Final Report of the Hearing Officer (1) Case AT.40346 – SSA Bonds

(Text with EEA relevance)

(2021/C 418/10)

1. The draft decision finds an infringement of Article 101 TFEU and Article 53 EEA involving four undertakings in the US dollar-denominated supra-sovereign, sovereign and agency bonds (‘SSA Bonds’) markets, namely Bank of America Merrill Lynch (‘BAML’), Crédit Agricole, Credit Suisse and Deutsche Bank (together referred to as ‘the parties’) (2).

2. The case started following an application for immunity from fines by Deutsche Bank on 4 August 2015. The Commission granted conditional immunity to Deutsche Bank on 4 December 2015.

3. By decision of 20 December 2018, the Commission initiated proceedings pursuant to Article 2(1) of Regulation 773/2004 (3) against Deutsche Bank, Credit Suisse, Crédit Agricole and BAML.

4. On 20 December 2018, the Commission issued a Statement of Objections (the ‘SO’) against the parties. The SO was notified to the parties on 21 December 2018.

5. Access to the file in the form of an electronic storage medium was granted between 21 December 2018 and 3 January 2019, and at the premises of the Directorate- General for Competition (‘DG Competition’) between 15 and 22 January 2019. Some data provided by Crédit Agricole were disclosed to the other parties via a negotiated disclosure procedure between 7 and 14 February 2019 (4). No complaints regarding access to the file were received by the Hearing Officer.

6. DG Competition initially granted all parties a time limit of eight weeks for their replies to the SO. Following requests from some of the parties, DG Competition extended the time limit to 28 March 2019 for BAML and 29 March 2019 for Crédit Agricole and Credit Suisse. No requests for further extensions were received by the Hearing Officer.

7. In February 2019, following requests for further explanations from BAML and Crédit Agricole, DG Competition sent letters to all parties providing some additional details regarding the Commission’s proposed fine calculation methodology, in particular as regards a proxy that the Commission would use for the value of sales.

8. All parties provided their reply within the applicable time limits. In their replies to the SO, BAML, Crédit Agricole and Credit Suisse (the ‘contesting parties’) all commented on the need for additional information regarding the fine calculation methodology. On 3 July 2019, Crédit Agricole sent a letter to DG Competition, supplementing its reply to the SO regarding fines.

9. All parties participated in an oral hearing that took place on 10 and 11 July 2019.

10. In September and October 2019, BAML addressed further written submissions to the Hearing Officer, following the Icap judgment of 10 July 2019 (5), requesting the Hearing Officer to direct DG Competition to disclose its proposed penalty methodology to BAML and enable it to make its views known on that methodology in advance of any final decision in this case (6).

11. In November 2019, the Hearing Officer responded to BAML, indicating that their request for disclosure of further information regarding the proposed fine calculation methodology was noted. However, the Hearing Officer indicated that Decision 2011/695/EU, which exhaustively sets out the competences of the Hearing Officer, does not grant it the power to take a decision ordering the disclosure of further details of the proposed methodology.

12. In November 2020, Executive Vice-President Vestager, Commissioner for Competition, sent a letter to all parties providing further individual details on the fines methodology with particular attention to the individualised calculation and outcome of the envisaged proxy to the value of sales (7) for each party (the ‘Letter on fines’).

13. DB replied in December 2020 and the three contesting parties did so in January 2021. The latter, among other things, argued that their rights of defence were undermined as the information communicated via the Letter on fines should have been included in the SO and they requested to be heard orally on it in an oral hearing (BAML) or an alternative format (Credit Suisse, Crédit Agricole (8)).

14. As argued in the draft decision, the Campine judgment of the General Court (9), supports the view that, at the stage of the SO, the Commission was not required to take a final decision on the final method for determining the amount of the fines that it intended to apply and that further clarifications on the fining methodology could indeed be provided by letter rather than in the form of a supplementary statement of objections.

15. Given that there is no fundamental right to be heard orally, as long as views can effectively be made known in writing (10), and given that Article 12 of Regulation 773/2004 only provides for the right to an oral hearing following a statement of objections, it follows that a second oral hearing was not legally required.

