JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition)

24 September 2019 ( *1 )

(Competition — Agreements, decisions and concerted practices — Euro Interest Rate Derivatives sector — Decision establishing an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Manipulation of the Euribor interbank reference rates — Exchange of confidential information — Restriction of competition by object — Single and continuous infringement — Fines — Basic amount — Value of sales — Article 23(2) of Regulation (EC) No 1/2003 — Obligation to state reasons)

In Case T‑105/17,

HSBC Holdings plc, established in London (United Kingdom),

HSBC Bank plc, established in London,

HSBC France, established in Paris (France),

represented by K. Bacon QC, D. Bailey, Barrister, M. Simpson, Solicitor, and Y. Anselin and C. Angeli, lawyers,

applicants,

v

European Commission, represented by M. Farley, B. Mongin and F. van Schaik, acting as Agents, and B. Lask, Barrister,

defendant,

APPLICATION pursuant to Article 263 TFEU seeking, first, annulment in part of Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (AT.39914 — Euro Interest Rate Derivatives) and, second, a variation of the amount of the fine imposed on the applicants,

THE GENERAL COURT (Second Chamber, Extended Composition),

composed of M. Prek (Rapporteur), President, E. Buttigieg, F. Schalin, B. Berke and J. Costeira, Judges,

Registrar: M. Marescaux, Administrator,

having regard to the written part of the procedure and further to the hearing on 19 March 2019,

gives the following

Judgment

I. Background to the dispute

1 By decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39914 — Euro Interest Rate Derivatives) (‘the contested decision’), the European Commission found that the applicants, HSBC Holdings plc, HSBC Bank plc and HSBC France, had infringed Article 101 TFEU and Article 53 of the EEA Agreement by taking part, from 12 February to 27 March 2007, in a single and continuous infringement with the object of distorting the normal course of pricing on the market for Euro Interest Rate Derivatives (‘EIRD’ or ‘EIRDs’) linked to the Euro Interbank Offered Rate (‘Euribor’) and/or the Euro Over-Night Index Average (‘EONIA’) (Article 1(b) of the contested decision) and imposed on them jointly and severally a fine of EUR 33606000 (Article 2 (b) of the contested decision).

2 The HSBC group (‘HSBC’) is a banking group, and one of its activities is global banking and markets. HSBC Holdings is the ultimate parent company of HSBC. HSBC Holdings is the parent company of HSBC France, which is the parent company of HSBC Bank. HSBC France and HSBC Bank are responsible for the negotiation of EIRDs. HSBC France is responsible for submitting rates to the Euribor panel (recitals 58 to 61 of the contested decision).

3 On 14 June 2011, the Barclays banking group (Barclays plc, Barclays Bank plc, Barclays Directors Ltd, Barclays Group Holding Ltd, Barclays Capital Services Ltd and Barclays Services Jersey Ltd) (‘Barclays’) applied to the Commission for the grant of a marker under the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17), informing it of the existence of a cartel in the EIRD sector and expressing its wish to cooperate. On 14 October 2011, Barclays was granted conditional immunity (recital 86 of the contested decision).

4 Between 18 and 21 October 2011, the Commission carried out inspections at the premises of a number of financial institutions in London (United Kingdom) and Paris (France), including the applicants’ premises (recital 87 of the contested decision).

5 On 5 March and 29 October 2013, pursuant to Article 11(6) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), the Commission initiated infringement proceedings against the applicants and Barclays, Crédit agricole SA and Crédit agricole Corporate and Investment Bank (together ‘Crédit agricole’), Deutsche Bank AG, Deutsche Bank Services (Jersey) Ltd and DB Group Services (UK) Ltd (together ‘Deutsche Bank’), JP Morgan Chase & Co., JP Morgan Chase Bank National Association and JP Morgan Services LLP (together ‘JP Morgan’), Royal Bank of Scotland plc and the Royal Bank of Scotland Group plc (together ‘RBS’), and Société générale (recital 89 of the contested decision).

6 Barclays, Deutsche Bank, Société générale and RBS wished to participate in a settlement procedure pursuant to Article 10a of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), as amended. HSBC, Crédit agricole and JP Morgan decided not to participate in that settlement procedure.

7 On 4 December 2013, the Commission adopted, with regard to Barclays, Deutsche Bank, Société générale and RBS, decision C(2013) 8512 final, relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39914, Euro Interest Rate Derivatives (EIRD)(Settlement)) (‘the settlement decision’), by which it concluded that those undertakings had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in a single and continuous infringement with the object of distorting the normal course of pricing on the EIRD market (recital 95 of the contested decision).

A. The administrative procedure which led to the contested decision

8 On 19 March 2014, the Commission sent a statement of objections to the applicants, and to Crédit agricole and JP Morgan (recital 98 of the contested decision).

9 The applicants were able to consult the accessible parts of the Commission’s file on DVDs, and their legal representatives received further access to the file at the Commission premises (recital 99 of the contested decision). The applicants also had access to the statement of objections sent to the settling parties, the replies of those parties and the settlement decision (recital 100 of the contested decision).

10 On 14 November 2014, the applicants submitted their written observations on the statement of objections and presented their views orally at the hearing which took place on 15 to 17 June 2015 (recital 104 of the contested decision).

11 On 6 April 2016, the Commission amended the settlement decision as regards the determination of the amount of Société générale’s fine. The applicants had access to the amending decision, the underlying correspondence and the corrected financial data submitted by Société générale (recitals 105 and 106 of the contested decision).

B. Contested decision

12 On 7 December 2016, the Commission adopted the contested decision on the basis of Articles 7 and 23 of Regulation No 1/2003. Article 1(b) and Article 2(b) of that decision are worded as follows: ‘Article 1 The following undertakings have infringed Article 101 of the Treaty and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous infringement regarding Euro Interest Rate Derivatives covering the entire EEA, which consisted of agreements and/or concerted practices that had as their object the distortion of the normal course of pricing components in the EIRD sector: … (b) [the applicants] from 12 February 2007 to 27 March 2007; … Article 2 For the infringement referred to in Article 1, the following fines are imposed: … (b) [the applicants] jointly and severally liable: 33606000 EUR’.

1. Relevant products

13 The infringements at issue relate to EIRDs, that is to say Euro Interest Rate Derivatives linked to Euribor or EONIA.

14 Euribor is a set of benchmark interest rates intended to reflect the cost of interbank loans frequently used on the international capital markets. It is defined as an index of the rate at which euro interbank term deposits are offered by one prime bank to another prime bank within the euro area. Euribor is calculated on the basis of the average of the prices offered daily by a panel — composed of 47 prime banks during the period concerned by the contested decision, including the banks referred to in paragraph 5 above — submitted to Thomson Reuters acting as the calculation agent to the European Banking Federation (‘EBF’) between 10.45 a.m. and 11.00 a.m. The banks provide contributions for the 15 different Euribor interest rates, which vary according to their term which ranges from 1 week to 12 months. EONIA fulfils an equivalent function to Euribor, but with regard to daily rates. It is calculated by the European Central Bank (‘ECB’) on the basis of an average of the rates for unsecured interbank deposits from the same panel of banks as is used to set Euribor (recitals 20 to 27 of the contested decision).

15 The most frequent EIRDs are forward rate agreements, interest rate swaps, interest rate options and interest rate futures (recitals 4 to 10 of the contested decision).

2. Conduct alleged against the applicants

16 In recital 113 of the contested decision the Commission described the conduct of the banks referred to in paragraph 5 above as follows: ‘Barclays, Deutsche Bank, JPMorgan Chase, Société générale, Crédit agricole, HSBC and RBS have participated in a series of bilateral contacts in the EIRD sector that largely consisted of the following practices between different parties. (a) On occasions, certain traders employed by different parties communicated and/or received preferences for an unchanged, low or high fixing of certain Euribor tenors. These preferences depended on their trading positions/exposures. (b) On occasions, certain traders of different parties communicated and/or received from each other detailed not publicly known/available information on the trading positions or on the intentions for future Euribor submissions for certain tenors of at least one of their respective banks. (c) On occasions, certain traders also explored possibilities to align their EIRD trading positions on the basis of such information as described under (a) or (b). (d) On occasions, certain traders also explored possibilities to align at least one of their banks’ future Euribor submissions on the basis of such information as described under (a) or (b). (e) On occasions, at least one of the traders involved in such discussions approached the respective bank’s Euribor submitters, or stated that such an approach would be made, to request a submission to the EBF’s calculation agent towards a certain direction or at a specific level. (f) On occasions, at least one of the traders involved in such discussions stated that he would report back, or reported back on the submitter’s reply before the point in time when the daily Euribor submissions had to be submitted to the calculation agent or, in those instances where that trader had already discussed this with the submitter, passed on such information received from the submitter to the trader of a different party. (g) On occasions, at least one trader of a party disclosed to a trader of another party other detailed and sensitive information about his bank’s trading or pricing strategy regarding EIRDs.’

