On July 10, 2019, the Court of Justice upheld the General Court’s partial annulment of the Commission’s 2015 decision to fine ICAP c. €15 million for facilitating a cartel in the Yen Interest Rate Derivatives (“YIRD”) market between 2007 and 2010.[1] 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 TFEU was upheld. The judgment confirmed that the Commission’s decision to depart from its fining methodology as set out in the Fining Guidelines.[2] However, this does not relieve the Commission from having to sufficiently explain any deviation to ensure the companies’ rights of defense, as previously reported.[3]

On May 28, 2021, the Commission re-adopted the decision against ICAP, significantly reducing the total fine to c. €6.5 million.[4] In doing so, the Commission corrected the procedural error at issue by including a detailed reasoning behind the fine calculation methodology. While the reasoning is yet to be published, the amended decision serves as a reminder that the Commission’s discretion in setting fines is not absolute and cartel appeals may occasionally lead to material fine reductions, especially in cases where the Commission deviated from its Fining Guidelines.

Indeed, a number of other recent appeals led to material reductions in cartel fines. For instance, in the steel abrasives cartel, the Court of Justice reduced the basic amount of the fine imposed on Pometon by 83% (compared to 75% granted by the General Court) to properly account for all the circumstances of the case and to avoid attributing disproportionate importance to the company’s turnover alone.[5] In the smart card chips cartel, the General Court granted an additional 5% reduction to Infineon Technologies to reflect its reduced individual participation in the cartel.[6]

[1]      Commission v. Icap (Case C-39/18 P) EU:C:2019:584.

[2]      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”).

[3]      See, our July 2019 EU Competition Law Newsletter.

[4]      Yen Interest Rate Derivatives (Case COMP/AT.39861), Commission decision of May 28, 2021.

[5]      Pometon v. Commission (Case C-440/19 P) EU:C:2021:214.

[6]      Infineon Technologies AG v. Commission (Case T-758/14 RENV) EU:T:2020:307.