OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 12 March 2026 (1)
Case C‑160/24 P
JPMorgan Chase & Co.,
JPMorgan Chase Bank, National Association
v
European Commission
( Appeal – Competition – Article 101 TFEU – Euro Interbank Offered Rates – Article 263 TFEU – Duty to state reasons – Unlimited jurisdiction – Cross-appeal – General Court’s disregard of an amending decision – Article 288 TFEU )
I.      Introduction
1.        By their appeal, JPMorgan Chase & Co., and JPMorgan Chase Bank, National Association (together, ‘JPM’) ask the Court of Justice to set aside, in part, the judgment of the General Court (2) which partly dismissed and partly upheld, their action for annulment. Their action was directed, in essence, against two European Commission decisions: (i) the
decision closing the investigation on the Euro Interest Rate Derivatives (EIRD) sector (‘the contested decision’), (3) and (ii) a decision amending the contested decision, subsequently adopted (‘the amending decision’). (4) For its part, the Commission also lodged a cross‑appeal, asking the Court to set aside in part the judgment under appeal.
2.        In accordance with the Court’s request, I shall restrict my analysis in this Opinion to two aspects of the dispute: (i) the third plea of the main appeal which concerns, essentially, the General Court’s duty to provide reasons when exercising unlimited jurisdiction with regard to the amount of the fine imposed by the Commission on JPM; and (ii) the single plea put forward in the cross-appeal which concerns, essentially, the General Court’s decision to disregard the supplementary reasoning that the amending decision had added to the contested decision, when reviewing the statement of reasons concerning one of the parameters that the Commission had used to calculate the amount of the fine.
II.    Factual and legal background
3.        The facts and the legal background of the present case, for the purposes of this Opinion, can be summarised as follows.
4.        On 7 December 2016, the Commission adopted the contested decision on the basis of Articles 7 and 23 of Regulation (EC) No 1/2003.(5) It found
that JPM and other undertakings had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 27 September 2006 to 19 March 2007, in a single and continuous infringement having as its object the distortion of the normal course of pricing on the EIRD market (Article 1(c) of the contested decision) and imposed on those undertakings a fine (Article 2(a), (b) and (c) of the contested decision). The fine imposed on JPM (6) amounted to EUR 337 196 000.
5.        As regards the determination of the fines imposed on the undertakings that participated in the infringement, including JPM, the Commission stated that it was not in a position to apply in full the methodology laid down in its ‘Fining Guidelines’. (7) Those guidelines are structured around a two-step approach: first, the determination of a basic amount for each undertaking; second, the adjustment of that amount, as appropriate, upwards or downwards. As a rule, the basic amount is calculated by reference to the value of the sales of goods or services to which the infringement directly or indirectly relates, within the relevant geographic area of the EEA.
6.        However, since EIRDs do not generate any sales in the usual sense of the term, in the contested decision the Commission stated that the value of sales had to be established by means of a proxy. The Commission considered it appropriate to use as a proxy the cash receipts generated by the cash flows that each bank received from their portfolio of EIRDs linked to any Euribor tenor and/or EONIA and entered into with EEA-located counterparties. (8) The Commission also considered it appropriate to discount the cash receipts figures by a uniform factor to take account of the particularities of the EIRD market. Having regard to a number of considerations, the Commission fixed the discount factor at 98.849%. (9)
7.        Each of the addressees of the contested decision brought an action for annulment against it before the General Court.
8.        By its judgment of 24 September 2019, HSBC Holdings and Others v Commission, (10) the General Court annulled Article 2(b) of the contested decision, on the ground that the Commission had failed to state reasons to the requisite legal standard as to why the discount factor had been set at 98.849% rather than at a higher level, and dismissed the action as to the remainder.
9.        By letter of 24 February 2021, the Commission informed JPM and the other addressees of the contested decision of its intention to amend that decision in the light of the judgment of the General Court in HSBC. By the same letter, and by letter of 16 April 2021, the Commission provided all the addressees with further information and explanations as to the reasons why the discount factor was set at 98.849%. JPM submitted its observations on those letters on 14 May 2021.
10.      On 28 June 2021, the Commission adopted the amending decision. Since the discount factor applied in the contested decision was identical for all addressees, it considered that the General Court’s reasoning in HSBC on the inadequacy of the statement of reasons was likely to apply equally to the fines imposed on the other addressees. It therefore took the view that, in accordance with the principle of good administration, it was appropriate to correct the errors identified by that judgment by amending the contested decision, as regards JPM and the other addressees, through the supplementation of the reasoning relating to the discount factor.
11.      By its judgment of 12 January 2023, HSBC Holdings and Others v Commission, (11) the Court of Justice set aside the judgment of the General Court in HSBC, in so far as the General Court had rejected the primary claim for annulment of Article 1 of the contested decision and the claim, in the alternative, for annulment of Article 1(b) of that decision. In addition, the Court dismissed the action brought by HSBC in Case T‑105/17, in so far as it sought the annulment of Article 1 of the contested decision and, in the alternative, Article 1(b) of that decision.
