CELEX: 62018CC0039
Language: en
Date: 2019-05-02 00:00:00
Title: Opinion of Advocate General Tanchev delivered on 2 May 2019.

OPINION OF ADVOCATE GENERAL
TANCHEV
delivered on 2 May 2019(1)

Case C‑39/18 P

European Commission

v

NEX International Limited (formerly Icap plc,

Icap Management Services Ltd and

Icap New Zealand Ltd)

(Appeal — Competition — Agreements, decisions and concerted practices — Yen Interest Rate Derivatives sector — Fines — Obligation to state reasons)

1.        By the present appeal, the European Commission seeks to have the judgment of the General Court in Icap plc and Others v Commission (2) set aside, in  so  far as it annulled the  fines laid down in Article 2 of the decision in the Yen Interest Rate Derivatives (‘YIRD’)  cartel case (where the Commission imposed on Icap  plc, Icap Management Services Ltd and Icap New Zealand Ltd unprecedented fines of nearly EUR 15 million for cartel facilitation). (3) The General Court found that the Commission had not provided sufficient reasoning in its decision as to the methodology applied in order to determine the amounts of the fines, and so it annulled the part of the decision setting those fines.  I note that the Commission’s methodology was not a simple setting of a lump sum amount, but a complex five-stage test designed to calculate the basic amount of the fines.

2.        In the present appeal, the Commission submits that the General Court incorrectly applied the Court’s case-law on the statement of reasons required when imposing fines. (4)

3.        As I will explain below, it is my  view that the present appeal has been largely resolved by the Court’s recent judgment of 16 January 2019,  Commission v United Parcel Service (C‑265/17 P, EU:C:2019:23)  (‘the judgment in UPS’), in so far as, in that judgment, the Court upholds the General Court’s approach in the judgment under appeal.
I.      Background to the dispute and the contested decision

4.        It is apparent from paragraphs 1 to 21 of the judgment under appeal that NEX International Limited (formerly Icap plc, Icap Management Services Ltd and Icap New Zealand Ltd)  (‘NEX’), is part of a voice and electronic interdealer broker which is also a provider of post-trade services.

5.        By the contested decision, the Commission held that NEX had participated in six infringements of Article 101 TFEU and Article 53 of the EEA Agreement in connection with the manipulation of the London Interbank Offered Rate (LIBOR) and the Tokyo Interbank Offered Rate (TIBOR) interbank reference rates on the Japanese YIRD market. Those infringements had been previously established  by Commission Decision C(2013) 8602 final of 4 December 2013 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39861 — Yen Interest Rate Derivatives), imposing fines of nearly EUR 670 million (‘the 2013 decision’).

6.        On 29 October 2013 the Commission initiated infringement proceedings against  NEX.

7.        On 12 November 2013 NEX informed the Commission of its intention not to opt for a settlement procedure.

8.        On 4 February 2015 the Commission adopted the contested decision, imposing on NEX  six fines amounting to  EUR 14 960 000 in total for having ‘facilitated’ six infringements, namely:
–        ‘the UBS/RBS 2007 infringement’, from 14 August until 1 November 2007;
–        ‘the UBS/RBS 2008 infringement’, from 28 August until 3 November 2008;
–        ‘the UBS/DB infringement’, from 22 May until 10 August 2009;
–        ‘the Citi/RBS infringement’, from 3 March until 22 June 2010;
–        ‘the Citi/DB infringement’, from 7 April until 7 June 2010;
–        ‘the Citi/UBS infringement’, from 28 April until 2 June 2010.

