CELEX: 62013TJ0104
Competition
Agreements, decisions and concerted practices
Global market for cathode ray tubes for television sets and computer monitors
Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement
Agreements and concerted practices on pricing, market sharing, capacity and production
Proof of participation in the cartel
Single and continuous infringement
Imputability of the infringement
Joint control
Fines
Unlimited jurisdiction

Background to the dispute
Applicant and relevant product
The applicant, Toshiba Corp., is a global undertaking which manufactures and sells electronic and electrical products, including cathode ray tubes (‘CRTs’).
A CRT is an evacuated glass envelope containing an electron gun and a fluorescent screen, usually with internal or external means to accelerate and deflect the electrons. When electrons from the electron gun strike the fluorescent screen, light is emitted, creating an image on the screen. At the material time, there were two types of CRT, namely colour display tubes for computer monitors (‘CDTs’) and colour picture tubes for television sets (‘CPTs’). CDTs and CPTs are individual components which are combined with a chassis and other essential components to produce a computer monitor or a colour television. They come in a number of different sizes (small, medium, large and jumbo), expressed in inches.
The applicant was involved in the production and sales of CRTs, both directly and through its subsidiaries, in particular [
confidential
], (
) [
confidential
], [
confidential
] and [
confidential
], located in Europe, Asia and North America. [
confidential
], based in [
confidential
] and wholly owned by [
confidential
], was the European branch in charge of the applicant’s electronic components business and also its exclusive distributor of CDTs and CPTs in the European Economic Area (EEA) from 1995 until 31 March 2003.
On 31 March 2003 the applicant transferred its entire CRT business to a joint venture, Matsushita Toshiba Picture Display Co. Ltd (‘MTPD’), created with Matsushita Electric Industrial Co. Ltd (‘MEI’). Until 31 March 2007, MTPD was held as to 64.5% by MEI and as to 35.5% by the applicant; on that date the applicant transferred its shareholding to MEI and MTPD thus became a wholly owned subsidiary of MEI and changed its name to MT Picture Display Co. Ltd. MEI changed its name to Panasonic Corp. on 1 October 2008.
Administrative procedure
The present proceeding was initiated following an application for immunity, within the meaning of the Commission Notice on immunity from fines and reduction of fines in cartel cases (
OJ 2006 C 298, p. 17
), submitted by Chunghwa Picture Tubes Co. Ltd on 23 March 2007.
Samsung SDI Co. Ltd, Samsung SDI Germany GmbH, Samsung SDI (Malaysia) Berhad (together, ‘Samsung SDI’), MEI, Koninklijke Philips Electronics NV (‘Philips’) and Thomson SA submitted leniency applications in accordance with the notice mentioned in paragraph 5 above.
On 23 November 2009 the Commission of the European Communities adopted a statement of objections addressed to the applicant, as well as to Chunghwa Picture Tubes Co. Ltd, Chunghwa Picture Tubes (Malaysia) Sdn. Bhd, CPTF Optronics Co. Ltd (together, ‘Chunghwa’), Samsung SDI, Philips, LG Electronics, Inc. (‘LGE’), PT LG Electronics Indonesia Ltd, LG Electronics European Holding BV, Thomson, Panasonic, [
confidential
], [
confidential
] and MTPD, and held a hearing on 26 and 27 May 2010 (‘the hearing’) with all the addressees of the statement of objections.
By letters of 2 July 2010, Panasonic and the applicant submitted additional observations and presented evidence regarding the issue of the alleged decisive influence they exercised over the conduct of MTPD on the market.
By letter of 14 December 2010, the applicant reiterated the request which it had made in its observations of 2 July 2010, seeking to obtain access to the observations submitted by Panasonic in the context of the hearing, and to any new evidence added to the file since the statement of objections.
By letter of 22 December 2010, the Commission sent a statement of the facts to Panasonic and to the applicant concerning additional evidence on which it intended to rely, if necessary, in order to find that they were jointly and severally liable for any sanction imposed on MTPD for its participation in the overall cartel.
By letter from the hearing officer of 19 January 2011, the Commission rejected the applicant’s requests of 14 and 23 December 2010, seeking to obtain access to other undertakings’ responses to the statement of objections.
By letter of 4 February 2011, the applicant responded to the statement of the facts sent by the Commission.
By letter of 4 March 2011, the Commission sent a request for information, inter alia to the applicant, in accordance with Article 18(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (
OJ 2003 L 1, p. 1
), inviting it to provide information on its sales and its overall turnover.
Contested decision
By Decision C(2012) 8839 final of 5 December 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.437 — TV and Computer Monitor Tubes) (‘the contested decision’), the Commission found that the main global producers of CRTs had infringed Article 101 TFEU and Article 53 of the EEA Agreement (‘the EEA Agreement’) by participating in two separate infringements, each constituting a single and continuous infringement. Those infringements related, first, to the CDT market (‘the CDT cartel’) and, second, to the CPT market (‘the CPT cartel’). They took place, respectively, between 24 October 1996 and 14 March 2006 and between 3 December 1997 and 15 November 2006, and took the form of agreements and concerted practices between CRT producers, with the objectives of fixing prices, sharing markets and customers by allocating sales volumes, customers and market shares, restricting production, exchanging sensitive commercial information and monitoring the implementation of collusive agreements.
As regards the CPT cartel, the only one to which the action relates, the Commission found that the participants had agreed on target or bottom prices for various CPT sizes, that they had made efforts to maintain a price gap between identical products marketed in Europe and in Asia and that they had closely monitored the pricing arrangements. They also entered into agreements defining which producer would communicate which price increase to which customer. Moreover, the CPT producers agreed on their market shares and agreed on coordinated output restrictions with a view to reducing supply and increasing or maintaining prices. In addition, they exchanged commercially sensitive information concerning planned production and capacity, sales made and planned, arrangements relating to future demand, pricing and price strategy, general sales conditions, customers and also negotiations on price and volumes with customers.
In recitals 123 and 124 to the contested decision, it was stated that, after an initial period during which CPTs had been discussed in the same meetings as those relating to CDTs, regular multilateral meetings called ‘CPT glass meetings’ began to be formally held in the autumn of 1998, initially in Asia (‘the Asian glass meetings’), between the Asian undertakings forming the core of the cartel, namely Chunghwa, Samsung SDI, [
confidential
], [
confidential
] and LGE, on a monthly or quarterly basis, while in addition frequent bilateral contacts and information exchanges took place between producers worldwide. Then, from 1999, the Asian undertakings made efforts to enlarge the circle of cartel members in order to include all the main Asian producers and also the European producers. They were thus joined by [
confidential
], MEI, Philips, Thomson and the applicant. The participation of the European undertakings, Philips and Thomson, was proved from the time when the Commission launched, in the spring of 1999, an anti-dumping procedure concerning the import of 14-inch CPTs from Asia. From that date, evidence also shows that glass meetings (‘the glass meetings’) were held in Europe (‘the European glass meetings’). Furthermore, in 2002-2003, the Asian glass meetings changed form and were then organised on two platforms for CPT producers based in Asia and consisting, first, of meetings between Samsung SDI, MTPD and the LG Philips Displays group (‘the LPD group’, in place of LGE and Philips, which had transferred their CPT business to it), called ‘SML’ meetings, which largely concerned medium-sized and extra-large CPTs, and, second, south-east Asian meetings between Samsung SDI, the LPD group, MTPD, Chunghwa and [
confidential
], called ‘ASEAN’ meetings, largely concerning small and medium-sized CPTs.
The Commission observed that, although the European CPT-related glass meetings were allegedly organised and held separately from the meetings held in Asia, the subsidiaries of the same undertakings and occasionally the same individuals had taken part in meetings with competitors in both Europe and Asia. Thus, the Commission considered that the European glass meetings and the Asian glass meetings were interconnected, since the same topics were discussed and the same type of information exchanged, in spite of the fact that the documents in the file did not describe any joint central organisation. In that regard, according to the wording of the contested decision, the European glass meetings were an extension of the Asian glass meetings and they focused more particularly on market conditions and prices in Europe, whereas the contacts established in the context of the cartel in Asia were of a global nature and therefore also concerned Europe. Furthermore, the agreements relating to the European market were concluded in meetings that took place both in Europe and in Asia and the prices applied were regularly followed, the Asian prices being used as a proxy when the European price level was discussed.
Last, as regards the applicant’s involvement in the CPT cartel, first, the Commission stated that the applicant had participated directly in that cartel by maintaining bilateral contacts, between 16 May 2000 and 11 April 2002, with the majority of the undertakings forming the core of the cartel, in which the same type of discussions as in certain glass meetings took place, and also by participating, from 12 April 2002, in certain of those glass meetings. Secondly, the Commission observed that, from 1 April 2003, MTPD, over which MEI and the applicant exercised decisive influence, continued its participation in the CPT cartel uninterruptedly, both by exchanging sensitive commercial information concerning it in bilateral contacts with the undertakings participating in the European glass meetings and by attending the SML and ASEAN meetings, of worldwide impact, held in Asia. Consequently, the Commission concluded that the applicant was liable, first, for the infringement committed directly by it, before the creation of MTPD, and, secondly, jointly and severally with Panasonic, for the infringement committed by MTPD from the time when that undertaking was set up.
As for the calculation of the amount of the fine imposed on the applicant, the Commission relied on 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
) (‘the 2006 Guidelines’).
First of all, in order to determine the basic amount of the fine, the Commission considered that, for the purpose of establishing the value of the sales of goods to which the infringement relates, within the meaning of point 13 of the 2006 Guidelines, it was appropriate to take into account the average annual value of ‘real’ sales throughout the duration of the CPT cartel, consisting (i) of sales linked to CPTs sold directly to customers in the EEA by one of the addressees of the contested decision (‘direct EEA sales’) and (ii) of sales linked to CPTs incorporated within the same group in a finished product and then sold by one of the addressees of the contested decision to customers in the EEA (‘direct EEA sales through transformed products’). According to recitals 1021, 1026 and 1029 to that decision, the first ‘real’ sale of CPTs — sold as such or incorporated into finished products — corresponded to the sale made into the EEA during the period of the CPT cartel by one of the addressees of the contested decision to an external customer. By contrast, the Commission did not take into account ‘indirect sales’, corresponding to the value of the CPTs sold by one of the addressees of the contested decision to customers outside the EEA, which allegedly then incorporated them into finished products which they sold in the EEA.
In addition, the Commission observed that Panasonic and the applicant had participated in the CPT cartel before the creation of MTPD and that they had continued to participate in it after the creation of MTPD, through it. The Commission therefore took the view that, even if there had not been any interruption in the applicant’s participation in the CPT cartel, it was necessary to distinguish two periods in order to calculate the amount of the fines imposed on the applicant, namely (i) the period prior to the creation of MTPD, for which Panasonic and the applicant are held individually liable because of their direct participation in the CPT cartel and (ii) the period subsequent to the creation of MTPD, for which Panasonic and the applicant are held jointly and severally liable with MTPD. So far as concerns the period prior to the creation of MTPD, the Commission took into account the average value of the individual ‘real’ sales of the parent companies, whereas, for the period subsequent to its creation, the Commission took into account the value of MTPD’s sales, in order to reflect the economic power of that undertaking. Those latter sales included both the direct EEA sales made by MTPD and the direct EEA sales through transformed products between MTPD, on the one hand, and Panasonic and the applicant, on the other.
As regards the value of sales used in order to calculate the additional amount included in the basic amount, attributed by the Commission to each of MTPD’s parent companies, it was determined taking into account not only the annual average value of the individual sales of CPTs made by each parent company before the creation of MTPD, but also a fraction of the sales of CPTs made by MTPD, corresponding to the shareholder interest held by each parent company in its capital.
In that regard, the Commission took the view that, having regard to the gravity of the infringement, the proportion of the value of sales to be taken into account for the purposes of determining the basic amount corresponded, for all the undertakings concerned, to 18% for the CPT cartel and 19% for the CDT cartel, multiplied by the duration of their respective participation in the infringement, on a proportionate basis and rounded down to the month below. In addition, irrespective of the duration of the undertakings’ participation in the CPT cartel and in order to deter them from entering into horizontal price-fixing and market-sharing agreements, the Commission included in the basic amount of the fines to be imposed on Panasonic and on the applicant the additional amount resulting from the 18% applied to the value of relevant sales for the CPT cartel.
In addition, the Commission considered that there were no aggravating circumstances, nor did it recognise any mitigating circumstances as regards the applicant that would justify an adjustment of the basic amount.
Lastly, having regard to the fact that the applicant’s turnover had been considered to be particularly large, beyond the sales of goods to which the infringement related, the Commission applied a multiplier for deterrence of 10% to the amount of the fine to be imposed on the applicant.
Articles 1 and 2 of the operative part of the contested decision read as follows:
‘Article 1
…
2.   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 complex of agreements and concerted practices in the sector of [CPTs]:
…
(c)
Panasonic …, from 15 July 1999 until 12 June 2006;
(d)
Toshiba …, from 16 May 2000 until 12 June 2006;
(e)
[MTPD], from 1 April 2003 until 12 June 2006;
…
Article 2
…
2.   For the infringement referred to in Article 1[(2)], the following fines are imposed:
…
(f)
Panasonic …: EUR 157478000;
(g)
Toshiba …: EUR 28048000;
(h)
Panasonic …, Toshiba … and [MTPD], jointly and severally liable: EUR 86738000;
(i)
Panasonic … and [MTPD], jointly and severally liable: EUR 7885000;
…’
Procedure and forms of order sought
By application lodged at the Court Registry on 20 February 2013, the applicant brought the present action.
The composition of the Chambers of the Court was altered and the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was therefore assigned.
Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral part of the procedure and, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the General Court of 2 May 1991, to put certain questions to the parties. Those requests of the Court were complied with within the prescribed period.
The parties presented oral argument and answered the questions put by the Court at the hearing on 11 November 2014. At the hearing, the parties were asked to submit any observations on the judgment in Case C‑580/12 P
Guardian Industries and Guardian Europe
v
Commission
[2014] ECR, within 10 days of the date of delivery of that judgment. That period was extended to 28 November 2014 for the Commission, at its request.
By letters lodged at the Court Registry on 21 and 28 November 2014 respectively, the applicant and the Commission complied with that request.
The oral part of the procedure was closed on 5 December 2014.
By order of 26 May 2015, the Court decided to reopen the oral procedure in accordance with Article 62 of the Rules of Procedure of 2 May 1991.
By way of measures of organisation of procedure under Article 64 of the Rules of Procedure of 2 May 1991, the Court requested the parties to submit any observations on the Opinion of Advocate General Wathelet in Case C‑231/14 P
InnoLux
v
Commission
[2015] ECR. That request was complied with within the prescribed period. The parties also submitted their observations on the responses provided in the context of that measure of organisation of procedure and, in particular, on the calculation and the amount of the fines.
The oral part of the procedure was closed on 10 July 2015.
The applicant claims that the Court should:
—
annul Article 1(2)(d) of the contested decision;
—
annul Article 1(2)(e) of the contested decision;
—
annul Article 2(2)(g) of the contested decision or, in the alternative, reduce the fine to such amount as the Court may deem appropriate;
—
annul Article 2(2)(h) of the contested decision or, in the alternative, annul that provision in so far as the applicant is declared jointly and severally liable or, in the alternative, reduce the fine to such amount as the Court may deem appropriate;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
By its first and second heads of claim, the applicant claims, principally, that the contested decision should be annulled in part and, by its third and fourth heads of claim, it claims, in the alternative, that the fine imposed on it by the decision should be cancelled or reduced.
It is necessary to examine, first of all, the first and second heads of claim, seeking partial annulment of the contested decision.
Principal head of claim, seeking partial annulment of the contested decision
The applicant puts forward five pleas in law in support of this claim. The first, second and third pleas allege errors vitiating the contested decision in that it finds that the applicant was liable for the infringement during the periods from 16 May 2000 until 11 April 2002, from 12 April 2002 until 31 March 2003 and from 1 April 2003 until 12 June 2006. The fourth plea alleges an error vitiating the contested decision in that it finds that the applicant was jointly and severally liable for MTPD’s participation in the infringement committed during the period from 1 April 2003 until 12 June 2006. The fifth plea, raised in the alternative, alleges an error vitiating the contested decision in that it finds that MTPD was liable for having participated in the infringement committed during the period from 1 April 2003 until 12 June 2006.
It is appropriate to start by examining the first plea, then the second, fourth and third pleas, and, finally, the fifth plea.
