JUDGMENT OF THE COURT (Fourth Chamber)
16 June 2022 (*)
(Appeal – Competition – Agreements, decisions and concerted practices – Optical disk drives – Decision finding an infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 – Single and continuous infringement – Definition – Collusive agreements relating to procurement events concerning optical disk drives for notebook and desktop computers organised by two computer manufacturers)
In Case C‑697/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 September 2019,
Sony Corporation, established in Tokyo (Japan),
Sony Electronics Inc., established in San Diego (United States),
represented by E. Kelly, N. Levy and R. Snelders, avocats,
appellants,
the other party to the proceedings being:
European Commission, represented by A. Dawes, M. Farley, F. van Schaik and L. Wildpanner, acting as Agents,
defendant at first instance,
THE COURT (Fourth Chamber),
composed of K. Jürimäe (Rapporteur), President of the Third Chamber, acting as President of the Fourth Chamber, S. Rodin and N. Piçarra, Judges,
Advocate General: G. Pitruzzella,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after hearing the Opinion of the Advocate General at the sitting on 3 June 2021,
gives the following
Judgment
1 By their appeal, Sony Corporation and Sony Electronics Inc. (together ‘the appellants’) seek to have set aside the judgment of the General Court of the European Union of 12 July 2019, Sony and Sony Electronics v Commission (T‑762/15, EU:T:2019:515, ‘the judgment under appeal’), by which the General Court dismissed their action seeking, principally, the partial annulment of Commission Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 – Optical disk drives) (‘the decision at issue’), to the extent that it concerns them, and, in the alternative, the reduction in the amount of the fine imposed on them.
Legal context
2 Article 23(2) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) provides:
‘2. The [European] Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:
(a) they infringe Article [101 or 102 TFEU]; or
(b) they contravene a decision ordering interim measures under Article 8; or
(c) they fail to comply with a commitment made binding by a decision pursuant to Article 9.
…
Where the infringement of an association relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by the infringement of the association.
3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
3 Article 27(2) of that regulation provides:
‘The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the competition authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competition authorities of the Member States, or between the latter, including documents drawn up pursuant to Articles 11 and 14. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.’
4 Article 31 of that regulation is worded as follows:
‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’
5 As regards the calculation of the fines, points 6 and 13 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘Guidelines on the method of setting fines’) provide:
‘6. The 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. Reference to these factors provides a good indication of the order of magnitude of the fine and should not be regarded as the basis for an automatic and arithmetical calculation method.
…
13. In 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 European Economic Area (EEA)]. …’
Background to the dispute and the decision at issue
6 The background to the dispute is set out in paragraphs 1 to 37 of the judgment under appeal and, for the purposes of the present proceedings, can be summarised as follows.
7 The Sony Group, to which the appellants belong, manufactures audio, video, communications and information technology products for the consumer and professional markets and is a provider of entertainment content, products and services.
8 The first appellant, Sony Corporation, which is a stock corporation governed by Japanese law, is the group’s ultimate parent company. The second appellant, Sony Electronics, is a wholly owned indirect subsidiary of Sony Corporation and is established in the United States. Sony Electronics, which is governed by the laws of Delaware (United States), carries out research and development, design, engineering, sales, marketing, distribution, and customer service activities.
9 Between May 2003 and March 2007, Lite-On designed and manufactured optical disk drive (‘ODD’) products ultimately sold under the Sony brand on the basis of revenue-sharing arrangements. Under those arrangements, sales responsibility was in general conferred upon the appellants while Lite-On was responsible for quality and engineering issues.
10 The infringement at issue concerns ODDs used, in particular, in personal computers (desktops and notebooks) produced by Dell Inc. and Hewlett Packard (‘HP’).
11 Dell and HP are the two most important original equipment manufacturers on the global market for personal computers. Those two companies use standard procurement procedures carried out on a global basis which involve, inter alia, quarterly negotiations over a worldwide price and overall purchase volumes with a limited number of pre-qualified ODD suppliers.
12 The procurement procedures include requests for quotations, electronic requests for quotations, internet negotiations, e-auctions and bilateral (offline) negotiations. At the end of a procurement procedure, clients assign volumes to participating ODD suppliers in accordance with the prices that they offer.
13 Sony Electronics was, together with Sony Corporation, the legal entity participating on behalf of Sony in the procurement events organised by Dell and continued to do so until 1 April 2007.
14 On 14 January 2009, the Commission received a request for immunity under its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) lodged by Koninklijke Philips NV. On 29 January and 2 March 2009, that request was supplemented to include, alongside that company, Lite-On IT Corporation and their joint venture Philips & Lite-On Digital Solutions Corporation.
15 On 30 June 2009, the Commission granted conditional immunity to Koninklijke Philips, Lite-On IT and Philips & Lite-On Digital Solutions.
16 On 18 July 2012, the Commission sent a statement of objections to 13 suppliers of ODDs, including the appellants (‘the statement of objections’), in which it stated that they had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’) by participating in a cartel concerning ODDs from 5 February 2004 until 29 June 2009 consisting in orchestrating their behaviour in bidding events organised by two computer manufacturers, namely Dell and HP.
17 On 29 October 2012, in reply to the statement of objections, the appellants submitted their written comments. A hearing was held on 29 and 30 November 2012, in which all the addressees of the statement of objections participated.
18 On 21 October 2015, the Commission adopted the decision at issue.
19 In that decision, the Commission considered that the cartel participants had coordinated their competitive behaviour, at least between 23 June 2004 and 25 November 2008. It specified that that coordination took place through a network of parallel bilateral contacts. It stated that the cartel participants sought to accommodate their volumes on the market and ensure that the prices remained at levels higher than they would have been in the absence of those bilateral contacts.
20 The Commission specified, in the decision at issue, that the coordination between the cartel participants concerned the customer accounts of Dell and HP. According to the Commission, in addition to bilateral negotiations with their ODD suppliers, Dell and HP applied standardised procurement procedures, which took place at least on a quarterly basis. The Commission stated that the cartel members used their network of bilateral contacts to manipulate those procurement procedures, thus thwarting their customers’ attempts to stimulate price competition.
21 According to the Commission, regular exchanges of information in particular enabled the cartel members to possess a very complex knowledge of their competitors’ intentions even before they had entered the procurement procedure, and therefore to foresee their competitive strategy.
22 The Commission added that, on a regular basis, the cartel members exchanged pricing information regarding specific customer accounts as well as information unrelated to pricing, such as existing production, supply capacity, inventory status, the qualification status, and timing of the introduction of new products or upgrades. The Commission stated that, in addition, the ODD suppliers monitored the final results of closed procurement events, namely the rank, the price and the volume obtained.
