CELEX: 62019CJ0700
Appeal
Competition
Agreements, decisions and concerted practices
Optical disk drives
Decision finding an infringement of Article 101 TFEU and of Article 53 of the Agreement on the European Economic Area of 2 May 1992
Single and continuous infringement
Definition
Collusive agreements relating to procurement events concerning optical disk drives for notebook and desktop computers organised by two computer manufacturers

By their appeal, Toshiba Samsung Storage Technology Corp. (‘TSST Japan’) and Toshiba Samsung Storage Technology Korea Corp. (‘TSST KR’) (together ‘the appellants’) seek to have set aside the judgment of the General Court of the European Union of 12 July 2019, Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission (
T‑8/16
,
EU:T:2019:522
, ‘the judgment under appeal’), by which the General Court dismissed their action seeking, principally, annulment in whole or in part of Commission Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 – Optical disk drives) (‘the decision at issue’), in so far as it concerns them, or, in the alternative, a reduction of the amount of the fine imposed on them.
I.

Legal context
Article 23(2) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (
OJ 2003 L 1, p. 1
) provides:
‘2.   The [European] Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:
(a)
they infringe Article [101 or 102 TFEU]; or
(b)
they contravene a decision ordering interim measures under Article 8; or
(c)
they fail to comply with a commitment made binding by a decision pursuant to Article 9.
For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.
Where the infringement of an association relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by the infringement of the association.
3.   In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
Article 27(1) and (2) of that regulation provides:
‘1.   Before taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity of being heard on the matters to which the Commission has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings.
2.   The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the competition authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competition authorities of the Member States, or between the latter, including documents drawn up pursuant to Articles 11 and 14. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.’
Article 31 of that regulation is worded as follows:
‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’
As regards the calculation of the fines, points 6 and 13 of 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
) provide:
‘6.   The combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement. Reference to these factors provides a good indication of the order of magnitude of the fine and should not be regarded as the basis for an automatic and arithmetical calculation method.
…
13.   In determining the basic amount of the fine to be imposed, the Commission will 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 European Economic Area (EEA)]. …’
II.

Background to the dispute and the decision at issue
The background to the dispute is set out in paragraphs 1 to 37 of the judgment under appeal and, for the purposes of the present proceedings, can be summarised as follows.
The appellants, TSST Japan and TSST KR, are manufacturers and suppliers of optical disk drives (‘ODDs’). In particular, TSST Japan is a joint venture owned by Toshiba Corporation, established in Japan, and Samsung Electronics Co. Ltd, established in South Korea. During the infringement period, TSST Japan was the parent company of TSST KR.
TSST Japan and TSST KR began operations on 1 April 2004 as two separate operating units. In December 2005, TSST Japan exited the market, remaining with reduced transitional sales activities until early 2008. TSST KR gradually assumed the sales activities of TSST Japan and was directly engaged in the development, marketing, sales and after-sales services of ODDs.
The infringement at issue concerns ODDs used, inter alia, in personal computers (desktops and notebooks) produced by Dell Inc. and Hewlett Packard (‘HP’).
Dell and HP are the two most important original equipment manufacturers on the global market for personal computers. Those two companies use standard procurement procedures carried out on a global basis which involve, inter alia, quarterly negotiations over a worldwide price and overall purchase volumes with a limited number of pre-qualified ODD suppliers.
The procurement procedures include requests for quotations, electronic requests for quotations, internet negotiations, e-auctions and bilateral (offline) negotiations. At the close of a procurement event, customers allocate volumes to participating ODD suppliers depending on their quoted prices.
On 14 January 2009, the Commission received a request for immunity under its Notice on Immunity from fines and reduction of fines in cartel cases (
OJ 2006 C 298, p. 17
) lodged by Koninklijke Philips NV. On 29 January and 2 March 2009, that request was supplemented to include, alongside that company, Lite-On IT Corporation and their joint venture Philips & Lite-On Digital Solutions Corporation.
On 30 June 2009, the Commission granted conditional immunity to Koninklijke Philips, Lite-On IT and Philips & Lite-On Digital Solutions.
On 4 and 6 August 2009, Hitachi-LG Data Storage Inc. and Hitachi-LG Data Storage Korea Inc. submitted an application to the Commission for a reduction of the amount of the fine under the notice referred to in paragraph 12 of this judgment.
On 18 July 2012, the Commission sent a statement of objections to 13 ODD suppliers, including the appellants (‘the statement of objections’), in which it stated that they had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (
OJ 1994 L 1, p. 3
; ‘the EEA Agreement’) by participating in a cartel concerning ODDs from 5 February 2004 until 29 June 2009, consisting in orchestrating their conduct with respect to invitations to tender organised by two computer manufacturers, Dell and HP.
On 29 October 2012, the appellants sent the Commission their comments on the statement of objections. A hearing was held on 29 and 30 November 2012, in which all the addressees of the statement of objections took part.
On 18 February 2014, the Commission adopted two supplementary statements of objections in order, as it stated, to supplement, amend and clarify the objections addressed to certain addressees of the statement of objections as regards their liability for the alleged infringement. On 1 June 2015, the Commission adopted another supplementary statement of objections. The purpose of this new statement of objections was to supplement the two earlier statements of objections by addressing the objections set out in those statements to additional legal entities belonging to the groups of undertakings (parent companies or predecessors) which had already been addressees of the first statement of objections. The addressees of the statements of objections of 18 February 2014 and 1 June 2015 made known their views to the Commission in writing but did not request an oral hearing.
On 21 October 2015, the Commission adopted the decision at issue.
In that decision, the Commission considered that the cartel participants had coordinated their competitive behaviour, at least between 23 June 2004 and 25 November 2008. It specified that that coordination took place through a network of parallel bilateral contacts. It stated that the cartel participants sought to accommodate their volumes on the market and ensure that the prices remained at levels higher than they would have been in the absence of those bilateral contacts.
The Commission specified, in the decision at issue, that the coordination between the cartel participants concerned the customer accounts of Dell and HP. According to the Commission, in addition to bilateral negotiations with their ODD suppliers, Dell and HP applied standardised procurement procedures, which took place at least on a quarterly basis. The Commission stated that the cartel members used their network of bilateral contacts to manipulate those procurement procedures, thus thwarting their customers’ attempts to stimulate price competition.
According to the Commission, regular exchanges of information in particular enabled the cartel members to possess a very complex knowledge of their competitors’ intentions even before they had entered the procurement procedure, and therefore to foresee their competitive strategy.
The Commission added that, on a regular basis, the cartel members exchanged pricing information regarding specific customer accounts as well as information unrelated to pricing, such as existing production, supply capacity, inventory status, the qualification status, and timing of the introduction of new products or upgrades. The Commission stated that, in addition, the ODD suppliers monitored the final results of closed procurement events, that is the rank, the price and the volume obtained.
The Commission further stated that, whilst knowing that they must keep their contacts secret from customers, to contact each other, ODD suppliers used the means they deemed sufficiently appropriate to achieve the desired result. The Commission stated, in addition, that an attempt to convene an initial meeting in order to hold regular multilateral meetings between those suppliers had failed in 2003, after having been revealed to a customer. According to the Commission, instead of those meetings, there were bilateral contacts, mostly via phone calls and, from time to time, via emails, including private email addresses and instant messaging services, or meetings, mostly at the level of global account managers.
The Commission found that the cartel participants contacted each other regularly and that the contacts, mainly by telephone, became more frequent around the procurement events, amounting to several calls per day between some pairs of cartel participants. It stated that, generally, contacts between some pairs of cartel participants were significantly higher than between other pairs.
The appellants’ liability was established owing to (i) the direct participation of TSST KR in the cartel, from 23 June 2004 to 17 November 2008, in particular for coordination with other competitors with regard to Dell and HP, and (ii) the exercise of decisive influence by TSST Japan over its subsidiary throughout the entire infringement period, as presumed by the Commission.
When calculating the amount of the fine imposed on the appellants, the Commission relied on the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003.
First of all, in order to determine the basic amount of the fine, the Commission considered that, in view of the considerable differences in the duration of the ODD suppliers’ participation in the cartel and in order better to reflect the actual impact of the cartel, it was appropriate to use an annual average calculated on the basis of the actual value of sales made by the undertakings concerned during the full calendar months of their respective participation in the infringement.
The Commission thus explained that the value of sales was calculated on the basis of sales of ODDs for personal computers invoiced to HP and Dell entities located in the EEA.
The Commission further considered that, since the anticompetitive conduct with regard to HP had begun later and in order to take the evolution of the cartel into account, the relevant value of sales would be calculated separately for HP and for Dell, and that two duration multipliers would be applied.
Next, the Commission decided that, since price coordination agreements are by their very nature among the worst kind of infringements of Article 101 TFEU and Article 53 of the EEA Agreement, and since the cartel covered at least the whole of the EEA, the percentage for gravity used in this case would be 16% for all addressees of the decision at issue. Furthermore, the Commission stated that, given the circumstances of the case, it was necessary to add an amount of 16% for deterrence.
Lastly, since the adjusted basic amount of the fine imposed on the appellants reached the cap of 10% of their turnover, the Commission was required to make a fresh adjustment on the basis of Article 23(2) of Regulation No 1/2003.
The operative part of the decision at issue, in so far as it concerns the appellants, reads as follows:
‘Article 1
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 infringement, which consisted of several separate infringements, in the [ODD] sector covering the whole of the EEA, which consisted of price coordination arrangements:
…
(e)
[the appellants] from 23 June 2004 to 17 November 2008, for their coordination with regards to Dell and HP.
…
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
…
(e) [the appellants], jointly and severally liable: EUR 41304000;
…’
III.

