JUDGMENT OF THE GENERAL COURT (Third Chamber)
9 September 2015 (*)
(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 — Limitation period — Proportionality — Duration of the administrative procedure)
In Case T‑91/13,
LG Electronics, Inc., established in Seoul (Republic of Korea), represented by G. van Gerven and T. Franchoo, lawyers,
applicant,
v
European Commission, represented initially by C. Hödlmayr, M. Kellerbauer and P. Van Nuffel, and subsequently by M. Kellerbauer, P. Van Nuffel and A. Biolan, acting as Agents,
defendant,
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 for a reduction of the fines imposed on the applicant,
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas (Rapporteur), President, N.J. Forwood and E. Bieliūnas, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written part of the procedure and further to the hearing on 12 November 2014,
gives the following
Judgment
Background to the dispute
The applicant and the products concerned
1 The applicant, LG Electronics, Inc., is a supplier of consumer electronics products, mobile communications equipment and electrical household appliances. Until 1 July 2001 the applicant and its wholly owned subsidiary, LG Electronics Wales Ltd (United Kingdom) (‘LGE Wales’), manufactured and sold cathode ray tubes (‘CRTs’).
2 A CRT is an evacuated glass envelope containing an electron gun and a fluorescent screen, usually with internal or external means to accelerate and deflect the electrons. When electrons from the electron gun strike the fluorescent screen, light is emitted, creating an image on the screen. At the material time, there were two types of CRT, namely colour display tubes for computer monitors (‘CDTs’) and colour picture tubes for television sets (‘CPTs’). CDTs and CPTs are individual components which are combined with a chassis and other essential components to produce a television or a computer monitor. They come in a number of different sizes (small, medium, large and jumbo), expressed in inches.
3 By an agreement concluded on 11 June 2001, and effective from 1 July 2001 (‘the joint venture agreement’), the applicant and Koninklijke Philips Electronics NV (‘Philips’) merged their worldwide CRT activities in a joint venture, the LPD group, headed by LG Philips Displays Holding BV (‘LPD Holding’). The applicant transferred its entire CRT business to the joint venture. However, it continued to manufacture television sets and computer monitors containing CRTs. In order to do so, it obtained supplies of CRTs from third parties and also from the LPD group.
4 On 1 July 2001 the shares in the LPD group were held by Philips and its wholly owned German subsidiary Philips GmbH, namely a total of 50% of the shares plus one share for the Philips group, and also by the applicant and its wholly owned subsidiary LGE Wales, namely a total of 50% of shares minus one share for those two entities. From the second quarter of 2004, 50% of the shares plus one share were owned by Philips and 50% minus one share by LGE Wales.
5 On 30 January 2006, LPD Holding was declared bankrupt.
Administrative procedure
6 On 9 March 2007, Chunghwa Picture Tubes Co. Ltd, which manufactured and sold CRTs, applied to the Commission of the European Communities for a marker, within the meaning of point 15 of the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the Leniency Notice’). Then, on 23 March 2007, it lodged an oral request for immunity from fines under the Leniency Notice.
7 On 23 November 2009 the Commission adopted a statement of objections addressed to the applicant, as well as to Chunghwa Picture Tubes Co., Chunghwa Picture Tubes (Malaysia) Sdn. Bhd and CPTF Optronics Co. Ltd (together ‘Chunghwa’), Samsung SDI Co. Ltd, Samsung SDI Germany GmbH, Samsung SDI (Malaysia) Bhd, Philips, PT LG Electronics Indonesia Ltd, LG Electronics European Holding BV, Thomson SA, Panasonic Corp., Toshiba Corp., [confidential], (1) [confidential] and MT Picture Display Co. Ltd.
8 On 1 June 2012 the Commission adopted two additional statements of objections in order to supplement, amend and clarify the objections addressed to Philips and the applicant concerning their respective liability for the CDT and CPT infringements, both before and after the creation of the LPD group.
Contested decision
9 By 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) (‘the contested decision’), the Commission found that the main global producers of CRTs had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) (‘the EEA Agreement’) by participating in two separate infringements, each constituting a single and continuous infringement. Those infringements related, first to the CDT market (‘the CDT cartel’) and, secondly, to the CPT market (‘the CPT cartel’), and took the form of agreements and concerted practices between CRT producers in order to fix prices, to share markets and customers by allocating sales volumes, customers and market shares, to restrict production, to exchange sensitive commercial information and to monitor the implementation of collusive agreements.
10 As regards, first, the CPT cartel, the Commission found that the participants had agreed on target prices or bottom prices for various CPT sizes, that they had made efforts to maintain a price gap between identical products marketed in Europe and in Asia and that they had closely monitored the pricing arrangements. The participants also entered into agreements defining which producer would communicate a price increase to which customer. Moreover, the CPT producers agreed on their respective market shares and agreed on coordinated output restrictions with a view to reducing supply and increasing or maintaining prices. In addition, they exchanged commercially sensitive information concerning planned production and capacity, sales made and planned, arrangements relating to future demand, pricing and price strategy, general sales conditions, customers and also negotiations on price and volumes with customers.
11 In recitals 123 and 124 to the contested decision, the Commission stated that, after an initial period during which CPTs had been discussed in the same meetings as those relating to CDTs, in the autumn of 1998 regular multilateral meetings called ‘CPT glass meetings’ began to be held in Asia (‘the Asian glass meetings’) between the Asian undertakings Chunghwa, Samsung, the applicant, [confidential] and [confidential], on a monthly or quarterly basis, while in addition frequent bilateral contacts and information exchanges took place between producers worldwide. Then, from 1999, the Asian undertakings made efforts to enlarge the circle of members of the CPT cartel in order to include all the main Asian producers and also the European producers. They were thus joined by [confidential], Matsushita Electric Industrial Co. Ltd (‘MEI’), Philips, Thomson and Toshiba. The participation of the European undertakings, Philips and Thomson, was proved from the time when the Commission launched, in the spring of 1999, an anti-dumping procedure concerning the import of 14-inch CPTs from Asia. From that date, evidence also shows that multilateral meetings were held in Europe (‘the European glass meetings’). Furthermore, in 2002-2003, the Asian glass meetings changed form and were then organised on two platforms for CPT producers based in Asia and consisting, first, of meetings between Samsung, Matsushita Toshiba Picture Display Co. Ltd (a joint venture formed by Panasonic and Toshiba, ‘MTPD’) and the LPD group, called ‘SML meetings’, which concerned medium-sized and large CPTs, and, secondly, south-east Asian meetings between Samsung, the LPD group, MTPD, Chunghwa and [confidential], called ‘ASEAN meetings’, concerning small and medium-sized CPTs.
12 The Commission observed that, although the European CPT-related glass meetings were organised and held separately from the Asian glass meetings, the subsidiaries of the same undertakings and occasionally the same individuals had taken part in those meetings with competitors both in Europe and in Asia. Thus, the Commission considered that the European and Asian meetings were interconnected, since the same topics were discussed and the same type of information exchanged, in spite of the fact that the documents relating to the meetings did not describe any joint central organisation. In that regard, the Commission stated that the European glass meetings were an extension of the Asian glass meetings and that they focused more particularly on market conditions and prices in Europe, whereas the contacts established in the context of the cartel in Asia were of a global nature and therefore also concerned Europe. Furthermore, the agreements relating to the European market were concluded in meetings that took place both in Europe and in Asia and the prices applied were regularly followed, the Asian prices being used as a proxy when the European price level was discussed.
13 As regards, secondly, the CDT cartel, the Commission considered that the parties had agreed on target prices, on the reasons to be given to customers to explain price increases and, in addition, on which producer would communicate such an increase to which customer. Evidence dating from the material time also suggests that increases in CDT prices were sometimes passed on to the downstream market of production of computer monitor tubes. The CDT producers participating in the cartel also entered into agreements relating to market shares. In that context, they agreed that a particular producer would sell its products to a particular customer. In addition, CDT producers agreed on coordinated output restrictions, with a view to reducing oversupply and achieving target prices and the desired market shares. In addition, the participants in the CDT meetings set up a process to monitor compliance with the agreed output restrictions. Furthermore, exchanges of detailed information on past and future pricing, capacity, output and demand formed a large part of the illicit contacts between CDT producers. Those exchanges of information served both to monitor past agreements and to jointly plan future prices, output, market shares and customer allocation.
14 The Commission considered that the multilateral meetings, which were shown to have taken place from 1997 and which became regular and more formalised from 1998, were the cornerstone of the CDT cartel. The meetings were called ‘five compan[ies]’ meetings, since Chunghwa, Samsung, the applicant, Philips and [confidential] regularly took part in them, or ‘CDT glass meetings’. The Commission considered that, from 1998, a three-tier construction had been put in place, consisting of top meetings (also called ‘green meetings’, usually held quarterly, between individuals from the highest levels of the undertakings), management level meetings (monthly meetings conducted by senior sales executives) and working level meetings (in which local sales managers and regional sales managers participated). The CDT producers also maintained frequent bilateral contacts. The Commission noted that, following the transfer of the applicant’s and Philips’ CRT business to the LPD group on 1 July 2001, the core of the cartel at issue had reformed around Chunghwa, Samsung, the LPD group and [confidential] and that, from 2003, the number of core members stabilised at three participants, namely Chunghwa, Samsung and the LPD group. In that respect, contacts with Japanese competitors, in particular MEI, Toshiba and [confidential], were a specific feature of the CDT cartel.
15 As regards, thirdly, the applicant’s involvement in the cartels in question, the Commission considered that the applicant and its subsidiaries had participated in the CDT and CPT cartels until the CRT business was transferred to the LPD group, on 1 July 2001. Consequently, the applicant was held liable, as a direct participant and as a parent company, for the infringements committed between 24 October 1996 and 30 June 2001, as regards CDTs, and between 3 December 1997 and 30 June 2001, as regards CPTs. Furthermore, the Commission considered that the applicant and Philips should, as parent companies, be held jointly and severally liable for the LPD group’s participation in the CDT and CPT cartels between 1 July 2001 and 30 January 2006.
16 Articles 1 to 3 of the operative part of the contested decision read as follows:
‘Article 1
1. The [undertakings at issue] infringed Article 101 [TFEU] and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous complex of agreements and concerted practices in the [CDT sector]:
…
(d) LG Electronics … from 24 October 1996 until 30 January 2006.
2. The [undertakings at issue] infringed Article 101 [TFEU] and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous complex of agreements and concerted practices in the [CPT sector]:
…
(g) LG Electronics …, from 3 December 1997 until 30 January 2006.
…
Article 2
1. For the infringement referred to in Article 1(1), the following fines are imposed:
…
(d) LG Electronics …: EUR 116 536 000;
(e) … Philips … and LG Electronics …, jointly and severally liable: EUR 69 048 000;
2. For the infringement referred to in Article 1(2), the following fines are imposed:
…
(d) LG Electronics …: EUR 179 061 000;
(e) … Philips … and LG Electronics …, jointly and severally liable: EUR 322 892 000;
…
Article 3
The undertakings listed in Article 1 shall immediately bring to an end the infringements referred to in that Article in so far as they have not already done so.
They shall refrain from repeating any act or conduct described in Article 1, and from any act or conduct having the same or similar object or effect.’
Procedure and forms of order sought
17 By application lodged at the Court Registry on 14 February 2013, the applicant brought the present action.
18 The composition of the Chambers of the Court was altered and the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was therefore assigned.
