Judgments nº T-105/17 of Tribunal General de la Unión Europea, September 24, 2019

• Resolution Date: September 24, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-105/17

(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

1. 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 33 606 000 (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: 33 606 000 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...