First plea, alleging an error vitiating the contested decision in that it finds that the applicant was liable for the infringement committed between 16 May 2000 and 11 April 2002
This plea is divided into four parts. The first part alleges infringement of the rights of the defence, in that the applicant was not heard with regard to the date taken in the contested decision as the date on which it supposedly became involved in the alleged infringement. The second and third parts allege errors of assessment relating to the characterisation of certain bilateral meetings as forming part of a single and continuous infringement. The fourth part alleges infringement of the principle of equal treatment, in that the Commission applied different standards of proof in finding that another undertaking, [
confidential
], did not participate in the CPT cartel in spite of its having participated in certain bilateral meetings in Europe and in European glass meetings during the same period as the applicant.
It is appropriate to examine, first of all and jointly, the second and third parts.
In the second part of the first plea, the applicant maintains that, even on the assumption that the Court should find that the meeting of 16 May 2000, which was held between the applicant and Philips, had an anticompetitive object, that meeting did not form part of the single and continuous infringement found by the contested decision.
In the third part of this plea, the applicant argues that none of the other occasional and unrelated bilateral contacts identified by the Commission in the contested decision had the characteristics of the glass meetings alleged to have taken place during the same period or included any information about agreements entered into at the cartel meetings.
It should be noted that it is common ground between the parties that the applicant did not participate in the Asian glass meetings from 1997 to 2002 or in the European glass meetings from 1999 to 2005, but that, from 16 May 2000 and until 11 April 2002, it established nine bilateral contacts, primarily with three participants in those meetings, namely Samsung SDI, as regards the former meetings, and Thomson and Philips, as regards the latter meetings. However, the applicant maintains that, even on the assumption that those contacts implied anticompetitive conduct on the part of the participating undertakings, there is no evidence that, during those contacts, it was informed of the existence of the alleged single and continuous infringement and could therefore be regarded as having been involved in that infringement since spring 2000.
In that regard, the applicant maintains that, in recitals 126, 274, 279, 287, 313, 502 and 686 to the contested decision, the Commission relied on evidence before the date considered to be the date of its accession to the CPT cartel, namely 16 May 2000, and, for some of that evidence, not cited in the statement of objections, in order to find, first, that it was aware of the existence of the glass meetings and, secondly, that it had a strategy to participate in those meetings by means of bilateral contacts. In addition, the applicant claims that the evidence on which the Commission relied to consider that the applicant had been kept informed of the existence of the CPT cartel by means of a competitor, namely [
confidential
], which had participated in the glass meetings, was too indirect and general, whereas the alleged attempts of its competitors to involve it in that cartel concerned [
confidential
].
It is apparent from the parties’ written submissions that they disagree on the evidential value of the evidence used by the Commission in the contested decision to find, first, that the applicant was aware of the existence of the anticompetitive conduct planned or put into effect by the participants in the Asian and European glass meetings and of the common objectives pursued by those participants or that it could reasonably have foreseen it and was prepared to take the risk and, secondly, that it intended to contribute by its own conduct to the achievement of those same objectives.
It must be pointed out that, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence — resulting in particular from Article 48(1) of the Charter of Fundamental Rights of the European Union and Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 — applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see Case T‑68/09
Soliver
v
Commission
[2014] ECR, paragraph 57 and the case-law cited).
It follows from the foregoing, first, that the Commission must adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement of Article 101 TFEU (Case
C-185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I-8417
, paragraph 58, and Case
C-49/92 P
Commission
v
Anic Partecipazioni
[1999] ECR I-4125
, paragraph 86), and, secondly, that any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed (see judgment of 24 March 2011 in Case T‑379/06
Kaimer and Others
v
Commission
, not published in the ECR, paragraph 47 and the case-law cited). In that context, the Commission must establish in particular all the facts enabling the conclusion to be drawn that an undertaking participated in such an infringement and that it was responsible for the various aspects of it (
Commission
v
Anic Partecipazioni
, paragraph 86). It follows that the participation of an undertaking in a cartel cannot be inferred from speculation based on imprecise evidence (see
Soliver
v
Commission
, cited in paragraph 49 above, paragraph 58 and the case-law cited).
It is thus necessary to determine whether the evidence relied on by the Commission in the contested decision is sufficiently credible, precise and consistent to substantiate the firm conviction that the applicant participated in the CPT cartel.
In that regard, it should be recalled that the fact that there is a single and continuous infringement does not necessarily mean that an undertaking participating in one or more aspects can be held liable for the infringement as a whole. The Commission still has to establish that that undertaking was aware of the other undertakings’ anticompetitive activities at European level or that it could reasonably have foreseen them. The mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice for a finding that the undertaking participated in the overall cartel. Article 101(1) TFEU does not apply unless there exists a concurrence of wills between the parties concerned (see
Soliver
v
Commission
, cited in paragraph 49 above, paragraph 62 and the case-law cited).
Accordingly, it is only if the undertaking knew or should have known when it participated in an agreement that in doing so it was joining in the overall cartel that its participation in the agreement concerned can constitute the expression of its accession to that same cartel (Case
T-28/99
Sigma Tecnologie
v
Commission
[2002] ECR II-1845
, paragraph 45; judgment of 16 November 2011 in Case T‑59/06
Low & Bonar and Bonar Technical Fabrics
v
Commission
, not published in the ECR, paragraph 61; and Case
T-208/06
Quinn Barlo and Others
v
Commission
[2011] ECR II-7953
, paragraph 144). In other words, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the unlawful conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (see
Soliver
v
Commission
, cited in paragraph 49 above, paragraph 63 and the case-law cited).
The undertaking concerned must therefore be aware of the general scope and the essential characteristics of the cartel as a whole (see
Soliver
v
Commission
, cited in paragraph 49 above, paragraph 64 and the case-law cited).
It follows that, in order to establish the applicant’s participation in the single and continuous infringement linked to CPTs, the Commission cannot simply establish the anticompetitive nature of the contacts established between the applicant and its competitors between 16 March 2000 and 11 April 2002, but must also prove that the applicant knew or could reasonably be considered to have known, first, of the fact that the contacts formed part of an overall plan and were designed to contribute to the achievement of the objective pursued by the overall cartel and, secondly, of the general scope and the essential characteristics of that cartel.
As the applicant submits and as was observed in paragraph 52 above, in the absence of evidence establishing that it was aware of the existence or content of the agreements and concerted practices agreed on during the glass meetings, the mere fact that there is identity of object between the meetings in which it participated and the overall CPT cartel and also the fact that it had contacts with undertakings whose participation in that cartel was established are not sufficient to demonstrate that it was aware of that cartel (Joined Cases
T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95
Cimenteries CBR and Others
v
Commission
[2000] ECR II-491
, paragraph 4112).
Consequently, the Court must examine whether the evidence set out by the Commission in the contested decision shows that, on the alleged date of its accession to the CPT cartel, that is on 16 May 2000, the applicant was aware or had actually been kept informed of the existence of the CPT cartel by its competitors and that it intended to contribute by its own conduct to the common objectives pursued by all the participants in that cartel.
In that regard, in order to support the finding that, notwithstanding the fact that the applicant did not attend the glass meetings before April 2002, it was indirectly kept informed of the CPT cartel by certain competitors (recitals 313, 498 to 500, 502, 511, 546 and 686 to the contested decision), which tried to involve it in that cartel (recitals 502 and 511 to that decision), it is apparent from that decision that the Commission refers to the evidence mentioned in recitals 264 to 270, 273, 274, 278, 279, 287 and 502 to the decision, and also to the statements of the leniency applicants, set out in recitals 126 (footnote 176) and 549 to 552 to the contested decision.
First, without it being necessary to rule on the question whether the Commission was entitled to rely on evidence from before the date on which the applicant allegedly became involved in the CPT cartel in order to show that, on that date, the applicant was aware of its existence or the unlawful conduct planned or put into effect by the participating undertakings or that it could reasonably have foreseen it, it is sufficient to note that, with the exception of a meeting of 14 January 1998, in which it participated, that evidence concerned [
confidential
] and not the applicant.
Contrary to the finding in recital 502 to the contested decision, and as is apparent from recitals 273 and 279 to that same decision and as the applicant rightly maintains, the attempts, observed during the first years of the CPT cartel, that is in 1998 and in 1999, of the other undertakings participating in the cartel, including [
confidential
], to encourage other undertakings to participate in the cartel were also targeted at [
confidential
] and not at the applicant. Apart from the circumstances, referred to in recitals 69 and 926 to the contested decision, that, first, the applicant was a minority shareholder holding 20% to 30% of the shares of that joint venture, created with [
confidential
], [
confidential
] and [
confidential
], and, secondly, that that undertaking also participated in the CPT cartel, the Commission did not establish any link between the applicant and [
confidential
] in that decision. In that regard, although the Commission also addressed the statement of objections to [
confidential
], it must be observed that [
confidential
] was not an addressee of the contested decision. Moreover, as the applicant asserts, it is not apparent from that decision that the Commission imputed to it the conduct of [
confidential
]. In the contested decision, the Commission took care to distinguish those two entities.
It follows that the Commission’s argument that the representative of [
confidential
] at the meeting of 20 October 1999 acted on behalf of the entire group when he announced the applicant’s intention to ‘switch the 33" Line of Japan’s factory to Indonesia in 2001’ cannot succeed. Moreover, such a consideration is not set out in the contested decision, in which the Commission merely states that, at that meeting, [
confidential
] informed Chunghwa of the progress of its 14- and 20-inch CPT price increases to specific customers.
Secondly, the extracts from the minutes of the meetings of 10 and 20 May and 23 August 1999, mentioned in recital 279 to the contested decision, as well as the minutes of the meeting of 21 September 1999, referred to in recital 287 to that decision, note a mere intention of the participants in the CPT cartel to contact [
confidential
], with which [
confidential
] allegedly maintained regular communication. Moreover, contrary to what is stated in recital 280 to that decision, the statement by [
confidential
]’s representative at the meeting of 23 August 1999, that he intended to arrange a meeting with ‘Toshiba[’s]’ high level management to persuade it to follow the price increase agreed upon did not concern the applicant, but [
confidential
]. That statement is cited in a section of the minutes of that meeting entitled [
confidential
], which makes reference to the delay in the implementation of the price increase in Indonesia. The fact that the undertaking concerned by that declaration was not the applicant is also consistent with the task given to [
confidential
] of providing [
confidential
] with updated information concerning the relevant market.
Thus, contrary to the Commission’s conclusion set out in recitals 280 and 995 to the contested decision, that evidence does not prove that the applicant was actually kept informed by [
confidential
] of the CPT cartel.
As regards the meeting of 14 January 1998, mentioned in footnote 169 of the contested decision and described in footnote 131 of the statement of objections, at which the applicant’s Vice-President proposed that the undertakings participating in the CDT cartel meetings should send representatives to Japan, Korea and Taiwan to establish bilateral contacts with the Japanese undertakings which did not participate in the glass meetings, it must be observed that that meeting was limited in scope to CDTs and therefore concerned a different cartel. In recitals 649 to 656 to the contested decision, the Commission found that, notwithstanding the links between the CPT and CDT cartels, the complex set of agreements or concerted practices linked to those cartels constituted two separate single and continuous infringements. Moreover, as the applicant asserts in the reply, the references to ‘CPT’ in the minutes of the meeting at issue refer to ‘Chunghwa Picture Tubes’, which had attended that meeting. In those circumstances, and without there being any need to rule on the alleged inadmissibility of that item of evidence in that it was not relied on in the statement of objections in relation to the CPT cartel, the Commission could not rely on those minutes to conclude, in recital 502 to the contested decision, that the applicant had a strategy to participate in the CPT cartel by means of bilateral contacts, or, consequently, that it was aware of the existence of that cartel.
In addition, contrary to the Commission’s assertions and the findings made in the contested decision, the fact that, at certain glass meetings, namely, in particular, those of 7 March, 10 and 20 May, 23 August, 21 September and 20 October 1999, as well as those of 20 March and 20 November 2001, commercially sensitive data relating to sales volumes, production capacity and the prices charged by the applicant were discussed cannot suffice for a finding that the applicant was aware of the existence of the CPT cartel and that it intended to contribute to the objectives pursued by the cartel. Moreover, the Commission has not established that the data exchanged by the participants in those meetings was the applicant’s data and that the references to ‘TSB’, stemming from their minutes, on which the Commission relied in order to prove the applicant’s participation in the CPT cartel actually referred to the applicant and not [
confidential
].
In that regard, it should be observed that the fact that the acronyms corresponding to the names of various companies, such as ‘TSB’, [
confidential
] or [
confidential
], were sometimes used in the same minutes is not a sufficient basis on which to conclude that the participants took care to make a systematic distinction between the applicant and [
confidential
]. Those references must be read in their context. However, it is important to note that the minutes of the meetings of 7 March, 21 September and 10 May 1999 make reference to manufacturers of television sets which were based in south-east Asia and were customers of [
confidential
], which is consistent with recital 279 to the contested decision, according to which, at the Asian glass meeting of 21 June 1999, the participants discussed price increases also with reference to [
confidential
] and to Aiwa, for whom [
confidential
] was the largest supplier.
In addition, the statement by [
confidential
]’s representative at a meeting held on 6 March 2000 with [
confidential
], cited in recital 330 to the contested decision, that ‘if GSM resolves to raise price, TSB will definitely follow’ cannot be interpreted as referring to the applicant, since it is scarcely conceivable that the strategy of an undertaking in which the applicant holds a minority shareholding would influence the pricing policy adopted by it and, even less so, bind it. Moreover, it is apparent from the applicant’s response to the statement of objections that [
confidential
] established its prices autonomously and that its employees did not have a decision-making power outside of it. Moreover, the mere fact that [
confidential
] decided to follow a possible concerted price increase planned at the glass meetings does not permit the inference that it informed the applicant thereof. Lastly, nor does the indication that the ‘Japan headquarters’ was considering transferring certain production lines to its factories situated in Thailand or in Indonesia show that the applicant had been kept informed of the anticompetitive practices planned or put into effect and the objectives pursued by the participants in the CPT cartel, including Chunghwa.
Thirdly, the Commission does not assert, in the contested decision, that [
confidential
] had informed the applicant, in any way whatsoever, of the existence of the CPT cartel or of the objectives pursued by the participants in that cartel.
Fourthly, even assuming that, as the Commission stated in recital 287 to the contested decision, it may be found that the applicant was aware of the CPT cartel meetings, there is no evidence that it intended to contribute by its own conduct to the common objectives pursued by all the participants in that cartel.
In this connection, contrary to the assertions made by the Commission in its written pleadings, the extract from the notes taken by an employee of Chunghwa at the glass meeting of 21 September 1999, reporting what an employee of [
confidential
] stated in regard to a letter which was allegedly sent by the applicant (‘TSB’s Japanese headquarters’) to [
confidential
], requesting it not to participate in the glass meetings, does not prove that the applicant had made the specific choice not to participate in those meetings and does not support the conclusion, as in the judgment of 6 March 2012 in Case T‑53/06
UPM-Kymmene
v
Commission
, not published in the ECR, that it was aware of the existence of the CPT cartel and that it intended to contribute to the achievement of the objectives pursued by the participants in that cartel. As the applicant asserts, on the contrary, that extract shows, rather, that it did not wish [
confidential
] to participate in the glass meetings.
Fifthly, contrary to the Commission’s conclusion set out in recitals 498, 499 and 995 to the contested decision, it does not follow from the oral statements by the three leniency applicants, classified in recital 126 to that decision as ‘consistent evidence regarding [the applicant’s] involvement [in the CPT cartel] since spring 2000’ and mentioned in footnote 176 of that recital, that, even though it only rarely attended multilateral meetings, it was generally kept informed of their outcome through [