19 Upon hearing the Report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral part of the procedure and, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, requested the applicant to produce a document. The applicant complied with that request within the prescribed period.
20 The parties presented oral argument and answered the questions put by the Court at the hearing on 12 November 2014. At the hearing, the parties were asked to submit any observations on the judgment of the Court of Justice in Case C‑580/12 P Guardian Industries and Guardian Europe v Commission [2014] ECR, within 10 days of the date of delivery of that judgment. That period was extended to 28 November 2014 for the Commission, at its request.
21 By letters lodged at the Court Registry on 24 and 28 November 2014 respectively, the applicant and the Commission complied with that request.
22 The oral part of the procedure was closed on 5 December 2014.
23 By order of 26 May 2015, the Court decided to reopen the oral part of the procedure pursuant to Article 62 of the Rules of Procedure of 2 May 1991.
24 In the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court asked the parties to submit any observations on the Opinion of Advocate General Wathelet in Case C‑231/14 P InnoLux v Commission [2015] ECR. The parties complied with that request within the prescribed period. The parties subsequently submitted their observations on the responses provided in the context of that measure of organisation of procedure and, in particular, on the calculation and the amount of the fines.
25 The oral part of the procedure was closed on 10 July 2015.
26 The applicant claims that the Court should:
– annul, in whole or in part, Article 1(1)(d) and (2)(g) and Article 2(1)(d) and (e) and (2)(d) and (e) of the contested decision;
– reduce the fine imposed by Article 2(1)(d) and (e) and (2)(d) and (e) of the contested decision;
– order the Commission to pay the costs.
27 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
28 It is appropriate to examine, first of all, the claims whereby the applicant seeks annulment of the contested decision in so far as it relates to the applicant and, subsequently, the claims whereby it requests the Court to exercise its unlimited jurisdiction and vary, by annulling or reducing, the fines imposed on the applicant by the Commission.
The claims seeking partial annulment of the contested decision
29 In support of these claims, the applicant puts forward the following seven pleas in law:
– breach of the rights of the defence, in that the LPD group was excluded from the proceedings;
– manifest error of assessment, infringement of Article 101 TFEU and Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), and breach of the principle of personal liability, in that it was held liable for infringements committed by the LPD group;
– infringement of Article 25 of Regulation No 1/2003, in that the contested decision held the applicant liable for offending conduct before 1 July 2001;
– infringement of Articles 101 TFEU and 296 TFEU and Article 23(2) of Regulation No 1/2003 and breach of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines’) and the principle of equal treatment, in that the contested decision included CRTs incorporated within the same group in a finished product, a television or a computer monitor, and then sold to customers in the EEA by one of the addressees of the contested decision (‘direct EEA sales through transformed products’) in the calculation of the fine (i) without providing sufficient reasons for that inclusion or proof of the pass-on of CRT price increases to the prices of televisions and computer monitors and (ii) exceeding the Commission’s jurisdiction and discriminating between integrated and non-integrated undertakings;
– infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, breach of the principle of personal liability and of the rights of the defence, and a manifest error of assessment, in so far as the contested decision took into account, in the calculation of the fine, direct sales by Philips in the EEA through transformed products;
– infringement of Article 296 TFEU, manifest error of assessment and breach of the principles of equal treatment and sound administration, in so far as the contested decision did not include direct EEA sales through transformed products in the calculation of the fine imposed on Samsung SDI Co. Ltd, without stating sufficient reasons;
– infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003 and breach of the principles of equal treatment and sound administration, in so far as the contested decision was not addressed to all the participants in the infringements.
30 The Court considers it appropriate to deal first with the second plea in law, then the first, seventh, third, fourth and fifth pleas, and lastly the sixth plea.
The second plea in law, alleging manifest error of assessment, infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, and breach of the principle of personal liability, in that the applicant was held liable for infringements committed by the LPD group
31 That plea in law is composed of two parts, alleging, first, infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, in that the applicant did not exercise decisive influence over the conduct of the LPD group, and, secondly, breach of the principle of personal liability.
– The first part, alleging infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, in that the applicant did not exercise decisive influence over the conduct of the LPD group
32 The applicant claims, in essence, that the Commission did not prove that the applicant had exercised a decisive influence over the conduct of the LPD group.
33 In that respect, it must be borne in mind that, in accordance with settled case-law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. That concept must be understood as designating an economic unit even if in law that unit consists of several natural or legal persons. When such an economic entity infringes the competition rules, it is for that entity, according to the principle of personal responsibility, to answer for that infringement (see Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR, paragraph 42 and the case-law cited).
34 In particular, the conduct of a subsidiary can be imputed to its parent company where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (judgment of 26 September 2013 in Case C‑172/12 P EI du Pont de Nemours v Commission, not published in the ECR, paragraph 41 and the case-law cited).
35 In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (EI du Pont de Nemours v Commission, cited in paragraph 34 above, paragraph 42).
36 It must also be noted that, in order to be able to impute the conduct of a subsidiary to the parent company, the Commission cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised (EI du Pont de Nemours v Commission, cited in paragraph 34 above, paragraph 44).
37 Thus, the Court of Justice has stipulated that, in order to determine whether a parent company exercises a decisive influence over its subsidiary’s conduct on the market, account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (EI du Pont de Nemours v Commission, cited in paragraph 34 above, paragraph 43).
38 Moreover, in the case-law, the analysis of the existence of a single economic entity among a number of companies forming part of a group has involved consideration of the question whether the parent company had influenced the pricing policy of its subsidiary, production and distribution activities, sales objectives, gross margins, sales costs, cash-flow, stocks and marketing (see judgment of 12 December 2012 in Case T‑392/09 1. garantovaná v Commission, not published in the ECR, paragraph 31 and the case-law cited).
39 The Court of Justice also held that, where two parent companies each have a 50% shareholding in the joint venture which committed an infringement of the rules of competition law, it is only for the purposes of establishing liability for participation in the infringement of that law and only in so far as the Commission has demonstrated, on the basis of factual evidence, that both parent companies did in fact exercise decisive influence over the joint venture, that those three entities can be considered to form a single economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU (EI du Pont de Nemours v Commission, cited in paragraph 34 above, paragraph 47).
40 Lastly, it must be borne in mind that, having regard to the fact that, under Article 263 TFEU, the Court must confine itself to a review of the legality of the contested decision on the basis of the reasons set out in that measure, the question whether a parent company actually exercises management power over its subsidiary must be assessed solely by reference to the evidence assembled by the Commission in the decision which attributes liability for the infringement to the parent company. Accordingly, the only relevant question is whether or not the infringement is proved in the light of that evidence (see Case T‑132/07 Fuji Electric v Commission [2011] ECR II‑4091, paragraph 185 and the case-law cited).
41 In order to determine whether the applicant and Philips had exercised a decisive influence over the LPD group, the Commission relied, first of all, on the structural and organisation links between the LPD group and its parent companies. It then noted that the joint venture agreement included provisions establishing mutual preferential treatment between that joint venture and its parent companies as well as a non-competition clause. Lastly, it emphasised that the parent companies had not only fulfilled the role of shareholders, but also that of advisors of the LPD group and that it was unlikely that those companies were unaware of the LPD group’s involvement in the infringements in question.
42 As regards the structural and organisational links between the LPD group and its parent companies, the Commission rightly pointed out in recital 828 to the contested decision that, according to the joint venture agreement, the governance structure of that group consisted of a general meeting of shareholders, a shareholders’ committee, a supervisory board, a board of management and a group management team, renamed ‘executive board’ by an amendment to that agreement dated 10 September 2002.
43 In addition, Article 6.3.1 of the joint venture agreement stipulated that the supervisory board supervised the management, direction and control of the joint venture and that it was responsible for providing strategic guidance to the executive board and for reviewing and providing final approval for the plans proposed by the executive board. The supervisory board was composed of six members, none of whom was to be an executive of the LPD group, and each parent company was responsible for nominating half of its members. It can be seen from Article 6.3.4 of that agreement that the meetings of the supervisory board were held at least once per quarter and that the agenda had to include a certain number of important matters, such as review and adjustments to rolling, quarterly budgets, extraordinary capital expenditure and any other matters requested by a member of the supervisory board. Lastly, Article 6.3.6 of the joint venture agreement stipulated that resolutions of the supervisory board were made by the affirmative vote of the majority or supermajority of its members. Thus, the adoption of a decision concerning a matter attributed to the supervisory board required an affirmative vote of at least one member nominated by each of the parent companies.
44 At the operational level, the group was managed by a board of management and an executive board.
45 According to Article 6.3.7 of the joint venture agreement, the board of management was responsible for the day-to-day management of the LPD group and was subject to the supervision, control and direction of the supervisory board. As the Commission rightly noted, the board of management consisted of six managing directors, each parent company appointing a half of that board.
46 In addition, the executive board of the LPD group was responsible for supervising the day-to-day management of the joint venture, including the control and implementation of all matters set out in each quarterly budget reviewed and authorised by the supervisory board, and had the authority to make decisions and to take actions in all matters that were not expressly reserved, by law or by the joint venture agreement, to other bodies including, in particular, the board of management and the supervisory board. The aforementioned amendment of 10 September 2002 stated in particular that during the first five years of its implementation, Philips would designate the chief executive officer (CEO) of the joint venture’s executive board and that the applicant would designate the deputy CEO. Likewise, the parent companies would jointly appoint the members occupying the key roles, namely the chief financial officer, the chief operating officer and the chief sales officer, and the other members of that board would be proposed by the CEO and the deputy CEO and appointed by the supervisory board.
47 It follows from the foregoing that the LPD group was organised in such a way that its shareholders were in a position to control the adoption of strategic commercial decisions, the drawing up of operational and strategic plans as well as the supervision of the day-to-day management and to be informed of the operation of the group. Accordingly, in the circumstances of the present case, the abstract analysis of the provisions of the joint venture agreement constitutes prima facie evidence that the parent companies actually exercised decisive influence over the LPD group’s conduct. In that respect, it is apparent from the case-law that the examination of whether decisive influence has actually been exercised over the commercial conduct of the joint venture may consist in an abstract analysis of the documents signed before it began to operate, along the lines of an analysis of control. In particular, where those provisions and terms state that the votes of each parent company were necessary for the adoption of a resolution within a body of the joint venture, the Commission and the Court may establish, in the absence of evidence to the contrary, that those resolutions were determined jointly by the parent companies (Case T‑541/08 Sasol and Others v Commission [2014] ECR, paragraph 49).
48 That finding is supported by the other evidence invoked by the Commission in order to establish the existence of a decisive influence.
