Provisional text
JUDGMENT OF THE COURT (Eighth Chamber)
18 January 2017 (*)
(Appeal — Agreements, decisions and concerted practices — Global market for cathode ray tubes for television sets and computer monitors — Agreements and concerted practices on pricing, market sharing, customer allocation and output limitation − Concept of ‘economic unit’ between two companies — Concept of ‘decisive influence’ — Joint control by two parent companies — Distortion of evidence)
In Case C‑623/15 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 November 2015,
Toshiba Corp., established in Tokyo (Japan), represented by J.F. MacLennan, Solicitor, A. Schulz, Rechtsanwalt, J. Jourdan, avocat, and A. Kadri, Solicitor,
appellant,
the other party to the proceedings being:
European Commission, represented by A. Biolan and V. Bottka, acting as Agents,
defendant at first instance,
THE COURT (Eighth Chamber),
composed of M. Vilaras (Rapporteur), President of the Chamber, J. Malenovský and D. Šváby, Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        By its appeal, Toshiba Corp. asks the Court to set aside the judgment of the General Court of the European Union of 9 September 2015, Toshiba v Commission (T‑104/13, ‘the judgment under appeal’, EU:T:2015:610), by which the General Court only partially upheld its action, primarily, for the annulment of Commission Decision C(2012) 8839 final of 5 December 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.437 — TV and Computer Monitor Tubes) (‘the decision at issue’) in so far as that decision concerned it and, in the alternative, for a reduction of the amount of the fine which had been imposed on it.
Background to the dispute
2        As noted in paragraph 1 of the judgment under appeal, Toshiba is a global undertaking which manufactures and sells electronic and electrical products, including cathode ray tubes (‘CRTs’).
3        According to paragraph 2 of the judgment under appeal, a CRT is an evacuated glass envelope containing an electron gun and a fluorescent screen, usually with internal or external means to accelerate and deflect the electrons. When electrons from the electron gun strike the fluorescent screen, light is emitted, creating an image on the screen. At the material time, there were two types of CRT, namely colour cathode ray tubes for computer monitors (‘colour display tubes’) and colour cathode ray tubes for television sets (‘colour picture tubes’, ‘CPTs’).
4        According to paragraph 3 of the judgment under appeal, Toshiba was involved in the production and sales of CRTs, both directly and through its subsidiaries located in Europe, Asia and North America. A subsidiary of Toshiba was the European branch in charge of Toshiba’s electronic components business and was also its exclusive distributor of colour cathode ray tubes for computer monitors and CPTs in the European Economic Area (EEA) from 1995 until 31 March 2003.
5        It can be seen from paragraph 4 of the judgment under appeal that on 31 March 2003 Toshiba transferred its entire CRT business to a joint venture, Matsushita Toshiba Picture Display Co. Ltd (‘the joint venture’), created with Matsushita Electric Industrial Co. Ltd (‘MEI’). Until 31 March 2007, the joint venture was held as to 64.5% by MEI and as to 35.5% by Toshiba; on that date the latter transferred its shareholding to MEI. MEI changed its name to Panasonic Corporation on 1 October 2008.
6        It is apparent from paragraphs 14 and 15 of the judgment under appeal that, by the decision at issue, the European Commission found that the main global producers of CRTs had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) by participating in two separate infringements, each constituting a single and continuous infringement. Those infringements related, first, to the colour cathode ray tubes for computer monitors market and, secondly, to the CPT market (‘the CPT cartel’). Toshiba’s action before the General Court related only to the CPT cartel. According to the decision at issue, the CPT cartel occurred between 3 December 1997 and 15 November 2006.
7        As regards Toshiba’s involvement in the CPT cartel, first, the Commission stated that Toshiba had participated directly in that cartel by maintaining bilateral contacts, between 16 May 2000 and 11 April 2002, with the majority of the undertakings forming the core of the cartel, and also by participating, from 12 April 2002, in regular multilateral meetings between the undertakings participating in that cartel. Secondly, the Commission stated that, as from 1 April 2003, the joint venture, over which MEI and Toshiba had exercised decisive influence, had continued its participation in the CPT cartel uninterruptedly. Consequently, the Commission concluded that Toshiba was liable, first, for the infringement committed directly by it, before the creation of the joint venture, and, secondly, jointly and severally with Panasonic for the infringement committed by the joint venture from the time at which that undertaking was set up.
8        The Commission therefore found, in Article 1(2)(d) of the decision at issue, that Toshiba had participated in the CPT cartel from 16 May 2000 to 12 June 2006. In Article 2(2)(g) and (h), respectively, the Commission, first, imposed a fine of EUR 28 048 000 on Toshiba and, secondly, imposed a fine of EUR 86 738 000 on MEI, Toshiba and the joint venture, as jointly and severally liable.
