Judgment;Abstract;Judgment (extracts) — ECLI:EU:T:2019:514
Date: 2019-07-12
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded

summary of the case, an indication of the most important documents and a preliminary draft decision. ... The Advisory Committee shall deliver a written opinion on the Commission’s preliminary draft decision. ... ... 5. The Commission shall take the utmost account of the opinion delivered by the Advisory Committee. It shall inform the Committee of the manner in which its opinion has been taken into account. ...’ 88 Lastly, as set out in Article 33 of Regulation No 1/2003, ‘before publishing a draft measure and before adopting it, the Commission shall consult the Advisory Committee on Restrictive Practices and Dominant Positions’. 89 In the present case, it is apparent from the case file (i) that the Advisory Committee was consulted twice, on 5 and 15 October 2015, before the adoption of the contested decision and (ii) that a whole set of documents on this case was sent to the members of that committee in accordance with Article 14(3) of Regulation No 1/2003. Among those documents, the Commission asserts that it provided: a summary of the case file, its letter of facts dated 3 June 2015, the replies to that letter by the companies affected by the fine, including the applicants’ reply of 26 June 2015, the draft decision including the annexes, a fines table with a detailed overview of how they would be calculated, the statement of objections and the replies thereto. 90 In the first place, it should be noted that the Advisory Committee had been informed of the main points of fact and law of the proceedings, in particular, the market, the addressees, the objections, the duration of the infringement, the methodology and calculation of the fines and the views expressed by the addressees in response to the objections raised by the Commission. Those documents could therefore be considered ‘the most important documents’ within the meaning of Article 14(3) of Regulation No 1/2003. 91 In the second place, it should be noted that Article 14 of Regulation No 1/2003 does not require that the applicants’ requests be attached to those documents. Indeed, under Article 14(3) of Regulation No 1/2003, the dispatch of the notice convening the Advisory Committee is accompanied by ‘a summary of the case, an indication of the most important documents and a preliminary draft decision’. The expression ‘an indication of the most important documents’ cannot mean that the Commission is required to forward to the Advisory Committee all the documentation exchanged with the companies concerned. 92 In the third place, it should be noted that the Commission sent to the Advisory Committee a letter of facts dated 3 June 2015 as well as the applicants’ reply to that letter dated 26 June 2015. It should therefore be observed that the applicants had the opportunity (i) to acquaint themselves with the most important facts to be taken into consideration by the Commission for calculating the amount of the fine and (ii) to submit their observations on those facts set out by the Commission. Those observations were, moreover, communicated to the Advisory Committee. 93 Therefore, to the extent that the applicants’ first request –– seeking a reduction in the amount of the fine due to ‘particular circumstances’ specific to them for the purpose of point 37 of the Guidelines –– was made on 26 February 2015, namely well before the date that the letter of facts was communicated by the Commission to the applicants, they cannot criticise the Commission for not having communicated that information to the Advisory Committee. Even though the Commission did not include that information in the statement of facts or in the indication of the most important documents, the applicants had the opportunity to describe the importance that that information had for the calculation of the amount of the fine in their observations of 26 June 2015. 94 Moreover, in so far as the information adduced by the applicants as part of their second request of 14 September 2015 does not contain substantial amendments as compared with the first request, since it is an update of the facts already set out, the Commission, which was not required to hear the applicants again before adopting the contested decision, was not required to carry out a fresh consultation of the Advisory Committee (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 118). Nevertheless, it should be noted that the Commission had another informal meeting with the applicants, on 18 September 2015, in which they were given the opportunity to comment on the new facts and that, subsequently, on 15 October 2015 the Advisory Committee was consulted again. However, the Commission considered that those facts were not decisive for the calculation of the amount of the fine imposed on the applicants, which is why they were not brought to the attention of the Advisory Committee. 