The procedure before the General Court and the judgment under appeal
By application lodged at the Registry of the General Court on 5 January 2016, the appellants brought an action seeking, principally, annulment in whole or in part of the decision at issue or, in the alternative, a reduction of the amount of the fine imposed on them.
In support of their action, the appellants raised nine pleas in law. The first plea alleged breach of essential procedural requirements and of the rights of the defence; the second alleged lack of jurisdiction on the Commission’s part to apply Article 101 TFEU and Article 53 of the EEA Agreement; the third alleged errors of fact and of law in the determination of the geographic scope of the infringement; the fourth alleged errors of fact and of law in the finding of a single and continuous infringement; the fifth alleged errors of fact and of law in respect of the appellants’ alleged awareness of the whole infringement; the sixth alleged errors of fact and of law relating to the starting date of the appellants’ participation in the infringement; the seventh plea alleged failure to prove the appellants’ participation in concerted practices or anticompetitive agreements; the eighth alleged breach of the right to good administration owing to the excessive duration of the investigation; and the ninth plea, put forward in the alternative, alleged errors by the Commission in the calculation of the amount of the fine.
By the judgment under appeal, the General Court rejected each of those pleas and, accordingly, dismissed the action in its entirety.
IV.

Forms of order sought
By their appeal, the appellants claim that the Court should:
–
set aside the judgment under appeal;
–
annul the decision at issue in so far as it concerns them;
–
annul or reduce the amount of the fine imposed on them in that decision;
–
order the Commission to bear the entirety of the costs at first instance and on appeal; and
–
make any other order as may be appropriate in the circumstances of the case.
The Commission contends that the Court should:
–
dismiss the appeal; and
–
order the appellants to pay all of the costs incurred in the present proceedings.
V.

The appeal
In support of their appeal, the appellants raise four grounds of appeal, which concern, in essence, the General Court’s assessment, first, of the Commission’s finding that the single and continuous infringement of which they were accused consisted of several separate infringements, second, of the existence of a single and continuous infringement, third, of the rights of the defence and, fourth, of the Commission’s jurisdiction.
A.

The first ground of appeal
1.

Arguments of the parties
By their first ground of appeal, the appellants claim that the General Court made errors of law in its examination of the first three parts of the first plea for annulment, which alleged breach of essential procedural requirements and of the rights of the defence, in that the General Court confirmed that the single and continuous infringement at issue consisted of several separate infringements, whereas that ‘dual’ characterisation does not appear in the statement of objections.
That ground is divided into two parts.
The Commission submits, as a preliminary point, that the General Court confirmed the finding in the decision at issue that the appellants participated in a single and continuous infringement. It considers, consequently, that the arguments put forward by the appellants concerning the conclusion, which is drawn indirectly, that that infringement consists of several separate infringements, are ineffective.
(a)

The first part of the first ground of appeal
By the first part of their first ground of appeal, which comprises three complaints, the appellants submit that the General Court made several errors of law in its analysis of the first part of the first plea which they raised at first instance, relating to a breach of the rights of the defence.
In general, the Commission contends, first, that it is incorrect to claim that it introduced considerations relating to separate infringements only at the stage of the decision at issue. The General Court correctly observed, in paragraph 60 of the judgment under appeal, that the Commission referred, in recitals 308, 353 and 354 of the statement of objections, to a complex of infringements, agreements or concerted practices. The General Court was also entitled to infer, in paragraphs 61 to 63 of that judgment, from the appellants’ reply to the statement of objections that they had understood what they were accused of and that they were able to defend themselves in respect of all the bilateral contacts found against them. Furthermore, the General Court correctly stated, in paragraphs 56 and 57 of that judgment, first, that the concept of a ‘single and continuous infringement’ presupposes a complex of practices adopted by the parties in pursuit of a single anticompetitive economic aim and, second, that it is apparent from the very concept of a ‘single and continuous infringement’ that such an infringement presupposes a complex of practices or infringements. Thus, the appellants were heard both as regards the complex of infringements at issue and as regards the additional criteria to be met in order to be able to establish the existence of a single and continuous infringement.
Second, contrary to what the appellants claim, the Commission did indeed argue before the General Court that it had heard the addressees of the decision at issue on the separate infringements at issue. Third, the case-law stemming from the judgment of 6 December 2012, Commission v Verhuizingen Coppens (
C‑441/11 P
,
EU:C:2012:778
), and from the judgment of the General Court of 10 October 2014, Soliver v Commission (
T‑68/09
,
EU:T:2014:867
), is irrelevant in so far as the appellants were placed in a position, during the administrative procedure, to understand that they were accused of each of the forms of conduct comprising the single and continuous infringement. Fourth, it is apparent, more specifically, from the judgment of 6 December 2012, Commission v Verhuizingen Coppens (
C‑441/11 P
,
EU:C:2012:778
), that the addressees of a decision must be heard on the single and continuous infringement and on the forms of conduct comprising it. That is the case here. Moreover, it is also apparent from that judgment that, even if the statement of objections had not clearly characterised the forms of conduct complained of as more restrictive infringements in breach of their rights of defence, that would not be contrary to the case-law of the Court of Justice, which does not require such characterisation in so far as the parties have been heard with regard to the forms of conduct in question.
(1)

The first complaint in the first part of the first ground of appeal
According to the appellants, after having correctly set out, in paragraphs 55 and 56 of the judgment under appeal, the case-law relating to the concept of a ‘single and continuous infringement’, recalling, first, that an infringement of Article 101 TFEU may result not only from an isolated act but also from a series of acts or from continuous conduct, and, second, that one or several elements of that series of acts or continuous conduct could also constitute in themselves an infringement of Article 101 TFEU, the General Court should have considered, in paragraphs 57 and 58 of that judgment, that that concept does not necessarily presuppose narrower infringements.
The appellants submit that the General Court erred in law by failing to recognise that the Commission should have clearly analysed and characterised any separate infringement as being narrower in scope. Any additional legal characterisation of an act or series of acts in the decision at issue should be clearly set out during the administrative procedure so that the parties can be heard and can properly exercise their rights of defence. The mere fact that the decision at issue contains an additional finding not appearing in the statement of objections should have led the General Court to find that there had been a breach of the appellants’ rights of defence, which it did not do, thus disregarding the judgment of 6 December 2012, Commission v Verhuizingen Coppens (
C‑441/11 P
,
EU:C:2012:778
), and the judgment of the General Court of 10 October 2014, Soliver v Commission (
T‑68/09
,
EU:T:2014:867
).
The Commission contends that the appellants distort the judgment under appeal by suggesting that it is based on the assumption that the concept of a ‘single and continuous infringement’ necessarily presupposes separate, narrower infringements. The General Court referred, in paragraphs 55 to 57 of that judgment, not to a necessity, but to a possibility. Similarly, the appellants wrongly infer from the judgment of 10 October 2014, Soliver v Commission (
T‑68/09
,
EU:T:2014:867
), that the General Court would not have annulled the decision at issue in the case which gave rise to that judgment if an allegation of a single and continuous infringement also presupposed an allegation of separate, narrower infringements. In any event, the appellants’ participation in a single and continuous infringement was confirmed and they were heard on the subject of the forms of conduct comprising that infringement. The General Court was therefore entitled to conclude, in paragraph 58 of the judgment under appeal, that there was no inconsistency between the statement of objections and the decision at issue and that the rights of the defence had been respected.
(2)

