Under point 37 of the 2006 Fining Guidelines (the "Fining Guidelines"), the European Commission (the "Commission") may depart from its standard fining methodology if this is justified by the particularities of a given case or if there is a need to achieve deterrence. In such circumstances, the Commission is required to provide a statement of reasons for the departure, indicating the factors which enabled it to determine the gravity of the infringement and its duration, as well as explaining the weighting and assessment of the factors taken into account. The purpose of the obligation to state reasons is to provide the person concerned by a decision with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged, as well as permitting review by EU courts.
In the Yen interest rate derivatives cartel case (T-180/15, Icap and Others), the Commission departed from its standard fining methodology for calculating the fines imposed on Icap by relying on point 37 of the Fining Guidelines. The Commission justified this departure by the fact that Icap was not active on the Japanese Yen interest rate derivatives market and that, therefore, taking account of the value of sales (i.e., ICAP's brokerage fees) would not be an appropriate proxy to reflect the gravity and nature of the infringement at issue. Icap argued before the General Court ("GC") that the Commission had not properly justified its departure from the Fining Guidelines.
In its judgment, the GC held that the Fining Guidelines lay down rules of conduct indicating the approach to be adopted by the Commission and that the Commission cannot depart from them without giving reasons that are compatible with the principle of equal treatment. The GC continued that, because point 37 of the Fining Guidelines simply makes a vague reference to the 'particularities of a given case' and thus leaves the Commission broad discretion to decide to make an exceptional adjustment of the basic amount of the fine, the Commission's respect for the rights guaranteed by the EU legal order in administrative procedures, including the obligation to state reasons, is of an even more fundamental importance. The GC added that, with respect to a decision imposing a fine, the Commission is required to provide a statement of reasons for the amount of the fine imposed and for the method chosen in that regard, by at least explaining the weighting and assessment of the factors taken into account.
In the present case, the GC determined that the Commission had not provided information on the alternative method, but had limited itself to a general assurance that the fines reflected the gravity, duration and nature of Icap's involvement in the infringements at issue as well as the need to ensure sufficient deterrence. As a result, neither Icap nor the GC could understand the justification for the methodology favoured by the Commission.
The GC further noted that exploratory and informal discussions with Icap during the administrative procedure did not relieve the Commission of its obligation to explain, in the contested decision, the methodology that it had applied for the purposes of determining the amounts of the fines imposed. Similarly, the Commission could not remedy its failure to state reasons by explaining its fining methodology later before the EU courts.
As a result, the GC ruled that the Commission's decision was insufficiently reasoned and annulled the Commission's decision in so far as it concerned the determination of the fines imposed on Icap.
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