The procedure before the General Court and the judgment under appeal
9        By application lodged at the Registry of the General Court on 20 February 2013, the appellant brought an action, primarily for annulment of the decision at issue in so far as that decision concerned it and, in the alternative, for a reduction of the fine imposed on it.
10      In support of its primary claim for the annulment in part of the decision at issue, Toshiba put forward five pleas in law. The first three pleas alleged errors of law vitiating the decision at issue in that, by that decision, the Commission had found that the appellant was liable for the infringement committed during the periods from 16 May 2000 until 11 April 2002, from 12 April 2002 until 31 March 2003 and from 1 April 2003 until 12 June 2006. The fourth plea alleged errors vitiating the decision at issue in that, by that decision, the Commission had found that the appellant was jointly and severally liable for the joint venture’s participation in the infringement committed during the period from 1 April 2003 until 12 June 2006. The fifth plea, raised in the alternative, alleged an error vitiating the decision at issue in that, by that decision, the Commission had found that the joint venture was liable for having participated in the infringement committed during the period from 1 April 2003 until 12 June 2006.
11      The General Court first of all assessed and upheld, respectively, the first plea, in paragraphs 42 to 79 of the judgment under appeal, and the second plea, in paragraphs 80 to 87 of that judgment.
12      The General Court then went on to examine the fourth plea, which, as noted in paragraph 88 of the judgment under appeal, was divided into three parts, the first alleging a failure to state reasons, the second alleging an error of assessment as regards the exercise of decisive influence by Toshiba over the joint venture’s conduct, and the third, alleging infringement of Toshiba’s rights of defence.
13      The General Court began by examining the second part of that plea, in paragraphs 90 to 123 of the judgment under appeal. Toshiba’s appeal concerns this part of the judgment under appeal.
14      After setting out, in paragraphs 93 to 102 of the judgment under appeal, the case-law on the imputation to a parent company of its subsidiary’s unlawful conduct, the General Court first of all assessed the findings made in the decision at issue in the light of that case-law. In the context of that assessment, the General Court considered, first, in paragraph 106 of that judgment, that the Commission had been entitled to find, in that decision, that both parent companies of the joint venture had veto rights with respect to matters of strategic importance that were essential for the pursuit of the joint venture’s activities, which proved the exercise of joint control over that undertaking. In paragraphs 107 to 113 of that judgment, the General Court set out the reasons justifying that conclusion and rejected Toshiba’s arguments to the contrary.
15      Secondly, the General Court added, in paragraph 114 of the judgment under appeal, that other circumstances referred to by the Commission in the decision at issue permitted the inference that the appellant was in a position to exercise decisive influence over the joint venture’s conduct on the market. Those circumstances were:
–        the fact that one of the 4 directors appointed by Toshiba out of the 10 who formed the joint venture’s Board of Directors simultaneously occupied a management position within Toshiba, noted in paragraph 115 of the judgment under appeal;
–        the fact that Toshiba was to appoint one of the two directors entitled to represent the joint venture, who was also the vice-president of the joint venture and the fact that the two vice-presidents appointed by Toshiba during the existence of the joint venture had previously acted at a high management level within Toshiba and subsequently returned to it, which, according to paragraph 116 of the judgment under appeal, showed that they necessarily had thorough knowledge of Toshiba’s policy and its commercial objectives and were in a position to cause the joint venture’s policy and Toshiba’s interests to converge; and
–        the fact that the joint venture was the preferred supplier of its parent companies for the production of television sets and that, at the same time, those companies were the preferred suppliers of CRT components for the joint venture, which, according to paragraph 119 of the judgment under appeal, constituted an additional indication of Toshiba’s involvement in the joint venture’s management and revealed the existence of close and lasting economic ties between them.
16      Thirdly, the General Court noted, in paragraph 120 of the judgment under appeal, that it was apparent from the evidence on which the Commission had relied in the decision at issue that Toshiba was involved in the joint venture’s management, inter alia by giving its consent to the closure of two of its subsidiaries in Europe and the United States in November 2005, without which that closure could not have happened.
17      The General Court therefore concluded, in paragraph 122 of the judgment under appeal, that, having regard to all the economic, legal and organisational links between the appellant and the joint venture, the Commission had not erred in finding that the appellant, as the joint venture’s parent company, had exercised, together with Panasonic, decisive influence over the joint venture’s conduct on the CPT market. In view of that conclusion, the General Court rejected the second part of the fourth plea in law.
18      The General Court then examined and rejected the first and third parts of the fourth plea in law, as well as the third and fifth pleas in law, as can be seen from, respectively, paragraphs 125, 132, 140 and 172 of the judgment under appeal.
