JUDGMENT OF THE GENERAL COURT (Third Chamber)

9 September 2015 (*)  (1)

(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 — Rights of the defence — Proof of participation in the cartel — Single and continuous infringement — 2006 Guidelines on the method of setting fines — Proportionality — Fines — Unlimited jurisdiction)

In Case T‑82/13,

Panasonic Corp., established in Kadoma (Japan),

MT Picture Display Co. Ltd, established in Matsuocho (Japan),

represented by R. Gerrits and A.-H. Bischke, lawyers, M. Hoskins QC, and S.K. Abram, Barrister,

applicants,

v

European Commission, represented by A. Biolan, M. Kellerbauer and G. Koleva, acting as Agents,

defendant,

APPLICATION for, primarily, annulment 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), in so far as it concerns the applicants, or, in the alternative, a reduction of the amount of the fine imposed on the applicants,

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 11 November 2014,

gives the following

Judgment

 Background to the dispute

 Applicants and relevant product

1        The applicants, Panasonic Corp., formerly, at the material time, Matsushita Electric Industrial Co. Ltd (‘MEI’ or ‘Panasonic’) and MT Picture Display Co. Ltd, formerly, at the material time, Matsushita Toshiba Picture Display Co. Ltd (‘MTPD’), are part of a group of undertakings which produces and markets electrical and electronic goods. MEI, the parent company of the group, changed its name to Panasonic on 1 October 2008.

2        Until the fiscal year 2000, one of the wholly owned subsidiaries of MEI, Matsushita Electronics Corp. (‘MEC’), established in Japan, manufactured and marketed cathode ray tubes (‘CRTs’). In April 2001, MEC merged with MEI, and, from that date, MEI directly exercised the activity concerning CRTs. On 31 March 2003, MEI transferred all of that activity to MTPD, the joint venture created with Toshiba Corp. Until 31 March 2007 MTPD was owned as to 64.5% by MEI and as to 35.5% by Toshiba; on that date Toshiba transferred its shareholding to MEI and MTPD thus became a wholly owned subsidiary of MEI and changed its name to MT Picture Display.

3        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 computer monitor or a colour television. They come in a number of different sizes (small, medium, large and jumbo), expressed in inches.

4        From its creation, MTPD produced and sold CPTs. The last sales of CPTs by MTPD in the European Economic Area (EEA) took place in the fiscal year 2006. MTPD never manufactured CDTs but sold a small quantity of CDTs outside the EEA, all such sales being sales of MEI’s stock. Sales of CPTs in the EEA were essentially made by MTPD. In addition, CPTs manufactured in Japan, the United States and south-east Asia were sold in the EEA. The legal entities involved in those sales were: MTPD, MT Picture Display Malaysia, MT Picture Display Thailand, MT Picture Display Indonesia, MT Picture Display America (Ohio) and MT Picture Display America (New York). All those wholly owned subsidiaries of MTPD gradually closed down in 2006 and 2007; the shares in MTPD Germany were sold to third parties on 1 July 2007, and both MTPD and MEI have ceased the production and sale of CRTs.

 Administrative procedure

5        The present proceeding was initiated following an application for immunity, within the meaning of the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) (‘the Leniency Notice’), submitted by Chunghwa Picture Tubes Co. Ltd on 23 March 2007.

6        Samsung SDI Co. Ltd, Samsung SDI Germany GmbH, Samsung SDI (Malaysia) Berhad, (together, ‘Samsung SDI’), MEI, Koninklijke Philips Electronics NV (‘Philips’) and Thomson SA submitted leniency applications in accordance with the Leniency Notice.

7        On 23 November 2009 the Commission of the European Communities adopted a statement of objections addressed to the applicants, as well as to Chunghwa Picture Tubes, Chunghwa Picture Tubes (Malaysia) Sdn. Bhd, CPTF Optronics Co. Ltd (together, ‘Chunghwa’), Samsung SDI, Philips, LG Electronics, Inc. (‘LGE’), PT LG Electronics Indonesia Ltd, LG Electronics European Holding BV, Thomson, Toshiba, [confidential],  (2) [confidential] and MTPD, and held a hearing on 26 and 27 May 2010 with all the addressees of the statement of objections.

8        Following that hearing, the applicants and Toshiba submitted additional observations and presented evidence regarding the issue of the alleged decisive influence they exercised over the conduct of MTPD on the market.

9        By letter of 4 March 2011, the Commission sent a request for information, inter alia to the applicants, in accordance with Article 18(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), inviting them to provide information on their sales and their overall turnover. The applicants complied with that request by letter of 20 April 2011.

 Contested decision

10      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 EEA Agreement (‘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, second, to the CPT market (‘the CPT cartel’). They took place, respectively, between 24 October 1996 and 14 March 2006 and between 3 December 1997 and 15 November 2006, 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.

11      As regards the CPT cartel, the only one to which the action relates, the Commission found that the participants had agreed on target 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. They also entered into agreements defining which producer would communicate a price increase to which customer. Moreover, the CPT producers agreed on their 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.

12      In recitals 123 and 124 to the contested decision, it was stated that, after an initial period during which CPTs had been discussed in the same meetings as those relating to CDTs, regular multilateral meetings called ‘CPT glass meetings’ began to be formally held in the autumn of 1998, initially in Asia (‘the Asian glass meetings’), between the Asian undertakings forming the core of the cartel, namely Chunghwa, Samsung SDI, [confidential], [confidential] and LGE (‘the five undertakings’), 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 cartel members in order to include all the main Asian producers and also the European producers. They were thus joined by [confidential], 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 (‘the glass 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 SDI, MTPD and the LG Philips Displays group (‘the LPD group’, in place of LGE and Philips, which had transferred their business in the CPT sector to it), called ‘SML’ meetings, which largely concerned medium-sized and extra-large CPTs, and, second, south-east Asian meetings between Samsung SDI, the LPD group, MTPD, Chunghwa and [confidential], called ‘ASEAN’ meetings, largely concerning small and medium-sized CPTs.

13      The Commission observed that, although the European CPT-related glass meetings were organised and held separately from the meetings held in Asia, the subsidiaries of the same undertakings and occasionally the same individuals had taken part in meetings with competitors in both Europe and Asia. Thus, the Commission considered that the European and Asian glass 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 CPT 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.

14      Last, as regards the applicants’ involvement in the CPT cartel, first, the Commission stated that MEI had participated in that cartel, both directly and through its subsidiaries MEC, Matsushita Electronics Europe GmbH (now Matsushita Display Devices Germany GmbH, ‘EMEC’) and Matsushita Electronics Corporation Malaysia Sdn. Bhd (now Matsushita Display Devices Malaysia, ‘MMEC’), by maintaining bilateral contacts with the majority of the five undertakings from 1997, the first documented contact dating from 15 July 1999, in which the same type of discussions as in certain European glass meetings and Asian glass meetings took place. Secondly, the Commission observed that, from 1 April 2003, MTPD, over which MEI and Toshiba exercised decisive influence, continued its parent companies’ participation in the CPT cartel uninterruptedly, both by exchanging sensitive commercial information concerning them in bilateral contacts with the undertakings participating in the European glass meetings and by attending the SML and ASEAN meetings, of worldwide impact, held in Asia. Consequently, the Commission concluded that Panasonic was liable for the infringement committed by MEI, both directly and by having exerted decisive influence over the commercial policy of its subsidiaries during the entire duration of their participation in the CPT cartel. Moreover, the Commission held Panasonic jointly and severally liable, with Toshiba, for the infringement by MTPD from the time when that undertaking was set up.

15      As for the calculation of the amount of the fine imposed on the applicants, the Commission relied on 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) (‘the 2006 Guidelines’).

16      First of all, in order to determine the basic amount of the fine, the Commission considered that, for the purpose of establishing the value of the sales of goods to which the infringement relates, within the meaning of point 13 of the 2006 Guidelines, it was appropriate to take into account the average annual value of ‘real’ sales throughout the duration of the CPT cartel, consisting (i) of sales linked to CPTs sold directly to customers in the EEA by one of the addressees of the contested decision (‘direct EEA sales’), and (ii) of sales linked to CPTs incorporated within the same group in a finished product and then sold by one of the addressees of the contested decision to customers in the EEA (‘direct EEA sales through transformed products’). According to recitals 1021, 1026 and 1029 of that decision, the first ‘real’ sale of CPTs — sold as such or incorporated into finished products — corresponded to the sale made into the EEA during the period of the CPT cartel by one of the addressees of the contested decision to an external customer. By contrast, the Commission did not take into account ‘indirect sales’, corresponding to the value of the CPTs sold by one of the addressees of the contested decision to customers outside the EEA, which allegedly then incorporated them into finished products which they sold in the EEA. 

17      In addition, the Commission observed that Panasonic and Toshiba had participated in the CPT cartel before the creation of MTPD and that they had continued to participate in it after the creation of MTPD, through it. The Commission therefore took the view that, even if there had not been any interruption in the applicants’ participation in the CPT cartel, it was necessary to distinguish two periods in order to calculate the amount of the fines imposed on the applicants, namely (i) the period prior to the creation of MTPD, for which Panasonic and Toshiba are held individually liable because of their direct participation in the CPT cartel and (ii) the period subsequent to the creation of MTPD, for which Panasonic and Toshiba are held jointly and severally liable with MTPD. So far as concerns the period prior to the creation of MTPD, the Commission took into account the average value of the individual ‘real’ sales of the parent companies, whereas for the period subsequent to its creation, the Commission took into account the value of MTPD’s sales, in order to reflect the economic power of that undertaking. Those latter sales included both the direct EEA sales made by MTPD and the direct EEA sales through transformed products between MTPD, on the one hand, and Panasonic and Toshiba, on the other.

18      As regards the value of sales used in order to calculate the additional amount included in the basic amount, attributed by the Commission to each of MTPD’s parent companies, it was determined taking into account not only the annual average value of the individual sales of CPTs made by each parent company before the creation of MTPD, but also a fraction of the sales of CPTs made by MTPD, corresponding to the shareholder interest held by each parent company in its capital.

19      In that regard, the Commission took the view that, having regard to the gravity of the infringement, the proportion of the value of sales to be taken into account for the purposes of determining the basic amount corresponded, for all the undertakings concerned, to 18% for the CPT cartel and 19% for the CDT cartel, multiplied by the duration of their respective participation in the infringement, on a proportionate basis and rounded down to the month below. In addition, irrespective of the duration of the undertakings’ participation in the CPT cartel and in order to deter them from entering into horizontal price-fixing and market-sharing agreements, the Commission included in the basic amount of the fines to be imposed on Panasonic and on Toshiba the additional amount resulting from the 18% applied to the value of relevant sales for the CPT cartel.

20      In addition, the Commission considered that there were no aggravating circumstances or mitigating circumstances justifying an adjustment to the basic amount. Moreover, the Commission stated that there were no exceptional circumstances which could justify the grant of a reduction of the amount of the fine imposed on the applicants because of effective cooperation on their part provided outside the framework of the Leniency Notice.

21      Lastly, having regard to the fact that the applicants’ turnover was considered to be particularly large, beyond the sales of goods to which the infringement related, the Commission applied a multiplier for deterrence of 20% to the amounts of the fines to be imposed on the applicants.