23 The Commission further stated that, whilst knowing that they must keep their contacts secret from customers, to contact each other, ODD suppliers used the means they deemed sufficiently appropriate to achieve the desired result. The Commission stated, in addition, that an attempt to convene an initial meeting in order to hold regular multilateral meetings between those suppliers had failed in 2003, after having been revealed to a customer. According to the Commission, instead of those meetings, there were bilateral contacts, mostly via phone calls and, from time to time, also via emails, including private email addresses and instant messaging services, or meetings, mostly at the level of global account managers.
24 The Commission found that the cartel participants contacted each other regularly and that the contacts, mainly by telephone, became more frequent around the procurement events, amounting to several calls per day between some pairs of cartel participants. It stated that, generally, contacts between some pairs of cartel participants were significantly higher than between other pairs.
25 As regards the calculation of the amount of the fine imposed on the appellants, the Commission relied on the Guidelines on the method of setting fines.
26 First of all, in order to determine the basic amount of the fine, the Commission considered that, in view of the considerable differences in the duration of the ODD suppliers’ participation in the cartel and in order better to reflect the actual impact of the cartel, it was appropriate to use an annual average calculated on the basis of the actual value of sales made by the undertakings concerned during the full calendar months of their respective participation in the infringement.
27 The Commission thus explained that the value of sales was calculated on the basis of sales of ODDs for personal computers invoiced to HP and Dell entities located in the EEA.
28 The Commission further considered that, since the anticompetitive conduct with regard to HP had begun later and in order to take the evolution of the cartel into account, the relevant value of sales would be calculated separately for HP and for Dell, and that two duration multipliers would be applied.
29 As regards the appellants, as their participation in the contacts concerning HP had not been established, the Commission found them liable only for their coordination with respect to Dell.
30 Next, the Commission decided that, since price coordination agreements are by their very nature among the worst kind of infringements of Article 101 TFEU and Article 53 of the EEA Agreement, and since the cartel covered at least the whole of the EEA, the percentage for gravity used in this case would be 16% for all addressees of the decision at issue.
31 Furthermore, the Commission stated that, given the circumstances of the case, it had decided to add a further 16% for deterrence.
32 In addition, the Commission reduced the amount of the fine imposed on the appellants by 3% in order to take into account the fact that they had not been aware of the part of the single and continuous infringement concerning HP, in order to reflect in an adequate and sufficient manner the less serious nature of their conduct.
33 Lastly, the Commission considered that, as the appellants had had a worldwide turnover of EUR 59 252 000 000 during the business year preceding the adoption of the decision at issue, it was appropriate to apply a multiplier of 1.2 to the basic amount.
34 The operative part of the decision at issue, in so far as it concerns the appellants, reads as follows:
‘Article 1
The following undertakings infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous infringement, which consisted of several separate infringements, in the [ODD] sector covering the whole of the EEA, which consisted of price coordination arrangements:
…
(f) [the appellants] from 23 August 2004 to 15 September 2006, for their coordination with regards to Dell.
…
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
…
(f) [the appellants], jointly and severally liable: EUR 21 024 000
…’
The procedure before the General Court and the judgment under appeal
35 By application lodged at the Registry of the General Court on 31 December 2015, the appellants brought an action seeking, principally, the annulment of the decision at issue in so far as it concerns them or, in the alternative, the reduction of the amount of the fine which had been imposed on them.
36 In support of their action, the appellants raised two pleas, the first relating, in essence, to the existence of an infringement of Article 101(1) TFEU, and the second, raised in the alternative, relating to the calculation of that fine.
37 By the judgment under appeal, the General Court rejected those pleas and, therefore, dismissed the action in its entirety.
Forms of order sought
38 By their appeal, the appellants claim that the Court should:
– set aside the judgment under appeal;
– grant the forms of order sought at first instance;
– order the Commission to bear the costs, including the costs of the proceedings at first instance; and
– in the alternative, refer the case back to the General Court and reserve the costs relating to the proceedings at first instance and on appeal.
39 The Commission contends that the Court should:
– dismiss the appeal; and
– order the appellants to pay all of the costs incurred in the present proceedings.
The appeal
40 In support of their appeal, the appellants raise four grounds of appeal which concern, in essence, the findings by the General Court, first, that there was a single and continuous infringement, second, the duration of that infringement, third, that there were several separate infringements and, fourth, the amount of the fine imposed on them.
41 The Court considers it appropriate to examine the third ground of appeal before considering the first, second and fourth grounds of appeal.
The third ground of appeal
Arguments of the parties
42 The third ground of appeal is divided into two parts.
– First part of the third ground of appeal
43 By the first part of the third ground of appeal, the appellants submit that the General Court erred in law in finding that the Commission had not infringed their rights of defence by criticising them, for the first time, in the decision at issue, for having participated in several separate infringements.
44 The statement of objections, in particular in recitals 310, 317 and 318, identified the existence of a single and continuous infringement. The Commission considered, they submit, that it would be artificial to split up the alleged conduct into separate infringements. However, in the decision at issue, the Commission suggested, for the first time, that the single and continuous infringement consisted of several separate infringements. That decision thus differs substantially from the characterisation made in the statement of objections and, therefore, the appellants were not given the opportunity, before the adoption of that decision, of contesting the characterisation of each individual contact as a separate and independent infringement.
45 In that regard, by holding, in paragraphs 238, 239 and 246 of the judgment under appeal, that a single and continuous infringement is necessarily made up of separate infringements, the General Court arrived at a conclusion that was contrary to the case-law of the General Court and the Court of Justice, which envisages not the necessity, but merely the possibility of a single and continuous infringement being made up of separate infringements. In so doing, the General Court made an error of law which led it not to find that the Commission had infringed the appellants’ rights of defence.
46 In its defence, the Commission makes, in the first place, two general comments before replying to the arguments developed under the two parts of the appellants’ third ground of appeal.
47 First, the Commission submits that the appellants’ arguments as to the incidental finding by the Commission, in the decision at issue, that their anticompetitive contacts also constituted several separate infringements are ineffective. The General Court confirmed the main finding by the Commission as to the existence of a single and continuous infringement and as to the appellants’ participation in that infringement between 23 August 2004 and 15 September 2006. That confirmation alone justifies the conclusion in Article 1(f) of the decision at issue as well as the fine imposed on the appellants pursuant to Article 2(f) of that decision.
