Appeal brought on 31 October 2019 by European Commission against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 24 September 2019 in Case T-105/17: HSBC Holdings plc and Others v Commission

(Case C-806/19 P)

(2019/C 432/37)

Language of the case: English

Parties

Appellant: European Commission (represented by: T. Christoforou, M. Farley and F. van Schaik, Agents)

Other party to the proceedings: HSBC Holdings plc, HSBC Bank plc, HSBC France

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal (paragraphs 336-354 and the operative part) insofar as it annuls the fines in article 2 of the decision (1);

— dismiss the second, third and fourth branches of the sixth ground of HSBC’s application before the General Court relating to the fines, and its alternative request concerning the exercise of unlimited jurisdiction;

or, in the alternative:

— refer the case relating to the second, third and fourth branches of the sixth ground of HSBC’s application before the General Court and its alternative request concerning the exercise of unlimited jurisdiction back to the General Court for determination; and

— order HSBC to bear the entirety of the costs of these proceedings and to adjust the order on costs in the judgment under appeal in order to reflect the outcome of the present appeal.

Pleas in law and main arguments

The General Court committed an error of law in its finding at paragraphs 345-353 of the judgment that the Commission breached its duty under Article 296 TFEU to state reasons with respect to the discount factor for determining the basic amount of the fine imposed on HSBC and, consequently, annulling Article 2(b) of the contested decision on that basis.

The General Court applied the incorrect legal standard for assessing the adequacy of the contested decision’s reasoning with respect to the discount factor. With regard to decisions imposing fines on undertakings for the infringement of Article 101 TFEU, the Commission is not required to indicate the figures relating to the method of calculating the fines or to provide all of the figures relating to each of the intermediate steps relating to the method of calculation. When assessed against the correct legal standard, the reasoning in the contested decision satisfies the requirements under Article 296 TFEU as it sets out the Commission’s reasoning with respect to: (i) the need to apply a discount factor; (ii) the level at which that discount factor has been set; (iii) the elements that the Commission took into account to establish the level of the discount factor; (iv) why the Commission considered it appropriate to take each of those factors into account; and (v) an indication of the impact that each element had on the final level of the discount factor. In addition, the reasoning in the contested decision allowed the addressees of that decision to verify that the principle of equal treatment had been respected.

(1) Commission Decision of 7 December 2016 relating to a proceeding under Article 101 of the TFEU and Article 53 of the EEA Agreement (Case AT.39914 - Euro Interest Rate Derivatives) (notified under document C(2016) 8530).