17 In recital 114 of the contested decision, the Commission added that, ‘in addition, on occasions certain traders employed by different parties discussed the outcome of the Euribor rate setting, including specific banks’ submissions, after the Euribor rates of a day had been set and published’.

18 The Commission found that those instances of conduct formed a single and continuous infringement.

19 In order to substantiate that finding, in the first place, the Commission declared that those instances of conduct had a single economic aim (recitals 444 to 450 of the contested decision) of reducing the cash flows which the participants would have to pay under the EIRDs or increasing those which they were to receive. In the second place, it declared that the various instances of conduct formed a common pattern of behaviour, in so far as a stable group of individuals was involved in the cartel, the parties had followed a very similar pattern in their anticompetitive activities and the various discussions between the parties covered the same or overlapping topics and had therefore the same or almost the same content (recitals 451 to 456 of the contested decision). In the third place, it declared that the traders participating in the anticompetitive exchanges were skilled professionals and knew or should have been aware of the general scope and the essential characteristics of the cartel as a whole (recitals 457 to 483 of the contested decision).

20 It found that HSBC had participated in that single and continuous infringement, emphasising that the bilateral contracts with Barclays themselves constituted an infringement of Article 101(1) TFEU (recital 486 of the contested decision).

21 As regards the duration of HSBC’s participation, the Commission took 12 February 2007 as its starting date (recital 620 of the contested decision) and 27 March 2007 as its end date (recital 625 of the contested decision).

3. Calculation of the amount of the fine

(a) Basic amount of the fine

22 As regards, in the first place, the determination of the value of sales of the banks that participated in the cartel, since EIRDs do not generate any sales in the usual sense of the term, the Commission determined the value of sales by means of a proxy. Furthermore, in the light of the circumstances in the present case, it concluded that it was preferable not to use an annualised proxy, but to take as its basis a proxy based on the months corresponding to the banks’ participation in the infringement (recital 640 of the contested decision). It pointed out that it was not required to apply a mathematical formula and that it had a margin of discretion when determining the amount of each fine (recital 647 of the contested decision).

23 The Commission considered it appropriate to use as its 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 (recital 641 of the contested decision), to which a uniform reduction factor of 98.849% was applied.

24 The Commission therefore took as the applicants’ value of sales the amount of EUR 192081799 (recital 648 of the contested decision).

25 As regards, in the second place, the gravity of the infringement, the Commission used a gravity factor of 15% as the infringement related to price coordination and price-fixing arrangements. It added a gravity factor of 3% by reference to the fact that the cartel concerned the whole of the EEA and had related to rates that were relevant for all EIRDs and that, as those rates related to the euro, they were of fundamental importance to the harmonisation of financial conditions in the internal market and for banking activities in Member States (recitals 720 and 721 of the contested decision).

26 As regards, in the third place, the duration of the infringement, the Commission stated that it had taken into account the duration of the participation of each participant in the cartel on ‘a rounded down monthly and pro rata basis’, which led to a multiplier of 0.08% being applied in respect of the applicants (recitals 727 to 731 of the contested decision).

27 In the fourth place, the Commission added an additional amount of 18% of the value of sales, described as an ‘entry fee’ in so far as the infringement consisted of horizontal price-fixing, in order to deter undertakings from participating in such practices, irrespective of the duration of the infringement (recitals 732 to 734 of the contested decision).

28 The Commission thus set the basic amount of the fine to be imposed on the applicants at EUR 37340000 (recital 735 of the contested decision).

(b) Final amount of the fine

29 As regards the setting of the final amount of the fine, the Commission found that HSBC had a more peripheral or minor role in the infringement that could not be compared with that of the main players and granted it a 10% reduction of the basic amount of the fine (recitals 747 to 749 of the contested decision). Article 2(1)(b) of the contested decision therefore imposes on the applicants a fine of a final amount of EUR 33606000.

II. Procedure and forms of order sought

30 By application lodged at the Court Registry on 17 February 2017, the applicants brought the present action.

31 On a proposal from the Second Chamber of the Court, the Court decided, pursuant to Article 28 of the Rules of Procedure of the General Court, to assign the case to a Chamber sitting in extended composition.

32 On a proposal from the Judge-Rapporteur, the Court (Second Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties on 30 January 2019. On 14 and 15 February 2019, the Commission and the applicants respectively replied to the questions put to them by the Court.

33 On 8 March 2019, the Court sent to the parties a further question to be answered at the hearing.

34 On 18 March 2019, the Court decided, after hearing the parties, to hold the hearing in camera pursuant to Article 109 of the Rules of Procedure.

35 At the hearing on 19 March 2019, the parties presented oral argument and replied to the Court’s oral questions. At that hearing, the Commission was asked to provide additional explanations on the determination of the 98.849% reduction factor which it had applied to the cash receipts.

36 On 2 April 2019, the Commission replied to the Court’s question.

37 On 10 May 2019, the applicants submitted their observations on the Commission’s reply.

38 On 28 May 2019, the Commission submitted its observations.

39 By decision of 4 June 2019, the Court (Second Chamber, Extended Composition) closed the oral part of the procedure.

40 The applicants claim that the Court should: – annul Article 1 of the contested decision; – in the alternative, annul Article 1(b) of the contested decision; – in the further alternative, annul in part Article 1(b) of the contested decision in so far as it holds that the applicants participated in a single and continuous infringement; – annul Article 2(b) of the contested decision; – in the alternative, substantially reduce the fine imposed on them under Article 2(b) of the contested decision to such amount as the Court may deem appropriate; – order the Commission to pay the costs or, in the alternative, an appropriate proportion of their costs.

41 The Commission contends that the Court should: – dismiss the application; – order the applicants to pay the costs.

III. Law

42 In their action, the applicants seek both the annulment of Article 1 and Article 2(b) of the contested decision and a variation of the amount of the fine imposed by Article 2(b) of that decision. A distinction will be drawn between, on the one hand, the examination of the application for annulment of Article 1 of the contested decision and, in the alternative, Article 1(b) of that decision and, on the other hand, the examination of the application for annulment of Article 2(b) of that decision, by which the Commission imposed a fine of EUR 33606000 on the applicants, and the application for variation of the amount of that fine.

43 In so far as the applicants present both applications for annulment of the contested decision and for variation of the amount of the fine imposed, it should be noted, as a preliminary point, that the system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 47 and the case-law cited).

44 First, the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the EU judicature, in law and in fact, in the light of the pleas raised by the applicant and taking into account all the relevant evidence submitted by the latter (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 48 and the case-law cited).

45 Nevertheless, it should be noted that in the context of a review of legality referred to in Article 263 TFEU the EU judicature cannot substitute their own reasoning for that of the author of the act at issue (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 89 and the case-law cited).

46 Second, the scope of the unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the competent court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 193 and the case-law cited).

47 By contrast, the scope of that unlimited jurisdiction is strictly limited, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine (see judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 76 and the case-law cited).

A. The applications for annulment of Article 1 of the contested decision and, in the alternative, Article 1(b) of that decision

48 In support of their applications for annulment of Article 1 of the contested decision and, in the alternative, Article 1(b) of that decision, the applicants put forward five pleas in law.

49 The first plea concerns the Commission’s finding of an infringement by object.

50 By the second, third and fourth pleas, the applicants challenge the Commission’s finding of a single and continuous infringement. The second plea concerns the Commission’s finding that the collusive arrangements established by HSBC and the other parties formed part of an overall plan pursuing a single aim. The third and fourth pleas concern, respectively, HSBC’s intention to contribute to that aim and its awareness of the conduct of the other participants in the infringement.

