JUDGMENT OF THE GENERAL COURT (Third Chamber)
9 September 2015 (*)
(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 — Single and continuous infringement — Duration of the infringement — Cooperation during the administrative procedure — 2006 Leniency Notice — Reduction of the fine — Calculation of the fine — Taking account of undertakings’ sales according to the place of delivery — Taking account of the average value of sales recorded during the infringement period)
In Case T‑84/13,
Samsung SDI Co. Ltd, established in Gyeonggi-do (Republic of Korea),
Samsung SDI Germany GmbH, established in Berlin (Germany),
Samsung SDI (Malaysia) Bhd, established in Negeri Sembilan Darul Khusus (Malaysia),
represented initially by G. Berrisch, lawyer, D. Hull, Solicitor, and L.-A. Grelier, lawyer, then by D. Hull and L.-A. Grelier, and subsequently by L.-A. Grelier, D. Geradin, J. Ysewyn, P. Camesasca, lawyers, and J. Flynn QC,
applicants,
v
European Commission, represented by A. Biolan, G. Meessen and H. van Vliet, acting as Agents,
defendant,
APPLICATION for annulment in part 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) and for a reduction of the fines imposed on the applicants,
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas (Rapporteur), President, N.J. Forwood and E. Bieliūnas, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written part of the procedure and further to the hearing on 13 November 2014,
gives the following
Judgment
Background to the dispute
1.     Applicants and relevant products
1        The applicants, Samsung SDI Co. Ltd, Samsung SDI (Malaysia) Bhd and Samsung SDI Germany GmbH, are part of a group of undertakings specialising in display and energy products, the Samsung SDI group. The group has four divisions: plasma displays, mobile displays, rechargeable batteries and cathode ray tubes (‘CRTs’). Samsung SDI Co. is the ultimate holding company of the Samsung SDI group. It owns 100% of the shares in Samsung SDI Germany and 68.59% of the shares in Samsung SDI (Malaysia). The main shareholder in Samsung SDI Co. is Samsung Electronics Co. Ltd (‘SEC’), with 19.68% of the shares, while the remaining shares are distributed among numerous stock exchange investors.
2        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.
3        During the relevant infringement period, the Samsung SDI group manufactured and sold CRTs in the European Economic Area (EEA) either directly or through the following subsidiaries: Shenzen Samsung SDI Co., Ltd (CPTs), Tianjin Samsung SDI Co., Ltd (CPTs), Samsung SDI Germany (CPTs), Samsung SDI Hungary Ltd (CPTs), Samsung SDI (Malaysia) (CPTs and CDTs), Samsung SDI Mexico SA de CV (CPTs) and Samsung SDI Brazil Ltd (CDTs).
2.     Administrative procedure
4        On 9 March 2007 Chunghwa Picture Tubes Co. Ltd, which manufactured and sold CRTs, applied to the Commission of the European Communities for a marker, within the meaning of point 15 of the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’). Then, on 23 March 2007, it lodged an oral request for immunity from fines under the Leniency Notice.
5        On 11 November 2007 the applicants submitted a leniency application in accordance with the Leniency Notice.
6        On 23 November 2009 the Commission adopted a statement of objections addressed to the applicants, as well as to Chunghwa Picture Tubes Co., Chunghwa Picture Tubes (Malaysia) Sdn. Bhd and CPTF Optronics Co. Ltd (together ‘Chunghwa’), Koninklijke Philips Electronics NV (‘Philips’), LG Electronics, Inc. (‘LGE’), PT LG Electronics Indonesia Ltd, LG Electronics European Holding BV, Thomson SA, Panasonic Corp., Toshiba Corp. (‘Toshiba’), [confidential], (1) [confidential] and MT Picture Display Co. Ltd.
3.     Contested decision
7        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 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, secondly, to the CPT market (‘the CPT cartel’), and took the form of agreements and concerted practices between CRT producers in order to fix prices, to share markets and customers by allocating sales volumes, customers and market shares, to restrict production, to exchange sensitive commercial information and to monitor the implementation of collusive agreements.
8        As regards, first, the CPT cartel, the Commission found that the participants had agreed on target prices 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. The participants also entered into agreements defining which producer would communicate a price increase to which customer. Moreover, the CPT producers agreed on their respective 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.
9        In recitals 123 to 124 to the contested decision, the Commission stated that, after an initial period during which CPTs had been discussed in the same meetings as those relating to CDTs, in the autumn of 1998 regular multilateral meetings called ‘CPT glass meetings’ began to be held in Asia (‘the Asian glass meetings’) between the Asian undertakings Chunghwa, the applicants, LGE, [confidential] and [confidential], 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 members of the CPT cartel in order to include all the main Asian producers and also the European producers. They were thus joined by [confidential], Matsushita Electric Industrial Co. Ltd (‘MEI’), Philips, Thomson and Toshiba. 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 multilateral 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 the applicants, Matsushita Toshiba Picture Display Co. Ltd (a joint venture formed by Panasonic and Toshiba, ‘MTPD’) and the LPD group (a joint venture formed by LGE and Philips), called ‘SML meetings’, which concerned medium-sized and large CPTs, and, secondly, south-east Asian meetings between the applicants, the LPD group, MTPD, Chunghwa and [confidential], called ‘ASEAN meetings’, concerning small and medium-sized CPTs.
10      The Commission observed that, although the European CPT-related glass meetings were organised and held separately from the Asian glass meetings, the subsidiaries of the same undertakings and occasionally the same individuals had taken part in those meetings with competitors both in Europe and in Asia. Thus, the Commission considered that the European and Asian meetings were interconnected, since the same topics were discussed and the same type of information exchanged, in spite of the fact that the documents relating to the meetings did not describe any joint central organisation. In that regard, the Commission stated that the European glass meetings were an extension of the Asian glass meetings and that 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.
11      As regards, secondly, the CDT cartel, the Commission considered that the parties had agreed on target prices, on the reasons to be given to customers to explain price increases and, in addition, on which producer would communicate such an increase to which customer. Evidence dating from the material time also suggests that increases in CDT prices were sometimes passed on to the downstream market of production of computer monitor tubes. The CDT producers participating in the cartel also entered into agreements relating to market shares. In that context, they agreed that a particular producer would sell its products to a particular customer. In addition, CDT producers agreed on coordinated output restrictions, with a view to reducing oversupply and achieving target prices and the desired market shares. In addition, the participants in the CDT meetings set up a process to monitor compliance with the agreed output restrictions. Furthermore, exchanges of detailed information on past and future pricing, capacity, output and demand formed a large part of the illicit contacts between CDT producers. Those exchanges of information served both to monitor past agreements and to jointly plan future prices, output, market shares and customer allocation.
12      The Commission considered that the multilateral meetings, which were shown to have taken place from 1997 and which had become regular and more formalised from 1998, were the cornerstone of the CDT cartel. The meetings were called ‘five compan[ies]’ meetings, since Chunghwa, the applicants, LGE, Philips and [confidential] regularly took part in them, or ‘CDT glass meetings’. The Commission considered that, from 1998, a three-tier construction had been put in place, consisting of top meetings (also called ‘green meetings’, usually held quarterly, between individuals from the highest levels of the undertakings), management level meetings (monthly meetings conducted by senior sales executives) and working level meetings (in which local sales managers and regional sales managers participated). The CDT producers also maintained frequent bilateral contacts. The Commission noted that, following the transfer of LGE’s and Philips’ CRT business to the LPD group on 1 July 2001, the core of the cartel at issue had reformed around Chunghwa, the applicants, the LPD group and [confidential] and that, from 2003, the number of core members had stabilised at three participants, namely Chunghwa, the applicants and the LPD group. In that respect, contacts with Japanese competitors, in particular MEI, Toshiba and [confidential], were a specific feature of the CDT cartel.
13      As regards, thirdly, the initial applicants’ involvement in the cartels in question, the Commission considered that Samsung SDI Co. had participated in the CPT cartel directly and through its subsidiaries Samsung SDI Germany and Samsung SDI (Malaysia). It also considered that Samsung SDI Co. had participated in the CDT cartel directly and through its subsidiary Samsung SDI (Malaysia).
14      Articles 1 and 2 of the operative part of the contested decision read as follows:
‘Article 1
1.      [The undertakings in question] 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 [CDT sector]:
…
(b)       Samsung SDI Co. …, Samsung SDI (Malaysia) Berhad, from 23 November 1996 until 14 March 2006.
…
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 [CPT sector]:
…
(b)      Samsung SDI Co. …, Samsung SDI (Malaysia) Berhad, Samsung SDI Germany GmbH, from 3 December 1997 until 15 November 2006.
…
Article 2
1.      For the infringements referred to in Article 1(1), the following fines are imposed:
…
(b)      Samsung SDI Co. …, Samsung SDI (Malaysia) Berhad, jointly and severally liable: EUR 69 418 000;
…
2.      For the infringements referred to in Article 1(2), the following fines are imposed:
…
(b)      Samsung SDI Co. …, Samsung SDI (Malaysia) Berhad, Samsung SDI Germany …, jointly and severally liable: EUR 81 424 000;
…’
Procedure and forms of order sought
15      By application lodged at the Court Registry on 14 February 2013, the applicants brought the present action.
16      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.
17      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, requested the Commission to produce a number of documents and put a question to the applicants. The applicants complied with that request within the prescribed period.
18      By order of 24 October 2014, the Court (Third Chamber) ordered the Commission to produce a number of documents. The Commission produced those documents within the prescribed period.
19      The parties presented oral argument and answered the questions put by the Court at the hearing on 13 November 2014. At the hearing, the parties were asked to submit any observations on the judgment of the Court of Justice 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.
20      By letters lodged at the Court Registry on 19 and 28 November 2014 respectively, the applicants and the Commission complied with that request.
21      By letter lodged at the Court Registry on 17 November 2014, in response to a request made by the Court (Third Chamber) at the hearing, Samsung SDI Co. and Samsung SDI (Malaysia) informed the Court that Samsung SDI Germany had been dissolved on 1 August 2014 and that the two applicants would continue the proceedings.
22      In the context of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court (Third Chamber) requested the Commission to produce a document. The Commission complied with that request.