48 The Commission contends, second, that the appellants’ arguments rest on the erroneous premiss that the General Court held that a single and continuous infringement of Article 101(1) TFEU is necessarily composed of several separate and independent infringements of that provision. The General Court merely considered, in paragraphs 237 and 238 of the judgment under appeal, that a single and continuous infringement presupposes a ‘complex of practices’ which may, in themselves, be characterised as separate infringements. The General Court added, in essence, in paragraphs 235, 236 and 239 to 244 of the judgment under appeal, that, in the present case, the single and continuous infringement in fact consisted of separate infringements on the subject of which the appellants had been heard.
49 In the second place, as regards more specifically the first part of the third ground of appeal, the Commission submits, first, that it is based on an incorrect factual hypothesis. It is clear from paragraphs 236 to 241 of the judgment under appeal that the statement of objections had already informed the appellants about the separate infringements in question.
50 Secondly, the Commission submits that the findings set out in paragraphs 236, 241 and 242 of that judgment are findings of fact that cannot be challenged in the context of an appeal.
51 Thirdly, the Commission submits that the appellants’ assertion that it did not hear them on the individual infringements is contradicted by the clear wording of recitals 353, 354 and 375 of the statement of objections and is based on a misinterpretation of the case-law, since the Court of Justice has already held that one or more elements of a series of actions or of a continuous course of conduct could individually and in themselves constitute an infringement of Article 101 TFEU.
52 Fourthly, the Commission submits that, contrary to the appellants’ arguments, the finding of a single and continuous infringement is not subject to the existence of several separate infringements. The Commission submits that appellants were heard both on the finding of the single and continuous infringement in question and on that of the separate infringements of which it was constituted, with the result that their rights of defence were not infringed. The appellants were put in a position, during the administrative procedure, to understand that the forms of conduct of which that single and continuous infringement was constituted were also alleged against them.
– The second part of the third ground of appeal
53 By the second part of their third ground of appeal, the appellants allege that the General Court committed an error of law in finding that the decision at issue was sufficiently reasoned regarding the existence of several separate infringements.
54 The appellants allege that the Commission failed to explain, in the decision at issue, for each aspect of conduct and each set (or several sets) of bilateral contacts that allegedly amounted to a separate infringement, (i) the nature and scope of that infringement; (ii) whether it constituted an agreement or a concerted practice within the meaning of Article 101 TFEU; (iii) the reasons and evidence supporting such characterisation; (iv) the undertakings that should be held liable for each separate infringement; and (v) why, contrary to the Commission’s position in the statement of objections, it was no longer artificial to identify several separate infringements.
55 The appellants submit that, by failing to acknowledge that the scope of the separate infringements had never been described or explained, the General Court committed an error of law. It held, in paragraph 254 of the judgment under appeal, that the Commission had been correct to find that the finding of a single and continuous infringement necessarily validated its findings as to the existence of several separate infringements.
56 The Commission considers that the second part of the third ground of appeal must be rejected as being unfounded.
57 The Commission submits that the General Court was entitled to find that the main finding of a single and continuous infringement and the incidental finding of separate infringements are consistent as between themselves. First, it submits that the appellants’ claim that, in the judgment under appeal, the General Court rejected their arguments because it held the erroneous belief that the findings on the single and continuous infringement necessarily validated those as to the existence of several separate infringements, distorts the content of paragraph 254 of the judgment under appeal. Secondly, the appellants were in a position to be able to understand the reasons for the decision at issue and had the opportunity of submitting their arguments on each of the anticompetitive contacts that were imputed to them. Thirdly, it is clear from the judgment of 23 November 2006, Asnef-Equifax and Administración del Estado (C‑238/05, EU:C:2006:734, paragraphs 30 to 32), that, where it is established that the elements for an infringement of Article 101(1) TFEU are present, it is irrelevant whether the collusion concerned should be characterised as an agreement or a concerted practice. In that regard, the General Court recognised, in paragraph 257 of the judgment under appeal, that the appellants submitted, wrongly, that the decision at issue should have individually classified the separate infringements as ‘agreements’ or ‘concerted practices’.
Findings of the Court
58 By their third ground of appeal, the appellants allege that the General Court made several errors of law by holding that a single and continuous infringement necessarily consists of a series of separate infringements. That led it wrongly to hold, first, that the Commission had not infringed their rights of defence and, second, the Commission had provided sufficient reasons in the decision at issue as to the separate infringements imputed to the appellants.
59 In that regard, it must be observed that in Article 1(f) of the decision at issue the Commission found, in essence, first, that there was a single and continuous infringement and, second, that that infringement consisted of ‘several separate infringements’.
60 In that context, the third ground of appeal seeks to challenge only the assessment, by the General Court, of the second finding, which relates to the existence of several separate infringements. By contrast, this ground of appeal does not relate to its assessment of the finding, which appears in that provision, that the appellants participated in a single and continuous infringement.
61 It follows that, contrary to the Commission’s submission, to the extent that in the present case it has based the decision at issue on two distinct findings of infringement, the third ground of appeal cannot, at the outset, be dismissed as ineffective.
– Preliminary observations
62 It is clear from well-established case-law that an infringement of Article 101(1) TFEU may be the result not only of an isolated act, but also of a series of acts or of continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).
63 An undertaking which has participated in such a single and continuous infringement through its own conduct, which fell within the definition of an ‘agreement’ or a ‘concerted practice’ having an anticompetitive object for the purposes of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may accordingly be liable also in respect of the conduct of other undertakings in the context of that infringement throughout the period of its participation in the infringement (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited).
64 As the Advocate General observed in point 59 of his Opinion, the participation by an undertaking in a single and continuous infringement does not require its direct participation in all the anticompetitive conduct of which that infringement is comprised (judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission, C‑702/19 P, EU:C:2020:857, paragraph 82 and the case-law cited).
65 The third ground of appeal must be examined in the light of those considerations.
– First part of the third ground of appeal
66 By the first part of their third ground of appeal, the appellants submit that the General Court erred in law by rejecting their argument that the Commission infringed their rights of defence by criticising them, for the first time, in the decision at issue, in addition to their participation in a single and continuous infringement, for participating in several separate infringements corresponding to the forms of conduct of which that single and continuous infringement was comprised.
67 It should be recalled, first, that the concept of a ‘single and continuous infringement’ presupposes a complex of practices that may also constitute, in themselves, an infringement of Article 101(1) TFEU. While a complex of practices may be legally characterised, under the conditions set out in paragraphs 63 and 64 of this judgment, as a single and continuous infringement, it cannot be deduced therefrom that each of those forms of conduct must, in itself and taken in isolation, necessarily be characterised as a separate infringement of that provision. In order to do so, the Commission must go on to identify and legally characterise as such each of those forms of conduct and, next, adduce proof of the involvement of the undertaking concerned to which those practices are imputed.
