Judgment — ECLI:EU:C:2017:190
Date: 2017-03-09
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

summary of the appellants’ line of argument in paragraphs 152 and 153 of the judgment under appeal, or their application before the General Court, contained in the file in the case at first instance transmitted to the Court pursuant to Article 167(2) of the Rules of Procedure of the Court, that the appellants alleged, before the General Court, that all the other participants in the CPT cartel had withdrawn from that cartel prior to 15 November 2006, with the result that the appellants’ participation had ended, since an undertaking cannot participate alone in a cartel. 31 Before the General Court, the appellants also submitted that other undertakings, in particular LPD and its subsidiaries, had participated in the cartel until 15 November 2006, the end date of their participation in the CPT cartel selected in the decision at issue. They repeated that assertion in their appeal. 32 All things considered, the General Court found that, until 15 November 2006, there were at least two undertakings — namely the undertaking of which the appellants formed part and the undertaking of which LPD and its subsidiaries formed part — which participated in the CPT cartel. The fact that the Commission chose not to include the second of those two undertakings in the procedure that led to the adoption of the decision at issue, on the ground that LPD had been declared bankrupt and had subsequently been placed under the control of a court-appointed administrator, is irrelevant, in that respect, since it does not mean that that undertaking did not continue to participate in the cartel. 33 It follows that the appellants are not justified in maintaining that the General Court failed to take into account, in the judgment under appeal, that during part of the duration of the CPT cartel the undertaking of which the appellants formed part had participated alone in the cartel. The appellants’ argument that the General Court erred in law in that it came to that conclusion is therefore based on an erroneous premiss and must be rejected. 34 The same is true of the argument alleging that the General Court breached the obligation to state reasons, in that it failed to address the appellants’ line of argument that the Commission should have considered that, during a certain period, the undertaking of which they formed part had participated alone in a cartel. As noted in paragraph 30 of the present judgment, the appellants did not raise that line of argument before the General Court. 35 The first part of the second ground of appeal must therefore be rejected as unfounded. 36 The second part of the second ground of appeal, by which the appellants allege, in essence, that the General Court erred in law in implementing the principle of equal treatment, on the ground that it rejected their line of argument that the Commission had discriminated against them by penalising them for their participation in the CPT cartel until 15 November 2006, whereas other participants in the same cartel were not penalised, in respect of part or all of their participation. 37 It must be recalled that, in paragraph 163 of the judgment under appeal, the General Court held that, where an undertaking has acted in breach of Article 101 TFEU, it cannot escape being penalised altogether on the ground that another undertaking has not been fined (judgments of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission, C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraph 197, and 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 160). 38 In doing so, the General Court did not err in law. An undertaking on which a fine has been imposed for its participation in a cartel, in breach of the competition rules, cannot request the annulment or reduction of that fine, on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel (see, to that effect, judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraphs 58 and 59). 39 The appellants’ argument, based on the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363), cannot lead to a different conclusion. 40 In that judgment, the Court, taking into account the case-law according to which, when the amount of the fine is determined, the application of different methods of calculation cannot result in discrimination between the undertakings which have participated in the same infringement of Article 101 TFEU (judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 58), reduced the fine imposed on a participant in an infringement, in order to take account of the fact that the Commission, by incorrectly applying the method it had chosen to determine the amount of the fine, had imposed on another participant in the same cartel a fine which reduced the relative size of that participant’s contribution to the infringement (judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraphs 70 to 80). 41 However, the appellants did not invoke, either before the General Court or before the Court, an erroneous application of the method of calculating fines. Accordingly, the case-law which they invoke is irrelevant. 