62011TJ0128_EN
Parties
Operative part
Parties
In Case T‑128/11,
LG Display Co. Ltd,
established in Seoul (South Korea),
LG Display Taiwan Co. Ltd,
established in Taipei (Taiwan),
represented by A. Winckler and F.-C. Laprévote, lawyers,
applicants,
v
European Commission,
represented by P. Van Nuffel and F. Ronkes Agerbeek, acting as Agents, and by S. Kingston BL,
defendant,
APPLICATION for partial annulment of Commission Decision C(2010) 8761 final of 8 December 2010 relating to a proceeding pursuant to Article 101 [TFEU] and Article 53 of the Agreement on the European Economic Area (Case COMP/39.309 – LCD – Liquid Crystal Displays), and for reduction of the fine imposed on the applicants by that decision,
THE GENERAL COURT (Sixth Chamber),
composed of H. Kanninen, President, G. Berardis (Rapporteur) and C. Wetter, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 26 April 2013,
gives the following
Judgment (1)
Background to the dispute
The companies involved in the present case
1. LG Display Co. Ltd (‘LGD’), formerly known as LG Philips LCD Co. Ltd, is a company governed by Korean law which exercises control over a group of companies established and operating worldwide in the production of liquid crystal display panels (‘LCD panels’).
2. LGD was formed on 26 July 1999 through a joint venture agreement between LG Electronics, Inc. (‘LGE’), a company governed by Korean law, and Koninklijke Philips Electronics N.V. (‘Philips’), a company governed by Netherlands law.
3. From 26 July 1999 until 23 July 2004, LGE and Philips each owned 50% of the capital of LGD. Subsequently, their respective shares decreased to 37.9% and 32.87%.
4. LG Display Taiwan Co. Ltd, formerly known as LG Philips LCD Taiwan (‘LGDT’), a company governed by Taiwanese law, is a wholly owned subsidiary of LGD, active in the production and supply of LCD panels.
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The contested decision
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19. In the contested decision, the Commission noted the existence of a cartel among six major international manufacturers of LCD panels, including the applicants, concerning the two following categories of products equal to or greater than 12 inches in size: LCD panels for information technology, such as those for notebooks and PC monitors (‘LCD-IT panels’), and LCD panels for televisions (‘LCD-TV panels’) (referred to collectively as ‘cartelised LCD panels’).
20. According to the contested decision, that cartel took the form of a single and continuous infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA), which took place from 5 October 2001 until at least 1 February 2006 (‘the infringement period’). During that period, the participants in the cartel held numerous multilateral meetings, which they called ‘Crystal Meetings’, mostly in Taiwanese hotels. Those meetings had a clearly anti-competitive object, since they provided an opportunity for the participants, inter alia, to fix minimum prices for cartelised LCD panels, to discuss their future prices in order to avoid price reductions and to coordinate increases in prices and levels of production. During the infringement period, the cartel participants also met bilaterally and frequently exchanged information on matters dealt with in the ‘Crystal Meetings’. They also took steps in order to verify whether the decisions adopted at those meetings had been applied (recitals 70 to 74 of the contested decision).
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22. In accordance with the 2006 Guidelines, the Commission, first, established the value of the sales of the cartelised LCD panels either directly or indirectly concerned by the infringement. To that end, it established the following three categories of sales made by the participants in the cartel:
– ‘direct EEA sales’, namely sales of cartelised LCD panels to another undertaking within the EEA;
– ‘direct EEA sales through transformed products’, namely sales of cartelised LCD panels incorporated, within the group to which the producer belongs, into finished products which are then sold to another undertaking within the EEA; and
– ‘indirect sales’, namely, sales of cartelised LCD panels to another undertaking situated outside the EEA, which then incorporates the panels in finished products which it sells within the EEA (recital 380 of the contested decision).
23. However, the Commission took the view that it needed to examine only the first two categories mentioned in paragraph 22 above, as the inclusion of the third category was not necessary for the fines imposed to achieve a sufficient level of deterrence (recital 381 of the contested decision).
24. Instead of taking into account the value of sales made by an undertaking during the last full business year of its participation in the infringement, as it normally does under point 13 of the 2006 Guidelines, the Commission considered it more appropriate to use, in the present case, the average annual value of sales for the entire duration of the infringement, taking into particular account the exponential growth of sales for the majority of the undertakings concerned over the years covered by the contested decision (recital 384 of the contested decision).
