ECJ upholds annulment of €33.6 million fine imposed on HSBC
The Court of Justice of the European Union (ECJ) has upheld the annulment of the €33.6 million fine imposed on the HSBC Group. The relevant announcement was issued on January 12, 2023.
The HSBC Group is a banking group, and one of its activities is global banking and markets. HSBC France and HSBC Bank are responsible for the negotiation of Euro Interest Rate Derivatives (EIRDs). HSBC France is responsible for submitting rates to the Euro Interbank Offered Rate (Euribor) panel.
Following inspections at the premises of a number of financial institutions, including at HSBC’s premises, the European Commission initiated infringement proceedings against those financial institutions, including HSBC. By decision of 7 December 2016, the Commission found that Crédit agricole, HSBC and JPMorgan Chase had participated in a single and continuous infringement consisting of restricting or distorting competition in the EIRD sector. For that infringement, the Commission imposed a fine of €33,606,000 on HSBC.
By its judgment of 24 September 2019, the General Court of the European Union largely upheld the Commission’s finding that HSBC had participated in an infringement of competition law. However, it annulled the fine imposed on the basis that the statement of reasons was insufficient.
By the present appeal, companies from the HSBC Group seek the annulment in part of the judgment of the General Court, to the extent that the latter dismissed its action. They also ask the Court of Justice to annul the Commission’s decision on the HSBC companies’ participation in the single and continuous infringement.
In the judgment issued on January 12, 2023, the Court of Justice sets aside the General Court’s judgment in so far as it dismisses the action brought by HSBC Holdings plc. However, the judgment under appeal stands in so far as it annuls the fine imposed on the HSBC Group.
In that regard, the Court of Justice finds that the General Court’s reasoning as regards the presumption of innocence was vitiated by two errors in law. The Court of Justice also finds that the General Court applied an incorrect test when it held that it was for the HSBC companies either to show that the discussions on mids were directly related and necessary to the functioning of the EIRD market or that they met the conditions in Article 101(3) TFEU.
Such an error led it not to examine the HSBC companies’ arguments that the exchanges on mids had pro-competitive effects, whereas those exchanges had been raised by those companies in order to call into question the characterisation of those exchanges as a restriction by object.
Having deemed that the state of the proceedings in Case T-105/17 is such as to allow it to give final judgment on the pleas in that case, the Court of Justice goes on to examine the pleas put forward before the General Court as regards the Commission’s findings of an infringement by object and of a single and continuous infringement, and breach of the presumption of innocence, of the right to good administration and of the rights of the defence.
The Court of Justice dismissed the HSBC companies’ action challenging the finding that it participated in the cartel at issue.