23      The oral part of the procedure was closed on 5 December 2014.
24      The applicants claim that the Court should:
–        as regards the CPT infringement:
–        primarily, annul Article 1(2) and Article 2(2) of the contested decision in so far as they concern the applicants;
–        in the alternative, annul Article 1(2) of the contested decision in part, in so far as it finds that the applicants participated in the CPT infringement before 24 November 1998 and after 12 June 2006 and reduce the fine imposed by Article 2(2) of that decision;
–        as regards the CDT infringement, reduce the fine imposed by Article 2(1) of the contested decision;
–        order the Commission to pay the costs.
25      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
Law
26      As a preliminary point, it must be noted that, since the applicants indicated to the Court that Samsung SDI Germany had been dissolved on 1 August 2014, there is no need to rule on the present action in so far as it concerns that company.
27      Beyond that, it must be noted that the applicants raise pleas in law and put forward claims concerning (i) the CPT cartel and (ii) the CDT cartel.
1.     The CPT cartel
28      It is appropriate to examine, first of all, the claims whereby the applicants seek annulment of Article 1(2) and Article 2(2) of the contested decision in so far as they relate to the applicants and, subsequently, the claims, raised in the alternative, whereby they request the Court, first, to annul Article 1(2) of the contested decision in part, in so far as it finds that the applicants participated in the CPT infringement before 24 November 1998 and after 12 June 2006 and, secondly, to exercise its unlimited jurisdiction and vary, by reducing it, the fine imposed by Article 2(1) of that decision.
The claims seeking annulment of Article 1(2) and Article 2(2) of the contested decision, in so far as they concern the applicants
29      In support of those claims, the applicants raise a single plea in law, alleging that the Commission wrongly considered that the infringements of competition law which it had established constituted a single and continuous infringement affecting all types and sizes of CPTs throughout the duration of the infringement and including the collusive contacts in Asia (‘the Asian arrangements’).
The admissibility of the single plea in law
30      The Commission submits that, as regards that plea, most of the applicants’ arguments are set out in the annexes to the application and are therefore inadmissible.
31      The applicants dispute that line of argument. They assert that, in accordance with the Rules of Procedure of 2 May 1991, they have set out, clearly and precisely, in the body of their application, the essential elements of fact and law on which they rely.
32      In that respect, it should be borne in mind that, under Article 44(1)(c) of the Rules of Procedure of 2 May 1991, an application must indicate the subject-matter of the proceedings and summary of the pleas in law on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to decide the case, if appropriate without other information (Case T‑340/03 France Télécom v Commission [2007] ECR II‑107, paragraph 166).
33      According to settled case-law it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (Case C‑52/90 Commission v Denmark [1992] ECR I‑2187, paragraph 17; orders in Case T‑56/92 Koelman v Commission [1993] ECR II‑1267, paragraph 21, and in Case T‑154/98 Asia Motor France and Others v Commission [1999] ECR II‑1703, paragraph 49). The annexes may be taken into consideration only in so far as they support or supplement pleas or arguments expressly set out by applicants in the body of their pleadings and in so far as it is possible to determine precisely what are the matters they contain that support or supplement those pleas or arguments (see, to that effect, Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 99).
34      Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (Case T‑84/96 Cipeke v Commission [1997] ECR II‑2081, paragraph 34, and Case T‑231/99 Joynson v Commission [2002] ECR II‑2085, paragraph 154).
35      That interpretation of Article 44(1)(c) of the Rules of Procedure of 2 May 1991 also applies to the reply (Microsoft v Commission, cited in paragraph 33 above, paragraph 95).
36      In the present case, it can be seen from the documents in the file that the applicants set out their arguments in part in the body of their pleadings and in part in the annexes. As regards the arguments and complaints made against the Commission’s interpretation of the content of certain meetings of the CPT cartel, the applicants refer the Court to tables contained in the annexes, in which they put forward their own interpretation of the meetings in question, the interpretation of other meetings being set out in the body of their pleadings. It was noted in paragraph 33 above that the annexes may be taken into consideration only in so far as they support or supplement pleas or arguments expressly set out by applicants in the body of their pleadings. Accordingly, the present plea in law is admissible in so far as the applicants’ arguments are set out in the body of their written pleadings. It follows that the arguments and complaints relating to the meetings in question which are set out in documents annexed to the application are inadmissible.
The substance of the single plea in law
37      That plea in law is composed, in essence, of two parts, alleging (i) that the Commission failed to prove the existence of a single and continuous infringement affecting all types and sizes of CPT and (ii) that the Commission wrongly considered that the Asian arrangements should be included in the single and continuous infringement.
–       The first part, alleging that the Commission did not prove the existence of a single and continuous infringement affecting all types and sizes of CPT
38      The applicants submit, in essence, that the CPT cartel did not constitute a single and continuous infringement but was actually composed of several separate infringements, each covering certain specific types of CPT.
39      It must be noted that it can be seen from recital 662 to the contested decision that the Commission considered that the meetings and collusive contacts concerned various CPT sizes and gave rise to commercially sensitive discussions concerning all sizes and types of CPT. The Commission acknowledged, in recital 663 to that decision, that certain meetings were focused more on one or several specific CPT sizes, but considered that there was an overall scheme that was followed. Lastly, although the Commission admitted, in recital 664 to that decision, that the focus of the cartel had gradually shifted towards larger CPT sizes, it also stated that this was a natural consequence of the market development, which had not led to any change in the overall pattern of the cartel, since the parties had continued to discuss all CPTs.
40      In that respect, it should be recalled that, according to the case-law, an infringement of Article 101(1) TFEU may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 81, and Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57).
41      The concept of ‘single infringement’ assumes conduct adopted by different parties that pursues the same anticompetitive aim (Case T‑1/89 Rhône-Poulenc v Commission [1991] ECR II‑867, paragraphs 125 and 126, and 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 3699). The fact that the various actions of the undertakings form part of an ‘overall plan’, because their identical object distorts competition within the internal market, is decisive for the finding of a single infringement (see, to that effect, Aalborg Portland and Others v Commission, cited in paragraph 40 above, paragraphs 258 and 260).
42      In addition, it can be seen from the case-law that, in order to establish that there has been a single and continuous infringement, 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 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 (Commission v Anic Partecipazioni, cited in paragraph 40 above, paragraph 87).
43      Furthermore, it must be noted that, when determining whether there has been a single infringement and an overall plan, the Court may take into account the at least partial identity of the undertakings concerned and the fact that they are aware that they are participating in the common object of the unlawful conduct (Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 185, and Case T‑446/05 Amann & Söhne and Cousin Filterie v Commission [2010] ECR II‑1255, paragraph 89).
44      Likewise, for the purposes of characterising various unlawful actions as a single and continuous infringement, it is necessary to establish whether they display a link of complementarity, in that each of them is intended to deal with one or more consequences of the normal pattern of competition and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective. In that regard, it will be necessary to take into account any circumstance capable of establishing or of casting doubt on that link, such as the period of implementation, the content (including the methods used) and, correlatively, the objective of the various unlawful actions in question (Amann & Söhne and Cousin Filterie v Commission, cited in paragraph 43 above, paragraph 92; see also, to that effect, Joined Cases T‑101/05 and T‑111/05 BASF and UCB v Commission [2007] ECR II‑4949, paragraphs 179 to 181).
45      Conversely, the concept of a single objective cannot be determined by a general reference to the distortion of competition in the market concerned by the infringement, since an impact on competition, whether it is the object or the effect of the conduct in question, constitutes an essential element of any conduct covered by Article 101(1) TFEU. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited under Article 101(1) TFEU would have to be systematically characterised as constituent elements of a single infringement (Amann & Söhne and Cousin Filterie v Commission, cited in paragraph 43 above, paragraph 92).
46      It is necessary to examine, in the light of those considerations, whether the Commission was entitled to consider that all the anticompetitive contacts that it found formed part of an overall plan which constituted a single and continuous infringement.
47      First of all, as regards the commonality of the participants, it can be seen from the evidence in the file that, although some undertakings did not participate in all the meetings, several of them constituted the core of the cartel and participated in most of the meetings.
48      Thus, in recitals 123 and 124 to the contested decision, it is mentioned that the Asian glass meetings were held in autumn 1998 between the Asian undertakings Chunghwa, the applicants, LGE, [confidential] and [confidential]. 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, and they were thus joined by [confidential], MEI, Philips, Thomson and Toshiba. Furthermore, in 2002-2003, the Asian glass meetings changed form and were then organised on two platforms for CPT producers based in Asia. Those platforms consisted, first, of SML meetings, concerning medium-sized and large CPTs, held between the applicants, MTPD and the LPD group, and, secondly, ASEAN meetings, concerning small and medium-sized CPTs, held between the applicants, the LPD group, MTPD, Chunghwa and [confidential]. Lastly, the multilateral European meetings were organised separately from the Asian meetings, but the subsidiaries of the same undertakings (namely Philips and then the LPD group, [confidential] or Chunghwa) and, occasionally, the same individuals took part in them.
49      It must therefore be held that the same undertakings participated in the SML meetings, concerning medium-sized and large CPTs, as in the ASEAN meetings, concerning small and medium-sized CPTs.
50      Secondly, as regards, the objective pursued by the participants in the CPT cartel, it can be seen from the file that they agreed on target prices 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 a price increase to which customer. In addition, the CPT producers agreed on their market shares and agreed on coordinated output restrictions in order to reduce oversupply and increase or maintain prices. Lastly, the cartel participants exchanged commercially sensitive information. It is undisputed that those objectives applied to all CPTs.
51      Thirdly, as regards the method of operation of the CPT cartel, the Commission found that the CPT meetings were generally held on a quarterly, or even monthly, basis. In addition to the multilateral meetings, there were frequent bilateral contacts and recurrent exchanges of sensitive information concerning the 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. Those methods of operation were the same irrespective of the types or sizes of CPT in question.
52      It follows from the foregoing that there is a link of complementarity between the various instances of conduct in question and that they form part of an overall plan. Accordingly, the Commission was entitled to characterise them as a single and continuous infringement.
