(Case T‑342/18)
(publication in extract form)
Nichicon Corporation
v
European Commission
Judgment of the General Court (Ninth Chamber, Extended Composition), 29 September 2021
(Competition – Agreements, decisions and concerted practices – Market for aluminium electrolytic capacitors and tantalum electrolytic capacitors – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Price coordination throughout the EEA – Concerted practice – Exchanges of sensitive business information – Territorial jurisdiction of the Commission – Restriction of competition by object – Statement of objections – Point 13 of the 2006 Guidelines on the method of setting fines – Value of sales – Obligation to state reasons – Proportionality – Equal treatment – Single and continuous infringement – Gravity of the infringement – Public distancing – Mitigating circumstances – Unlimited jurisdiction)
1. Agreements, decisions and concerted practices – Complex infringement comprising elements both of an agreement and of a concerted practice – Classified singly as ‘an agreement and/or concerted practice’ – Whether permissible
(Art. 101(1) TFEU)
(see paragraphs 54-56)
2. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence – Indication of the main factual and legal elements likely to entail a fine – Sufficient indication in relation to the right to be heard – Obligation to provide customer names by means of a supplementary statement of objections – None
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 27(1))
(see paragraphs 64-69)
3. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Means of proof – Reliance on a body of evidence – Degree of evidential value necessary as regards items of evidence viewed in isolation – Permissibility of an overall assessment of a body of evidence – Compliance with the principle of the presumption of innocence
(Art. 101(1) TFEU)
(see paragraphs 81-85)
4. Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements of other undertakings which participated in the infringement – Whether permissible – Probative value of voluntary statements by the main participants in a cartel with a view to benefiting from application of the leniency notice
(Art. 101 TFEU; Commission Notice 2006/C 298/11)
(see paragraphs 92-94)
5. Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Reliance on a single item of evidence – Whether permissible – Conditions – Application to statements submitted in connection with the leniency notice by other undertakings which participated in the infringement
(Art. 101 TFEU)
(see paragraphs 97-104)
6. Agreements, decisions and concerted practices – Concerted practice – Concept – Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market – Exchange of information between competitors – Anticompetitive object or effect – Presumption – Conditions
(Art. 101 TFEU)
(see paragraphs 105-109)
7. Agreements, decisions and concerted practices – Concerted practice – Concept – Need for a causal link between the concerted action and the conduct of the undertakings on the market – Presumption that the causal link exists
(Art. 101(1) TFEU)
(see paragraphs 110, 111)
8. Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of sworn statements and witness statements made during hearings – Probative value
(Art. 101 TFEU)
(see paragraph 198)
9. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Refusal to communicate a document – Consequences – Need to draw a distinction, in relation to the burden of proof borne by the undertaking concerned, between incriminating and exculpatory documents
(Council Regulation No 1/2003, Art. 27(2))
(see paragraphs 238-240)
10. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Evidence adduced by the Commission – Participation in meetings having an anticompetitive object – Evidentiary duties of undertakings denying the unlawfulness of some of those meetings
(Art. 101 TFEU)
(see paragraph 297)
11. Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Attribution of liability for the entire infringement to a single undertaking – Conditions – Unlawful practices and conduct forming part of an overall plan – Assessment – Criteria – Contribution to the single objective of the infringement
(Art. 101(1) TFEU)
(see paragraphs 307-310, 347-349)
12. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof – Single and continuous infringement – Lack of evidence relating to certain specific periods of the overall period considered – Irrelevant
(Art. 101(1) TFEU)
(see paragraphs 363-365)
13. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof – Evidence of the cessation of the infringement – Undertaking concerned not distancing itself from the decisions adopted – Public distancing – Criteria for assessment
(Art. 101(1) TFEU)
(see paragraphs 382, 383, 397-399)