12.      On 27 November 2024, the General Court dismissed the action brought by HSBC Holdings and Others seeking, first, the annulment of Article 1 of the amending decision and of Article 2(b) of the contested decision, as amended, and, second, in the alternative, a reduction in the amount of the fine imposed on them in the amending decision. (12)
III. Proceedings before the General Court and the judgment under appeal
13.      In its application under Article 263 TFEU, JPM sought, in essence, the annulment in part of the contested decision or, in the alternative, the annulment or reduction of the fine imposed in that decision. Furthermore, it sought an order that no account is to be taken of the amending decision or, in the alternative, the annulment of that decision. Finally, it asked the General Court to order the Commission to bear the costs.
14.      For its part, the Commission asked the General Court to dismiss the action and order JPM to bear the costs.
15.      On 5 June 2019 and 31 March 2021, the General Court decided to stay the proceedings, pending the judgment of the Court of Justice in HSBC Holdings and Others v Commission. (13)
16.      On 8 September 2021, JPM lodged a statement of modification, and on 26 November 2021 the Commission lodged its observations on that statement.
17.      By the judgment under appeal, the General Court: (i) found that the amendments to the contested decision introduced by way of the amending decision had to be disregarded; (ii) annulled Article 2(c) of the contested decision for failure to state reasons; (iii) in the exercise of its unlimited jurisdiction, set the amount of the fine imposed on JPM at EUR 337 196 000; (iv) dismissed the action as to the remainder; and (v) ordered each party to bear its own costs.
IV.    Proceedings before the Court of Justice and the forms of order sought
18.      On 29 February 2024, JPM lodged its appeal against the judgment of the General Court. It asks the Court of Justice to: (i) set aside points 3 to 5 of the operative part of the judgment under appeal; (ii) rule on its application at first instance by annulling Article 1(c) of the contested decision and/or the fine; and (iii) order the Commission to pay the costs.
19.      On 24 May 2024, the Commission lodged a cross-appeal, asking the Court of Justice to: (i) set aside the judgment under appeal in so far as it annuls Article 2(c) of the contested decision; (ii) dismiss JPM’s application in Case T‑106/17 in so far as it seeks the annulment of that provision or, alternatively, refer the case back to the General Court; and (iii) reserve the costs, or order JPM to pay them.
20.      The Commission asks the Court to dismiss the main appeal, and JPM asks the Court to dismiss the cross-appeal.
21.      The parties were heard at the hearing held on 14 January 2026.
V.      Assessment
22.      In its appeal, JPM puts forward three pleas, each composed of several parts. However, as mentioned in the introduction to this Opinion, my analysis of the main appeal will be limited to the third plea, which concerns the manner in which the General Court dealt with some of JPM’s arguments concerning the amount of the fine imposed by the Commission. In this Opinion, I shall also cover the single plea which forms the basis of the Commission’s cross-appeal, that is, the General Court’s refusal to consider the amendments made to the contested decision by means of the amending decision (‘the supplementary reasoning’).
23.      I shall begin with the Commission’s cross-appeal, which, if well
founded, would lead to the setting aside of the judgment under appeal, in so far as it annuls Article 2(c) of the contested decision. In that event, there would be no need to examine JPM’s third plea.
A.      The Commission’s cross-appeal
24.      The Commission’s cross-appeal is directed against paragraphs 623 to 634 of the judgment under appeal, in which the General Court decided – when reviewing JPM’s arguments concerning an alleged inadequate statement of reasons for setting the discount factor at 98.849% – that the supplementary reasoning had to be disregarded.
1.      Arguments of the parties
25.      The Commission contends that the amending decision is a ‘decision’ within the meaning of Article 288 TFEU. The fact that it did not amend the operative part of the contested decision does not affect its nature. By disregarding the supplementary reasoning provided in that decision, the General Court denied the Commission the power to adopt, amend or withdraw decisions under Article 7 of Regulation No 1/2003, exceeding its competence under Article 263 TFEU.
26.      JPM contends that, if the reasons for a decision could be supplemented by an amending decision, adopted years after the initial decision, the duty to provide reasons at the same time as the original decision would be rendered nugatory. It further defends the General Court’s finding that there is no material difference between providing supplementary reasoning in a court submission or by an amending decision. In its view, that finding is supported by two judgments of the EU Courts.
2.      Analysis
27.      I am of the view that the Commission’s cross-appeal is well
founded.
28.      The General Court rightly opens its analysis by emphasising that, consistent with settled case-law, the Commission’s power to adopt a particular act necessarily also includes the power to amend that act, so long as the relevant Treaty provisions,
including all formal requirements and procedural safeguards, are fully observed (paragraph 627 of the judgment under appeal).
29.      Yet, in paragraphs 628 to 630 of the judgment under appeal, the General Court went on to explain why, in the circumstances of the present case, it considered that the supplementary reasoning could not be taken into account. It is precisely those passages that the Commission challenges.
30.      In particular, the General Court held that, since the amending decision did not alter the operative part of the contested decision, but merely supplemented its statement of reasons, it could not ‘be regarded as a new decision modifying the contested decision within the meaning of the case-law cited in paragraph 627 [of that judgment],  but must be treated as a supplement to the reasoning added by the defendant in the context of judicial proceedings’.
31.      In that regard, the General Court recalled that, according to settled case-law, a failure to state reasons in a challenged act cannot, in principle, be remedied by additional explanations provided during the course of the proceedings before the EU Courts. In the present case, the Commission had not – the General Court noted – alleged that it was impossible, at the time, to state the reasons for the contested decision to the requisite legal standard. Accordingly, it held that a supplement to the statement of reasons provided during the judicial proceedings could not be accepted’, and thus decided to ‘disregard’ the amending decision.