The second complaint in the first part of the first ground of appeal
The appellants maintain that, although a decision may supplement and amend the analysis contained in the statement of objections in order to take account of the parties’ responses, it cannot introduce additional findings of separate infringements.
According to the appellants, in paragraph 59 of the judgment under appeal the General Court erred in law in finding the opposite. Instead of applying the case-law correctly set out in paragraph 51 of that judgment, the General Court merely held that the definitive conclusions in a decision do not necessarily have to correspond precisely to the provisional classification made in the statement of objections, referring to the case-law cited in paragraph 53 of that judgment. However, the General Court failed to have regard to the fact that the Commission’s freedom is justified only in order to take account of the observations of the parties and not to introduce additional findings.
The Commission submits that the General Court correctly applied the case-law on the right to be heard. Contrary to the appellants’ assertion, the General Court was not required to apply, in paragraph 59 of the judgment under appeal, the case-law cited in paragraph 51 of that judgment. First, their argument is ineffective, since paragraph 59 contains a ground which is not necessary to support the conclusion set out in paragraphs 64 to 66 of that judgment. Second, the appellants’ reasoning is based on an alleged significant difference between the statement of objections and the decision at issue, which does not exist. Third, paragraphs 51 and 53 of the judgment under appeal do not refer to different case-law. Fourth, given that, in response to the statement of objections, the appellants denied having participated in any unlawful contacts and asserted that the criteria necessary for the finding of a single and continuous infringement were not satisfied, the Commission was entitled to take those arguments into account and to insert recital 352 in the decision at issue.
(3)

The third complaint in the first part of the first ground of appeal
The appellants submit that, contrary to what the General Court stated in paragraphs 60 to 64 of the judgment under appeal, the Commission did not, in the statement of objections, make a finding of infringements other than a single and continuous infringement. No other act, series of acts or any type of conduct is the subject, in that statement, of a legal characterisation additional to and separate from that of a single and continuous infringement.
The appellants submit that the General Court wrongly concluded, in paragraphs 60 to 63 of the judgment under appeal, that the statement of objections had given the appellants the opportunity to submit observations on infringements other than the single and continuous infringement at issue. The only two references to separate infringements in the statement of objections do not satisfy the degree of clarity required by the case-law cited in paragraph 52 of that judgment and that statement does not contain any clear characterisation or description of infringements separate from the single and continuous infringement. Mere factual descriptions cannot suffice in that regard.
Moreover, they submit, contrary to what is stated by the General Court, the appellants’ reply to the statement of objections does not corroborate the assertion that the appellants had the opportunity to respond effectively in respect of the separate infringements. That reply covers only the evidence relating to the single and continuous infringement and does not cover any separate infringement.
The Commission submits that the statement of objections set out the allegation of separate infringements, which the General Court rightly acknowledged. First, the argument that the statement of objections does not contain any legal characterisation other than that of a single and continuous infringement is ineffective because the judgment under appeal is based on the assumption that the only legal characterisation of the infringement at issue is that of a single and continuous infringement, which itself presupposes a complex of practices or infringements. Second, the General Court was fully entitled to conclude that it was clear from the statement of objections that that infringement consisted of several separate infringements. That statement defined the scope and nature of the appellants’ conduct, namely a series of bilateral price coordination agreements, which the Commission considered to constitute an infringement of Article 101 TFEU. The General Court was therefore correct to state, in paragraphs 61 to 63 of the judgment under appeal, that the appellants were in a position to understand the Commission’s allegations. Third, contrary to what the appellants claim, the reference, in paragraph 61 of that judgment, to a ‘legal characterisation’ cannot mean a legal characterisation that goes beyond the finding of a single and continuous infringement. Fourth, the appellants artificially distinguish between the single and continuous infringement and the separate infringements of which it is composed. Moreover, the case-law of the Court of Justice authorises the Commission to characterise certain facts only at the stage of its decision, where the parties have had the opportunity to comment on the facts found by the Commission and in so far as the relevant legal principles and facts have been set out in the statement of objections.
(b)

The second part of the first ground of appeal
By the second part of their first ground of appeal, which comprises three complaints, the appellants submit that the General Court made errors of law in the grounds of the judgment under appeal by which the second and third parts of the first plea which they raised at first instance were rejected.
Before the General Court, the appellants argued that the statement of reasons in the decision at issue relating to the legal characterisation of the alleged separate infringements was insufficient or inconsistent, since that characterisation was neither explained nor justified. Accordingly, that statement of reasons did not enable the appellants to understand the nature and scope of the infringement found against them, did not set out the relevant considerations and contained internal inconsistencies.
(1)

The first complaint in the second part of the first ground of appeal
The appellants submit, first, that, by presuming, in paragraphs 76 to 78 and 81 and 82 of the judgment under appeal, that a single and continuous infringement consists of individual infringements, the General Court erred in law.
Second, they submit that by holding, in paragraphs 78, 80 and 82 of that judgment, that the various individual contacts constituted separate infringements, the General Court itself classified the facts, thereby encroaching on the powers conferred on the Commission by Article 101 TFEU. In the decision at issue, the Commission referred only once, in recital 352 of the decision at issue, to infringements other than a single and continuous infringement, without mentioning individual bilateral contacts.
The Commission submits that the General Court was right to conclude that the recitals and the operative part of the decision at issue were consistent. The appellants’ claims are based on a misreading of the judgment under appeal. First, the General Court did not conclude, in paragraph 78 of that judgment, that each bilateral contact constituted a separate infringement. It merely recalled, in paragraph 80 of that judgment, that Annex I to the decision at issue contained a list of contacts liable to constitute infringements. However, the General Court did not adopt a position, in paragraphs 70 to 87 of that judgment, either on the Commission’s conclusions or on whether the bilateral contacts actually constituted separate infringements. Second, in the alternative, the Commission submits that none of the conclusions set out in paragraphs 80 to 84 of the judgment under appeal is based on the premiss that the various individual contacts found constituted separate infringements. The appellants’ arguments are therefore ineffective.
(2)

The second complaint in the second part of the first ground of appeal
According to the appellants, the General Court also made several errors of law in paragraphs 76 to 79 of the judgment under appeal. First, the General Court did not respond to the appellants’ argument that recital 352 of the decision at issue is not sufficient to support Article 1 thereof. Paragraph 76 of that judgment merely states that there is no inconsistency between that recital and that Article 1. Second, paragraph 77 of that judgment assumes that a single and continuous infringement necessarily involves separate infringements. Third, paragraph 78 of that judgment is vitiated by the same assumption. It is incorrect to state that the Commission, in recitals 303 and 346 of the decision at issue, found that the individual contacts also infringed Article 101 TFEU. Fourth, the General Court disregarded its own case-law relating to very similar arguments.
The Commission contends that the General Court was entitled to conclude that the decision at issue did not contain any inconsistencies. It responded to the allegations underlying the appellants’ complaints and was therefore not required to respond to allegations of inconsistency after having found that there was no inconsistency.
(3)

The third complaint in the second part of the first ground of appeal
According to the appellants, in order to reject the argument put forward at first instance alleging an inadequate statement of reasons for the decision at issue, the General Court made several errors of law in paragraphs 80 to 82 and 85 of the judgment under appeal.
The appellants submit that, in paragraph 80 of that judgment, the General Court did not respond to the appellants’ complaints. Neither the decision at issue nor Annex I thereto contain any conclusions on the separate infringements referred to in Article 1 of that decision. The fact that the General Court states that ‘the Commission clearly and unambiguously describes the functioning of the cartel, the application of Article 101(1) TFEU to the alleged conduct, and those responsible for the cartel’ is irrelevant because that statement does not relate to those separate infringements, but to the single and continuous infringement. Thus, the General Court did not respond to the argument that, even read together, recital 352 and Article 1 of that decision lack clarity as to the scope of those separate infringements.
Furthermore, they submit, the statement in paragraph 81 of the judgment under appeal that the fact that those separate infringements do not entail an additional legal characterisation which may be described in more detail does not constitute a failure to state reasons for that decision, contrary to the case-law, is based on the incorrect premiss that characterisation as a single and continuous infringement itself presupposes a complex of practices or infringements.
According to the appellants, in paragraph 82 of that judgment, the General Court made a further error in stating that, in the decision at issue, the separate infringements correspond to the various bilateral contacts alleged, whereas that decision does not classify those contacts.
They submit that, in paragraph 85 of that judgment, the General Court misunderstood the application, which it interpreted as setting out detailed submissions on the various contacts, which showed that the decision at issue contained an adequate statement of reasons and that the appellants were put in a position to defend themselves effectively.
The Commission is of the opinion that the General Court was fully entitled to conclude that it had complied with the obligation to state reasons. First, the Commission is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance. In paragraphs 80 to 84 of the judgment under appeal, the General Court correctly concluded that the decision at issue set out the relevant factors in sufficient detail and clearly indicated the nature and scope of the conduct alleged against the appellants, the way in which Article 101(1) TFEU applied to that conduct and the underlying evidence. Second, there is only a difference of degree between the finding of simple infringements and that of a single and continuous infringement. Thus, the Commission was not required to provide a more detailed statement of reasons, since the finding of separate infringements is merely an incidental finding of secondary importance in relation to the principal finding of a single and continuous infringement. Third, the appellants draw an artificial distinction between the single and continuous infringement and the separate infringements of which it is composed. Given that those infringements concern exactly the same facts and the same evidence, the appellants’ arguments concerning the various individual contacts serve to challenge both the finding of a single and continuous infringement and the finding of separate infringements.
2.