25. Despite the applicants’ objections, the Commission held that the relevant sales value was to be calculated taking account also of the applicants’ sales to LGE and to Philips. In the Commission’s view, first, sales to those companies were also covered by the discussions between the participants in the cartel in question and, second, the prices of those sales were influenced by the actual market circumstances, that is to say, the existence of cartelised prices. Thus, for the applicants, the total of relevant sales made during the infringement period was fixed at EUR 2 296 240 479, the yearly average of which, obtained by dividing that amount by the duration of the cartel which is 4.33 years, amounted to EUR 530 309 579 (recitals 386 and 396 as well as Table 4 of the contested decision).
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31. On the basis of those considerations, the Commission, in Article 2 of the contested decision, imposed on the applicants joint and several liability for payment of a fine of EUR 215 000 000.
Procedure and forms of order sought
32. By application lodged at the Court Registry on 23 February 2011, the applicants brought the present action.
33. After the Commission lodged its rejoinder on 8 December 2011, the applicants submitted an offer of further evidence, on the basis of Article 48(1) of the Rules of Procedure of the General Court, in support of the fourth plea in law raised in their application (‘the offer of further evidence’).
34. The Commission submitted its observations on the offer of further evidence on 26 January 2012.
35. Upon hearing the Report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure, put questions in writing to the parties, which answered them within the period prescribed.
36. At the hearing on 26 April 2013, the parties presented oral argument and replied to oral questions put by the Court.
37. Following the hearing, the oral procedure having remained open, the Court put further questions in writing to the parties, which answered them within the period prescribed.
38. The oral procedure was closed by decision of the President of the Sixth Chamber of the Court on 12 July 2013.
39. The applicants claim that the Court should:
– partially annul the contested decision and substantially reduce the fine imposed on them pursuant to that decision;
– order the Commission to pay the costs;
– take any other measures that it considers appropriate.
40. The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
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First plea in law, alleging that the Commission, wrongly and in breach of the applicants’ rights of defence, included their internal sales in the calculation of the fine
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First part, concerning infringement of the 2006 Guidelines
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– The inclusion of sales to undertakings related to the applicants
60. The applicants maintain, in essence, that the fact that they do not form a single undertaking with LGE and Philips within the meaning of the case-law cited in paragraph 54 above, while it means that LGE and Philips cannot be regarded as jointly and severally liable for the infringement committed by the applicants, is irrelevant for the purpose of establishing whether the cartelised LCD panels which the applicants sold to LGE and Philips were among the sales to which the infringement established in the contested decision relates, for the purposes of point 13 of the 2006 Guidelines.
61. In that regard, the Court observes that the Commission has not maintained that the infringement related to the applicants’ sales to LGE and Philips merely because they were not sales between companies forming part of a single undertaking within the meaning of the case-law referred to in paragraph 54 above.
62. The fact that in the contested decision the Commission did not find that the applicants, LGE and Philips formed a single undertaking was a necessary condition for including the applicants’ sales to LGE and Philips in the category of ‘direct EEA sales’, which is based on the premise that the sales in question were to independent third parties. However, the Commission was still required to explain in what way the applicants’ sales to LGE and Philips were linked to the cartel.
63. Concerning that issue, the Commission, in recital 396 of the contested decision, took the view that that link consisted in the fact that (i) sales of cartelised LCD panels to customers, such as LGE and Philips, which were related to cartel participants, were part of the cartel discussions and (ii) that prices for sales to those customers were influenced by the actual market circumstances, that is, the existence of cartelised prices.
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Third part, concerning an infringement of the principle of equal treatment
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136. As regards the applicants, the Commission ultimately concluded that they did not form a single undertaking with LGE and Philips. It is to be noted in that regard that the applicants have not produced any evidence casting doubt on the Commission’s conclusion.
137. Thus, the applicants’ sales to LGE and Philips were included in the category of ‘direct EEA sales’.
138. If the Commission had not adopted that approach, it would have conferred an advantage on the applicants by comparison with the other cartel participants which, like them, were not vertically integrated in that they did not form a single undertaking with the companies to which they sold their cartelised LCD panels.
139. The fact that the Commission, with regard to cartel participants which, unlike the applicants, had been regarded as vertically-integrated single undertakings, included the relevant sales in the category of ‘direct EEA sales through transformed products’ cannot be criticised from the point of view of compliance with the principle of equal treatment, since the existence of a single undertaking gives rise to a different situation, which justifies the application of that other category to the aforementioned participants.