32.      For the reasons set out below, I find certain aspects of those statements rather puzzling.
(a)    Validity of the amending decision
33.      First, it is well established that acts of the EU institutions are, in principle, presumed to be lawful and, accordingly, they produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality. (14)
34.      However, the judgment under appeal contains no finding that the amending decision is null or invalid, although JPM had – even if only in the alternative – challenged its validity. (15) In the absence of any such finding, the General Court could not simply ‘disregard’ the changes effected by the amending decision to the contested decision. In doing so, the General Court breached the principle underlying the case-law referred to in the previous point, by denying legal effects to a valid decision.
35.      The General Court also exceeded the powers conferred upon it by Article 263 TFEU, which provides the procedure for reviewing the legality of acts adopted by the EU institutions. Within the framework of that procedure, the EU judiciary can determine whether an act is lawful or unlawful. Tertium non datur: there exists no third genus of act that is valid but whose effects may nonetheless be disregarded. Provided that the act in question is relevant and applicable (ratione materiae, temporis, and so forth), and unless its effects have been suspended under Articles 278 and 279 TFEU, it must be regarded as having full legal effect, including in cases where its validity has been challenged. (16)
36.      Second, it is common ground, as noted at point 28 above, that the Commission’s power to adopt a particular act necessarily carries with it the power to amend that act, provided that the relevant Treaty provisions, together with
all formal requirements and procedural safeguards, are fully observed. Strict adherence to both substantive and procedural rules is therefore essential. There may, for instance, be circumstances in which an institution can no longer amend an act – such as where the original act ‘had been adopted as part of a rigidly regulated procedure which carried an obligation for the competent institution to adopt the subsequent act in the procedural chain by a set deadline, after which the institution lost the power to take a decision’. (17)
37.      Nevertheless, the judgment under appeal makes no reference to any element indicating that (i) one or more of the substantive or procedural requirements for the adoption of the amending decision were, at the time of its adoption, not met; or (ii) the Commission had lost the power to amend the act.
38.      It follows that the General Court cannot be considered to have found – even implicitly – that the Commission was precluded from adopting the amending decision.
39.      Third, there may be situations in which, notwithstanding the fact that the substantive and procedural conditions for the adoption of the amending act appear, formally, to be satisfied, the institution has nevertheless exercised its power unlawfully, by failing to comply with a rule or principle of primary law.
40.      Thus, an EU act is invalid where its author has committed a ‘misuse of powers’. (18) That is so where ‘it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case’. (19)
41.      Furthermore, it is self-evident that an amending act must comply with the general principles of EU law, including, inter alia, the principles of legal certainty and the protection of legitimate expectations. (20) There may therefore be situations in which a person affected by a given act may legitimately oppose the adverse legal effects resulting from the withdrawal or amendment of an existing act. That may be so, in particular, where the EU act in question confers a subjective right on its addressee. (21)
42.      Once again, none of those circumstances is referred to, let alone established, in the judgment under appeal. Accordingly, there is nothing in that judgment to suggest that the contested decision was invalid on account of a misuse of powers or an infringement of the Treaties, or of any rule of law relating to their application.
(b)    The nature of the amending decision and its components
43.      Fourth, decisions and pleadings submitted in judicial proceedings are, quite clearly, distinct legal acts. They are adopted in accordance with different procedures and possess markedly different legal effects. So long as the legal act challenged before the EU Courts remains valid, those courts cannot, in principle, recharacterise it as being of a different nature or type from that which emerges from its wording.
44.      In accordance with the fourth paragraph of Article 288 TFEU, ‘a decision shall be binding in its entirety.’
Consequently, the General Court could not decide to treat a valid decision as if – for the purposes of ongoing proceedings – it only had the value of a court submission, without contravening Article 288 TFEU.
45.      Admittedly, in a limited number of exceptional cases, the Court has held that an act formally challenged before it was, in reality, another act ‘in disguise’. In those cases, the Court examined the content of the act and the circumstances of its adoption in order to determine its true nature.(22) That case-law is rooted, above all, in the need to prevent the constitutional principle that acts of the EU institutions should, as a rule, be subject to judicial review (23) from being undermined by a mere re-labelling or ‘camouflage’ of the act concerned. (24)
46.      That case-law is, however, inapplicable in the present case. The amending decision was adopted by the institution competent to do so under Regulation No 1/2003 and was genuinely intended to remedy a potential legal defect affecting the validity of the original act. Its adoption therefore falls squarely within the Commission’s task, under Article 105(1) TFEU, to ‘ensure the application of the principles laid down in Articles 101 and 102 [TFEU]’. Moreover, it is beyond dispute that the EU Courts have jurisdiction to review the lawfulness of the amending decision, as appropriate, under Articles 263, 267 and 277 TFEU.
47.      Fifth, the judgment under appeal seems to imply that only if the amending decision had altered the operative part of the contested decision could its impact on the ongoing proceedings have warranted a different assessment.
48.      That cannot be correct. The Court has consistently held that the operative part of an act is indissociably linked to the statement of reasons, with the result that, for the purposes of interpretation, account must be taken of the reasons which led to its adoption. (25) In accordance with Article 296 TFEU, the statement of reasons and the operative part of any binding EU act constitute an inseparable whole. (26) There is thus no principled basis for treating, in proceedings before the EU Courts, an act amended only as regards one of those two essential components differently from an act in which both have been amended.
