JUDGMENT OF THE COURT (Seventh Chamber)

19 December 2019 ( )

(Appeal — Competition — Agreements, decisions and concerted practices — European market for underground and submarine power cables — Market allocation in connection with projects — Fines — 2006 Guidelines on the method of setting fines — Determination of the value of sales — Principle of equal treatment)

In Case C‑589/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 September 2018,

Furukawa Electric Co. Ltd, established in Tokyo (Japan), represented initially by A. Luke and C. Pouncey, Solicitors, then by A. Luke and K. Fountoukakos, Solicitors,

appellant,

the other parties to the proceedings being:

European Commission, represented by H. van Vliet, A. Biolan and I. Zaloguin, acting as Agents,

defendant at first instance,

Viscas Corp., established in Tokyo, represented by J.-F. Bellis, avocat,

intervener at first instance,

THE COURT (Seventh Chamber),

composed of P.G. Xuereb (Rapporteur), President of the Chamber, T. von Danwitz and A. Kumin, Judges,

Advocate General: J. Kokott,

Registrar: M. Longar, Administrator,

having regard to the written procedure and further to the hearing on 11 July 2019,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, Furukawa Electric Co. Ltd seeks to have set aside in part the judgment of the General Court of the European Union of 12 July 2018, Furukawa Electric v Commission (T‑444/14, not published, EU:T:2018:454) (‘the judgment under appeal’), by which the General Court dismissed its action for the annulment in part of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) (‘the contested decision’) in so far as it concerns the appellant and, in the alternative, an application for a reduction in the amount of the fine imposed on the appellant in that decision.

Legal context

Regulation (EC) No 1/2003

2 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) provides as follows, in Article 23(2) and (3) thereof:

‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

(a) they infringe Article [101 or 102 TFEU] …

…

3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

The 2006 Guidelines

3 The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’) state, in points 2 and 4 thereof, that, so far as concerns the setting of fines, ‘the Commission must have regard both to the gravity and to the duration of the infringement’ and that ‘fines should have a sufficiently deterrent effect’.

4 It is apparent from points 9 to 11 of those guidelines that, without prejudice to point 37 thereof, the method used by the European Commission when setting fines has two steps to it, namely, first, the determination of a basic amount and, secondly, potential adjustments of that amount upwards or downwards. In the determination of the basic amount of the fine, the Commission first, in accordance with points 13 to 18 of those guidelines, determines the value of the sales to be taken into account. Pursuant to point 19 of the 2006 Guidelines, the basic amount of the fine is related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. In addition, under point 25 of those guidelines, the Commission may include in the basic amount a sum known as the ‘entry fee’ in order to deter undertakings from participating in infringements of EU competition law.

5 Point 13 of the 2006 Guidelines is worded as follows:

‘In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the [European Economic Area (EEA)]. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement …’

6 Point 18 of those guidelines states:

‘Where the geographic scope of an infringement extends beyond the EEA (e.g. worldwide cartels), the relevant sales of the undertakings within the EEA may not properly reflect the weight of each undertaking in the infringement. This may be the case in particular with worldwide market-sharing arrangements.

In such circumstances, in order to reflect both the aggregate size of the relevant sales within the EEA and the relative weight of each undertaking in the infringement, the Commission may assess the total value of the sales of goods or services to which the infringement relates in the relevant geographic area (wider than the EEA), may determine the share of the sales of each undertaking party to the infringement on that market and may apply this share to the aggregate sales within the EEA of the undertakings concerned. The result will be taken as the value of sales for the purpose of setting the basic amount of the fine.’

7 Under point 37 of the Guidelines:

‘Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.’

Background to the dispute and the contested decision

8 The background to the dispute, as set out in paragraphs 1 to 20 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.

9 The appellant, Furukawa Electric, is a Japanese company active in the underground and submarine power cable production and sales sector. With effect from 1 October 2001, it transferred part of its activities in the power cable sector to a joint venture named Viscas Corp., which it owned in equal shares with another Japanese company in the same sector, Fujikura Ltd.

10 In Article 1 of the contested decision, the Commission found that the appellant and 25 other companies, including Viscas and Fujikura, had participated in a cartel (‘the cartel’), constituting a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement in the (extra) high voltage underground and/or submarine power cables sector (‘the infringement at issue’).

