Judgment of the General Court (Eighth Chamber) of 12 July 2018 –
Sumitomo Electric Industries and J-Power Systems v Commission
(Case T‑450/14)
(Competition — Agreements, decisions and concerted practices — European market for power cables — Decision finding an infringement of Article 101 TFEU — Single and continuous infringement — Proof of the infringement — Duration of participation — Public distancing — Calculation of the fine — Gravity of the infringement — Unlimited jurisdiction)
1. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Permissibility of an overall assessment of a body of evidence — Compliance with the principle of the presumption of innocence
(Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 48)
(see paras 47-53, 88, 89, 103, 104)
2. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Evidence of the cessation of the infringement — Undertaking concerned not distancing itself from the decisions adopted — Public distancing — Criteria for assessment
(Art. 101(1) TFEU)
(see paras 61-63, 98-102)
3. Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness
(Art. 101(1) TFEU; Commission notice 2006/C 298/11)
(see paras 70-72)
4. EU law — Principles — Right to effective judicial protection — Judicial review of decisions adopted by the Commission in competition matters — Review of legality — Elements to be taken into consideration — Elements which predate and postdate the contested decision — Elements presented in the context of the administrative procedure or presented for the first time in the context of annulment proceedings — Included
(Arts 101 TFEU and 263 TFEU)
(see paras 93-95)
5. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Mitigating circumstances — Conduct divergent from that agreed in the cartel implying adoption of competitive conduct in the market — Assessment
(Council Regulation No 1/2003, Art. 23(2) and (3); Commission notice 2006/C 210/02, point 29)
(see paras 111-121)
6. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope
(Art. 261 TFEU; Council Regulation No 1/2003, Art. 31)
(see paras 125, 126)
Re:
| Action pursuant to Article 263 TFEU for annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) in so far as it concerns the applicants and, in the alternative, an application for a reduction in the amount of the fine imposed on the applicants in that decision. |
Operative part
The Court:
2. | | Orders Sumitomo Electric Industries Ltd and J-Power Systems Corp. to pay the costs. |