the lawfulness of a decision imposing a fine, the in-depth review, in law and in fact, that the EU judicature is to carry out of all the factors of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU, as referred to in paragraph 44 above, means that it cannot use the Commission’s margin of discretion — either as regards the choice of factors taken into account in the application of the criteria mentioned in the 2006 Guidelines or as regards the assessment of those factors — as a basis for dispensing with the conduct of an in-depth review of the law and of the facts (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 62). 317 In the first place, it must be borne in mind that it is common ground between the parties that EIRDs ‘do not generate any sales in the usual sense’, as is noted in recital 639 of the contested decision. 318 In the second place, although Article 23(3) of Regulation No 1/2003 refers in general terms to the gravity and duration of the infringement, the methodology favoured by the Commission for the application of that provision in its 2006 Guidelines gives a central role to the concept of ‘value of sales’, as it is used to determine the economic significance of the infringement and the relative size of each undertaking participating in the infringement (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76). As provided in paragraph 13 of the 2006 Guidelines: ‘in determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the EEA’. In the introduction, those guidelines lay down, in point 6 thereof, that ‘the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’. 319 In the third place, the Commission may refrain from applying the method laid down in the 2006 Guidelines where it has reason to do so. The obligation on the Commission to carry out a specific review of each particular situation when imposing sanctions under Article 23 of Regulation No 1/2003 means that it must, where appropriate, depart from the methodology in the 2006 Guidelines if the specific nature of the particular situation so requires. That principle, which is noted in the case-law (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, paragraphs 209 and 210) is now specifically enshrined in paragraph 37 of the 2006 Guidelines. 320 In the present case, it must be ascertained whether the Commission did not make an error of assessment when it appraised the value of sales of EIRDs on the basis of discounted cash receipts. That involves, inter alia, examining whether the approach favoured by the Commission made it possible to take into account the netting inherent in EIRDs, since those contracts give rise to both receipts and payments. 321 It should be borne in mind that, according to paragraphs 15 and 16 of the 2006 Guidelines, in determining the value of sales by an undertaking, the Commission will take that undertaking’s best available figures. Where the figures made available by an undertaking are incomplete or not reliable, the Commission may determine the value of its sales on the basis of the partial figures it has obtained or any other information which it regards as relevant and appropriate. 322 The approach favoured by the Commission tends to give a better reflection of the value of sales — and therefore the economic importance of the infringement — than the alternative approach proposed by the applicants during the administrative procedure based on net cash receipts and payments. This involves, in essence, taking into account only the balance of the cash flow during the infringement period, namely a figure which is comparable to the profit derived from trading activities. 323 As the Commission rightly noted in recital 659 of the contested decision, such a limitation would run counter to the logic it applied in the methodology in the 2006 Guidelines when it set the basic amount by reference to the value of sales, namely to reflect the economic significance of the infringement and the size of the involvement of the undertaking concerned. 324 Thus, since, first, the approach favoured by the Commission is consistent with the logic underlying the choice of value of sales and, second, the applicants did not propose a more appropriate alternative method during the administrative procedure, it cannot be concluded that the principle of using discounted cash receipts is inherently incorrect. 325 The fact remains that, in the approach favoured by the Commission, ensuring that the determination of the amount of cash receipts is free from flaws is not the only important matter. The determination of the rate of the reduction factor applied is also important. 326 The latter has an essential role in determining the value of sales, due to the particularly high amount that results from taking account only of cash receipts, that is to say without deducting corresponding payments. 327 Thus, by way of illustration, by applying the factors relating to the gravity, duration, additional amount and mitigating circumstances found by the Commission in the contested decision, and without prejudice to the assessment of the substance of those factors, the Court notes that a variation of 0.1% in the rate of that factor would affect the final amount of the fine by almost EUR 16 221 000. 328 It follows from the foregoing that, in the model favoured by the Commission for the purposes of determining the value of sales, precision in the rate of the reduction factor is fundamental, since the tiniest variation in that factor may have a significant impact on the amount of the fine imposed on the undertakings concerned. 329 Subject to that reservation, the first ground for complaint must be rejected. 2. Second ground for complaint, alleging that the Commission was wrong to take into account cash receipts from contracts concluded before the start of HSBC’s participation in the infringement 330 The applicants argue that the Commission was wrong to take into account discounted cash receipts generated by contracts concluded before HSBC’s alleged conduct. 331 The Commission contends that that ground for complaint should be rejected. 