22      Articles 1 and 2 of the operative part of the contested decision read as follows:

‘Article 1

…

2.       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 complex of agreements and concerted practices in the sector of [CPTs]:

…

(c)       Panasonic …, from 15 July 1999 until 12 June 2006;

(d)       Toshiba …, from 16 May 2000 until 12 June 2006;

(e)       [MTPD], from 1 April 2003 until 12 June 2006;

…

Article 2

…

2.       For the infringement referred to in Article 1[(2)], the following fines are imposed:

…

(f)      Panasonic …: EUR 157 478 000;

(g)      Toshiba …: EUR 28 048 000;

(h)      Panasonic …, Toshiba … and [MTPD], jointly and severally liable: EUR 86 738 000;

(i)      Panasonic … and [MTPD], jointly and severally liable: EUR 7 885 000;

…’

 Procedure and forms of order sought

23      By application lodged at the Court Registry on 13 February 2013, the applicants brought the present action.

24      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.

25      By letter lodged at the Court Registry on 18 February 2014, the applicants submitted comments on the rejoinder. The Commission submitted its comments on that document by letter of 28 February 2014. Those two documents were placed on the file by decision of the President of the Chamber of 7 March 2014.

26      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 the General Court of 2 May 1991, to put certain questions to the parties. That request was complied with within the prescribed period.

27      The parties presented oral argument and answered the questions put by the Court at the hearing on 11 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.

28      By letter lodged at the Court Registry on 28 November 2014, the Commission complied with that request. The applicants lodged no observations.

29      By decision taken on 28 November 2014, it was decided not to place on the case file a document submitted by the Commission, relating to the minutes of the hearing.

30      The oral part of the procedure was closed on 5 December 2014.

31      By order of 26 May 2015, the Court decided to reopen the oral part of the procedure in accordance with Article 62 of the Rules of Procedure of 2 May 1991.

32      By way of measures of organisation of procedure under Article 64 of the Rules of Procedure of 2 May 1991, the Court requested the parties to submit any observations on the Opinion of Advocate General Wathelet in Case C‑231/14 P InnoLux v Commission [2015] ECR. That request was complied with within the prescribed period. The parties also 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.

33      The oral part of the procedure was closed on 10 July 2015.

34      The applicants claim that the Court should:

–        annul the contested decision in so far as it finds that MEI or MTPD infringed Article 101 TFEU and Article 53 of the EEA Agreement;

–        annul or reduce appropriately the fines imposed on Panasonic or on MTPD;

–        order the Commission to pay the costs.

35      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

 Law

36      By their first head of claim, the applicants are seeking the annulment of the contested decision in so far as it concerns them and, by their second head of claim, they are seeking the cancellation or reduction of the amount of the fines which were imposed on them by that decision.

 The first head of claim, seeking partial annulment of the contested decision

37      In support of their first head of claim, the applicants put forward three pleas in law.

38      The first plea alleges infringement of the rights of the defence and the right to be heard.

39      The second plea alleges that the Commission has not proved that MEI knew or should have known of the existence or content of the CPT cartel in respect of the period prior to the creation of MTPD. 

40      The third plea alleges that the Commission has not proved that the applicants knew or should have known of the existence or content of the CPT cartel in respect of the period subsequent to the creation of MTPD and that they participated in a single and continuous infringement.

 The first plea, alleging infringement of the rights of the defence and the right to be heard

41      The applicants observe, as a preliminary point, that their involvement in the cartel must be divided into two periods, namely the period before 10 February 2003 and the period after that date, which corresponds to the date of the first multilateral CPT cartel meeting in which, according to the contested decision, an entity called ‘Matsushita-Toshiba’ participated before the creation of MTPD. 

42      So far as concerns the period before 10 February 2003, the applicants argue that the finding in the contested decision that MEI participated in the global CPT cartel is based solely on scattered bilateral contacts which MEI had with its competitors. The applicants also assert that, in the light of the case-law, the existence of bilateral contacts is not sufficient to establish such a participation, but that in order to do so the Commission ought to have proved that MEI knew or should have known that those contacts were part of an overall plan including all the elements of the CPT cartel. In that regard, the applicants maintain that the statement of objections did not identify or establish the specific facts, contained in the evidence on which the Commission relies, that are supposed to establish that MEI was aware of that cartel.

43      According to the applicants, the statement of objections merely described a number of bilateral discussions involving MEI, but contained no substantive allegation concerning MEI’s knowledge of the existence or content of the CPT cartel or relating to its ‘strategic’ decision to participate in the cartel via bilateral collusive contacts. The applicants therefore maintain that, in examining those issues for the first time in the contested decision and in relying on evidence not raised in the statement of objections, the Commission infringed their rights of defence, since they did not have the proper opportunity to express their views. Thus, according to the applicants, the contested decision should be annulled in so far as it finds an infringement for that period.

44      The Commission disputes the applicants’ arguments.

45      It should be noted as a preliminary point that, as the Commission submits, the distinction made by the applicants between the period before 10 February 2003 and the period subsequent to that date is artificial and does not follow the contested decision. As is apparent from recitals 918 to 922, that decision distinguishes two periods in respect of the applicants’ participation in the cartel, for the purposes of attributing liability to the relevant legal entities of the group, namely (i) the period prior to the creation of MTPD, during which MEI allegedly participated in the cartel both directly and through its subsidiaries and (ii) the period subsequent to the creation of MTPD, during which MTPD allegedly continued MEI’s participation in the cartel uninterruptedly.

46      As regards the date of 10 February 2003, recital 387 to the contested decision describes it as corresponding to the date of the first multilateral meeting in 2003, for which documentary evidence exists, which gave rise to a data exchange and to discussions on profitability, sales, prices, customers, production, market shares and worldwide demand between Samsung SDI, the LPD group and ‘Matsushita-Toshiba’. It must be noted, first, that, as the applicants state, the MTPD entity had not yet been created on that date and, second, that the contested decision refers to an entity called ‘Matsushita-Toshiba’.

47      Accordingly, without prejudice to the possible relevance of the meeting of 10 February 2003 in the context of the overall assessment of the evidence on which the Commission relied in order to show that MEI or MTPD had participated in the concerted practices relating to the CPT cartel, the date of that meeting cannot serve as a demarcation line for the purposes of determining the applicants’ involvement in the cartel at issue. In that regard, the contested decision accepts 31 March 2003 as corresponding to the date of the transfer of the CRT business from MEI and its respective subsidiaries to MTPD and thus draws a distinction between the applicants’ participation in the CPT cartel before and after that date.

48      As regards the infringement alleged by the applicants in the present plea, it should next be recalled that in all proceedings in which penalties, especially fines or periodic penalty payments, may be imposed observance of the rights of the defence is a fundamental principle of EU law which must be complied with even if the proceedings in question are administrative proceedings (Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 94, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 270). In that regard, 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 contains 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 the undertaking may submit its arguments effectively in the administrative proceedings brought against it (see judgment of 2 February 2012 in Case T‑77/08 Dow Chemical v Commission, not published in the ECR, paragraph 110 and the case-law cited).

49      However, that may be done summarily and the final decision is not necessarily required to be an exact replica of the statement of objections (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 14), since the statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature (Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries v Commission [1987] ECR 4487, paragraph 70).

50      The Commission must be permitted in its decision to take account of the responses of the undertakings concerned to the statement of objections. In that regard, it must be able not only to accept or reject the arguments of the undertakings concerned, but also to carry out its own assessment of the facts put forward by those undertakings in order either to abandon such complaints as have been shown to be unfounded or to supplement and redraft its arguments, both in fact and in law, in support of the complaints which it maintains. Thus it is only if the final decision alleges that the undertakings concerned have committed infringements other than those referred to in the statement of objections or takes into consideration different facts that there will be an infringement of the rights of the defence (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 94; see also, to that effect, Joined Cases T‑39/92 and T‑40/92 CB and Europay v Commission [1994] ECR II‑49, paragraphs 49 to 52).

51      That is not the case where the alleged differences between the statement of objections and the final decision do not concern any conduct other than that in respect of which the undertakings concerned had already submitted observations and are therefore unrelated to any new complaint (see, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 103).

52      The Court must examine, in the light of those principles, first, whether, as the applicants claim, the Commission considered, for the first time in the contested decision, relying on evidence not raised in the statement of objections, that the applicants knew or should have known of the existence or content of the CPT cartel and that they made the ‘strategic’ choice to participate in the CPT cartel through bilateral contacts. If that is the case, it would be necessary to examine whether that suffices to find that the rights of the defence have been infringed.

53      In the present case, first, it is important to note that, contrary to the applicants’ claims, the Commission did not, in the statement of objections, merely describe the bilateral contacts in which they had participated, but examined them and deduced therefrom that MEI had participated in a single and continuous infringement, by exchanging sensitive commercial information with two of the main participants in the European and Asian glass meetings, namely Chunghwa and Samsung SDI, in order to conclude anticompetitive arrangements and monitor them. In particular, in paragraphs 215, 216 and 239 of the statement of objections, it was stated that, as from 15 July 1999, MEI had been involved in the CPT cartel. In that regard, several of the minutes of the Asian glass meetings held in 1999 show how the core group attempted to influence other companies, including MEI, and to make them join the price increase agreed beforehand at the multilateral meeting of 15 April 1999 in Korea between Chunghwa, Samsung SDI, LGE and [confidential]. Paragraph 240 of that statement states that MEI had a meeting with Samsung SDI on 6 September and 2 November 1999 to discuss pricing and production plans for 2000 and that, on 7 September 1999, Chunghwa informed MEI about the progress of the price increase agreed at the multilateral meeting of 15 April 1999, following which MEI responded that it would increase its prices for 20-inch CPTs in October 1999. In addition, MEI confirmed that position at a later bilateral meeting on 14 September 1999.

54      Furthermore, in paragraphs 262 to 269 of the statement of objections, it is stated that, after 14 September 1999, MEI, then, as from 1 April 2003, MTPD regularly exchanged information through meetings or other contacts established with Thomson, Philips, Samsung SDI, Toshiba, the LPD group, Chunghwa and [confidential] concerning worldwide sales and production capacities or market trends. In that regard, footnote 746 of that statement contains details of the content of the exchanges between competitors at each meeting and references to the oral statements of the participants.

55      Moreover, in the same paragraph 269 of the statement of objections, it is stated that MEI itself submitted documents to the Commission allowing the conclusion that data had been exchanged between competitors and that that data had been used by it to track the competitors’ movements and adjust its behaviour on the market.

56      Furthermore, in paragraph 297 of the statement of objections, it is stated that MEI was involved in the coordinated price increases in 2000 through bilateral contacts established with Chunghwa on 21 June 2000.

57      Secondly, it should be noted that, in the contested decision, it is stated, in essence, that the object of the bilateral contacts mentioned was anticompetitive, that the information exchanging practices detected were an integral part of the CPT cartel, that the data exchanged had a worldwide impact and that explicit references were made to Europe. Thus, in recital 499 to the contested decision, the Commission concluded that, on the basis of that evidence, which confirmed the oral statements made by the leniency applicants, it was established that, contrary to their arguments in reply to the statement of objections, while they were mainly participating via bilateral contacts, the applicants were aware of the overall cartel behaviour which included both the Asian glass meetings and the European glass meetings. Similarly, in recital 505 to the contested decision, in order to respond to MEI’s argument relating to its knowledge of the CPT cartel arrangements overall, the Commission stated that the anticompetitive contacts of that undertaking with competitors to which reference is made in the statement of objections confirm that it must have been aware of the broader context of the CPT cartel arrangements, as shown by the examples cited in recitals 506 and 507 to that decision, from which it is apparent that the bilateral contacts reflected the glass meetings and that explicit references to those meetings were made there.