11 According to the contested decision, the cartel took the form of a composite whole composed of two main configurations, namely

– a configuration which included the European undertakings, generally referred to as the ‘R’ members, the Japanese undertakings, referred to as the ‘A’ members, and lastly the South Korean undertakings, referred to as the ‘K’ members and which made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers (‘the A/R configuration’). That allocation followed an agreement relating to the ‘home territory’, under which the Japanese and South Korean producers would refrain from competing for projects in the European producers’ ‘home territory’ and the European producers would undertake to stay out of the Japanese and South Korean markets. In addition, the parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States;

– a configuration which involved the allocation of territories and customers by the European producers for projects to be implemented within the European ‘home’ territory or allocated to the European producers (‘the European configuration’).

12 According to the contested decision, the appellant participated in the cartel from 18 February 1999 to 28 January 2009, initially directly, during the period from 18 February 1999 to 30 September 2001 (‘the first period’) and, secondly, indirectly, during the period from 1 October 2001 to 28 January 2009 (‘the second period’), through Viscas, over which it exercised a decisive influence.

13 Having regard to the role played by the various participants in the cartel in its implementation, the Commission classified them into three groups, namely, first, the undertakings which formed the core group of the cartel, secondly, the undertakings which were not part of the core group of the cartel but which nevertheless could not be regarded as fringe players in it and, thirdly, the fringe players in the cartel. According to the Commission, the appellant belonged to the first of those groups.

14 For the purposes of calculating the amount of the fines, the Commission applied the methodology set out in the 2006 Guidelines.

15 In the first place, as regards the basic amount of the fines, the Commission established the value of sales using the method provided for in point 18 of those guidelines. It then selected the proportion of the value of sales which would reflect the gravity of the infringement at issue. In that regard, the Commission considered that that infringement by its nature constituted one of the most harmful restrictions of competition, which justified a ‘gravity percentage’ of 15%. The Commission also increased the gravity multiplier by 2% for all addressees of the contested decision on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all of the EEA. The Commission also considered that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the A/R configuration, the European undertakings had shared power cable projects among themselves in the context of the European configuration. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings.

16 The basic amount of the fine as thus established was, after inclusion of a sum known as the ‘entry fee’ corresponding to 17% of the value of those sales, EUR 8 858 000 for the appellant. The basic amount of the fine for Viscas came to EUR 34 992 000.

17 In the second place, as regards adjustments to the basic amount of the fines, the Commission found there neither to be any aggravating circumstances nor any mitigating circumstances so far as the appellant and Viscas were concerned.

18 Under Article 2(n) and (p) of the contested decision, the Commission imposed on the appellant a fine of EUR 8 858 000, in respect of its direct participation in the infringement at issue during the first period, and on Viscas a fine of EUR 34 992 000 in respect of its participation in the infringement at issue during the second period, jointly and severally with the appellant and with Fujikura.

The procedure before the General Court and the judgment under appeal

19 By application lodged at the Registry of the General Court on 12 June 2014, the appellant brought an action for partial annulment of the contested decision in so far as the decision concerns it and for reduction of the fine imposed on it.

20 In support of its action, the appellant raised five pleas in law, divided into several parts. Among those pleas, the first part of the fifth plea in law was based on an error in law, in so far as the Commission was alleged to have incorrectly included in the value of sales used to determine the basic amount of the fine to be imposed on the appellant, in addition to the sales made by Viscas, its own sales and those of Fujikura. The third part of the third plea alleged an error in law resulting from the failure to give appropriate consideration to the role played by the European producers in the infringement at issue which led the Commission, incorrectly, to calculate the fines in accordance with point 18 of the 2006 Guidelines.

21 By order of 25 June 2015, the General Court accepted Viscas’s application for leave to intervene in the proceedings in support of the form of order sought by the appellant.

22 By the judgment under appeal, the General Court dismissed the action in its entirety.

23 As regards the value of sales used to determine the basic amount of the fine to be imposed on the appellant, the Court held that, throughout the second period, the appellant, Fujikura and Viscas constituted a single undertaking for the purposes of Article 101(1) TFEU and that the Commission could therefore take into account the sales made by the appellant and Fujikura in order to calculate the value of the hypothetical sales made by that undertaking in the EEA in 2004, the reference year chosen by the Commission for the determination of the basic amounts to be taken into account for the purposes of calculating the fines, in accordance with the method provided for in point 18 of the 2006 Guidelines. While acknowledging that the Commission in general took into account only sales made by that joint venture in that regard, the General Court pointed out that, in the present case, the appellant and Fujikura had not transferred to Viscas all the activities covered by the cartel, but retained some of those activities themselves, and that the sales which the appellant and Fujikura had kept to themselves could therefore be taken into account by the Commission for the purposes of calculating the fine.