51 The fifth plea concerns the adoption of the contested decision subsequent to a settlement decision in which the Commission had already adopted a position on HSBC’s participation in the infringement at issue. The applicants infer from this that the Commission breached the principles of the presumption of innocence, good administration and rights of the defence.

1. The first plea in law, concerning the finding of an infringement by object within the meaning of Article 101(1) TFEU

52 Since the matter at issue is the Commission’s characterisation of the infringement as an infringement by object, it should be noted that, in order to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement, decision by an association of undertakings or concerted practice must have ‘as [its] object or effect’ the prevention, restriction or distortion of competition within the internal market.

53 In that regard, it is apparent from the Court of Justice’s case-law that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 49, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 113; see also, to that effect, judgment of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 34).

54 The distinction between ‘infringements by object’ and ‘infringements by effect’ arises from the fact that certain types of collusion between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 50, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 114; see also, to that effect, judgment of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 35).

55 Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market. Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 115).

56 Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (judgments of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 34; of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 52; and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 116).

57 According to the case-law of the Court of Justice, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 53, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 117; see also, to that effect, judgment of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 36).

58 In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account (judgments of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 37; of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 54; and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 118).

59 With regard, in particular, to the exchange of information between competitors, it should be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which it intends to adopt on the common market (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 32, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 119).

60 While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 33, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 120).

61 The Court of Justice has accordingly held that the exchange of information between competitors was liable to be incompatible with the competition rules if it reduced or removed the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings was restricted (judgments of 2 October 2003, Thyssen Stahl v Commission, C‑194/99 P, EU:C:2003:527, paragraph 89; of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 35; and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 121).

62 In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 122; see also, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 41).

63 Moreover, a concerted practice may have an anticompetitive object even though there is no direct connection between that practice and consumer prices. Indeed, it is not possible on the basis of the wording of Article 101(1) TFEU to conclude that only concerted practices which have a direct effect on the prices paid by end users are prohibited (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 123; see also, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 36).

64 On the contrary, it is apparent from Article 101(1)(a) TFEU that concerted practices may have an anticompetitive object if they ‘directly or indirectly fix purchase or selling prices or any other trading conditions’ (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 37, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 124).

65 In any event, Article 101 TFEU, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such. Therefore, in order to find that a concerted practice has an anticompetitive object, there does not need to be a direct link between that practice and consumer prices (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraphs 38 and 39, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 125).

66 Lastly, it should be pointed out that the concept of a concerted practice, as it derives from the actual terms of Article 101(1) TFEU, implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 51, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 126).

67 In that regard, the Court of Justice has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court of Justice has concluded that such a concerted practice is caught by Article 101(1) TFEU, even in the absence of anticompetitive effects on that market (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 51, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 127).

68 It is in the light of those considerations that the Court must examine the first plea, in which the applicants challenge the finding of an infringement by object applied to each of the categories of conduct alleged by the Commission. They divide their argument into two parts, the first of which deals with conduct connected to the manipulation of submissions to Euribor on 19 March 2007 and the second of which deals with conduct not connected to that manipulation, namely exchanges between HSBC traders and traders from other banks relating to their trading positions and mids.

69 In Article 1 of the contested decision the Commission found that there had been an infringement of Article 101 TFEU consisting of ‘agreements and/or concerted practices that had as their object the distortion of the normal course of pricing components in the EIRD sector’.

70 Those agreements and/or concerted practices alleged against the banks, including HSBC, were described in recitals 113, 358 and 392 of the contested decision. As the applicants rightly state, those agreements and practices can be sorted into three groups: first, those relating to the manipulations of submissions to Euribor (recitals 113(a), 358(a) and 392(a): exchanges relating to their preference of level of Euribor benchmark; recitals 113(d), 358(d) and 392(d): exchanges relating to the possibility of aligning their Euribor submissions; recitals 113(e), 358(e) and 392(e): contact between the trader involved and the Euribor submitter within the same bank; recitals 113(f), 358(f) and 392(f): agreements to report back on attempts to influence Euribor submissions), second, those relating to exchanges about EIRD trading positions (recitals 113(b), 358(b) and 392(b): exchanges relating to their respective trading positions and exposures; recitals 113(c), 358(c) and 392(c): exchanges relating to the possibility of aligning their trading positions); and, third, those relating to exchanges about detailed and not publicly available information on their pricing intentions and pricing strategies concerning EIRDs (recitals 113(g), 358(g) and 392(g)).

71 The Court considers it appropriate to deal first with two comments from the Commission and the applicants.

72 In the first place, the Commission submits that the applicants are wrong to challenge the various forms of conduct alleged against HSBC on an individual basis and highlights their interrelated nature. In essence, it claims that it is artificial to draw distinctions between (i) the manipulation of 19 March 2007, (ii) exchanges about trading positions and (iii) exchanges about detailed and not publicly available information on their pricing intentions and pricing strategies concerning EIRDs, more specifically EIRD mids in the present case.

73 However, such a criticism cannot be upheld. The distinction made by the applicants merely reproduces the distinction made by the Commission in the contested decision and referred to in paragraph 70 above. Moreover, it is apparent, in particular, from recitals 365, 387, 393 and 442 of the contested decision that the Commission considered that the object of that conduct was to restrict competition, not only collectively but also on an individual basis.

74 In the second place, the applicants observe that, in certain grounds of the contested decision, the Commission does not explain the existence of an object that restricts competition merely by stating that the practices at issue distorted the normal course of pricing components in the EIRD sector, but also by reference to a distortion of other trading conditions for EIRDs within the meaning of Article 101(1)(a) TFEU. They claim that, since no such finding appears in Article 1 of the contested decision, it cannot be taken into account for the purposes of explaining the Commission’s finding of restriction by object.

75 The Commission submits that the wording of the operative part of the contested decision does not preclude it from relying on the finding that other trading conditions were distorted, since that finding is clearly set out in the recitals of that decision.

76 It should also be pointed out that the enacting terms of an act are inextricably linked to the statement of reasons for them in the recitals, so that, if that act has to be interpreted, account must be taken of the reasons which led to its adoption (see order of 30 April 2007, EnBW Energie Baden-Württemberg v Commission, T‑387/04, EU:T:2007:117, paragraph 127 and the case-law cited). While it is true that only the operative part of a decision is capable of producing legal effects, the fact remains that assessments made in the grounds of a decision can be subject to judicial review by the EU judicature to the extent that, as grounds of a measure adversely affecting the interests of those concerned, they constitute the essential basis for the operative part of that measure or if those grounds are likely to alter the substance of what was decided in the operative part of the measure in question (see judgment of 1 July 2009, KG Holding and Others v Commission, T‑81/07 to T‑83/07, EU:T:2009:237, paragraph 46 and the case-law cited).

77 Consequently, in so far as the Commission highlighted, in support of its finding that competition had been restricted, not only price coordination and/or price fixing, but also distortion of other trading conditions in the EIRD sector, in particular in recitals 384, 388, 393, 415, 423 and 488 of the contested decision, there is nothing, in principle, to preclude that reasoning from being taken into account for the purposes of assessing the legality of Article 1 of the contested decision, even though the latter does not expressly refer to those trading conditions.

(a) First part of the plea, disputing the finding of restriction of competition by object applied to the manipulation of Euribor on 19 March 2007

78 As a preliminary point, the applicants submit that the banks compete on the EIRD market only when those contracts are entered into and only on the basis of the fixed rate which is the price of those contracts. They consider that the Commission’s argument that the objective of the parties to an EIRD is to optimise their cash flow ignores market making and hedging activities. They submit that the present case differs from that which gave rise to the judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795), in which the significance of market making activities was not discussed, whereas it follows therefrom that, for banks operating in that capacity, the fixed rate is determined differently and competition takes place only on the basis of that fixed rate.

79 As regards the manipulation of 19 March 2007, the applicants acknowledge, in essence, that the objective of the manipulation was to lower the three-month Euribor (‘3m Euribor’) on 19 March 2007 and that, in that context, a Barclays trader asked an HSBC trader to request the person responsible for submitting rates to issue a low quote on 19 March 2007, which he did. However, first, they deny that the objective of that manipulation was to distort EIRD pricing components and/or trading conditions and, second, they argue that the objective of manipulating cash flow is not anticompetitive.

