62012TJ0404
JUDGMENT OF THE GENERAL COURT (First Chamber)
19 January 2016 (
*1
)
‛Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — New decision taken following annulment in part of the initial decision by the Court — Fines — Rights of the defence — Obligation to state reasons — Equal treatment — Starting amount — Extent of contribution to the infringement’
In Case T‑404/12,
Toshiba Corp., established in Tokyo (Japan), represented by J. MacLennan, Solicitor, A. Schulz and S. Sakellariou, lawyers,
applicant,
v
European Commission, represented by N. Khan and F. Ronkes Agerbeek, acting as Agents,
defendant,
APPLICATION, principally, for the annulment of Commission Decision C(2012) 4381 of 27 June 2012 amending Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] (now Article 101 TFEU) and Article 53 of the EEA Agreement to the extent that it was addressed to Mitsubishi Electric Corp. and Toshiba Corp. (Case COMP/39.966 — Gas Insulated Switchgear — Fines), and, in the alternative, for the reduction of the fine imposed on the applicant,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 21 April 2015,
gives the following
Judgment
Background to the dispute
1
The applicant, Toshiba Corp., is a Japanese company active in various sectors, in particular the sector for gas insulated switchgear (‘GIS’). Between October 2002 and April 2005, its GIS business was carried on within a joint venture, TM T&D Corp., jointly owned in equal shares with Mitsubishi Electric Corp. (‘Melco’) and dissolved in 2005.
2
On 24 January 2007, the Commission of the European Communities adopted Decision C(2006) 6762 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) (‘the 2007 decision’).
3
In the 2007 decision, the Commission found there to have been a single and continuous infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘EEA Agreement’) on the GIS products market between 15 April 1988 and 11 May 2004 and imposed on the addressees of that decision, which were European and Japanese GIS producers, fines calculated in accordance with the methods set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) (‘the Guidelines on the method of setting fines’) and in the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).
4
The infringement at issue in the 2007 decision comprised three essential components:
—
an agreement signed in Vienna on 15 April 1988 (‘the GQ Agreement’), which established rules allowing the allocation of worldwide GIS projects according to agreed rules in order to maintain quotas largely reflecting ‘estimated historic market shares’; the agreement, which was applicable worldwide, except in the United States, Canada, Japan and 17 western European countries, was based on the allocation of ‘a joint Japanese quota’ to Japanese producers and a ‘joint European quota’ to European producers;
—
a parallel agreement (‘the common understanding’), under which, first, GIS projects in Japan and in the countries of the European members of the cartel were reserved to the Japanese members and the European members of the cartel respectively and, second, GIS projects located in the other European countries were also reserved for the European group, since the Japanese producers had undertaken not to submit bids for GIS projects in Europe; however, in exchange for that commitment, such projects had to be notified to the Japanese group and charged to the ‘joint European quota’ set under the GQ Agreement;
—
an agreement signed in Vienna on 15 April 1988, entitled ‘E-Group Operation Agreement for GQ Agreement’ (‘the EQ Agreement’), signed by the members of the European group of producers and aimed at distribution of GIS projects allocated to that group under the GQ Agreement.
5
In Article 1 of the 2007 decision, the Commission found that the applicant had participated in the infringement from 15 April 1988 to 11 May 2004.
6
For the infringement found in Article 1 of the 2007 decision the applicant was fined, in Article 2 of that decision, EUR 90900000, of which EUR 4650000, which corresponded to the infringement committed by TM T&D, was to be paid jointly and severally with Melco.
7
On 18 April 2007, the applicant brought an action against the 2007 decision.
8
By judgment of 12 July 2011 in Toshiba v Commission, T‑113/07, ECR, EU:T:2011:343, the Court, first, dismissed the applicant’s action in so far as it sought the annulment of Article 1 of the 2007 decision. Second, it annulled Article 2(h) and (i) of the 2007 decision in so far as it concerned the applicant, on the ground that the Commission had infringed the principle of equal treatment by choosing, when calculating the fine, a reference year for the applicant which was different from that chosen for the European participants in the infringement.
9
On 23 September 2011, the applicant lodged an appeal before the Court of Justice against the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343).
10
On 15 February 2012, the European Commission sent the applicant a letter of facts, in which it stated that it intended to adopt a new decision imposing a fine on the applicant (‘the letter of facts’). The Commission set out the facts which, in its view, were relevant for the calculation of that fine, account being taken of the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343).
11
On 7 and 23 March 2012, the applicant submitted its comments on the letter of facts.
12
On 12 June 2012, a meeting was held between the applicant’s representatives and the Commission team responsible for the case.
13
By Commission Decision C(2012) 4381 of 27 June 2012 amending the 2007 decision to the extent that it was addressed to Melco and the applicant (Case COMP/39.966 — Gas Insulated Switchgear — Fines) (‘the contested decision’), Article 2 of the 2007 decision was amended by the addition of two new points, (h) and (i). Under Article 2(h), a fine of EUR 4650000 was imposed on the applicant, to be paid jointly and severally with Melco. Under Article 2(i), a fine of EUR 56793000 was imposed on the applicant, for which it was solely liable.
14
In order to remedy the unequal treatment criticised by the Court in its judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), the Commission used, in the contested decision, the worldwide turnover for GIS products in 2003. In so far as, in that year, the GIS activities of the applicant and of Melco were carried out by TM T&D, the Commission took into consideration that company’s turnover in 2003 (recitals 59 and 60 of the contested decision).
15
Thus, first, in the context of the differential treatment aimed at reflecting the respective contributions of the various participants in the cartel, the Commission calculated TM T&D’s GIS market share in 2003 (15% to 20%) and placed it in the second group in accordance with the categorisation established in recitals 482 to 488 of the 2007 decision. Consequently, a hypothetical starting amount of EUR 31000000 was allocated to TM T&D (recital 61 of the contested decision).