9.        Paragraphs 18 to 21 of the judgment under appeal are worded as follows:
‘18. The Commission made the preliminary observation that, under the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2, “the 2006 Guidelines”), the basic amount of the fine must be determined having regard to the context in which the infringement was committed and in particular the gravity and duration of the infringement and that the role played by each participant must be assessed on an individual basis, reflecting any aggravating and attenuating circumstances (recital 284 of the contested decision).
19. The Commission observed that the 2006 Guidelines provided only limited guidance on the calculation of the fine for facilitators. Since [NEX] was an operator active on the brokerage services markets, and not on the interest rate derivatives market, the Commission held that it could not substitute brokerage fees for those for the prices of Japanese Yen interest rate derivatives in determining the value of sales and setting the fine, as such substitution does not reflect the gravity and nature of the infringement. It inferred, in essence, that it was necessary to apply point 37 of the 2006 Guidelines, which makes it possible to depart from those Guidelines for the determination of the basic amount of the fine (recital 287 of the contested decision).
20. In view of the gravity of the conduct at issue and the duration of [NEX’s] participation in each of the six infringements at issue, the Commission set, for each infringement, a basic amount of the fine, namely EUR 1 040 000 for the UBS/RBS 2007 infringement, EUR 1 950 000 for the UBS/RBS 2008 infringement, EUR 8 170 000 for the UBS/DB infringement, EUR 1 930 000 for the Citi/RBS infringement, EUR 1 150 000 for the Citi/DB infringement and EUR 720 000 for the Citi/UBS infringement (recital 296 of the contested decision).
21. In determining the final amount of the fine, the Commission found that there were no aggravating or mitigating circumstances and noted that the ceiling of 10% of annual turnover had not been exceeded (recital 299 of the contested decision). Article 2 of the operative part of the contested decision therefore imposes on the applicants fines whose final amount is equivalent to their basic amount’.
II.    Procedure before the General Court and the judgment under appeal

10.      By application lodged at the General Court Registry on 14 April 2015, NEX brought an action against the contested decision, seeking annulment of that decision and, in the alternative, a reduction in the amount of the fines imposed.

11.      In support of its action for annulment of the contested decision, NEX put forward six pleas in law. The first four pleas in law concerned the legality of Article 1 of the contested decision in relation to the existence of the infringements. The fifth and sixth pleas in law concerned the legality of Article 2 of that decision, relating to the fines imposed by the Commission for each of those infringements.

12.      The judgment under appeal partially annulled Article 1 of the contested decision and annulled Article 2 thereof in its entirety.

13.      In paragraph 91 of the judgment under appeal, the General Court rejected the first plea in law alleging errors in the interpretation of the concept of restriction or distortion of competition ‘by object’ within the meaning of Article 101(1) TFEU.

14.      In paragraphs 133 to 144 of the judgment under appeal, the General Court ruled that the evidence of NEX’s participation in the UBS/RBS infringement of 2008 was insufficient. In paragraph 145 of that judgment, the General Court partially upheld the second plea in law alleging errors in the application of the concept of ‘facilitation’, and annulled Article 1(b) of the contested decision.

15.      In relation to the third plea in law alleging that the duration of the infringements at issue was incorrect, in paragraph 252 of the judgment under appeal the General Court ruled that the evidence relied on by the Commission to establish the duration of NEX’s participation in four of the five remaining infringements was insufficient, and declared that plea in law to be partially well-founded. Therefore, it annulled Article 1(a), (d), (e) and (f) of the contested decision.

16.      As far as the fourth plea in law is concerned, in paragraph 269 of the judgment under appeal the General Court held that ‘the Commission infringed the presumption of [NEX’s] innocence when adopting the 2013 decision. Admittedly, that breach of the presumption of its innocence at the time of the adoption of the 2013 decision cannot have a direct impact on the legality of the contested decision, in view of the separate and independent nature of the proceedings which gave rise to those two decisions’. However, in paragraph 280 of the judgment under appeal, the General Court came to the conclusion that the fourth plea in law had to be rejected.

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’.
III. The appeal

A.      Summary of the arguments of the parties

18.      The Commission claims that the General Court’s reasoning in relation to the fifth plea in law is vitiated by serious errors of law which, if accepted, would be detrimental to the Commission’s ability to determine adequate fines so as to achieve sufficient deterrence.

19.      First, the Commission complains that the General Court failed to mention the applicable principles of the relevant case-law. It omitted to mention the judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717, paragraphs 66 to 68), even though it is the leading judgment on the statement of reasons required when imposing a fine on a facilitator.

20.      The General Court also failed to refer to the  judgment of 28 January 2016, Quimitécnica.com and de Mello v Commission (C‑415/14 P, not published, EU:C:2016:58, paragraph 53). It follows from that judgment that the statement of reasons for a Commission act must be assessed in view of the context of that act, including the exchanges which took place before and after the adoption of the act in question. In the present case, the Commission divulged certain information to NEX relating to the calculation of the fines during and after the administrative procedure.

21.      Secondly, the Commission argues that, while the judgment under appeal (paragraphs 287 to 291) recalls part of the case-law on reasoning in relation to fines, it does not correctly interpret that case-law or apply it in practice.