80 In the first place, the applicants deny that that manipulation had as its object the coordination and/or fixing of EIRD pricing components, as the Commission pointed out in recital 411 of the contested decision, since that manipulation relates to the variable rate of EIRDs, whereas the price of the EIRD is the fixed rate. Similarly, the 3m Euribor is not a relevant factor for the determination of the price of EIRDs or a component of that price. In that regard, they maintain that the Commission’s argument that the variable rate is an element in the setting of the fixed rate when new EIRDs are entered into is necessarily based on new contracts being entered into following the manipulation. On the basis of a financial expert’s report compiled at their request, they maintain that it was disadvantageous to the traders concerned to adapt their trading positions in the light of planned manipulation. They conclude from this that recital 411 of the contested decision is vitiated by an error of law, a manifest error of assessment or an inadequate statement of reasons.

81 In the second place, the applicants argue that the contested decision seems to imply that the manipulation of 19 March 2007 — in addition to price fixing — constitutes an exchange of information on traders’ intentions with the result that the uncertainty inherent in the EIRD market was reduced. They claim that proof of that conduct with regard to HSBC’s traders was not adduced by the Commission. It has not been shown that those traders benefited from an informational asymmetry which would have enabled them to offer better conditions than their rivals. They deny that they are required to show that the collusion did not influence HSBC’s conduct in any way and state that it is for the Commission to prove the existence of an anticompetitive object.

82 In the third place, the applicants maintain that the reference in recital 388 of the contested decision to the fact that the manipulation constitutes the fixing of trading conditions within the meaning of Article 101(1)(a) TFEU cannot be taken into account since it does not appear in the operative part of the contested decision. They add that this aspect of the Commission’s reasoning is, in any event, vitiated by insufficient reasoning, since no explanation is provided. The use of that term is also incorrect since the rights and obligations of the parties under an agreement are not at issue.

83 In the fourth place, the applicants maintain that the objective of manipulating cash flows is not anticompetitive, since it was not achieved by an agreement that restricted competition between traders. They state that competition on the EIRD market occurs at the time EIRDs are concluded and not at the level of the cash flow that is paid or received under EIRDs. In essence, they deny that cash flows may have an indirect effect on the price of EIRDs.

84 The Commission contends that this part of the plea should be rejected.

85 This part of the plea concerns the characterisation of the manipulation of Euribor of 19 March 2007 as having an object that restricts competition. How HSBC participated in that manipulation is discussed, in particular, in recitals 271, 275, 289, 322, 328 and 329 of the contested decision.

86 It is apparent from those recitals that, in essence, that conduct consisted in submitting low quotes on 19 March 2007 for the 3m Euribor with a view to reducing that rate on that date for the purpose of making a gain on a category of derivatives falling due on that date as a result of the difference in rates (‘spread’) as compared with derivatives linked to EONIA.

87 More particularly, that manipulation consists principally in the manipulation of one type of EIRD, interest rate futures linked to the 3m Euribor. Essentially, under this type of contract one party, termed the buyer, receives the fixed rate during the contract, while the other party, termed the seller, receives a variable rate. The manipulation consisted of gradually gaining a very large ‘buyer’ exposure, in respect of which the bank thus receives the fixed rate and pays the variable rate, and reducing the level of the variable rate at the maturity date by concerted action.

88 The reference to derivatives linked to EONIA relates to the fact that participants in the cartel covered their ‘buyer’ exposure to futures linked to the 3m Euribor by opposite exposure, namely, in the present case, a swap with the same tenor linked to EONIA. As mentioned in paragraph 14 above, EONIA is a daily rate calculated by the ECB.

89 Thus, by artificially reducing the Euribor rate as compared with that of EONIA on 19 March 2007, the banks participating in the cartel could expect to make a financial gain.

90 It is apparent from recitals 257 and 258 of the contested decision that the idea for such manipulation dates from at least 1 February 2007, in discussions between traders from Deutsche Bank, Barclays and Société générale. It is apparent from recital 271 of that decision that, on 12 February 2007, a trader from Barclays informed a trader from HSBC of that plan and from recital 275 of that decision that a discussion also took place on the following day concerning that manipulation. In recital 289 of the contested decision, mention is made of a conversation of 28 February 2007 between those two same traders concerning the reduction of the spread between the 3m Euribor and EONIA. Lastly, in recital 322 of the contested decision, reference is made to a discussion of 19 March 2007 in which the trader from Barclays asks the trader from HSBC to request HSBC submitters to contribute a very low 3m Euribor quote, which the latter trader allegedly did successfully.

91 The applicants do not contest the truth of the facts found by the Commission. They take the view, rather, that those facts are not capable of explaining the Commission’s finding of restriction of competition by object.

92 It is apparent from recital 384 of the contested decision that the Commission concluded that the object of the manipulation of 19 March 2007 was to influence the cash flows payable under EIRDs in a manner favourable to the parties to that manipulation. In recital 411 of the contested decision, in response to an argument put forward by the applicants contesting the finding of restriction of competition by object in respect of the conduct imputed to HSBC, the Commission stated, in essence, that Euribor directly determined the cash flows payable under the ‘variable leg’ of EIRDs and was also relevant for the determination of the cash flows payable under the ‘fixed leg’ of EIRDs, since it was indirectly taken into account at the time when the fixed rate was determined by reference to the yield curve, which was based on expected variable rates.

93 In recital 394 of the contested decision, the Commission stated that all of the forms of conduct described in recital 392 of its decision, including the manipulation of 19 March 2007, restricted competition by creating an informational asymmetry between market participants, since participants in the infringement, first, were better able to know in advance with a certain accuracy at what level Euribor would be and/or was intended to be set by their colluding competitors and, second, knew whether or not the Euribor on a given day was at artificial levels.

94 That line of reasoning does not contain any error of law or assessment.

95 In this regard, it should be noted that the impact of the Euribor manipulation on cash flows generated by the derivatives at issue is clear. On 19 March 2007, the participants artificially reduced the Euribor rates so that the sums they had to pay in respect of the ‘variable leg’ of futures linked to Euribor would be lower.

96 Therefore, when the HSBC traders negotiated the ‘fixed leg’ of those futures, that is to say, the fixed rate determining the payments which they were to receive, they were in a position to do so knowing that the variable rate, which determines the payments which they were going to have to make, would be low. They were therefore in a position to propose a more competitive rate than that of their competitors, since they knew that the cash flows associated with those contracts would remain positive.

97 That conduct necessarily restricted competition to their advantage and to the detriment of other operators on the market. This was also to the detriment not only of their counterparties who saw the payments that they received under the ‘variable leg’ of the EIRDs artificially reduced, but also to the banks that wanted to adopt a ‘buyer’ position in respect of the type of EIRD at issue, but which did not enter into a trade because of the more competitive rate offered by the participants in the manipulation. Such manipulation was also to the detriment of the market operators who, not being aware of that manipulation, took trading positions against those of HSBC and Barclays. In that regard, it is possible to note that the terms used by the traders from those two banks in a telephone conversation that took place immediately after the manipulation of 19 March 2007, referred to in recital 329 of the contested decision, are unequivocal as to the perception by those two traders of the negative effects of their manipulation on their competitors.

98 The various arguments put forward by the applicants are not such as to call into question the merits of that finding.

99 The first set of arguments put forward by the applicants is that the manipulation of Euribor cannot constitute a restriction of competition since, in essence, there is competition between the banks only when the EIRDs are entered into and solely on the basis of the rate of their ‘fixed leg’, which constitutes the only ‘price’ of EIRDs.

100 Such criticism is based on the premiss that EIRDs are entered into solely on the basis of competition in respect of the fixed rate. However, as the Commission rightly stated in the contested decision, the cash flows generated by an EIRD result from the netting of payments payable under the ‘fixed leg’ and the ‘variable leg’ of the EIRD. Thus, not only will a trader be in a position to improve the cash flows from existing EIRDs by manipulating the reference rate on the basis of its overall credit or debit position, but he will also be able to negotiate the fixed rate of the contracts which he enters into by having advanced information with regard to the variable rate applicable to the relevant dates for the determination of cash flows. His competitive position can only be improved as compared with that of his competitors who do not have such information.