49 First, whereas it is apparent from the assessment of the provisions of the joint venture agreement, set out in paragraphs 42 to 46 above, that the supervisory board had a pre-eminent role in the structure of the LPD group, it can be seen from recitals 840 and 843 to the contested decision that several members of that board simultaneously held management positions within Philips and the applicant. As regards the applicant specifically, it can be seen from recital 842 to the contested decision that one of the members of the supervisory board, appointed by the applicant on 15 January 2005, was simultaneously vice-president of the applicant’s display business department. In that regard, it must be pointed out that, contrary to the applicant’s assertion, the contested decision does not state that that member of the supervisory board was an employee of the LPD group. It must be borne in mind, however, that according to the case-law, the extent of the parent company’s involvement in the management of its subsidiary may indeed be proved by the presence, in leading positions of the subsidiary, of many individuals who occupy managerial posts within the parent company. Such an accumulation of posts necessarily places the parent company in a position to have a decisive influence over its subsidiary’s market conduct since it enables members of the parent company’s board to ensure, while carrying out their managerial functions within the subsidiary, that the subsidiary’s course of conduct on the market is consistent with the line laid down at management level by the parent company. That objective can be attained even though member(s) of the parent company who take on managerial functions within the subsidiary do not have authority as agents of the parent company (Fuji Electric v Commission, cited in paragraph 40 above, paragraph 184). In those circumstances, the presence on the joint venture’s supervisory board of a person simultaneously holding the post of vice-president of one of the parent company’s departments is further evidence of the decisive influence exercised by the applicant over the LPD group’s conduct.
50 Secondly, it can be seen from recital 832 to the contested decision that, when the supervisory board met between 27 October 2001 and 12 January 2006, that is to say during the period covered by the infringements at issue, the supervisory board discussed, inter alia, matters relating to market developments, sales, sales prices, volume of stocks, investments in new products and the necessary reorganisations. The applicant claims that those matters concerned solely the LPD group’s financial soundness. On that point, it must be recalled that it is clear from the case-law cited in paragraph 38 above that the existence of a single economic entity among a number of companies may be shown by the influence exercised by the parent company over the pricing policy of its subsidiary, sales objectives, sales costs and stocks. Accordingly, the facts mentioned in recital 832 to the contested decision, which, moreover, are not disputed by the applicant, indicate that, when it met, the supervisory board did not limit its discussions to matters concerning the finances of the LPD group, but also examined matters relating to the commercial policy of that group. In those circumstances, the Commission was correct in noting, in recital 837 to the contested decision, that this showed that the supervisory board’s role was not limited to the tasks normally carried out by that type of body, but also allowed it to approve the major management decisions and to set the direction of the joint venture’s business.
51 Thirdly, it can also be seen from recital 832 to the contested decision that the supervisory board indeed took decisions which showed its influence on the operation and organisation of the LPD group. Thus, the supervisory board decided to change the organisational structure of that group by replacing the group management team by the executive board. It also decided to discontinue the management of the group on a regional basis and implemented central management. The supervisory board’s involvement in the structure of the LPD group is a relevant element in the assessment of the economic, organisational and legal links between a joint venture and its parent company.
52 Fourthly, it must be pointed out that Article 7.6 of the joint venture agreement stipulated that the LPD group was the preferential supplier of CRT products for its parent companies. As the Commission rightly pointed out in the contested decision, where a parent company is also the supplier or customer of its subsidiary, it has a very specific interest in managing the production or distribution activities of the subsidiary, in order to take full advantage of the added value created by the vertical integration thus achieved (Fuji Electric v Commission, cited in paragraph 40 above, paragraph 184). On that point, the applicant submits that the transactions between the LPD group and its parent companies were concluded on an arm’s length basis. However, even if that were established, it does not call into question the fact that the applicant, as a customer sourcing CRTs from the joint venture, had a specific interest in managing the production and distribution activities of that joint venture.
53 It follows from the foregoing that, in view of the body of evidence set out in the contested decision and recalled in paragraphs 42 to 52 above, the Commission adduced proof to the requisite legal standard of the actual exercise by the applicant of decisive influence over the course of conduct followed by the LPD group.
54 Consequently, the Commission did not err in considering that the applicant had exercised decisive influence over the conduct of the LPD group and holding it jointly and severally liable for the participation of the LPD group in the infringements at issue.
55 That conclusion cannot be called into question by the applicant’s other arguments.
56 First, the applicant submits that the Commission failed to prove that it was aware of the LPD group’s participation in the cartel.
57 In that respect, it must be observed that, according to the case-law, there is no requirement, in order to impute to a parent company liability for the acts undertaken by its subsidiary, to prove that that parent company was directly involved in, or was aware of, the offending conduct. It is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they form a single undertaking for the purposes of Article 101 TFEU that the Commission is able to address the decision imposing fines to the parent company (see judgment of 2 February 2012 in Case T‑76/08 EI du Pont de Nemours and Others v Commission, not published in the ECR, paragraph 76 and the case-law cited). Accordingly, the allegation that the applicant was not aware of the infringement committed by the LPD group, even were it established, does not undermine the conclusion in paragraph 54 above that the applicant exercised a decisive influence over the LPD group’s conduct.
58 For the sake of completeness, it must be recalled that the applicant and its subsidiaries participated in the CDT cartel and in the CPT cartel until the transfer of the CRT business to the LPD group on 1 July 2001 and that, consequently, the applicant was held liable, as a direct participant and as a parent company, for the infringements committed by those subsidiaries from 24 October 1996 to 30 June 2001, as regards CDTs, and from 3 December 1997 to 30 June 2001, as regards CPTs. That situation, which, moreover, is not disputed by the applicant, casts doubt on the applicant’s claim that the applicant was entirely unaware of the LPD group’s participation in the infringements at issue.
59 Secondly, the applicant submits that the Commission failed to demonstrate that the LPD group followed a commercial policy consistent with that of the applicant. It adds that, although the concept of commercial policy must be interpreted broadly, the Commission’s evidence must nevertheless relate to the LPD group’s commercial policy.
60 In that respect, it should be noted that the conduct of the subsidiary on the market cannot be the only factor which enables the liability of the parent company to be established, but is only one of the signs of the existence of an economic unit (Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 73).
61 Account must be taken of all the economic, organisational and legal links between a parent company and its subsidiary in order to determine whether those two companies constitute an economic unit (see EI du Pont de Nemours v Commission, cited in paragraph 34 above, paragraph 41 and the case-law cited).
62 Consequently, the applicant is not justified in maintaining that the evidence relied on by the Commission must relate only to the LPD group’s commercial policy.
63 In those circumstances, as stated in paragraphs 53 and 54 above, it must be concluded that the Commission was entitled to find that the applicant had exercised a decisive influence over the LPD group, and it is not necessary, in the light of the findings made in paragraphs 42 to 52 above, to examine the other indicia set out in that respect in the contested decision, the relevance of which has also been called into question by the applicant. The first part of the second plea in law must therefore be rejected.
– The second part, alleging breach of the principle of personal liability
64 The applicant submits that, by imputing liability to it for another undertaking’s conduct, the Commission breached the principle of personal liability.
65 In that respect, it has been indicated in paragraph 53 above that the Commission established to the requisite legal standard that the applicant had exercised a decisive influence over the LPD group. Moreover, in the judgment delivered today in Case T‑92/13 Philips v Commission, the Court has held that the other parent company, Philips, had also exercised a decisive influence over the LPD group’s conduct. Accordingly, those three entities formed a single economic unit for the purpose of the case-law cited in paragraph 33 above. When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (Akzo Nobel and Others v Commission, cited in paragraph 60 above, paragraph 56 and the case law cited). Consequently, by imputing to the applicant, as a member of that economic unit, liability for the infringing conduct of the LPD group, the Commission did not breach the principle of personal liability.
66 It follows from the foregoing that the second part of the second plea in law must be rejected. Consequently, since the applicant does not put forward any line of argument in support of its complaint alleging that the Commission committed a manifest error of assessment, the second plea in law must be rejected.
The first plea in law, alleging breach of the rights of the defence, in that the LPD group was excluded from the proceedings
67 The applicant submits, in essence, that, by failing to send the LPD group the statement of objections, the supplementary statement of objections and the contested decision, the Commission breached its rights of defence.
68 In that respect, it should be recalled that observance of the rights of the defence in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the European Courts ensure (see Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 26 and the case-law cited).
69 According to settled case-law, observance of the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement (see Case C‑511/06 P Archer Daniels Midland v Commission [2009] ECR I‑5843, paragraph 88 and the case-law cited).
70 Furthermore, according to the case-law, the rights of the defence are infringed where it is possible that the outcome of the administrative procedure conducted by the Commission might have been different as a result of an error committed by it. An applicant undertaking establishes that there has been such an infringement where it adequately demonstrates, not that the Commission’s decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no error, for example because it would have been able to use for its defence documents to which it was denied access during the administrative procedure (see, to that effect, Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 31 and the case-law cited).
71 The applicant submits that, since the LPD group was under the control of a liquidator during the administrative procedure, it could not access the documents available to the LPD group or its employees. The applicant asserts that, if that group had been involved in the procedure, the applicant could have cooperated with it in order to verify the Commission’s allegations. Moreover, the applicant submits that, at the very least, the LPD group could have defended itself against the Commission’s accusations and brought to light evidence which would have been useful for its own defence. Thus, the applicant considers that, by cooperating with the LPD group or by having access to the evidence available to that group or even to that group’s staff, it could have countered certain allegations relating to the infringements or to the existence of an influence exercised by the parent companies over the conduct of the joint venture.
72 As a preliminary point, it must be noted that it is undisputed that the Commission did not send the statement of objections, the supplementary statement of objections or the contested decision to the LPD group and, accordingly, did not impute liability to it for its conduct, on the ground that that group was subject to bankruptcy proceedings.
73 In the first place, it is necessary to examine whether, by abstaining from sending the statement of objections, the supplementary statement of objections or the contested decision to the LPD group, the Commission committed an error within the meaning of the case-law cited in paragraph 70 above.
74 In that respect, it can be seen from the examination of the second plea in law that the applicant, Philips and the LPD group formed part of the same undertaking within the meaning of the case-law cited in paragraphs 34 and 35 above. As indicated in paragraph 57 above, it is precisely because a parent company and its subsidiary form a single undertaking for the purposes of Article 101 TFEU that the Commission is able to impute liability to the former for an infringement committed by the latter (see, to that effect, EI du Pont de Nemours and Others v Commission, cited in paragraph 57 above, paragraph 76). Thus, as a result of that attribution of liability, the parent company itself is deemed to have committed the infringement (Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 28).
75 In those circumstances, the Commission infringed neither Article 101 TFEU nor Article 53 of the EEA Agreement by imputing to the applicant the anticompetitive conduct of the LPD group as regards the period between 1 July 2001 and 30 January 2006.
76 In that respect, the applicant adds that, when the administrative procedure began, it no longer formed part of the same economic unit as the LPD group since the latter had been placed under the supervision of a liquidator.
77 However, even if that were established, it is irrelevant since the applicant was found liable for the LPD group’s infringing conduct in respect of the period prior to the placement of the LPD group under the supervision of a liquidator.
78 The fact that the reason invoked by the Commission in the contested decision in order not to involve the LPD group in the administrative procedure, namely its inability to pay the fine, is different from that set out in recital 523 to the statement of objections — which refers to the fact that the LPD group had ceased to exist — is also irrelevant. That does not support the conclusion, alleged by the applicant, that the reason finally set out in the contested decision in order not to impute liability to the LPD group is only a ‘pretext’.
79 Furthermore, the applicant criticises the Commission for using, in recital 862 to the contested decision, the terms ‘uninterrupted participation’, as regards the applicant’s participation in the infringement both before and after 1 July 2001, in order to justify the decision not to impute liability to the LPD group. According to the applicant, given that it did not participate directly in the infringement after 1 July 2001, such an insinuation is erroneous and unsubstantiated and could not justify the absence of involvement of that group in the procedure.
