62022TJ0084_RES
Case T‑84/22
Credit Suisse Securities (Europe) Ltd and UBS Group AG, successor in law to Credit Suisse Group AG and UBS AG, successor in law to Credit Suisse AG
v
European Commission
Judgment of the General Court (Seventh Chamber) of 23 July 2025
(Competition – Agreements, decisions and concerted practices – Sector of Foreign Exchange (Forex) spot trading of G10 currencies – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Exchanges of information – Agreements or concerted practices relating to G10 foreign exchange activities – Restriction of competition by object – Single and continuous infringement – Principle of sound administration – Rights of the defence – Fines – Basic amount – Proxy for value of sales – Article 23(2) and (3) of Regulation (EC) No 1/2003 – Unlimited jurisdiction)
Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof – Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market – Coordination of prices and bond-trading activities by traders from financial institutions – Exchanges of commercially sensitive information – Anticompetitive conduct
(Art. 101(1) TFEU)
(see paragraphs 45-47, 85-88, 93-97, 102-106, 112-117, 122, 126, 134-136, 142-145, 150-163, 170-176, 181)
Judicial proceedings – Application initiating proceedings – Formal requirements – Brief statement of the pleas in law on which the application is based – General reference to other documents annexed to the application – Admissibility – Conditions
(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 76(d))
(see paragraphs 65-74, 179, 180)
Competition – Administrative procedure – Commission decision finding an infringement – Obligation to state reasons – Scope
(Arts 101 and 296, second para., TFEU)
(see paragraphs 189, 321, 364)
Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Distinction between restrictions by object and by effect – Restriction by object – Sufficient degree of harmfulness – Assessment – Exchanges of commercially sensitive information between traders from financial institutions – Exchanges aimed at coordinating prices, disclosing sensitive information and coordinating trading activities – Exchanges constituting a restriction of competition by object – Alleged pro-competitive effects of information exchanges – Irrelevant
(Art. 101(1) TFEU)
(see paragraphs 192-198, 211-217, 220-225, 228-230, 236-241, 243-246, 248-250, 252-254, 296-302)
Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements of other undertakings which participated in the infringement – Whether permissible – Probative value of voluntary statements by the main participants in a cartel with a view to benefiting from application of the leniency notice
(Art. 101 TFEU; Commission Notice 2006/C 298/11)
(see paragraphs 262-270)
Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Attribution of liability to an undertaking for only part of that infringement – Conditions
(Art. 101(1) TFEU)
(see paragraphs 324-327, 329, 349-353)
Competition – Administrative procedure – Commission decision finding an infringement – Burden on the Commission of proving the infringement and its duration – Extent of the burden of proof – Single and continuous infringement – Single infringement – Existence of an overall plan pursuing a single anticompetitive objective
(Art. 101(1) TFEU)
(see paragraphs 328, 334-342)
Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Attribution of liability to an undertaking for only part of that infringement – Sufficiency, in order to engage the liability of the undertaking, of tacit approval without publicly distancing itself or reporting the matter to the competent authorities
(Art. 101(1) TFEU)
(see paragraphs 357-362)
Competition – Administrative procedure – Principle of sound administration – Requirement of impartiality – Scope – No breach
(Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 41)
(see paragraphs 378-387)
Competition – Fines – Amount – Determination – Discretion of the Commission – Judicial review – Unlimited jurisdiction of the EU judicature – Scope – Substitution of grounds for the contested decision
(Arts 101, 261 and 263 TFEU; Council Regulation No 1/2003, Art. 31)
(see paragraphs 391-394)
Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Use of a proxy value – Obligation on the Commission to take account of the best available figures – Burden of proof that that obligation has been met
(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, point 13 and 15)
(see paragraphs 403, 404, 424, 426-443)
Competition – Fines – Amount – Determination – Method of calculation laid down by the guidelines drawn up by the Commission – Obligation on the Commission to apply the guidelines in compliance with the principles of equal treatment and the protection of legitimate expectations
(Art. 101 TFEU; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)
(see paragraph 425)
Competition – Fines – Amount – Determination – Principle of equal treatment – Taking into account of differences between, and of the particular circumstances of, the undertakings concerned