140. With regard to the applicants’ argument relating to the alleged discrimination that operated by reference to whether intra-group sales were to subsidiaries or to parent companies, suffice it to observe that the Commission, correctly, applied the concept of a single undertaking. Thus, wholly-owned subsidiaries were regarded as forming part of the same undertaking as the cartel participants, whereas companies with a shareholding in companies forming part of the cartel were not regarded as parent companies where it was not shown that the conditions laid down in that regard by the case-law were met. The Commission considered that it had not been shown that those conditions were met in the case of LGE and Philips vis-à-vis the applicants, which do not challenge that finding. However, when one of the undertakings participating in the cartel made sales within the EEA to independent third parties, those sales were taken into account by the Commission, whatever the status (subsidiary or parent) within that undertaking of the company which had actually sold the cartelised LCD panels.
141. As regards the fact that the Commission decided not to include in the calculation of the fine the third category of sales defined in recital 380 of the contested decision, namely ‘indirect sales’ (see paragraph 22 above), it should be observed that, although it is true that certain cartelised LCD panels supplied by the cartel participants to third parties established outside the EEA may have ended up in finished products sold within the EEA, it cannot be denied that the link between the cartel and the territory of the EEA, for the purposes of point 13 of the 2006 Guidelines, was weaker than the link which existed in the case of the two categories of sales which the contested decision did take into account.
142. Moreover, since the exclusion of indirect sales was applied to all the cartel participants, no finding of discrimination can be made in that regard.
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Second plea in law, alleging that the Commission wrongly refused to grant the applicants immunity from fines for 2005
155. The applicants submit that the Commission should have granted them partial immunity, pursuant to the final paragraph of point 23(b) of the 2002 Leniency Notice, not only for 2006 but also for 2005. By virtue of their oral request for leniency of 17 July 2006 and their further oral statement of 20 July 2006, which was accompanied by a considerable amount of documentary evidence, the applicants were, so they argue, the first to inform the Commission of facts previously unknown to it, namely that the LCD-panel cartel had continued in 2005. In that regard, the applicants submit that the documents produced by Samsung on 18 July 2006, subsequent to their oral request, did not serve to establish that ‘Crystal Meetings’ were organised throughout 2005 and that Samsung’s further oral statement of 20 July 2006, while describing contacts between competitors in 2005, was not accompanied by any documentary evidence.
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157. It should be recalled that point 23 of the 2002 Leniency Notice is worded as follows:
‘The Commission will determine in any final decision adopted at the end of the administrative procedure:
(a) whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s possession at that same time;
(b) the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as follows. For the:
– first undertaking to meet point 21: a reduction of 30-50%,
– …
In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’
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General principles
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166. Thus, the final paragraph of point 23(b) of the 2002 Leniency Notice does not concern cases in which an undertaking merely submits new or more complete evidence relating to facts of which the Commission is already aware. Nor does that paragraph apply to cases in which an undertaking informs the Commission of new facts which, however, are not capable of modifying the Commission’s assessment in relation to the gravity or duration of the infringement. That provision applies, on the contrary, exclusively to cases in which two conditions are satisfied: first, the undertaking in question is the first to prove facts of which the Commission was previously unaware; and, second, those facts, which have a direct bearing on the gravity or the duration of the suspected cartel, enable the Commission to make new findings concerning the infringement ( Transcatab
v Commission, paragraph 382).
167. It is appropriate to adopt a restrictive interpretation of the conditions laid down for applying the last paragraph of point 23(b) of the 2002 Leniency Notice, by limiting it to cases in which a company party to a cartel provides the Commission with new information relating to the gravity or the duration of the infringement, and by excluding cases in which a company has merely provided information which strengthens the evidence of the existence of the infringement. In that regard, it should be recalled that, since the leniency procedure is an exception to the rule that an undertaking must be punished for any infringement of the rules of competition law, the relevant rules must for that reason be interpreted strictly. Moreover, the effectiveness of leniency programmes would be undermined if undertakings no longer had an incentive to be the first to submit information revealing the existence of a cartel to the Commission.