80 In that respect, it suffices to note that that reference does not mean that the applicant directly participated in the infringements in question after 1 July 2001, but that, between 28 January 1997 and 30 January 2006, as regards CDTs, and, between 21 September 1999 and 30 January 2006, as regards CPTs, it participated, either directly or as a parent company, in the single and continuous infringements.
81 Lastly, the applicant asserts that the Commission should have sent the statement of objections and the contested decision to the LPD group, since the liability of parent companies is merely a derivative liability. In support of its line of argument, the applicant refers to the judgment in Case C‑286/11 P Commission v Tomkins [2013] ECR (paragraphs 37 and 39), in which the Court of Justice held that where the liability of the parent company results exclusively from the participation of its subsidiary in the infringement, that liability is derivative and secondary and thus depends on that of its subsidiary.
82 However, Commission v Tomkins, cited in paragraph 81 above, does not establish that the Commission should have, in the present case, involved the LPD group in the administrative procedure, since the Court of Justice merely stated that a parent company cannot be held liable for a period in respect of which no evidence has been furnished that its subsidiary committed an infringement of the EU competition rules. In the present case, it is not disputed that the LPD group adopted anticompetitive conduct during the period in respect of which the applicant was held liable, with the result that that argument must be rejected.
83 It follows from the foregoing that the Commission cannot be held to have committed any irregularity as regards its decision not to impute liability to the LPD group for its conduct. Consequently, in accordance with the case-law cited in paragraph 70 above, the applicant’s arguments seeking to establish a breach of its rights of defence are ineffective. In any event, it must be held that they are also unfounded.
84 First, the applicant submits that, because the LPD group was not involved in the procedure, the applicant could not defend itself properly since it was not able to access certain documents or certain information available to that group.
85 First of all, it must be found that, by definition, those documents and information did not form part of those on which the Commission relied in order to adopt the contested decision, with the result that the applicant cannot maintain that the Commission prevented it from effectively making its views known on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission.
86 Next, it must be borne in mind that, by virtue of a general duty of care attaching to any undertaking, the applicant was required to ensure, even in the circumstances of the winding up of the joint venture, the proper maintenance of records in its books and files of information enabling details of its activities to be retrieved, in order, in particular, to make the necessary evidence available in the event of legal or administrative proceedings (see, to that effect, Case T‑161/05 Hoechst v Commission [2009] ECR II‑3555, paragraph 171 and the case-law cited). Moreover, it is, in any event, for the parent company to have at its disposal, whether by keeping them in its archives or by any other means, records which will enable it to defend itself if it is personally implicated as a parent company forming an economic unit with its subsidiary (Case T‑372/10 Bolloré v Commission [2012] ECR, paragraph 137).
87 In the present case, the applicant was held liable, as a parent company, for the infringements committed by the LPD group from 1 July 2001 to 30 January 2006, the date of LPD Holding’s bankruptcy and of the placement of that company under the supervision of a liquidator. Accordingly, the applicant was held liable for a period during which it had close relations with the LPD group and in respect of which it should have, in accordance with the duty of care, had sufficient evidence at its disposal to enable it to defend itself properly.
88 Secondly, the applicant submits that as a result, inter alia, of Netherlands bankruptcy law, it could not have contractually ensured access to information held by the LPD group. It also invokes the lack of cooperation from the LPD group’s liquidator, who, it claims, refused to assist it.
89 However, even if those circumstances were established, it would not dispense the applicant from the general duty of care referred to in paragraph 86 above.
90 Moreover, it must be noted that even if the Commission did not formally involve the LPD group in the administrative procedure, it nevertheless contacted that group in order to obtain information on the facts of the case and on the structure of that group, which could have, indirectly, been useful to the applicant in order to develop its defence. Thus, the Commission sent requests for information to various companies in the LPD group during the first stage of the administrative procedure. It can be seen, in particular, from recital 912 to the contested decision, and this is not disputed by the applicant, that the Commission not only contacted the parent companies, but also, and on several occasions, the LPD group, and that it had, in particular, exchanges with the liquidator of that group and the representatives of LP Displays International Ltd, a wholly owned subsidiary of LP Displays International BV, which became the holding company of all the viable companies of the LPD group after the winding up of LPD Holding. Furthermore, it can be seen from recital 92 to the contested decision that the Commission carried out inspections at the premises of the LPD group on 8 and 9 November 2007.
91 It follows from the foregoing that the Commission did not breach the applicant’s rights of defence by refraining from imputing liability to the LPD group. Accordingly, the first plea in law must be rejected.
The seventh plea in law, alleging infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, and breach of the principles of equal treatment and of sound administration, since the contested decision was not addressed to all the participants in the infringements
92 That plea in law is composed of two parts, alleging, first, infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003 and, secondly, breach of the principles of equal treatment and of sound administration.
– The first part, alleging infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003
93 The applicant submits that a legal person managing an undertaking that committed an infringement should answer for it if it still exists. It argues that the contested decision should therefore have been addressed to the surviving entities of the LPD group which participated in the cartels as well as LPD International BV as the ultimate parent company of the LPD group.
94 In the present case, it can be seen from the examination of the first and second pleas in law that the Commission did not err in not imputing liability to the LPD group.
95 Accordingly, the arguments invoked in support of the present part of the seventh plea in law are ineffective. In any event, it must be held that they are unfounded.
96 First, the applicant submits that the Commission’s decision not to impute liability to the LPD group hampered the applicant’s ability to bring a civil action against that group so that it would contribute to the payment of the fine.
97 In that respect, it must be noted that that possibility, which is, moreover, purely theoretical in view of the financial situation of the LPD group, does not affect the legality of the contested decision, since the conditions required in order to attribute liability to the applicant for the anticompetitive conduct were met.
98 Secondly, the applicant claims that, by not involving the LPD group in the procedure, the Commission was able to circumvent the limit of 10% laid down in Article 23(2) of Regulation No 1/2003. According to the applicant, since the LPD group participated in the infringements in question as a separate undertaking after 30 June 2001, none of the fines imposed for that period should have exceeded 10% of its turnover.
99 In that respect, it should be borne in mind that Article 23(2) of Regulation No 1/2003 provides that the Commission may impose fines on undertakings where they infringe Article 101 TFEU provided that, for each undertaking participating in the infringement, the fine does not exceed 10% of its total turnover in the preceding business year.
100 That upper limit of the amount of the fine seeks to prevent fines being imposed which it is foreseeable that the undertakings will not be able to pay, having regard to their size, as determined, albeit approximately and imperfectly, by their total turnover. That limit is therefore one which is uniformly applicable to all undertakings, arrived at by reference to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate (see Case C‑58/12 P Groupe Gascogne v Commission [2013] ECR, paragraph 48 and the case-law cited).
101 That objective must, however, be combined with the aim of ensuring that the fine has sufficient deterrent effect, which justifies taking into consideration the size and the economic power of the undertaking concerned, namely the global resources of the infringer (see Groupe Gascogne v Commission, cited in paragraph 100 above, paragraph 49 and the case-law cited).
102 Taking into consideration the size and overall resources of the undertaking in question is justified by the impact sought on the undertaking concerned, in order to ensure that the fine has sufficient deterrent effect, as the penalty must not be negligible in the light, particularly, of its financial capacity (see Groupe Gascogne v Commission, cited in paragraph 100 above, paragraph 50 and the case-law cited).
103 In those circumstances, when assessing the financial resources of an undertaking to which a breach of the EU competition law rules is attributed, the taking into account of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 101 TFEU is justified (order of 3 May 2012 in Case C‑240/11 P World Wide Tobacco España v Commission, not published in the ECR, paragraphs 45 and 46, and Case C‑508/11 P Eni v Commission [2013] ECR, paragraph 109).
104 That total turnover is the best indicator of the ability of the undertaking concerned to mobilise the funds needed to pay the fine (Groupe Gascogne v Commission, cited in paragraph 100 above, paragraph 53).
105 In the present case, since it has been held, in paragraph 63 above, that the Commission established to the requisite legal standard that the infringements at issue could be imputed to the parent companies of the LPD group, which formed, with that group, a single economic unit, the Commission was entitled, in order to assess the financial capacity of that unit, to take into account the turnover of all of the companies comprising that unit. Furthermore, it must be pointed out that the turnover taken into account by the Commission would have been the same if the LPD group had been held liable.
106 It follows from the foregoing that the first part of the seventh plea in law must be rejected.
– The second part, alleging breach of the principles of equal treatment and of sound administration
107 The applicant submits that the Commission breached the principles of equal treatment and of sound administration by treating inconsistently undertakings which were in situations the same as, or fundamentally similar to, the LPD group and its parent companies.
108 In that respect, it must be borne in mind that during an administrative procedure before the Commission, the Commission is required to observe the procedural guarantees provided for by EU law (Case T‑348/94 Enso Española v Commission [1998] ECR II‑1875, paragraph 56).
109 The guarantees afforded by the EU legal order in administrative proceedings include, in particular, the principle of sound administration, which entails the duty on the part of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (Case T‑44/90 La Cinq v Commission [1992] ECR II‑1, paragraph 86).
110 Moreover, the Commission is required to observe the principle of equal treatment or non-discrimination, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C‑485/08 P Gualtieri v Commission [2010] ECR I‑3009, paragraph 70).
111 In addition, as is clear from the case-law on the principle of equal treatment, an undertaking which has acted in breach of Article 101 TFEU cannot escape being penalised altogether on the ground that other undertakings have not been fined, where those undertakings’ circumstances are not the subject of proceedings before the Court (Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraph 197).
112 First, the applicant claims that the Commission held MTPD — the joint venture created by Toshiba and Panasonic — liable whereas it did not impute liability to the LPD group as a joint undertaking of Philips and itself.
113 In that respect, it must be found that, as indicated in paragraph 5 above, LPD Holding was declared bankrupt on 30 January 2006 and was therefore unable to pay a fine. It cannot be seen from the documents in the file that MTPD or its subsidiaries were subject to bankruptcy proceedings or had debts exceeding the value of the group at the date of the contested decision. Accordingly, the situations of MTPD and of the LPD group were not comparable and the Commission was not required to treat them in the same way.
114 Secondly, the applicant submits that the Commission discriminated between it and SEC since the Commission attributed liability to the applicant as a parent company whereas it did not do the same as regards SEC.
115 In that respect, it must be noted that, in the contested decision, the Commission found that SEC had not exercised a decisive influence over Samsung SDI Co. Accordingly, without prejudice to the examination of the sixth plea in law, SEC was not in a situation comparable to that of the applicant.
116 Thirdly, the applicant criticises the Commission for not attributing liability to the parent company of the [confidential] group for the infringement committed by [confidential], even though, according to the applicant, [confidential]’s shareholding in [confidential] increased from 48% to 65% during the infringement period, that is to say, a level which allowed [confidential] to exercise effective control over [confidential] and which, at the very least, justified the opening of an in-depth investigation by the Commission.
117 However, the mere fact that [confidential] held a 65% shareholding in [confidential] does not suffice, by itself, to establish the exercise of decisive influence by the former over the latter. In those circumstances, since the applicant has not adduced any evidence capable of establishing that [confidential] actually exercised a decisive influence over [confidential] within the meaning of the case-law cited in paragraph 34 above, it is not justified in claiming that it was in a situation comparable to that of [confidential].
