Final Report of the Hearing Officer (1)

AT.39914 — Euro Interest Rate Derivatives

(2019/C 130/04)

Introduction

1. The draft decision to which the present report relates (the Draft Decision) finds that three undertakings infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in a single and continuous infringement consisting of agreements and/or concerted practices that had as their object the distortion of the normal course of pricing components in the Euro interest rate derivatives ( 2 ) (EIRD) sector ( 3 )

2. In relation to four other undertakings ( 4 ) and also in the context of Case AT.39914, the Commission adopted, on 4 December 2013, a decision under the settlement procedure available under Article 10a of Commission Regulation (EC) No 773/2004 ( 5 ) (the Settlement Decision ( 6 ) ). Case AT.39914 may thus be termed a ‘staggered hybrid settlement case’: ‘hybrid’ in the sense that it combines the ordinary procedure under that regulation with the settlement procedure set out under that Article 10a; ‘staggered’ in the sense that the Settlement Decision was adopted before the ordinary procedure for the Non-Settling Parties (the Non-Settlement Procedure) had run its course. The present draft final report concerns the Non-Settlement Procedure.

3. The investigation in Case AT.39914 started after an application for immunity by […] in June 2011. The Commission conducted unannounced inspections at […] in October 2011. It subsequently received leniency applications from the Settling Parties other than […]. When initiating proceedings in Case AT.39914 on 5 March 2013, the Commission invited all parties concerned to engage in settlement discussions. The Non-Settling Parties ultimately decided not to pursue the settlement procedure.

Written part of the non-settlement procedure

Statement of objections, letters of fact and periods in which to respond in writing

4. On 19 May 2014, the Commission adopted a statement of objections in the Non-Settlement Procedure (the SO). In essence, the SO expressed the Commission's preliminary view that the undertakings concerned had been involved in collusive activities concerning the EIRD sector that infringed Article 101 TFEU.

5. The Commission initially gave the Non-Settling Parties four weeks in which to reply in writing to the SO. Following extension requests, the Directorate-General for Competition (DG Competition) granted them four more weeks, bringing the deadline for replies to the end of July 2014. Following further requests for extension of this and subsequent deadlines, mainly owing to ongoing document-disclosure issues (see paragraphs 8 to 19 below), I required the Non-Settling Parties to provide their written responses to the objections raised against them by 14 November 2014 but allowed them to provide comments concerning in particular the fining methodology put forward in the SO once the relevant document disclosure issues had been resolved. All three Non-Settling Parties replied in writing by 14 November 2014 to the Commission's objections. They commented on the proposed fining methodology by the subsequently-prescribed deadline of 31 March 2015, incorporating their comments in updated written responses to the SO.

6. On 30 March 2015, DG Competition sent a ‘letter of facts’ ( 7 ) to the Non-Settling Parties, enclosing some additional audio recordings and corresponding transcripts that were provided by one of the Settling Parties in February 2015 (the 2015 Letter of Facts). The Non-Settling Parties had three weeks in which to respond. Following the extension of this period until 6 May 2015, Crédit Agricole and HSBC submitted observations on the 2015 Letter of Facts.

7. On 9 September 2016, the Commission addressed a letter of facts to JPMorgan. By decision of 22 September 2016, reconfirmed the following day following remarks from JPMorgan, I extended the period set for responding to this letter of facts so that it expired on 3 October 2016.

Access-to-file and disclosure of documents

8. Numerous issues concerning access-to-file and the disclosure of documents could not be resolved in the first instance between the Non-Settling Parties and DG Competition in accordance with Article 3(7) of Decision 2011/695/EU. Many of these were accordingly referred to me.

9. The Non-Settling Parties were initially granted access to the file by means of three access-to-file DVDs on 28 May 2014 ( 8 ) . In addition, between June and July 2014, they received access at DG Competition's premises to the transcripts of the oral statements of the Settling Parties and to the audio recordings of certain phone conversations between derivatives traders.