101 The applicants claim that it was not in the interests of the banks participating in the manipulation of 19 March 2007 to adapt their trading positions according to that manipulation and make reference to paragraphs 347 to 351 of the financial expert’s report (see paragraph 80 above). However, that line of argument and the relevant passages of that financial expert’s report contain only general assertions claiming that it is not in the banks’ interest to offer better terms than those of their competitors on the ground that that would reduce the profitability of the EIRDs. Nevertheless, the fact remains that, where a trader has advanced information on the variable rate that applies to the relevant dates, he is able to determine the fixed rate that he should propose in order to ensure, first, the profitability of the EIRD, that is to say so that it generates positive cash flows for its bank and negative cash flows for its counterparty and, second, that that fixed rate will appear more attractive to the counterparty than that offered by its competitors.

102 In that regard, there is no contradiction between, on the one hand, the fact that it is possible for the banks concerned to offer better conditions than their competitors and, on the other hand, the finding of an infringement by object. In the circumstances of the present case, that possibility is instead the expression of a change in the competitive process on the EIRD market solely for the benefit of the banks that participated in the collusion.

103 That conclusion is all the more justified in the light of the characteristics of the manipulation of 19 March 2007. Those characteristics show that it was in the banks’ interest to modify their trading positions in the light of that manipulation by acquiring a ‘buyer’ exposure to futures linked to the 3m Euribor that was as large as possible in anticipation of the orchestration of a low rate. It is telling that, during the telephone conversation between the HSBC trader and the Barclays trader that took place on 19 March 2007 directly after the manipulation and is referred to in recital 329 of the contested decision, the HSBC trader appears to regret the fact that he had not benefited from the manipulation as much as the Barclays trader, who had built up a greater ‘buyer’ position.

104 Therefore, in the light of the significance of Euribor in determining the cash flows payable under those contracts, it is necessary to reject the first set of arguments, which seek to show that the Commission erred when it found that the conduct which had as its purpose the manipulation of the 3m Euribor rate on 19 March 2007 had an object that restricted competition. It also follows from the above that the Court has been able to carry out its review of lawfulness in this regard and that, consequently, the Court finds that that aspect of the Commission’s reasoning does not contain an insufficient statement of reasons, contrary to what is claimed by the applicants.

105 In a second set of arguments, the applicants complain that the Commission focused only on the proprietary trading of EIRDs, omitting the fact that HSBC traded EIRDs for hedging and market making purposes.

106 The term ‘market maker’ is defined in recital 40 of the contested decision as follows: ‘Market makers are individuals or companies which hold themselves out as able and willing to sell or to buy financial products, such as securities or financial derivative products, at prices determined by them generally and continuously (through firm bids and offers), rather than in respect of each particular transaction.’ That definition is not contested by the applicants.

107 Since they are generally and continuously active on the EIRD market, ‘market makers’ enter into a larger number of transactions than other market participants, always with the objective of making a profit. The applicants’ line of argument is that, for a market maker, that search for profit is based mainly on the difference between the purchase and selling prices of the numerous contracts which it enters into, that is to say, the difference between its overall ‘buyer’ and ‘seller’ positions, rather than by the difference between the fixed rate and the variable rate of each of those contracts.

108 However, if a market maker can make a profit by taking advantage of the difference between the price at which he buys and sells EIRDs, that does not preclude him from seeking to make a profit from the difference between the fixed rate and the variable rate of a single EIRD. It seems unlikely that a trader who makes a particularly large number of trades does not take into account what the variable rate will be when he offers a price based on the fixed rate.

109 Further, the HSBC trader’s role as a market maker bears out the implausible nature of the applicants’ argument that it was not in HSBC’s interest to adapt its trading positions according to the manipulation of 19 March 2007, which was dealt with in paragraphs 101 to 103 above. Accepting a lower level of profitability per transaction is entirely logical where a greater number of transactions are entered into.

110 Lastly, as regards the emphasis that the applicants’ place on the fact that the EIRDs were also entered into for hedging purposes, it need only be pointed out that using EIRDs in such a way does not detract from the fact that the EIRDs can also be used by market makers for speculation purposes, as the Commission pointed out in recital 38 of the contested decision.

111 In the light of the foregoing, the second set of arguments put forward by the applicants should be rejected and it must be concluded that the Commission was right to find that the manipulation of 19 March 2007 in which HSBC participated, fell within the definition of an infringement by object under Article 101(1) TFEU.

112 In the third set of arguments, the applicants criticise the Commission for having characterised the manipulation of 19 March 2007 as constituting a fixing of trading conditions within the meaning of Article 101(1)(a) TFEU.

113 However, since the finding of an infringement by object applied to the manipulation of 19 March 2007 is substantiated to the requisite legal standard for the reasons set out in paragraphs 94 to 111 above, those arguments must be rejected as irrelevant. With regard to those arguments, it is appropriate to apply the settled case-law according to which where some of the grounds in a decision on their own provide a sufficient legal basis for the decision, any errors in the other grounds of the decision have no effect on its operative part (see, to that effect and by analogy, judgments of 12 July 2001, Commission and France v TF1, C‑302/99 P and C‑308/99 P, EU:C:2001:408, paragraph 27, and of 12 December 2006, SELEX Sistemi Integrati v Commission, T‑155/04, EU:T:2006:387, paragraph 47).

114 In view of the foregoing, the first part of the plea must be rejected.

(b) Second part of the plea, relating to the finding of an infringement by object applied to other forms of conduct alleged against HSBC

115 In this part of the plea, the applicants dispute the finding of an infringement by object applied by the Commission to forms of conduct which do not concern the Euribor manipulation of 19 March 2007 and are referred to in the contested decision as exchanges relating, first, to ‘trading positions’ and, second, to ‘detailed and not publicly available information on their pricing intentions and pricing strategies concerning EIRDs’. With regard to that second category, HSBC was found to have taken part in exchanges which allegedly relate to EIRD ‘mids’.

116 They observe that the exchanges at issue in this part of the plea are limited to six online discussions between 12 February and 27 March 2007, which do not relate to the manipulation of Euribor.

117 They maintain that the discussions described in the contested decision as exchanges on trading positions were insufficient to enable the traders in question to coordinate their trading positions. The applicants dispute the Commission’s assessment of the discussions of 12 and 16 February 2007 and 9 and 14 March 2007.

118 As regards the discussions described in the contested decision as exchanges on pricing strategies, the applicants deny that the mid constitutes a ‘price’, a ‘price list’ or a ‘pricing component’ that allows such characterisation and claim that the mid is not confidential information and that, from a certain perspective, such discussions encourage competition. They dispute the Commission’s assessment of the discussions of 14 and 16 February 2007.

119 The Commission’s reply is that the matters contested in the application are not the only examples of exchanges of sensitive information in which HSBC participated.

120 It states, as regards the discussions described in the contested decision as exchanges on trading positions, that, although some of them are related directly to the manipulation of 19 March 2007, they are intended, as such, to influence the cash flows under EIRDs, thereby distorting the normal course of competition.

121 As regards the discussions described in the contested decision as exchanges on pricing strategies, the Commission concludes that mids make it possible to anticipate bid and offer prices and, therefore, that those exchanges reduce uncertainty as to the likely level of those prices and that the holding of such discussions does not constitute one of the normal circumstances for the functioning of the market in question and is not favourable to consumers.

122 It retains the assessment that it made in the contested decision on the discussions of 12, 14 and 16 February 2007 and 9 and 14 March 2007.

123 As a preliminary point, it should be noted that, although it follows from the examination of the first part of this plea that HSBC’s participation in an infringement by object is established to the requisite legal standard, it is nevertheless still appropriate to examine the second part. The existence of other anticompetitive conduct attributable to HSBC is relevant for the purposes of assessing the gravity of the infringement of Article 101(1) TFEU committed by HSBC and, consequently, the proportionality of the fine imposed on it. The factors capable of affecting the assessment of the gravity of an infringement include the number and intensity of the incidents of anticompetitive conduct (see, to that effect, judgments of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 57 and the case-law cited, and of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 197).

124 The Court notes that the applicants’ line of argument can be divided into two grounds for complaint, the first of which relates to the merits of the finding of restriction by object applied by the Commission to discussions that it described as exchanges on mids and the second of which relates to the merits of the equivalent finding applied to discussions that it described as exchanges on trading positions.

