1.

The draft decision finds an infringement of Article 101 TFEU and Article 53 EEA involving four undertakings in the US dollar-denominated supra-sovereign, sovereign and agency bonds (‘SSA Bonds’) markets, namely Bank of America Merrill Lynch (‘BAML’), Crédit Agricole, Credit Suisse and Deutsche Bank (together referred to as ‘the parties’) (2).

2.

The case started following an application for immunity from fines by Deutsche Bank on 4 August 2015. The Commission granted conditional immunity to Deutsche Bank on 4 December 2015.

3.

By decision of 20 December 2018, the Commission initiated proceedings pursuant to Article 2(1) of Regulation 773/2004 (3) against Deutsche Bank, Credit Suisse, Crédit Agricole and BAML.

4.

On 20 December 2018, the Commission issued a Statement of Objections (the ‘SO’) against the parties. The SO was notified to the parties on 21 December 2018.

5.

Access to the file in the form of an electronic storage medium was granted between 21 December 2018 and 3 January 2019, and at the premises of the Directorate- General for Competition (‘DG Competition’) between 15 and 22 January 2019. Some data provided by Crédit Agricole were disclosed to the other parties via a negotiated disclosure procedure between 7 and 14 February 2019 (4). No complaints regarding access to the file were received by the Hearing Officer.

6.

DG Competition initially granted all parties a time limit of eight weeks for their replies to the SO. Following requests from some of the parties, DG Competition extended the time limit to 28 March 2019 for BAML and 29 March 2019 for Crédit Agricole and Credit Suisse. No requests for further extensions were received by the Hearing Officer.

7.

In February 2019, following requests for further explanations from BAML and Crédit Agricole, DG Competition sent letters to all parties providing some additional details regarding the Commission’s proposed fine calculation methodology, in particular as regards a proxy that the Commission would use for the value of sales.

8.

All parties provided their reply within the applicable time limits. In their replies to the SO, BAML, Crédit Agricole and Credit Suisse (the ‘contesting parties’) all commented on the need for additional information regarding the fine calculation methodology. On 3 July 2019, Crédit Agricole sent a letter to DG Competition, supplementing its reply to the SO regarding fines.

9.

All parties participated in an oral hearing that took place on 10 and 11 July 2019.

10.

In September and October 2019, BAML addressed further written submissions to the Hearing Officer, following the Icap judgment of 10 July 2019 (5), requesting the Hearing Officer to direct DG Competition to disclose its proposed penalty methodology to BAML and enable it to make its views known on that methodology in advance of any final decision in this case (6).

11.

In November 2019, the Hearing Officer responded to BAML, indicating that their request for disclosure of further information regarding the proposed fine calculation methodology was noted. However, the Hearing Officer indicated that Decision 2011/695/EU, which exhaustively sets out the competences of the Hearing Officer, does not grant it the power to take a decision ordering the disclosure of further details of the proposed methodology.

12.

In November 2020, Executive Vice-President Vestager, Commissioner for Competition, sent a letter to all parties providing further individual details on the fines methodology with particular attention to the individualised calculation and outcome of the envisaged proxy to the value of sales (7) for each party (the ‘Letter on fines’).

13.

DB replied in December 2020 and the three contesting parties did so in January 2021. The latter, among other things, argued that their rights of defence were undermined as the information communicated via the Letter on fines should have been included in the SO and they requested to be heard orally on it in an oral hearing (BAML) or an alternative format (Credit Suisse, Crédit Agricole (8)).

14.

As argued in the draft decision, the Campine judgment of the General Court (9), supports the view that, at the stage of the SO, the Commission was not required to take a final decision on the final method for determining the amount of the fines that it intended to apply and that further clarifications on the fining methodology could indeed be provided by letter rather than in the form of a supplementary statement of objections.

15.

Given that there is no fundamental right to be heard orally, as long as views can effectively be made known in writing (10), and given that Article 12 of Regulation 773/2004 only provides for the right to an oral hearing following a statement of objections, it follows that a second oral hearing was not legally required.

16.

Compared to the SO, the draft decision (i) retains a shorter duration of the infringement for two of the parties, and (ii) no longer retains for the calculation of the fine an aggravating factor relating to alleged obstruction of the investigation for one of the parties.

17.

Pursuant to Article 16 of Decision 2011/695/EU, the Hearing Officer has examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views, and has come to a positive conclusion.

18.

In view of the above, the Hearing Officer considers that the effective exercise of the procedural rights of the parties to the proceedings in this case has been respected.