24 As regards the account taken of the role played by the European producers in the infringement, the General Court held that, in so far as the appellant’s line of argument was to be interpreted to mean that the application of the method provided for in point 18 of the 2006 Guidelines led the Commission, in the present case, to underestimate the weight of the European producers in the cartel and, accordingly, to overestimate the weight of the Japanese and South Korean producers in that cartel, it should be rejected. According to the General Court, that line of argument submitted by the appellant was based on the premiss that the application of that method favoured the European producers by reducing the share of the sales actually made in the EEA which would have been allocated to them pursuant to the method provided for in point 13 of those guidelines. However, that premiss was incorrect since, having regard to the nature of the infringement at issue, which consisted, inter alia, of restricting access by the Japanese producers to the EEA, the share of sales actually made by the European producers in the EEA could not be used as the basis for assessing their weight in the cartel. Accordingly, the use of the share of sales actually made by the European producers in the EEA would have led, in the present case, to their weight in the cartel being overvalued and their being penalised in excess of their participation in that cartel. It could not therefore be held that the difference between the value of the sales actually realised by the European producers in the EEA and that allocated to them pursuant to the method provided for in point 18 of the 2006 Guidelines demonstrated an advantage conferred on them by the Commission.

Forms of order sought by the parties before the Court of Justice

25 By its appeal, Furukawa claims that the Court should:

– set aside the judgment under appeal to the extent that it rejected the first part of its fifth plea and the third part of its third plea at first instance and ordered it to pay the costs;

– annul Article 2(n) of the contested decision in so far as the amount of the fine imposed on it was set at EUR 8 858 000;

– set the amount of that fine at EUR 4 844 000;

– in the event that the Court of Justice sets aside the judgment of the General Court of 12 July 2018, Viscas v Commission (T‑422/14, EU:T:2018:446) and reduces the fine imposed on Viscas under Article 2(p) of the contested decision, grant Furukawa an equivalent reduction in the amount of the fine for which it is jointly and severally liable with Viscas, and

– order the Commission to pay the costs of the present proceedings and of the proceedings before the General Court.

26 The Commission contends that the Court should:

– dismiss the appeal and

– order the appellant to pay the costs.

27 Viscas claims that the Court should:

– allow the appellant’s appeal and

– order the Commission to pay the costs incurred by Viscas in connection with the present appeal and with the action before the General Court.

The appeal

28 In support of its appeal, the appellant puts forward two grounds alleging, first, infringement of the principle of personal responsibility and, second, infringement of the principle of equal treatment.

The first ground of appeal

Arguments of the parties

29 By the first ground of appeal, which is directed at points 207 to 229 of the judgment under appeal, the appellant, supported by Viscas, alleges that the General Court infringed the principle of personal responsibility inasmuch as it confirmed the merits of the Commission’s decision that the sales made by Fujikura were to be included in the calculation of the fine imposed on it in respect of its participation in the cartel during the first period. It claims that it is not possible to hold that the appellant and Fujikura were part of a single economic entity at a time when each of them participated in the cartel independently of the other and when Viscas did not yet exist. The General Court moreover did not examine that point and focussed on the second period.

30 The Commission takes the view that that ground is new and therefore inadmissible, for the reason that Furukawa challenged before the General Court merely the combination of the turnover of Viscas with the turnovers of its parent companies for the purposes of the calculation of the fine, and not the combination of the turnovers of those parent companies as such. In the alternative, the Commission maintains that that ground of appeal is unfounded.

Findings of the Court

31 It must as a preliminary point be noted, as it was by the General Court in paragraphs 194 and 200 of the judgment under appeal respectively, that the Commission had decided, first, to use the value of the sales made in 2004 for the purposes of calculating the fines to be imposed on the appellant in respect of both the first period and the second period and, secondly, to include in those sales, so far as joint ventures such as Viscas were concerned, not only the sales made by the joint venture to third parties, but also the sales to third parties made by the parent companies in 2004.