332 As the Court has held previously, paragraph 13 of the 2006 Guidelines pursues the objective of adopting, as the starting point for the calculation of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it. Consequently, while the concept of the ‘value of sales’ referred to in paragraph 13 of the Guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not come within the scope of the alleged cartel, it would, however, be contrary to the goal pursued by that provision if that concept were to be understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 19). 333 Consequently, sales made pursuant to contracts which predate the infringement period, can be included in the value of the sales calculated in accordance with paragraph 13 of the 2006 Guidelines, for the purpose of determining the basic amount of the fine, on the same basis as the sales made pursuant to contracts concluded during the infringement period but which were not shown to have specifically been the subject of collusion (judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 20). 334 Such a solution is particularly applicable to the circumstances of the present case because the Euribor manipulation in which HSBC participated affected the variable rate of contracts linked to the 3m Euribor falling due on 19 March 2007, regardless of whether they were concluded before or after 12 February 2007, the starting point of HSBC’s participation in the infringement. 335 The second ground for complaint must therefore be rejected. 3. Third ground for complaint, alleging that insufficient reasons were given for the 98.849% reduction factor applied by the Commission 336 The applicants submit that the determination of the reduction factor is vitiated by an inadequate statement of reasons, in that it does not enable them to understand the reasons why the basic amount of the fine was set at that level. They claim, inter alia, that that amount takes into account the situation of a hypothetical overcharge of 2 to 4 basis points, without explaining how such an overcharge was realistic in circumstances where one bank could actually move a reference rate by no more than 0.1 basis point, as is made clear in footnote 441 of the contested decision. The applicants state that the fact that the Commission applied a novel and unprecedented approach for determining the value of sales means that observance of the obligation to state reasons was particularly necessary. 337 The Commission claims that the statement of reasons in respect of the 98.849% reduction factor is sufficient, since the reasons set out in recitals 643 to 646 of the contested decision enable the applicants to understand why that factor was considered appropriate. With regard to the reference to the overcharge of 2 to 4 basis points referred to in recital 646, it is stated in the contested decision that this is a hypothetical overcharge. The Commission states, in this respect, that it has a margin of discretion when determining the amount of each fine and is not required to apply a precise mathematical approach. 338 It is established case-law that the obligation laid down in the second paragraph of Article 296 TFEU to state adequate reasons is an essential procedural requirement that must be distinguished from the question whether the reasons are well founded, which goes to the substantive legality of the measure at issue. In that vein, the statement of reasons required must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality. As regards, in particular, the statement of reasons in individual decisions, the purpose of the obligation to state the reasons on which such decisions are based is therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 146 to 148 and the case-law cited; judgments of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 114 and 115, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 44). 339 In addition, the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom that measure is of concern within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 150; of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 116; and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 45). 340 It is also settled case-law that the statement of reasons needed, therefore, in principle to be notified to the person concerned at the same time as the decision adversely affecting him. The absence of reasoning cannot be legitimised by the fact that the person concerned becomes aware of the reasons for the decision during the procedure before the Courts of the European Union (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 149; of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 74; and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 46). 341 With respect to a decision imposing a fine, the Commission must state the reasons, particularly with regard to the amount of the fine and the method of calculation (judgment of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraph 91). The Commission must indicate in its decision the factors which enabled it to determine the gravity of the infringement and its duration, there being no requirement for any more detailed explanation or indication of the figures relating to the method of calculating the fine (judgment of 13 July 2011, Schindler Holding and Others v Commission, T‑138/07, EU:T:2011:362, paragraph 243). It must nevertheless explain the weighting and assessment of the factors taken into account (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 61). 342 Where the author of a contested decision provides explanations during the proceedings before the Court to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the EU Courts of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision. Thus, additional explanations going beyond its duty to state reasons may enable undertakings to acquire a detailed knowledge of the method of calculating the fine imposed on them and, more generally, serve to render the administrative act more transparent and facilitate the exercise by the Court of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision, but also the appropriateness of the fine imposed. However, the availability of that possibility is not such as to alter the scope of the requirements resulting from the duty to state reasons (judgment of 16 November 2000, Cascades v Commission, C‑279/98 P, EU:C:2000:626, paragraphs 45 and 47). 