Case T‑409/12

Mitsubishi Electric Corp.

v

European Commission

(Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — New decision taken following annulment in part of the initial decision by the Court — Fines — Obligation to state reasons — Principle of sound administration — Rights of the defence — Equal treatment — Proportionality — Erroneous application — Starting amount — Extent of contribution to the infringement — Deterrence multiplier)

Summary — Judgment of the General Court (First Chamber), 19 January 2016

1.      Competition — Administrative procedure — Observance of the rights of the defence — Assessment — Decision amending the amount of the fine adopted following the partial annulment of an initial decision — Account taken of the procedure leading to the initial decision

(Art. 81 EC; EEA Agreement, Art. 53)

2.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Decision amending the amount of the fine adopted following the partial annulment of an initial decision — Account taken of the grounds for the initial decision

(Art. 81 EC; Art. 296 TFEU; EEA Agreement, Art. 53)

3.      Competition — Fines — Amount — Determination — Determination of the base amount — Determination of the value of sales — Respect for the principle of equal treatment — Activities of certain participants in a cartel carried on by a joint venture during the reference year — Adaptation of the method of allocating and dividing the starting amount — Lawfulness

(Art. 81 EC; EEA Agreement, Art. 53)

4.      Competition — Fines — Amount — Determination — Individualisation by reference to the relative gravity of the contribution of each of the incriminated undertakings — Single and continuous infringement — Participation of an undertaking in a cartel in the form of an omission to act — Assessment

(Art. 81 EC; EEA Agreement, Art. 53)

5.      Competition — Fines — Amount — Determination — Determination of the base amount — Gravity of the infringement — Criteria for assessment — Actual economic capacity to cause damage on the affected market — Producers established in a third State

(Art. 81 EC; EEA Agreement, Art. 53)

1.      Where, in the context of an action for annulment of a Commission decision imposing a fine for breach of the competition rules, that decision explicitly constitutes a decision which amends an initial decision which imposed a fine of a different amount and has been partially annulled by the EU judicature, the adoption procedure for the amending decision amounts to an extension of the procedure which led to the said initial decision. Accordingly, in so far as they have not been called into question by the annulling judgment, both the initial decision and the preparatory measures which preceded its adoption, including the statement of objections, may be taken into consideration in assessing whether the applicant’s rights of defence were respected in the procedure which led to the adoption of the contested decision.

Moreover, where it is evident from the applicant’s observations on a letter of facts sent to it by the Commission that it was in a position to make known its point of view, in a detailed manner, on the various stages of the calculation of the fine which was to be imposed on it, it cannot be maintained that the Commission infringed its rights of defence by not communicating to it the relevant elements for the purposes of calculating the fine and, in particular, sales figures.

Similarly, where, from the time of the initial statement of objections, the applicant was aware that the Commission intended to ensure the deterrent effect of the fine imposed and, at the very latest from the time of the initial decision, it was in a position to understand that that intention implied the imposition of an additional amount for a given period of operation, that intention not having been called into question by the judgment partially annulling the initial decision and having been reaffirmed both in the said letter of facts and in a meeting between the Commission and that undertaking, an infringement of that undertaking’s defence rights in relation to the Commission’s intention to impose the additional amount on it is not established.

(see paras 39, 41, 43, 51, 52)

2.      The grounds for a decision finding an infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement may be taken into account when examining compliance with the obligation to state reasons for a decision amending that initial decision, adopted after a partial annulment of the latter by the EU judicature, in so far as they have not been affected by the annulling judgment and are not contradicted by the wording of the amending decision.

Thus, as regards the statement of reasons for the starting amount determined by the Commission for the purposes of calculating the fine in the amending decision, the fact that the incriminated undertaking is able to understand the factors which made it possible for the Commission to measure the gravity of the infringement committed by it at the time of the procedure for adopting the initial decision means that the Commission is not required, inter alia, to set out a more detailed account or to provide figures relating to the precise calculation of the starting amount.

(see paras 54, 66)

3.      In the matter of the determination of the amount of a fine imposed for breach of the competition rules, where, during the reference year chosen for the purposes of determining the value of sales, the activities of certain participants in a cartel in the sector concerned were carried on within a joint venture, jointly owned in equal shares and subsequently dissolved, with the result that those participants, unlike others, did not register sales in that sector, the Commission does not infringe the principle of equal treatment by, first, allocating a hypothetical starting amount for the said joint venture and then dividing it between the participants having the capacity of shareholders in the latter. The fact that the latter transferred their activities to the said distinct entity means that the fines imposed upon them cannot be calculated in exactly the same way as that of the other participants in the cartel and that, on that point, their situation is not comparable to the situation of the latter.

Moreover, in such a context, even if the participants concerned each hold the same percentage of the capital of the said joint venture, the Commission may allocate the hypothetical starting amount by reference to the proportion of their sales of the product concerned during the last year before the creation of the joint venture, in order to reflect their unequal capacity to contribute to the infringement. That method enables the Commission to reconcile the principle of equal treatment — which requires that the same reference year be used for all of the participants in the infringement — with the Commission’s wish to reflect the unequal competitive positions of the shareholding participants at the time the joint venture was created.

(see paras 108-112, 130, 133, 143)

4.      See the text of the decision.

(see paras 150, 153-156)

5.      See the text of the decision.

(see paras 165-167, 169, 174-178, 180)