Action brought on 8 July 2021 — Credit Suisse Group and Credit Suisse Securities (Europe) v Commission

(Case T-406/21)

(2021/C 338/49)

Language of the case: English

Parties

Applicants: Credit Suisse Group AG (Zurich, Switzerland), Credit Suisse Securities (Europe) Ltd (London, United Kingdom) (represented by: R. Wesseling and F. ten Have, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

— annul Article 1 of the Commission Decision C(2021) 2871 of 28 April 2021 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.40346 — SSA Bonds) (‘the Decision’); in the alternative, annul Article 1(d) of the Decision; in the further alternative, annul in part Article 1(d) of the Decision in so far as it holds that the Price Discovery Communications restrict competition by object and/or the applicants participated in a single and continuous infringement for the full duration set out in that Article;

— annul Article 2(d) of the Decision; in the alternative, annul in part Article 2(d) of the Decision;

— order the Commission to pay the costs or, in the alternative, an appropriate proportion of their costs.

Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.

1. First plea in law, alleging that the Commission violated Article 101 TFEU and provided insufficient reasons in finding that the applicants engaged in conduct that has as its object the restriction and/or distortion of competition. In particular, — the Commission violated Article 101 TFEU by insufficiently considering the relevant legal and economic context and failed to discharge its burden in proving that the conduct at issue in the Decision restricts competition by object; — in the alternative, the Commission violated Article 101 TFEU by concluding that the Price Discovery Communications restrict competition by object; — with respect to the Price Discovery Communications, the Commission erred in law by substituting the assessment of whether conduct restricts competition by object with the assessment of whether conduct falls outside the scope of Article 101 TFEU as an ancillary restraint.

2. Second plea in law, alleging that the Commission violated Article 101 TFEU by misapplying the concept of the single and continuous infringement. In particular, — the Commission fails to prove and to provide sufficient reasons that the frequent communications taking place in multilateral persistent chatrooms, a practice that ceased in February 2013, and the sporadic bilateral communications which followed from February 2013, shared an overall plan pursuing a common objective; — the Commission does not prove and does not provide sufficient reasons that the applicants were aware or ought to have been aware of, or could have reasonably foreseen, the other traders’ bilateral communications as of February 2013; — the Decision fails to prove and to provide sufficient reasons that the alleged infringement was continuous; — the Decision fails to prove the existence of the single and continuous infringement for the full duration set out in Article 1(d) of the Decision.

3. Third plea in law, alleging that the Commission’s fine methodology violates Article 23 of Regulation 1/2003 (1) the Commission’s Guidelines on Fines (2) and the duty to state reasons. In particular, — the Commission failed to provide sufficient reasons to enable the applicants to assess whether the fine methodology is vitiated by an error; — the Commission adopts a value of sales proxy that significantly overstates the applicants’ value of sales and therefore the economic importance of the alleged infringement, departing from the concept of ‘value of sales’ in the 2006 Guidelines on Fines; — the fine imposed on the applicants significantly overstates the gravity of the alleged infringement; — the fine imposed on the applicants includes a period in which they did not participate in the alleged infringement.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003, L 1, p. 1).

(2) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006, C 210, p. 2) (‘Guidelines on Fines’).