19      Lastly, in paragraphs 175 to 234 of the judgment under appeal, the General Court examined Toshiba’s alternative head of claim seeking the cancellation or reduction of the fine, and the single plea in law, divided into two parts, put forward in support of that head of claim. Following that examination, the General Court concluded, in paragraph 235 of the judgment under appeal, that the second part of that single plea in law should be upheld solely in so far as it sought to benefit from the reduction of the amount of the fine imposed on it jointly and severally with Panasonic and the joint venture, granted by the judgment of 9 September 2015, Panasonic and MT Picture Display v Commission (T‑82/13, EU:T:2015:612), which had set the amount of that fine at EUR 82 826 000, and that Toshiba’s request for cancellation of the fine or for a reduction of its amount had to be rejected as to the remainder.
20      Consequently, the General Court annulled, in paragraphs 1 and 2 of the operative part of the judgment under appeal, respectively, Article 1(2)(d) of the decision at issue in so far as the Commission had thereby found that Toshiba had participated in a global cartel in the market for CPTs from 16 May 2000 until 31 March 2003, and Article 2(2)(g) of that decision in so far as the Commission had thereby imposed a fine of EUR 28 048 000 on Toshiba for its direct participation in that cartel and, in addition, in paragraph 3 of the operative part of the judgment under appeal, set the amount of the fine imposed on Toshiba in Article 2(2)(h) of the decision at issue, jointly and severally with Panasonic and the joint venture, at EUR 82 826 000. By paragraph 4 of the operative part of the judgment under appeal, the General Court dismissed Toshiba’s action as to the remainder and, by paragraph 5 of that operative part, ordered each party to bear its own costs.
Forms of order sought by the parties before the Court of Justice
21      The appellant claims that the Court should:
–        set aside paragraphs 3, 4 and 5 of the operative part of the judgment under appeal;
–        annul Article 1(2)(d) of the decision at issue and Article 2(2)(h) of that decision, in so far as it applies to the appellant and imposes a fine on it jointly and severally with Panasonic and the joint venture; and
–        order the Commission to pay the costs of both the appeal and the proceedings at first instance.
22      The Commission contends that the Court should:
–        dismiss the appeal as inadmissible and, in any event, as unfounded;
–        in the alternative, dismiss the action for annulment of the decision at issue; and
–        order Toshiba to bear the entirety of the costs of both the appeal proceedings and the proceedings at first instance.
The appeal
23      Toshiba relies on a single ground of appeal, alleging an error of law in the application of the concept of undertaking, within the meaning of Article 101 TFEU. That ground of appeal is divided into two parts, formally presented as alleging (i) that the General Court erred in law by characterising certain elements as evidence either of Toshiba’s ability to exercise, or Toshiba’s actual exercise of, decisive influence over the joint venture and (ii) that the General Court erred in law in concluding that the sum of these elements was sufficient to support a finding that Toshiba had exercised decisive influence over the joint venture’s conduct and thus that the two entities formed a single economic unit.
24      Since those parts are closely connected, it is appropriate to consider them together.
Arguments of the parties
25      In support of the first part of its single ground of appeal, Toshiba submits, in the first place, that the General Court erred in law and vitiated the judgment under appeal by failing to state reasons, since it held, in paragraph 111 of that judgment, that the holding of a veto right over the joint venture’s business plan was in itself sufficient for it to be considered that Toshiba had actually exercised decisive influence over the joint venture, without examining the reasons for the prolongation of the start-up period during which that right was applicable.
26      In that context, Toshiba submits that paragraph 70 of the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1; ‘the Consolidated Jurisdictional Notice’), to which the General Court referred in paragraph 111 of the judgment under appeal, does not indicate that the holding of a veto right over a business plan is sufficient to justify such a conclusion, but merely that it may be sufficient in that regard. In addition, Toshiba argues that, in accordance with the General Court’s case-law, approval rights over the budget and business plan of a joint venture are not sufficient to prove the exercise of decisive influence, and it is necessary, in that respect, to assess also whether the parent companies of a joint subsidiary influenced the latter’s operational management.
27      In the second place, Toshiba contests the inferences that the General Court drew from Article 21.2 and Article 23.2 of the agreement creating the joint venture (‘the BIA’), according to which certain decisions taken by the joint venture required the approval of both parent companies and others required the consent of at least one director appointed by each of the parent companies. Toshiba submits, first of all, that, in paragraph 108 of the judgment under appeal, the General Court took account of its veto right on material investments, without examining, as required by paragraph 71 of the Consolidated Jurisdictional Notice, whether the investments constituted an essential feature of the relevant market. Next, according to Toshiba, the abovementioned provisions show, at most, that it was in a position to exercise decisive influence over the joint venture, but not that it actually exercised such influence, as the General Court wrongly concluded, in paragraph 112 of the judgment under appeal. Lastly, the rights mentioned in Article 21.2 of the BIA concern the protection of minority shareholders, as acknowledged in paragraph 66 of the Consolidated Jurisdictional Notice, and cannot be regarded as constituting indications of Toshiba’s capacity to exercise decisive influence over that undertaking, contrary to what the General Court held in paragraph 113 of the judgment under appeal.
