JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)
20 December 2023 (*)
(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)
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III. Law
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B. The claim for annulment of Article 1(c) of the contested decision
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1. Whether there is infringing conduct attributable to the applicants (first, second and third pleas of the application)
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(b) The first plea in law, disputing JP Morgan’s participation in the infringing conduct
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(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.
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2. The Commission’s finding of a single infringement (fourth plea of the application)
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(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.
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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
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2. The application for a reduction in the amount of the fine imposed
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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.
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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 |
Delivered in open court in Luxembourg on 20 December 2023.
[Signatures]