95 It follows from all of the foregoing that the Commission did not breach the principle of good administration on the ground that it did not consult the Advisory Committee on the particular circumstances relied on by the applicants. Indeed, the Commission was diligent during the administrative procedure since it (i) heard the applicants and examined their observations before the Advisory Committee delivered a written opinion on the preliminary draft decision and (ii) communicated to that committee the most important information for the calculation of the amount of the fine under Article 14(3) of Regulation No 1/2003. 96 Considerations similar to those set out in paragraphs 89 to 95 above are applicable to the applicants’ arguments concerning the consultation of the College of Commissioners. In that regard, it is apparent from the case file that, before adopting the contested decision, essential components of the draft decision, namely the draft and its annexes, the opinion of the Advisory Committee and the final report of the Hearing Officer, were submitted for final approval to the College of Commissioners. 97 Lastly, in so far as the applicants claim, in the context of the present complaint, that the amount of the fine could have been lower if the Advisory Committee and the College of Commissioners had been consulted on that information, it is sufficient to state that it follows from the considerations set out in paragraphs 108 to 129 below that the Commission did not err in law in finding that it was not necessary to take into account the information supporting the applicants’ request for a derogation from the general rule on the setting of fines, and from paragraphs 145 to 148 below that the principles of equality and proportionality did not justify such account being taken. 98 In the light of the foregoing considerations, the second part of the first plea must be rejected, as must the first plea in its entirety. 2. Second plea: error of law 99 The applicants claim that the Commission erred in law in not applying, when calculating the amount of the fine, in the light of the particularities of the case, the exception provided for in point 37 of the Guidelines. 100 In the context of that plea, the applicants put forward two complaints, alleging, first, an error of assessment of the particular circumstances alleged by the applicants and, secondly, breach of the principle of equality and proportionality of penalties. (a) First complaint: error of assessment of the particular circumstances alleged by the applicants 101 The applicants claim, in essence, that the particularities of the present case, on account of which the exception to the general methodology for calculating the amount of the fine provided for in point 37 of the Guidelines should be applied, are to be found in the combination of three circumstances. The applicants assert, first, that they derive the bulk of their revenue from a single product, namely ODDs. They maintain, second, that the fine imposed, which is close to the 10% cap, hit them particularly hard because they are the only companies that were fined that decided to continue to operate on the ODD market, as a result of which their total turnover is relatively high. The applicants assert, third, that they were in a precarious financial situation that obliged them to restructure, given that they are dependent on their parent companies. 102 The Commission disputes the applicants’ arguments. 103 Point 37 of the Guidelines, which envisages the non-application of the general methodology for calculating fines provided for by those guidelines, is worded as follows: ‘Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.’ 104 According to settled case-law, in adopting rules of conduct such as the Guidelines and by announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules on pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 211; of 12 December 2012, Ecka Granulate and non ferrum Metallpulver v Commission, T‑400/09, not published, EU:T:2012:675, paragraph 40; and of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 133). 105 It should be noted at the outset that a reduction in the amount of the fine may be granted under point 37 of the Guidelines only in exceptional circumstances when the particularities of a given case or the need to achieve deterrence in a particular case may justify the Commission departing from the general methodology for the calculation of the amount of the fine provided for in those guidelines. 106 The applicants argue in that regard that the particularities of the present case, to be found in the combination of three circumstances which were already set out during the administrative procedure, justified the Commission departing from that methodology. Moreover, the applicants argue in paragraphs 25 to 27 of the reply that the Commission analysed those criteria separately instead of assessing whether the combination of such factors justified recourse to the exception laid down in point 37 of the Guidelines. 