On July 10, 2019, the Court of Justice upheld the General Court’s partial annulment of the Commission’s 2015 decision to fine the UK-based broker, ICAP, €14.9 million for facilitating a cartel in the Yen Interest Rate Derivatives (“YIRD”) market between 2007 and 2010, confirming that the Commission had failed to adequately explain its fine calculation. The partial annulment concerned the fine calculation (resulting in the entire fine being annulled) while the Commission’s substantive finding that ICAP infringed Article 101 was upheld. The judgment confirms that the Commission may be justified in departing from its fining methodology as set out in its Fining Guidelines. This does not relieve the Commission from having to sufficiently explain any deviation to ensure the companies’ rights of defense.
The Commission’s YIRD cartel investigation led to a “hybrid” outcome, in which five cartel members and one cartel facilitator decided to settle in December 2013, while ICAP was the only company that opted out of the settlement procedure. On February 4, 2015, the Commission issued a decision finding that ICAP facilitated the cartel, imposing a fine of €14.9 million.
On November 10, 2017, the General Court confirmed that ICAP had facilitated the cartel, but annulled the fine because the Commission had failed to adequately explain its fine calculation method. Five cartel members directly active on the YIRD market received fines based on the standard methodology for calculating fines in cartel cases, which takes into account the value of sales of the products concerned by the infringement. The Commission departed from this methodology in the case of the cartel facilitators, ICAP and R.P. Martin, who acted as brokers that were not directly active on the affected YIRD market. The Commission did not consider brokerage fees an appropriate measure for the fine calculations, because the sale of brokerage services was not affected by the infringements on the YIRD market. Consequently, using brokerage fees to calculate the fines would not reflect the gravity and nature of the infringements, nor produce a sufficiently deterrent effect.
While R.P. Martin nonetheless decided to accept the fine and settle, ICAP appealed. The General Court found that the Commission must give reasons for its departure from the standard approach. Moreover, the Commission must outline the basis for the alternative fining approach, which it failed to do. The Commission had merely given a general assurance that the basic amount of the fine reflected the gravity, duration, and nature of ICAP’s involvement, without providing any details of the specific method applied.
Court of Justice appeal
On appeal to the Court of Justice, the Commission claimed that it was not required to provide the figures used for its calculations, citing the AC-Treuhand precedent related to cartel facilitators. The Court of Justice dismissed this argument because (i) unlike the present case, AC-Treuhand only involved one facilitator and therefore, there was no risk of unequal treatment as between facilitators; and (ii) while the Commission is not required to provide precise figures, it is clear from case law that the Commission must explain the weighting and assessment of the relevant factors for determining the fine.
The Court of Justice found that it was insufficient for the Commission to explain its methodology to ICAP in “exploratory and informal discussions,” without giving ICAP a formal opportunity to comment. Nor did this “relieve the Commission of its obligation to explain, in the contested decision, the methodology.” The Commission’s belated disclosure, during the judicial procedure, of the “complex five-stage test” used to calculate ICAP’s fine did not rectify the deficiencies in the Commission’s decision. The use of a five-stage test (the details of which are not publicly available) also distinguishes the case from AC-Treuhand, where the Commission’s methodology was “a simple setting of a lump sum amount.” Accordingly, unlike in AC-Treuhand, the Commission’s reliance on a complex test to calculate the fine necessitated disclosure to safeguard ICAP’s rights of defense. The Court of Justice did not, however, explain the level of detail required to fulfil this obligation.
The procedural breach, resulted in the annulment of ICAP’s fine in its entirety. However, since the Commission’s substantive finding of infringement was upheld, it is expected that the Commission will re-open proceedings to impose a new fine, presumably providing ICAP with an opportunity to comment on the five-stage test.
 Commission v. Icap (Case C-39/18 P) EU:C:2019:584.
 See Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No. 1/2003, OJ C 210/2 (“Fining Guidelines”).
 Yen Interest Rate Derivatives (YIRD) (Case COMP/AT.39861), Commission decision of February 4, 2015.
 Icap and Others v. Commission (Case T-180/15) EU:T:2017:795.
 See Fining Guidelines, para. 12.
 Pometon SA v. Commission (Case T-433/16) EU:T:2019:201, paras. 333–364; and Printeos v. Commission (Case T-95/15) EU:T:2016:722, paras. 43– 58.
 AC-Treuhand v. Commission (Case C-194/14 P) EU:C:2015:717; and Quimitécnica.com and de Mello v. Commission (Case C-415/14 P) EU:C:2016:58. The Court of Justice found that the Commission “fulfils its obligation to state reasons when it indicates the factors, which enabled it to determine the gravity of the infringement and its duration and it is not required to indicate the figures relating to the method of calculating the fines,” see AC-Treuhand, para. 68.
 Chalkor v. Commission (Case C-386/10 P) EU:C:2011:815, para. 61.
 Commission v. Icap (Case C-39/18 P) EU:C:2019:584, para. 40.
 Commission v. Icap (Case C-39/18 P), opinion of Advocate General Tanchev, EU:C:2019:359, para. 1.