2

In paragraphs 1 to 20 of the judgment under appeal, the background to the dispute is set out as follows: ‘1 The applicant, [Toshiba], 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. (“Mitsubishi”) 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 ... 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 … 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 [Toshiba] 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 [Toshiba] 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 [Mitsubishi]. 7 On 18 April 2007, [Toshiba] brought an action against the 2007 decision. 8 By judgment of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343), the Court, first, dismissed [Toshiba’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 [Toshiba], on the ground that the Commission had infringed the principle of equal treatment by choosing, when calculating the fine, a reference year for [Toshiba] which was different from that chosen for the European participants in the infringement. 9 On 23 September 2011, [Toshiba] lodged an appeal before the Court of Justice against the judgment [of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343)]. 10 On 15 February 2012, the European Commission sent [Toshiba] 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 [of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343)]. 11 On 7 and 23 March 2012, [Toshiba] submitted its comments on the letter of facts. 12 On 12 June 2012, a meeting was held between [Toshiba’s] representatives and the Commission team responsible for the case. 13 By [the decision at issue], 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 [Toshiba], to be paid jointly and severally with [Mitsubishi]. Under Article 2(i), a fine of EUR 56793000 was imposed on [Toshiba], for which it was solely liable. 14 In order to remedy the unequal treatment criticised by the Court in its judgment [of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343)], the Commission used, in [the decision at issue], the worldwide turnover for GIS products in 2003. In so far as, in that year, the GIS activities of [Toshiba] and of [Mitsubishi] were carried out by TM T&D, the Commission took into consideration that company’s turnover in 2003 (recitals 59 and 60 of the [decision at issue]). 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 [decision at issue]). 16 Second, in order to reflect the [Toshiba’s] and [Mitsubishi’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 [Toshiba] and [Mitsubishi] respectively (recitals 62 and 63 of the [decision at issue]). 17 Third, in order to ensure the deterrent effect of the fine, the Commission applied a deterrence multiplier of 2 to [Toshiba], on the basis of its turnover in 2005 (recitals 69 to 71 of the [decision at issue]). 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 [Toshiba] was increased by 140% (recitals 73 to 76 of the [decision at issue]). 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 [Toshiba] and [Mitsubishi] jointly and severally (recital 77 of the [decision at issue]). 20 Sixth and finally, the fine imposed jointly and severally was multiplied by [Toshiba’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 [decision at issue]).’