32 Before the General Court, the appellant submitted that by combining Viscas’s sales, on the one hand, with its own sales and those of Fujikura, on the other hand, in order to calculate the fines imposed on it in respect of the two periods at issue, the Commission penalised it for acts which were not imputed to it and that those fines should have been calculated taking into account only Viscas’s sales. In that regard, the appellant based its arguments on two considerations, namely, first, that the Commission had not demonstrated that it had continued to participate in the cartel through Viscas, nor that Fujikura and itself constituted a single economic entity enabling their turnover to be combined, and, secondly, that the Commission, in its decision-making practice, took into account only the sales of joint ventures to calculate the fines to be imposed on their parent companies.

33 In so far as the appellant’s arguments may be understood as alleging that, in addition to erring in law, the General Court failed to state sufficient reasons, inasmuch as that court in the judgment under appeal is claimed not to have responded to the appellant’s complaint concerning the fine imposed on it on account of its participation in the infringement at issue during the first period, those arguments cannot succeed. Since the appellant’s arguments put forward with a view to challenging the validity of the fine imposed on it in respect of its participation in the cartel during the first and second periods, respectively, were the same in respect of both periods, the General Court could restrict itself to setting out why those arguments had to be rejected without itself being required to make a distinction between those two periods, since such a distinction clearly did not, from the appellant’s perspective, have any influence on the scope of those arguments. The first ground of appeal must therefore, to that extent, be declared unfounded.

34 Inasmuch as, by its first ground of appeal, the appellant claims that the General Court erred in law in confirming the merits of the Commission’s decision to take into account the sales of Fujikura for the purposes of calculating the fine to be imposed on the appellant on account of its participation in the cartel during the first period, it must be recalled that, according to settled case-law of the Court of Justice, an appellant cannot rely, for the first time before the Court of Justice, on grounds of appeal and arguments it did not raise before the General Court. Indeed, to allow a party to put forward for the first time before the Court of Justice such grounds and arguments would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas and arguments debated before the General Court (judgment of 29 November 2018, Alcohol Countermeasure Systems (International) v EUIPO, C‑340/17 P, not published, EU:C:2018:965, paragraph 77 and the case-law cited).

35 The arguments on which the appellant relies in its appeal in support of that ground differ from those it put forward before the General Court. It is apparent from point 131 of the application that the first of the arguments mentioned in paragraph 32 above refers only to the period beginning on 1 October 2001, namely the second period. In other words, before the General Court the appellant challenged the calculation of the fines in respect of its participation in the cartel as made by the Commission in the contested decision on the ground that, during the second period, it did not constitute a single economic entity with Fujikura.

36 In its appeal, the appellant submits that it did not constitute any such single economic entity with Fujikura during the first period. Since that argument was not submitted to the General Court, it must be regarded as new and on that basis declared inadmissible, in accordance with the consistent case-law of the Court referred to in paragraph 34 above.

37 In any event, it must be observed that since the appellant has not challenged either the choice of 2004 as the reference year or the principle that, for the purposes of calculating the fine in respect of its participation in the infringement at issue during the first period, the sales were to be apportioned between Fujikura and the appellant in proportion to the individual sales of those two companies in the full business year prior to the formation of Viscas, it has not established that the calculation made by the Commission was not founded on an appropriate and fair apportionment of sales between Fujikura and the appellant. Admittedly, the appellant submitted that it would have been more appropriate for the Commission to have based its decision on the approach it suggested, by attributing to the parent companies of Viscas their own respective sales and a part of the sales of Viscas. In addition to the fact that, as the Commission has correctly observed, such an approach would have required an adaptation of the percentages to be used for the attribution of Viscas’s sales, it should be observed that the existence of an alternative approach for the purposes of calculating a fine does not suffice to demonstrate that the approach followed by the Commission in the present case was contrary to EU law.

38 The first ground of appeal therefore cannot succeed.

The second ground of appeal

Arguments of the parties

39 By its second ground of appeal, which is directed, in essence, at paragraphs 258 and 262 to 269 of the judgment under appeal, the appellant, supported by Viscas, submits that by rejecting the third part of its third plea in law in support of its action for annulment, concerning point 18 of the 2006 Guidelines, the General Court infringed the principle of equal treatment.