22.      In recital 287 of the contested decision, the Commission  explicitly states that the basic amounts of the fines imposed on NEX 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. These elements are sufficient for the purposes of the reasoning of the Commission’s decisions, (5) and so the communication of the arithmetical formulas was not required.

23.      While recalling the case-law to the effect that the Commission is not obliged to provide a more detailed explanation or an indication of the figures relating to the method of calculating fines, in paragraph 291 of the judgment under appeal the General Court ruled that, in the case at hand, the Commission had not provided details of the method used. The Commission submits that that reasoning is contradictory.

24.      The Chalkor case-law recalled in paragraph 291 of the judgment under appeal to the effect that the Commission must explain the weighting and assessment of the factors taken into account for the purpose of calculating the basic amount cannot be construed as requiring the Commission to indicate the figures relating to the method of calculating the fines and to set out its internal calculations  in detail. However, this is precisely what the General Court did require and, in so doing, it committed an error of law.

25.      According to the Commission, the similarity of the contested decision to the Heat Stabilisers decision (recitals 747 to 750) is particularly striking. (6) That decision gave rise to the judgment in AC-Treuhand (C-194/14 P, EU:C:2015:717) where the Court held the reasoning to be sufficient.

26.      As for paragraphs 295 and 296 of the judgment under appeal, the elements invoked by the General Court are inadequate to support the finding of an insufficient statement of reasons in relation to fines. The General Court  recalls in those paragraphs that the question of the methodology of calculating fines was broached with NEX  during the administrative procedure and during the procedure before the General Court itself (notably, in its defence, the Commission highlighted the existence of the five-stage test  designed to calculate the basic amount of the fines). The Commission argues that the General Court was wrong to conclude that those elements were not able to remedy the insufficient reasoning  at issue. Such an assessment is contrary to the case-law. (7)

27.      The reason why the Commission went beyond its duty to provide a statement of reasons and disclosed certain elements of its fine calculation to NEX (in paragraph 176 of its defence) is that NEX claimed to have been treated unequally compared to the undertaking  R.P. Martin, which was an addressee of the 2013 decision in the same YIRD  case, and which the Commission also considered to have acted as a facilitator of certain  cartels covered by that case.

28.      In its reply, the Commission explains the methodology used for the calculation of fines. As a starting point, the same factors for assessing the gravity of the infringements were taken into account for all the relevant undertakings. However, there were objective differences between R.P. Martin and NEX that needed to be reflected in the fines levied on those facilitators. R.P. Martin got a 25% leniency reduction, whereas NEX did not apply for leniency; R.P. Martin got a 10% settlement discount; R.P. Martin’s 2012 worldwide turnover was EUR 82 million compared with EUR 1 656 million (NEX’s 2013 worldwide turnover);  R.P. Martin’s participation in the infringement lasted approximately 1 month while NEX’s lasted over  2 months.

29.      If the Court decides to rule on the fines, the Commission submits that a simple method to reflect the partial annulments in the judgment under appeal would be to apply a pro  rata reduction to the original fines imposed on NEX. For example, this could be done by expressing the new duration of each infringement in days and dividing this by the original duration in days.

30.      NEX, for its part, defends the judgment under appeal and contends, in essence,  that the appeal raises a fundamental question: can  the Commission rely on specific and complex methodologies  and factors, while at the same time pretending that such methodologies or  factors do not exist and that a simple lump sum amount  was used? The very raison d’être  of the obligation to state reasons is to encourage the Commission to explain its decisions and to enable judicial review of its approach.

31.      First, NEX argues that, contrary to the Commission’s assertions, it is clear that the explanations provided in AC-Treuhand  were more comprehensive and case-specific than the generic and broad-brush explanations provided in the contested decision. Put simply, the explanations in the contested decision could be used ‘as is’ in virtually any fining decision involving a facilitator, while those  in the Heat Stabilisers decision would need to be adjusted to account for the specificities of the various cases. Second and more importantly, the underlying facts in NEX’s situation are different from those in AC-Treuhand. Indeed, in AC-Treuhand, there is nothing to suggest that the Commission used a specific and detailed methodology to arrive at the lump sum fine of EUR 348 000 and, by extension, that it did something other than what was set out in its statement of reasons. Consequently, there is no demonstrated discrepancy between what the Commission did and what it claimed to have done.