16
Second, in order to reflect the applicant’s and Melco’s unequal capacity to contribute to the infringement during the period prior to the creation of TM T&D, the starting amount determined for the latter was divided between its shareholders in accordance with their respective GIS sales in 2001, which was the last full year prior to the creation of TM T&D. Consequently, starting amounts of EUR 10863199 and EUR 20136801 were allocated to the applicant and Melco respectively (recitals 62 and 63 of the contested decision).
17
Third, in order to ensure the deterrent effect of the fine, the Commission applied a deterrence multiplier of 2 to the applicant, on the basis of its turnover in 2005 (recitals 69 to 71 of the contested decision).
18
Fourth, with a view to reflecting the duration of the infringement during the period prior to the creation of TM T&D, the starting amount attributed to the applicant was increased by 140% (recitals 73 to 76 of the contested decision).
19
Fifth, in order to reflect the duration of the infringement during TM T&D’s period of operation, a sum corresponding to 15% of the hypothetical starting amount of TM T&D was imposed on the applicant and Melco jointly and severally (recital 77 of the contested decision).
20
Sixth and finally, the fine imposed jointly and severally was multiplied by the applicant’s deterrence multiplier and the amount resulting from that multiplication, minus the amount of the fine imposed jointly and severally, was imposed on the applicant on an individual basis (recital 78 of the contested decision).
Procedure and forms of order sought by the parties
21
By application lodged at the Court Registry on 12 September 2012, the applicant brought the present action.
22
By order of the President of the Fourth Chamber of the General Court of 2 May 2013, proceedings were stayed until the judgment in Case C‑498/11 P Toshiba Corp. v Commission had been delivered.
23
Following changes to the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the First Chamber, to which the present case has therefore been allocated.
24
By judgment of 19 December 2013 in Siemens and Others v Commission (C‑239/11 P, C‑489/11 P and C‑498/11 P, EU:C:2013:866), the Court of Justice dismissed the appeal brought by the applicant against the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343). The proceedings in the present case were thus resumed.
25
On hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided, on 3 February 2015, to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure of the General Court of 2 May 1991, requested the parties to lodge a document and put written questions to them. The parties complied with the Court’s requests.
26
By letter of 15 April 2015, which was placed in the file, the applicant submitted its comments on the Commission’s answers to the questions put by the Court. In an annex to that letter it communicated to the Court a summary prepared by its lawyers following the meeting of 12 June 2012.
27
At the hearing on 21 April 2015, the parties presented oral argument and replied to the Court’s questions.
28
The applicant claims that the Court should:
—
annul the contested decision;
—
in the alternative, reduce the fine;
—
order the Commission to pay the costs, including the costs incurred in connection with the bank guarantee.
29
The Commission contends that the Court should:
—
dismiss the action as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law;
—
order the applicant to pay the costs.
Law
The main application, seeking annulment of the contested decision
30
The applicant relies on five pleas in law in support of its main application. The first plea alleges an infringement of the principles of good administration and proportionality. The second plea alleges an infringement of the applicant’s rights of defence. The third plea alleges an infringement of the principle of equal treatment as regards the starting amount of the fine. The fourth plea alleges an infringement of the obligation to state reasons. The fifth plea alleges an infringement of the principle of equal treatment as regards the determination of the level of culpability of the applicant compared to the European participants in the infringement.
31
In response to the written question put by the Court, the applicant stated that, following the delivery of the judgment in Siemens and Others v Commission, cited in paragraph 24 above (EU:C:2013:866), it was retracting its first plea in law. Consequently, the Court is required to examine only pleas two to five. In that regard, the Court considers it appropriate to examine the pleas regarding the procedure which led to the adoption of the contested decision and the grounds for that decision, namely the second and fourth pleas, before addressing the third and fifth pleas, which concern the validity of the calculation of the fine made in that decision.
The second plea, alleging an infringement of the applicant’s rights of defence
32
The applicant submits that the Commission infringed its rights of defence in so far as, first, it did not send a new statement of objections prior to the adoption of the contested decision and, second, it failed to address in the letter of facts all the important elements of the calculation of the fine imposed.
33
The Commission disputes the merits of the applicant’s arguments.
– The first part of the second plea, alleging the lack of a new statement of objections
34
By the first part of the second plea, the applicant submits that, rather than sending the applicant a mere letter of facts, the Commission should have sent it a new statement of objections prior to the adoption of the contested decision.
35
The applicant points out, in that regard, that the statement of objections constitutes an ‘essential procedural safeguard’ which ensures the right of an addressee of a Commission decision to be heard, and submits that a letter of facts does not provide the same safeguards as a statement of objections, in particular in so far as it does not make it possible to request an oral hearing before the hearing officer, who is independent from the case-team.
36
According to the applicant, the Commission wrongly submits that a statement of objections is necessary only when new objections are raised. In accordance with the case-law, a statement of objections is required in order to enable the undertaking concerned to defend itself not only against a finding of an infringement but also against the imposition of a new fine. That conclusion is confirmed by the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ 2011 C 308, p. 6) (‘the notice on best practices’), and statements made by the Competition Commissioner. Similarly, the adoption of a new statement of objections is also in line with the Commission’s decision-making practice in cases comparable to the present case, in which a decision has been annulled by the EU judicature.
37
The applicant adds that, according to the case-law, the procedure for replacing an annulled procedure must, in principle, be resumed at the very point at which the illegality occurred. In the present case, the error which justified the annulment of the 2007 decision is a substantive error of law which inevitably affected the validity of the measures preparatory to that decision, which means that a new statement of objections was necessary.
38
The Commission responds that, in so far as it did not rely on any new elements against the applicant, a new statement of objections was not necessary in the present case.
39
According to the case-law, the statement of objections must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. It is only on that condition that the statement of objections can fulfil its function under the EU regulations of giving undertakings all the information necessary to enable them to defend themselves properly, before the Commission adopts a final decision (see judgment of 15 March 2006 in BASF v Commission, T‑15/02, ECR, EU:T:2006:74, paragraph 46 and the case-law cited).