40 The appellant claims that the application of the method provided for in point 18 of the 2006 Guidelines to all the addressees of the contested decision resulted in an infringement of the principle of equal treatment by underestimating, or even ignoring, the economic importance of the European configuration and the weight of the involvement of the European producers in that configuration. The European producers, it submits, participated in both the European and A/R configuration, while the Japanese and South Korean producers participated only in the latter configuration. The situations of the two groups of producers were thus fundamentally different.

41 It argues that the method provided for in point 18 of the 2006 Guidelines, although relevant in the context of cartels which concern only worldwide market-sharing agreements, is not appropriate to address more complex factual circumstances such as those in the present case. According to the appellant, practices such as the European configuration are normally penalised by fines calculated pursuant to point 13 of the 2006 Guidelines. In the present case, the participants in the European configuration, in having extended those practices to the rest of the world, were however unduly advantaged by the Commission in relation to the Japanese and South Korean participants in the A/R configuration since the fine imposed on them was calculated omitting a significant amount of their turnover actually made within the EEA.

42 Since neither point 13 nor point 18 of the 2006 Guidelines provides for a satisfactory method of calculating the fines, applicable to all the addressees of the contested decision, the Commission should have implemented a method which complied with the principle of equal treatment while at the same time meeting the objective of deterrence sought by that institution. Such a calculation method could be the result of a hybrid application of the methods provided for in points 13 and 18 of the 2006 Guidelines.

43 The appellant submits that the Commission mischaracterised the issue in presenting it as one concerning the gravity of the infringement. In any event, the penalty applied to the participants in the European configuration, namely an increase of 2% in the gravity multiplier, is minimal in the light of the advantage which they derived from the application of the method provided for in point 18 of the 2006 Guidelines, namely a 44% reduction of the value of sales for each European producer. That additional gravity multiplier is therefore wholly inadequate to remedy the effects of the infringement of the principle of equal treatment noted in the present case.

44 Consequently, and in the light of the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363), the appellant submits that a reduction by 44% of the fine imposed on it is warranted.

45 The Commission submits that the ground put forward by the appellant must be rejected as ineffective, inter alia on account of the fact that the General Court’s findings in paragraphs 251 and 254 to 256 of the judgment under appeal in relation to the interwoven nature of the two cartel configurations, which were not addressed by the appellant, demonstrate that the appellant was in the same position as the other members of the cartel. In any event, it contends, that ground of appeal is unfounded.

Findings of the Court

46 As regards the issue of whether the present ground of appeal is ineffective, as submitted by the Commission, it must be observed that that institution argues in essence that the appellant cannot rely on an infringement of the principle of equal treatment given that it has not challenged the findings of the General Court in paragraphs 251 and 254 to 256 of the judgment under appeal, according to which the Japanese and South Korean producers were in the same situation as the European producers so far as their participation in the infringement at issue was concerned. That argument must be rejected.

47 Indeed, in paragraph 251 of the judgment under appeal the General Court held that the European configuration could have been implemented only through the existence of the home territories agreement, which constituted the basis of the A/R configuration. Yet, that finding does not show that the General Court held that the appellant’s situation was identical to that of the European producers.

48 It is true that, in paragraph 254 of the judgment under appeal, the General Court held that the role played by the European producers in the conception, promotion and implementation of the cartel was comparable, as regards the infringement at issue as a whole, to that played by the Japanese undertakings, given that, inter alia, as the General Court observed in paragraphs 255 and 256 of the judgment under appeal, the latter were in agreement with the cartel’s operating mechanisms and fully involved in the discussions which preceded the conclusion of that cartel.