32.      By contrast, in the NEX case the Commission explicitly acknowledged during the proceedings before the General Court that it had determined the level of the fines  by using a  detailed methodology and taking specific factors into account, but failed to provide NEX with any further detail when the latter was in a position to exercise its rights of defence. The Commission allegedly relied on a number of factors which it then failed to set out. Had it followed a lump-sum approach taking into account the basic factors that were stated, it could not have reached a level for NEX’s  fine that was 22  times higher than the fine imposed on R.P. Martin, which it claimed to have treated similarly to NEX.

33.      The factors differentiating the situation of R.P. Martin from that of NEX, as relied on by the Commission, cannot rule out the existence of unequal treatment. With respect to duration, R.P. Martin was found to have facilitated the infringement from 29 June 2009 to 10 August 2009, that is,  for 43  days. NEX was found to have facilitated the infringement from 22 May 2009 to 10 August 2009, that is,  for 81  days. Consequently, allowing for the difference in duration, it can be assumed that R.P. Martin’s fine would have been EUR 716 000 if the duration had been similar to NEX’s. This allows for the fourth difference suggested by the Commission.
B.      Assessment

1.      Preliminary remarks

34.      The General Court considered that the mere mention of the gravity, duration and nature of the participation in an infringement is insufficient in a situation where the Commission departs from its own fining guidelines.

35.      In the course of the proceedings before the General Court, the Commission revealed that it had, in fact, used a complex method to calculate the fines to be imposed on NEX. Given that the Commission had not divulged this method during the administrative proceedings, NEX was unable to contest it and the General Court could not carry out adequate  judicial review.

36.      The Commission’s appeal is based on a single ground of appeal, by which it contests the General Court’s approach and submits that it would be detrimental to its ability to determine adequate fines (in particular in the case of facilitators) so as to achieve sufficient deterrence. The Commission insists, in particular, on the alleged divergence of approaches between the General Court’s judgment under appeal and the Court’s judgment in AC-Treuhand (C‑194/14 P, EU:C:2015:717).

37.      NEX defends the approach in the judgment under appeal and seeks to justify it by pointing to its practical consequences. Given that it was not aware of the methodology/criteria employed by the Commission, NEX  argues  that it was subjected to unequal treatment in comparison with another facilitator in the same cartel (R.P. Martin). NEX also explains how, by keeping its methodology and the criteria which it relied on secret, the Commission deprived  NEX of the possibility to contest those criteria.

38.      First of all, there are important differences between this case and that which resulted in the judgment in  AC-Treuhand (C‑194/14 P, EU:C:2015:717), which is relied upon by the Commission.

39.      In the latter case, there was only one single facilitator. The Commission, which did not have to consider any risk of unequal treatment (between facilitators), imposed a lump sum fine.

40.      In the present case, however, there were two facilitators. The Commission claims (‘assures the Court’) that it applied a single method in order to calculate the amount of the facilitators’ respective fines, but refuses to divulge any further details,  simply invoking the judgment in AC-Treuhand (C‑194/14 P, EU:C:2015:717).

41.      Moreover, the Commission’s reliance on the judgment in AC-Treuhand is unpersuasive. Whilst that judgment states that there is no requirement for any more detailed explanation or indication of the figures relating to the method of calculating the fine, the fact remains that the Court’s case-law importantly also makes it clear that the Commission must nevertheless explain the weighting and assessment of the factors taken into account in determining the amount of fines (and it is the court’s duty to verify of its own motion whether such reasons have been given) – notably in the leading judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 61.

42.      How else would the courts be able to carry out adequate judicial review and to verify, on the basis of the reasoning provided in the Commission’s decision (rather than on the basis of the Commission’s mere ‘assurances’), whether a given undertaking was, for the purposes of the fine calculation and the criteria employed by the Commission, in a comparable or distinct situation vis-à-vis the other undertakings concerned, and to verify whether the Commission had observed the principle of equal treatment – as the Court is called to do in the present case?

43.      In this respect, the General Court has applied  the Chalkor case-law correctly not only in the judgment under appeal (Second Chamber, extended composition), but also for instance in its judgments of 13 December 2016, Printeos and  Others v Commission, T‑95/15, EU:T:2016:722  (Fourth Chamber, extended composition), and of 28 March 2019, Pometon v Commission, T‑433/16, EU:T:2019:201  (Third Chamber, extended composition). As regards these last two judgments, the Commission did not lodge any appeal against the former judgment and has not yet done so in relation to the latter.

