JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
12 July 2019(*) (1)
(Competition — Agreements, decisions and concerted practices — Market for optical disk drives — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Collusive agreements relating to procurement events organised by two computer manufacturers — Unlimited jurisdiction –– Infringement of the principle of good administration –– Obligation to state reasons –– Point 37 of the 2006 Guidelines on the method of setting fines –– Particular circumstances –– Error of law)
In Case T‑1/16,
Hitachi-LG Data Storage, Inc., established in Tokyo (Japan),
Hitachi-LG Data Storage Korea, Inc., established in Seoul (South Korea),
represented by L. Gyselen and N. Ersbøll, lawyers,
applicants,
v
European Commission, represented initially by A. Biolan, M. Farley, C. Giolito and F. van Schaik, and subsequently by A. Biolan, M. Farley and F. van Schaik, acting as Agents,
defendant,
ACTION under Article 263 TFEU seeking a reduction of the amount of the fine imposed by the European Commission on the applicants in its Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 — Optical Disk Drives),
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, I. Labucka and I. Ulloa Rubio (Rapporteur), Judges,
Registrar: N. Schall, Administrator,
having regard to the written part of the procedure and further to the hearing on 3 May 2018,
gives the following
Judgment
I.      Background to the dispute
A.      Applicants and relevant market
1        The applicants, Hitachi-LG Data Storage, Inc. and its subsidiary Hitachi-LG Data Storage Korea, Inc., are manufacturers and suppliers of optical disk drives (‘ODDs’). In particular, Hitachi-LG Data Storage is a joint venture created by the Japanese company Hitachi, Ltd and by the Korean company LG Electronics Inc. It has operated on the market since 1 July 2001.
2        The infringement concerns ODDs used in personal computers (desktops and notebooks) (‘PCs’) produced by Dell Inc. and Hewlett Packard (‘HP’). ODDs are also used in a wide range of other consumer appliances such as compact disc (‘CD’) or digital versatile disc (‘DVD’) players, game consoles and other electronic hardware devices (contested decision, recital 28).
3        ODDs used in PCs differ according to their size, loading mechanisms (slot or tray) and the types of discs that they can read or write. ODDs can be split into two groups: half-height (‘HH’) drives for desktops and slim drives for notebooks. The slim drive group includes drives that vary by size. Both HH and slim drives differ by type depending on their technical functionality (contested decision, recital 29).
4        Dell and HP are the two most important original equipment manufacturers on the global market for PCs. Those two companies use standard procurement procedures carried out on a global basis which involve, inter alia, quarterly negotiations over a worldwide price and overall purchase volumes with a limited number of pre-qualified ODD suppliers. Generally, regional issues did not play any role in ODD procurement other than that related to forecasted demand from regions affecting overall purchase volumes (contested decision, recital 32).
5        The procurement procedures included requests for quotations, electronic requests for quotations, internet negotiations, e-auctions and bilateral (offline) negotiations. At the close of a procurement event, customers would allocate volumes to participating ODD suppliers (to all or at least most of them, unless there was an exclusion mechanism in place) depending on their quoted prices. For example, the winning bid would receive 35% to 45% of the total market allocation for the relevant quarter, the second best 25% to 30%, the third 20% and so on. These standardised procurement procedures were used by customers’ procurement teams with the purpose of achieving efficient procurement at competitive prices. To this end, they used all possible practices to stimulate the price competition between the ODD suppliers (contested decision, recital 33).
6        As regards Dell, it carried out bidding events mainly by internet negotiation. That negotiation could last for a specific period of time or end after a defined period, for example 10 minutes after the last bid, when no ODD supplier continued bidding. In certain circumstances, internet negotiations could last several hours if the bidding was more active or if the duration of the internet negotiation was extended in order to incentivise ODD suppliers to continue bidding. Conversely, even where the length of the internet negotiation was indefinite and depended on the final bid, Dell could announce at some point that the internet negotiation had closed. Dell could decide to change from a ‘rank only’ to a ‘blind’ procedure. Dell could cancel the internet negotiation if the bidding or its result were found to be unsatisfactory and run a bilateral negotiation instead. The internet negotiation process was monitored by Dell’s responsible Global Commodity Managers (contested decision, recitals 34 and 37).
7        With respect to HP, the main procurement procedures used were requests for quotations and electronic requests for quotations. Both procedures were carried out online using the same platform. As regards (i) the requests for quotations, they were quarterly. They combined online and bilateral offline negotiations spread over a period of time, usually 2 weeks. ODD suppliers were invited to a round of open bidding for a specified period of time to submit their quote to the online platform or by email. Once the first round of bidding had elapsed, HP would meet with each participant and start negotiations based on the ODD supplier’s bid to obtain a better bid from each supplier without disclosing the identity or the bid submitted by any other ODD supplier. As regards (ii) the electronic requests for quotations, they were normally run in the format of a reverse auction. In that format, bidders would log onto the online platform at the specified time and the auction would start at a price set by HP. Bidders entering progressively lower bids would be informed of their own rank each time a new bid was submitted. At the end of the allotted time, the ODD supplier having entered the lowest bid would win the auction and other suppliers would be ranked second and third according to their bids (contested decision, recitals 41 to 44).
B.      Administrative procedure
8        On 14 January 2009, the European Commission received a request for immunity under its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) (‘the Leniency Notice’) from Koninklijke Philips NV (‘Philips’). On 29 January and 2 March 2009, that request was supplemented in order to include, alongside Philips, Lite-On IT Corporation and their joint venture Philips & Lite-On Digital Solutions Corporation (‘PLDS’).
9        On 29 June 2009, the Commission sent a request for information to undertakings active in the ODD sector.
10      On 30 June 2009, the Commission granted conditional immunity to Philips, Lite-On IT and PLDS.
11      On 4 and 6 August 2009, the applicants submitted an application to the Commission for a reduction of the amount of the fine under the Leniency Notice.
12      On 18 July 2012, the Commission initiated a proceeding and adopted a statement of objections against 13 ODD suppliers, including the applicants. In that statement of objections, the Commission stated, in essence, that those companies had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a cartel on ODDs from 5 February 2004 until 29 June 2009, consisting in orchestrating their conduct with respect to invitations to tender organised by two computer manufacturers, Dell and HP.
13      On the same day the Commission granted conditional immunity to the applicants.
14      On 29 and 30 November 2012, all the addressees of the statement of objections took part in a hearing before the Commission.
15      On 14 December 2012, the Commission requested all the parties to provide the relevant documents received from Dell and HP during the infringement period. All the parties replied to those requests and each was granted access to the replies provided by the other ODD suppliers.
16      On 18 February 2014, the Commission adopted two supplementary statements of objections to supplement, amend and clarify the objections addressed to certain addressees of the statement of objections as regards their liability for the alleged infringement.
17      On 26 February 2015, the applicants requested the Commission to reduce the amount of the fine because of the ‘particular circumstances’ for the purpose of point 37 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Commission Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2) (‘the Guidelines’).
18      On 5 March 2015, the applicants and their outside counsel met the Commission in order to present their request for a reduction of the amount of the fine.
19      On 1 June 2015, the Commission adopted another supplementary statement of objections. The purpose of this new statement of objections was to supplement the earlier statements of objections by addressing the objections set out in those statements to additional legal entities belonging to the groups of undertakings (parent companies or predecessors) which had already been addressees of the original statement of objections.