49 However, paragraph 254 of the judgment under appeal must be read in conjunction with paragraph 253 thereof, according to which the Commission may take into account the role played by an undertaking in conceiving, promoting and implementing a cartel in order to assess the relative gravity of its conduct compared with that of the other participants in the cartel. In paragraph 258 of the judgment under appeal, at which the appellant’s second ground of appeal is directed, the General Court held that in so far as the Commission had considered that the conduct of the European undertakings was more harmful to free competition than that of the other undertakings, since, in addition to their participation in the A/R configuration, they had shared cable projects among themselves in the context of the European configuration, the 2% increase in the percentage of the value of sales imposed on the European producers for the purposes of calculating the amount of the fine did not appear to be inappropriate in order to reflect the difference in gravity of their conduct compared with that of the Japanese producers. Admittedly, in paragraphs 248 to 259 of the judgment under appeal, the General Court replied to the appellant’s complaint that the Commission committed a manifest error of assessment as regards the gravity of the infringement at issue by failing to take account of the more significant role played by the European producers in the cartel. Nevertheless, in paragraph 258 of the judgment under appeal, the General Court held that the conduct of the European producers had been more harmful than that of the Japanese and South Korean producers, which casts doubt on the consideration in paragraph 254 of the judgment under appeal that the role played by the European producers in the cartel was comparable to that played by the Japanese undertakings.

50 It follows that, contrary to what is contended by the Commission, were the appellant’s second ground of appeal to be declared well-founded, it would be such as to lead to the setting aside of the judgment under appeal.

51 As to the substance, it must be recalled that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. According to settled case-law of the Court of Justice, that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51).

52 In the present case, it is apparent from the appellant’s pleadings that it takes the view that, by calculating the basic amounts of all the fines imposed in the contested decision on the basis of the method provided for in point 18 of the 2006 Guidelines, the Commission treated different situations in the same way, without the uniform nature of that treatment being objectively justified.

53 It is therefore necessary to examine, in the first place, whether the appellant and the other Japanese and South Korean participants in the cartel were in a situation different to that of the European producers.

54 That was indeed the case.

55 As the General Court held in paragraph 18 of the judgment under appeal, the Commission found in recitals 997 to 1010 of the contested decision that the conduct of the European undertakings had been more detrimental to free competition than that of the other undertakings inasmuch as, in addition to their participation in the A/R configuration, the European undertakings had shared power cable projects among themselves in the EEA in the context of the European configuration. More specifically, in recital 999 of the contested decision, the Commission found that the latter configuration ‘[had been] carried out exclusively by the European producers’. It follows that the Commission itself took the view that there was a difference between, on the one hand, the situation of the appellant and the other Japanese and South Korean participants in the A/R configuration and, on the other hand, that of the European producers which participated both in that configuration and in the European configuration.

56 That consideration is not affected by the fact that recital 999 of the contested decision is in the section of that decision dedicated to the examination of the gravity of the conduct of the undertakings at issue, given that it is apparent from that section that, to justify the application to the European producers of a gravity multiplier increased by two percentage points, the Commission relied on a difference between the situation of the latter and that of the Japanese and South Korean participants in the cartel. Nor is that consideration called into question by the Commission’s argument that, by guaranteeing that it would stay out of the European market, the appellant was a silent but necessary partner of the European producers in the more specific European market-sharing agreements, given that the contested decision does not show that, in the present case, the Commission relied on such a consideration to justify its approach as regards the calculation of the fines to be imposed on the participants in the infringement at issue.

57 It follows that the appellant was not in the same situation as the European producers as regards its participation in the infringement at issue.

58 However, contrary to what is argued by the appellant, it cannot be held that the General Court erred in law in finding that the Commission had not infringed the principle of equal treatment solely on account of the fact that it had applied the method provided for in point 18 of the 2006 Guidelines in order to calculate the fines for all the participants in the cartel.

59 Since the infringement at issue was a single infringement, committed in the context of a single cartel, which the appellant does not dispute, it was for the Commission to calculate the fines appropriate for penalising that infringement, and not fines aimed at one or the other of the configurations of that cartel. As the General Court correctly pointed out in paragraph 268 of the judgment under appeal, the application of the method provided for in point 13 of the 2006 Guidelines to the present case would have led to the weight of the European producers in the cartel being overvalued and to their being penalised in excess of their participation in that cartel, inasmuch as that cartel also included a configuration which extended beyond the EEA, namely the A/R configuration. The application of the method provided for in point 13 of the 2006 Guidelines to all the participants in the cartel would have had the consequence that no fines or only minimal fines would have been imposed on the Japanese and South Korean participants in the A/R configuration.

60 Admittedly, in addition to the A/R configuration, whose geographical scope extended beyond the EEA and for which both the European producers and the Japanese and South Korean producers were held liable under the contested decision, the cartel included the European configuration, which covered in particular the EEA and which, according to the contested decision, had been carried out exclusively by the European producers.

