On 6 April 2016, the European Commission announced that it had reduced the fine imposed on Société Générale for its participation in the Euro interest rate derivatives cartel from EUR 445.9 million to EUR 227.7 million. The fine, which was imposed by the Commission in 2013 using the cartel settlement procedure, was modified to reflect the corrected value of sales provided by Société Générale in February 2016.
In December 2013, the Commission imposed fines of EUR 1.71 billion on eight international banks for manipulation of interest rate derivatives denominated in Euros (EURIBOR) and Japanese Yen (JPY LIBOR). Société Générale received a fine of EUR 445.9 million for its involvement in the cartel related to EURIBOR. The Commission concluded the case under the EU settlement procedure.
Undertakings can benefit from a 10% fine reduction and a less time-consuming procedure if they agree to settle with the Commission. Although settlement decisions can be appealed to the EU courts, the Commission expected this to be unlikely when introducing the settlement procedure. This is mainly because, after settlement discussions, parties must acknowledge their liability for the infringement as well as its main facts and legal assessment. Furthermore, a settlement submission must, among other things, contain an indication of the maximum amount of the fine the undertaking would accept and the party's confirmation that it has had sufficient opportunity to make its views known and it does not envisage requesting further access to the Commission's file.
When Société Générale appealed the EURIBOR settlement decision in 2014, it was the first settling party to appeal a decision to the General Court. Société Générale based its appeal on the grounds that the Commission had miscalculated the value of sales, which is the basis for the calculation of the fine. According to Société Générale, the sales values adopted by the Commission in the contested decision did not accurately reflect the position of the banks on the market during the infringement period. In February 2016, Société Générale provided the Commission with revised data to be used for a re-calculation of the fine.
When the Commission announced that it would reduce the fine on the basis of the corrected figures, Société Générale withdrew its appeal against the settlement decision. By using the same methodology used in its 2013 decision, the Commission reduced the fine on Société Générale by almost half of the original amount to EUR 227.7 million.
The case shows that providing accurate turnover data during an investigation is essential to ensure a correct level of the fine. In settlement procedures in particular, where parties are guided through the evidence and do not have access to all the documents supporting the case, there is a lack of insight into the methodology used for calculating the fines imposed on all of the parties concerned. This makes it even more important to ensure the turnover figures submitted are accurate and errors do not need to be corrected during lengthy appeal proceedings.
This article was published in the Competition Law Newsletter of May 2016. Other articles in this newsletter:
1. Commission publishes commitments offered by Paramount Pictures in pay-TV investigation
2. ACM clarifies that a party cannot object to the fine imposed on another addressee of the decision