53      That conclusion is not affected by the applicants’ arguments.
54      In the first place, the applicants submit that the Commission could not conclude that there was a single and continuous infringement in the present case, since CPTs do not constitute a homogeneous category of products and belong to distinct product markets.
55      In that regard, it must be pointed out that, for the purpose of the case-law cited in paragraphs 40 to 45 above, the fact that the anticompetitive practices concern products which, although similar, are of different types and sizes cannot prevent the Commission from concluding that those practices constitute a single infringement, provided that the conduct concerning different markets forms part of an overall plan of which the participants are aware. It has been indicated in paragraph 52 above that that was the case here. Accordingly, that argument must be rejected.
56      In the second place, the applicants allege that a number of CPTs were not the subject of anticompetitive discussions, or only on a very limited number of occasions. Furthermore, they submit that, as regards the CPTs which were the subject of anticompetitive discussions, those discussions took place at different periods, with the result that they cannot form part of a single and continuous infringement.
57      As regards the first argument, it must be pointed out that it can be seen from the table produced by the applicants themselves that, contrary to what is suggested in the application, all CPTs were the subject, to various degrees, of contacts between undertakings. That table indicates that all CPTs were the subject of either ‘hardcore discussions’ or exchanges of sensitive information.
58      In that respect, the applicants submit, first, that the exchange of commercial information does not constitute anticompetitive conduct and therefore concludes that the Commission should not have included the CPTs which were the subject of such exchanges — namely 10-inch curved screen CPTs, 15-inch flat screen CPTs, 16-inch curved screen CPTs, 17-inch flat screen CPTs, 25-inch flat screen CPTs, 29-inch slim screen CPTs and 32-inch slim screen CPTs — in the single and continuous infringement.
59      On that point, it must be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the internal market (see Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 32 and the case-law cited).
60      While that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, none the less, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (see T-Mobile Netherlands and Others, cited in paragraph 59 above, paragraph 33 and the case-law cited).
61      It follows that the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted (see T-Mobile Netherlands and Others, cited in paragraph 59 above, paragraph 35 and the case-law cited).
62      In the present case, the applicants neither establish, nor even allege, that the exchanges of information in relation to the types of CPT listed in paragraph 58 above were not liable to be incompatible with the competition rules, within the meaning of the case-law cited in paragraph 61 above. That argument must therefore be rejected.
63      The applicants submit, secondly, that, in general, the Commission exaggerated the scope of the exchanges of information in the context of the CPT cartel in order to be able to include all CPTs in a single and continuous infringement.
64      First of all, the applicants submit that, in many instances, the information exchanged relating to the European CPT market was of a general nature and could, in most cases, be inferred from other sources such as market research institutes. The applicants refer, by way of example, to the meeting of 26 October 2001, in which the participants discussed some information relating to the capacity and production lines of European factories. They also refer to the meeting of 7 April 2004, in which they communicated data that could have been obtained from information concerning the display market provided by market research institutions (statistics prepared by an audit firm).
65      In that regard, it must be noted that, as the Commission rightly points out, the applicants merely refer to market research institutes without establishing that the information exchanged at the meetings to which they refer could have been obtained from those institutes. In addition, the Commission states, without being contradicted, that a member of the cartel confirmed, in an oral statement, that as regards the global statistics relating to CPTs, the information provided by each competitor was not disseminated to the participants in a detailed form, but was aggregated in advance by an audit firm, with the result that the information which the applicants could have obtained in that way was not as precise as that obtained in the meetings with other participants in the CPT cartel.
66      Thus, as regards the meeting of 7 April 2004, to which the applicants refer, it must be held that it can be seen from the presentation made by the applicants in that meeting that they communicated to the other participants their production volumes for 2002 and 2003 as well as the estimated production volume for 2004. The applicants have not produced any evidence capable of establishing that those participants could have obtained such precise information through the market research institutes to which the applicants refer. Moreover, it must be noted that, during that meeting, the applicants presented their solutions for how to ‘survive’ in Europe, which consisted in avoiding price competition, reducing the importation of CRTs and respecting the captive market of each company. The participants in that meeting therefore discussed matters which clearly constituted anticompetitive practices.
67      The applicants also refer to the meeting of 26 October 2001, during which information on the production capacities of certain participants in the cartel by country and type of CPT were exchanged. Once again, the applicants have not demonstrated that those participants could have obtained that type of information through the market research institutes to which they refer. In addition, it must be noted that the minutes of that meeting confirm that the exchanges at issue pursued the same objectives as the other collusive contacts since, during that meeting, reference was made to the need to avoid competition between CPT prices by controlling, inter alia, production capacities.
68      Lastly, the applicants contend that, in recitals 465 and 466 to the contested decision, the Commission, in order to confirm its definition of the products concerned by the cartel, relied on documentary evidence exchanged during bilateral contacts with Thomson consisting of spreadsheets listing various sizes and types of CPT, along with market information. According to the applicants, the source of the information underlying some of those spreadsheets is unclear, since the Thomson employee who prepared those spreadsheets never took part in the Asian or European arrangements and her role primarily consisted in determining the size of the market. In any event, the applicants submit that that type of exchanges does not demonstrate that each size and type of CPT was covered by the cartel.
69      First of all, as regards the applicants’ question concerning the sources of the information exchanged during the contacts listed in recitals 465 and 466 to the contested decision, namely an e-mail sent by a Samsung employee on 16 November 2000, an e-mail sent to Samsung on 3 May 2001, and an e-mail sent to an employee of the LPD group on 25 October 2004, it must be pointed out that the applicants do not call into question the accuracy of that information, which concerned, respectively, the quantity of CPTs of various types or sizes produced by the applicants in 1999 and in 2000 as well as the production estimates for 2001, total, regional and global demand for various CPT types and sizes for 2000 and 2001 and data relating to CPT production by several cartel participants, including the applicants, in Asia as well as in Europe.
70      Furthermore, the argument that the documentary evidence exchanged during the bilateral contacts with Thomson does not demonstrate that each size and type of CPT was affected by the cartel is, by itself, irrelevant to the Commission’s finding in that respect, since it is undisputed that the Commission relied on a very significant number of collusive contacts involving the applicants in order to establish that that was the case.
71      Lastly, the applicants submit that, in the limited instances where more sensitive information was discussed, the evidence — namely the minutes of the meetings of 11 November 1999, 12 November 2001, 28 November 2003 and 5 November 2004 — show that those exchanges primarily focused on specific types of CPT.
72      However, since it can be seen from paragraph 57 above that all CPTs were the subject, to various degrees, of contacts between undertakings, and from paragraphs 47 to 51 above that those various instances of conduct displayed a link of complementarity and formed part of an overall plan, the Commission was entitled to consider that all of the conduct at issue constituted a single and continuous infringement. Accordingly, that argument must be rejected.
73      Secondly, as regards the argument alleging that the contacts between undertakings took place at different periods according to the type of CPT in question, it must be emphasised that, in the context of an infringement extending over a number of years, the fact that the cartel reveals itself at different periods, which may be separated by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement (see Case C‑441/11 P Commission v Verhuizingen Coppens [2012], ECR, paragraph 72 and the case-law cited).
74      In the third place, the applicants state that it can be seen from recital 468 to the contested decision that the Commission misconstrued the statements made on 28 February, 7 March and 20 June 2008 as well as on 12 March 2009 in the context of their leniency application. The applicants argue that the references, in certain parts of those statements, to CPTs in general, that is to say without drawing a distinction on the basis of their types or sizes, does not mean that the cartel concerned all CPTs, but was intended solely to distinguish between CPTs and CDTs. Furthermore, they submit that they never stated, in their oral statements, that all CPTs were covered by the cartel. Lastly, they argue that the fact that certain trends pertaining to new types of CPTs were discussed does not mean that all types of CPTs were discussed.
75      In that respect, it must be noted that the arguments put forward by the applicants, even if they were established, have no effect on the characterisation of the facts found by the Commission in the contested decision. The applicants invoke a single recital in the contested decision whereas the Commission relied on a particularly large body of evidence in order to make its decision. In any event, it must be noted that the applicants do not allege that the Commission erred in transcribing their oral statements but merely submit that the fact that they did not, in certain parts of those statements, expressly make a distinction between different types of CPT does not mean that the cartel covered all CPTs, whereas the Commission drew the opposite inference from the failure to make that distinction.
76      In the fourth place, the applicants argue that the existence of a single and continuous infringement is not consistent with the structure of the collusive contacts found in the contested decision, which rather supports the idea that there were several separate infringements. According to the applicants, the fact that different meetings involving different participants were held at different times and focused on specific types of CPTs is inconsistent with the existence of a single and continuous infringement.
77      In that regard, it has been noted in paragraphs 47 to 51 above that, even if the CPT cartel were composed of several infringements, those infringements nevertheless display a link of complementarity and form part of an overall plan, because their identical object distorts competition within the internal market. Accordingly, the present complaint must be rejected.
78      The applicants also submit that, as noted in recital 129 to the contested decision, the European meetings were often organised separately for different CPT sizes and the participants differed to a certain extent depending on the products they were selling in Europe. They add that, in Asia, the SML meetings were focused on medium and large CPTs whereas the ASEAN meetings concerned primarily small and medium CPTs.
79      Nevertheless, it must be emphasised that an undertaking which took part in a single and continuous infringement through conduct of its own, which fell within the concept of an agreement or concerted practice with an anticompetitive object for the purposes of Article 101(1) TFEU, and which was intended to help bring about the infringement as a whole, is also responsible, throughout the entire period of its participation in that infringement, for the conduct of other undertakings in the context of the same infringement (Commission v Anic Partecipazioni, cited in paragraph 40 above, paragraph 83).
80      Accordingly, the fact that all the undertakings did not participate in all the meetings does not necessarily mean that there were separate infringements, since the collusive contacts found by the Commission formed part of an overall plan within the meaning of the case-law cited in paragraph 41 above.
81      In the fifth place, the applicants submit that, since the Commission failed to demonstrate that the CPTs which were not discussed were nevertheless affected by the collusion in relation to the other CPTs, it could not include them in the single and continuous infringement.