28      In addition, Toshiba submits that the General Court distorted the meaning of Article 23.2 of the BIA. According to Toshiba, contrary to the assertion in paragraph 108 of the judgment under appeal, that provision did not grant it a veto right. It merely made the adoption of the measures envisaged in that provision subject to the affirmative vote of one of the directors appointed by Toshiba, which could not control how those directors might vote and did not have the right to dismiss them.
29      According to Toshiba, the General Court also distorted the meaning of Article 22.3 of the BIA, which granted Toshiba the right to appoint one of the two directors entitled to represent the joint venture, who was also the joint venture’s vice-president. Toshiba argues that, contrary to what the General Court held in paragraph 116 of the judgment under appeal, the vice-president of the joint venture was not in a position to cause the joint venture’s commercial policy and Toshiba’s interests to converge, since it was the president of the joint venture, appointed by Panasonic, who was responsible for the operational management of that undertaking.
30      In the third place, Toshiba submits that the General Court erred in law in that it established, in paragraph 101 of the judgment under appeal, a presumption of the actual exercise of decisive influence by parent companies over a joint subsidiary’s conduct on the market, by basing itself on the statutory or contractual provisions relating to the management of that subsidiary.
31      Lastly, Toshiba argues that the General Court wrongly held, respectively in paragraphs 115, 116, 120 and 119 of the judgment under appeal, that the following elements confirmed the conclusion that it was in a position to exercise decisive influence over the joint venture:
–        the fact that a director of the joint venture appointed by Toshiba simultaneously occupied a management post within Toshiba;
–        the fact that two vice-presidents of the joint venture appointed by Toshiba had acted at a high management level within Toshiba prior to their appointment as vice-presidents
–        and had returned to Toshiba at the end of their term of office;
–        the fact that Toshiba had consented to the closure of two subsidiaries of the joint venture;
–        Article 28.3 of the BIA, providing that the joint venture would be the preferred supplier of the parent companies for the production of television sets and that, at the same time, those companies would be the preferred suppliers of CRT components for the joint venture.
32      In that context, Toshiba submits, first, that the accumulation of posts within both the parent company and the subsidiary must concern more than one individual in order to be relevant and, secondly, that the General Court substituted its own assessment for that of the Commission, which had not mentioned, in the decision at issue, the thorough knowledge, on the part of the two vice-presidents of the joint venture appointed by Toshiba, of the latter’s policy and objectives, to which the General Court referred in paragraph 116 of the judgment under appeal.
33      In addition, Toshiba argues that the General Court distorted the evidence in that it concluded, first, in paragraph 116 of the judgment under appeal, that the vice-president of the joint venture was in a position to cause the joint venture’s policy to converge with Toshiba’s interests and, secondly, in paragraph 119 of the judgment under appeal, that the joint venture had used another company, owned by Toshiba, as a sales channel in the European Union. In that regard, Toshiba submits that the General Court failed to take account of the fact that this arrangement was only in place for a transitory period of one year after the creation of the joint venture.
34      Toshiba also invokes an absence of, or inadequate statement of, reasons for the judgment under appeal, in that the General Court did not explain why it had rejected Toshiba’s explanations, supported by evidence, according to which its consent to the closure of subsidiaries of the joint venture was a means of protecting its financial interests and came within the scope of minority shareholder rights which, in accordance with paragraph 66 of the Consolidated Jurisdictional Notice, do not confer joint control.
35      By the second part of its single ground of appeal, Toshiba submits that, even if the General Court did not err in law by holding that each of the elements referred to in the first part of that ground of appeal could be itself characterised as a relevant piece of evidence for the purpose of establishing whether Toshiba was in a position to exercise, or had actually exercised, decisive influence over the joint venture, quod non, the General Court erred in law in that it held, in paragraph 122 of the judgment under appeal, that the sum of those elements was sufficient to justify the conclusion that Toshiba and the joint venture formed part of a single economic unit.
36      The Commission primarily contests the admissibility of Toshiba’s single ground of appeal. It submits that the appeal actually seeks to have the Court of Justice reassess the General Court’s findings of facts, without demonstrating any distortion of the evidence or any error of law committed by the General Court. Furthermore, Toshiba merely reiterates its arguments rejected by the General Court, in order for the Court of Justice to reassess those arguments.
37      In any event, the Commission submits that the two parts of Toshiba’s single ground of appeal must be rejected as unfounded. It submits that the General Court did not err in law and that it provided sufficient reasons for the judgment under appeal. In addition, Toshiba is not able to show that the General Court distorted the evidence adduced before it.
Findings of the Court
Admissibility
38      Contrary to the Commission’s submission, the appeal cannot be dismissed at the outset as being inadmissible in its entirety.