49.      Sixth, it is true that, as the General Court observed in the judgment under appeal, the Court has consistently held, first, that the statement of reasons must, in principle, be notified to the person concerned at the same time as the decision adversely affecting him or her; and, second, a failure to state reasons in a contested act cannot be remedied by additional explanations provided during the course of the proceedings before the EU Courts.
50.      However, neither of those lines of case-law is relevant in the present context. I shall begin with the second line of case-law referred to in the preceding point.
51.      That line of case-law concerns – and this bears emphasis – situations in which additional reasoning for a contested act is advanced by its author in the written and oral submissions made in the course of proceedings before the EU Courts. (27) In my view, it cannot be transposed, even by analogy,
to the circumstances of the present case, which concern a modification of the statement of reasons resulting from the formal amendment of the contested act itself.
52.      The duty to state reasons pursues a twofold objective: first, to enable the persons concerned to understand the reasons for the act and, where appropriate, to decide whether to challenge its validity; and, second, to enable the EU Courts to exercise their power of judicial review. (28) Permitting the author of an act to articulate the reasons for its adoption for the first time in the courtroom, once the act has been challenged, would manifestly deprive Article 296 TFEU of much of its practical effect. The same logic also applies to additional explanations provided informally prior to court proceedings and subsequently reiterated at the litigation stage. (29)
53.      That logic is, however, inapplicable where an act has been validly amended and notified to its addressees in due form and in good time. It is immaterial whether that amendment occurs before the commencement of judicial proceedings or in the course thereof. In such circumstances, it is the act as amended which becomes binding on the addressees and whose validity, if contested, is reviewed by the EU Courts.
54.      By contrast, the original version of the act ceases to exist in the EU legal order and can ‘revive’ only if the amending act is annulled by the EU Courts. (30) By declining to take account of the amending decision, the General Court in effect ruled on the validity of a decision which, in its original form, was no longer in force.
55.      Consequently, taking into account of the amending act in the pending proceedings does not undermine the objectives pursued by Article 296 TFEU. On the contrary, the adjustment of the proceedings allows those objectives to be achieved more effectively and without unnecessary delay.
56.      It is for the same reason that JPM’s reliance on the first line of case-law referred to above – according to which the statement of reasons must, in principle, be notified to the person concerned at the same time as the decision adversely affecting him or her – is likewise unavailing. The statement of reasons of the act which is now binding on JPM, and whose validity the General Court could have examined, is that included in the contested decision as amended by the amending decision. That statement of reasons was communicated at the time when the decision was amended – validly, it must be presumed – by an act of the same legal form and having the same legal effects.
57.      That said, I must stress an important point: where the amending decision has modified the original reasoning underpinning the imposition of the fine – on the ground that that reasoning was, or was presumed to be, insufficient – the obligation to pay the fine cannot logically be considered to arise from the adoption of the contested decision. It arises only from the date on which the amending decision was adopted, since it is that act alone which now provides the legally sufficient basis for the fine.
58.      As explained, the statement of reasons and the operative part of the decision are inextricably linked. The Commission itself observed in its cross-appeal that any ‘modification of the statement of reasons necessarily entails a modification (of the content and scope) of the operative part of the contested decision, since the statement of reasons and the operative part constitute an indissoluble whole, even where the operative part, considered in isolation, remains formally unchanged’.
59.      In the aftermath of the General Court’s judgment in HSBC, the Commission had two principal options, if it
considered its decision, on the whole, to be correct: (i) to withdraw the contested decision and re-issue it, with certain amendments; or (ii) to amend the contested decision by means of an amending decision. The legislative technique chosen by the Commission in order to take the necessary measures to comply with the General Court’s judgment in HSBC fell within the margin of discretion enjoyed by that institution. (31) It is, however, clear that the choice of one technique over the other could not adversely affect the financial interests of the addressees of the contested decision. To conclude otherwise would result in an unjustified unequal treatment of the undertakings affected, depending solely on whether their actions had been heard (as in Case T‑105/17) or stayed by the General Court (as in the Cases T‑106/17 and T‑113/17). (32)
60.      When asked at the hearing whether it agreed with the above, the Commission stated that it did not. Its arguments on this point, however, appear internally inconsistent. On the one hand, in contesting the General Court’s approach to the amending decision, the Commission stresses that the operative part of the original decision is necessarily affected by the changes subsequently made to its recitals. On the other hand, it maintains that the additional reasoning constitutes nothing more than a more detailed explanation of what the Commission decided when the contested decision was adopted. That position is logically untenable: if the operative part is indeed affected, the additional reasoning cannot be merely explanatory, and if it is merely explanatory, it cannot materially affect the operative part. The Commission cannot have it both ways. Besides, to accept the Commission’s argument in this regard would also amount to applying the amending decision retroactively, in clear breach of a well-established general principle of EU law. (33)
61.      Accordingly, I am of the view that the Commission is, in principle, empowered to amend an existing decision, even where that decision is subject to proceedings before the EU Courts. This, of course, is subject to the qualification that the Commission’s course of action must not amount to misuse of powers within the meaning of Article 263 TFEU. Moreover, the Commission cannot, through an amending decision, ‘cure’
a possible invalidity of the original act with a retroactive effect.
