Case T‑128/11

(publication by extracts)

LG Display Co. Ltd
and
LG Display Taiwan Co. Ltd

v

European Commission

(Competition — Agreements, decisions and concerted practices — Worldwide market for liquid crystal display (LCD) panels — Agreements and concerted practices concerning prices and production capacity — Internal sales — Rights of the defence — Fines — Partial immunity from fines — Single and continuous infringement — Ne bis in idem principle)

Summary — Judgment of the General Court (Sixth Chamber), 27 February 2014

1.      Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the value of sales — Criteria — Account to be taken of sales to third-party undertakings — Condition

(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13)

2.      Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the value of sales — Criteria — Account to be taken of companies forming part of the same group but not forming a single undertaking with the undertaking in question — Different treatment of sales within single undertakings having also participated in the cartel — No breach of the principle of equal treatment

(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13)

3.      Competition — Fines — Amount — Determination — Criteria — Reduction in the amount of the fine in return for cooperation of the undertaking concerned — Distinction between one situation giving rise to immunity from a fine and another giving rise to a reduction in its amount — Partial immunity — Conditions — Restrictive interpretation

(Art. 101(1) TFEU; Commission Notice 2002/C 45/03, points 8(b), and 23(b), third para.)

4.      Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for the entire infringement to a single undertaking — Conditions

(Art. 101(1) TFEU)

5.      Competition — Fines — Amount — Determination — Criteria — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Partial immunity granted for a certain period — Consequences — Exclusion of that period from all the steps for calculating the fine

(Art. 101(1) TFEU; Commission 2002/C 45/03, point 23(b), third para.)

6.      Competition — Fines — Amount — Determination — Guidelines on the method of setting fines for infringements of the competition rules — Reduction of the fine in exchange for cooperation of the undertaking concerned outside the scope of the Leniency Notice — Conditions

(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notices 2002/C 45/03 and 2006/C 210/02, point 29, fourth indent)

7.      Competition — Administrative procedure — Commission decision finding an infringement — Single and continuous infringement — No obligation on the Commission to prosecute conduct falling within a single and continuous infringement by a single procedure — Discretion of the Commission as to the scope of procedures — Limits — Observance of the ne bis in idem principle

(Art. 101(1) TFEU)

8.      Competition — Administrative procedure — Decision establishing an infringement — Obligation to state reasons — Scope

(Arts 101 TFEU, 102 TFEU and 296 TFEU)

9.      Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope

(Arts 101 TFEU, 102 TFEU and 261 TFEU; Council Regulation No 1/2003, Art. 31)

1.      With regard to determination of the basic amount of fines imposed for breach of competition law, where a participant in an infringement sells the products concerned by the latter to companies which do not form part of a single undertaking with that participant, the sales in question may be regarded as having been made to independent third parties, even if there is a link between the said participant and those companies. However, the Commission is still required to explain in what way the sales in question are linked to the cartel.

(see paras 60-63)

2.      With regard to determination of the basic amount of fines imposed for breach of competition law, the fact that sales within a single undertaking are treated differently from sales between companies belonging to the same group but not being classified as a single undertaking cannot be criticised from the point of view of compliance with the equal treatment principle. The existence of a single undertaking gives rise to a different situation, which justifies the application of different categories to the respective participants.

(see paras 136-140)

3.      The last paragraph of point 23(b) of the 2002 Leniency Notice applies exclusively to cases in which two conditions are satisfied, namely, first, that the undertaking in question is the first to prove facts previously unknown to the Commission, and, second, that those facts, having a direct bearing on the gravity or duration of the presumed cartel, enable the Commission to reach new conclusions concerning the infringement.

It is appropriate to adopt a restrictive interpretation of those conditions, limiting the application of that provision to cases in which a company party to a cartel provides the Commission with new information relating to the gravity or the duration of the infringement, and by excluding cases in which a company has merely provided information which strengthens the evidence of the existence of the infringement. The effectiveness of leniency programmes would be undermined if undertakings no longer had an incentive to be the first to submit information revealing the existence of a cartel to the Commission.