39      It must be borne in mind that, in an appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the Rules of Procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the evidence adduced before the General Court has been distorted, that assessment therefore does not constitute a point of law which is subject to review by the Court of Justice. However, the jurisdiction of the Court of Justice to review the findings of fact by the General Court extends, inter alia, to the question whether the rules relating to the burden of proof and the taking of evidence have been observed (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraphs 38 and 39 and the case-law cited). In particular, the question whether the General Court has taken the right legal criteria as the basis for its appraisal of the facts and evidence is a question of law, which is amenable to review by the Court of Justice in an appeal (judgment of 11 July 2013, Commission v Stichting Administratiekantoor Portielje, C‑440/11 P, EU:C:2013:514, paragraph 59 and the case-law cited).
40      With regard, in particular, to the distortion of evidence and facts, the Court has repeatedly held that there is such distortion where, without having recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect or manifestly at odds with its wording (see, to that effect, judgments of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraph 37, and of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 44).
41      In the present case, first, as can be seen from paragraphs 28, 29 and 33 of the present judgment, Toshiba submits, inter alia, that the General Court distorted several pieces of evidence. The question of the material accuracy of those allegations forms part of the examination of the substance of Toshiba’s single ground of appeal, and not of its admissibility.
42      Secondly, as can be seen from paragraphs 25 and 34 of the present judgment, Toshiba submits, inter alia, that the General Court failed to state reasons, or failed to state adequate reasons, for the judgment under appeal. In that respect, it must be borne in mind that the question whether the grounds of a judgment of the General Court are inadequate is a question of law which is amenable, as such, to review in an appeal (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 63 and the case-law cited).
43      Thirdly, as noted in paragraph 32 of the present judgment, Toshiba argues, inter alia, that the General Court substituted its own reasoning for that of the decision at issue. The Court of Justice has jurisdiction to review, in an appeal, whether the General Court exceeded the limits of its jurisdiction by carrying out such a substitution of reasoning (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraphs 88 and 89 and the case-law cited).
44      Finally, it must be noted that, by its arguments summarised in paragraphs 25, 30, 31 and 32 of the present judgment, Toshiba submits, inter alia, that the General Court applied incorrect legal criteria and breached the rules relating to the burden of proof and the taking of evidence in its analysis of the question of Toshiba’s liability for the infringement committed by the joint venture between 1 April 2003 and 12 June 2006. Those arguments also raise questions that the Court has jurisdiction to examine in an appeal.
Substance
45      It should be pointed out that, according to settled case-law, liability for the conduct of a subsidiary can be imputed to its parent company in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 27 and the case-law cited).
46      In examining whether the parent company is able to exercise decisive influence over the market conduct of its subsidiary, account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to its parent company and, therefore, account must be taken of the economic reality (judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 76 and the case-law cited).
47      Moreover, the exercise of decisive influence by a parent company over its subsidiary’s conduct may be inferred from a body of consistent evidence, even if some of that evidence, taken in isolation, is insufficient to establish the existence of such influence (judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 77 and the case-law cited).
48      Lastly, the Court has previously held that the exercise of joint control, by two parent companies which are independent of each other, of their subsidiary does not, in principle, preclude a finding by the Commission of the existence of an economic unit comprising one of those parent companies and the subsidiary concerned (judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416 paragraph 78 and the case-law cited). It has also held that two parent companies each having a 50% shareholding in a joint venture may both be regarded as exercising decisive influence over the joint venture, in so far as the Commission has demonstrated it on the basis of factual evidence (see, to that effect, judgments of 26 September 2013, EI du Pont de Nemours v Commission, C‑172/12 P, not published, EU:C:2013:601, paragraph 47, and of 26 September 2013, The Dow Chemical Company v Commission, C‑179/12 P, not published, EU:C:2013:605, paragraph 58).
49      The General Court, in essence, referred to those considerations, in paragraphs 93 to 95, 98 and 99 of the judgment under appeal, and, taking them into account, it analysed, in paragraphs 104 to 121 of that judgment, the various elements invoked by the Commission in order to justify its conclusion relating to Toshiba’s liability for the infringement committed by the joint venture. That analysis led the General Court to the conclusion, set out in paragraph 122 of the judgment under appeal, that, during the infringement period from 1 April 2003 to 12 June 2006, Toshiba had exercised, together with Panasonic, decisive influence over the joint venture’s conduct on the market and that, consequently, the Commission had not erred in taking the view that Toshiba and Panasonic could be held jointly and severally liable for the joint venture’s infringing conduct.
50      In that regard, it is necessary to reject, in the first place, Toshiba’s argument that the General Court erred in law and disregarded the rules relating to the burden of proof and the taking of evidence in establishing a presumption of actual exercise of decisive influence by a parent company over a subsidiary’s conduct on the market, as that argument is based on an incorrect and out-of-context reading of paragraph 101 of the judgment under appeal.