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Application to the present case
170. First of all, the Court finds that the applicants do not challenge the Commission’s chronology of the events of July 2006. Thus, it is common ground that:
– the applicants made an oral statement on 17 July 2006;
– Samsung produced certain items of evidence on 18 July 2006;
– Samsung made an oral statement on 20 July 2006, at 09.40;
– the applicants made an oral statement and produced evidence on 20 July 2006 at 15.30.
171. It follows that, in order to qualify for partial immunity for 2005, the applicants must show that the information which they submitted on 17 July 2006 met the conditions provided for by the last paragraph of point 23(b) of the 2002 Leniency Notice, as summarised in paragraph 166 above. Failing that, the applicants would have to show, first, that, despite the information disclosed by Samsung on 18 and 20 July 2006, the Commission did not know that the infringement established in the contested decision had continued in 2005, and, second, that the information which they produced on 20 July 2006 met the conditions in question.
172. The Court must determine whether, by the arguments put forward in support of this plea, the applicants have succeeded in establishing that they should have been granted partial immunity for 2005.
173. In the first place, the applicants maintain that the Commission misinterpreted the final paragraph of point 23(b) of the 2002 Leniency Notice, by requiring that, in order to obtain partial immunity, they should provide evidence that was sufficient to establish the facts in issue. In fact, the wording of the notice, as interpreted by the Commission in other cases, merely provides that the evidence should be relevant. Moreover, the Commission gave Samsung preferential treatment by granting it immunity on the basis of information the quality of which was no higher than that of the information provided by the applicants.
174. In that regard, it must be observed that, in accordance with the principles set out in paragraphs 161 to 168 above, the Commission correctly considered the information provided by the applicants on 17 July 2006 to be too vague to satisfy the conditions laid down by the provision in question, as interpreted by the case-law.
175. A reading of the applicants’ statement of 17 July 2006 supports the conclusion that the Commission was justified, in recital 467 of the contested decision, in stating as follows:
‘… In this case the mere allegations made orally on 17 July 2006 that meetings, similar to those of 5 and 19 October 2001, continued until early 2005 and that thereafter some exchange of information continued for some period of time, or that sometimes minimum prices and pricing guidelines were discussed and agreed to, but otherwise those meetings typically related to exchanges of price, capacity and production information were not sufficient to establish that the infringement lasted into 2005. By the time [LGD] submitted evidence of that kind regarding 2005 and even the first two months of 2006, notably by its submission of 20 July 2006, Samsung, as immunity applicant, had already sufficiently informed the Commission on the continuation of the infringement in 2005 in its submissions of 18 and 20 July 2006 …’
176. Contrary to the applicants’ contention, their statement cannot be regarded as including precise and substantiated evidence, having a direct bearing on the duration of the infringement within the meaning of the case-law referred to in paragraph 168 above, that the infringement carried on throughout the whole of 2005. Even though the statement indicates that information on prices, the market and worldwide supply conditions as well as information concerning dealings with certain customers was exchanged at meetings over the period from October 2001 to early 2005, it is then a question, after that date, of ‘some exchange of information’ for ‘some period of time’, without it being specified what type of information was involved. The references which are made in the statement to exchanges of information on prices relate to the abovementioned meetings that were held between 2001 and early 2005. Nothing in the statement mentions an exchange of information on prices for the period after the start of 2005. Nor does the statement specify at what point in 2005 the nature of the meetings changed but merely indicates that a change occurred at the start of the year.
177. Accordingly, the information contained in the applicants’ statement so far as 2005 is concerned is too vague to have a direct bearing on the duration of the cartel.
178. As to the fact that the Commission applied less restrictive criteria to Samsung when it granted it immunity from fines, it need only be stated that the test to be applied for that purpose, which is described in point 8(b) of the 2002 Leniency Notice, is different from the test provided for in the final paragraph of point 23(b) of the notice. Point 8(b) provides that full immunity is to be granted to the undertaking which is the first to submit evidence which in the Commission’s view may enable it to find there to be a cartel.
179. The fact that different tests are involved is an objective ground which justifies the Commission not treating Samsung and the applicants in the same way, without infringing the principle of equal treatment (see the case-law cited in paragraph 131 above).
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189. Moreover, it is true that the item of evidence provided by Samsung that is referred to in paragraph 187 above is not mentioned in the contested decision, which most often relies on evidence provided by the applicants so far as the year 2005 is concerned. However, the fact that the contested decision does not refer to every piece of evidence provided by Samsung does not affect the fact that, at the time of the applicants’ statement on 20 July 2006, the Commission knew, because of the evidence provided by Samsung, that bilateral contacts between certain cartel participants had continued in 2005.