(1) Ground for complaint contesting the merits of the finding of restriction by object applied to the exchanges on mids

125 At issue are two discussions in which HSBC participated and which allegedly related to the mid-point prices (described as ‘mids’ in the contested decision) of EIRDs; the first of those discussions occurred on 14 February 2007 (recitals 283 to 285 of the contested decision), and the second occurred on 16 February 2007 (recitals 286 to 288 of that decision). Those discussions fall within the category of anticompetitive conduct contemplated in recitals 113(g), 358(g) and 392(g) of the contested decision (exchanges about detailed and not publicly available information on their pricing intentions and pricing strategies concerning EIRDs).

126 As it did with regard to the manipulation of 19 March 2007, the Commission explained its finding of restriction by object with regard to such exchanges in recital 394 of the contested decision by reference to the creation of informational asymmetry between market participants, since the participants in the infringement, first, were better placed to know in advance with a certain accuracy at what level Euribor would be and/or was intended to be set by their colluding competitors, and, second, knew whether or not the Euribor on a given day was at artificial levels.

127 Reasons relating more specifically to mids appear in other passages of the contested decision.

128 Thus, in recital 32 of the contested decision, it is made clear that the terms ‘run’ or ‘mids’, ‘in simple terms … can be described as price lists of a trader, a trading desk or a bank regarding certain standard financial products’. In recital 34 of that decision, it is stated that the term ‘mid’‘refers to the mid-point or average of the bid and offer prices (for example perceived, modelled, quoted or traded) for a particular product. The mid often serves as a reliable approximation of where a market maker would trade with a client, in particular where the market is liquid and the bid-offer spread is narrow’.

129 Also in recital 34 of the contested decision, the Commission referred to the fact that one bank explained to it that ‘derivatives traders [used] the mid points on their yield curves to help determine the bid or offer prices they are to make to the market. Through knowing a competitor’s mid point, although it is not actually the dealing price, a derivatives trader is more easily able to work out the actual bid or offer prices of its competitors. Mids are used for pricing, managing trading positions and appreciation of a portfolio.’

130 In recital 419 of the contested decision, in response to the applicants’ arguments, the Commission stated that the mid constituted each trader’s estimate for the actual price of the EIRD and that there are as many estimates of the mid as there are market players ‘as the mid represents an individual perception of the price, and therefore reveals a price intention’. In that regard, it pointed out that the applicants themselves had stated that the ‘offer price’ was typically set slightly above the mid and the bid price is typically set slightly below the mid, and that changes in the mid ‘tend to result in a parallel change of both the bid and the offer’ and, therefore, that the mid is a close proxy to the price.

131 The Commission also analysed the question whether the information exchanged was secret and the degree of market transparency.

132 Thus, in recital 395 of the contested decision, the Commission emphasised that those exchanges went beyond an exchange of information in the public domain and had the objective of increasing transparency between the parties and therefore significantly reducing normal market uncertainties to benefit the parties to the detriment of other market participants.

133 Similarly, in recitals 399 to 402 of the contested decision, the Commission rejected the argument that the information exchanged was not sensitive because it was widely available to the public. The Commission concluded that accurate pricing information was not widely available on the EIRD market, arguing that it was apparent from the documents before the Court that unreliable information was sometimes knowingly communicated to the public platforms of market players and that the traders needed the pricing information of other traders to adjust their own pricing curves.

134 In recital 403 of the contested decision, the Commission did not accept the arguments that the exchanges pursued a legitimate purpose, essentially on the ground that those exchanges did not play a role in the conclusion of transactions between the traders concerned. It also highlighted that such exchanges between market makers gave rise to greater transparency only between themselves and did not benefit all market participants.

135 In addition, in recital 431 of the contested decision, the Commission denied that certain characteristics of the EIRD market, and in particular its fast-moving and transitory nature, implied that collusion could arise only with frequent communication on specific details of individual trades, such as precise information on future individual transactions. It reiterated that ‘the information exchanged on transaction data (prices and volumes) for most over the counter EIRDs was not publicly available and accurate pieces of information were valuable information to traders’.

136 The conversation of 14 February 2007 is referred to in recitals 283 to 285 of the contested decision. In that conversation, the HSBC trader tells the Barclays trader that the Deutsche Bank trader publishes some of his prices on his Bloomberg screen, to which the Barclays trader replies that those prices are merely indicative. The contested decision then states that ‘[the Barclays trader] then inquires just about [the HSBC trader]’s exact price for August[; … HSBC trader] obliges and replies “4.012” and that he has been offered 4.005-4.015 on this in the market shortly before leaving the chat.’ The Commission concludes from this conversation that ‘[the Barclays trader] asks [the HSBC trader] for a precise pricing information outside of the context of a potential transaction, a request which [the HSBC trader] satisfies …’.

137 With regard to the discussion of 16 February 2007, in recitals 286 to 288 of the contested decision, the Commission found that ‘[the HSBC trader] and [the Barclays trader] disclose[d] to each other their respective mid prices on an EONIA swap (“t’as quoi 10/11 sp eonia?”) and a [forward rate agreement] (“et sur le 10/11 sp fra?”). [The HSBC trader] is not sure about his price on the EONIA swap (“je dois etre a la rue … 4.06?”“g 4.0625 en mid”) but [the Barclays trader] reassures him (“non ca va”) and then reveals the deal prices and that he has gained on the [forward rate agreement] from trades with two other market players who had different prices for the same contract.’

138 The Commission did not err in finding that the exchanges on mids contained in those two discussions had an object that restricted competition.

139 In the first place, it should be noted that, contrary to the applicants’ assertions, information relating to mids is relevant for pricing in the EIRD sector.

140 First, it is common ground between the parties that a trader determines the fixed rate of EIRDs by reference to what it considers to be the mid, namely slightly below it for its ‘bid price’ and slightly above it for its ‘offer price’, as the Commission pointed out in recital 419 of the contested decision.

141 Second, it must also be concluded that knowledge of a competitor’s mid makes it possible to assess that competitor’s perception of what the variable rate of the EIRD will be on the fixing date, by applying the yield curve referred to in recital 34 of the contested decision, at least as regards EIRDs with a short maturity. When questioned at the hearing as to whether the yield curve of an EIRD is known to all market operators or depends on the individual perception of each operator, the applicants themselves stated that that yield curve was objective and was not based on an individual assessment of that type of derivative.

142 In the second place, it should be noted that information on mids for over-the-counter (‘OTC’) derivatives is not public, unlike the equivalent information for derivatives traded on a regulated market. While it is common ground between the parties that the latter information is available or may be deduced in respect of all parties operating on a regulated market, that is not the case for OTC derivatives.

143 It is true that information on mids relating to such derivatives may be made public directly by certain traders or indirectly through brokerage companies. However, the fact remains that such information is not generally available and is not necessarily reliable, as is shown by the discussion of 14 February 2007, referred to in paragraph 136 above, between the HSBC trader and the Barclays trader in relation to the mids published by the Deutsche Bank trader on his Bloomberg page.

144 In the third place, it should be noted that a distinction may be drawn between, on the one hand, competitors gleaning information independently or discussing future pricing with customers and third parties and, on the other hand, competitors discussing price-setting factors and the evolution of prices with other competitors before setting their quotation prices. Although the first type of conduct does not raise any difficulty in terms of the exercise of free and undistorted competition, the same cannot be said of the second type, which runs counter to the requirement that each economic operator must determine independently the policy which it intends to adopt on the internal market, since that requirement of independence strictly precludes any direct or indirect contact between such operators with the object or effect either of influencing the conduct on the market of an actual or potential competitor or of disclosing to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market (see judgment of 14 March 2013, Dole Food and Dole Germany v Commission, T‑588/08, EU:T:2013:130, paragraphs 291 and 292 and the case-law cited).

145 Further, an exchange between competitors on a factor that is relevant for pricing and is not publicly available is all the more sensitive in terms of competition where it takes place between traders acting as ‘market makers’, in the light of the importance of such traders on the EIRD market. As was stated in paragraphs 106 and 107 above, ‘market makers’ are generally and continuously active on the EIRD market and therefore enter into a larger number of transactions than other market participants. From the point of view of competition on the market, it is particularly fundamental that prices be determined independently.

146 In the fourth place, it must be concluded that the discussions between the HSBC and Barclays traders of 14 and 16 February 2007 concerned precise information which could have been exploited by the other party.

147 Thus, it is apparent from reading the entire discussion of 14 February 2007 that not only did the HSBC trader disclose the level of his mid (4.012) and the prices of transactions that had been offered to him (4.004/4.0015), but both traders also shared their impressions on the level and evolution of prices.

