Action brought on 2 August 2021 – Bank of America and Bank of America Corporation v Commission

(Case T-456/21)

Language of the case: English

Parties

Applicants: Bank of America N.A. (Charlotte, North Carolina, United States), Bank of America Corporation (Wilmington, North Carolina, United States) (represented by: D. Bailey, Barrister, D. Liddell, Solicitor, and D. Slater, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

annul Commission Decision C(2021) 3489 of 20 May 2021 in Case AT.40324 – European Government Bonds (“Decision”), in so far as it concerns the Applicants; and

order the Commission to bear the applicants’ costs and expenses in connection with these proceedings.

Pleas in law and main arguments

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

First plea in law: the Commission’s finding that the applicants participated in a single and continuous infringement is based on an error of law and/or assessment in the application of Article 101(1) TFEU. In particular, the Commission applied the wrong test for participation in a single and continuous infringement; further or alternatively, the Commission has wrongly applied the law concerning the elements of a single and continuous infringement to the facts of this case.

Second plea in law: in circumstances in which, pursuant to Article 25(1)(b) of EC Regulation 1/2003, the conduct of the applicants fell outside the limitation period for imposing a fine, the Commission erred in concluding that there is sufficient legitimate interest, within the meaning of Article 7of Regulation (EC) 1/2003, in finding an infringement against the applicants.

Third plea in law: the Commission infringed the rights of the defence in that (i) the case against the applicants in the Decision did not correspond in a fundamental way with the essential case advanced against the applicants in the Statement of Objections; (ii) the Commission failed to explain why it considered the contacts referenced obliquely only in Annex 1 to the Statement of Objections and Annex 1 to the Decision were unlawful and (iii) the applicants were not given the opportunity to respond to new points made in the Decision – that had not been made in the Statement of Objections – about certain communications.

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