118 Fourthly, the applicant submits that the Commission erred in not imputing liability to [confidential] for the infringements committed by its subsidiary, [confidential], after 28 February 2005, when that subsidiary was sold by [confidential] to the [confidential] group, to which [confidential] belongs.
119 However, the applicant has not established that [confidential] participated in the cartel after 28 February 2005 and it does not appear from the contested decision or from the other documents in the file that that was the case. Furthermore, it has not established or even alleged that [confidential] exercised a decisive influence over [confidential]. In those circumstances, [confidential] was not in a situation comparable to that of the applicant and the Commission was not required to treat them in the same way.
120 It follows from the foregoing that, since the applicant has not adduced any evidence to establish that the Commission breached the principle of sound administration by failing to examine carefully and impartially all the relevant aspects of the individual case, the present part of the seventh plea in law must be rejected, as must the seventh plea in law in its entirety.
The third plea in law, alleging infringement of Article 25 of Regulation No 1/2003, in that the contested decision held the applicant liable for offending conduct before 1 July 2001
121 The applicant maintains that, by imposing a fine on it for its participation in the alleged cartel until 1 July 2001, the Commission breached the rules on limitation and, more particularly, Article 25(1) and (5) of Regulation No 1/2003. It asserts that the Commission’s power to impose a fine came to an end, under Article 25(5) of that regulation, on 1 July 2011, namely 10 years after the date on which its direct participation in the infringements came to an end. The applicant adds that, pursuant to Article 25(1) of that regulation, the Commission cannot impose a fine, since the enforcement proceedings had begun more than five years after the infringement ceased.
122 In that respect, it must be recalled that Article 25(1)(b) of Regulation No 1/2003 lays down a limitation period of five years for infringements of the type which the applicant is alleged to have committed. According to Article 25(2) of Regulation No 1/2003, in the case of continuing or repeated infringements, time is to begin to run on the day on which the infringement ceases. Moreover, Article 25(3) of that regulation provides that any action taken by the Commission or by the competition authority of a Member State for the purpose of the investigation or proceedings in respect of an infringement is to interrupt the limitation period for the imposition of fines or periodic penalty payments. Lastly, in accordance with the second sentence of Article 25(5) of Regulation No 1/2003, the limitation period is to expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment.
123 In the present case, it follows from the analysis of the second plea in law that the Commission rightly found that the applicant should be held jointly and severally liable for the conduct of the LPD group from 1 July 2001 to 30 January 2006 in the context of the CDT and CPT cartels. Furthermore, the applicant does not dispute the characterisation of the infringements committed between 24 October 1996 and 30 January 2006, as regards CDTs, and between 3 December 1997 and 30 January 2006, as regards CPTs, as a single and continuous infringement. It follows that, contrary to what is claimed by the applicant, the infringements imputed to it did not come to an end on 1 July 2001, but on 30 January 2006, and the Commission could impose a fine on it for the entire period during which those infringements had been committed, including the period prior to the creation of the LPD group.
124 It follows from the foregoing that the rules on limitation were not breached and that the third plea in law must, consequently, be rejected.
The fourth plea in law, alleging infringement of Articles 101 TFEU and 296 TFEU and Article 23(2) of Regulation No 1/2003 and breach of the 2006 Guidelines and of the principle of equal treatment, in that the contested decision included direct EEA sales through transformed products in the calculation of the fine (i) without providing sufficient reasons for that inclusion or proof that CRT price increases were passed on to the prices of televisions and computer monitors and (ii) exceeding the Commission’s jurisdiction and discriminating between integrated and non-integrated undertakings
125 That plea in law is composed of four parts, alleging, first, breach of the 2006 Guidelines, secondly, infringement of Article 101 TFEU and of Article 23(2) of Regulation No 1/2003, in that the Commission has not established the pass-on of CRT price increases to the prices of televisions and computer monitors, thirdly, the Commission’s lack of jurisdiction to impose fines based on sales made outside the EEA and, fourthly, infringement of the principle of equal treatment and of Article 296 TFEU.
– The first part, alleging infringement of the 2006 Guidelines
126 The applicant argues, in essence, that the Commission breached the 2006 Guidelines and, in particular, point 13 thereof, by taking into account direct EEA sales through transformed products in the calculation of the fine.
127 In that respect, it must be noted that the second subparagraph of Article 23(2) of Regulation No 1/2003 provides that for each undertaking and each association of undertakings participating in the infringement the fine must not exceed 10% of its total turnover in the preceding business year.
128 As the Court of Justice has previously held, the Commission must assess, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by that regulation, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed (Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 25; Guardian Industries and Guardian Europe v Commission, cited in paragraph 20 above, paragraph 53; and Case C‑227/14 P LG Display and LG Display Taiwan v Commission [2015] ECR, paragraph 49).
129 In accordance with settled case-law, it is permissible, for the purpose of setting the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 121; Guardian Industries and Guardian Europe v Commission, cited in paragraph 20 above, paragraph 54; and LG Display and LG Display Taiwan v Commission, cited in paragraph 128 above, paragraph 50).
130 It is also clear from the case-law of the Court of Justice that, although Article 23(2) of Regulation No 1/2003 leaves the Commission a discretion, it nevertheless limits the exercise of that discretion by establishing objective criteria to which the Commission must adhere. Thus, first, the amount of the fine that may be imposed on an undertaking is subject to a quantifiable and absolute ceiling, so that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance. Secondly, the exercise of that discretion is also limited by rules of conduct which the Commission has imposed on itself, in particular in the Guidelines on the method of setting fines (Guardian Industries and Guardian Europe v Commission, cited in paragraph 20 above, paragraph 55, and LG Display and LG Display Taiwan v Commission, cited in paragraph 128 above, paragraph 51).
131 Point 13 of the 2006 Guidelines states, ‘[i]n determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the EEA’. Those Guidelines state, at point 6, that ‘[t]he combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’.
132 Point 13 of the 2006 Guidelines therefore pursues the objective of adopting, as the starting point for the setting of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it (judgment of 11 July 2013 in Case C‑444/11 P Team Relocations and Others v Commission, not published in the ECR, paragraph 76; Guardian Industries and Guardian Europe v Commission, cited in paragraph 20 above, paragraph 57; and LG Display and LG Display Taiwan v Commission, cited in paragraph 128 above, paragraph 53).
133 Consequently, the concept of the value of sales referred to in point 13 of those Guidelines encompasses the sales made on the market concerned by the infringement in the EEA, and it is not necessary to determine whether those sales were genuinely affected by that infringement, since the proportion of the overall turnover deriving from the sale of goods in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (see, to that effect, Team Relocations and Others v Commission, cited in paragraph 132 above, paragraphs 75 to 78; Guardian Industries and Guardian Europe v Commission, cited in paragraph 20 above, paragraphs 57 to 59; Case C‑286/13 P Dole Food and Dole Fresh Fruit Europe v Commission [2015] ECR, paragraphs 148 and 149; and LG Display and LG Display Taiwan v Commission, cited in paragraph 128 above, paragraphs 53 to 58 and 64).
134 The applicant asserts that, when the Commission determines the basic amount of a fine, it must comply with the 2006 Guidelines, in accordance with which fines should be based on the sales that are the subject of the infringement. According to the applicant, there is no basis for including direct EEA sales through transformed products since, when CRTs are incorporated in televisions or computer monitors and sold as such, it is no longer possible to treat those sales as CRT sales.
135 In the present case, it can be seen from recital 1021 to the contested decision that, in order to determine the basic amount of the fine, the Commission decided to take into account the turnover corresponding to the sales where the ‘first real sale’ of the CRT — as such or integrated in a final computer monitor or television product — was made in the EEA during the period of the infringement by one of the addressees of the contested decision. Starting from that premiss, the Commission determined three categories of sales, namely ‘direct EEA sales’, corresponding to CRTs directly sold to customers in the EEA by one of the addressees of the contested decision, ‘direct EEA sales through transformed products’, corresponding to CRTs incorporated intragroup into a final computer monitor or television and subsequently sold to customers in the EEA by one of the addressees of the contested decision, and ‘indirect sales’, corresponding to CRTs sold by one of the addressees of the contested decision to customers outside the EEA, which would then incorporate the CRTs into the final computer monitor or television products and sell them in the EEA. In the present case, it is undisputed that the Commission only took into account the direct EEA sales and direct EEA sales through transformed products in calculating the amount of the fine.
136 It follows from the foregoing that the applicant’s sales taken into account for the purposes of setting the amount of the fine as direct EEA sales through transformed products were not made on the product market concerned by the infringement, in this case the market for the cartelised CRTs, but on a different product market, namely the downstream market for televisions and computer monitors incorporating the cartelised CRTs; those CRTs had in that case been the subject of internal sales outside the EEA within the economic unit formed by the LPD group and its parent companies.
137 It is, however, apparent from recitals 1026 and 1029 to the contested decision that the sales of televisions and computer monitors incorporating the cartelised CRTs were not taken into account up to their full value, but only up to the proportion of that value which corresponded to the value of the cartelised CRTs that were incorporated into the televisions and computer monitors, when those products were sold by the undertaking to which the applicant belongs to independent third parties established in the EEA. That finding has not been challenged.
138 Admittedly the concept of the ‘value of sales’ referred to in point 13 of the 2006 Guidelines cannot extend to encompassing sales made by the undertaking in question which in no way fall within the scope of the alleged cartel (see Team Relocations and Others v Commission, cited in paragraph 132 above, paragraph 76; Guardian Industries and Guardian Europe v Commission, cited in paragraph 20 above, paragraph 57; and LG Display and LG Display Taiwan v Commission, cited in paragraph 128 above, paragraph 53). It would, however, be contrary to the goal pursued by Article 23(2) of Regulation No 1/2003 if the vertically integrated participants in a cartel could, solely because they incorporated the goods which were the subject of the infringement into finished products outside the EEA, expect to have excluded from the calculation of the fine the proportion of the value of their sales of those finished products in the EEA that are capable of being regarded as corresponding to the value of the goods which were the subject of the infringement.
139 As the Court has already held, vertically integrated undertakings may benefit from a horizontal price-fixing agreement concluded in breach of Article 101 TFEU, not only when sales are made to independent third parties on the market for the goods the subject of the infringement, but also on the downstream market in processed goods made up of, inter alia, the goods which are the subject of the infringement, and this is so for two different reasons. Either the price increases of the inputs which result from the infringement are passed on by those undertakings in the price of the processed goods, or those undertakings do not pass these increases on, which thus effectively grants them a cost advantage in relation to their competitors which obtain those same inputs on the market for the goods the subject of the infringement (Guardian Industries and Guardian Europe v Commission, cited in paragraph 20 above, paragraph 60).
140 It follows that the Commission was entitled to find that the sales of the finished products, while not made on the market for the goods concerned by the infringement, none the less distorted competition in the EEA in breach of Article 101 TFEU, to the detriment of consumers in particular. The Commission therefore did not err in law in finding that the sales of the finished products were related to the infringement in the EEA, within the meaning of point 13 of the Guidelines on the method of setting fines.
141 It follows from the foregoing that the first part of the fourth plea in law must be rejected.
– The second part, alleging infringement of Article 101 TFEU and of Article 23(2) of Regulation No 1/2003, in that the Commission has not established that CRT price increases were passed on to the prices of televisions and computer monitors
142 The applicant submits that, even if the Commission was justified in taking into account the value of direct EEA sales through transformed products in order to determine the basic amount of the fine, it was required to establish that the CRT price increases had an impact on the prices of televisions and computer monitors.