Findings of the Court
By their first ground of appeal, the appellants claim that the General Court made several errors of law in that it confirmed that the single and continuous infringement consisted of several separate infringements and that that dual characterisation, applied in the decision at issue, was indeed set out in the statement of objections and was indeed supported by the statement of reasons in that decision.
In that regard, it must be observed that in Article 1(e) of the decision at issue the Commission found, in essence, first, that there was a single and continuous infringement and, second, that that infringement consisted of ‘several separate infringements’.
In that context, it must also be observed that the first ground of appeal seeks to challenge only the assessment, by the General Court, of the second finding, which relates to the existence of several separate infringements. By contrast, this ground of appeal does not relate to its assessment of the finding, which appears in that provision, that the appellants participated in a single and continuous infringement.
It follows that, contrary to the Commission’s submission, to the extent that in the present case it has based the decision at issue on two distinct findings of infringement, this ground of appeal cannot be rejected at the outset as ineffective.
(a)

Preliminary observations
It is clear from well-established case-law that an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens,
C‑441/11 P
,
EU:C:2012:778
, paragraph
and the case-law cited).
An undertaking which has participated in such a single and continuous infringement through its own conduct, which fell within the definition of an ‘agreement’ or a ‘concerted practice’ having an anticompetitive object for the purposes of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may accordingly be liable also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens,
C‑441/11 P
,
EU:C:2012:778
, paragraph
and the case-law cited).
As the Advocate General observed in point 59 of his Opinion, an undertaking may have participated in a single and continuous infringement without directly participating in all the forms of anticompetitive conduct comprising that infringement (see, to that effect, judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission,
C‑702/19 P
,
EU:C:2020:857
, paragraph
and the case-law cited).
It is in the light of those factors that the first ground of appeal must be examined.
(b)

The first part of the first ground of appeal
By the first part of their first ground of appeal, the appellants claim that the General Court made errors of law which led it to hold that the Commission had not breached their rights of defence. First, in paragraphs 57 and 58 of the judgment under appeal, the General Court erred in holding that the concept of a single and continuous infringement presupposes the existence of separate infringements of lesser importance. Second, in paragraph 59 of the judgment under appeal, the General Court held that the definitive conclusions of a decision do not necessarily have to correspond precisely to the provisional classification made in the statement of objections, failing to state that the Commission’s freedom to classify is justified only in order to take account of the observations of the parties and not to introduce additional findings. Third, in paragraphs 60 to 64 of the judgment under appeal, the General Court erred in stating that the Commission had made a finding in the statement of objections of infringements other than the single and continuous infringement.
In that regard, it should be recalled, first, that the concept of a ‘single and continuous infringement’ presupposes a complex of practices that may also constitute, in themselves, an infringement of Article 101(1) TFEU. While a complex of practices may be legally characterised, under the conditions set out in paragraphs 72 and 73 of this judgment, as a single and continuous infringement, it cannot be deduced therefrom that each of those practices must, in itself and taken in isolation, necessarily be characterised as a separate infringement of that provision. In order to do so, the Commission must go on to identify and legally characterise as such each of those practices and, next, adduce proof of the involvement of the undertaking concerned to which those practices are imputed.
To that effect, the Court has already held that a Commission decision categorising a global cartel as a single and continuous infringement can be divided only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard (see, by analogy, judgment of 6 December 2012, Commission v Verhuizingen Coppens,
C‑441/11 P
,
EU:C:2012:778
, paragraph
).
Second, as regards the rights of the defence, according to settled case-law, in all proceedings in which penalties, especially fines or penalty payments, may be imposed, observance of those rights is a fundamental principle of EU law which must be fully complied with by the Commission (see, to that effect, judgment of 5 March 2015, Commission and Others v Versalis and Others,
C‑93/13 P and C‑123/13 P
,
EU:C:2015:150
, paragraph
and the case-law cited).
Regulation No 1/2003 provides that the parties are to receive a statement of objections which must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure. 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 contain 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 procedure brought against it (see, to that effect, judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission,
C‑322/07 P, C‑327/07 P and C‑338/07 P
,
EU:C:2009:500
, paragraphs
and
and the case-law cited).
It is true that, as the Advocate General recalled in point 88 of his Opinion, it is permissible for the Commission to qualify, in its final decision, the legal characterisation of the facts that it found, provisionally, in the statement of objections, taking account of the information that emerges from the administrative procedure, either withdrawing objections or allegations that have turned out to be unfounded, or structuring and supplementing in fact and in law its arguments in support of the allegations relied on (see, to that effect, judgment of 5 December 2013, SNIA v Commission,
C‑448/11 P
, not published,
EU:C:2013:801
, paragraphs
to
). However, that means that the Commission must, in the statement of objections, set out each legal characterisation of the facts on which it intends to rely in its final decision.
Therefore the rights of defence of the undertaking concerned are infringed as a result of a discrepancy between the statement of objections and the final decision only where an objection that is upheld in the latter had not been set out in the statement of objections or if it had not been set out in a manner sufficient to enable the addressees of that statement effectively to make their arguments in the context of the procedure brought against them.
It follows that, where the Commission intends to allege against the addressees of a statement of objections not only a single and continuous infringement, but also each of the forms of conduct comprising that infringement taken individually as separate infringements, observance of the rights of defence of those addressees requires the Commission to set out, in that statement, the necessary elements to enable them to understand that the Commission alleges against them both that single and continuous infringement and each of those separate infringements.
In paragraphs 50 to 53 of the judgment under appeal, the General Court correctly recalled the principles relating to observance of the rights of the defence in the context of a procedure that could lead to a finding of an infringement of Article 101(1) TFEU. It then recalled, in paragraphs 55 and 56 of that judgment, certain aspects of the concept of a ‘single and continuous infringement’, and in particular that that concept presupposes a complex of practices adopted by various parties in pursuit of a single anticompetitive economic aim.
However, in the light of what has been stated in paragraph 83 of the present judgment, the General Court could not deduce, in paragraph 57 of the judgment under appeal, that the very concept of a ‘single and continuous infringement’ presupposes a ‘complex of practices or infringements’ and that the appellants could not claim that the Commission had included an additional legal characterisation in Article 1 of the decision at issue by finding, in addition to the single and continuous infringement, that that infringement was composed of several ‘separate infringements’. Such a conclusion is based on the incorrect premiss that each of the forms of conduct of which a single and continuous infringement is composed constitutes a separate infringement, which is not necessarily the case.
Similarly, although the General Court correctly recalled, in paragraph 53 of the judgment under appeal, the principles relating to observance of the rights of the defence in the context of a procedure that could lead to a finding of an infringement of Article 101(1) TFEU, as it also did, in essence, in paragraph 59 of that judgment, it could not deduce therefrom that the mere mention, in the statement of objections, of the possibility of characterising the forms of conduct in question as ‘separate infringements’ was sufficient in the light of the requirements set out in paragraphs 77 to 83 of the present judgment.
In particular, the mere mention, in the statement of objections, of the possibility of such a characterisation as ‘separate infringements’, in the context of an analysis relating to a single and continuous infringement, cannot be sufficient to enable the undertaking concerned to submit its arguments effectively, in the administrative procedure brought against it, in respect of those separate infringements.
By so doing, the General Court erred in law. The appellants could not understand, in the absence of any clear indication in the statement of objections, that the Commission intended to allege against them, not only the single and continuous infringement alleged in that statement, but also several separate infringements consisting of the various bilateral contacts referred to in that statement.
It follows that the General Court could not, without erring in law, hold that the Commission had not breached the appellants’ rights of defence, since the statement of objections did not contain the essential elements found against them as regards those separate infringements, in particular the legal characterisation envisaged for the forms of conduct alleged against them.
Accordingly, the first part of the first ground of appeal must be upheld.
(c)

