Appeal brought on 22 January 2018 by the European Commission against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 10 November 2017 in Case T-180/15: Icap plc and Others v European Commission

(Case C-39/18 P)

Language of the case: English

Parties

Appellant: European Commission (represented by: T. Christoforou, V. Bottka, M. Farley, B. Mongin, Agents)

Other parties to the proceedings: Icap plc, Icap Management Services Ltd, Icap New Zealand Ltd (ICAP)

Form of order sought

The appellant claims that the Court should:

set aside the judgment (§§ 281-299 and the operative part) insofar as it annuls the fines in Article 2 of the contested decision;

dismiss the fifth and sixth pleas of ICAP’s application before the General Court, relating to the fines, and establish the appropriate fines on ICAP by applying its unlimited jurisdiction;

order ICAP to bear the entirety of the costs of these proceedings and to adjust the order on costs in the judgment at first instance in order to reflect the outcome of the present appeal.

Pleas in law and main arguments

The Commission bases its appeal on the following single ground of appeal:

The Commission submits that in its judgment in Case T-180/15 Icap plc and Others v Commission, EU:T:2017:795 the General Court incorrectly applied the case law of the Court of Justice on the statement of reasons required when imposing fines. The General Court’s judgment deviates from the leading judgment in Case C-194/14 P, AC Treuhand v Commission, EU:C:2015:717, §§ 66-68 and imposes a stricter obligation on the Commission to motivate in more detail the methodology used in calculating fines imposed for breaches of Article 101 TFEU, especially when applying point 37 of the Guidelines on Fines. The Commission’s appeal aims at correcting the serious errors of law committed by the General Court, which, if accepted, would be detrimental to the Commission’s ability to determine adequate fines so as to achieve sufficient deterrence. A properly construed duty of reasoning, which corresponds to the case law requirements recalled in Case C-194/14 P, AC Treuhand, § 68, is essential to achieve that aim. By contrast, a stricter obligation of motivation on the fines, encompassing the internal deliberations and calculations of intermediary steps, impinges on the Commission’s margin of discretion in setting fines, including when it relies on point 37 of the Guidelines on Fines. The latter was designed precisely with the purpose of allowing the Commission to deviate from the Guidelines on Fines in atypical cases, such as when imposing fines on facilitators. As the Union Courts have recognised, the Commission needs to preserve its power of assessment and discretion in setting appropriate fines.

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