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))
(see paragraphs 444-446, 492-494)
Competition – Fines – Decision imposing fines – Obligation to state reasons – Scope
(Arts 101 and 296 TFEU)
(see paragraph 465)
Competition – Fines – Amount – Determination – Determination of the basic amount – Gravity of the infringement – Criteria for assessment – No binding or exhaustive list of criteria – Commission’s margin of discretion
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 19 to 23)
(see paragraphs 472-477)
Competition – Fines – Amount – Determination – Adjustment of the basic amount – Principle of the individualisation of sanctions – Rules for taking account of aggravating or attenuating circumstances
(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)
(see paragraphs 493, 496, 504)
Competition – Fines – Amount – Determination – Judicial review – Unlimited jurisdiction of the EU judicature – Scope – Determination of the amount of the fine imposed – Criteria for assessment
(Art. 101(1) and 261 TFEU; Council Regulation No 1/2003, Arts 23(3) and 31)
(see paragraphs 509-528)
Résumé
The General Court confirms the decision of the European Commission (
1
) in so far as it finds that the undertakings Credit Suisse Group, Credit Suisse and Credit Suisse Securities (Europe) (together, ‘Credit Suisse’), participated in an agreement in the sector of foreign exchange spot trading of G10 currencies. (
2
) Nevertheless, it annuls the fine imposed on Credit Suisse in the Commission’s decision, on account of the error made by that institution in so far as concerns the use of certain data in the calculation of the fine and, ruling on the application made by the applicants for a reduction of the amount of the fine, imposes a fine in a lesser amount than that imposed in the contested decision.
Further to a leniency application made in 2013 by UBS, the Commission opened an investigation with a view to determining whether there existed an agreement in the sector of foreign exchange spot trading of G10 currencies. Foreign exchange spot trading of G10 currencies is defined as an agreement between two parties to exchange two currencies, namely to buy a certain amount (‘the notional amount’) of one currency in exchange for its equivalent in another currency at the value at the time of the agreement (‘exchange rate’). Exchange rates vary according to information about their fundamental value. In the short term, they are mainly determined by traders’ order flows, while market fundamentals determine exchange rates in the longer term.
Following its investigation, the Commission found that the traders of several undertakings active in the banking and financial sector, including Credit Suisse, had exchanged information in order to obtain a competitive advantage on the spot trading market. Furthermore, in the Commission’s view, that conduct formed part of an overall plan pursuing a single anticompetitive objective. The Commission therefore concluded that Credit Suisse had infringed Article 101(1) TFEU by participating in exchanges of information forming part of a single and continuous infringement the object of which was to restrict or distort competition in the sector of foreign exchange spot trading of G10 currencies which covered the whole of the European Economic Area (EEA). Consequently, it imposed a fine on Credit Suisse in the amount of EUR 83294000.
UBS Group – the successor in law to Credit Suisse Group –, UBS – the successor in law to Credit Suisse –, and Credit Suisse Securities (Europe) Ltd brought an action before the General Court seeking, principally, annulment of the contested decision and, in the alternative, the reduction of the amount of the fine imposed on Credit Suisse.
Findings of the Court
In the first place, the Court confirms the anticompetitive nature of almost all of the discussions between the traders, which took place between May 2011 and July 2012 and in which Credit Suisse participated from 7 February until 12 July 2012 (‘the relevant period’); those discussions took the form of exchanges of commercially sensitive information.
More specifically, with one exception, the discussions between the traders of the banks concerned, which involved Credit Suisse, revealed an exchange of precise, current and confidential information. By virtue of its subject matter and its level of detail and the fact that it was not accessible to competitors not present in the chatroom concerned, that information conferred a commercial advantage on the recipients thereof by enabling them to adapt their trading strategies as a result and to reduce the uncertainties inherent in the foreign exchange spot trading market.
It follows that, in spite of its error of assessment as regards the anticompetitive nature of one of those discussions, the Commission rightly found that the exchanges of information concerned supported the finding as to the existence of agreements and/or concerted practices of an anticompetitive nature within the meaning of Article 101 TFEU.
