JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)

20 December 2023 (*) (1)

(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 Benchmark Rates – Exchange of confidential information – Restriction of competition by object – Single and continuous infringement – ‘Hybrid’ procedure staggered over time – Presumption of innocence – Impartiality – Fines – Basic amount – Value of sales – Article 23(2) and (3) of Regulation (EC) No 1/2003 – Obligation to state reasons – Amending decision supplementing the statement of reasons – Equal treatment – Proportionality – Unlimited jurisdiction)

In Case T‑106/17,

JPMorgan Chase & Co., established in New York, New York (United States),

JPMorgan Chase Bank, National Association, established in Columbus, Ohio (United States),

J.P. Morgan Services LLP, established in London (United Kingdom),

represented by B. Tormey, A. Holroyd, L. Ream, N. French, N. Frey, D. Das, D. Hunt, N. English, Solicitors, M. Lester KC, D. Piccinin and D. Heaton, Barristers,

applicants,

v

European Commission, represented by F. van Schaik, T. Baumé and M. Farley, acting as Agents,

defendant,

THE GENERAL COURT (Tenth Chamber, Extended Composition),

composed, at the time of the deliberations, of S. Papasavvas, President, A. Kornezov, E. Buttigieg (Rapporteur), K. Kowalik-Bańczyk and G. Hesse, Judges,

Registrar: I. Kurme, Administrator,

having regard to the written part of the procedure, in particular;

–        the decisions of 5 June 2019 and 31 March 2021 to stay the proceedings in accordance with Article 69(d) of the Rules of Procedure of the General Court,

–        the statement of modification lodged by the applicants at the Court Registry on 8 September 2021 and the Commission’s observations on that statement lodged at the Court Registry on 26 November 2021,

further to the hearing on 18 March 2022,

having regard to the judgment of 12 January 2023, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2023:11) and the observations of the parties on that judgment,

gives the following

Judgment

1        By their action under Article 263 TFEU, the applicants, JPMorgan Chase & Co., JPMorgan Chase Bank, National Association and J.P. Morgan Services LLP (together, ‘JP Morgan’), seek, first, the annulment in part of Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39914 – Euro Interest Rate Derivatives (EIRD)) (‘the contested decision’) and, second, in the alternative, the annulment or reduction of the fine imposed on them in that decision. Furthermore, they seek an order that no account is to be taken of Commission Decision C(2021) 4610 final of 28 June 2021 amending the contested decision (‘the amending decision’) or, in the alternative, the annulment of that decision.

I.      Background to the dispute

2        The JPMorgan Chase group is, according to the contested decision, one of the oldest financial institutions in the United States of America and is active in the European Economic Area (EEA). JPMorgan Chase & Co. is the ultimate parent company of the JPMorgan Chase group. JPMorgan Chase Bank, National Association is responsible for trading Euro Interest Rate Derivatives (‘EIRDs’), while J.P. Morgan AG is responsible for submitting rates to the panel of banks whose individual quotes contribute to the setting of the Euro Interbank Offered Rate (‘Euribor’) (‘the Euribor panel’). The persons within the JPMorgan Chase group in charge of submitting the Euribor rates during the infringement period and those involved in trading EIRDs or in the setting of the Euribor rate during the infringement period were employed by J.P. Morgan Services LLP.

A.      The administrative procedure giving rise to 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; together, ‘Barclays’) applied to the European 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 willingness to cooperate. On 14 October 2011, Barclays was granted conditional immunity.

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 those of the applicants.

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 (i) the applicants, (ii) Barclays, (iii) Deutsche Bank AG, Deutsche Bank Services (Jersey) Ltd and DB Group Services (UK) Ltd (together, ‘Deutsche Bank’), (iv) HSBC Holdings plc, HSBC Bank plc and HSBC France (together, ‘HSBC’), (v) Crédit agricole SA and Crédit agricole Corporate and Investment Bank (together, ‘Crédit agricole’), (vi) Royal Bank of Scotland plc and the Royal Bank of Scotland Group plc (together, ‘RBS’), and (vii) Société générale.

6        Barclays, Deutsche Bank, RBS and Société générale decided 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. Crédit agricole, HSBC 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, RBS and Société générale, 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.

8        On 19 May 2014, the Commission sent a statement of objections to the applicants as well as to Crédit agricole and HSBC.

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 other parts of the file that were accessible only at the Commission’s premises. The applicants also had access to the statement of objections sent to the settling parties, the replies of those parties to that statement of objections and the settlement decision.

10      The applicants submitted their written observations on the statement of objections within the time limit prescribed and presented their views orally at the hearing which took place from 15 to 17 June 2015.

11      On 6 April 2016, the Commission amended the settlement decision as far as the determination of the amount of Société générale’s fine was concerned. The applicants had access to the amending decision, the underlying correspondence and the corrected financial data submitted by Société générale.

12      On 9 September 2016, the Commission sent a second letter of facts to the applicants informing them of the possible use of two communications reported by the latter in their replies of 21 November 2012 to a request for information from the Commission. The applicants replied to that letter of facts on 3 October 2016.

B.      The contested decision

13      On 7 December 2016, the Commission adopted the contested decision on the basis of Articles 7 and 23 of Regulation No 1/2003. It found that the applicants had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 27 September 2006 to 19 March 2007, in a single and continuous infringement having as its object the distortion of the normal course of pricing on the EIRD market (Article 1(c) of the contested decision) and imposed on them jointly and severally a fine of EUR 337 196 000 (Article 2(c) of the contested decision).

1.      The products at issue

14      The infringements at issue concern EIRDs, that is to say Euro Interest Rate Derivatives linked to Euribor or the Euro Over-Night Index Average (‘EONIA’).

15      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. EONIA fulfilled a function equivalent to that of Euribor, but with regard to daily rates.

2.      The applicants’ alleged conduct

16      In recital 113 of the contested decision (see also recitals 358 and 392 of the contested decision), the Commission described the alleged 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 tenors of at least one of their respective banks.

(c)      On occasions, certain traders also explored possibilities to align their EIRD trading positions on the basis of such information as described under (a) or (b).

(d)      On occasions, certain traders also explored possibilities to align at least one of their banks’ future Euribor submissions on the basis of such information as described under (a) or (b).

(e)      On occasions, at least one of the traders involved in such discussions approached the respective bank’s Euribor submitters, or stated that such an approach would be made, to request a submission to the [European Banking Federation (EBF)]’s calculation agent towards a certain direction or at a specific level.

(f)      On occasions, at least one of the traders involved in such discussions stated that he would report back, or reported back on the submitter’s reply before the point in time when the daily Euribor submissions had to be submitted to the calculation agent or, in those instances where that trader had already discussed this with the submitter, passed on such information received from the submitter to the trader of a different party.

(g)      On occasions, at least one trader of a party disclosed to a trader of another party other detailed and sensitive information about his bank’s trading or pricing strategy regarding EIRDs.’

17      In recital 114 of the contested decision (see also recital 359 of the contested decision), the Commission added that, ‘in addition, on occasions certain traders employed by different parties discussed the outcome of the Euribor rate setting, including specific banks’ submissions, after the Euribor rates of a day had been set and published’.

18      The Commission found that those instances of conduct formed a single and continuous infringement (recitals 442 and 443 of the contested decision).

19      The Commission found that JP Morgan had participated in that single and continuous infringement, emphasising that the bilateral exchanges in which it had participated in themselves constituted an infringement of Article 101(1) TFEU (recital 487 of the contested decision).

20      As regards the duration of JP Morgan’s participation, the Commission took 27 September 2006 as its starting date (recital 621 of the contested decision) and 19 March 2007 as its end date (recital 626 of the contested decision).

3.      The fine

21      The amount of the fine imposed on JP Morgan in Article 2(c) of the contested decision was set at EUR 337 196 000.

C.      Events subsequent to the bringing of the present action

22      By judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675), the General Court annulled Article 2(b) of the contested decision, by which the Commission had imposed a fine on HSBC, on the ground that the Commission had failed to state reasons to the requisite legal standard as to why the uniform reduction factor applied to the cash receipts of the undertakings concerned for the purpose of calculating the fines imposed on them (‘the reduction factor’) had been set at 98.849% rather than at a higher level, and dismissed the action as to the remainder.

23      By letter of 24 February 2021, the Commission informed the applicants and Crédit agricole of its intention to amend the contested decision in the light of the judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675). By the same letter, and by letter of 16 April 2021, the Commission provided to all the addressees of the contested decision further information and explanations as to why the level of the reduction factor was set at 98.849%. The applicants submitted their observations on those letters on 14 May 2021.

24      On 28 June 2021, the Commission adopted the amending decision. It took the view that, since the reduction factor in the contested decision was the same for all its addresses, it was likely that the General Court would consider the reasoning in the judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675), concerning the inadequacy of the statement of reasons for the determination of that reduction factor, to be transposable to the fines imposed on the applicants and on the other addressee of that decision, and that it was therefore in line with the principle of good administration to correct the errors identified by the General Court in that judgment and amend the contested decision with respect to the applicants and the other addressee of that decision by supplementing the reasoning relating to the determination of the reduction factor.

25      By judgment of 12 January 2023, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2023:11), first, the Court of Justice set aside the judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675), in so far as the General Court had rejected the primary claim for annulment of Article 1 of the contested decision and the claim in the alternative for annulment of Article 1(b) of that decision. Second, the Court dismissed the action brought by HSBC in Case T‑105/17, in so far as it sought the annulment of Article 1 of the contested decision and, in the alternative, Article 1(b) of that decision.

II.    Forms of order sought

26      The applicants claim that the Court should:

–        principally, annul the contested decision in so far as it relates to them;

–        in the alternative, annul the Commission’s finding that the applicants participated in a single and continuous infringement and reduce the fine accordingly;

–        in the further alternative, annul the fine imposed on the applicants and replace it with a lesser fine;

–        find that regard should not be had to the amending decision or, in the alternative, annul that decision;

–        order the Commission to pay the costs.

27      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

III. Law

28      In support of the action, the applicants rely on six pleas in law. The first five pleas in law, in essence, support the claim for annulment of Article 1(c) of the contested decision. The sixth plea in law, raised in the alternative, supports the claim for annulment of Article 2(c) of the contested decision, by which the Commission imposed on the applicants a fine of EUR 337 196 000, and the claim for a reduction of that fine.

29      In addition, in support of the form of order sought in the statement of modification, the applicants raise three pleas in law against the amending decision.

A.      The effects of the dissolution of J.P. Morgan Services on the present proceedings

30      By letter lodged at the Registry of the General Court on 26 July 2022, the applicants informed the Court, with supporting evidence, of the dissolution and removal from the register of companies of one of the applicants, J.P. Morgan Services, and requested that that party be removed from the case. Following that request, the applicants and the Commission were heard on the application, in the circumstances, of Article 131(1) of the Rules of Procedure of the General Court. Under that provision, the General Court may, of its own motion and at any time, declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.

31      The applicants and the Commission agree that, in the light of the dissolution of J.P. Morgan Services and its removal from the register of companies, there is no longer any need to adjudicate on the action in so far as it was brought by that party. In addition, as regards the costs, the applicants state that they are prepared to pay the costs which, as the case may be, are to be borne by J.P. Morgan Services, in accordance with the apportionment decided by the Court.

32      It is apparent from settled case-law that, if, in the course of proceedings, an applicant ceases to exist in law and therefore to have the capacity to be a party to proceedings before the Courts of the European Union, it is for those Courts to find that there is no longer any need to adjudicate on the action brought by that applicant (order of 22 January 2018, Italy and Others v Commission, T‑125/13, T‑152/13 and T‑167/13, not published, EU:T:2018:35, paragraph 38; see also, to that effect, judgments of 15 June 2017, Al-Faqih and Others v Commission, C‑19/16 P, EU:C:2017:466, paragraphs 35 and 42, and of 28 October 2015, Al-Faqih and Others v Commission, T‑134/11, not published, EU:T:2015:812, paragraphs 42 and 46).

33      In the present case, in the light of the dissolution of J.P. Morgan Services and its removal from the register of companies during the present proceedings, that company no longer exists in law, as the applicants assert, with the result that it no longer has the capacity to be a party to legal proceedings. Accordingly, it must be found that there is no longer any need to adjudicate on the action in so far as it was brought by J.P. Morgan Services.

34      Hereafter, only JPMorgan Chase & Co and JPMorgan Chase Bank, National Association are referred to as ‘applicants’ and as ‘JP Morgan’.

B.      The claim for annulment of Article 1(c) of the contested decision

35      In the first plea of the application, the applicants claim that the Commission has not demonstrated that their conduct had the object of manipulating Euribor or EONIA. In the second and third pleas of the application, they dispute, in essence, the characterisation of the practices at issue as restrictions of competition by object. In the fourth plea of the application, the applicants, in essence, dispute the Commission’s characterisation of the practices in which they allegedly participated as a single infringement, and dispute that that infringement is attributable to them. The fifth plea of the application alleges a failure to observe the presumption of innocence, the principle of sound administration and the applicants’ rights of defence.

1.      Whether there is infringing conduct attributable to the applicants (first, second and third pleas of the application)

(a)    Preliminary observations

(1)    The context in which the conduct at issue occurred

36      The parties disagree on certain matters relating to the characteristics and functioning of the EIRD market. Since those matters are relevant to the arguments put forward in connection with, in particular, the first, second and third pleas of the application, they will be assessed during the examination of those pleas.

37      However, the following matters concerning the context in which the applicants’ alleged conduct occurred are not disputed by the applicants.

38      EIRDs are contracts – such as those at issue in the present case – entered into on the over-the-counter (OTC) market and in which one of the parties agrees (i) to pay to the other, on one or more future dates, the interest on a notional amount of money, calculated by reference to a variable rate equal to the rate of the reference index determined in the contract (such as the Euribor or EONIA) (referred to as ‘the floating leg’ or ‘variable leg’ of the contract) and (ii) to receive from the other party, on the same date or dates, the interest on that notional amount, calculated by reference to a fixed rate predetermined in the contract at the time it is entered into (referred to as ‘the fixed leg’ of the contract) (recitals 3 to 10 and 25 of the contested decision).

39      A ‘cash flow’ under a contract reflects the difference (referred to as ‘the spread’) between the fixed rate and the variable rate on the fixing date, and thereby the positive or negative return for a given contract (recitals 5 and 42 of the contested decision). The party that receives the fixed rate and pays the variable rate therefore has an interest in the variable rate at the time of fixing being lower than the fixed rate determined at the time of entering into the agreement (recital 24 of the contested decision).

40      The trader determines his or her trading strategy and, in particular, the spread to propose for a particular contract, on the basis of a number of factors, namely, inter alia, the composition or overall value of his or her portfolio (which constitutes his or her ‘trading position’) and the rate risk, expectations as to the future evolution of the interest rate benchmarks (in this case Euribor and EONIA), his or her ability to find cover quickly on the market and the level of counterparty risk.

41      The most frequent EIRDs are forward rate agreements (‘FRAs’), interest rate swaps, interest rate options and interest rate futures (recitals 4 to 10 of the contested decision).

42      The Euribor rate is based on the individual quotes by the banks belonging to the panel made up of 47 banks, including the banks referred to in paragraph 5 above, of the rates at which each of them believes that a prime bank would lend funds to another prime bank. It is calculated on the basis of the panel bank submissions of these estimated rates to Thomson Reuters, which acts as the calculation agent to the EBF, between 10:45 and 11:00, and is determined and published at 11:00 each working day. The banks provide submissions for the 15 different Euribor interest rates, which have different terms ranging from one week to 12 months (recitals 20 to 29 of the contested decision). EONIA fulfilled an equivalent function to Euribor, but with regard to daily rates. It was 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).

43      The term ‘fixing date’ generally refers to the date on which the reference rate is determined. The term ‘IMM date’ refers to the International Money Market dates, which are the four quarterly dates of each year that most futures and options contracts use as their scheduled maturity date, namely the third Wednesday of March, June, September and December (recital 31 of the contested decision).

44      It is the treasury departments (also referred to as the ‘cash desks’ or ‘treasury desks’) of the panel banks, and not the traders themselves, who submit estimates of the Euribor and EONIA reference rates (recital 22 of the contested decision).

45      The banks involved in the conduct identified by the Commission in the present case are ‘market makers’ on the OTC markets (recital 44 of the contested decision).

(2)    The scope of the applicants’ challenge to JP Morgan’s participation in the infringing conduct

46      The Commission submits that, in the present action, the applicants’ arguments are based on a restrictive interpretation of JP Morgan’s alleged conduct on the basis of its participation in the cartel, inasmuch as they claim that that it consisted solely of rate manipulation practices.

47      When questioned on that point in the context of a measure of organisation of procedure, the applicants stated that their position, as expressed in the application, is that they dispute JP Morgan’s participation in attempts to manipulate rates and claim that the contested decision did not find that JP Morgan engaged in another form of anticompetitive conduct. Lastly, even if the contested decision could be interpreted as accusing it of other forms of anticompetitive conduct, the applicants contest their participation in such conduct.

48      In that regard, it should be noted, as the Commission has stated, that in the contested decision it did not take the view that the infringement at issue was limited to attempts to manipulate reference rates, but found that it consisted of the participation of certain banks, including JP Morgan, in anticompetitive conduct that took various forms, described in recitals 113, 358 and 392 of the contested decision and referred to in paragraph 16 above, including exchanges on trading positions or of pricing strategies. According to the Commission, those practices making up the single and continuous infringement all have the object of increasing the cash flows payable under EIRDs by distorting the normal course of pricing components of EIRDs and creating an asymmetry of information that is detrimental to competition.

49      It is apparent, in essence, from the applicants’ arguments that, first, in the context of the first plea and the reference made in the third plea, they dispute the Commission’s interpretation of all the exchanges which the latter found to constitute infringing conduct on the part of JP Morgan and therefore the accuracy of the Commission’s findings. Second, the applicants submit, in the context of the third plea, that the Commission did not identify, in breach in particular of its obligation to state reasons, an anticompetitive object other than the attempts to manipulate reference rates, inasmuch as it did not specify which pricing component other than those rates was affected by the infringing conduct of which the applicants are accused.

50      It is therefore necessary to examine, first of all, the scope of the exchanges that the Commission found, in the case of JP Morgan, to come within the scope of the various forms of infringing conduct in which the latter participated. The applicants’ arguments relating to whether that conduct restricts competition by object will be examined in the context of the examination of the second and third pleas.

(3)    The admissibility and probative value of certain annexes

51      The Commission disputes, first, the admissibility of Annex A.3 to the application and Annex C.2 to the reply on the ground that the applicants attempt, through them, to submit, belatedly and unjustifiably, new evidence that was not submitted during the administrative procedure and to add additional arguments of law and fact which do not appear in the body of those pleadings. The latter inadmissibility argument also concerns Annex C.1 to the reply. Moreover, the pleadings do not contain specific references to those annexes. Second, the Commission submits that Annexes A.3 and C.2 containing the statements of the JP Morgan trader ‘commissioned’ by the applicants for the purposes of the present proceedings are of low probative value.

52      The applicants dispute the Commission’s arguments and submit that, having regard to numerous explicit references to Annex A.3 in the body of the application, that annex is admissible and, moreover, has a high probative value, in particular in the light of the fact that it contains the statement of the JP Morgan trader who is a direct witness of the facts at issue.

53      In that regard, it should be noted that the annexes in question consist, in the cases of Annex A.3 to the application and Annex C.2 to the reply, of statements made by the JP Morgan trader and, in the case of Annex C.1 to the reply, of a table summarising that same trader’s explanations of the scope of the communications at issue, the Commission’s responses in defence and the reasons why, according to the applicants, those responses are incorrect.

54      In the first place, it should be borne in mind that the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating, inter alia, to proceedings applying Article 101 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicants and taking into account all the elements submitted by the latter, whether those elements predate or post-date the contested decision, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, in so far as those elements are relevant to the review of the legality of the Commission decision (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 72 and the case-law cited).

55      It follows that, contrary to what the Commission maintains, Annex A.3 to the application and Annex C.2 to the reply cannot be declared inadmissible solely because the JP Morgan trader’s witness statements contained in those annexes were not submitted to the Commission during the administrative procedure.

56      In the second place, the Commission claims that the arguments set out in Annex A.3 to the application and in Annexes C.1 and C.2 to the reply are inadmissible in so far as the applicants do not refer to them in the body of the pleadings and therefore attempt, through those annexes, to add additional arguments of law and fact which do not appear in the body of the pleadings.

57      It should be borne in mind that, according to settled case-law, the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed to it, provided that the essential submissions in law appear in the application itself (see judgment of 24 October 2019, EPSU and Goudriaan v Commission, T‑310/18, EU:T:2019:757, paragraph 43 and the case-law cited).

58      In the present case, it must be noted that, contrary to what the Commission maintains, the essence of the applicants’ arguments do appear in the body of the application and the body of the reply and the information set out in Annexes A.3, C.1 and C.2 merely support and supplement, on specific points, the pleas and arguments contained in those pleadings. In addition, the Court can readily identify the relevant passages of the trader’s statements and of the table included in those annexes, inter alia because of the specific references made by the applicants.

59      As a result, in the examination of the action, Annexes A.3, C.1 and C.2 will be taken into consideration in so far as the submissions they contain support or supplement the pleas or arguments expressly set out by the applicants in the body of the application and the body of the reply, and in so far as it is possible for the Court to determine precisely the matters they contain that support or supplement those pleas or arguments (see, to that effect, judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 99).

60      As regards, in the third place, the probative value of the JP Morgan trader’s witness statements submitted by the applicants in Annex A.3 to the application and Annex C.2 to the reply, it should be noted, as the Commission has done, that those witness statements were clearly drafted for the purposes of the present proceedings and at a date far removed from the material time, with the result that they have low probative value (see, to that effect, judgment of 8 September 2016, Arrow Group and Arrow Generics v Commission, T‑467/13, not published, EU:T:2016:450, paragraph 136 and the case-law cited). That conclusion cannot be called into question by the fact that those witness statements contain the explanations of the former JP Morgan trader in respect of the communications at issue in which he participated.

(4)    The taking into consideration of ‘the Bank E communications’ as evidence forming part of a body of evidence

61      The applicants claim that the Commission was wrong to take into account the communications between the Deutsche Bank trader and the JP Morgan trader when the latter was employed at Bank E (‘the Bank E communications’) in order to interpret the exchanges that the Commission found to constitute infringing conduct on the part of JP Morgan, in so far as, first, it does not claim that those communications were themselves unlawful and, second, they took place before the applicants’ allegedly infringing practices began, and even before the start of the cartel.

62      The applicants also dispute the Commission’s interpretation of those communications and their relevance as part of the context of the applicants’ alleged infringing conduct, arguing that they do not enable the Commission to prove the anticompetitive object of the exchanges at issue.

63      The Commission submits that it was right to take into account the Bank E communications for the purpose of establishing the context and scope of the subsequent contact between the JP Morgan trader and the Deutsche Bank trader.

64      In that regard, it should be noted that it is apparent from recitals 144, 146 and 147 of the contested decision that the Commission considered that the Bank E communications constituted a significant element of the factual context and were relevant for the purpose of interpreting the scope of certain exchanges found to be infringing conduct on the part of JP Morgan.

65      In order to assess whether, in the circumstances, it was correct for the Bank E communications to be taken into account, which is disputed by the applicants, it should be borne in mind that, in the field of competition law, where there is a dispute as to the existence of an infringement, it is incumbent on the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (see judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 71 and the case-law cited, and of 28 November 2019, ABB v Commission, C‑593/18 P, not published, EU:C:2019:1027, paragraph 38 and the case-law cited).

66      Thus, in that respect, the Commission must produce firm, precise and consistent evidence in order to establish that there has been an infringement and to support the firm conviction that the alleged infringements constitute restrictions of competition within the meaning of Article 101(1) TFEU. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by that institution, viewed as a whole, meets that requirement (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47 and the case-law cited).

67      It also follows from the case-law that, even if the Commission discovers evidence explicitly showing unlawful contact between the traders of the companies concerned, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 55 and 56, and of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 50).

68      Therefore, the existence of anticompetitive practices or agreements must, in most cases, be inferred from a number of coincidences or indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgments of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 26, and of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 51).

69      Here, in the first place, it should be noted that, in footnote 162 to the contested decision, the Commission expressly states that the Bank E communications do not form part of JP Morgan’s alleged infringement. Thus, unlike in the case that gave rise to the judgment of 15 December 2016, Philips and Philips France v Commission (T‑762/14, not published, EU:T:2016:738, paragraph 138), on which the applicants rely, the Commission does not rely on the alleged unlawfulness of those communications in order to argue that the subsequent exchanges between the JP Morgan trader and the Deutsche Bank trader are, as a result, anticompetitive. As is apparent from recitals 169, 186 and 207 of the contested decision, the Commission relies on the Bank E communications purely as a body of evidence in order to demonstrate, inter alia, the ‘familiarity’ between the two traders and their habit of communicating to one another information such as that exchanged in the context of certain communications found by the Commission to come within the scope of the infringing conduct forming part of a single and continuous infringement.

70      In addition, it should be noted that case-law shows that the Commission may take into account evidence established outside the period of infringement, if that evidence forms part of the body of evidence that it relies on in order to prove the infringement. It may thus rely, inter alia, on factual circumstances which take place prior to and subsequent to anticompetitive conduct in order to confirm the content of an objective item of evidence (see, to that effect, judgments of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraph 188, and of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 178).

71      It follows that, even though the Bank E communications predate the period during which JP Morgan was found, in the contested decision, to have been committing an infringement, and even though they were not characterised as infringing communications, the Commission was entitled to take them into account by way of evidence forming part of the body of evidence intended to prove that the infringement had occurred.

72      In the second place, as regards the claim that the Commission did not explain or prove the relevance of the Bank E communications, it must be stated that it is true that the Commission does not explain the content of all 18 Bank E communications on which it relies in recital 144 of the contested decision. However, in recital 144 of the contested decision, the Commission states that, during the Bank E communications, the JP Morgan and Deutsche Bank traders ‘discussed … amongst other things, their banks’ future Euribor submissions and other pre-pricing information such as “spreads” and “mids”‘. In addition, in recital 146 of the contested decision, it describes, by way of example, the exchange of 29 September 2005, then, in recital 147 of the contested decision, the exchanges of 10 and 28 June 2005, 1 and 4 July 2005 and 28 September 2005.

73      It notes, first, that the Bank E communications show that the JP Morgan trader was familiar with exchanging information with competing traders, in particular with the Deutsche Bank trader, with a view to coordinating Euribor submissions depending on their respective trading positions. Second, those exchanges showed that, before working for JP Morgan, that trader was aware that such behaviour on the part of traders seeking to coordinate the Euribor submissions according to their trading positions involved contacting their respective cash desks. The Commission thus concludes that those initial exchanges rule out any potential ‘misunderstanding’ on the part of the JP Morgan trader regarding subsequent exchanges with competing traders on the topics of prospective Euribor submissions and related trading positions, or ‘spreads’ or ‘mids’.

74      That information is sufficient to enable the applicants and the Court to assess how the other Bank E communications, as evidence forming part of the body of evidence, support the Commission’s interpretation of the exchanges forming part of the infringing conduct, in particular that of 27 and 28 September 2006, 10 October 2006 and 8 November 2006.

75      In that regard, it should also be noted that, although the Commission states, in recital 147 of the contested decision, that the JP Morgan trader’s exchanges ‘with other traders’ before he was recruited by JP Morgan are relevant because they show that he was familiar with exchanging information ‘with competing traders, “in particular” [the Deutsche Bank trader]’, it relies in that regard solely on the bilateral communications between the JP Morgan trader and the Deutsche Bank trader, as the applicants point out. However, during one of those exchanges, namely that of 10 June 2005, the Deutsche Bank trader asked the JP Morgan trader whether the latter had contacted another specific bank concerning its planned submission (‘did u speak to […]?’ ), which the latter confirms (‘yes n … not sure they will get much joy but trying hard amigo’). The Commission was therefore entitled to conclude that the JP Morgan trader was accustomed to making such exchanges regarding the banks’ submissions to the Euribor panel not only with the Deutsche Bank trader, but also with competing traders from other banks.

76      In the light of the foregoing considerations, the Commission cannot be criticised for having taken the Bank E communications into account as factual context in the light of which it examined the exchanges at issue that were found to constitute infringing conduct on the part of JP Morgan forming part of the single infringement.

77      In the third place, a reading of the transcripts of the Bank E communications, referred to by the Commission in recitals 146 and 147 of the contested decision, confirms the Commission’s interpretation of those exchanges.

78      First, during the Bank E communication of 10 June 2005, the Deutsche Bank trader reports to the JP Morgan trader on his cash desk’s planned submission (‘am getting 12 fix here’), to which the JP Morgan trader suggests that the submission of his own cash desk will be similar (‘luks like we will b same in fft [cash desk] as well …’).

79      Second, during the exchange of 28 June 2005, the Deutsche Bank trader tells the JP Morgan trader that he tried to persuade his cash desk to submit a 3-month Euribor higher than 2.08 (‘amigo dbfft [Deutsche Bank cash desk] tom 2.08 fixing 3s?’, ‘I tried to lift him on his Euribor fixing and he said that he[‘]ll put it higher tomorrow’).

80      Third, during the exchange of 1 July 2005, the JP Morgan trader asked the Deutsche Bank trader at what level his cash desk intended to submit the 3-month Euribor rate ‘amici miei where is db fft [cash desk] 3M fixing today?’ and states the submission expected from his own cash desk ‘up 2.12 here as well’ ‘we r going 2.11’, after the Deutsche Bank trader had revealed to him the level of his bank’s submission (‘2.02?’).

81      Fourth, on 4 July 2005, when the JP Morgan trader asked the Deutsche Bank trader for the level of the submission from his bank for that day, stating the level submitted by Bank E (‘amici miei u guys still insist on low fixings in 3s … we went 2.12 today’), the Deutsche Bank trader complains about the outcome of his discussions with his head of tenders (‘not my fault Amigo’, ‘i keep telling them, all the germans are putting it lower’).

82      Fifth, during the exchange of 28 September 2005, the JP Morgan trader replied to the Deutsche Bank trader who was asking him about the level of the submission of Bank E’s cash desk the following day (‘u gonna put a high libor tomorrow?’), that he would talk to his cash desk (‘will spk with my frd guess 17 will fix’).

83      Sixth, on 29 September 2005, the traders discussed the future Euribor submissions of Bank E and Deutsche Bank, in so far as the Deutsche Bank trader reminded the JP Morgan trader not to forget the 3-month high fixing for FRA/EONIA spreads (‘dont forget this high 3M fix for the FRA/EONIA spreads’), to which the trader replies that this should ‘be okay’ and Bank E will submit ‘18’ (‘should b ok’ ‘we go for 18’).

84      It is apparent from the Bank E communications that, as the Commission, in essence, observes, the Deutsche Bank trader and the JP Morgan trader, when he was employed by Bank E, were accustomed (i) to exchanging information with a view to coordinating the Euribor submissions of their respective banks in accordance with their own interests and (ii) to engaging in discussion with their respective cash desks as regards the level of those submissions. It is also apparent that the JP Morgan trader was likely to have been in contact with competing traders from other banks to exchange views on the same subject.

85      The objections raised by the applicants with regard to the Bank E communications must therefore be rejected.

(b)    The first plea in law, disputing JP Morgan’s participation in the infringing conduct

86      The conduct that the Commission relied on against JP Morgan in the contested decision covers the exchanges between its trader and the traders of Deutsche Bank and Barclays on 27, 28 and 29 September 2006, 2, 6, 10, 25 and 26 October 2006, 8, 13 and 24 November 2006, 18 December 2006, 4 and 8 January 2007, 6 February 2007, and 14, 16 and 19 March 2007. In addition, in respect of the evidence forming part of the body of evidence relevant to the interpretation of the conduct in which the JP Morgan trader had engaged, the Commission also relied on the exchanges of 15 December 2006, 8 February 2007 and 16 March 2007 between the JP Morgan trader and that bank’s submitters.

87      When examining the arguments put forward by the applicants in order to dispute the scope of the exchanges found by the Commission to constitute infringing conduct on the part of JP Morgan, account must be taken of the considerations set out in paragraphs 65 to 68 and 70 above concerning the burden of proof, and it must be borne in mind that, in accordance with the principle of the presumption of innocence, any doubt on the part of the Court when it is called upon to assess whether the Commission has established to the requisite legal standard that an undertaking is guilty of an infringement of Article 101 TFEU must benefit the undertaking to which the decision finding the infringement was addressed (see, to that effect, judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 18 and the case-law cited). The presumption of innocence constitutes a general principle of EU law, now laid down in Article 48(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), which applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraphs 72 and 73 and the case-law cited, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 76 and 78 and the case-law cited).

(1)    The scope of the exchanges that, in the contested decision, the Commission found to constitute infringing conduct on the part of JP Morgan

88      As a preliminary point, the Court finds, as the Commission has argued, that the contested decision does not divide up the applicants’ alleged conduct into separate periods; the Commission found that the JP Morgan trader participated in different forms of collusive conduct during the period of the infringement for which the applicants were found liable, namely from 27 September 2006 to 19 March 2007. There is therefore no need to divide up the exchanges at issue into four separate periods, as the applicants propose.

89      The applicants take issue with the Commission’s interpretation that the exchanges at issue come within the scope of the infringing conduct, relying, in principal, on the JP Morgan trader’s statements, and argue, in essence, that the traders’ exchanges related only to their views on the situation of the market, information between potential counterparties with a view to determining whether it would be possible to enter into a trade, or information the communication of which between traders was normal, legitimate and necessary to allow the proper functioning of the EIRD OTC market. Those exchanges did not therefore have the objective of manipulating Euribor or EONIA.

90      The Commission contests the applicants’ arguments relating to the scope of the exchanges at issue and argues that those exchanges clearly show that the JP Morgan trader participated in at least one of the categories of infringing conduct identified in recitals 358 and 359 of the contested decision.

(i)    The exchanges of 27 September 2006

91      In the first place, the Commission found that the bilateral exchanges between the Deutsche Bank trader and the JP Morgan trader on 27 September 2006 (recitals 160 to 164 of the contested decision) came within the scope of the conduct referred to in recitals 358(a), (b) and (e) and 359 of the contested decision.

92      In that regard, the applicants submit, in essence, that the traders were merely sharing their views on where EONIA was trading and whether that was being accurately reflected in the Euribor fixings having regard to the expected relationship between the two indexes.

93      The Commission disputes the applicants’ interpretation of the exchanges at issue.

94      Reading the transcripts of the exchanges of 27 September 2006 submitted before the General Court and placing them in the context of other evidence makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns those exchanges.

95      First, as the Commission found, in essence, in recital 162 of the contested decision, during the exchange on that date, the Deutsche Bank trader unambiguously asked the JP Morgan trader the direction of his exposure to FRAs linked to the 3m (three-month) Euribor and suggested that he make a high submission if it was in his interest to do so (‘amigo which way are u in 3 mths oct fras ? if u receiving libor, I hope u gonna put high fixings’), to which the JP Morgan trader responded that he now had a neutral position for the 3m Euribor (‘now I am neutral 3m fixing’) and stated his preferences concerning the Euribor and EONIA tenors (‘like low 1s fixing n high 6 fixings, neutral eonia till end of res …’). That exchange therefore corresponds to the conduct referred to in recital 358(a) and (b) of the contested decision, as the applicants essentially concede.

96      The applicants submit that such exchanges were not unusual or illegitimate and that by stating that he ‘like[d]’ low 1-month fixings and high 6-month fixings, and that he was neutral on EONIA, the JP Morgan trader was merely giving his opinion of the market and communicating the general direction of his position with a view to a potential contract or hedge. In the light of how the exchange at issue played out overall, and in particular given the questioning from the Deutsche Bank trader on the direction of the JP Morgan trader’s trading position and the suggestion that he ‘put’ a high Euribor submission, that interpretation by the applicants is not plausible.