44.      I would recall that, as early as 1995, the General Court emphasised that ‘it is desirable for undertakings –  in order to be able to define their position in full knowledge of the facts – to be able to determine in detail, in accordance with any system which the Commission might consider appropriate, the method of calculation of the fine imposed upon them, without being obliged, in order to do so, to bring court proceedings against the Commission decision – which would be contrary to the principle of good administration’. (8)

45.      Next, in the famous ‘Cement cartel’ case, (9) the General Court added in a prescient manner that this applies ‘a fortiori where, as here, the Commission has used detailed  arithmetical formulas to calculate the fines. In such a case it is desirable that the  undertakings concerned and, if need be, the Court should be in a position to check  that the method employed and the steps followed by the Commission are free of  error and compatible with the provisions and the principles applicable in regard to  fines, and in particular with the principle of non-discrimination’.

46.      Whilst, at the time, the General Court accepted the reasoning provided by the Commission a posteriori in the course of judicial proceedings  as satisfactory, is it still possible to agree with the Commission here and accept such a solution in the present-day procedural context  that is more receptive to the rights of defence?

47.      I do not think so. (10)

48.      As I will explain below, I consider that the present appeal has largely been resolved by the recent judgment in UPS, handed down on 16 January 2019.
2.      The judgment in UPS

49.      It is important to draw, at the outset, a parallel with the judgment in UPS. At the hearing, the Commission sought to argue that that judgment is not relevant, because it is a merger case and does not deal with the setting of fines and the rights of defence. However, those arguments are unpersuasive.

50.      Indeed, in UPS, the Commission  – not unlike the situation arising here – failed to divulge, in the context of the administrative procedure, a certain methodology which played an important role in its decision (in UPS it was the methodology  used to evaluate a merger).

51.      In that judgment, the Court points out that, where the Commission  intends to base its decision on econometric models, the notifying parties must be able to submit their observations in that regard.

52.      The methodological basis underpinning those models must be as objective as possible in order not to prejudge the outcome of that analysis one way or another. Accordingly, those factors contribute to the impartiality and quality of the Commission’s decisions, which, ultimately, is the basis of the trust that the public and businesses place in the legitimacy of the EU’s merger control procedure.

53.      The disclosure of such models and the methodological choices underlying their development is all the more necessary, as it contributes to ensuring that the procedure is fair, in accordance with the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.

54.      According to the judgment in UPS, the Commission is required to reconcile the need for speed that characterises the general scheme of the Regulation on the control of concentrations between undertakings with observance of the rights of the defence. Such observance does not allow the Commission, after the statement of objections has been disclosed, to modify the substance of an econometric model on which it intends to base its objections, without that modification being brought to the attention of the undertakings concerned and allowing them to submit their comments in that regard.

55.      Consequently, the Court held in the judgment in UPS that the General Court had not erred in law when it concluded that the Commission could not claim that it was not required to disclose the final econometric analysis model to the applicant before adopting the decision at issue.

56.      It is particularly relevant here to refer to paragraph 31 of the judgment in UPS, where the Court ruled that ‘observance of the rights of the defence before the adoption of a decision relating to merger control … requires the notifying parties to be put in a position in which they can make known effectively their views on the accuracy and relevance of all the factors that the Commission intends to base its decision on’ (emphasis added).

57.      As we shall see below, that is precisely what the Commission failed to do, both  in UPS and in the present case.
3.      The case before the Court as a variation on UPS

58.      The UPS case concerned a merger and the Court pointed out that the econometric model which was not divulged by the Commission in its final form was an important element in the context of the Commission’s decision. (11) Similarly, the five-stage test used by the Commission in order to set the fines in the present case was important, and should have been disclosed (that is, at least to the extent that the Commission can properly  explain the weighting and assessment of the factors taken into account). (12)

59.      As the Court recalled in paragraph 28 of the judgment in UPS, ‘observance of the rights of the defence is a general principle of EU law which applies where the authorities are minded to adopt a measure which will adversely affect an individual’.

60.      The same general principle led the General Court to annul the contested decision (in the present case) in this respect.

61.      It is interesting to point out that in the UPS case, the Commission sought to argue that the amendments to econometric models were equivalent to internal documents, which could not be accessed pursuant to the right to have access to the file (paragraph 35 of the judgment in UPS).

62.      The Court rejected that argument.

63.      In the present case, the Commission again seeks to argue that the methodology used to calculate the fines is nothing more than an internal calculation which should not be disclosed to addressees of its decisions.