10. Following a request to me, DG Competition provided the Non-Settling Parties with copies of these recordings that they could bring away from DG Competition's premises. On 25 September 2014, I ordered that access be granted under a ‘data room procedure’ to audio recordings of certain conversations between traders obtained from […], rejecting the request concerned to the extent that it sought other conversations whose content was confidential and unnecessary for the effective exercise of the rights of the defence. Also on 25 September 2014, I directed DG Competition to produce less-redacted versions of responses of the parties concerned in Case AT.39914 to certain questions of the Commission's request for information of 12 April 2012 concerning customer information. The information concerned was still sensitive, despite its age. Yet the right to be heard called for the redacted versions to be more informative.

11. Following my intervention and an unchallenged decision adopted on 4 September 2014 under Article 8(2) of Decision 2011/695/EU overriding the confidentiality claims of one of the Settling Parties, DG Competition provided the Non-Settling Parties with access at its premises to the Settlement Decision, the statement of objections issued as part of the settlement procedure leading to that decision and the responses by the Settling Parties to that statement of objections. In that Article 8(2) decision, it was indicated among other things that, in the circumstances of the Non-Settlement Procedure, the investigation file should not be construed to exclude these documents, which were drawn up in Case AT.39914 before the SO.

12. In rejecting a Non-Settling Party's request for access to the non-confidential versions of the other Non-Settling Parties' responses to the SO and to replies to the 2015 Letter of Facts, I indicated that it follows from the case law that the replies to the Commission's statement of objections from other undertakings alleged to have participated in a cartel are not, in principle, included in the documents of the investigation file that the parties may consult. While in principle no access is granted to other parties' replies to a statement of objections, a party may be granted access to those replies where such documents may constitute new evidence pertaining to the allegations concerning that party in the statement of objections ( 9 )

13. By decision of 24 July 2015, I refused access to correspondence and documents relating to the recognition of […] as an interested third person in the Non-Settlement Procedure. Such access was required only to the extent that such materials included new evidence pertaining to the allegations set out in the SO.

14. After the 2015 Letter of Facts, a Non-Settling Party sought access to all correspondence, minutes of meetings, notes of telephone calls and all documents that entered on the Commission's file after the Settlement Decision in relation to the Non-Settlement Procedure. I considered that the Commission is not required by law to provide access to documents that were not part of the file at the time of the notification of the SO, except where such documents constitute new evidence. My review of the case file did not reveal any new evidence pertaining to the allegations concerning that party in the SO. On this basis, I rejected the request in July 2015. However, for reasons of transparency, I asked DG Competition to disclose to that Non-Settling Party four exchanges between a certain Settling Party and DG Competition and an internal file-note which provided further context on how DG Competition received the additional audio recordings from that party.

15. Over the course of the Non-Settlement Procedure, I have taken numerous decisions concerning requests for access to documents related to estimates of the ‘value of sales’ of certain parties in Case AT.39914. The SO indicated that, for the purposes of determining any fine, the Commission intended to use the methodology for estimating the value of sales used in the Settlement Decision. Against this backdrop, the Non-Settling Parties requested access to unredacted or less-redacted versions of documents provided by the parties concerned in response to requests for information sent by the Commission with a view to the determination of the respective value-of-sales figures for the parties concerned.

16. My decisions of 2 October 2014 describe the discussions undertaken with the Settling Parties to obtain unredacted or less-redacted versions of certain documents and the reasons for recourse to a data room procedure (the Turnover Data Room Procedure) for certain documents that, despite their age, fell to be considered as confidential. In October and December 2014, the Non-Settling Parties complained to me about the extent and manner of the redactions that DG Competition had applied to their respective reports prepared as part of the Turnover Data Room Procedure. Following further contacts with the Settling Parties, my decisions of 4 March 2015 ordered disclosure to the Non-Settling Parties of less-redacted versions of the data room reports and of certain turnover-related documents that […] had agreed to disclose fully or partially. These decisions rejected however certain requests for further access to a number of other turnover-related documents.

17. On another occasion, Crédit Agricole sought, among other things, any document, even if not on the case file, containing information concerning bilateral exchanges between DG Competition and the parties concerned relating to value-of-sales information. By decision of 27 March 2015, I rejected this vague and general request. In respect of the only three exchanges specifically identified by Crédit Agricole, I considered in substance that the personal notes of individual case team members concerned did not contain evidence relating to the Commission's objections or significant information relating to the subject-matter of the investigation. They amounted to internal documents that, under the relevant principles, provisions and case law, the Commission was not obliged to disclose.