97      Furthermore, it is true that certain parts of that exchange were, as the applicants claim, an exchange of views of the market situation. However, the fact that, during that very conversation, the traders also exchanged their views on the market situation is not such as to call into question the interpretation of other parts of that exchange, such as the Commission’s interpretation upheld in paragraph 95 above.

98      Second, during that very exchange, the JP Morgan trader asked the Deutsche Bank trader what his position was (‘what do u ha[v]e’) and stated that he was going to check what level his treasury intended to submit for the 3-month rate the following day (‘think will check where we r gonna put 3s tom’). That statement must be interpreted, as the Commission does, in essence, in recital 163 of the contested decision, as a promise by the JP Morgan trader in response to the suggestion by the Deutsche Bank trader earlier in the conversation (‘I hope u gonna put high fixings’) to approach his treasury with regard to the level of his bank’s submission for the 3m Euribor the following day.

99      In that regard, first, there is no justification for the applicants’ claim that the JP Morgan trader had failed to interpret the Deutsche Bank trader’s statement ‘I hope u gonna put high fixings’ as a request by him to contact his treasury with a view to asking for a fixing that was in the latter’s interest and that, by stating that he was going to ‘check’ the level of his bank’s submission for the 3m Euribor the following day, the JP Morgan trader had merely intended to ask for a submitter’s opinion of the market situation. Read in the context of the Bank E communications, which show that the traders were in the habit of entering into exchanges on their preferences on the fixing level with a view to coordinating the Euribor submissions of their respective banks according to their own interests, and of the exchange of 29 September 2006 (see paragraph 120 below), there is good reason for the finding that the Deutsche Bank trader turned to the JP Morgan trader with a view to asking him to contact his treasury in order to obtain a submission in his interest, as the Commission has claimed. Further, in the light of the exchange of 29 September 2006, it is appropriate to find that the JP Morgan trader had understood the sense of the Deutsche Bank trader’s request and, by answering that he was going to ‘check’ his bank’s submission, he declared that he wanted to make contact at least with the aim of suggesting to the submitter that the submission should be made in the direction sought by the Deutsche Bank trader. That exchange therefore comes within the scope of the conduct referred to in recital 358(e) of the contested decision, as the Commission found.

100    Moreover, the exchange between the traders that occurred a few minutes later on the level of Deutsche Bank’s submission on that day comes within the scope of the conduct referred to in recital 359 of the contested decision, namely conduct with the aim of monitoring the behaviour of members of the cartel.

101    The applicants’ arguments concerning the scope of the exchanges of 27 September 2006 must therefore be rejected as unfounded.

(ii) The exchanges of 28 September 2006

102    In the second place, the Commission found that the bilateral exchanges between the Deutsche Bank trader and the JP Morgan trader on 28 September 2006 (recitals 165 to 169 of the contested decision) came within the scope of the conduct referred to in recitals 358(a), (b), (d), (e) and (f) and 359 of the contested decision.

103    The applicants submit, in essence, that, in the context of the exchanges of 28 September 2006, the traders were merely sharing their views on the Euribor submissions, which were out of step with developments in the market, and speculating on the submissions of their respective banks.

104    The Commission disputes the applicants’ interpretation of the exchanges at issue.

105    Reading the transcripts of the exchanges of 28 September 2006 submitted before the General Court and placing them in the context of other evidence makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns those exchanges.

106    First, as the Commission found in recital 167 of the contested decision, it is clear from the exchanges of 28 September 2006 that the Deutsche Bank trader revealed to the JP Morgan trader his preference for a high fixing (‘hope you gonna put a high fix if it suits’) and that the traders were thus considering the possibility of aligning one of the future Euribor submissions (‘if it suits’), which corresponds to the conduct referred to in recital 358(a) and (d) of the contested decision.

107    Second, the JP Morgan trader revealed his neutral trading position with regard to the fixing of the 3m Euribor on that day (conduct coming within the scope of recital 358(b) of the contested decision) and stated that he was going to contact his bank’s cash desk in order to ‘check’ the level at which the submitters intended to make their submission (‘amigo will check with cash here think they go 42’). According to the exchange of 27 September 2006 (see paragraphs 98 and 99 above), in the context of the clear statement by the Deutsche Bank trader expressing his preference for a high fixing (‘hope you gonna put a high fix’) and in the context of the Bank E communications to which the Commission refers in recital 169 of the contested decision, and of the exchange of 29 September 2009 (see paragraph 120 below), the statement of the JP Morgan trader that he would ‘check’ his bank’s submission must be understood as meaning that the latter states that he intends to make contact with his treasury at least with the aim of suggesting that the submitter make a submission in the direction preferred by the Deutsche Bank trader. That exchange therefore comes within the scope of the conduct referred to in recital 358(e) of the contested decision, as the Commission found.

108    The exchange between the two traders that took place on that day at 10.13 after the rate was fixed for that day tends to show that the traders at issue and their respective cash desks had acted in concert with regard to their Euribor submissions on that day and that such exchanges were routine, as is also clear from recital 168 of the contested decision. After the Deutsche Bank trader complained about the outcome of his cash desk’s submissions, the JP Morgan trader showed his surprise at the fact that Deutsche Bank’s submission was not in the Deutsche Bank trader’s interest, which had happened to him previously when he was a trader at Bank E, but was less common at JP Morgan (‘… cannot believe that ur cash desk is agst u mind u in citi that was case with me here better’). That exchange also comes within the scope of the conduct referred to in recital 359 of the contested decision, namely conduct with the aim of monitoring the behaviour of members of the cartel.

109    Contrary to what is claimed by the applicants, it is not clear from that exchange that the JP Morgan trader did not accept the Deutsche Bank trader’s request for a high fixing or distanced himself therefrom. The JP Morgan trader’s statement that he was ‘neutral’ cannot in any way be interpreted as a refusal to accept the Deutsche Bank trader’s request, but instead reveals the neutral position he held on that date, as the Commission found in recital 167 of the contested decision.

110    Third, during the exchanges of 28 September 2006, the traders also communicated the levels at which they thought the submissions would be made by the treasuries of their respective banks, which was acknowledged by the applicants. However, the applicants dispute that those predictions were based on things other than mere expectations linked to the perceptible development of the market, which are shared by all traders.

111    In that regard, the Commission correctly relies on various pieces of evidence, including exchanges between the JP Morgan traders and their treasury, referred to in footnote 189 to the contested decision and recitals 265 and 267 of that decision, and on the Bank E communications, from which it is clear that the JP Morgan and Deutsche Bank traders were in ‘habitual’ contact with their treasuries. In those circumstances, it is reasonable to find, as the Commission did, that the statements regarding the level of the submissions by their banks are based on prior contact with the cash desks and not only on the personal opinions of traders founded on their assessment of the development of the market. That interpretation of the exchange at issue is confirmed by the fact that the JP Morgan trader explicitly asked the Deutsche Bank trader where the members of his desk saw the level of 3m Euribor being the next day (‘where do you[r] guys see it?’ and ‘ur cash guy go 43?’) (see recital 168 of the contested decision). Contrary to what is claimed by the applicants, according to the case-law referred to in paragraph 70 above, the fact that some of those exchanges took place outside of the period of the infringement for which JP Morgan was found liable does not preclude the Commission from relying on that fact to confirm its interpretation of the exchanges of 28 September 2006.

112    In any event, even if those statements in particular were not based on previous contact with the cash desks and result from the mere personal speculations of the traders, as the applicants claim, it is clear that, by promising to ‘check’ the level of its treasury’s submission, the JP Morgan trader intended to remove the uncertainty as to the level of the submission that the treasury intended to give.

113    Lastly, that statement by the JP Morgan trader that he intended to ‘check’ the level of his treasury’s submission must also be interpreted, as the Commission proposes, as an implicit promise by him to report back to the Deutsche Bank trader on the outcome of those ‘checks’ and therefore on the response that he will have received from the submitter. It is clear from the above that the Commission was fully entitled to find in the contested decision that the exchange at issue comes within the scope of the conduct referred to in recital 358(f) of that decision.

114    The applicants’ arguments concerning the scope of the exchanges of 28 September 2006 must therefore be rejected as unfounded.

(iii) The exchange of 29 September 2006

115    In the third place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 29 September 2006 (recitals 170 to 172 of the contested decision) came within the scope of the conduct referred to in recitals 358(a) and (b) of the contested decision.

116    The applicants submit that, contrary to the finding in recital 172 of the contested decision, the JP Morgan trader merely commented ‘in a non-serious fashion’ on Deutsche Bank’s submission the previous day without any intention whatsoever of asking the Deutsche Bank trader to send him information on the Euribor submission that Deutsche Bank would make the following day. The Deutsche Bank trader would not have perceived that comment to be such a request. According to the applicants, his response, to the effect that he was not ‘in charge’, contradicts the Commission’s suggestion that the Deutsche Bank trader was prepared to seek to influence his bank’s Euribor submissions to serve the interests of the JP Morgan trader.

117    The Commission disputes the applicants’ interpretation of the exchange at issue.

118    Reading the transcript of the exchange of 29 September 2006 submitted before the General Court and placing it in the context of other evidence, in particular the exchanges of 27 and 28 September 2006, makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that exchange.

119    It is true that the JP Morgan trader starts the discussion in a joking tone, by referring to the Deutsche Bank trader in a non-serious manner by the nickname ‘[s]poofmaster’. By doing so, he suggests, in the light of the conversation the day before (see the statement of the Deutsche Bank trader during the exchange of 28 September 2006 ‘am hoping for [3.]425 or [3.]43’), that the latter had ‘spoofed’ him, that is to say tricked him, by sending incorrect information on the level of his bank’s submission. The question regarding the level of the submission which follows (‘are you going for 3.40 fixing tom 3S?’) must therefore be understood as the JP Morgan trader mocking the Deutsche Bank trader, since his bank’s submission the previous day had not been in the latter’s interests. The fact that that question was not a serious request for the likely level of Deutsche Bank’s submission the following day, contrary to what the Commission found in paragraph 172 of the contested decision, is supported by the Deutsche Bank trader’s response, since he complains about the conduct of his bank’s submitters and declares that ‘this crap’ is damaging to him (‘what can i do ? i’m not in charge of this crap – it hurting me’).

120    However, first, that exchange, when read together with the exchanges of 27 and 28 September 2006, forms part of a body of evidence that allows the conclusion to be reached that the traders took the view that, according to their interests, they could benefit from working in coordination with their treasuries as to the submissions to the Euribor panel, although such ‘collaboration’ was unfruitful on 28 September 2006 (see to that effect recital 172 of the contested decision) (see paragraph 303 below). Moreover, to the extent that the Deutsche Bank trader expresses his dissatisfaction with the level of his bank’s submission, the exchange of 29 September 2006 permits the finding that he at least attempted, albeit unsuccessfully, to influence the level of his bank’s submissions for 28 September 2009.

121    Second, later in the exchange, the JP Morgan trader shared with the Deutsche Bank trader his surprise as to the slow pace at which the ‘situation’ develops and indicated that he hoped that the following week ‘they’ reach the level ‘they’ should be at (‘surprised how slowly it moves hope we get were we should be by end next week’), as the Commission found in recital 170 of the contested decision. When placed in the context of the other exchanges, that comment from the JP Morgan trader must be understood as a communication of not publicly known or available information on preferences for a high 3m fixing, as expressed by the Deutsche Bank trader during the exchanges of 27 and 28 September 2006 and, implicitly, during the exchange of 2 October 2006 (see paragraph 129 below), and on his own preferences and exposures, as revealed during the exchange of 27 September 2006 (see paragraph 95 above).

122    In the light of the foregoing, contrary to what is claimed by the applicants, the exchange of 29 September 2006 is part of the conduct referred to in recitals 358(a) and (b) of the contested decision.

(iv) The exchanges of 2 October 2006

123    In the fourth place, the Commission found that the bilateral exchanges between the Deutsche Bank trader and the JP Morgan trader on 2 October 2006 (recitals 174 to 176 of the contested decision) came within the scope of the conduct referred to in recitals 358(a) and (b) and 359 of the contested decision.

124    The applicants submit that the traders’ observations on the level of the submissions of different banks, in particular Deutsche Bank, were sarcastic. The Commission was allegedly incorrect when it submitted that those exchanges confirmed that the traders were colluding to manipulate the 3m Euribor fixing. Those exchanges also do not constitute evidence that the JP Morgan trader took part in the ‘monitoring’ of the cartel.

125    The Commission disputes the applicants’ interpretation of the exchanges at issue.

126    Reading the transcripts of the exchanges of 2 October 2006 submitted before the General Court and placing them in the context of other evidence makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns those exchanges.

127    First, the Court finds, as the applicants have argued, that the comment from the JP Morgan trader ‘lovely touch from ur cash desk’ and the traders’ observations on the submissions of two other banks to the effect that they were ‘even better’ were sarcastic and were not genuine ‘congratulations’ for a ‘great submission’ by Deutsche Bank. The applicants argue, without being challenged in that regard by the Commission, that Deutsche Bank’s submission on that day was low (3.41) and those of other banks referred to by the traders were lower still (3.40). With regard to the Deutsche Bank trader’s ongoing preference for a high fixing between 3.425 and 3.43, as expressed during the exchanges of 27, 28 and 29 September 2006, those low submissions were not in his interest with the result that they could not genuinely be regarded by the traders as a ‘lovely touch’.

128    However, that does not contradict the Commission’s conclusion that that exchange comes within the scope of the conduct referred to in recital 359 of the contested decision because the traders clearly discussed, albeit with a sarcastic or mocking tone, banks’ submissions to the Euribor panel. With regard to the fact that, during the exchanges of 27 and 28 September 2006, the Deutsche Bank trader expressed his preference for a high rate and asked the JP Morgan trader to arrange for his bank to make a high submission, the discussions on the levels of Deutsche Bank’s submissions after fixing are likely to come within the scope of the conduct seeking to monitor the conduct of members of the cartel.

129    Similarly, the rest of the exchange must be regarded as coming within the scope of the conduct referred to in recital 358(a) and (b) of the contested decision. When the JP Morgan trader questioned until when the Euribor rate would stay at a certain level, the Deutsche Bank trader responded, with an element of self-mockery, ‘probably when I’ll have no more fixings’, which must be understood, as the Commission found in footnote 195 to the contested decision, as meaning when he will no longer have trading positions on EIRDs the fixings for which are set according to the 3m Euribor. With regard to the previous exchanges during which the Deutsche Bank trader expressed to the JP Morgan trader his preference for a high 3m Euribor fixing, that comment must be understood as seeking to indicate his ongoing preference for such a high fixing and the direction of his exposure.

130    Without this calling into question the conclusions reached in paragraph 129 above, the Court must find that, contrary to the finding reached by the Commission in recital 176 of the contested decision, that comment does not ‘clearly’ indicate the Deutsche Bank trader’s objective of manipulating the 3m Euribor fixings because, unlike in the exchanges of 27 and 28 September 2006, that exchange does not contain an explicit invitation or request that the JP Morgan trader arrange a high fixing by his treasury. Such a request could, at the most, be regarded as being implicit if the exchange at issue is placed in the context of the exchanges of 27 and 28 September 2006.

131    In the light of the foregoing, contrary to what is claimed by the applicants, the exchanges of 2 October 2006 are part of the conduct referred to in recitals 358(a) and (b) and 359 of the contested decision.

(v)    The exchange of 6 October 2006

132    In the fifth place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 6 October 2006 (recitals 180 to 182 of the contested decision) came within the scope of the conduct referred to in recital 358(b) of the contested decision.

133    The applicants submit that, by that exchange, the two traders at issue were legitimately exploring the possibility of agreeing trades and that the information thus disclosed by the JP Morgan trader related to the general direction of his portfolio.

134    The Commission disputes the applicants’ interpretation of the exchange at issue.

135    Reading the transcript of the exchange of 6 October 2006 submitted before the General Court makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that exchange.

136    It is clear from that exchange that the traders did indeed start their exchange by discussing the possibility of agreeing a trade. However, they moved on to discussing their respective positions and trading strategies, as the Commission found in recital 180 of the contested decision, without that discussion having any connection to the possibility of agreeing a trade discussed beforehand. The Deutsche Bank trader suggested to the JP Morgan trader the possibility of hedging his FRA position with March 2007 IMM futures, to which the latter responded that he had reduced his exposure to FRAs (‘i had this position for a while unwinding most of the risk at the mom’) and disclosed his trading position on March 2007 IMM futures which anticipates a narrowing of the gap between the EONIA and Euribor rates in March 2007 (‘ads told u this mng beside think fra=-eonia spread in mar7 quite wide so reduced my shoret euribor agst paying a little of this my book never looked this tifdy’), as is essentially acknowledged by the applicants.

137    They submit, however, that the information disclosed by the JP Morgan trader was not sufficiently precise, but was restricted to what was necessary to explain the reasons why the latter was not prepared to play the role of ‘market maker’ for the Deutsche Bank trader. In that regard, the Court finds that, earlier in the conversation, the Deutsche Bank trader had rejected the possibility of agreeing a trade with the JP Morgan trader by simply stating that he was not interested (‘no spec int amigo’) with no further justification.

138    To the extent that the applicants submit that the information at issue was not sufficiently precise, that argument relates to the question of whether the exchange of such information was sufficiently harmful to competition to be classified as a restriction of competition by object and will be considered in the examination of the third plea.

139    Without prejudice to the above, the applicants’ arguments concerning the scope of the exchange of 6 October 2006 must therefore be rejected as unfounded.

(vi) The exchange of 10 October 2006

140    In the sixth place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 10 October 2006 (recitals 183 to 186 of the contested decision) came within the scope of the conduct referred to in recitals 358(a) and (b) of the contested decision.

141    The applicants submit that the exchange at issue related to the possibility of agreeing a trade and was not a ‘pre-check’ of trading interests before aligning Euribor submissions.

142    The Commission argues that the applicants’ assertions that the exchange at issue had the purpose of establishing whether it would be possible to agree a trade are contradicted by the evidence, including the conversation earlier in the day between the Deutsche Bank trader and the Barclays trader, and by the fact that the Deutsche Bank trader and the JP Morgan trader had, at that time, opposite positions. That exchange allegedly shows clearly that the traders exchanged collusive information on their fixing preferences to determine whether their interests were aligned with regard to how they would want Euribor to move.

143    Reading the transcript of the exchange of 10 October 2006 submitted before the General Court does not make it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that exchange.

144    It is true that, by replying to the Deutsche Bank trader’s question that he had a borrower position for forward rate agreements priced with 1-month Euribor on the October IMM date (‘I am lent 1m fras in October’), the JP Morgan trader disclosed to him information on his trading position.

145    However, the Commission has failed to establish to the requisite standard of proof that the most plausible interpretation of the exchange at issue is that the JP Morgan trader replied while at the same time understanding that the Deutsche Bank trader had approached him with the aim of establishing whether their interests were aligned in order to ask him to arrange a Euribor submission at a higher or lower level.

146    The interpretation of the exchange at issue, as adopted by the Commission in recital 185 of the contested decision, according to which the Deutsche Bank trader had asked the JP Morgan trader about the direction of his trading position ‘most likely’ ahead of a request for a higher or lower ‘fixing’ if they had the same trading interest, is not the only possible interpretation, nor the most plausible, and is not supported by the evidence on which the Commission relies.

147    In that regard, the parties are in agreement that the JP Morgan trader and the Deutsche Bank trader were negotiating trades with each other (see, inter alia, start of the exchange of 6 October 2006, paragraph 136 above, recital 180 of the contested decision). Thus, as the applicants argue, it cannot be accepted that the JP Morgan trader was in a position to determine that, each time the Deutsche Bank trader asked him about his trading position, he was doing so with a view to checking that they had the same interests with the aim of seeking to align their banks’ respective submissions to Euribor rather than with a view to agreeing a trade.

148    With regard to the Commission’s argument that an invitation to agree a trade would necessarily include more details regarding the conditions of such a transaction, that is contradicted, inter alia, by the exchange of 6 October 2006 during which the JP Morgan trader started a discussion with a view to agreeing a trade with a general statement (‘EONIA 1WK [week]’) which was understood by the Deutsche Bank trader as an invitation to agree a trade, which he refused (‘no spec int amigo’) (see recital 180 of the contested decision). The Commission is incorrect in so far as it claims that the traders could not start exchanges with the aim of agreeing a trade with a general statement, in particular with a statement on the general level of their positions subsequently followed by a more precise price quote.

149    The Court cannot endorse the Commission’s argument that the interpretation that it adopted concerning the exchange at issue is borne out by the exchange between the Barclays trader and the Deutsche Bank trader earlier in the day in which the latter promises to approach the JP Morgan trader to ask him for a fixing that is in a direction favourable to the Deutsche Bank trader and the Barclays trader.

150    First, while that exchange may indeed show the Deutsche Bank trader’s intention to approach the JP Morgan trader to ask him for a fixing that is in a direction favourable to the Deutsche Bank trader and the Barclays trader, it does not support the Commission’s argument regarding the infringing conduct of the JP Morgan trader concerning the fact that the latter did not participate in that exchange and therefore could not determine the Deutsche Bank trader’s real intention from his question. It is therefore no less plausible to find that the latter revealed the direction of his trading position while understanding that he had been approached with the aim of agreeing a trade.

151    Second, the fact that the JP Morgan trader was able to understand the Deutsche Bank trader’s question as a prelude to the agreement of a trade is not contradicted, contrary to what is claimed by the Commission, by the fact that those traders had opposing positions. The JP Morgan trader was not aware of the fact that they had diverging positions. On the contrary, in the light of the Deutsche Bank trader’s response (‘bad luck okay amigo’), he could reasonably have understood that his interests and those of the Deutsche Bank trader were aligned and that, for that reason, a hedging trade was out of the question. His response ‘let’s hope this 1m euribor stay nice n low’ is therefore actually consistent with the applicants’ argument that the JP Morgan trader had simply understood that the Deutsche Bank trader had the same interest in a low 1m Euribor fixing and therefore that he believed that the discussion related to the possibility of agreeing such a trade.

152    The most plausible interpretation of the exchange at issue is therefore not – contrary to the finding in recital 185 of the contested decision – that the JP Morgan trader had understood the generic question from the Deutsche Bank trader regarding his trading position as a pre-check of his trading interest before a request for a high fixing on the Euribor rate rather than as having been asked with a view to agreeing a trade, even if that exchange must be interpreted in the light of the body of evidence that includes, inter alia, the Bank E communications (see recital 186 of the contested decision). In those circumstances, the JP Morgan trader cannot be regarded as having communicated his trading position to the Deutsche Bank trader with the objective of aligning the Euribor submissions of their respective banks. In the light of the burden of proof incumbent on the Commission and since, in application of the case-law recalled in paragraph 87 above, it is the applicants who must be given the benefit of any doubt as to the interpretation of that exchange, it is appropriate to conclude that the Commission has failed to establish the accuracy of the facts alleged on the basis of which the latter found that the exchange of 10 October 2006 comes within the scope of the conduct referred to in recital 358(a) and (b) of the contested decision.

153    The applicants’ arguments concerning the scope of the exchange of 10 October 2006 are therefore well founded.

(vii) The exchange of 25 October 2006

154    In the seventh place, the Commission found that the bilateral exchange between the Barclays trader and the JP Morgan trader on 25 October 2006 (recitals 194 to 196 of the contested decision) came within the scope of the conduct referred to in recitals 358(a) and (g) of the contested decision.

155    To contest the classification of the exchange at issue, the applicants submit that the Commission has failed to show that the term ‘fixing’ used by the Barclays trader during the exchange of 25 October 2006 referred to Euribor fixings. In any event, the JP Morgan trader allegedly understood the Barclays trader’s offer of ‘anything you need’ as regards ‘fixing’ levels to be a joke rather than an offer to influence the Euribor submissions of Barclays and, in any event, did not accept that offer. In addition, the Commission did not view that exchange as being anticompetitive given that, in recital 487 of the contested decision, it discontinued its allegations of a bilateral infringement by JP Morgan with banks other than Deutsche Bank.

156    The Commission disputes the applicants’ interpretation of the exchange at issue.

157    Reading the transcript of the exchange of 25 October 2006 submitted before the General Court and placing it in the context of other evidence makes it possible to confirm, at least in part, the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that exchange.

158    As a preliminary point, the Court notes that the Commission did find the exchange at issue to be anticompetitive conduct that formed part of the single and continuous infringement in which JP Morgan participated, as is clear from recital 358(a) and (g) and recital 487(a) of the contested decision, and referred to the conduct described in recitals 194 to 196 thereof. The fact that, in recital 487 of the contested decision, the Commission refers, clearly in error, only to instances of bilateral contact between the JP Morgan trader and the Deutsche Bank trader in order to specify that they constitute an infringement in themselves, does not undermine that conclusion based on a reading of the contested decision as a whole.

159    It should then be noted that, during the exchange at issue, the Barclays trader told the JP Morgan trader not to ‘hesitate to ask’ for anything he needed, such as high, low or normal fixings (‘do not hesitate to ask anything u need, high fixing low fixing normal fixing …’) and thereby made him an express offer to do him a favour by influencing the Euribor submissions according to the interests of the JP Morgan trader, with the result that that conduct must be regarded as coming within the scope of recital 358(a) of the contested decision. The fact that the JP Morgan trader did not explicitly accept that proposal does not call that conclusion into question since there is no finding in the contested decision that that exchange constituted a direct request that rates be manipulated, which would have been accepted.

160    The other arguments put forward by the applicants do not make it possible to call that conclusion into question.

161    As regards, first, the argument that it has not been shown that the proposal from the Barclays trader relates to Euribor ‘fixings’, the applicants do not propose an alternative interpretation. In the light of the content of the other communications at issue (see, inter alia, the exchanges with the Deutsche Bank trader of 27 and 28 September 2006 and 26 October 2006 (with regard to the latter exchange see paragraph 170 below)), it seems more than likely that the term ‘fixing’ corresponds to Euribor ‘fixings’. The fact that, by responding to that proposal ‘ahahahahah just a little effort in below 1m’, the JP Morgan trader was referring to the liquidity for tenors of less than 1 month, which is accepted by the Commission (see recital 196 of the contested decision), does not undermine the interpretation given to the term ‘fixing’ used by the Barclays trader when he made an offer to the JP Morgan trader.

162    Second, the applicants’ argument that the JP Morgan trader had not understood that to be an offer to make future Euribor submissions at pre-accepted levels, but rather interpreted it to be a joke, is unconvincing. As the Commission found in recital 196 of the contested decision, the JP Morgan trader shows no surprise vis-à-vis the Barclays trader’s proposal and even responds to that proposal, albeit with regard to his liquidity needs. Moreover, after the Barclays trader responded to that with the phrase ‘i will’, the JP Morgan trader thanked him for doing so, which tends to show that he had understood the latter’s request as being genuine and not as a joke.

163    The applicants’ arguments seeking to challenge the finding that the exchange of 25 October 2006 falls within the conduct referred to in recital 358(a) of the contested decision must therefore be rejected as unfounded.

164    In those circumstances, in application of settled case-law according to which, where some of the grounds in a decision on their own provide a sufficient legal basis for the decision, any errors in the other grounds of the decision have no effect in any event on its operative part (see, to that effect and by analogy, judgments of 12 July 2001, Commission and France v TF1, C‑302/99 P and C‑308/99 P, EU:C:2001:408, paragraph 27, and of 12 December 2006, SELEX Sistemi Integrati v Commission, T‑155/04, EU:T:2006:387, paragraph 47), it is not necessary to examine whether the exchange of 25 October 2006 also comes within the scope of the conduct referred to in recital 358(g) of the contested decision.

(viii) The exchange of 26 October 2006

165    In the eighth place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 26 October 2006 (recitals 197 to 200 of the contested decision) came within the scope of the conduct referred to in recital 358(a), (b) and (g) of the contested decision.

166    The applicants submit that that exchange did not have an anticompetitive object since the first part of that exchange related to a trade between the JP Morgan trader and a third party, and the second part related to the possibility of the JP Morgan trader and the Deutsche Bank trader agreeing another trade.

167    The Commission disputes that interpretation of the exchange at issue and claims that it is not credible.

168    Reading the transcript of the exchange of 26 October 2006 submitted before the General Court and placing it in the context of other evidence makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that exchange.

169    First, the parties are in agreement that, during that exchange, the JP Morgan trader asked the Deutsche Bank trader his opinion on the pricing of a trade that the former wanted to agree with a third party. Thus, the traders sent each other detailed information that was not publicly known on pricing strategies for an EIRD, which corresponds to the conduct referred to in recital 358(g) of the contested decision.

170    Second, the applicants acknowledge that, during that exchange, the JP Morgan trader revealed to the Deutsche Bank trader that he had a payer position on 1-month Euribor. He thus revealed the direction of his exposure, which may come within the scope of the conduct referred to in recital 358(b) of the contested decision. In addition, by stating that it was not necessary to hurry to balance his portfolio as the fixings were low (‘thise 1s are fixing nice n low … no point rushing to take them back’), the JP Morgan trader implicitly reveals his preference for a low 1m Euribor fixing, which corresponds to the conduct referred to in recital 358(a) of the contested decision.

171    Third, the Deutsche Bank trader suggested to the JP Morgan trader that he revert back to him for his ‘1s fixings’, that is to say 1-month fixings (‘u know where to come to get back some 1S fixings’). To the extent that, after a trade agreed with the third party, the JP Morgan trader had a payer position on 1m Euribor (see recital 197 of the contested decision), which is not disputed by the applicants, that proposal must be interpreted, as the Commission did, as meaning that the Deutsche Bank trader is inviting the JP Morgan trader to ask him for low 1m Euribor submissions that would be aligned with his interests. Such conduct comes within the scope of the conduct referred to in recital 358(a) of the contested decision.

172    Contrary to what is claimed by the applicants, that proposal by the Deutsche Bank trader cannot be interpreted as an invitation to agree a trade so as to balance the JP Morgan trader’s portfolio. The Court notes that, in their bilateral exchanges, the traders often used the term ‘fixing’ as a reference to Euribor fixings, in particular in the exchanges of 27 and 28 September 2006 when the Deutsche Bank trader asked the JP Morgan trader to seek a high Euribor submission (see paragraph 161 above; see also the exchange of 25 October 2006 between the JP Morgan trader and the Barclays trader). In that context, the expression ‘get back … fixings’ cannot be interpreted as an invitation to agree a trade. Moreover, the rejection of that proposal on the ground that the 1m Euribor fixings were, at that moment, low and therefore that the trader did not need them to be changed (see paragraph 170 above) tends to show that the JP Morgan trader specifically understood it to be an invitation from the Deutsche Bank trader to turn to him to ask for Euribor submissions from his bank that were in his interests.

173    The applicants’ arguments concerning the scope of the exchange of 26 October 2006 must therefore be rejected as unfounded.

(ix) The exchange of 8 November 2006

174    In the ninth place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 8 November 2006 (recitals 205 to 207 of the contested decision) came within the scope of the conduct referred to in recital 358(a), (b), (d), (e) and (f) of the contested decision.

175    The applicants do not agree with the Commission’s interpretation of that exchange and submit, in essence, that the traders jokingly exchanged observations, in particular on the level of their respective banks’ submissions.

176    The Commission disputes that interpretation of the exchange at issue and claims that it is not credible.

177    Reading the transcript of the exchange of 8 November 2006 submitted before the General Court and placing it in the context of other evidence makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that exchange.

178    First, the applicants acknowledge that, during the exchange at issue, the two traders expressed their preferences for a low 1m Euribor fixing and that the exchange at issue comes within the scope of the conduct referred to in recital 358(a) of the contested decision. In addition, by stating such preferences for a low 1m Euribor fixing, the traders implicitly revealed to each other the direction of their exposures, which comes within the scope of the conduct referred to in recital 358(b) of the contested decision.

179    Second, the exchange at issue also comes within the scope of the conduct referred to in recital 358(d) of the contested decision. The Deutsche Bank trader asked the JP Morgan trader to make a lower submission (‘amigo put the livbors lower’). Contrary to what the applicants claim, nothing in that exchange indicates that that was a joke.

180    When the JP Morgan trader refers to a relatively high submission (‘jpm set them comparitevlyt high’), that must be understood as meaning that he is revealing to the Deutsche Bank trader that his treasury wished to submit a high fixing, in response to which the Deutsche Bank trader asked him to make a lower submission. In addition, the latter also revealed that his treasury wished to submit a high fixing and that, unfortunately, they would not be helped by them that month (‘[unfortunately] my treasury wants a high libor at the moment so we won[‘]t get help from them this month’). Such an exchange shows unambiguously that the two traders were examining the possibility of aligning a future Euribor submission from their respective banks on the basis of their preferences for a low 1m Euribor fixing.

181    Moreover, the applicants’ argument that that comment had to be understood only as an indication of a difference of opinion between the Deutsche Bank trader and his treasury is not convincing. The fact that the Deutsche Bank trader had specified to the JP Morgan trader that they would not receive ‘help’ from his bank’s treasury ‘this month’ and that the JP Morgan trader wrote to him ‘if i ask they explain the regulation [and] the law [and] the conflict of [interest] […] we were saying at other banks … there is big higher degree of fe flexibility so to speak’ tends to show that the two traders were trying to align the Euribor submissions of their respective banks by potentially making contact with their cash desks.

182    Third, the Commission was also fully entitled to find that the exchange of 8 November 2006 was part of the conduct referred to in recital 358(e) and (f) of the contested decision. The traders’ statements that their treasuries would submit high 1m Euribor fixings (‘jpm set them comparitevlyt high’, ‘unfortunately my treasury wants a high libor’) must be regarded as being an exchange of sensitive information regarding the direction envisaged by their respective treasuries concerning the fixing, that information having been obtained in the context of regular contact between traders and their treasuries.

183    The applicants’ argument that the Deutsche Bank trader’s comment implied that his treasury might give higher submissions than those that the traders thought justified is unconvincing. That exchange does not appear to relate in any way to the opinions or views of the two traders. The two comments quoted in paragraph 182 above are worded as assertions and no word or words in that exchange give the impression that they are suppositions or opinions.

184    Moreover, it can reasonably be concluded, in the light of the body of evidence that includes the Bank E communications and the exchanges between the JP Morgan trader and his bank’s submitter (see paragraph 111 above) that that revelation of the level of JP Morgan’s submission follows prior contact between the JP Morgan trader and his cash desk. Next, the fact that he states that ‘if [he] ask[s] they explain the regulation [and] the law [and] the conflict of [interest]’ shows moreover that the JP Morgan trader took the view that he was not able to influence, at that moment, his treasury in the desired direction, which is subsequently confirmed by the rest of the conversation when he states ‘we were saying at other banks … there is big higher degree of fe flexibility so to speak’ and ‘u tell my cash desk’ in response to the insistent request from the Deutsche Bank trader for a low 1m Euribor submission. Contrary to what the applicants submit, that part of the exchange of 8 November 2006 shows that, prior to his exchange with the Deutsche Bank trader, the JP Morgan trader had spoken with his bank’s submitter about the level of that bank’s submission and that he was able to relay his bank’s intention to submit a relatively high level to the Deutsche Bank trader.

185    Consequently, the applicants’ arguments concerning the scope of the exchange of 8 November 2006 must be rejected as unfounded.

(x)    The exchange of 13 November 2006

186    In the tenth place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 13 November 2006 (recitals 210 to 212 of the contested decision) came within the scope of the conduct referred to in recital 358(g) of the contested decision.

187    The applicants submit that nothing in the exchange at issue makes it possible to conclude that there was an agreement on the levels of spreads. Such an agreement would require, as a minimum, identification of a particular product type, maturity and level of spread. The exchange at issue relates solely to the publication of indicative prices on brokers’ screens, which is the subject of bilateral negotiations before a trade is agreed.

188    The Commission disputes that interpretation of the exchange at issue.

189    Reading the transcript of the exchange of 13 November 2006 submitted before the General Court and placing it in the context of other evidence makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that exchange.