58      It must be stated that the essential evidence on which the Commission relied in the statement of objections is referred to in the contested decision (recitals 249, 315 to 319 and 506 to 508). Although that decision contains additional explanations on the full significance of that evidence, in particular with regard to the fact that it establishes that the applicants were aware of the existence of the CPT cartel, it does so only with a view to refuting the arguments on which they rely in reply to the statement of objections. As the Commission states, the applicants clearly understood the case made against them in the statement of objections, as is apparent from their reply of 22 February 2010 to that statement, in which they specifically defend themselves against the allegation that they had known or should have known of the overall cartel. Having regard to the fact that, in the statement of objections, the Commission stated that the applicants had participated in a single and continuous infringement, it implicitly but necessarily took the view that they knew of it.

59      It is thus apparent from the contested decision that the finding that the applicants knew of the existence of the cartel was not based on new evidence. Moreover, that circumstance was found by the Commission in order to supplement the reasoning developed in the contested decision, in response to the argument put forward by the applicants in their response to the statement of objections, that they did not know of the collusive activities of the main participants in the infringement. It follows that the Commission did not raise against the applicants, in the contested decision, evidence of which they were not informed and that they were able effectively to submit their arguments in that regard in the administrative proceedings.

60      Consequently, the contested decision satisfies the requirements laid down by the case-law cited in paragraph 48 above, since the essential evidence on which the Commission relied in order to conclude that the applicants knew of the existence of the CPT cartel, namely the oral statements made by the leniency applicants and the documentary evidence of bilateral contacts, was contained in the statement of objections.

61      Thirdly, it should be observed that the Commission’s finding that the applicants had chosen to participate in the CPT cartel via bilateral contacts and resolutely opted for that strategy, which was formulated for the first time in recital 498 to the contested decision, seeks to refute the arguments put forward by the applicants in their reply to the statement of objections designed to show that MEI had not participated in the cartel. Moreover, that finding constitutes a mere deduction from the evidence which the Commission had in the file, as is apparent from recital 1088 to the contested decision, and its merits will be examined in the context of the second plea. In any event, the applicants do not explain in what respect that alleged omission infringes their rights of defence, with the result that their arguments on that point are ineffective.

62      It follows that, without prejudice to the merits of the classification of the infringement and the applicants’ participation in that infringement, the examination of which involves determining whether the Commission actually established that the applicants knew of the existence of the cartel, and which will be examined in the context of the second and third pleas of the action, it must be held that, in the statement of objections, the Commission identified the facts establishing MEI’s participation in the alleged infringement and expressed a view on the constituent elements of that infringement, finding that the collusive practices in which MEI was involved formed part of a single and continuous infringement.

63      In the light of all the foregoing, it must be concluded that the alleged infringement of the rights of the defence and the right to be heard has not been established. Therefore, the first plea must be rejected.

64      The second and third pleas should be examined together.

 The second and third pleas, alleging that the Commission has not proved that the applicants knew of the existence or content of the cartel and that they participated in a single and continuous infringement

65      In their second plea, which relates to the period prior to the creation of MTPD, the applicants claim that the evidence on which the contested decision is based, namely the oral statements of the leniency applicants, the documentary evidence of the bilateral contacts and meetings of the European Electronic Component Manufacturers Association (‘the EECA’) as well as the list of contacts between competitors, which is set out in Annex 2.2 to the contested decision, does not support the findings that MEI was or ought to have been aware of the existence or content of the CPT cartel and had taken the strategic decision to participate in that cartel by means of bilateral contacts. They submit that that evidence is in any event flawed.

66      Within the context of the third plea, which relates to the period subsequent to the creation of MTPD, the applicants claim that the Commission has not proved that MTPD had participated in a single and continuous infringement relating to the European market, or that it was or ought to have been aware of the existence of a CPT cartel in Europe. In that regard, they maintain that the Commission’s arguments are based mainly on MTPD’s participation in multilateral meetings in Asia, namely the SML and ASEAN meetings, which focused on Asian sales. The applicants maintain that the Commission has not proved that those meetings, which had a regional object, formed part of a single and continuous infringement including the European glass meetings, or that MTPD, as a participant in those meetings, sought to serve the specific objectives of the CPT cartel arrangements, set out, at a European glass meeting, in the ‘golden rules’, which did not apply to the SML and ASEAN meetings. Lastly, they maintain that the Commission has not established the necessary link of complementarity between the Asian arrangements and the European arrangements after the setting up of the SML and ASEAN meetings, enabling it to find that they were coordinated and formed part of a global plan having a single objective.

67      The Commission disputes the applicants’ arguments.

68      It is apparent from the parties’ written pleadings that the parties disagree on the evidential value of the evidence relied on in the contested decision to find that the applicants had participated in the CPT cartel.

69      It must be pointed out that, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence — resulting in particular from Article 48(1) of the Charter of Fundamental Rights of the European Union and Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 — applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see Case T‑68/09 Soliver v Commission [2014] ECR, paragraph 57 and the case-law cited).

70      It follows from the foregoing, first, that the Commission must adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement of Article 101 TFEU (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86), and, secondly, that any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed (see judgment of 24 March 2011 in Case T‑379/06 Kaimer and Others v Commission, not published in the ECR, paragraph 47 and the case-law cited). In that context, the Commission must establish in particular all the facts enabling the conclusion to be drawn that an undertaking participated in such an infringement and that it was responsible for the various aspects of it (Commission v Anic Partecipazioni, paragraph 86). It follows that the participation of an undertaking in a cartel cannot be inferred from speculation based on imprecise evidence (see Soliver v Commission, cited in paragraph 69 above, paragraph 58 and the case-law cited).

71      It is thus necessary to determine whether the evidence relied on by the Commission in the contested decision is sufficiently credible, precise and consistent to substantiate the firm conviction that the applicants participated in the CPT cartel. For this purpose, it is necessary to distinguish the period prior to the creation of MTPD and the period subsequent to the creation of MTPD. 

–       The period prior to the creation of MTPD

72      As a preliminary point, it should be noted that the parties agree that MEI did not participate in the European glass meetings, but that it developed bilateral contacts, mainly with three participants in the European and Asian glass meetings, namely Chunghwa and Samsung SDI, from 1997, and Philips, as from 1999.

73      In that regard, whilst the applicants do not dispute that those contacts actually took place and that they involved exchanges of sensitive commercial information, they nevertheless maintain that, in view of their scattered and irregular nature and the fact that they were not linked to the CPT cartel, those contacts do not permit the conclusion that MEI knew of the existence or content of that cartel. The applicants contend, in particular, that none of the bilateral contacts alluded to the meeting of the five undertakings of 15 April 1999, that MEI did not sell 14- and 20-inch CPTs in Europe before the 2003 fiscal year and that, consequently, those contacts did not relate to the EEA.

74      Firstly, it should be recalled that, with regard to the circumstances in which an exchange of information between competitors may be regarded as being incompatible with the competition rules, the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the common market (see Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 32 and the case-law cited).

75      While this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, none the less, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (see T-Mobile Netherlands and Others, cited in paragraph 74 above, paragraph 33 and the case-law cited).

76      It follows that the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted (see T-Mobile Netherlands and Others, cited in paragraph 74 above, paragraph 35 and the case-law cited).

77      Therefore, the applicants cannot dispute the fact that developing bilateral contacts involving exchanges of sensitive commercial information with competing undertakings on the same market restricts normal competition and may lead to the finding of an infringement. Thus, their recurring assertion that those contacts were purely bilateral or merely involved information exchange has no bearing on the lawfulness of the contested decision.

78      Secondly, it must be observed, as regards the existence of a link between the bilateral contacts and the overall CPT cartel, that the applicants fragmentarily examine each item of evidence substantiating the Commission’s assessment, in the contested decision, relating to their participation in the infringement, in order to claim that their awareness of the CPT cartel has not been established. However, even though it is settled case-law that the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the infringement took place (see Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraphs 43 and 72 and the case-law cited, and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 217 and the case-law cited), it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 180, and Groupe Danone v Commission, paragraph 218; see also, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 51 above, paragraphs 768 to 778 and, in particular, paragraph 777).

79      In addition, it is important to note that it is normal, in the context of anticompetitive practices and agreements, for the activities to take place in a clandestine fashion, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Therefore, in most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia, which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57, and Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 51).

80      Next, the agreements and concerted practices referred to in Article 101(1) TFEU necessarily result from collaboration by several undertakings, who are all co-perpetrators of the infringement but whose participation can take different forms according, in particular, to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged. Consequently, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its responsibility for the entire infringement, including conduct put into effect by other participating undertakings but sharing the same anticompetitive object or effect (Commission v Anic Partecipazioni, cited in paragraph 70 above, paragraphs 79 and 80, and judgment of 6 March 2012 in Case T‑53/06 UPM-Kymmene v Commission, not published in the ECR, paragraph 53).

81      Thus, an undertaking which has participated in a single and complex infringement through conduct of its own which falls within the concept of an agreement or concerted practice having an anticompetitive object, within the meaning of Article 101(1) TFEU, and is intended to help bring about the infringement as a whole may also be liable for conduct put into effect by other undertakings in the context of the same infringement throughout the period of its participation in the infringement (Commission v Anic Partecipazioni, cited in paragraph 74 above, paragraph 83, and UPM-Kymmene v Commission, cited in paragraph 80 above, paragraph 52).

82      However, the fact that there is a single and continuous infringement does not necessarily mean that an undertaking participating in one or more aspects can be held liable for the infringement as a whole. The Commission still has to establish that that undertaking was aware of the other undertakings’ anticompetitive activities at European level or that it could reasonably have foreseen them. The mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice for a finding that the undertaking participated in the overall cartel. It should be recalled that Article 101(1) TFEU does not apply unless there exists a concurrence of wills between the parties concerned (see Soliver v Commission, cited in paragraph 69 above, paragraph 62 and the case-law cited).

83      Accordingly, it is only if the undertaking knew or should have known when it participated in an agreement that in doing so it was joining in the overall cartel that its participation in the agreement concerned can constitute the expression of its accession to that cartel (Case T‑28/99 Sigma Tecnologie v Commission [2002] ECR II‑1845, paragraph 45; judgment of 16 November 2011 in Case T‑59/06 Low & Bonar and Bonar Technical Fabrics v Commission, not published in the ECR, paragraph 61; and Case T‑208/06 Quinn Barlo and Others v Commission [2011] ECR II‑7953, paragraph 144). In other words, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the unlawful conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (see Soliver v Commission, cited in paragraph 69 above, paragraph 63 and the case-law cited).

84      The undertaking concerned must therefore be aware of the general scope and the essential characteristics of the cartel as a whole (see Soliver v Commission, cited in paragraph 69 above, paragraph 64 and the case-law cited).

85      In the present case, it must be observed, first of all, that it is apparent from the minutes of the bilateral meetings in which MEI participated during that period that their object was anticompetitive and encompassed the object of the Asian glass meetings and of the European glass meetings. Like those latter meetings, the bilateral contacts involved information exchanges concerning prices, sales, commercial strategies, capacity and provisional CPT production plans between their main producers, a fact which the applicants do not dispute, moreover.

86      In addition, it is important to note, first, that the direct and indirect wholly owned subsidiaries of MEI — namely MEC, EMEC and MMEC — had bilateral contacts of the same kind with the majority of the undertakings which participated in the Asian glass meetings or in the European glass meetings, in particular Chunghwa, Samsung SDI, Philips and Thomson. Secondly, those contacts took place during the same period as that during which those glass meetings with the same participants were held.