18. The Amending Decision was prompted by the submission by […] of revised value-of-sales data following its realisation that it had originally submitted data compiled using an erroneous methodology. After the adoption of the Amending Decision, […] withdrew its action for annulment directed against the Settlement Decision ( 10 ) . DG Competition allowed the Non-Settling Parties access to […] revised data by means of a procedure similar to the Turnover Data Room Procedure. By decision dated 22 July 2016, I rejected a Non-Settling Party's request for access free of such a procedure to those revised data. By separate decisions both dated 16 September 2016, I rejected the same party's requests for, firstly, access free of the Turnover Data Room Procedure to certain value-of-sales information originally submitted by the Settling Parties ( 11 ) and, secondly, the pleadings and other materials exchanged in the context of […] action for annulment.

19. In several of the decisions rejecting in full or in part requests for greater access to documents related to value-of-sales information, it is recalled that while the Commission endeavours, in accordance with point 85 of the Antitrust Best Practices Notice, to provide addressees of statements of objections with the opportunity to comment on the calculation of possible fines, it is well-established case law ( 12 ) that the Commission is not under a legal obligation to do so. There is thus a distinction between, on one hand, the right reaffirmed in Article 27 of Council Regulation (EC) No 1/2003 ( 13 ) to be heard on the objections raised by the Commission, of which the right of access-to-file is a corollary ( 14 ) , and, on the other hand, the possible opportunity to comment on the determination of any fines allowed for by point 85 of the Antitrust Best Practices Notice.

Interested third person in Non-Settlement Procedure: […]

20. On 2 April 2015, […] applied to be heard as an interested third person in the Non-Settlement Procedure. I granted this application on 27 April 2015, considering in the light of its submissions and of the particular circumstances of Case AT.39914 that […] had shown a ‘sufficient interest’. By decision under Article 7(2)(d) of Decision 2011/695/EU of 26 April 2015, I rejected a request by […] for a redacted version of the SO. […] was not entitled, in its capacity as an interested third person, to obtain a level of detail going beyond a written description of the nature and subject matter of the Non-Settlement Procedure. In any event, it was open to […] to seek to protect its interests in the context of making its views known in writing under Article 13(1) of Regulation (EC) No 773/2004 without a redacted version of the SO being required for this purpose.

Oral hearing

21. Crédit Agricole made a series of comments concerning, broadly speaking, its opportunity to be heard during the oral hearing and afterwards. Specifically in relation to the oral hearing, I responded by letter of 20 April 2015 that the presence of all EU Commissioners was not required by the case law ( 15 ) . Neither was a standalone hearing on possible sanctions ( 16 ) . The oral hearing of the Non-Settling Parties took place from 15 to 17 June 2015. […] did not request to participate.

Procedural issues of note in the non-settlement procedure

Claims that EU competition procedures are inherently flawed

22. Contrary to the suggestions of Crédit Agricole, it follows from the case law of the Court of Justice of the European Union ( 17 ) (CJEU) and rulings of the European Court of Human Rights (ECtHR) ( 18 ) that the EU competition law enforcement system is not in itself unlawful. In addition, the specific rules and practices of which Crédit Agricole complained have in many instances been endorsed by EU case law. As I explained in the above-mentioned letter of 20 April 2015, several of the measures sought by Crédit Agricole, such as the opportunity to attend and make submissions during any meetings of the Advisory Committee or the College of Commissioners in connection with the Non-Settlement Procedure, or access to internal Commission documents post-dating the oral hearing, are not foreseen under the applicable provisions.

Presumption of innocence and the duty of impartiality

23. The Non-Settling Parties each claimed that the staggered hybrid approach to Case AT.39914 inevitably prejudiced DG Competition's view of and the Commission's assessment in the Non-Settlement Procedure, thus depriving these parties of the presumption of innocence and infringing the duty of good administration. The Non-Settling Parties pointed in particular, firstly, to the EU Ombudsman's draft recommendation of March 2015, where it was considered that certain public statements in 2012 and 2014 of Mr Almunia, then Vice-President of the Commission responsible for Competition, had created the impression that the Commission had at the time of those statements already reached a conclusion regarding their participation in a cartel ( 19 ) . Secondly, according to the Non-Settling Parties, the Settlement Decision takes a view of facts and legal qualifications that necessarily concern the Settling Parties and the Non-Settling Parties alike.