143 In that respect, it suffices to point out that, contrary to what is claimed by the applicant, and having regard to the case-law cited in paragraph 139 above, the Commission was not required to prove that the incorporation of cartelised CRTs in televisions and computer monitors had an impact on the prices of those televisions and monitors. Moreover, since, as noted in paragraph 137 above, the Commission took into account, not the value of the transformed product as a whole, but only the value of the CRTs incorporated in those products, the applicant’s line of argument must, in any event, be rejected.
144 In those circumstances, the second part of the fourth plea in law must be rejected.
– The third part, alleging that the Commission did not have jurisdiction to impose fines on the basis of sales made outside the EEA
145 The applicant further submits that the Commission had no jurisdiction to impose fines for CRT sales outside the EEA, even where the television sets or computer monitors incorporating those CRTs were subsequently sold in the EEA.
146 In that respect, it must be noted that, when undertakings established outside the EEA, but which produce goods that are sold within the EEA to third parties, concert on the prices they charge to their customers in the EEA and put that concertation into effect by selling at prices which are actually coordinated, they are taking part in concertation which has the object and effect of restricting competition within the internal market within the meaning of Article 101 TFEU and which the Commission has territorial jurisdiction to proceed against (see, to that effect, Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85 Ahlström Osakeyhtiö and Others v Commission [1988] ECR 5193, ‘Wood Pulp I’, paragraphs 13 and 14).
147 It also follows from the case-law that an infringement of Article 101 TFEU consists of two elements, the formation of the agreement, decision or concerted practice and the implementation thereof. If the applicability of prohibitions laid down under competition law were made to depend on the place where the agreement, decision or concerted practice was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions. What counts is therefore the place where it is implemented. Moreover, in determining whether that place is in the EEA, it is immaterial whether or not the participants in the cartel had recourse to subsidiaries, agents, sub-agents, or branches within the EEA in order to make their contacts with purchasers established there (Wood Pulp I, cited in paragraph 146 above, paragraphs 16 and 17).
148 Where the condition relating to implementation is satisfied, the Commission’s jurisdiction to apply the EU competition rules to such conduct is covered by the territoriality principle as universally recognised in public international law (Wood Pulp I, cited in paragraph 146 above, paragraph 18).
149 Moreover, the criterion of the implementation of an agreement as a factor linking the latter to EU territory is satisfied by mere sale within the European Union of the product that is the subject of the agreement, irrespective of the location of the sources of supply and the production plants (Case T‑91/11 InnoLux v Commission [2014] ECR, paragraph 63).
150 It follows that the Commission was entitled to find that when a vertically integrated undertaking incorporates the goods in respect of which the infringement was committed into the finished products in its production units situated outside the EEA, the sale by that undertaking of those finished products in the EEA to independent third parties is liable to affect competition on the market for those products and, therefore, such an infringement may be considered to have had repercussions in the EEA, even if the market for the finished products in question constitutes a separate market from that concerned by the infringement.
151 The third part of the fourth plea in law must therefore be rejected.
– The fourth part, alleging breach of the principle of equal treatment and infringement of Article 296 TFEU
152 In the first place, the applicant invokes, in essence, a breach of the principle of equal treatment between vertically integrated undertakings and non-vertically integrated undertakings.
153 In that respect, it must be pointed out that, when the amount of the fine is determined, the principle of equal treatment means that the Commission cannot, by the application of different methods of calculation, discriminate between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, cited in paragraph 33 above, paragraph 58 and the case-law cited).
154 The applicant states that direct EEA sales through transformed products were taken into consideration in the calculation of the fine only where the television and computer screen manufacturers located outside the EEA formed part of the same group as the CRT manufacturers. It states that those sales were not taken into account where there was no such link between the television and computer screen manufacturers situated outside the EEA and the CRT manufacturers. According to the applicant, that approach amounts to a breach of the principle of equal treatment between integrated undertakings and non-integrated undertakings.
155 As a preliminary point, it must be noted that, in recital 1022 to the contested decision, the Commission justified its choice of methodology based on the ‘first real sale’ by invoking the need not to discriminate against non-vertically integrated undertakings.
156 Furthermore, it must be pointed out that, in reality, the applicant criticises the Commission for failing to take into account indirect sales in calculating the amount of the fine imposed on non-vertically integrated undertakings.
157 In that respect, it must be noted, first of all, that contrary to what the applicant seems to suggest, indirect sales are liable to concern all the undertakings and not only those which are not vertically integrated. Accordingly, to take account of indirect sales only as regards the non-vertically integrated undertakings would amount to clearly discriminating between those two types of undertakings to the detriment of non-vertically integrated undertakings.
158 Moreover, it is settled case-law that the Commission enjoys a broad discretion as regards the method for calculating fines. That method, set out in the 2006 Guidelines, displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Regulation No 1/2003 (see, to that effect, Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I‑7191, paragraph 112, and Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I‑9555, paragraph 271). Furthermore, the Commission is not obliged to find and penalise all anticompetitive conduct (judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 369).
159 In the present case, it has been noted in paragraph 135 above that the Commission applied the same methodology to all the undertakings by taking into account, as regards each of them, the ‘first real sale’ and by establishing three categories on the basis of that criterion. In those circumstances, the fact that the category of direct EEA sales through transformed products was applicable only in the case of some of those participants, namely to all of the vertically integrated undertakings, does not amount to discrimination, since the Commission assessed the applicability of that category to each of the participants on the basis of the same objective criteria. Similarly, the fact that the non-inclusion of indirect sales may have been of greater benefit to certain participants than it was to the applicant does not in itself amount to discrimination (InnoLux v Commission, cited in paragraph 149 above, paragraph 80).
160 In those circumstances, the Commission cannot be held to have committed any breach of the principle of equal treatment.
161 In the second place, the applicant submits that the contested decision was adopted in breach of Article 296 TFEU since it does not set out the reasons why indirect sales were not taken into account in the determination of the basic amount of the fine.
162 According to settled case-law, the statement of reasons required under Article 296 TFEU must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).
163 In that respect, it must be noted that it can be seen from recitals 1021 to 1032 to the contested decision that the Commission, inter alia, stated the reasons for which it had, in order to determine the basic amount of the fine, taken into account direct EEA sales and the direct EEA sales through transformed products. The applicant was therefore able to understand the manner in which the basic amount of the fine imposed on it had been calculated. Furthermore, it can be seen in particular from recital 1026 to the contested decision that the Commission specified that a direct link with the EEA territory was established as regards direct EEA sales and direct EEA sales through transformed products, emphasising the lack of such a link if indirect sales were taken into account. Accordingly, the contested decision is supported by an adequate statement of reasons as regards the determination of the sales to be taken into account in the calculation of the basic amount of the fine.
164 It follows from the foregoing that the fourth part of the fourth plea in law must be rejected, as must the fourth plea in law in its entirety.
The fifth plea in law, alleging infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, breach of the principle of personal liability and of the rights of the defence, and a manifest error of assessment, in so far as the contested decision took into account, in the calculation of the fine, direct EEA sales through transformed products made by Philips
165 This plea in law is composed of two parts, alleging, first, infringement of Article 101 TFEU and of Article 23(2) of Regulation No 1/2003, in that the parent companies of the LPD group were held jointly and severally liable for the part of the fine relating to direct EEA sales through transformed products, and, secondly, breach of the rights of the defence and of the principle of personal liability and a manifest error of assessment, in that, as regards that type of sales, the Commission did not follow, in the contested decision, the approach which it had announced in the request for information sent on 4 March 2011.
– The first part, alleging infringement of Article 101 TFEU and of Article 23(2) of Regulation No 1/2003, in that the parent companies of the LPD group were held jointly and severally liable for the part of the fine relating to direct EEA sales through transformed products
166 The applicant submits that the parent companies of the LPD group should not have been held jointly and severally liable for the part of the fine relating to the direct EEA sales through transformed products.
167 As a preliminary point, it must be emphasised that the amount of the fine imposed on the applicant was calculated on the basis of, inter alia, the value of direct EEA sales through transformed products, that is to say, CRTs sold by the LPD group to each of its parent companies, which then sold them to customers in the EEA. The applicant asserts that the parent companies never adopted a single commercial policy concerning their respective television or computer monitor businesses, whereas the presence of a single commercial policy is a necessary condition that must be satisfied in order for the direct EEA sales through transformed products made by each of the parent companies to be treated as sales made by one undertaking. The applicant concludes that the fine imposed on it should have been calculated only on the basis of its own direct EEA sales through transformed products.
168 In that respect, it must be held that the applicant’s line of argument confuses the issue of the attribution of liability for the conduct of the LPD group with the issue of determining the amount of the fine imposed.
169 Thus, as regards the attribution of liability for the LPD group’s conduct, it was indicated, in the context of the examination of the second plea in law, that, since the LPD group and its parent companies belonged to the same economic unit at the time of the infringement, the Commission did not err in holding those parent companies jointly and severally liable for all of the fine in relation to the anticompetitive activities of the LPD group.
170 Furthermore, as regards the determination of the amount of the fine, it has been indicated, in the examination of the fourth plea in law, that the Commission also did not err in including, in the calculation of the basic amount of the fine, the direct EEA sales through transformed products made by the economic unit formed by the LPD group and its parent companies, that is to say those made by the applicant as well as those made by Philips.
171 In those circumstances, the Commission was entitled to hold the applicant jointly and severally liable in respect of the direct EEA sales through transformed products by the LPD group even where those sales had been made by Philips. The first part of the fifth plea in law must therefore be rejected.
– The second part, alleging breach of the rights of the defence and of the principle of personal liability and a manifest error of assessment, in that, as regards direct EEA sales through transformed products, the Commission did not follow, in the contested decision, the approach that it had announced in the request for information in relation to that matter, sent on 4 March 2011
172 In the first place, the applicant invokes breach of its rights of the defence. It submits, in essence, that the Commission changed its approach as regards direct EEA sales through transformed products between the request for information that it sent on 4 March 2011 and the contested decision, without allowing the applicant an opportunity to comment on that matter.
173 In the present case, it is undisputed that, by a letter sent on 4 March 2011, the Commission, first of all, reminded the applicant that the amount of the fine would be determined in accordance with Article 23(2)(a) of Regulation No 1/2003 and that the value of the undertaking’s sales of goods and services to which the infringement directly or indirectly relates within the relevant geographic territory would be taken into account. The Commission then explained that it did not exclude the possibility of taking into account the value of sales made during the entire period of the infringements in question and then indicated how it would proceed if the information requested was not provided by the applicant. Lastly, the Commission asked the applicant to provide it with information concerning the direct EEA sales through transformed products and the internal sales and specified what it meant by those two concepts.
174 The applicant submits that, since the ‘definitions’ contained in the letter of 4 March 2011 did not cover the sales made by the LPD group to Philips, the Commission could not, without breaching the applicant’s rights of defence, use those sales in the contested decision in order to calculate the amount of the fine, without having first allowed the applicant to submit its observations on that point.
175 First, it must be pointed out that the ‘definitions’ set out by the Commission in its letter of 4 March 2011 cannot be regarded as forming part of the explanation of its method for the calculation of the fines, but were actually intended, as was expressly indicated in that letter and as the Commission emphasises in its written pleadings, to indicate to the applicant the nature of the information that it should provide.