87      In that regard, it should be observed that it is apparent from recitals 258 to 274 and 277 to 302 to the contested decision that, during the initial period of the cartel, which extended from 1997 to 1999, the five undertakings and, to a lesser extent, [confidential], faced with an oversupply of 14-inch CPTs and the risk of producing at a loss, agreed on a bottom price for 14-, 20- and 21-inch CPTs, their market shares and output restriction at worldwide level.

88      In particular, according to recital 277 to the contested decision, on 15 April 1999, Chunghwa, Samsung SDI, LGE and [confidential] met in Korea, reviewed the supply and demand situation at worldwide level and considered that the worldwide shortage in the production of small and medium-sized CPTs, expected during the third quarter, constituted an opportunity to increase their prices. The participants thus reached a new agreement on the prices of 14-, 20- and 21-inch CPTs for the third quarter of 1999 and agreed on how to communicate the price increase to each of their ‘special customers’.

89      In 2000, the main participants in the cartel, joined by Philips and Thomson, continued to meet regularly to conclude agreements in Asia as well as in Europe. Thus, between 18 January and 17 November 2000, they met on several occasions to compare the prices of 14-, 20- and 21-inch CPTs on the Asian and European markets, and agreed on principles and procedures to increase the prices and monitor the implementation of that increase on a global level and, in particular, in Europe (recitals 327 to 357 to the contested decision).

90      During that same period, MEI or its subsidiaries had bilateral contacts, on 15 July and 6 September 1999 with Samsung SDI, on 7 and 14 September 1999 with Chunghwa, on 2 November 1999 with Samsung SDI, on 19 May 2000 with Philips, on 21 June 2000 with Chunghwa, on 28 June, 2 October and 12 December 2000 with Samsung SDI, and on 1 April and 21 June 2000 with Thomson.

91      The applicants assert that, even if MEI was aware that some form of multilateral meetings was taking place, there is no evidence that it was aware of what was being discussed, or that those meetings concerned Europe. In that regard, the applicants maintain, first, that the minutes of the meeting of 2 November 1999 between Samsung SDI and MEI indicate that the only price discussed on that occasion related to that of 15-inch CPTs, which were therefore of a different size from those discussed during the Asian glass meeting of 15 April 1999, and, second, that neither MEI nor MMEC ever sold any 15-inch CPTs in Europe.

92      However, contrary to what the applicants claim, the bilateral meetings in which they participated did not have a different scope from the Asian glass meetings and the European glass meetings, but reflected the discussions held at those meetings. It is apparent from an examination of the minutes of the bilateral meetings that, first, their territorial scope went beyond the Asian context, since they involved discussions on a global level, which included several references to the European market. Secondly, the types of CPTs generally discussed at those meetings were not limited to only one size or to different sizes from those covered by the glass meetings. Lastly, whilst some of those bilateral meetings involved not MEI, but its subsidiaries, namely MMEC or EMEC, it must be stated that they were wholly owned subsidiaries controlled by it, a fact which the applicants do not dispute.

93      In particular, the minutes of the bilateral meeting between MEI, represented by EMEC, and Samsung SDI, represented by SEB, of 15 July 1999 (recital 282 to the contested decision) indicate exchanges of data on the prices in force of 28-inch CPTs, which concerned the European market. Moreover, discussions were held on ‘more of a collaboration than competition’ between SEB and EMEC, within the context of the launching of CPTs of that size, in order to face up to the aggressive strategies of Philips and Thomson. According to the applicants, the collaboration between those undertakings was not anticompetitive, but rather of a technical nature, since it related to the ‘standardisation of [the] mechanical dimension of the [CRTs/CPTs]’, which confirms the oral statement of Samsung SDI of 15 February 2008. However, as the Commission stated in the contested decision, the fact remains that, in accordance with that statement and as is apparent from the minutes of that meeting, an exchange of data between competitors still took place on the future of the European market. Moreover, in the context of that collaboration, the minutes of that meeting mention that SEB’s production and MEI’s sales in respect of 21-inch CPTs stabilised, a fact which the applicants do not dispute.

94      Similarly, as the Commission stated in recital 283 to the contested decision, the minutes of the meeting of 6 September 1999 between Samsung SDI and MMEC show that, contrary to the applicants’ arguments, sensitive commercial information was exchanged between competitors for the year 2000 concerning their worldwide production plans and prices, in respect of various CPT sizes, including that of 20-inch CPTs. In that regard, the data relating to the 20-, 21- and 25-inch CPT production forecasts also concerned Samsung SDI’s factory in Germany. Moreover, the participants in that meeting questioned the launching, around August 2000, of 28-inch CPTs in Europe. The fact that the prices for that size of CPT were not mentioned has no bearing on the lawfulness of the contested decision, since the prices of CPTs of other sizes, namely 15-, 21-, 25- and 29-inches, were mentioned. Concerning 21-inch CPTs, a reference to the fact that the price was identical to or lower than that charged by MMEC appears on the last page of the minutes of that meeting. Lastly, as was observed in recital 507 to the contested decision, Samsung SDI informed MMEC not only of its own provisional production plans, but also of those of other competitors, informing it of a restriction of the production of 14-inch CPT lines in favour of CDTs, because of a possible shortage in respect of the supply of CPTs of that size, and of a consequent decrease in profitability. The Commission was therefore entitled to find that the minutes of that meeting and those of the Asian glass meeting of 15 April 1999 are consistent in that regard (see paragraph 88 above).

95      The meeting of 7 September 1999 between Chunghwa and MMEC concerned an exchange of information on the market and sought, in particular, first, to assess the state of the production and sales of CPTs by MMEC and, second, to inform MMEC of the recent increase in prices. In that regard, Chunghwa explained in detail the increase in prices concerning 20-inch CPTs and almost all the producers fell into line. The representative of MMEC for his part stated that a plan to increase prices from the following October had already been set up internally, whereas no change was envisaged for 21-inch CPTs. In addition, the meeting of 14 September 1999 which followed was also intended to communicate an increase in prices to MMEC and concerned, inter alia, 21-inch CPTs. Moreover, it must be observed that the minutes relating to that meeting include a reference to the fact that the objective was to ‘continue the actions and hard work [with t]he hope … that this will increase the mutual understanding and make a more healthy industry’.

96      In addition, the minutes of the meeting of 2 November 1999 between Samsung SDI and MEI, mentioned in recital 283 to the contested decision, contain a question put by the undertaking ETC, a division of MEC manufacturing CPTs, on the expediency of participating or not in a ‘5 companies meeting’ and on the need to ‘contact HQ’ on this point. Contrary to the applicants’ submissions, that meeting did not concern only 15-inch CPTs, since the price of 21-inch CPTs was also mentioned in those minutes through the following expression: ‘21": [United States dollars] 51-53’.

97      Moreover, at the meeting of 21 June 2000, the content of which is described in recital 344 to the contested decision, Chunghwa informed MMEC of the recent price increases for 20- and 21-inch CPTs in Asia, a fact which the applicants do not dispute. Furthermore, as is apparent from the minutes of that meeting, the Managing Director of MMEC promised to take action to announce the price increase of 20- and 21-inch CPTs to customers of his undertaking. Subsequently, at a contact with Samsung SDI on 28 June 2000, MMEC informed it of the increase of 1 to 2 United States dollars (USD) — that is to say EUR 0.73 to 1.46 — which it made, with MEI, for 20- and 21-inch CPTs.

98      Lastly, the minutes of the meetings of 2 October and 12 December 2000 between MEI and Samsung SDI contained references to the examination of the worldwide CPT production capacity anticipated for 2001, including that of Samsung SDI in Germany and in Hungary. In addition, the minutes of the meeting of 12 December 2000 made reference to an industry meeting, anticipated for the end of that same month of December or for the month of January of the following year, which was to concern mainly small and medium-sized CPTs.

99      Therefore, it is apparent from the minutes of the bilateral meetings, read in their entirety, that those meetings concerned all sizes of CPT, namely 14-, 15-, 17-, 20-, 21-, 25-, 28-, 29- and 32-inches. The contention that the Asian glass meetings concerned only 14-, 20- and 21-inch CPTs therefore has no bearing on the lawfulness of the contested decision. Moreover, as the Commission submits, it is apparent from the response of 12 February 2009 given by the applicants to a request for information of 19 January 2009 that, before 10 April 2003, they sold CPTs of various sizes, including 21-inch CPTs, in several Member States of the European Union.

100    In the light of the foregoing, the applicants’ claim that, although 21-inch CPTs were discussed at the bilateral meetings, those meetings were not linked to the Asian glass meetings and, in particular, to that of 15 April 1999, because they had a different object, cannot succeed. As the Commission rightly submits, the applicants’ approach of assessing in isolation each item of evidence is fragmentary. It is apparent from a combined reading of the minutes of the bilateral meetings that they included discussions on price fixing and exchanges of information on future production forecasts and volumes of CPT sales at worldwide level, in the same way as the Asian glass meetings and, in particular, that of 15 April 1999.

101    The fact that, at several of the bilateral meetings, in particular those of 7 September 1999 and 21 June 2000 (paragraphs 95 and 97 above), MEI had been informed of the context of the price increase by its competitors and had even stated that it would fall into line with them shows that it was aware of the offending conduct planned or put into effect by them in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk, within the meaning of the case-law cited in paragraph 83 above. As the Commission found in recital 344 to the contested decision, that evidence establishes to the requisite legal standard not only that MEI participated in the coordinated price increase, but also that it exchanged sensitive commercial information concerning its production plans and its sales volumes with its competitors. Moreover, the applicants admit that they knew that multilateral meetings were taking place.

102    As for the other bilateral meetings, which were held during the same period and continued until the end of 2002, between MEI or its subsidiaries, on the one hand, and Samsung SDI, Philips, Thomson, Toshiba or the LPD group, on the other, mentioned in recital 317 to the contested decision, the applicants admit that they included exchanges of information between competitors. The applicants however merely claim that those exchanges were purely bilateral and that they made no reference to any wider arrangements or other CPT producers. However, those arguments must be rejected as ineffective, given that it has been found that MEI knew of the existence of the CPT cartel before that date.

103    In that regard, it should be recalled that, in order to satisfy the condition that an undertaking be aware of the offending conduct of the other participants in the single and continuous infringement, the case-law does not require that it be established that that undertaking was or should have been aware of the offending conduct of the initial participants in the infringement or that it adhered to that infringement from the outset. It also does not lay down that that condition of awareness can be established only if that undertaking contributed to the single and continuous infringement in a way identical to that initially put in place (judgment of 11 July 2013 in Case C‑444/11 P Team Relocations and Others v Commission, not published in the ECR, paragraph 54).

104    Moreover, the fact that the applicants knew of the CPT cartel is also apparent, as the Commission stated in recitals 550 and 551 to the contested decision, from the oral statements of Samsung SDI of 13 February 2008 and of Philips of 8 April 2008, the exactness of which is not disputed by the applicants. In that regard, the applicants do not dispute that, according to those statements, although the Japanese undertakings, including MEI, did not participate in the Asian glass meetings or in the European glass meetings, they were aware of the discussions between the five undertakings, since they were kept informed of their outcome by means of the bilateral meetings.