24. The presumption of innocence applies to the Non-Settlement Procedure ( 20 ) . According to the case law of the ECtHR, referred to by the CJEU, this presumption is breached by statements or decisions which reflect the sentiment that the person is guilty, which encourage the public to believe in his guilt, or which prejudge the assessment of the facts by the competent decision-making body ( 21 ) . Similarly, the CJEU has ruled that this presumption precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of the defence in the normal course of proceedings resulting in a decision on the merits ( 22 )

25. That said, the case law recognises that the presumption of innocence ‘cannot prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected’ ( 23 ) . A distinction is made here between statements that reflect an opinion of guilt (problematic) and statements that merely describe a state of suspicion (generally unobjectionable) ( 24 ) . The ECtHR has held that what is important is the true meaning of the statements in question, not their literal form ( 25 ) . While the use of language is important, much depends on the context of the particular circumstances in which the impugned statement was made. Even the use of unfortunate language may not be decisive when regard is had to the nature and the context of the particular proceedings ( 26 )

26. Certain of the statements by the former Vice-President (and others) criticised by the Non-Settling Parties are regrettable in that they could have been interpreted as suggesting publicly that a final finding of infringement was then the only envisaged outcome of the Non-Settlement Procedure. However, even if greater discretion and circumspection could have been shown on the occasions in question, it does not automatically follow that the effective exercise of the procedural rights of the Non-Settling Parties has not been respected. In both her draft recommendation and her final decision, the Ombudsman considered it likely that the maladministration that she had identified would not affect the further handling of the Crédit Agricole's case by the Commission, as the proceedings were still pending, the former Commissioner had left office and a new Commissioner was in charge of the case. Indeed, the facts that the Non-Settling Parties have been heard in the Non-Settlement Procedure and that the Draft Decision will be considered by a different College of Commissioners than that of which Mr Almunia was a member appear to mean that a possible irregularity entailed by certain public statements criticised by the Non-Settling Parties would not in itself affect the regularity of the adoption of the Draft Decision by the current College of Commissioners ( 27 )

27. Timab Industries and CFPR v Commission ( 28 ) ( Timab ) confirms that hybrid cases are permissible. It makes clear that if an undertaking withdraws from settlement discussions, the procedure is governed by the general provisions of Regulation (EC) No 773/2004 and the situation is thus one of ‘ tabula rasa ’, in which possible liabilities are yet to be determined Timab does not address allegations of bias in the context of staggered hybrid cases. The Non-Settling Parties' criticisms of the impact of the Settlement Decision on the Non-Settlement Procedure raise novel issues under EU law. The judgment in) confirms that hybrid cases are permissible. It makes clear that if an undertaking withdraws from settlement discussions, the procedure is governed by the general provisions of Regulation (EC) No 773/2004 and the situation is thus one of ‘’, in which possible liabilities are yet to be determined ( 29 ) . However,does not address allegations of bias in the context of staggered hybrid cases.

