ORDER OF THE COURT (Eighth Chamber)
7 July 2016 (*)
(Appeal — Rules of Procedure of the Court — Article 181 — 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 — Rights of the defence — Statement of objections — Content)
In Case C‑608/15 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 November 2015,
Panasonic Corp., established in Kadoma (Japan), represented by R. Gerrits, advocaat, M. Hoskins QC, and M. Gray, Barrister,
applicant,
the other parties to the proceedings being:
MT Picture Display Co. Ltd, established in Matsuocho (Japan),
applicant at first instance,
European Commission, represented by A. Biolan and V. Bottka, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Eighth Chamber),
composed of D. Šváby, President of the Chamber, J. Malenovský and M. Vilaras (Rapporteur), Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By its appeal, Panasonic Corp. asks the Court to set aside the judgment of the General Court of the European Union of 9 September 2015 in Panasonic and MT Picture Display v Commission (T‑82/13, ‘the judgment under appeal’, EU:T:2015:612), 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 it concerned it and, in the alternative, for the reduction of the amount of the fine which had been imposed on it.
Background to the dispute
2        It is apparent from paragraph 1 of the judgment under appeal that Panasonic, formerly known as Matsushita Electric Industrial Co. Ltd, is the parent company of a group of undertakings which produces and markets electronic and electrical goods.
3        Panasonic was involved in the manufacture and marketing of cathode ray tubes (‘CRTs’). Until the tax year 2000, that activity was exercised by Matsushita Electronics Corp., a wholly owned subsidiary of Panasonic. In April 2001, Panasonic merged with its subsidiary and, from that date, it directly exercised the CRT business. On 31 March 2003, it transferred the whole of that business to a joint undertaking, MT Picture Display Co. Ltd — formerly, at the material time, Matsushita Toshiba Picture Display Co. Ltd (‘MTPD’), created by Panasonic with another company, Toshiba Corp. (paragraph 2 of the judgment under appeal).
4        According to paragraph 3 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’).
5        It is apparent from paragraphs 10 to 22 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, ‘the EEA Agreement’) 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, second, to the CPT market (‘the CPT cartel’). The CPT cartel was the only one to which Panasonic’s action before the General Court related. According to the decision at issue, the CPT cartel occurred between 3 December 1997 and 15 November 2006. In Article 1(2)(c) of the decision at issue, the Commission stated that Panasonic had participated in the CPT cartel from 15 July 1999 to 12 June 2006.
6        According to paragraph 11 of the judgment under appeal, the Commission found that the participants in the CPT cartel had agreed on target prices or bottom prices for various CPT sizes, that they had made efforts to maintain a price gap between identical products marketed in Europe and in Asia and that they had closely monitored the pricing arrangements. They also entered into agreements defining which producer would communicate a price increase to which customer. Moreover, the CPT producers agreed on their market shares and agreed on coordinated output restrictions with a view to reducing supply and increasing or maintaining prices. In addition, they exchanged commercially sensitive information concerning planned production and capacity, sales made and planned, arrangements relating to future demand, pricing and price strategy, general sales conditions, customers and also negotiations on price and volumes with customers.
7        It is apparent from paragraph 14 of the judgment under appeal that the Commission found that, until 31 March 2003, Panasonic had participated in the CPT cartel, both directly and through its subsidiaries, by maintaining bilateral contacts with the majority of the five undertakings which, according to that institution, formed the core of the cartel, from 1997, the first documented contact dating from 15 July 1999. According to the Commission, in the course of those contacts the same types of discussions were held as those held during some of the regular multilateral meetings organised between those five undertakings and other undertakings (paragraphs 12 and 14 of the judgment under appeal). As from 1 April 2003, it was MTPD, over which Panasonic exercised decisive influence, which continued to participate in the CPT cartel.
The procedure before the General Court and the judgment under appeal
8        By application lodged at the Registry of the General Court on 13 February 2013, Panasonic and MTPD brought an action, primarily for annulment of the decision at issue in so far as it concerned them and, in the alternative, for the reduction of the fine imposed on them.
9        In support of their first head of claim seeking the annulment of the decision at issue, Panasonic and MTPD inter alia raised a plea in law alleging infringement of the rights of the defence and the right to be heard. That plea was rejected as unfounded by the General Court following the analysis conducted in paragraphs 41 to 63 of the judgment under appeal. Since the two other pleas relied on by Panasonic and MTPD in support of that annulment application were also dismissed, the General Court rejected the annulment application. Next, the General Court examined the single plea put forward by Panasonic and MTPD in support of their second head of claim seeking the reduction of the amount of the fine which had been imposed on them. The General Court partially granted that application and consequently reduced the amount of the fine imposed on Panasonic and MTPD.
Forms of order sought
10      The applicant claims that the Court should:
–        set aside the judgment under appeal in so far as the General Court found that there had been no infringement of its rights of defence and of its right to be heard in the period prior to 10 February 2003;
–        annul Article 1(2)(c) of the decision at issue in so far as it is found there that it participated in the CPT cartel from 15 July 1999 to 10 February 2003;
–        reduce the fine imposed by Article 2(2)(f) of the decision at issue;
–        in the alternative, refer the case back to the General Court; and
–        order the Commission to pay the costs.