42 In the light of the foregoing considerations and without it being necessary to rule on the Commission’s argument alleging the partial inadmissibility of the second part of the second ground of appeal, it is necessary to reject that part as unfounded and, consequently, to reject the second ground of appeal in its entirety. The third ground of appeal, alleging an error of law as regards the taking into account of CDT sales to SEC Arguments of the parties 43 The appellants submit that the General Court erred in law, in that it rejected, in paragraphs 189 to 208 of the judgment under appeal, their plea in law alleging the infringement of point 13 of the Guidelines on the method of setting fines, by which they argued that the Commission should not have taken into account, in calculating the fine that it imposed on them for their participation in the CDT cartel, Samsung SDI’s CDT sales to SEC. According to the appellants, since the prices and the quantities of CDT to be supplied had been negotiated in South Korea, directly between the management of Samsung SDI and that of SEC, those sales should not have been regarded as sales made in the EEA, for the purpose of point 13 of the Guidelines on the method of setting fines. 44 In that context, the appellants challenge the General Court’s rejection, in paragraph 195 of the judgment under appeal, of their argument that the concept of ‘sales’ in the EEA must be interpreted by reference to the place where competition was affected. The application of Article 101 TFEU and the Guidelines on the method of setting fines are intended, fundamentally, to safeguard competition within the EEA. Accordingly, the General Court erred and disregarded its own case-law in rejecting their line of argument, by referring, in order to determine the sales within the EEA used in the calculation of the fine, to the place of delivery of the CDTs sold to SEC, since the place where the sale was concluded is the place where competition was affected. 45 Lastly, the appellants state that the third ground of appeal does not concern the possible inappropriateness of the fine imposed on them, but rather concerns an error of law committed in the application of the Guidelines on the method of setting fines and is, accordingly, admissible. 46 The Commission contests, primarily, the admissibility of the third ground of appeal, since the appellants do not allege that the fine imposed on them is excessive to the point of being disproportionate. According to the Commission, it follows from the case-law of the Court (judgment of 10 July 2014, Telefónica et Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 205) that it is only in that situation that the Court would have to find an error of law committed by the General Court, on account of the inappropriateness of the fine. 47 In the alternative, the Commission argues that, contrary to the appellants’ assertions, the General Court did not commit, in paragraphs 192 to 197 of the judgment under appeal, any error of law in the application of point 13 of the Guidelines on the method of setting fines, in interpreting the concept of ‘sales ... within the EEA’ by taking account of the impact of the agreements or concerted practices in question in the EEA. The case-law of the Court invoked by the appellants does not justify a different conclusion. 48 Lastly, the Commission submits that the reference, in paragraph 196 of the judgment under appeal, to the principle of proportionality, merely recalls settled case-law, whereas the appellants’ line of argument relating to the damage that consumers in the EEA could have suffered as a result of a cartel outside the EEA is ineffective, since the General Court did not refer to such potential damage. Findings of the Court 49 By the third ground of appeal, the appellants criticise the General Court, in essence, for considering that the Commission had not breached point 13 of its Guidelines on the method of setting fines, by taking account of the value of sales negotiated outside the EEA of goods delivered within the EEA, in calculating the fine imposed on them. The question whether the Commission correctly interpreted and applied its own guidelines and whether those guidelines comply with the provisions and principles governing the determination of the amount of the fine to be imposed for an infringement of the competition rules are questions of law, which may be raised before the Court at the appeal stage. Accordingly, the third ground of appeal is admissible. 50 However, with regard to its substance, that third ground of appeal cannot succeed. 51 It must be recalled that point 13 of the Guidelines on the method of setting fines pursues the objective of adopting as the starting point for the calculation of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (judgment of 9 July 2015, InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 50 and the case-law cited). 52 Consequently, the concept of the ‘value of sales’, referred to in point 13 of the Guidelines on the method of setting fines, 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 (judgment of 9 July 2015, InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 51 and the case-law cited). 