Case T‑180/15

Icap plc and Others

v

European Commission

(Competition — Agreements, decisions and concerted practices — Yen interest rate derivatives sector — Decision finding six infringements of Article 101 TFEU and Article 53 of the EEA Agreement — Manipulation of the JPY LIBOR and Euroyen TIBOR interbank reference rates — Restriction of competition by object — Participation of a broker in the infringements — ‘Hybrid’ settlement procedure — Principle of the presumption of innocence — Principle of sound administration — Fines — Basic amount — Exceptional adjustment — Article 23(2) of Regulation (EC) No 1/2003 — Obligation to state reasons)

Summary — Judgment of the General Court (Second Chamber, Extended Composition), 10 November 2017

Actions for annulment — Jurisdiction of the EU judicature — Claim seeking that directions be issued to an institution — Inadmissibility (Arts 263 TFEU and 266 TFEU)

Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Content and objective of a cartel and economic and legal context of its development — Distinction between infringements by object and infringements by effect — Intention of the parties to an agreement to restrict competition — Not a necessary criterion — Infringement by subject-matter — Sufficient degree of harmfulness — Criteria for assessment (Art. 101(1) TFEU)

Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Anti-competitive object or effect — Presumption — Conditions (Art. 101(1) TFEU)

Agreements, decisions and concerted practices — Concerted practice — Concept — Anti-competitive object — Criteria for assessment — No anti-competitive effects on the market — No direct link between the concerted practice and consumer prices — Irrelevant (Art. 101(1) TFEU)

Agreements, decisions and concerted practices — Concerted practice — Concept — Need for a causal link between the concerted action and the conduct of the undertakings on the market — Presumption that the causal link exists — Burden of rebutting that presumption incumbent on the undertaking concerned — Evidence (Art. 101(1) TFEU)

Actions for annulment — Subject-matter — Decision based on several pillars of reasoning, each sufficient to justify the operative part — Annulment of such a decision — Conditions (Art. 263 TFEU)

Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Scope (Art. 101 TFEU; Council Regulation No 1/2003, Art. 27(1))

Competition — Administrative procedure — Observance of the rights of the defence — Right of access to the file — Infringement — Denial of access to documents which might be useful for the defence of the undertaking (Art. 101 TFEU)

Agreements, decisions and concerted practices — Imputation to an undertaking — Commission Decision alleging that an undertaking facilitated infringements of the competition rules — Whether permissible — Conditions (Art. 10(1) TFEU)

Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Presumption of innocence — Applicability (Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 48(1); Council Regulation No 1/2003, Art. 2)

Competition — Agreements, decisions and concerted practices — Evidence — Assessment of the probative value of a document — Criteria — Reliability of evidence produced (Art. 101(1) TFEU)

EU law — Principles — Principle that penalties must be defined by law — Scope (Charter of Fundamental Rights of the European Union, Art. 49(1))

Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for the entire infringement to an undertaking — Conditions (Art. 101(1) TFEU)

Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Single and continuous infringement — Lack of evidence relating to certain specific periods of the overall period considered — Interruption of the participation of the undertaking in the infringement — Repeated infringement — Consequences for the determination of the fine (Art. 101 TFEU)

Competition — Administrative procedure — Settlement procedure — Applicability of the principle of the presumption of innocence — Scope (Art. 6 TEU; Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 48(1); Council Regulation No 1/2003, Art. 33; Commission Regulation No 773/2004, as amended by Regulation No 622/2008, Art. 10a)

Competition — Administrative procedure — Settlement procedure — Procedure not involving all the participants in a cartel — Adoption by the Commission of two decisions concerning (i) participants who have decided to enter into a settlement and (ii) participants who have decided not to enter into a settlement — Whether permissible — Condition — Compliance with the principle of the presumption of innocence (Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 48(1); Commission Regulation No 773/2004, as amended by Regulation No 622/2008, Art. 10a)

Competition — Administrative procedure — Principle of sound administration — Requirement of impartiality — Scope (Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 41)

Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Possibility of the Commission departing from the Guidelines for the calculation of fines — Obligation to state reasons all the stricter (Arts 101 TFEU and 296, second para. TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 37)

Acts of the institutions — Statement of reasons — Obligation — Scope — Correction of an error of reasoning during the proceedings before the Court — Not permissible (Art. 296 TFEU)