On March 21, 2019, the Court of Justice issued two orders dismissing Crédit Agricole’s and JPMorgan Chase’s applications for interim measures requested to prevent the Commission from publishing its decision in the EIRD cartel case.[1] The parties had appealed an order issued in October 2018 by the General Court,[2] which rejected the parties’ claims that the Commission should not be allowed to publish its decision on the cartel case while a court appeal against its publication is pending.
The Court of Justice agreed with the General Court’s assessment that the parties did not have a prima facie case to prevent publication of the decision. First, the Court of Justice did not agree with the applicant that the case was similar to Pergan v Commission, where the General Court found that the Commission is prevented from publishing its findings if the person found liable of an antitrust infringement was not able to contest the decision before the EU Courts.[3] In the present case, however, the Parties had already challenged the EIRD decision before the EU Courts. Second, the Parties had argued that the decision’s publication could harm certain individuals’ reputation because the decision found the applicants’ “management […] to have been aware of or at least, should have been aware of, of [sic] the essential characteristics of the collusive scheme and their employees’ involvement in it.”[4] The Court of Justice disagreed and upheld the General Court’s finding that this part of the decision did not identify any specific individuals, either by name or their place in the applicants’ hierarchy. On this basis, the Court of Justice held that the decision’s publication could not harm any identifiable individuals, without assessing whether the Commission’s finding a member of the addressee’s management to be aware of illegal conduct could harm that person’s reputation and whether such finding should be redacted from the public version. Taking these factors into consideration, the publication of the decision—which, as any act of the Commission, is presumed to be legal—did not, on its face, violate the parties’ presumption of innocence for the above stated reasons.
The Court of Justice had, in a similar vein, recently rejected Nexans’ request to enjoin the Commission from publishing its decision in the Power Cables cartel because the parties failed to establish a prima facie case against such publication.[5] The parties had not proven the confidential nature of the contested information, which the Court viewed as historical, as well as the serious and irreparable harm that publication of the decision would cause.
Following the Court of Justice’s orders, the Commission published the EIRD decision on April 9, 2019.
[1] Crédit Agricole and Crédit Agricole Corporate and Investment Bank v Commission (Case C-4/19 P(R)) EU:C:2019:229; JPMorgan Chase and Others v Commission (Case C-1/19 P(R)) EU:C:2019:230.
[2] The General Court’s order on Crédit Agricole’s application for interim measures has been reported in the EU Competition Law Newsletter, October 2018, p. 5.
[3] The Parties cited Pergan Hilfsstoffe für industrielle Prozesse GmbH v Commission (Case T-474/04) EU:T:2007:306.
[4] Euro Interest Rate Derivatives (Case AT.39914), Commission decision of December 7, 2016, para. 465.
[5] Nexans France and Nexans v Commission (Case C-65/18 P(R)) EU:C:2018:426; see EU Competition Quarterly Report, April–June 2018, pp. 10–11.