68 In that regard, the Court of Justice has already held that a Commission decision categorising a global cartel as a single and continuous infringement can be divided in that manner only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 46).
69 Secondly, as regards the rights of the defence, according to settled case-law, in all proceedings in which penalties, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be fully complied with by the Commission (see, to that effect, judgment of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 94 and the case-law cited).
70 As the General Court rightly recalled in paragraph 230 of the judgment under appeal, Regulation No 1/2003 provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the proceedings. That statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law, which requires observance of the rights of the defence in all proceedings capable of leading to the imposition of a penalty. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that that undertaking may submit its arguments effectively in the administrative procedure brought against it (see, to that effect, judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraphs 35 and 36 and the case-law cited).
71 It is true that, as the Advocate General recalled in point 88 of his Opinion, it is permissible for the Commission to qualify, in its final decision, the legal characterisation of the facts that it found, provisionally, in the statement of objections, taking account of the information that emerges during the administrative procedure, either withdrawing objections which turned out to be unfounded, or structuring and supplementing in fact and in law its arguments in support of the objections that it upholds (see, to that effect, judgment of 5 December 2013, SNIA v Commission, C‑448/11 P, not published, EU:C:2013:801, paragraphs 42 to 44). However, that means that the Commission must, in the statement of objections, set out each legal characterisation of the facts that it envisages upholding in its final decision.
72 Therefore, the rights of defence of the undertaking concerned are infringed as a result of a discrepancy between the statement of objections and the final decision only where an objection that is upheld in the latter had not been set out in the statement of objections or if it had not been set out in a manner sufficient to enable the addressees of that statement effectively to make their arguments in the context of the procedure brought against them.
73 It follows that, where the Commission intends to allege against the addressees of a statement of objections not only a single and continuous infringement, but also each of the forms of conduct comprising that infringement taken individually as separate infringements, observance of the rights of defence of those addressees requires the Commission to set out, in that statement, the necessary elements to enable them to understand that the Commission alleges against them both that single and continuous infringement and each of those separate infringements.
74 In the present case, it must be observed that the General Court recalled, in paragraphs 229 to 234 of the judgment under appeal, the case-law relating to observance of the rights of the defence in the context of a procedure that could lead to a finding of an infringement of Article 101(1) TFEU, including that set out in paragraphs 70 and 71 of this judgment.
75 The General Court next examined, in paragraphs 235 to 246 of the judgment under appeal, whether the appellants had been informed, in the statement of objections, that the Commission considered that the single and continuous infringement consisted of different bilateral agreements.
76 In that context, it considered, in paragraphs 238 and 239 of that judgment, that the concept of a ‘single and continuous infringement’ presupposes a ‘complex of practices’ and that, therefore, the appellants could not claim that the Commission had changed its conclusions by finding, in addition to a single and continuous infringement, several bilateral contacts, given that those bilateral contacts were precisely what constituted that single infringement.
77 Thus, as stated in paragraph 246 of that judgment, the General Court started from the premiss that each of those forms of conduct comprising the single and continuous infringement must necessarily be characterised as a separate infringement. It therefore held that the appellants must have understood that the Commission could infer therefrom that all the bilateral contacts in which they were found to have engaged, in the statement of objections, in themselves constituted such separate infringements.
78 By so doing, the General Court erred in law. Contrary to what the General Court held in paragraphs 238, 239 and 246 of the judgment under appeal, by confusing, moreover implicitly, the concept of ‘conduct’ and that of ‘infringement’ the appellants could not understand, in the absence of any clear indication in the statement of objections, that the Commission intended to allege against them, not only the single and continuous infringement alleged in that statement, but also several separate infringements consisting of the different bilateral contacts referred to in that statement.
79 It follows that the General Court could not, without erring in law, hold that the Commission had not infringed the appellants’ rights of defence, since the statement of objections did not contain the essential elements found against them as regards those separate infringements, in particular the legal characterisation envisaged for the forms of conduct alleged against them.
80 Accordingly, the first part of the third ground of appeal must be upheld.
– The second part of the third ground of appeal
81 By the second part of their third ground of appeal, the appellants allege that the General Court committed an error of law in concluding, in paragraph 254 of the judgment under appeal, that the decision at issue was sufficiently reasoned regarding the existence of several separate infringements.
82 In that regard, it must be recalled, first, as the General Court stated in paragraph 249 of the judgment under appeal, that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court of the European Union to exercise its power of review. 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 (judgment of 10 July 2019, Commission v Icap and Others, C‑39/18 P, EU:C:2019:584, paragraph 23 and the case-law cited).
83 Secondly, as follows from paragraphs 62 to 64 and 67 of this judgment, it cannot be deduced from the fact that the Commission legally characterised a complex of practices as a single and continuous infringement that each of those practices in itself and taken in isolation must necessarily be characterised as a separate infringement. If the Commission decides to characterise the forms of conduct at issue as separate infringements and to impute them to the appellants, it must also examine them individually and prove their unlawful nature as well as the involvement of the appellants in each of those forms of conduct.
84 It follows that, where the Commission intends to criticise the appellants for having participated not only in a ‘single and continuous infringement’ but also in several separate infringements corresponding to the forms of conduct which comprised that infringement, it must clearly specify and give reasons for the legal characterisation as a separate infringement that it gives to each of those forms of conduct.
85 In the present case, the General Court recalled, in paragraph 251 of the judgment under appeal, that the statement of reasons for a decision adopted by the Commission to ensure the application of the competition rules must be logical and, in particular, contain no internal inconsistency that would prevent a proper understanding of the reasons underpinning the measure.
86 It is in that context that the General Court held, in paragraph 254 of the judgment under appeal, that there was therefore no inconsistency, in recital 352 of the decision at issue, in that the Commission stated therein that the contacts at issue constituted individual infringements and at the same time met the criteria for a single and continuous infringement. It found, in paragraphs 255 to 258 of that judgment, that the Commission had satisfied its obligations under Article 296 TFEU to state reasons, since it had explained clearly the scope and nature of the appellants’ conduct which it had considered to constitute an infringement of Article 101 TFEU and that it had set out the evidence underpinning those conclusions.
87 However, in so doing, the General Court committed an error of law. Contrary to the General Court’s ruling, the statement of reasons for the finding of several separate infringements that the appellants were alleged to have committed, as it appears in recital 352 of that decision, is insufficient. Thus, that recital states that, on the basis of the facts set out in Section 4 and in Annex I to that decision, any aspect of conduct adopted with regard to the clients concerned or of any set (or several sets) of bilateral contact had the object of restricting competition and therefore constitutes an infringement of Article 101 TFEU, but without the Commission having stated the reasons why it was appropriate, according to it, to impute to the appellants each of the forms of conduct alleged against them not only as constituting a ‘single and continuous infringement’ but also as constituting several separate infringements of Article 101 TFEU.