148 With regard to the discussion of 16 February 2007, it is apparent from the explanations provided by the applicants themselves in their observations on the statement of objections that the HSBC and Barclays traders discussed their assessments of the mid for a one-month spot EONIA swap starting in 10 months (‘10/11 sp eonia’) and compared it with the mid for a forward rate agreement linked to Euribor covering the same dates. It is clear from that discussion, first, that the HSBC trader reassessed his mid for the EONIA swap after the Barclays trader shared his opinion and, second, that the parties exchanged views on what the price difference between those two derivatives should be.

149 In the fifth place, it should be noted that the applicants’ arguments that the exchanges of information between market makers on mids are ‘pro-competitive’ cannot be upheld. In essence, the applicants claim that exchanges on mids are inherent in the activities of traders and, more specifically, of market makers operating on the EIRD market for the purposes of reducing risk and result in lower bid-offer spreads, to the benefit of customers.

150 It is true that, in accordance with the case-law cited in paragraph 57 above, examination of the finding of infringement by object must take into account the economic and legal context of the market in which the exchanges of information took place.

151 It is indeed also true that the EIRD market is somewhat unusual. Banks often enter into EIRDs with other banks on that market, in particular for hedging purposes. In other words, the very nature of the market means that banks, in particular those acting as a market makers, which are competitors as regards their EIRD offer to potential clients, also end up trading between themselves and, consequently, communicating confidential information to each other when they do so.

152 However, that aspect of the economic and legal context of the EIRD market was taken into account by the Commission, since it excluded from its analysis the information exchanged in the context of contractual negotiations.

153 The applicants’ line of argument goes beyond merely criticising the failure to take into account the economic and legal context of the EIRD market and alleges that the Commission failed to take account of any pro-competitive effects of discussions between traders.

154 In this regard, it should be noted that, with the exception of restrictions ancillary to a main operation (see judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 89 and the case-law cited), it is only in the context of the assessment of Article 101(3) TFEU that any pro-competitive effects can be taken into account. It is clear from settled case-law that the existence of a ‘rule of reason’, that is to say an examination weighing up the pro- and anticompetitive effects of an agreement when characterising it for the purpose of Article 101(1) TFEU, cannot be upheld under EU competition law (judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraph 65; see also, to that effect, judgment of 23 October 2003, Van den Bergh Foods v Commission, T‑65/98, EU:T:2003:281, paragraph 106).

155 It was therefore for the applicants either to show that the discussions on mids were directly related and necessary to the functioning of the EIRD market or that they meet the conditions in Article 101(3) TFEU.

156 First, the applicants do not allege that the Commission misapplied Article 101(3) TFEU in the present action.

157 Second, to the extent that the applicants’ line of argument may be understood as being that exchanges of information on mids between market makers are inextricably linked to the functioning of the EIRD market, it should be noted that, according to settled case-law, if a given operation or activity is not covered by the prohibition rule laid down in Article 101(1) TFEU, owing to its neutrality or positive effect in terms of competition, a restriction of the commercial autonomy of one or more of the participants in that operation or activity is not covered by that prohibition rule either if that restriction is objectively necessary to the implementation of that operation or that activity and proportionate to the objectives of one or the other (see judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 89 and the case-law cited). Where it is not possible to dissociate such a restriction, described as an ancillary restriction, from the main operation or activity without jeopardising its existence and aims, it is necessary to examine the compatibility of that restriction with Article 101 TFEU in conjunction with the compatibility of the main operation or activity to which it is ancillary, even though, taken in isolation, such a restriction may appear on the face of it to be covered by the prohibition rule in Article 101(1) TFEU (judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 90).

158 In order for a restriction to classify as ancillary, it is necessary to establish, first, whether the restriction is objectively necessary for the implementation of the main operation or activity and, secondly, whether it is proportionate to it (judgments of 18 September 2001, M6 and Others v Commission, T‑112/99, EU:T:2001:215, paragraph 106, and of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraph 64).

159 As regards the first condition, according to the case-law, it is necessary to inquire whether that operation or activity would be impossible to carry out in the absence of the restriction in question. Thus, the fact that that operation or activity is simply more difficult to implement or even less profitable without the restriction concerned cannot be deemed to give that restriction the ‘objective necessity’ required in order for it to be classified as ancillary. Such an interpretation would effectively extend that concept to restrictions which are not strictly indispensable to the implementation of the main operation or activity. Such an outcome would undermine the effectiveness of the prohibition laid down in Article 101(1) TFEU (see, to that effect, judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 91).

160 That first condition, when applied to the circumstances of the present case, means ascertaining whether the functioning of the EIRD market is made impossible without exchanges of information on mids between market makers. In this regard, it need only be noted that it is true that the applicants refer, in their written pleadings, to the pro-competitive effects that such exchanges between traders may have, in so far as they have allowed them to reduce the uncertainty about the level at which they might be able to hedge their positions and, consequently, to quote more favourable prices. However, the applicants do not establish that the OTC derivatives market could not function without such exchanges of information between traders acting as market makers. Therefore, the first condition is not satisfied in the present case.

161 For all of those reasons, the applicants’ first complaint must be rejected.

(2) Ground for complaint contesting the merits of the finding of restriction by object applied to the exchanges on trading positions

162 At issue in this ground for complaint is the Commission’s characterisation of the conduct described in recitals 271 to 276 (discussion of 12 February 2007), 286 to 288 (discussion of 16 February 2007), 295 (discussion of 9 March 2007) and 296 to 298 (discussion of 14 March 2007) of the contested decision. In its defence, the Commission maintains that discussions on trading positions also took place on 13 and 28 February and 19 March 2007.

163 With regard to the discussions of 13 and 28 February and 19 March 2007 to which the Commission makes reference, it need only be noted that they all took place in view of the Euribor manipulation of 19 March 2007 or had a connection to it and that, consequently, it has already been concluded that they pertain to conduct with an anticompetitive object. Moreover, the applicants do not dispute the finding of restriction by object that was applied to them in the context of the present part of the plea.

164 A similar conclusion must be reached with regard to the discussions of 12 and 16 February 2007, since it has already been established that the Commission was entitled to characterise them as a restriction of competition by object. First, it is apparent from the first part of this plea that the Commission was correct to find that the discussion of 12 February 2007 was part of the Euribor manipulation of 19 March 2007 and, on that basis, constituted an infringement of Article 101(1) TFEU. Second, for the reasons set out in the context of the examination of the first ground for complaint in the present part of the plea, the Commission was also entitled to find that the discussion of 16 February 2007 constituted an infringement of Article 101(1) TFEU to the extent that the exchange related to mids. It is therefore unnecessary to ascertain whether the same form of conduct is also classified as an infringement by object for another reason.

165 Therefore all that remains at issue are the discussions of 9 and 14 March 2007.

166 Those discussions fall within the category of anticompetitive conduct contemplated in recitals 113(b), 358(b) and 392(b) of the contested decision (exchanges between traders relating to their respective EIRD trading positions and exposures) and in recitals 113(c), 358(c) and 392(c) of the contested decision (exchanges relating to the possibility of aligning their trading positions).

167 It is apparent from recitals 394 and 395 of the contested decision that the same considerations as those used with regard to the manipulation of 19 March 2007 and the exchanges on mids are used to explain the finding of infringement by object applied to the exchanges of information on trading positions, namely that they would put participants in a favourable position of informational asymmetry, by increasing transparency between the parties and significantly reducing normal market uncertainties.

168 There is no definition in the contested decision of the concept ‘trading position’. Nevertheless, it is apparent from the various places it is used in that decision that that expression covers the composition of a trader’s investment portfolio (his ‘book’), and the level and direction of his exposure on the EIRD market.

169 Reasoning relating more specifically to trading positions is set out in other passages of the contested decision.

170 Thus, in recital 390 of the contested decision, the Commission observed that, according to RBS, each market maker carries a trading book which consisted of an inventory of contracts and inferred from this that ‘by sharing their trading positions, market makers [were] able to infer each other’s demand and supply as regards these contracts and [could] use this information to their advantage. This [could] involve them adjusting their own trading patterns and [resulted] in them being better informed than their competitor market makers and other market participants’.