The second part of the first ground of appeal
By the second part of their first ground of appeal, the appellants claim that the General Court made errors of law which led it to hold that the Commission had not set out an inconsistent and insufficient statement of reasons in the decision at issue. They submit that, in paragraphs 76 to 85 of the judgment under appeal, the General Court, first, presumed that a single and continuous infringement is necessarily composed of individual infringements. Second, it also substituted its own reasoning for that of the Commission in finding that the various individual contacts at issue constituted separate infringements. Third, it failed to give sufficient reasons for its decision to reject the appellants’ argument that recital 352 and Article 1 of the decision at issue lacked clarity as to the scope of those separate infringements.
In that regard, it should be recalled, in the first place, that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court of the European Union to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question of whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 10 July 2019, Commission v Icap and Others,
C‑39/18 P
,
EU:C:2019:584
, paragraph
and the case-law cited).
In the second place, it should be borne in mind that, according to equally settled case-law, the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its powers of review (see, inter alia, judgment of 26 January 2017, Villeroy & Boch Austria v Commission,
C‑626/13 P
,
EU:C:2017:54
, paragraph
and the case-law cited).
In the third place, as recalled in the examination of the first part of the first ground of appeal, it cannot be deduced from the fact that the Commission legally characterised a complex of practices as a single and continuous infringement that each of those practices in itself and taken in isolation must necessarily be characterised as a separate infringement. If the Commission decides to characterise as such the forms of conduct at issue and to impute them to the appellants, it must also examine them individually and prove their unlawful nature as well as the involvement of the appellants in each of those forms of conduct.
It follows that, where the Commission intends to criticise the appellants for having participated not only in a ‘single and continuous infringement’ but also in several separate infringements corresponding to the forms of conduct which comprised that infringement, it must clearly specify and give reasons for the legal characterisation as a separate infringement that it gives to each of those forms of conduct.
In the present case, the General Court implicitly held, in paragraphs 76 to 78, 81 and 82 of the judgment under appeal, that a single and continuous infringement is necessarily composed of individual infringements. It stated, in paragraph 76 of that judgment, that the very concept of a ‘single and continuous infringement’ presupposes a complex of practices or infringements and concluded, without further explanation, that the separate infringements referred to in Article 1 of the decision at issue did not therefore constitute an additional legal characterisation. That confusion between the terms ‘infringement’ and ‘conduct’ is also found in paragraphs 78, 81 and 82 of that judgment.
That confusion led the General Court to hold, in paragraphs 82 to 84 of the judgment under appeal, that the Commission had provided a sufficient statement of reasons for its decision, even though it is not apparent from the decision at issue that the Commission had characterised each of the bilateral contacts at issue as separate infringements.
By so doing, the General Court erred in law. Contrary to the General Court’s ruling, the statement of reasons for the finding of several separate infringements that the appellants were alleged to have committed, as it appears in recital 352 of that decision, is insufficient. Thus, that recital states that, on the basis of the facts described in Section 4 and in Annex I to that decision, any one of the aspects of conduct adopted or any set (or several sets) of bilateral contacts had as its object the restriction competition and therefore constitutes an infringement of Article 101 TFEU, but without the Commission having stated the reasons why it was appropriate, according to it, to impute to the appellants each of the forms of conduct alleged against them not only as constituting a ‘single and continuous infringement’ but also as constituting several separate infringements of Article 101 TFEU.
It follows that, in holding that the Commission had satisfied its obligation to state reasons for the decision at issue finding that the appellants had, in addition to their participation in a single and continuous infringement, also participated in several separate infringements, the General Court erred in law.
Accordingly, the second part of the first ground of appeal and, consequently, that ground of appeal in its entirety must be upheld.
B.

The second ground of appeal
By their second ground of appeal, the appellants claim that the General Court made several errors of law in determining the applicable legal test to establish the existence of a single and continuous infringement. That ground is divided into two parts.
1.

The first part of the second ground of appeal
(a)

Arguments of the parties
By the first part of their second ground of appeal, the appellants submit that paragraphs 123, 205 and 206 of the judgment under appeal are vitiated by an error of law concerning the applicable legal test to establish the existence of a single and continuous infringement.
The appellants submit that the General Court erred in stating that it is not necessary to establish whether the alleged instances of conduct present a link of complementarity in order to characterise them as a single and continuous infringement. Such a statement is contrary to the case-law of the General Court according to which a link of complementarity is a necessary condition for establishing the existence of such an infringement in all cases where there is no direct evidence of a formal plan linking the different parts of the infringement. The judgment of 19 December 2013, Siemens and Others v Commission (
C‑239/11 P, C‑489/11 P and C‑498/11 P
, not published,
EU:C:2013:866
), on which the General Court relies, relates to facts different from those of the present case, since the participants in the cartel at issue in the case that gave rise to that judgment had signed a formal plan in advance and in writing. Similarly, the judgments of26 January 2017, Villeroy & Boch Belgium v Commission (
C‑642/13 P
,
EU:C:2017:58
), and of 26 January 2017, Villeroy & Boch v Commission (
C‑644/13 P
,
EU:C:2017:59
), occurred in factual circumstances different from those of the present case.
The appellants submit that, according to the case-law they refer to, mere similarities between different types of conduct are not sufficient to prove a single and continuous infringement. It is also necessary to demonstrate that they are complementary and interact.
The Commission contends that the first part of the second ground of appeal is unfounded.
(b)

Findings of the Court
By the first part of their second ground of appeal, the appellants criticise the General Court, in essence, for holding that mere similarities between different types of conduct were sufficient to prove the existence of a single and continuous infringement, without it being necessary to demonstrate that those types of conduct were complementary and interact.
In that regard, it should be recalled that, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of an overall plan having a single objective. By contrast, the condition relating to a ‘single objective’ requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market (judgment of 26 January 2017, Villeroy & Boch v Commission,
C‑644/13 P
,
EU:C:2017:59
, paragraph
and the case-law cited).
It cannot be inferred from that case-law of the Court of Justice that it applies only to situations in which there is direct evidence of a formal plan linking the different parts of an infringement and that, in the absence of such evidence, such a link of complementarity would be a necessary condition for establishing the existence of such an infringement. In the judgments referred to in paragraph 103 above, the Court of Justice, on the contrary, provided clarifications of general application covering all single and continuous infringements, irrespective of the factual arrangements for implementing them.
The appellants’ argument is therefore based on a misreading of the case-law of the Court of Justice.
In paragraphs 205 and 206 of the judgment under appeal, the General Court correctly held that the decisive criterion for the existence of a single and continuous infringement is that the various instances of conduct forming part of the infringement are part of an ‘overall plan’ having a single objective. In that regard, it stated that it is not necessary to establish whether those instances of conduct present a link of complementarity in order to characterise them as a single and continuous infringement. Thus, the General Court did not fail to comply with the case-law of the Court of Justice.
The first part of the second ground of appeal must therefore be rejected as unfounded.
2.