28. Karaman v . Germany ( 30 ) ( Karaman ) offers however a useful analogy with the Non-Settlement Procedure. There, the applicant claimed that his right to a fair trial had been infringed by a prior conviction of third persons that expressly implicated him in the same fraudulent conspiracy as that alleged against him. The ECtHR ruled in substance that in complex proceedings involving several persons who cannot be tried together, references to the participation of third persons, who may later be tried separately, may be indispensable for the assessment of the guilt of those who are on trial. When establishing the legal responsibility of the accused, a decision-maker may not be able to present factual elements, including those related to third persons, as mere allegations or suspicions. In the circumstances of the case, the ECtHR was satisfied that the German courts properly ‘avoided, as far as possible – in the context of a judgment involving several co-suspects not all of whom were present – giving the impression that they were prejudging the applicant's guilt’. In particular, according to the majority opinion, the trial court had ‘made it sufficiently clear that it was not also implicitly determining the applicant's guilt’ The ECtHR case of) offers however a useful analogy with the Non-Settlement Procedure. There, the applicant claimed that his right to a fair trial had been infringed by a prior conviction of third persons that expressly implicated him in the same fraudulent conspiracy as that alleged against him. The ECtHR ruled in substance that in complex proceedings involving several persons who cannot be tried together, references to the participation of third persons, who may later be tried separately, may be indispensable for the assessment of the guilt of those who are on trial. When establishing the legal responsibility of the accused, a decision-maker may not be able to present factual elements, including those related to third persons, as mere allegations or suspicions. In the circumstances of the case, the ECtHR was satisfied that the German courts properly ‘avoided, as far as possible – in the context of a judgment involving several co-suspects not all of whom were present – giving the impression that they were prejudging the applicant's guilt’. In particular, according to the majority opinion, the trial court had ‘made it sufficiently clear that it was not also implicitly determining the applicant's guilt’ ( 31 ) . The ECtHR concluded that there was nothing in the judgment against other defendants ‘that ma[de] it impossible for the applicant to have a fair trial’ ( 32 )

29. Karaman in that no conclusions can be drawn from the Settlement Decision as to the liability of the Non-Settling Parties. Further, it would have been difficult to avoid any mention of the Non-Settling Parties in the Settlement Decision. Moreover, the Settlement Decision clearly indicates that it ‘does not establish any liability of [the Non-Settling Parties] for any participation in an infringement of EU competition law in this case’. Accordingly, applying the standard of the ECtHR in Karaman , there are reasonable grounds to consider that the Settlement Decision does not infringe the Non-Settling Parties' right to be presumed innocent Since settlement procedures in hybrid cases are separate from corresponding non-settlement procedures ( 33 ) , the position in Case AT.39914 appears analogous to the position under German law identified inin that no conclusions can be drawn from the Settlement Decision as to the liability of the Non-Settling Parties. Further, it would have been difficult to avoid any mention of the Non-Settling Parties in the Settlement Decision. Moreover, the Settlement Decision clearly indicates that it ‘does not establish any liability of [the Non-Settling Parties] for any participation in an infringement of EU competition law in this case’. Accordingly, applying the standard of the ECtHR in, there are reasonable grounds to consider that the Settlement Decision does not infringe the Non-Settling Parties' right to be presumed innocent ( 34 )

30. Moreover, the nature and context of the procedure under the general provisions of Regulation (EC) No 773/2004 allowed the Non-Settling Parties to avail of substantial safeguards in the Non-Settlement Procedure, including in particular the opportunity to respond to the Commission's objections in writing and at an oral hearing and to have access to the Commission's investigation file. The Non-Settling Parties have been able to run detailed defences, resulting in respect of Crédit Agricole and JPMorgan in reductions, as compared with the preliminary assessment set out in the SO, in the respective periods of infringement for which they are held liable. The Draft Decision shows that the Commission gave consideration to the arguments of the Non-Settling Parties.

The SO's alleged lack of clarity

31. All the Non-Settling Parties complained that the SO failed to particularise the details of the allegations made against them, making it difficult to understand the Commission's objections. Yet the Non-Settling Parties have been able to mount vigorous defences and were aware of the essential elements used against them. In these circumstances, even if the SO could have been clearer in certain respects, it cannot be said that the Non-Settling Parties were unaware of the essence of the Commission's objections ( 35 ) . In these circumstances, the SO does not appear so unclear as to amount to the breach of a fundamental procedural requirement ( 36 )

Alleged misuse and abuse of the cartel settlement rules

32. Crédit Agricole and JPMorgan claimed that the Commission has misused the cartel settlement procedure. […]

33. Timab suggests that, since the situation following withdrawal from a settlement procedure is one of ‘ tabula rasa ’, the Commission was entitled, on further examination of the evidence, to update its assessment of a suspected infringement. Moreover, the Non-Settling Parties had the benefit of the procedural rights and safeguards available under the general provisions of Regulation (EC) No 773/2004 in the Non-Settlement Procedure. The Draft Decision has been drawn up taking account of the Non-Settling Parties' arguments.