107 It is appropriate to examine, in the first place, each circumstance alleged, and, in the second place, those three circumstances invoked by the applicants together. (1) The fact that the applicants derive the bulk of their revenue from a single product 108 As regards the first circumstance relied on by the applicants, according to which they derive the bulk of their revenue from sales of a single product, namely ODDs, it should be noted, first of all, that, as the Commission maintains, the single product nature of the applicants’ business is not relevant for assessing the legality of the calculation of the amount of the fine. 109 It has been held that the Commission is not obliged to take into account, when assessing the gravity of the infringement, the relationship between the total turnover of an undertaking and the turnover produced by the goods which are the subject matter of the infringement (see, to that effect, judgment of 8 July 2008, Saint-Gobain Gyproc Belgium v Commission, T‑50/03, not published, EU:T:2008:252, paragraph 93). The Commission is therefore not required to take into account the single product nature of the applicants’ business in assessing the gravity of the infringement. 110 Similarly, as regards the scale of the infringement on the market and the share of responsibility borne by each cartel participant, it should be noted that the proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market (judgment of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 121; see also, to that effect, judgments of 14 May 1998, Mayr-Melnhof v Commission, T‑347/94, EU:T:1998:101, paragraph 369, and of 8 July 2008, Saint-Gobain Gyproc Belgium v Commission, T‑50/03, not published, EU:T:2008:252, paragraph 94) and constitutes an objective criterion which gives a proper measure of the harm which the restrictive practice in question does to normal competition (judgment of 11 March 1999, British Steel v Commission, T‑151/94, EU:T:1999:52, paragraph 643). Therefore, since the proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market, the Commission did not misapply the methodology laid down by the Guidelines which provides for the calculation of the amount of the fine on that basis. 111 Furthermore, without prejudice to the findings that it is for the Court to make in the context of the examination of the claim for variation of the contested decision, it should be noted, as the Commission observes, that the argument that the applicants derive the bulk of their revenue from a single product is also irrelevant to the assessment of whether the Commission wrongly refused to depart from the general methodology for calculating fines under point 37 of the Guidelines. 112 The applicants’ strong focus on the development and supply of ODDs and the lesser degree of diversification of their activity compared to other cartel participants cannot suffice, in themselves, to establish that the Commission breached the principles of equality and proportionality by not applying specific criteria for the calculation of the amount of the fine imposed on the applicants. It follows from the case-law that the proportion of the overall turnover deriving from the sale of products in respect of which the infringement in question was committed is best able to reflect the economic importance of that infringement. Consequently, since the applicants derive a particularly large part, if not almost all, of their overall turnover from products which are the subject of the infringement, the fact that the amount of the fine imposed on the applicants represents a higher percentage of overall turnover by comparison with other cartel participants merely reflects the economic importance of that infringement for the applicants. Such a result is not contrary to the principle of equality or proportionality (see, to that effect and by analogy, judgment of 15 December 2016, Infineon Technologies v Commission, T‑758/14, not published, EU:T:2016:737, paragraph 269, and Opinion of Advocate General Kokott in Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:258, point 100). 113 Nor is this conclusion called into question by the fact that, in the past, the Commission granted reductions in fines on an individual basis, in order to do justice to the characteristics of the business models of individual cartel participants. The Commission’s practice in previous decisions, contrary to what is maintained by the applicants, does not serve as a legal framework for imposing fines in competition matters (see, to that effect, judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 68). 114 Lastly, the applicants argue, contrary to the foregoing, that they do not contest the amount of their fine because it is higher, by reference to their turnover, than that of other undertakings fined. They submit that, in the present case, they are the only companies which continued to operate on the market. 115 However, as the Commission observed in the rejoinder, the fact that the applicants are the only companies still operating on the market, which is a matter relating solely to their business strategy, constitutes a factor which the Commission was not required to take into account when calculating the amount of the fine and which could not require the Commission to apply the exception laid down in point 37 of the Guidelines. 