Action brought on 30 July 2021 – UniCredit and UniCredit Bank v Commission

(Case T-453/21)

Language of the case: English

Parties

Applicants: UniCredit SpA (Rome, Italy), UniCredit Bank AG (Munich, Germany) (represented by: I. Vandenborre, S. Dionnet, M. Siragusa, G. Rizza and B. Massella Ducci Teri, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

Annul in whole or in part the Commission’s Decision C(2021) 3489 final of 20 May 2021 in Case COMP/AT.40324 – European Government Bonds (the “Decision”) finding that the applicants infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating from the 9 September 2011 to the 28 November 2011 in a single and continuous infringement in the European government Bonds sector, and/or the fine;

In the alternative, reduce substantially the level of the fine imposed, in the exercise of its unlimited jurisdiction;

Order the Commission to pay the costs;

Order the Commission, as a measure of organization of procedure or of inquiry, to lodge the non-confidential version of the submissions filed by a third party with the Commission’s DG Competition in the course of the investigation AT.40324, following the Statement of Objections and the Oral Hearing so that they can be introduced into the case-file.

Pleas in law and main arguments

In support of the action, the applicants rely on eleven pleas in law.

First plea in law, alleging that the Commission infringed its obligation to state reasons in that the Decision does not properly define the relevant market(s).

Second plea in law, alleging that the Decision errs in finding that UniCredit participated in a single and continuous infringement that centered on the primary market despite UniCredit’s trader not trading on that market.

Third plea in law, alleging that the Commission’s finding that UniCredit participated in a single and continuous infringement that amounted to a restriction of competition by object is not supported by contemporaneous evidence and insufficiently reasoned.

Fourth plea in law, alleging that the Commission erred in establishing UniCredit’s participation in a restriction of competition by object without analyzing the potential impact of its conduct on the secondary market.

Fifth plea in law, alleging that the Commission erred in establishing UniCredit’s participation in a restriction of competition by object without analyzing the economic context.

Sixth plea in law, alleging that the Commission committed an error of assessment of the facts with respect to the duration of the Applicants’ participation in the alleged cartel.

Seventh plea in law, alleging that the fine methodology used in the Decision is flawed in that the Commission: (i) used a flawed proxy for calculating the value of sales, (ii) failed to use the best available figures to determine the amount of the Fine, (iii) failed to address the suitability of alternative data submitted by UniCredit, and (iv) failed to comply with its duty to state reasons.

Eight plea in law, alleging that the Commission’s methodology to calculate the proxy for the parties’ value of sales was manifestly unreasonable and unfit for its intended purpose as it failed to correctly reflect UniCredit’s and the other parties’ relative weight in the alleged infringement.

Ninth plea in law, alleging that the Commission breached the principles of proportionality and the principle that penalties must be specific to the offender by reducing the variable component of the basic amount of UniCredit’s Fine by only 1% compared to the other parties.

Tenth plea in law, alleging that the Commission breached the principle of proportionality and the principle that penalties must be specific to the offender, by failing to make a significant adjustment to the basic amount of the Fine: (a) on the basis of § 37 of the Fining Guidelines and/or (b) on account of mitigating circumstances. As a result, the final amount of the Fine failed to reflect the objective differences in UniCredit’s situation compared with the situations of the other parties.

Eleventh plea in law, alleging that the imposition by the Commission of a disproportionate and inequitable fine on UniCredit should be corrected by the Court’s exercise of its unlimited jurisdiction.

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