190    The parties agree that, during the exchange of 13 November 2006, the Deutsche Bank trader and the JP Morgan trader agreed to stop ‘supporting spreads in the bookies’, or brokers (‘we should stop making spread prices in the bookies as it is becoming ridiculous’, ‘happy to just hit them than supporting them’, ‘let’s stop supporting the spreads in the bookie’, ‘agree amigo will not support them’). The applicants do not dispute that the traders did discuss ‘spreads’, which is understood to mean ‘bid-ask spreads’, as the Commission found in recital 212 of the contested decision.

191    It is clear from recital 36 of the contested decision that spreads are used for pricing and for the appreciation and the quotation of financial products. The applicants also do not dispute the fact, as referred to by the Commission in recital 36 of the contested decision, which was based on a statement by Bank B, that a collective effort in determining spreads can affect the transaction price of a trade.

192    The Court finds, as follows from recital 301 of the contested decision, that the exchange of 13 November 2006 must be read in the context of the exchange of 14 March 2007 between the JP Morgan trader and the Deutsche Bank trader on brokerage costs (see paragraphs 249 to 251 below).

193    In view of that item of evidence, the exchange of 13 November 2007 must be regarded as relating to a common approach of the Deutsche Bank trader and the JP Morgan trader seeking to modify their EIRD pricing strategy with regard to transactions concluded via brokers, that is to say no longer accepting the level of the spreads proposed by brokers, and therefore to reduce the revenues or margins of brokers. As the Commission claims, such an agreement has an influence on the trading revenue of traders as compared with that of brokers. The exchange of 13 November 2007 therefore constitutes an exchange of not publicly available information on the pricing strategies of EIRDs within the meaning of recital 358(g) of the contested decision.

194    The applicants’ interpretation of the exchange of 13 November 2006 is not more plausible than the interpretation adopted by the Commission and upheld in paragraph 193 above. The wording itself of the exchange, and in particular the proposals by the JP Morgan trader when he states that he is ‘happy to just hit them than supporting them’, is not consistent with the applicants’ argument that the traders had agreed on an approach seeking not to make available indicative prices on broker screens in order to limit the latter ‘free-riding’. The applicants support their interpretation of the exchange at issue solely by reference to the witness evidence provided by the JP Morgan trader. As is clear from paragraph 60 above, the probative value of that evidence is low, with the result that it does not call into question the scope of the exchange as found by the Commission and which is supported by a body of evidence.

195    Consequently, the applicants’ arguments seeking to challenge the finding that the exchange of 13 November 2006 comes within the scope of the conduct referred to in recital 358(g) of the contested decision must therefore be rejected as unfounded.

(xi) The exchanges of 24 November 2006

196    In the eleventh place, the Commission found that the bilateral exchanges between the Deutsche Bank trader and the JP Morgan trader on 24 November 2006 (recitals 220 to 222 of the contested decision) came within the scope of the conduct referred to in recital 358(g) of the contested decision.

197    The applicants submit that the exchanges at issue arose in the legitimate context of the discussion of a potential trade. The Commission was also incorrect when it found that the JP Morgan trader had disclosed to the Deutsche Bank trader his pricing strategy or pricing intentions, whereas he was giving only a ‘broad indication’ of factors relevant to pricing on the basis of certain assumptions and did so in the hope of convincing the latter to agree a trade. Such information did not therefore convey his real price.

198    The Commission disputes that interpretation of the exchanges at issue and claims, in essence, that it is not credible.

199    Reading the transcripts of the exchanges of 24 November 2006 submitted before the General Court makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns those exchanges.

200    First, contrary to what is submitted by the applicants, the exchanges at issue are not part of a potential trade between traders. In response to a request for an opinion on pricing for a specific product that the Deutsche Bank trader sent to the JP Morgan trader, the latter made sure to find out whether the Deutsche Bank trader was interested in a price in the context of a transaction or merely an opinion (‘do you a px or an [opinion] amigo?’). The Deutsche Bank trader clearly stated that he was interested in an opinion and therefore not in a price for a potential trade.

201    Second, as the Commission found in recital 222 of the contested decision, the JP Morgan trader provided the Deutsche Bank trader with precise information, including his view on the mid and the level of the spread he would charge, on the price of a specific type of product (1*2 FRA) and size of trade (for a notional amount of EUR 100 billion). Moreover, the applicants’ argument that the hypothetical price did not reflect the JP Morgan trader’s pricing intentions or strategy is not convincing since the latter clearly stated both his view on the mid (‘1*2 is more like 65.5’) and the minimum level of the spread (‘quote minimum “1tic” [basis point] spread’) which he sought on the basis of the scenario put forward by the Deutsche Bank trader, which therefore constitutes a pricing intention. Furthermore, the fact that he is not in agreement with certain parameters in the scenario provided by the Deutsche Bank trader (such as the mid, which he thinks is incorrect) is unimportant since he still provides the latter with precise information on the price of a type of product with a certain transaction size.

202    Third, the JP Morgan trader stated that he was providing that information solely for the Deutsche Bank trader (‘amigo only for u …’), which clearly means that the JP Morgan trader was not disclosing that information to the market, as is highlighted, in essence, in recital 222 of the contested decision. That is, therefore, not publicly known or available information.

203    The applicants’ complaints concerning the scope of the exchanges of 24 November 2006 must therefore be rejected as unfounded.

(xii) The exchange of 18 December 2006

204    In the twelfth place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 18 December 2006 (recitals 230 to 234 of the contested decision), read in the light of the exchange of 15 December 2006 between the latter and his bank’s submitter, came within the scope of the conduct referred to in recital 358(a) and (b) and recital 359 of the contested decision.

205    The applicants submit that, during the discussion of 15 December 2006, the JP Morgan trader and that bank’s submitter were speculating only on the possible reasons for the high price for overnight cash. They claim that that discussion has, therefore, no bearing on the discussion between the JP Morgan trader and the Deutsche Bank trader of 18 December 2006, during which the traders commented only subsequently on the level of that day’s fixing and the consequences it had on them, which was in no way anticompetitive.

206    The Commission argues that it is evident from the exchange of 15 December 2006 that the JP Morgan trader was clearly aware of a plan to manipulate the fixing on 18 December 2006, in which the Deutsche Bank trader, inter alia, was involved, and that he followed up with the latter during the conversation on 18 December 2006 to check whether he was happy with the outcome of the fixing.

207    In the first place, to the extent that the exchange of 15 December 2006 may prove relevant, as a piece of evidence forming part of a body of evidence, in the context of the examination of whether the JP Morgan trader’s alleged conduct is anticompetitive, it is appropriate to consider the interpretation of that exchange adopted by the Commission and contested by the applicants.

208    During the exchange of 15 December 2006, the JP Morgan trader and his submitter initially discussed the unusually high price of overnight cash, as the applicants submit. However, as the Commission correctly found in recital 232 of the contested decision, the JP Morgan trader then stated to his submitter that Deutsche Bank and other banks were playing a ‘game’ consisting of ‘forcing fixings higher’ as they had very large 1-month and 3-month Euribor positions settling on Monday, 18 December 2006 (‘well reality is most people have v large dfixing 1s n espopecially 3s on Monday n they want to force fixings higher, it is just this game they r playing, mkt will look different after imm roll’). The JP Morgan trader also added that Deutsche Bank had high 3-month fixings for at least a week (‘DB has had 69 gfixing for at least a week in 3s which is a joke/disgrace’) and that some ‘smart fellows’ had joined them (‘today couple more smart fellowsd join them’), to which the submitter responded that that it was possible that they had made the same submission (‘well i think we might have put 6369 as well’).

209    In that regard, the Court finds that the reference to a ‘game’ to force fixings higher must be understood as a reference to attempts to raise the 3m Euribor rate on 18 December 2006. The reference by the JP Morgan trader to very large 1-month and 3-month fixings and to Deutsche Bank’s submission for the 3-month rate, and by the JP Morgan submitter to submissions by that bank for the 1-month and 3-month Euribor rates make it possible for the Court to find, as the Commission submits, that that part of the exchange related to Euribor rates and not to EONIA rates, as the applicants claim. That conclusion is not called into question by the fact, relied on by the applicants, that less than an hour later, the exchange between the JP Morgan trader and his submitter is followed by an exchange concerning theories that could explain the high level of EONIA.

210    In the second place, reading the transcript of the exchange of 18 December 2006 submitted before the General Court, read in the light of the exchange of 15 December 2006, makes it possible to confirm, at least in part, the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that first exchange.

211    In that regard, the Court notes, as is clear from recital 230 of the contested decision, that during the exchange of 18 December 2006 the traders mutually asked each other whether they were happy with the level of the 3m Euribor fixing on that day. In addition, the JP Morgan trader added that he was satisfied with it, even though his trading position was small, and that at least he did not have an opposite interest so he did not lose money.

212    The Court finds, as the Commission did, that, when the JP Morgan trader asked the Deutsche Bank trader whether he was happy with the fixing that day, he was monitoring the action of manipulating the 3m Euribor rate on 18 December 2006, within the meaning of recital 359 of the contested decision, of which he was aware or of which he had strong suspicions at least, as is clear from the exchange of 15 December 2006 (see paragraphs 208 and 209 above).

213    Similarly, by confirming that they were happy with the level of the day’s fixing, the traders have implicitly revealed their trading positions within the meaning of recital 358(b) of the contested decision, albeit with regard to positions that had already been unwound on that day.

214    In the light of the foregoing, the Court finds that the exchange of 18 December 2006 is part of the conduct referred to in recitals 358(b) and 359 of the contested decision. In those circumstances, in application of the case-law referred to in paragraph 164 above, there is no need to examine whether that exchange also comes within the scope of the conduct referred to in recital 358(a) of the contested decision.

(xiii) The exchanges of 4 January 2007

215    In the thirteenth place, the Commission found that the bilateral exchanges between the Deutsche Bank trader and the JP Morgan trader on 4 January 2007 (recitals 239 to 242 of the contested decision) came within the scope of the conduct referred to in recital 358(b) of the contested decision.

216    The applicants submit that, during that exchange, the traders expressed theories on potential variations to the ECB’s rates as well as a potential timeline for the increases to those rates during the first half of 2007 and discussed the Deutsche Bank treasury’s perceived ability to push the cash market up or down by taking advantage of its size where liquidity was tight. The two traders revealed nothing more than the general direction of their portfolios.

217    The Commission disputes the applicants’ interpretation of the exchange at issue.

218    Reading the transcripts of the exchanges of 4 January 2007 submitted before the General Court makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns those exchanges.

219    First of all, the Court notes that the applicants acknowledged, in answer to the questions put by the Court at the hearing, that the ECB rates and any potential variation in them are not explicitly referred to in the exchanges of 4 January 2007, as the Commission found in recital 241 of the contested decision. According to the applicants, that information is merely the background for that conversation since the traders took into account their forecasts concerning the development of the ECB rates in their trading strategy.

220    Next, the Court finds that, during the exchange at 15.14, the Deutsche Bank trader asked the JP Morgan trader his opinion on Euribor rates (‘wot you think of euribors’), to which the latter replied by revealing his precise trading strategy for the coming months (‘well I am lent may short mar calls and have my usual put condor in june dv01 long’, that is to say he had a long (borrower) position for EIRDs maturing in May and a short (seller) position for call options on Euribor on the March 2007 IMM date and another position for the month of June). Additionally, by answering ‘no’ to the JP Morgan trader’s question as to whether he had a short position for March, and by confirming that he had bought some EIRDs linked to the March Euribor (‘I bgt [bought] some yesterday’), the Deutsche Bank trader revealed to the JP Morgan trader that he had a long position on Euribor futures with a fixing date in March 2007. The fact that, in establishing their trading strategy, the traders took into account their expectations of how the ECB rates would develop (see paragraph 219 above) does not in any way mean that they did not positively reveal the trading positions that they held in their portfolios.

221    Lastly, the two traders also discussed their views on the risks associated with those trading positions (‘i think it’s brave to be lent may’; ‘well amigo it is a much softer version of lent feb at least can sell some march’; ‘dont see much value in may to be honest’), as the Commission found in recital 241 of the contested decision.

222    The applicants’ arguments concerning the scope of the exchanges of 4 January 2007 must therefore be rejected as unfounded.

(xiv) The exchanges of 8 January 2007

223    In the fourteenth place, the Commission found that the bilateral exchanges between the Deutsche Bank trader and the JP Morgan trader on 8 January 2007 (recitals 243 to 245 of the contested decision) came within the scope of the conduct referred to in recital 358(b) of the contested decision.

224    The applicants submit that those exchanges were merely a general discussion about the market, resulting from the traders’ uncertainty as to when the ECB would next increase its rates. They argue that the discussion revealed the trading position of those two traders only in very general terms and the information disclosed would not allow them to predict the other’s future trading activity. Additionally, that information would have been of only limited interest since that discussion took place three days before the next meeting of the ECB, at which the ECB decided not to increase its rates in February.

225    The Commission disputes the applicants’ interpretation of the exchanges at issue.

226    Reading the transcripts of the exchanges of 8 January 2007 submitted before the General Court makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns those exchanges.

227    First, no reference to the date of the ECB’s next increase of its rates is explicitly discussed in that exchange, and such increase may, at the most – as was the case on 4 January 2007 (see paragraph 219 above) – be the ‘background’ for the exchange of 8 January 2007.

228    Second, the JP Morgan trader clearly revealed his trading position in May, June and September to the Deutsche Bank trader by stating ‘I like it sqrd [squared] as well amigo maybe just little lent May eonia and short little june/sep euribor’, to which the Deutsche Bank trader replied by revealing his own position for March (‘am long march eonia’) and his trading strategy that such a position was safest (‘At least dow[n]side is limited’).

229    The applicants’ arguments concerning the scope of the exchanges of 8 January 2007 must therefore be rejected as unfounded.

(xv) The exchange of 6 February 2007

230    In the fifteenth place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 6 February 2007 (recitals 262 to 264 of the contested decision) came within the scope of the conduct referred to in recital 358(b) of the contested decision. Additionally, as a piece of evidence forming part of a body of evidence, it relied on the bilateral exchange that took place on 8 February 2007 between the JP Morgan trader and the submitter (recitals 265 to 267 of the contested decision).

231    The applicants submit, in essence, that the object of the exchange of 6 February 2007 was solely to exchange personal opinions on market developments so as to understand the market better, and to assess the possibility of immediate or future trades.

232    The Commission disputes the applicants’ interpretation of the exchange at issue.

233    Reading the transcript of the exchanges of 6 February 2007 submitted before the General Court and placing it, in particular, in the context of the exchange of 16 March 2007 makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that exchange.

234    It is clear from that exchange that, in response to the JP Morgan trader’s question ‘amigo what r u up 2 in May?’ the Deutsche Bank trader communicated to him his perception of the risk level for trades ending in May (‘there cheap amigo trust me for once’), as the Commission found in recitals 262 and 264 of the contested decision. Contrary to what is claimed by the applicants, the object of the JP Morgan trader’s question was not to ask for the Deutsche Bank trader’s opinion on the ECB’s intentions, but to enquire about the trading strategy that he intended to adopt in May (‘what r “u” up 2 in May?’).

235    Next, the Commission was also fully entitled to find, in recitals 262 and 264 of the contested decision, that when the Deutsche Bank trader answered ‘9’, which must be understood as referring to ‘96.09’, in response to the question from the JP Morgan trader ‘where will mar go out?’ he was disclosing to him the level he was expecting for the price of futures for the March IMM, a level which the JP Morgan trader agreed with (‘think I give u that as well’).

236    The applicants’ argument that the JP Morgan trader gave only his opinion on the market and the profitability of a sale cannot be endorsed because the two traders were clearly determining their trading strategy for futures for the March IMM. That interpretation is borne out by the conversation of 16 March 2007 between the two traders (see paragraph 259 below), during which the JP Morgan trader wrote to the Deutsche Bank trader, in response to the latter’s question as to his trading position on futures for the March IMM, ‘luckily listened to u n shipped sime in myself’.

237    The applicants’ complaints concerning the scope of the exchanges of 6 February 2007 must therefore be rejected as unfounded.

238    The Commission also put forward, as one piece of evidence forming part of a body of evidence adduced with the aim of establishing the anticompetitive nature of other conduct JP Morgan was found to have undertaken, the internal bilateral exchange that took place on 8 February 2007 between the JP Morgan trader and the submitter. It found that that conversation was not connected to contact between the JP Morgan trader and other market players on the same topic, but it showed that the JP Morgan trader could have contact with his submitters about the level of submissions for Euribor.

239    As regards the accuracy of the findings concerning the exchange of 8 February 2007, the applicants submit that the interpretation of that exchange by the Commission is incorrect because the JP Morgan trader made no request concerning Euribor submissions to his submitter and merely asked him not to buy cash and instead to conclude a trade with him if he needed to buy overnight cash, which was a common practice necessary for the proper functioning of the bank.

240    The Commission disputes the applicants’ interpretation of the exchange at issue.

241    Reading the transcript of the exchange of 8 February 2007 submitted before the General Court makes it possible to confirm the accuracy of the Commission’s findings as far as concerns that exchange.

242    That exchange shows that the JP Morgan trader would communicate with his bank’s submitter with regard to the level of the Euribor submissions, as the Commission found in recitals 265 and 267 of the contested decision. During that exchange, the JP Morgan trader disclosed to his bank’s submitter that he thought that the 3-month and 6-month Euribor submissions were very low (‘think 3s n 6s euribopr v low don’t u think?’; ‘our contribution u mean?’; ‘yes n fixings as well’), in response to which the submitter conceded and stated that he was going to check them the following day (‘our 3 s we r bang on, 6s bit low agree, we ll check exactly tom before … will enter them’). In addition, when the JP Morgan trader insisted on high 3m and 6m Euribor submissions (‘guess high 3s 6s n low o/n cannoyt b so bad for u’), the submitter responded that the cash desk was going to try its best (‘we have no exposure there … will try our best’).

243    Furthermore, although certain comments were made jokingly, the fact remains that the submitter, after reading the trader’s comments, decided to check the 6m Euribor submission or to ‘do [his] best’ with regard to the high 3m and 6m Euribor fixings, which suggests that he had understood the trader’s comments as suggesting that adjustments should be made to the bank’s submissions to the Euribor panel.

244    The applicants’ arguments concerning the scope of the exchange of 8 February 2007 between the JP Morgan trader and his bank’s submitter must therefore be rejected as unfounded.

(xvi) The exchange of 14 March 2007

245    In the sixteenth place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 14 March 2007 (recitals 299 to 301 of the contested decision) came within the scope of the conduct referred to in recital 358(g) of the contested decision.

246    The applicants submit that the brokerage fees do not affect the price of EIRDs on the OTC market and are not something that traders controlled given that those fees are negotiated by business managers and each bank and each broker usually negotiates brokerage fees for all transactions between them regardless of the trader.

247    The Commission disputes the applicants’ interpretation of the exchange at issue.

248    Reading the transcript of the exchange of 14 March 2007 submitted before the General Court and placing it in the context of the exchange of 13 November 2006 makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s alleged conduct as far as concerns that exchange.

249    The Commission found that, during the exchange of 14 March 2007, the JP Morgan trader and the Deutsche Bank trader discussed the fees that their respective banks and another bank were paying when they traded through brokers, which is accepted, in essence, by the applicants.

250    Even assuming that the traders do not control the level of the brokerage fees, which are allegedly negotiated by business managers, as the applicants claim, the fact remains that they must necessarily take into account those fees while negotiating the EIRDs when forecasting the profits under those trades after paying brokerage fees. The applicants base their argument that the brokerage fees do not affect the prices of EIRDs on the OTC market solely on the witness evidence of the JP Morgan trader. As is clear from paragraph 60 above, the probative value of that evidence is low, with the result that it does not call into question the scope of the exchange, as found by the Commission and which is supported by a body of evidence that includes the exchange of 13 November 2006 (see recital 301 of the contested decision).

251    As is clear from paragraphs 190 and 193 above, during the latter exchange, the traders agreed, in essence, to ‘hit’ the brokers by not accepting the spreads that the latter offered. During the exchange of 14 March 2007, the JP Morgan trader wrote to the Deutsche Bank trader that, in his opinion, his bank intended to renegotiate (‘rediscuss’) its brokerage rate. The fact that another bank intends to renegotiate brokerage rates, which must necessarily be understood as an intention to reduce those rates, is sensitive confidential information for a competitor bank and knowledge of that information gives an advantage to the trader in determining his or her EIRD pricing strategy. Such renegotiations or reductions in brokerage rates must be regarded as being part of a strategy, as also becomes clear from the exchange of 13 November 2006, of trying to reduce the profits made by brokers where the trade is made through them.

252    In the light of the foregoing, the Court finds that the exchange of 14 March 2007 on brokerage fees related to detailed, not publicly known or available information on EIRD pricing strategies within the meaning of recital 358(g) of the contested decision. Consequently, the applicants’ arguments concerning the scope of that exchange must be rejected as unfounded.

(xvii) The exchange of 16 March 2007

253    In the seventeenth place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 16 March 2007 (recitals 308 to 315 of the contested decision) came within the scope of the conduct referred to in recital 358(b) and (c) of the contested decision.

254    The applicants submit that the Commission was incorrect to find, in recitals 308 and 311 of the contested decision, that it was clear from the exchange of 16 March 2007 that the JP Morgan trader had taken account of the information from the Deutsche Bank trader in his trading strategy. In addition, the discussion relating to the Deutsche Bank trader’s personal opinion on the fixing for the 3m Euribor for the month of June 2007 was connected to the development of the ECB rate and involved speculation as to how the market may develop in June. They also claim that the exchange between the JP Morgan trader and that bank’s submitter on the same day shows that the latter was not aware of the manipulation of the March 2007 IMM 3m Euribor fixing or that he did not participate in that plan.

255    The Commission disputes the applicants’ interpretation of the exchange at issue.

256    Reading the transcript of the exchange of 16 March 2007 submitted before the General Court and placing it in the context, inter alia, of the exchange between the JP Morgan trader and the Deutsche Bank trader of 6 February 2007 and the exchange between the first trader and his bank’s submitter earlier on 16 March 2007 makes it possible to confirm the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that exchange.

257    First, with regard to the exchange on 16 March 2007 between the JP Morgan trader and his bank’s submitter, the Court finds that, according to the contested decision (recital 315), that exchange was a continuation of the discussions of 4 and 8 January 2007 and 6 February 2007 and was also part of subsequent exchanges of 16 and 19 March 2007. The Court concludes from the above that the Commission relied on that exchange as a relevant piece of evidence forming part of a body of evidence for interpreting, inter alia, JP Morgan’s alleged conduct on those dates.

258    With regard to the accuracy of the Commission’s findings as far as concerns that exchange, the Court finds that, although the JP Morgan trader was indeed mistaken as to the direction of manipulation of the March IMM 3m Euribor fixing, that exchange does nevertheless clearly show that he suspected that there were attempts to manipulate the March 2007 fixing (‘think people have mar future rooll n want to spoof it for a higher 3s fixing but that is nonesense 3s eonia v well offered’) much like how he stated, during the exchange of 15 December 2006 with his submitter, that certain banks, including Deutsche Bank, were playing a game with the aim of manipulating the Euribor fixings (see paragraphs 208 and 209 above). Consequently, contrary to what is claimed by the applicants, that exchange tends to show that the JP Morgan trader had at least strong suspicions that there were attempts generally to manipulate the Euribor fixings and, in particular, attempts to manipulate the March IMM 3m Euribor fixing.

259    Second, with regard to the exchange of 16 March 2007 between the Deutsche Bank trader and the JP Morgan trader, it is unambiguously clear from that exchange that the JP Morgan trader thanked the Deutsche Bank trader for the information that the latter had given him and which he had taken into account when adjusting his trading position (‘amigo luckily listened to u n shipped some in myslef little long here i hear n listen here …’). As the Commission found in recitals 311 and 312 of the contested decision, even assuming that the JP Morgan trader had wanted to flatter the Deutsche Bank trader in respect of his correct assessment, or that he was trying to save face after his incorrect forecast, that in no way changes the fact that it is clear from that conversation that he took into account the information communicated to him by the Deutsche Bank trader on 6 February 2007. Moreover, during the exchange of 19 March 2007 (see paragraph 269 below) between the two traders, the JP Morgan trader referred back to those circumstances and said to the Deutsche Bank trader that he had listened and that he had made sure he was ‘long’ for the March 2007 IMM fixing, while thanking him for his advice.

260    In that regard, in an effort to contest the Commission’s argument that the JP Morgan trader had taken account of the information obtained on 6 February 2007 from the Deutsche Bank trader in his trading strategy, the applicants submit that it was only on 7 March 2007, that is to say more than a month after his conversation with the Deutsche Bank trader on 6 February 2007, that the JP Morgan trader started to reduce his large short position for March 2007 IMM futures ‘significantly’. The Commission highlights the change in the applicants’ position in that regard during the administrative procedure (see recitals 311 and 334 of the contested decision). However, regardless of when the JP Morgan trader started adjusting his trading position, he expressly admitted that when he did so, he bore in mind the advice given to him by the Deutsche Bank trader (see paragraph 259 above).

261    Third, the Deutsche Bank trader proposed to the JP Morgan trader that he let him know when he wanted ‘free money’ (‘just lemme know when u want some free money’), in response to which the latter asked him to give him that type of information again for June 2007 (‘amigo pls gimme mpore of this clue where jun7 out?’). While the Commission acknowledges, in recital 313 of the contested decision, that the reply given to that request by the Deutsche Bank trader (‘81.4’) refers to an increase in the ECB rate, the Court finds, as the Commission did, that both the remark from the Deutsche Bank trader (‘just lemme know when u want some free money’) and the request from the JP Morgan trader (‘amigo pls gimme mpore of this clue where jun7 out?’) manifestly relate to non-publicly known or available information and, contrary to what is claimed by the applicants, relate to a trading position. The JP Morgan trader’s request is clearly connected to the exchange of 6 February 2007 (‘give me more of [“]this[”] clue’) during which the traders discussed their trading positions (see paragraph 235 above). The information given by the Deutsche Bank trader to the JP Morgan trader on 6 February 2007 allowed the latter to adjust his trading position so as not to lose a significant sum of money, which would have occurred if he had not taken account of the Deutsche Bank trader’s information. Thus, by asking during the exchange of 16 March 2007 to provide him with information as to the level of the June IMM fixing, the JP Morgan trader hoped to be able to benefit from that information. Given that, by having that information, the JP Morgan trader could adjust his future trading position, the exchange of 16 March 2007 comes within the scope of the conduct referred to in recital 358(b) of the contested decision. That conclusion is not called into question by the fact that the other part of that exchange may have related to ‘general market conditions’ or ‘ECB rates’.

262    In addition, since the two traders had the same information, that allowed them to align their trading positions on EIRDs, which comes within the conduct referred to in recital 358(c) of the contested decision.

263    The applicants’ arguments concerning the scope of the exchange of 16 March 2007 must therefore be rejected as unfounded.

(xviii) The exchange of 19 March 2007

264    In the eighteenth place, the Commission found that the bilateral exchange between the Deutsche Bank trader and the JP Morgan trader on 19 March 2007 (recitals 332 to 337 of the contested decision) came within the scope of the conduct referred to in recital 358(b) and (c) and recital 359 of the contested decision.

265    The applicants submit that, during that exchange after the fixing, the JP Morgan trader remembered only the previous discussions with the Deutsche Bank trader during which he expressed his opinion as to the level at which the March 2007 IMM futures price would fix. The Commission incorrectly found that the JP Morgan trader’s overall slightly long position proves that he gained from and participated in the Deutsche Bank trader’s attempts to manipulate Euribor (or EONIA). The level and the direction of the positions taken by the JP Morgan trader during that period are not consistent with the Commission’s argument that he followed the Deutsche Bank trader’s advice or was aware of the conspiracy between the other traders on the March 2007 IMM date.

266    The Commission disputes the applicants’ interpretation of the exchange at issue.

267    Reading the transcript of the exchange of 19 March 2007 submitted before the General Court and placing it in the context of the previous exchanges including, in particular, the exchanges of 6 February 2007 and 16 March 2007 makes it possible to confirm, at least in part, the accuracy of the Commission’s findings in respect of JP Morgan’s conduct as far as concerns that exchange.

268    In that regard, the Court finds that, when he writes to the Deutsche Bank trader that he had a ‘long’ position for the March IMM fixing (‘believe it or not was even small long mar7’) while thanking him for his advice, the JP Morgan trader revealed to the latter the trading position that he held with regard to that day’s fixing within the meaning of recital 358(b) of the contested decision.

269    In addition, as the parties agree, the exchange of 19 March 2007 is a continuation, inter alia, of the exchanges between the traders of 6 February 2007 and 16 March 2007. The exchange of 19 March 2007 thus confirms that the JP Morgan trader did indeed take into account the confidential information that the Deutsche Bank trader had communicated to him on 6 February 2007, since he thanks him again for the advice that he had given him on the March 2007 IMM and states that, thanks to that advice, he was even able to modify his position (‘tku amigo for the advise on that one’) in the same way as he did during their exchange of 16 March 2007, which allowed him to avoid losing significant sums of money, as was found in paragraph 259 above.

270    That exchange therefore shows that the JP Morgan trader adjusted his trading position, following the Deutsche Bank trader’s advice, to ensure that he would ‘be long’ on the March 2007 IMM date. The exchange of such information falls within the conduct referred to in recital 358(c) of the contested decision.

271    The Commission was also correct to find that that exchange came within the scope of the conduct referred to in recital 359 of the contested decision, since the traders again discussed Deutsche Bank’s submissions to the Euribor panel. With regard to the fact that, during the exchanges of 6 February 2007 and of 16 March 2007, the Deutsche Bank trader advised the JP Morgan trader to adopt a ‘long’ position for the March IMM fixing, which makes it possible to conclude that he thought that Euribor would fix low on that date, and that the JP Morgan trader was aware, or at least had strong suspicions, that there was a plan to manipulate the rate on that date, as is clear from the exchange that he had with his bank’s submitter on 16 March 2007, the discussion on the level of Deutsche Bank’s submissions after the fixing does come within the scope of the conduct seeking to monitor the behaviour of members of the cartel within the meaning of recital 359 of the contested decision.

272    The applicants’ arguments concerning the scope of the exchange of 19 March 2007 must therefore be rejected as unfounded.

273    In the light of the foregoing, the accuracy of the Commission’s findings concerning JP Morgan’s conduct must be confirmed, at least in part, with regard to the exchanges that the Commission found that JP Morgan had engaged in, as referred to in paragraph 86 above, with the exception of the exchange of 10 October 2006.

(2)    Argument challenging JP Morgan’s participation in the practices at issue

(i)    Participation in Euribor rate manipulating practices

274    The applicants claim that the JP Morgan trader did not participate in any conduct that had the object of manipulating Euribor or EONIA. In that regard, they submit that the Commission’s case against them, aside from being unsubstantiated by its own findings of fact, is entirely different from its case against other addressees of the contested decision in that, in the exchanges at issue, there is no request for Euribor manipulation in the interest of the JP Morgan trader or by the latter in the interest of the Deutsche Bank trader. Consequently, it has not been established that the applicants contributed to any manipulation of Euribor as pursued by the cartel. Assuming that such requests could be identified, the Commission made no finding that the JP Morgan trader accepted or acted upon such requests by making contact with his cash desk. Lastly, the Commission did not establish that the JP Morgan trader also sought to manipulate the EONIA rate.

275    The applicants argue that the Commission’s findings, assuming that they are correct, are at the very most capable of showing that the JP Morgan trader benefited from information revealed by the Deutsche Bank trader concerning the manipulation by that trader. Such a case of passive participation in the infringement by tacit approval is not put forward in the contested decision and, in any case, has not been established, because the Commission has failed to show that the JP Morgan trader was informed of any anticompetitive agreement between other banks and attended a meeting during which an anticompetitive agreement was made.

276    The Commission contests the applicants’ arguments and claims that the evidence, if seen as a body of evidence and viewed in the context of the facts and the market, shows that JP Morgan took part in all forms of collusion identified in the contested decision.

277    In that regard, it is clear from the exchanges between the JP Morgan trader, on the one hand, and the Deutsche Bank trader and the Barclays trader, on the other hand, the accuracy of which was confirmed above (see paragraph 273 above), viewed in the context of the other evidence, that the Commission was fully entitled to find that the JP Morgan trader participated in the conduct involving the manipulation of Euribor rates.

278    As a preliminary point, the Court rejects as unfounded the applicants’ argument that the applicants’ alleged conduct consisted solely of direct requests for manipulation of Euribor rate submissions. As the Commission correctly points out, and as was found above, the applicants’ alleged conduct took different forms identified in recital 358 of the contested decision, as referred to in paragraph 16 above. By submitting that the Commission had failed to establish in the contested decision that JP Morgan had participated in the practice of manipulating Euribor, since it had failed to establish that the Deutsche Bank trader had asked the JP Morgan trader to influence the Euribor submissions to serve his interests or that the JP Morgan trader had sent a similar request to the Deutsche Bank trader, the applicants are misreading the contested decision by relying solely on recital 490 of that decision, and restricting the scope of the Commission’s allegations about them.

279    The Court then notes that an undertaking’s participation in an anticompetitive meeting creates a presumption of the illegality of its participation, which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other parties to the cartel (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 81 and 82 and the case-law cited, and of 3 May 2012, Comap v Commission, C‑290/11 P, not published, EU:C:2012:271, paragraphs 74 to 76 and the case-law cited). The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 82, and of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraph 48).

280    In the present case, the Court notes that, contrary to what is claimed by the applicants, it is clear from the evidence on which the Commission relied, taken as a body of evidence, that the JP Morgan trader engaged in discussions with the Deutsche Bank trader and the Barclays trader with the objective of influencing the level of the Euribor rate in their interests.

281    First, by responding to the Deutsche Bank trader’s request for a high submission that he would check with his treasury the level of its submission, the JP Morgan trader agreed, during the exchanges of 27 and 28 September 2006 (see paragraphs 98 and 107 above), to seek a Euribor submission from his bank’s treasury in line with the preferences of the Deutsche Bank trader.

282    Second, the exchange of 8 November 2006 (see paragraphs 178 to 181 above) shows unambiguously that the JP Morgan trader and the Deutsche Bank trader were examining the possibility of aligning a future Euribor submission from their respective banks on the basis of their preferences for a low 1m Euribor fixing.

283    Third, during the exchange of 25 October 2006, the Barclays trader unambiguously told the JP Morgan trader not to hesitate to ask him for Euribor fixings in his interest, an offer which the JP Morgan trader did not refuse and from which he did not otherwise distance himself in accordance with the case-law referred to in paragraph 279 above. Similarly, it is clear from the exchange of 26 October 2006 that the Deutsche Bank trader suggested to the JP Morgan trader to turn to him for 1m Euribor submissions in his interest. The JP Morgan trader did not distance himself from that offer and refused the offer only because the level of the fixings, which was low at that time, suited his interests.

284    Fourth, it is clear from the exchanges of 27, 28 and 29 September 2006, of 25 and 26 October 2006 and of 8 November 2006 that the parties to those exchanges intended to engage in anticompetitive practices involving the manipulation of Euribor, in that they at the very least considered the possibility of aligning the level of the future submissions of their respective banks.

285    Fifth, with regard to the manipulation of the Euribor rate on the December IMM date, it is clear from the exchange of 15 December 2006 between the submitter and the JP Morgan trader that the latter had at least strong suspicions as regards that manipulation and Deutsche Bank’s involvement therein. During the exchange of 18 December 2006 with the Deutsche Bank trader, he acknowledged that he was happy with the 3m Euribor fixing, even though his trading position was small, but at the very least he did not have an opposite interest (see paragraph 211 above). It is clear from the above that the JP Morgan trader benefited from the practices seeking to manipulate Euribor on 18 December 2006 by adjusting his trading position, which allowed him to avoid losses even though he did not actively participate in implementing that manipulation.