The draft decision

34. After having heard the Non-Settling Parties in writing and at the oral hearing, the Commission makes no finding of aggravating circumstances. In respect of two Non-Settling Parties, the duration of the infringement found in the Draft Decision is shorter than that of the infringement alleged in the SO. In addition, the fines imposed in the Draft Decision take account of mitigating circumstances in respect of each Non-Settling Party.

35. In accordance with Article 16 of Decision 2011/695/EU, I have examined whether the Draft Decision deals only with objections in respect of which the Non-Settling Parties have been afforded the opportunity of making known their views. I consider that it does.

Conclusion

36. While the Non-Settlement Procedure has thrown up certain novel and sometimes complex issues, the effective exercise of procedural rights has been respected in this procedure.

Brussels, 5 December 2016. Joos STRAGIER

(1) Pursuant to Articles 16 and 17 of Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (Decision 2011/695/EU). The Hearing Officer originally involved with Case AT.39914 was Mr Albers, who retired from the Commission in July 2013. Mr Wils then dealt with the case until I took office on 16 October 2013.

(2) These are financial derivative products linked to certain interbank lending rates, here, in particular, the Euro Interbank Offered Rate (EURIBOR) and/or the Euro Over-Night Index Average (EONIA).

(3) Grouped by undertaking, the legal entities to which the Draft Decision is addressed (the Non-Settling Parties) are: Crédit Agricole SA and Crédit Agricole Corporate and Investment Bank (together, Crédit Agricole); HSBC Holdings plc, HSBC Bank plc and HSBC France (together, HSBC); and JPMorgan Chase & Co., JPMorgan Chase Bank, National Association and J.P. Morgan Services LLP (together, JPMorgan).

(4) […] (interchangeably with the legal entities representing these undertakings in Case AT.39914, the Settling Parties).

(5) Commission Regulation (EC) No 773/2004 of 7 April 2004 (OJ L 123, 27.4.2004, p. 18) as amended, in particular by Commission Regulation (EC) No 622/2008 of 30 June 2008 (OJ L 171, 1.7.2008, p. 29).

(6) Decision C(2013) 8512 final, amended in respect of the fine imposed on […] by Decision C(2016) 1995 final of 6 April 2016 (the Amending Decision).

(7) See points 109 and 111 of Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 20.10.2011, p. 6) (the Antitrust Best Practices Notice).

(8) DG Competition subsequently recalled one of these DVDs, replacing it with another DVD containing fewer documents and making the remainder of the documents concerned available by means of a ‘confidentiality ring’ involving external counsel of the Non-Settling Parties.

(9) See judgment in Shell Petroleum and Others v Commission (T-343/06, EU:T:2012:478, paragraph 85).

(10) Case T-98/14 (OJ C 142, 12.5.2014, p. 36 and Order EU:T:2016:131).

(11) This information had already been the subject of my decision dated 2 October 2014.

(12) Among others, judgments in Musique Diffusion française and Others v Commission (100/83 à 103/80, EU:C:1983:158, paragraph 21), and Pilkington Group and Others v Commission (T-72/09, EU:T:2014:1094, paragraphs 228 to 244).

(13) Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(14) See, among others, judgment in Aalborg Portland and Others v Commission (C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P, EU:C:2004:6, paragraph 68).

(15) See judgments in Boehringer Mannheim v Commission (45/69, EU:C:1970:73, paragraphs 22 et 23); Bolloré v Commission (T-372/10, EU:T:2012:325, paragraphs 56 to 61); as well as Emesa-Trefilería and Industrias Galycas v Commission (T-406/10, EU:T:2015:499, paragraph 120 and case law cited).

(16) See judgment in Pilkington Group and Others v Commission (T-72/09, EU:T:2014:1094, paragraphs 234 to 237 and case law cited).

(17) See, for instance, judgments in Chalkor v Commission (C-386/10 P, EU:C:2011:815, paragraphs 45 to 67); Otis and Others (C-199/11, EU:C:2012:684, paragraphs 56 to 63); Telefónica and Telefónica de España v Commission (C-295/12 P, EU:C:2014:2062, paragraphs 39 to 59); Groupement des cartes bancaires (CB) v Commission (C-67/13, EU:C:2014:2204, paragraphs 41 to 46); Sasol and Others v Commission (T-541/08; EU:T:2014:628, paragraphs 206 to 208), as well as Emesa-Trefilería and Industrias Galycas v Commission (T-406/10, EU:T:2015:499, paragraphs 113 to 128).