11      The Commission contends that the Court should:
–        dismiss the appeal; and
–        order Panasonic to pay the costs.
The appeal
12      Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court of Justice may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
13      It is appropriate to apply that provision in the context of the present appeal.
14      In its appeal, Panasonic raises two pleas. First it alleges an error of law of the General Court in so far as it dismissed its plea of infringement of its rights of defence and its right to be heard and, secondly, it asks the Court of Justice to allow it to also benefit from the setting aside or reduction of the fine which may be granted to Toshiba following its appeal (Case C‑623/15 P) against the judgment of 9 September 2015 in Toshiba v Commission (T‑104/13, EU:T:2015:610). However, by letter of 2 March 2016, Panasonic withdrew its second ground of appeal.
Arguments of the parties
15      In support of its first and, after its partial withdrawal, sole ground of appeal directed against paragraphs 41 to 63 of the judgment under appeal, Panasonic recalls that, before the General Court, it had relied on an infringement of its rights of defence and its right to be heard on the ground that the statement of objections had neither identified nor established the specific facts contained in the evidence relied on by the Commission, from which it followed that it was aware of the CPT cartel prior to 10 February 2003. According to Panasonic, the inclusion of that information in the statement of objections was necessary since, for that period, the consideration that Panasonic had participated in the CPT cartel is based solely on the existence of scattered bilateral contacts, which is not sufficient to establish Panasonic’s participation in the CPT cartel. To that end, the Commission should have proven that Panasonic knew or should have known that those contacts were part of an overall plan including all the elements of the CPT cartel.
16      However, the General Court rejected that plea on the ground that, in the statement of objections, the Commission implicitly but necessarily considered that Panasonic and MTPD were aware of the CPT cartel in the light of the fact that, in the same statement of objections, that institution had criticised them for having participated in a single and continuous infringement.
17      According to Panasonic, that rejection is vitiated by an error of law. The fact that there is a single and continuous infringement does not necessarily mean that an undertaking participating in one or more aspects can be held liable for the infringement as a whole. For that purpose, it is for the Commission to prove that an undertaking in that situation was aware of the infringement as a whole. In those circumstances, in order to ensure the protection of Panasonic’s rights of defence, the statement of objections should have set out the essential elements used against it, including the basis upon which it was alleged that Panasonic knew or should have known about the overall cartel.
18      Lastly, Panasonic states that its response to the statement of objections, in which it sought to defend itself against the claim that it knew or should have known about the overall cartel, was only forward-looking in nature and cannot exempt the Commission from its obligation to state the basis of its finding relating to an essential element of the infringement.
19      The Commission disputes Panasonic’s arguments and considers that the present ground of appeal must be dismissed as unfounded.
Findings of the Court
20      According to the settled case-law of the Court, noted in essence in paragraphs 48 to 50 of the judgment under appeal, observance of the rights of the defence in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the Court ensures. That principle requires that the undertaking concerned be afforded the opportunity, from the stage of the administrative procedure, to make known its views effectively on the truth and relevance of the facts and circumstances alleged and on the documents relied on by the Commission in support of its allegation of an infringement of the competition rules. To that effect, Article 27(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 [EC] (OJ 2003 L 1, p. 1) provides that the parties are to be sent a statement of objections. That statement of objections must set out clearly all the essential elements on which the Commission is relying at that stage of the procedure (judgment of 5 December 2013 in SNIA v Commission, C‑448/11 P, EU:C:2013:801, paragraphs 41 and 42).
21      However, that information may be given in summary form and the Commission decision by which it finds the existence of an infringement is not necessarily required to be a copy of the statement of objections, since that statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature. The Commission is required to hear the addressees of a statement of objections and, where relevant, to take account of any observations made in response to the objections upheld by amending its analysis specifically in order to respect their rights of defence (see, to that effect, judgment of 5 December 2013 in SNIA v Commission, C‑448/11 P, EU:C:2013:801, paragraphs 42 and 44 and the case-law cited).
22       In the present case, the General Court held, in paragraphs 59 and 60 of the judgment under appeal, first, that the Commission did not raise against Panasonic, in the contested decision, evidence of which it was not informed and, secondly, that Panasonic was able effectively to submit its arguments in that regard in the administrative proceedings and, consequently, that the contested decision satisfied the requirements laid down by the case-law, since the essential evidence on which the Commission relied in order to conclude that Panasonic knew of the existence of the CPT cartel, namely the oral statements made by the leniency applicants and the documentary evidence of bilateral contacts, was contained in the statement of objections.
23      In support of that conclusion, the General Court listed, in paragraphs 53 to 56 of the judgment under appeal, the various paragraphs of the statement of objections in which the Commission refers to such evidence.
24      The General Court did not err in law in concluding that Panasonic’s rights of defence were respected. In the light of the matters set out in paragraphs 22 and 23 above, it must be held that the statement of objections satisfied the requirements arising from the case-law cited in paragraph 20 above.
25      It follows that the sole ground of appeal is manifestly unfounded, with the result that the appeal must be dismissed in its entirety.
Costs
26      Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings 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. Since the Commission has applied for costs and the appellant has been unsuccessful, it must be ordered to pay the costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1.      The appeal is dismissed.
2.      Panasonic Corp. shall bear its own costs and pay those incurred by the European Commission.
[Signatures]
* Language of the case: English.