General Court annuls fine on ICAP in Libor case

The General Court has given judgment in an appeal by ICAP in its challenge against the European Commission’s 2015 decision to fine ICAP EUR14.9 million for facilitating cartel activity in the market for interest rate derivatives denominated in yen.  The Commission had founded that ICAP facilitated six cartels that were the subject of a settlement involving UBS, RBS, Deutsche Bank, Citigroup and JPMorgan.  ICAP decided not to settle.

The General Court did not find any errors of law in the findings by the Commission that the infringements alleged against ICAP represented infringements “by object”, nor that ICAP had infringed Article 101(1) TFEU by facilitating four of the cartel infringements.

However, the General Court found that the Commission had not established to the required legal standard that ICAP was aware of RBS’s role in a bilateral cartel between RBS and UBS and the Commission had erred in the calculation of the duration of ICAP’s role in four of the cartels.  

The General Court also held that the Commission had violated ICAP’s rights of defence and the presumption of innocence and that it had not provided sufficient reasons for its methodology when setting fines.  The General Court therefore annulled the fines imposed by the Commission in the decision.

The judgment is a useful clarification of the application of the test for liability of intermediaries in the facilitation of cartels.  In particular, the Court found that the Commission did not follow the facilitation test set out by the European Court of Justice in AC-Treuhand and that ICAP had not made the collusion between banks possible but had only contributed to it. 

Case T-180/15, Icap plc, Icap Management Services Ltd and Icap New Zealand Ltd v European Commission, judgment of 10 November 2017 (ECLI:EU:T:2017:795)