64.      I consider that this argument must be rejected, just as it was rejected in the judgment in UPS.  Moreover, as NEX argues, the information revealed in paragraph 176 of the defence at first instance does not contain figures or calculations. The Commission merely reveals the existence of a  complex five-stage test designed to calculate the basic amount of the fines as opposed to the use of a lump sum.

65.      The appeal essentially claims that the Commission sufficiently stated reasons by setting out the (rather vague) factors which were taken into account to determine the gravity, duration and nature of NEX’s involvement. The Commission claims that this is in line with the judgment in AC-Treuhand  (C‑194/14,  EU:C:2015:717). The Commission further claims that its explanations regarding  the methodology referred to in paragraph 295 of the judgment under appeal were not required but provided further clarifications which should still be taken into account at the stage of the judicial proceedings.

66.      First, I have already explained that there are important differences between AC-Treuhand and the present case and why that case-law in and of itself should not change the analysis here (see point 38 et seq. of the present Opinion).

67.      Secondly, the Commission’s arguments must in any case be rejected.

68.      Indeed, in the present case, contrary to the situation in AC-Treuhand, it is common ground  that the Commission did not merely carry out a simple examination of the ‘gravity’, ‘nature’, and ‘duration’ of NEX’s conduct so as to arrive at a certain lump sum amount, but rather  employed a complex methodology in order to determine the fines, which was in fact hidden behind the vague and general references in the statement of objections and the contested decision.

69.      As the General Court notes in paragraph 296 of the judgment under appeal, ‘the Commission highlights the existence of a five-stage test designed to calculate the basic amount of the fines’ in its defence at first instance, which it claims  to have applied in the case at hand. As was, moreover,  acknowledged  by the  Commission, this five-stage test had been mentioned to NEX during a settlement meeting  in October 2013. However, when NEX received the statement of objections in June 2014 and was given the  opportunity to exercise its rights of defence, the methodology which the Commission had  set out back in October 2013 was not explained. Furthermore, the Commission refused on  numerous occasions to confirm or deny if it was indeed using that methodology and instead  kept insisting that it would set an unspecified ‘lump sum’ based on the ‘gravity, duration and nature of the infringement’.

70.      As we have seen, it was only in the context of the judicial proceedings (that is, in paragraph 176 of the Commission’s defence at first instance) that the Commission, at last, admitted  to having in fact employed a  complex methodology when setting NEX’s fines. While the Commission was careful to classify  this admission as ‘not being required’, the case-law says otherwise. (13)

71.      While NEX correctly acknowledges that the Commission ‘is not required to indicate the figures relating to the method of calculating the fines’, (14) the fact remains that the Commission is still required to explain the factors it used to determine the fine.

72.      Indeed, as the General Court correctly ruled in paragraph 293 of the judgment under appeal, the Commission cannot simply provide ‘a general assurance that the basic amounts reflect the gravity, duration and nature of [NEX’s] involvement in the infringements’. If such an approach were upheld, undertakings would not be in a position to challenge the Commission’s methodology and the Court would not be able to review  it.

73.      In that regard, in paragraph 289 of the judgment under appeal, the General Court recalled the applicable case-law as follows:  ‘when the Commission decides to depart from the general methodology set out in the 2006 Guidelines, by which it limited the discretion it may itself exercise in setting the amount of fines, and relies, as in the present case, on point 37 of those guidelines, the requirements relating to the duty to state reasons must be complied with all the more rigorously …. In that regard, … the Guidelines lay down a rule of conduct indicating the approach to be adopted from which the Commission cannot depart, in an individual case, without giving reasons which are compatible with, inter alia, the principle of equal treatment … Those reasons must be all the more specific because point 37 of the Guidelines simply makes a vague reference to “the particularities of a given case” and thus leaves the Commission a broad discretion where it decides to make an exceptional adjustment of basic amount of the fines to be imposed on the undertakings concerned. In such a case, the Commission’s respect for the rights guaranteed by the EU legal order in administrative procedures, including the obligation to state reasons, is of even more fundamental importance’.