88 It follows that, in holding that the Commission had satisfied its obligation to state reasons for the decision at issue finding that the appellants had, in addition to their participation in a single and continuous infringement, also participated in several separate infringements, the General Court committed an error of law.
89 Therefore, the second part of the appellants’ third ground of appeal and, consequently, that ground in its entirety must be upheld.
The first ground of appeal
Arguments of the parties
90 By their first ground of appeal, the appellants submit that the General Court erred in law by wrongly substituting its own reasoning for that of the decision at issue, while also upholding the conclusion in that decision that the appellants had participated in a single and continuous infringement. They submit that the General Court essentially accepted the appellants’ argument that the Commission had not proven the anticompetitive nature of a number of contacts that were attributed to them, namely contacts 3, 8, 10 and 14. However, rather than examine whether, for that reason, the finding in the decision at issue as to the existence of a single and continuous infringement composed of several separate infringements was without foundation, the General Court considered that all of the contacts involving the appellants were capable of contributing to a body of evidence which made it possible to substantiate the finding of a single and continuous infringement, even if not all of those anticompetitive contacts were proven.
91 The appellants submit that, in assessing whether the Commission had adduced sufficient evidence in order to characterise a form of conduct as constituting a single and continuous infringement, the General Court had accepted the appellants’ criticism of the decision at issue that the Commission had not proven the anticompetitive nature of a number of contacts attributed to them. In so doing, the General Court was bound, according to the appellants, to examine whether the conclusion of the decision at issue as to the existence of a single and continuous infringement comprised of several separate infringements was well founded. In the decision at issue the Commission did not in fact adopt an approach of a body of evidence, but started from the premiss that each contact alleged constituted an independent infringement and that those separate infringements were part of an overall plan that together constituted a single and continuous infringement. On the contrary, the General Court held that all the contacts involving the appellants, even if they did not all constitute proven anticompetitive contacts, were capable of contributing to a body of evidence that could support the finding of a single and continuous infringement.
92 Thus, the appellants submit that, by substituting its reasoning for that set out by the Commission in the decision at issue, the General Court committed an error of law.
93 The Commission disputes the merits of the first ground of appeal.
Findings of the Court
94 By its first ground of appeal the appellants criticise the General Court for having wrongly substituted its own reasoning for that of the Commission in the decision at issue as regards the assessment of the existence of a single and continuous infringement.
95 In that regard, it must be recalled that the Courts of the European Union cannot alter the constituent elements of the infringement lawfully determined by the Commission in the decision at issue either in the context of the review of legality or when exercising their unlimited jurisdiction. According to the Court’s case-law, those courts cannot, in the context of the review of legality referred to in Article 263 TFEU, substitute their own reasoning for that of the author of the contested act. The unlimited jurisdiction enjoyed by the General Court on the basis of Article 31 of Regulation No 1/2003 concerns solely the assessment by that Court of the fine imposed by the Commission (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 50 and the case-law cited).
96 It must therefore be ascertained whether the General Court altered, as the appellants submit, the constituent elements of the single and continuous infringement lawfully determined by the Commission in the decision at issue.
97 In the first place, as regards contacts 8 and 10, the General Court held, in paragraphs 131 and 138 of the judgment under appeal, that the involvement of the appellants in those contacts could only be assumed, but that those contacts were, nevertheless, capable of contributing to a body of evidence that made it possible to substantiate the finding of a single and continuous infringement. As regards contact 3, the General Court held, in paragraph 187 of that judgment, that, whilst that contact did not appear to reveal directly relevant information, it was at least evidence of the appellants’ desire to obtain information on their competitors in order to reduce uncertainty in terms of future strategy and, on that basis, appeared to be capable of contributing to a body of evidence.
98 Thus, contrary to the appellants’ submissions, the General Court did not place the anticompetitive nature of contacts 3, 8 and 10 in doubt.
99 As regards contact 14, the General Court found, in paragraph 141 of the judgment under appeal, that the Commission had not drawn any conclusion in the decision at issue relating to that contact.
100 However, it must be observed that, contrary to the General Court’s finding, the Commission in fact based the decision at issue on the contacts referred to in Annex I to that decision, which includes contact 14. Nevertheless, that error by the General Court did not have any consequence for the confirmation of the participation of the appellants in the single and continuous infringement at issue.
101 In the second place, it must be observed that, contrary to the appellants’ submission, it is clear from the decision at issue that the Commission relied on a body of evidence to prove the single and continuous infringement that it alleged against them. Thus, by way of example, it should be noted that it explicitly recalled, in recital 322 of the decision at issue, first, that it was necessary for it to set out sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement had taken place, but that it was not necessary for every item of evidence it produced to satisfy those criteria in relation to every aspect of the infringement, and, second, that it was sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.
102 In that context, the Commission also explicitly referred to the body of evidence in recitals 92, 220, 325, 334 and 425 of the decision at issue.
103 Therefore, it cannot be held that, by referring to a body of evidence, the General Court substituted its own reasoning for that set out by the Commission in the decision at issue. On the contrary, in essence it confirmed that the Commission’s approach of relying on a body of evidence to establish the existence of a single and continuous infringement was consistent with the case-law relating to the proof of an infringement under Article 101 TFEU.
104 Therefore, the first ground of appeal must be rejected as unfounded.
The second ground of appeal
105 The appellants’ second ground of appeal is divided into two parts.
First part of the second ground of appeal
– Arguments of the parties
106 By the first part of the second ground of appeal it is alleged that the General Court committed an error of law in concluding that the appellants had participated in a single and continuous infringement between 23 August 2004 and 15 September 2006.
107 The appellants submit, first, that, in the light of the General Court’s case-law, it is necessary for the anticompetitive contacts to be sufficiently proximate in time for it to be possible to find that there was a single and continuous infringement. Likewise, in the judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773, paragraphs 50 to 52), the Court found that for products where price setting took place on an annual basis, it was appropriate to verify if the Commission had established at least annual instances of participation by the undertakings concerned in the cartel.
108 According to the appellants, in the judgment under appeal the General Court did not assess whether, taking into account the unproven contacts, the appellants’ participation in the infringement remained uninterrupted. The General Court stated, in paragraph 220 of that judgment, that some of the 12 contacts imputed to the appellants were not proven. In particular, the General Court accepted, in paragraph 141 of that judgment, that the Commission had not drawn any conclusion from contact 14, which should have led it to find that, for a period of about eight months, the appellants had had no anticompetitive contact.
