Judgment of the General Court (Third Chamber) of 21 May 2014 — Toshiba v Commission

(Case T‑519/09)

‛Competition — Agreements, decisions and concerted practices — Power transformers market — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing agreement — Proof of distancing from the cartel — Restriction of competition — Effect on trade — Barriers to entry — Fines — Basic amount — Reference year — Section 18 of the 2006 Guidelines on the method of setting fines — Use of a notional market share in the EEA market’

1. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Judicial review — Scope (Art. 81(1) EC) (see paras 33-41, 117, 176, 184)

2. Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Probative value of voluntary depositions made by the main participants in a cartel with a view to benefiting from the Leniency Notice (Art. 81(1) EC; Commission Notice 2002/C 45/03) (see paras 46-50)

3. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Documentary proof — Assessment of the probative value of a document — Criteria — Internal documents of an undertaking (Art. 81(1) EC) (see paras 93, 94, 97)

4. Agreements, decisions and concerted practices — Agreements between undertakings — Evidence of the infringement — Witness statements of employees of a company involved in the infringement — Probative value — Assessment (Art. 81(1) EC) (see paras 149, 150)

5. Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability — Degree of probative value required for the evidence on which the Commission relies (Art. 81 EC; Charter of Fundamental Rights of the European Union, Art. 48(1)) (see paras 156-158)

6. Agreements, decisions and concerted practices — Participation in meetings having an anti-competitive object — Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel — Public distancing — Assessment (Art. 81(1) EC) (see paras 206, 212, 213)

7. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Distinction between infringements by object and infringements by effect (Art. 81(1) EC) (see paras 227, 230, 231)

8. Agreements, decisions and concerted practices — Agreements between undertakings — Effect on trade between Member States — Criteria for assessment (Art. 81(1) EC) (see paras 239-241, 244)

9. Competition — Fines — Amount — Determination — Turnover taken into consideration — Reference year — No obligation to refer to the last full year of the infringement (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 13) (see paras 254, 255, 259)

10. Competition — Fines — Amount — Determination — Criteria — Guidelines adopted by the Commission — Basic amount of the fine — Calculation by reference to the value of sales without deduction of transport costs and commissions — Global market-sharing agreements — Account taken of aggregate sales of the undertakings concerned on the world market and the best available data — No breach of principle of proportionality (Art. 81(1) EC; Charter of Fundamental Rights of the European Union, Art. 49(3); Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 13 and 18) (see paras 272, 274-276, 283-286, 288‑291)

Re:

APPLICATION for annulment of the Commission Decision of 7 October 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/39.129 — Power Transformers), and, in the alternative, for a reduction in the amount of the fine imposed on the applicant in that decision.

Operative part

The Court:

1. Dismisses the action;