116 In those circumstances, it is necessary to reject the applicants’ arguments relating to the single product nature of their business. (2) Continuation of business activities on the ODD market 117 As regards, the second circumstance, according to which the fine imposed on the applicants, close to the 10% cap, severely affected them given that they are the only companies that were fined that decided to continue to operate on the ODD market as a result of which their overall turnover was relatively high, it must be observed, in the first place, that the basic amount of the fine imposed on them was, contrary to what the applicants claim, approximately 8.45% of their overall turnover for 2014 and that that amount was reduced by 50% under the leniency and partial immunity granted in respect of part of the infringement. It must therefore be observed that the total amount of the fine imposed on the applicants is EUR 37 121 000, namely 4.22% of their overall turnover. Consequently, the applicants’ argument that the fine which was imposed on them is close to the 10% cap has no basis in fact. 118 In the second place, as is apparent from paragraph 115 above, the fact that they are the only companies that were fined which decided to continue to operate on the ODD market is a matter relating solely to the applicants’ business strategy and cannot call into question the legality of the calculation of the amount of the fine. 119 Consequently, those arguments must also be rejected. (3) Financial difficulties 120 As regards the third circumstance, the applicants allege, first of all, that they rely on their financial difficulties without claiming to bring a request for inability to pay pursuant to point 35 of the Guidelines. Next, they claim that their financial difficulties stem from the fact that the fine had a negative economic impact on two aspects: in the first place, on the plan to restructure their business and, in the second place, on their continuing to operate on the market. Furthermore, the applicants maintain, contrary to what the Commission contends, that they suffered losses on ODD sales during the third and fourth quarters of 2015 because, following the exit from the market of Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. (together, ‘TSST’), they faced increased costs. Lastly, the applicants submit that the reduced ability of an undertaking to pay may be relevant for the application of point 37 of the Guidelines for the purpose of reducing the amount of the fine, independently of the formal inability to pay procedure under point 35 of those guidelines. 121 It must be pointed out that, according to settled case-law, the Commission is not in principle required, when determining the amount of the fine to be imposed for an infringement of the competition rules, to take into account the loss-making financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to market conditions (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 327; of 12 December 2012, Ecka Granulate and non ferrum Metallpulver v Commission, T‑400/09, not published, EU:T:2012:675, paragraph 94; and of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 135). 122 For that reason, the mere finding that the applicants are in an adverse or loss-making financial situation, due to their restructuring or their continuity on the market, cannot oblige the Commission to uphold a request seeking a reduction of the amount of the fine under point 37 of the Guidelines. 123 It follows that it is necessary to reject the applicants’ arguments relating to their adverse financial situation. (4) Combination of the three circumstances 124 The applicants take issue with the Commission for having examined the three particular circumstances separately instead of assessing whether the combination of those factors justified the application of the exception provided for in point 37 of the Guidelines. They claim that the combination of those three circumstances distinguishes them from the other companies that were fined, in particular TSST. They maintain, in essence, that it was necessary to continue their activities on the ODD market in order to avoid shortages of supply and possible price increases. That, in their submission, is why they decided to resolve their financial difficulties by taking themselves through a restructuring plan and acquiring new activities. 125 In the present case, it should be noted that the applicants themselves acknowledged that PLDS continued to operate on the ODD market and that that market was in decline. It should be further noted that the applicants have not demonstrated that their withdrawal from the market would have led to shortages of supply to the detriment of consumers. 126 Although it is true that the purpose of the fine imposed is to have the necessary deterrent effect, the fact remains that, according to the Court, Article 101 TFEU also aims, like other competition rules laid down in the TFEU, to protect not only the interests of the competitors or of consumers, but also the structure of the market and, in so doing, competition as such (see, to that effect, judgment of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others, C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraphs 62 to 64). 127 However, the applicants cannot rely, in the present case, on the alleged supply shortages and possible price increases to the detriment of consumers for the purposes of applying the exception laid down in point 37 of the Guidelines. Those circumstances, which are purely hypothetical, cannot be regarded as particular for the purpose of that provision, and, accordingly, are not capable of justifying, in themselves, a reduction of the amount of the fine. The fines imposed on undertakings by the Commission pursuant to Article 23(2) of Regulation No 1/2003 would be deprived of their deterrent effect if such difficulties were automatically to be taken into account. 