In the second place, as regards the question whether the exchanges of information at issue constitute a restriction ‘by object’, the Court recalls that such a characterisation is subject to the finding that the agreements at issue present a sufficient degree of harm to competition, having regard to their content, their objectives and their economic and legal context.
In the present case, for the purposes of assessing the economic context of which the exchanges of information formed part, the Commission erred in finding that the foreign exchange spot trading market was transparent at the material time. In a transparent market, information is immediately available free of charge to all market participants, which is not the case in the foreign exchange spot trading market having regard to the existence of a number of types of information.
However, that error of assessment has no bearing on the characterisation of the exchanges of information at issue as a ‘restriction by object’. Those exchanges, which related bid-ask spreads, customer orders, open risk positions and current or prospective trading activities, served to reduce the normal uncertainties inherent in the relevant market and therefore presented a sufficient degree of harm to competition.
In so far as concerns the applicants’ arguments that the conduct at issue is justified in the light of its pro-competitive effects, the Court points out, first, that it is not necessary to take into consideration the pro-competitive effects as such, for the purposes of assessing whether the exchanges of information at issue should be characterised as a restriction ‘by object’ Secondly, consideration of the alleged legitimate objectives is not decisive in that assessment.
In the third place, the Court examines the plea disputing the existence of a single and continuous infringement. According to the applicants, the Commission failed to establish that there was an overall plan pursuing a single anticompetitive objective to which Credit Suisse intended to contribute, or of which the latter was aware.
In the present case, the Court considers that the Commission rightly found that the single anticompetitive objective pursued by the traders of the banks concerned was to reduce the normal uncertainties inherent in the spot trading market, thus comforting the traders in their pricing and risk management decisions. The exchanges of commercially sensitive information, in which Credit Suisse participated, also pursued that objective.
Furthermore, several objective factors confirm that the anticompetitive conduct adopted by the participants was linked and that that conduct was intended to achieve the aim pursued by the overall plan found by the Commission.
First of all, the conduct at issue followed the same modus operandi, namely daily and frequent discussions on commercially sensitive information within a ‘private’ chatroom, access to which was by personal invitation only.
Next, the conduct in question involved a stable group of undertakings and took place between the same natural persons involved on behalf of those undertakings during parallel or adjacent periods. That group was enlarged once the trader from one of those banks changed employer and took up a position with Credit Suisse, leading to Credit Suisse’s participation in the exchanges of commercially sensitive information in the chatroom at issue throughout the relevant period.
Finally, all the conduct in question related to the same products, namely G10 currencies.
In so far as concerns Credit Suisse’s intention to contribute to the common objective and its knowledge of the offending conduct of the other participants, the Court confirms, first, that the previous employment of the Credit Suisse trader formed part of the context and could be taken into account in order to establish that Credit Suisse was aware of the infringement.
Second, the Court recalls that the finding of the existence of a single and continuous infringement is distinct from the question whether liability for that infringement as a whole is attributable to an undertaking. Moreover, whether liability for the single and continuous infringement as a whole may be attributed to an undertaking must be assessed in the light of two factors, namely, first, the intentional contribution of that undertaking to the common objectives pursued by all the participants and, secondly, its knowledge of the infringing conduct planned or implemented by other undertakings in pursuit of the same objectives or the fact that it could reasonably have foreseen it and had been prepared to take the risk.
However, Credit Suisse was found liable for the infringement at issue not as a whole, but in so far as it participated in extensive and recurring exchanges of current or forward-looking and commercially sensitive information. Thus, it is entirely unnecessary to assess whether it was aware of the collusive conduct of the other members of that infringement and intended, through its own conduct, to contribute to the common objectives pursued by all the participants, since those factors have no bearing on whether the infringement at issue may be attributed to that bank.
Furthermore, the Court finds that the Commission was entitled to consider that that bank had been aware of the exchanges that had taken place in the chatroom at issue, to which its trader was connected, even though he did not actively participate in some of the exchanges analysed in the contested decision, and that, in the absence of any public distancing from the practices concerned or any reporting thereof to the administrative authorities, Credit Suisse could be held liable. The position would have been different only if the applicants had been able to demonstrate, by means of evidence that was certain and precisely time-stamped, that Credit Suisse had not in fact been aware of the offending exchange or exchanges, or had become aware of them only after a period of time such that the information contained in those exchanges was no longer sensitive.