74.      Next, in paragraph 291 of the judgment under appeal, the General Court correctly recalled the case-law to the effect that ‘with respect to a decision imposing a fine, the Commission is required to provide a statement of reasons, inter alia, for the amount of the fine imposed and for the method chosen in that regard … The Commission must indicate in its decision the factors which enabled it to determine the gravity of the infringement and its duration, there being no requirement for any more detailed explanation or indication of the figures relating to the method of calculating the fine …  It must nevertheless explain the weighting and assessment of the factors taken into account’ (emphasis added).

75.      Paragraph 292 of that judgment explains why, in the case at hand, the Commission decided to depart from the methodology set out in the 2006 Guidelines, by applying point 37 thereof.

76.      Paragraph 293 of the judgment under appeal rightly points out that ‘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’.  In fact, the Commission sought to justify its erroneous approach by repeating the same general assurance at the hearing  before the Court. (15)

77.      Therefore, I must agree with the General Court’s finding in paragraph 294 of the judgment under appeal that, ‘drafted in that manner, recital 287 of the contested decision does not enable [NEX] 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  [of the judgment under appeal]’. (16)

78.      Moreover, the General Court did not err in law when it held that although ‘the reasoning of a contested act must be examined taking into account its context, the view cannot be taken that holding … exploratory and informal discussions [with NEX] 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’ (paragraph 295 of the judgment under appeal).

79.      The General Court was also right to rule in  paragraph 296 of the judgment under appeal that, ‘in paragraph 176 of the defence [at first instance], 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 … 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’.

80.      In that regard, it is necessary to point out that the Commission’s argument that the General Court’s approach would be detrimental to the Commission’s ability to determine adequate fines so as to achieve sufficient deterrence is unpersuasive.

81.      As noted above, what the Commission must explain are,  notably,  the weighting and assessment of the factors taken into account, and I fail to see how that would deprive  the Commission of the ability to determine adequate fines and/or achieve sufficient deterrence.

82.      This is indispensable in particular in a case such as this one where – contrary to the situation in AC-Treuhand – there were two facilitators and there is a risk that the Commission may have breached the principle of equal treatment in imposing fines on R.P. Martin and NEX.

83.      At the hearing, the Commission insisted that there was no discrimination in this case as to the level of fines ‘because it had applied the same fining methodology to both facilitators’.

84.      Aside from the fact that the courts are incapable of reviewing that methodology if it is kept secret, it should be pointed out that applying the same methodology to two different situations does not exclude a discriminatory outcome, in particular where the methodology relies on a discriminatory criterion. It should be borne in mind that discrimination is often the result of applying the same criterion to situations which are not comparable.  Indeed, the ‘principle of equal treatment’ or the ‘principle of non-discrimination’ are simply two labels for a single general principle of EU law, which prohibits treating similar situations differently and treating different situations in the same way unless there are objective reasons for such treatment. (17)

85.      It is clear that on the basis of the general and vague information and assurances provided in the present case, neither NEX nor the General Court (and, in turn, the Court of Justice) are able to assess either that methodology or the question whether the principle of equal treatment was breached by the Commission.

86.      This is in marked contrast with what is laid down in the case-law, namely that the observance of the rights of defence requires that addressees of decisions which significantly affect their interests be placed in a position in which they can effectively make known their views as regards all elements on which the authorities intend to base their decision. (18)

87.      Like the econometric model at issue in the judgment in UPS, the methodology of calculating a fine for a facilitator such as that at issue here undoubtedly constitutes such an important  element on which the Commission based its decision.

88.      Moreover, as the Court ruled in the judgment in UPS, ‘the disclosure of such models and methodological choices underlying their development is all the more necessary as it contributes … to ensuring that the procedure is fair, in accordance with the principle of good administration enshrined in Article 41 of the [Charter]’.

89.      It is clear that the same considerations should apply in the present case in relation to fine calculations, a fortiori in a case where the Commission departs from its fining guidelines.

90.      This is particularly important in such situations, as otherwise a facilitator would ultimately be worse off than an actual cartel member when it comes to being able to assess the appropriateness of the Commission’s decision and the possibility to have that decision examined by the Court. Indeed, this would run contrary to well-established case-law, (19) in which the Court has held that guidelines ‘lay down rules of conduct indicating the approach to be adopted from which the administration cannot depart, in an individual case, without giving reasons which are compatible with the principle of equal treatment’.

91.      It follows from all the foregoing considerations that the General Court did not err in law when it concluded, in paragraph 297 of the judgment under appeal, 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.