190. The fact that the Commission made frequent use of the information provided by the applicants on 20 July 2006 confirms that that information in fact had greater evidential value than the information previously disclosed by Samsung. However, it was precisely for that reason that the Commission took the view that the evidence provided by the applicants represented ‘significant added value’ within the meaning of points 21 and 22 of the 2002 Leniency Notice, justifying a reduction of 50% of the fine. In that regard, it must be pointed out that the test for granting that reduction is different from the test, set out in paragraph 166 above, which must be used for determining whether the applicants’ statement of 20 July 2006 could give rise to a grant of partial immunity for 2005 as well.
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192. Fourth, as regards the fact that the information provided by Samsung does not relate to the ‘Crystal Meetings’, but only to bilateral contacts, it should be borne in mind that the contested decision, inter alia in recital 70, defines the infringement in issue as covering not only the ‘Crystal Meetings’ but also meetings and bilateral contacts between the participants. Therefore, evidence concerning the existence of those contacts in the course of 2005 is relevant for the purpose of proving that the single infringement established in the contested decision continued throughout that year.
193. As regards the contention that the evidence produced by Samsung did not specifically refer to the applicants’ participation in the cartel in 2005, the first point to make is that, as has been noted in paragraph 185 above, one of the e-mails produced by Samsung mentions the possibility of the applicants being asked to state their intentions with regard to certain prices, which shows their continued involvement in the cartel. Second, according to the case-law, where there is a single and continuous infringement, an undertaking that has participated in an infringement by virtue of its own conduct, which met the definition of an agreement or a concerted practice within the meaning of Article 101(1) TFEU and which was intended to help to bring about the infringement as a whole, may also be responsible for the conduct of other undertakings followed in the context of the same infringement throughout the period of its participation in the infringement (Joined Cases T‑101/05 and T‑111/05 BASF and UCB
v Commission
[2007] ECR II‑4949, paragraph 160, and judgment of 2 February 2012 in Case T‑83/08 Denki Kagaku Kogyo and Denka Chemicals
v Commission, not published in the ECR, paragraph 242).
194. It follows from the foregoing that the arguments whereby the applicants seek to obtain partial immunity for 2005 are unfounded.
195. That being so, the Court must consider, finally, the applicants’ argument, put forward in the alternative, concerning the fact that the partial immunity which the Commission granted them for January 2006 meant that that month should have been excluded from every stage of the calculation of the fine so far as they were concerned.
196. In that regard, the Court notes that, as is indicated in Table 5 of the contested decision, the Commission excluded January 2006 from the calculation of the multiplier for duration so far as the applicants were concerned. A multiplier of 4.16 was applied in the applicants’ case, whilst a multiplier of 4.25 was applied to the other cartel participants, corresponding to the duration of the whole infringement period, rounded down.
197. However, in defining the value of sales of goods related to the infringement (the value from which the basic amount is obtained for the purpose of calculating the fine), the Commission, for all the parties to the infringement, calculated their average sales over the whole infringement period, including January 2006.
198. The Commission therefore, for the applicants as well, took into account their total sales throughout the whole infringement period, including January 2006, and divided the amount obtained by 4.33, the duration of the whole infringement period, rounded up.
199. It should be observed that, as the Commission acknowledged in recital 468 of the contested decision, the fact that the applicants were granted partial immunity for 2006 means that they must be treated as if they had only participated in the infringement from 5 October 2001 to 31 December 2005 for the purpose of determining the fine to be imposed on them. In terms that are closer to those of the final paragraph of point 23(b) of the 2002 Leniency Notice, account must not be taken of facts later than 31 December 2005 when setting that fine.
200. In taking the approach that it did with the applicants, the Commission failed to respect its own undertaking not to take into account the period covered by partial immunity, granted under the final paragraph of point 23(b) of the 2002 Leniency Notice.
201. That provision does not stipulate that the Commission is to disregard the facts to which that immunity relates solely for the purpose of calculating the multiplier for duration; it must be recognised as having a more general scope, which thus means those facts cannot be taken into account in relation to any aspect of the setting of the fine, including the calculation of the average value of relevant sales. In essence, partial immunity, as contemplated in the 2002 Leniency Notice, thus amounts to a ‘legal fiction’ whereby, for the purpose of setting the fine, the Commission must reason as if the undertaking that has been granted partial immunity had not participated in the infringement during the period covered by the grant.