40
With regard to exercise of the rights of the defence in respect of the imposition of fines, it is settled case-law that, provided the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined (see judgment in BASF v Commission, cited in paragraph 39 above, EU:T:2006:74, paragraph 48 and the case-law cited).
41
In that respect, the Commission is not required, once it has indicated the main factual and legal criteria on which it will base its calculation of the amount of the fines, to specify the way in which it will use each of those elements in order to determine their level. To give indications as regards the amount of the fines envisaged, before the undertakings have been invited to submit their observations on the allegations against them, would be to anticipate the Commission’s decision and would thus be inappropriate (see judgment in BASF v Commission, cited in paragraph 39 above, EU:T:2006:74, paragraph 62 and the case-law cited).
42
In the present case, it is not disputed that the adoption of the 2007 decision was preceded by the sending, on 20 April 2006, of a statement of objections to the applicant (‘the 2006 statement of objections’). Given that the contested decision provides explicitly that it constitutes a decision which amends the 2007 decision, its adoption procedure amounts to an extension of the procedure which led to the 2007 decision. Accordingly, in so far as it was not called into question in the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), the content of the 2006 statement of objections may be taken into consideration in assessing whether the applicant’s rights of defence were respected in the procedure which led to the adoption of the contested decision.
43
In point 9.2 of the 2006 statement of objections, the Commission expressly stated that it intended to impose fines on the addressees of that document (recital 408) and set out the essential factors for the determination of the amount of those fines (recitals 409 to 416), namely the gravity of the infringement, its deliberate and long-lasting nature, the secretive and institutionalised nature of the cartel, its geographical scale, the relative weight of the infringement committed by the various undertakings, in particular in relation to the duration of their participation and their importance on the GIS market, and the wish to ensure that the fines had a deterrent effect.
44
Thus, contrary to what the applicant submitted at the hearing, the 2006 statement of objections satisfies the requirements set out in the case-law cited in paragraph 40 above in relation to observance of the rights of the defence.
45
Moreover, although in the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), the 2007 decision was annulled in so far as a fine was imposed on the applicant, that judgment did not call into question the veracity, relevance or validity of the elements of law and fact relating to the calculation of the fine set out in the 2006 statement of objections and summarised in paragraph 43 above.
46
In particular, the Court criticised neither the Commission’s wish to ensure that the fines had a deterrent effect nor its decision to reflect the relative weight of the infringement committed by the various undertakings in relation to their importance on the GIS market, since it merely stated that, in the circumstances of the case, it was not justifiable to use different reference years for different undertakings.
47
Consequently, the findings made in the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), do not preclude the taking into account of the information provided in the 2006 statement of objections regarding the determination of the amount of the fine when reviewing whether the applicant’s rights of defence were respected in the procedure which led to the contested decision.
48
The other arguments raised by the applicant in support of the first part of the second plea cannot cast doubt on that conclusion.
49
The applicant invokes the case-law pursuant to which a statement of objections is required in order to enable the undertaking concerned to defend itself not only against a finding of an infringement but also against the imposition of a fine which was not mentioned in the earlier statement of objections (judgment of 15 March 2000 in Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, ECR, EU:T:2000:77, paragraph 480).
50
However, that case-law concerns the case in which, in the final decision, the Commission imposed fines on both undertakings and professional associations, whereas the statement of objections referred only to the Commission’s intention to impose fines on undertakings. Accordingly, the rights of defence of the professional associations concerned had been infringed in that they had not been invited, during the administrative procedure, to submit comments on the potential use by the Commission of its power to impose a fine on them (judgment in Cimenteries CBR and Others v Commission, cited in paragraph 49 above, EU:T:2000:77, paragraph 480).
51
In the present case, by contrast, recital 408 of the 2006 statement of objections explicitly referred to the Commission’s intention to impose fines on the addressees of that document, including on the applicant. Consequently, the judgment in Cimenteries CBR and Others v Commission, cited in paragraph 49 above (EU:T:2000:77), was delivered in very different factual circumstances and that judgment is thus not capable of demonstrating the soundness of the applicant’s arguments.
52
The same finding must be made in relation to the Commission’s alleged decision-making practice, in the form of three decisions.
53
As regards Commission Decision 94/215/ECSC of 16 February 1994, re-adopted on 8 November 2006 (Case COMP/38.907 — Steel beams), a new statement of objections was sent as a result of the fact that the earlier statement of objections had been sent to TradeArbed SA, whereas the fine was ultimately imposed on its parent company, Arbed SA. As for Commission Decision 98/247/ECSC of 21 January 1998, re-adopted on 20 December 2006 (Case COMP/39.234 — Alloy surcharge re-adoption), the illegality arose from the fact that, in the final decision, ThyssenKrupp Stainless AG was held liable for the participation of Thyssen Stahl AG in the cartel, without that attribution of liability having first been mentioned in the statement of objections and, consequently, without ThyssenKrupp Stainless having been able to defend itself in that regard. So far as concerns the Commission’s Decision of 20 December 2001 in Case COMP/36.212 — Carbonless paper, re-adopted on 23 June 2010, that decision arose, on the contrary, from the fact that Bolloré SA could not infer from the earlier statement of objections the Commission’s intention to take as a basis its direct involvement in the cartel, and not just the involvement of its subsidiary Copigraph.
54
Thus, in the three cases, the sending of a new statement of objections resulted from the fact that the Commission had decided to impute to undertakings conduct which was not referred to in the earlier statement of objections. That is not so in the present case, which, moreover, the applicant does not dispute.
55
In so far as concerns the notice on best practices, the points thereof relating to the content of the statement of objections as regards the imposition of fines are worded as follows:
‘84.
The Statement of Objections will clearly indicate whether the Commission intends to impose fines on the undertakings, should the objections be upheld (Article 23 of Regulation (EC) No 1/2003). In such cases, the Statement of Objections will refer to the relevant principles laid down in the Guidelines on setting fines. In the Statement of Objections the Commission will indicate the essential facts and matters of law which may result in the imposition of a fine, such as the duration and gravity of the infringement and that the infringement was committed intentionally or by negligence. The Statement of Objections will also mention in a sufficiently precise manner that certain facts may give rise to aggravating circumstances and, to the extent possible, to attenuating circumstances.