14. Competition – EU rules – Territorial scope – Agreement, decision or concerted practice between undertakings established outside the European Economic Area, but implemented and producing its effects in the internal market – Sale within the European Union of the product that is the subject of the cartel – Competence of the Commission to apply EU competition rules – Conformity with public international law – Intervention of subsidiaries, agents or branches established outside the Union – Irrelevant
(Art. 101 TFEU; EEA Agreement, Art. 53)
(see paragraphs 434-437)
15. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Calculation method set out in the guidelines – Obligation for the Commission to apply the guidelines in accordance with the principle of equal treatment
(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)
(see paragraphs 452-455, 479)
16. Competition – Fines – Amount – Determination – Determination of the basic amount – Gravity of the infringement – Criteria for assessment – Commission’s margin of discretion – Limits – Compliance with the principle of proportionality and the principle that penalties must fit the offender
(Art. 101 TFEU; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 13 and 19 to 23)
(see paragraph 456)
17. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Overall turnover of the undertaking concerned – Turnover corresponding to the goods covered by the infringement – To be taken into consideration – Limits – Determination of the value of sales directly or indirectly related to the infringement
(Arts 101 and 102 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 13)
(see paragraphs 458-460, 467, 479)
18. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Reference year – Last full year of the infringement
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 13)
(see paragraph 479)
19. Competition – Fines – Amount – Determination – Whether the Commission is obliged to abide by its previous decision-making practice – No such obligation
(Arts 101 and 102 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13)
(see paragraph 505)
20. Competition – Fines – Penalties imposed by the EU institutions and penalties imposed in a non-member State for infringement of national competition law – Breach of the principle ne bis in idem – None
(Council Regulation No 1/2003, Art. 23)
(see paragraphs 511-515)
21. Competition – Fines – Amount – Determination – Adjustment of the basic amount – Mitigating circumstances – Commission’s discretion to make a global assessment
(Council Regulation No 1/2003; Commission Notice 2006/C 210/02)
(see paragraphs 527, 528)
22. Competition – Fines – Amount – Determination – Adjustment of the basic amount – Mitigating circumstances – Conduct deviating from that agreed within the cartel – Assessment
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29)
(see paragraphs 560, 561)
23. Competition – Fines – Amount – Determination – Discretion of the Commission – Judicial review – Unlimited jurisdiction of the EU judicature – Scope – Subject to the Guidelines on the method of setting fines – Precluded – Obligation to comply with the principle of equal treatment
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02)
(see paragraphs 573-578)
Résumé
Nichicon Corporation (‘Nichicon’) is a company established in Japan which manufactures and sells aluminium electrolytic capacitors and tantalum electrolytic capacitors.
By decision of 21 March 2018 (1) (‘the contested decision’), the Commission found that Nichicon had participated, together with eight other undertakings or groups of undertakings, in an infringement of Article 101 TFEU, consisting of agreements and/or concerted practices that had as their object the coordination of pricing behaviour in relation to the supply of aluminium electrolytic capacitors and tantalum electrolytic capacitors. After stating that the infringement, covering the whole European Economic Area (‘EEA’), had taken place between 26 June 1998 and 23 April 2012, the Commission held Nichicon liable for its participation in the cartel from 26 June 1998 to 31 May 2010 and imposed on it a fine of EUR 72 901 000.
In order to calculate the amount of that fine, the Commission used the methodology set out in the Guidelines on the method of setting fines (2) (‘the 2006 Guidelines’).
In the first place, the Commission determined the basic amount by reference to the value of sales of aluminium electrolytic capacitors and tantalum electrolytic capacitors invoiced by Nichicon to customers established in the EEA during the last full business year of its participation in the infringement and by applying multipliers on the basis of the duration of its participation in the infringement. Considering that horizontal price coordination arrangements are, by their very nature, among the most serious infringements of Article 101 TFEU, and recalling that the cartel covered the whole EEA, the Commission then set the proportion of the value of sales to be taken into account in order to reflect the gravity of the infringement at 16%. In order to ensure that the fine imposed would have a sufficiently deterrent effect, the Commission also applied an additional amount of 16%.