286    Furthermore, with regard to the manipulation of the Euribor rate on the March IMM date, the evidence shows unambiguously that the JP Morgan trader was aware of or at least had strong suspicions regarding that manipulation (see exchange of 16 March 2007 between the JP Morgan trader and that bank’s submitter, paragraph 258 above). In addition, with regard to the Bank E communications, the exchange of 29 September 2006 and the exchange of 15 December 2006 (see paragraphs 208 and 209 above) between the JP Morgan trader and his bank’s submitter, the Commission was fully entitled to find, in recital 490 of the contested decision, that the JP Morgan trader knew that the Deutsche Bank trader was willing to influence and was capable of influencing the benchmark interest rate levels of Euribor. Thus, it is plausible to conclude that, when the latter shared with him, on 4 and 8 January 2007 and 6 February 2007, information on the trading position he held on that date and on his trading strategy, in so far as he stated that such a position was low risk, the JP Morgan trader could reasonably infer that that trading strategy reflected the Deutsche Bank trader’s forecasts on the level of the Euribor rate as would result from the manipulation practices the latter was engaging in.

287    During the exchanges of 16 and 19 March 2007, the JP Morgan trader explicitly confirmed that he had taken into account the information that the Deutsche Bank trader had sent him and that, as a result, he had reduced his short position and even adopted a ‘slightly long’ position on March 2007 IMM futures. In doing so, he reduced his losses. He then thanked the Deutsche Bank trader for his advice.

288    It is clear from the above that the JP Morgan trader benefited from the practices seeking to lower the March 2007 IMM Euribor rate, practices of which he was aware although, as the applicants submit, according to the evidence put forward by the Commission, he was not updated by the Deutsche Bank trader in respect of the details of that plan and was not actively participating in its implementation.

289    In that regard, it should be noted, as the Commission did in recitals 348 and 364 of the contested decision, that passive modes of participation in the infringement, such as the presence of an undertaking in meetings at which anticompetitive agreements were concluded, without that undertaking clearly opposing them, are indicative of collusion capable of rendering the undertaking liable under Article 101(1) TFEU, since a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, encourages the continuation of the infringement and compromises its discovery (see judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 31 and the case-law cited).

290    Consequently, in application of the case-law recalled in paragraph 279 above, in order to reverse the presumption that such attendance at an anticompetitive meeting was unlawful, the undertaking must adduce evidence that it publicly distanced itself (see, to that effect, judgment of 7 February 2013, Slovenská sporiteľňa, C‑68/12, EU:C:2013:71, paragraph 27 and the case-law cited). No piece of evidence to that effect has been adduced by the applicants either in relation to the manipulation of the rate of 18 December 2006 or in relation to the communication by the Deutsche Bank trader to the JP Morgan trader of the information concerning his trading strategy for the March 2007 IMM date. On the contrary, as was found in paragraphs 285 and 286 above, the JP Morgan trader adjusted his trading strategy in order to benefit from those manipulations.

291    The applicants submit that they cannot be found to have participated passively in the infringement at issue since the obligation to distance themselves publicly from an infringement is relevant only where the Commission proves that the undertaking participated in a meeting in which an anticompetitive agreement was concluded.

292    However, in the light of the nature of the infringement at issue, which took the form of a network of bilateral contacts between various players (see recitals 357 and 360 of the contested decision), the Commission did not find any attendance at a ‘meeting’ within the meaning of the applicants’ argument. Thus, the Commission was fully entitled to find that the applicants participated passively in certain conduct seeking to manipulate rates since the JP Morgan trader was aware of the existence of rate manipulation practices by, inter alia, the Deutsche Bank trader, with whom he was in bilateral contact. The applicants do not dispute that such rate manipulation practices were unlawful, nor the fact that the JP Morgan trader must at least have been aware that those practices were unlawful (see recital 360 of the contested decision).

293    Sixth, it is clear from the exchanges of 27 and 28 September 2006 and of 8 November 2006 that the JP Morgan trader shared or at the very least implicitly committed to sharing with his competitor information received from his bank’s submitter. By promising on 27 and 28 September 2006 to ‘check’ the level of his treasury’s submission, the JP Morgan trader sought to remove the uncertainty as to the level of the submission envisaged by the treasury and, therefore, implicitly committed to giving an account of the contact he intended to have with the latter. Similarly, during the exchange of 8 November 2006, the JP Morgan trader sent the Deutsche Bank trader information on the level of his bank’s submission obtained during the previous contact with the cash desk.

294    Seventh, on 2 October 2006, 18 December 2006 and 19 March 2007, the JP Morgan trader and the Deutsche Bank trader engaged in exchanges the purpose of which was to control or monitor the conduct of members of the cartel in that they either checked the level of Deutsche Bank’s submissions or discussed whether they were happy with the level of the Euribor rate which they knew or at least suspected had been manipulated.

295    Lastly, it is clear from the discussions of 27 and 28 September 2006, of 26 October 2006 and of 8 November 2006 that the Deutsche Bank trader and the JP Morgan trader sent each other their preferences as to the Euribor fixings or communicated to each other their trading position making it possible to determine such preferences, which allowed them to ensure that their interests were aligned before pursuing their collusion with the aim of influencing the Euribor submissions from their respective banks in the direction of their interests.

296    It is clear from the foregoing that, in the context of the exchanges of 27, 28 and 29 September 2006, of 2, 25 and 26 October 2006, of 8 November 2006, of 18 December 2006, of 4 and 8 January 2007, of 6 February 2007 and of 16 and 19 March 2007, the JP Morgan trader participated in conduct with the aim of manipulating Euribor rates.

297    That conclusion is not called into question by the other arguments put forward by the applicants.

298    First, the applicants submit that the Commission did not find that the JP Morgan trader had asked the JP Morgan submitters to influence the Euribor and EONIA indexes or to make submissions in accordance with contact with other traders. They also maintain that the JP Morgan treasury made a submission that was not aligned with the alleged cartel.

299    In that regard the Court finds, first of all (see paragraph 278 above), that JP Morgan’s alleged infringing conduct does not consist of the manipulation of Euribor as such, but of exchanges of information between traders reflecting their intention to influence the submissions of their banks to the Euribor panel in the direction of their interests. As is clear from recital 113(a) to (f), recital 358 (a) to (f) and recital 392(a) to (f) of the contested decision, as summarised in paragraph 16 above, those exchanges related to preferences for a certain level of Euribor rate, sometimes involving the communication of trading positions held, the possibility of aligning trading positions and Euribor submissions, a promise from the trader involved to contact a Euribor submitter in his bank with a view to asking for a submission in a certain direction or at a specific level, and an account of the latter’s response.

300    The exchanges between the traders clearly show the communication of preferences for certain rates, of associated trading positions and of the JP Morgan trader’s offer or intention to influence his bank’s submission to suit the Deutsche Bank trader’s interests, or of the intention of the Deutsche Bank trader and the Barclays trader to influence the submissions of their respective banks to suit the JP Morgan trader’s interests.

301    In recitals 125, 135 and 634 of the contested decision, the Commission found only, in essence, that the arrangements between the traders had been ‘supplemented’ and ‘implemented’ through communications between those traders and their submitters within the treasury departments of the banks, and ‘on occasions’, by the latter actually submitting communicated, coordinated or agreed Euribor rates. The applicants’ arguments to the effect that the JP Morgan treasury was not involved in the practices seeking to influence Euribor rates are at most capable of showing that the bank’s treasury did not implement the anticompetitive conduct, rather than showing that the traders were not participating in that conduct (see, to that effect, judgment of 24 October 1991, Atochem v Commission, T‑3/89, EU:T:1991:58, paragraph 100).

302    In that context, the Court finds that, in any event, several pieces of evidence relied on by the Commission, taken as a body of evidence, make it reasonable to conclude that the JP Morgan trader acted upon the discussions with the Deutsche Bank trader as to the desired level of the Euribor rate by making contact with his bank’s submitters and thereby implemented collusive exchanges.

303    The exchanges of 27 and 28 September 2006, during which the JP Morgan trader agreed to seek a Euribor submission in line with the preferences of the Deutsche Bank trader from his bank’s treasury, must be read in the context of the body of evidence including the Bank E communications and the exchanges of 28 September 2006 at 10.13, the exchanges of 29 September 2006 and 8 November 2006, and the exchange between the JP Morgan trader and his bank’s submitter on 8 February 2007. That body of evidence shows that there was collaboration between the traders at issue and their respective treasuries as regards Euribor submissions and that the traders took the view that they could benefit from the collaboration of their treasuries as regards submissions to the Euribor panel in line with their interests. That body of evidence also makes it clear that the traders were in the habit of exchanging information with a view to coordinating Euribor submissions according to their respective trading positions and that the JP Morgan trader knew that such conduct involved contacting the cash desks of their respective banks (see paragraph 73 above).

304    The exchange of 8 February 2007 is particularly significant in showing that the JP Morgan trader did not hesitate in asking his bank’s submitters to make submissions to the Euribor panel in line with his interests (recital 265 of the contested decision, see paragraph 242 above) and that JP Morgan’s submitter showed that he was receptive to such a request by responding that the cash desk would ‘try [its] best’.

305    Those pieces of evidence, taken as a body of evidence, make it reasonable to conclude that the JP Morgan trader tried to influence the level of the submission from his bank’s treasury. In any event, he explicitly agreed to act upon the request to that effect from a trader who was a competitor.

306    Second, the applicants submit that the JP Morgan trader did not benefit in any significant way from any manipulation of indexes, in particular with regard to the manipulation of 19 March 2007, contrary to what is clearly stated in recital 364 of the contested decision.

307    In that regard, the Court finds that, in the context of that complaint, the applicants put forward only arguments relating to the manipulation of 19 March 2007. With regard to that manipulation, as is clear from the exchanges of 16 and 19 March 2007, the JP Morgan trader explicitly acknowledged that he had adjusted his trading strategy by following the Deutsche Bank trader’s advice to take a long position with regard to the March IMM fixing and benefited therefrom, although the profit he made was not large. It should be concluded from the above that the JP Morgan trader did take into account the information exchanged with his competitor when determining his market conduct. That fact is also established with regard to the manipulation of 18 December 2006.

308    In any event, with regard to other exchanges relating to rate manipulations, such an argument may show, at the very most, that the exchanges between the traders were not followed by anticompetitive effects on the market. That question is, however, irrelevant with regard to conduct that has the object of restricting competition (see, to that effect, judgment of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraphs 123 and 124). Such an argument could, where appropriate, be relevant where the applicants show that the Commission had made an error by finding that the conduct at issue has the object of restricting competition, which it is appropriate to examine in the context of the examination of the second plea.

309    Lastly, the applicants submit, in essence, that the Commission’s conclusion that JP Morgan tried to manipulate EONIA is unfounded.

310    In that regard, as the Commission acknowledges, it did not conclude at any time in the contested decision that JP Morgan had participated in the EONIA manipulation practices, but that it had participated in an infringement the object of which was to distort the normal course of pricing components in the sector of EIRDs linked to Euribor and/or EONIA (see Article 1 of the contested decision). The applicants’ arguments that the Commission has failed to show that the JP Morgan trader intended to manipulate the EONIA rate are therefore ineffective.

311    In addition, the Court finds that the infringement at issue, as defined in the contested decision, did not consist merely of the manipulation of benchmarks, but also of the exchange of sensitive information on transactions linked, inter alia, to EONIA. The applicants simply claim that the derivatives market is segmented into Euribor-based products and EONIA-based products without, however, substantiating that assertion with any evidence whatsoever. In any event, the mere absence of any ‘automatic’ direct or indirect effect of Euribor fluctuations on EONIA, as relied on by the applicants, even if it were established, does not show that Euribor-linked EIRD trades and EONIA-linked EIRD trades do not take place on the same EIRD market. The Commission was therefore entitled to find that JP Morgan participated in the infringement with the object of distorting the normal course of pricing components in the sector of EIRDs linked to Euribor and/or EONIA even though it did not reach a finding that JP Morgan had participated in practices the purpose of which was to manipulate EONIA.

312    It follows from the above that, subject to the examination of the second plea (see paragraph 308 above), the applicants’ complaints seeking to show that JP Morgan did not participate in the practices with the aim of manipulating Euribor must be rejected as unfounded.

(ii) JP Morgan’s alleged participation in other forms of conduct

313    As a preliminary point, the Court notes that, with regard to the discussions on trading positions and pricing strategies, which form part of the conduct that sought to manipulate Euribor, it has already been shown above that JP Morgan participated in anticompetitive conduct. In application of the case-law referred to in paragraph 164 above, it is not, therefore, necessary to examine JP Morgan’s participation in that conduct to the extent that those discussions also come within the scope of the conduct referred to in recital 358(b) and (g) of the contested decision.

314    Consequently, in the light of the considerations above concerning the accuracy of the Commission’s findings in respect of JP Morgan’s conduct (see paragraph 273 above), the Court finds that JP Morgan participated only in one exchange on trading positions and three exchanges on pricing strategies that took place without them being related to the manipulation of Euribor. Those are the exchange of 6 October 2006 and the exchanges of 13 and 24 November 2006 and 14 March 2007 respectively.

315    While the applicants contest the accuracy of the facts that can be inferred from those exchanges, which were examined above, they do not genuinely dispute that the JP Morgan trader participated in that conduct by claiming, incorrectly, that the Commission found only that they participated in the conduct that had the aim of manipulating Euribor (see paragraphs 46 to 48 above).

316    With regard to those exchanges, the applicants submit only that, in the light of how the market functions, the information that those traders sent to each other was too vague, general, transient, incomplete or hypothetical to allow the trader receiving that information to anticipate the conduct on the market of the trader revealing that information. That line of argument refers to the determination of whether the conduct at issue has the object of restricting competition but not to participation in that conduct. It will be considered in the examination of the third plea below (see paragraph 385 below).

317    It is clear from the foregoing that the applicants were correct in arguing, in the context of the first plea, that the Commission was not entitled to find that JP Morgan participated in anticompetitive conduct with regard to the exchange of 10 October 2006. Subject to the examination of the second plea (see paragraph 312 below) the remainder of the first plea must be rejected as unfounded.

(c)    The second and third pleas in the application, concerning the characterisation of the applicants’ alleged conduct as an infringement by object within the meaning of Article 101(1) TFEU and the obligation to state reasons

318    In the second plea, the applicants dispute, in essence, that the Euribor rate manipulation practices constitute restrictions of competition by object.

319    In the third plea, the applicants submit, in essence, that the Commission did not find in the contested decision that JP Morgan had participated in forms of anticompetitive practices other than the attempted manipulation of benchmarks and that it did not establish that JP Morgan’s alleged conduct had any other anticompetitive object. They also claim that the obligation to state reasons in that regard has not been met.

320    The Commission disputes the applicants’ arguments under the second and third pleas in law and submits, in essence, that it correctly found that all the conduct at issue was restrictive of competition by object inasmuch as it related to the pricing components of EIRDs and created an asymmetry of information between the banks participating in the cartel and those not participating in the cartel, by conferring a competitive advantage on the former. It is of the view that it stated sufficient reasons for the contested decision.

321    In that regard, it should be borne in mind that, in recitals 384 to 386 of the contested decision, the Commission stated that the collusive conduct found to have been committed by, inter alia, JP Morgan concerned the pricing components of EIRDs, such as Euribor, as well as other trading conditions and had the objective of influencing the cash flows payable under EIRDs in a manner favourable to the traders concerned and to the detriment of the other party to the contract and other competitors on the EIRD market.

322    In addition, in recitals 389 and 390 of the contested decision, the Commission noted that the exchanges of information in which the JP Morgan trader participated, which took place outside the context of discussions on a potential trade, had the effect of significantly reducing market uncertainty by revealing to a competitor key information on the future behaviour of market players, thus enabling that competitor to use that information to his own advantage by adapting his conduct on the market.

323    Therefore, according to the Commission, that conduct had as its object the restriction and/or distortion of competition within the meaning of Article 101(1) TFEU and Article 53(1) of the EEA Agreement.

324    In that regard, it should be recalled that, to come within the prohibition laid down in Article 101(1) TFEU, an agreement, a decision by an association of undertakings or a concerted practice must have ‘as [its] object or effect’ the prevention, restriction or distortion of competition in the internal market.

325    It follows from the case-law of the Court of Justice that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 49, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 113).

326    The distinction between ‘infringements by object’ and ‘infringements by effect’ arises from the fact that certain types of collusion between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 50, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 114).

327    Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market. Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 115).

328    According to the case-law of the Court of Justice, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part. When determining that context, it is necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 53, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 117).

329    In respect of agreements which may be considered a restriction of competition ‘by object’, such an object cannot be justified by an analysis of the economic context of the anticompetitive conduct concerned (judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 28). In respect of such agreements, the analysis of the economic and legal context of which the practice forms part may thus be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object (judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 29).

330    So far as concerns, in particular, the exchange of information between competitors, it should be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which it intends to adopt on the common market (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 32, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 119).

331    While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 33, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 120).

332    The Court of Justice accordingly held that the exchange of information between competitors was liable to be incompatible with the competition rules if it reduced or removed the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings was restricted (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 35, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 121).

333    In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 122; see also, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 41).

334    Moreover, a concerted practice may have an anticompetitive object even though there is no direct connection between that practice and consumer prices. Indeed, it is not possible on the basis of the wording of Article 101(1) TFEU to conclude that only concerted practices which have a direct effect on the prices paid by end users are prohibited (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 123; see also, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 36).

335    On the contrary, it is apparent from Article 101(1)(a) TFEU that concerted practices may have an anticompetitive object if they ‘directly or indirectly fix purchase or selling prices or any other trading conditions’ (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 37, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 124).

336    It should also be pointed out that the concept of a concerted practice, as it derives from the actual terms of Article 101(1) TFEU, implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 51, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 126).

337    In that regard, the Court of Justice has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court of Justice concluded that such a concerted practice was caught by Article 101(1) TFEU, even in the absence of anticompetitive effects on that market (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 51, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 127).

338    Lastly, it should be noted that, according to settled case-law, the obligation to provide a statement of reasons laid down in the second paragraph of Article 296 TFEU is an essential procedural requirement that must be distinguished from the question of whether the reasons given are correct, which goes to the substantive legality of the contested measure. In that vein, the statement of reasons required must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. As regards, in particular, the statement of reasons in individual decisions, the purpose of the obligation to state the reasons on which such decisions are based is therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 146 to 148 and the case-law cited; judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 114 and 115).

339    In addition, the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom that measure is of concern within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 116).

340    It is in the light of those considerations that the Court will examine the second and third pleas.

(1)    The second plea, alleging an error as regards the characterisation of the exchanges relating to Euribor manipulations as a restriction of competition by object

341    The applicants claim that, although Euribor manipulation practices are serious in terms of the regulation of financial markets, they are not restrictive of competition by object. According to the applicants, the exchanges relating to rate manipulation cannot be assimilated to price-fixing practices, in that Euribor is neither a parameter of competition nor a pricing component of EIRDs. Furthermore, the objective of influencing the cash flows payable under EIRDs or the effect of reducing uncertainty or increasing transparency between traders by conferring on them a competitive advantage over competing banks not participating in the cartel cannot suffice as a basis for concluding that the exchanges relating to rate manipulation have the object of restricting competition.

342    The Commission disputes the applicants’ arguments.

343    It should be noted that some of JP Morgan’s alleged conduct relating to rate manipulation not only concerns competitively sensitive information within the meaning of the case-law referred to in paragraphs 331 to 333 above, such as preferences regarding the level at which the benchmark rate is fixed or communications of traders’ respective trading positions or exposures (see, in particular, recitals 389, 394 and 395 of the contested decision), but also reveals the intention of the traders involved in those exchanges to manipulate the Euribor rate in line with their interests in that they seek to steer their respective banks’ submissions to the Euribor panel and to monitor the results of their actions (see, in particular, recitals 397 and 426 of the contested decision). As regards JP Morgan, the exchanges of 27, 28 and 29 September 2006 and of 2 October 2006 come within that category.

344    The Commission was fully entitled to find (see paragraphs 321 to 323 above) that those exchanges concerning the level of Euribor, or which form part of concerted practices relating to the level of Euribor, concern a relevant factor for the determination of cash flows payable under EIRDs and thus relate to a parameter essential to competition on the EIRD market. That conduct allowed the banks involved to coordinate their conduct on the market, removed uncertainty between participants and created an asymmetry of information between market players that was detrimental to competition. Consequently, the Commission was justified in concluding that that conduct revealed a sufficient degree of harm to competition to be considered a restriction of competition by object (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 117 and 118).

345    As is apparent, in essence, from recitals 11, 16, 388, 410 and 411 of the contested decision, EIRDs are traded on the market for a value which derives from the trading price and which reflects the estimated value, at the date of transaction, of one or more cash flows expected under that contract, those cash flows being determined by the future levels of Euribor or EONIA, on the basis of the difference between the amounts payable in respect of the ‘fixed leg’ and those payable in respect of the ‘floating leg’ of an EIRD (see paragraphs 38 and 39 above). Consequently, although, as the applicants submit, the Euribor rate is not in itself the price of that trade, in so far as it influences the level of its two ‘legs’, it nevertheless constitutes an essential factor in the determination of the cash flows payable under that contract, which are not yet known at the time it is entered into.

346    The Euribor benchmark rate on the date agreed in the contract (on the fixing date) makes it possible to calculate the payment due in respect of the ‘floating leg’ of an EIRD contract, which is directly indexed to that rate. Where the Euribor variable rate is set artificially, by means of the influence exercised by certain traders on the banks’ submissions in line with their own interests, that rate is no longer fixed at the end of ‘a non-competitive collaborative process’, but, rather, favours certain competitors, namely the traders involved in the manipulation, to the detriment of others, in that it influences the sums that would have to be paid or received in respect of the ‘variable leg’ of EIRDs indexed to that rate (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 117).

347    Moreover, the Euribor benchmark rate is also relevant as regards the ‘fixed leg’ of an EIRD contract indexed to that rate, in so far as it will be taken into account by a trader, through his or her relevant yield curve modelled on his or her own estimates of the future developments of those rates, for the purposes of determining the fixed rate of that contract, in order to anticipate future cash flow resulting from the difference between the variable rate and the fixed rate on the fixing date (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 117 and 122).

348    In those circumstances, the applicants are incorrect in claiming that the Commission distorted the concept of ‘price fixing’ in the contested decision. The practices at issue, inasmuch as they concern an essential factor in the determination of the cash flows payable under EIRDs, are comparable to price-fixing agreements which, in accordance with the settled case-law cited in paragraph 335 above, are among the most harmful restrictions of competition, as the Commission indeed pointed out in recitals 414 and 422 of the contested decision. Similarly, those practices created informational asymmetry between market participants by reducing or eliminating uncertainties as to the functioning of the market and, in accordance with the case-law cited in paragraph 333 above, must be regarded as revealing a sufficient degree of harm to competition to be characterised as an infringement by object.

349    The applicants are also incorrect in claiming that only the fixed rate is the subject of competition between the traders and that that competition takes place only when the contracts are entered into.

350    While the ‘fixed leg’ of an EIRD contract is undeniably negotiated between traders when an EIRD contract is entered into, the attractiveness or competitiveness of that contract does not depend solely on the fixed rate determined at the time it is entered into, but on the comparison of that rate with the expected variable rate, and thus on the estimation of a cash flow that such a contract is likely to generate for a party. The fixed rate on which the parties agree at the time the contract is entered into is therefore only one factor in the determination of the cash flows due under EIRDs, which will be paid on the basis of a comparison of that rate with the variable rate on the fixing day.

351    Thus, the fixed rate is negotiated in the light of the trader’s forecasts of what he or she believes the variable rate will be in order to anticipate the positive cash flow that he or she would like to receive from that contract. Consequently, having inside information on the variable rate applicable to the relevant dates, the traders were in a position to make their offers, as far as concerns the fixed rate, competitive, while expecting a positive cash flow. The asymmetry of information thus created could only improve the competitive position of those traders compared to that of their competitors who did not have such information.

352    In the light of the foregoing, it is irrelevant that, as the applicants claim, competition for an EIRD contract in particular takes place only at the time it is entered into. Traders, particularly those of banks such as JP Morgan, playing a role of market maker, constantly adjust their portfolios by entering into new contracts in order to offset or counterbalance their positions, which is illustrated, inter alia, by the adjustments to trading positions made by the JP Morgan trader in view of the manipulations of 18 December 2006 and of 19 March 2007, of which he was aware. Thus, the manipulation of the Euribor rate on a specific date affects not only the conditions under which the current contracts are performed, but also the conditions under which a trader will enter into new contracts.

353    As regards the exchange of 18 December 2006, it is true that the traders discussed solely their satisfaction with the day’s fixing, without that conduct, which sought to monitor or control the cartel, being preceded by any discussion of the desired Euribor level. However, that exchange must be linked to the manipulation of the Euribor rate on 18 December 2006, in which the JP Morgan trader participated passively (see paragraphs 285 to 290 above). Indeed, it is apparent from the exchange of 18 December 2006 that he benefited from the asymmetry of information regarding that manipulation by adjusting his trading position. That exchange thus reveals a sufficient degree of harm to competition to be regarded as a restriction of competition by object.

354    Furthermore, it is true that the exchanges of 4 and 8 January 2007, of 6 February 2007 and of 16 and 19 March 2007 involved only exchanges of information on trading positions and trading strategies. However, those exchanges must be associated with the manipulation of the Euribor rate on 19 March 2007, even though the JP Morgan trader participated only passively therein (see paragraphs 285 to 290 above). Thus, even though the traders did not expressly discuss the desired level of Euribor, the information on trading positions and trading strategies took into account the level of Euribor as envisaged by the Deutsche Bank trader in the context of the Euribor rate manipulation practices of which the JP Morgan trader was aware. Those exchanges enabled the banks involved to coordinate their market behaviour, to remove uncertainties between participants and to create an asymmetry of information between market players that was detrimental to competition. Accordingly, the Commission was justified in concluding that that conduct revealed a sufficient degree of harm to competition to be considered a restriction of competition by object.

355    In that respect, it is also necessary to reject as unfounded the applicants’ argument that the Commission did not demonstrate, in accordance with the judgment of 23 November 2006, Asnef-Equifax and Administración del Estado (C‑238/05, EU:C:2006:734), that the reduction in uncertainty on the market in question resulting from the practices seeking to manipulate Euribor resulted in competition being restricted between undertakings.

356    Contrary to what the applicants submit, the Commission demonstrated to the requisite legal standard, in recitals 394 and 395 of the contested decision, that the informational asymmetry created by the practices seeking to manipulate Euribor resulted in competition being restricted on the EIRD market. In that regard, the Commission correctly found that that collusive conduct had given rise to a situation of informational asymmetry between market players, created by the fact that the colluding parties, first, were better placed to know in advance, with some precision, the level at which Euribor would be set or was intended to be set by their colluding competitors and, second, knew whether, on a given day, Euribor was at an artificial level or whether it corresponded to market realities. Their competitors were unaware of all of those factors. The Commission thus found that, for the duration of the collusion, the colluding parties were in possession of additional information, which enabled them to offer more advantageous conditions than those offered by their competitors who relied on what they considered to be the Euribor rate determined by the legitimate market reality and were unable to compete on an equal footing with their colluding competitors. According to the Commission, this therefore significantly reduced the uncertainties inherent in a market on which the management of risk and uncertainties constitutes one of the key parameters of competition.

357    Furthermore, the Court finds, as the Commission did, that the circumstances of the present case cannot be compared to those of the case which gave rise to the judgment of 23 November 2006, Asnef-Equifax and Administración del Estado (C‑238/05, EU:C:2006:734). In the context of assessing whether an information exchange system is compatible with EU competition rules, account must be taken, in particular, of the conditions of access to the information exchanged which, in order for the exchange in question not to disadvantage the operators not participating therein, must be accessible in a non-discriminatory manner, in law and in fact, to all operators active in the relevant sphere (see, to that effect, judgment of 23 November 2006, Asnef-Equifax and Administración del Estado, C‑238/05, EU:C:2006:734, paragraph 60). Yet the applicants do not claim that the information exchanged between the traders in the present case, relating to the attempts to steer their respective banks’ submissions to the Euribor panel, was available in a non-discriminatory manner to all operators on the EIRD market. On the contrary, as the Commission maintains, the information exchange system at issue was not an ‘open access’ and non-discriminatory system, which is illustrated by the fact that the participants agreed or reminded each other to conceal their collusive activities (see recital 360 of the contested decision).

358    As a result, the exchanges relating to Euribor manipulations must be regarded as having the object of restricting competition since such manipulations are intended to influence a factor that is relevant and essential in determining the cash flows payable under EIRD contracts, as well as EIRD trading strategies, by reducing or removing the degree of uncertainty as to the operation of the market in question causing competition between undertakings to be restricted (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 117 and 118).

359    The conclusion set out in paragraphs 343 and 358 above is not called into question by the applicants’ argument that the objective of increasing cash flows, which must, in their view, be assimilated to an objective of ‘earning more money’, is not in itself restrictive of competition.

360    In that regard, it is sufficient to note that, in the present case, the objective of increasing cash flows was not being pursued under normal conditions of competition, since one of the important parameters for influencing that cash flow, in this case the Euribor rate, was being manipulated with an anticompetitive purpose. Thus, in any event, it was not by means of normal competition that such an objective would be achieved, but by a distortion of competition contrary to Article 101(1) TFEU.

361    Similarly, in the light of the particularly sensitive nature of the information exchanged, from a competition point of view, an object restrictive of competition must also be found to exist in respect of the exchanges of 25 and 26 October 2006, and of 8 November 2006, even though those exchanges involved only exchanges of information on the desired Euribor quotation level or on the availability of one of the traders to influence the level of his bank’s submission in his competitor’s interest, and no attempt to manipulate that rate is associated with those exchanges.

362    In the light of the significance of the impact of the level of the Euribor rates on cash flows payable under EIRDs, the mere communication of information regarding preferences for future submissions of a bank which is a member of the Euribor panel or discussions on possibilities to align banks’ submissions or the offer to influence a submission, revealing to the traders the ability of their competitor to make submissions as desired, were capable of giving an advantage to the banks concerned, removing them from the application of normal competition on the market in question, in such a way that those exchanges of information must be regarded as having had as their object the restriction of competition within the meaning of Article 101(1) TFEU and within the meaning of the case-law cited in paragraphs 330 to 333 above (see, to that effect, judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 75).

363    In that respect, it should also be borne in mind that the Commission highlighted, in support of its conclusion relating to the existence of restrictions of competition by object, not only price coordination and/or price fixing, but also distortion of other trading conditions in the EIRD sector (see, inter alia, recitals 384, 388, 393, 415 and 423 of the contested decision). However, since the finding of an infringement by object applied to the exchanges relating to Euribor manipulations is substantiated to the requisite legal standard for the reasons set out in paragraphs 343 to 362 above, in accordance with the case-law referred to in paragraph 164 above, it is not necessary to examine whether that conduct had an object restrictive of competition also in so far as it related to other trading conditions.

364    Accordingly, the second plea must be dismissed as unfounded.

(2)    The third plea, alleging an error as regards the characterisation of conduct other than the manipulation of Euribor as a restriction of competition by object and a failure to state reasons

365    In the third plea, the applicants submit, in essence, that the Commission did not establish any other anticompetitive object in respect of JP Morgan’s conduct other than the attempted Euribor rate manipulation. In their view, if the Commission’s intention were to conclude that the applicants pursued an anticompetitive object other than the manipulation of Euribor or EONIA, the contested decision would be vitiated by contradictory reasons, a failure to state reasons or an inadequate statement of reasons as regards the identification of the anticompetitive object. In any event, according to the applicants JP Morgan did not pursue another anticompetitive object, since the purpose of the information exchange was to improve generally the assessment by each party of market developments, which cannot be regarded as conduct restrictive of competition by object.

366    The Commission disputes the applicants’ arguments.

367    As a preliminary point, the Court notes that, even if JP Morgan’s participation in an infringement by object is established as regards the conduct relating to Euribor manipulations, it is still appropriate to examine the arguments seeking to dispute that JP Morgan’s other alleged conduct constitutes a restriction by object. Whether JP Morgan engaged in other anticompetitive conduct is relevant for the purposes of assessing the gravity of the infringement of Article 101(1) TFEU committed by the latter and, consequently, the proportionality of the fine imposed on it. The factors capable of affecting the assessment of the gravity of an infringement include the number and intensity of the incidents of anticompetitive conduct (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 86 and the case-law cited, and of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraphs 197 and 199 and the case-law cited).

368    Next, first, it is apparent from the definition in the contested decision of the anticompetitive object of the conduct at issue (see paragraphs 321 and 322 above) that, contrary to what the applicants, in essence, submit, the Commission did not find that the practices at issue were restrictive of competition by object on the ground that they consisted of Euribor manipulations, but on the ground that they sought to influence the cash flows payable under EIRDs by distorting the normal course of EIRD pricing components and creating an asymmetry of information that was detrimental to competition. That collusive conduct could take several forms, as described in recital 113 of the contested decision (see paragraph 16 above; also see paragraph 48 above).

369    It follows that the applicants’ arguments under the third plea in law, according to which the contested decision is vitiated by a failure to state reasons or by an inadequate statement of reasons inasmuch as, in essence, the Commission did not sufficiently set out the reasons which led it to find that JP Morgan’s alleged practices had an anticompetitive object other than the manipulation of Euribor, are ineffective.

370    Recital 490 of the contested decision, relied on in that regard by the applicants, does not call that conclusion into question or demonstrate that the grounds of the contested decision are conflicting or inconsistent. That recital states that ‘the only plausible explanation for the exchanges referred to in recital (358) relating to preferences for the future rate setting for Euribor tenors and/or the associated trading positions related to such preferences is that these are an attempt to manipulate the benchmark rate by [the JP Morgan trader] via his contacts with [the Deutsche Bank trader] whom he knew was capable of influencing the benchmark interest rate levels of Euribor’. Clearly, therefore, the Commission refers in that recital only to the exchanges relating to preferences for the future rate setting for Euribor tenors and/or the associated trading positions related to such preferences, namely the conduct referred to in recital 358(a), (d), (e) and (f) of the contested decision and the conduct referred to in recital 358(b) and (c) of that decision when related to the preferences for the future rate setting for Euribor tenors. Recital 490 of the contested decision does not therefore cover all the instances of conduct referred to in recital 358 of the contested decision.

371    Second, the applicants maintain that the Commission, in breach of its obligation to state reasons, did not identify ‘unambiguously’ the anticompetitive object of the practices at issue consisting of exchanges on trading positions and pricing strategies. More specifically, it did not identify which EIRD pricing components and trading conditions each particular exchange had the object of distorting or coordinating and how the exchange pursued that object.

372    In that regard, in response to a written question from the Court, referring to the relevant recitals of the contested decision, the Commission correctly maintained that it had shown exhaustively and with regard to each particular exchange of information relied on against JP Morgan how it had the object of influencing the cash flows payable under EIRDs by distorting the normal course of pricing components of EIRDs and creating an asymmetry of information that was detrimental to competition consistent with the anticompetitive object identified in the contested decision.

373    As the Commission correctly submits, it is apparent from the contested decision, first, that the exchanges on pricing strategies, such as the exchanges of 13 November 2006 and of 14 March 2007, concerned commercially sensitive confidential information since that information was relevant to EIRD pricing strategies in the context of transactions that involved non-colluding parties (recital 389, recital 392(g) and recital 403 of the contested decision). The exchanges of 13 November 2006 and of 14 March 2007 concerned more specifically trades concluded through brokers. Second, as regards the exchange of 6 October 2006 on trading positions and the exchange of 24 November 2006 on mids and spreads, it is apparent from the contested decision that such exchanges were connected, albeit indirectly, with the Euribor rate, in so far as, on the basis of the information thus obtained from his or her competitor, a trader could assess his interlocutor’s predictions regarding the Euribor rate (recitals 32, 34, 36 and 390, recital 392(b) and recitals 411, 417 and 419 of the contested decision).

374    It is thus apparent from the contested decision that, by means of those exchanges, the parties participating in the practices at issue revealed information about fundamental aspects of their pricing strategy and of their conduct on the market with the aim of influencing the cash flows payable under EIRD contracts. Such practices would have enabled traders to increase transparency between the parties participating in the cartel and, as a result, significantly reduce uncertainty with regard to pricing and pricing intentions by giving them an advantage over market players not participating in the practices at issue (see recitals 384 and 393 to 395 of the contested decision).