51      It is apparent from a combined reading of paragraphs 100 to 102 of the judgment under appeal that the General Court took the view, in essence, that, where it follows from the statutory provisions or contractual stipulations governing a joint venture that the conduct on the market of that subsidiary is determined jointly by its parent companies, it may reasonably be concluded that that conduct was indeed determined jointly, with the result that the parent companies must be regarded as having exercised decisive influence over their subsidiary, unless there is concrete evidence showing that the decisions in relation to the latter’s conduct were actually taken by other procedures.
52      In so ruling, the General Court correctly applied the case-law of the Court of Justice according to which, as regards liability for an infringement of the competition rules, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 80 and the case-law cited), and it did not establish a presumption not laid down in the case-law.
53      In the second place, Toshiba’s allegations that the General Court distorted several pieces of evidence cannot succeed.
54      In that respect, it should be noted that such distortion must be obvious from the documents in the file, without there being any need to carry out a new assessment of the facts and the evidence (order of 29 June 2016, Ombudsman v Staelen, C‑337/15 P, not published, EU:C:2016:670, paragraph 20). Furthermore, in accordance with Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court, an appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion (see, to that effect, judgment of 17 March 2016, Naazneen Investments v EUIPO, C‑252/15 P, not published, EU:C:2016:178, paragraph 69).
55      First, as regards Toshiba’s allegation mentioned in paragraph 28 of the present judgment, it must be observed that the General Court did not interpret Article 23.2 of the BIA in a manifestly erroneous manner. In paragraph 107 of the judgment under appeal, the General Court noted that, in accordance with that provision, the adoption of certain decisions listed therein required the consent of at least one director appointed by each of the parent companies, that is to say, that it interpreted that provision exactly as Toshiba did.
56      Moreover, the conclusion set out in paragraph 106 of the judgment under appeal, according to which both parent companies of the joint venture had veto rights with respect to matters of strategic importance which were essential for the pursuit of the joint venture’s activities, which proved the exercise of joint control of that joint venture, is supported to the requisite legal standard by the references, made in paragraphs 107 and 109 of that judgment, to the provisions of Articles 21.2 and 27.1 of the BIA. It follows that Toshiba’s argument that the reference, in paragraph 108 of that judgment, to the veto rights conferred on Toshiba by Article 23.2 of the BIA shows a distortion, by the General Court, of the latter provision, is in any event ineffective, since, even if that distortion were proved, it would not be capable of calling into question the abovementioned conclusion, set out in paragraph 106 of the judgment under appeal.
57      Secondly, Toshiba’s arguments, summarised in paragraph 27 of the present judgment, concerning the inferences drawn by the General Court from Article 22.3 of the BIA, in paragraph 116 of the judgment under appeal, do not reveal any distortion of that provision by the General Court, but are actually intended to call into question the General Court’s assessment of the facts. Those arguments are, consequently, inadmissible.
58      In particular, the argument in paragraph 33 of the present judgment that the General Court distorted the evidence in that it concluded, also in paragraph 116 of the judgment under appeal, that the vice-presidents of the joint venture were in a position to cause the latter’s policy to converge with Toshiba’s interests must also be rejected as inadmissible, since Toshiba has in no way specified the evidence to which that argument relates or shown how the General Court distorted it.
59      Finally, it is also necessary to reject Toshiba’s allegation that the General Court distorted the evidence before it when it stated, in paragraph 119 of the judgment under appeal, that the joint venture had used another company, owned by Toshiba, as a sales channel in the European Union. Toshiba does not dispute the substantive accuracy of that statement, but submits that the General Court failed to take account of the fact that the use of its subsidiary as a sales channel for the joint venture had lasted for only one year. That submission, even if it is correct, does not show that the General Court made a manifestly erroneous interpretation of any evidence before it, since the General Court never stated that that use had lasted for more than one year. That circumstance is capable, at most, of calling into question the substance of the factual findings that the General Court made on the basis of its interpretation, in itself correct, of the evidence in question. However, as is apparent from the case-law cited in paragraph 39 of the present judgment, those findings cannot be re-examined by the Court at the appeal stage.
60      In the third place, Toshiba’s arguments relating to errors of law allegedly committed by the General Court and alleged inadequacies in the reasoning for the judgment under appeal must also be rejected.
61      First, the arguments summarised in paragraph 25 of the present judgment, criticising paragraph 111 of the judgment under appeal, cannot succeed.
62      That paragraph forms part of the reasons set out by the General Court in order to justify the conclusion, in paragraph 106 of the judgment under appeal, that the Commission had rightly found that Toshiba and Panasonic, the two parent companies of the joint venture, had veto rights with respect to matters of strategic importance that were essential for the pursuit of the joint venture’s activities, which proved the exercise of joint control of the latter.
63      In that respect, the General Court noted, in paragraph 109 of the judgment under appeal, that, in accordance with Article 27.1 of the BIA, during a start-up period, the end of which was fixed at 31 March 2005, the initial business plan for the joint venture would be adopted by the parent companies and that, subsequently, the annual business plans for the joint venture would be drawn up by the joint venture itself, following consultation with the parent companies. However, the General Court indicated that, by a subsequent agreement, the parent companies prolonged the start-up period, with the result that they had to agree on the business plan for the joint venture and its subsequent revisions throughout the existence of the joint venture.