confidential
].
Besides the general nature of that claim, it is important to note, in the first place, that Chunghwa’s oral statement of 28 November 2007 makes reference to [
confidential
], as a participant in the bilateral meetings, and not to the applicant. According to that statement, certain undertakings were participating in bilateral meetings with the undertakings attending the glass meetings, which allowed the latter undertakings to exchange sensitive commercial information concerning the undertakings which were not participating in those meetings, and to widen their discussions on prices and production to those undertakings. In that regard, that statement mentions three meetings between the undertakings that participated in the CPT cartel, held on 25 November 1996 and 23 August and 27 October 1999, at which it was agreed that non-participating undertakings would be contacted. However, it must be recalled that, as was stated in paragraph 62 above, the minutes of the meeting of 23 August 1999, mentioned in recitals 279 and 280 to the contested decision, concerned [
confidential
] and not the applicant. Likewise, according to recital 291 to that decision, the participants in the meeting of 27 October 1999 discussed in detail the updated status of undertakings, one of which was [
confidential
], whereas the applicant is not mentioned therein.
In the second place, in its subsequent oral statement of 16 March 2009, Chunghwa merely states that the applicant participated in bilateral and multilateral meetings. However, that statement does not specify whether, by ‘Toshiba’, reference is made only to the corporate headquarters and, therefore, to the applicant, or to other legal entities, such as [
confidential
]. Thus, the question whether the alleged involvement of ‘Toshiba’ in the ‘group’ meetings as well as in the bilateral meetings is a reference to the applicant is not clear cut.
In the third place, Samsung SDI’s oral statement of 13 February 2008, to which reference is made in recital 550 to the contested decision, describes a meeting of 24 November 1998 between Samsung SDI, LGE and [
confidential
], at which [
confidential
] asked ‘Tosummit/Toshiba’ to join the meeting, and the latter’s occasional participation in meetings of the same type. However, as the Commission acknowledged in recital 273 to the contested decision and as is apparent from that same statement, that entity referred to [
confidential
] and not to the applicant.
In addition, contrary to what the Commission states in recital 550 to the contested decision, based on Samsung SDI’s oral statement of 12 March 2009, [
confidential
] was close to [
confidential
], since it had concluded a technical support arrangement with [
confidential
] and not with the applicant.
Lastly, Samsung SDI’s claim in its oral statement of 20 June 2008 that the applicant was generally kept informed through [
confidential
] is not sufficiently substantiated. Moreover, having regard to its indirect nature, that item of evidence, which comes from an undertaking other than the one which allegedly informed the applicant, cannot be sufficient for finding that the applicant was aware of the existence of the CPT cartel.
It follows that, contrary to the Commission’s finding in recitals 548 and 552 to the contested decision, the oral statements at issue do not confirm the applicant’s participation in the CPT cartel and cannot therefore be interpreted as corroborating the contemporaneous evidence in that respect (see, to that effect, Joined Cases
T-67/00, T-68/00, T-71/00 and T-78/00
JFE Engineering and Others
v
Commission
[2004] ECR II-2501
, paragraph 219, and Case
T-38/02
Groupe Danone
v
Commission
[2005] ECR II-4407
, paragraph 285). Besides, the Commission admits in its written pleadings that those oral statements do not provide details on the bilateral meetings through which the applicant was allegedly kept informed by [
confidential
] of the agreements and concerted practices planned at the glass meetings.
In the light of all of the above, it must be concluded that it is apparent from the evidence on which the Commission relied in order to show that the applicant was aware of the existence or content of the CPT cartel before April 2002, taken both individually and as a whole, that it has not been established to the requisite legal standard that the applicant was aware or had actually been kept informed of the existence of the overall CPT cartel by its competitors and that it intended to contribute by its own conduct to the common objectives pursued by all the participants in that cartel. In those circumstances, it is not necessary, in any event, to examine the issue of the anticompetitive nature of the bilateral contacts and their possible link with the CPT cartel (see, to that effect, Case C‑287/11 P
Commission
v
Aalberts Industries and Others
[2013] ECR, paragraphs 62 and 63).
Consequently, the second and third parts of the first plea must be upheld and, accordingly, in the present case, the first plea in its entirety, without it being necessary to rule on the infringement of the rights of the defence and the principle of equal treatment relied on in support of the first and fourth parts of that plea.
Second plea, alleging an error vitiating the contested decision in that it finds that the applicant was liable for the infringement committed during the period from 12 April 2002 until 31 March 2003
This plea is divided into two parts, the first alleging lack of competence of the Commission to find that there was an infringement for the purposes of Article 101 TFEU, and the second alleging an error linked to the finding that the applicant participated in a single and continuous infringement.
In the first part of this plea, the applicant claims that it could not be held liable for the infringement because of its participation in the SML meetings, since the Commission has not shown, first, that agreements entered into or contemplated at those meetings had been implemented in the EEA and, secondly, that those agreements had an immediate, substantial and foreseeable effect on the EEA market through sales of transformed products. In addition, the applicant claims that there has been a breach of the rights of the defence in that it did not have the opportunity to comment on that last claim made by the Commission.
In the second part of this plea, the applicant maintains that the Commission erred in holding it liable for the single and continuous infringement because of its participation in four SML meetings held in Asia on 12 April, 27 May and 6 December 2002 and on 10 February 2003, involving Samsung SDI and the LPD group. In that regard, the applicant claims that the Commission was wrong to bring together activities resulting from four different groups of meetings — the SML meetings, the ASEAN meetings, the Asian glass meetings and the European glass meetings — in a single and continuous infringement, in the absence of evidence suggesting the existence of an overall plan pursuing a single economic objective and when those groups of meetings were not sufficiently complementary and connected. In the alternative, the applicant maintains that it cannot be held liable for the overall agreement, since it was not aware of its existence and did not intend to contribute to it through its participation in the SML meetings.
It is appropriate to begin by examining the second part of the present plea and, in particular, the question whether the Commission was fully entitled to find that the applicant had participated in a single and continuous infringement because of its participation in four SML meetings between 12 April 2002 and 10 February 2003. In that regard, it is apparent from recital 313 to the contested decision that, from April 2002, the applicant started to participate regularly in the meetings by itself and that evidence relating to those contacts shows that they were maintained in order to keep the applicant up to date with and involved in current developments and future plans regarding global capacity, sales and prices. According to recital 502 to that decision, at the first of those meetings, namely that of 12 April 2002, mentioned in recitals 374 and 375 to that decision, the participants agreed to cooperate continuously, to have a meeting every two months, to keep the prices at the same level or raise them in the third quarter of 2002, and agreed on a price guideline. Lastly, according to recitals 387, 388 and 503 to that decision, there is also evidence which shows that the applicant played an active role in the cartel.
It must be observed, however, that, apart from the evidence showing the applicant’s participation in the SML meetings and their anticompetitive object, which is not disputed, the Commission has not specified in the contested decision the evidence on which it relied in order to find that the applicant was aware of the unlawful conduct planned or put into effect by the participants in the CPT cartel and that it intended by its own conduct to contribute to the common objectives pursued by those participants.
In that regard and in any event, the analysis of the minutes of the SML meetings, as carried out by the Commission in recitals 374, 375, 377, 384 and 387 to the contested decision, does not allow the inference to be drawn that the applicant was aware of the existence of the CPT cartel overall and that it intended to contribute to the objectives pursued by the participants in that cartel. The Commission merely described the object and worldwide scope of those meetings and alleged that the participants in the first of those meetings were determined to continue their cooperation at worldwide level. However, even if it were established, such a circumstance does not permit the inference that awareness of the existence of the CPT cartel has been established, within the meaning of the case-law cited in paragraphs 52 and 53 above.
It follows that, without it being necessary to examine whether the SML meetings were part of a single and continuous infringement, it must be concluded that the Commission has failed to establish to the requisite legal standard that, by participating in the four SML meetings, the applicant intended by its own conduct to contribute to all the common objectives pursued by the undertakings participating in the CPT cartel and that it was aware of the unlawful conduct planned or put into effect by those participants in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk, within the meaning of the case-law cited in paragraphs 52 to 54 above. Nor can the awareness of that conduct be inferred, on the basis of an overall assessment of the evidence relied on in the contested decision, from the fact that the applicant had initially maintained bilateral contacts with some of the participants in the CPT cartel and then attended four SML meetings with some of them.
Therefore, the second part of the second plea must be upheld, without it being necessary to rule, at this stage, on the Commission’s competence to find that there was an infringement for the purposes of Article 101 TFEU, owing to the applicant’s participation in the SML meetings.
Fourth plea, alleging an error vitiating the contested decision in that it finds that the applicant was jointly and severally liable for MTPD’s participation in the infringement committed during the period from 1 April 2003 until 12 June 2006
This plea consists of three parts, the first alleging a failure to state reasons, the second alleging an error of assessment as regards the exercise of decisive influence by the applicant over the conduct of the joint venture, and the third alleging infringement of the rights of the defence in that the applicant did not have access to Panasonic’s observations submitted in response to the statement of objections and following the hearing.
It is appropriate first of all to examine the second part of this plea.
– The second part
The applicant observes that MEI had sole control of MTPD through its majority 64.5% shareholding, appointed most of the members of its Board of Directors, thus having control over all decisions adopted by the managing organs that required a simple majority, chose its President and ran its day-to-day operations. Consequently, the applicant had only a minority 35.5% shareholding but, conversely, it did not have any rights greater than those normally granted to minority shareholders. According to the applicant, in spite of the evidence attesting to that situation, and contrary to the decision of the Bundeskartellamt (the Germany Competition Authority) authorising the creation of MTPD as acquisition of sole control of the joint venture by MEI, the Commission wrongly considered that the rights set out in MTPD’s statute and in the agreement creating MTPD (Business Integration Agreement; ‘the BIA’) granted the applicant a right of veto over strategic measures, giving it joint control of the joint venture. In the applicant’s submission, those rights did not enable it to influence MTPD’s day-to-day activities or its conduct on the market, to control prices, marketing or any other aspect of its commercial policy and did not grant the applicant any management power.
The applicant maintains that, contrary to the findings of the contested decision, it therefore did not form an economic unit with MTPD and was not in a position to exercise decisive influence over its conduct on the market, and did not in fact exercise such influence. In that regard, the applicant asserts that it never exercised an alleged right of veto and that the Commission has not shown that the applicant was aware of MTPD’s participation in the CPT cartel during the period from 1 April 2003 until 12 June 2006.
The Commission contests those arguments.
In that regard, it should be noted that, in accordance with settled case-law, the conduct of a subsidiary can be imputed to its parent company, in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see judgment of 26 September 2013 in Case C‑172/12 P
EI du Pont de Nemours
v
Commission
, not published in the ECR, paragraph 41 and the case-law cited).
In such a situation, because the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (
EI du Pont de Nemours
v
Commission
, cited in paragraph 93 above, paragraph 42).
It should also be noted that, in order to be able to impute the conduct of a subsidiary to the parent company, the Commission cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also establish whether that influence was actually exercised (
EI du Pont de Nemours
v
Commission
, cited in paragraph 93 above, paragraph 44; see Case
T-541/08
Sasol and Others
v
Commission
[2014] ECR, paragraph 43; and Case T-543/08
RWE and RWE Dea
v
Commission
[2014] ECR, paragraph 101 and the case-law cited). It is, in principle, for the Commission to demonstrate such decisive influence on the basis of factual evidence (see Case T-314/01
Avebe
v
Commission
[2006] ECR II-3085
, paragraph 136 and the case-law cited).
It is generally the case that a parent company’s holding of a majority interest in the subsidiary’s share capital can enable it actually to exercise a decisive influence on its subsidiary and, in particular, on the subsidiary’s market conduct. It has accordingly been held that where the control actually exercised by a parent company over a subsidiary in which it has a 25.001% holding represents a minority interest, far short of a majority interest, it cannot be concluded that the parent company and its subsidiary belong to a single group, within which they form an economic unit (see, to that effect, Case
T-132/07
Fuji Electric
v
Commission
[2011] ECR II-4091
, paragraph 182 and the case-law cited).
None the less, a minority interest may enable a parent company actually to exercise a decisive influence on its subsidiary’s market conduct, if it is allied to rights which are greater than those normally granted to minority shareholders in order to protect their financial interests and which, when considered in the light of a set of consistent legal or economic indicia, are such as to show that a decisive influence is exercised over the subsidiary’s market conduct. Proof of the actual exercise of a decisive influence may therefore be adduced by the Commission by relying on a body of indicia, even if each of those indicia taken in isolation does not have sufficient probative value (
Fuji Electric
v
Commission
, cited in paragraph 96 above, paragraph 183).
Having regard to the fact that, under Article 263 TFEU, the Court must confine itself to a review of the legality of the contested decision on the basis of the reasons set out in that decision, the question whether a parent company actually exercises management power over its subsidiary must be assessed solely by reference to the evidence assembled by the Commission in the decision which attributes liability for the infringement to the parent company. The only relevant question is therefore whether the infringement is or is not proved in the light of that evidence (see
Fuji Electric
v
Commission
, cited in paragraph 96 above, paragraph 185 and the case-law cited).
Next, it is important to bear in mind that the Court of Justice has already ruled that the exercise of joint control, by two parent companies which are independent of each other, of their subsidiary does not, in principle, preclude a finding by the Commission of the existence of an economic unit comprising one of those parent companies and the subsidiary concerned, and that that applies even if the proportion of the subsidiary’s share capital owned by that parent company is smaller than that owned by the other parent company (see, to that effect, Case
C-480/09 P
AceaElectrabel Produzione
v
Commission
[2010] ECR I-13355
, paragraph 64).
The actual exercise of management power by the parent company or parent companies over their subsidiary may be capable of being inferred directly from the implementation of the applicable statutory provisions or from an agreement between the parent companies, entered into under those statutory provisions, in relation to the management of their common subsidiary. The extent of the parent company’s involvement in the management of its subsidiary may also be proved by the presence, in leading positions of the subsidiary, of many individuals who occupy managerial posts within the parent company. Such an accumulation of posts necessarily places the parent company in a position to have a decisive influence on its subsidiary’s market conduct since it enables members of the parent company’s board to ensure, while carrying out their managerial functions within the subsidiary, that the subsidiary’s course of conduct on the market is consistent with the line laid down at management level by the parent company. That objective can be attained even though member(s) of the parent company who take on managerial functions within the subsidiary do not have authority as agents of the parent company. Lastly, the involvement of the parent company or companies in the management of the subsidiary may follow from the business relationship which they have with each other. Accordingly, where a parent company is also the supplier or customer of its subsidiary, it has a very specific interest in managing the production or distribution activities of the subsidiary, in order to take full advantage of the added value created by the vertical integration thus achieved (see
Fuji Electric
v
Commission
, cited in paragraph 96 above, paragraph 184 and the case-law cited).
Lastly, where it follows from those provisions that the parent companies were empowered only jointly to act on behalf of the joint venture and to bind it towards third parties and that they were jointly responsible for the policy followed by that joint venture, the actual exercise of decisive influence over the commercial conduct of the joint venture may be presumed, like the prospective control carried out in merger control (see, to that effect,
Sasol and Others
v
Commission
, cited in paragraph 95 above, paragraph 49).
However, given that the examination concerning the actual exercise of decisive influence is retrospective and may therefore be based on concrete evidence, both the Commission and the interested parties may adduce proof that the commercial decisions of the joint venture were taken by procedures other than those apparent from the mere abstract examination of the agreements regarding the operation of the joint venture (see, to that effect,