176 Secondly, and in any event, it must be noted that, subsequent to the letter of 4 March 2011, the applicant had the opportunity, on several occasions, to comment on the method chosen by the Commission for the calculation of the fine. Thus, the Commission points out, without being contradicted, that the applicant commented, in its reply to the statement of objections, on the possibility that the Commission would use the internal supplies of CRT to the two parent companies as a basis for the calculation of the value of the relevant sales. Moreover, the applicant set out, in its reply to the letter of 4 March 2011, observations in which it stated that the Commission should not take into account, in the calculation of the fine, direct EEA sales through transformed products made by Philips. Lastly, it is undisputed that the applicant, by a letter of 7 September 2011, in response to a letter from the Commission of 24 August 2011, submitted extensive observations on the Commission’s approach in relation to the calculation of fines, setting out the reasons why, if the direct EEA sales through transformed products had to be taken into account, those sales should not be included in the calculation of the fine that would be imposed on it in so far as they were made by Philips. In addition, it is undisputed that the applicant again had the opportunity to make its views known during the meeting with the Director of the Cartels Directorate of the Directorate-General (DG) for Competition, on 6 December 2011, during which it repeated its view that it had never formed an economic unit with Philips and that the amount of any fines imposed should be based on each undertaking’s own sales.
177 In the reply, the applicant objects that it made those observations after having been misled by the Commission in relation to the method that the latter would use in the contested decision. On that point, if suffices to note that the applicant’s assertion has no basis in fact since, as indicated in paragraph 175 above, the definitions set out in the letter of 4 March 2011 cannot be regarded as forming part of an explanation of the method adopted by the Commission for the calculation of the fines.
178 In those circumstances, the applicant cannot invoke any breach of its rights of defence.
179 In the second place, the applicant submits that the fact that the fine imposed on it included direct EEA sales through transformed products made by Philips constitutes a manifest error of assessment and a breach of the principle of personal liability.
180 In that respect, it suffices to note that it is clear from the examination of the first part of the present plea in law that the Commission cannot be criticised for attributing liability to the applicant for the infringing conduct of the LPD group or for taking into account, in the calculation of the fine, direct EEA sales through transformed products, including those made by Philips.
181 Accordingly, the second part of the fifth plea in law must be rejected, as must that plea in law in its entirety.
The sixth plea in law, alleging infringement of Article 296 TFEU, a manifest error of assessment, and breach of principles of equal treatment and of sound administration, in that, without stating sufficient reasons, the Commission did not include direct EEA sales through transformed products in the calculation of the fine imposed on Samsung SDI Co.
182 This plea in law is composed of three parts, alleging, first, a manifest error of assessment committed by the Commission in considering that SEC had not exercised decisive influence over the conduct of Samsung SDI Co., secondly, breach of the principle of equal treatment, and, thirdly, breach of the principle of sound administration and infringement of Article 296 TFEU.
– The first part, alleging that the Commission committed a manifest error of assessment in considering that SEC had not exercised decisive influence over the conduct of Samsung SDI Co.
183 The applicant submits that the Commission wrongly concluded that SEC had not exercised decisive influence over the conduct of Samsung SDI Co. It adds that, even if SEC cannot be held liable for the conduct of Samsung SDI Co., the Commission should have examined whether it was appropriate to regard the sales made between SEC and Samsung SDI Co. as intragroup sales and to include the amount of those sales in the calculation of the fine imposed on Samsung SDI Co. as direct EEA sales through transformed products.
184 In that respect, it follows from the case-law cited in paragraphs 33 to 35 above that, contrary to what is claimed by the applicant, the issue of SEC’s liability as a result of Samsung SDI Co.’s conduct and that of the inclusion, in the calculation of the fine imposed on the latter, of direct EEA sales through transformed products cannot be dealt with at the same level. Contrary to what is claimed by the applicant, the answer to the second question depends on the answer to the first. Thus, if SEC did not exercise decisive influence over Samsung SDI Co., then the two undertakings did not constitute a single economic unit and the Commission could not include sales made between SEC and Samsung SDI Co. in the calculation of the fine imposed on the latter as direct EEA sales through transformed products.
185 It is appropriate therefore to examine whether the Commission committed a manifest error of assessment in considering that SEC had not exercised decisive influence over Samsung SDI Co.
186 In that respect, the applicant submits that, under Korean law, SEC exercised a decisive influence over Samsung SDI Co. Thus, it asserts that the Korean Fair Trade Commission has consistently listed Samsung SDI Co. and SEC as part of the same group. It adds that several items in the Commission’s file established the existence of a decisive influence by SEC over Samsung SDI Co. It refers, in particular, to the existence of circular and cross-shareholding relationships between the companies in the Samsung group, the fact that that group was controlled by the same family, that the strategy of that group was determined centrally, that the business operations of Samsung SDI Co. were an integral part of the Samsung group’s five-year research and development investment plan announced in 2005, that there were overlapping management positions, in particular between Samsung SDI Co. and SEC, and that Samsung SDI Co.’s recruitment policy formed part of the recruitment process of the Samsung group.
187 However, it must be pointed out that the applicant does not contest the accuracy of the evidence referred to in recital 745 to the contested decision, according to which SEC’s shareholding in Samsung SDI Co. was less than 20% during the period covered by the infringements at issue, without any special rights, deriving from that shareholding, allowing SEC either to determine Samsung SDI Co.’s commercial conduct or to block strategic decisions. The applicant merely argues that that evidence is not sufficient to find that Samsung SDI Co. and SEC did not constitute a single undertaking for the purpose of competition law, in view of the factors referred to in paragraph 186 above.
188 However, it must be noted that, although it can be seen from all the factors put forward by the applicant that Samsung SDI Co. and SEC and all the other undertakings referred to by the applicant had a particularly close commercial relationship, the applicant has not established that SEC exercised a decisive influence over Samsung SDI Co. and, accordingly, that those two companies constituted an economic unit within the meaning of the case-law cited in paragraph 35 above. Consequently, the Commission did not commit a manifest error of assessment in finding that SEC could not be held liable for the conduct of Samsung SDI Co. Accordingly, the Commission was right not to include the sales made between SEC and Samsung SDI Co. in the calculation of the fine imposed on Samsung SDI Co. as direct EEA sales through transformed products. The first part of the sixth plea in law must therefore be rejected.
– The second part, alleging breach of the principle of equal treatment
189 The applicant submits that, as regards the taking into account of direct EEA sales through transformed products in the calculation of the fine, the Commission did not apply the same methods to all the undertakings and, in particular, to Samsung SDI Co.
190 However, that question was examined during the examination of the fourth part of the fourth plea in law. Accordingly, for the reasons stated in paragraphs 155 to 158 above, the second part of the sixth plea in law must be rejected.
– The third part, alleging infringement of Article 296 TFEU and breach of the principle of sound administration
191 The applicant submits that the Commission breached Article 296 TFEU by failing to indicate the reasons for which it had not included the sales made between SEC and Samsung SDI Co. in the calculation of the fine imposed on Samsung SDI Co. as direct EEA sales through transformed products.
192 In that respect, it must be found that the applicant’s complaint has no basis in fact. It can be seen from recital 1020 to the contested decision that the Commission stated that direct EEA sales through transformed products corresponded to CRTs incorporated intragroup into a final product and subsequently sold to customers in the EEA by one of the addressees of that decision. Accordingly, the contested decision indicates implicitly, but necessarily, that those types of sales concerned only undertakings belonging to the same group. Furthermore, recital 1030 to that decision states the reasons for which Samsung SDI Co. and SEC were not considered to form part of the same group. In those circumstances, the contested decision enabled the applicant to understand in a sufficiently clear and unequivocal manner the reasons for which the amount of direct EEA sales through transformed products were not taken into account in the calculation of the basic amount of the fine imposed on Samsung SDI Co.
193 It follows from the foregoing that, since the applicant has not put forward any evidence capable of establishing that the Commission breached the principle of sound administration by failing to examine carefully and impartially all the relevant aspects of the individual case, the present part of the sixth plea in law must be rejected, as must the sixth plea in law in its entirety.
194 It follows from the foregoing that the claims seeking the annulment of the contested decision must be rejected.
The claims seeking a reduction of the fine
195 In support of its claims, the applicant puts forward a single plea in law, alleging that the fine imposed on it is disproportionate and excessive.
196 It must be recalled that, under Article 23(2) of Regulation No 1/2003, the Commission may by decision impose fines on undertakings which, either intentionally or negligently, infringe Article 101 TFEU, and that, for each undertaking and association of undertakings participating in the infringement, the fines are not to exceed 10% of its total turnover in the preceding business year. Paragraph 3 of that article provides that, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement.
197 It is settled case-law that the amount of the fine must be fixed at a level which takes account of the circumstances and the gravity of the infringement, the latter to be appraised by taking into account, inter alia, the nature of the restrictions on competition (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 176, and Joined Cases T‑213/95 and T‑18/96 SCK and FNK v Commission [1997] ECR II‑1739, paragraph 246). Although the choice of the amount of fines constitutes an instrument of the Commission’s competition policy, used in order to channel the conduct of undertakings towards observance of the competition rules (Case T‑150/89 Martinelli v Commission [1995] ECR II‑1165, paragraph 59, and Case T‑49/95 Van Megen Sports v Commission [1996] ECR II‑1799, paragraph 53), the Court is nevertheless under a duty to verify whether the amount of the fine imposed is proportionate in relation to the gravity and duration of the infringement (Case T‑229/94 Deutsche Bahn v Commission [1997] ECR II‑1689, paragraph 127). The Court must, in particular, weigh the gravity of the infringement and the circumstances invoked by the applicant (Case C‑333/94 P Tetra Pak v Commission [1996] ECR I‑5951, paragraph 48).
198 In the present case, the Commission set the fines imposed on the applicant, in view of the gravity and the duration of the infringements at issue, at EUR 116 536 000, as regards CDTs, and at EUR 179 061 000, as regards CPTs. It also imposed a fine of EUR 69 048 000, as regards CDTs, and of EUR 322 892 000, as regards CPTs, on the applicant jointly and severally with Philips.
199 In order to establish the disproportionate nature of the fines imposed on it, the applicant submits, in the first place, that the high level of the fine is to a large extent due to the taking into account of Philips’ sales of televisions and computer monitors in the EEA, sales in which the applicant had no involvement, but which were nevertheless included in the calculation of the fine. The applicant therefore asserts that it is required to pay EUR 268 million as a result of those sales and that it must also pay an additional amount corresponding to the reduction of 30% granted to Philips under the Leniency Notice. The applicant adds that, whereas, during the joint venture period, Philips’ sales of CPTs in the EEA through transformed products were 36 times larger than those of the applicant, the fine imposed on the applicant is almost twice as high as the fine imposed on Philips.
200 In that respect, it must be recalled that that line of argument has been rejected during the examination of the first part of the fifth plea in law, at the end of which the Court has held that the Commission was entitled to hold the applicant jointly and severally liable in respect of the direct EEA sales through transformed products made by the LPD group, even where those sales had been made through Philips.
201 Furthermore, although the applicant submits that the amount of its fine was increased because of the reduction of 30% granted to Philips under the Leniency Notice, it must be noted that it neither proves nor even alleges that the Commission committed a manifest error of assessment in granting such a reduction to Philips.
