OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 3 June 2021 ( 1 )

Cases C‑697/19 P to C‑700/19 P

Sony Corporation and Sony Electronics, Inc. (C‑697/19 P)

Sony Optiarc and Sony Optiarc America (C‑698/19 P)

Quanta Storage, Inc. (C‑699/19 P)

Toshiba Samsung Storage Technology Corp.,

Toshiba Samsung Storage Technology Korea Corp. (C‑700/19 P)

v

European Commission

(Appeal – Competition – Agreements, decisions and concerted practices – Optical disk drives – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Collusive agreements relating to bidding events organised by two computer manufacturers – Single and continuous infringement – Individual infringements constituting that infringement – Obligation to state reasons – Infringement of the rights of the defence – Calculation of the amount of the fines – 2006 Guidelines on the method of setting fines – Principles of proportionality and equal treatment)

1. This Opinion concerns four appeals brought by suppliers of optical disk drives (Sony Corporation, Sony Electronics, Sony Optiarc, Sony Optiarc America, Quanta Storage, Toshiba Samsung, Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. (‘the appellants’)) seeking the setting aside of four judgments of the General Court of the European Union ( 2 ) by which the General Court dismissed their actions against Commission Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (AT.39639 – Optical Disk Drives) (‘the decision at issue’). ( 3 )

2. The Court of Justice has expressly requested that two legal issues be examined which are largely common to all the cases. Accordingly, this Opinion will focus on the following specific topics: (1) the wording used by the Commission to allege, in addition to a single and continuous infringement, separate infringements which are supposed to constitute that single and continuous infringement, without providing separate reasons to those put forward to characterise the single and continuous infringement; (2) the issue of the calculation of penalties in the case of intra-cartel sales or profit-sharing.

3. It is an opportunity for the Court, in the first place, to take stock of the relationship between a single infringement and instances of individual conduct specifically in relation to the obligation to state reasons in the final decision and the rights of defence of the parties to the proceedings, and in the second place, to clarify the extent of the Commission’s discretion regarding the principles of equal treatment and proportionality in the case of intra-cartel sales or profit-sharing.

4. A brief description of the facts of the case, common to all four appeals, will be provided for the sole purpose of analysing the issues I have been asked to examine. ( 4 )

I. Facts

5. On 14 January 2009, the Commission received a request for immunity from Philips under the Commission Notice on Immunity from fines and reduction of fines in cartel cases. ( 5 ) On 29 January and 2 March 2009, that request was supplemented to include, alongside Philips, Lite-On and their joint venture Philips & Lite-On Digital Solutions Corporation.

6. On 29 June 2009, the Commission sent a request for information to undertakings active in the optical disk drive (‘ODD’) sector. On 30 June 2009, the Commission granted Philips, Lite-On and Philips & Lite-On Digital Solutions Corporation conditional immunity. On 4 and 6 August 2009, Hitachi-LG Data Storage, Inc. and Hitachi-LG Data Storage Korea, Inc. submitted an application to the Commission for a reduction of the amount of the fine in accordance with that notice.

7. On 18 July 2012, the Commission sent a statement of objections to 13 ODD suppliers, including Sony Corporation and Sony Electronics, Sony Optiarc and Sony Optiarc America, Quanta Storage, Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea.

8. The Commission argued that those companies had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA Agreement) by participating in a cartel concerning ODDs from 5 February 2004 until 29 June 2009, consisting in orchestrating their behaviour in relation to bidding events organised by two computer manufacturers, Dell and HP.

9. On 21 October 2015, the Commission adopted the decision at issue.

10. In the decision at issue, the Commission determined that the participants in the cartel had coordinated their competitive behaviour, at least between 23 June 2004 and 25 November 2008. The Commission specified that that coordination took place through a network of parallel bilateral contacts. The Commission stated that the participants in the cartel sought to accommodate their volumes on the market and ensure that the prices remained at levels higher than they would have been in the absence of those bilateral contacts.

11. The Commission specified, in the decision at issue, that the coordination between the participants in the cartel concerned the customer accounts of Dell and HP, the two most important players on the global market for PCs. According to the Commission, in addition to bilateral negotiations with their ODD suppliers, Dell and HP applied standardised procurement procedures, which took place at least on a quarterly basis. The Commission stated that the cartel members used their network of bilateral contacts to manipulate those procurement procedures, thus thwarting their customers’ attempts to stimulate price competition.

12. When calculating the amount of the fine imposed on the appellants, the Commission relied on the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 ( 6 ) (‘the Guidelines on the method of setting fines’).