Fuji Electric
v
Commission
, cited in paragraph 96 above, paragraphs 194 and 195, and Joined Cases
T-141/07, T-142/07, T-145/07 and T-146/07
General Technic-Otis and Others
v
Commission
[2011] ECR II-4977
, paragraphs 115 to 117).
The merits of the second part of the fourth plea must be analysed in the light of those factors.
In the present case, in recitals 931 to 933 and 956 to the contested decision, the Commission first of all listed the objective circumstances proving that MTPD’s two parent companies were able to exercise decisive influence over MTPD’s conduct on the market, by actively playing a supervisory and management role. Then, in recitals 934 to 936 to the contested decision, the Commission mentioned examples of cooperation between MTPD’s two parent companies, which show, first, the effective exercise by them of decisive influence over MTPD’s conduct on the market, and, secondly, the fact that their joint approval was needed for important decisions concerning it.
As a preliminary point, it should be observed that, in view of the fact that the first and second pleas of the action have been upheld, the Commission cannot succeed in claiming that the applicant was aware of the existence of the CPT cartel, having regard to its direct involvement before the creation of MTPD, and, consequently, of MTPD’s subsequent participation. It is important to note that, as regards the question of the imputability of MTPD’s conduct to the applicant, the finding that the applicant was aware of MTPD’s participation in that cartel is, in any event, irrelevant. In order to impute to a parent company the acts undertaken by its subsidiary, it is not necessary to prove that that parent company was directly involved in, or was aware of, the offending conduct. In this regard, it should be recalled that it is not because of a relationship between the parent company and its subsidiary in instigating the infringement or,
a fortiori
, because the parent company is involved in the infringement, but because they form part of the same undertaking for the purposes of Article 101 TFEU that the Commission is able to address the decision imposing fines to the parent company (see judgment of 2 February 2012 in Case T‑76/08
EI du Pont de Nemours and Others
v
Commission
, not published in the ECR, paragraph 76 and the case-law cited).
As regards the shareholder and decision-making structure of MTPD’s statutory organs, first, it must be observed that the Commission was fully entitled to find, in recitals 932 and 956 to the contested decision, that, in accordance with the provisions of the BIA, both parent companies had veto rights with respect to matters of strategic importance which were essential for the pursuit of MTPD’s activities, which proves the exercise of joint control of MTPD.
In that regard, the applicant cannot argue that all the areas covered by the decisions listed in Article 21.2 of the BIA, the adoption of which was conditional on the approval of both parent companies, and in Article 23.2 of the BIA, requiring the consent of at least one Director appointed by each of the parent companies, fall within the normal rights accorded to minority shareholders in order to protect their financial interests as investors in the joint venture, within the meaning of paragraph 66 of the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (
OJ 2008 C 95, p. 1
) (‘the Consolidated Jurisdictional Notice’). It is apparent from paragraph 67 of that notice, whose relevance to the present case is not disputed by the parties, that veto rights which confer joint control typically include decisions on issues such as the budget, the business plan, major investments or the appointment of senior management. In addition, it is apparent from paragraphs 68 to 70 of the Consolidated Jurisdictional Notice that a veto right over the development plan for the business may be sufficient, on its own, to confer on the minority shareholder joint control of the joint venture, even in the absence of any other veto right, whereas rights concerning decisions on the appointment and dismissal of the senior management and the approval of the budget are considered to be very important. Lastly, according to paragraph 71 of that notice, in the case of a veto right on investments of the joint venture, its importance depends on the level of investments subject to the approval of the parent companies and on the extent to which investments constitute an essential feature of the market in which the joint venture is active.
Article 23.2 of the BIA conferred on Toshiba veto rights over both material investments (point 12 of that provision) and over the formation, capital participation in or acquisition of a company or other business involving an outlay of one billion yen or more (point 8 of that provision), or over the provision of loans to subsidiary companies and other entities of one billion yen or more (point 9 of that provision). As the Commission submits, those amounts do not seem excessive in the light of the applicant’s initial investment into MTPD, amounting to 26.5 billion yen, with the result that a veto right in this respect could constitute evidence that the applicant was in a position to exercise decisive influence over MTPD’s conduct on the market.
Moreover, as the Commission observed in recitals 933 and 953 to the contested decision, in accordance with Article 27.1 of the BIA, MEI and the applicant adopted a prospectus, valid until 31 March 2008, containing information regarding sales, production, development, personnel, investment, financial plans and capital recovery concerning MTPD, which formed the basis for the business plan for MTPD. That provision provided that, during a start-up period of two years, the end of which was fixed at 31 March 2005, the initial business plan for MTPD would be adopted by the parent companies and that, in accordance with Article 27.2 of the BIA, after that, the annual business plans would be drawn up by MTPD following consultation with its parent companies. By a memorandum of understanding of 7 December 2004, modifying Article 27.2 of the BIA, the parent companies prolonged the start-up period until 31 March 2007, with the result that they had to agree on the business plan for MTPD and its subsequent revisions throughout the existence of MTPD.
It follows that the Commission was fully entitled to consider that the BIA and the business plan, which contained MTPD’s main operational and financial objectives and its essential strategic planning, had been decided by its parent companies. Even if, as it claims in its written pleadings, the applicant was not concretely involved in the drawing up of those plans, their approval by the applicant and its prior consultation were still necessary under Article 27.2 of the BIA. Moreover, the applicant does not deny having approved all of the annual business plans for MTPD.
Therefore, the Court finds, without needing to consider the reasons for prolonging the start-up period referred to by the applicant, that that prolongation had the effect of conferring on the applicant a veto right over MTPD’s business plan, which also covered its budget, for the entire duration of its existence. Thus, contrary to the applicant’s assertions, the veto right over that business plan was not rendered redundant. Moreover, the holding of such a right is in itself sufficient for it to be considered, for the purpose of paragraph 70 of the Consolidated Jurisdictional Notice, that it actually exercised decisive influence over the joint venture.
In the light of the above, as the Commission found, some of the rights listed in Article 23.2 of the BIA and in Article 27 thereof fall within areas which enabled the applicant to exercise decisive influence over MTPD’s commercial strategy, together with Panasonic. Consequently, as is apparent from recital 956 to the contested decision, in the present case the question of whether the applicant actually ever made use of those rights is not relevant to the assessment of the exercise of decisive influence by the applicant over MTPD’s conduct on the market. For the purposes of taking decisions falling within the areas referred to, in particular, in Article 23.2 of the BIA, the two parent companies had to agree beforehand. Therefore, the holding of the veto rights at issue necessarily had an — even indirect — impact on the management of MTPD.
Moreover, to those veto rights were added the rights listed in Article 21.2 of the BIA, namely the rights concerning the issues requiring special resolutions of the assembly of shareholders under commercial law and the issues relating to the issuing of new shares and also the distribution of dividends. Those rights constituted an additional indication on which the Commission could rely in finding that the applicant was in a position to exercise decisive influence over MTPD’s conduct.
Secondly, it should be noted that, as is apparent from the contested decision, other circumstances referred to by the Commission in the contested decision permit the inference that the applicant was in a position to exercise decisive influence over MTPD’s conduct on the market.
In that regard, it should be observed first of all that, as the Commission stated in recital 975 to the contested decision, one of the 4 directors appointed by the applicant out of the 10 who formed MTPD’s Board of Directors, pursuant to Article 22.2 of the BIA, simultaneously occupied a management position within the applicant, which is not disputed by the applicant. That circumstance was evidence on which the Commission could rely in order to find, in conjunction with other pieces of evidence, that the applicant was in a position to exercise decisive influence over MTPD’s conduct.
In addition, in accordance with Article 22.3 of the BIA, the applicant was to appoint one of the two directors entitled to represent the joint venture, who was also the Vice-President of the joint venture. As the Commission was entitled to find in recitals 940 and 941 to the contested decision, the two Vice-Presidents of MTPD who were appointed during its existence had previously acted at a high management level within the applicant and subsequently returned to the applicant. It follows that, even if they had not retained contractual links with the applicant and were no longer under its direct authority, they necessarily had thorough knowledge of its policy and its commercial objectives and were in a position to cause MTPD’s policy and the interests of the applicant to converge. Moreover, the applicant’s claim that the role of the Vice-President of MTPD was symbolic cannot call that finding into question.
Moreover, as the Commission found in recital 957 to the contested decision, the fact that MTPD’s Board of Directors never objected to the decisions of its President, appointed by Panasonic, cannot be interpreted as indicating that the applicant did not exercise decisive influence over MTPD’s conduct on the market, but rather as an approval of the applicant’s commercial policy.
In those circumstances, the fact that, first, the President of MTPD, appointed by Panasonic, was responsible for the day-to-day management of MTPD and that he approved the majority of the important decisions relating to its business and that, secondly, Panasonic was responsible for the operation and management of MTPD, pursuant to Article 20.2 of the BIA, cannot lead to the conclusion that Panasonic alone exercised decisive influence over MTPD. As stated in recital 956 to the contested decision, according to that same provision, read in conjunction with Article 20.3 of the BIA, the cooperation of the applicant was necessary for the management of the joint venture.
In addition, as found by the Commission in recitals 977 and 978 to the contested decision, the clause contained in Article 28.3 of the BIA, providing that MTPD would be the preferred supplier of the parent companies for the production of television sets and that, at the same time, those companies would be the preferred suppliers of CRT components for MTPD, constitutes an additional indication of the applicant’s involvement in MTPD’s management and reveals the existence of close and lasting economic ties between them, which must be taken into consideration in assessing the existence of a decisive influence (see, to that effect,
Fuji Electric
v
Commission
, cited in paragraph 96 above, paragraph 184). That finding cannot be called into question by the fact that the applicant also used other CPT suppliers. Moreover, the applicant cannot validly claim that it was not involved in the marketing of the finished product by MTPD, since, as the Commission explained, without being validly challenged on this point, after the transfer of its CRT business to MTPD, MTPD had used [
confidential
], owned by the applicant (see paragraph 3 above), as a sales channel in the European Union. Furthermore, the applicant has not effectively challenged the fact noted by the Commission in recital 977 to the contested decision that CPTs sold in this way were in part sourced from MTPD factories and in part subcontracted to the applicant’s factory in Himeji (Japan), which had not been transferred to MTPD.
Thirdly, it is apparent from the evidence on which the Commission relied in the contested decision that the applicant was involved in MTPD’s management, inter alia by giving its consent to the closure of two of its subsidiaries in Europe and the United States in November 2005. In that regard, it must be noted that the applicant does not dispute that it gave its consent to the closure of those factories, but merely claims that that measure was of an exceptional nature and did not fall within MTPD’s commercial policy. Thus, in the applicant’s view, its involvement in the taking of such a decision does not show a lasting influence on its part over MTPD’s conduct. However, contrary to the applicant’s arguments, the fact, noted in recitals 936 and 964 to the contested decision, that, without its consent, that closure could not happen, which follows, moreover, from Article 23.2 of the BIA, constitutes an indication that it actually exercised decisive influence over the joint venture’s commercial policy. According to that provision, such a decision could not have been taken by the joint venture without one of the directors appointed by the applicant, within MTPD’s Board of Directors, having given his approval (see, to that effect, judgment of 2 February 2012 in Case T‑77/08
Dow Chemical
v
Commission
, not published in the ECR, paragraph 86).
As for the applicant’s arguments by which it denies that it sent economic instructions to MTPD and that it was involved in its day-to-day management, it should be borne in mind, as the Commission stated in recital 958 to the contested decision and as is apparent from case-law, that the possibility of exercising decisive influence over the commercial policy of a joint venture does not require proof of an interference in the day-to-day management of that joint venture’s operation, nor of influence over the joint venture’s commercial policy in the strict sense, such as its distribution or pricing strategy, but rather influence over the general strategy which defines the orientation of the undertaking. In particular, a parent company may exercise decisive influence over its subsidiaries even when it does not make use of any actual rights of co-determination and refrains from giving any specific instructions or guidelines on individual elements of commercial policy. Such instructions are merely a particularly clear indication of the existence of the parent company’s decisive influence over its subsidiary’s commercial policy. Autonomy of the subsidiary cannot necessarily be inferred from their absence. A single commercial policy within a group may also be inferred indirectly from the totality of the economic and legal links between the parent company and its subsidiaries. For example, the parent company’s influence over its subsidiaries as regards corporate strategy, operational policy, business plans, investment, capacity, provision of finance, human resources and legal matters may have indirect effects on the market conduct of the subsidiaries and of the whole group. Ultimately, the decisive factor is whether the parent company exercises an influence that suffices to direct the conduct of its subsidiary to such an extent that the two must be regarded as one economic unit (see, to that effect, Case
C-97/08 P
Akzo Nobel and Others
v
Commission
[2009] ECR I-8237
, paragraph 73, and
Dow Chemical
v
Commission
, cited in paragraph 120 above, paragraph 77).
Consequently, it follows from all the foregoing that, having regard to all the economic, legal and organisational links between the applicant and MTPD, the Commission did not err in finding that the applicant, as MTPD’s parent company, had exercised, together with Panasonic, decisive influence over MTPD’s conduct on the CPT market. Therefore, the Commission did not err in finding that the applicant and MTPD formed part of the same undertaking for the purposes of Article 101 TFEU, and in thereby holding the applicant and Panasonic jointly and severally liable for MTPD’s conduct during the period from 1 April 2003 until 12 June 2006.
It follows that the second part of the fourth plea must be rejected.
– The first part
The applicant claims that the Commission did not indicate what rights were normally granted to minority shareholders or specify the items listed in Article 23.2 of the BIA that go beyond that threshold.
It must be noted, however, that, since the Court has been able to rule on the substance of the second part of the fourth plea and since the applicant has been able to defend itself, contrary to what it claims, the contested decision contains sufficient reasoning on that point. Therefore, the complaint put forward in support of the first part of this plea must be dismissed as unfounded.
– The third part
The applicant alleges breach of its rights of defence in that, despite requests to that effect, it did not have access to the observations submitted by Panasonic in response to the statement of objections and following the hearing regarding the business plan for MTPD. The applicant asserts, in that regard, that, although its requests for access had been rejected on the ground that the Commission had no intention of relying on those documents against the applicant in the contested decision, the Commission unreservedly relied on them in order to establish its finding of a joint decisive influence exercised over MTPD’s conduct.
In that regard, it should be recalled that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be complied with even if the proceedings in question are administrative proceedings (see Case
C-194/99 P
Thyssen Stahl
v
Commission
[2003] ECR I-10821
, paragraph 30 and the case-law cited).
Respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement (see Case
C-407/04 P
Dalmine
v
Commission
[2007] ECR I-829
, paragraph 44 and the case-law cited).
Moreover, it is settled case-law that the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the proof necessary for demonstrating the merits of that objection could be adduced only by reference to that document. If there were other documentary evidence of which the parties were aware during the administrative procedure that specifically supported the Commission’s findings, the fact that an incriminating document not communicated to the person concerned was inadmissible as evidence would not affect the validity of the objections upheld in the contested decision. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence (see Case
C-407/08 P
Knauf Gips
v
Commission
[2010] ECR I-6375
, paragraph 13 and the case-law cited).
In the present case, in recital 933 to the contested decision, the Commission noted that the business plan for MTPD had been decided by the parent companies and mentioned, in footnote 1821, that Panasonic had confirmed that finding in its response to the statement of objections. In addition, in recital 934 to that decision, the Commission observed that, in its post hearing submission, Panasonic confirmed that the business plan for MTPD had been determined jointly by its parent companies, and referred in that regard to Panasonic’s response to the statement of objections. Lastly, in recital 948 to that decision, the Commission repeated that finding by referring to the documents distributed by Panasonic during the hearing, which show that, in 2004, MTPD had specifically requested the applicant’s approval to continue its financial losses.
