Action brought on 5 February 2024 – Coöperatieve Rabobank v Commission

(Case T-57/24)

Language of the case: English

Parties

Applicant: Coöperatieve Rabobank U.A. (Utrecht, Netherlands) (represented by: R. Wesseling and F. Brouwer, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul Commission Decision C(2023) 7811 of 22 November 2023 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.40512 – Euro-Denominated Bonds (EDB)) (“the Decision”) pursuant to Article 263 TFEU;

in the alternative, partially annul Article 1 of the Decision pursuant to Article 263 TFEU, and reduce the fine imposed in Article 2 of the Decision pursuant to Article 261 TFEU;

in any event, reduce the amount of the fine imposed in Article 2 of the Decision pursuant to Article 261 TFEU;

order the Commission to pay the applicant’s costs or, in the alternative, an appropriate proportion of the costs pursuant to Article 134 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

First plea in law, alleging that the Commission erred in law, provided insufficient reasons and/or incorrectly assessed the evidence in finding that Rabobank engaged in conduct that has as its object the restriction and/or distortion of competition within the meaning of Article 101 TFEU. In particular,

the Commission failed to prove to the requisite legal standard that all communications in the Decision restrict competition by object;

the Commission’s allegations incorrectly include communications that relate only to counterparty trades between Rabobank and Deutsche Bank.

Second plea in law, alleging that the Commission erred in law, provided insufficient reasons and/or incorrectly assessed the evidence in concluding under Article 101 TFEU that (a) the conduct pursued a single aim or overall plan and (b) the alleged infringement was continuous during the relevant period. In particular,

the Commission failed to establish that all communications pursued the anticompetitive plan alleged in the Decision;

the Commission failed to establish, to the requisite degree, that the disparate instances of alleged anticompetitive contact constitute an uninterrupted, continuous infringement lasting more than 10 years.

Third plea in law, alleging that the Commission’s methodology to determine the fine violates Article 23 of Regulation 1/2003, the Guidelines on Fines and the principle of proportionality. In particular,

the Commission has no basis to impose a fine for the periods during which the infringement was interrupted;

the fine in the Decision is disproportionate to the gravity and economic importance of the alleged infringement, which consists of a very small number of allegedly anticompetitive contacts spread over a very long period of time;

the proxy for the “Value of Sales” in the Decision significantly overstates Rabobank’s revenue and therefore the economic importance of the alleged infringement, departing from the concept of “Value of Sales” and the obligation to use the “best available figures” in the Guidelines on Fines.

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