20      The addressees of the statements of objections of 18 February 2014 and 1 June 2015 made known their views to the Commission in writing but did not request a hearing.
21      On 3 June 2015, the Commission issued a letter of facts to all the parties. The addressees of the letter of facts made known their views to the Commission in writing.
22      On 14 September 2015, the applicants submitted a second request to the Commission for a reduction of the amount of the fine. The purpose of this request was to provide an update of certain data presented in their request of 26 February 2015.
23      On 18 September 2015, the applicants and their outside counsel took part in a second meeting with the Commission concerning the state of the file.
24      On 5 and 15 October 2015, the Advisory Committee on Restrictive Practices and Dominant Positions (‘the Advisory Committee’) was consulted by the Commission.
25      On 21 October 2015, the Commission adopted Decision C(2015) 7135 final relating to a proceeding pursuant to Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 — Optical Disk Drives) (‘the contested decision’).
C.      Contested decision
1.      The infringement at issue
26      In the contested decision, the Commission considered that the cartel participants had coordinated their competitive behaviour, at least between 23 June 2004 and 25 November 2008. It specified that that coordination took place through a network of parallel bilateral contacts. It stated that the cartel participants sought to accommodate their volumes on the market and ensure that the prices remained at levels higher than they would have been in the absence of those bilateral contacts (contested decision, recital 67).
27      The Commission specified, in the contested decision, that the coordination between the cartel participants concerned the customer accounts of Dell and HP, the two most important original equipment manufacturers on the global market for PCs. According to the Commission, in addition to bilateral negotiations with their ODD suppliers, Dell and HP applied standardised procurement procedures, which took place at least on a quarterly basis. The Commission stated that the cartel members used their network of bilateral contacts to manipulate those procurement procedures, thus thwarting their customers’ attempts to stimulate price competition (contested decision, recital 68).
28      According to the Commission, regular exchanges of information in particular enabled the cartel members to possess a very complex knowledge of their competitors’ intentions even before they had entered the procurement procedure, and therefore to foresee their competitive strategy (contested decision, recital 69).
29      The Commission added that, on a regular basis, the cartel members exchanged pricing information regarding specific customer accounts as well as information unrelated to pricing, such as existing production and supply capacity, inventory status, the qualification status, and timing of the introduction of new products or upgrades. The Commission stated that, in addition, the ODD suppliers monitored the final results of closed procurement events, that is the rank, the price and the volume obtained (contested decision, recital 70).
30      The Commission further stated that, whilst taking into account that the cartel members must keep their contacts secret from customers, to contact each other suppliers used the means they deemed sufficiently appropriate to achieve the desired result. The Commission specified that in fact an attempt to convene a kick-off meeting to hold regular multilateral meetings between ODD suppliers had failed in 2003 after having been revealed to a customer. According to the Commission, instead, there were bilateral contacts, mostly via phone calls and, from time to time, via emails, including private (hotmail) addresses and instant messaging services, or meetings, mostly at the level of global account managers (contested decision, recital 71).
31      The Commission found that the cartel participants contacted each other regularly and that the contacts, mainly by telephone, became more frequent around the procurement events, amounting to several calls per day between some pairs of cartel participants. It stated that, generally, contacts between some pairs of cartel participants were significantly higher than between other pairs (contested decision, recital 72).
2.      The applicants’ liability
32      The applicants’ liability was established owing to their direct participation in the cartel from 23 June 2004 until 25 November 2008, in particular for their coordination with other competitors with regard to Dell and HP (contested decision, recital 494).
3.      The fine imposed on the applicants
33      As regards the calculation of the amount of the fine imposed on the applicants, the Commission relied on the Guidelines.
34      First of all, in order to determine the basic amount of the fine, the Commission considered that, in view of the considerable differences in the duration of the suppliers’ participation and in order better to reflect the actual impact of the cartel, it was appropriate to use an annual average calculated on the basis of the actual value of sales made by the undertakings during the full calendar months of their respective participation in the infringement (contested decision, recital 527).
35      The Commission thus explained that the value of sales was calculated on the basis of sales of ODDs for PCs and invoiced to HP and Dell entities located in the EEA (contested decision, recital 528).
36      The Commission further considered that, since the anticompetitive conduct with regard to HP had begun later and in order to take the evolution of the cartel into account, the relevant value of sales would be calculated separately for HP and for Dell, and that two duration multipliers would be applied (contested decision, recital 530).
37      Next, the Commission decided that, since price coordination agreements are by their very nature among the worst kind of infringements of Article 101 TFEU and Article 53 of the EEA Agreement, and since the cartel covered at least the whole of the EEA, the percentage for gravity used in this case would be 16% for all addressees of the contested decision (contested decision, recital 544).
38      Furthermore, the Commission stated that, given the circumstances of the case, it was necessary to add an amount of 16% for deterrence (contested decision, recitals 554 and 555).
39      Moreover, since the adjusted basic amount of the fine imposed on the applicants did not reach the cap of 10% of their turnover, the Commission was not required to make a fresh adjustment on the basis of Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1). The adjusted basic amount of the fine imposed on the applicants, calculated according to the methodology described above, came to 8.45% of their total turnover in 2014, the business year preceding the adoption of the contested decision (contested decision, recitals 570 to 572).
40      Lastly, the applicants received a reduction of 50% of the amount of their fine for having cooperated in the investigation in the context of the Commission’s leniency programme, and also partial immunity for having enabled the Commission to establish that the cartel was of longer duration (contested decision, recitals 575 and 582 to 592).
41      The operative part of the contested decision, in so far as it concerns the applicants, reads as follows:
‘Article 1
The following undertakings infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous infringement, which consisted of several separate infringements, in the optical disk drives sector covering the whole of the EEA, which consisted of price coordination arrangements:
...
(d)       [the applicants] from 23 June 2004 to 25 November 2008, for their coordination with regards to Dell and HP.
...
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
...
(d)       [the applicants], jointly and severally liable: EUR 37 121 000.’
II.    Procedure and forms of order sought
42      By application lodged at the Court Registry on 4 January 2016, the applicants brought the present action.
43      The Commission lodged the defence on 29 April 2016.
44      On a proposal from the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, requested the applicants to lodge a document and to make written submissions on certain aspects of the dispute. The applicants complied with those requests within the prescribed period.
45      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 3 May 2018.
46      The applicants claim that the Court should:
–        reduce the amount of the fine imposed on them in Article 2(d) of the contested decision to take account of the particularities of the case;
–        order the Commission to pay the costs.
47      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
III. Law
A.      The scope of the dispute
48      In support of the action, the applicants raise two pleas in law. First, they claim that the Commission breached the principle of good administration and its obligation to state reasons by not responding to their request under point 37 of the Guidelines. Second, they submit that the Commission erred in law in not derogating from the general method set out in the Guidelines in order to reduce the amount of the fine imposed on them in the light of the particular characteristics of the case and the applicants’ role in the market for ODDs.
49      By their first head of claim, and as is apparent from paragraphs 3, 7, 41 and 43 of the application and paragraphs 11 to 18 of the reply, the applicants request the Court to exercise its unlimited jurisdiction under Article 261 TFEU and reduce the amount of the fine imposed on them. They state, moreover, that they do not seek annulment of the contested decision in the event that the Court should find that there has been a breach by the Commission of the obligation to state reasons or of the principle of good administration.