The second part of the second ground of appeal
(a)

Arguments of the parties
By the second part of their second ground of appeal, the appellants claim that the General Court made errors of law as regards the existence of an overall plan or of a single and continuous infringement. In the judgment under appeal, the General Court misapplied the relevant legal test established in the judgments of 19 December 2013, Siemens and Others v Commission (
C‑239/11 P, C‑489/11 P and C‑498/11 P
, not published,
EU:C:2013:866
); of 26 January 2017, Villeroy & BochBelgium v Commission (
C‑642/13 P
,
EU:C:2017:58
); and of 26 January 2017, Villeroy & Boch v Commission (
C‑644/13 P
,
EU:C:2017:59
).
The appellants submit that the General Court wrongly held, in paragraphs 209 to 213 of the judgment under appeal, that the similarities between the alleged instances of conduct constituted relevant and sufficient criteria for establishing a single and continuous infringement and that the existence of a link of complementarity is not a necessary condition in that regard. The appellants maintain that, although the similarity of the instances of conduct is a relevant criterion, it is not sufficient and only the existence of such a link is capable of demonstrating, in the absence of direct evidence of interaction or a formal plan drawn up in advance, the existence of such an infringement.
The Commission considers that the second part of the second ground of appeal must be rejected as unfounded.
(b)

Findings of the Court
By the second part of their second ground of appeal, the appellants criticise the General Court for holding, in paragraphs 209 to 213 of the judgment under appeal, that the similarities between the instances of conduct were relevant and sufficient criteria for characterising a single and continuous infringement and that the existence of a link of complementarity between those instances of conduct was not a necessary condition in that regard.
In that regard, it follows from the case-law of the Court of Justice that, in order to prove the existence of an objective common to various instances of conduct capable of being characterised, together, as a single and continuous infringement, the Commission may rely on various objective factors, such as the similarities in the way the collusive arrangements at issue were implemented and the material, geographic and temporal overlap between the practices concerned (see, to that effect, judgment of 26 January 2017, Villeroy & Boch Belgium v Commission,
C‑642/13 P
,
EU:C:2017:58
, paragraph
).
The General Court noted, in essence, in paragraph 209 of the judgment under appeal, that the Commission had emphasised that the individual collusive contacts concerned the same product, had similar content, involved largely the same parties, had the same geographic scope and pursued the same objective and that it had concluded that those various objective factors represented relevant indicia for the purpose of proving the existence of an overall plan.
The General Court went on to point out, in paragraph 212 of the judgment under appeal, that the similarities between the instances of conduct complained of are relevant criteria for the purpose of proving the existence of a single and continuous infringement. It stated that other criteria are also relevant, such as whether the natural persons involved are identical or whether the geographical scope of the practices at issue is the same.
Thus, contrary to what the appellants claim, the General Court did not hold that the similarities between the instances of conduct at issue were sufficient to demonstrate the existence of a single and continuous infringement, but that those similarities were merely among several criteria for proving the existence of an overall plan, which is one of the conditions for characterising such an infringement.
Accordingly, in paragraph 213 of the judgment under appeal, the General Court correctly held that the similarities relied upon by the appellants were relevant criteria for determining whether the various instances of conduct forming part of the single and continuous infringement were part of an overall plan having a single objective, without it being necessary to establish any type of ‘synergy between the impugned action’.
The second part of the second ground of appeal must therefore be rejected as unfounded and, accordingly, that ground of appeal in its entirety must also be rejected as unfounded.
C.

The third ground of appeal
1.

Arguments of the parties
By their third ground of appeal, the appellants criticise the General Court for rejecting, in paragraphs 120 to 130 of the judgment under appeal, their argument that the Commission breached their rights of defence by introducing, in the decision at issue, a new essential criterion, namely that of a link of complementarity between the instances of conduct complained of, for the purposes of establishing the existence of a single and continuous infringement, whereas that criterion had not been set out in the statement of objections and they had not had the opportunity to comment on it before the adoption of that decision.
The General Court held, first, in paragraphs 120 to 125 of that judgment, that such a link is not an essential criterion for establishing the existence of a single and continuous infringement and, second, in paragraphs 126 to 130 of that judgment, that the introduction of that new factor in the decision at issue did not breach the appellants’ rights of defence, since the Commission’s final decision was not necessarily required to be an exact replica of the statement of objections.
As regards the latter consideration, the appellants submit that the General Court misapplied the relevant legal test for assessing whether there had been a breach of the rights of the defence. According to the appellants, differences between the statement of objections and the Commission’s final decision can concern only arguments raised during the administrative procedure by the addressees of that statement. The General Court thus erred in holding that an essential analysis and a material modification of the approach followed in the statement of objections to prove the existence of a single and continuous infringement could justifiably be introduced in the decision at issue.
The Commission contends that the third ground of appeal must be rejected as either ineffective or unfounded.
2.

Findings of the Court
By their third ground of appeal, the appellants claim that the General Court erred in law in paragraphs 120 to 130 of the judgment under appeal by rejecting their complaint that the Commission had breached their rights of defence by using for the first time the criterion of a link of complementarity between the instances of conduct alleged at the stage of the decision at issue.
In that regard, it should be borne in mind that Article 27(1) of Regulation No 1/2003 provides that the parties are to be sent a statement of objections. According to settled case-law, that statement must set out clearly all the essential facts upon which the Commission is relying at that stage of the procedure. However, that may be done summarily and the decision subsequently taken by the Commission is not necessarily required to be a replica of the statement of objections, since that statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature (judgment of 25 March 2021, Slovak Telekom v Commission,
C‑165/19 P
,
EU:C:2021:239
, paragraph
and the case-law cited).
It follows that, since the legal classification of the facts in the statement of objections must, by definition, be provisional, a subsequent Commission decision cannot be annulled on the sole ground that the definitive conclusions drawn from those facts do not correspond precisely with that provisional classification. The Commission is required to hear the addressees of a statement of objections and, where necessary, to take account of their observations made in response to the objections by amending its analysis specifically in order to respect their rights of defence. The Commission must therefore be permitted to clarify that classification in its final decision, taking into account the factors emerging from the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it raises, provided however that it relies only on facts on which those concerned have had an opportunity to make known their views and provided that, in the course of the administrative procedure, it has made available the evidence necessary for the defence of their interests (judgment of 25 March 2021, Slovak Telekom v Commission,
C‑165/19 P
,
EU:C:2021:239
, paragraph
and the case-law cited).
In paragraphs 120 to 130 of the judgment under appeal, the General Court rejected the appellants’ complaint that the Commission had breached their rights of defence by establishing the existence of a single and continuous infringement on the basis of a new essential criterion, namely that of a link of complementarity between the alleged instances of conduct, without having referred to that criterion in the statement of objections.
In order to reach that conclusion, the General Court recalled the case-law of the Court of Justice, referred to in paragraph 107 of the present judgment, according to which it is not necessary to establish whether the instances of conduct at issue present a link of complementarity in order to be able to characterise them, together, as a single and continuous infringement. It inferred from this, in paragraphs 124 and 125 of the judgment under appeal, that such a link of complementarity did not constitute an essential fact, within the meaning of the case-law referred to in paragraph 127 of the present judgment, and that, accordingly, the Commission was not required to analyse that link in the statement of objections.
It follows that, in so doing, the General Court complied with the case-law of the Court of Justice and it cannot be criticised for making an error of law as alleged.
Accordingly, the third ground of appeal must be rejected as unfounded.
D.

The fourth ground of appeal
By their fourth ground of appeal, the appellants claim that the General Court infringed essential procedural requirements, failed to state reasons as regards the rejection of their second plea at first instance, which alleged that the Commission lacked jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement, and made errors in its assessment of the conditions for the admissibility of evidence.
By that second plea, the appellants claimed, in essence, that the Commission had not proved its ‘internal jurisdiction’, on the ground that, in the decision at issue, it had not demonstrated that their conduct had affected trade between Member States within the meaning of Article 101(1) TFEU, with the result that it did not have jurisdiction to impose a fine on them under that provision and Article 53 of the EEA Agreement. By the judgment under appeal, in particular in paragraphs 169, 173 and 177 thereof, the General Court rejected that plea by holding that the Commission had proved its ‘external jurisdiction’ on the basis of the ‘implementation’ test, on the ground that ODDs had been sold in the EEA.
The fourth ground of appeal is divided into three parts.
1.