92.      Accordingly, the  single ground of appeal must be rejected as unfounded and the appeal must be dismissed in its entirety.
IV.    Conclusion

93.      For these reasons, I propose that the Court should:
(1)  dismiss the appeal;
(2)  order the European Commission to pay the costs.

1      Original language: English.

2      Judgment of 10 November 2017, Icap and Others v CommissionIcap and Others v CommissionIcap and Others v CommissionIcap and Others v CommissionIcap and Others v Commission, T‑180/15, EU:T:2017:795.

3      Commission Decision C(2015) 432 final of 4 February 2015 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39861 — Yen Interest Rate Derivatives) (‘the contested decision’).

4      In particular, the judgment of 22 October 2015, AC-Treuhand v CommissionAC-Treuhand v CommissionAC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraphs 66 to 68.

5      The Commission is relying on the judgments of 16 November 2000, Sarrió v CommissionSarrió v CommissionSarrió v Commission (C‑291/98 P, EU:C:2000:631, paragraph 78); of 2 October 2003, Aristrain v CommissionAristrain v CommissionAristrain v Commission (C‑196/99 P, EU:C:2003:529, paragraph 56); and of 22 October 2015, AC-Treuhand v CommissionAC-Treuhand v CommissionAC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717, paragraph 68).

6      Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers).

7      Judgment of 28 January 2016, Quimitécnica.com and de Mello v CommissionQuimitécnica.com and de Mello v CommissionQuimitécnica.com and de Mello v Commission (C‑415/14 P, not published, EU:C:2016:58, paragraph 53).

8      Judgment of 6 April 1995, Trefilunion v CommissionTrefilunion v CommissionTrefilunion v Commission (T‑148/89, EU:T:1995:68, paragraph 142).

9      Judgment of 15 March 2000, Cimenteries CBR and Others v CommissionCimenteries CBR and Others v CommissionCimenteries CBR and Others v Commission (T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 4735).

10      See point 79 of the present Opinion.

11      A certain parallel may also be drawn with the Grand Chamber judgment of 6 September 2017, Intel v CommissionIntel v CommissionIntel v Commission, C‑413/14 P, EU:C:2017:632. In that case, the General Court confirmed the Commission’s line of argument that loyalty rebates granted by an undertaking in a dominant position were, by their very nature, capable of restricting competition such that an analysis of all the circumstances of the case, in particular, an as efficient competitor test (‘AEC test’) was not necessary. However, the Court observed that, while the Commission had emphasised that the rebates at issue were by their very nature capable of restricting competition, it nevertheless carried out an in-depth examination of the circumstances of the case in its decision, which led it to conclude that an as efficient competitor would have had to offer prices which would not have been viable and that, accordingly, the rebate scheme at issue was capable of having foreclosure effects on such a competitor. The AEC test therefore played an important role in the Commission’s assessment of whether the rebate scheme at issue was capable of having foreclosure effects on as efficient competitors. The Court therefore held that the General Court was required to examine all of Intel’s arguments concerning that test, which the General Court had failed to do. The Court therefore set aside the judgment of the General Court as a result of that failure in its analysis of whether the rebates at issue were capable of restricting competition.

12      See point 74 of the present Opinion.

13      See point 77 and footnote 16 of the present Opinion.

14      Judgment of 22 October 2015 in AC-Treuhand v Commission, C-194/14 P, EU:C:2015:717, paragraph 68.

15      The Commission’s desired outcome would be for the fine calculation to be a sort of Coca-Cola formula, which the parties and the EU Courts can enjoy and ‘taste’, but are expected to accept as being secret, simply believing the Commission’s ‘assurances’ that it has been applied correctly and without any discrimination in a case such as this one where there is a risk of unequal treatment between two facilitators in a cartel.

16      Judgments of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraph 91; of 13 July 2011, Schindler Holding and Others v Commission, T‑138/07, EU:T:2011:362, paragraph 243; and of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 61.

17      See, inter alia, judgment of 12 December 2002,  Rodríguez Caballero,  C‑442/00, EU:C:2002:752, paragraph 32 and the case-law cited.

18      Judgments of 24 October 1996, Commission v Lisrestal and Others (C‑32/95 P, EU:C:1996:402, paragraph 21); of 22 October 2013, Sabou (C‑276/12, EU:C:2013:678, paragraph 38); and of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 51); see also Opinion of Advocate General Kokott in UPS, C-265/17 P, EU:C:2018:628, point 38.

19      Such as the judgment of 11 July 2013,  Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 60.