13. In the first place, in order to determine the basic amount of the fine, the Commission held that, in view of the considerable differences in the duration of the suppliers’ participation and in order better to reflect the actual impact of the cartel, it was appropriate to use an annual average calculated on the basis of the actual value of sales made by the undertakings during the full calendar months of their respective participation in the infringement. The Commission thus explained that the value of sales was to be calculated on the basis of sales of ODDs for notebooks and desktops and invoiced to HP and Dell entities located in the EEA.

14. The Commission further considered that, since the anticompetitive conduct with regard to HP had begun later and in order to take the evolution of the cartel into account, the relevant value of sales would be calculated separately for HP and for Dell, and that two duration multipliers would be applied.

15. As regards Sony Corporation, Sony Electronics, Sony Optiarc and Sony Optiarc America, as it had not been established that they had participated in the contacts concerning HP, the Commission found them liable only for their coordination with respect to Dell.

16. In the second place, the Commission decided that, since price coordination agreements were by their very nature among the worst kind of infringements of Article 101 TFEU and Article 53 of the EEA Agreement, and since the cartel covered at least the whole of the EEA, the percentage for gravity used in this case would be 16% for all addressees of the decision at issue.

17. Furthermore, the Commission stated that, given the circumstances of the case, it had decided to add a further 16% for deterrence.

18. The Commission reduced the amount of the fine imposed on Sony Corporation, Sony Electronics, Sony Optiarc and Sony Optiarc America by 3% in order to take into account the fact that they had not been aware of the part of the single and continuous infringement concerning HP, so as to reflect in an adequate and sufficient manner the less serious nature of their conduct.

19. The Commission considered that, as Sony Corporation and Sony Electronics had a worldwide turnover of EUR 59252000000 during the business year preceding the adoption of the decision at issue, it was appropriate to apply a multiplier of 1.2 to the basic amount.

20. Lastly, since the adjusted basic amount of the fine imposed on Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea reached the cap of 10% of their turnover, the Commission was required to make a fresh adjustment on the basis of Article 23(2) of Regulation No 1/2003.

21. The operative part of the decision at issue, in so far as it concerns the companies participating in the cartel, reads as follows: ‘Article 1 The following undertakings infringed Article 101 [TFEU] and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous infringement, which consisted of several separate infringements, in the optical disk drives sector covering the whole EEA, which consisted of price coordination arrangements: … (e) Toshiba Samsung Storage Technology Corporation, Toshiba Samsung Storage Technology Korea Corporation from 23 June 2004 to 17 November 2008, for their coordination with regards to Dell and HP (f) Sony Corporation, Sony Electronics Inc. from 23 August 2004 to 15 September 2006, for their coordination with regards to Dell (g) Sony Optiarc … from 25 July 2007 to 29 October 2008, Sony Optiarc America … from 25 July 2007 to 31 October 2007, for their coordination with regards to Dell (h) Quanta Storage Inc. from 14 February 2008 to 28 October 2008, for its coordination with regards to Dell and HP … Article 2 For the infringement referred to in Article 1, the following fines are imposed: … (e) Toshiba Samsung Storage Technology Corporation and Toshiba Samsung Storage Technology Korea Corporation, jointly and severally liable: EUR 41304000 (f) Sony Corporation and Sony Electronics Inc., jointly and severally liable: EUR 21024000 (g) Sony Optiarc …: EUR 9782000, of which EUR 5433000 jointly and severally with Sony Optiarc America … (h) Quanta Storage Inc.: EUR 7146000.’

II. Procedure before the General Court and the judgments under appeal

22. By applications lodged at the Registry of the General Court on 29 December 2015, 31 December 2015 and 5 January 2016, respectively, the appellants brought four separate actions, registered as Cases T‑762/15, T‑763/15, T‑772/15 and T‑8/16, seeking, principally, annulment of the decision at issue in so far as it concerns them and, in the alternative, a reduction of the amount of the fine imposed.

23. By the judgments under appeal, the General Court rejected all the pleas in law raised by the appellants and, consequently, dismissed the actions in their entirety.

III. Procedure before the Court of Justice and forms of order sought

24. By their appeals, the appellants claim that the Court should, principally, set aside the judgments under appeal and grant the forms of order sought at first instance, and order the Commission to pay the costs. Where the state of the proceedings does not allow the Court of Justice to give a ruling, the appellants claim, in the alternative, that the case should be referred back to the General Court and the costs of the proceedings at first instance and of the appeal should be reserved.

25. The Commission contends that the Court should dismiss the appellants’ appeals and order them to pay the costs.

IV. Analysis ( 7 )

26. In support of their appeals, the appellants in Cases C‑697/19 P and C‑698/19 P rely on four grounds of appeal, the content of which is almost identical, relating to (i) the General Court’s assessment of the existence of the single and continuous infringement, (ii) the duration of the single and continuous infringement, (iii) the definition of single and continuous infringement, and (iv) the amount of the fine imposed.