105    By contrast, the applicants submit that the oral statements at issue do not provide any detail on the nature or the scope of the alleged awareness, by EMEC or MEI, of the discussions between the five undertakings and that they merely confirm the existence of bilateral contacts between MEI or its subsidiaries, on the one hand, and Samsung SDI, Philips and Thomson, on the other. In addition, the applicants take the view that it is not apparent from those statements, or from that of Chunghwa of 16 March 2009, that the alleged participation of MEI in the CPT cartel concerned not only CDTs, but also CPTs, or the extent to which those undertakings had been kept informed of the content and outcome of the Asian glass meetings.

106    However, first, it must be observed that, as is apparent from an examination of the evidence identified by the Commission, the applicants knew the general scope and essential characteristics of the CPT cartel.

107    Secondly, it must be stated that, as the Commission observes in its written pleadings and as is stated in the contested decision, without being effectively contested by the applicants, during the first years of the cartel, the Asian glass meetings covered both CPTs and CDTs. Thus, the assertion that MEI was mentioned in the oral statements in connection with discussions concerning CDTs has no bearing on the lawfulness of the contested decision. In any event, according to the statement of Samsung SDI of 20 June 2008, the reliability and exactness of which are not disputed by the applicants, the bilateral contacts between MEI and its competitors concerned both CDTs and CPTs.

108    Likewise, it is apparent from the oral statement of Chunghwa of 28 November 2007, which has not been challenged on this point by the applicants, that, during the first years of the cartel, namely from 1994 to 2000, the Asian glass meetings concerned both CPTs and CDTs.

109    Since several of the participants in the CPT cartel that cooperated with the Commission confirmed the applicants’ participation in that cartel, the required degree of corroboration of their statements is less, both in terms of precision and depth (see, to that effect, Case T‑191/06 FMC Foret v Commission [2011] ECR II‑2959, paragraphs 123 and 124).

110    It follows that the Commission was fully entitled to find, in recital 552 to the contested decision, that, contrary to the MEI’s denials, the explicit acknowledgements of Chunghwa, Samsung SDI and Philips, to which reference is made in recitals 548 to 551 to that decision, are consistent with the rest of the evidence in the file.

111    Therefore, MEI’s participation in the merely bilateral contacts which took place during that period does not permit the inference that it did not know of the existence of the collusive arrangements which were being applied.

112    Thirdly, it should be observed that, in addition to the bilateral contacts maintained by MEI and its competitors before the creation of MTPD, that undertaking also participated in EECA meetings, which were held in Brussels, on a quarterly basis. In that context, according to recital 293 to the contested decision, at the meeting which was held on 26 November 1999 — therefore after the date considered to be the date of the beginning of MEI’s participation in the cartel — in the presence of Philips, Samsung SDI, EMEC, [confidential], [confidential] and Thomson, the participants inter alia reviewed their production plans for the year 2000 per size, thereby engaging in anticompetitive discussions. Although the applicants do not dispute that EMEC attended that meeting, they assert that it was a straightforward industry sector meeting which may have strayed too far in that production levels were discussed or, at most, evidence of an isolated information exchange which, moreover, was not mentioned in the main text of the statement of objections. However, it is apparent from the minutes of the meeting of 26 November 1999 that the participants exchanged data on their estimates of the volume of CPT sales (WCPTS) and on the production of televisions (CTV) of different sizes on the European market, for 1999 and for 2000.

113    Thus, contrary to the applicants’ assertions, the meeting of 26 November 1999 was not limited to the activities of the working group as a trade association, but involved exchanges of sensitive commercial information between competitors. In addition, according to Philips’ oral statements of 27 November 2007 and of 8 April 2008, the EECA meetings were comparable to the European glass meetings, which preceded or followed them in the form of discussions in a bar or at a dinner, and were structured like the European glass meetings, in three tiers.

114    As for the alleged infringement of the applicants’ rights of defence, to the effect that that EECA meeting was not cited in the statement of objections as evidence demonstrating that MEI knew of the existence of the overall CPT cartel, it must be noted that, in paragraph 100 of that statement, the Commission mentioned those meetings in their entirety as having taken place before and after certain European glass meetings and stated that the undertakings present had openly discussed detailed capacity, price information, timing and planning of production stops and loading rates. Consequently, the applicants cannot reasonably claim that the Commission was not entitled to take account of those meetings in the contested decision and infer from their coincidence with the European glass meetings which preceded or followed them that they knew of the overall cartel, or, a fortiori, that they did not have the chance to express their views before the adoption of that decision on the content of those meetings.

115    In the light of the above and since the Commission has proved to the required legal standard that MEI knew of the existence of the cartel from 15 July 1999, the Court rejects as irrelevant the applicants’ arguments that, in the contested decision, the Commission wrongly took account of the contacts developed by them with Chunghwa, Samsung SDI or Philips between 9 April 1997 and 17 March 1999, that is before the date considered to be the date of their accession to the cartel. In any event, although no account can be taken of evidence prior to the period during which the applicants were involved in the cartel in order to attribute liability to them, that evidence can however serve to support the Commission’s finding that they knew, at that stage, of the existence of the cartel (see, to that effect, Team Relocations and Others v Commission, cited in paragraph 103 above, paragraphs 55 and 56).

–       The period subsequent to the creation of MTPD

116    According to the contested decision, from 1 April 2003, MEI continued to participate in the CPT cartel through MTPD.

117    As a preliminary point, it is important to note that the applicants do not dispute that MEI, as majority shareholder in MTPD, exercised decisive influence over MTPD. However, the applicants dispute that the multilateral meetings held in Asia — the ASEAN and SML meetings — in which MTPD participated were part of a coordinated plan encompassing the European glass meetings and pursuing the same objectives as the agreements concluded at those meetings.

118    In that regard, the parties agree that MTPD did not participate in any of the European glass meetings. However, according to the Commission, MTPD regularly entered into bilateral contacts with the three main participants in those meetings, namely Samsung SDI, the LPD group and Thomson, with a view to coordinating their action. According to the Commission, MTPD thus participated actively in the price-fixing arrangements in Europe.

119    In the first place, it must be observed that the applicants cannot reasonably claim that the Commission stated in a general and abstract way that the European glass meetings and the Asian glass meetings had the same object.

120    The Commission noted, first, that the three sets of meetings organised in Asia — in this case the glass, SML and ASEAN meetings — and the meetings held in Europe concerned the same type of restrictions, namely price fixing and sales planning, which involved an exchange of sensitive information. Secondly, the ranges of products concerned, namely CPTs of all sizes, were similar in the meetings, when looked at together. Thirdly, there was an overlap regarding the geographic scope of the discussions in various meetings, since the ASEAN and SML meetings had a worldwide scope, so that they included the EEA or contained references to Europe. In the same way, the Commission observed that the European glass meetings contained references to Asia. Fourthly, the SML and ASEAN meetings, which were a continuation of the Asian glass meetings, were held during the same period as the European meetings, which took place from 1999 to 2005. Fifthly, the different categories of meetings organised, namely the European glass meetings, the Asian glass meetings and the SML and ASEAN meetings, involved largely the same participants. Sixthly, the parties to the CPT cartel sought to maintain a reasonable price gap between identical products marketed in the EEA and in Asia and to increase prices in Europe. Thus, the Commission found that the scope of the CPT cartel covered the EEA and that that cartel had been implemented in that territory, taking account of direct EEA sales and direct EEA sales through transformed CPT products.

121    As is apparent from the contested decision, the Commission examined the context in which the three sets of meetings in Asia, namely the Asian glass, SML and ASEAN meetings, had taken place and their minutes in order to conclude, with justification, that they had complementarity links with the European glass meetings and were therefore interconnected. In that regard, it is apparent from recitals 287 and 288 to that decision that the first European multilateral meeting of 2 October 1999 in Glasgow (United Kingdom) took place in response to calls issued by Samsung SDI at a multilateral meeting, held on 21 September 1999 in Taiwan, between Chunghwa, Samsung SDI, LGE, [confidential] and Philips, seeking to further strengthen cooperation with the European market and have the undertakings participating in the cartel organise regular meetings in order to exchange information on the market and fix prices. Concerns had been expressed regarding the level of the prices practised in Europe for 14-inch CPTs, considered to be too low in relation to the Asian prices. At a subsequent meeting, held on 27 October 1999 in Thailand and mentioned in recitals 251 and 290 to the contested decision, the Asian undertakings welcomed the upward trend in prices in the European and American markets thanks to a reduction in production capacity by CPT manufacturers in Asia.

122    As demonstrated, inter alia, by recitals 289, 292 to 302, 347, 348, 355 to 368, 371, 378 to 381, 383, 392 and 399 to the contested decision, several other European glass meetings were organised before that of 21 November 2003, held in Amsterdam between Samsung SDI, Thomson and the LPD group, at which the ‘golden rules’ were summarised. Those rules provided, inter alia, that ‘prices [had] to be established quarterly’ with ‘no spot deal or special price’, that, ‘if overall demand decreases, all parties [would] decrease by same % their production output’, and ‘a cross control of days of shutdown’. The European glass meetings preceding that of 21 November 2003 concerned mainly the monitoring of the price increase resolutions agreed upon beforehand and the examination of the market situation at the time and the future situation at worldwide level as well as the price levels and production lines. It follows that, as the Commission rightly states, the ‘golden rules’ were only a specific enunciation of the rules which had already been established at the earlier meetings. In addition, although such rules do not seem to have been formally laid down in relation to the Asian meetings, they did not concern only the European meetings, contrary to the applicants’ assertions. It is apparent from the minutes of the Asian meetings that the participants compared the situation of the markets in Europe and in Asia and regularly agreed to align their prices and their capacities. According to recital 486 to the contested decision, the participants in the Asian meetings also discussed and agreed on capacity reductions which would facilitate the price increase efforts of the cartel members in the EEA and set worldwide target market shares and supply quotas. In addition, the prices practised in one region were used as references to agree on pricing for another region. Similarly, contrary to the applicants’ assertion, the guidelines on the prices agreed upon at the ASEAN meetings did not apply only to the sales of CPTs in Asia.

123    In that regard, although, admittedly, as the applicants submit and as was observed in recital 130 to the contested decision, CPT prices were generally higher in Europe than in Asia due to production costs and import tariffs on CPTs from Asia, the fact remains that, as is apparent from the minutes of the meetings examined in recitals 251, 252, 294 and 295 to that decision, there was a correlation between the prices practised on both continents. Thus, firstly, the European CPT prices were regularly monitored at the Asian glass meetings; secondly, the Asian prices were used as a proxy during the examination of the European price level and the conclusion of price-fixing agreements; thirdly, the capacity reductions in Asia facilitated the price increase efforts in Europe, and, fourthly, the cooperation of the Asian producers was seen as essential for the price fixing in Europe.

124    It follows that the Commission was entitled to find that, from the first years of the cartel, the participants had attempted to maintain a price gap between identical products marketed in Europe and in Asia and had endeavoured to increase the European price, and that the maintenance of such a gap seems to have been a specific concern of the Asian undertakings, so that their imports from Asia would not jeopardise their own production in Europe and their attempts to achieve higher prices in Europe.

125    It follows that, contrary to the applicants’ contentions, the production level and the prices in Asia had an impact on the European prices. Moreover, as was observed in the contested decision, several Asian participants in the cartel had production lines in Europe during most of the period when the competitors had meetings with each other. In addition, it is apparent from the contested decision that certain European subsidiaries informed their Asian headquarters about the market situation and agreements concluded within the framework of the CPT cartel in Europe and vice versa, a fact which the applicants do not dispute.