375    Those considerations are sufficient to enable the applicants to ascertain the reasons for the measure and to enable the Court to exercise its power of review over the Commission’s assessments within the meaning of the case-law referred to in paragraph 338 above. The complaint alleging breach of the obligation to state reasons is therefore unfounded.

376    It is therefore necessary to examine whether the Commission was entitled to find that the exchanges on trading positions and pricing strategies relied on against JP Morgan, the factual accuracy of which was confirmed in the context of the examination of the first plea, constitute restrictions of competition by object.

(i)    The characterisation of the exchange of 6 October 2006 on trading positions as a restriction of competition by object

377    It should be noted that the exchange between the JP Morgan trader and the Deutsche Bank trader of 6 October 2006 is the only discussion involving JP Morgan, the factual accuracy of which has been confirmed, that the Commission held to be an exchange on trading positions for the purposes of recital 113(b), recital 358(b) and recital 392(b) of the contested decision without it also being linked to the manipulations of Euribor.

378    As regards the other exchanges classified, inter alia, as exchanges on trading positions, which come within the scope of conduct seeking to manipulate Euribor, it has already been shown (see paragraphs 343 to 362 above) that they form part of an infringement by object. As the Commission stated, in essence, in recital 417 of the contested decision, the purpose of such exchanges on trading positions was to verify that the parties’ commercial interests were aligned before they could take further concerted action to influence the value of EIRDs to the detriment of non-colluding competitors.

379    In respect of the exchange of 6 October 2006, the Court notes that there is no definition in the contested decision of the concept of ‘trading position’. Nevertheless, it is apparent from the various occurrences of that expression in the decision that it covers the composition of a trader’s investment portfolio (his or her ‘book’), and the level and direction of his or her exposure on the EIRD market.

380    Reasoning relating more specifically to trading positions is set out in other passages of the contested decision.

381    Thus, in recital 390 of the contested decision, the Commission observed that, according to Bank B, each market maker carried a trading book which consisted of an inventory of contracts and inferred from this that ‘by sharing their trading positions, market makers [were] able to infer each other’s demand and supply as regards these contracts and [could] use this information to their advantage. This [could] involve them adjusting their own trading patterns and [resulted] in them being better informed than their competitor market makers and other market participants’.

382    In recital 417 of the contested decision, the Commission stated that ‘exchanges on trading positions … served the objective of checking whether the parties’ commercial interests were aligned before they could take further concerted action to influence the value of EIRDs to the detriment of competitors not part of the cartel’. It added that ‘in the context of an EIRD market which was not transparent … sharing … information [on trading positions] allowed the colluding parties to be more informed than other market participants’. In the same recital, the Commission also stated that ‘by sharing their trading positions and therefore, being able to adjust their own trading patterns, the colluding parties could influence the value of their portfolios, which in turn influenced the trading conditions within the meaning of Article 101(1)(a) [TFEU] and therefore affect the structure of competition in the EIRD market’.

383    In that regard, it must be borne in mind that it is apparent from the case-law cited in paragraphs 326, 327, 330 and 333 above that, although an exchange of information between competitors is likely to be incompatible with the competition rules if it reduced or removed the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings was restricted, a finding of infringement by object must be restricted to those exchanges that reveal a sufficient degree of harm to competition, meaning that it is not necessary to examine their effects. That is the case, in particular, of an exchange of information that is capable of removing uncertainty in the minds of the interested parties as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market.

384    As a result, it is necessary to ascertain whether the information exchanged during the exchange of 6 October 2006 reduced or removed the degree of uncertainty on the market in such a way that the Commission could infer therefrom an impact on the normal course of pricing components in the EIRD sector without having to examine its effects.

385    The applicants maintain in that regard, in essence, that the information exchanged by the traders on 6 October 2006 related only to the general direction of the JP Morgan trader’s position on the March IMM futures. Inasmuch as the JP Morgan trader did not, according to the applicants, provide the Deutsche Bank trader with any other information, such as the size of his position, whether he wished to expand or reduce that position and by how much, how that position related to his overall book exposure, when any risks to which he was exposed would mature (‘roll off’), how he would trade in the future or how he would price any contract, the information disclosed by the JP Morgan trader was not competitively sensitive because it would not have enabled the Deutsche Bank trader to determine his trading strategy (see paragraphs 137 and 316 above).

386    In that regard, it should be noted that, during the exchange of 6 October 2006, the traders discussed the composition of their portfolios, thus exchanging information of a confidential nature, outside the context of a potential trade (see paragraph 136 above). In addition, contrary to what the applicants claim, the information thus communicated between the traders is sufficiently precise to give them an informational advantage that may have allowed them to adjust their trading strategies as a result.

387    Indeed, the Deutsche Bank trader suggested that the JP Morgan trader adopt a certain trading strategy consisting in hedging his FRA position with 2007 March IMM futures. Moreover, the JP Morgan trader shared with the Deutsche Bank trader his understanding of the market, which anticipated a narrowing of the gap between the EONIA and Euribor rates in March 2007, and he revealed that, as a result, he had taken a ‘small’ payer position in respect of 2007 March IMM futures.

388    Accordingly, even though the JP Morgan trader did not share information on the overall situation of his portfolio or precise information on the size of his position, another professional trader of EIRDs could understand, on the basis of the information thus disclosed, his trading strategy concerning the 2007 IMM futures, namely the adjustment of the trading position to a ‘small’ payer position in anticipation of the narrowing of the spread between EONIA and Euribor.

389    That exchange of information therefore gave the competing trader an informational advantage which could allow him to adjust his own trading strategy on the EIRD market as a result.

390    The Commission did not therefore make an error of law or assessment in finding that that exchange had increased transparency between only the parties participating in the collusion as to their conduct on the market, and thus significantly reduced the normal uncertainties inherent in the EIRD market, in which the ability of the banks to assess the risks associated with the individual estimation of the value of EIRDs, in particular by means of estimates of changes in benchmark rates, constitutes one of the essential parameters of competition.

391    In the light of the foregoing, subject to the examination, below, of the complaint based on the pro-competitive effects of the exchange in question and applying by analogy the considerations set out in paragraph 363 above, according to which it is not necessary to examine whether the conduct at issue has an object restrictive of competition also in so far as it related to other trading conditions, it is necessary to reject the applicants’ complaint alleging that the Commission was wrong to find that the exchange of 6 October 2006 constituted conduct restrictive of competition by object.

(ii) The characterisation of the exchanges on pricing strategy of 13 and 24 November 2006 and 14 March 2007 as a restriction of competition by object

392    Three discussions between the JP Morgan trader and the Deutsche Bank trader, namely those of 13 and 24 November 2006 and of 14 March 2007, come within the scope of the conduct which the Commission found to be exchanges on pricing strategies within the meaning of recital 113(g), recital 358(g) and recital 392(g) of the contested decision, without also coming within the scope of conduct relating to Euribor manipulations. The exchanges of 25 and 26 October 2006 do also constitute exchanges relating to Euribor manipulation, which have already been shown (see paragraphs 343 to 362 above) to come within the scope of an infringement by object. In accordance with the case-law referred to in paragraph 164 above, it is therefore not necessary to examine whether those exchanges have an object restrictive of competition inasmuch as they also constitute an exchange on pricing strategies.

393    As regards, first, the exchange of 13 November 2006, the Commission noted, in recital 212 of the contested decision, that during that exchange the Deutsche Bank and JP Morgan traders discussed the level of spreads, which is understood to mean bid-ask spreads (see paragraph 190 above). As noted in paragraph 193 above, during that exchange, the traders agreed not to accept the spreads offered by brokers and to reduce therefore the revenues or margins of those brokers.

394    Second, the Commission found that, during the exchange of 24 November 2006, the JP Morgan trader had provided the Deutsche Bank trader with precise information on his view on the mid and the level of the spread that he would apply to the price of a specific type of product (1*2 FRA) and size of trade (for a notional amount of EUR 100 billion), outside the context of a discussion with a view to a potential trade (see paragraphs 200 to 202 above).

395    Third, the parties agree that the exchange of 14 March 2007 concerned the brokerage fees applied by the banks in respect of trades concluded through brokers. The JP Morgan trader and the Deutsche Bank trader informed each other of the precise level of those fees, as well as the level applied by another bank. The JP Morgan trader also stated that his bank intended to renegotiate those fees (see paragraphs 249 to 251 above).

396    In that regard, it should be noted, first of all, that, in recital 32 of the contested decision, it is stated that the terms ‘run’ or ‘mids’, ‘in simple terms … can be described as price lists of a trader, a trading desk or a bank regarding certain standard financial products’. In the same recital, it is stated that the term ‘spread’ ‘usually refers to a margin that a market player takes for a service, such as for providing liquidity to the market by offering to buy and sell EIRDs at the same time (market making)’.

397    In addition, it is apparent from recital 34 of that decision that the term ‘mid’ ‘refers to the mid-point or average of the bid and offer prices (for example perceived, modelled, quoted or traded) for a particular product [and that] the mid often serves as a reliable approximation of where a market maker would trade with a client, in particular where the market is liquid and the bid-offer spread is narrow’.

398    Also in recital 34 of the contested decision, the Commission referred to the explanation provided by a bank according to which ‘derivatives traders use[d] the mid points on their yield curves to help determine the bid or offer prices they [were going] to make to the market. Through knowing a competitor’s mid point, although it is not actually the dealing price, a derivatives trader [was] more easily able to work out the actual bid or offer prices of its competitors. Mids [were] used for pricing, managing trading positions and appreciation of a portfolio’.

399    In recital 419 of the contested decision, the Commission stated that the mid constituted each trader’s estimate for the actual price of the EIRD and that there were as many estimates of the mid as there were market players, ‘as the mid represent[ed] an individual perception of the price, and therefore reveal[ed] a price intention’. In that regard, it noted that one of the banks to which the contested decision was addressed had stated that the ‘offer price’ was typically set slightly above the mid and the bid price was typically set slightly below the mid, and that changes in the mid ‘tend[ed] to result in a parallel change of both the bid and the offer’ and, therefore, that the mid is a close proxy to the price.

400    In recital 36 of the contested decision, the Commission held that a ‘spread’ was essentially the difference between two values. According to the Commission, the term ‘spread’, in the sense used in recital 138 of the contested decision, refers to the ‘basis’, that is to say the difference between two tenors of the same reference rate (for example, 1-month and 3-month Euribor). According to the same recital, alternatively, the term ‘spread’ often refers to the difference between the ‘bid’ and ‘offer’ prices for certain specific products. The Commission also stated that a bank had explained to it that a collective effort in determining spreads could affect the transaction price of a trade primarily because it could result in more informed quotes for the bidding party, thereby reducing uncertainties as regards market conditions. At the same time, that puts other market participants at a disadvantage compared to those involved in the collusion.

401    Those findings in the contested decision are not disputed by the applicants.

402    The Commission justified its classification of exchanges on pricing strategies, in particular those at issue in the present case, as an infringement by object by the fact that those discussions put the participants in a position of favourable informational asymmetry, by increasing transparency between the colluding parties and significantly reducing the normal uncertainties inherent in the market to the benefit of the colluding parties and to the detriment of other market participants and customers. By means of those practices, the parties participating in the infringement revealed to each other ‘information about fundamental aspects of their market strategy and conduct on the market’ with regard to price fixing, which resulted in transparency as to competitors’ pricing intentions between only the parties involved that could not be achieved without those exchanges. According to the Commission, those exchanges, relating to not publicly available information, went beyond what was necessary for the legitimate negotiation of EIRD trades or for the legitimate non-discriminatory dissemination of information for the purpose of increasing liquidity in the market (recitals 395 and 403 of the contested decision) (also see paragraph 374 above).

403    Those assessments that the Commission made in respect of the exchanges of 13 and 24 November 2006 and of 14 March 2007 are not vitiated by any error of law or assessment.

404    First, during the exchanges of 13 November 2006 and 14 March 2007, the traders revealed commercially sensitive and confidential information relating to their future conduct on the market as regards trades concluded through brokers, which made it possible to reduce significantly the uncertainty with regard to pricing and pricing intentions to the detriment of other market players, in particular brokers (see recital 389, recital 392(g) and recital 395 of the contested decision).

405    Second, during the exchange of 24 November 2006, the Deutsche Bank trader acquired from the JP Morgan trader specific knowledge on pricing for a particular product and, in particular, on his opinion on the mid price and spread he would apply to such a product. Such non-public information, shared only between the traders, enabled the Deutsche Bank trader to give a more informed quote of an EIRD product to a third party, reducing the risks that he normally took as a result of his trading activities, to the detriment of the other party to the trade (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 200).

406    As is apparent from the case-law referred to in paragraphs 330 and 331 above, the requirement of autonomy inherent in Article 101 TFEU strictly precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which it has decided to adopt on that market or contemplates adopting on that market, where those contacts have the object or effect of leading to conditions of competition which do not correspond to the normal conditions of the market in question (judgment of 12 January 2023, HSBC Holdings and Others v Commission,  C‑883/19 P, EU:C:2023:11, paragraph 202).

407    Therefore, in accordance with the case-law referred to in paragraph 333 above, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object regardless of the direct effects in the prices paid by end users (judgment of 12 January 2023, HSBC Holdings and Others v Commission,  C‑883/19 P, EU:C:2023:11, paragraph 203).

408    The Commission was therefore right to find that the exchanges of information such as, in the present case, the mids and spreads, the level of the brokerage fees or the approach with regard to the prices offered by the brokers made it possible to increase transparency between only the parties participating in the collusion as to their competitors’ pricing intentions, and thus to reduce significantly the normal uncertainties inherent in the EIRD market, on which the ability of the banks to assess the risks associated with the individual estimation of the value of EIRDs constitutes one of the essential parameters of competition (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission,  C‑883/19 P, EU:C:2023:11, paragraphs 201 to 204).

409    Furthermore, an exchange between competitors regarding a factor that is relevant for pricing and is not publicly available is all the more competitively sensitive where it takes place between traders acting, as in the cases of the JP Morgan trader and the Deutsche Bank trader, as ‘market makers’, in the light of the importance of such traders on the EIRD market. Indeed, ‘market makers’ are generally and continuously active and therefore enter into a larger number of transactions than other market participants. From the point of view of preserving competition on the market, it is particularly fundamental that prices be determined independently.

410    Accordingly, the applicants’ arguments that the Commission did not demonstrate, in the contested decision, that JP Morgan had sought to ‘influence’ mids or spreads, as it did not ‘coordinate’ or ‘distort’ them, must be rejected. It is true that the traders did not agree to apply, in a concerted manner, a certain level of mid or spread to particular products. However, by disclosing to each other their views on the level of a mid and a spread, or by agreeing not to accept the level of spread proposed by the brokers, the JP Morgan trader and the Deutsche Bank trader revealed the conduct which they were likely to adopt on the market, which enabled them to be better informed as regards the envisaged level of their competitor’s mids and spreads, or as regards the attitude they were each likely to adopt vis-à-vis brokers and, as a result, to adjust their conduct on the market in the light of that information to the detriment of other operators. The same considerations apply to the exchange of 14 March 2007 in which the traders discussed the level of brokerage fees and JP Morgan’s intention to renegotiate those fees, which is information that is relevant to EIRD pricing strategies.

411    That conclusion is not called into question by the applicants’ other arguments.

412    First, it follows from the foregoing that, contrary to what the applicants maintain, the Commission did not take the view that any agreement or exchange of information seeking to reduce uncertainty was restrictive by object, or that a communication that did not pursue a legitimate object such as the negotiation of a trade for that reason alone pursued an anticompetitive object. Indeed, the Commission demonstrated, taking into account the context of the functioning of the EIRD market (see recitals 428 to 431 of the contested decision), that the practices at issue in the present case, including the exchanges of 13 and 24 November 2006, and of 14 March 2007, affected normal competition by allowing the parties participating in the collusion to benefit from the sharing of competitively sensitive information to the detriment of other market participants. Thus, the conclusion in the contested decision that the exchanges constitute a restriction of competition by object in no way prohibits the traders ‘from speaking to each other’ for legitimate reasons connected to their trading activities, but is intended only to penalise exchanges of information that are detrimental to competition.

413    Second, the applicants claim that the exchanges at issue did not concern future pricing intentions and that the Commission has not demonstrated that they were ‘capable’ of restricting competition.

414    However, as regards specifically the exchanges of 13 and 24 November 2006, the applicants do not dispute that mids and spreads, such as those that were referred to during those discussions, are relevant for the pricing of EIRDs. In addition, it should be noted that, contrary to what the applicants maintain, it is not a question of ‘external factors that might be relevant to pricing’, but of a competitor’s estimation as to the level at which he or she would be willing to trade and thus as to his or her intentions concerning his or her conduct on the market within the meaning of the case-law on which the applicants rely (see, to that effect, judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraphs 120 and 134; also see recital 403 of the contested decision). Moreover, as was stated in paragraph 250 above, the traders must necessarily take into account the brokerage fees, as referred to in the exchange of 14 March 2007, in the context of trading EIRDs, when forecasting the profits under those trades. The applicants merely highlight the characteristics of the OTC and EIRD markets without putting forward specific arguments capable of calling into question the Commission’s conclusion in the contested decision that the exchanges concerning such information that is relevant for pricing, when it is communicated selectively between competitors, is capable of distorting competition on the EIRD market.

415    Third, the applicants claim that, as market makers, banks make prices available to the market by sending out lists of indicative bids/offers, spreads, mids and runs to generate interest from others in trading. They are not however required to buy or sell EIRDs at a posted price, but individually negotiate the prices for trades on a bilateral basis with the other parties. Furthermore, while traders can use yield curves as a guide when pricing EIRDs, contrary to what the Commission found, those yield curves are not confidential, but are created from publicly available information. Therefore, disclosure of that information would not allow a bank to anticipate the disclosing bank’s actual prices for a trade.

416    In the first place, in so far as, by such an argument, the applicants dispute the confidential nature of the information exchanged between the traders on 13 and 24 November 2006, the Court notes that the information on mids for OTC derivatives is not public, unlike the equivalent information for derivatives traded on a regulated market (judgment of 24 September 2019, HSBC Holdings and Others v Commission, T‑105/17, EU:T:2019:675, paragraph 142, confirmed, in that regard, by the judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 195). While it is common ground between the parties, inter alia, that mids relating to EIRDs may be made public directly on the part of certain traders or indirectly through brokerage companies, the fact remains that such information is generally not available.

417    In any event, even if the mids and spreads were disseminated by the traders in order to encourage opportunities to agree a trade, a distinction must be drawn between, on the one hand, competitors that glean information independently or discuss future pricing with customers and third parties and, on the other hand, competitors that discuss price-setting factors and the evolution of prices with other competitors. Although the first type of conduct does not raise any difficulty in terms of the exercise of free and undistorted competition, the same cannot be said of the second type (see, to that effect, judgment of 14 March 2013, Dole Food and Dole Germany v Commission, T‑588/08, EU:T:2013:130, paragraphs 291 and 292 and the case-law cited).

418    Accordingly, even if, in the present case, the traders exchanged information which indeed had been disseminated or could have been obtained through other sources, that does not render the contact between the competing traders lawful, since, as is apparent from the case-law cited in paragraphs 330 and 331 above, each economic operator must determine independently the policy which it intends to adopt in the internal market. While it is correct to say that this requirement for independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators the object or effect of which is, inter alia, to reveal to a competitor the conduct which it has decided to adopt or contemplates adopting on that market (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 202 and the case-law cited).

419    In addition, the JP Morgan trader’s direct communication, during the exchange of 24 November 2006, of his estimate of the mid and spread of a specific product for a specified volume enabled the Deutsche Bank trader to obtain that information more simply, rapidly and directly than he would have been able to via the market. The same is true as regards the level of the brokerage fees applied by JP Morgan and as regards that bank’s intention to renegotiate those fees, which resulted from the exchanges between the traders on 14 March 2007. Those exchanges also allowed the traders to create a climate of mutual certainty as to their future pricing policies within the meaning of the case-law (see, to that effect, judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 323 and the case-law cited).

420    Accordingly, for the reasons set out in paragraphs 353 to 357 above, it is also necessary to reject as unfounded the applicants’ argument that the Commission did not demonstrate, in accordance with the judgment of 23 November 2006, Asnef-Equifax and Administración del Estado (C‑238/05, EU:C:2006:734), that the reduction in uncertainty on the market in question resulting from the exchanges of 13 and 24 November 2006 and of 14 March 2007 gave rise to a restriction of competition between undertakings. As the Commission stated, in essence, in recital 403 of the contested decision, the exchange of this information went beyond what was necessary for the legitimate and non-discriminatory dissemination of information to increase liquidity in the EIRD market.

421    In the second place, in so far as the applicants claim that yield curves are not confidential, it must be noted, first of all, that they do not dispute that those yield curves are relevant to a bank’s pricing of EIRDs. It is true that, in determining those yield curves, the banks take into account publicly available information. However, they are modelled using the bank’s own estimates of changes in market conditions, including interest rates, and its own risk assessment. Those yield curves – which are an important parameter that a trader will take into account for the purpose of determining the fixed rate of an EIRD contract that will allow that trader to expect to receive the future cash flow resulting from the difference between the variable rate and the fixed rate on the fixing date – thus constitute competitively confidential and sensitive information (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 117 and 122).

422    In the third place, it is indeed true that market makers, such as JP Morgan and Deutsche Bank, act both as counterparties, by trading with each other, and as competitors in respect of potential customers. However, this context of the functioning of the EIRD market, highlighted by the applicants, was taken into account by the Commission in the contested decision when it noted that the exchanges at issue had taken place outside the context of contract negotiations (see, inter alia, recital 390, recital 392(g) and recital 403 of the contested decision). The applicants assert solely, in essence, that that fact is not a sufficient basis on which to conclude that such an exchange is restrictive of competition by object, in that, although they did not take place with a view to a potential transaction, the exchanges at issue pursued legitimate aims. Those arguments come within the scope of a complaint seeking to demonstrate allegedly pro-competitive effects of the exchanges at issue, which will be examined below.

423    In the fourth place, the applicants claim that the information exchanged concerned only ‘market developments that could [have been] relevant to pricing’ and not ‘future pricing intentions’. However, it is sufficient to note that that claim cannot succeed as regards the exchanges of 13 and 24 November 2006, and of 14 March 2007, in the light of the examination carried out in the context of the first plea.

424    It follows that, subject to the examination, below, of the arguments relating to the pro-competitive effects of the exchanges at issue and by applying, by analogy, the considerations set out in paragraph 363 above, according to which it is not necessary to examine whether the conduct at issue has an object restrictive of competition also in so far as it related to other trading conditions, it is necessary to reject the applicants’ complaints alleging that the Commission incorrectly found that the exchanges of 13 and 24 November 2006 and of 14 March 2007 constituted conduct restrictive of competition by object.

(3)    The pro-competitive effects of the conduct at issue

425    The applicants claim, in essence, that the discussions between the traders in question in the present case were legitimate and pro-competitive in the context of market making inasmuch as they contributed to an increase in transparency and liquidity in the EIRD market. In addition, owing to the fact that market makers were able to offset the risks that had accrued from their trades with third parties by trading with each other, and that exchanging opinions on the economic situation of the market made it possible to increase their overall level of understanding of the situation, traders were able to offer more favourable terms to ‘pure’ customers, including better rather than higher prices.

426    The Commission disputes the applicants’ arguments and contests the claim that the exchanges relied on against JP Morgan are legitimate and pro-competitive in nature.

427    As a preliminary point, the Court notes that the arguments put forward by the applicants as regards the alleged pro-competitive effects in question concern specifically the exchanges on trading positions and on pricing strategies, and not the exchanges relating to manipulations of the Euribor rate. Indeed, the applicants expressly agree that, in so far as the banks communicated with a view to manipulating Euribor, that is not a legitimate objective.

428    In that regard, it is important to note that, where the parties to an agreement or to a concerted practice rely on its pro-competitive effects, those effects must, as elements of the context of that agreement or concerted practice, within the meaning of the case-law cited in paragraph 328 above, be duly taken into account for the purposes of its characterisation as a ‘restriction by object’, in so far as they are capable of calling into question the overall assessment of whether the concerted practice concerned revealed a sufficient degree of harm to competition and, consequently, of whether it should be characterised as a ‘restriction by object’ (see, to that effect, judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 103).

429    Since taking account of those pro-competitive effects is intended not to undermine characterisation as a ‘restriction of competition’ within the meaning of Article 101(1) TFEU, but merely to appreciate the objective seriousness of the practice concerned and, consequently, to determine the means of proving it, that does not conflict with the Court’s settled case-law that EU competition law does not recognise a ‘rule of reason’, by virtue of which there should be undertaken a weighing of the pro- and anticompetitive effects of an agreement when it is to be characterised as a ‘restriction of competition’ under Article 101(1) TFEU (see judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 104 and the case-law cited).

430    However, the mere presence of pro-competitive effects, assuming that they are demonstrated, relevant and specifically related to the agreement concerned, cannot, as such, preclude characterisation as a ‘restriction by object’, since those pro-competitive effects must be sufficiently significant to raise reasonable doubts as to whether the practices at issue are sufficiently harmful to competition and, accordingly, as to their anticompetitive object. Conversely, pro-competitive effects that were not only minimal but probably uncertain, cannot be sufficient to give rise to reasonable doubt that a practice is sufficiently harmful to competition (see, to that effect, judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraphs 105 to 107 and 110).

431    In the present case, as a preliminary point, it is important to bear in mind that it is apparent from the examination of the first plea that the exchanges in respect of which the accuracy of the Commission’s findings was confirmed do not come within the scope of negotiations with a view to agreeing a trade and do not constitute a mere exchange of views on the economic situation of the market. The applicants’ arguments seeking to demonstrate the legitimate and pro-competitive nature of the exchanges at issue on those grounds must therefore be rejected as unfounded.

432    In their arguments seeking to demonstrate that the exchanges at issue had pro-competitive effects, the applicants claim, in essence, that the discussions on trading positions and on pricing strategies were legitimate and pro-competitive because they allowed the traders to offer better trading conditions to ‘pure’ customers, in that that they knew that they had the opportunity to ‘hedge’ their risks by entering into mutually advantageous trades with another market maker.

433    However, the applicants do not demonstrate that such effects, assuming that they are proven, are specifically related to the practices at issue and sufficiently significant within the meaning of the case-law cited in paragraph 430 above. The applicants have failed to establish that only the exchange of confidential information on a competitor’s trading strategies or on factors relevant to EIRD pricing, such as mids, spreads or intentions concerning pricing strategy vis-à-vis brokers, allow traders to offer ‘pure’ customers the advantageous conditions they invoke, whereas the ability of the banks to assess the risks associated with the individual estimation of the value of EIRDs constitutes a core element of competition.

434    Furthermore, at no time have the applicants demonstrated the importance of the alleged pro-competitive effects, notably regarding the trading conditions such as price that the trader would have been able to offer a customer thanks to the exchanges at issue as compared to the trading conditions that he was able to offer in the absence of such conduct restricting competition.

435    In any event, according to settled case-law, Article 101 TFEU, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such. Therefore, in order to find that a concerted practice has an anticompetitive object, there does not need to be a direct link between that practice and consumer prices (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraphs 38 and 39, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 125). Accordingly, an alleged advantage for the traders’ customers resulting from the exchanges on trading positions or on mids, spreads or on pricing strategy vis-à-vis brokers, cannot in any event be sufficient to raise reasonable doubts as to whether the exchanges in question are sufficiently harmful to competition (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 198 and 199).

436    In that regard, as is apparent from the examination of the third plea, the exchanges between the Deutsche Bank trader and the JP Morgan trader of 6 October 2006, of 13 and 24 November 2006 and of 14 March 2007 reduced uncertainty as to their future pricing behaviour for the sole benefit of the traders involved in those exchanges, and to the detriment of other competitors who did not participate in those exchanges.

437    Therefore, contrary to what the applicants maintain, in essence, those exchanges of information increased transparency only between the parties participating in the cartel, by providing the competitor involved in those exchanges with important information regarding the conduct that the traders had adopted or were likely to adopt on the market and allowing that competitor to adjust his conduct on the market, that is to say his trading strategy or the price that he was going to offer to customers, to the detriment of the other market players (see, to that effect, recitals 403, 417 and 419 of the contested decision).

438    Similarly, the applicants’ argument that the exchanges at issue pursued a legitimate interest or had a pro-competitive effect inasmuch as they made it possible to increase liquidity in the market cannot succeed. As the Commission stated, in essence, in recital 403 of the contested decision, while the addressees of the contested decision, including JP Morgan, were all acting as market makers, and, as part of that, were holding themselves out as capable of buying or selling financial products in a general and continuous manner and thereby ensuring the liquidity of the market, exchanges on trading positions or on pricing strategies were not necessary to achieve that end.

439    It follows from the foregoing that the third plea in law must also be rejected.

2.      The Commission’s finding of a single infringement (fourth plea of the application)

440    The fourth plea, which is divided into three parts, seeks, in essence, to contest the Commission’s finding that JP Morgan participated in a single infringement.

441    According to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition in the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 156 and the case-law cited).

442    An undertaking which has participated in such a single and complex infringement through its own conduct, which came within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may thus be responsible also for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 157 and the case-law cited).

443    An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, an undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 158 and the case-law cited).

444    By contrast, if an undertaking has directly taken part in one or more of the forms of anticompetitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel or that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and was prepared to take the risk (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 159 and the case-law cited).

445    The undertaking concerned must therefore be aware of the general scope and the essential characteristics of the cartel as a whole (see judgment of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 64 and the case-law cited).

446    Furthermore, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to establish whether they present a link of complementarity, in that each of them is intended to deal with one or more consequences of the normal pattern of competition, and whether, through interaction, they contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of an overall plan having a single objective. The General Court is not in fact required to examine such an additional condition of complementarity. In contrast, the condition relating to a ‘single objective’ requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the conduct in fact implemented by other participating undertakings does not have an identical object or identical anticompetitive effect and, consequently, does not form part of an ‘overall plan’ as a result of an identical object distorting the normal pattern of competition within the internal market (see, to that effect, judgments of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraphs 247 and 248, and of 26 January 2017, Villeroy Boch Belgium v Commission, C‑642/13 P, EU:C:2017:58, paragraph 57).

447    In addition, to the extent that a finding of a single and continuous infringement leads to an undertaking being held liable for an infringement of competition law, when examining the arguments put forward by the applicants in order to challenge JP Morgan’s participation in the single infringement, account must be taken of the considerations set out in paragraphs 65, 66 and 87 above concerning the burden of proof.

448    In the present case, in order to justify the characterisation of the conduct in which the banks, including JP Morgan, participated as a single and continuous infringement, the Commission found, in the first place, that that conduct pursued a single economic aim (recitals 444 to 450 of the contested decision) that consisted in reducing the cash flows which the participants would have to pay under EIRDs or increasing those which they were to receive. In the second place, it took the view that the various instances of conduct formed a common pattern of behaviour, in so far as a stable group of individuals was involved in the cartel, the parties had followed a very similar pattern in their anticompetitive activities and the various discussions between the parties covered the same or overlapping topics and therefore had the same or almost the same content (recitals 451 to 456 of the contested decision). In the third place, it took the view that the traders participating in the anticompetitive exchanges were skilled professionals and were aware or should have been aware of the general scope and the essential characteristics of the cartel as a whole (recitals 457 to 483 of the contested decision).

449    The Commission found that JP Morgan had participated in that single and continuous infringement, emphasising that the bilateral exchanges with Deutsche Bank and Barclays themselves constituted an infringement of Article 101(1) TFEU (recital 487 of the contested decision).

450    As is apparent from the case-law cited in paragraphs 441 to 444 above, three factors are decisive for the purpose of concluding that an undertaking participated in a single and continuous infringement. The first concerns the very existence of the single and continuous infringement. The various forms of conduct in question must be part of an ‘overall plan’ with a single objective. The second and third factors concern whether or not the single and continuous infringement can be attributed to an undertaking. First, that undertaking must have been aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or have reasonably been able to foresee all that conduct and have been prepared to take the risk. Second, it must have intended, through its own conduct, to contribute to the common objectives pursued by all the participants. The existence of those three elements is, in essence, disputed in the three parts of the fourth plea, respectively.

(a)    The first part of the fourth plea, alleging flaws in the identification by the Commission of the single identical objective

451    In the first part of the fourth plea, the applicants submit, in essence, first, that the objective of ‘earning more money from EIRDs’ through the manipulation of reference rates is too vague to form a basis for the finding of a single and continuous infringement. Second, the conduct alleged by the Commission did not contribute to the achievement of a single economic objective on account of the fact that the collusive contacts sought to manipulate different Euribor tenors in different directions over different periods. The objectives of that conduct are neither interdependent nor complementary. Moreover, the manipulation of Euribor or EONIA does not have the same single economic objective as the coordination of trading positions. According to the applicants, there is a contradiction between the object of distortion of the normal course of pricing components in the EIRD sector, declared in Article 1 of the contested decision, and the grounds on which that decision is based, which suggest two infringements: a coordination of trading activities and a manipulation of benchmark interest rates. Such a contradiction therefore infringes the applicants’ rights of defence.

452    The Commission disputes the applicants’ arguments and is of the view that it correctly identified the single objective of the infringement and correctly found that all the conduct at issue could be linked to that single objective.

453    The relevant grounds are set out in recitals 444 to 456 of the contested decision under the headings ‘Single economic aim’ and ‘Common pattern of behaviour’, and were summarised in paragraph 448 above.

454    More specifically, in recital 445 of the contested decision the single aim identified by the Commission was described as being ‘[to reduce] the cash flows [that the colluding parties] would have to pay (or [to increase] those they would receive) and thereby [to increase] the value of the EIRDs they had in their portfolio, to the detriment of the counterparties to these EIRDs’.

455    As noted in paragraphs 39 and 345 above, the cash flow linked to an EIRD results from the difference between the fixed rate of the contract, that is to say, the rate negotiated between the parties, and the variable rate, which depends on the benchmark rate.

456    As a preliminary point, it should be noted that the concept of a single objective cannot be determined by a general reference to the distortion of competition in a given sector, since an impact on competition, whether it is the object or the effect of the conduct in question, constitutes a consubstantial element of any conduct covered by Article 101(1) TFEU. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of a part of its meaning, since it would have the consequence that different types of conduct which relate to a particular economic sector and are prohibited by Article 101(1) TFEU would have to be systematically characterised as constituent elements of a single infringement (judgments of 12 December 2007, BASF and UCB v Commission, T‑101/05 and T‑111/05, EU:T:2007:380, paragraph 180, and of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 92).

457    It follows that, indeed, the single objective cannot be defined in a ‘vague’ manner. However, contrary to what the applicants claim in an initial series of arguments, the Commission did not, in the present case, define the single objective as being ‘to earn more money’, but as seeking to influence the cash flow payable under EIRD contracts to the detriment of the counterparties to those contracts. That objective is sufficiently precise and specific to support the existence, in the present case, of a single infringement and contrasts with the definition of the single objective given in the cases giving rise to the case-law relied on by the applicants in support of their argument, namely the distortion of competition on the market concerned by the infringement or the distortion of prices.

458    Consequently, pursuant to the case-law cited in paragraph 456 above, in the present case, only restrictions of competition the aim of which has been established to be the distortion of the normal course of either the fixed rate or the variable rate of EIRDs can have the single objective found by the Commission. It would be contrary to that case-law to find that instances of conduct that restrict competition but do not have a sufficiently close link with the fixing of those rates also have that objective.

459    It is therefore necessary to ascertain whether all the conduct relied on by the Commission against the applicants and referred to in paragraph 273 above can be linked to that single objective. In that regard, it is necessary to distinguish between, on the one hand, forms of conduct relating to the manipulation of Euribor submissions and, on the other hand, exchanges concerning EIRD trading positions and exchanges concerning detailed and not publicly available information regarding EIRD pricing intentions and strategies.

460    With regard, in the first place, to the exchanges relating to the manipulation of Euribor submissions, since the variable rate of an EIRD is based directly on the benchmark rate, those exchanges necessarily have the single objective identified by the Commission.