109 The appellants submit that the General Court did not analyse whether, in the light of the real functioning of the market, an interval of about eight months without any proven anticompetitive contact called into question the appellants’ participation in the single and continuous infringement at issue. Thus, by not drawing the appropriate conclusions from its own findings, the General Court committed an error of law.
110 The Commission contests that line of argument.
– Findings of the Court
111 By the first part of their second ground of appeal, the appellants submit that the General Court erred in law in finding that they had participated in a single and continuous infringement between 23 August 2004 and 15 September 2006, without having taken into consideration its own findings that there was an interval of about eight months between two of the contacts in which the appellants participated.
112 In that regard, it must be noted that an undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 43 and the case-law cited).
113 It also follows that, in such cases, the fact that an undertaking has not taken part in all aspects of an anticompetitive scheme or that it played only a minor role in the aspects in which it did participate is to be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the amount of the fine (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 54).
114 In addition, in the context of an infringement extending over a number of years, the fact that a cartel reveals itself at different periods, which may be separated by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement (judgment of 21 September 2006, Technische Unie v Commission, C‑113/04 P, EU:C:2006:593, paragraph 169).
115 In the present case, it should be observed that the General Court examined, in paragraphs 197 to 222 of the judgment under appeal, the appellants’ allegation that there was a lack of evidence to support the Commission’s finding of a single and continuous infringement.
116 The General Court first recalled, in paragraphs 199 to 202 of that judgment, the relevant case-law relating to the Commission’s obligations as regards proving a single and continuous infringement. It next stated, in paragraph 206 of the judgment, as regards the question whether the Commission was required to assess whether the periods separating the contacts were sufficiently short for a single and continuous infringement to be established, the fact that evidence of the existence of a single and continuous infringement was not observed for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia.
117 Finally, as regards, more specifically, the number of the appellants’ alleged contacts, the General Court held, in paragraph 220 of the judgment under appeal, that, even if account is taken of the fact that there were only 12 contacts and some of them are not absolutely proved, the number of the appellants’ contacts cannot be classified as minor.
118 Thus, the criticism cannot be successfully made against the General Court that it did not take into consideration a possible interval of about eight months between two of those contacts.
119 Firstly, contrary to the appellants’ assertion, the General Court did not find, in paragraph 220 of the judgment under appeal, that some of the contacts were not established. The Court merely considered the hypothesis in which some of the 12 contacts attributed to the appellants were not absolutely proved and inferred, in comparison with the situation of other participants in the cartel, that, even under that hypothesis, the appellants’ participation in the single and continuous infringement was not called into question.
120 Secondly, as regards more specifically contact 14, it should be recalled that the lack of proof of anticompetitive contacts for certain given periods does not preclude a finding of a single and continuous infringement, provided that that finding is based on objective and consistent indicia and that the various actions which form part of the infringement pursue a single aim, under the conditions set out in paragraph 114 of this judgment.
121 It is precisely that reasoning which the General Court correctly followed. Thus, in paragraphs 208 to 216 of the judgment under appeal, it held that the Commission had correctly shown that the appellants were aware of the existence of a common objective and that they intentionally contributed to the economic and anticompetitive aim of the cartel.
122 In those circumstances, an interval of about eight months between two of those contacts in which the appellants participated, even assuming it to be established, cannot be such as to call into question their participation in the single and continuous infringement at issue.
123 In any event, the appellants cannot rely on the judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773), to support the argument that the General Court should have verified whether an interval of approximately eight months without any demonstrated anticompetitive contact called into question the appellants’ participation in the alleged single and continuous infringement. Whereas paragraphs 50 to 52 of that judgment concerns an analysis of facts particular to that case, the Court recalled in paragraph 53 of that judgment that, in the context of an infringement extending over a certain period, the fact that a cartel reveals itself at different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single aim and fall within the framework of a single and continuous infringement.
124 Consequently, the first part of the second ground of appeal must be rejected as unfounded.
Second part of the second ground of appeal
– Arguments of the parties
125 By the second part of their second ground of appeal, the appellants criticise the General Court for having breached its obligation to give reasons by basing the judgment under appeal on inconsistent grounds. The reasoning in the judgment under appeal is internally inconsistent as regards their participation in the single and continuous infringement. They submit that the statement, in paragraph 207 of the judgment, that the intervals between the contacts were generally not more than two or three months contradicts the finding, in paragraph 141 of that judgment, that contact 14 was not established. If that contact were not considered, it would be necessary to conclude that there was an interruption in the contacts for a period of about eight months.
126 The Commission argues that the second part of the second ground of appeal is unfounded.
– Findings of the Court
127 By the second part of their second ground of appeal, the appellants criticise the General Court for having breached its obligation to give reasons by basing the judgment under appeal on inconsistent grounds.
128 In that regard, it suffices to observe that, in paragraph 207 of the judgment under appeal, the General Court found that ‘the intervals between the contacts were generally not more than two or three months [and that the appellants appear] even to have had two contacts in the same month, in April 2006’.
129 It is thus clear that that finding is general and that it cannot be regarded as meaning that all the intervals between each of the contacts in which the appellants participated were not longer than three months.
130 The second part of the second ground of appeal therefore rests on a misreading of the judgment under appeal and must therefore be rejected as being unfounded.
131 Accordingly, the second ground of appeal must be rejected in its entirety as being unfounded.
The fourth ground of appeal
132 The appellants’ fourth ground of appeal is divided into three parts.
Arguments of the parties
– The first part of the fourth ground of appeal
133 By the first part of their fourth ground of appeal, the appellants criticise the General Court for having infringed the principle, contained in the Guidelines on the method of setting fines, that the value of sales should reflect the economic importance of the infringement and the relative weight of each undertaking that participated in the infringement and, consequently, infringed the principles of proportionality and equal treatment.
134 The appellants submit that, throughout the period of the alleged infringement, Lite-On produced ODD products ultimately sold under the Sony brand. Pursuant to revenue-sharing arrangements in place between the appellants and Lite-On, the appellants passed on to Lite-On the revenues from those products designed and manufactured by Lite-On. The appellants submit that the decision at issue involved double counting by simultaneously attributing those revenues both to the appellants and to Lite-On.
135 The appellants submit that the General Court however rejected the appellants’ argument that the decision at issue counted the same revenues twice. It also rejected their argument that that double counting breached the principle of equal treatment and proportionality on the ground that it resulted in imposing on the appellants a fine that unduly inflated their share in the value of sales.
136 The appellants submit that the Guidelines on the method of setting fines defines the value of sales 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. The Court of Justice has confirmed that interpretation of the value of sales, which is consistent with the principles referred to in the previous paragraph, and, in some cases, the Commission has sought to avoid such double counting.
