EU General Court nixes banks’ push to prevent publication of EURIBOR cartel decision

The confidentiality of information related to banks’ misconduct has been at the heart of a legal dispute which has reached the top European Union court. On Thursday, October 25, 2018, the President of the General Court rejected the application of Crédit Agricole and JPMorgan Chase to prevent publication of the Commission decision regarding a EURIBOR cartel.

The banks claimed that the entirety of the description of the infringing conduct had to be concealed, or even that the Commission had to refrain from any publication of that decision.

By decision of December 7, 2016, not yet published, the European Commission imposed fines amounting to €485 million on Crédit Agricole, JP Morgan Chase and on another bank for their participation in a cartel relating to Euro Interest Rate Derivatives (EURIBOR). The banks colluded with respect to elements of the price of derivatives and exchanged sensitive information in violation of EU rules on anti-competitive practices.

Crédit Agricole and JPMorgan Chase challenged that decision before the General Court; the procedure is ongoing. At the same time, Crédit Agricole and JPMorgan Chase entered into discussion with the Commission concerning the publication of that decision in order to identify confidential information which should not be included in the published decision.

Crédit Agricole claimed that the Commission had to conceal the entirety of the description of its infringing conduct pending a ruling from the Courts of the EU on its action in Case T-113/17. JP Morgan Chase insisted that the Commission had to refrain from any publication of the decision pending a ruling from the Courts of the EU on its action in Case T-106/17.

On April 27, 2018, the Commission rejected, in essence, the requests for confidentiality.

Crédit Agricole and JPMorgan Chase brought actions for annulment before the General Court against those decisions and, at the same time, submitted applications for interim measures seeking suspension of the operation of those decisions and, in essence, for the Commission decision finding the cartel not to be published until the end of the proceedings for annulment of that decision.

In its orders of October 25, 2018, the President of the General Court rejects the applications for interim measures.

He noted that, with regard to interim protection for confidential information, it does not suffice to maintain that that information is of a confidential nature. It is necessary to establish whether it can be claimed, prima facie, that the information is actually of a confidential nature.

The President of the General Court also stressed that the interest which an undertaking on which the Commission has imposed a fine for a breach of competition law has in the details of the infringing conduct alleged against it not being divulged to the public does not justify any particular protection, in view of the public interest in knowing as fully as possible the reasons for any Commission action.

Moreover, a balance must be struck between the need to publish a decision finding an infringement in order to furnish victims of the infringement with evidence to obtain compensation and the need to protect professional secrecy or trade secrets.

The President of the General Court also noted that the applicants’ arguments that the principle of presumption of innocence precludes any publication of the decision finding an infringement or requires the whole of the description of the infringing conduct to be concealed, cannot, prima facie, succeed. He explained that the acts of the EU institutions enjoy a presumption of legality and produce legal effects so long as they have not been withdrawn, annulled or declared invalid.

Therefore, the President of the General Court has found that there are no grounds, prima facie, for the applications brought by the banks relating to confidential treatment and thus rejects the applications for interim measures.