JUDGMENT OF THE GENERAL COURT (Third Chamber)
9 September 2015 (*)
(Competition — Agreements, decisions and concerted practices — Global market for cathode ray tubes for television sets and computer monitors — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Agreements and concerted practices on pricing, market sharing, capacity and production — 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 (1)
…
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
…
The second head of claim, seeking the cancellation or reduction of the fine imposed on the applicants
…
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.
…
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]