(c)    Sound administration of justice and judicial economy
62.      Seventh, it is, in my view, clear that the Commission possessed the power to amend the contested decision both before JPM’s challenge and after a judgment of the EU Courts, a fortiori, where that judgment were to result in a partial annulment of the contested decision. When asked at the hearing whether it agreed with that position, JPM confirmed that it did.
63.      If that is so, I fail to discern any reasonable basis for treating the Commission’s power to amend the act as being ‘paralysed’ during the interval between those two events. Indeed, if the Commission forms the view that the act is invalid, it is entirely consistent with its duty of good administration to act without delay to remedy any defects. The mere fact that the act may have been challenged before the EU Courts is, in general, immaterial in that context.
64.      That position may, at first sight, appear to conflict with the effective protection of the applicants’ right of defence or with the sound administration of justice. A more thorough reflection on this matter, however, leads inevitably to another view.
65.      With respect to the applicants’ right of defence, that right is not infringed provided that (i) they are heard, by the author of the act
before
the adoption of the amending act; (34) and (ii) they are afforded, by the EU Courts, the opportunity to amend their submissions and requests in the pending proceedings. (35) Indeed, the very existence of a specific provision in the Rules of Procedure of the General Court – Article 86 thereof – which allows applicants to modify their application ‘where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter’, is highly instructive as to the Commission’s capacity to amend an act that is subject to annulment proceedings.
66.      Moreover, the addressees of the contested decision do not incur any adverse financial consequence as a result of the amendment of the original decision, since, as explained above, the amendment does not operate retroactively. Nor does the amendment place an applicant at a procedural disadvantage: should an applicant decide to discontinue its action for annulment, in the light of that amendment, the General Court retains the power, pursuant to Article 136(2) of its Rules of Procedure, to order the defendant to bear the costs of the proceedings. (36)
67.      Next, to preclude the Commission from amending an act that is the subject of pending judicial proceedings would, in my view, lead to a result at odds with the requirement of the sound administration of justice. That is particularly so where the Commission is aware that the act in question is likely to be annulled and considers that targeted amendments
may suffice to remedy the defects affecting its lawfulness. In such circumstances, a ‘forced’ continuation of the proceedings would serve no meaningful purpose.
68.      In such a scenario, the proceedings would be liable to culminate in what may aptly be described as a ‘hollow victory’ for the applicants. Any benefit flowing from the annulment would, in all likelihood, be both limited and short-lived. The Commission would most probably adopt an amended act shortly after the delivery of the judgment, thereby compelling the applicants to initiate a second round of litigation in order to obtain judicial review of the lawfulness of the act as amended. Such an outcome would sit uneasily with the requirements of procedural economy and effective judicial protection, while placing an unnecessary burden on both the parties and the EU judicature.
69.      By contrast, permitting the applicants, within the context of the initial proceedings, to adapt their pleas and forms of order sought in the light of the amendments made to the contested act, avoids an unnecessary duplication of proceedings and leads to a more expeditious and less costly resolution to the dispute. (37) Such an approach operates to the advantage not only of the
parties to the proceedings, but also, albeit more indirectly, of the EU judicature itself.
70.      Finally, I am not persuaded by JPM’s reliance on certain judgments of the EU Courts which are said to support its position.
71.      JPM first invokes the judgment of the Court in Culin v Commission. (38) The case concerned the Commission’s rejection of a complaint lodged by Mr Culin, one of his officials, challenging the appointment of another official to a post for which he had also applied. It was common ground that the decision rejecting the complaint contained an inadequate statement of reasons. After Mr Culin had initiated court proceedings, however, the Commission added an addendum to that decision, which purported to correct the original decision by setting out ‘the true reasons’ for the rejection of his candidature. The Court, nevertheless, held that the addendum could not be taken into account, and annulled the challenged decision. (39)
72.      At first glance, the judgment in Culin might appear to support JPM’s arguments. A closer examination, however, demonstrates that it does not.
73.      The action brought by Mr Culin was not an ordinary action for annulment under the then Article 173 EEC (now Article 263 TFEU), but one brought under then Article 179 EEC (now Article 270 TFEU). According to that provision, ‘the Court of Justice shall have jurisdiction in any dispute between the [European Union] and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment’. (40)
74.      Title VII of the Staff Regulations, governing ‘appeals’, provides in Article 90 for a mandatory pre-litigation procedure, to be completed within a prescribed time-frame, before any appeal may be lodged before the EU Courts. The pre-litigation procedure serves both to provide an opportunity for an amicable settlement and to define the subject matter of the dispute. At the litigation stage, the subject matter cannot, in principle, be modified by either party.(41) An administrative act differing materially from the contested act cannot be examined in the same proceedings and requires a fresh action under Article 270 TFEU. (42) Similarly, claims not raised in the pre-litigation procedure may not be introduced in the Court’s proceedings. (43) These features of the Culin case were emphasised in the Opinion of the Advocate General. (44)
75.      Against that background, the Court’s conclusion that the addendum could not be taken into account is correct. The addendum was submitted out of time and outside the procedure prescribed by Article 90 of the Staff Regulations and its content differed fundamentally from the original contested act. Accepting it would have altered the subject matter of the dispute.