50      The Court, by way of measures of organisation of procedure under Article 89 of the Rules of Procedure, invited the applicants to clarify whether, as the application and reply appear to indicate, they did not intend to submit, in the context of their application, a claim for annulment, but only a claim for reduction of the amount of the fine.
51      In their reply to the measures of organisation of procedure of the Court, the applicants stated that they were requesting the Court to exercise its unlimited jurisdiction by reviewing the Commission’s implicit decision to reject their request for a reduction of the amount of the fine under point 37 of the Guidelines and by reviewing the substance of that request.
52      Nevertheless, in that reply to the measures of organisation of procedure, the applicants also stated that they were aware of the fact that to ask the Court to exercise its unlimited jurisdiction with regard to the fine under Article 261 TFEU ‘necessarily comprises or includes a request for the annulment, in whole or in part, of that decision’ and that, if, in its review of legality under Article 263 TFEU, the Court concluded that the Commission made no error of law, it could carry out a full review of the amount of the fine in accordance with Article 261 TFEU.
53      In that connection, it must be borne in mind that the Treaty does not recognise the ‘action under the Court’s unlimited jurisdiction’ as an autonomous remedy. Article 261 TFEU confines itself to providing that regulations adopted pursuant to the provisions of the Treaties may give the European Union judicature unlimited jurisdiction with regard to the penalties provided for in those regulations (order of 9 November 2004, FNICGV v Commission,
T‑252/03, EU:T:2004:326, paragraph 22).
54      Furthermore, that unlimited jurisdiction can be exercised by the EU judicature only in the context of the review of acts of the institutions, more particularly in actions for annulment. The sole effect of Article 261 TFEU is to enlarge the extent of the powers the EU judicature has in the context of the action referred to in Article 263 TFEU (see, to that effect, order of 9 November 2004, FNICGV v Commission, T‑252/03, EU:T:2004:326, paragraphs 24 and 25).
55      Consequently, an action in which the EU judicature is asked to exercise its unlimited jurisdiction with respect to a decision imposing a penalty, a jurisdiction conferred by Article 261 TFEU, but exercised pursuant to Article 263 TFEU, necessarily comprises or includes a request for the annulment, in whole or in part, of that decision (see, to that effect, order of 9 November 2004, FNICGV v Commission, T‑252/03, EU:T:2004:326, paragraph 25).
56      It is therefore only after the Court has finished reviewing the legality of the decision referred to it, in the light of the pleas in law submitted to it and of grounds which, where applicable, it has raised of its own motion, that, in the event that it does not annul the decision in full, it is to exercise its unlimited jurisdiction in order, first, to draw the appropriate conclusions from its findings with respect to the lawfulness of that decision and, secondly, to establish, according to the information which has been brought to its attention (see, to that effect, judgments of 8 December 2011, KME Germany and Others v Commission, C‑389/10 P, EU:C:2011:816, paragraph 131, and of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 213), whether it is appropriate, on the date on which it adopts its decision (judgments of 11 July 2014, RWE and RWE Dea v Commission, T‑543/08, EU:T:2014:627, paragraph 257; of 11 July 2014, Sasol and Others v Commission, T‑541/08, EU:T:2014:628, paragraph 438; and of 11 July 2014, Esso and Others v Commission, T‑540/08, EU:T:2014:630, paragraph 133), to substitute its own assessment for that of the Commission, so that the amount of the fine is appropriate.
57      In the present case, although, in the application, the applicants submitted a claim only for variation and have indicated that they do not seek annulment of the contested decision, it is apparent from their subsequent explanations that they do not object to the Court reclassifying their claim in accordance with the case-law referred to in paragraphs 53 to 56 above.
58      It must therefore be held that the present action consists of (i) a claim for annulment in part of the contested decision, in so far as the Commission rejected the applicants’ request for a reduction, under point 37 of the Guidelines, of the amount of the fine imposed on them in Article 2(d) of the contested decision and (ii) a claim for variation of that decision asking the Court to uphold that request itself and, consequently, to reduce that amount.
B.      The claim for annulment
59      The applicants put forward two pleas. First, they claim that the Commission breached the principle of good administration and its obligation to state reasons by not responding to their request under point 37 of the Guidelines. Second, they submit that the Commission erred in law in not derogating from the general method set out in the Guidelines in order to reduce the amount of the fine imposed, in the light of the particular characteristics of the case and the applicants’ role in the market for ODDs.
1.      First plea: breach of the principle of good administration and of the obligation to state reasons
60      In essence, this plea is law is made up of two parts. The first alleges breach of the obligation to state reasons. The second alleges breach of the principle of good administration.
(a)    The first part: alleging breach of the obligation to state reasons
61      The applicants take issue with the Commission for having failed to respond to their request that the ‘particularities’ should be taken into account in the calculation of the amount of the fines, under point 37 of the Guidelines, during the administrative procedure or in the contested decision. They maintain that the Commission’s discretion to apply point 37 of the Guidelines does not exempt it from taking their request into consideration in its internal decision-making process or in the contested decision.
62      The Commission disputes the arguments put forward by the applicants.
63      As regards the obligation to state reasons, it should be borne in mind that the statement of reasons required under Article 296 TFEU must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review (judgment of 5 December 2013, Commission v Edison, C‑446/11 P, not published, EU:C:2013:798, paragraph 21).
64      Thus, it is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment of 5 December 2013, Commission v Edison, C‑446/11 P, not published, EU:C:2013:798, paragraph 22 and the case-law cited).
65      Although the Commission is required under Article 296 TFEU to set out all the circumstances of fact and law justifying the adoption of a decision and the legal considerations which led the Commission to adopt it, that article does not require the Commission to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings (see, by analogy, judgment of 18 September 2003, Volkswagen v Commission, C‑338/00 P, EU:C:2003:473, paragraph 127 and the case-law cited). 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 (judgment of 5 December 2013, Commission v Edison, C‑446/11 P, not published, EU:C:2013:798, paragraph 23).
66      Furthermore, it must be pointed out that, in the determination of the amount of the fine in a case of infringement of the competition rules, the Commission fulfils its obligation to state reasons when it indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration, and it is not required to indicate the figures relating to the method of calculating the fine (see, to that effect, judgment of 22 October 2015, AC-Treuhand AG v Commission, C‑194/14 P, EU:C:2015:717, paragraph 68).
67      It is appropriate to examine (i) whether the Commission identified with sufficient clarity the factors it took into account for calculating the amount of the fine imposed on the applicants and (ii) whether the Commission was required to state, in the grounds of the contested decision, the reasons as to why it did not take into account the particular circumstances alleged by the applicants.
(1)    The statement of reasons for the fine imposed on the applicants
68      In the present case, it must be pointed out that recitals 527 to 593 of the contested decision set out the factors which the Commission took into account in order to calculate the fines imposed on the members of the cartel, in particular the factors relating to the gravity and duration of the infringements committed by the applicants. Those factors are such as to enable the applicants to understand the matters which enabled the Commission to carry out its assessment as to the final amount of the fine imposed.