85.
Although under no legal obligation in this respect, in order to increase transparency, the Commission will endeavour to include in the Statement of Objections (using information available) further matters relevant to any subsequent calculation of fines, including the relevant sales figures to be taken into account and the year(s) that will be considered for the value of such sales. Such information may also be provided to the parties after the Statement of Objections. In both cases, the parties will be provided with an opportunity to comment.’
56
First, as the Commission submits, point 7 of the notice on best practices states explicitly that ‘[the] notice does not create any new rights or obligations, nor alter, the rights or obligations which arise from the [FEU Treaty], Regulation (EC) No 1/2003, the Implementing Regulation and the case-law of the Court of Justice of the European Union’. Thus, the notice on best practices cannot, in any event, derogate from the case-law set out in paragraphs 39 to 41 above.
57
Next, the same finding is all the more valid as regards the elements referred to in point 85 of the notice on best practices, since the Commission explicitly stated that the reference to them in the statement of objections was not the result of a legal obligation and it could, in any event, have communicated them to the undertakings concerned at a later date.
58
Lastly, the elements referred to in point 84 of the notice on best practices correspond to those set out in the case-law referred to in paragraphs 39 to 41 above. Accordingly, it is apparent from the examination carried out in paragraphs 43 and 44 above that the 2006 statement of objections satisfied the requirements set out in point 84 of the notice on best practices.
59
Consequently, the examination of the notice on best practices does not substantiate the applicant’s claims.
60
The same is true as regards the statements of 14 Avril 2011 made by the Competition Commissioner and relied on by the applicant. First, such statements cannot bind the Commission when adopting decisions imposing fines for infringements of the competition rules. Second, the view of the Competition Commissioner, as it is described by the applicant, indicates a potential commitment of a political nature and does not amount to the expression of an existing, binding rule of law.
61
The applicant also submits that the error which justified the annulment of the 2007 decision is a substantive error of law which inevitably affected the validity of the measures preparatory to that decision, which means, in its view, that a new statement of objections was necessary.
62
However, the applicant fails to state how exactly the preparatory measures of the 2007 decision were vitiated by the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343).
63
Furthermore and in any event, as has already essentially been stated in paragraphs 45 and 46 above, the Court’s criticism in its judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), did not relate to the identification of facts and the legal assessment of the infringement committed by the applicant or to the determination of the factors to be taken into account when calculating the fine. The Court merely found fault with the choice of reference data to be used for the detailed calculation, which is, consequently, the only preparatory measure which is capable of being vitiated by the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343). It is apparent from the cas-law cited in paragraphs 39 to 41 above that that calculation does not have to be set out in the statement of objections; it is sufficient for the rights of defence of the undertakings concerned that the relevant factors be set out. Consequently, the argument related to the preparatory measures also fails to demonstrate that a new statement of objections was necessary in the present case.
64
In the light of all of the foregoing, it must be concluded, first, that the 2006 statement of objections gave the applicant the information necessary to enable it to defend itself properly, including in relation to the imposition of a fine, second, that the veracity, relevance or validity of that information were not affected by the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), and, lastly, that, in the contested decision, the Commission did not rely on any factors against the applicant other than those which were set out in the 2006 statement of objections.
65
Accordingly, the Commission was not required to send a new statement of objections to the applicant, with the result that the first part of the second plea must be rejected.
– The second part of the second plea, alleging an infringement of the applicant’s right to be heard in relation to the additional amount
66
By the second part of the second plea, the applicant submits that its rights of defence have been infringed in that, in spite of the Commission’s obligation to include in the letter of facts as many details as possible with regard to the methodology for the calculation of the fine, that letter failed to address all the important aspects of the calculation of the fine imposed.
67
The letter of facts allegedly did not address the Commission’s intention to impose an additional amount on the applicant to the tune of EUR 4.65 million, resulting from the application of the applicant’s deterrence multiplier for the period of operation of TM T&D, referred to in paragraph 20 above (‘the additional amount’).
68
Consequently, the applicant submits that it was not provided with the opportunity to comment on the application of the additional amount, referred to in recital 78 of the contested decision, which means that the Commission infringed its rights of defence.
69
Moreover, the applicant considers that the imposition of the additional amount, on top of the fine imposed on TM T&D, is erroneous.
70
The Commission contests the merits of the applicant’s arguments.
71
As regards the complaint alleging an infringement of the rights of the defence, the Court notes that, in accordance with the case-law, respect for such rights requires that the person concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (judgment of 7 January 2004 in Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, ECR, EU:C:2004:6, paragraph 66).
72
Moreover, it has already been stated in paragraph 40 above that, provided the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and sets out the principal elements of fact and of law that may give rise to a fine, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined (see judgment in BASF v Commission, cited in paragraph 39 above, EU:T:2006:74, paragraph 48 and the case-law cited).
73
In the present case, it follows expressly from recital 78 of the contested decision that the additional amount seeks to ensure the deterrent effect of the fine imposed on the applicant. As has been found in paragraph 43 above, sufficient reference was made in point 9.2 of the 2006 statement of objections to the wish to ensure the deterrent effect of the fine, which may be taken into consideration in the present case (see paragraph 42 above). Consequently, the requirements laid down in the case-law set out in paragraphs 40 and 72 above were observed by the Commission in so far as concerns the additional amount.
74
That finding is, however, without prejudice to the fact that, following the communication of the statement of objections, the Commission was required, in accordance with the case-law cited in paragraph 71 above, to provide the applicant with additional information as to how it intended to ensure the deterrent effect of the fine, so as to enable it properly to make known its views in that regard, including in relation to the imposition of the additional amount.
