Judgment of the General Court (Third Chamber) of 9 September 2015 —
Philips v Commission
(Case T‑92/13)
Competition — Agreements, decisions and concerted practices — Global market for cathode ray tubes for television sets and computer monitors — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Agreements and concerted practices on pricing, market sharing, capacity and production — Single and continuous infringement — Imputability to a parent company of an infringement committed by a joint venture — Equal treatment — Method of calculating the fine — Taking into account the value of sales of cathode ray tubes through transformed products — Taking into account the average value of sales recorded during the infringement — Taking into account the overall turnover of the group — Proportionality — Duration of the administrative procedure
1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Imputation of the anti-competitive conduct of a joint undertaking to one of its parent companies — Conditions — Decisive influence exercised on the conduct of the joint undertaking — Burden of proof — Exercise of a decisive influence capable of being inferred from a series of indications concerning economic, organisational and legal links between the joint undertaking and the parent companies (Art. 101 TFEU; Council Regulation No 1/2003, Art. 2) (see paras 34-43, 56, 57, 67, 69, 75, 79, 80, 85)
2. Competition — Administrative procedure — Observance of the rights of the defence — Scope of the principle — Infringement — Conditions — Possibility of the undertaking concerned better ensuring its defence without the procedural irregularity — General duty of care incumbent on any undertaking — Obligation to ensure conservation of the necessary evidence in the event of legal or administrative actions (Art. 101 TFEU; Council Regulation No 1/2003, Art. 27(1)) (see paras 91-93, 97)
3. Competition — Administrative procedure — Principle of sound administration — Obligation of diligence and impartiality (Art. 101 TFEU) (see paras 94, 95, 236, 237)
4. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Decision relating to several addresses — Need for an adequate statement of reasons in particular with respect to the entity which must bear the liability for an infringement (Arts 101 TFEU and 296 TFEU) (see paras 102-104)
5. Competition — Fines — Assessment by reference to the individual conduct of the undertaking — Irrelevant that no sanction brought against another economic operator — Compliance with the principle of equal treatment having to be reconciled with the principle of legality (Art. 101(1) TFEU) (see paras 110-112, 231-233)
6. Competition — Administrative procedure — Limitation period for fines — Point from which time starts to run — Single and continuous infringement (Art. 101 TFEU; Council Regulation No 1/2003, Art. 25) (see paras 125-129)
7. Competition — Administrative procedure — Bringing infringements to an end — Commission’s powers — Injunctions to undertakings (Art. 101 TFEU; Council Regulation No 1/2003, Art. 7(1)) (see paras 132, 133)
8. EU law — Principles — Protection of legitimate expectations — Legal certainty — Procedures in competition matters — Applicability — Scope — Modification of an existing situation falling within the Commission’s discretion — No infringement of those principles (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 135, 139)
9. EU law — Principles — Non-retroactivity of penal provisions — Scope — Fines imposed for breach of the competition rules — Included — Scope — Modification of the provisions applied being reasonably foreseeable at the time the infringements concerned were committed — No infringement of the principle of non-retroactivity (Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 49) (see paras 136-138)
10. Competition — Union rules — Territorial scope — Cartel between undertakings established outside the EEA but implemented and producing its effects in the internal market — Sale in the EU of the cartelised product — 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 paras 149-152)
11. Competition — Union rules — Territorial scope — Implementation of the cartel within the EU — Vertically integrated undertaking having production units situated outside the EEA — Incorporation of cartelised products in products finished by the said production units — Sale of the said products in the EEA by the integrated undertaking — Inclusion (Art. 101 TFEU; EEA Agreement, Art. 53) (see para. 153)
12. Competition — Fines — Amount — Determination — Determination of the base amount — Determination of the value of sales — Sales carried out in direct or indirect relation to the infringement — Incorporation of cartelised products in finished products by production units integrated vertically in the incriminated undertaking — Sale of finished products in the European Economic Area by the incriminated undertaking — Account taken of the sales value of finished products only up to the fraction of that value corresponding to the value of cartelised products — Lawfulness (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13) (see paras 156, 167-178)
13. Competition — Fines — Amount — Determination — Determination of the base amount — Determination of the value of sales — Method of calculation laid down by the guidelines — Obligation on the Commission to apply the Guidelines in compliance with the equal treatment principle — Commission having wide discretion as to the method of calculating fines (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02) (see paras 182-186)
14. Competition — Fines — Amount — Determination — Determination of the base amount — Determination of the value of sales — Reference year — Last complete year of the infringement — Exceptional character thereof — Account taken of the average annual sales value during the whole duration of the infringement — Lawfulness (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 13) (see paras 190-198)
15. Competition — Fines — Amount — Determination — Adjustment of the base amount — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies forming an economic entity acting as an undertaking (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 214-221)
16. 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 (Art. 101 TFEU; Council Regulation No 1/2003, Art. 27(2); Commission Regulation No 773/2004, Art. 15) (see paras 240-250)
17. Competition — Administrative procedure — Obligations of the Commission — Duty to act within a reasonable time — Criteria for assessment — Infringement — None (Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Arts 41 and 47) (see paras 256-263, 268)
18. Competition — Fines — Amount — Determination — Commission’s margin of discretion — Limits — Observance of the principle of proportionality — Scope — Determination of the fine proportionately to the assessment factors for the gravity of the infringement (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 271, 272)
Re:
| APPLICATION for annulment in part of Commission Decision C(2012) 8839 final of 5 December 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.437 — TV and Computer Monitor Tubes) and, in the alternative, annulment or reduction of the fines imposed on the applicant. |
Operative part
The Court:
2. | | Orders Koninklijke Philips Electronics NV to pay the costs. |