126    In the second place, it must be observed that the applicants do not dispute that the minutes of the ASEAN meetings included some references to the European market, or that the discussions concerned the fixing or increase of prices, or that exchanges of sensitive commercial information were made between competitors. The applicants confirm that the Chunghwa notes of the meetings of 16 February and 16 March 2004 show that a price increase was discussed and that its implementation was monitored. However, they attempt to show that only a few isolated pricing agreements were concluded at those meetings and to play down their scope, on the ground that those meetings were not focused fully on Europe. The applicants assert, in that regard, first, that the ASEAN meetings had a regional scope and, second, that the few references to the European prices in the contested decision (recitals 429, 437 and 443) seeking to link the price agreements concluded in Asia to Europe do not prove that the meetings in question formed part of a single and continuous infringement. However, contrary to the applicants’ assertions and as the Commission submits and is apparent from their minutes, some of those meetings — including those of 5 September 2003 and 16 February, 16 March and 5 November 2004 — included, apart from references to a price agreement covering Europe, with respect to specific customers and the implementation of which was meticulously monitored, discussions on future supply and demand, production lines and capacities and concerned the global market, including the EEA. Therefore, such exchanges of commercially sensitive information between competitors, such as those which took place at the meetings of 18 June 2004 and 6 December 2005, constitute concerted practices which may enable the restriction of output and the allocation of market shares. In that regard, the lack of formal agreements on those last two aspects of the infringement has no bearing on the lawfulness of the contested decision, in accordance with the case-law cited in paragraph 76 above. Moreover, as the Commission submits, the fact that part of the discussions concerned Asia is attributable to the fact that the majority of the production installations were located in that region.

127    As for the SML meetings, the applicants claim that the contested decision contains only a few very limited references to the conclusion of price agreements in Europe and that the minutes of those meetings show that the discussions on Europe were separate from those relating to Asia. Consequently, they state that, out of the 13 meetings which took place during the period from 10 February 2003 until 12 June 2006 and on which that decision relies, the decision alleges only two isolated and narrow instances of actual price fixing in relation to Europe and limited to 32-inch CPTs, namely the meetings of 28 November 2003 and 10 December 2004, for a single quarter in the first case and two quarters in the second. In addition, in relation to allocating market shares and restricting output, the applicants state that the contested decision merely refers, respectively, to the meetings of 10 February 2003, in which MTPD did not participate, and of 12 December 2005. Therefore, according to the applicants, the Commission was not able to prove that the SML meetings formed part of a coordinated plan encompassing the European glass meetings.

128    It is sufficient to note that the applicants do not dispute that MTPD participated in all the SML meetings, with the exception of the first of them, which was held on 10 February 2003 and which is mentioned in recital 387 to the contested decision.

129    It must be observed that the applicants do not dispute that the undertakings present in those meetings, including MTPD, exchanged information concerning Europe and analysed the worldwide situation, including Europe, at some of those meetings, namely those of 24 July and 28 November 2003, 6 May and 10 December 2004 and 26 September and 12 December 2005. In addition, they do not dispute the findings of the contested decision that the participants in those meetings discussed the desirability of monitoring prices on the European market, including those of small and medium-sized CPTs, and identified the need to monitor production and coordinate the closure of European factories. In addition, they accept that two of those meetings, namely those of 28 November 2003 and 10 December 2004, expressly concerned the fixing of prices in Europe (see paragraph 127 above). It follows that the applicants’ arguments that the guidelines on the prices agreed upon at other SML meetings, such as that of 24 July 2003, concerned only Asia are irrelevant.

130    Furthermore, the allegation that those meetings concerned only a single or only two quarters has no bearing on the lawfulness of the contested decision, having regard to the fact that the SML meetings took place on a regular basis and that, apart from the SML meeting of 10 February 2003, MTPD participated in all those meetings, and also in the ASEAN meetings, over a period covering at least from 25 April 2003 to 10 November 2006.

131    Nor can the applicants reasonably claim that the exchanges of information on Europe were part of a general market discussion unrelated to the global CPT cartel, since sensitive commercial data was exchanged between participants during the SML meetings, which explicitly related to the capacity and production of the European factories, the prices of certain sizes of CPT for specific quarters, sales and the supply and demand on that market.

132    As for the alleged lack of convergence between the prices fixed for CPTs in Asia and in Europe, it is sufficient to note that, even if it were established, it cannot call into question the existence of a single and continuous infringement. First, the price guidelines set were to take account of the conditions prevailing on each market. Second, as the Commission states in its written pleadings and as the applicants indeed seem to admit, that divergence is explained by the fact that some of the minutes made reference to the minimum prices or bottom prices, below which sales should not be made, whereas others made reference to the target prices.

133    As regards the applicants’ arguments that no agreement was concluded, in the context of the SML meetings, on the allocation of market shares and the restriction of CPT production, it must be stated that it is apparent from the minutes of several of those meetings that, in those meetings, the participants exchanged data on production, sales and capacities and on their forecasts on a global level for that period of the infringement, which was capable of being used to calculate the market shares of the participating undertakings and to monitor the agreement, and that they set guidelines on the global prices for CPTs of various sizes.

134    Lastly, the applicants cannot reasonably claim that the conclusion in recitals 422 and 426 to the contested decision that MTPD had participated actively in the agreements to fix prices in Europe and to restrict production during the last phase of the CPT cartel (2004 to 2006) is based solely on a few isolated contacts, such as the bilateral meeting of 26 January 2004, which was held in Germany between MTPD Germany and Samsung SDI, and the European multilateral meeting of 16 February 2004 between Samsung SDI, Thomson and the LPD group. The contention that MTPD attended only a single bilateral meeting in Europe and that it did not attend the European glass meetings has no bearing on the lawfulness of the contested decision, since it maintained regular contacts with the main participants in the cartel, within the context of which it exchanged sensitive commercial information, and since both itself and MEI were kept informed of the content of those meetings and the discussions at worldwide level.

135    Moreover, as the Commission states in its written pleadings, the minutes of the European glass meeting of 4 December 2003, which was held in Paris between Samsung SDI, Thomson and the LPD group just before the bilateral meeting of 26 January 2004 between MTPD Germany and Samsung SDI, explicitly mentioned MTPD so far as concerns the discussions on the prices of 32-inch CPTs, and stated that it was desirable to ‘involve and agree the same approach with MTPD in this agreement’, and also contained tables with a ‘sales plan’ about MTPD for 2004. That information supports the conclusion that MTPD knew of the existence of the European glass meetings, even though it did not participate in them.

136    Moreover, the applicants do not dispute that, as indicated in recitals 422 and 423 to the contested decision and as is apparent from its minutes, the object of the meeting of 26 January 2004, designed to agree upon prices and the supply strategy, was anticompetitive. The applicants merely maintain that it is apparent from the minutes of that meeting that MTPD refused to participate in a price-fixing agreement with the LPD group, Samsung SDI and Thomson because ‘the information [was] not believable’. However, even though the reference to the fact that MTPD did not wish to cooperate with the LPD group and Thomson is found in those minutes, as is moreover indicated in the contested decision, the rest of those minutes do not show that MTPD withdrew from the collusive practices. On the contrary, they prove that MTPD agreed with Samsung SDI on the volumes of sales to particular customers and on prices and that those two undertakings were willing to cooperate to replace Thomson as supplier. Indeed, as the Commission asserts, that reference shows that the possibility of cooperating with the LPD group and Thomson, which participated in the European glass meetings, was discussed and that MTPD therefore knew of the existence of cooperation at European level.

137    Similarly, notwithstanding the fact that MTPD did not participate in the multilateral meeting of 16 February 2004 between Samsung SDI, the LPD group and Thomson, it cannot claim that it could not foresee that Samsung SDI would exchange the figures reported by it at the meeting of 26 January 2004 with the LPD group and Thomson, especially as those figures concerned the production and sales volumes predicted for Philips on the basis of a quantity of CPTs supplied jointly by LPD, MTPD, Thomson and Samsung SDI. 

138    Moreover, it is apparent from recitals 413 to 415 to the contested decision that, during the last phase of the CPT cartel, from 2004 to November 2006, apart from the SML and ASEAN meetings, which were the main multilateral fora, several ad hoc contacts relating to global sales and production plans took place, inter alia in Europe, involving MTPD and participants in the European glass meetings, such as Samsung SDI, the LPD group and Thomson. In that regard, footnote 1074 mentions bilateral information exchange meetings which took place between the LPD group and MTPD on 6 December 2004 as well as on 21 February and 8 July 2005. Moreover, according to that same footnote, MTPD included documents in its reply to the Commission’s request for information, from which it is apparent that information originating from its competitors, relating to CRT manufacturers’ production capacity and dated November 2006, as well as worldwide data, planning on sales, supply and production and demand forecasts, relating to CRT televisions and dated April 2005, had been submitted to MTPD, a fact which the applicants do not dispute.

139    In addition, as was noted in recital 434 to the contested decision, relating to the SML meeting of 6 May 2004, and as is apparent from the minutes of that meeting, all major geographic regions and sales results and plans for 2005 were examined by the participants in that meeting. In that regard, footnote 1122 of the contested decision states that discussions on worldwide capacities and sales forecasts continued to be a constant feature of the SML meetings throughout the last period of the cartel, as is evidenced by the minutes of the meetings of 18 May and 10 December 2004, 15 March, 30 June and 26 September 2005 and 31 March, 12 June and 10 November 2006. Similar discussions also took place in numerous bilateral meetings such as the one between Samsung SDI and MTPD on 19 April 2006. Those findings have not been called into question by the applicants.

140    In view of the above, the evidence on which the Commission relied demonstrates to the requisite legal standard and without disregarding the requirements laid down in Amann & Söhne and Cousin Filterie v Commission (Case T‑446/05 [2010] ECR II‑1255, paragraph 92), invoked by the applicants, that the SML and ASEAN meetings and the bilateral contacts in which MTPD participated were part of an overall plan pursuing an objective identical to that of the European meetings, so that it can be considered that MTPD participated in a single and continuous infringement on the global CPT market.

141    That conclusion cannot be called into question by the fact that the Asian glass, SML and ASEAN meetings, on the one hand, and the European glass meetings, on the other, did not group together the same participants. In that regard, as the Commission observes and as is apparent from recitals 123 to 130 to the contested decision, the first multilateral Asian meetings, formally organised from 1998, involved the five undertakings, with which participants with production installations in Europe, such as MEI, were associated as from 1999. During the intermediate phase of the cartel, Samsung SDI, the LPD group and MTPD participated in the SML and ASEAN meetings, whereas Chunghwa and [confidential] participated only in the ASEAN meetings. Lastly, between 2004 and 2006, Samsung SDI, the LPD group and Thomson participated in the European glass meetings.

142    However, as is apparent from the examination of the second plea, even though MEI did not participate in any of the Asian glass meetings or European glass meetings before 1 April 2003, it was kept informed of their content through bilateral contacts maintained with Samsung SDI, Chunghwa, Philips, LGE, later replaced by the LPD group, [confidential] or Thomson. Moreover, according to recitals 129 and 254 to the contested decision, the subsidiaries of those same undertakings and, occasionally, the same individuals participated in meetings with competitors in both Europe and Asia. In that regard, in footnote 180 of the contested decision (recital 129), it was observed, inter alia, that Mr M., who regularly participated in the European meetings on behalf of Philips and the LPD group, attended, for example, the meeting of 21 September 1999 in Asia. That meeting was held between Chunghwa, Samsung SDI, LGE, [confidential] and Philips.