202. For that reason the Court must reject the Commission’s argument that partial immunity does not affect the choice of reference year(s) used to calculate the value of relevant sales in determining the basic amount of the fine, as that value serves solely to estimate the cartel participant’s ability to inflict harm.
203. It follows that the present plea must be upheld in part, in so far as the Commission, incorrectly, took January 2006 into account in the calculation of the value of th e applicants’ sales for the purpose of setting the fine to be imposed on them.
Third plea in law, alleging that the Commission wrongly refused to regard the applicants’ cooperation as a mitigating circumstance in calculating the fine
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205. According to the fourth indent of point 29 of the 2006 Guidelines, the fact that ‘the undertaking concerned has effectively cooperated with the Commission outside the scope of the [2002] Leniency Notice and beyond its legal obligation to do so’ may amount to a mitigating circumstance capable of giving rise to a reduction of the fine.
206. In that regard, that provision must be interpreted to the effect that it does not allow an undertaking to receive two reductions of the fine, one under the 2002 Leniency Notice and another under the 2006 Guidelines, in respect of the same cooperation with the Commission.
207. It follows from the case-law that, in relation to infringements which fall within the scope of the 2002 Leniency Notice, an interested party cannot, as a rule, validly complain that the Commission failed to take into account the extent of its cooperation as a mitigating circumstance outside the legal framework of the Leniency Notice (see, to that effect, Case T‑15/02 BASF
v Commission
[2006] ECR II‑497, paragraph 586, and Case T‑189/06 Arkema France
v Commission
[2011] ECR II‑5455, paragraph 178). Since the Commission has taken the applicants’ cooperation into account by reducing the fine pursuant to the 2002 Leniency Notice, it cannot validly be complained that it did not apply a further reduction to the fine imposed on the applicants, outside the scope of that notice.
208. It follows that the case-law which states that, in exceptional situations, the Commission is required to grant a reduction of the fine to an undertaking on the basis of the fourth indent of point 29 of the 2006 Guidelines (see, to that effect, Case T‑343/08 Arkema France
v Commission, paragraph 170, and Transcatab
v Commission, paragraph 330) must be interpreted as meaning that a prerequisite for the existence of such situations is that the cooperation of the undertaking concerned, while going beyond its legal obligation to cooperate, none the less does not give rise to the right to a reduction of the fine under the 2002 Leniency Notice.
209. In the present case, since the Commission alleges that the applicants took part in a cartel, there is no question that there was an infringement which fell within the scope of the 2002 Leniency Notice (see, by analogy, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission
[2005] ECR I‑5425, paragraph 381).
210. Similarly, it is not disputed that the applicants were granted a reduction of the fine pursuant to that notice.
211. In those circumstances, the applicants would be able to receive a further reduction, by way of a mitigating circumstance, only on the basis of cooperation other than that already taken into account under the 2002 Leniency Notice, which met the conditions necessary for the fourth indent of point 29 of the 2006 Guidelines to apply.
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Fourth plea in law, concerning the exclusion from the proceedings of the Japanese suppliers of LCD panels
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The concept of a single and continuous infringement
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220. It should be recalled at the outset that the concept of a single infringement covers a situation in which a number of undertakings have participated in an infringement consisting in continuous conduct in pursuit of a single economic aim intended to distort competition or in individual infringements linked to one another by the same object (all the elements sharing the same purpose) and the same subjects (the same undertakings, which are aware that they are participating in the common object) (see Case T‑446/05 Amann & Söhne and Cousin Filterie
v Commission
[2010] ECR II‑1255, paragraph 89 and the case-law cited).
221. It must also be noted that 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. Where the various actions form part of an overall plan, owing to their identical object, which distorts competition within the single market, the Commission is entitled to impute responsibility for those actions to the undertakings concerned on the basis of their participation in the infringement considered as a whole (see Amann & Söhne and Cousin Filterie v Commission, paragraph 90 and the case-law cited).
222. In that regard, the Court observes, in the first place, that, whilst that case-law permits the Commission to proceed, by means of a single set of proceedings and a single decision, against several instances of conduct which could have been proceeded against individually, that does not mean that the Commission is obliged to act in that way. Thus, no objection can, as a rule, be made where the Commission proceeds separately against different instances of conduct which it could have grouped together in a single and continuous infringement. Moreover, each of those instances of conduct could contain within it several infringements.