82      However, it has been indicated, in paragraph 57 above, that all CPTs were the subject of collusive contacts which constituted a single and continuous infringement. Accordingly, the premiss on which the present argument is based is incorrect and that argument, as well as the first part of the single plea in law in its entirety, must be rejected.
–       The second part of the single plea in law, alleging that the Commission wrongly considered that the Asian arrangements formed a single and continuous infringement with the European arrangements
83      The applicants submit, in essence, that the Commission wrongly considered that there was a global cartel in relation to CPTs and that the Asian arrangements were interconnected with the European arrangements and formed part of the single and continuous infringement.
84      It can be seen from recital 658 to the contested decision that the Commission concluded that the contacts in both Asia and Europe were carried out in pursuit of a single anticompetitive economic aim: to fix prices, allocate market shares and restrict output. The Commission also considered that the collusive contacts in Europe and Asia were linked, in the sense that the participants in each geographic area had followed the CPT prices, production and capacities, had exchanged information and had followed the collusive agreements concluded in the other geographic area. It added that certain decisions on prices relating to one geographic area were taken in the other geographic area. Lastly, it indicated that the subsidiaries of the same undertakings and occasionally the same individuals had taken part in meetings with competitors both in Europe and in Asia. For all of those reasons, the Commission took the view that the collusion in Europe and in Asia could not function in isolation, but was interrelated.
85      As a preliminary point, it must be noted that the applicants do not dispute that the participants in the Asian meetings sometimes entered into pricing and production/capacity reduction arrangements concerning certain specific types or sizes of CPT in relation to Europe. However, the applicants argue that those arrangements were limited to certain specific CPT sizes and to certain periods.
86      In the first place, the applicants submit that the allegation that the CPT cartel was global in scope is wrong since it overstates the geographic scope of the CPT arrangements. According to the applicants, the majority of the arrangements entered into at the Asian meetings were of no relevance to the European market and were not implemented in Europe, and the Commission had no jurisdiction over those arrangements.
87      In that regard, it must be noted that the applicants merely allege that the anticompetitive activities were ‘predominantly’ or ‘largely’ regional in scope.
88      It is clear from the contested decision that the Commission shared that view. It can be seen from recital 671 to that decision that, although the main focus of the agreements in Europe and in Asia was on their respective regions, those agreements were nevertheless interconnected in many ways. Thus, the parties discussed European prices in Asian meetings, namely the meetings of 25 November 1999, 25 October 2000 and 10 February 2003, and Asian prices in a European meeting, namely the meeting of 26 November 1999. In addition, the parties concerted on capacity reductions in Asia that would facilitate the price increase efforts of the cartel members in Europe and set worldwide target market shares and supply quotas, at the meetings of 10 February and 30 May 2003. Lastly, the participating undertakings were identical, even if some of them joined the cartel later than others or ceased to participate earlier due to the discontinuation or sale of their business. Accordingly, the fact that the agreements at issue were focused mainly on their respective regions does not mean that those agreements were not interconnected in many ways and did not pursue a single anticompetitive aim.
89      In the second place, the applicants challenge the Commission’s finding in the contested decision that there were ‘pricing interconnections’.
90      First, they argue that, in numerous instances, the Commission erroneously found that the prices or price guidelines coordinated at Asian meetings were meant also to apply to Europe to specific European customers, when, according to the applicants, it is clear from the evidence that these arrangements were limited to the Asian market.
91      In order to support their line of argument, the applicants mainly make a general reference to Annex 7 to the application, composed of a table recording several collusive meetings and the applicants’ interpretation of that table. It was recalled in paragraph 33 above that the annexes may be taken into consideration only in so far as they support or supplement pleas or arguments expressly set out by applicants in the body of their pleadings. In those circumstances, the applicants’ arguments which are developed or supported in the annexes to the application may be taken into consideration only in so far as they are actually set out in their pleadings.
92      In that respect, it must be pointed out that, in support of the line of argument developed in their pleadings, the applicants refer, by way of example, to seven meetings, with the aim of establishing that the agreements entered into at those Asian meetings concerned only the Asian market or certain Asian customers. At the outset, it must be noted that even if those seven meetings did not demonstrate the existence of a link between the Asian meetings and the European meetings, that would not mean that all the collusive contacts found by the Commission in the contested decision, taken as a whole, do not establish the existence of that link.
93      As regards the meeting of 15 April 1999, it can be seen from the minutes produced in annex to the application that that meeting was not limited to the Asian market, since the analysis of the market situation covered the Russian market and referred, inter alia, to a global shortage in the third quarter, and moreover, during that meeting, the issue of certain ‘special’ customers with factories in Europe was also discussed. In that respect, the applicants contend that the presence in Europe of factories belonging to some of their customers is not sufficient to establish that the Asian meetings also concerned Europe. However, it must held, on the contrary, that that circumstance is evidence of the link between the Asian and European arrangements. The anticompetitive discussions at the meetings between the participants and, inter alia, at the meeting of 15 April 1999, were intended to apply to all the factories of the special customers, including, therefore, those located in Europe.
94      As regards the meeting of 24 January 2000, it can be seen from the first page of the minutes of that meeting that the parties exchanged information on their production, inter alia in Europe. Thus, Chunghwa provided data on its production in the United Kingdom and the applicants on their production in Germany.
95      As regards the meeting of 5 September 2003, it is not disputed that it can be seen from the minutes of that meeting that price guidelines were set by mutual agreement for certain customers, including some possessing factories in Europe, which supports the Commission’s position that the Asian meetings did not concern only Asia, since, in that specific case, those guidelines were intended to be applied to certain European factories.
96      As regards the meeting of 16 February 2004, the minutes produced by the applicants include, inter alia, references to production capacities in Europe.
97      Lastly, in the minutes of the meeting of 16 March 2004, there is a table showing the development of the price increase of 14-inch CPTs and containing a comment stating that the Japanese, European and American customers were ‘the most difficult’ as regards a price increase.
98      It follows from the foregoing that references to the European market formed part of the agenda of the meetings in question, which were therefore not limited to discussions relating to the Asian market alone.
99      Secondly, the applicants state that the Commission misinterpreted a number of discussions that took place at the European meetings in which the issue of Asian prices was discussed. According to the applicants, those discussions were not intended to maintain an alleged price gap between Europe and Asia, but were rather updates on the general situation of the CPT sector.
100    In that respect, it can be seen from the minutes of the meeting of 11 November 1999, to which the applicants refer, that the market situation and the future plans of the parties to the cartel at the global level were examined as regards supply and demand, price levels and production lines. Moreover, contrary to what is claimed by the applicants, reference is made, inter alia, to the price gap at the end of the minutes of that meeting. Furthermore, as regards the meeting of 30 October 2000, it can be seen from the handwritten minutes of that meeting, produced by the applicants, that the European and worldwide prices of CPT of various sizes were examined and the fact that a percentage price increase was proposed for each type of CPT further indicates that this was an attempt to take into account the global prices, including the Asian prices, in order to set the amount of the increase in Europe rather than a simple update on the general situation of the CPT sector, as the applicants suggest.
101    In the third place, the applicants state, first, that, on numerous occasions, the Commission misconstrued the evidence as to whether the participants in the Asian meetings had considered some capacity reductions or supply quotas that would affect the European market. In support of their line of argument, the applicants refer to the meetings of 27 October and 11 November 1999, 18 June 2004 and 29 April 2005.
102    First of all, it must be noted that, as regards those meetings, the applicants develop arguments in a table contained in an annex to the application. For the reasons set out in paragraph 91 above, those arguments are inadmissible.
103    Next, it can be seen from the minutes of the meeting of 27 October 1999 that, during the examination of the price strategy for the following year, the participants noted an upwards price trend in the European and American markets due to the capacity reduction in Asia. Moreover, it is specified inter alia in the minutes of the meeting of 18 June 2004 that the supply and demand for 14-inch CRTs would continue to be balanced through the following year because of a reduction in Chunghwa’s production capacity of 14-inch CPTs. That document stated that the LPD group’s Spanish factory would be completely shut down in 2005 and that its production capacity in that year would therefore be cut to zero, from its planned production in 2004 of approximately 2.3 million units. Those two meetings constitute evidence that the participants in the CPT cartel discussed the impact on the global CPT market in general and on the European prices in particular, of production capacity levels of different world regions.
104    In addition, it can be seen from the minutes of the meeting of 29 April 2005 that, although the Commission mentioned that meeting, in recital 671 to the contested decision, in order to illustrate the impact of changes in production capacity in one geographic region on the global CPT market, it must be held that that meeting also demonstrates, as is clear from recital 443 to that decision, the influence of prices in one world region on prices in another region.
105    Lastly, the meeting of 11 November 1999 cannot support the applicants’ line of argument criticising the Commission’s interpretation of the Asian meetings, since, as the Commission points out in the defence, it was a European meeting.
106    It follows from the foregoing that the applicants have not established that the Commission committed an error in considering that those meetings, and, in particular, those of 27 October 1999 and 18 June 2004, illustrate the fact that the participants in the CPT cartel discussed the impact, on the global CPT market in general and on the European prices in particular, of the levels of production capacity in certain world regions.
107    Secondly, the applicants submit that, in reality, most capacity- or production-related discussions at the Asian meetings that touched upon European or worldwide issues were limited to general passing references to the difficult market situation in Europe or globally.
108    In that respect, it must be noted, first of all, that it can be seen from the minutes examined in paragraph 103 above that, as regards the meetings referred to in that paragraph, the applicants’ argument has no basis in fact. Furthermore, the applicants refer to only two meetings in support of their line of argument whereas it can be seen from the contested decision that the issue of production capacities at the worldwide or European level were discussed in other meetings such as, for example, the meeting of 10 February 2003, examined in recitals 387 and 388 to the contested decision. Lastly, the very wording of the applicants’ argument is devoid of evidential value, since it refers to ‘most … discussions’, which implies that, as regards at least some of them, the applicants’ argument is unfounded.
109    In those circumstances, the applicants’ argument alleging that the interconnectedness of the Asian arrangements and the European arrangements as regards capacities and production was actually limited and restricted to certain types of CPT must be rejected.