461    With regard to JP Morgan, the discussions of 27, 28 and 29 September 2006, of 2, 25 and 26 October 2006, of 8 November 2006, of 18 December 2006, of 4 and 8 January 2007, of 6 February 2007 and of 16 and 19 March 2007, referred to in paragraph 296 above, which sought to manipulate different Euribor rate tenors, are covered by that objective.

462    The applicants claim in that regard, in essence, that the collusive communications seeking to manipulate different Euribor tenors in different directions over different periods do not share the same objective and do not therefore come within the scope of the single economic objective. That argument is unfounded. Although the case-law referred to in paragraph 456 above prevents the Commission from adopting a definition of the single aim that is so broad as to be similar to a general reference to the distortion of competition in a given sector, it would be contrary to the logic of the concept of a single infringement to require the Commission, when defining that single objective, to be so precise that it de facto prevents it from including in that same infringement conduct which took place over different periods or which did not have exactly the same specific result.

463    Regarding the argument by which the applicants claim that the objectives of the conduct that sought to manipulate Euribor are neither interdependent nor complementary, it should be borne in mind that, indeed, links of complementarity between agreements or concerted practices constitute objective indicia of an overall plan (see judgment of 15 December 2016, Philips and Philips France v Commission, T‑762/14, not published, EU:T:2016:738, paragraph 169 and the case-law cited).

464    However, as is apparent from the case-law cited in paragraph 446 above, for the purposes of characterising various instances of conduct as a single and continuous infringement, it is not necessary to establish, in all circumstances, that they have a link of complementarity.

465    In the present case, it is sufficient to note that, as regards the very object of the conduct at issue, which seeks to influence the cash flow payable under EIRDs to the detriment of the market participants not participating in those exchanges, and in view of the circumstances referred to in paragraph 462 above, the absence of a link of ‘interdependence’ or complementarity between the various exchanges relating to rate manipulation, if that were established, is not, in any event, capable of calling into question the conclusion set out in paragraph 460 above.

466    Accordingly, it must be concluded that all the exchanges relating to Euribor manipulations have the same single objective identified by the Commission.

467    In so far as concerns, in the second place, the exchanges concerning trading positions and pricing strategies, it should be noted, at the outset, that only the exchanges of 6 October 2006, of 13 and 24 November 2006 and of 14 March 2007, which did not take place with a view to manipulation of the benchmark rates or jointly therewith, are concerned.

468    Indeed, the discussions between the traders about trading positions that occurred with a view to a manipulation of benchmark rates or jointly with such a manipulation come within the scope of the single objective of the infringement for the reasons set out in paragraphs 460 to 465 above.

469    The applicants maintain that the objective of coordinating trading positions is capable of undermining the objective of increasing the value of EIRDs by Euribor manipulation and is therefore inconsistent with that objective.

470    In that regard, it should be noted, as is apparent, in essence, from recital 417 of the contested decision, that, contrary to what the applicants argue, in essence, those exchanges were complementary to the practices relating to rate manipulation in that they served to check whether the parties’ commercial interests were aligned before initiating further concerted action seeking to influence banks’ submissions to the Euribor panel. It follows that those exchanges on trading positions come within the scope of the single objective.

471    As regards the exchange of 6 October 2006 on trading positions and the exchanges of 13 and 24 November 2006 and of 14 March 2007 regarding detailed, not publicly available information on EIRD pricing intentions and strategies, the applicants submit, in essence, that the grounds on which the operative part of the contested decision is based suggest two infringements, namely (i) the coordination of trading activities and (ii) the manipulation of benchmark interest rates. According to the applicants, those two objects cannot serve as a basis for establishing a single and continuous infringement.

472    Contrary to what the applicants seem to claim, it cannot be automatically excluded that exchanges on trading positions or on EIRD pricing strategies have the single objective identified by the Commission, despite the fact that they did not occur in view of manipulation of benchmark rates or jointly with such manipulation. Nevertheless, for the reasons explained in paragraphs 456 and 457 above, they can be found to have that objective only if the Commission has demonstrated that the purpose of those exchanges was to distort the normal course of either the fixed rate or the variable rate of EIRDs. With regard to JP Morgan, it follows from paragraphs 386 to 391, 403 to 410 and 414 above that such was the case in respect of the discussions of 6 October 2006, of 13 and 24 November 2006 and of 14 March 2007 in which its trader participated.

473    The conclusion that all the exchanges relied on against JP Morgan in the present case form a single infringement is supported by other evidence relied on by the Commission in the contested decision to demonstrate that those exchanges are part of an ‘overall plan’ pursuing the single objective. Indeed, the practices at issue concern the same products, namely EIRDs and take the form of relatively regular bilateral exchanges overlapping in time and taking place between a stable group of individuals employed by the parties, namely, as regards the exchanges involving JP Morgan, on the one hand, one of its traders and, on the other hand, a Deutsche Bank trader or a Barclays trader (recital 447 of the contested decision). These factors have been identified by the case-law as being relevant for assessing whether there is a single infringement (see, to that effect, judgments of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 243, and of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 60 and the case-law cited).

474    The first part of the fourth plea must therefore be rejected as unfounded.

(b)    The second part of the fourth plea, alleging that the Commission failed to demonstrate that the applicants were aware of or could reasonably have foreseen the infringing conduct planned or put into effect by the other parties

475    In the second part of the fourth plea, the applicants submit, in essence, that the Commission incorrectly found that the JP Morgan trader was aware of or could reasonably have foreseen the infringing conduct planned or put into effect by other undertakings seeking the manipulation of Euribor fixings. In particular, they claim that neither the grounds of the contested decision specific to JP Morgan, set out in recitals 478 to 482 of the contested decision, nor the grounds relating to all the banks, set out in recitals 458 to 465 of that decision, demonstrate that JP Morgan was aware or should have been aware of the general scope and the essential characteristics of the cartel as a whole. Lastly, relying on the case-law, the applicants claim that, in a case such as the present, awareness must relate to the specific tenors and directions that the parties concerned planned to manipulate. Yet, the contested decision does not satisfy that criterion.

476    The Commission contests those arguments.

477    As regards the grounds common to all the banks, the Court notes that they are based on the finding, stated in recital 457 of the contested decision, that the traders participating in the anticompetitive exchanges were skilled professionals and were aware or should have been aware of the general scope and the essential characteristics of the cartel.

478    In that regard, the Commission referred, first, in recital 458 of the contested decision, to the very specific context in which the traders operated, namely by way of bilateral exchanges that were recorded and monitored and during which the traders, who contacted each other on a regular basis and always for the same type of operation, used a coded language. It noted, second, in recital 459 of the contested decision, that the traders involved in the exchanges were aware that traders in other banks were ready to engage in the same type of collusive behaviour concerning pricing components and other trading conditions of EIRDs. It argued, third, in recitals 460 and 461 of the contested decision, that the evidence showed that there was a widespread general awareness of the declaratory nature of the mechanism for setting the Euribor rate and, consequently, of the fact that it could be distorted by the panel banks’ submissions. According to the Commission, the traders who took part in the collusive conduct at issue could not ignore the fact that if more banks changed their submissions on the same day and for the same Euribor tenor, the potential impact on the benchmark interest rate would increase in proportion to the number of banks involved. Fourth, in recital 463 of that decision, the Commission highlighted the fact that each of the banks in question had been active on the market in question for many years and that the traders had not expressed any surprise when they were asked to act in concert. In recitals 462 to 464 of the contested decision, it concluded, in essence, from the combination of those factors that the traders who participated in those bilateral exchanges were aware or should have been aware that it was likely that several banks were involved in the collusive arrangements, even if that information had never explicitly been disclosed to them. The Commission also stated, in recital 465 of that decision, that the traders were subject to a high level of recording and supervision, meaning that it had to be considered that their management was aware or could have been aware of the essential characteristics of the collusive scheme and of their employees’ involvement in that scheme. It added that it had to take into account the precautions taken by traders to conceal their arrangements.

479    As regards the grounds specific to JP Morgan, first, the Commission found, in recital 478 of the contested decision, that some references in the exchanges involving the JP Morgan trader indicated that he was aware that information on preferences for the future rate setting of certain Euribor tenors that he shared with the Deutsche Bank trader might be communicated by the latter to his contacts in other banks. Second, in recitals 479 and 480 of the contested decision, the Commission noted that the JP Morgan trader was aware of the close relationship between the Deutsche Bank trader and the Barclays trader. Third, in recital 481 of the contested decision, the Commission stated (i) that the Barclays trader had already offered, to the JP Morgan trader, to make submissions at any level he might wish for the Euribor fixings (exchange of 25 October 2006), and (ii) that, in view of the fact that the JP Morgan trader was aware of the very close trading relationship between the Barclays trader and the Deutsche Bank trader, he could reasonably foresee that whenever he exchanged preferences for the future rate setting of Euribor with the Deutsche Bank trader, individuals from other banks would be involved in the arrangements, including the Barclays trader. Fourth, in recital 482 of the contested decision, the Commission highlighted two indirect references (exchanges of 10 October 2006 between the Barclays trader and the Deutsche Bank trader and of 8 November 2006 between the Deutsche Bank trader and the JP Morgan trader) which, in its view, attest to the implication of the JP Morgan trader in the collusive exchanges and make it even less likely that JP Morgan was not aware or could not reasonably foresee that the collusion on Euribor submissions involved other banks in addition to Deutsche Bank.

480    As a preliminary point, it is necessary to reject the Commission’s argument that it should be found that, through its contact with Deutsche Bank, JP Morgan participated in all the forms of anticompetitive conduct comprising the single and continuous infringement and that that fact is sufficient to render it liable for all of that conduct.

481    JP Morgan’s alleged anticompetitive conduct took place in the context of bilateral discussions. Therefore, the fact that the discussions in which JP Morgan participated with Deutsche Bank come within some of the general categories referred to in recitals 113, 358 and 392 of the contested decision cannot, in itself, be sufficient to render JP Morgan liable for the infringing conduct, coming within the same categories, of the banks with which it did not have direct contact. In accordance with the case-law cited in paragraph 442 above, it was for the Commission to show that JP Morgan was aware of the infringing conduct planned or put into effect by the other banks or that it could reasonably have foreseen it.

482    In that regard, it is important to note that the applicants specifically dispute the Commission’s finding in the contested decision that JP Morgan was aware of the conduct planned or put into effect by the other parties to the cartel in pursuit of the same objective only in so far as the conduct seeking to manipulate Euribor fixtures is concerned.

483    They merely claim that ‘still less is there any basis for the sufficiently specific finding that [the JP Morgan trader] knew of the conduct of the other undertakings involved in the cartel, of their common plan or of the essential features of the cartel’. Even supposing that, by such an argument, the applicants intended to dispute the finding that the JP Morgan trader was aware of the fact that the conduct not relating to Euribor manipulations formed part of an overall plan, they put forward no specific argument to that effect, in particular as regards the JP Morgan trader not being aware of the involvement of the other banks in the practices other than Euribor manipulations.

484    As regards the applicants’ arguments challenging JP Morgan’s awareness of the conduct seeking to manipulate Euribor fixings planned or put into effect by the other parties to the cartel in pursuit of the same objective it should be recalled, as follows from paragraphs 277 to 312 above, that JP Morgan’s direct participation in the practices seeking to influence the Euribor panel submissions with a view to manipulating that rate was established by the Commission in respect of the exchanges between its trader and the Deutsche Bank trader and the Barclays trader on 27, 28 and 29 September 2006, 2, 25 and 26 October 2006, 8 November 2006, 18 December 2006, 4 and 8 January 2007, 6 February 2007 and 16 and 19 March 2007. Those exchanges concerned the various instances of Euribor fixing.

485    The applicants dispute, in essence, that the JP Morgan trader was aware or could reasonably have foreseen that those exchanges were part of an ‘overall plan’ going beyond the scope of bilateral exchanges and involving other banks.

486    In that regard, the Court notes that, contrary to what follows, in particular, from recital 459 of the contested decision, as regards JP Morgan, the Commission does not have direct evidence that the JP Morgan trader, through his bilateral exchanges with the Deutsche Bank trader and the Barclays trader, became aware of the fact that the conduct in which he participated with those traders formed part of a single infringement involving other banks. At no time did the Deutsche Bank trader or the Barclays trader inform the JP Morgan trader of the involvement of other banks in the collusive practices.

487    However, it is important to note, first, that, in view of the fact that the JP Morgan trader discussed, with both the Deutsche Bank trader and the Barclays trader, the possibility of influencing the submissions of their respective banks, he knew that at least two banks were participating in rate manipulation practices. Admittedly, that fact alone is not sufficient to demonstrate that the JP Morgan trader was aware of the fact that his exchanges with those traders went beyond the bilateral scope and that, through them, he participated in a single and continuous infringement with other banks. The applicants are right to argue, relying in that regard on the case-law, that the fact that the JP Morgan trader was in bilateral contact, even in parallel, with the two traders, is not sufficient to demonstrate that he was aware of the infringing conduct planned or implemented by the other parties to the cartel in pursuit of the same objectives (see, to that effect, judgment of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 86).

488    However, that fact and the evidence relied on in recitals 478 to 482 and 457 to 464 of the contested decision, viewed as a whole body of evidence, constitute firm, precise and consistent evidence capable of demonstrating that the JP Morgan trader could reasonably have foreseen that the exchanges referred to in paragraph 484 above were part of an ‘overall plan’ involving other banks.

489    It is patently clear from the evidence put forward in that regard by the Commission in recitals 479 and 481 of the contested decision that the JP Morgan trader was aware of the close professional relationship and friendship between the Deutsche Bank trader and the Barclays trader, which is accepted, in essence, by the applicants. That finding is not called into question by the exchange of 28 September 2006 between the Deutsche Bank trader and the Barclays trader (see recital 480 of the contested decision), invoked by the applicants, even assuming that it should be interpreted, as the applicants interpret it, as demonstrating that those traders actively concealed their unlawful activities from the JP Morgan trader.

490    Having regard to those circumstances, considered in the light of the fact that, through his bilateral contact with them, the JP Morgan trader knew that the Deutsche Bank trader and the Barclays trader were participating in conduct seeking to influence submissions to the Euribor panel with a view to manipulating the rates, he could reasonably foresee that the information on preferences for future Euribor submissions that he exchanged with the Deutsche Bank trader were being shared by the latter with the Barclays trader.

491    Second, the JP Morgan trader was also aware of, or could reasonably have foreseen, the involvement of the other banks in such rate manipulation practices. The Commission correctly refers in that regard, in recital 478 of the contested decision, to the exchange of 15 December 2006, during which the JP Morgan trader revealed to his submitter that certain banks, including Deutsche Bank, were playing a ‘game’ with the aim of manipulating upwards the 3m Euribor fixings on 18 December 2006 (see paragraphs 207 to 209 above). The Commission also correctly relies, in recital 482 of the contested decision, as an ‘indirect reference’, on the exchange of 8 November 2006. In the light of the exchange of 15 December 2006 during which the JP Morgan trader indicated that other ‘fellows’ joined the banks in playing a ‘game’ consisting of ‘forcing fixings higher’ (see paragraph 208 above), the exchange of 8 November 2006 must be interpreted as meaning that the JP Morgan trader thought that the submitters in some banks other than Deutsche Bank were more inclined to follow traders’ preferences on future Euribor submissions. Lastly, it is apparent from the exchange of 16 March 2007 between the JP Morgan trader and his bank’s submitter that that trader was aware of attempts to manipulate the March 2007 3m Euribor fixing or, at least, that he suspected such attempts, which also demonstrates his awareness of the fact that other banks active in the EIRD market engaged in such practices (see paragraph 258 above).

492    Examined in the light of the Bank E communications, relied on by the Commission in recital 487 of the contested decision and from which it is apparent that the JP Morgan trader was in the habit of exchanging information with competing traders other than the Deutsche Bank trader with a view to coordinating Euribor submissions depending on their respective trading positions (see paragraphs 73 and 75 above), those exchanges support the conclusion that the JP Morgan trader could at least reasonably have foreseen that banks other than those with which he had direct contact were participating in the conduct relating to manipulation of the Euribor rate.

493    Third, several considerations set out by the Commission regarding all the addressees of the contested decision (see paragraph 478 above) are also relevant as evidence forming part of a body of evidence.

494    The Commission noted, in recital 460 of the contested decision, the existence of a ‘wide-spread general awareness’ among market players of the fact that the mechanism of benchmark rate setting was declaratory and, as a result, that the submissions could be shifted by panel banks depending on their interests at the time of the submission (see also recital 406 of that decision).

495    In order to challenge those considerations, the applicants refer back to a statement made by the JP Morgan trader in his witness statement annexed to the application according to which he did not have such a perception of the mechanism of the submissions to the Euribor panel, that is to say that he did not think that the submissions took into account the interests of the panel banks.

496    As follows from paragraph 60 above, the JP Morgan trader’s statements have low probative value. In the absence of any other argument or piece of evidence put forward by the applicants, it must be held that they have not demonstrated that the Commission was incorrect in finding that there was such a widespread awareness among market players of the declaratory nature of the banks’ submissions to the Euribor panel, whereas the Commission relied in that regard on the internal documents of the banks participating in the infringement, in particular the documents which came to light during the inspections (see footnote 521 to the contested decision).

497    Moreover, in recitals 461 and 462 of the contested decision, the Commission noted that the traders could not ignore the fact that, if more banks changed their submissions on the same day and for the same Euribor tenor, the potential impact on the benchmark interest rate would increase in proportion to the number of banks involved, therefore the level of success of the collusive practices depended to a great extent on the involvement of more banks. For that reason also, some of the discussions between the traders, such as those in which the JP Morgan trader participated with the Deutsche Bank trader in January and February 2007, started some time before the fixings targeted by the manipulations, to enable the traders to align or adjust their trading positions.

498    It follows from this that an important and skilled market participant, such as the JP Morgan trader (see, to that effect and in essence, recitals 457 and 463 of the contested decision), was capable of deducing from the circumstances referred to in paragraphs 494 and 497 above that the Euribor manipulations which he was planning with the Deutsche Bank trader and the Barclays trader had more chance of succeeding if several banks were involved, even if he had not been explicitly informed by the latter two traders of the involvement of other specific banks.

499    Against that background, it is again necessary to reject the applicants’ arguments that the Commission was required to demonstrate specific awareness on the part of the JP Morgan trader of the other banks’ plans, in particular the tenors of the rate concerned and the direction of their planned manipulations. As follows from the case-law referred to in paragraph 445 above, the Commission need only establish that the undertaking concerned was aware of or could reasonably have foreseen the general scope and the essential characteristics of the cartel as a whole. In the present case, the JP Morgan trader was aware of the essential characteristics of the cartel as a whole seeking to influence the cash flows payable under EIRD contracts through the traders’ concerted action to influence their respective banks’ submissions to the Euribor panel with a view to manipulating that rate in line with their interests.

500    That conclusion is not called into question by the judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795), relied on in that respect by the applicants. The factual circumstances giving rise to that judgment are different from those in the present case inasmuch as the Commission found that the applicants in that case had the role of facilitator of the cartel within the meaning of the judgment of 8 July 2008, AC-Treuhand v Commission (T‑99/04, EU:T:2008:256), and not of a member of the cartel as in the case of JP Morgan here. In addition, the awareness of the applicants in that case of the common objectives of the parties to the cartel was established on the basis of a single conversation with limited content. It was in the specific context of the assessment of the duration of the infringement committed by the applicants in that case as facilitator of the cartel, and in particular of the continuous nature of that infringement, that the General Court rejected, in paragraph 228 of its judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795), invoked by the applicants, the evidence relied on by the Commission as regards the tenors of the rate or the directions of the manipulations different from those of which the applicants in that case were aware. Therefore, the applicants’ argument based on an analogy with that judgment cannot succeed. The Court also notes that the applicants did not put forward in the application any complaint challenging the Commission’s finding in the present case that the infringement was continuous in nature.

501    It follows from the foregoing that the evidence, viewed as a whole as a body of evidence, shows that the JP Morgan trader could reasonably have foreseen that the exchanges referred to in paragraph 484 above went beyond the scope of bilateral exchanges and formed part of a single infringement involving other banks aimed at altering the cash flows payable under EIRDs through concerted actions to manipulate the Euribor rate, and that he was prepared to take the risk. The second part of the fourth plea must therefore be rejected.

(c)    The third part of the fourth plea, alleging that the applicants did not intend to contribute to a common objective

502    In the third part of the fourth plea, the applicants claim that the Commission has not demonstrated JP Morgan’s intention to contribute to the single objective together with the other parties. They maintain that the communications between the traders on which the Commission relies in that respect and the case-law relied on in the contested decision are not relevant in that regard.

503    The Court notes that, as part of this line of argument, the applicants seek to demonstrate that the third condition, referred to in the case-law recalled in paragraphs 442 to 444 above, that makes it possible to attribute to an undertaking participation in the single infringement, is not satisfied in the present case as regards JP Morgan. More specifically, they challenge the Commission’s conclusion in recital 443 of the contested decision that it follows from the structure of the contacts, being bilateral, and the subject matter of the exchanges inasmuch as they concerned price components, that the non-settling parties intended to contribute to the collusive scheme.

504    In that regard, it should be borne in mind that, as regards the conduct relating to the manipulations of the Euribor rate, it has already been noted in paragraphs 284 and 343 above that it followed from the exchanges relied on by the Commission against JP Morgan that the parties to those exchanges intended to engage in anticompetitive practices, in that they at the very least considered the possibility of aligning the level of the future submissions of their respective banks and monitored the outcome of their actions.

505    In addition, as regards the exchanges relating to rate manipulations in which the JP Morgan trader and the Deutsche Bank trader did not expressly agree to align their banks’ submissions but merely discussed their satisfaction as regards the level of the day’s fixing following the attempts to manipulate the Euribor rate, or their trading positions in preparation for the March 2007 IMM date (see paragraphs 285 to 288 above), it should be noted that, by agreeing to receive such information without expressing reservations or opposition and without distancing himself publicly from the conduct of the other banks aimed at manipulating the Euribor rate on those dates, of which he was aware, or reporting it to the authorities, the JP Morgan trader tacitly approved that unlawful initiative by subscribing to what was decided within the meaning of the case-law cited in paragraphs 289 and 290 above and by contributing to encouraging it. He even took advantage of it by adjusting his trading position to avoid losses.

506    The same considerations apply to the exchanges of 6 October 2006, of 13 and 24 November 2006, and of 14 March 2007, during which the traders shared information relevant for their competitor’s pricing with the aim of influencing, by such collusive conduct, the cash flows payable under EIRDs.

507    Lastly, it is apparent from the examination of the second part of the present plea that the JP Morgan trader could reasonably have foreseen that his own conduct was part of an overall plan involving other banks.

508    It follows from the foregoing that, contrary to what the applicants claim, the JP Morgan trader participated, jointly with traders from other banks, in the collusive practices and thus intended to contribute through his own conduct to the common aim pursued by all the participants by taking the risk within the meaning of the case-law referred to in paragraphs 442 to 444 above.

509    Therefore, the third part of the fourth plea must be rejected as must, accordingly, the fourth plea in its entirety.

3.      The alleged failure to observe the principles of good administration, the presumption of innocence and rights of defence (fifth plea of the application)

510    The fifth plea is essentially divided into two parts in that the applicants claim that the Commission failed to observe fundamental principles of EU law, first, by making, in the settlement decision, factual findings regarding JP Morgan’s participation in the infringing conduct without giving it the opportunity to exercise its rights of defence and, second, on account of certain statements made by the competition Commissioner which demonstrated that the outcome of the investigation regarding the applicants had been prejudged.

511    The Commission disputes the applicants’ arguments and claims that they should be rejected.

(a)    The first part of the fifth plea in law, relating to the settlement decision

512    The applicants claim, in essence, that the Commission prejudged the facts regarding JP Morgan in the settlement decision, and therefore failed to observe (i) the presumption of JP Morgan’s innocence, (ii) JP Morgan’s rights of defence, and (iii) the Commission’s duty of objective impartiality, as provided for in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), and in Articles 41 and 48 of the Charter.

513    In that regard, it should be noted that the applicants do not dispute the principle of the hybrid procedure per se, but submit, in essence, that it was applied in an unlawful manner in the present case, in particular as a result of the adoption of the contested decision a period of time after the adoption of the settlement decision.

514    In that regard, it should be borne in mind, first of all, that the EU Courts have agreed that the Commission may initially adopt a settlement decision as regards the parties which have decided to enter into a settlement and that the Commission may go on to adopt a decision following the standard procedure in respect of the parties which decided not to enter into a settlement, provided, however, that it ensures, in the context of the adoption of the settlement decision, observance of the principle of the presumption of innocence in respect of the parties that did not take part in the settlement (see, to that effect, judgments of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 88 and 89 and the case-law cited, and of 10 November 2017, Icap and Others v Commission, T‑180/19, EU:T:2017:795, paragraphs 265 to 268).

515    Next, it should be noted that, in accordance with settled case-law, the Commission is required, during the administrative procedure relating to cartels, to respect the right to good administration enshrined in Article 41 of the Charter (see judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 154 and the case-law cited). Under that provision, every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union. That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (see judgments of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 155 and the case-law cited, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 77 and the case-law cited).

516    The principle of impartiality, which is part of the right to good administration, must be distinguished from the principle of the presumption of innocence, which, as noted in paragraph 87 above, applies, having regard to the nature of the infringements in question and to the nature and degree of severity of the ensuing penalties, to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. The presumption of innocence is a general principle of EU law laid down in Article 48(1) of the Charter.

517    Article 48 of the Charter corresponds to Article 6(2) and (3) ECHR, as is apparent from the Explanations relating to the Charter. It follows, in accordance with Article 52(3) of the Charter, that it is necessary to take account of Article 6(2) and (3) ECHR for the purposes of interpreting Article 48 of the Charter, as a minimum threshold of protection, and to draw on the case-law of the European Court of Human Rights (‘the ECtHR’) concerning Article 6 ECHR (see, to that effect, judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraphs 41 and 42). Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44, and of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 32).

(1)    Observance of the presumption of innocence

518    The principle of the presumption of innocence implies that every person accused is presumed to be innocent until his or her guilt has been established according to law. It precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits of the case (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 257 and the case-law cited).

519    In that regard, the ECtHR has held that premature expressions of a suspect’s guilt made in a judgment against separately prosecuted co-suspects may in theory also infringe the principle of the presumption of innocence (see ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, § 42 and the case-law cited).

520    The principle of the presumption of innocence will be infringed if a judicial decision or an official statement concerning a person charged contains a clear declaration, made in the absence of a final conviction, that the person concerned has committed the offence in question. In that context, the Court emphasises the importance of, first, the choice of words used by the judicial authorities and the particular circumstances in which they are expressed and, second, the nature and context of the proceedings in question (see judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 79 and the case-law cited; also see, to that effect, ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, § 63).

521    Accordingly, in complex criminal proceedings involving several persons who cannot be tried together, references by the competent court to the participation of third persons, who may later be tried separately, may be indispensable for the assessment of the guilt of those who are on trial separately. However, if facts related to the involvement of third parties have to be introduced, the relevant court should avoid giving more information than necessary for the assessment of the legal responsibility of those persons who are accused in the trial before it. In addition, the reasoning of judicial decisions must be worded in such a way as to avoid a potential prejudgment about the guilt of the third parties concerned, which could jeopardise the fair examination of the charges brought against them in the separate proceedings (see judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 80 and the case-law cited; also see, to that effect, ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, §§ 64 and 65, and 23 February 2016, Navalnyy and Ofitserov v. Russia, CE:ECHR:2016:0223JUD004663213, § 99).

522    An infringement of the presumption of innocence may arise not only from a court or tribunal but also from other public authorities (see ECtHR, 15 March 2011, Begu v. Romania, CE:ECHR:2011:0315JUD002044802, § 126 and the case-law cited).

523    In the present case, the applicants accept, in essence, that the settlement decision does not formally establish the liability of the non-settling parties, which include JP Morgan, for the infringement at issue and that the references to them in the settlement decision were necessary ‘for the description and foundation of the case’, as the Commission noted, in essence, in recitals 517 and 531 to 533 of the contested decision. However, they maintain that those circumstances are irrelevant in so far as the references in question, in particular those in recitals 31 and 53 to 67 of the settlement decision, amounted to a finding that JP Morgan was ‘guilty’ of having participated in the alleged infringements with Deutsche Bank and Barclays without it having had the opportunity to challenge the factual and legal basis of those findings. The Commission thus prejudged the facts concerning them and their legal characterisation in breach of the principle of the presumption of innocence.

524    In that regard, the Court notes that the Commission included, in recitals 3 and 40 of the settlement decision and in footnote 4 to that decision, explicit disclaimers that sought to avoid undermining the presumption of innocence of the non-settling parties to the cartel. In particular, the Commission stated that the settlement decision was based on matters of fact accepted only by the settling parties at that stage of the proceedings and that that decision did not establish the liability of non-settling parties, including JP Morgan, for any participation in an infringement of EU competition law in the case at issue (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 220 to 222).

525    The Commission thus displayed the required caution in drafting by highlighting the fact that it was not called upon to rule on JP Morgan’s participation in the alleged cartel, in order not only to avoid any deliberate, or even definitive, bias as to the latter’s liability, but also, in accordance with the case-law recalled in paragraph 521 above, any prejudgment, even if potential, as to that liability (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 223 and 224 and the case-law cited).

526    However, in order to ascertain whether the Commission fully respected the presumption of innocence, it is still necessary to analyse the reasoning of the settlement decision as a whole in the light of the particular circumstances in which it was adopted. Indeed, any explicit reference, in certain parts of that decision, to the absence of a conclusion as to the liability of the non-settling parties would be devoid of sense if other parts of that decision were likely to be understood as a premature expression of JP Morgan’s guilt (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 90 and the case-law cited).

527    The applicants refer to recitals 31 and 53 to 67 of the settlement decision in order to argue that the Commission’s position as to JP Morgan’s ‘guilt’ in respect of the infringement at issue can clearly be deduced from the findings of fact made by the Commission in that decision.

528    In that regard, in the first place, the Commission correctly found, in recitals 532 and 533 of the contested decision, that the references in the settlement decision to the non-settling parties were necessary, within the meaning of the case-law referred to in paragraph 521 above, for the analysis of the settling parties’ legal liability for the infringement at issue, which the applicants, in essence, accept. In the context of a hybrid procedure leading to the successive adoption of two decisions, references to the non-settling parties may appear to be objectively necessary for the purposes of a proper understanding of the facts of the case (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 226 and 229).

529    In the second place, contrary to what is implicitly but necessarily apparent from the applicants’ arguments, the Commission’s legal characterisation of the facts in the settlement decision in respect of Deutsche Bank and Barclays in so far as concerns the bilateral contact in which they engaged, inter alia, with JP Morgan does not in itself presuppose that the same legal classification of the facts was necessarily adopted by the Commission with respect to JP Morgan at the end of the separate procedure concerning it. As is apparent from the case-law, there is nothing to prevent the Commission from finding that one party to an agreement or concerted practice is liable under Article 101 TFEU, whereas the other party is not (see judgment of 2 February 2022, Scania and Others v Commission, T‑799/17, EU:T:2022:48, paragraph 130 and the case-law cited).

530    Moreover, it should be borne in mind that, in the context of the standard administrative procedure, the undertaking concerned and the Commission are, in relation to the settlement procedure, in a situation known as ‘tabula rasa’, where liabilities have yet to be determined. Thus, when the decision in respect of JP Morgan was adopted following the standard administrative procedure, first, the Commission was bound solely by the statement of objections and, second, it was required, in observance of the principle audi alteram partem, to take account of all the relevant circumstances, including all the information and arguments that had been put forward by JP Morgan during the exercise of its right to be heard, with the result that the Commission was required to review the file in the light of those elements (see, to that effect, judgment of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraphs 90, 96 and 107).

531    The Commission must ensure that the facts admitted by the settling parties are not accepted in respect of a party that has not taken part in that procedure, such as JP Morgan, without a full and proper examination during the standard procedure in the light of the arguments and evidence submitted by the latter (see, to that effect and by analogy, ECtHR, 23 February 2016, Navalnyy and Ofitserov v. Russia, CE:ECHR:2016:0223JUD004663213, §§ 103 to 105, and 31 October 2017, Bauras v. Lithuania, CE:ECHR:2017:1031JUD005679513, § 53).

532    In the present case, JP Morgan accepts that it had the opportunity, in the context of the standard administrative procedure before the adoption of the contested decision, to make representations, both in writing and orally, on the objections raised against it by the Commission in the statement of objections and therefore to challenge the facts and evidence identified by the Commission in support of the objections against it.

533    It follows that, under the ‘tabula rasa’ principle, the Commission was required, in the context of the standard procedure, to re-examine the facts on which it had based the settlement decision in the light of the arguments and evidence submitted by JP Morgan in the exercise of its rights of defence and, where appropriate, find that it had participated in the bilateral conduct at issue. In that regard, it should be noted that the period of JP Morgan’s participation in bilateral contact with Barclays, set out in recital 40 of the settlement decision, from 27 September 2006 to 8 February 2007, does not correspond to the period of its participation in the infringement indicated in the statement of objections of 19 May 2014 as having run from 27 September 2006 to 28 September 2007, or to that which was found in the contested decision to have run from 27 September 2006 to 19 March 2007, which demonstrates that, in the present case, the Commission re-examined the applicants’ situation after the adoption of the settlement decision.

534    With regard to the applicants’ claim that the Commission’s position as regards their participation in the infringing conduct could be clearly deduced from the findings of fact contained in the settlement decision, which are based on the same evidence as that on which the Commission relied in finding that they had participated in the infringement, the Court notes that an overlap between the evidence on which the Commission’s findings are based in the settlement decision and in the contested decision does not in itself support the conclusion that the presumption of innocence was not observed in the present case as regards the applicants. The mere fact of having relied on the same evidence in both decisions does not in any way presume the conclusion which the Commission was able to draw therefrom as regards JP Morgan’s liability.

535    Moreover, whereas the principle of the presumption of innocence precludes a formal finding of an infringement or any allusion to the applicants’ liability in the settlement decision, in so far as they did not enjoy all the usual guarantees for the purpose of exercising their rights of the defence in the context of the adoption of that decision, that principle does not preclude the possibility of relying on the same evidence, provided that the applicants have had the opportunity to challenge before the EU Courts the findings made on the basis of that evidence (see, to that effect, judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission, T‑474/04, EU:T:2007:306, paragraphs 76 and 77), which is the case here.

536    It follows that, by arguing that the Commission infringed the presumption of JP Morgan’s innocence because the contested decision and the settlement decision were based on the same evidence, the applicants disregard their right to submit, in the exercise of their right to be heard in the standard administrative procedure, all the evidence intended to challenge the facts and the evidence on which the Commission intends to rely, which, where applicable, had been taken into account by the Commission when the settlement decision was adopted, and disregard the Commission’s obligation to review the file in the light of that new evidence. Furthermore, the applicants had the opportunity to challenge before the Court the Commission’s findings against them on the basis of that evidence, in accordance with the case-law referred to in paragraph 535 above.

537    In the light of the foregoing, the ‘hybrid’ nature of the procedure at issue and its context within the meaning of the case-law cited in paragraph 520 above, and the circumstances in which references were made to JP Morgan in the settlement decision, must lead to the conclusion that there was, in the present case, no failure to observe the principle of the presumption of innocence with regard to JP Morgan. The first complaint in the first part of the fifth plea must therefore be rejected as unfounded.

(2)    Observance of the duty of impartiality

538    The applicants claim, as regards the adoption of the settlement decision in which the Commission found that JP Morgan had participated in the conduct characterised as unlawful, that it was impossible for the Commission to maintain an ‘appearance of impartiality’ in relation to JP Morgan and not to attempt to reach the same conclusions in the context of the standard procedure, particularly in the light of the fact that the same team as that which conducted the settlement discussions was charged with investigating the file as regards JP Morgan. In their view, such circumstances raise doubts as to the objective impartiality of the Commission when it took a decision against JP Morgan.