It should be borne in mind that, as the Court has held in the context of the second part of this plea (paragraph 109 above), even if the applicant was not concretely involved in the drawing up of MTPD’s business plans, their approval by the applicant and its prior consultation were necessary under the BIA. First, the applicant’s liability as one of MTPD’s parent companies has been sufficiently established without recourse to the documents produced by Panasonic after the oral hearing, to which the applicant claims not to have had access (see paragraphs 104 to 123 above). Secondly, the applicant does not claim that those documents contain exculpatory evidence on which it could have relied. In those circumstances, the failure to communicate those documents does not constitute a breach of its rights of defence, within the meaning of the case-law cited in paragraph 129 above.
Therefore, the third part and the fourth plea in its entirety must be rejected.
Third plea, alleging an error vitiating the contested decision in that it finds that the applicant was liable for the infringement committed during the period from 1 April 2003 until 12 June 2006
The applicant asserts that the contested decision is vitiated by an error in that it fails to distinguish between the applicant’s liability for its alleged direct participation in the infringement and its derivative liability for MTPD’s alleged participation in the infringement. According to the applicant, the Commission ought to have found that any participation in the infringement by the applicant ceased on 31 March 2003 when it exited the CRT market by transferring all of that business to MTPD. The applicant claims that any liability during the period from 1 April 2003 until 12 June 2006 can therefore arise solely from MTPD’s participation in the infringement and that the operative part of the decision should have clearly said so.
The Commission does not accept those arguments.
As a preliminary point, it must be recalled that, in Article 1(2)(d) of the operative part of the contested decision, the Commission considered that the applicant had participated in the cartel from 16 May 2000 until 12 June 2006.
In that regard, it is necessary to observe that, as was concluded in connection with the fourth plea, the Commission was fully entitled to impute the unlawful conduct of MTPD from 1 April 2003 until 12 June 2006 to the applicant and to Panasonic, considering that they formed an economic unit. It is apparent from settled case-law that, even if the parent company does not participate directly in the infringement, it exercises, in such a case, a decisive influence over the subsidiaries which have participated in it. It follows that, in that context, the liability of the parent company cannot be regarded as strict liability. In such a situation, the parent company is penalised for an infringement which it is deemed to have committed itself (see Case T‑372/10
Bolloré
v
Commission
[2012] ECR, paragraph 52 and the case-law cited).
In any event, as is apparent from the grounds of the contested decision and, in particular, from those set out, inter alia, in recitals 126, 303, 923 to 927, 993 to 996, 1000 and 1088 thereto, the Commission distinguished two periods for the purposes of attributing liability to the legal entities forming part of the applicant’s group or being under its control (see paragraphs 3 and 4 above), namely the period preceding the transfer of its CRT business to the joint venture, for which it was held liable on account of its direct participation in the cartel, and the period following that transfer, for which it was held liable owing to the participation of MTPD, over whose conduct it had exercised, according to the Commission, decisive influence. Accordingly, in recital 1183 to the contested decision (Table 12(b), points 9 and 10), the Commission concluded that it was appropriate to impose on the applicant a fine, for the period prior to the creation of MTPD, amounting to EUR 28048000, and a fine, for the joint venture period, jointly and severally with Panasonic and MTPD, amounting to EUR 86738000. Those fines are reflected in Article 2(2)(g) and (h) of the contested decision.
It must be observed that it follows from the foregoing, first, that the applicant was considered to have committed the infringement for the entire period referred to in Article 1(2)(d) of the operative part of the contested decision and, second, that the grounds of that decision constitute the essential basis for its operative part.
It follows that the applicant cannot validly claim that the contested decision is vitiated by an error in that it fails to distinguish between the applicant’s liability for its alleged direct participation in the infringement and its derivative liability for MTPD’s alleged participation in that infringement, and that the complaint that the Commission ought to have found that the applicant ceased any participation in the infringement on 31 March 2003 must be rejected.
The third plea must therefore be rejected.
Fifth plea, raised in the alternative, alleging an error vitiating the contested decision in that it finds that MTPD was liable for having participated in the infringement committed during the period from 1 April 2003 until 12 June 2006
The fifth plea consists of two parts.
In the first part of this plea, the applicant maintains that its liability in respect of the period from 1 April 2003 until 12 June 2006 cannot be greater than MTPD’s, since it is purely derivative and secondary, and claims that it should have the benefit of any annulment or reduction of the amount of the fine imposed on MTPD that might be granted in the action brought before the Court by Panasonic and MTPD against the contested decision, registered as Case T‑82/13, notably on the ground that MTPD did not participate in the CPT cartel found in that decision.
In the second part of this plea, the applicant asserts that MTPD was incorrectly held liable for having participated in the CPT cartel by virtue of its participation in the so-called SML meetings, ASEAN meetings and bilateral meetings. The applicant submits that the contested decision must be annulled in so far as it declares MTPD liable for the infringement during that period.
The Commission disputes those arguments.
– The first part
It should be observed first of all that, as the first and second pleas of the action have been upheld, the contested decision must be annulled in so far as it finds that the applicant participated directly in the CPT cartel before the creation of MTPD. By contrast, it follows from the examination of the fourth plea that the Commission was fully entitled to impute the unlawful conduct of MTPD to the applicant. It follows that the applicant’s liability can arise only from its capacity as parent company that exercised, jointly with Panasonic, decisive influence over MTPD’s conduct on the market (see, to that effect, Case
T-382/06
Tomkins
v
Commission
[2011] ECR II-1157
, paragraph 38).
In that regard, it should be observed that, in the circumstances of the present case, the joint and several liability of the applicant and of MTPD for payment of the fine imposed on them, jointly and severally with Panasonic, puts them in a special position, with any annulment or alteration of the contested decision having consequences for the applicant to which the unlawful conduct of MTPD was imputed. If there had been no unlawful conduct on the part of MTPD, there could not have been any imputation to the parent companies of that conduct or any imposition of a fine, jointly and severally, on the parent companies and their joint venture (see, to that effect,
Tomkins
v
Commission
, cited in paragraph 145 above, paragraph 45).
Next, it should be noted that, by judgment delivered today in Case T‑82/13
Panasonic and MT Picture Display
v
Commission
(ECR, Extracts), the Court, first, dismissed the action brought by Panasonic and MTPD in so far as it sought the partial annulment of the contested decision and, second, granted in part their application to have that decision altered, by reducing the amount of the fines imposed jointly and severally on MTPD and on its parents companies for MTPD’s participation in the CPT cartel from 1 April 2003 until 12 June 2006.
It follows that, in so far as the applicant seeks the benefit of any annulment or reduction of the fine imposed on MTPD that may be granted in the case which gave rise to the judgment in
Panasonic and MT Picture Display
v
Commission
, cited in paragraph 147 above, its request can be granted only so far as concerns the reduction of the amount of the fine imposed on MTPD, jointly and severally with Panasonic and itself, in the course of the exercise by the Court of its unlimited jurisdiction and the examination of the claim seeking alteration.
None the less, it is necessary to examine whether, in the light of the arguments raised by the applicant in the context of the second part of this plea, the lawfulness of the contested decision must be called into question in so far as it finds that MTPD participated in the CPT cartel.
– The second part
First, the applicant contends that the evidence on which the Commission relied in the contested decision does not support the finding that MTPD infringed Article 101 TFEU by participating in the SML and ASEAN meetings, since those meetings did not concern the European market, but CPTs for sale to Asian customers, and that no arrangements on price, production or market shares were made at those meetings in relation to the EEA. The applicant submits that, consequently, no arrangement implemented in the EEA or with an immediate, foreseeable and substantial effect in the EEA was reached at those meetings and that the Commission erred in considering that it had jurisdiction to find an infringement.
Secondly, the applicant claims that the contested decision is vitiated by an error in that it finds that the SML and ASEAN meetings which MTPD attended were part of a single and continuous infringement and that that decision contains no convincing evidence showing that MTPD was aware of the agreements entered into in Europe.
Thirdly, the applicant claims that it was not MTPD, but the successor of [
confidential
], MT Picture Display Indonesia, in whose capital MTPD owned a 53% stake, which had participated in the ASEAN meetings, and that the contested decision should be annulled in so far as it does not state the reasons why MTPD should be held liable for MT Picture Display Indonesia.
It is necessary at the outset to reject the applicant’s argument that MTPD did not participate in the ASEAN meetings. As the Commission states in the defence, without being challenged on that point by the applicant in the reply, it is apparent from the examination of the minutes of those meetings and, in particular, those of 16 February, 16 March, 18 May, 18 June and 5 November 2004 and 6 December 2005, that, first, in addition to representatives of other MTPD subsidiaries, such as MTPD Indonesia, MTPD employees indeed participated in those meetings and that, second, in all the ASEAN meetings which took place during that period and which were identified by the Commission in the contested decision, MTPD was invariably referred to.
As regards the jurisdiction of the Commission to find the infringement, it should be recalled that, when undertakings established outside the EEA, but which produce goods that are sold within the EEA to third parties, concert on the prices they charge to their customers in the EEA and put that concertation into effect by selling at prices which are actually coordinated, they are taking part in concertation which has the object and effect of restricting competition within the internal market within the meaning of Article 101 TFEU and which the Commission has territorial jurisdiction to proceed against (see Case T‑91/11
InnoLux
v
Commission
[2014] ECR, paragraph 58 and the case-law cited).
It is also apparent from the case-law that an infringement of Article 101 TFEU consists of two elements, the formation of the cartel and its implementation. If the applicability of prohibitions laid down under competition law were to depend on the place where the cartel was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions. What counts is therefore the place where it is implemented. Moreover, in determining whether that place is in the EEA, it is immaterial whether or not the participants in the cartel had recourse to subsidiaries, agents, sub-agents, or branches within the EEA in order to make their contacts with purchasers established there (see
InnoLux
v
Commission
, cited in paragraph 154 above, paragraph 59 and the case-law cited).
Where the condition relating to implementation is satisfied, the Commission’s jurisdiction to apply the EU competition rules to such conduct is covered by the territoriality principle as universally recognised in public international law (Joined Cases
89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85
Ahlström Osakeyhtiö and Others
v
Commission
[1988] ECR 5193
, paragraph 18, and
InnoLux
v
Commission
, cited in paragraph 154 above, paragraph 60).
Moreover, the criterion as to implementation of the cartel as a factor linking the latter to EU territory is satisfied by mere sale within the Union of the cartelised product, irrespective of the location of the sources of supply and the production plant (see
InnoLux
v
Commission
, cited in paragraph 154 above, paragraph 63 and the case-law cited).
It is by applying those principles that the Commission considered, rightly, that it had jurisdiction in the present case, for the purposes of applying Article 101 TFEU and Article 53 of the EEA Agreement. It is apparent from recitals 585 to 599 to the contested decision that, even though some of the undertakings concerned were established, at the time of the infringement, outside the EU territory and had no subsidiaries situated within that territory, the collusive practices were implemented in that territory and had an immediate, foreseeable and substantial effect in the European Union. In that regard, the Commission found that, notwithstanding the fact that the cartel arrangements had been formed outside the EEA and that their main objective was not Europe, the participants in those arrangements had nevertheless had an impact on customers in the EEA through their CPT sales in that territory or measures influencing those sales.
In particular, first, the Commission considered, correctly, that the infringement had immediately affected the EEA, since the cartel arrangements had directly influenced the setting of prices and the setting of volumes of CRTs delivered to the EEA either directly or through transformed products, and that both CDTs and CPTs had been sourced and shipped directly from the production facilities of the cartel members in other parts of the world to the EEA. Secondly, the Commission was entitled to take the view that the effect of the infringement on the EEA was foreseeable as the cartelised prices and volumes had had an evident impact on the conditions of competition both between the CRT producers and at the downstream level. Moreover, as the Commission found, the participants in the CPT cartel not only colluded on prices, but also implemented coordinated output limitation that thus limited available supplies to the EEA from factories in the EEA and from outside the EEA. In addition, as found by the Commission, the cartel at issue had immediate and foreseeable effects on the EEA also in the case of vertically integrated suppliers such as Philips, LGE, Panasonic and the applicant, including through the deliveries of their respective joint ventures to the parent companies. Thirdly, the Commission rightly found that the effect of the CPT cartel had been substantial due to the seriousness of the infringement, its long duration and the role of the parties to that cartel on the European market for CRTs and for transformed products.
It follows that the applicant’s argument that the SML and ASEAN meetings focused on the Asian market and that the agreements entered into at those meetings did not concern the EEA has no factual basis, since the participants in those meetings made CPT sales — both direct and through transformed products — in the EEA to independent third parties.
In that regard, when a vertically integrated undertaking incorporates the goods in respect of which the infringement was committed into the finished products in its production units situated outside the EEA, the sale by that undertaking of those finished products in the EEA to independent third parties is liable to affect competition on the market for those products and, therefore, such an infringement may be considered to have had repercussions in the EEA, even if the market for the finished products in question constitutes a separate market from that concerned by the infringement.
As regards the finding that the SML and ASEAN meetings formed part of the single and continuous infringement linked to CPTs, it should be observed that, according to the Commission, even though those meetings focused on sales in Asia, the discussions in those meetings were not detached from events occurring in other regions and, in particular, in Europe, but often covered the whole world. Referring to the reasons set out in recitals 478 to 490, 496, 499, 517, 518 and 521 to 523 to the contested decision, the Commission thus considered, correctly, that those meetings were interconnected with the European glass meetings in many ways and that it would be artificial to split them from the other CPT cartel contacts, since they were an integral part of a single and continuous infringement comprising collusive contacts both in Europe and in Asia.
Accordingly, the Commission noted, first, that the three sets of meetings organised in Asia — in this case the glass, SML and ASEAN meetings — and the meetings held in Europe concerned the same type of restrictions, namely price fixing and sales planning, which involved an exchange of sensitive information. Secondly, the ranges of products concerned, namely CPTs of all sizes, were similar in the meetings, when looked at together. Thirdly, there was an overlap regarding the geographic scope of the discussions in various meetings, since the ASEAN and SML meetings had a worldwide scope, so that they included the EEA or contained references to Europe. In the same way, the Commission observed that the European glass meetings contained references to Asia. Fourthly, the SML and ASEAN meetings, which were a continuation of the Asian glass meetings, were held during the same period as the European glass meetings, which took place from 1999 to 2005. Fifthly, the different categories of meetings organised — namely the European glass meetings, the Asian glass meetings and the SML and ASEAN meetings — involved largely the same participants. Sixthly, the parties to the CPT cartel sought to maintain a reasonable price gap between identical products marketed in the EEA and in Asia and to increase prices in Europe. Consequently, the Commission was fully entitled to find that the scope of the CPT cartel covered the EEA and that that cartel had been implemented in the EEA, taking account of direct EEA sales and direct EEA sales through transformed CPT products.
To reach those conclusions, as is apparent from the contested decision, the Commission examined the context in which the three sets of meetings in Asia — namely the Asian glass, SML and ASEAN meetings — had taken place and their minutes in order to conclude, rightly, that they had complementarity links with the European glass meetings and were therefore interconnected. In that regard, it is apparent from recitals 287 and 288 to that decision that the first European multilateral meeting, of 2 October 1999, in Glasgow took place in response to calls issued by Samsung SDI at a multilateral meeting, held on 21 September 1999 in Taiwan, between Chunghwa, Samsung SDI, LGE, [
confidential