128 In any event, it should be noted, as the Commission observes, that, in order to identify the relevant factors raised by the applicants for the purposes of calculating the amount of the fine, they should be evaluated separately and those that are irrelevant for the purposes of that calculation should be excluded, in order to avoid any unjustified advantage which could limit the deterrent effect of the fine. 129 Therefore, it should be noted that, as is apparent from paragraphs 108 to 123 above, the Commission was right to take the view that none of the three alleged circumstances was, in the circumstances of the case, relevant for a reduction of the amount of the fine under the exception laid down in point 37 of the Guidelines. Accordingly, the Commission was entitled to conclude that the combination of those circumstances was not capable of changing its assessment. 130 In those circumstances, the first complaint must be rejected as unfounded. (b) Second complaint: breach of the principles of equality and proportionality of penalties 131 The applicants claim, first, that the application of the 10% cap in cases involving single-product suppliers gives rise to a risk that the Commission will be prevented from differentiating the fines sufficiently among the cartel participants, calling into question the fairness and proportionality of the fines. The applicants maintain that the fine imposed on TSST ought to have been higher than that which was imposed on them, since, although the basic amounts of those fines were very similar, the applicants benefited from particular circumstances, notably the reduction of their fine by 50% under the leniency granted by the Commission. 132 They claim, second, that the fact that they continued their activities on the ODD market in spite of their financial difficulties ought to have been taken into account by the Commission for the purposes of sufficiently ‘personalising’ the fines imposed on the companies concerned, thus avoiding a proportionality issue. They contend in that regard that a further reduction of their fine under point 37 of the Guidelines would restore the gap between the amount of their fine and the amount of the fine imposed on TSST in such a way that the reduction granted to them under the Leniency Notice would be appropriately reflected. 133 The Commission disputes those assertions and maintains that the applicants rely on a flawed interpretation of the case-law of the Courts of the European Union. 134 In the first place, it should be observed that, as is apparent from Sections 8.3 to 8.5 of the contested decision, all of the adjustments made to reflect the individual gravity of the infringement, the duration of the applicants’ participation in the cartel and their role in the cartel were taken into account by the Commission in calculating the amount of the applicants’ fine. 135 Admittedly, although it is true that the fine imposed on the applicants is the second highest among the companies which were fined –– despite the fact that this amount was reduced by 50% under the Leniency Notice, unlike for the other undertakings that were also fined –– the reason why the applicants received that fine is because they had a much higher turnover for a longer period. Since the proportion of the overall turnover deriving from the sale of products in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (see, to that effect, judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 55), the fact that the applicants received a larger fine than that of the other cartel participants, even if the amount of the fine was reduced by 50% under the Leniency Notice, merely reflects the economic significance and the duration of their own participation in the infringement at issue (see paragraph 112 above). 136 Furthermore, as is apparent from paragraph 129 above, the Commission was right to find that the circumstances invoked by the applicants cannot constitute particular circumstances or circumstances which are necessary to achieve a specific level of deterrence for the purpose of point 37 of the Guidelines. In addition, it should be noted that, as is apparent from the previous paragraph, the fine imposed on the applicants reflects the economic importance and the duration of their own participation in the infringement and, consequently, a reduction based on the alleged circumstances would only limit its deterrent effect and would be contrary to the applicable rules, thus favouring the applicants. 137 In the second place, it should be noted that the limit of 10% of turnover, provided for in Article 23(2) of Regulation No 1/2003, seeks to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined by their total turnover, will not be able to pay. The fact that TSST benefited from that limit when it came to determining the amount of its fine (recital 572 of the contested decision) and that that limit has reduced the gap between the fine imposed on TSST and the fine imposed on the applicants cannot affect the legality of the contested decision in the light of the principles of proportionality and equality. Moreover, the Commission merely applied to the TSST companies the rule stipulated in the applicable competition rules regarding the maximum amount of the fine that can be imposed on the undertakings participating in the infringement. 