69      Article 23(3) of Regulation No 1/2003 provides that in fixing the amount of the fine the Commission must have regard both to the gravity and to the duration of the infringement. Point 19 of the Guidelines provides that the basic amount of the fine is related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. In the present case, the Commission stated, in recitals 527 to 540 of the contested decision, that, in view of the considerable differences in the duration of the involvement of the different cartel participants and in order better to reflect the actual impact of the cartel, a proxy for the annual value of sales (an annual average calculated on the basis of the actual value of sales made by the undertakings during the months of their respective participation in the infringement) served as the basis for the calculation of the basic amount of the fines.
70      More specifically, with regard to taking into account the gravity of the infringement, according to points 21 to 23 of the Guidelines, the proportion of the value of sales taken into account will be set at a level of up to 30%, on the basis of a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented, since price-fixing, market-sharing and output-limitation agreements are, by their very nature, among the most harmful restrictions of competition. Point 25 of the Guidelines states that, as a deterrent, the Commission includes in the basic amount of the fine a proportion, used to calculate an additional amount, of between 15% and 25% of the value of sales, taking the above factors into account. In the present case, having regard to the nature of the cartel and the territory in which it produced its effects, namely collusive agreements relating to procurement events concerning optical disk drives for PCs covering the entire EEA territory concerning price increases, the multiplier for the gravity of the infringement and the multiplier for an additional amount were both fixed at 16%. Those considerations were analysed and developed by the Commission in recitals 541 to 551 and 554 to 557 of the contested decision.
71      Moreover, with respect to taking into account of the duration of the infringement, point 24 of the Guidelines provides (i) that the amount determined on the basis of the value of sales is multiplied by the number of years of participation in the infringement and (ii) that periods of less than 6 months are counted as half a year and periods longer than 6 months but shorter than 1 year are counted as a full year. The applicants made sales to Dell from 23 June 2004 to 25 November 2008 and to HP from 30 November 2005 to 25 November 2008. The value of the sales made was EUR 49 219 825 and EUR 52 588 024 respectively. Those considerations were also analysed and developed by the Commission in recitals 552 and 553 of the contested decision.
72      Under points 27 to 31 of the Guidelines, the basic amount may then be adjusted in order to take into account aggravating and mitigating circumstances and to ensure that fines have a sufficiently deterrent effect. According to point 34 of those guidelines, it may also be reduced to take into account the Leniency Notice. In the present case, the Commission did not apply any aggravating circumstances. Those considerations were analysed and developed by the Commission in recitals 559 to 569 of the contested decision.
73      Lastly, it is also stated in point 32 of the Guidelines that, as laid down in Article 23(2) of Regulation No 1/2003, for each undertaking or association of undertakings participating in the infringement, the final amount of the fine must not, in any event, exceed 10% of the total turnover in the preceding business year. In the present case, given that the adjusted basic amount of the fine imposed on the applicants did not reach the cap of 10% of their turnover, the Commission was not required to make a fresh adjustment. Those considerations were analysed and developed by the Commission in recitals 570 to 572 of the contested decision.
74      It follows from the foregoing that the statement of reasons for the contested decision showed, in accordance with Article 296 TFEU, in a clear and unequivocal fashion the Commission’s reasoning and so enabled the applicants to ascertain the reasons for that decision in order to defend their rights, and the Court to review the correctness of the decision (see, to that effect, judgment of 18 September 2003, Volkswagen v Commission, C‑338/00 P, EU:C:2003:473, paragraph 124 and the case-law cited).
75      As to the remainder, in the contested decision, more specifically in recitals 532 to 540 and 547 to 549 thereof, the Commission expressly replied to some of the points made by the applicants in response to the statement of objections. In that regard, it should be made clear that, although the Commission is required to set out all the circumstances of fact and law justifying the adoption of a decision and the legal considerations which led the Commission to adopt it, the Commission is not required to discuss all the matters of fact and law which may have been dealt with during the administrative procedure (see judgment of 18 September 2003, Volkswagen v Commission, C‑338/00 P, EU:C:2003:473, paragraph 127 and the case-law cited). All that was required of the Commission was to explain clearly and unequivocally, as it did in recitals 527 to 593 of the contested decision, the most relevant factors, in particular those relating to the gravity and duration of the infringements committed by the applicants, which were taken into account to calculate the amount of the fine imposed.
76      It must therefore be held that the Commission gave sufficient reasons in the contested decision concerning the factors taken into consideration to calculate the amount of the fine imposed on the applicants.
(2)    The Commission’s obligation to state the reasons for not taking into account the particular circumstances alleged by the applicants
77      As regards the applicants’ argument that the Commission breached its obligation to state reasons by not indicating, in the contested decision, the reasons for which it did not depart, following their request and pursuant to point 37 of the Guidelines, from the general methodology for calculating the amount of the fine, it should be noted that, as is apparent from the case-law cited in paragraphs 65 and 75 above, the Commission has no obligation to highlight in its decision all the matters of fact and of law which may have been dealt with during the administrative procedure and those which it did not take into account when calculating the amount of the fine imposed.
78      In addition, it should be noted that the applicable rules provide that the Commission may depart from the general methodology for setting the amount of the fine, on a purely exceptional basis, in two circumstances. First, pursuant to point 35 of the Guidelines, the Commission may take into account, for the purposes of setting the amount of the fine, an undertaking’s inability to pay. In the present case, it should be noted that, during the informal meeting of 5 March 2015, the Commission explicitly asked the applicants to confirm that they were not claiming an inability to pay the fine under point 35 of the Guidelines, and that the applicants confirmed that they were not requesting that that procedure be applied. Second, pursuant to point 37 of the Guidelines, it is foreseen that the particularities of a case or the need to achieve deterrence in a particular case may justify the Commission departing from the methodology set out in those guidelines.
79      However, according to the case-law, it must be held that the discretion conferred on the Commission in the Guidelines does not extend to exempting it from the obligation to justify recourse to this exception. The Commission must specify the particularities of the case or the need to achieve a particular level of deterrence justifying recourse to this exception (see, to that effect, judgment of 6 February 2014, AC-Treuhand v Commission, T‑27/10, EU:T:2014:59, paragraph 306).
80      In particular, when the Commission decides to depart from the general methodology set out in the Guidelines, by which it limited the discretion it may itself exercise in setting the amount of fines, and relies on point 37 of those guidelines, the requirements relating to the duty to state reasons must be complied with all the more rigorously. In that regard, it is appropriate to refer to the settled case-law to the effect that those guidelines lay down a rule of conduct indicating the approach to be adopted from which the Commission cannot depart, in an individual case, without giving reasons which are compatible with, inter alia, the principle of equal treatment. Those reasons must be all the more specific because point 37 of the Guidelines simply makes a vague reference to ‘the particularities of a given case’ and thus leaves the Commission a broad discretion where it decides to make an exceptional adjustment of the basic amount of the fines to be imposed on the undertakings concerned. In such a case, the Commission’s respect for the rights guaranteed by the EU legal order in administrative procedures, including the obligation to state reasons, is of even more fundamental importance (see judgment of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 48 and the case-law cited).