223. Accordingly, the Commission has a discretion as to the scope of the proceedings which it initiates. In that regard, according to the case-law, it cannot be obliged to find and penalise all anti-competitive conduct, nor could the Courts of the European Union hold – if only for the purposes of reducing the fine – that the Commission, in the light of the evidence available to it, should have found that there was an infringement during a particular period by a particular undertaking (see, to that effect, Tokai Carbon and Others
v Commission, paragraphs 369 and 370).
224. The exercise of that discretion is subject to review by the Courts. However, it follows from the case-law that only if it transpired that the Commission, without an objective reason, made a single factual situation the subject of two separate sets of proceedings could its choice be regarded as a misuse of powers (see, to that effect, Case C‑441/07 P Commission
v Alrosa
[2010] ECR I‑5949, paragraph 89).
225. In the present case, the Commission considered that it did not have – or did not yet have – sufficient evidence against the Japanese suppliers and thus chose not to proceed against them at the same time as against the applicants and the other addressees of the contested decision. That situation constitutes an objective reason which justifies the Commission’s choice. It goes without saying that, in proceedings brought against the Japanese suppliers, the Commission is obliged to observe inter alia the principle ne bis in idem
with regard to the applicants.
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228. In the present case, it should first of all be observed that the infringement alleged by the Commission against the addressees of the contested decision resides in the fact that they participated (i) in the ‘Crystal Meetings’, during which they fixed minimum prices for cartelised LCD panels, discussed future prices in order to avoid price reductions and coordinated their price increases as well as their levels of production, and (ii) in bilateral meetings concerning the matters discussed at the ‘Crystal Meetings’ (see paragraph 20 above).
229. The applicants accept that the Japanese suppliers did not participate in the ‘Crystal Meetings’ but in other meetings, which the addressees of the contested decision did not attend.
230. Even if the Japanese suppliers had also implemented, either amongst themselves or also with the addressees of the contested decision, a cartel seeking to distort competition as regards the prices of LCD panels, their strategy in that regard cannot be considered necessarily to form part of the same overall plan or to use the same methods as those elaborated by the addressees of the contested decision.
231. The lack of proof of an overall plan and common methods is an objective ground permitting the Commission to proceed against the infringement committed by the applicants without including in the same proceedings any infringement that might have been committed by the Japanese suppliers.
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234. It is also necessary to reject the argument which the applicants seek to draw from the fact that the Commission has maintained, in its pleadings before the Court, that it was in order to comply with the principles established in Case T‑474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission
[2007] ECR II‑4225 (‘ Pergan ’), paragraphs 72 to 81, that it omitted any reference to the Japanese suppliers in the contested decision although they had been mentioned in the statement of objections, while not being addressees thereof.
235. In that regard, it should be observed that it follows from Pergan
that, in order to respect, inter alia, the presumption of innocence, the Commission must refrain from publishing, in its decisions, references from which it might be inferred that an undertaking is accused of an infringement when the undertaking is not named as an addressee in the operative part of that decision. However, the fact that the Commission, following the principles established in Pergan, did not mention the Japanese suppliers in the contested decision merely means that it respected the presumption of innocence with regard to those suppliers. The fact that they are not mentioned cannot, however, be interpreted as meaning that the Commission has taken a position, even implicitly, on the involvement of the Japanese suppliers in anti-competitive practices concerning cartelised LCD panels.
…
Alleged breach of the obligation to state reasons
…
238. In that regard, the Court observes that the Commission had no obligation to explain in the contested decision the reasons why proceedings had not been taken against the Japanese suppliers. The obligation to state the reasons on which a measure is based cannot encompass an obligation for the institution from which it emanates to give reasons for the fact that it did not adopt other measures of a similar kind addressed to third parties (see, to that effect, Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others
v Commission
[2004] ECR II‑2501, paragraph 414, and Case T‑304/02 Hoek Loos
v Commission
[2006] ECR II‑1887, paragraph 63). The arguments raised by the applicants must therefore be rejected.