In the fourth and last place, the Court examines the plea alleging errors made by the Commission in the various stages of calculating the amount of the fine imposed on Credit Suisse.
In determining the amount of the fine imposed, the Commission applied the method set out in the 2006 Guidelines. (
3
) However, as regards the calculation of the basic amount as part of that method, the Commission decided to use a proxy value instead of the value of sales provided for in point 13 of those guidelines. As the starting point for the calculation of that proxy value, the Commission relied on the annualised notional amounts corresponding to the most traded currency pairs of the transactions which took place with counterparties located in the EEA during the months of the undertakings’ participation in the infringement. Those annualised notional amounts were then multiplied by an adjustment factor consisting, first, of an adjustment factor related to market-making and, second, an adjustment factor related to trading on own account.
For the purposes of calculating the adjustment factor related to market-making, the sample used by the Commission concerned 16 exchanges of information that took place in 2011 and in 2012.
Having recalled that it was for the Commission to ensure that it takes the best available figures into consideration, the Court observes that the small number of elements in the sample used by the Commission to calculate the adjustment factor in question, more than half of which do not relate to the relevant period, do not have a level of detail specific to each currency pair selected as relevant by the Commission in that calculation. Consequently, that sample cannot be regarded as providing data that were sufficient to ensure that all the relevant currency pairs were proportionately represented in the light of the logic of the adjustment factor related to market-making, that is to say the taking into account of the fact that trading revenues are embedded in the bid-ask spread applied to a trade in a currency pair involving an EEA currency.
By contrast, the data proposed to the Commission by the applicants for the purpose of determining the adjustment factor related to market making, namely the Bloomberg BFIX data, were the best available figures for implementation of the methodology defined by the Commission for the purposes of calculating the proxy.
Those figures make it possible to take into account all the currency pairs included among the currencies concerned by the calculation of the adjustment factor in question, provide a larger sample so as to reflect proportionately the annualised notional amounts to which that factor was applied, and relate to the period of Credit Suisse’s participation in the infringement. They must therefore be regarded as more consistent, complete and reliable than those on which the Commission relied in order to reflect the economic importance of the infringement and Credit Suisse’s relative weight in it.
The use by the Commission of Bloomberg BFIX data would also not have infringed the principle of equal treatment in view of the other participants in the infringement, which principle cannot preclude the taking into account, in the present case, of the individualised data of the undertakings participating in the infringement, while applying the same methodology for the calculation of the proxy. The use of individualised bid-ask spread data relating to the period of Credit Suisse’s participation in the infringement is merely one means of implementing the methodology developed by the Commission and applicable to all the parties to that infringement, which does not alter it in substance but is capable only of increasing the accuracy of the proxy for that bank’s value of sales as regards the scale and extent of the bank’s activities during the period of its participation in the infringement.
In the light of the foregoing, the Court annuls the fine imposed on Credit Suisse in the contested decision.
Next, ruling on the applicants’ application for a reduction of the amount of the fine, pursuant to the unlimited jurisdiction conferred on the Court by Article 261 TFEU and Article 31 of Regulation No 1/2003 and taking, inter alia, the Bloomberg BFXI data into account in the calculation of the proxy value, the Court imposes a fine in the amount of EUR 28920000, for which the applicants are jointly and severally liable.
(
1
)	Commission Decision C(2021) 8612 final of 2 December 2021 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.40135 – FOREX (Sterling Lads)) (‘the contested decision’).
(
2
)	The currencies concerned by the decision are the following: the euro (EUR); the Australian dollar (AUD); the Canadian dollar (CAD); the Swiss franc (CHF); the Danish krone (DKK); the British pound (GBP); the Japanese yen (JPY); the Norwegian krone (NOK); the New Zealand dollar (NZD); the krona (SEK); and the United States dollar (USD).
(
3
)	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’).