75
Nonetheless, contrary to what the applicant implies, in so far as the letter of facts does not have any particular procedural status, it was not necessary for the Commission to have referred expressly in that particular document to the information in question. Rather, it needs to be ascertained whether, in relation to the proceedings as a whole which led to the adoption of the contested decision, the applicant was placed in a position in which it could adequately understand that intention and respond to it.
76
First, it should be pointed out that the relevant information in that regard can be found in the 2007 decision. Recital 491 of that decision determines the deterrence multiplier applicable to the applicant, whereas recital 503 provides explicitly, contrary to what the applicant submitted at the hearing, that an additional amount, calculated on the basis of that same multiplier, is to be imposed on the applicant for the period of operation of TM T&D. In the light of those recitals, the applicant was thus in a position to understand that the Commission sought to ensure the deterrent effect of the fine also in relation to the period of operation of TM T&D.
77
Second, there is nothing in the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), which leads to the conclusion that the Commission’s decision to ensure the deterrent effect of the fine imposed on the applicant also in relation to the period of operation of TM T&D was unlawful or inappropriate, since that judgment does not address that issue.
78
Third, in point 20 of the letter of facts, the Commission stated that, in the new decision to be adopted following the delivery of the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), it was not going to raise new complaints against the applicant and that the calculation of the new fine was going to be based on the assessment of the facts made in the 2007 decision, regard being had to the principles laid down in the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), and the judgment of 12 July 2011 in Mitsubishi Electric v Commission (T‑133/07, ECR, EU:T:2011:345). In points 22, 31 and 32 of the letter of facts, the Commission noted its intention to set the fine high enough to ensure that it had deterrent effect and stated that its assessment in that regard would be based on the total turnover of the applicant and Melco. In points 21 and 41 of the letter of facts, the Commission invited the applicant and Melco to submit their comments, in particular in relation to the methodology for the calculation of the fine and the relevant parameters, and prescribed a deadline for that purpose.
79
Thus, on reading the letter of facts, the applicant was in a position to understand, first, that, to the extent that the parameters of the calculation of the fine imposed in the 2007 decision were compatible with the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), they would form part of the decision to be adopted and, second, that those parameters included the wish to ensure the deterrent effect of the fine. In so far as that same wish led the Commission, in the 2007 decision, to impose on the applicant an additional amount for the period of operation of TM T&D, the applicant was in a position to be able to understand that a similar additional amount could be imposed on it by the Commission in the contested decision.
80
The applicant submits that the letter of facts did not refer, in points 31 and 32 thereof, to the 2007 decision with regard to the imposition of the additional amount, whereas it did so with regard to other aspects of the calculation of the fine, in particular in points 26 and 39 thereof.
81
Without it being necessary to address the admissibility of that argument, which the Commission contests, suffice it to note that, as has been observed in paragraphs 78 and 79 above, the fact that the decision to be adopted was to be based, in so far as possible, on the parameters relied on in the 2007 decision was evident from the letter of facts, in particular from point 20 thereof, notwithstanding the fact that no explicit reference to the 2007 decision was made in points 31 and 32 of that letter.
82
Fourth, in points 21 and 22 of its comments on the letter of facts, the applicant referred to the deterrence multiplier to be applied to it, without questioning the period in respect of which it was to be applied. Thus, the applicant’s comments on the letter of facts do not indicate uncertainty as to the determination of that period.
83
Fifth, the parties are in disagreement regarding the question whether the application of the deterrence multiplier for the period of operation of TM T&D was raised at the meeting on 12 June 2012. The Commission submits that that was the case, relying on the internal minutes which it prepared at that meeting. The applicant disputes the Commission’s interpretation and refers to the summary prepared by its lawyers following that meeting, which it annexed to its letter of 15 April 2015.
84
The Court notes, in that regard, that, although the internal minutes of the Commission contain, in the second indent on page three, a passage which could possibly be interpreted as referring to the application of the deterrence multiplier for the period of operation of TM T&D, that passage was not drafted in a sufficiently clear manner — which the Commission itself admits — with the result that it cannot be taken into consideration by the Court.
85
Nonetheless, it is clear from both the other parts of the internal minutes of the Commission, which are drafted clearly and precisely, and the summary prepared by the applicant’s lawyers, which may be taken into consideration in that they amount to a reaction to the Commission’s claims made in response to the questions put by the Court (see, to that effect, judgment of 14 April 2005 in Gaki-Kakouri v Court of Justice, C‑243/04 P, EU:C:2005:238, paragraph 32), that, in the Commission’s opinion, there was no need to change the parameters used to calculate the fine in the 2007 decision — which were not criticised by the Court — and that the only change to be made to the methodology was, therefore, in relation to the reference year. As has been noted in paragraphs 76 and 77 above, the Commission applied the deterrence multiplier to the period of operation of TM T&D in the 2007 decision, without that element of the calculation of the fine having been subsequently criticised by the Court.
86
Accordingly, it must be found that the position expressed by the Commission at the meeting on 12 June 2012, as it is reflected in both its internal minutes and in the summary prepared by the applicant’s lawyers, corroborated the other relevant information from which it was apparent that it intended to apply the deterrence multiplier to the period of operation of TM T&D and, consequently, to impose the additional amount on the applicant.
87
In the light of the foregoing, it must be concluded that, from the time of the 2006 statement of objections, the applicant was aware that the Commission intended to ensure the deterrent effect of the fine imposed. At the very latest from the time of the 2007 decision, it was in a position to understand that that intention implied the imposition of an additional amount for the period of operation of TM T&D. That intention was not called into question in the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), and was reaffirmed in both the letter of facts and at the meeting on 12 June 2012.
88
Accordingly, the applicant’s arguments do not enable it to be established that its rights of defence were infringed in relation to the Commission’s intention to impose the additional amount on it. Therefore, the second part of the second plea must be rejected to the extent that it alleges an infringement of those rights.
89
In so far as the applicant submits, moreover, that the imposition of the additional amount is based on an error, it must be found that its argument is of no consequence in the context of the present plea in that it does not seek to establish an infringement of its rights of defence.