The first part of the fourth ground of appeal
(a)

Arguments of the parties
The first part of the fourth ground of appeal alleges that the judgment under appeal contains an inadequate statement of reasons regarding the second plea raised at first instance by the appellants, relating to the Commission’s lack of jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement. As regards the first part of that second plea, concerning the claim that there was no evidence of the effect of the cartel on trade between Member States, the General Court did not respond to the appellants’ arguments and, in rejecting them, focused on the incorrect test for jurisdiction, namely the implementation test.
According to the appellants, the test for external jurisdiction and the test for internal jurisdiction are not mutually exclusive. The external jurisdiction test is a prerequisite to apply Article 101 TFEU, where the wrongful conduct takes place outside the European Union or the EEA. However, even if that test were met, it would still be for the Commission to determine whether the conduct in question is capable of affecting trade between Member States.
The appellants had claimed at first instance that, in the absence of adequate proof of any trade in ODDs between Member States, the Commission had failed to establish that trade between Member States had been affected, for the purposes of Article 101 TFEU and Article 53 of the EEA Agreement. The General Court did not respond to those arguments and merely relied on illogical or unsubstantiated grounds in that it disregarded the lack of evidence provided by the Commission and that it confused, in paragraph 174 of the judgment under appeal, the existence of sales to Dell and to HP in the EEA with the existence of possible sales of ODDs in the EEA.
The Commission contends that the first part of the fourth ground of appeal is unfounded.
(b)

Findings of the Court
By the first part of their fourth ground of appeal, the appellants claim that the General Court failed to state reasons in response to their plea, raised at first instance, alleging that the Commission lacked jurisdiction. According to the appellants, the General Court did not respond to their arguments and focused, in rejecting them, on the incorrect test for jurisdiction.
As recalled in paragraph 93 of the present judgment, first, the obligation to state reasons does not require the General Court to provide an account that follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its powers of review.
Second, according to settled case-law, in order for the condition that an agreement within the meaning of Article 101(1) TFEU must be capable of affecting trade between Member States to be fulfilled, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law and of fact, that the agreement may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that it might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant (judgment of 16 July 2015, ING Pensii,
C‑172/14
,
EU:C:2015:484
, paragraph
and the case-law cited).
In that regard, it should be noted that, in paragraphs 170 to 172 of the judgment under appeal, the General Court found, inter alia, that the Commission had demonstrated, to the requisite legal standard, that the addressees of the decision at issue had supplied ODDs to their customers Dell and HP, which were established in several Member States. Even though that evidence was put forward in the assessment of the ‘implementation’ test, the appellants were perfectly able to understand that it was sufficient to show that the Commission had established that trade between Member States was capable of being affected, especially since the General Court went on to analyse, in paragraphs 179 to 191 of that judgment, the appellants’ complaint that there was no assessment of the appreciable nature of the effect of the cartel at issue on trade between Member States. In rejecting that complaint, the General Court expressly held, in paragraph 187 of the judgment under appeal, that the Commission had satisfied the criterion that trade between Member States must be capable of being affected, laid down in paragraph 53 of the Guidelines on the effect on trade concept contained in Articles [101 and 102 TFEU] (
OJ 2004 C 101, p. 81
).
It follows that the General Court’s reasoning, although implicit, allowed the appellants to know the reasons why it had not upheld the first part of the second plea in their action at first instance.
The first part of the fourth ground of appeal must therefore be rejected as unfounded.
2.

The second part of the fourth ground of appeal
(a)

Arguments of the parties
By the second part of their fourth ground of appeal, the appellants submit that the General Court erred in law in holding that the evidence relating to the condition that trade between Member States must be capable of being affected, relied on by the Commission for the first time at first instance, in its defence, was admissible on the ground, inter alia, that that evidence had been mentioned in the statement of objections.
The appellants submit that, in paragraph 176 of the judgment under appeal, the General Court held that the evidence relied on for the first time by the Commission at first instance, in its defence, in support of its contentions relating to that condition was admissible. According to the General Court, that evidence was mentioned in the statement of objections.
According to the appellants, first, that statement did not include any conclusions on the issue of the effect on trade between Member States. Second, contrary to what is stated by the General Court, some of the documents relied on at first instance by the Commission are not referred to in the statement of objections in support of its conclusion regarding its jurisdiction. Some of those documents are not mentioned. Others are mentioned only in the statement of objections, but not in the decision at issue, which means that the Commission no longer considered them to be relevant. Others still are mentioned in the statement of objections and in the decision at issue, but in developments unrelated to the assessment of the condition that trade between Member States must be capable of being affected.
The appellants submit that the Court of Justice has held that not even documents of which an undertaking concerned is already aware can validly be cited in a decision if they have not previously been mentioned and examined in the statement of objections.
The Commission contends that the second part of the fourth ground of appeal is unfounded and, in any event, ineffective.
(b)

Findings of the Court
By the second part of their fourth ground of appeal, the appellants criticise the General Court for holding, in paragraph 176 of the judgment under appeal, that the evidence relied on by the Commission at first instance, in its defence, in support of its contentions relating to the condition that trade between Member States must be capable of being affected was admissible, even though that evidence was relied on for the first time by the Commission.
In that regard, it must be observed that it is apparent from paragraph 170 of the judgment under appeal that the General Court confirmed, on the basis of recitals 53, 270 and 464 to 468 of the decision at issue, the Commission’s assessment concerning that condition. Given that the evidence relied on by the Commission and referred to by the appellants is that referred to by the General Court in paragraphs 171 and 172 of that judgment, it must be held that it is superfluous in relation to the reasoning set out in paragraph 170 of that judgment, and that, therefore, the second part of the fourth ground of appeal must be regarded as ineffective.
3.

The third part of the fourth ground of appeal
(a)

Arguments of the parties
By the third part of their fourth ground of appeal, the appellants submit that the ‘evidence’ relied on by the Commission at first instance is inadmissible, irrelevant and insufficient. This third part relates to the arguments put forward by the Commission and would be effective only if the Court were to set aside the judgment under appeal.
The appellants submit, first, that the evidence concerning Dell is irrelevant for the reasons put forward in paragraph 46 of the reply before the General Court. Second, the fact that HP had sales offices in the United Kingdom is irrelevant for the reasons put forward in paragraph 47 of that reply. Third, the evidence cited in footnotes 74 and 75 to the defence before the General Court merely confirms an aspect which is not disputed, namely that the undertakings concerned supplied Dell and HP in the EEA with ODDs originating from outside the EEA. Fourth, in footnote 25 to the rejoinder before the General Court, the Commission quotes a different passage of the document ID 1412/4, cited in footnote 74 to the defence. That document is relied upon in the rejoinder to prove a finding that was never made in the statement of objections or in the decision at issue. As such, that new finding cannot be admitted on appeal to support the lawfulness of the decision at issue, and in turn, that document should be declared inadmissible. Fifth, the evidence cited in footnote 76 to the defence is completely irrelevant. It concerns sales in a different channel of the market to customers other than Dell and HP, which were thus outside the scope of the conduct in question.
The appellants submit that, as regards the evidence cited for the first time in footnote 26 to the rejoinder, the Commission takes from the file a document which, in its view, shows that some of the ODD suppliers of HP were established in the EEA, thus demonstrating trade within the EEA. That document is not admissible, in particular because it was never mentioned or examined in the statement of objections or in the decision at issue for the purposes of proving an effect on trade within the EEA.
The Commission contends that the third part of the fourth ground of appeal is unfounded.
(b)

Findings of the Court
By the third part of their fourth ground of appeal, the appellants submit that the ‘evidence’ relied on by the Commission at first instance is inadmissible, irrelevant and insufficient. This third part relates to the arguments put forward by the Commission and would be effective only if the Court were to set aside the judgment under appeal.
It is sufficient to recall that, according to settled case-law, a plea raised for the first time in an appeal before this Court must be rejected as inadmissible. In an appeal, the Court’s jurisdiction is confined to examining the assessment by the General Court of the pleas argued before it. To allow a party to put forward in an appeal before the Court of Justice a plea in law which it has not raised before the General Court would amount to allowing that party to bring before the Court, whose jurisdiction in appeals is limited, a wider case than that heard by the General Court (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission,
C‑295/12 P
,
EU:C:2014:2062
, paragraph
and the case-law cited).
The third part of the fourth ground of appeal must therefore be rejected as inadmissible. Accordingly, that ground of appeal must be rejected in its entirety as in part inadmissible, in part ineffective and in part unfounded.
VI.

Setting aside the judgment under appeal
It follows from paragraphs 76 to 100 above that, in holding that the Commission had not breached the appellants’ rights of defence and that the Commission had satisfied its obligation to state reasons for the decision at issue in finding that the appellants had, in addition to their participation in a single and continuous infringement, also participated in several separate infringements, the General Court erred in law.
In those circumstances, the judgment under appeal must be set aside.
VII.