In the second place, as regards the adjustment of the basic amount of the fine, the Commission granted a reduction of 3%, given that Nichicon’s participation in certain meetings had not been established.
Nichicon brought an action for annulment of the contested decision, which has, however, been dismissed by the Ninth Chamber (Extended Composition) of the General Court.
Findings of the Court
In the first place, the Court rejects Nichicon’s argument that, given the heterogeneous nature of capacitors and the specific nature of demand on the various geographic markets, the infringement, apart from the fact that it was not established by the Commission, could not cover all sales of electrolytic capacitors to the EEA.
The Court recalls, as a preliminary point, that, in order to determine the products covered by a cartel, the Commission is not required to define the relevant market on the basis of economic criteria. Indeed, it is the members of the cartel themselves who determine the products which are the subject of their discussions and concerted practices. Moreover, the products covered by a cartel are determined by reference to the documentary evidence of actual anticompetitive conduct in respect of specific products.
In the light of those observations, the Court finds that the Commission was right to take the view that the single and continuous infringement covered all aluminium electrolytic capacitors and tantalum electrolytic capacitors sold in the EEA. The Commission had, in fact, substantiated that conclusion by providing evidence that all the anticompetitive exchanges between the cartel participants covered those two products, that the discussions held at several meetings were of a general nature and were not limited to certain subtypes of aluminium electrolytic capacitor or tantalum electrolytic capacitor, that the cartel participants had not introduced any limitation in their corporate statements as to the definition of the capacitors covered by the cartel, and that the majority of the representatives of the cartel participants were responsible for the manufacture of those two products, and not a specific product line.
In the second place, the Court rejects Nichicon’s complaint that the Commission infringed the principle of proportionality by taking as a benchmark for the calculation of the basic amount the total value of sales of aluminium electrolytic capacitors and tantalum electrolytic capacitors invoiced in the EEA during the last business year of its participation in the cartel, instead of the – smaller – value of sales consigned to the EEA.
In that regard, the Court notes that point 13 of the 2006 Guidelines, according to which the Commission will take the value of the undertaking’s sales of goods or services in determining the basic amount of the fine, does not preclude the Commission from using the sales invoiced in the EEA for the purpose of calculating that value. That approach is, moreover, such as to give a proper indication of the scale of the infringement on the relevant market and its economic significance for the activities of the participants in the cartel in question. Furthermore, Nichicon had not provided any evidence to support its argument that the taking into account of those sales did not reflect the impact of the infringement on competition in the EEA.
In the third place, the Court rejects Nichicon’s complaint that, by adding an additional amount to the basic amount for the purposes of deterrence, the Commission had infringed the principle ne bis in idem and the principle of proportionality in so far as Nichicon had already been given fines in non-member countries.
The Court recalls that the application of the principle ne bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. In view of the fact that penalties imposed by the Commission and those imposed by the authorities of non-member States clearly do not pursue the same objectives, the condition of unity of the legal interest protected is lacking in the present case; whereas the former are intended to preserve undistorted competition in the EEA, the latter seek to protect the market of the non-member country.
As regards the alleged infringement of the principle of proportionality, the Court observes that the objective of deterrence which the Commission is entitled to pursue when setting the amount of a fine is to ensure compliance with the competition rules laid down by the Treaty within the internal market. Consequently, the Commission is not required to take into account any penalties imposed for infringement of the competition rules of non-member States.
In the fourth place, the Court rejects Nichicon’s complaint that the 3% reduction in the basic amount on account of its non-participation in certain meetings is not consistent with the principles of proportionality and equal treatment. As regards, first, compliance with the principle of proportionality, the Court observes that, notwithstanding the fact that Nichicon had not participated in certain meetings, it was not justified in claiming that its participation in the cartel revealed a lesser degree of harm which would have justified a greater reduction in the amount of the fine. As regards, second, compliance with the principle of equal treatment, the Court notes that all the undertakings which had not participated in certain meetings throughout the infringement period, and which were therefore in a situation comparable to that of Nichicon, had obtained the same reduction in the amount of the fine.