137 The appellants submit that, in order to reject their arguments, the General Court, in paragraph 271 of the judgment under appeal, considered that the method that they suggested could undermine the effectiveness of the prohibition of cartels since it would then be sufficient for undertakings to associate themselves with a participant in the cartel in order to reduce the amount of their fine. However, that reasoning led the General Court to confirm the double counting of the value of sales, which is an error of law and an infringement of those principles.
138 The Commission considers the first part of the fourth ground of appeal to be inadmissible. It follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside. However, the first part of the fourth ground of appeal in reality amounts to a request for a re-examination of the application submitted to the General Court without identifying a specific error in the judgment under appeal, which is outside the jurisdiction of the Court of Justice.
139 The Commission submits that in any event the first part of the fourth ground of appeal is unfounded and ineffective.
– The second part of the fourth ground of appeal
140 By the second part of their fourth ground of appeal the appellants allege that the General Court infringed the obligation to state reasons by failing to address the argument relied on by the appellants that the double counting of the value of sales unlawfully increased the economic importance of the infringement alleged and, consequently, the fine imposed upon them.
141 The appellants submit that that obligation requires the General Court to respond, to a sufficient legal standard, to the arguments raised by the appellants. The reasoning given by the General Court may be implicit only on condition that it enables the persons concerned to know the reasons why the General Court has not upheld their arguments.
142 The appellants submit that the General Court did not respond to the appellants’ arguments and merely made general findings which did not directly respond to those arguments and, in particular, to that relating to the double counting of revenues from sales of ODDs.
143 The Commission considers that the second part of the fourth ground of appeal is unfounded and ineffective.
– The third part of the fourth ground of appeal
144 By the third part of the fourth ground of appeal the appellants allege that the General Court committed an error by rejecting their argument that the Commission had failed to justify its departure, in their case, from its practice of avoiding double counting, whereas in its previous decisions, it took account of the value of sales for the purposes of calculating the amount of the fine, as that value reflected the economic value of the infringement.
145 The Commission considers that the third part of the fourth ground of appeal should be rejected as unfounded and ineffective.
Findings of the Court
146 By the three parts of their fourth ground of appeal, which it is appropriate to examine together, the appellants submit that the General Court erred in law, infringed the principles of equal treatment and proportionality and failed to satisfy its obligation to state reasons by confirming the amount of the fine imposed on the basis of the same revenues that formed the basis of the calculation of the amount of the fine imposed on Lite-On, which designed and produced ODDs sold under the Sony brand pursuant to revenue-sharing arrangements.
147 As a preliminary matter, it should be observed that it emerges implicitly but clearly from the appeal that the appellants are referring to paragraphs 263 to 276 of the judgment under appeal, which they moreover confirmed in their reply. The present ground of appeal is therefore admissible.
148 As to the substance, it should be observed that the General Court first of all stated, in paragraph 264 of the judgment under appeal, that the appellants’ argument that the Commission had double counted the sales made to Dell was difficult to understand given that it was the appellants alone which received revenues from Dell.
149 It next recalled, in paragraphs 265 to 269 of that judgment, the case-law applicable to the determination, by the Commission, of the amount of fines for infringement of EU competition law.
150 The General Court finally considered, in essence, that the Commission, in the decision at issue, had complied with the method of calculation set out in the Guidelines on the method of setting fines. In that regard, in paragraph 270 of the judgment, it held that when the Commission sought to establish the value of the sales of goods to which the infringement directly or indirectly related, it was logical for it to use the appellants’ direct sales to Dell as the basis for calculating the amount of the fine.
151 As regards, more specifically, the argument that there was a double counting of revenues, the General Court stated, in paragraph 271 of the judgment under appeal, that the method advocated by the appellants, consisting in deducting from the revenues received by them from Dell the revenues passed on to Lite-On, would undermine the effectiveness of the prohibition on cartels, since it would then be sufficient for undertakings to associate themselves with a participant in the cartel in order to reduce the amount of their fine.
152 As regards the principles of proportionality and equal treatment, the General Court added, in paragraphs 272 and 273 of that judgment, that the appellants’ conduct had not fundamentally differed from that of the other addressees of the decision at issue both as regards the fact of having exchanged information, in particular on prices, and as regards the frequency of those exchanges. It concluded that the decision at issue had infringed neither those principles nor the Guidelines on the method of setting fines.
153 In the first place, as regards the appellants’ arguments that the General Court breached its obligation to state reasons, it must be recalled that, according to settled case-law, the obligation incumbent on the General Court under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union to state reasons for its judgments does not require it to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to understand the grounds of the General Court’s judgment and provides the Court of Justice with sufficient information to exercise its powers of review on appeal (judgment of 25 November 2020, Commission v GEA Group, C‑823/18 P, EU:C:2020:955, paragraph 42 and the case-law cited).
154 The reasoning contained in paragraphs 263 to 276 of the judgment under appeal complies with the requirements under the case-law recalled in the preceding paragraph. The General Court examined all of the pleas formulated by the appellants as regards the calculation of the fine and set out its reasons for rejecting them. In particular, the General Court examined the allegation of double counting in paragraphs 263 and 264 of the judgment under appeal and accordingly set out its reasons for rejecting those complaints.
155 In the second place, it was without committing an error of law that the General Court found that the Commission had not departed from the method set out in the Guidelines on the method of setting fines.
156 In fact, the General Court correctly found that the Commission had, in accordance with that method, based its calculation of the fine imposed on the appellants in particular on the value of sales of goods to which the infringement directly or indirectly related.
157 The General Court was also fully entitled to hold that the method advocated by the appellants, based not on the value of sales but on the revenues derived from direct sales alone, would undermine the effectiveness of the prohibition on cartels and cannot therefore be regarded as making it possible to reflect the economic importance of the infringement.
158 In the third place, as regards the principle of equal treatment, it must be recalled that according to settled case-law that principle is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. That principle 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 (judgment of 25 November 2020, Commission v GEA Group, C‑823/18 P, EU:C:2020:955, paragraph 58 and the case-law cited).
159 In the present case, the General Court held, in paragraph 272 of the judgment under appeal, that the appellants’ conduct did not fundamentally differ from that of the other addressees of the decision at issue both as regards the fact of having exchanged information on prices and as regards the frequency of those exchanges. Accordingly, it held, in paragraph 273 of the judgment, that that decision had not infringed the principle of equal treatment.