171 In recital 417 of the contested decision, the Commission stated that ‘exchanges on trading positions … served the objective of checking whether the parties’ commercial interests were aligned before they could take further concerted action to influence the value of EIRDs to the detriment of competitors not part of the cartel’. It added that ‘in the context of an EIRD market which was not transparent … sharing such information allowed the colluding parties to be more informed than other market participants’. In the same recital, the Commission also stated that ‘by sharing their trading positions and therefore, being able to adjust their own trading patterns, the colluding parties could influence the value of their portfolios, which in turn influenced the trading conditions within the meaning of Article 101(1)(a) [TFEU] and therefore affect the structure of competition in the EIRD market’.

172 The conversation of 9 March 2007, which took place between an HSBC trader and a Deutsche Bank trader is considered in recital 295 of the contested decision. The Commission concluded in that recital that it related to specific trading positions of important market players and the information exchange took place outside of the context of a potential transaction.

173 The discussion of 14 March 2007 is considered in recitals 296 to 298 of the contested decision. It is clear from those recitals that the conversation relates to past speculations on the rate difference between EONIA and the 1 month Euribor in the context of which the HSBC trader made a loss, while the Barclays trader made a significant financial gain. The Barclays trader goes on to explain how he believes the market worked and states that this should also apply to June tenors.

174 For the purpose of assessing the merits of the finding of restriction by object applied to those discussions, it must be borne in mind that the Commission found that those discussions had contributed to the distortion of the normal course of pricing components in the EIRD sector. In addition, in particular in recital 417 of the contested decision, the Commission also found that the conversations on trading positions had influenced other trading conditions within the meaning of Article 101(1)(a) TFEU.

175 As regards that second classification, although it may, in principle and for the reasons set out in paragraphs 74 to 77 above, be taken into account despite the fact that it does not appear in the operative part of the contested decision, this is on the condition that reasons are given to the requisite legal standard.

176 In that regard, it should be noted that, according to settled case-law, the statement of reasons required under Article 296 TFEU must be appropriate for the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which an individual decision is based is, therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, page 115 and the case-law cited).

177 As the applicants rightly observe in their written submissions, the contested decision does not make it possible to identify the ‘other trading conditions’ which were coordinated following the exchanges on trading positions involving HSBC. It follows that such reasoning fails to meet the criteria noted in the case-law referred to in paragraph 176 above and cannot, therefore, be taken into account when reviewing the merits of the finding of restriction by object applied to the exchanges on trading positions.

178 It is therefore necessary to investigate in the context of this ground for complaint whether the Commission was entitled to find that such exchanges distorted the normal course of pricing components in the EIRD sector.

179 In that regard, it should be noted, in the first place, that exchanges between competitors concerning the composition of their investment portfolio or the level of their exposures do not have the same relevance to pricing on the EIRD market as information on mids. Although, for the reasons set out in paragraphs 139 to 141 above, such information on mids makes it easier to identify the fixed rate proposed by a competitor for a derivative and his perception of what the variable rate will be at the fixing date, the same cannot be said for an exchange on trading positions which do not directly concern EIRD rates.

180 When questioned on that point at the hearing, the Commission itself acknowledged that exchanges on trading positions did not intrinsically have the same scope for restricting competition as exchanges on mids.

181 That conclusion is also supported by the contested decision. It is apparent from that decision that most of the exchanges on trading positions are instead complementary to other practices that restrict competition and have a proven object of restricting competition. Thus, in recital 417 of the contested decision, the Commission states that ‘exchanges on trading positions … served the objective of checking whether the parties’ commercial interests were aligned before they could take further concerted action to influence the value of EIRDs to the detriment of competitors not part of the cartel’.

182 Thus, the vast majority of discussions on trading positions in which HSBC traders participated had a link to the Euribor manipulation of 19 March 2007. This is the case for the discussions with the Barclays trader of 12, 13 and 28 February and 19 March 2007.

183 The same cannot be said for the discussions of 9 and 14 March 2007, which did not occur in view of the Euribor manipulation of 19 March 2007.

184 In the second place, it is apparent from the case-law cited in paragraphs 54, 55, 59 and 62 above that, although an exchange of information between competitors is likely to be incompatible with the competition rules if it reduced or removed the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings was restricted, a finding of infringement by object must be restricted to those exchanges that reveal a sufficient degree of harm to competition, meaning that it is not necessary to examine their effects. That is the case, in particular, for an exchange of information which is capable of removing uncertainty in the minds of the interested parties as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market.

185 In the third place, and consequently, it should be investigated whether the information exchanged during the discussions of 9 and 14 March 2007 reduced or removed the degree of uncertainty on the market in such a way that the Commission could infer therefrom an impact on the normal course of pricing components in the EIRD sector without having to examine their effects.

186 Turning first to the discussion of 9 March 2007, in recital 295 of the contested decision, the Commission criticises the HSBC trader for having informed the Deutsche Bank trader of his trading positions by stating, inter alia, ‘..j’ai fait la patte 5 ans …je suis en flattener a des niveaus imbattable!..et je reste short du court euro’, to which the HSBC trader responds ‘bravo bien joue’. It also complains that, during the same conversation, the HSBC trader wrote with regard to his portfolio ‘flattener euro maintenant 2-5 ans short de juin et sep 7 euribor’, which the Commission interpreted as meaning that he anticipates ‘a decrease in the spread between the prices of EIRDs with a maturity between 2 and 5 years and [that the HSBC trader] has a short trading position on June and September 2007’. The Commission also noted that the Deutsche Bank trader responded to him with ‘moi j’ai pas de h8 et de 2y !’, which the Commission interpreted as meaning that he had no ‘March 2008 futures nor EIRDs with 2 years maturity’.

187 The traders did indeed discuss the composition of their portfolios and in doing so exchanged confidential information, outside of the context of a potential transaction.

188 However, contrary to what is claimed by the Commission, that institution does not establish to the requisite legal standard that that discussion gave the traders an informational advantage that may have allowed them to adjust their trading strategies as a result.

189 First, the impression that emerges from that conversation is that the HSBC trader is boasting to the Deutsche Bank trader about a good trade that he made and the latter is congratulating him. The information provided, which is neither precise nor detailed, does not make it possible to read into that conversation the explanation of a ‘strategy’ which, as it was known by the Deutsche Bank trader in isolation, placed him in such a favourable situation as against his competitors that the Commission was able to infer that the object of that conversation was to restrict competition.

190 Second, as the applicants note, without being contradicted by the Commission, the pieces of information provided by the traders on their portfolios do not cover the interest rate tenors concerned or the extent of the positions concerned.

191 In the absence of more precise information of that order, it cannot be concluded that that discussion reduced or removed the degree of uncertainty on the market in such a way that the Commission could infer therefrom an impact on the normal course of pricing components in the EIRD sector without having to examine its effects.

192 Turning secondly to the discussion of 14 March 2007, considered in recitals 296 to 298 of the contested decision, it is true that, unlike the previous conversation, the information exchanged between the traders is precise and clear. The Barclays trader informs the HSBC trader how to make a financial gain in the future by using the difference between the 1 month Euribor and EONIA rates.

193 However, by proceeding in that way, the Barclays trader did not provide any confidential information to the HSBC trader. He merely shares with him the observation that, in essence, the EONIA rate can have an impact on the 1 month Euribor rate. Even though the HSBC trader appears not to be aware of how those two rates interact, what the Barclays trader says is merely a simple observation which any market observer could make. The Court therefore cannot find that his explanation to a competitor reduces or removes the degree of uncertainty on the market in such a way that the Commission could infer therefrom an impact on the normal course of pricing components in the EIRD sector.

194 In the light of the foregoing, the Court finds that the discussions of 9 and 14 March 2007, either individually or jointly, cannot be regarded as having an object that restricts competition within the meaning of Article 101(1) TFEU.

195 Therefore, the applicants are right when they state, in the second part of the first plea, that the Commission was not entitled to find that the object of the discussions of 9 and 14 March 2007 was to restrict competition.

2. Second, third and fourth pleas in law, concerning the Commission’s finding of a single and continuous infringement

196 In the second, third and fourth pleas in law the applicants contest the Commission’s conclusion regarding HSBC’s participation in a single and continuous infringement.

197 According to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition on the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 156 and the case-law cited).

198 An undertaking which has participated in such a single and complex infringement, by its own conduct, which meets the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 157 and the case-law cited).

199 An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commis