EN Official Journal of the European Union C 70/12

Summary of Commission Decision

of 27 June 2012

amending Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and Article 53 of the EEA Agreement to the extent that it was addressed to Mitsubishi Electric Corporation and Toshiba Corporation

(Case COMP/39.966 — Gas Insulated Switchgear — Fines)

(notified under document C(2012) 4381)

(Only the English text is authentic)

(Text with EEA relevance)

2013/C 70/06

On 27 June 2012, the Commission adopted a decision amending Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and Article 53 of the EEA Agreement to the extent that it was addressed to Mitsubishi Electric Corporation and Toshiba Corporation. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1), the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets.

1. INTRODUCTION

(1) The Decision amends Decision C(2006) 6762 of 24 January 2007 to the extent that it was addressed to Mitsubishi Electric Corporation (Melco) and Toshiba Corporation (Toshiba) (hereinafter ‘Decision of 24 January 2007’).

(2) In its judgments in Case T-113/07 Toshiba Corp. v European Commission and Case T-133/07 Mitsubishi Electric Corp. v European Commission, the General Court upheld the Commission's finding under Article 7(1) of Regulation (EC) No 1/2003, made in Article 1(l) and (s) of the Decision of 24 January 2007, that Melco and Toshiba infringed Article 101 of the TFEU and Article 53 of the EEA Agreement by participating, from 15 April 1988 to 11 May 2004, in a complex of agreements and concerted practices in the gas insulated switchgear sector in the EEA. However, the General Court annulled the fines imposed on Melco and Toshiba for this infringement in the Decision of 24 January 2007 on account of violation of the principle of equal treatment in the choice of a reference year for the purpose of calculating the fine imposed on Melco and Toshiba.

(3) The Decision remedies the error in the choice of reference year and re-imposes the fine on Melco and Toshiba for their participation in the infringement established in the Decision of 24 January 2007.

2. CASE DESCRIPTION

2.1. Procedure

(4) The Commission's intention to re-impose the fine on Melco and Toshiba as well as the parameters of their calculation were communicated to Melco and Toshiba in a letter of facts on 15 February 2012, to which Melco responded on 16 March 2012 and Toshiba on 23 March 2012.

(5) A meeting on the substance of the letter of facts with Melco's and Toshiba's representatives was held on 8 June 2012 and 12 June 2012 respectively.

(6) The Advisory Committee on restrictive practices and dominant positions issued a favourable opinion on 19 June 2012.

2.2. Summary of the infringement

(7) As established in Decision of 24 January 2007, Melco and Toshiba infringed Article 101 of the TFEU and Article 53 of the EEA Agreement by participating, from 15 April 1988 to 11 May 2004, in a complex of agreements and concerted practices in the gas insulated switchgear sector in the EEA.

(8) In the Decision of 24 January 2007, Melco and Toshiba were held solely liable for their involvement in the infringement between 15 April 1988 and 1 October 2002, and jointly and severally liable for the infringement committed by TM T&D (2) between 1 October 2002 and 11 May 2004.

2.3. Addressees

(9) The addressees of the Decision are Melco and Toshiba.

2.4. Remedies

(10) To calculate the fine on Melco and Toshiba, the Commission applies the 1998 Fine Guidelines, which were also applicable to the calculation of the fine imposed in the Decision of 24 January 2007 (3).

2.4.1. Basic amount of the fine

(11) The gravity of the infringement is very serious.

(12) On account of duration of the infringement, the Commission applies an increase of 140 % for the period of Melco's and Toshiba's sole liability and 15 % for the period of their joint and several liability.

2.4.2. Aggravating circumstances

(13) There are no aggravating circumstances in this case.

2.4.3. Mitigating circumstances

(14) There are no mitigating circumstances in this case.

2.4.4. Specific increase for deterrence

(15) A multiplier for deterrence is applied to both Melco and Toshiba on account of their world-wide turnovers.

2.4.5. Application of the 10 % turnover limit

(16) In neither Melco's nor Toshiba's case, the fine reaches 10 % of their respective world-wide turnovers.

2.4.6. Application of the 2002 Leniency Notice: reduction of fines

(17) No reductions under the 2002 Leniency Notice are granted.

3. DECISION

(18) For the single and continuous infringement established in the Decision of 24 January 2007, the following fines are imposed: (a) Mitsubishi Electric Corporation solely liable: EUR 74 817 000; (b) Toshiba Corporation solely liable: EUR 56 793 000; (c) Mitsubishi Electric Corporation and Toshiba Corporation jointly and severally liable: EUR 4 650 000.

(1) OJ L 1, 4.1.2003, p. 1.

(2) TM T&D Corporation was a 50/50 joint venture between Melco and Toshiba. It was responsible for the production and sales of GIS. It started operations on 1 October 2002. It was subsequently dissolved on 30 April 2005 and its assets were acquired by Melco and Toshiba.

(3) OJ C 9, 14.1.1998, p. 3.