110    In the fourth place, the applicants submit that the Commission exaggerated the existence and scope of the commercial information exchanged in Asia in relation to the EEA in order to support its finding of a general link between the conduct in Asia and that in Europe.
111    First, the applicants argue that a large portion of the documents concerning the Asian meetings relied on by the Commission do not contain evidence of discussions relating to the European market. The applicants add that, where the European market is mentioned, the statements are typically general in nature or passing references in relation to market development, supply and demand, production or manufacturing plants, quite often focusing on specific CPT sizes or types.
112    In that regard, it must be recalled that, according to settled case-law on the burden of proof, it is for the party or the authority alleging an infringement of competition law to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement, and it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such a defence are satisfied, so that the authority will then have to resort to other evidence (see Case T‑154/09 MRI v Commission [2013] ECR, paragraph 100 and the case-law cited).
113    That apportionment of the burden of proof may vary, however, inasmuch as the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (see MRI v Commission, cited in paragraph 112 above, paragraph 101 and the case-law cited).
114    It should also be noted that, as regards judicial review of a Commission decision in which the Commission establishes the existence of an unlawful cartel, it is settled case-law that, where the Court hears an action for the annulment of such a decision, it must undertake a general, comprehensive review in order to establish whether the conditions for applying Article 101 TFEU are met (Case 42/84 Remia v Commission [1985] ECR 2545, paragraph 34, and Case T‑41/96 Bayer v Commission [2000] ECR II‑3383, paragraph 62).
115    In that respect, it must be recalled that the role of the Court when hearing an application for annulment of a Commission decision finding the existence of an infringement of the competition rules and imposing fines on the addressees is to assess whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the alleged infringement (see 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, paragraphs 174 and 175). Where there is doubt, the benefit of that doubt must be given to the parties to whom the decision is addressed, and consequently the court cannot conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains doubts on that point (JFE Engineering v Commission, paragraph 177, and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 215).
116    Thus, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place. However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the set of indicia relied on by the institution, viewed as a whole, meets that requirement (see Groupe Danone v Commission, cited in paragraph 115 above, paragraphs 217 and 218 and the case-law cited).
117    In the present case, it must be pointed out, first of all, that, as the Commission rightly notes, the issue of the exchange of information relating to the EEA at the Asian meetings was examined, inter alia, in recitals 486 and 668 to 670 to the contested decision, in which numerous collusive contacts were mentioned. The applicants refer to only five of them in support of their line of argument, with the result that, even if the Commission had committed an error in assessing the documents relating to those five meetings, that would not mean that the applicants’ argument was well founded.
118    Furthermore, it can be seen from the analysis of the Asian meetings highlighted by the applicants, namely those of 7 March 1999, 13 July 2000, 20 November 2001, 5 September 2003 and 6 May 2004, that all of those meetings show exchanges of information relating to the European market and that at least one of them, namely the meeting of 13 July 2000, cannot be categorised as ‘general discussions on the European market’, since the participants discussed, on that occasion, export prices adopted by certain undertakings and confirmed the existence of guidelines for export prices, inter alia as regards Europe.
119    Secondly, the applicants allege that, during the European meetings, the exchanges concerning the Asian market were not a formal part of the agenda, but arose instead from general comments about the state of the CPT sector.
120    In that respect, it must pointed out that the applicants merely refer to the European meeting of 26 November 1999. First of all, the fact that the agenda of a meeting does not mention exchanges concerning the Asian market does not mean no discussions in relation to that market took place during the meeting in question. Moreover, and in any event, the fact that the agenda of that single meeting does not mention the Asian market is not sufficient to call into question the existence of a general link between the collusive conduct in Asia and in Europe.
121    Thirdly, the applicants argue that, in those limited instances where more sensitive information concerning Europe was discussed at the Asian meetings, the evidence — namely a chart drawn up by the applicants and the minutes of the meeting of 6 December 2005 — show that those exchanges of information focused on certain specific CPTs and concerned specific periods.
122    That argument cannot be regarded as being sufficiently established by the production of a chart, drawn up by the applicants, submitted to the Commission during the applicants’ oral statement of 15 March 2010.
123    Moreover, the applicants refer to the meeting of 6 December 2005, in which only 21-inch CPTs for flat screens were discussed. However, that is not enough to establish that all of the evidence concerning Europe shows that the exchanges of information related to certain specific CPTs and concerned specific periods.
124    It follows from the foregoing that, contrary to what is claimed by the applicants, the evidence to which they refer is not capable of calling into question the Commission’s conclusions regarding the existence of a link between the Asian meetings and the European arrangements.
125    In the fifth place, the applicants submit that the Commission committed an error of fact in finding, in the contested decision, and, in particular, in recitals 250 and 479 to 481 thereto, that the European meetings concerning CPTs constituted an extension of the Asian meetings decided at the meeting of 21 September 1999. The applicants emphasise that the CPT manufacturers based in Europe had been meeting, bilaterally and multilaterally, since March 1999.
126    The Commission explains, in its pleadings, that, in recital 479 to the contested decision, it merely indicated that the first multilateral European meeting held after the launch of the anti-dumping action mentioned in paragraph 9 above took place on 2 October 1999.
127    It must be observed that the contested decision is unclear on that point. Thus, it can be seen from recitals 250, 479 and 481 that the Commission indicated that the European meetings were an extension of the Asian meetings. In that respect, recital 479 to that decision indicates that it is established that the European undertakings Philips and Thomson had participated since the launch of the anti-dumping action mentioned in paragraph 9 above and that since that date there is evidence of cartel meetings being held in Europe. The Commission adds that the first multilateral meeting held in Europe in respect of which the Commission has evidence is that of 2 October 1999 and that it appears from the minutes of the multilateral meeting of 21 September 1999, which was held in Taiwan, that the multilateral meeting of 2 October 1999 was held as a result of the applicants having called for more intense cooperation between the participants in the Asian cartel at the meeting of 21 September 1999. However, the Commission mentioned, in recital 480 to the contested decision, that certain multilateral meetings in Europe had been held as dinner or bar discussions, before and after the official meetings of the European Electronic Component Manufacturers Association. The Commission stated, in that regard, that it appeared that the first of those meetings was held on 26 March 1999 between Philips, Thomson, MEI, [confidential], [confidential], the applicants, and, on 16 April 1999, between the applicants, [confidential], MEI, [confidential] and Philips.
128    It follows from the foregoing that the Commission’s interpretation, as set out in paragraph 126 above, is not clear from the recitals of the contested decision referred to in paragraph 127 above. However, that lack of clarity, unfortunate as it may be, does not reveal any error in the Commission’s interpretation of the facts, since it clearly indicated, in recital 480 to the contested decision that the CPT manufacturers based in Europe had been meeting, on a bilateral or multilateral basis, since March 1999. Moreover, in view of the numerous other indicia relied on by the Commission, that lack of precision does not call into question the existence of a link between the Asian and European conduct.
129    In the sixth place, the applicants submit that the lack of meaningful overlap between the participants in the meetings in question is another indication that the Asian meetings primarily focused on the Asian market and were of limited relevance to other world regions.
130    In that respect, it suffices to note that several of the undertakings in question participated in both the Asian meetings and the European meetings, such as the applicants, Philips and MEI, as well as [confidential] and Thomson as regards the first European meetings. Furthermore, it can be seen, inter alia, from footnote 180 in the contested decision that several representatives of those undertakings attended both the Asian and European meetings.
131    In those circumstances, the present argument must be rejected.
132    In the seventh place, the applicants submit that the fact that the Commission recognised that there was no joint central organisation for the Asian and European arrangements is inconsistent with the finding of a general link between the European and Asian collusion.
133    However, it was noted in paragraph 42 above that, in order to establish the existence of single and continuous infringement, the Commission must — as it indeed did — 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 actual 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. Consequently, in order to establish the existence of a single and continuous infringement, it was not necessary to establish a joint central organisation for the Asian and European arrangements. The present argument is therefore ineffective and must be rejected.
134    It follows from all of the foregoing that the Commission was entitled to find that there was a single and continuous infringement covering all types and sizes of CPT as well as the Asian and European arrangements. The second part of the single plea in law must therefore be rejected, as must the single plea in its entirety.
135    In view of the foregoing, the applicants’ primary head of claim as regards the CPT cartel must be rejected.
The claims, raised in the alternative, whereby the applicants request the Court, first, to annul Article 1(2) of the contested decision in so far as it finds that the applicants participated in the CPT infringement before 24 November 1998 and after 12 June 2006 and, secondly, to reduce the fine imposed by Article 2(2) of that decision
136    In support of these claims, the applicants put forward two pleas in law, alleging, first, that the Commission erred in setting the starting date and the end date of the infringement and, secondly, that the Commission was wrong to refuse to grant them, under the leniency programme, a reduction of 50% of the fine.
The first plea in law, alleging that the Commission erred in setting the starting date and the end date of the infringement
137    The applicants submit that the Commission erred in determining the duration of the infringement relating to CPTs and, more specifically, in determining the starting date and end date of the infringement.
138    In the first place, the applicants argue that the anticompetitive arrangements concerning the European CPT market did not start before 24 November 1998. They add that the meetings or other contacts that took place prior to that date must be excluded from the CPT cartel, since they related to ‘purely Asian conduct’ that had no effect on competition within the EEA, and in respect of which the Commission had no jurisdiction. More specifically, they state that the Commission erred in its assessment of the evidence regarding those meetings. They argue that the Commission focused only on the — sometimes misleading — literal wording of certain documentary evidence and failed to take into account the background and contextual information provided by the applicants during the investigation.
139    It is undisputed that the Commission considered that the CPT cartel had begun on 3 December 1997, on the ground that the meetings which were held as from that date had the object of affecting competition in the EEA.
