Judgment of the General Court (Fifth Chamber) of 15 December 2016 — Infineon Technologies v Commission

(Case T‑758/14)

(Competition — Agreements, decisions and concerted practices — Smart card chips — Decision finding an infringement of Article 101 TFEU — Exchanges of commercially sensitive information — Rights of defence — Infringement by object — Proof — Limitation period — Single and continuous infringement — 2006 Guidelines on the method of setting fines — Value of sales)

1. Competition—Administrative procedure—Observance of the rights of the defence—Access to the file—Scope—Refusal to communicate a document—Consequences—Need to draw a distinction, in relation to the burden of proof borne by the undertaking concerned, between incriminating and exculpatory documents (see paras 56, 57)

2. Competition—Administrative procedure—Statement of objections—Necessary content—Commission decision finding an infringement—Decision not identical to the statement of objections—Infringement of the rights of the defence—Condition (Council Regulation No 1/2003, Art. 27(1)) (see para. 94)

3. Competition—Administrative procedure—Principle of sound administration—Obligation of diligence and impartiality (Art. 101 TFEU) (see paras 106, 107)

4. Competition—Administrative procedure—Observance of the rights of the defence—Obligation to reply to all the pleas of the person concerned—Obligation to make additional enquiries—Obligation to hear witnesses indicated by the person concerned—None (Art. 101 TFEU) (see para. 110)

5. Competition—Administrative procedure—Commission’s powers of investigation—Power to demand production of a communication between lawyer and client—Limits—Protection of the confidentiality of such a communication—Scope—Exclusion of communications with the undertaking’s in-house lawyers (see para. 124)

6. Agreements, decisions and concerted practices—Adverse effect on competition—Criteria for assessment—Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market—Exchange of information between competitors—Anti-competitive effect—Presumption (Art. 101(1) TFEU) (see paras 170-172)

7. Competition—Administrative procedure—Means of proof—Principle of the free assessment of evidence—Assessment of the probative value of a statement or document—Criteria (Art. 101(1) TFEU) (see paras 179, 180)

8. Agreements, decisions and concerted practices—Prohibition—Infringements—Agreements and concerted practices capable of being treated as constituting a single infringement—Existence of an overall plan—Criteria (Art. 101(1) TFEU) (see paras 216, 217)

9. Agreements, decisions and concerted practices—Agreements and concerted practices constituting a single infringement—Undertakings that may be held responsible for participating in an overall cartel—Criteria—Burden of proof (Art. 101(1) TFEU) (see paras 218-223)

10. EU law—Interpretation—Acts of the institutions—Statement of reasons—To be taken into consideration (see para. 230)

11. Competition—Fines—Amount—Determination—Criteria—Gravity of the infringement—Information needed for an assessment (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23,(2) and (3); Commission Notice 2006/C 210/02) (see paras 237, 238)

12. Agreements, decisions and concerted practices—Prohibition—Infringements—Agreements and concerted practices constituting a single infringement—Attribution of liability for the entire infringement to a single undertaking—Conditions (Art. 101(1) TFEU) (see para. 245)

13. Competition—Fines—Amount—Determination—Criteria—Overall turnover of the undertaking concerned—Turnover corresponding to the goods covered by the infringement—To be taken into consideration (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3)) (see para. 269)

Re:

APPLICATION under Article 263 TFEU for the annulment of Commission Decision C(2014) 6250 final of 3 September 2014 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39574 — Smart Card Chips) or, in the alternative, for a reduction in the fine imposed on the applicant.

Operative part

The Court:

1. Dismisses the action;