(18) In particular, A. Menarini Diagnostics S.R.L. v. Italy, no 43509/08, 27 September 2011 (CE:ECHR:2011:0927JUD004350908) § 59.

(19) The Ombudsman subsequently closed the inquiry, reiterating a finding of maladministration (see Decision concerning complaint 1021/2014/PD (brought by Crédit Agricole) available at http://www.ombudsman.europa.eu/en/cases/decision.faces/en/61312/html.bookmark).

(20) See by analogy, among others, judgements in Hüls v Commission (C-199/92 P, EU:C:1999:358, paragraphs 149 and 150) and Ziegler v Commission (C-439/11 P, EU:C:2013:513, paragraph 154).

(21) See, among others, judgments in Franchet and Byk v Commission (T-48/05, EU:T:2008:257, paragraph 210), as well as Commission v Nanopoulos (T-308/10 P, EU:T:2012:370, paragraph 91).

(22) Judgments in Sumitomo Chemical and Sumika Fine Chemicals v Commission (T-22/02 and T-23/02, EU:T:2005:349, paragraph 106); Pergan v Commission (T-474/04, EU:T:2007:306, paragraph 76), as well as Versalis and Eni v Commission (T-103/08, EU:T:2012:686, paragraph 75).

(23) See judgment in Franchet and Byk v Commission (T-48/05, EU:T:2008:257, paragraph 212).

(24) See, among others, Garycki v Poland no 14348/02, 6 February 2007, § 67, and Rywin v. Poland no 6091/06, 4047/07 and 4070/07 18 February 2016 (CE:ECHR:2016:0218JUD000609106) § 205.

(25) Lavents v. Latvia no 58442/00, 28 November 2002 (CE:ECHR:2002:1128JUD005844200) § 126.

(26) See Allen v. United Kingdom no 25424/09 12 July 2013 (CE:ECHR:2013:0712JUD002542409) § 126, and Müller v. Germany no 54963/08, 27 March 2014 (CE:ECHR:2014:0327JUD005496308) § 46.

(27) See, by analogy, judgments in ABB v Commission (T-31/99, EU:T:2002:77, paragraph 104) as well as Thyssen Stahl v Commisson (T-141/94, EU:T:1999:48, paragraph 169); Vlaamse Televisie Maatschapij v Commission (T-266/97, EU:T:1999:144, paragraphs 46 to 56) and Atlantic Container Line and Others v Commission (T-191/98, T-212/98 to T-214/98, EU:T:2003:245, paragraph 414).

(28) T-456/10, EU:T:2015:296.

(29) See Timab (EU:T:2015:296, paragraphs 70, 76, 90, 96 and 104).

(30) Karaman v. Germany, no 17103/10, 27 February 2014 (CE:ECHR:2014:0227JUD001710310).

(31) This was in spite of what the minority opinion considered to be clear statements of guilt that went beyond what was necessary for the purposes of trying the other suspects.

(32) Karaman, paragraphs 65 to 70.

(33) See Timab (EU:T:2015:296, paragraphs 71 and 72).

(34) Even if there are certain aspects of the Settlement Decision that the Non-Settling Parties criticise as going beyond what was necessary and arguably at odds with the expression of mere suspicions, it is clear from Karaman (paragraph 63) as well as the case law cited in footnote 26 above that even the use of some unfortunate language may not be decisive when regard is had to the nature and context of proceedings. This is borne out by the divergence between the dissenting opinion in Karaman and the majority's assessment (paragraphs 65 to 71) of the same facts.

(35) See Timab (paragraphs 135 to 140) and, by way of contrast, judgment in Ballast Nedam v Commission (C-612/12 P, EU:C:2014:193, paragraphs 25 to 29). See also, by analogy, Order in Panasonic v Commission (C-608/15 P, EU:C:2016:538, paragraphs 21 to 24).

(36) JPMorgan complained also that the letter of facts addressed to it in September 2016 was insufficiently clear. An examination of that letter and JPMorgan's response does not bear out that claim however.