140    In that respect, it can be seen from the minutes of the meeting of 3 December 1997, in which, inter alia, the applicants, LG Electronics Indonesia, [confidential] and [confidential] participated, that the meeting began with a report by LG Electronics Indonesia on the global and regional (south-east Asian) supply and demand as regards 14-, 20- and 21-inch CPTs. Those minutes state that the participants in that meeting thought that the situation of the excess supply of 14-inch CPTs was worrying and that it was necessary to restrain each other in order to avoid operating at a loss. It can also be seen from that document that several of the CRT manufacturers present accepted the market price of the time proposed by LG Electronics Indonesia, the prices being set out in those minutes, for each type of CPT. It is also indicated that a reference price was set for 14-inch CPTs, but only for the first quarter of 1998. As regards the geographic scope of that collusive contact, it was indicated above that the meeting in question had begun by a report relating, in part, to the worldwide supply and demand situation as regards 14-, 20- and 21-inch CPTs. Moreover, certain European customers, such as [confidential] and Thomson (which were established in the European Union) and [confidential] and [confidential] (which possessed television factories in the European Union) were discussed during that meeting. Lastly, the participants in that meeting reported on their production lines and, on that occasion, [confidential] indicated the production volume of its French factory.
141    The Court of Justice has held 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 (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, paragraphs 13 and 14).
142    In those circumstances, it is established that the meeting of 3 December 1997 had the object of implementing the CPT cartel, including at the European level, and the Commission was therefore entitled to regard that date as the beginning of the cartel at the European level.
143    That conclusion is not affected by the applicants’ other arguments.
144    First, the applicants submit that the Commission ignored certain extracts from the minutes of the meeting of 3 December 1997 such as the extract which indicated that it would be difficult to fix a price without entrusting that task to a company which would be the undisputable leader or the extract mentioning that the applicants and [confidential] considered that a compulsory agreement would have no binding effect.
145    However, it must be pointed out that, although those statements are indeed contained in the minutes of the meeting of 3 December 1997 and may well reflect the concerns of certain participants, it is nevertheless the case that the document in question contains the statement set out in paragraph 140 above, according to which a reference price was set for 14-inch CPTs intended, inter alia, to be sold in the EEA, in relation to the first quarter of 1998, which shows that that meeting indeed had the object of restricting competition in the EEA.
146    Secondly, the applicants argue that the Commission erred in considering that the meetings of 8, 16 and 29 December 1997 as well as those of 12 February, 24 April, 4 May, 14 and 16 July, 7, 8 and 26 September 1998 proved the existence of collusive contacts concerning the EEA.
147    In that respect, it must be noted that the applicants set out their arguments in relation to each of those meetings only in a document annexed to the application. Since the annexes may be taken into consideration only in so far as they support or supplement pleas or arguments expressly set out by applicants in the body of their pleadings, the line of argument set out in that annex is inadmissible.
148    In any event, it must be held that the Commission did not err in finding that the collusive contacts affecting the EEA and involving the applicants were established between 3 December 1997 and 24 November 1998.
149    Thus, in recital 261 to the contested decision, the Commission refers to the meetings of 16 and 29 December 1997, in which the applicants participated, and it did not err in finding, as regards the meeting of 16 December, that the participants had, inter alia, discussed certain European customers, such as [confidential], a customer of the applicants, and had agreed on the prices for 25-inch and 29-inch CPTs. Moreover, in the meeting held on 29 December 1997, the participants, including the applicants, exchanged results of CPT sales at the global level, and more specifically at the European level, concerning the period from January to November 1997, and examined the planned sales for 1998.
150    Furthermore, in recitals 262 and 263 to the contested decision, the Commission relied on the meetings of 14 and 16 July 1998. As regards the meeting of 14 July, it can be seen from the minutes produced by the applicants that information at the global level was exchanged and that the applicants expressly stated their wish that the CPT pricing would be maintained in the fourth quarter of 1998. It is also indicated in those minutes that the applicants proposed to try to convince their customers to stabilise the third quarter prices in order jointly to make some marginal profits. As regards the meeting of 16 July, the participants, inter alia, exchanged information on production lines and on prices. Those exchanges also concerned the European factories and imports to Europe. Lastly, in the course of the meeting of 26 September 1998, the participants exchanged information, in particular concerning prices in Europe. The issue of whether it was necessary that [confidential] reduce its production was also discussed.
151    In those circumstances, the present complaint must be rejected.
152    In the second place, the applicants submit that the Commission erred in setting an end date for the applicants’ participation in the CPT cartel subsequent to the dates set for the other parties to the procedure, namely 15 November 2006.
153    First, the applicants submit that, by selecting an end date for the applicants’ participation in the CPT cartel subsequent to the dates selected for the other parties to the cartel, without providing an explanation, the Commission manifestly infringed its obligation to state reasons and committed an error of law.
154    As regards, first of all, the alleged infringement of the obligation to state reasons, it must be recalled that it is settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).
155    The Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned; it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In particular, it is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance (see, to that effect, Case T‑349/03 Corsica Ferries France v Commission [2005] ECR II‑2197, paragraph 64, and Case T‑185/06 Air liquide v Commission [2011] ECR II‑2809, paragraph 64).
156    It is also settled case-law that, where a decision taken in application of Article 101 TFEU relates to several addressees and raises a problem with regard to liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who according to the decision must bear the liability for the infringement (Case T‑38/92 AWS Benelux v Commission [1994] ECR II‑211, paragraph 26, and Case T‑330/01 Akzo Nobel v Commission [2006] ECR II‑3389, paragraph 93).
157    In the present case, it must be noted that the applicants refer in particular to MTPD, in respect of which the Commission took 12 June 2006 as the end date of its participation in the CPT cartel. The applicants submit that the Commission should have explained its choice, since the contested decision mentions contacts involving MTPD between 12 June and 10 November 2006.
158    In that respect, it is clear from recital 1002 to the contested decision that the Commission considered that no precise date could be established on which the CPT cartel had ceased to exist. It therefore decided, in order to assess the duration of participation of various parties in the CPT cartel, to take the last documented collusive contact for each of them, as indicated in recital 455 to the contested decision. Moreover, in the application, the applicants refer to certain facts taken into account by the Commission in order to set the end date of their participation in the CPT cartel. Accordingly, it is undisputed that the Commission provided reasons — in a summary but sufficient manner — for the choice of dates selected as the end date of participation in the CPT cartel. In that regard, it must be stated that the fact that the applicants do not agree with the dates selected, particularly as regards MTPD, is irrelevant as regards the review of compliance with the obligation to provide reasons.
159    As regards, next, the error of law allegedly committed by the Commission, the applicants submit that that institution could not select an end date for their participation in the cartel subsequent to the dates selected for the other parties to the cartel, and, in particular, for MTPD, in respect of which the end date of participation was set at 12 June 2006.
160    On that point, it suffices to note that, although the applicants invoke an error of law allegedly committed by the Commission, they do not put forward any line of argument intended to show that the Commission’s legal reasoning is erroneous as regards the applicants. That complaint must therefore be rejected.
161    Secondly, the applicants submit that the Commission discriminated against them by selecting an end date for their participation in the CPT cartel subsequent to the end dates chosen for the other undertakings, and in particular for MTPD, despite evidence that other participants were still involved in anticompetitive behaviour in November 2006.
162    In that respect, it must be recalled that the principle of equal treatment or of non-discrimination 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 (Case C‑485/08 P Gualtieri v Commission [2010] ECR I‑3009, paragraph 70).
163    In the present case, it is appropriate to recall that the principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party. A possible unlawful act committed with regard to another undertaking, which is not party to the present proceedings, cannot lead to a finding by the Court that it is discriminatory and, therefore, unlawful with regard to the applicants. Such an approach would be tantamount to laying down a principle of ‘equal treatment in illegality’ and to requiring the Commission, in the present case, to disregard the evidence in its possession to sanction the undertaking which has committed a punishable infringement, solely on the ground that another undertaking which may find itself in a comparable situation has unlawfully escaped being penalised. Moreover, as is clear from the case-law relating to the principle of equal treatment, where an undertaking has acted in breach of Article 101(1) TFEU, it cannot escape being penalised altogether on the ground that other undertakings have not been fined, where those undertakings’ circumstances are not the subject of proceedings before the Court (Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraph 197).
164    In the present case, it is undisputed that the applicants participated in the CPT cartel until 15 November 2006. They cannot therefore invoke the infringement of the principle of equal treatment in order to obtain a reduction of their fine, irrespective of whether the Commission wrongly selected a premature end date of participation as regards other participants, and in particular as regards MTPD.
165    The first plea in law must therefore be rejected and it is not necessary to rule on its admissibility, which is contested by the Commission.
The second plea in law, concerning the Commission’s refusal to grant the applicants, under the leniency programme, a reduction of 50% of the fine
166    The applicants criticise the Commission for failing to grant them a reduction of 50% under the leniency programme despite the large amount of evidence which they provided to the Commission concerning the CPT cartel.
167    On that point, it can be seen from recitals 1126 to 1132 to the contested decision that the Commission found that the applicants had, inter alia, provided evidence concerning the Asian and European arrangements in relation to the CPT cartel. It noted that the applicants had voluntarily made self-incriminating statements, which went beyond the scope of the request for information. The Commission also considered that they had provided significant added value and timely cooperation. Nevertheless, the Commission took the view that, in their statements, the applicants had unduly minimised the content and meaning of the documentary evidence they had submitted. The Commission added that the applicants had described numerous collusive contacts as information exchanges, contrary to the true content of the documents they had provided. Lastly, the Commission stated that, as regards the information exchanges, the applicants had sought to minimise their extent and meaning.
168    In that respect, it must be noted that point 26 of the Leniency Notice provides that the Commission is to determine in any final decision adopted at the end of the administrative procedure the level of reduction an undertaking will benefit from. That point also indicates that the first undertaking to provide significant added value is to benefit from a reduction of 30%-50% relative to the fine which would otherwise be imposed. Lastly, that same point provides that, in order to determine the level of reduction within that band, the Commission is to take into account the time at which the evidence was submitted and the extent to which it represents added value.
169    Furthermore, it must be recalled that a reduction under the Leniency Notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate genuine cooperation on its part (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, paragraphs 388 to 403, in particular paragraph 395).
170    Lastly, in assessing the cooperation provided by members of a cartel, only an obvious error of assessment by the Commission is capable of being censured, since the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings (Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 88).