61 However, although the application of the method provided for in point 18 of the 2006 Guidelines did not allow the Commission to take into account the respective weight in the cartel of the European producers, on the one hand, and the Japanese and South Korean producers, on the other hand, there was nothing to prevent the Commission, with a view to ensuring compliance with the principle of equal treatment, from taking this into account at another stage in calculating the fine, in particular when adjusting the basic amount in the light of aggravating and mitigating circumstances, or when determining the proportion of the value of sales used to calculate the basic amount of the fine (see, to that effect, judgment of 26 January 2017, Zucchetti Rubinetteria v Commission, C‑618/13 P, EU:C:2017:48, paragraph 56). It follows that differences in situation as regards the participation of an undertaking in an infringement of EU competition law may be taken into consideration at various stages in the calculation of the fine, and not necessarily solely at the stage of determining the value of sales.

62 In this connection, in the contested decision the gravity multiplier applied by the Commission to the European producers was increased by two percentage points in relation to that upheld by that institution in respect of the Japanese and South Korean producers. Accordingly, the Commission did not treat the appellant in the same way as the European producers as regards setting the fines. It is true that the appellant has argued that that increase in the gravity multiplier applied to the European producers reduced only marginally the substantial advantage which was allegedly granted to them in the present case. However, that argument is based on the erroneous premiss, as is apparent from paragraph 59 above, that the alleged preferential treatment given to the European producers in the present case should be determined in the light of the hypothetical fines which would have been imposed on them under a calculation based on the method provided for in point 13 of the 2006 Guidelines.

63 That consideration is not called into question by the case-law established by the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363), cited by the appellant. In the case which gave rise to that judgment, the Commission had calculated the basic amounts of the fines on the basis of the method provided for in point 13 of the 2006 Guidelines. As the Court subsequently held, the judgment under appeal in that case was vitiated by an error of law inasmuch as the General Court had decided that the Commission was correct to have excluded from that calculation the sales made to entities belonging to the same undertaking, thereby misapplying the method that that institution had itself chosen in order to determine the amount of the fine (see, to that effect, judgment of 14 September 2017, LG Electronics and Koninklijke Philips Electronics v Commission, C‑588/15 P and C‑622/15 P, EU:C:2017:679, paragraph 95). In the present case, by contrast, the appellant does not allege that the Commission misapplied the method provided for in point 18 of the 2006 Guidelines, but that it erred in applying that method in the same way to all the undertakings which participated in the cartel. It follows that, contrary to what the appellant submits, its objections against the Commission in support of the present appeal are not similar to those which gave rise to the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363).

64 Consequently, the second ground of appeal must be rejected.

65 So far as concerns the appellant’s request that, in the event that the Court of Justice were to set aside the judgment of 12 July 2018, Viscas v Commission (T‑422/14, EU:T:2018:446) and to reduce the fine imposed on Viscas under Article 2(p) of the contested decision, it should grant the appellant an equivalent reduction in the amount of the fine for which it is jointly and severally liable with Viscas, it is sufficient to observe that, by a judgment delivered today, the Court dismissed the appeal against that judgment of the General Court.

66 It follows from all the foregoing considerations that both grounds put forward by the appellant in support of its appeal must be rejected and therefore the appeal in its entirety must be dismissed.

Costs

67 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

68 Since the appellant has been unsuccessful and the Commission has applied for it to pay the costs, the appellant must be ordered, in addition to bearing its own costs, to pay those incurred by the Commission.

69 Under Article 184(4) of the Rules of Procedure, where the appeal has not been brought by an intervener at first instance, he may not be ordered to pay costs in the appeal proceedings unless he participated in the written or oral part of the proceedings before the Court. Where an intervener at first instance takes part in the proceedings, the Court may decide that he shall bear his own costs.

70 Since Viscas participated in the proceedings before the Court, it must be held, in the circumstances of the case, that it is to bear its own costs.

On those grounds, the Court (Seventh Chamber) hereby:

1. Dismisses the appeal;

2. Declares that Furukawa Electric Co. Ltd is to bear its own costs and orders it to pay those incurred by the European Commission;





3. Declares that Viscas Corp. is to bear its own costs.

Xuereb von Danwitz Kumin

Delivered in open court in Luxembourg on 19 December 2019.





A. Calot Escobar P.G. Xuereb