64      On the basis of those elements, the General Court found, in paragraph 110 of the judgment under appeal, that the Commission had been entitled to take the view that the BIA and the business plan, which contained the joint venture’s main operational and financial objectives and its essential strategic planning, had been decided by its parent companies, including Toshiba.
65      The General Court therefore concluded, in paragraph 111 of the judgment under appeal, that the prolongation of the start-up period had the effect of conferring on Toshiba a veto right over the joint venture’s business plan for the entire duration of its existence, and that the holding of such a right was in itself sufficient for the view to be taken, for the purpose of paragraph 70 of the Consolidated Jurisdictional Notice, that Toshiba had indeed exercised decisive influence over the joint venture.
66      In so doing, the General Court correctly applied the case-law set out in paragraphs 45 to 48 of the present judgment and — contrary to Toshiba’s assertions — did not err in law. In particular, it follows from paragraph 46 of the present judgment that, in order to ascertain whether a subsidiary determines its conduct on the market independently, account must be taken of all the relevant factors relating to the economic, organisational and legal links between the subsidiary and its parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, also, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 100). It follows that, contrary to what, in essence, Toshiba argues, the General Court was not required to determine whether Toshiba had influenced the joint venture’s operational management, in order to conclude that those two companies formed part of a single economic unit.
67      In addition, although it is true that the Consolidated Jurisdictional Notice concerns a different issue, that of the control of concentrations between undertakings, and that, in addition, as a Commission notice, it is not binding on the General Court, it must be pointed out that the reference made by the General Court, in paragraph 111 of the judgment under appeal, to point 70 of that notice, was incidental, such that, even if the General Court misconstrued the meaning of that point, that alone is not sufficient to bring about the annulment of the judgment under appeal. In any event, as is apparent from paragraph 26 of the present judgment, Toshiba itself acknowledges that the point in question indicates that the holding of a veto right may justify the conclusion arrived at by the General Court in the judgment under appeal.
68      Lastly, having considered, in its assessment of the facts, in respect of which the General Court alone has jurisdiction, that, because it had a veto right over the joint venture’s business plan for the entire duration of the joint venture’s existence, Toshiba, together with Panasonic, had taken all the decisions necessary for the joint venture’s essential strategic planning, the General Court had no reason to analyse the reasons which had led to the prolongation of the period of validity of that veto right. What mattered, for the purpose of the analysis carried out by the General Court, was the fact that that right had been prolonged.
69      Consequently, it is also necessary to reject Toshiba’s argument that the General Court breached the obligation to state reasons for the judgment under appeal by failing to rule on the reasons given by Toshiba to justify the prolongation of the period of validity of its veto right.
70      Secondly, Toshiba’s arguments summarised in paragraph 27 of the present judgment also do not prove that the General Court used incorrect legal criteria in its assessment of whether Toshiba was in a position to exercise decisive influence over the joint venture and whether it actually exercised such influence.
71      In paragraph 108 of the judgment under appeal, the General Court referred to Toshiba’s veto rights over not only the joint venture’s material investments, but also over capital participation in or acquisition of a company or other business and over the provision of loans to subsidiary companies. According to the General Court, that right was applicable to outlays of one billion Japanese yen (JPY) (approximately EUR 8 486 000) or more, an amount which is not excessive in the light of Toshiba’s initial investment in the joint venture, amounting to JPY 26.5 billion (approximately EUR 224 834 000). In view of those elements, the General Court took the view that a veto right in that respect could constitute an indication that Toshiba was in a position to exercise decisive influence over the joint venture’s conduct.
72      In doing so, the General Court did not err in law. The fact that a parent company may prohibit its subsidiary from taking decisions such as those mentioned in the preceding paragraph of the present judgment, when they involve outlays which, while not insignificant, nevertheless appear relatively modest in the light of that subsidiary’s capital and the parent company’s contribution to that capital, constitutes, as the General Court held, an indication of the capacity to exercise decisive influence over that subsidiary, irrespective of the market concerned. Toshiba’s reference to the content of the Consolidated Jurisdictional Notice, which is not binding on the General Court, cannot lead to a different conclusion, irrespective of whether Toshiba’s interpretation of that notice is correct.
73      Toshiba’s criticisms of paragraph 112 of the judgment under appeal must be rejected. As the General Court pointed out, in essence, the holder of a right of veto over certain decisions of an undertaking must necessarily be consulted before the adoption of any decisions which it is capable of vetoing and must approve those decisions. Accordingly, the mere fact that it never exercised its right of veto does not allow the conclusion that it did not exercise decisive influence over the conduct of the undertaking in question.