27. In support of its appeal, the appellant in Case C‑699/19 P relies on five grounds of appeal relating to (i) the General Court’s assessment of the operative part of the decision at issue, in which it is stated that the single and continuous infringement imputed to the appellants consists of several separate infringements, (ii) the fact that evidence was distorted, (iii) the duration of the appellant’s participation in the single and continuous infringement, (iv) the appellant’s alleged and unsubstantiated knowledge of a single and continuous infringement, and (v) the amount of the fine imposed.

28. In support of their appeal, the appellants in Case C‑700/19 P rely on four grounds of appeal relating to (i) the General Court’s assessment of the operative part of the decision at issue, which states that the single and continuous infringement at issue consists of several separate infringements, (ii) the existence of a single and continuous infringement, (iii) the infringement of the rights of the defence, and (iv) the remit of the Commission.

29. As a preliminary point, I note that the four appeals present very similar arguments in some of their grounds of appeal. ( 8 )

30. All the appellants object to the operative part of the decision at issue, in which the Commission found a single and continuous infringement, adding the words ‘consisting of several separate infringements’. In the appellants’ view, that ‘dual characterisation’ – a single and continuous infringement and separate infringements – was not clearly stated in the statement of objections and the decision at issue did not contain a sufficient statement of reasons in that regard.

31. Some of the appellants also contest the calculation of the penalty, with particular reference to an alleged infringement of the principles of proportionality and equal treatment.

32. As requested by the Court, my analysis will focus, in the first place, on the matter of ‘dual characterisation’, which, as we have seen, is common to all the appellants, and on the grounds of appeal that refer to this matter (A). In the second place, I will examine the fourth ground of appeal in Cases C‑697/19 P and C‑698/19 P concerning the calculation of the penalty (B).

A. Dual characterisation

1. Summary of the arguments of the parties

– (a) Infringement of the rights of the defence

33. The appellants claim that the judgments under appeal are vitiated by errors of law, in so far as the General Court concluded that the Commission had not infringed their rights of defence by alleging, for the first time in the decision at issue, that they had participated in several separate infringements.

34. The statement of objections (in particular paragraphs 310, 317 and 318) identified the existence of a single and continuous infringement. However, in the decision at issue, the Commission held, for the first time, that the single and continuous infringement consisted of several separate infringements.

35. That decision thus differs substantially from the characterisation in the statement of objections. Consequently, the appellants were not given the opportunity, before the adoption of that decision, to contest the characterisation of each individual contact as a separate and independent infringement. In so doing, the General Court disregarded the judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778), and the judgment of the General Court of 10 October 2014, Soliver v Commission (T‑68/09, EU:T:2014:867).

36. In addition, the various combinations of anticompetitive contacts set out in the statement of objections could have given rise to numerous possible infringements. Therefore, even if it were to be held that the facts and related evidence were already set out in the statement of objections, the legal characterisation that the Commission intended to give to those facts is not contained in that statement. As a result, the appellants were unable to defend themselves because they did not understand how each potential infringement had been characterised.

37. In its observations, the Commission notes at the outset that the General Court upheld the decision at issue as regards the single and continuous infringement and the fine. The arguments put forward by the appellants with regard to the part of the operative part which states, incidentally, that the single and continuous infringement consists of several separate infringements, are therefore inadmissible.

38. Next, the Commission maintains that the General Court was right to reject the appellants’ complaints relating to an alleged infringement of their rights of defence. In the first place, the appellants base their arguments on an incorrect factual assumption. It is clear from the judgments under appeal that the statement of objections had already informed them of the individual infringements. The appellants’ assertion that the Commission did not hear them on the individual infringements is contradicted by the clear wording of recitals 353, 354 and 375 of the statement of objections and is based on a misinterpretation of the case-law, since the Court of Justice has already held that one or more elements of a series of actions or of a continuous course of conduct could individually and in themselves constitute a violation of Article 101 TFEU.

39. The appellants, the Commission continues, were heard on both the single and continuous infringement and on the individual infringements constituting that infringement, so that their rights of defence cannot be considered to have been infringed. During the administrative procedure, the appellants were put in a position to understand that instances of individual conduct were also imputed to them which constituted the single and continuous infringement.

– (b) Single and continuous infringement necessarily consisting of several separate infringements

40. The appellants submit that the General Court erred in law by holding that a single and continuous infringement necessarily consists of several separate infringements.