171    In the present case, it must be noted that, as has been indicated in paragraph 168 above, the applicants — as the first undertakings to provide significant added value in terms of information of the CPT cartel — could claim a reduction of the fine by 30%-50%. For the reasons set out in paragraph 167 above, the applicants received a reduction of 40%. It must therefore be pointed out, as a preliminary point, that the applicants received a substantial reduction rewarding the added value of their cooperation, given that, as the Commission rightly submits, the fact that the applicants provided significant added value does not mean that they were entitled to the maximum reduction provided for under the Leniency Notice.
172    In the first place, the applicants argue that the Commission erred in finding, in recital 1130 to the contested decision, that, in their statements, the applicants had described numerous cartel contacts as mere information exchanges.
173    The Commission submits that the applicants set out that line of argument by reference to the annexes to their written pleadings, and that it is therefore inadmissible.
174    In that respect, it must be pointed out that the applicants put forward a line of argument alleging that the contacts referred to in footnote 2033 of the contested decision could mainly be characterised as ‘information exchanges’ and not as ‘hardcore infringements’. They add that it cannot therefore be claimed that they provided an incorrect or misleading interpretation of the evidence, or attempted to conceal relevant information. Although, in support of their line of argument, the applicants refer to an entire annex, it must be held that that reference is solely intended to support and supplement the arguments expressly put forward in the body of their pleadings and, moreover, that it is possible to determine precisely the matters contained in that annex that support or supplement those pleas or arguments (see, to that effect, Microsoft v Commission, cited in paragraph 33 above, paragraph 99). Accordingly, the arguments developed in paragraph 95 of the application are admissible.
175    Nevertheless, those arguments are unfounded. Thus, it can be seen from certain minutes of meetings produced by the applicants that the contacts in question in that annex could be characterised as genuine collusive contacts and were not merely information exchanges. That is the case, inter alia, as regards the meeting of 16 December 1997, the minutes of which show that the contact in question was more than a mere information exchange since, inter alia, the matter of fixing the price of 25-inch CPTs was discussed. In addition, the meeting of 26 September 1998 must be mentioned, in the course of which information was exchanged concerning the prices of 14- and 20-inch CPTs applied to a customer in Europe in the third quarter of 1998, and the desire to maintain the original price in the coming fourth quarter was expressed. Although the minutes state that that objective was not confirmed, it must be pointed out that discussions on the price levels to be applied in Europe indeed took place during that meeting, which cannot therefore be characterised as a ‘mere information exchange’. Furthermore, it can be seen from the minutes of the meeting of 4 December 2003 that the participants, including the applicants, discussed, inter alia, the proposal of the LPD group to cooperate on the European market (including Russia).
176    It follows from the foregoing that the Commission did not commit a manifest error of assessment in finding that the applicants had described certain cartel contacts as mere information exchanges, contrary to their true nature.
177    In the second place, the applicants submit that the Commission erred in considering that they had tried, in their oral statements of 26 May 2009 and 15 March 2010, to minimise the extent and significance of the information exchange.
178    However, it can be seen from those oral statements that the applicants organised their arguments around the idea that the discussions on the European market were only a small part of the discussions that took place during the Asian meetings and concerned only some types of CPT. Given the significant number of collusive contacts concerning the European market, including the Asian meetings, identified by the Commission during the procedure and, moreover, the fact that the cartel at issue covered all types of CPT, the Commission could, without committing a manifest error of assessment, find that the applicants had not described the situation as it was, but had tried to minimise the importance of the collusive contacts in relation to the EEA.
179    In the third place, the applicants submit that the Commission wrongly alleged that they had minimised the seriousness of the infringement by failing to present the contacts at issue as a single and continuous infringement concerning all types and sizes of CPT, since that issue concerns the legal qualification of the CPT cartel and the legal classification of certain conduct, which lie within the exclusive competence of the Commission.
180    On that point, it must be noted that it can be seen from recital 1131 to the contested decision that the Commission did not fault the applicants for not having agreed with the qualification and classification of the facts at issue as a single and continuous infringement. The Commission merely pointed out that the applicants had sought to minimise the seriousness of the infringement by insisting that numerous contacts were actually mere information exchanges. It can be seen, inter alia, from the examination of the first plea in law that that was precisely not so in the present case. Accordingly, the Commission did not commit a manifest error of assessment in that regard.
181    In addition, it must be noted that it can be seen from recital 1129 to the contested decision that, in order to refuse to grant the applicants a reduction of 50% of their fine, the Commission also pointed out that the reference to contacts from a Chunghwa employee after the submission of the immunity application did not meet the criteria for a reduction of fines. In that respect, the Commission stated that the applicants’ allegations did not constitute evidence of an alleged infringement that would represent significant added value by strengthening the Commission’s ability to prove the cartels that were the subject of the contested decision. The Commission indicated that the same applied to the applicants’ argument that their contribution regarding the arrangements relating to China should be reflected overall in the level of the reduction of the fine. The applicants failed to explain how and why the arrangements relating to China would affect the EEA, contrary to what is required under the Leniency Notice.
182    It follows from the foregoing that the Commission did not commit a manifest error of assessment in refusing to grant the applicants a reduction of 50% of the fine imposed on them.
183    The second plea in law must therefore be rejected.
184    In addition, 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.
185    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 the use of its power to vary the contested decision with a view to annulling or reducing the fine.
186    In view of the foregoing, it is necessary to reject the head of claim raised in the alternative by the applicants as regards the CPT cartel.
2.     The CDT cartel
187    As regards the CDT cartel, the applicants claim only that the Court should exercise its unlimited jurisdiction to vary, by reducing, the fine imposed by Article 2(1) of the contested decision.
188    In that regard, the applicants raise three pleas alleging, first, breach of point 13 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’), and error on the Commission’s part in including Samsung SDI Co.’s CDT sales to SEC in the calculation of the fine imposed; secondly, breach of point 13 of the 2006 Guidelines in that the Commission used the average annual value of CDT sales during the infringement period to calculate the value of sales; and, thirdly, error of fact and manifest error of assessment by the Commission in refusing to grant them, under the leniency programme, a reduction of 50% of the fine imposed.
The first plea in law, alleging breach of point 13 of the 2006 Guidelines and a manifest error of assessment by the Commission in including Samsung SDI Co.’s CDT sales to SEC in the calculation of the fine imposed on the applicants
189    The applicants assert, in essence, that the Commission should not have taken the value of Samsung SDI Co.’s CDT sales to SEC into account when calculating the fine imposed, since all the competition as regards those sales took place in South Korea and not in the EEA. The applicants submit that, in doing so, the Commission breached point 13 of the 2006 Guidelines and committed a manifest error of assessment.
190    It can be seen from recital 1034 to the contested decision that, in order to identify the relevant value of sales, the Commission took into account sales of products, including both direct sales and direct sales through transformed products, which were delivered in the EEA. The Commission stated, in recital 1037 to that decision, that the implementation of the cartels necessarily produced immediate and foreseeable effects in the EEA as a whole irrespective of whether the parties had any knowledge of the actual place of delivery or billing of the CDTs.
191    In that respect, it must be recalled that point 13 of the 2006 Guidelines states that, in determining the basic amount of the fine to be imposed, the Commission is to 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.
192    It must therefore be pointed out that point 13 of the 2006 Guidelines does not refer to ‘sales negotiated’ or ‘sales billed’ within the EEA, but refers only to ‘sales’ in the EEA. It follows that the Guidelines do not require that account be taken of sales negotiated in the EEA, nor do they preclude the Commission from using the sales delivered in the EEA to calculate the value of each undertaking’s sales within the EEA.
193    It must be determined whether, in the present case, the Commission was entitled to take the view that the sales delivered in the EEA could be regarded as sales by the undertaking in the relevant geographic area within the EEA for the purpose of paragraph 13 of the 2006 Guidelines.
194    In the application, the applicants explain the process of negotiating and delivering CDTs to SEC. Thus, all of the commercial negotiations for the supply of CDTs on a worldwide basis took place in South Korea between the headquarters of Samsung SDI Co. and those of SEC. The prices and quantities of the CDTs to be supplied were negotiated in South Korea directly between the headquarters of Samsung SDI Co. and of SEC. According to the applicants, the prices were fixed on a global basis and did not depend on the place of delivery except for adjustments to reflect certain shipping, insurance and related costs, which could differ depending on the country where the product was delivered. Once the headquarters of Samsung SDI Co. and of SEC had agreed on prices and quantities, the headquarters of Samsung SDI Co. would ship the CDTs to warehouses in Europe and SEC’s European subsidiaries would take delivery of the agreed quantity of CDTs. At the end of each month, SEC’s headquarters would settle the payment for the quantities of CDTs delivered to SEC’s European subsidiaries. The applicants infer from those circumstances that the competition in relation to the sales of CDTs to SEC took place in South Korea and not in the EEA.
195    However, it must be held that, in the present case, the place of delivery had a real impact on the level of sales made by the applicants. Although the prices and quantities of CDTs to be supplies were negotiated, for the most part, in South Korea, between the headquarters of Samsung SDI Co. and those of SEC, the CDTs were delivered directly from the warehouses managed by Samsung SDI Co., located in the EEA, to SEC’s 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 Co. to SEC would be altered. Accordingly, it is indeed the place of delivery which ultimately determined the level of sales made by the applicants within the EEA. In those circumstances, the Commission neither committed a manifest error of assessment nor breached Article 13 of the 2006 Guidelines by using the criterion of the place of delivery in order to determine the sales to take into account when calculating the fine.
196    Furthermore, failure to take into account the value of those deliveries would have allowed the applicants to escape a penalty proportional to their importance on the market which was the object of the infringement, since the CDT sales to SEC represented almost all of their annual CDT sales in the EEA.
197    It follows from the foregoing that the Commission was entitled to take account of Samsung SDI Co.’s CDT sales to SEC in calculating the fine imposed on the applicants.
198    That conclusion is not affected by the applicants’ other arguments.
199    First, the applicants allege that the Commission erred in considering, in the contested decision, that, by their line of argument, they sought to have the place of billing taken into account whereas, in reality, they wanted the place where the competition took place to be taken into account.
200    It must be held, however, that even if the applicants’ allegation in that respect were established, it is irrelevant, since it can be seen from paragraph 195 above that the Commission was entitled to use the delivery criterion in order to determine the sales made by the cartel participants within the EEA.