76.      By contrast, annulment proceedings under Article 263 TFEU are not governed by the rules and principles referred to in the preceding points. The Court’s findings in Culin are therefore not directly transposable to a situation such as that at issue in the present case. In this context, it may be recalled that the situation examined by the Court in Commission v Di Bernardo, (45) cited in the judgment under appeal, was comparable to that in Culin: an action lodged under Article 270 TFEU against a Commission decision relating to the application of the Staff Regulations, in which the Commission sought to supplement the statement of reasons at a late stage of the proceedings.
77.      JPM’s reliance on the judgment of the General Court in Lucchini
v Commission (46) likewise appears to rest on a misunderstanding.
That case concerned an application by an addressee of a Commission decision imposing a fine for infringement of EU competition rules. The annex to the original decision, as notified to its addressees, did not contain certain tables that were intended to be included. Upon becoming aware of that omission, the Commission adopted, less than a month after the notification of the original decision, an amending decision incorporating the missing tables, which was duly notified to the addressees of the original decision. (47)
78.      In its application, Lucchini argued that that course of action was vitiated by several errors of law, warranting annulment of the contested decision. In particular, it submitted the argument that, in the absence of the tables, the original decision was inadequately reasoned and that the subsequent addition of those tables, by means of an amending decision, could not remedy that defect. (48)
79.      Against that background, the General Court considered it ‘necessary to verify whether, irrespective of the fact that the tables [in question] were not annexed to the first decision, the relevant recitals of the first decision, in which the tables were referred to as support, disclosed in a clear and unequivocal fashion the reasoning followed by the Commission and enabled the applicant to ascertain the reasons for the measure’. It concluded that the absence of the tables did not affect the adequacy of the statement of reasons and accordingly dismissed Lucchini’s arguments. (49)
80.      In my view, JPM misreads that judgment. The General Court’s observation, in paragraph 80 of the judgment, that it was necessary to verify whether the initial decision was sufficiently reasoned, despite the absence of the tables, cannot be understood as implying that the subsequent addition thereof was unlawful. The applicant’s arguments were premised on the contention that, without the tables, the initial decision was not sufficiently clear for its addressees to grasp the Commission’s reasoning. However, since the General Court found that the statement of reasons was adequate notwithstanding the omission in the annex, the validity of the amendments was simply not examined. (50)
81.      Moreover, any different reading of the above case-law would sit uneasily with the consistent line of judgments in which the EU Courts have accepted – on grounds of sound administration of justice and judicial economy – that an action for annulment may proceed notwithstanding the amendments made to the contested act in the course of the judicial proceedings. As noted in point 65 above, that approach is conditional on the subject matter of the action remaining, in substance, unchanged and on the applicants being afforded the opportunity to adapt their pleas and forms of order sought.
(d)    Consequences of the assessment of the cross-appeal
82.      In the light of the foregoing, I consider that the Commission’s cross-appeal is well founded. The General Court erred, when reviewing the adequacy of the statement of reasons relating to the amount of the fine imposed on JPM, in disregarding the supplementary reasoning introduced by the amending decision.
83.      That said, I agree with JPM that the state of the proceedings does not permit the Court of Justice to give final judgment in the present case and, consequently, the case should be referred back to the General Court and the costs reserved.
84.      There are two major issues – nowhere discussed in the judgment under appeal – which need to be examined. First, it is necessary to rule on JPM’s claim that the amending decision is unlawful and should therefore be annulled. Second, were the amending decision to be found lawful, it remains to be examined whether the contested decision, as amended, contains an adequate statement of reasons.
85.      As explained above, if the Court were to endorse my conclusion on the Commission’s cross-appeal, it would not be necessary to examine JPM’s third 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 third plea in the main appeal
86.      By its third plea JPM challenges paragraphs 698 to 728 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 [JPM is] liable should be set at EUR 337 196 000’. In so far as that amount was equal to that set in the contested decision, the General Court ‘rejected the head of claim seeking a reduction of the amount of the fine imposed on [JPM]’.
1.      Arguments of the parties
87.      At the outset, I must express a certain perplexity as to the formulation of this plea by JPM. It is divided into five parts, each of which is itself composed of several components and arguments. The alleged errors include, inter alia, failures to state reasons, failures to consider certain arguments made at first instance, distortions of evidence, and breaches of the principles of proportionality and equality, and of the fundamental right to an effective remedy and to a fair trial.
88.      Faced with this accumulation of alleged defects, it is not straightforward to ‘separate the wheat from the chaff’, (51) in other words, to discern which complaints are sufficiently substantiated and which are not. (52) 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.
89.      That said, one complaint nonetheless stands out clearly and appears to constitute one of the main grievances raised by JPM against this part of the judgment under appeal. JPM 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 [JPM]’. (53)
90.      Having reached that conclusion, however, the General Court itself adopted the same discount factor as that applied by the Commission without – according to JPM – providing any further explanation as to its basis. JPM 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.
91.      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
92.      I am of the view that JPM’s third 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 89 and 90 above, before addressing, more briefly, (d) the remaining arguments raised under this plea.
(a)    General remarks I: unlimited jurisdiction
93.      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.’
94.      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.
95.      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. (54) 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. (55)
96.      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.
97.      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. (56)
98.      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; (57) 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, (58) without being bound by the methodology set out in the Commission’s Fining Guidelines. (59) In other words, a de novo assessment is permissible.
99.      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. (60) 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. (61) 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. (62)
100. 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. (63) It permits the EU judicature to carry out an overall and, to some extent, more subjective appraisal of the fine and of its amount. (64) 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. (65)
101. 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. (66)
102. 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. (67) 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. (68) 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.