90
Furthermore, and in any event, the applicant merely states that, in so far as different fines were imposed ‘on Toshiba’ and ‘on TM T&D’ in the contested decision, the additional amount could not be imposed on top of the second fine, given that TM T&D was distinct from its shareholders and that its turnover was not large enough to justify the application of a deterrence multiplier. That argument is based on a false premiss, since separate fines were not imposed ‘on the applicant’ and ‘on TM T&D’ in the contested decision. Rather, a single fine was imposed on the applicant for its participation in the infringement. In addition, the fact that a part of the fine imposed on the applicant corresponds to the period of operation of TM T&D does not imply that that part of the fine cannot be increased by the additional amount in order to ensure a deterrent effect for the applicant, which was found liable for the infringement committed by TM T&D.
91
In the light of all the foregoing, the second part of the second plea must be rejected and, therefore, the second plea must be rejected in its entirety.
The fourth plea, alleging an infringement of the obligation to state reasons
92
By its fourth plea, the applicant submits that the Commission failed to state reasons to the requisite legal standard for TM T&D’s starting amount, which was used in the contested decision to calculate the applicant’s starting amount, the fine relating to TM T&D’s period of operation and the additional amount. It argues that the basis on which the Commission calculated a starting amount of EUR 31000000 for TM T&D was not explained in the 2007 decision and that the same starting amount was used in the contested decision without any additional explanation having being provided. Consequently, in determining TM T&D’s starting amount, the Commission acted arbitrarily and infringed the obligation to state reasons.
93
The Commission contests the merits of the applicant’s arguments.
94
According to the case-law, the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights and to enable the EU judicature to exercise its power of review (see, by analogy, judgment of 18 September 2003 in Volkswagen v Commission, C‑338/00 P, ECR, EU:C:2003:473, paragraph 124 and the case-law cited). Although pursuant to Article 296 TFEU the Commission is bound to state the reasons on which its decisions are based, mentioning the facts, law and considerations which have led it to adopt them, it is not required to discuss all the issues of fact and law which have been raised during the administrative procedure (see, by analogy, judgment in Volkswagen v Commission, 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 (see judgment of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63 and the case-law cited). That case-law is applicable, by analogy, to Commission decisions finding an infringement of Article 53(1) of the Agreement on the European Economic Area.
95
The Court points out, in that regard, that the contested decision provides explicitly that it constitutes a decision which amends the 2007 decision with regard to the fines imposed on the applicant and Melco. Accordingly, the grounds for the 2007 decision, in so far as they have not been affected by the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), and are not contradicted by the wording of the contested decision, may be taken into account in the examination of the present plea.
96
In recitals 57 to 61 of the contested decision, the Commission considered that, since the infringement concerned was very serious, it was necessary to apply differential treatment to the various undertakings in order to take account of differences in their capacity to cause significant damage to competition. It considered that that differential treatment should take the form of a categorisation of the starting amounts on the basis of the worldwide turnovers for GIS products in 2003 provided by the various undertakings which participated in the infringement. Referring to the categorisation established in recitals 484 to 488 of the 2007 decision, the Commission stated, in recital 61 of the contested decision, that TM T&D’s worldwide turnover for GIS products placed it in the second group, resulting in a hypothetical starting amount of EUR 31000000.
97
Moreover, it is stated in recital 483 of the 2007 decision that the categories were established in such a way that the differences between the GIS market shares of the undertakings in the same group were less significant than the differences between the market shares of undertakings placed in different groups.
98
It is further apparent from point 1A of the Guidelines on the method of setting fines that, in relation to very serious infringements, the starting amount was likely to be above EUR 20000000.
99
Those elements are such as to enable the applicant to understand the factors which made it possible for the Commission to measure the gravity of the infringement committed by it, which means that the Commission fulfilled its obligation to state reasons and that it was not required, inter alia, to set out a more detailed account or the figures relating to the precise calculation of the starting amount of the fine imposed on TM T&D (see, to that effect, judgment of 29 April 2004 in Tokai Carbon and Others v Commission, T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01, ECR, EU:T:2004:118, paragraph 252).
100
Furthermore, even if the Commission does not state in the contested decision its reasons for choosing the precise figure of EUR 31000000 for the undertakings in the second group, including TM T&D, that choice on the Commission’s part cannot be described as arbitrary and does not exceed the discretion which it enjoys in that regard (see, by analogy, judgment in Tokai Carbon and Others v Commission, cited in paragraph 99 above, EU:T:2004:118, paragraph 224), since it was made on the basis of the elements set out in paragraphs 96 to 98 above.
101
Accordingly, the fourth plea must be rejected.
The third plea, alleging an infringement of the principle of equal treatment as regards the starting amount of the fine
102
By its third plea, the applicant submits that the Commission infringed the principle of equal treatment by calculating the fine imposed on it on the basis of TM T&D’s starting amount, and not on the basis of the latter’s turnover.
103
The applicant submits that, rather than determining a hypothetical starting amount for TM T&D and dividing it between the applicant and Melco, the Commission should have, first, divided between the two undertakings TM T&D’s turnover in 2003, second, calculated their worldwide market shares in 2003 on the basis of their respective shares in TM T&D’s turnover and, lastly, classed them in the appropriate group of starting amounts, determined in the 2007 decision in accordance with their worldwide market shares. The applicant submits that it would then have been treated in the same way as the European producers.
104
The applicant relies on four sets of arguments in support of its position.
105
First, it relies on the 2007 decision, the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), and certain passages of the contested decision, from which it is apparent, in its view, that the fines should have been determined on the basis of the value of GIS sales in 2003.
106
Second, the applicant raises several arguments relating, in essence, to an alleged incoherence between the decision to determine a starting amount for TM T&D and the fact that the fines were imposed on the applicant itself.
107
Third, the applicant criticises the Commission’s finding in recital 66 of the contested decision that the method suggested by the applicant would result in the use of its ‘2001 virtual turnover’.
