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According to the applicants, Article 101 TFUE does not cover conduct by an accomplice which does not take part in an agreement which restricts/distorts competition. The test applied by the Commission was, in any event, incorrect and covers too broad a spectrum of conduct that is not sufficiently closely connected to the infringing conduct. The conduct of the applicants falls outside the test for facilitation adopted by the defendant. In particular, the applicants put forward that the finding that the applicants facilitated the exchange of information between the banks lacks any basis in fact, and that the defendant does not point out a single instance of the applicants facilitating such exchanges. According to the applicants, the same applies to the exploration of alignment trades. With respect to the manipulation of the Yen LIBPR submissions, the Commission has acknowledged that only one of two banks knew of ICAP’s involvement. As such, so the applicants claim, ICAP had no facilitating role as far as the conduct of the banks is concerned. Moreover, for those infringements, the infringing conduct started well before ICAP allegedly commenced the facilitation.

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The applicants put forward that the banks were trading parties in Yen Interest rate Derivatives and therefore had knowledge of each other’s trading positions and interests. As such, according to the applicants, the evidence put forward by the Commission in support of the argument that ICAP had knowledge of the bilateral infringement is inconsequential, vague and misleading. Furthermore, so the applicants claim, the Commission’s approach assumes knowledge and conduct on part of the applicants through to the end of the bilateral infringement of the banks without providing any evidence of the applicant’s ongoing knowledge about the bank’s infringements.

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According to the applicants, the Commission conducted a hybrid settlement procedure, in which the settlement decision adopted in December 2013 implicated ICAP by extensively describing its role as a facilitator. From that point on, the Commission could no longer pretend to have no bias in dealing with ICAP’s case.

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The applicants put forward that the Commission breached the principle of legal certainty by imposing fines that go beyond mere nominal fines. This allegedly also constitutes a departure from its decisional practice. In addition, so the applicants claim, the Commission breached its Fining Guidelines by declining to use the value of the applicant’s sales as a basis for the fine, by failing to adequately specify its method in calculating the fine and by failing to justify these departures from its previous decisional practice. In addition, it’s the applicants’ opinion that the Commission breached the principle of equal treatment by treating the applicants differently from another broker accused of facilitation in similar circumstances and within the same infringement as well as by ultimately treating the applicants like the banks who perpetrated the infringement despite the applicants being accused only of facilitation. The applicants claim that as a result of this, the fines imposed are wholly disproportionate and the Commission has thus breached the principle of proportionality.