Action brought on 23 February 2011 - LG Display and LG Display Taiwan v Commission

(Case T-128/11)

Language of the case: English

Parties

Applicants: LG Display Co. Ltd (Seoul, Korea) and LG Display Taiwan (Taiwan, Republic of China) (represented by: A. Winckler and F.-C. Laprévote, lawyers)

Defendant: European Commission

Form of order sought

partially annul or substantially reduce the fine imposed;

order the Commission to pay legal and others costs and expenses in relation to this matter; and

take any other measure that the Court considers appropriate.

Pleas in law and main arguments

By means of their application, the applicants seek partial annulment of Commission decision C(2010)8761 final of 8 December 2010 in Case COMP/39.309 - LCD - Liquid Crystal Displays, by which the Commission found that the applicants, together with other undertakings, had infringed Article 101 TFEU and Article 53 EEA by participating in a single and continuous agreement and concerted practice in the sector of Liquid Crystal Display panels for TV, notebook and monitor applications, insofar as the decision imposes the fine on the applicants.

In support of the action, the applicants rely on four pleas in law.

First plea in law, alleging that the Commission wrongly and unjustifiably included LG Display's sales to its parent companies in the value of sales for the calculation of the fines and violated due process principles such as the rights of defence. In this regard, they submit that:

first, the Commission's allegation that the infringement related to sales to LG Display's parents was not a part of the Statement of Objections and the discrepancies between the Statement of Objections and the contested decision violates the applicants' right to be heard;

second, the Commission misapplied the Fining Guidelines by including LG Display's sales to its parents in the fine calculation;

third, the Commission's characterization of the affected sales as "direct EEA sales" and "direct EEA sales through transformed products" violates the principle of equal treatment.

The applicants contend that any fine imposed on LG Display should only be based on "free market" sales that were made to non-related entities, as only these sales may have been affected by the infringement.

Second plea in law, alleging that the Commission wrongly denied LG Display immunity from fines for 2005 and thus violated the 2002 Leniency Notice. In this regard the applicants submit that:

first, LG Display's access to the case file was seriously hindered by procedural inadequacies;

second, LG Display satisfied the requirements for partial immunity under the applicable 2002 Leniency Notice;

third, the Commission's rejection of LG Display's application is not reasoned, rests on several errors in law and is erroneous in fact.

The applicants contend that LG Display's fine should therefore reflect partial immunity for 2005.

Third plea in law, alleging that despite the fact that LG Display provided exceptional assistance to the Commission that went well beyond its obligations under the 2002 Leniency Notice the Commission refused to grant additional reduction of the fine for at least 10% for such cooperation and thus violated the Leniency Notice.

Fourth plea in law alleging that the Commission's exclusion of the Japanese suppliers of LCD from the contested decision, even though two of them admitted their participation in the same single and continuous infringement, violates the principle of legal certainty, subjects LG Display to significant risk of double jeopardy and violates the principle of proportionality.

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