74      As regards, lastly, paragraph 113 of the judgment under appeal, suffice it to note that the General Court merely found that the rights listed in Article 21.2 of the BIA, namely the rights concerning the issues requiring special resolutions of the assembly of shareholders under commercial law and the issues relating to the issuing of new shares and the distribution of dividends constituted an additional indication that Toshiba was in a position to exercise decisive influence over the joint venture’s conduct. The mere fact that the rights in question, or some of them, concern the protection of minority shareholders is not, by itself, sufficient to call into question that finding.
75      Thirdly, the General Court also did not err in law in taking into account the elements mentioned in paragraph 31 of the present judgment as indications of Toshiba’s capacity to exercise decisive influence over the joint venture.
76      In particular, contrary to Toshiba’s assertions, it is in no way necessary for the accumulation of posts within both the parent company and the subsidiary to concern more than one individual in order to constitute one indication among others of that capacity.
77      Toshiba’s argument, according to which the General Court substituted its own assessment for that of the Commission, when it considered that the vice-presidents of the joint venture were in a position to cause the joint venture’s commercial policy and Toshiba’s interests to converge, must also be rejected. It is apparent from paragraph 116 of the judgment under appeal that, like the Commission, the General Court took the view that the fact that, in accordance with the BIA, Toshiba was to appoint one of the two directors entitled to represent the joint venture, who was also the vice-president of the joint venture, was an indication of Toshiba’s capacity to exercise decisive influence over the joint venture’s conduct. The reference to the thorough knowledge, on the part of the vice-presidents of the joint venture, of Toshiba’s policy and commercial objectives serves as grounds for that statement.
78      It must also be emphasised that, contrary to Toshiba’s assertions, it cannot be excluded that the fact that a parent company and its subsidiary have a preferential supplier relationship constitutes an indication of the former’s capacity to exercise decisive influence over the latter’s conduct (see, by analogy, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 90), since the question of the weight to be attached to such an indication in assessing whether the parent company and its subsidiary form a single economic unit ultimately comes within the scope of the General Court’s assessment of the facts, which cannot be called into question at the appeal stage.
79      Finally, the General Court did not err in taking the view, in essence, in paragraph 120 of the judgment under appeal, that the mere fact that the closure of two subsidiaries of the joint venture required Toshiba’s consent, which was given by the latter, constitutes an indication that Toshiba was able to exercise decisive influence over the joint venture, irrespective of the reasons for that consent. Since that conclusion cannot be called into question by either the assessment of those reasons or by Toshiba’s assertion, referred to in paragraph 34 of the present judgment, that the requirement for that consent related to the protection of minority shareholders, the allegation that the General Court failed to state reasons, or failed to state adequate reasons, for the judgment under appeal, because it did not specifically assess Toshiba’s line of argument with regard to those questions, cannot succeed.
80      In the fourth place, as regards the second part of Toshiba’s single ground of appeal, it must be noted that the question whether a parent company was in a position to exercise decisive influence over its subsidiary’s conduct on the market, like the question whether that influence was actually exercised, ultimately comes within the scope of the assessment of the facts. In that respect, it follows from the case-law cited in paragraph 47 of the present judgment that such an assessment may be inferred from a body of consistent evidence.
81      As can be seen from the case-law cited in paragraph 39 of the present judgment, the appraisal of the facts, as such, cannot be called into question on appeal before the Court, save where the evidence has been distorted. All of Toshiba’s allegations concerning distortion of the evidence by the General Court have already been examined and rejected.
82      Furthermore, it is apparent from all of the foregoing considerations that the General Court did not err in law in its application of the case-law relating to the imputation, to a parent company, of liability for an infringement of the competition rules committed by its subsidiary or, more generally, in the legal characterisation of the facts. It is also apparent from those considerations that the General Court did not breach the rules relating to the burden of proof and the taking of evidence.
83      In those circumstances, by submitting, in the second part of its single ground of appeal, that the various indications mentioned by the General Court in the judgment under appeal were not sufficient to justify the conclusion that it formed a single economic unit with the joint venture and could be held liable for the infringement committed by the latter, Toshiba is in fact seeking to have the Court carry out a new assessment of the facts, something which goes beyond the powers of the Court in the context of an appeal.
84      It follows that the second part of the single ground of appeal is inadmissible.
85      It follows from all of the foregoing that Toshiba’s single ground of appeal must be rejected, and that the appeal must be dismissed in its entirety.
Costs
86      In accordance with Article 184(2) of its Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
87      Since the Commission has applied for costs and Toshiba has been unsuccessful, Toshiba must be ordered to pay the costs.
On those grounds, the Court (Eighth Chamber) hereby:
1.      Dismisses the appeal;
2.      Orders Toshiba Corp. to pay the costs.
Vilaras
Malenovský
Šváby
Delivered in open court in Luxembourg on 18 January 2017.
A. Calot Escobar
M. Vilaras
Registrar
President of the Eighth Chamber
*      Language of the case: English.