138 In those circumstances, it must be held that the fine imposed on the applicants does not infringe the principles of equality and proportionality of penalties. 139 Consequently, in so far as it is put forward in support of the claim for annulment, the second complaint must be rejected and, consequently, the second plea must be rejected in its entirety. 140 Accordingly, since none of the pleas of the application is capable of resulting in the annulment in part of the contested decision, that claim for annulment must be rejected. C. The claim for variation of the contested decision 141 As a preliminary point, it should be noted, on the one hand, that the first plea, alleging breach of the principle of sound administration and of the obligation to state reasons cannot, in any event, lead the Court to vary the contested decision. Indeed, even if the Commission wrongly failed to explain why it did not accept the applicants’ request to apply point 37 of the Guidelines or failed to pass that request on to the Advisory Committee and the College of Commissioners, the Court’s finding of those irregularities could lead, where applicable, only to the annulment of the contested decision, but, under no circumstances, to a reduction in the amount of the fine imposed on the applicants. Consequently, in so far as it is put forward in support of the claim for variation, that plea is ineffective. Moreover, as is apparent from the considerations set out in paragraphs 68 to 96 above, the applicants have not established that the Commission committed a breach of the obligation to state reasons or the principle of good administration. 142 On the other hand, as regards the second plea, it should be observed that, as is apparent from paragraphs 101 to 138 above, the Commission did not commit an error of law or an error of assessment in considering that it was not appropriate, in the present case, to apply point 37 of the Guidelines and to depart from the methodology laid down in those guidelines when calculating the amount of the applicants’ fine. 143 Nevertheless, it should be borne in mind that, as regards the review carried out by the European Union judicature in respect of Commission decisions on competition matters, the unlimited jurisdiction authorises the competent court to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend the amount of the fine (judgment of 9 September 2015, Panasonic and MT Picture Display v Commission, T‑82/13, EU:T:2015:612, paragraph 155). 144 In the present case, it is therefore necessary to examine whether the circumstances relied on by the applicants under the second plea may, even in the absence of an error of law or an error of assessment committed by the Commission, justify the Court’s reducing the amount of the fine imposed on the applicants by the contested decision. 145 As regards, in the first place, the particular circumstances in support of their request that the Commission reduce the amount of the fine and which are invoked in the context of the first complaint, it should be noted, first of all, as was observed in paragraphs 110 to 112 above, that the proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market and its economic importance for the applicants’ activities. Consequently, the principles of equality and proportionality do not justify a reduction in the amount of the fine imposed on the applicants, on the ground that, because of the single product nature of their business, the amount of the fine imposed on them represents a higher percentage of their total turnover by comparison with other cartel participants. 146 Next, the applicants’ decision to continue to operate on the ODD market does not justify a reduction in the percentage of the overall turnover that ought to serve as a basis for calculating the amount of the fine. Indeed, as has been pointed out in paragraph 118 above, that decision is a matter relating solely to the applicants’ business strategy. Moreover, as was observed by the Commission in the rejoinder (paragraph 62), the applicants’ market share rose from 25% in 2011 to 39.5% in the fourth quarter of 2015 and they have therefore benefited from the reduced competition. Moreover, nothing justifies, in the light of the principles of proportionality and equality, a reduction of the amount of the fine being applied to companies which remained active on the market to the detriment of those that withdrew from it. Such a practice might, moreover, weaken the deterrent effect of the fines. 