81      By contrast, in the present case, the Commission took the view that the particular circumstances provided for in point 37 of the Guidelines were not met and, consequently, opted for the application of the general methodology in order to calculate the amount of the fine imposed on the applicants. Accordingly, and as is clear from the case-law cited in paragraphs 65 and 75 above, the Commission was required only to state the reasons, in the contested decision, relating to the methodology applied to calculate the amount of the fine and not the factors that it did not take into account in that calculation and, in particular, the reasons for which it did not have recourse to the exception laid down in point 37 of the Guidelines. As has already been noted (see paragraph 77 above), the Commission is not obliged to adopt a position on all of 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.
82      In those circumstances, it is necessary to reject the applicants’ arguments that the Commission did not comply with its obligation to state reasons in the contested decision on account of not having given reasons in that decision for the failure to apply the exception provided for in point 37 of the Guidelines following the applicants’ request. The first part of the first plea must therefore be rejected.
(b)    Second part: breach of the principle of good administration
83      The applicants observe that the Commission did not consult, concerning their request for a derogation from the general rule on the setting of fines, either the Advisory Committee or the College of Commissioners, such a consultation being an essential procedural requirement for imposing a fine on them. In particular, they maintain that the fine might have been lower if the draft decision had taken account of their request and if, consequently, the Advisory Committee and the College of Commissioners had been consulted in that regard.
84      The Commission disputes the applicants’ arguments.
85      Under Article 41(1) of the Charter of Fundamental Rights of the European Union, relating to the right to good administration, every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
86      According to the case-law, the principle of sound administration consists in the duty of the competent institution to examine carefully and impartially all the relevant aspects in the individual case (judgment of 24 January 1992, La Cinq v Commission, T‑44/90, EU:T:1992:5, paragraph 86).
87      Furthermore, Article 14 of Regulation No 1/2003 provides:
‘1. The Commission shall consult an Advisory Committee on Restrictive Practices and Dominant Positions prior to the taking of any decision under Articles 7, 8, 9, 10, 23, Article 24(2) and Article 29(1).
...
3. The consultation may take place at a meeting convened and chaired by the Commission, held not earlier than 14 days after dispatch of the notice convening it, together with a summary of the case, an indication of the most important documents and a preliminary draft decision. ... The Advisory Committee shall deliver a written opinion on the Commission’s preliminary draft decision. ...
...
5. The Commission shall take the utmost account of the opinion delivered by the Advisory Committee. It shall inform the Committee of the manner in which its opinion has been taken into account.
...’
88      Lastly, as set out in Article 33 of Regulation No 1/2003, ‘before publishing a draft measure and before adopting it, the Commission shall consult the Advisory Committee on Restrictive Practices and Dominant Positions’.
89      In the present case, it is apparent from the case file (i) that the Advisory Committee was consulted twice, on 5 and 15 October 2015, before the adoption of the contested decision and (ii) that a whole set of documents on this case was sent to the members of that committee in accordance with Article 14(3) of Regulation No 1/2003. Among those documents, the Commission asserts that it provided: a summary of the case file, its letter of facts dated 3 June 2015, the replies to that letter by the companies affected by the fine, including the applicants’ reply of 26 June 2015, the draft decision including the annexes, a fines table with a detailed overview of how they would be calculated, the statement of objections and the replies thereto.
90      In the first place, it should be noted that the Advisory Committee had been informed of the main points of fact and law of the proceedings, in particular, the market, the addressees, the objections, the duration of the infringement, the methodology and calculation of the fines and the views expressed by the addressees in response to the objections raised by the Commission. Those documents could therefore be considered ‘the most important documents’ within the meaning of Article 14(3) of Regulation No 1/2003.
91      In the second place, it should be noted that Article 14 of Regulation No 1/2003 does not require that the applicants’ requests be attached to those documents. Indeed, under Article 14(3) of Regulation No 1/2003, the dispatch of the notice convening the Advisory Committee is accompanied by ‘a summary of the case, an indication of the most important documents and a preliminary draft decision’. The expression ‘an indication of the most important documents’ cannot mean that the Commission is required to forward to the Advisory Committee all the documentation exchanged with the companies concerned.
92      In the third place, it should be noted that the Commission sent to the Advisory Committee a letter of facts dated 3 June 2015 as well as the applicants’ reply to that letter dated 26 June 2015. It should therefore be observed that the applicants had the opportunity (i) to acquaint themselves with the most important facts to be taken into consideration by the Commission for calculating the amount of the fine and (ii) to submit their observations on those facts set out by the Commission. Those observations were, moreover, communicated to the Advisory Committee.
93      Therefore, to the extent that the applicants’ first request –– seeking a reduction in the amount of the fine due to ‘particular circumstances’ specific to them for the purpose of point 37 of the Guidelines –– was made on 26 February 2015, namely well before the date that the letter of facts was communicated by the Commission to the applicants, they cannot criticise the Commission for not having communicated that information to the Advisory Committee. Even though the Commission did not include that information in the statement of facts or in the indication of the most important documents, the applicants had the opportunity to describe the importance that that information had for the calculation of the amount of the fine in their observations of 26 June 2015.
94      Moreover, in so far as the information adduced by the applicants as part of their second request of 14 September 2015 does not contain substantial amendments as compared with the first request, since it is an update of the facts already set out, the Commission, which was not required to hear the applicants again before adopting the contested decision, was not required to carry out a fresh consultation of the Advisory Committee (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 118). Nevertheless, it should be noted that the Commission had another informal meeting with the applicants, on 18 September 2015, in which they were given the opportunity to comment on the new facts and that, subsequently, on 15 October 2015 the Advisory Committee was consulted again. However, the Commission considered that those facts were not decisive for the calculation of the amount of the fine imposed on the applicants, which is why they were not brought to the attention of the Advisory Committee.
95      It follows from all of the foregoing that the Commission did not breach the principle of good administration on the ground that it did not consult the Advisory Committee on the particular circumstances relied on by the applicants. Indeed, the Commission was diligent during the administrative procedure since it (i) heard the applicants and examined their observations before the Advisory Committee delivered a written opinion on the preliminary draft decision and (ii) communicated to that committee the most important information for the calculation of the amount of the fine under Article 14(3) of Regulation No 1/2003.
96      Considerations similar to those set out in paragraphs 89 to 95 above are applicable to the applicants’ arguments concerning the consultation of the College of Commissioners. In that regard, it is apparent from the case file that, before adopting the contested decision, essential components of the draft decision, namely the draft and its annexes, the opinion of the Advisory Committee and the final report of the Hearing Officer, were submitted for final approval to the College of Commissioners.
97      Lastly, in so far as the applicants claim, in the context of the present complaint, that the amount of the fine could have been lower if the Advisory Committee and the College of Commissioners had been consulted on that information, it is sufficient to state that it follows from the considerations set out in paragraphs 108 to 129 below that the Commission did not err in law in finding that it was not necessary to take into account the information supporting the applicants’ request for a derogation from the general rule on the setting of fines, and from paragraphs 145 to 148 below that the principles of equality and proportionality did not justify such account being taken.
98      In the light of the foregoing considerations, the second part of the first plea must be rejected, as must the first plea in its entirety.
2.      Second plea: error of law
99      The applicants claim that the Commission erred in law in not applying, when calculating the amount of the fine, in the light of the particularities of the case, the exception provided for in point 37 of the Guidelines.