539    In that regard, it is sufficient to note that, in the present case, it follows from paragraphs 530 to 536 above that the conduct of the standard procedure afforded the applicants sufficient procedural guarantees to exclude any legitimate doubt as to any possible prejudgment with which the Commission examined the complaints against JP Morgan in the context of that procedure.

540    The second complaint in the first part of the fifth plea must therefore be rejected as unfounded.

(3)    Observance of the rights of defence

541    The applicants claim that their rights of defence were infringed inasmuch as they did not have the opportunity to comment on the facts and their legal classification, on which the settlement decision was based, before the adoption of that decision, whereas the Commission found JP Morgan to have participated in the unlawful conduct with the settling parties.

542    In that regard, it should be noted that, in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which has been emphasised on numerous occasions in the case-law of the Court of Justice and which has been enshrined in Article 48(2) of the Charter (see judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, C‑550/07 P, EU:C:2010:512, paragraph 92 and the case-law cited). That principle must be fully complied with even if the proceedings in question are administrative proceedings (see judgments of 9 July 2009, Archer Daniels Midland v Commission, C‑511/06 P, EU:C:2009:433, paragraph 84 and the case-law cited, and of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 94 and the case-law cited).

543    The rule that the parties should be heard forms part of the rights of the defence. It applies to any procedure which may result in a decision by an EU institution perceptibly affecting a person’s interests (see judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraphs 50 and 51 and the case-law cited).

544    In that regard it is sufficient to point out, first, that the applicants are not the addressees of the settlement decision. Second, as is apparent from the assessment of the complaint alleging a failure to observe the presumption of innocence, the settlement decision did not, in any event, perceptibly affect the applicants’ interests within the meaning of the case-law referred to in paragraph 543 above in that, as they accept (see paragraph 523 above), in that decision the Commission did not prejudge their liability for the infringement at issue. As a result, the applicants cannot usefully rely on an infringement of their rights of defence and, in particular, on the fact that JP Morgan was not heard in the context of the procedure which led to the adoption of the settlement decision.

545    The third complaint in the first part of the fifth plea must therefore be rejected as unfounded as must, accordingly, that part in its entirety.

(b)    The second part of the fifth plea in law, concerning the remarks made by the competition Commissioner

546    The applicants claim that the public statements made by the competition Commissioner between 2012 and 2014 gave the appearance of bias as regards JP Morgan’s guilt even before the Commission examined its representations in defence, which undermined the impartiality of the Commission’s decision-making process. The European Ombudsman acknowledged that breach of impartiality on the part of that Commissioner in her decision taken following the complaint brought by Crédit agricole, another addressee of the contested decision.

547    The applicants submit that the competition Commissioner’s statements which give the impression of prejudgment on his part with regard to JP Morgan reinforce the suspicions of bias and lack of objective impartiality which in their view was already clear from the failure to observe the presumption of innocence inherent in the settlement decision.

548    In that regard, it should be borne in mind that the applicants’ complaints alleging a failure to observe the presumption of innocence and a failure to comply with the duty of objective impartiality towards JP Morgan as a result of the adoption of the settlement decision have been rejected, therefore the Commissioner’s statements called into question by the applicants cannot be regarded as ‘reinforcing’ or ‘compounding’ such an alleged infringement.

549    In so far as, by those arguments, the applicants seek to establish a failure on the part of the competition Commissioner to comply with the obligation of subjective impartiality, which is liable to lead to a failure on the part of the Commission to comply with the obligation of objective impartiality in the adoption of the contested decision, it is necessary to recall the content of some of the statements in question made by the competition Commissioner, which are as follows:

–        on 24 July 2012: ‘The evidence we have collected is quite telling, so I’m pretty sure this investigation will not be closed without results’;

–        on 24 September 2012: ‘The gravity of the infringement is “above the average”, which would draw the amount of the sanction upwards’;

–        on 28 January 2014: ‘There are still three banking institutions and one broker being investigated because they did not want to participate in the final agreement: one French – Crédit agricole, HSBC and JP Morgan, against whom the investigation continues, and we will go until the end, and I should say as we already have a lot of information, the investigation is not the most difficult in the world, and from that point on, we will complete this investigation’ (‘[i]l y a encore trois institutions bancaires et un broker qui continuent à être investigués parce qu’ils n’ont pas voulu participer à l’accord final : une institution française Crédit [a]gricole, puis HSBC, et JPMorgan dont l’investigation continue, et on ira jusqu’à la fin, et je dois dire comme on a beaucoup d’informations déjà, l’investigation n’est pas la plus difficile du mondé, à partir de ce moment-là on finira cette investigation’);

–        on 21 February 2014: ‘Sometimes, it is necessary to use the traditional instruments of competition policy, and Libor/Euribor is one of those cases[ b]ecause there is a cartel[; a] cartel organised around the manipulation of a benchmark’ (‘[p]arfois, il y a besoin d’utiliser les instruments traditionnels de la politique de concurrence, et Libor/Euribor, c’est le cas[ p]arce qu’il y a un cartel[; u]n cartel organise autour de la manipulation d’un benchmark’.

550    In that regard, the Court draws a distinction between the declarations made in 2012, before the adoption of the settlement decision, and those made in 2014, which occurred after the adoption of that decision (judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 239).

551    As regards, first, the statements made in 2012, they remained general, with the result that they cannot be regarded as the expression, on the part of the competition Commissioner, of bias or prejudice as to culpability in respect of JP Morgan (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 240).

552    As regards, second, the statements made in 2014, they are couched in language which does not reflect the caution which would have been expected of the member of the Commission in charge of competition policy in the context of an ongoing case (judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 242).

553    However, even if those statements could be regarded as evidence of a lack of subjective impartiality on the part of the competition Commissioner, they were not in themselves capable, in the circumstances, of prejudicing an impartial assessment by the Commission of the case as regards the applicants and thus to render the contested decision unlawful (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 242).

554    It should be noted that the competition Commissioner who made the statements in question was no longer a Commissioner at the time when the contested decision was taken by the College of Commissioners. He therefore did not participate in the decision-making process at issue, with the result that his opinion was not capable of prejudging the position that the College of Commissioners adopted at the end of the standard procedure.

555    In that regard it is also necessary to bear in mind that the functioning of the Commission is governed by the principle of collegiate responsibility stemming from Article 250 TFEU, which is based on the equal participation of the Commissioners in the adoption of decisions, from which it follows, in particular, that decisions, including those adopted under Article 101 TFEU, as in the case of the contested decision, should be the subject of collective deliberation, and that all the members of the College of Commissioners should bear collective responsibility, at a political level, for all decisions adopted (see, to that effect, judgment of 27 September 2012, Heijmans Infrastructuur v Commission, T‑359/06, not published, EU:T:2012:489, paragraphs 126 and 127).

556    That conclusion cannot be called into question by the applicants’ argument based on the European Ombudsman’s finding of maladministration on account of the statements made by the competition Commissioner, on which the applicants rely.

557    In that regard, it should be recalled that a finding by the Ombudsman of an ‘act of maladministration’ is not binding on the EU Courts and can constitute nothing more than an indication of infringement, by the institution concerned, of the principle of good administration. Proceedings before the Ombudsman, who does not have the power to make binding decisions, are, for EU citizens, an extrajudicial alternative remedy to an action before the EU Courts, which meets specific criteria and does not necessarily have the same objective as legal proceedings (see, to that effect, judgment of 25 October 2007, Komninou and Others v Commission, C‑167/06 P, not published, EU:C:2007:633, paragraph 44).

558    In the light of the reasons set out in paragraphs 552 to 555 above, the Ombudsman’s findings relating to the public statements referred to in paragraph 549 above are not capable, by themselves or assessed together with other evidence in the file, of establishing an infringement of the Commission’s duty of impartiality (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 246).

559    Therefore, the second part of the fifth plea must be rejected as unfounded and, accordingly, the fifth plea must be rejected in its entirety.

4.      The impact of the error found during the examination of the first plea in law, regarding the lawfulness of Article 1(c) of the contested decision

560    It should be noted that the error made by the Commission regarding the determination of the infringing conduct that could be attributed to JP Morgan, identified in paragraphs 143 to 153 above, does not, in accordance with the case-law cited in paragraph 164 above, affect the lawfulness of Article 1(c) of the contested decision. JP Morgan’s participation in the single and continuous infringement by virtue of, first, other conduct by JP Morgan and, second, the conduct of other banks forming part of that single infringement substantiates to the requisite legal standard the conclusion set out by the Commission in Article 1(c) of the contested decision. The claim for annulment of that provision must therefore be rejected.

561    However, to the extent that the factors capable of affecting the assessment of the gravity of an infringement include, in accordance with the case-law cited in paragraph 367 above, the number and intensity of the incidents of anticompetitive conduct, it is in its assessment of whether the amount of the fine is appropriate that the Court may give due effect to the fact that those assessments were vitiated by error.

C.      The claim for annulment of Article 2(c) of the contested decision and the claim for a reduction of the amount of the fine

562    In the form of order sought by the applicants, they request, in the alternative, that the Court annul the fine imposed on JP Morgan in Article 2(c) of the contested decision and reduce the amount of the fine. In that regard, in the sixth plea in law of the application, the applicants raise a number of complaints alleging, in essence, that the Commission made errors in its calculation of the fine, that it failed to observe the principle that the fine must be made to fit the offence and the principles of equal treatment and proportionality, and that it failed to state reasons.

563    As a preliminary point, the Court notes that the system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 42; see also, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 47 and the case-law cited).

564    In the first place, the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the EU Courts, in law and in fact, in the light of the pleas raised by the applicant and taking into account all the relevant evidence submitted by the latter (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 48 and the case-law cited).

565    More specifically, with regard to a review of the legality of a decision imposing a fine, the EU Courts must carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s margin of discretion – either as regards the choice of factors taken into account in the application of the criteria referred to in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines on the method of setting fines’) or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 62).

566    However, the Court notes that the EU Courts cannot, in the context of the review of legality referred to in Article 263 TFEU, substitute their own reasoning for that of the author of the contested act (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 89 and the case-law cited).

567    In the second place, the scope of the unlimited jurisdiction conferred on the EU Courts by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the competent court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 193 and the case-law cited).

568    By contrast, the scope of that unlimited jurisdiction is strictly limited, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine (see judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 76 and the case-law cited).

569    The Commission’s reasoning regarding the amount of the fine imposed on, inter alia, JP Morgan is set out in recitals 639 to 770 of the contested decision.

570    In the first place, with regard to the basic amount of the fine, first, the Commission determined the value of sales using a proxy because EIRDs do not generate sales in the usual sense of the term. Furthermore, in the light of the circumstances in the present case, it concluded that it was preferable not to use an annualised proxy, but to take as its basis a proxy based on the months corresponding to the banks’ participation in the infringement (recital 640 of the contested decision).

571    The Commission considered it appropriate to use as its proxy the cash receipts generated by the cash flows that each bank received from its portfolio of EIRDs linked to any Euribor tenor and/or EONIA and entered into with EEA-located counterparties (recital 641 of the contested decision), to which a uniform discount factor of 98.849% was applied in order to take account of the particularities of the EIRD market, and in particular the netting inherent in the negotiation of derivatives (recital 648 of the contested decision).

572    The Commission therefore used the amount of EUR 1 476 213 861, that is to say an amount obtained by applying a discount of 98.849% to EUR 128 254 896 758, as its value of sales for JP Morgan (recitals 642 and 648 of the contested decision).

573    As regards, second, the gravity of the infringement, the Commission used a gravity factor of 15% as the infringement related to price coordination and price-fixing arrangements. It added a gravity factor of 3% by reference to the fact that the cartel concerned the whole of the EEA and had related to rates that were relevant for all EIRDs and that, as those rates related to the euro, they were of fundamental importance to the harmonisation of financial conditions in the internal market and for banking activities in Member States (recitals 720 and 721 of the contested decision).

574    As regards, third, the duration of the infringement, the Commission stated that it had taken into account the duration of the participation of each participant in the cartel on ‘a rounded down monthly and pro rata basis’, which led to a multiplier of 0.41% being applied in respect of JP Morgan (recitals 727 to 731 of the contested decision).

575    Fourth, the Commission added an additional amount of 18% of the value of sales, described as an ‘entry fee’, since the infringement consisted of horizontal price-fixing, in order to deter undertakings from participating in such practices, irrespective of the duration of the infringement (recitals 732 to 734 of the contested decision).

576    The Commission thus set the basic amount of the fine to be imposed on the applicants at EUR 374 663 000 (recital 735 of the contested decision).

577    In the second place, as regards the setting of the final amount of the fine, the Commission found that JP Morgan had a more peripheral or minor role in the infringement that could not be compared with that of the main players and granted it a 10% reduction of the basic amount of the fine (recital 764 of the contested decision). Article 2(c) of the contested decision therefore imposes on the applicants a fine of an amount of EUR 337 196 000.

1.      The claim for annulment of Article 2(c) of the contested decision

578    The sixth plea in law is divided, in essence, into three parts. First, the applicants argue that the Commission imposed a fine that was disproportionate and contrary to the principle of equal treatment and to the principle that the fine must be made to fit the offence by failing to grant JP Morgan a sufficient reduction based on mitigating circumstances, the gravity factor or the ‘entry fee’ given the ‘peripheral role’ played by JP Morgan in the infringement. Second, they claim that the principle of equal treatment has not been observed because different methods have been used to calculate the value of sales of different banks. Third, they dispute the Commission’s use of discounted cash receipts as the proxy for the value of sales.

579    The Court takes the view that it is appropriate to start by examining the third part of the sixth plea, then to move on to examining the second part of that plea and, lastly, to examine the first part of that plea.

580    In addition, in the context of the sixth plea, the applicants ask the Court to draw the appropriate conclusions, for the purposes of the amount of the fine, from the errors made by the Commission as regards JP Morgan’s participation in the single infringement at issue as put forward in the first four pleas. Those arguments will be taken into account, where appropriate, in the context of the Court’s exercise of its unlimited jurisdiction.

(a)    The third part of the sixth plea, concerning the use of discounted cash receipts for the purposes of calculating the value of sales

581    The applicants claim, in essence, that the discounted cash receipts used by the Commission for the purposes of calculating the value of sales do not reflect the real economic strength of the parties on the market, and, by using them, the Commission failed to observe the proportionality principle. In addition, they claim that the Commission applied a discount factor that was insufficient to mitigate the problems connected with the use of the cash receipt metric and, thereby, to reflect the real economic strength of JP Morgan on the market. They also claim that the uniform discount factor of 98.849% applied by the Commission is arbitrary and the various stages of the calculation of that factor are unreasoned.

582    The Commission disputes those arguments and claims that they should be rejected.

(1)    The issue of whether it is appropriate to take into account discounted cash receipts as a proxy for the value of sales

583    The Court notes that, although Article 23(3) of Regulation No 1/2003 refers in general terms to the gravity and duration of the infringement, the methodology favoured by the Commission for the application of that provision in its Guidelines on the method of setting fines gives a central role to the concept of ‘value of sales’, as it is used to determine the economic significance of the infringement and the relative strength of each undertaking participating in the infringement (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76). According to point 13 of the Guidelines on the method of setting fines, ‘in determining the basic amount of the fine to be imposed, the Commission takes the value of each undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the EEA’. In the introduction, those guidelines lay down, in point 6 thereof, that ‘the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’.

584    As is clear from point 37 of the Guidelines on the method of setting fines, the Commission has the option of not applying the methodology for setting fines laid down in the Guidelines on the method of setting fines where, inter alia, the particularities of a given case justify doing so (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 209 and 210). In the present case, whereas the Commission found in recital 639 of the contested decision that EIRDs do not ‘generate any sales in the usual sense’ – which the applicants do not dispute – it decided not to depart from the methodology for the calculation of fines laid down in the Guidelines on the method of setting fines.

585    Consequently, it is necessary to examine whether the Commission made an error of assessment by using discounted cash receipts as the proxy for the ‘value of sales’ within the meaning of the Guidelines on the method of setting fines.

586    It is appropriate to verify whether the Commission used that undertaking’s best available figures within the meaning of points 15 and 16 of those guidelines.

587    In that regard, the Court notes that, in its request for information of 12 October 2012, the Commission asked to be provided with four types of data capable of allowing it to assess the value of sales of the banks concerned, namely the total notional amount, the net profit on financial operations, the net cash settlements and the cash receipts. It ultimately decided, exercising its discretion, to take the cash receipts as its basis.

588    The approach favoured by the Commission in the present case tends to give a better reflection of the value of sales – and therefore the economic significance of the infringement – than the alternative approach proposed by the applicants during the administrative procedure based on the allocated franchise revenue (‘the AFR’).

589    As the applicants claim, the AFR corresponds, in essence, to the ex ante expected profit on a derivative transaction which captures the inherent financial value of the EIRD trade and is equivalent to the item ‘net profit on financial operations’ within the meaning of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). They also state that each financial institution will have its own detailed methodology for calculating the ex ante value of the trade which is estimated, in essence, on the basis of the notional amount traded to which adjustments are applied based on trading and market patterns.

590    It follows from those considerations, assuming that they are established, that the AFR constitutes, in essence, a forecast by a bank, made according to its estimation of the development of the market, of the value of an EIRD trade through the profit that the bank could make from that trade. As the applicants essentially concede, the AFR reflects the expected profitability at the beginning of an EIRD transaction. As the Commission correctly noted in recital 659 of the contested decision, restricting the value to be taken into account to the profit from trading activity transactions – be it either real profit (ex post), as in the case of net profit, or expected profit (ex ante), as in the case of the AFR – would run counter to the logic it applied in the methodology in the Guidelines on the method of setting fines when it set the basic amount by reference to the value of sales, namely to reflect the economic significance of the infringement and the strength of the involvement of the undertaking concerned. In addition, the Court has held previously that the ‘profitability’ of the sector concerned is not a reference value for setting a fine (see, to that effect, judgment of 19 May 2010, KME Germany and Others v Commission, T‑25/05, not published, EU:T:2010:206, paragraphs 98 to 100).

591    The applicants do not put forward any argument before the Court capable of calling into question that conclusion.

592    They submit, relying on the ranking of the different banks participating in the cartel according to the EIRD market shares they held at the material time, that cash receipts do not reflect the respective strengths of the parties in the market. However, such an argument does not call into question the appropriateness of the Commission using discounted cash receipts as the proxy for the value of sales to be taken into account when calculating the amount of the fine since, as is clear from paragraph 583 above, that value does not have to reflect the overall position of a bank on the given market, but the economic significance of the infringement and the relative weight of each undertaking participating in the infringement. Moreover, as the Commission maintains, the data from the rankings on which the applicants rely either do not cover all of the products concerned by the infringement or are based on a poll and therefore reflect a subjective perception of the participants and, in any event, those data are not representative of their market share.

593    It follows from the foregoing that the Commission did not make an error of assessment when it determined the proxy for the value of sales on the basis of discounted cash receipts.

594    Next, as regards the discount factor applied to the cash receipts, the Court notes that that factor has an essential role in determining the value of sales, due to the particularly high amount that results from taking account only of cash receipts, that is to say without deducting corresponding payments (judgment of 24 September 2019, HSBC Holdings and Others v Commission, T‑105/17, EU:T:2019:675, paragraph 326).

595    In those circumstances, the Court must reject the first complaint of the third part of the sixth plea and move on to examining the second complaint concerning the discount factor applied by the Commission in the present case.

(2)    Determination of the discount factor of 98.849% applied by the Commission

596    The applicants submit, in essence, that the uniform discount factor of 98.849% applied by the Commission is insufficient to mitigate the problems linked to the failure to take into account the real economic strength of the applicants on the market by using the value of the cash receipts. That discount factor is also arbitrary because it was determined before the statement of objections was drawn up and is inadequately reasoned.

597    In addition, the applicants essentially dispute that the Commission may supplement the statement of reasons for the determination of the discount factor, which was found to be inadequate in the judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675) (see paragraph 24 above), by adopting the amending decision.

598    The Commission argues that the discount factor applied in the present case is appropriate and takes into account the particularities of the EIRD market. In addition, the Commission claims that the contested decision contains a sufficient statement of reasons in that regard and, therefore, the determination of the discount factor is not arbitrary. It argues, nevertheless, that it was entitled, in compliance with the principle of good administration, to adopt the amending decision to supplement the adequate statement of reasons in the contested decision and disputes all of the pleas raised by the applicants to challenge the adoption of that decision.

599    The Court takes the view that it is appropriate to start by examining the applicants’ claims regarding the Commission’s failure to meet its obligation to state reasons in the contested decision so far as concerns the determination of the discount factor.

(i)    Whether the Commission met its obligation to state reasons as far as concerns the determination of the discount factor in the contested decision

600    The applicants submit that the reasons set out in the contested decision regarding the determination of the discount factor do not make it possible for them to understand how that factor was set precisely at 98.849% and cast doubt on the non-arbitrary nature of that factor. Given that it relates to a critical element in the calculation of the fine, the fact that that statement of reasons is inadequate should lead to the annulment of the contested decision as a whole.

601    The Commission maintains that the complaint relating to the insufficient nature of the statement of reasons regarding the determination of the discount factor is inadmissible under Article 84(1) of the Rules of Procedure, as it was put forward for the first time in the reply. In any event, a sufficient statement of reasons for the determination of the discount factor was set out in the contested decision and that determination is not in any way arbitrary. The Commission also notes that it is not required to indicate the figures relating to the method of calculating the fine.

602    As was pointed out in paragraph 571 above, the uniform factor applied to reduce the figures for the cash receipts of JP Morgan and other banks was set at 98.849%.

603    The justification for the level of that discount factor in the contested decision is based on five sets of reasons. First, in recital 644 of the contested decision, the Commission took into account the netting inherent in derivatives trading in general, assessed by the International Swap Dealers Association (ISDA) as involving a discount of between 85% and 90%.

604    Second, in recital 645 of the contested decision, the Commission highlighted the specific nature of EIRD netting, since a comparison of the parties’ cash receipts with the net EIRD cash settlements shows that the application of a rate of between 85% and 90% would lead to fines that were over-deterrent.

605    Third, in recital 646 of the contested decision, the Commission found that the EIRD cartel had caused an overcharge that was much lower than the 20% usually caused by that type of cartel in classic industries.

606    Fourth, in recital 647 of the contested decision, the Commission stated that it was not required to apply a precise mathematical formula and had a margin of discretion when it determined the amount of each fine.

607    Fifth, in recital 648 of the contested decision, the Commission stated that it had applied to the addressees of the contested decision the same rate as that used to calculate the amounts of the fines imposed on the addressees of the settlement decision.

608    As regards the criticism of the discount factor during the administrative procedure, the Commission claimed, inter alia, in recital 710 of the contested decision, that it had been transparent about its intention to discount cash receipts by a uniform factor of at least 97.5%. It also claimed, in recital 713 of that decision, that it had not applied individual discount factors because they could have given rise to unequal treatment.

609    First of all, as regards the admissibility of the complaint alleging that the statement of reasons concerning the determination of the discount factor is inadequate, which is disputed by the Commission, the Court notes that, under Article 84(1) of the Rules of Procedure, new pleas in law may not be introduced in the course of proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure.

610    However, it has consistently been held that an absence of or an inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a plea involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion (see judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 34 and the case-law cited).

611    In those circumstances, the Court has jurisdiction to hear the applicants’ complaint alleging breach of the obligation to state reasons, without it being necessary to examine whether that complaint, raised for the first time in the reply, satisfies the conditions laid down in Article 84(1) of the Rules of Procedure (see judgment of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraph 48 and the case-law cited).

612    Next, with regard to whether the complaint alleging that the statement of reasons is inadequate is well founded, as far as concerns a decision imposing a fine, the Commission must state the reasons, particularly with regard to the amount of the fine and the method of calculation (judgment of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraph 91). 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 (judgment of 13 July 2011, Schindler Holding and Others v Commission, T‑138/07, EU:T:2011:362, paragraph 243). It must nevertheless explain the weighting and assessment of the factors taken into account (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 61).

613    As regards the obligation to state reasons, which is usually incumbent on the Commission, the Court finds that, in accordance with the case-law referred to in paragraph 339 above, the requirement to state reasons must be assessed by reference to the circumstances of the case. This case has two notable specific features.

614    First, the Commission decided, in the present case, to apply the methodology in the Guidelines on the method of setting fines. It therefore chose to apply a methodology in which, for the reasons set out in paragraph 583 above, the determination of the ‘value of sales’ played a central role, even though it had noted in recital 639 of the contested decision that EIRDs did not generate any sales in the usual sense.

615    Therefore, it was essential that the statement of reasons in the contested decision should enable the applicants to verify whether the proxy chosen by the Commission may be vitiated by an error enabling its validity to be challenged and the Court to exercise its jurisdiction to review legality (judgment of 24 September 2019, HSBC Holdings and Others v Commission, T‑105/17, EU:T:2019:675, paragraph 346).

616    Second, in the approach taken by the Commission the discount factor plays an essential role because the amount of cash receipts to which it applies is particularly large (judgment of 24 September 2019, HSBC Holdings and Others v Commission, T‑105/17, EU:T:2019:675, paragraph 347).

617    It follows from the foregoing that, in the circumstances of the present case, since the Commission decided to determine the basic amount of the fine by applying a figures-based model in which the discount factor played an essential role, it was necessary for the undertakings concerned to be placed in a position to understand how it had arrived at a discount factor set at 98.849% and for the Court to be in a position to carry out an in-depth review, in law and in fact, of that factor of the contested decision, in accordance with the case-law cited in paragraphs 338 and 339 above.

618    Only recitals 643, 644 to 646 and 648 of the contested decision show that the discount factor had to be greater than 90%, since, first, the comparison of the cash receipts of parties with net cash settlements under EIRDs showed that the application of a rate between 85% and 90% would lead to fines that were over-deterrent and, second, the cartel at issue had given rise to a much lower overcharge than the 20% usually caused by that type of cartel in classic industries. In recital 648 of the contested decision, first, the Commission states that it carried out an estimate of the factors referred to in recitals 643 to 646 of the contested decision without, however, specifying which value it attributed to those various factors in order to set the rate of discount at 98.849%. Second, it states that it applied the same methodology in determining the values of sales as that used to calculate the amounts of the fines in the settlement decision. However, no further indication as to the determination of the 98.849% discount rate is apparent from the settlement decision.

619    The only other indication in the contested decision appears in recital 710, where the Commission points out that it stated during the administrative procedure that the uniform discount factor would be at least 97.5%.

620    Those considerations do not provide the applicants with an adequate explanation of the reasons why the discount factor was set at 98.849%. Further, in the absence of a more detailed explanation of the reasons why those considerations led the discount factor to be set at that precise level, the Court is unable to conduct an in-depth review, in law and in fact, on a factor of the decision which could have had a significant effect on the amount of the fine imposed on the applicants (judgment of 24 September 2019, HSBC Holdings and Others v Commission, T‑105/17, EU:T:2019:675, paragraph 351).

621    In the light of the foregoing, the Court finds that the statement of reasons in the contested decision is inadequate as far as concerns the determination of the discount factor of 98.849%.

622    Nevertheless, the present complaint may prove to be unfounded if it transpires that the Commission corrected the inadequate statement of reasons found above by adopting the amending decision (see paragraphs 22 to 24 above). Therefore, it is appropriate to examine the pleas raised by the applicants in the context of the statement of modification seeking to challenge the adoption by the Commission of the latter decision.

(ii) The amending decision

623    The applicants challenge the adoption by the Commission of the amending decision by raising three pleas in the statement of modification. The first plea alleges that the amending decision cannot correct the defect in the statement of reasons in the contested decision. The second plea, which is put forward in the alternative, alleges that the amending decision is contradictory, contains an inadequate statement of reasons, includes errors of assessment and is contrary to the principle of equal treatment. The third plea, put forward in the further alternative, alleges that the amending decision fails to observe the rights of the defence, the right to good administration or the principle of legitimate expectations.

624    It is appropriate to examine, first of all, the first plea of the statement of modification.

625    In that regard, the applicants submit that, while the Commission is free, in principle, to amend a decision after it has been adopted, it cannot, however, adopt, as in the present case, a decision supplementing the reasons stated in the contested decision in the course of judicial proceedings for the annulment of the contested decision since, in accordance with the case-law, the adequacy and sufficiency of the reasoning for a decision must be assessed by reference to the reasons provided at the time when that decision was taken, and not to those provided after it has been adopted. Therefore, the subsequent reasons added in the amending decision cannot be taken into account by the Court and, in line with the finding in the judgment of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675), Article 2(c) of the contested decision should be annulled because the statement of reasons is inadequate.

626    The Commission disputes the applicants’ arguments and claims that it was entitled to adopt the amending decision, in compliance with the formal requirements and the procedures laid down in that regard in the Treaty, in order to supplement the reasons stated in the contested decision, by providing further explanations as to the methodology used to determine the discount factor without changing that methodology. In its view, the case-law to the effect that the deficient statement of reasons in an individual decision cannot be corrected during legal proceedings does not apply in the present case. Since the adoption of the amending decision afforded the applicants the opportunity to amend their application with a view to challenging the validity of the methodology at issue, their procedural rights were safeguarded and the Court could fully exercise its power of judicial review.

627    In that regard, the Court notes, as the Commission did, that its power to adopt a particular act necessarily also includes the power to amend that act, on condition that the provisions on the relevant power and the formal requirements and the procedures laid down in that regard in the Treaty are complied with (judgment of 9 December 2014, Lucchini v Commission, T‑91/10, EU:T:2014:1033, paragraph 108), which is acknowledged by the applicants.

628    However, the Court must find that, as the applicants have argued, it is explicit from the operative part of the amending decision and from recitals 11 to 13 thereof that the purpose of that decision is to supplement the reasoning in the contested decision, without amending the operative part of that decision and that, therefore, Article 1(c) and Article 2(c) of that decision ‘remain in force’.

629    It is clear from the foregoing that, by adopting the amending decision, the Commission did not adopt a decision amending the operative part of the contested decision, but merely supplemented the reasoning allegedly underlying the operative part adopted in the contested decision, a matter which the Commission has essentially confirmed before the Court (see paragraph 626 above).

630    It follows from the above that the amending decision cannot be regarded as a new decision modifying the contested decision within the meaning of the case-law cited in paragraph 627 above, but must be treated as a supplement to the reasoning added by the defendant in the context of judicial proceedings. According to settled case-law, the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him or her. The absence of reasoning cannot be legitimised by the fact that the person concerned becomes aware of the reasons for the decision during the procedure before the Courts of the European Union (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 149; of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 74; and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 46).

631    There is neither a right of the EU institutions to remedy before the EU Courts their insufficiently reasoned decisions, nor an obligation on the part of the latter to take into account additional explanations provided by the author of the measure in question only during the proceedings in order to assess whether the obligation to state reasons has been satisfied. Such a state of law would risk blurring the division of powers between the administration and the EU Courts, weakening the review of legality and jeopardising the exercise of the right of appeal (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 58).

632    Where the author of a contested decision provides explanations during the proceedings before the Court to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the EU Courts of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision. Thus, additional explanations going beyond the requirements of its duty to state reasons may enable undertakings to acquire detailed knowledge of the method of calculating the fine imposed on them and, more generally, serve to render the administrative act more transparent and facilitate the exercise by the Court of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision, but also the appropriateness of the fine imposed. However, the availability of that possibility is not such as to alter the scope of the requirements resulting from the duty to state reasons (see, to that effect, judgment of 16 November 2000, Cascades v Commission, C‑279/98 P, EU:C:2000:626, paragraphs 45 and 47).

633    In the present case, as is clear from paragraph 621 above, the statement of reasons in the contested decision is inadequate as far as concerns the determination of the discount factor. The Commission has made no submission to the effect that certain circumstances made it practically impossible to state to the requisite legal standard the reasons for the contested decision with the result that, by way of exception, a supplement to the statement of reasons, provided during the judicial proceedings, could be accepted (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 59). Consequently, and without it being necessary to examine the question whether the methodology explained in more detail in the amending decision was indeed the methodology underlying the contested decision and, therefore, to adopt the measure of inquiry proposed by the Commission, the Court finds that, in application of the case-law cited in paragraphs 630 to 632 above, the supplement to the statement of reasons in the contested decision provided by the Commission in the course of the present proceedings cannot be accepted.

634    In those circumstances, in accordance with the form of order sought by the applicants, the Court upholds the complaints put forward in the first plea in the statement of modification and disregards the supplemental statement of reasons added by the amending decision in the course of the present proceedings without it being necessary to examine the other claims, complaints and pleas put forward by the applicants in that statement or to adopt the measure of organisation of procedure that they propose, which related to the merits of the statements made in the amending decision as regards the determination of the discount factor.

635    It is clear from all of the foregoing that the complaint alleging that the statement of reasons for the contested decision is inadequate as far as concerns the determination of the discount factor is well founded.

(b)    The second part of the sixth plea, alleging a failure to observe the principle of equal treatment due to the method of calculating the value of sales

636    The applicants submit that, by accepting that the parties calculate cash receipts using different methods, the Commission failed to observe the principle of equal treatment with regard to JP Morgan without any objective justification.

637    The Commission rejects the applicants’ arguments and disputes that it failed to observe the principle of equal treatment.

638    In that regard, the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter. According to settled case-law, that principle requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (see judgments of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 186 and the case-law cited, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 132 and 166).

639    However, breach of the principle of equal treatment as a result of different treatment thus presumes that the situations concerned are comparable, having regard to all the elements which characterise them. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question (see judgments of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 187 and the case-law cited, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 167).

640    In accordance with settled case-law, when the amount of the fine is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in the same infringement of Article 101 TFEU (see judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 62 and the case-law cited).

641    The principle of equal treatment must be observed in the context of a hybrid procedure because, although such a procedure involves the adoption of two decisions with different addressees and following two separate procedures, at issue are participants in one and the same cartel (see, to that effect, judgment of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraph 72 and the case-law cited).

642    The Guidelines on the method of setting fines remain fully applicable in that context. It follows that, when determining the amount of the fine, the Commission cannot discriminate between the parties to the same cartel with respect to the information and calculation methods that are not affected by the specific features of the settlement procedure, such as a 10% reduction in the event that a settlement is entered into in accordance with point 32 of the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1) (see judgment of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraph 74 and the case-law cited).

643    It is appropriate to start by examining the existence of the methodological differences alleged by the applicants and then, if necessary, to move on to examining whether the consequence of those differences is that the Commission has failed to observe the principle of equal treatment in the present case.

(1)    The different methodological approaches followed by the banks concerned

644    The differences in the approaches for calculating cash receipts used by the banks concerned cover, according to the applicants, first, the methodologies followed as regards the scope of the netting of positive and negative cash flows, second, the scope of the flows taken into account, in particular by Bank A, and, third, the range of derivatives taken into account, given that certain banks excluded ‘exotic’ and ‘hybrid’ derivatives.

645    In that regard, as a preliminary point, the Count finds that, in application of the case-law recalled in paragraphs 640 and 641 above, the Commission’s observance of the principle of equal treatment as regards JP Morgan must be examined in the light of the treatment given to all the parties to the cartel, including, where appropriate, the addressees of the settlement decision, namely Barclays, Deutsche Bank, Société générale and RBS.

646    First, as regards the difference concerning the scope of the netting of amounts paid and received, it should be noted that it is clear from the contested decision that, as regards cash flows under OTC derivatives, JP Morgan netted on a daily basis (recital 692 of the contested decision). The applicants submit that another bank, namely Bank D, used another netting method in that it netted all cash flows across the entire timespan of each EIRD contract (full within contract netting).

647    In that regard, the Court notes, as the Commission did in recital 692 of the contested decision, that Bank D netted on a daily basis. Contrary to what is claimed by the applicants, in the methodological note accompanying the reply from Bank D to the request for information of 12 October 2012, it is stated with regard to OTC derivatives, which are relevant to the present case, that ‘for the majority of products’ the netting approach ‘reflects market convention’. The applicants do not dispute that netting on a daily basis, which was also the approach adopted by JP Morgan, is a market convention. Moreover, it is clear from recital 704 of the contested decision that, in response to a question asked by JP Morgan, the Commission confirmed that the netting should be on a daily basis.