Alleged infringements of the principles of legal certainty and ne bis in idem
…
242. In the present case, the applicants cannot rely on the ne bis in idem
principle, since their action is directed against the decision bringing to an end the first procedure which the Commission opened against them in respect of an infringement concerning cartelised LCD panels. That principle may, in fact, be relied on only against a decision closing a second procedure that might be initiated in respect of the same infringement. However, the ne bis in idem
principle cannot play any role in relation to the contested decision, the existence of which is a condition sine qua non
if that principle is to be relied on with regard to the second procedure.
243. Legal certainty for the applicants is ensured by the fact that any Commission decision proceeding against them in respect of the same infringement as the one to which the contested decision relates would be contrary to the ne bis in idem
principle. It is clearly not possible to rely on that principle as a preventive step in the context of the present action, which has been brought against the contested decision.
244. The fact that the Commission has opened an investigation into the Japanese suppliers, in the context of which it has requested information from the applicants, has no impact on the legality of the contested decision or on the amount of the fine imposed on them. The fact that the Commission proceeded against the applicants in respect of the infringement established in the contested decision does not mean that they are dispensed from their duty to cooperate with the Commission in proceedings which may lead to a finding that an infringement has been committed by other undertakings, or even by them, provided that the facts relied on by the Commission for that purpose are different from those on which the contested decision – which did not concern the Japanese suppliers – is based.
…
Alleged infringement of the principle of proportionality
…
248. The Court observes that the proportionality of a fine must be assessed in the light of all of the circumstances of the infringement (see Case T‑52/02 SNCZ
v Commission [2005] ECR II‑5005, paragraph 58 and the case-law cited). The risks to which the applicants refer of having to bear additional costs as a result of the Commission opening a second procedure in respect of, inter alia, the Japanese suppliers cannot be regarded as circumstances relating to the infringement committed by the applicants, which was established in the contested decision.
…
Exercise of the Court’s unlimited jurisdiction
252. As well as partial annulment of the contested decision, the applicants request that the Court reduce the fine imposed on them by the Commission, relying (i) on the fact that the Commission made the errors referred to by the pleas examined above and (ii), as regards the exclusion from the procedure of the Japanese LCD-panel suppliers, on the possibility that the opening of an investigation into those suppliers will cause them harm.
253. It is apparent from the examination of the applicants’ pleas in law that the only error the Commission made in setting their fine was to take January 2006 into account in the calculation of the average value of their sales (paragraphs 195 to 203 above). Moreover, for the reasons given in paragraph 244 above, the opening by the Commission of an investigation into the Japanese suppliers cannot be regarded as having caused the applicants harm. In any event, that circumstance has had no impact on the gravity or duration of the infringement committed by the applicants.
254. In those circumstances, it is necessary to consider the applicants’ request that the Court correct the error relating to January 2006 and, as a consequence, reduce the fine imposed on them by the Commission.
255. It should be recalled that the review of legality of decisions adopted by the Commission is supplemented by the unlimited jurisdiction which the Courts of the European Union are afforded by Article 31 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed.
256. It is therefore for the Court, in the exercise of its unlimited jurisdiction, to assess, on the date on which it adopts its decision, whether the applicant received a fine whose amount properly reflects the gravity of the infringement in question (see, to that effect, Case T‑343/06 Shell Petroleum and Others v Commission
[2012] ECR, paragraph 117 and the case-law cited).
257. In the present case, the parties are agreed that the consequence of excluding January 2006 from the calculation of the average value of the applicants’ relevant sales is – if the same method as that used in the contested decision is applied to that average – that the fine to be imposed on the applicants amounts to EUR 210 000 000.
258. Accordingly, in the absence of other factors capable of justifying a more significant reduction of the fine imposed on the applicants in the contested decision and having regard to all the circumstances of the case, the fine must be reduced to EUR 210 000 000.
259. Furthermore, in view of all the foregoing, the remainder of the claims made in the application must be rejected.
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(1) .
(1) Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.
Operative part
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Sets at EUR 210 000 000 the fine imposed jointly and severally on LG Display Co. Ltd and LG Display Taiwan Co. Ltd in Article 2 of Commission Decision C(2010) 8761 final of 8 December 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the Agreement on the European Economic Area (Case COMP/39.309 – LCD – Liquid Crystal Displays);
2. Dismisses the action as to the remainder;
3. Orders LG Display and LG Display Taiwan to bear their own costs and to pay three-quarters of the costs incurred by the European Commission;
4. Orders the Commission to bea r one-quarter of its own costs.