202 In the second place, the applicant submits that the inclusion, in the calculation of the fine imposed on it, of the value of direct EEA sales through transformed products, even though the value of such sales was not taken into consideration in the determination of the amount of the fine imposed on Samsung SDI Co., constitutes discrimination against the applicant. The applicant adds that the Commission did not sufficiently investigate the links between Samsung SDI Co. and SEC.
203 In that respect, it suffices to point out that those arguments were rejected during the examination of the sixth plea in law.
204 In the third place, the applicant submits that the Commission imposed a fine on it that far exceeds the Commission’s aim of deterrence, since the Commission has not demonstrated that the cartels affected the sales of televisions and computer monitors, in particular through passing on overcharges.
205 In that respect, it has been indicated in paragraph 143 above that the Commission was not required to prove that the incorporation of cartelised CRTs in televisions and computer monitors had an impact on the prices of those televisions and monitors. Moreover, as noted in paragraph 137 above, the sales of televisions and computer monitors incorporating the cartelised CRTs were not taken into account up to their full value, but only up to the proportion of that value which corresponded to the value of the cartelised CRTs that were incorporated into the televisions and computer monitors, when those products had been sold by the undertaking to which the applicant belongs to independent third parties established in the EEA. In those circumstances, the possibility that the cartels in question did not influence the prices of televisions and computer monitors is not sufficient to prove that the fine is excessive.
206 In the fourth place, the applicant argues that the duration of the administrative procedure, which lasted for more than five years, including 36 months between the statement of objections and the contested decision, was unreasonably long.
207 According to settled case-law, compliance with the requirement that administrative procedures relating to competition policy be conducted within a reasonable time constitutes a general principle of EU law whose observance the EU judicature ensures (Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 40).
208 The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities. That list of criteria is not exhaustive and the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case may be deemed to justify a duration which is prima facie too long (see, to that effect, Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraphs 116 to 117 and the case-law cited).
209 Furthermore, it is clear from the case-law that breach of the ‘reasonable time’ principle may have two types of legal consequences. First, where the breach of the ‘reasonable time’ principle has had an effect on the outcome of the procedure, that breach may entail the annulment of the contested decision (see Technische Unie v Commission, cited in paragraph 207 above, paragraph 48 and the case-law cited).
210 Secondly, where the breach of the ‘reasonable time’ principle has no bearing on the outcome of the procedure, that breach may lead the Court, in the exercise of its unlimited jurisdiction, to give adequate redress for the breach resulting from the failure to adjudicate within a reasonable time in the administrative procedure by reducing, if necessary, the amount of the fine imposed (see, to that effect, Case T‑240/07 Heineken Nederland and Heineken v Commission [2011] ECR II‑3355, paragraphs 429 and 434).
211 For the purposes of the application of that principle, a distinction must be drawn between the two stages of the administrative procedure, namely the investigation stage preceding the statement of objections and the stage corresponding to the remainder of the administrative procedure, each corresponding to its own internal logic (Technische Unie v Commission, cited in paragraph 207 above, paragraph 42).
212 The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, under the powers conferred by the legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned (Technische Unie v Commission, cited in paragraph 207 above, paragraph 43). In that respect, it must be stated that undertakings have a specific interest in the second stage of the procedure being conducted with particular diligence since, by adopting the statement of objections, the Commission evidences its intention to proceed to a decision finding an infringement and it is only on receipt of that statement of objections that an undertaking may take cognisance of the subject-matter of the procedure which is initiated against it and of the conduct of which it is accused.
213 The applicant mainly takes issue with the Commission as regards the unreasonable nature of the second period of the administrative procedure. In that respect, it asserts that the period between the notification of the statement of objections, on 23 November 2009, and the adoption of the contested decision, on 5 December 2012 — more than 36 months — is unreasonable. It adds that the Commission should have used that period to send the statement of objections to the LPD group and asserts that it was not the cause of any delay in that procedure.
214 It should be noted that the first stage of the administrative procedure lasted from 8 November 2007, when the Commission carried out inspections at the premises of several undertakings, to 23 November 2009, when the statement of objections was notified. The second stage of the administrative procedure lasted from 23 November 2009 to 5 December 2012, that is to say, 3 years and 12 days.
215 First, it must be pointed out that, during the first stage of the administrative procedure, the Commission acted diligently and, on 8 and 9 November 2007, carried out inspections, under Article 20(4) of Regulation No 1/2003. Next, between 8 November 2007 and 2 July 2009, the Commission sent several requests to all the CRT producers. It then registered the leniency applications of Samsung, on 11 November 2007, of MEI and its subsidiaries, on 12 November 2007, of Philips, on 27 November 2007, and of Thomson, on 14 March 2008. As the Commission points out, as a result of the significant number of leniency applications in the present case, the Commission had to deal with a voluminous file relating to more than 1 000 collusive contacts, in which much of the information had to be analysed and often completed, including by means of additional requests for information.
216 Secondly, it must be noted that the Commission also acted diligently during the second period. Thus, after adopting the statement of objections, on 23 November 2009, the Commission informed the addressees of that document that they could access the investigation file; it received the written submissions of some of those addressees; it organised an oral hearing held on 26 and 27 May 2010; it received additional submissions from Toshiba and Panasonic, and then MTPD, along with evidence; it sent, on 22 December 2010, a letter of facts to Toshiba and Panasonic, and then MTPD, concerning their decisive influence over MTPD, to which Toshiba replied on 4 February 2011; it informed the addressees of the statement of objections that, from 9 to 12 November 2010, they could access statements made by a Toshiba employee; on 4 March 2011, it sent requests to the addressees of the statement of objections asking them to provide information on their sales and overall turnover, which were followed by further requests to supplement or clarify the data provided; it adopted two supplementary statements of objections intended to supplement, amend and clarify the objections addressed to Philips and LGE; it informed Philips and LGE that they could access the file; it received their written submissions and heard them on 6 September 2012, and, lastly, on 5 July 2012, it sent all the addressees of the statement of objections a new letter of facts, to which Toshiba, Samsung SDI Co. and Panasonic, and then MTPD, responded, on 19, 27 and 31 July 2012 respectively. Finally, the contested decision was adopted on 5 December 2012.
217 It follows from the foregoing that, given the circumstances of the case, the administrative procedure was not of an unreasonable duration. The applicant adds that the supplementary statement of objections differed little from the statement of objections and focused on the liability of the applicant and Philips. However, it must be pointed out that that circumstance is not sufficient to demonstrate the unreasonable nature of the duration of the procedure given the facts noted in the preceding paragraphs concerning the complexity of the file and the diligence with which the Commission conducted the procedure.
218 Thus in the light of all the findings in paragraphs 215 and 216 above, it must be held that the administrative procedure, taken as a whole, was not of an unreasonable duration given the circumstances of the case.
219 In the fifth place, the applicant asks the Court to reduce, in the exercise of its unlimited jurisdiction, the amount of the fine imposed on the applicant if it concludes, as a result of any plea invoked by Philips in the judgment delivered today in Case T‑92/13 Philips v Commission, that the fine imposed on that company should be reduced.
220 In that respect, it must be pointed out that, in the judgment referred to in the previous paragraph, the Court rejects both the claims seeking the annulment of the contested decision in so far as it concerns Philips and those seeking the annulment or the reduction of the fine, with the result that the applicant’s argument must be rejected.
221 Finally, there is no other ground to justify the Court varying the contested decision as far as the amount of the fine is concerned.
222 The Court takes the view, lastly, that there is no public policy ground which it is required to raise of its own motion (see, to that effect, Case C‑272/09 P KME Germany and Others v Commission [2011] ECR I‑12789, paragraph 104) to justify it making use of its power to vary the contested decision with a view to reducing or annulling the fine.
223 It follows from all of the foregoing that the single plea in law put forward in support of the claim seeking the reduction of the fine must be rejected, as must the claims in their entirety, and, accordingly, the present action must be dismissed.
Costs
224 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders LG Electronics, Inc. to pay the costs.
Papasavvas | Forwood | Bieliūnas |
Delivered in open court in Luxembourg on 9 September 2015.
[Signatures]
Table of contents
Background to the dispute
The applicant and the products concerned
Administrative procedure
Contested decision
Procedure and forms of order sought
Law
The claims seeking partial annulment of the contested decision
The second plea in law, alleging manifest error of assessment, infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, and breach of the principle of personal liability, in that the applicant was held liable for infringements committed by the LPD group
– The first part, alleging infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, in that the applicant did not exercise decisive influence over the conduct of the LPD group
– The second part, alleging breach of the principle of personal liability
The first plea in law, alleging breach of the rights of the defence, in that the LPD group was excluded from the proceedings
The seventh plea in law, alleging infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, and breach of the principles of equal treatment and of sound administration, since the contested decision was not addressed to all the participants in the infringements
– The first part, alleging infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003
– The second part, alleging breach of the principles of equal treatment and of sound administration
The third plea in law, alleging infringement of Article 25 of Regulation No 1/2003, in that the contested decision held the applicant liable for offending conduct before 1 July 2001
The fourth plea in law, alleging infringement of Articles 101 TFEU and 296 TFEU and Article 23(2) of Regulation No 1/2003 and breach of the 2006 Guidelines and of the principle of equal treatment, in that the contested decision included direct EEA sales through transformed products in the calculation of the fine (i) without providing sufficient reasons for that inclusion or proof that CRT price increases were passed on to the prices of televisions and computer monitors and (ii) exceeding the Commission’s jurisdiction and discriminating between integrated and non-integrated undertakings
– The first part, alleging infringement of the 2006 Guidelines
– The second part, alleging infringement of Article 101 TFEU and of Article 23(2) of Regulation No 1/2003, in that the Commission has not established that CRT price increases were passed on to the prices of televisions and computer monitors
– The third part, alleging that the Commission did not have jurisdiction to impose fines on the basis of sales made outside the EEA
– The fourth part, alleging breach of the principle of equal treatment and infringement of Article 296 TFEU
The fifth plea in law, alleging infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, breach of the principle of personal liability and of the rights of the defence, and a manifest error of assessment, in so far as the contested decision took into account, in the calculation of the fine, direct EEA sales through transformed products made by Philips
– The first part, alleging infringement of Article 101 TFEU and of Article 23(2) of Regulation No 1/2003, in that the parent companies of the LPD group were held jointly and severally liable for the part of the fine relating to direct EEA sales through transformed products
– The second part, alleging breach of the rights of the defence and of the principle of personal liability and a manifest error of assessment, in that, as regards direct EEA sales through transformed products, the Commission did not follow, in the contested decision, the approach that it had announced in the request for information in relation to that matter, sent on 4 March 2011
The sixth plea in law, alleging infringement of Article 296 TFEU, a manifest error of assessment, and breach of principles of equal treatment and of sound administration, in that, without stating sufficient reasons, the Commission did not include direct EEA sales through transformed products in the calculation of the fine imposed on Samsung SDI Co.
– The first part, alleging that the Commission committed a manifest error of assessment in considering that SEC had not exercised decisive influence over the conduct of Samsung SDI Co.
– The second part, alleging breach of the principle of equal treatment
– The third part, alleging infringement of Article 296 TFEU and breach of the principle of sound administration
The claims seeking a reduction of the fine
Costs