143    In addition, Mr S., who was Regional Manager of the LPD group for Europe from 1997 to 1999 and from 2001 to 2003, and for Asia Pacific from 1999 to 2001, participated in numerous Asian meetings, in the present case in 1999, in 2000 and in 2001. Mr Mo. [confidential] attended both the European meetings of 2 October and 11 November 1999 and the Asian meetings of 7 March, 15 April and 1 June 1999. Furthermore, Mr C., of Chunghwa, participated in the European meetings but was also informed of the outcome of the meetings organised in Asia. Lastly, the European subsidiaries also reported this back to their headquarters in Asia.

144    The applicants assert that that evidence is prior to 10 February 2003 and does not establish that Messrs S. and C. attended any European meeting or that those persons attended both the SML or ASEAN and the European meetings. However, that argument is ineffective since it has been established that the applicants developed contacts with the participants in the European meetings after that date and that they were involved in the Asian, SML and ASEAN meetings, which pursued the same objective.

145    In the light of all of the foregoing, the second and third pleas must be rejected as unfounded, without it being necessary, in any event, to examine the applicants’ allegation of infringement of the rights of the defence, in so far as the Commission relied in particular on a list of meetings set out in an annex to the contested decision in order to prove that they knew of the existence or content of the CPT cartel and that they had participated in it through bilateral contacts.

146    Therefore, the applicants’ first head of claim seeking annulment of the contested decision, in so far as it concerns them, must be rejected.

 The second head of claim, seeking the cancellation or reduction of the fine imposed on the applicants

 Preliminary observations

147    In the application, in support of their second head of claim, the applicants put forward a single plea in law, alleging infringement of the principle of proportionality in the calculation of the amount of the fine.

148    In response to the measures of organisation of procedure referred to in paragraph 32 above, the applicants requested the Court, primarily, in the exercise of its unlimited jurisdiction, to raise of its own motion a plea alleging that the Commission lacked territorial jurisdiction to impose a fine on undertakings participating in a cartel involving the sale of products outside the EEA, such as EEA sales through transformed products, since it is a plea involving a question of public policy. In the alternative, and in accordance with the first subparagraph of Article 48(2) of the Rules of Procedure of 2 May 1991, they sought leave to raise that plea as a new plea in law based on matters of law which had come to light in the course of the procedure, resulting from the analysis carried out by Advocate General Wathelet in his Opinion in InnoLux v Commission (cited in paragraph 32 above).

149    Without there being any need to rule on the admissibility of the applicants’ request, it is sufficient to find that such a plea cannot in any event be upheld, since, by judgment of 9 July 2015 in Case C‑231/14 P InnoLux v Commission (ECR), the Court of Justice endorsed the General Court’s assessment that when undertakings which are established outside the EEA, but which produce goods that are sold within the EEA to third parties, collude on the prices they charge to their customers in the EEA and put that collusion into effect by selling at prices which are actually coordinated, they are taking part in collusion which has the object and effect of restricting competition within the internal market within the meaning of Article 101 TFEU, which the Commission has territorial jurisdiction to proceed against (Case T‑91/11 InnoLux v Commission [2014] ECR, paragraph 58).

150    In addition, as regards the determination of the value of sales for the purpose of calculating the amount of the fine to be imposed as a result of such an infringement, the Court of Justice confirmed the General Court’s assessment that the Commission could take into account the sales of finished products by an undertaking in the EEA to independent third parties when the internal sales of the goods concerned by the infringement had been made outside the EEA (Case C‑231/14 P InnoLux v Commission, cited in paragraph 149 above, paragraph 74).

151    In the light of the foregoing, the applicants’ request must be dismissed.

 The single plea in law, alleging infringement of the principle of proportionality in the calculation of the amount of the fine

152    This plea may be broken down into two parts. In the first part, the applicants claim that the contested decision infringed the principle of proportionality, on the grounds that the methodology used in calculating the amount of the fine had the effect of assigning an erroneously inflated value to intragroup sales. In the second part, the applicants submit that the fine imposed on them fails to take account of their limited involvement in the cartel.

 The methodology used for determining the value of sales

153    The applicants claim that the methodology used in the contested decision for calculating the value of direct EEA sales through transformed products is incorrect and led to a fine which is disproportionate to the actual impact of those sales on the market. In that regard, firstly, they observe that, according to the Commission’s request for information of 4 March 2011, the value of those sales was to be calculated as the average of the value of direct EEA sales in the same period, multiplied by the number of CPTs concerned. Thus, the applicants claim that the Commission’s methodology started from the mistaken premiss that the average value of CPTs incorporated in transformed products was identical to the average value of direct sales of CPTs in the EEA. According to the applicants, that approach ignores the fact that, so far as concerns Panasonic, the sizes of CPTs incorporated in transformed products by the group were generally smaller and therefore of lower value than those sold directly to third parties in the EEA, as was established by the report of a firm of consultants in competition economics, annexed to the reply to the Commission’s request for information, formulated by the applicants on 20 April 2011. Secondly, the applicants submit that, unlike the approach advocated by the Commission, which was based only on the period during which the CPTs were sold to third parties, the methodology which they had proposed was more accurate, since it was based on a weighted average taking into account both the time period and the size of the CPTs incorporated into Panasonic televisions. The applicants complain that although the Commission did not deny the accuracy of the data provided by the applicants, it did not take that data into account in its calculation of the amount of the fine which was imposed on them by the contested decision.

154    The Commission claims that the 2006 Guidelines do not require that the actual impact on the market of an infringement of Article 101 TFEU be taken into account. Furthermore, it observes that the applicants propose an alternative methodology not because it is more accurate, but merely because it appears to give a lower value of sales and therefore a lower fine. The Commission maintains that it is under no obligation to choose a particular method that would lead to a lower fine, but only to apply the 2006 Guidelines in a manner that adequately reflects the reality of the infringement as a whole.

155    In this respect, as regards the review carried out by the European Union judicature in respect of Commission decisions on competition matters, it should be borne in mind that the unlimited jurisdiction authorises the competent court to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine (see Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 86 and the case-law cited).

156    It is true that the case-law of the Court of Justice makes clear that the exercise of unlimited jurisdiction in respect of the determination of fines cannot result in discrimination between undertakings which have participated in an agreement contrary to Article 101(1) TFEU (Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 51 above, paragraph 617, and Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 152). If the General Court intends, in the case of one of those undertakings, to depart specifically from the method of calculation followed by the Commission, which it has not called into question, it must give reasons for doing so in the judgment (Case C‑338/00 P Volkswagen v Commission [2003] ECR I‑9189, paragraph 146, and judgment of 30 May 2013 in Case C‑70/12 P Quinn Barlo and Others v Commission, not published in the ECR, paragraph 46).

157    Next it should be noted that, pursuant to point 13 of the 2006 Guidelines, in determining the basic amount of the fine to be imposed on the basis of Article 23(2)(a) of Regulation No 1/2003, the Commission is to 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.

158    As was observed in paragraph 16 above, it is apparent from the contested decision that, in order to determine the basic amount of the fines, the Commission took into account the proportion of direct sales of CPTs — sold as such or through transformed products — made into the EEA throughout the duration of the infringement, and which were the act of one of the addressees of the contested decision, multiplied by the number of years of their participation in the infringement (recitals 1020, 1021, 1034, 1042 and 1056).

159    In recital 1022 to the contested decision, the Commission observed that, although the taking into account of the direct sales made into the EEA through transformed products led to the inclusion of intragroup sales for some of the parties, including joint venture parents, focusing on the first EEA sale of the product concerned by the infringement — whether transformed or not — to a customer or a company that was not part of the supplier undertaking ensured that no discrimination was made between vertically integrated companies and non-vertically integrated companies.

160    In addition, in recital 1026 to the contested decision, the Commission observed that, by focusing on the value of direct EEA sales as well as the value of direct EEA sales through transformed products, its purpose was to consistently include in the value of sales the cartelised products only when they were sold for the first time to a customer which was external to the cartel undertakings and was located in the EEA. The Commission also stated that it had not taken into account the value of the transformed product as a whole, but only the value of the CPTs within it. Lastly, in recitals 1027 and 1028 to the contested decision, the Commission observed that, since the concertation on volumes and the output restriction had encompassed all production and sales of the participants, the sales to intragroup customers were part of the cartel discussions.

161    It must be noted that the applicants do not dispute the taking into account of intragroup sales or direct sales through transformed products when calculating the amount of the fine which was imposed on them, but that they call into question the accuracy of the Commission’s calculation of the value of those sales, as results from the contested decision. The applicants claim, in this respect, to have indicated that in their response of 20 April 2011 to the Commission’s request for information of 4 April 2011.

162    At the hearing, the applicants stated that they had provided the Commission with exact figures which took account, to the extent possible, of the number of CPTs incorporated, according to their size and their price, per year concerned. In addition, the applicants reiterated their argument that, although the Commission did not deny the accuracy of that data, it did not take that data into account and gave no justification for not doing so.

163    The Commission has confirmed that it does not deny the accuracy of the data in question, but argued that applying a different methodology to the applicants in relation to the other addressees of the contested decision, which had not submitted such data, would have led to an infringement of the principle of equal treatment. The Commission also stated that, should the Court consider that the figures presented by the applicants were more accurate, it would not object to the calculation carried out by the applicants being used to recalculate the amount of the fine.

164    It must be observed that, as was stated in recital 1032 to the contested decision, the addressees of that decision had been requested, by letter of 4 March 2011, to use specific data on their direct EEA sales and their direct EEA sales through transformed products as a basis to calculate the value of their sales and had been informed of the method of calculating the requested set of figures. It is apparent from the instructions, provided in Annex I to that letter with a view to responding to the questionnaire prescribed for that purpose, that the calculation method recommended by the Commission so far as concerned direct EEA sales through transformed products was based on the average of the value of direct EEA sales made during the same period, multiplied by the number of CPTs concerned. In the absence of direct EEA sales during the relevant period, or in the event that they were not representative, the undertakings concerned were requested to contact the Commission in order to discuss an alternative calculation method.

165    It must be stated that it is apparent from the applicants’ response of 20 April 2011 to the Commission’s request for information that the applicants suggested an alternative method of calculating the value of direct EEA sales through transformed products, which was set out in an economic report of 19 April 2011 drawn up by RBB Economics (see paragraph 153 above) and annexed to that response. That calculation method consisted in taking into account the weighted average of the CPTs associated with those sales, in terms of their actual size and the period concerned, by having recourse to the figures provided by the applicants. In that report, the value of direct EEA sales through transformed products was calculated by associating with each size of television sold during the infringement period the average value of CPTs of the same size. In the absence of sales of CPTs of an identical size during a specified period, the data used by that report was based on the weighted average of the value of all the CPTs sold during that period, of varying sizes, which followed the Commission’s method.

166    According to the applicants, their approach leads to results which are more accurate and closer to reality, whereas the methodology used by the Commission might have the effect of assigning prices of large-sized CPTs to televisions of smaller sizes.

167    It must be borne in mind, in that regard, that, as set out in point 15 of the 2006 Guidelines, in determining the value of sales by an undertaking, the Commission is required to take that undertaking’s best available figures. However, since the Commission had data more accurately reflecting the value of direct EEA sales through transformed products — a fact which it also acknowledged at the hearing — it is sufficient to note that it departed from those guidelines so far as concerns the calculation of the basic amount of the fines imposed on the applicants, without providing any justification.