147 Lastly, as regards the applicants’ financial difficulties, it should be observed that, as the applicants have stated, they do not claim an inability to pay within the meaning of point 35 of the Guidelines. Furthermore, it is not apparent from the documents before the Court that their financial difficulties would, in the present case, constitute a particularity justifying, by way of exception, that that circumstance be taken into account in calculating the amount of the fine imposed on the applicants, even though they do not claim to be in a situation in which they are unable to pay. Moreover, the applicants do not contest that, as the Commission noted in the defence, they were supported by their parent companies and that, even though they expected a reduction in their profits in 2015, their business remained profitable. The applicants have therefore not established that the amount of the fine imposed on them is a source of financial difficulties for them such that, in the light of the principles of equality and proportionality, they are in a special situation which justifies that amount being reduced. 148 It should be added that, although the applicants submit that the combination of the three circumstances set out in the context of the first complaint must be assessed in order to determine whether there are grounds for a reduction of the amount of their fine, it does not appear that such a combination –– given that each of those circumstances, taken by itself, is not capable of justifying such a reduction –– constitutes a particularity which is capable of altering the assessment of the Court in that regard. 149 As regards, in the second place, the arguments relating to the insufficient ‘personalisation’ of penalties owing to the application of the 10% cap on turnover, relied upon in support of the second complaint, it should first of all be recalled that, as has been noted in paragraph 137 above, the mere fact that the application of the 10% cap to TSST had the effect of reducing the gap between the amount of the fine imposed on TSST and the amount of the fine imposed on the applicants cannot, in itself, justify a reduction of the applicants’ fine in order to make it fair and proportionate. Indeed, that result is merely the consequence of the substantial differences in turnover between the two companies, which is exactly what the application of the 10% cap allows to take into account. 150 However, the applicants argue, relying on the case-law derived from the judgment of 16 June 2011, Putters v Commission (T‑211/08, EU:T:2011:289, paragraph 75), that the Court should exercise its unlimited jurisdiction since, in the present case, the application of the Guidelines does not allow for appropriate differentiation of the fines imposed, in particular, between the applicants and TSST. 151 In the present case, as is apparent from paragraphs 134 to 136 above, the Court cannot apply a different method of calculation to the applicants on the ground that it is appropriate to differentiate sufficiently the amount of their fine from that of the fines imposed on the other undertakings that were fined, as this differentiation is not necessary and would provide an unfair competitive advantage to the applicants by reducing the deterrent effect of their fine. As regards the calculation of the amount of the fine, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see, to that effect, 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 and the case-law cited). 152 In those circumstances, it must be held that none of the circumstances relied on by the applicants justify the Court exercising its unlimited jurisdiction by reducing the amount of the fine, in particular on the basis of point 37 of the Guidelines. 153 The claim for variation must therefore be rejected and, consequently, the action must be dismissed in its entirety. IV. Costs 154 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the applicants have been unsuccessful, the latter must be ordered to bear their own costs and to pay those incurred by the Commission. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Dismisses the action; 2. Orders Hitachi-LG Data Storage, Inc. and Hitachi-LG Data Storage Korea, Inc. to bear their own costs and pay the costs incurred by the European Commission. Gratsias Labucka Ulloa Rubio Delivered in open court in Luxembourg on 12 July 2019. E. Coulon D. Gratsias Registrar President Table of contents I. Background to the dispute A. Applicants and relevant market B. Administrative procedure C. Contested decision 1. The infringement at issue 2. The applicants’ liability 3. The fine imposed on the applicants II. Procedure and forms of order sought III. Law A. The scope of the dispute B. The claim for annulment 1. First plea: breach of the principle of good administration and of the obligation to state reasons (a) The first part: alleging breach of the obligation to state reasons (1) The statement of reasons for the fine imposed on the applicants (2) The Commission’s obligation to state the reasons for not taking into account the particular circumstances alleged by the applicants (b) Second part: breach of the principle of good administration 2. Second plea: error of law (a) First complaint: error of assessment of the particular circumstances alleged by the applicants (1) The fact that the applicants derive the bulk of their revenue from a single product (2) Continuation of business activities on the ODD market (3) Financial difficulties (4) Combination of the three circumstances (b) Second complaint: breach of the principles of equality and proportionality of penalties C. The claim for variation of the contested decision IV. Costs * Language of the case: English. 1 This judgment is published in extract form.