108
Fourth, according to the applicant, the Commission refused to follow the method which the applicant proposed without providing appropriate reasons for doing so and, in particular, without giving any reasons why the method suggested by the applicant was incorrect or inappropriate.
109
The Commission contests the merits of the applicant’s arguments.
110
The Court points out, at the outset, that the Commission has a margin of discretion when fixing the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules (see judgment in Tokai Carbon and Others v Commission, cited in paragraph 99 above, EU:T:2004:118, paragraph 216 and the case-law cited).
111
The amount of the fine is set by the Commission according to the gravity of the infringement and, where appropriate, its duration. The gravity of an infringement has to be determined by reference to criteria such as the particular circumstances of the case, its context and the deterrent effect of the fines. Objective factors such as the content and duration of the anticompetitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (judgment in Aalborg Portland and Others v Commission, cited in paragraph 71 above, EU:C:2004:6, paragraphs 89 to 91).
112
However, each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principle of equal treatment as interpreted by the EU judicature (judgment of 27 September 2006 in Archer Daniels Midland v Commission, T‑59/02, ECR, EU:T:2006:272, paragraph 315). The Court has consistently held that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 14 May 1998 in BPB de Eendracht v Commission, T‑311/94, ECR, EU:T:1998:93, paragraph 309 and the case-law cited).
113
In the present case, it should be noted, at the outset, that the applicant does not dispute that, during the reference year, namely 2003, it did not itself make any GIS sales, since it transferred its operations in that sector to TM T&D in 2002.
114
That circumstance means that the applicant’s fine could not be calculated in the exact same manner as that of the European addressees of the 2007 decision and that, in that respect, its situation was thus not comparable to that of the European undertakings.
115
Accordingly, the Commission was right to choose to determine a hypothetical starting amount for TM T&D and to divide it between its shareholders rather than to divide TM T&D’s worldwide GIS sales between its shareholders and to determine their individual starting amounts on the basis of their respective shares in those sales.
116
As is apparent from recital 2 of the contested decision and recital 61 of the 2007 decision, TM T&D was a joint venture wholly responsible for the production and sale of GIS. Thus, TM T&D constituted a separate entity from its shareholders, albeit controlled by them jointly.
117
That circumstance also follows from point 7.2.7 of the 2007 decision, which concerns the determination of the addressees of the decision. In recitals 407 and 435 of that decision, the applicant and Melco were expressly held liable, as shareholders, for the ‘infringement committed by TM T&D between 1 October 2002 and 11 May 2004’.
118
The arguments put forward by the applicant are not such as to call that conclusion into question.
119
By its first set of arguments, referred to in paragraph 105 above, the applicant submits that it is apparent from the 2007 decision, the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), and recitals 59, 60, 62 and 66 of the contested decision that the fines should have been determined on the basis of the value of its own GIS sales in 2003 and those of Melco in the same year, taken individually.
120
However, it follows, essentially, from recitals 59 and 60 of the contested decision that, in the applicant’s case, the general rule followed in the 2007 decision and on which the Court insisted in the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), namely the use of 2003 as the reference year to determine the value of sales, must be applied in accordance with detailed rules, given that, during that year, the applicant did not itself record any GIS sales, since it had transferred its operations in that sector to TM T&D.
121
That interpretation is confirmed both by recitals 62 and 66 of the contested decision and by the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), in which the Court explicitly referred to the method followed by the Commission in the contested decision as an appropriate example.
122
As regards the second set of arguments, referred to in paragraph 106 above, the applicant submits that the Commission was wrong to refer to ‘TM T&D’s weight in the infringement’, given that the Commission was required to determine not TM T&D’s fine, but that of its parent companies. In that regard, TM T&D’s turnover constitutes the sum of the applicant’s and Melco’s turnover for GIS products.
123
However, first of all, as is apparent from paragraph 117 above, the fact that the Commission referred to the infringement committed by TM T&D is wholly consistent with the findings made in the 2007 decision.
124
Next, since TM T&D is a separate entity, the applicant is wrong in claiming that TM T&D’s turnover constitutes merely the sum of its shareholders’ turnover for GIS products.
125
Lastly and more generally, the fact that the fines imposed in the contested decision were imposed only on the applicant and Melco, in light of the fact that TM T&D was wound up in 2005, cannot result in the Commission being required to divide up the latter’s turnover artificially and to disregard the fact that it was active on the market during the reference year as a separate operator from its shareholders. Indeed, such an approach would essentially amount to departing from the Commission’s intention to take the turnover generated during that year as a basis for determining the fines.
126
In the context of the third set of arguments, referred to in paragraph 107 above, the applicant disputes that the method which it suggested would result in the use of ‘2001 virtual turnovers’. It submits that it had an ‘actual’ turnover in 2001 and that, in any event, it was not for the Commission to calculate its 2001 virtual turnover, but that of 2003, then to compare it with the actual turnover of the other participants in the infringement.
127
Admittedly, the meaning of the fifth sentence of recital 66 of the contested decision, pursuant to which the method suggested by the applicant ‘would be inappropriate in that it would involve comparing the 2001 virtual turnovers of Melco and Toshiba with the 2003 turnovers of the other undertakings’, is not entirely clear, given that the Commission did not, inter alia, define the notion of ‘2001 virtual turnover’.
128
That said, in the third and fourth sentences of recital 66 of the contested decision, the Commission explained that the method suggested by the applicant would not make it possible to properly reflect TM T&D’s weight in the infringement as an undertaking which participated in that infringement in 2003. Thus, read in the context of the sentences which immediately precede it, the fifth sentence of recital 66 expresses that, in the Commission’s view, the method suggested by the applicant would result in artificially dividing up TM T&D’s turnover, notwithstanding the fact that it was a distinct entity from its shareholders, in order to determine the virtual turnover of its shareholders. As can be seen from paragraphs 115 to 117 and 123 to 125 above, that finding on the part of the Commission is founded.