103. 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. (69) At the same time, it pursues a secondary and complementary objective, namely, to ensure the coherence and effectiveness of the overall system of enforcement.
104. 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. (70) 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 (71) and may,  where appropriate, impose a fine exceeding that determined by the Commission. (72)
(b)    General remarks II: the General Court’s duty to state reasons
105. 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.
106. 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. (73)
107. 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. (74) 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. (75)
108. 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. (76) 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. (77)
109. 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.
110. 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, (78) it must, in principle, consider all those that have been duly raised before it by the parties. (79) 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.
111. 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. (80) Moreover, the fine should correspond principally to the gravity and duration of the infringement, while also ensuring its deterrent effect. (81) 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 703 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’. (82)
112. 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. (83) 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. (84)
113. 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. (85) This does not, however, require the statement of reasons to become a display of sophisticated and meticulous arithmetic orthodoxy. (86) 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. (87)
114. 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. (88)
115. 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’. (89)
116.  It is by reference to those principles that I shall now examine the arguments advanced by JPM in this respect.
(c)    The failure to state reasons in the case at hand
117. In paragraphs 704 to 728 of the judgment under appeal, at
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 705 to 723), the existence of mitigating circumstances (paragraphs 724 to 726) and the deterrent effect of the fine (paragraph 727). Having undertaken what it described as a ‘fair assessment’ of all the relevant circumstances, the General Court fixed the fine at EUR 337 196 000 (paragraph 728), a sum which corresponds precisely to that imposed under Article 2(c) of the contested decision.
118. 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.
119. However, upon closer examination – and in line with the arguments advanced by JPM – 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.
120. Thus, in paragraph 706 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 JPM was therefore accepted (paragraphs 707 to 710 of the judgment under appeal).
121. Next, in paragraphs 711 to 717 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 JPM were considered not appropriate or inadequately explained.
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’.
122. 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, if it were not the case, it would be nearly impossible that, after calculating a basic amount on the basis of a different discount factor, the final amount of the fine would have been fixed at exactly the same amount as that set out in the contested decision.
123. However, in paragraphs 613 to 621 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.
124. 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.(90)
125. 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.
126. The judgment under appeal, however, contains neither of those elements. First, as noted in point 122 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.
127. It was, of course, for JPM 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 JPM were considered excessive does not, in itself, entail that the General Court was required to endorse the value adopted in the contested decision.
128. 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.
129. 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 JPM 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.
130. 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.
131. 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.
132. 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. (91) 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 JPM 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 JPM’s core contention that that value was excessively low, thus, resulting to an unjust fine.
133. 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.
134. 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.
135. 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.
JPM’s third plea should, consequently, be upheld and the judgment under appeal partially set aside.
(d)    The other parts and arguments in the third plea
136. Since I have concluded that the cross-appeal must be upheld and that, in the alternative, JPM’s third plea should also succeed, it is scarcely necessary to examine in detail the remaining arguments advanced by JPM in support of that plea. I shall, therefore, address them very briefly.
137. First, I am unconvinced by JPM’s argument according to which the General Court erred, when exercising unlimited jurisdiction, to use cash receipts as replacement value for the sales revenue, in order to calculate the base amount of the fine. In that regard, JPM argues that the General Court failed to take into account all its arguments on why another value (namely, allocated franchise revenue or ‘AFR’) were more appropriate.
138. In the exercise of unlimited jurisdiction, the General Court had ample latitude in choosing the parameters that it found most appropriate to the circumstances of the case in order to set the fine. Provided the use of cash receipts is among the options that were reasonable – and, in the context of my analysis, I did not find any concrete element showing the opposite – it is not for the Court of Justice on appeal to replace the General Court’s appraisal in that respect.
139. The real issue is, therefore, whether the judgment under appeal includes a sufficient explanation as to why the AFR was found less suited than cash receipts to calculate the base amount of the fine. It seems to me that, in the light of the case-law summarised above, paragraphs 588 to 593 and 714 of the judgment under appeal provide adequate explanations in that respect.
140. Second, I am inclined to agree with JPM that there may be a breach of the principle of equal treatment or, at the very least, a possible failure to state reasons in relation to the determination of the fine, in so far as the General Court – like the Commission – applied different methodologies to determine
the relevant value of cash receipts of the various banks participating in the infringement. In particular, JPM points to three elements which may have affected the calculations: (i) the scope of netting between amounts paid and received under trades; (ii) the exclusion or inclusion of ‘hybrid’ products; and (iii) the exclusion or inclusion of ‘exotic’ products.
141. 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.(92)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. (93) JPM 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.
142. 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.
143. 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.(94) It is equally common ground that the banks involved were never granted full access to the detailed calculations carried out by the Commission. (95) 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.
144. 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.
145. 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.
146. 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. (96)
147. 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 JPM had failed to demonstrate, to the requisite legal standard, that the Commission’s assessment was incorrect. In doing so, the General Court failed to verify properly whether JPM’s plea alleging a breach of the principle of equal treatment was well
founded.
VI.    Conclusion
148. 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 third plea advanced by JPMorgan Chase & Co., and JPMorgan Chase Bank, National Association.
1      Original language: English.
2      Judgment of 20 December 2023, JPMorgan Chase and Others v Commission (T‑106/17, ‘the judgment under appeal’, EU:T:2023:832).
