C‑39/18P, Commission v. Icap Management Services: The Rights of Defense in a Dissuasive Fining System

August 2019

CPI EU News Column edited by Thibault Schrepel, Sam Sadden & Jan Roth (CPI) presents:

C‑39/18P, Commission v. Icap Management Services: The Rights of Defense in a Dissuasive Fining System By Godefroy de Moncuit (Business Law and New Technologies Center)¹

Summary

On July 10, 2019, the European Court of Justice (“CJEU”) dismissed the Commission’s appeal and confirmed the General Court’s approach as to the insufficient reasoning for calculating the fine imposed on the facilitator of the cartel on the Japanese Yen interest rate derivatives market.² Many other issues have been raised in this case, as the “by object” nature of the infringement, the liability weighing on cartel facilitators, the duration of the infringement, and the breach of the presumption of Icap’s innocence. This article focuses on the impact of the Commission’s lack of transparency in calculating the amount of the fine.

Facts of the Case

In the Yen Interest Rate Derivatives (“YIRD”) sector, the Commission uncovered seven distinct bilateral infringements which lasted between one and ten months in the period between 2007 and 2010. The anticompetitive conduct concerned discussions among traders of the participating banks on certain Japanese Yen (“JPY”) LIBOR submissions. The implicated traders also exchanged commercially sensitive information related either to trading positions or to future JPY LIBOR submissions.

The Commission’s investigation uncovered that Icap f