160 Contrary to the appellants’ arguments, that conclusion is not vitiated by any error of law. It follows from paragraphs 272 and 273 of the judgment under appeal that the General Court was fully entitled to hold, in essence, that the Commission had properly applied the same method of calculation of the amount of the fine to all the undertakings concerned, based on a consideration of the value of sales, and that the facts raised by the appellants to justify, in their view, the use of a different method of calculation are not capable of affecting that conclusion.
161 As regards, in the fourth place, the principle of proportionality, it should be recalled that, according to the Court of Justice’s well-established case-law, it is not for the Court, when ruling on points of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law. Accordingly, only where the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, does it have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (judgments of 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 57 and the case-law cited, and of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 107).
162 However, the appellants have failed to show why the amount of the fine imposed on them is excessive to the point of being disproportionate.
163 It follows from the foregoing that the fourth ground of appeal must be dismissed as unfounded in its entirety.
Setting aside the judgment under appeal
164 As is clear from the analysis of the appellants’ third ground of appeal, in paragraphs 58 to 89 of this judgment, the General Court has committed errors of law.
165 In those circumstances, the judgment under appeal must be set aside.
The action before the General Court
166 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice is to quash the decision of the General Court if the appeal is well founded. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
167 In the present case, it is appropriate to give final judgment in the matter, as the state of the proceedings so permits.
168 Thus, as stated in paragraph 36 of this judgment, in support of their action before the General Court, the appellants raised two pleas.
169 In the context of their first plea before the General Court, the appellants submit, as regards their participation in the separate infringements comprising the single and continuous infringement which was imputed to them, that the Commission did not formulate that allegation in the course of the administrative procedure, and that it was in breach of their rights of defence that that allegation was presented for the first time in the decision at issue. They submit that that decision is also vitiated by a failure to state reasons as to the finding of those separate infringements.
170 As regards the complaint of a breach of the obligation to state reasons, it must be held, for the reasons set out in paragraphs 81 to 89 of this judgment, that the Commission did not state reasons for its decision as to the appellants’ participation in those separate infringements comprising the single and continuous infringement imputed to them.
171 Therefore, without it being necessary to examine the other arguments raised as part of the appellants’ first plea in support of their action, that plea must be upheld in respect of the complaint that the Commission did not sufficiently state its reasons for the decision at issue as regards their participation in those separate infringements.
172 Having regard to the foregoing, and in the light of what has been stated in paragraphs 58 to 61 of this judgment, Article 1(f) of the decision at issue must be annulled to the extent that it finds that the appellants infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in several separate infringements.
173 By the second plea in law in their action before the General Court, the appellants claim, in the first part of that plea, that the Commission imposed on them a fine calculated on revenue obtained from Dell which had been passed on to Lite-On under the revenue-sharing arrangements in force between the appellants and Lite-On. In the second part of that plea, the appellants maintain that, in so far as the decision at issue failed to acknowledge their substantially more limited conduct by comparison with that of certain other addressees, the Commission breached the principles of equal treatment and proportionality, infringed Article 23(3) of Regulation No 1/2003 and breached the Guidelines on the method of setting fines. By the third part of that plea, the appellants submit that, by imposing on them a multiplier of 1.2 of the starting amount of its fine in order to ensure a sufficiently deterrent effect, the Commission breached the principles of equal treatment, fairness and proportionality.
174 In the present case, as regards, in the first place, the first part of the second plea in law, it must be held that, for the reasons set out in paragraphs 146 to 163 of the present judgment, the decision at issue did not infringe the principles of equal treatment and proportionality or the Guidelines on the method of setting fines.
175 In the second place, as regards the second and third parts of the second plea in law, the Court of Justice adopts the reasoning set out by the General Court in paragraphs 279 to 288 and in paragraphs 292 to 298 of the judgment under appeal. Thus, for the reasons set out in those paragraphs and for those set out in the preceding paragraph of this judgment, the second plea must be rejected.
176 It is also necessary to give a ruling, in accordance with the unlimited jurisdiction conferred on the Court of Justice by Article 261 TFEU and Article 31 of Regulation No 1/2003, on the amount of the fine to be imposed on the appellants (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 87 and the case-law cited).
177 In that regard, it must be noted that the Court, when itself giving final judgment in the matter in accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, is empowered, in the exercise of its unlimited jurisdiction, to substitute its own appraisal for that of the Commission and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 88 and the case-law cited).
178 In order to determine the amount of the fine imposed, it is for the Court to assess for itself the circumstances of the case and the nature of the infringement in question (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 89 and the case-law cited).
179 That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without the Court being bound by the indicative rules defined by the Commission in its Guidelines on the method of setting fines, even where the latter may give guidance to the EU Courts when they exercise their unlimited jurisdiction (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 90 and the case-law cited).
180 In the present case, the Court considers that none of the elements relied on by the appellants in the present case, nor any ground of public policy, justifies it making use of its unlimited jurisdiction to reduce the amount of the fine referred to in Article 2(f) of the decision at issue.
181 In the light of all the foregoing considerations, Article 1(f) of the decision at issue must be annulled in so far as it finds that the appellants infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in several separate infringements, and the remainder of the action must be dismissed.
Costs
182 In accordance with Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs.
183 Under Article 138(1) of those rules, applicable to the procedure on appeal pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 138(3) of those rules states that where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
184 In the present case, the appellants have applied for costs relating to the proceedings at first instance and on appeal against the Commission and the Commission has been unsuccessful in its submissions at the appeal stage and, in part, in its submissions at first instance. The appellants were partially unsuccessful in their claims at first instance.
185 That being so, the Court considers, having regard to the circumstances of the present case, that the Commission must be ordered to pay, in addition to its own costs relating to both the proceedings at first instance and the appeal proceedings, all the costs incurred by the appellants in the present appeal and half of the costs which they incurred at first instance. The appellants are to bear half of their own costs relating to the proceedings at first instance.
On those grounds, the Court (Fourth Chamber) hereby:
1. Sets aside the judgment of the General Court of the European Union of 12 July 2019, Sony and Sony Electronics v Commission (T‑762/15, not published, EU:T:2019:515);
2. Annuls Article 1(f) of Commission Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 – Optical disk drives) to the extent that it declares that Sony Corporation and Sony Electronics Inc. infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 by participating, from 23 August 2004 to 15 September 2006, in several separate infringements;
3. Dismisses the action as to the remainder;
4. Orders the European Commission to pay, in addition to its own costs relating to both the proceedings at first instance and those on appeal, all of the costs incurred by Sony Corporation and Sony Electronics Inc. in the present appeal and half of the costs that they incurred at first instance;
5. Orders Sony Corporation and Sony Electronics Inc. to bear half of their own costs relating to the proceedings at first instance.
Delivered in open court in Luxembourg on 16 June 2022.
A. Calot Escobar | | K. Lenaerts |