Case T‑404/12

Toshiba Corp.

v

European Commission

‛(Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — New decision taken following annulment in part of the initial decision by the Court — Fines — Rights of the defence — Obligation to state reasons — Equal treatment — Starting amount — Extent of contribution to the infringement’

Summary — Judgment of the General Court (First Chamber), 19 January 2016

Competition — Fines — Amount — Determination — Individualisation by reference to the relative gravity of the contribution of each of the incriminated undertakings — Single and continuous infringement — Participation of an undertaking in a cartel in the form of an omission to act — Compliance with the principle of equal treatment — Assessment

Competition — Fines — Amount — Determination — Determination of the base amount — Determination of the value of sales — Respect for the principle of equal treatment — Activities of certain participants in a cartel carried on by a joint venture during the reference year — Adaptation of the method of allocating and dividing the starting amount — Lawfulness

Competition — Administrative procedure — Observance of the rights of the defence — Decision amending the amount of the fine adopted without a new statement of objections — Assessment in relation to the proceedings as a whole which led to the adoption of the contested decision

Where, in the context of an action for annulment of a Commission decision imposing a fine for breach of the competition rules, that decision explicitly constitutes a decision which amends an initial decision which imposed a fine of a different amount and has been partially annulled by the EU judicature, the adoption procedure for the amending decision amounts to an extension of the procedure which led to the said initial decision. In those circumstances, the content of the statement of objections of the initial decision may be taken into consideration in assessing whether the applicant’s rights of defence were respected in the procedure which led to the adoption of the contested decision, in so far as it is not called into question by the said partially annulling judgment. Moreover, in so far as that latter judgment has not called into question did not call into question the veracity, relevance or validity of the elements of law and fact relating to the calculation of the fine set out in the statement of objections formulated in the context of the adoption of the initial decision, the findings made in that judgment do not preclude the taking into account of the information provided in the initial statement of objections regarding the determination of the amount of the fine when reviewing whether the applicant’s rights of defence were respected in the procedure which led to the contested amending decision. Where, therefore, first, the initial statement of objections provided the incriminated undertaking with the elements necessary for it to be able usefully to defend itself, including as regards the imposition of a fine, second, the veracity, relevance or validity of those elements have not been affected by the judgment partially annulling the initial decision, and, third, in the amending decision the Commission does not rely on any new elements against that undertaking, compared with those indicated in the initial statement of objections, the Commission is not required to send a new statement of objections to that undertaking. (see paras 42, 45, 47, 64, 65, 72)

As regards compliance with defence rights in the matter of infringements of the competition rules, where the Commission, following the partial annulment of a decision imposing a fine, adopts a decision amending the amount of the latter, it is required to provide the undertaking concerned with additional information as to how it intends to ensure the deterrent effect of the fine, so as to enable it properly to make known its views in that regard, including in relation to the imposition of an additional amount. In that context, if, before the adoption of the amending decision, the Commission sends that undertaking a letter of facts, it is however not necessary for the elements in question to be referred expressly in that document, which has no particular procedural status. Rather, it needs to be ascertained whether, in relation to the proceedings as a whole which led to the adoption of the contested decision, the applicant was placed in a position in which it could adequately understand that intention and respond to it. It follows that where, as from the time of the initial statement of objections, the applicant was aware that the Commission intended to ensure the deterrent effect of the fine imposed and, at the very latest from the time of the initial decision, it was in a position to understand that that intention implied the imposition of an additional amount for a given period of operation, that intention not having been called into question by the judgment partially annulling the initial decision and having been reaffirmed both in the said letter of facts and in a meeting between the Commission and that undertaking, an infringement of that undertaking’s defence rights in relation to the Commission’s intention to impose the additional amount on it is not established. (see paras 71, 74, 75, 87, 88)

The grounds for a decision finding an infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement may be taken into account when examining compliance with the obligation to state reasons for a decision amending that initial decision, adopted after a partial annulment of the latter by the EU judicature, in so far as they have not been affected by the annulling judgment and are not contradicted by the wording of the amending decision. Thus, as regards the statement of reasons for the starting amount determined by the Commission for the purposes of calculating the fine in the amending decision, the fact that the incriminated undertaking is able to understand the factors which made it possible for the Commission to measure the gravity of the infringement committed by it at the time of the procedure for adopting the initial decision means that the Commission is not required, inter alia, to set out a more detailed account or to provide figures relating to the precise calculation of the starting amount. (see paras 95, 99)

In the matter of the determination of the amount of a fine imposed for breach of the competition rules, where, during the reference year chosen for the purposes of determining the value of sales, the activities of certain participants in a cartel in the sector concerned were carried on within a joint venture, jointly owned in equal shares and subsequently dissolved, with the result that those participants, unlike others, did not register sales in that sector, the Commission does not infringe the principle of equal treatment by, first, allocating a hypothetical starting amount for the said joint venture and then dividing it between the participants who had the capacity of shareholders in the disappeared company. The fact that the latter transferred their activities to the said distinct entity means that the fines imposed upon them cannot be calculated in exactly the same way as that of the other participants in the cartel and that, on that point, their situation is not comparable to the situation of the latter. (see paras 112-115)