100    In the context of that plea, the applicants put forward two complaints, alleging, first, an error of assessment of the particular circumstances alleged by the applicants and, secondly, breach of the principle of equality and proportionality of penalties.
(a)    First complaint: error of assessment of the particular circumstances alleged by the applicants
101    The applicants claim, in essence, that the particularities of the present case, on account of which the exception to the general methodology for calculating the amount of the fine provided for in point 37 of the Guidelines should be applied, are to be found in the combination of three circumstances. The applicants assert, first, that they derive the bulk of their revenue from a single product, namely ODDs. They maintain, second, that the fine imposed, which is close to the 10% cap, hit them particularly hard because they are the only companies that were fined that decided to continue to operate on the ODD market, as a result of which their total turnover is relatively high. The applicants assert, third, that they were in a precarious financial situation that obliged them to restructure, given that they are dependent on their parent companies.
102    The Commission disputes the applicants’ arguments.
103    Point 37 of the Guidelines, which envisages the non-application of the general methodology for calculating fines provided for by those guidelines, is worded as follows:
‘Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.’
104    According to settled case-law, in adopting rules of conduct such as the Guidelines and by announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules on pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 211; of 12 December 2012, Ecka Granulate and non ferrum Metallpulver v Commission, T‑400/09, not published, EU:T:2012:675, paragraph 40; and of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 133).
105    It should be noted at the outset that a reduction in the amount of the fine may be granted under point 37 of the Guidelines only in exceptional circumstances when the particularities of a given case or the need to achieve deterrence in a particular case may justify the Commission departing from the general methodology for the calculation of the amount of the fine provided for in those guidelines.
106    The applicants argue in that regard that the particularities of the present case, to be found in the combination of three circumstances which were already set out during the administrative procedure, justified the Commission departing from that methodology. Moreover, the applicants argue in paragraphs 25 to 27 of the reply that the Commission analysed those criteria separately instead of assessing whether the combination of such factors justified recourse to the exception laid down in point 37 of the Guidelines.
107    It is appropriate to examine, in the first place, each circumstance alleged, and, in the second place, those three circumstances invoked by the applicants together.
(1)    The fact that the applicants derive the bulk of their revenue from a single product
108    As regards the first circumstance relied on by the applicants, according to which they derive the bulk of their revenue from sales of a single product, namely ODDs, it should be noted, first of all, that, as the Commission maintains, the single product nature of the applicants’ business is not relevant for assessing the legality of the calculation of the amount of the fine.
109    It has been held that the Commission is not obliged to take into account, when assessing the gravity of the infringement, the relationship between the total turnover of an undertaking and the turnover produced by the goods which are the subject matter of the infringement (see, to that effect, judgment of 8 July 2008, Saint-Gobain Gyproc Belgium v Commission, T‑50/03, not published, EU:T:2008:252, paragraph 93). The Commission is therefore not required to take into account the single product nature of the applicants’ business in assessing the gravity of the infringement.
110    Similarly, as regards the scale of the infringement on the market and the share of responsibility borne by each cartel participant, it should be noted that the proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market (judgment of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 121; see also, to that effect, judgments of 14 May 1998, Mayr-Melnhof v Commission, T‑347/94, EU:T:1998:101, paragraph 369, and of 8 July 2008, Saint-Gobain Gyproc Belgium v Commission, T‑50/03, not published, EU:T:2008:252, paragraph 94) and constitutes an objective criterion which gives a proper measure of the harm which the restrictive practice in question does to normal competition (judgment of 11 March 1999, British Steel v Commission, T‑151/94, EU:T:1999:52, paragraph 643). Therefore, since the proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market, the Commission did not misapply the methodology laid down by the Guidelines which provides for the calculation of the amount of the fine on that basis.
111    Furthermore, without prejudice to the findings that it is for the Court to make in the context of the examination of the claim for variation of the contested decision, it should be noted, as the Commission observes, that the argument that the applicants derive the bulk of their revenue from a single product is also irrelevant to the assessment of whether the Commission wrongly refused to depart from the general methodology for calculating fines under point 37 of the Guidelines.
112    The applicants’ strong focus on the development and supply of ODDs and the lesser degree of diversification of their activity compared to other cartel participants cannot suffice, in themselves, to establish that the Commission breached the principles of equality and proportionality by not applying specific criteria for the calculation of the amount of the fine imposed on the applicants. It follows from the case-law that the proportion of the overall turnover deriving from the sale of products in respect of which the infringement in question was committed is best able to reflect the economic importance of that infringement. Consequently, since the applicants derive a particularly large part, if not almost all, of their overall turnover from products which are the subject of the infringement, the fact that the amount of the fine imposed on the applicants represents a higher percentage of overall turnover by comparison with other cartel participants merely reflects the economic importance of that infringement for the applicants. Such a result is not contrary to the principle of equality or proportionality (see, to that effect and by analogy, judgment of 15 December 2016, Infineon Technologies v Commission,
T‑758/14, not published, EU:T:2016:737, paragraph 269, and Opinion of Advocate General Kokott in Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:258, point 100).
113    Nor is this conclusion called into question by the fact that, in the past, the Commission granted reductions in fines on an individual basis, in order to do justice to the characteristics of the business models of individual cartel participants. The Commission’s practice in previous decisions, contrary to what is maintained by the applicants, does not serve as a legal framework for imposing fines in competition matters (see, to that effect, judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 68).
114    Lastly, the applicants argue, contrary to the foregoing, that they do not contest the amount of their fine because it is higher, by reference to their turnover, than that of other undertakings fined. They submit that, in the present case, they are the only companies which continued to operate on the market.
115    However, as the Commission observed in the rejoinder, the fact that the applicants are the only companies still operating on the market, which is a matter relating solely to their business strategy, constitutes a factor which the Commission was not required to take into account when calculating the amount of the fine and which could not require the Commission to apply the exception laid down in point 37 of the Guidelines.
116    In those circumstances, it is necessary to reject the applicants’ arguments relating to the single product nature of their business.
(2)    Continuation of business activities on the ODD market
117    As regards, the second circumstance, according to which the fine imposed on the applicants, close to the 10% cap, severely affected them given that they are the only companies that were fined that decided to continue to operate on the ODD market as a result of which their overall turnover was relatively high, it must be observed, in the first place, that the basic amount of the fine imposed on them was, contrary to what the applicants claim, approximately 8.45% of their overall turnover for 2014 and that that amount was reduced by 50% under the leniency and partial immunity granted in respect of part of the infringement. It must therefore be observed that the total amount of the fine imposed on the applicants is EUR 37 121 000, namely 4.22% of their overall turnover. Consequently, the applicants’ argument that the fine which was imposed on them is close to the 10% cap has no basis in fact.
118    In the second place, as is apparent from paragraph 115 above, the fact that they are the only companies that were fined which decided to continue to operate on the ODD market is a matter relating solely to the applicants’ business strategy and cannot call into question the legality of the calculation of the amount of the fine.