The action before the General Court
In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice is to quash the decision of the General Court if the appeal is well founded. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
In the present case, it is appropriate to give final judgment in the matter, as the state of the proceedings so permits.
As is apparent from paragraph 34 above, the appellants raised nine pleas before the General Court.
By the first plea in their action before the General Court, the appellants claim that, in stating for the first time in the decision at issue that they had participated in several separate infringements comprising the single and continuous infringement imputed to them, without having alleged such participation during the administrative procedure, the Commission breached their rights of defence. According to the appellants, that decision is also vitiated by a failure to state reasons, on the ground that the Commission did not state therein the reasons why it considered that the appellants had participated in those separate infringements.
As regards the complaint alleging breach of the obligation to state reasons, it must be held, for the reasons set out in paragraphs 91 to 99 of this judgment, that the Commission did not state reasons for its decision as to the appellants’ participation in those separate infringements.
Accordingly, the first plea raised by the appellants in support of their action must be upheld in respect of the complaint that the Commission did not sufficiently state its reasons for the decision at issue as regards the appellants’ participation in those separate infringements.
Having regard to the foregoing, in the light of what has been stated in paragraphs 68 to 71 of this judgment and without it being necessary to examine the other arguments raised in connection with the first plea, Article 1(e) of the decision at issue must be annulled in so far as it finds that the appellants infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in several separate infringements.
By the second plea in their action before the General Court, the appellants claim that the Commission does not have jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement. They submit, in essence, that the Commission does not prove in the decision at issue that trade between Member States was affected by the conduct of which they are accused and that, consequently, it has no jurisdiction to impose a fine on them under Article 101 TFEU and Article 53 of the EEA Agreement. The Court adopts the reasoning set out in paragraphs 165 to 177 and 181 to 190 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs, the second plea must be rejected.
By the third plea in their action before the General Court, the appellants dispute that the alleged infringement covered the whole of the EEA, contrary to what was stated in Article 1 of the decision at issue. They claim that sales of ODDs by the cartel participants were limited to Dell and HP, which are established in the Netherlands and in Germany respectively. They maintain that the place where customers buy the products concerned is the decisive criterion for the purpose of determining whether an infringement has been implemented. The Court adopts the reasoning set out in paragraphs 194 to 199 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs, the third plea must be rejected.
By the fourth plea in their action before the General Court, the appellants dispute the Commission’s findings as regards the existence of a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement. In the first part of that plea, they claim that proof of a link of complementarity between the various instances of individual anticompetitive conduct is essential for the purpose of establishing the existence of such an infringement and that, in the decision at issue, the Commission has not succeeded in proving such a link to the requisite legal standard. In the second part of that plea, the appellants dispute the Commission’s finding that the conduct relating to Dell and HP gave rise to a single infringement. First, they maintain that the conduct relating to Dell and to HP did not pursue a single anticompetitive aim, since those undertakings were two separate customers. Second, they submit that the conduct relating to Dell was not complementary to that relating to HP, since there was no interaction between the two undertakings. Third, they maintain that the similarities listed in that decision relating to the products, the modus operandi, the content and the geographic scope do not suffice to prove the existence of such a link of complementarity. Fourth, they claim that the conduct relating to Dell and that relating to HP were substantially different as regards duration, participants, customers, the natural persons involved and geographic areas, contrary to what was stated in that decision. Fifth, the appellants claim that the evidence relied on in that decision is insufficient and irrelevant for the purpose of proving that the forms of conduct at issue are complementary.
In respect of the first part of the fourth plea, the Court adopts the reasoning set out in paragraphs 204 to 216 of the judgment under appeal, read in the light of paragraphs 107 to 110 and 116 to 120 of the present judgment. Accordingly, for the reasons set out in those paragraphs, the first part of the fourth plea must be rejected. As regards the second part of that plea, the Court adopts the reasoning set out in paragraphs 220 to 240 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs, the second part of that plea must be rejected. Consequently, the fourth plea must be rejected in its entirety.
By the fifth plea in their action before the General Court, the appellants claim that the Commission has not shown to the requisite legal standard that they were aware or ought to have been aware of the whole single and continuous infringement found in the decision at issue and of the involvement of all the other participants. Consequently, in the appellants’ submission, the Commission cannot impute participation in that infringement to them and the decision at issue should be annulled in its entirety in so far as it concerns them. The Court adopts the reasoning set out in paragraphs 246 to 277, 280 to 345 and 349 to 358 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs, the fifth plea must be rejected.
By the sixth plea in their action before the General Court, the appellants claim that the Commission has not shown to the requisite legal standard that they were aware of all the components of the alleged cartel or that they were aware of the conduct of the other cartel participants from 23 June 2004. They observe in that regard that they could have been aware of the single aim of that cartel only from 20 June 2006, the date from which liability for the contacts relating to HP was imputed to them, and that, consequently, the decision at issue must be annulled in its entirety. The Court adopts the reasoning set out in paragraphs 362 to 373 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs, the sixth plea must be rejected.
By the seventh plea in their action before the General Court, the appellants claim, first of all, that the Commission has not proved to the requisite legal standard that the bilateral contacts that allegedly involved them in the single and continuous infringement that was found constituted unlawful agreements for the purposes of Article 101(1) TFEU. They maintain, next, that the Commission has not proved to the requisite legal standard the existence of any concurrence of anticompetitive intention as regards each of the eight alleged bilateral contacts. They dispute, moreover, the fact that the Commission relied on the statements of the leniency applicants and challenge the probative value of those statements and also of the contemporaneous evidence of facts, in particular the records of telephone conversations. They maintain, lastly, that those contacts were mere information exchanges and that, consequently, the fine imposed on them must be reduced. That reclassification of their conduct could, in their submission, result in a subsequent action for damages. The Court adopts the reasoning set out in paragraphs 377 to 463 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs, the seventh plea must be rejected.
By the eighth plea in their action before the General Court, the appellants claim that the duration of the investigation was excessive in the light of the volume of the file, the number of parties involved, the involvement of only two customers, the relatively short duration of the single and continuous infringement alleged by the Commission and the absence of any exceptional circumstances that could justify a long investigation. They maintain that a finding that the duration of the investigation was excessive should result in the amount of the fine imposed being reduced by at least 5%. The Court adopts the reasoning set out in paragraphs 467 to 472 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs, the eighth plea must be rejected.
By the ninth plea in their action before the General Court, the appellants claim that the Commission erred in determining the amount of the fine imposed on them. This plea is divided into three parts, alleging, first, that the Commission ignored the fact that the appellants are single-product undertakings, second, that it failed to take into account other circumstances that reduce the gravity of TSST KR’s individual conduct and, third, that it did not properly assess the particular circumstances of the infringement at issue for the purpose of determining the general gravity coefficient. The Court adopts the reasoning set out in paragraphs 477 to 485, 489 to 497 and 501 to 507 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs, the ninth plea must be rejected.
As regards the amount of the fine referred to in Article 2(e) of the decision at issue, the Court considers that none of the elements relied on by the appellants in the present case, nor any ground of public policy, justifies it making use, pursuant to Article 261 TFEU and Article 31 of Regulation No 1/2003, of its unlimited jurisdiction to reduce that amount.
In those circumstances, Article 1(e) of the decision at issue must be annulled in so far as it finds that the appellants infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in several separate infringements, and the action must be dismissed as to the remainder.
Costs
Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.
Under Article 138(1) of those rules, applicable to the procedure on appeal pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 138(3) of those rules states that where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
In the present case, the appellants have applied for the Commission to be ordered to pay all the costs relating to the proceedings at first instance and the appeal proceedings, and the Commission has been unsuccessful in its submissions at the appeal stage and, in part, in its submissions at first instance. The appellants were partially unsuccessful in their claims at first instance. That being so, the Court considers, having regard to the circumstances of the present case, that the Commission must be ordered to bear its own costs relating to both the proceedings at first instance and the appeal proceedings and to pay all the costs incurred by the appellants in the present appeal and half of the costs which they incurred at first instance. The appellants are to bear half of their own costs relating to the proceedings at first instance.

On those grounds, the Court (Fourth Chamber) hereby:

1.
Sets aside the judgment of the General Court of the European Union of 12 July 2019, Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission (
T‑8/16
,
EU:T:2019:522
);

2.
Annuls Article 1(e) of Commission Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 – Optical disk drives) in so far as it finds that Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 by participating, from 23 June 2004 to 17 November 2008, in several separate infringements;

3.
Dismisses the action as to the remainder;

4.
Orders the European Commission to bear its own costs relating to both the proceedings at first instance and the appeal proceedings and to pay all the costs incurred by Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. in the present appeal and half of the costs which they incurred at first instance;

5.
Orders Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. to bear half of their own costs relating to the proceedings at first instance.

Jürimäe
Rodin
Piçarra
Delivered in open court in Luxembourg on 16 June 2022.
A. Calot Escobar
Registrar
K. Lenaerts
President
(
*1
)	Language of the case: English.