On April 9, 2019, the Commission published the Final Report of the Hearing Officer on procedural issues relating to its 2016 decision in the Euribor case, in which it fined Crédit Agricole, HSBC and JPMorgan Chase a total of €485 million for participating in a cartel in euro interest rate derivatives.[1] The Hearing Officer found that while certain statements made by then-Competition Commissioner Joaquín Almunia during the investigation were “regrettable,” they did not breach the presumption of innocence.[2]

In July 2014, Crédit Agricole, one of the non-settling parties, complained to the European Ombudsman (the “Ombudsman”) that a series of public statements made by Mr. Almunia during the Commission’s investigation called into question its impartiality and breached the presumption of innocence. In those statements, which were delivered to the European Parliament, the French Senate, and media outlets, among others, Mr. Almunia had described the Commission’s evidence in the case as “quite telling” and referred to the gravity of the infringement as “above the average.”[3] The Ombudsman found the statements liable to create a public impression of bias and issued a finding of maladministration, calling on the Commission to apologize and publish guidelines on public statements of its officials.[4] Although the Commission did neither, the Ombudsman later closed the investigation on the grounds that Mr. Almunia had since left office and that the procedure had been taken over by Mr. Almunia’s successor, Commissioner Vestager, who was responsible for the final decision in this case.[5]

Crédit Agricole, together with the other non-settling parties HSBC and JPMorgan Chase, raised the issue again in the course of the non-settlement procedure which was dealt with by the Hearing Officer in his Final Report. The Hearing Officer emphasized the importance of context when distinguishing between objective statements about investigations, which are generally permitted, and subjective opinions about guilt, which are not. He described Mr. Almunia’s statements as “regrettable” and said that “greater discretion and circumspection” should have been exercised. Ultimately, however, he agreed with the Ombudsman that Mr. Almunia’s statements would not affect the validity of the final decision as the non-settling parties had been heard during the non-settlement procedure and the final decision was adopted by a different College of Commissioners after Mr. Almunia and his fellow Commissioners had left office.

The fact that the parties’ claims were dismissed because of a change in executive, rather than the absence of procedural faults, suggests that similar statements may not escape sanction in future. Growing use of professional social media outlets such as Twitter and LinkedIn also raises the question of whether statements made by Commission officials, acting in a personal capacity, about ongoing investigations will be subject to the same levels of scrutiny as official statements. A recent example is a tweet sent out by the Commission’s Chief Economist in November 2018, during the then ongoing Siemens/Alstom[6] investigation, in which he appeared to criticize the deal.[7]

[1]      Euro Interest Rate Derivatives (Case COMP/AT.39914), Final Report of the Hearing Officer, December 5, 2016.

[2]      Ibid., para. 26.

[3]      Decision of the European Ombudsman (Case 1021/2014/PD), November 11, 2015, para. 14. A full list of Mr. Almunia’s statements referred to by Crédit Agricole is available in the Draft Recommendation of the European Ombudsman (Case 1021/2014/C), March 10, 2015, para. 10.

[4]      Draft Recommendation of the European Ombudsman (Case 1021/2014/C), March 10, 2015.

[5]      Decision of the European Ombudsman (Case 1021/2014/PD), November 11, 2015, paras. 21–22.

[6]      Siemens/Alstom (Case COMP/M.8677), Commission decision of February 7, 2019.

[7]      Chief Competition Economist Tommaso Valletti retweeted an article by Economist Marc Ivaldi, with the caption: “Creating a European Champion in rail? Not a good idea according to @marcivaldi of Toulouse University. Vive la France.”