201    Secondly, the applicants submit that, in a previous decision (Case COMP/39.406 — Marine Hoses) (summary published in OJ 2009, C 168, p. 6), the Commission found that the place where the customer was located was the most reliable criterion for determining where the competition took place.
202    In that respect, it must be recalled that observance of the principle of equal treatment is incumbent on the Commission when it imposes a fine on an undertaking for infringement of the competition rules, as it is on any institution in carrying out all its activities (see Case T‑67/01 JCB Service v Commission [2004] ECR II‑49, paragraph 187 and the case-law cited).
203    However, previous decisions by the Commission imposing fines can be relevant from the point of view of observance of the principle of equal treatment only where it is demonstrated that the facts of the cases in those other decisions, such as markets, products, the countries, the undertakings and periods concerned, are comparable to those of the present case (see, to that effect, Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraph 316 and the case-law cited).
204    In the present case, the applicants acknowledge that the facts of the Marine Hoses case, referred to in paragraph 201 above, differ from those of the present case. Accordingly, that complaint must be rejected.
205    Thirdly, the applicants refer, in support of their line of argument seeking to show that the place where the competition took place was South Korea, to the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008, C 95, p. 1).
206    However, that reference is irrelevant in the present case since assessing the effects of a concentration on the market is not comparable to determining the amount of a fine to be imposed on an undertaking as a result of an infringement of Article 101 TFEU (Case T‑146/09 Parker ITR and Parker-Hannifin v Commission [2013] ECR, paragraph 213).
207    In any event, paragraph 198 of the notice referred to in paragraph 205 above indicates that, where the subsidiaries’ orders are placed via the central purchasing organisation, but the products are directly delivered to the subsidiaries, as in the present case, turnover is to be allocated to the different Member States in which the subsidiaries are located, irrespective of whether the central purchasing organisation or the subsidiaries receive the bills and effect the payment. That notice states that this is explained by the fact that, in such a case, competition with alternative suppliers takes place for the delivery of products to the different subsidiaries even though the contract is concluded centrally. In those circumstances, the applicants cannot claim that, according to that notice, the place where the competition took place was actually South Korea.
208    The first plea in law must therefore be rejected.
The second plea in law, alleging breach of point 13 of the 2006 Guidelines in that the Commission used the average annual value of CDT sales during the infringement period to calculate the value of sales
209    The applicants submit, in essence, that, by using the average annual value of CDT sales recorded during the entire infringement period in order to set the basic amount of the fine, the Commission breached point 13 of the 2006 Guidelines.
210    As a preliminary point, it must be recalled that Article 23(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) provides that, in fixing the amount of the fine, regard is to be had both to the gravity and the duration of the infringement.
211    In addition, point 13 of the 2006 Guidelines provides that, in order to determine the basic amount of the fine to be imposed, the Commission normally uses the sales made by the undertaking during the last full business year of its participation in the infringement.
212    In the present case, it can be seen from the contested decision that the Commission, first of all, considered that the undertakings’ sales during the last full year of their participation in the infringement were not sufficiently representative of the economic importance of that infringement due to the significant decline of CRT sales during the period covered by that infringement. Thus, it can be seen from the figures set out by the Commission in recital 1043 to the contested decision that the total CDT sales of all the parties to the cartel had decreased by more than 80% between 1998 and 2005. The contested decision also indicates that the value of sales from one year to the next during the period of the infringement varied considerably, namely up to 99% of a difference between the highest and the lowest annual value of sales, the difference for most parties being between 42% and 92% as regards CDTs. Next, the Commission took the view that the method chosen would avoid discrimination between undertakings which had ceased their involvement in the infringement before the decline of CDT sales had begun, on the one hand, and the other undertakings, on the other. The Commission stated that this was especially true as regards the parent companies of the joint ventures, whose direct involvement ended in the middle of the infringement. Lastly, the use of the undertakings’ sales during the last full year of their participation in the infringement would not allow the imposition of fines reflecting the impact of the cartel in question in the EEA.
213    The applicants submit that those reasons did not allow the Commission to depart from the rule laid down in point 13 of the 2006 Guidelines.
214    In that regard, it should be observed that the self-limitation of the Commission’s discretion arising from the adoption of the 2006 Guidelines is not incompatible with the Commission’s maintaining a substantial margin of discretion. The Guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with the provisions of Regulation No 1/2003, as interpreted by the EU Courts (Dansk Rørindustri and Others v Commission, cited in paragraph 169 above, paragraph 267). Thus, point 13 of those Guidelines indicates that the Commission must ‘normally’ use the sales made by the undertaking during the last full business year of its participation in the infringement.
215    Although the applicants argue that the reasons invoked by the Commission do not justify its departure from the method ‘normally’ applicable, they do not call into question their correctness. Accordingly, they have not shown that the Commission erred in relying on those reasons in order to apply an alternative method. In those circumstances, the Commission did not exceed the limits of its margin of discretion in considering that to calculate the amount of the infringements on the basis of the sales made by the undertakings in question during the last full business year of their participation in the infringement, namely 2005, would not have resulted in an amount representative of the entire duration of the infringements and, consequently, choosing to apply another method.
The third plea in law, alleging an error of fact and a manifest error of assessment by the Commission in refusing to grant the applicants, under the leniency programme, a reduction of 50% of the fine imposed on them
216    The applicants submit that the Commission erred in only granting them a reduction of 40% under the leniency programme, whereas it had recognised that they had provided a large amount of evidence regarding the CDT infringement.
217    In that respect, it has been noted in paragraph 168 above that point 26 of the Leniency Notice provides that the first undertaking to provide significant added value is to benefit from a reduction of 30%-50% relative to the fine which would otherwise be imposed and that, in order to determine the level of reduction within those bands, the Commission is to take into account the time at which the evidence was submitted and the extent to which it represents added value. In addition, it has been indicated, in paragraph 170 above, that, in assessing the cooperation provided by members of a cartel, only an obvious error of assessment by the Commission is capable of being censured, since the Commission enjoys a wide margin of discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings (SGL Carbon v Commission, cited in paragraph 170 above, paragraph 88).
218    The applicants repeat the complaints mentioned in paragraphs 172, 177 and 179 above, regarding the CPT cartel, and submit that the Commission criticised them for omitting to state, in their reply to the statement of objections, that a core feature of the CDT cartel was market sharing.
219    First, it must be recalled that, as the Commission rightly points out, the fact that the applicants provided significant added value does not mean that they were entitled to the maximum reduction provided for in the Leniency Notice. In the present case, the reduction of 40% granted to the applicants rewards to a significant extent the assistance provided by the applicants to the Commission.
220    Secondly, with regard to the complaints set out in paragraphs 172, 177 and 179 above concerning the CPT cartel, it has been indicated, in paragraphs 172 to 182 above, that the Commission did not commit a manifest error of assessment by refusing, on the grounds referred to in those paragraphs, to grant the applicants a reduction of 50% under the Leniency Notice.
221    Thirdly, as regards the ground that the applicants omitted to state, in their reply to the statement of objections, that a core feature of the CDT cartel was market sharing, it must be held that the applicants merely emphasise that they specified that the CDT cartel involved market sharing in the statement accompanying the reply to the statement of objections.
222    In those circumstances, the applicants have not established that the Commission committed a manifest error in determining the amount of the reduction granted to them under the leniency programme.
223    Accordingly, the third plea in law must be rejected.
224    Furthermore, 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.
225    Lastly, the Court takes the view that there is no public policy ground which it is required to raise of its own motion (see, to that effect, KME Germany and Others v Commission, cited in paragraph 185 above, paragraph 104) to justify it making use of its power to vary the contested decision with a view to reducing the fine.
226    It is therefore necessary to reject the head of claim seeking a reduction of the fine imposed by Article 2(1) of the contested decision as regards the CDT cartel.
227    It follows from all of the foregoing that the action must be dismissed.
Costs
228    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Furthermore, Article 137 of those rules provides that, where a case does not proceed to judgment, the costs are to be in the discretion of the Court. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Declares that there is no longer any need to adjudicate on the action in so far as it concerns Samsung SDI Germany GmbH;
2.      Dismisses the action as to the remainder;
3.      Orders Samsung SDI Co. Ltd and Samsung SDI (Malaysia) Bhd to pay the costs.
Papasavvas
Forwood
Bieliūnas
Delivered in open court in Luxembourg on 9 September 2015.
[Signatures]
Table of contents
Background to the dispute
1.  Applicants and relevant products
2.  Administrative procedure
3.  Contested decision
Procedure and forms of order sought
Law
1.  The CPT cartel
The claims seeking annulment of Article 1(2) and Article 2(2) of the contested decision, in so far as they concern the applicants
The admissibility of the single plea in law
The substance of the single plea in law
–  The first part, alleging that the Commission did not prove the existence of a single and continuous infringement affecting all types and sizes of CPT
–  The second part of the single plea in law, alleging that the Commission wrongly considered that the Asian arrangements formed a single and continuous infringement with the European arrangements
The claims, raised in the alternative, whereby the applicants request the Court, first, to annul Article 1(2) of the contested decision in so far as it finds that the applicants participated in the CPT infringement before 24 November 1998 and after 12 June 2006 and, secondly, to reduce the fine imposed by Article 2(2) of that decision
The first plea in law, alleging that the Commission erred in setting the starting date and the end date of the infringement
The second plea in law, concerning the Commission’s refusal to grant the applicants, under the leniency programme, a reduction of 50% of the fine
2.  The CDT cartel
The first plea in law, alleging breach of point 13 of the 2006 Guidelines and a manifest error of assessment by the Commission in including Samsung SDI Co.’s CDT sales to SEC in the calculation of the fine imposed on the applicants
The second plea in law, alleging breach of point 13 of the 2006 Guidelines in that the Commission used the average annual value of CDT sales during the infringement period to calculate the value of sales
The third plea in law, alleging an error of fact and a manifest error of assessment by the Commission in refusing to grant the applicants, under the leniency programme, a reduction of 50% of the fine imposed on them
Costs
* Language of the case: English.
1 Confidential information omitted.