16. Compared to the SO, the draft decision (i) retains a shorter duration of the infringement for two of the parties, and (ii) no longer retains for the calculation of the fine an aggravating factor relating to alleged obstruction of the investigation for one of the parties.

17. Pursuant to Article 16 of Decision 2011/695/EU, the Hearing Officer has examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views, and has come to a positive conclusion.

18. In view of the above, the Hearing Officer considers that the effective exercise of the procedural rights of the parties to the proceedings in this case has been respected.

Brussels, 27 April 2021. Wouter WILS

(1) Pursuant to Articles 16 and 17 of Decision 2011/695/EU 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’).

(2) The respective corresponding legal entities are: Merrill Lynch International and Bank of America Corporation; Crédit Agricole Corporate and Investment Bank and Crédit Agricole SA; Credit Suisse Securities (Europe) Limited and Credit Suisse Group AG; and DB Group Services (UK) Limited, Deutsche Securities, Inc., and Deutsche Bank AG.

(3) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

(4) Crédit Agricole had, before the adoption of the SO, addressed a request to the Hearing Officer pursuant to Article 8(2) of Decision 2011/695/EU objecting to the disclosure of these data to the other parties. Crédit Agricole’s claim that the information was sensitive was provisionally accepted. The negotiated disclosure procedure resolved the issue.

(5) Judgment of 10 July 2019, Commission v Icap and Others, C-39/18 P, EU:C:2019:584. In paragraph 34 of that judgment, the Court of Justice stated that in cases where the Commission departs from its Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ C 210, 1.9.2006, p. 2, the ‘Guidelines on Fines’) and ‘applies another methodology specifically adapted to the particularities of the situation of undertakings that have facilitated a cartel, it is necessary, in view of the rights of the defence, that that methodology be disclosed to the interested parties, so that they can be put in a position to make their views known on the factors on which the Commission intends to base its decision’.

(6) A similar submission to DG Competition had been made by Credit Suisse in October 2019.

(7) In the SO, it was indicated that although the Commission ‘intends to apply the methodology set out in the Guidelines on fines’, since SSA bonds do not generate sales in the usual sense, the Commission would apply a specific proxy for the value of sales based on annualised notional amounts of SSA Bonds traded, discounted by a certain adjustment factor, as a starting point for the determination of fines.

(8) In March 2021, Crédit Agricole sent a further letter to DG Competition (with the Hearing Officer in copy), repeating its request ‘that the Commission clarify the status of the Commission’s Fining Methodology Letter, and requested that all rights of defence are respected by giving the parties an opportunity to make oral representations’. DG Competition replied to Crédit Agricole giving explanations similar to the content of paragraphs 14 and 15 of this report of the Hearing Officer.

(9) Judgment of 7 November 2019, Campine and Campine Recycling v Commission, T-240/17, EU:T:219:778, paragraphs 355-360.

(10) See Judgments of the European Court of Human Rights of 23 November 2006 in Jussila v Finland (Application no. 73053/01), paragraphs 40 to 49; of 19 April 2007 in Vilho Eskelinen & Ors v Finland (Application no. 63235/00), paragraphs 72 to 75; and of 23 October 2018 in Produkcija Plus storitveno podjetje d.o.o. v Slovenia (Application no. 47072/15), paragraph 54; and Decision of the European Court of Human Rights of 13 March 2012 in Bouygues Telecom v France (Application no. 2324/08), paragraphs 69 to 71; as well as Orders in Troszczynski v Parliament, C-462/18 P, EU:C:2019:239, paragraphs 52 to 55, in Gollnisch v Parliament, C-330/18 P, EU:C:2019:240, paragraphs 60 and 61, and Judgment in Syrian Lebanese Commercial Bank v Council, T-174/12 and T- 80/13, EU:T:2014:52, paragraph 147; and Opinion of Advocate General Wahl in SKW Stahl- Metallurgie v Commission, C-154/14 P, EU:C:2015:543, paragraphs 49 and 58; Judgment in Lucchini v Commission, T-185/18, EU:T:2019:298, paragraph 49; and Judgment in HeidelbergCement and Schwenk Zement v Commission, T-380/17, EU:T:2020:471, paragraph 634.