129
By its fourth set of arguments, which are summarised in paragraph 108 above, the applicant complains that the Commission did not provide reasons for rejecting the method suggested by the applicant and, in particular, did not state any reasons why that method was incorrect or inappropriate.
130
First, since the present plea does not relate to an infringement of the obligation to state reasons, the applicant’s claim in that respect is ineffective.
131
Second, and in any event, that claim manifestly lacks any factual basis. As has just been stated in paragraphs 127 and 128 above, the Commission set out in recital 66 of the contested decision the reasons why it considered the method proposed by the applicant to be inappropriate.
132
Having regard to the foregoing, the third plea must be rejected.
The fifth plea, alleging an infringement of the principle of equal treatment as regards the determination of the level of culpability of the applicant compared to the European producers
133
The applicant submits that the Commission infringed the principle of equal treatment when it failed to take into consideration, in setting the starting amount of the fines, the applicant’s lower level of culpability compared to the European producers. The applicant explains in its application that, although the European participants in the infringement participated in two infringements, namely the common understanding and the allocation of GIS projects in the EEA, the Japanese participants, including the applicant, were involved only in the common understanding.
134
The applicant submits that, according to the case-law, the fact that an undertaking has not taken part in all aspects of a cartel must be taken into consideration when the gravity of the infringement is assessed and when it comes to determining the amount of the fine. In the context of the application of the Guidelines for the calculation of fines, that assessment must necessarily be made when setting the starting amount, since an undertaking which participated only in one aspect of a cartel has committed a less serious infringement than one which has participated in several aspects of that cartel.
135
In its reply, the applicant states, in response to the arguments raised by the Commission, that the fifth plea relates to neither the concept of a single and continuous infringement nor the gravity of the applicant’s conduct, referred to in paragraph 260 of the judgment in Toshiba v Commission, cited in paragraph 8 above (EU:T:2011:343), but its contribution to the cartel, which must be taken into consideration when setting the fine.
136
The Commission contests the merits of the applicant’s arguments. It argues, in particular, that the infringement found in the 2007 decision was a single and continuous infringement and that the participation in that infringement of the Japanese undertakings, including the applicant, was not less serious than that of the European undertakings.
137
According to settled case-law, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined (see judgment of 8 July 1999 in Commission v Anic Partecipazioni, C‑49/92 P, ECR, EU:C:1999:356, paragraph 150 and the case-law cited). Thus, the fact that an undertaking has not taken part in all aspects of an anticompetitive scheme or that it played a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and when the fine is determined (judgment in Commission v Anic Partecipazioni, EU:C:1999:356, paragraph 90).
138
In the present case, first, it has already been noted in paragraphs 2 to 4 above that, in the 2007 decision, the Commission found there to have been a single and continuous infringement comprising the common understanding, the GQ Agreement and the EQ Agreement. Thus, the applicant wrongly claims that the European undertakings participated in two infringements, whereas the applicant itself participated in only one infringement.
139
Second, contrary to what the applicant claims, its contribution to the infringement was not less as a result of the fact that it did not participate in the allocation of GIS projects in the EEA, which was governed by the EQ agreement.
140
Admittedly, it is true that the participation of the Japanese producers in the agreements and concerted practices found in the 2007 decision and concerning the EEA was not the same as that of the European producers. The Japanese undertakings, including the applicant, committed themselves, under the common understanding, not to enter the EEA market and their participation thus consisted of a failure to act. The European undertakings, for their part, distributed the various GIS projects on that same market through active collusion (see, to that effect, judgment in Toshiba v Commission, cited in paragraph 8 above, EU:T:2011:343, paragraph 260).
141
However, the failure to act on the part of the Japanese undertakings, including the applicant, was a prerequisite for ensuring that the allocation of GIS projects in the EEA could be carried out among the European producers in accordance with the rules agreed to that effect (see, to that effect, judgment in Toshiba v Commission, cited in paragraph 8 above, EU:T:2011:343, paragraph 261). Thus, by honouring their commitments under the common understanding, the Japanese undertakings made a necessary contribution to the functioning of the infringement as a whole.
142
Consequently, it must be concluded that the applicant’s contribution to the infringement is comparable to that of the European undertakings, with the consequence that the Commission did not infringe the principle of equal treatment.
143
Accordingly, the fifth plea must be rejected.
144
Since all of the pleas raised in support of the main application have been rejected, the main application must be dismissed in its entirety.
The application, in the alternative, for the reduction of the fine
145
The applicant requests the Court to reduce the fine imposed on it in the contested decision. It refers, in that regard, to an alternative calculation which it proposes in an annex to the application.
146
The Commission challenges the admissibility of this application, contesting that it is not supported by any plea.
147
Without it being necessary to rule on the plea of inadmissibility raised by the Commission, the Court finds that the alternative calculation proposed by the applicant is not supported by any arguments other than those examined in the context of the main application and that that calculation largely implements the methodology defended by the applicant in the context of its third plea. Therefore, in the light of the foregoing considerations and in the absence of other factors in the case capable of leading to a reduction of the fine imposed on the applicant, there is no cause for the Court, in the exercise of its unlimited jurisdiction, to uphold the application made in the alternative.
148
Consequently, the action must be dismissed in its entirety.
Costs
149
Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Toshiba Corp. to pay the costs.
Kanninen
Pelikánová
Buttigieg
Delivered in open court in Luxembourg on 19 January 2016.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought by the parties
Law
The main application, seeking annulment of the contested decision
The second plea, alleging an infringement of the applicant’s rights of defence
– The first part of the second plea, alleging the lack of a new statement of objections
– The second part of the second plea, alleging an infringement of the applicant’s right to be heard in relation to the additional amount
The fourth plea, alleging an infringement of the obligation to state reasons
The third plea, alleging an infringement of the principle of equal treatment as regards the starting amount of the fine
The fifth plea, alleging an infringement of the principle of equal treatment as regards the determination of the level of culpability of the applicant compared to the European producers
The application, in the alternative, for the reduction of the fine
Costs
(
*1
)   Language of the case: English.