343 The Commission refers to the case-law cited in paragraph 341 above in order to make clear, in essence, that it was not required to explain precisely in the contested decision the figures-based assessment which led to the application of a reduction factor of 98.849%. 344 In that respect, the Court finds that, in accordance with the case-law referred to in paragraph 339 above, the requirement to state reasons must be assessed by reference to the circumstances of the case. This case has two notable specific features. 345 First, in the present case the Commission decided to apply the methodology in the 2006 Guidelines rather than departing from it, which it would have been entitled to do in accordance with the case-law referred to in paragraph 319 above and paragraph 37 of the 2006 Guidelines. It therefore chose to apply a methodology in which, for the reasons set out in paragraph 318 above, the determination of the ‘value of sales’ plays a central role, even though it had noted in recital 639 of the contested decision that EIRDs do not generate any sales in the usual sense. 346 Therefore, it was essential that the statement of reasons in the contested decision should enable the applicants to verify whether the proxy chosen by the Commission may be vitiated by an error enabling its validity to be challenged and the Court to exercise its jurisdiction to review legality. 347 Second, as has been pointed out in paragraph 325 above, in the approach taken by the Commission the reduction factor plays an essential role because the amount of cash receipts to which it applies is particularly large. 348 It follows that, in the circumstances of the present case, since the Commission decided to determine the basic amount of the fine by applying a figures-based model in which the reduction factor plays an essential role, it was necessary that the undertakings concerned be placed in a position to understand how it had arrived at a reduction factor set precisely at 98.849% and that the Court be in a position to carry out an in-depth review, in law and in fact, of that factor of the contested decision, in accordance with the case-law cited in paragraph 316 above. 349 Only recitals 643, 644 to 646 and 648 of the contested decision show that the reduction factor had to be greater than 90%, since, first, the comparison of the cash receipts of parties with the net cash settlements under EIRDs showed that the application of a rate between 85% and 90% would lead to fines that were over-deterrent and, second, the cartel at issue gave rise to a much lower overcharge than the 20% usually caused by that type of cartel in classic industries. In recital 648 of the contested decision, the Commission states, first, that it carried out an estimate of the factors mentioned in recitals 643 to 646 without, however, specifying which value it attributed to those various factors in order to set the rate of reduction precisely at 98.849%. Second, it states that it applied the same methodology in determining the values of sales as that used to calculate the amounts of the fines in the settlement decision. However, no further indication as to the determination of the 98.849% reduction rate is apparent from the settlement decision. 350 The only other indication in the contested decision appears in recital 710, where the Commission points out that it stated during the administrative procedure that the uniform reduction factor would be at least 97.5%. 351 Those considerations do not provide the applicants with an explanation of the reasons why the reduction factor was set at 98.849% rather than at a higher level. Further, in the absence of a more detailed explanation of the reasons why those considerations led the reduction factor to be set at that precise level, the Court is 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 the applicants. 352 It is true that, following the hearing, the Commission provided the Court with additional explanations concerning the determination of that reduction factor of 98.849%. However, it is apparent from a combined reading of the case-law cited in paragraphs 340 and 342 above that such additional explanations may be taken into account by the Court, as regards the review by the EU Courts of the grounds of the decision, only on the condition that they supplement a statement of reasons which is already sufficient in itself. However, that is not the case here. 353 In the light of the foregoing, the third ground for complaint in the first part of the plea must be upheld, and Article 2(b) of the contested decision must be annulled, without it being necessary to examine the other parts of the plea. 354 Since the principal head of claim seeking the annulment of Article 2(b) of the contested decision has been granted, there is no need to examine the form of order sought in the alternative by the applicants. Costs 355 Under Article 134(3) of the Rules of Procedure of the Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party. 356 In the present case, the applicants have been unsuccessful as regards their head of claim seeking the annulment of Article 1 of the contested decision and have been successful as regards their head of claim seeking the annulment of Article 2(b) of that decision. In view of those factors, on a fair assessment of the circumstances of the case, each party should be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Second Chamber, Extended Composition) hereby: 1. Annuls 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 (EIRD)); 2. Dismisses the action as to the remainder; 3. Orders HSBC Holdings plc, HSBC Bank plc and HSBC France to bear their own costs; 4. Orders the European Commission to bear its own costs. Prek Buttigieg Schalin Berke Costeira Delivered in open court in Luxembourg on 24 September 2019. E. Coulon E. Buttigieg Registrar Acting President * Language of the case: English.