62016TJ0008_RES
Case T‑8/16
Toshiba Samsung Storage Technology Corp.andToshiba Samsung Storage Technology Korea Corp.
v
European Commission
Judgment of the General Court (Fifth Chamber), 12 July 2019
(Competition — Agreements, decisions and concerted practices — Market for optical disk drives — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Collusive agreements relating to procurement events organised by two computer manufacturers — Breach of essential procedural requirements and of the rights of the defence — Jurisdiction of the Commission — Geographic scope of the infringement — Single and continuous infringement — Principle of good administration — 2006 Guidelines on the method of setting fines)
Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Criteria — Complex of practices adopted by various parties in pursuit of a single anticompetitive economic aim
(Article 101(1) TFEU)
(see paragraphs 56-58)
Acts of the institutions — Reasons — Obligations — Scope — Decisions applying the rules on competition — Commission decision finding an infringement and imposing a fine
(Article 101(1) and the second paragraph of Article 296 TFEU)
(see paragraph 81)
Competition — Administrative procedure — Statements of objections — Provisional nature — Necessary content — Respect for rights of defence
(Council Regulation No 1/2003, Art. 27(1))
(see paragraphs 157-160)
Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Imputation of liability to an undertaking for the whole infringement — Conditions — Infringing practices and instances of conduct forming part of an overall plan — Assessment — Criteria — Common objectives pursued by all participants — Need for a link of complementarity between the infringing practices — Absence
(Art. 101(1) TFEU)
(see paragraphs 205 and 230)
Résumé
In its judgment in Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission (T‑8/16), delivered on 12 July 2019, the General Court dismissed the application lodged by Toshiba Samsung Storage Technology Corp. and its subsidiary Toshiba Samsung Storage Technology Korea Corp. (‘the applicants’) seeking, principally, annulment of Commission Decision C(2015) 7135 final of 21 October 2015, (
1
) or, in the alternative, a reduction of the amount of the fine imposed on the applicants by that decision for an infringement of the rules on competition in the sector of manufacture and supply of optical disk drives (‘ODDs’).
Following an administrative investigation, opened in response to a complaint, the Commission concluded that 13 companies had participated in a cartel on ODDs. In the contested decision, the Commission found that, at least from 23 June 2004 to 25 November 2008, the participants in that prohibited cartel had orchestrated their conduct with regard to procurement procedures organised by the computer manufacturers Dell and Hewlett Packard. According to the Commission, the companies involved had sought, through a network of parallel bilateral contacts, to ensure that the prices of ODD products remained at levels higher than they would have been in the absence of those bilateral contacts. The Commission therefore imposed a fine of EUR 41304000 on the applicants for infringing Article 101 TFEU and Article 53 of the EEA Agreement.
The applicants raised several pleas in law, alleging in particular breach of essential procedural requirements and of the rights of the defence as well as errors of fact and law in the determination of the geographic scope of the infringement and in the finding of a single and continuous infringement.
As regards the concept of a single and continuous infringement, the Court observed that this presupposes a complex of practices adopted by various parties in pursuit of a single anticompetitive economic aim. It is therefore apparent from the very concept of a single and continuous infringement that such an infringement presupposes a ‘complex of practices or infringements’. Accordingly, the applicants could not claim that the Commission had included an additional legal characterisation in the contested decision by finding, in addition to the single and continuous infringement identified in the statement of objections, that that infringement was composed of several ‘separate infringements’, given that those various instances of anticompetitive conduct were precisely what constituted that single infringement.
In addition, the Court considered that the fact that certain characteristics of the cartel had evolved over time, such as the inclusion of new participants, a reduction in their number or the expansion of the cartel to also cover Hewlett Packard, could not preclude the Commission from classifying that cartel as a single and continuous infringement, given that the objective of the cartel had remained the same.
(
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)	Commission Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 — Optical disk drives).