] and Philips, seeking to strengthen cooperation with the European market and to lead the undertakings participating in the cartel to organise regular meetings in order to exchange information on the market and fix prices. Concerns had been expressed regarding the level of the prices practised in Europe for 14-inch CPTs, considered to be too low in relation to the level of the Asian prices. At a subsequent meeting, held on 27 October 1999 in Thailand and mentioned in recitals 251 and 290 to the contested decision, the Asian undertakings welcomed the price-up trend in the European and American markets thanks to a reduction in production capacity by CPT manufacturers in Asia.
Moreover, it is apparent from the minutes of the Asian meetings that their participants compared the situation of the markets in Europe and that of the markets in Asia and regularly agreed to align their prices and their capacities. According to recital 486 to the contested decision, the participants in the Asian meetings agreed on capacity reductions which would facilitate the price increase efforts of the cartel members in the EEA and set worldwide target market shares and supply quotas. In addition, the prices practised in one region were used as references to agree on pricing for another region. Thus, there was a correlation between the prices practised in Asia and in Europe.
It follows that, contrary to the applicant’s contentions, the production level and the prices in Asia had an impact on the European prices. Moreover, as was observed in the contested decision, several of the Asian participants in the CPT cartel had production lines in Europe during most of the period when the competitors had various meetings with each other. In addition, it is apparent from the contested decision that certain European subsidiaries informed their Asian headquarters about the market situation and agreements concluded within the framework of the CPT cartel in Europe and vice versa, a fact which the applicant does not dispute.
Moreover, it is apparent from recitals 413 to 415 to the contested decision that, during the last phase of the CPT cartel, from 2004 to November 2006, apart from the SML and ASEAN meetings, which were the main multilateral
fora
, several ad hoc contacts relating to global sales and production plans took place, inter alia in Europe, involving MTPD and participants in the European glass meetings, such as Samsung SDI, the LPD group and Thomson. In that regard, footnote 1074 mentions bilateral information exchange meetings which took place between the LPD group and MTPD on 6 December 2004 as well as on 21 February and 8 July 2005. According to that same footnote, MTPD included documents in its reply to the Commission’s request for information, from which it is apparent that information originating from its competitors, relating to CRT manufacturers’ production capacity and dated November 2006, as well as worldwide data, planning on sales, supply and production and demand forecasts, relating to CRT televisions and dated April 2005, had been submitted to MTPD, a fact which the applicant does not dispute.
In those circumstances, the applicant cannot validly claim that the contested decision contains no convincing evidence that MTPD was aware of the existence of the CPT cartel. Lastly, the applicant’s argument that, as the Commission recognised in the contested decision, there was no joint central organisation linking the European and Asian glass meetings with the SML and ASEAN meetings is irrelevant. It follows from the foregoing considerations set out in the contested decision that those meetings were complementary in nature and part of an overall plan, with the result that the Commission could rightly classify them as a single and continuous infringement.
In addition, contrary to the applicant’s assertions, and as the Commission submits and is apparent from their minutes, some of the ASEAN meetings attended by MTPD — including those of 16 February, 16 March and 5 November 2004 — included, apart from references to a price agreement covering Europe, with respect to specific customers and the implementation of which was meticulously monitored, discussions on future supply and demand, production lines and capacities and concerned the global market, including the EEA. Therefore, such exchanges of commercially sensitive information between competitors, such as those which took place at the meetings of 18 June 2004 and 6 December 2005, constitute concerted practices which may enable the restriction of output and the allocation of market shares. In that regard, the lack of formal agreements on those last two aspects of the infringement has no bearing on the lawfulness of the contested decision, in accordance with the case-law according to which it is sufficient for the exchange of information to reduce or remove the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted (see, to that effect, Case
C-8/08
T-Mobile Netherlands and Others
[2009] ECR I-4529
, paragraph 35 and the case-law cited). Moreover, as the Commission submits, the fact that part of the discussions concerned Asia is attributable to the fact that the majority of the production installations were located in that region.
As regards the SML meetings, it is apparent from the contested decision and, in particular, from the minutes of the meetings of 28 November 2003, 10 December 2004 and 15 March and 26 December 2005 that the undertakings present, including MTPD, exchanged information concerning Europe and analysed the worldwide situation, including Europe. In addition, the participants in those meetings discussed the desirability of monitoring prices on the European market, including those of small and medium-sized CPTs, and identified the need to monitor production and coordinate the closure of European factories. In addition, two of those meetings, namely the meetings of 28 November 2003 and 10 December 2004, expressly concerned the fixing of prices in Europe.
Consequently, the applicant cannot claim that the contested decision does not contain evidence of an allocation of market shares and a restriction of CPT production during that period in the context of the SML and ASEAN meetings, since it is apparent from the minutes of several of those meetings that, in those meetings, the participants exchanged data on production, sales, capacities and their forecasts on a global level, which was capable of being used to calculate the market shares of the participating undertakings and to monitor the agreement, and that they set guidelines on the global prices for CPTs of various sizes.
The present plea must therefore be rejected.
In light of all of the foregoing, the first head of claim must be upheld and Article 1(2)(d) of the contested decision must be annulled in so far as it states that the applicant infringed Article 101 TFEU by participating in the CPT cartel from 16 May 2000 until 31 March 2003. As a consequence of that annulment, it is also necessary to uphold the third head of claim and to annul Article 2(2)(g) of the contested decision, by which a fine of EUR 28048000 was imposed on the applicant for its participation in the cartel for the period from 16 May 2000 until 31 March 2003.
Lastly, the application for annulment must be rejected as to the remainder.
Alternative head of claim, seeking cancellation or reduction of the amount of the fine
In support of this claim, the applicant relies on a single plea in law, alleging an error in the contested decision in that it imposed on it a fine in Article 2(2)(g) and (h) or, in the alternative, an error in the calculation of the amount of that fine.
In the light of the annulment of Article 2(2)(g) of the contested decision, this plea should be examined only in so far as it seeks to establish that the Commission erred in the contested decision by imposing on the applicant a fine in Article 2(2)(h) of that decision and that the calculation of the amount of that fine is incorrect.
This plea, by which the applicant invites the Court to exercise its unlimited jurisdiction, is divided into two parts.
In the first part of this plea and as its principal argument, the applicant requests the Court to draw the inferences from the errors allegedly committed by the Commission that it will have identified in its examination of the pleas for annulment. In the second part of this plea and in the alternative, the applicant alleges errors in the calculation of the amount of the fine, which allegedly gave rise, in essence, to an infringement of the principles of proportionality and equal treatment, and to an infringement of the rights of the defence.
Given that, following the examination of the pleas raised in support of the claim for annulment of the contested decision, only the first and third heads of claim were upheld (see paragraph 173 above), it is not necessary to examine the first part of this plea.
Accordingly, the Court must, in the exercise of its unlimited jurisdiction, examine the second part of this plea in the light of the fourth head of claim, by which the applicant requests that the Court reduce the amount of the fine imposed on it, jointly and severally with Panasonic, for its participation in the cartel through MTPD.
The applicant raises four additional arguments in support of its application for variation of the fines imposed on it.
In the first place, the applicant claims that the Commission’s reasoning relating to the setting of the proportion of the value of sales taken into account for the calculation of the basic amount of the fine is confused and terse and the applicant alleges an infringement of the principle of proportionality. In that regard, the applicant submits, first, that the amount of the fine does not reflect the considerable differences between the scope of the CDT cartel and that of the CPT cartel, which was not as multi-faceted as the Commission contends, and, secondly, that the 18% set to take account of the gravity of that cartel, for the purpose of determining the basic amount, is disproportionate.
For that purpose, it must be borne in mind that, under Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had to the gravity and duration of the infringement.
It has been consistently held that, within the limits laid down in Regulation No 1/2003, the Commission enjoys a wide discretion when exercising its power to impose such fines (Joined Cases
C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P
Dansk Rørindustri and Others
v
Commission
[2005] ECR I-5425
, paragraph 172, and Joined Cases
C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P
Erste Group Bank and Others
v
Commission
[2009] ECR I-8681
, paragraph 123). None the less, where the Commission adopts guidelines intended to specify, consistently with the Treaty, criteria which it intends to apply in the exercise of its discretion, there is a self-imposed limitation of that discretion in that it is obliged to comply with the guiding rules which it imposed on itself (see, to that effect, Case
T-73/04
Carbone-Lorraine
v
Commission
[2008] ECR II-2661
, paragraph 192 and the case-law cited). It may not depart from those guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified (see Case
C-101/08
Audiolux and Others
[2009] ECR I-9823
, paragraph 54 and the case-law cited).
In addition, point 4 of the 2006 Guidelines states as follows:
‘The Commission’s power to impose fines … is one of the means conferred on it in order for it to carry out the task of supervision entrusted to it by the Treaty. That task not only includes the duty to investigate and sanction individual infringements, but it also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to steer the conduct of undertakings in the light of those principles … For this purpose, the Commission must ensure that its action has the necessary deterrent effect … Accordingly, when the Commission discovers that Article 81 [EC] or 82 [EC] has been infringed, it may be necessary to impose a fine on those who have acted in breach of the law. Fines should have a sufficiently deterrent effect, not only in order to sanction the undertakings concerned (specific deterrence) but also in order to deter other undertakings from engaging in, or continuing, behaviour that is contrary to Articles 81 [EC] and 82 [EC] (general deterrence).’
As is apparent from points 5 to 7 of the 2006 Guidelines, in order to achieve those objectives, the Commission is to refer, as a basis for setting the amount of the fine, to the value of the sales of goods or services concerned by the infringement and to the number of years during which the undertaking participated in the infringement, and include in the basic amount of the fine a specific amount in order to deter companies from entering into illegal practices.
It should be observed that point 19 of the 2006 Guidelines states that ‘[t]he basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement’.
So far as concerns the factor relating to the gravity of the infringement, point 20 of the 2006 Guidelines states that ‘[t]he assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case’.
As regards the determination of the proportion of the value of sales taken into account, it is stated in point 21 of the 2006 Guidelines that, ‘[a]s a general rule, [it] will be set at a level of up to 30% of the value of sales’. It is apparent from point 22 of the guidelines that, ‘[i]n order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented’. Lastly, in point 23 of those guidelines, it is recalled in this connection that:
‘Horizontal price-fixing, market-sharing and output-limitation agreements …, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’
In the present case, with a view to determining the gravity of the infringement, the Commission took into account, as is apparent from recital 1059 to the contested decision, inter alia the fact that both the CPT cartel and the CDT cartel were multi-faceted, in that they included horizontal agreements on price fixing (target or bottom prices), market sharing and output restriction, and in the CDT cartel also allocation of customers. The Commission observed that those infringements were by their very nature among the most harmful restrictions of competition in the light of the provisions of Article 101 TFEU, for which point 23 of the 2006 Guidelines provides for the taking into account of a proportion of the value of sales set at the higher end of the scale. The Commission also noted that the undertakings involved in those infringements were or should have been aware of the illegal nature of their activities, which was demonstrated by the fact that they had taken measures to conceal the cartel. In addition, the Commission observed that the geographic scope of both the CDT cartel and the CPT cartel covered the entire EEA and that the combined market share within the EEA of the undertakings which were addressees of the contested decision, for which the infringements had been established, was below 80%. Lastly, the Commission found that the cartels were highly organised, rigorously implemented and monitored. It concluded, in recital 1070 to that decision, that, given the nature of the infringement, the appropriate percentage to be applied was 18% of the sales concerned.
Contrary to the applicant’s arguments, that assessment is sufficiently reasoned, since the Commission duly took account of the factors listed in point 22 of the 2006 Guidelines (see paragraph 189 above), namely, in addition to the nature of the infringement, the combined market share of the undertakings concerned, encompassing the entire market, the geographic scope corresponding to the entire EEA and the fact that the cartel was implemented.
Furthermore, it is common ground that the infringement linked to CPTs falls within the category referred to in point 23 of the 2006 Guidelines, since it involved, inter alia, secret horizontal price-fixing agreements. Consequently, taking account of the fact that the 2006 Guidelines provide for a ceiling of 30%, the Commission, in fixing the proportion of the value of sales taken into account at 18%, that is to say at a level scarcely above the mid-point of the scale provided for, complied with the rules which it imposed on itself in those guidelines. Such a clear breach of competition law is, by its nature, particularly serious and frustrates the most fundamental aims of the European Union (see, to that effect, Case T‑370/09
GDF Suez
v
Commission
[2012] ECR, paragraph 420 and the case-law cited).
None of the evidence advanced by the applicant is capable of calling that assessment into question.
The examination of the fourth and fifth pleas put forward in support of the claim for annulment of the contested decision gives no grounds to call into question the participation of the undertakings concerned in a single and continuous infringement of Article 101 TFEU, which had the effect of restricting competition on the EEA market and entailed, in particular, price fixing, the implementation of which was meticulously monitored, as well as a restriction of output and an exchange of confidential information regarding CPTs. Contrary to the applicant’s claims, it must be observed, first, that the degree of sophistication or complexity of the CDT cartel compared with that of the CPT cartel is irrelevant in view of the effects of the two cartels, which consisted of restricting competition on the EEA market. Secondly, as is apparent from recital 1059 to the contested decision, the higher gravity factor applied for the CDT cartel takes account of the fact that, unlike the CPT cartel, the CDT cartel also included an allocation of customers. The arguments to the effect that the contested decision does not contain sufficient evidence of output restrictions and market sharing cannot be upheld in the light of the analysis carried out in relation to the second part of the fifth plea.
Lastly, as regards the applicant’s assertion that two of the three aspects of the infringement, namely output restriction and market sharing, did not persist throughout the duration of the infringement, it must be held that, even if it were correct, it is not sufficient to call into question the Commission’s assessments as regards the existence of the infringement, its gravity in the present case and, consequently, the proportion of the value of sales to be considered in order to establish the basic amount of the fine (see, to that effect, judgment of 13 December 2012 in Case T‑103/08
Versalis and Eni
v
Commission
, not published in the ECR, paragraph 241).
It follows that, in fixing, pursuant to the 2006 Guidelines, at 18% the proportion of the value of sales to be considered in order to establish the basic amount of the fine to be imposed on the applicant, the Commission did not exceed the limits of its discretion. The argument that that percentage is disproportionate in relation to the percentage fixed for the CDT cartel, which amounts to 19%, must therefore be rejected.
The applicant’s arguments regarding the implementation and the effects of the infringement must likewise be rejected since, pursuant to point 23 of the 2006 Guidelines, the Commission was entitled to determine an amount having regard solely to the nature of the infringement (
GDF Suez
v
Commission
, cited in paragraph 192 above, paragraph 423).
Finally, there is no other factor capable of justifying the Court making use of its power to vary the contested decision in relation to the amount of the fine having regard to the gravity of the infringement.
It follows that this complaint must be rejected.
In the second place, the applicant submits that the Commission failed to take account of the limited nature of its participation, and that of MTPD, either when it fixed the proportion of the value of sales in order to calculate the basic amount of the fine or when it assessed whether there were any mitigating circumstances.
It should be borne in mind that, according to case-law, the grant of a reduction of the basic amount of the fine in respect of mitigating circumstances is necessarily linked to the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful agreement. Recognition of a mitigating circumstance, in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement, cannot result in the fine imposed being deprived of deterrent effect and the effectiveness of Article 101(1) TFEU being undermined (see, to that effect, Case
C-511/06 P