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      The fine was imposed on JPMorgan Chase & Co., JPMorgan Chase Bank, National Association and J.P. Morgan Services LLP. For practical reasons, those entities will also be referred to as ‘JPM’, although they do not fully correspond to those who lodged the present appeal (see above, point 1 of this Opinion).
7      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’).
8      ‘Euribor’ is short for Euro Interbank Offered Rate, and ‘EONIA’ is short for Euro Overnight Index Average.
9      See recitals 639 to 648 of the contested decision.
10      T‑105/17, ‘the judgment of the General Court in HSBC’, EU:T:2019:675.
11      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:2020:561), JPM was granted leave to intervene in support of the forms of order sought by the appellants.
12      Judgment of 27 November 2024, HSBC Holdings and Others v Commission (T‑561/21, EU:T:2024:869).
13      See above, point 11 of this Opinion.
14      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).
15      See above, point 13, of this Opinion.
16      See, to that effect, judgment of 17 June 2010, Lafarge v Commission (C‑413/08 P, EU:C:2010:346, paragraphs 81 to 86).
17      View of Advocate General Tizzano in Commission v Council (C‑27/04, EU:C:2004:313, point 135).
18      See, in particular, the second paragraph of Article 263 TFEU.
19      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).
20      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).
21      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).
22      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).
23      That is, save exceptions, such as those set out in Article 24(1) TEU and Article 275 TFEU.
24      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.
25      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).
26      See, to that effect, judgment of 13 December 2013, Hungary v Commission (T‑240/10, EU:T:2013:645, paragraphs 89 and 90).
27      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).
28      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).
29      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).
30      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).
31      See the first paragraph of Article 266 TFEU.
32      See above, points 7, 8, 15 and 16 of this Opinion.
33      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).
34      See, in particular, Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
35      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).
36      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.
37      See, mutatis mutandis, judgment of 3 March 1982, Alphasteel v Commission (14/81, EU:C:1982:76, paragraph 8).
38      Judgment of 7 February 1990 (C‑343/87, ‘the judgment in Culin’, EU:C:1990:49).
39      Ibid., paragraph 11.
40      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’).
41      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).
42      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).
43      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).
44      Opinion of Advocate General Mischo in Culin v Commission (343/87, EU:C:1989:342, points 6 to 17).
45      Judgment of 11 June 2020, Commission v Di Bernardo (C‑114/19 P, EU:C:2020:457).
46      Judgment of 9 December 2014 (T‑91/10, ‘the judgment in Lucchini’, EU:T:2014:1033).
47      Ibid., paragraphs 42 to 45.
48      Ibid., paragraphs 74 and 75.
49      Ibid., paragraphs 76 to 102.
50      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.
51      This expression is generally considered to derive from the Bible, Matthew 3:12.
52      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).
53      With reference to paragraph 620 of the judgment under appeal.
54      See, in particular, judgment of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 67).
55      See, in that respect, my Opinion in ECB v Crédit lyonnais (C‑389/21 P, EU:C:2022:844, points 49 and 50).
56      See, in more detail and with further references, ibid., points 41 to 74.
57      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).
58      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).
59      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).
60      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).
61      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.
62      See, for example, judgment of 28 March 1984, Officine Bertoli v Commission (8/83, EU:C:1984:129, paragraph 29).
63      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.
64      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.
65      See, to that effect, judgment of 10 December 2025, Intel Corporation v Commission (T‑1129/23, EU:T:2025:1091, paragraph 107).
66      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).
67      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).
68      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).
69      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).
70      See, by analogy, judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 36).
71      See below, point 111 of this Opinion.
72      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).
73      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).
74      See, for example, judgment of 11 July 2013, Ziegler v Commission (C‑439/11 P, EU:C:2013:513, paragraph 81).
75      See ECtHR, 15 December 2022, Rutar and Rutar Marketing d.o.o. v. Slovenia (CE:ECHR:2022:1215JUD002116420, § 62).
76      See, for example, judgment of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraph 52).
77      See, for example, judgment of 18 July 2013, Dow Chemical and Others v Commission (C‑499/11 P, EU:C:2013:482, paragraph 57).
78      See above, point 101 of this Opinion.
79      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).
80      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).
81      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).
82      Emphasis added.
83      See, by analogy, judgment of 16 November 2000, Finnboard v Commission (C‑298/98 P, EU:C:2000:634, paragraph 87).
84      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).
85      See, to that effect, order of 9 March 2000, Sarrió v Commission (C‑291/98 P, EU:C:2000:112, paragraph 98).
86      See, to that effect, judgment of 14 September 2016, Trafilerie Meridionali v Commission (C‑519/15 P, EU:C:2016:682, paragraph 55).
87      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).
88      See, by analogy, judgment of 29 September 2011, Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 151).
89      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).
90      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).
91      See,
mutatis mutandis, Opinion of Advocate General Kokott in Servier and Others v Commission (C‑201/19 P, EU:C:2022:577, point 257).
92      See, in particular, paragraphs 644 to 658 of the judgment under appeal.
93      See, in particular, paragraphs 649, 651, 654, 661 and 669 of the judgment under appeal.
94      See the finings made in paragraphs 560 to 569 of the judgment of 20 December 2023, Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission (T‑113/17, EU:T:2023:847), which are fully relevant to the present case.
95      Ibid., paragraph 576.
96      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).