119    Consequently, those arguments must also be rejected.
(3)    Financial difficulties
120    As regards the third circumstance, the applicants allege, first of all, that they rely on their financial difficulties without claiming to bring a request for inability to pay pursuant to point 35 of the Guidelines. Next, they claim that their financial difficulties stem from the fact that the fine had a negative economic impact on two aspects: in the first place, on the plan to restructure their business and, in the second place, on their continuing to operate on the market. Furthermore, the applicants maintain, contrary to what the Commission contends, that they suffered losses on ODD sales during the third and fourth quarters of 2015 because, following the exit from the market of Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. (together, ‘TSST’), they faced increased costs. Lastly, the applicants submit that the reduced ability of an undertaking to pay may be relevant for the application of point 37 of the Guidelines for the purpose of reducing the amount of the fine, independently of the formal inability to pay procedure under point 35 of those guidelines.
121    It must be pointed out that, according to settled case-law, the Commission is not in principle required, when determining the amount of the fine to be imposed for an infringement of the competition rules, to take into account the loss-making financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to market conditions (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 327; of 12 December 2012, Ecka Granulate and non ferrum Metallpulver v Commission, T‑400/09, not published, EU:T:2012:675, paragraph 94; and of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 135).
122    For that reason, the mere finding that the applicants are in an adverse or loss-making financial situation, due to their restructuring or their continuity on the market, cannot oblige the Commission to uphold a request seeking a reduction of the amount of the fine under point 37 of the Guidelines.
123    It follows that it is necessary to reject the applicants’ arguments relating to their adverse financial situation.
(4)    Combination of the three circumstances
124    The applicants take issue with the Commission for having examined the three particular circumstances separately instead of assessing whether the combination of those factors justified the application of the exception provided for in point 37 of the Guidelines. They claim that the combination of those three circumstances distinguishes them from the other companies that were fined, in particular TSST. They maintain, in essence, that it was necessary to continue their activities on the ODD market in order to avoid shortages of supply and possible price increases. That, in their submission, is why they decided to resolve their financial difficulties by taking themselves through a restructuring plan and acquiring new activities.
125    In the present case, it should be noted that the applicants themselves acknowledged that PLDS continued to operate on the ODD market and that that market was in decline. It should be further noted that the applicants have not demonstrated that their withdrawal from the market would have led to shortages of supply to the detriment of consumers.
126    Although it is true that the purpose of the fine imposed is to have the necessary deterrent effect, the fact remains that, according to the Court, Article 101 TFEU also aims, like other competition rules laid down in the TFEU, to protect not only the interests of the competitors or of consumers, but also the structure of the market and, in so doing, competition as such (see, to that effect, judgment of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others, C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraphs 62 to 64).
127    However, the applicants cannot rely, in the present case, on the alleged supply shortages and possible price increases to the detriment of consumers for the purposes of applying the exception laid down in point 37 of the Guidelines. Those circumstances, which are purely hypothetical, cannot be regarded as particular for the purpose of that provision, and, accordingly, are not capable of justifying, in themselves, a reduction of the amount of the fine. The fines imposed on undertakings by the Commission pursuant to Article 23(2) of Regulation No 1/2003 would be deprived of their deterrent effect if such difficulties were automatically to be taken into account.
128    In any event, it should be noted, as the Commission observes, that, in order to identify the relevant factors raised by the applicants for the purposes of calculating the amount of the fine, they should be evaluated separately and those that are irrelevant for the purposes of that calculation should be excluded, in order to avoid any unjustified advantage which could limit the deterrent effect of the fine.
129    Therefore, it should be noted that, as is apparent from paragraphs 108 to 123 above, the Commission was right to take the view that none of the three alleged circumstances was, in the circumstances of the case, relevant for a reduction of the amount of the fine under the exception laid down in point 37 of the Guidelines. Accordingly, the Commission was entitled to conclude that the combination of those circumstances was not capable of changing its assessment.
130    In those circumstances, the first complaint must be rejected as unfounded.
(b)    Second complaint: breach of the principles of equality and proportionality of penalties
131    The applicants claim, first, that the application of the 10% cap in cases involving single-product suppliers gives rise to a risk that the Commission will be prevented from differentiating the fines sufficiently among the cartel participants, calling into question the fairness and proportionality of the fines. The applicants maintain that the fine imposed on TSST ought to have been higher than that which was imposed on them, since, although the basic amounts of those fines were very similar, the applicants benefited from particular circumstances, notably the reduction of their fine by 50% under the leniency granted by the Commission.
132    They claim, second, that the fact that they continued their activities on the ODD market in spite of their financial difficulties ought to have been taken into account by the Commission for the purposes of sufficiently ‘personalising’ the fines imposed on the companies concerned, thus avoiding a proportionality issue. They contend in that regard that a further reduction of their fine under point 37 of the Guidelines would restore the gap between the amount of their fine and the amount of the fine imposed on TSST in such a way that the reduction granted to them under the Leniency Notice would be appropriately reflected.
133    The Commission disputes those assertions and maintains that the applicants rely on a flawed interpretation of the case-law of the Courts of the European Union.
134    In the first place, it should be observed that, as is apparent from Sections 8.3 to 8.5 of the contested decision, all of the adjustments made to reflect the individual gravity of the infringement, the duration of the applicants’ participation in the cartel and their role in the cartel were taken into account by the Commission in calculating the amount of the applicants’ fine.
135    Admittedly, although it is true that the fine imposed on the applicants is the second highest among the companies which were fined –– despite the fact that this amount was reduced by 50% under the Leniency Notice, unlike for the other undertakings that were also fined –– the reason why the applicants received that fine is because they had a much higher turnover for a longer period. Since the proportion of the overall turnover deriving from the sale of products in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (see, to that effect, judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 55), the fact that the applicants received a larger fine than that of the other cartel participants, even if the amount of the fine was reduced by 50% under the Leniency Notice, merely reflects the economic significance and the duration of their own participation in the infringement at issue (see paragraph 112 above).
136    Furthermore, as is apparent from paragraph 129 above, the Commission was right to find that the circumstances invoked by the applicants cannot constitute particular circumstances or circumstances which are necessary to achieve a specific level of deterrence for the purpose of point 37 of the Guidelines. In addition, it should be noted that, as is apparent from the previous paragraph, the fine imposed on the applicants reflects the economic importance and the duration of their own participation in the infringement and, consequently, a reduction based on the alleged circumstances would only limit its deterrent effect and would be contrary to the applicable rules, thus favouring the applicants.
137    In the second place, it should be noted that the limit of 10% of turnover, provided for in Article 23(2) of Regulation No 1/2003, seeks to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined by their total turnover, will not be able to pay. The fact that TSST benefited from that limit when it came to determining the amount of its fine (recital 572 of the contested decision) and that that limit has reduced the gap between the fine imposed on TSST and the fine imposed on the applicants cannot affect the legality of the contested decision in the light of the principles of proportionality and equality. Moreover, the Commission merely applied to the TSST companies the rule stipulated in the applicable competition rules regarding the maximum amount of the fine that can be imposed on the undertakings participating in the infringement.
138    In those circumstances, it must be held that the fine imposed on the applicants does not infringe the principles of equality and proportionality of penalties.
139    Consequently, in so far as it is put forward in support of the claim for annulment, the second complaint must be rejected and, consequently, the second plea must be rejected in its entirety.
140    Accordingly, since none of the pleas of the application is capable of resulting in the annulment in part of the contested decision, that claim for annulment must be rejected.