Archer Daniels Midland
v
Commission
[2009] ECR I-5843
, paragraphs 104 and 105 and the case-law cited).
In addition, it is apparent from point 29 of the 2006 Guidelines that the Commission is under no obligation systematically to take account separately of each of the mitigating circumstances listed or to grant a further reduction in the basic amount of the fine as a matter of course once an undertaking has put forward evidence of the existence of one of those circumstances. The appropriateness of any reduction of the amount of the fine in respect of mitigating circumstances must be examined comprehensively on the basis of all the relevant circumstances. Thus, in the absence of any binding indication in the 2006 Guidelines regarding the mitigating circumstances that may be taken into account, it must be concluded that the Commission has retained a degree of latitude in making an overall assessment of the extent to which a reduction of fines may be made in respect of mitigating circumstances (see, to that effect, judgment of 2 February 2012 in Case T‑83/08
Denki Kagaku Kogyo and Denka Chemicals
v
Commission
, not published in the ECR, paragraph 240 and the case-law cited).
In the present case, as regards the argument that the Commission ought to have taken into consideration the fact that MTPD did not participate in the European glass meetings, but only in the SML and ASEAN meetings, it should be borne in mind, as is apparent from the analysis of the second part of the fifth plea, that the Commission was right to consider that MTPD, with which the applicant and Panasonic formed an economic unit, had participated in a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement, covering the entire territory of the EEA and consisting of agreements and concerted practices aimed at agreeing on prices and production and exchanging sensitive commercial information between competitors. In view of its discretion when setting the amount of the fines it intends imposing, the Commission was entitled to conclude in the light of all those factors that the benefit of mitigating circumstances was not justified.
Nor has the applicant established that MTPD opposed the CPT cartel to the point of disrupting its smooth functioning, the standard which is laid down by the case-law in order for non-implementation of the cartel to be recognised as justifying a reduction of the amount of the fine in respect of mitigating circumstances (see, to that effect,
Denki Kagaku Kogyo and Denka Chemicals
v
Commission
, cited in paragraph 202 above, paragraph 248 and the case-law cited).
It follows that the Commission did not exceed the limits of its discretion in that area in not taking into account, as a mitigating circumstance justifying a reduction of the amount of the fine, the fact — even if it were proved — that MTPD did not participate in all the constituent elements of the cartel in question. Concerning liability for the infringement as such, the case-law shows that the fact that an undertaking has not participated directly in all the elements constituting an overall cartel cannot absolve it from liability for infringement of Article 101(1) TFEU if it is established, as in the present case, that it must necessarily have known, first, that the collusion in which it was participating was part of an overall plan, and, secondly, that that overall plan included all the constituent elements of the cartel (see, to that effect, Case
C-386/10 P
Chalkor
v
Commission
[2011] ECR I-13085
, paragraph 91 and the case-law cited).
Moreover, the applicant does not explain how, by not granting it the benefit of a mitigating circumstance on that basis, the Commission infringed the principle of proportionality or the principle of equal treatment.
Even if, by its arguments, the applicant seeks to prove that its role in the cartel was exclusively passive, it must be observed, first, that, although that circumstance was expressly referred to as a possible mitigating circumstance in the 1998 Guidelines, it is no longer one of the mitigating circumstances which can be taken into account under the 2006 Guidelines. That therefore manifests a deliberate political choice to no longer ‘encourage’ passive conduct by those participating in an infringement of the competition rules. That choice falls within the discretion of the Commission in determining and implementing competition policy.
Second, an ‘exclusively passive or follow-my-leader’ position in the infringement implies, by definition, that the undertaking concerned adopts a ‘low profile’, that is to say does not actively participate in the creation of any anticompetitive agreements (Case
T-220/00
Cheil Jedang
v
Commission
[2003] ECR II-2473
, paragraph 167). It is clear from case-law that the factors that may indicate that an undertaking has played a passive role in a cartel include the situation where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel and also that where a representative of another undertaking which has participated in the infringement makes an express declaration regarding the role played by that undertaking in the cartel, having regard to all the relevant circumstances of the individual case (see
Cheil Jedang
v
Commission
, paragraph 168 and the case-law cited).
In the present case, MTPD participated in a not inconsiderable number of CPT cartel meetings, whose anticompetitive nature has been established and at which MTPD provided its competitors with certain sensitive commercial information. Even if that information was incorrect or available elsewhere, it none the less gave the impression to its competitors that MTPD was taking part in the cartel and, therefore, contributed to encouraging it. In addition, none of the participants in the cartel in question stated that the applicant had adopted a ‘low profile’ during the infringement. For those reasons, it cannot be considered that its role was exclusively passive.
It follows that the Commission did not exceed the limits of its discretion in that area in not taking into account, as a mitigating circumstance justifying a reduction of the amount of the fine, the alleged exclusively passive and marginal role of MTPD.
In the third place, the applicant claims that the Commission infringed its 2006 Guidelines by taking into account, in the relevant turnover, not only sales of CRTs to customers in the EEA but also direct EEA sales through transformed products, which were not directly or indirectly related to the infringement. In this connection, on the one hand, it criticises the Commission for having failed to establish the existence of anticompetitive conduct as regards captive sales, which, according to the applicant, were explicitly excluded from the discussions at the SML and ASEAN meetings and are therefore not directly linked to the infringement. On the other hand, the applicant submits that the Commission could not rely on a presumption that the EEA downstream television market had been affected by the infringement, with the result that direct EEA sales through transformed products were not indirectly related to the infringement.
It must be noted that the second subparagraph of Article 23(2) of Regulation No 1/2003 provides that for each undertaking and each association of undertakings participating in the infringement the fine must not exceed 10% of its total turnover in the preceding business year.
As the Court of Justice has already held, the Commission must assess, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by Regulation No
1/2003, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed (Case C-76/06 P
Britannia Alloys & Chemicals
v
Commission
[2007] ECR I-4405
, paragraph 25;
Guardian Industries and Guardian Europe
v
Commission
, cited in paragraph 30 above, paragraph 53; and Case C‑227/14 P
LG Display and LG Display Taiwan
v
Commission
[2015] ECR, paragraph 49).
In accordance with the Court of Justice’s settled case-law, it is permissible, for the purpose of setting the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement (Joined Cases
100/80 to 103/80
Musique Diffusion française and Others
v
Commission
[1983] ECR 1825
, paragraph 121;
Guardian Industries and Guardian Europe
v
Commission
, cited in paragraph 30 above, paragraph 54; and
LG Display and LG Display Taiwan
v
Commission
, cited in paragraph 213 above, paragraph 50).
According to the Court of Justice’s case-law, although Article 23(2) of Regulation No 1/2003 leaves the Commission a discretion, it nevertheless limits the exercise of that discretion by establishing objective criteria to which the Commission must adhere. Thus, first, the amount of the fine that may be imposed on an undertaking is subject to a quantifiable and absolute ceiling, so that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance. Secondly, the exercise of that discretion is also limited by rules of conduct which the Commission has imposed on itself, in particular in the Guidelines on the method of setting fines (
Guardian Industries and Guardian Europe
v
Commission
, cited in paragraph 30 above, paragraph 55, and
LG Display and LG Display Taiwan
v
Commission
, cited in paragraph 213 above, paragraph 51).
Point 13 of the 2006 Guidelines states, ‘[i]n 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 EEA’. Point 6 of those guidelines states that ‘[t]he 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’.
Point 13 of the 2006 Guidelines therefore pursues the objective of adopting, as the starting point for the setting of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it (judgment of 11 July 2013 in Case C‑444/11 P
Team Relocations and Others
v
Commission
, not published in the ECR, paragraph 76;
Guardian Industries and Guardian Europe
v
Commission
, cited in paragraph 30 above, paragraph 57; and
LG Display and LG Display Taiwan
v
Commission
, cited in paragraph 213 above, paragraph 53).
Consequently, the concept of the value of sales referred to in point 13 of those Guidelines encompasses the sales made on the market concerned by the infringement in the EEA, and it is not necessary to determine whether those sales were genuinely affected by that infringement, since the proportion of the overall turnover deriving from the sale of goods in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (see, to that effect,
Team Relocations and Others
v
Commission
, cited in paragraph 217 above, paragraphs 75 to 78;
Guardian Industries and Guardian Europe
v
Commission
, cited in paragraph 30 above, paragraphs 57 to 59; Case C‑286/13 P
Dole Food and Dole Fresh Fruit Europe
v
Commission
[2015] ECR, paragraphs 148 and 149; and
LG Display and LG Display Taiwan
v
Commission
, cited in paragraph 213 above, paragraphs 53 to 58 and 64).
In the present case, the participants in the cartel — such as MTPD, over whose conduct the applicant exercised decisive influence — which were vertically integrated undertakings incorporated, outside the EEA, cartelised CPTs into finished products sold in the EEA. As the applicant argues, the sales taken into account for the purposes of setting the amount of the fine for direct EEA sales through transformed products were not made on the product market concerned by the infringement, in this case the market for the cartelised CRTs, but on a different product market, namely the downstream market for finished products incorporating those CRTs; those cartelised CRTs had in that case been the subject of internal sales outside the EEA between MTPD and its vertically integrated subsidiaries.
It is, however, apparent from recitals 1026 and 1029 to the contested decision that, in order to determine the amount serving as the basis for the fines, the Commission took into account only the price charged for CDTs and CPTs incorporated into television sets or computer monitors and not the price of those sets or monitors. Consequently, the sales of finished products incorporating the cartelised CRTs were not taken into account up to their full value, but only up to the proportion of that value which corresponded to the value of the cartelised CRTs that were incorporated into the finished products, when the latter were sold by the undertaking to which the applicant belongs to independent third parties established in the EEA. That finding has not been challenged.
Accordingly, contrary to what the applicant maintains, the Commission was fully entitled to take into account the sales of television sets and computer monitors in order to calculate the amount of the fine.
Admittedly the concept of the ‘value of sales’ referred to in point 13 of the 2006 Guidelines cannot extend to encompassing sales made by the undertaking in question which in no way fall within the scope of the alleged cartel (see
Team Relocations and Others
v
Commission
, cited in paragraph 217 above, paragraph 76;
Guardian Industries and Guardian Europe
v
Commission
, cited in paragraph 30 above, paragraph 57; and
LG Display and LG Display Taiwan
v
Commission
, cited in paragraph 213 above, paragraph 53). It would, however, be contrary to the goal pursued by Article 23(2) of Regulation No 1/2003 if the vertically integrated participants in a cartel could, solely because they incorporated the goods the subject of the infringement into the finished products outside the EEA, expect to have excluded from the calculation of the fine the proportion of the value of their sales of those finished products in the EEA that are capable of being regarded as corresponding to the value of the goods the subject of the infringement.
As the Court of Justice has also held, vertically integrated undertakings may benefit from a horizontal price-fixing agreement concluded in breach of Article 101 TFEU, not only when sales are made to independent third parties on the market for the goods the subject of the infringement, but also on the downstream market in processed goods made up of, inter alia, the goods which are the subject of the infringement, and that is so for two different reasons. Either the price increases of the inputs which result from the infringement are passed on by those undertakings in the price of the processed goods, or those undertakings do not pass these increases on, which thus effectively grants them a cost advantage in relation to their competitors which obtain those same inputs on the market for the goods which are the subject of the infringement (
Guardian Industries and Guardian Europe
v
Commission
, cited in paragraph 30 above, paragraph 60).
In those circumstances, the Commission was fully entitled to take the view that while not made on the market for the goods concerned by the infringement, the direct EEA sales through transformed products none the less distorted competition in the EEA in breach of Article 101 TFEU, to the detriment of consumers in particular, and that those sales were related to the infringement in the EEA, within the meaning of point 13 of the 2006 Guidelines.
It follows that the applicant’s argument that the Commission could not rely on a presumption that the EEA downstream television market had been affected by the infringement cannot succeed, having regard to the case-law cited in paragraph 223 above. Moreover, since, as was noted in paragraph 220 above, the Commission did not take into account the value of the transformed product as a whole, but only the value of the tubes that were incorporated into the transformed product, such an argument is, in any event, irrelevant.
It should also be pointed out that excluding the direct EEA sales through transformed products would have the effect of artificially minimising the economic significance of the infringement committed by a particular undertaking, since the mere fact such sales genuinely affected by the cartel in the EEA are excluded from being taken into account would lead to the imposition of a fine which bore no actual relation to the scope of application of that cartel in that territory (see, by analogy,
Team Relocations and Others
v
Commission
, cited in paragraph 217 above, paragraph 77;
Guardian Industries and Guardian Europe
v
Commission
, cited in paragraph 30 above, paragraph 58; and
LG Display and LG Display Taiwan
v
Commission
, cited in paragraph 213 above, paragraph 54).
In particular, as the Commission rightly found in recital 1022 to the contested decision and contrary to the applicant’s arguments, to ignore the value of those sales would inevitably give an unjustified advantage to vertically integrated companies which, like MTPD, incorporated a significant part of the goods in respect of which the infringement was committed in their production units established outside the EEA, enabling them to avoid the imposition of a fine proportionate to their importance on the market for those goods and the harm which their conduct does to normal competition in the EEA.
Consequently, the Commission did not infringe its 2006 Guidelines by taking into account direct EEA sales through transformed products for the purpose of determining the amount of the fine imposed on MTPD, jointly and severally with the applicant and Panasonic.
In the fourth place, the applicant asserts that the Commission departed from point 25 of the 2006 Guidelines without an objective justification which is compatible with the principle of equal treatment, by using a specific value of sales for the calculation of the additional amount included in the basic amount of the fine imposed on it (see paragraph 22 above) as the parent company of MTPD.
It is important to note that, by that argument, the applicant seeks to challenge the methodology used by the Commission for calculating the amount of the fine it imposed on the applicant for its direct participation in the CPT cartel before the creation of MTPD, in so far as the Commission used, for the purpose of calculating the additional amount, in addition to the value of its own sales, a proportion of the value of the sales of the joint venture. As the Commission explained in footnote 1972 to recital 1055 to the contested decision, that meant that there was no joint and several liability of the parent companies for the additional amounts. In addition, it is apparent from recital 1076 to that decision that, while separate additional amounts were imposed on Panasonic and the applicant, no additional amount was imposed on MTPD.
In view of the annulment of Article 1(2)(d) and Article 2(2)(g) of the contested decision, the applicant’s argument on that point must be dismissed as ineffective.
It follows that it is not necessary, in any event, to rule on the merits of the argument relating to breach of the rights of the defence, alleging that the applicant did not have access to data provided by Panasonic on behalf of MTPD as regards the determination of the additional amount.
In those circumstances, the Court finds that no other reason that can be linked to the applicant’s arguments raised in support of this part of the plea gives grounds for considering the amounts of the fines to be inappropriate, having regard, on the one hand, to the gravity and the duration of the applicant’s infringement and, on the other, to the need to impose on the applicant fines whose amount acts as a deterrent.
The Court further takes the view that there is in this case no public policy ground which it is required to raise of its own motion (see, to that effect, Case
C-272/09 P
KME Germany and Others
v
Commission
[2011] ECR I-12789
, paragraph 104) to justify it making use of its power to vary the contested decision with a view to annulling the fine.
Accordingly, in line with the conclusions set out in paragraphs 146 to 148 above, the second part of the plea relied on in support of the fourth head of claim, seeking reduction of the amount of the fine imposed on the applicant for its participation in the infringement through MTPD, must be upheld solely in so far as it seeks to benefit from the reduction of the amount of the fine imposed on it jointly and severally with Panasonic and MTPD, established by the judgment in
Panasonic and MT Picture Display
v
Commission
, cited in paragraph 147 above, which set the amount of that fine at EUR 82826000. The application for cancellation of the fine or for reduction of its amount is dismissed as to the remainder.
Costs
Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
In the present case, since the form of order sought by the applicant has been upheld in part, each party must be ordered to bear its own costs.