168    The Court of Justice has already held that the guidelines set out rules of practice from which the Commission may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. In adopting such rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 209 and 211). However, although the Commission must observe the principle of the protection of legitimate expectations when it applies its self-imposed guidelines, that principle cannot bind the Courts of the European Union in the same way, in so far as they do not propose to apply a specific method of setting the amount of fines in the exercise of their unlimited jurisdiction, but consider case by case the situations before them, taking account of all the matters of fact and of law relating to those situations (see, to that effect, Quinn Barlo and Others v Commission, cited in paragraph 156 above, paragraph 53).

169    For the purposes of setting the amount of the fines imposed on the applicants, the Court should therefore take account, in the exercise of its unlimited jurisdiction, of the figures provided by the applicants during the administrative procedure, the correctness of which has not been disputed by the Commission. However, it is important to note in that respect that, in response to the measures of organisation of procedure referred to in paragraph 32 above, the applicants stated that the figures set out in the application relating to the total value of Panasonic’s sales until 31 March 2003 wrongly included also the sales made in July 1999 and provided corrected data in that respect, which was not contested by the Commission.

170    It follows from the foregoing that the first part of the plea must be upheld.

 The existence of mitigating circumstances

171    The applicants maintain that their role was extremely limited, since it is common ground that until 10 February 2003 MEI did not participate in any of the Asian glass, European glass, SML or ASEAN meetings. Likewise, it submits that, after that date, MTPD did not participate in any of the multilateral European meetings.

172    The Commission disputes that line of argument.

173    It should be recalled that, according to settled case-law, the grant of a reduction of the basic amount of the fine in respect of mitigating circumstances is necessarily linked to the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful agreement. Recognition of a mitigating circumstance, in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement, cannot result in the fine imposed being deprived of deterrent effect and in the effectiveness of Article 101(1) TFEU being undermined (see, to that effect, Case C‑511/06 P Archer Daniels Midland v Commission [2009] ECR I‑5843, paragraphs 104 and 105 and the case-law cited).

174    It is also clear from the case-law that the guidelines adopted by the Commission form rules of practice from which it may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment, a principle which precludes comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified (see Case C‑101/08 Audiolux and Others [2009] ECR I‑9823, paragraph 54 and the case-law cited).

175    Point 29 of the 2006 Guidelines states the following:

‘The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:

–        where the undertaking concerned provides evidence that it terminated the infringement as soon as the Commission intervened: this will not apply to secret agreements or practices (in particular, cartels);

–        where the undertaking provides evidence that the infringement has been committed as a result of negligence;

–        where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount;

–        where the undertaking concerned has effectively cooperated with the Commission outside the scope of the [2002] Leniency Notice and beyond its legal obligation to do so;

–        where the anti-competitive conduct of the undertaking has been authorised or encouraged by public authorities or by legislation.’

176    As is apparent from point 29 of the 2006 Guidelines, the Commission is under no obligation always to take account separately of each of the mitigating circumstances listed: it ‘may’ reduce the basic amount. Although the circumstances in the list in point 29 of the 2006 Guidelines are certainly among those which may be taken into account by the Commission in a specific case, it is not required to grant a further reduction as a matter of course once an undertaking has put forward evidence of the existence of one of those circumstances; the appropriateness of any reduction of the amount of the fine in respect of mitigating circumstances must be examined comprehensively on the basis of all the relevant circumstances. The adoption of the Guidelines has not rendered irrelevant the previous case-law under which the Commission enjoys a discretion as to whether or not to take account of certain matters when setting the amount of the fines it intends imposing, by reference to the circumstances of the case. Thus, in the absence of any binding indication in the Guidelines regarding the mitigating circumstances that may be taken into account, it must be concluded that the Commission has retained a degree of latitude in making an overall assessment of the extent to which a reduction of fines may be made in respect of mitigating circumstances (see judgment of 2 February 2012 in Case T‑83/08 Denki Kagaku Kogyo and Denka Chemicals v Commission, not published in the ECR, paragraph 240 and the case-law cited).

177    In the present case, as regards the argument that the Commission ought to have taken into consideration the fact that MEI and MTPD did not participate in the European glass meetings, it should be borne in mind, as is apparent from the analysis of the second and third pleas, that the Commission was entitled to consider that the applicants had participated, via bilateral contacts, in a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement, covering the entire territory of the EEA, consisting of agreements and concerted practices aimed at agreeing on prices and production and exchanging sensitive commercial information between competitors. In view of the Commission’s discretion when setting the amount of the fines it intends imposing, the Commission was entitled to conclude in the light of all those factors that there were no grounds for mitigating circumstances.

178    Nor have the applicants established that they opposed the cartel to the point of disrupting its smooth functioning, the standard which is however laid down by the case-law in order for non-implementation of the cartel to be recognised as justifying a reduction of the amount of the fine in respect of mitigating circumstances. According to the case-law, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting its very functioning, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question. The fact that an undertaking which has been proved to have participated in collusion on market sharing with its competitors did not behave on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when determining the amount of the fine to be imposed (see Denki Kagaku Kogyo and Denka Chemicals v Commission, cited in paragraph 176 above, paragraph 248 and the case-law cited).

179    It follows that the Commission did not exceed the limits of its discretion in that area in not taking into account, as a mitigating circumstance justifying a reduction of the amount of the fine, the fact — even if it were proved — that the applicants did not participate in all the constituent elements of the cartel in question. Concerning liability for the infringement as such, the case-law shows that the fact that an undertaking has not participated directly in all the elements constituting an overall cartel cannot absolve it from liability for infringement of Article 101(1) TFEU if it is established, as in the present case, that it must necessarily have known, first, that the collusion in which it was participating was part of an overall plan, and, second, that that overall plan included all the constituent elements of the cartel (see, to that effect, Case T‑21/05 Chalkor v Commission [2010] ECR II‑1895, paragraph 91 and the case-law cited).

180    Moreover, the applicants do not explain how, by not granting them the benefit of a mitigating circumstance, the Commission infringed the principle of proportionality or the principle of equal treatment.

181    Even if, by their arguments, the applicants seek to establish that their role in the cartel was exclusively passive, it must be observed, first, that, as the Commission states in the rejoinder, although that circumstance was expressly cited as a possible mitigating circumstance in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3), it is no longer one of the mitigating circumstances which can be taken into account under the 2006 Guidelines. That therefore manifests a deliberate political choice to no longer ‘encourage’ passive conduct by those participating in an infringement of the competition rules. That choice falls within the discretion of the Commission in determining and implementing competition policy.

182    Second, an ‘exclusively passive or follow-my-leader’ position in the infringement implies, by definition, that the undertaking concerned will adopt a ‘low profile’, that is to say not actively participate in the creation of any anticompetitive agreements (Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 167). It is clear from case-law that one factor that may indicate that an undertaking has played a passive role in a cartel is where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel; another is where representatives of other undertakings which participated in the infringement makes an express declaration regarding the role played by that undertaking in the cartel, regard being had to all the relevant circumstances of the individual case (see Cheil Jedang v Commission, paragraph 168 and the case-law cited).

183    In the present case, the applicants participated in a not inconsiderable number of cartel meetings, whose anticompetitive nature has been established, and admitted having provided their competitors with certain information. Even if that information was incorrect or available elsewhere, the applicants none the less gave the impression to their competitors that they were taking part in the cartel and, therefore, contributed to encouraging it. In addition, none of the participants in the cartel in question stated that the applicants had adopted a ‘low profile’ during the infringement. For those reasons, it cannot be considered that their role was exclusively passive.

184    Moreover, as was found by the Commission in recital 1069 to the contested decision, MTPD’s alleged marginal market share in the EEA was reflected in the value of its sales and was not to be taken into account separately in the setting of the percentage of the basic amount of the fine to be imposed.

185    It follows that the Commission did not exceed the limits of its discretion in that area in not taking into account, as a mitigating circumstance justifying a reduction of the amount of the fine, the alleged exclusively passive and marginal role of the applicants.

186    In those circumstances, the Court finds that no other reason that can be linked to the applicants’ arguments raised in support of this part of the plea gives grounds for considering the amounts of the fines to be inappropriate, having regard, on the one hand, to the gravity and the duration of the applicants’ infringement and, on the other, to the need to impose fines on the applicants whose amount acts as a deterrent.

187    The Court further takes the view that there is in this case 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, in addition, the use of its power to vary the contested decision with a view to annulling or reducing the amount of the fines.

188    Accordingly, the second part of the plea relied on in support of the second head of claim, seeking annulment or reduction of the fines imposed on the applicants, must be rejected.

 The exercise of unlimited jurisdiction and the final determination of the amount of the fines imposed on the applicants

189    It must be recalled that, as was found following the examination of the first part of the plea relied on by the applicants in support of their second head of claim, the Commission departed from point 15 of the 2006 Guidelines when setting the basic amount of the fines imposed on the applicants, without providing any objective justification. It is appropriate for the Court, in accordance with the case-law cited in paragraph 158 above, to take account of that fact when exercising its unlimited jurisdiction.

190    In those circumstances, the Court considers it fair, having regard to the circumstances of the present case, to set the amount of the fines to be imposed on the applicants on the basis of the data relating to the value of sales which they provided in response to the Commission’s request for information and which they reproduced in their written pleadings before the Court, as specified in their responses to the questions referred to in paragraphs 32 and 169 above. The amount thus established is EUR 128 866 000, so far as concerns Panasonic, for its direct participation in the CPT cartel before the creation of MTPD; EUR 82 826 000, so far as concerns the fine imposed jointly and severally on Panasonic, Toshiba and MTPD, and EUR 7 530 000, so far as concerns the fine imposed jointly and severally on Panasonic and MTPD.

 Costs

191    Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.

192    In the present case, the first part of the single plea relied on by the applicants in support of their second head of claim, seeking variation of the contested decision, has been upheld by the Court. Accordingly, it is fair in the circumstances of the case to decide that each party is to bear its own costs.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Sets the amount of the fines imposed by Article 2(2)(f), (h) and (i) 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) at EUR 128 866 000, so far as concerns Panasonic Corp., for its direct participation in the infringement concerning the colour picture tubes for television sets market; at EUR 82 826 000, so far as concerns Panasonic, Toshiba Corp. and MT Picture Display Co. Ltd, jointly and severally, and at EUR 7 530 000, so far as concerns Panasonic and MT Picture Display, jointly and severally;

2.      Dismisses the action as to the remainder;

3.      Orders each party to bear its own costs.

Papasavvas Forwood Bieliūnas

Delivered in open court in Luxembourg on 9 September 2015.

[Signatures]

Table of contents

Background to the dispute

Applicants and relevant product

Administrative procedure

Contested decision

Procedure and forms of order sought

Law

The first head of claim, seeking partial annulment of the contested decision

The first plea, alleging infringement of the rights of the defence and the right to be heard

The second and third pleas, alleging that the Commission has not proved that the applicants knew of the existence or content of the cartel and that they participated in a single and continuous infringement

– The period prior to the creation of MTPD

– The period subsequent to the creation of MTPD

The second head of claim, seeking the cancellation or reduction of the fine imposed on the applicants

Preliminary observations

The single plea in law, alleging infringement of the principle of proportionality in the calculation of the amount of the fine

The methodology used for determining the value of sales

The existence of mitigating circumstances

The exercise of unlimited jurisdiction and the final determination of the amount of the fines imposed on the applicants

Costs

* Language of the case: English.

1 This judgment is published in extract form.

2 – Confidential information omitted.