17.

In paragraphs 286 to 299 of the judgment under appeal, the General Court declared that the fifth plea in law (relating to the determination of the amount of the fines) was well founded. Paragraphs 292 to 299 of that judgment are worded as follows: ‘292. In the present case, in the first place, it should be pointed out that the reasons why the Commission decided to depart from the methodology set out in the 2006 Guidelines, by applying point 37 thereof, can be inferred from a reading of recital 287 of the contested decision. Those reasons stem from the fact that [NEX] was not active on the Japanese Yen interest rate derivatives market and that, therefore, taking into account the value of sales, namely the brokerage fees received, would not make it possible to reflect the gravity and nature of the infringements at issue. 293. In the second place, it must however be stated that recital 287 of the contested decision does not provide details on the alternative method favoured by the Commission, but is limited to a general assurance that the basic amounts reflect the gravity, duration and nature of [NEX’s] involvement in the infringements at issue, as well as the need to ensure that fines have a sufficiently deterrent effect. 294. Drafted in that manner, recital 287 of the contested decision does not enable the applicants to understand the justification for the methodology favoured by the Commission, or the Court to verify that justification. That insufficient reasoning is also to be found in recitals 290 to 296 of that decision, which do not provide the minimum information which might have made it possible to understand and ascertain the relevance and weighting of the factors taken into consideration by the Commission in the determination of the basic amount of the fines, in breach of the case-law cited in paragraph 291 above. 295. It is apparent from the parties’ pleadings that the question of the methodology that the Commission envisaged using for the purposes of calculating the amount of the fines was broached during a discussion with the applicants’ representatives, during the administrative procedure. Although, under the case-law cited in paragraph 288 above, the reasoning of a contested act must be examined taking into account its context, the view cannot be taken that holding such exploratory and informal discussions can relieve the Commission of its obligation to explain, in the contested decision, the methodology that it applied for the purposes of determining the amounts of the fines imposed. 296. In paragraph 176 of the defence, the Commission highlights the existence of a five-stage test designed to calculate the basic amount of the fines. However, pursuant to the case-law cited in paragraph 290 above, such an explanation provided at the stage of the proceedings before the Court cannot be taken into account for the purposes of assessing whether the Commission has complied with its obligation to state reasons. 297. In the light of the foregoing, it must be held that, so far as concerns the determination of the fines imposed on [NEX] for the infringements at issue, the contested decision is vitiated by insufficient reasoning. 298. The fifth plea must, therefore, be upheld and Article 2 of the contested decision must be annulled in its entirety, there being no need to examine the other complaints of that plea or those of the sixth plea, which relates exclusively to the legality of that article. 299. Moreover, in so far as Article 2 of the contested decision is annulled in its entirety, it is not necessary to examine the applicants’ claim for variation of the contested decision, which the applicants submitted in the alternative’.