On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:

1.
Annuls, in part, Article 1(2)(d) of Commission Decision C(2012) 8839 final of 5 December 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.437 — TV and Computer Monitor Tubes) in so far as it finds that Toshiba Corp. participated in a global cartel in the market for colour picture tubes for television sets from 16 May 2000 until 31 March 2003;

2.
Annuls Article 2(2)(g) of that decision in so far as it imposes a fine of EUR 28048000 on Toshiba for its direct participation in a global cartel in the market for colour picture tubes for television sets;

3.
Sets the amount of the fine imposed on Toshiba in Article 2(2)(h) of the decision at issue, jointly and severally with Panasonic Corp. and MT Picture Display Co. Ltd, at EUR 82826000;

4.
Dismisses the action as to the remainder;

5.
Orders each party to bear its own costs.

Papasavvas
Forwood
Bieliūnas
Delivered in open court in Luxembourg on 9 September 2015.
[Signatures]
Table of contents

Background to the dispute

Applicant and relevant product

Administrative procedure

Contested decision

Procedure and forms of order sought

Law

Principal head of claim, seeking partial annulment of the contested decision

First plea, alleging an error vitiating the contested decision in that it finds that the applicant was liable for the infringement committed between 16 May 2000 and 11 April 2002

Second plea, alleging an error vitiating the contested decision in that it finds that the applicant was liable for the infringement committed during the period from 12 April 2002 until 31 March 2003

Fourth plea, alleging an error vitiating the contested decision in that it finds that the applicant was jointly and severally liable for MTPD’s participation in the infringement committed during the period from 1 April 2003 until 12 June 2006

– The second part

– The first part

– The third part

Third plea, alleging an error vitiating the contested decision in that it finds that the applicant was liable for the infringement committed during the period from 1 April 2003 until 12 June 2006

Fifth plea, raised in the alternative, alleging an error vitiating the contested decision in that it finds that MTPD was liable for having participated in the infringement committed during the period from 1 April 2003 until 12 June 2006

– The first part

– The second part

Alternative head of claim, seeking cancellation or reduction of the amount of the fine

Costs
(
*1
)	Language of the case: English.
(
)	Confidential information omitted.