C.      The claim for variation of the contested decision
141    As a preliminary point, it should be noted, on the one hand, that the first plea, alleging breach of the principle of sound administration and of the obligation to state reasons cannot, in any event, lead the Court to vary the contested decision. Indeed, even if the Commission wrongly failed to explain why it did not accept the applicants’ request to apply point 37 of the Guidelines or failed to pass that request on to the Advisory Committee and the College of Commissioners, the Court’s finding of those irregularities could lead, where applicable, only to the annulment of the contested decision, but, under no circumstances, to a reduction in the amount of the fine imposed on the applicants. Consequently, in so far as it is put forward in support of the claim for variation, that plea is ineffective. Moreover, as is apparent from the considerations set out in paragraphs 68 to 96 above, the applicants have not established that the Commission committed a breach of the obligation to state reasons or the principle of good administration.
142    On the other hand, as regards the second plea, it should be observed that, as is apparent from paragraphs 101 to 138 above, the Commission did not commit an error of law or an error of assessment in considering that it was not appropriate, in the present case, to apply point 37 of the Guidelines and to depart from the methodology laid down in those guidelines when calculating the amount of the applicants’ fine.
143    Nevertheless, it should be borne in mind that, as regards the review carried out by the European Union judicature in respect of Commission decisions on competition matters, the unlimited jurisdiction authorises the competent court to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend the amount of the fine (judgment of 9 September 2015, Panasonic and MT Picture Display v Commission, T‑82/13, EU:T:2015:612, paragraph 155).
144    In the present case, it is therefore necessary to examine whether the circumstances relied on by the applicants under the second plea may, even in the absence of an error of law or an error of assessment committed by the Commission, justify the Court’s reducing the amount of the fine imposed on the applicants by the contested decision.
145    As regards, in the first place, the particular circumstances in support of their request that the Commission reduce the amount of the fine and which are invoked in the context of the first complaint, it should be noted, first of all, as was observed in paragraphs 110 to 112 above, that the proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market and its economic importance for the applicants’ activities. Consequently, the principles of equality and proportionality do not justify a reduction in the amount of the fine imposed on the applicants, on the ground that, because of the single product nature of their business, the amount of the fine imposed on them represents a higher percentage of their total turnover by comparison with other cartel participants.
146    Next, the applicants’ decision to continue to operate on the ODD market does not justify a reduction in the percentage of the overall turnover that ought to serve as a basis for calculating the amount of the fine. Indeed, as has been pointed out in paragraph 118 above, that decision is a matter relating solely to the applicants’ business strategy. Moreover, as was observed by the Commission in the rejoinder (paragraph 62), the applicants’ market share rose from 25% in 2011 to 39.5% in the fourth quarter of 2015 and they have therefore benefited from the reduced competition. Moreover, nothing justifies, in the light of the principles of proportionality and equality, a reduction of the amount of the fine being applied to companies which remained active on the market to the detriment of those that withdrew from it. Such a practice might, moreover, weaken the deterrent effect of the fines.
147    Lastly, as regards the applicants’ financial difficulties, it should be observed that, as the applicants have stated, they do not claim an inability to pay within the meaning of point 35 of the Guidelines. Furthermore, it is not apparent from the documents before the Court that their financial difficulties would, in the present case, constitute a particularity justifying, by way of exception, that that circumstance be taken into account in calculating the amount of the fine imposed on the applicants, even though they do not claim to be in a situation in which they are unable to pay. Moreover, the applicants do not contest that, as the Commission noted in the defence, they were supported by their parent companies and that, even though they expected a reduction in their profits in 2015, their business remained profitable. The applicants have therefore not established that the amount of the fine imposed on them is a source of financial difficulties for them such that, in the light of the principles of equality and proportionality, they are in a special situation which justifies that amount being reduced.
148    It should be added that, although the applicants submit that the combination of the three circumstances set out in the context of the first complaint must be assessed in order to determine whether there are grounds for a reduction of the amount of their fine, it does not appear that such a combination –– given that each of those circumstances, taken by itself, is not capable of justifying such a reduction –– constitutes a particularity which is capable of altering the assessment of the Court in that regard.
149    As regards, in the second place, the arguments relating to the insufficient ‘personalisation’ of penalties owing to the application of the 10% cap on turnover, relied upon in support of the second complaint, it should first of all be recalled that, as has been noted in paragraph 137 above, the mere fact that the application of the 10% cap to TSST had the effect of reducing the gap between the amount of the fine imposed on TSST and the amount of the fine imposed on the applicants cannot, in itself, justify a reduction of the applicants’ fine in order to make it fair and proportionate. Indeed, that result is merely the consequence of the substantial differences in turnover between the two companies, which is exactly what the application of the 10% cap allows to take into account.
150    However, the applicants argue, relying on the case-law derived from the judgment of 16 June 2011, Putters v Commission (T‑211/08, EU:T:2011:289, paragraph 75), that the Court should exercise its unlimited jurisdiction since, in the present case, the application of the Guidelines does not allow for appropriate differentiation of the fines imposed, in particular, between the applicants and TSST.
151    In the present case, as is apparent from paragraphs 134 to 136 above, the Court cannot apply a different method of calculation to the applicants on the ground that it is appropriate to differentiate sufficiently the amount of their fine from that of the fines imposed on the other undertakings that were fined, as this differentiation is not necessary and would provide an unfair competitive advantage to the applicants by reducing the deterrent effect of their fine. As regards the calculation of the amount of the fine, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see, to that effect, judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 58 and the case-law cited).
152    In those circumstances, it must be held that none of the circumstances relied on by the applicants justify the Court exercising its unlimited jurisdiction by reducing the amount of the fine, in particular on the basis of point 37 of the Guidelines.
153    The claim for variation must therefore be rejected and, consequently, the action must be dismissed in its entirety.
IV.    Costs
154    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the applicants have been unsuccessful, the latter must be ordered to bear their own costs and to pay those incurred by the Commission.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Hitachi-LG Data Storage, Inc. and Hitachi-LG Data Storage Korea, Inc. to bear their own costs and pay the costs incurred by the European Commission.
Gratsias
Labucka
Ulloa Rubio
Delivered in open court in Luxembourg on 12 July 2019.
E. Coulon
D. Gratsias
Registrar
President
Table of contents
I. Background to the dispute
A. Applicants and relevant market
B. Administrative procedure
C. Contested decision
1. The infringement at issue
2. The applicants’ liability
3. The fine imposed on the applicants
II. Procedure and forms of order sought
III. Law
A. The scope of the dispute
B. The claim for annulment
1. First plea: breach of the principle of good administration and of the obligation to state reasons
(a) The first part: alleging breach of the obligation to state reasons
(1) The statement of reasons for the fine imposed on the applicants
(2) The Commission’s obligation to state the reasons for not taking into account the particular circumstances alleged by the applicants
(b) Second part: breach of the principle of good administration
2. Second plea: error of law
(a) First complaint: error of assessment of the particular circumstances alleged by the applicants
(1) The fact that the applicants derive the bulk of their revenue from a single product
(2) Continuation of business activities on the ODD market
(3) Financial difficulties
(4) Combination of the three circumstances
(b) Second complaint: breach of the principles of equality and proportionality of penalties
C. The claim for variation of the contested decision
IV. Costs
*      Language of the case: English.
1      This judgment is published in extract form.