53 However, in paragraph 195 of the judgment under appeal, the General Court held that, in the present case, the place of delivery had a real impact on the level of sales made by the appellants. Although the prices and quantities of CDTs to be supplied were negotiated, for the most part, in South Korea, between the headquarters of Samsung SDI and those of SEC, the CDTs were delivered directly from the warehouses managed by Samsung SDI, located in the EEA, to SEC, in its warehouses also located in the EEA, and, moreover, SEC’s European subsidiaries ultimately had the possibility of changing their production plans and, accordingly, the number of CDTs that they needed. In that case, the level of sales finally made by Samsung SDI to SEC would be altered. 54 Consequently, the General Court did not err in law in considering that, in order to determine the amount of sales within the EEA, for the purpose of those guidelines, it was necessary to take account of all deliveries made in the EEA. 55 Furthermore, if the appellants’ argument were accepted, an undertaking participating in an infringement would merely have to negotiate its sales with its customers outside the EEA in order to ensure that those sales would not be taken into account in the calculation of a potential fine, which would therefore be much smaller (see, by analogy, judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16). 56 It follows from the foregoing that the third ground of appeal must be rejected as unfounded. The fourth ground of appeal, alleging that the General Court erred in law as regards the reduction of the fine under the leniency programme Arguments of the parties 57 The appellants submit that the General Court erred in law in rejecting, in paragraphs 217 to 223 of the judgment under appeal, their plea in law seeking the reduction of the fine imposed on them for their participation in the CDT cartel, by which they argued that a reduction of 50%, rather than 40%, of the fine should have been granted to them under the leniency programme. 58 In support of their ground of appeal, the appellants submit that the General Court erred in law, in that it referred, in paragraph 220 of the judgment under appeal, to its considerations concerning the reduction of the fine imposed for their participation in the CPT cartel, even though the CDT cartel was a separate infringement and had been examined, by the Commission, in a separate part of the decision at issue, which did not make any reference to the parts of that decision concerning the CPT cartel. 59 In addition, they argue that the General Court — by applying the leniency application incorrectly, in a manner contrary to its own case-law — confirmed, in paragraph 221 of the judgment under appeal, the Commission’s conclusion that they did not merit a reduction of 50% of the fine, since they had omitted to state, in their reply to the statement of objections, that market sharing was a core feature of the CDT cartel. However, the Commission could not criticise the appellants in that respect since responses to the statement of objections are only intended to allow the cartel participants to exercise their rights of defence and raise objections to the Commission’s allegations and since, as the General Court noted in paragraph 221 of the judgment under appeal, the appellants specified the market sharing aspects in the agreements relating to CDTs in a statement accompanying the reply to the statement of objections. 60 The Commission submits that the fourth ground of appeal is inadmissible, for reasons identical to those put forward in response to the third ground of appeal, set out in paragraph 46 above. It also cites, in support of its line of argument, paragraph 69 of the judgment of 5 December 2013, Solvay v Commission (C‑455/11 P, not published, EU:C:2013:796). It adds that the appellants’ have produced, in annex to their appeal, new documents, that were not produced before the General Court, which — like the argument to which they relate — must be rejected. 61 In any event, the Commission argues that the arguments put forward by the appellants in the fourth ground of appeal cannot succeed, with the result that this ground of appeal must be rejected as unfounded. Findings of the Court 62 Even if the two parts of the ground of appeal were well founded, it must be borne in mind that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law. Accordingly, only inasmuch as the Court of Justice considers that the level of the fine is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 205 and the case-law cited). 63 In the present case, the appellants have not put forward any argument alleging that the fine imposed on them is disproportionate. 64 It follows from all the foregoing considerations that the fourth ground of appeal is ineffective. Accordingly, since all the grounds of appeal put forward by the appellants must be rejected, the appeal must be dismissed. Costs 65 In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 66 Since the Commission has applied for costs against the appellants and the appellants have been unsuccessful, they should be ordered to pay the costs. On those grounds, the Court (Eighth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Samsung SDI Co. Ltd and Samsung SDI (Malaysia) Bhd to pay the costs. Vilaras Malenovský Safjan Delivered in open court in Luxembourg on 9 March 2017. A. Calot Escobar M. Vilaras Registrar President of the Eighth Chamber ** Language of the case: English