Moreover, the test described in point 8(b) of the 2002 Leniency Notice is different from the test provided for in the final paragraph of point 23(b) of that notice. Point 8(b) provides that full immunity is to be granted to the undertaking which is the first to submit evidence which in the Commission’s view may enable it to find there to be a cartel. The fact that different tests are involved is an objective ground which justifies the Commission not encouraging the first and the second undertaking to provide evidence in the same manner, without infringing the principle of equal treatment.

In addition, the assessment criteria for granting a reduction for significant added value within the meaning of points 21 and 22 of the 2002 Leniency Notice are likewise different from those which must be used for determining whether a statement by an undertaking may give rise to a grant of partial immunity within the meaning of the last paragraph of point 23(b) of that notice.

(see paras 157, 166, 167, 178, 179, 190)

4.      See the text of the decision.

(see paras 193, 220, 221)

5.      In competition matters, granting an undertaking partial immunity under the last paragraph of point 23(b) of the 2002 Leniency Notice means that the latter must be treated as if it had not participated in the infringement in question during the period covered by the immunity for the purposes of calculating the amount of the fine to be imposed. That provision does not stipulate that the Commission is to disregard the facts to which that immunity relates solely for the purpose of calculating the multiplier for duration; it must be recognised as having a more general scope, which thus means those facts cannot be taken into account in relation to any aspect of the setting of the fine, including the calculation of the average value of relevant sales. In essence, partial immunity, as contemplated in the 2002 Leniency Notice, thus amounts to a ‘legal fiction’ whereby, for the purpose of setting the fine, the Commission must reason as if the undertaking that has been granted partial immunity had not participated in the infringement during the period covered by the grant.

(see paras 199, 201)

6.      The fourth indent of point 29 of the 2006 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 must be interpreted as not allowing an undertaking to receive two reductions of the fine, one under the 2002 Leniency Notice and another under the 2006 Guidelines, in respect of the same cooperation with the Commission. In relation to infringements which fall within the scope of the 2002 Leniency Notice, an interested party cannot, as a rule, validly complain that the Commission failed to take into account the extent of its cooperation as a mitigating circumstance outside the legal framework of the Leniency Notice. The solution whereby, in exceptional situations, the Commission is required to grant a reduction of the fine to an undertaking on the basis of the fourth indent of point 29 of the 2006 Guidelines must be interpreted as meaning that a prerequisite for the existence of such situations is that the cooperation of the undertaking concerned, while going beyond its legal obligation to cooperate, none the less does not give rise to the right to a reduction of the fine under the 2002 Leniency Notice.

(see paras 205-208)

7.      In competition matters, whilst the interpretation of the concept of a single and continuous infringement permits the Commission to proceed, by means of a single set of proceedings and a single decision, against several instances of conduct which could have been proceeded against individually, that does not mean that the Commission is obliged to act in that way. Thus, no objection can, as a rule, be made where the Commission proceeds separately against different instances of conduct which it could have grouped together in a single and continuous infringement. Accordingly, the Commission has a discretion as to the scope of the proceedings which it initiates. It cannot be obliged to find and penalise all anti-competitive conduct, nor could the Courts of the European Union hold — if only for the purposes of reducing the fine — that the Commission, in the light of the evidence available to it, should have found that there was an infringement during a particular period by a particular undertaking.

The exercise of that discretion is subject to review by the Courts. However, it is only if it can be demonstrated that the Commission, without an objective reason, made a single factual situation the subject of two separate sets of proceedings that its choice could be regarded as a misuse of powers. Where the Commission considers that it does not have sufficient evidence against certain undertakings suspected of having participated in the same single infringement, or where there is no proof of an overall plan and common methods, those circumstances constitute objective grounds justifying the Commission’s choice to proceed against different operators by different procedures.

In addition, the risks for an undertaking forming the subject-matter of the first proceeding opened by the Commission of being pursued in the context of a possible second proceeding relating to the same single and continuous infringement are not capable of permitting that undertaking to invoke the ne bis in idem principle against the decision closing the first proceeding. Compliance with that principle is clearly not conceivable as a preventive step and does not dispense the undertaking from its duty to cooperate with the Commission for the purposes of a possible second proceeding.

(see paras 222-225, 231, 242-244)

8.      See the text of the decision.

(see para. 238)

9.      See the text of the decision.

(see paras 255, 256)