648    It follows that the applicants have failed to show a difference in the methodology used by JP Morgan, on the one hand, and by Bank D, on the other, as concerns the methods for netting OTC derivative cash flows.

649    However, the applicants correctly assert that the Commission acknowledges that there are differences between the methods used to calculate cash receipts by, on the one hand, JP Morgan, inter alia, and, on the other hand, Bank B, as concerns the scope of the netting of amounts paid and received pursuant to transactions, but that it claims that the impact of those differences on the result of the calculations was not significant. In that regard, it found, in recital 702 of the contested decision, by relying on Bank B’s statements – which it claims were confirmed by data submitted in [confidential] (2) by Bank C – that a comparison between netting on a daily basis and netting on a monthly basis shows that the difference is, in its opinion, immaterial.

650    Second, with regard to the alleged difference as regards the scope of the cash flows taken into account, it is clear from recitals 684 and 685 of the contested decision that, unlike the other banks concerned, when calculating its cash receipts, Bank A did not take into account the flows under the fixed ‘leg’ in the case of swaps comprising a fixed leg and a variable leg.

651    While acknowledging that fact, the Commission concluded that that difference had not led to significant divergences in the calculation of cash receipts and had not given rise to unequal treatment (recitals 684 and 685 of the contested decision). It found that, according to its own calculations made taking into account Bank A’s reply to the request for information, the impact of the method that it used as regards the exclusion of the fixed leg was around 0.1% on the annualised proxy used for the value of sales. The Commission concluded that the potential impact of 0.1% was immaterial.

652    Third, as regards the differences in terms of the derivatives used, the applicants claim that certain banks, including Bank A, excluded ‘exotic’ derivatives from their calculations of cash receipts. Moreover, JP Morgan also included ‘hybrid’ derivatives, that is to say ‘exotic’ derivatives covering a basket of interest rate and non-interest rate risks (see recital 695 of the contested decision). The Commission specified for the first time in the contested decision that ‘hybrid’ derivatives were outside the scope of the request for information, which shows that the definition of the EIRDs concerned by the request was vague.

653    In that regard, first, the Commission claims that the request for information did not contain any restriction to the effect that solely data relating to ‘vanilla’ (that is to say, classic) derivatives had to be submitted, with the result that including data relating to ‘exotic’ (that is to say, complex) derivatives must be regarded as being in line with that request. It states that JP Morgan was not the only bank to include those derivatives. Bank A, inter alia, also did so, although it only included data in respect of ‘exotic’ derivatives for which it had reliable data (recital 694 of the contested decision).

654    As is clear from recital 694 of the contested decision, the Commission acknowledges that the approach followed by, inter alia, Bank A, as regards taking into account ‘exotic’ derivatives is different from the approach followed by, inter alia, JP Morgan, in so far as the first excluded from its calculations, in an effort not to delay the submission of its reply to the request for information, ‘exotic’ derivatives in respect of which it could not obtain the data requested ‘readily or within a ‘proportionate amount of time’. It is also clear from that recital that the Commission seems to have accepted Bank A’s assertion that ‘the number and value of potentially relevant Exotic Trades [were] immaterial to the overall trade position’.

655    Second, as regards JP Morgan’s inclusion of ‘hybrid’ derivatives in the calculation of its cash receipts, the Court rejects the applicants’ argument to the effect that the request for information was vague. As the Commission found, in essence, in recital 695 of the contested decision, the request for information defined EIRD products as ‘interest rate derivative contracts (at least partially) denominated in Euro’. JP Morgan, as a professional in the sector, should have understood that request as excluding ‘hybrid’ derivatives which, according to the definition provided by the Commission in that recital of the contested decision, which was not challenged by the applicants, cover ‘exotic’ derivatives covering a basket of interest rate and non-interest rate risks. In any event, nothing prevented the applicants from sending the Commission a question seeking clarity on that point.

656    In those circumstances, it is appropriate to conclude that the applicants have failed to show that the Commission was responsible for any difference in JP Morgan’s methodology for calculating cash receipts resulting from its inclusion of ‘hybrid’ derivatives.

657    It follows from paragraphs 649 to 654 above that, as the applicants correctly claim, the determination by the banks of the cash receipts gave rise, in certain cases, to different approaches as regards the netting method applied, the scope of the cash flows taken into account and the scope of the derivatives, in that some banks excluded, at the very least in part, ‘exotic’ derivatives.

658    It is therefore appropriate to examine whether, by accepting, for the purpose of determining the basis for calculating fines, the data on cash receipts determined by the banks using methodologies with the differences identified in paragraph 657 above, the Commission failed to observe the principle of equal treatment.

(2)    Observance of the principle of equal treatment in the calculation of the amount of the fine

659    The applicants submit, in essence, that the fact that the Commission accepted data on cash receipts calculated using different methodologies as pointed out by the applicants led JP Morgan to experience discrimination without any objective justification. In doing so, in their view, the Commission failed to observe the principle of equal treatment in that, without checking that the methodologies applied by the various banks were consistent, it determined the amounts of the fines by taking into account data that were not sufficiently reliable and consistent to constitute a basis for the calculation of fines. The applicants state that they are not arguing that the treatment of the other parties was unlawful, but rather that JP Morgan should have been able to apply the most favourable method to calculate its value of sales.

660    In that regard, the Court finds that the applicants’ arguments do not show that, in the present case, the application by the banks of different methodologies for calculating their cash receipts, as accepted by the Commission, led the latter to use data that were not comparable from one bank to another, and therefore to determine the amount of the fine imposed on JP Morgan in breach of the principle of equal treatment.

661    The Court notes that, according to the Commission, the existence of differences concerning, first, the scope of netting between amounts paid and received under trades, second, the scope of the cash flows taken into account by Bank A, in that it excluded the fixed leg of swaps from its calculations where the swaps involved both a fixed leg and a variable leg, and, third, the exclusion of ‘exotic’ derivatives had only an immaterial impact on the result of the calculation of cash receipts and, thus, on the determination of the value of sales (see paragraphs 649, 651 and 654 above).

662    The applicants claim that the fact that the methodological differences had only an immaterial impact on the level of the cash receipts of certain banks does not mean that JP Morgan has not experienced unequal treatment because the Commission did not determine the impact of those differences on each bank. In addition, they claim that the application of the methods followed by the other banks to the three factors referred to in paragraph 661 above would have caused the value of sales for JP Morgan to decline by between 9.4% and 10.9% as compared with the value taken into account by the Commission, which is not immaterial.

663    In that regard, the Court finds, first, that the Commission accepted JP Morgan’s revised data, submitted during the administrative procedure, in which an error relating to netting had been corrected, which had the effect of reducing its value of sales by about one half (recital 680 of the contested decision). Thus, the Commission calculated the amount of JP Morgan’s fine from those new figures.

664    Second, while JP Morgan claims that it should have been able to calculate its cash receipts using the most favourable method, that is to say the method used by Bank A, the Court notes that the applicants do not dispute that the methodology used by Bank A is not consistent with the request for information. Although they claim that they are not maintaining that the treatment given to Bank A was unlawful, that argument in fact is tantamount to requiring the Commission to apply a methodology to the applicants which was however not consistent with the request for information. In that regard, suffice it to note that, according to settled case-law, the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, to his or her benefit, on an unlawful act committed in favour of a third party (see judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 58 and the case-law cited).

665    In those circumstances, it is not necessary to find that, in order to ensure that the principle of equal treatment is observed, the Commission should have reduced the value of sales for JP Morgan by 9.4%, that level of reduction having been calculated by the applicants following Bank A’s methodology.

666    The applicants also argue that the exclusion of ‘exotic’ and ‘hybrid’ derivatives should lead to a reduction of 1.5% of JP Morgan’s value of sales. However, as is clear from paragraphs 655 and 656 above, the inclusion by JP Morgan of ‘hybrid’ derivatives in the calculation of cash receipts is not the result of the Commission accepting different calculation methodologies adopted by the banks concerned, but stems from an error on the part of the applicants. In those circumstances, the unequal treatment that may potentially result from JP Morgan including ‘hybrid’ derivatives in its calculations of cash receipts is not attributable to the Commission.

667    Furthermore, the Court finds that the applicants have not put forward any argument in an effort to dispute Bank A’s explanations, as set out in recital 694 of the contested decision, that its exclusion from its calculations of ‘exotic’ derivatives had only an immaterial impact. In addition, with regard to the impact on the calculation of JP Morgan’s cash receipts, the applicants have not specified the percentage reduction they propose as a result of the exclusion of only ‘exotic’ derivatives. Therefore, the applicants have not shown that the exclusion of ‘exotic’ derivatives would have had an effect on the result of the calculation of JP Morgan’s cash receipts and thus on the determination of the value of sales that is not immaterial.

668    Third, the applicants claim that the Commission’s conclusion in recital 702 of the contested decision to the effect that the fact that banks had used different netting methods had not led to material differences or given rise to unequal treatment is contradicted by the fact that Société générale’s fine was reduced by half in the decision amending the settlement decision.

669    However, it is clear from recital 703 of the contested decision that the Commission adopted a decision to amend the settlement decision as far as concerns Société générale when the latter informed the Commission that it had failed to apply the netting for a substantial part of its transactions, and not because it had revised its data by applying another netting method. In addition, it is clear from recital 702 of the contested decision that the results of the calculations following the two approaches (netting on a daily basis and netting on a monthly basis), as carried out by Bank C, show a difference of about 0.4%. The applicants are not disputing that such a difference is immaterial.

670    It is therefore appropriate to conclude that the applicants have not shown that the Commission was incorrect in finding that the differences in the methodologies applied by the banks to calculate their cash receipts had led to differences in the data submitted that are immaterial. Such immaterial differences do not mean that the Commission had failed to observe the principle of equal treatment in that they do not cause the Commission to use non-comparable values to calculate the amount of the fines.

671    It follows that the applicants have not shown that, in the present case, the acceptance by the Commission of the data calculated using different methodologies led it to use data on cash receipts that are not comparable and, thus, to fail to observe the principle of equal treatment in its calculation of JP Morgan’s fine. That complaint must consequently be rejected as must, therefore, the second part of the sixth plea.

(c)    The first part of the sixth plea, alleging that the Commission failed to take sufficient account of JP Morgan’s ‘peripheral’ role in the infringement

672    The applicants submit, in essence, that, when the Commission calculated the fine imposed on JP Morgan and, in particular, when it determined the reduction, for mitigating circumstances, of the gravity factor and the ‘entry fee’, the Commission failed to take sufficient account of the ‘peripheral’ and minor role that JP Morgan played in the infringement. In doing so, the Commission imposed a disproportionate fine that was contrary to the principle of equal treatment and to the principle that the fine must be made to fit the offence. The Commission failed to take into account several circumstances which, in essence, made it possible to differentiate the intensity and nature of JP Morgan’s involvement in the infringement as compared with the main players.

673    The Commission disputes the merits of those complaints and claims that they should be rejected.

674    It must be observed that, according to settled case-law, the principle of proportionality, which is one of the general principles of EU law, requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the objective pursued, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgments of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 13, and of 15 July 2015, Trafilerie Meridionali v Commission, T‑422/10, EU:T:2015:512, paragraph 373).

675    In the procedures initiated by the Commission in order to impose sanctions for infringements of the competition rules, the application of that principle requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof. In particular, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account to assess the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see judgment of 15 July 2015, Trafilerie Meridionali v Commission, T‑422/10, EU:T:2015:512, paragraph 374 and the case-law cited).

676    In order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of its gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the European Union (see judgments of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 56 and the case-law cited, and of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraphs 196 and 198 and the case-law cited).

677    In addition, when determining the amount of the fine, objective factors such as the content and duration of the anticompetitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 57 and the case-law cited).

678    In the interests of transparency the Commission adopted the Guidelines on the method of setting fines, in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine.

679    In that regard, the Court finds, first of all, that the Commission was correct to point out, in recital 723 of the contested decision, that it could take into account the relative gravity of the participation of an undertaking in an infringement and the particular circumstances of the case when assessing the gravity of the infringement within the meaning of Article 23 of Regulation No 1/2003, or when adjusting the basic amount of the fine in the light of mitigating and aggravating circumstances (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 199 and the case-law cited). This applies, in particular, to the assessment of the gravity of the participation in a single and continuous infringement committed by several undertakings (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 103).

680    Next, according to settled case-law, where an infringement has been committed by several undertakings, it is appropriate, when setting the amount of the fines, to consider the relative gravity of the participation of each of them, which implies in particular that the roles played by each of them in the infringement for the duration of their participation in it should be established. That conclusion follows logically from the principle that penalties must fit the offence, according to which an undertaking may be penalised only for acts imputed to it individually. That principle applies in any administrative procedure that may lead to the imposition of sanctions under EU competition law (see judgment of 25 October 2005, Groupe Danone v Commission, T‑38/02, EU:T:2005:367, paragraphs 277 and 278 and the case-law cited).

681    In accordance with those principles, point 29 of the Guidelines on the method of setting fines provides for the basic amount of the fine to be varied by reference to a number of mitigating circumstances, which are specific to each undertaking involved. That point lays down, in particular, a non-exhaustive list of the mitigating circumstances that may be taken into account. In particular, under the second and third indents of point 29 of those guidelines, the basic amount of the fine may be reduced where the undertaking concerned provides evidence that the infringement has been committed as a result of negligence or that its involvement in the infringement was substantially limited.

682    In the present case, the Commission took into account the particular role played by JP Morgan in the single and continuous infringement as mitigating circumstances by reducing the basic amount of the fine imposed on it by 10% (recitals 763 and 764 of the contested decision). It found that the degree of intensity of JP Morgan’s participation in the collusive arrangements was lower than that of the main players, namely Bank D, Bank A and Bank C (recitals 117 to 120 of the contested decision).

683    In those circumstances, the Commission was not obliged also to reflect the lesser degree of intensity of JP Morgan’s participation in the infringement as compared with that of the main players in the determination of the gravity factor or the ‘entry fee’. Moreover, that seems to have been conceded by the applicants when they state that JP Morgan’s ‘peripheral’ role in the infringement justifies the amount of the fine being reduced either due to mitigating circumstances or when determining the gravity factor or the ‘entry fee’.

684    However, the applicants claim that the 10% reduction of the basic amount of the fine due to mitigating circumstances fails to reflect sufficiently the ‘peripheral’ role played by JP Morgan in the infringement.

685    In that regard, the Court finds that none of the circumstances invoked with the aim of showing that JP Morgan played a ‘peripheral’ role in the infringement is such as to establish that JP Morgan should have benefited from a greater reduction due to mitigating circumstances.

686    First, the applicants submit that the JP Morgan trader had not sought to influence his bank’s submissions to the Euribor panel after contact with another trader. However, as is clear from paragraph 281 above, by stating, during the exchanges of 27 and 28 September 2006, that he would ‘check’ his bank’s submission, the JP Morgan trader agreed to seek from his bank’s treasury a Euribor submission in line with the preferences of the Deutsche Bank trader. In addition, the evidence relied on by the Commission, taken as a whole body of evidence, makes it equally reasonable to conclude that the JP Morgan trader acted upon the discussions with the Deutsche Bank trader as to the desired level of the Euribor rate by making contact with his bank’s submitters and thereby implemented collusive exchanges (see paragraphs 302 to 305 above). The applicants’ arguments are not sufficient to call into question that body of evidence and, therefore, cannot succeed.

687    Second, the applicants also erred in so far as they rely on an alleged argument by the Commission that JP Morgan participated in anticompetitive exchanges only with a single party, namely Deutsche Bank. That reading of the contested decision is incorrect to the extent that the Commission found that the JP Morgan trader had participated, on 25 October 2006, in an exchange with the Barclays trader and concluded, in recitals 358 and 487 of the contested decision, that that exchange was part of JP Morgan’s infringing conduct (see paragraph 158 above). Furthermore, the Court finds, as the Commission did, that, taking into account the nature and structure of the cartel and of the anticompetitive exchanges, it was not necessary for the applicants to participate in bilateral contacts with all the other banks involved to contribute to the common objective. Consequently, the fact that the JP Morgan trader engaged in the majority of the exchanges with the Deutsche Bank trader does not justify a further reduction of the fine.

688    Third, the applicants claim that the communications involving the JP Morgan trader were less frequent and less explicit as compared with the communications involving Société générale, HSBC and Crédit agricole, which make explicit references to their intention to manipulate Euribor.

689    In that regard, the Court finds that the Commission did take into account the more active role played by the Bank D trader and the Bank A trader in the cartel in its assessment of the reduction granted to JP Morgan due to mitigating circumstances.

690    However, the explicit or non-explicit character of an exchange cannot have an impact on the nature or gravity of an infringement such as to justify the reduction of the fine where it has been established that such an exchange is an infringement, as is the case for the exchanges referred to in paragraph 273 above.

691    Fourth, the applicants claim that the Commission found that the JP Morgan trader had only reasonable foresight of the conduct of other banks participating in the single and continuous infringement.

692    In that regard, the Court finds that, contrary to what is clear implicitly, but necessarily, from that argument, there is no need to accept, for the purpose of assessing the gravity of the individual participation of the parties to the cartel, that there are a number of ‘levels’ of awareness of the infringing conduct planned or implemented by other undertakings in pursuit of the same objectives. In accordance with the settled case-law referred to in paragraphs 442 to 444 above, in order for the Commission to be able to hold an undertaking liable for all of the anticompetitive conduct constituting such an infringement and, consequently, for the infringement as a whole, it is sufficient that the undertaking could reasonably have foreseen the infringing conduct planned or implemented by other undertakings in pursuit of the same objectives and was prepared to accept the risk. As follows from the assessment of the fourth plea, that condition is satisfied in the present instance in the case of JP Morgan.

693    Lastly, the applicants submit that the Commission has failed to show that JP Morgan benefited meaningfully from the infringement or sought to benefit from it, as regards the March 2007 IMM. In that regard, it is sufficient to note, first, that the participation of the JP Morgan trader in the practices at issue was not less serious because the other traders profited from it more. As the Commission submits, in essence, by participating in the cartel without interruption and without distancing itself publicly from the collusive conduct, the applicants also encouraged other undertakings to behave in a manner harmful to competition with the result that their conduct was not less serious solely because they benefited less from the practices at issue, assuming that that is indeed the case.

694    Further, it is in any event clear from paragraphs 285, 287 and 288 above that the JP Morgan trader benefited from the collusion and avoided losses, which, as regards the fixing of 19 March 2007, could even have been considerable, by modifying his trading position in anticipation of the fixing on 18 December 2006 and as regards March 2007 futures.

695    In the light of the foregoing, the applicants’ arguments seeking to challenge the 10% rate of reduction granted by the Commission due to mitigating circumstances on the basis that the Commission had failed to observe the principle of proportionality, the principle of equal treatment and the principle that the fine must be made to fit the offence cannot succeed.

696    Lastly, as is clear from paragraph 317 above, the Commission incorrectly found that JP Morgan participated in the anticompetitive conduct as regards the exchange of 10 October 2006. However, that error by the Commission that extended to a single exchange in which it found JP Morgan had participated had no impact on the intensity of its participation in the single and continuous infringement. JP Morgan participated in that infringement for a period of around five and a half months, that is to say from 27 September 2006 until 19 March 2007. During that period, it participated in anticompetitive exchanges on 27, 28 and 29 September 2006, on 2, 6, 25 and 26 October 2006, on 8, 13 and 24 November 2006, on 18 December 2006, on 4 and 8 January 2007, on 6 February 2007, and on 14, 16 and 19 March 2007. It follows that, even without taking into account the exchange of 10 October 2006, in respect of which the Commission should not have found that JP Morgan had participated in the anticompetitive conduct, the exchanges in respect of which JP Morgan’s participation in such conduct was confirmed are characterised by their particular frequency and regularity. For example, in the month of October 2006, JP Morgan participated in anticompetitive exchanges on four different dates. Consequently, the rate of reduction applied by the Commission due to mitigating circumstances cannot be regarded as being inadequate in the light of JP Morgan’s infringement, notwithstanding the error concerning the exchange of 10 October 2006.

697    It follows that the first part of the sixth plea must be rejected as unfounded. However, as is clear from paragraph 635 above, the complaint alleging that the statement of reasons in the contested decision is inadequate as far as concerns the discount factor, raised in the context of the third part of the sixth plea, is well founded, with the result that it is necessary to annul Article 2(c) of the contested decision in so far as it concerns the applicants.

2.      The application for a reduction in the amount of the fine imposed

698    The applicants ask the Court to reduce the amount of the fine imposed on them in the contested decision and thus, essentially, to exercise its unlimited jurisdiction.

699    In that regard, the Court notes that, although, according to the case-law of the Court of Justice, the unlimited jurisdiction conferred on the EU Courts by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the Court with jurisdiction, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed, the exercise of that unlimited jurisdiction does not amount to a review of the Court’s own motion, and proceedings are inter partes. It is, in principle, for the applicant to raise pleas in law against the decision at issue and to adduce evidence in support of those pleas (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraphs 193 and 194 and the case-law cited).

700    As follows from the case-law recalled in paragraphs 567 and 568 above, the unlimited jurisdiction enjoyed by the Court on the basis of Article 31 of Regulation No 1/2003 concerns solely the assessment by that Court of the fine imposed by the Commission, to the exclusion of any alteration of the constituent elements of the infringement lawfully determined by the Commission in the decision under examination by the Court.

701    The exercise by the Court of its unlimited jurisdiction involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without it being bound by the indicative rules defined by the Commission in its guidelines, even where the latter may give guidance to the EU Courts when they exercise their unlimited jurisdiction (see judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 90 and the case-law cited).

702    It should also be observed that, by its nature, the fixing of a fine by the Court is not an arithmetically precise exercise. Furthermore, when it adjudicates in the exercise of its unlimited jurisdiction, the Court must make its own appraisal, taking account of all the circumstances of the case (see judgment of 15 July 2015, Trafilerie Meridionali v Commission, T‑422/10, EU:T:2015:512, paragraph 398 and the case-law cited).

703    In the context of its obligation to state reasons, it is for the Court to set out in detail the factors which it took into account when setting the amount of the fine (see, to that effect, judgment of 14 September 2016, Trafilerie Meridionali v Commission, C‑519/15P, EU:C:2016:682, paragraph 52).

704    In the present case, in order to determine the amount of the fine to be imposed as a sanction on JP Morgan for its infringing conduct, as results from the examination of the first five pleas, it is appropriate to take into account the following factors.

705    In the first place, as far as concerns the gravity and duration of the infringement, the Court makes the following findings.

706    First, it is appropriate to use a methodology that – much like the methodology used by the Commission in the present case – first identifies the basic amount of the fine which can subsequently be adjusted according to the specific circumstances of the case.

707    At the outset, with regard to the value of sales as initial data, it is appropriate to use discounted cash receipts as a proxy for that value. As is clear from an examination of the third part of the sixth plea, the value of the discounted cash receipts does, in the present case, provide an appropriate starting point for determining the amount of the fine, since that value reflects the economic significance of the infringement and the relative strength of the undertaking in the infringement.

708    In that regard, the Court had indeed found, in the context of the second part of the sixth plea (see paragraph 657 above), that when the banks determined their cash receipts, in certain cases they did use different approaches. However, as follows from paragraph 671 above, those differences do not give rise to a failure to observe the principle of equal treatment.

709    In addition, the Court takes the view that other methodologies for calculating cash receipts, in particular methodologies such as those followed by certain banks to reply to the request for information of 12 October 2012, would not be more appropriate for establishing cash receipts. A methodology that excludes the fixed legs of trades where those trades have both fixed legs and variable legs, that excludes ‘exotic’ derivatives or that applies netting on a monthly basis instead of a daily basis is not more appropriate for determining, in the present case, the value of sales for the purpose of the infringement for which a sanction is being imposed and thus for reflecting adequately the genuine nature and economic scale of that infringement or the position of undertakings in that infringement. In the first place, as regards EIRD contracts with both a fixed and a variable leg, the cash flows reflect the difference between the fixed leg and the variable leg on the fixing date, as is clear from paragraph 39 above. The Court takes the view that there is no reason to exclude flows under one of the ‘legs’ in such EIRDs in particular. In the second place, nothing justifies excluding ‘exotic’ derivatives from the calculation of cash receipts where they are also part of the relevant EIRD market. In the third place, given that netting on a daily basis is the market norm, there is no particular circumstance in the present case justifying departing from that.

710    In the light of those circumstances, the Court has decided to use the value of cash receipts for JP Morgan as applied by the Commission in the contested decision when determining the amount of the fine.

711    Next, it is important to note that the parties agree that using only cash receipts as the basis for the calculation of the fine would lead to the imposition of a fine that is over-deterrent. The parties therefore agree that it is necessary to reduce those cash receipts by applying a discount factor.

712    In the contested decision, the Commission applied a uniform discount factor set at 98.849%.

713    That discount factor was determined using a complex exercise reflecting a number of elements, in particular the netting inherent in the negotiation of derivatives in general and the specificities of derivatives netting and, specifically, EIRD netting. It is, therefore, an approximation of a constructed value. Thus, by definition, there is not only one single discount factor possible.

714    The applicants propose an alternative discount factor of 99.91%, without, however, specifying the reasons why a discount factor set at that level would be more appropriate than the discount factor used by the Commission. They merely submit that the application of the AFR value of the EIRDs during the relevant period would ‘suggest’ an ‘appropriate’ discount factor of 99.91%. As was found in paragraphs 588 to 593 above, the approach proposed by the applicants for calculating the proxy for the value of sales in the present case, based on the AFR, cannot be favoured because it does not reflect any better the economic significance of the infringement than the Commission’s approach using discounted cash receipts.

715    In any event, the Court finds that the application of such an alternative discount factor which is particularly high, even excessive, risks making the penalty nugatory by making it immaterial and by undermining the need to ensure that the fine is sufficiently deterrent. The application of an alternative discount factor of 99.91% as proposed by the applicants would therefore lead to the imposition of a fine that does not reflect the economic significance of the infringement or the relative strength of JP Morgan in that infringement.

716    In the reply, the applicants argue that a further discount factor must be applied to JP Morgan’s cash receipts in order to reflect its economic strength on the market. However, they do not propose any other factor that would be more appropriate and would, simultaneously, make it possible to impose a fine that would reflect the economic significance of the infringement and the relative strength of JP Morgan in that infringement while at the same time ensuring the deterrent nature of the fine.

717    In any event, the parties agree that the discount factor should be set at 98.849% at the very least. In addition, the Court notes that the setting of a fine, in the exercise of its unlimited jurisdiction, is not an arithmetically precise exercise.

718    Second, with regard to the gravity of the infringement, the Court takes the view that it is appropriate to take into consideration the nature of the infringement, its geographic scope and whether or not the infringement was implemented.

719    As regards the nature of the infringement, since the conduct at issue relates to factors that are relevant to the determination of the prices of EIRDs, they are, by their very nature, among the most serious of restrictions to competition. In addition, the practices at issue are particularly serious and harmful since they are liable not only to distort competition on the EIRD market, but also, more broadly, to compromise the trust placed in the banking system and the financial markets as a whole and their credibility.

720    As the Commission found in recital 721 of the contested decision, without those aspects being disputed by the applicants, the benchmarks concerned which are reflected in the pricing of EIRDs apply to all participants in the EIRD market. In addition, since those rates are euro-based, they are of paramount importance for the harmonisation of financial conditions in the internal market and for banking activities in the Member States.

721    With regard to the geographic scope of the infringement, as appears from recitals 47 and 721 of the contested decision, the cartel covered at the very least the entire EEA, with the result that the conduct at issue was capable of having an impact on the banking activities of all Member States.

722    It is also appropriate to take account of the fact that the body of evidence available to the Court shows that it was at the very least plausible that the JP Morgan trader implemented the infringing conduct arranged with the Barclays trader on 27 and 28 September 2006 by making contact with his bank’s submitters (see paragraphs 281 and 302 to 305 above).

723    Third, it is appropriate to use the duration of the applicants’ participation in the infringement as found in the contested decision, as it was not disputed by the applicants and since it is not affected by the conclusion reached in paragraph 317 above concerning JP Morgan’s participation in the infringing conduct that constitutes the single infringement at issue.

724    In the second place, with regard to the mitigating circumstances, the Court finds that JP Morgan played a less important role in the infringement than the main players, such as, for example, Bank D and Bank A. Similarly, the intensity of the contact in which the JP Morgan trader participated was less than that of the main players.

725    However, the fact remains that, as was held in paragraph 696 above, the exchanges in which JP Morgan participated are characterised by their specific frequency and regularity. The merits of that finding are not in any way changed by the conclusion in paragraph 153 above concerning the scope of one of the exchanges relied on against the applicants in the contested decision, that is to say, the exchange of 10 October 2006.

726    Moreover, the Court finds that JP Morgan’s participation in the infringing conduct was intentional and that the applicants have not claimed that they should benefit, in the present case, from the mitigating circumstance of negligence. In addition, the applicants participated, albeit passively, in a not insignificant number of instances of anticompetitive contact, without ever showing any reservation or opposition, by participating in anticompetitive exchanges of information. In so doing, the applicants gave the impression to their competitors that they were taking part in the cartel at issue and thus contributed to encouraging it. Moreover, as follows from paragraph 719 above, the conduct at issue is particularly serious. Consequently, the impact on the final amount of the fine of the mitigating circumstances in the form of the limited participation and the less important role played by JP Morgan in the infringement as compared with the main players can be only marginal.

727    In the third place, the amount of the fine determined by the Court takes due account of the need to impose on JP Morgan a fine of an amount that has a deterrent effect.

728    In the light of all the findings above, the Court finds that, on a fair assessment of the circumstances of the case, having regard to the principle that the fine must be made to fit the offence and to the proportionality of that fine, the amount of the fine for which JPMorgan Chase & Co. and JPMorgan Chase Bank, National Association are jointly and severally liable should be set at EUR 337 196 000. Consequently, the Court rejects the head of claim seeking a reduction of the amount of the fine imposed on the applicants.

IV.    Costs

729    Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. Further, under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

730    In the present case, the Court has found that there is no longer any need to adjudicate on the action in so far as it was brought by J.P. Morgan Services. In that regard, the Court takes formal note of the applicants’ statements that, in essence, they will bear any costs incurred by J.P. Morgan Services.

731    In addition, the applicants have been unsuccessful in so far as they sought the annulment of Article 1(c) of the contested decision and applied for a reduction in the amount of the fine and were successful in so far as they applied for the annulment of Article 2(c) of that decision and as regards their head of claim concerning the amending decision.

732    In view of those factors, on a fair assessment of the circumstances of the case, each party should be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Tenth Chamber, Extended Composition),

hereby:

1.      Declares that there is no longer any need to adjudicate on the action in so far as it was brought by J.P. Morgan Services LLP;

2.      Annuls Article 2(c) of Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39914 – Euro Interest Rate Derivatives (EIRD)) in so far as it concerns JPMorgan Chase & Co. and JPMorgan Chase Bank, National Association;

3.      Sets the amount of the fine for which JPMorgan Chase & Co. and JPMorgan Chase Bank, National Association are jointly and severally liable at EUR 337 196 000;

4.      Dismisses the action as to the remainder;

5.      Orders each party to bear its own costs.

Papasavvas Kornezov Buttigieg

Kowalik-Bańczyk Hesse

Delivered in open court in Luxembourg on 20 December 2023.

V. Di Bucci M. van der Woude

Registrar President

Table of contents

I. Background to the dispute

A. The administrative procedure giving rise to the contested decision

B. The contested decision

1. The products at issue

2. The applicants’ alleged conduct

3. The fine

C. Events subsequent to the bringing of the present action

II. Forms of order sought

III. Law

A. The effects of the dissolution of J.P. Morgan Services on the present proceedings

B. The claim for annulment of Article 1(c) of the contested decision

1. Whether there is infringing conduct attributable to the applicants (first, second and third pleas of the application)

(a) Preliminary observations

(1) The context in which the conduct at issue occurred

(2) The scope of the applicants’ challenge to JP Morgan’s participation in the infringing conduct

(3) The admissibility and probative value of certain annexes

(4) The taking into consideration of ‘the Bank E communications’ as evidence forming part of a body of evidence

(b) The first plea in law, disputing JP Morgan’s participation in the infringing conduct

(1) The scope of the exchanges that, in the contested decision, the Commission found to constitute infringing conduct on the part of JP Morgan

(i) The exchanges of 27 September 2006

(ii) The exchanges of 28 September 2006

(iii) The exchange of 29 September 2006

(iv) The exchanges of 2 October 2006

(v) The exchange of 6 October 2006

(vi) The exchange of 10 October 2006

(vii) The exchange of 25 October 2006

(viii) The exchange of 26 October 2006

(ix) The exchange of 8 November 2006

(x) The exchange of 13 November 2006

(xi) The exchanges of 24 November 2006

(xii) The exchange of 18 December 2006

(xiii) The exchanges of 4 January 2007

(xiv) The exchanges of 8 January 2007

(xv) The exchange of 6 February 2007

(xvi) The exchange of 14 March 2007

(xvii) The exchange of 16 March 2007

(xviii) The exchange of 19 March 2007

(2) Argument challenging JP Morgan’s participation in the practices at issue

(i) Participation in Euribor rate manipulating practices

(ii) JP Morgan’s alleged participation in other forms of conduct

(c) The second and third pleas in the application, concerning the characterisation of the applicants’ alleged conduct as an infringement by object within the meaning of Article 101(1) TFEU and the obligation to state reasons

(1) The second plea, alleging an error as regards the characterisation of the exchanges relating to Euribor manipulations as a restriction of competition by object

(2) The third plea, alleging an error as regards the characterisation of conduct other than the manipulation of Euribor as a restriction of competition by object and a failure to state reasons

(i) The characterisation of the exchange of 6 October 2006 on trading positions as a restriction of competition by object

(ii) The characterisation of the exchanges on pricing strategy of 13 and 24 November 2006 and 14 March 2007 as a restriction of competition by object

(3) The pro-competitive effects of the conduct at issue

2. The Commission’s finding of a single infringement (fourth plea of the application)

(a) The first part of the fourth plea, alleging flaws in the identification by the Commission of the single identical objective

(b) The second part of the fourth plea, alleging that the Commission failed to demonstrate that the applicants were aware of or could reasonably have foreseen the infringing conduct planned or put into effect by the other parties

(c) The third part of the fourth plea, alleging that the applicants did not intend to contribute to a common objective

3. The alleged failure to observe the principles of good administration, the presumption of innocence and rights of defence (fifth plea of the application)

(a) The first part of the fifth plea in law, relating to the settlement decision

(1) Observance of the presumption of innocence

(2) Observance of the duty of impartiality

(3) Observance of the rights of defence

(b) The second part of the fifth plea in law, concerning the remarks made by the competition Commissioner

4. The impact of the error found during the examination of the first plea in law, regarding the lawfulness of Article 1(c) of the contested decision

C. The claim for annulment of Article 2(c) of the contested decision and the claim for a reduction of the amount of the fine

1. The claim for annulment of Article 2(c) of the contested decision

(a) The third part of the sixth plea, concerning the use of discounted cash receipts for the purposes of calculating the value of sales

(1) The issue of whether it is appropriate to take into account discounted cash receipts as a proxy for the value of sales

(2) Determination of the discount factor of 98.849% applied by the Commission

(i) Whether the Commission met its obligation to state reasons as far as concerns the determination of the discount factor in the contested decision

(ii) The amending decision

(b) The second part of the sixth plea, alleging a failure to observe the principle of equal treatment due to the method of calculating the value of sales

(1) The different methodological approaches followed by the banks concerned

(2) Observance of the principle of equal treatment in the calculation of the amount of the fine

(c) The first part of the sixth plea, alleging that the Commission failed to take sufficient account of JP Morgan’s ‘peripheral’ role in the infringement

2. The application for a reduction in the amount of the fine imposed

IV. Costs

*      Language of the case: English.

1      This judgment is published in extract form.

2      Confidential information redacted.