41. They argue that, by holding that a single and continuous infringement necessarily consists of separate infringements, the General Court reached a conclusion contrary to the case-law of the General Court ( 9 ) and of the Court of Justice, ( 10 ) which considers only the possibility, and not the need, for a single and continuous infringement to consist of separate infringements.

42. In the Commission’s view, the appellants have distorted the content of the judgments under appeal. The General Court merely considered that a single and continuous infringement presupposes a ‘series of acts’ which can in themselves be categorised as separate infringements. The General Court added that, in this instance, the single and continuous infringement actually consisted of separate infringements in respect of which the appellants had been heard.

– (c) Insufficient and contradictory statement of reasons

43. The appellants criticise the General Court for having erred in law in concluding that the decision at issue contained a sufficient statement of reasons with regard to the existence of several separate infringements.

44. The statement of reasons did not allow a proper understanding of the measure adopted, did not state the reasons relating thereto and contained contradictions. ( 11 )

45. In the decision at issue, the Commission failed to explain either the nature and extent of those separate infringements, or their characterisation as an agreement or concerted practice within the meaning of Article 101 TFEU. Moreover, the General Court failed to explain the reasons and evidence in support of each characterisation or to identify the undertakings responsible for each individual infringement.

46. In its response, the Commission contends that those arguments should be rejected.

47. It argues that the appellants were able to understand the reasons for the decision at issue and had the opportunity to present their arguments on each of the anticompetitive contacts attributed to them.

48. Having established that there was evidence of an infringement of Article 101(1) TFEU, the Commission continues, it is irrelevant whether the form of collusion is characterised as an agreement or as a concerted practice. ( 12 ) The General Court rightly acknowledged, the Commission again states, that the appellants were wrong to consider that the decision at issue should have characterised each infringement individually as ‘agreements’ or ‘concerted practices’.

2. Assessment

49. My analysis will focus on the legal issue of the correctness or otherwise of the judgment under appeal, which considered the wording used by the Commission in the operative part of the decision in the cases currently under examination to be compatible with EU law.

50. In particular, by the third ground of appeal in Cases C‑697/19 P and C‑698/19 P and the first ground of appeal in Cases C‑699/19 P and C‑700/19 P, the Court of Justice is asked to examine whether the General Court erred in law by rejecting the appellants’ arguments that the Commission infringed their rights of defence by accusing them, for the first time in the decision at issue, of having participated in several separate infringements.

51. In its final decision, the Commission – having established the infringement of Article 101 TFEU and Article 53 of the EEA Agreement in view of the participation of the parties involved in a single and continuous infringement during the periods indicated – added that this single and continuous infringement ‘consisted’ of several separate infringements.

52. The General Court, in upholding the Commission’s decision at first instance, stated in the judgment under appeal that ‘the concept of a single and continuous infringement presupposes a complex of practices adopted by various parties in pursuit of a single anticompetitive economic aim’ (paragraph 238) and that ‘it is therefore apparent from the very concept of a single and continuous infringement that it presupposes a complex of practices. The applicants cannot therefore claim that the Commission changed its conclusions by finding, in addition to a single and continuous infringement, several bilateral contacts, given that those bilateral contacts are precisely what constitute that single infringement’ (paragraph 239). It also stated that ‘there was therefore no inconsistency, in recital 352 of the contested decision, in so far as the Commission stated therein that the contacts constitute individual infringements and at the same time meet the criteria for a single and continuous infringement’ (paragraph 240). ( 13 )

53. The General Court therefore seems to support the argument that a single and continuous infringement presupposes multiple instances of unlawful conduct. For that reason, the fact that the Commission has expressly charged the parties in the statement of objections with only the single and continuous infringement does not prevent it, in the final decision, from finding that the various instances of conduct constituting the single and continuous infringement were also unlawful under competition rules.

54. According to the parties, it follows that the Commission – with the endorsement of the General Court – considered that both the single and continuous infringement and the instances of individual conduct which occurred between the competing undertakings during the period indicated for the single infringement were found to be competition offences.

55. To assess the scope of those statements of principle, I consider it necessary, in the first place, to analyse the concept of a single and continuous infringement in the case-law of the Court of Justice in order to ascertain whether the General Court’s statements in support of the Commission’s decision being correct are compatible with it, both from the point of view of the rights of defence of the parties in the administrative procedure and in the legal proceedings, and from the point of view of the appropriateness of the Commission’s – and, ultimately, the General Court’s – reasoning.

56. In essence, the issues to be examined relate to: (a) whether it is necessary for the Commission to provide a legal characterisation for individual collusive episodes in the event of a single and continuous infringement; (b) the actual scope to be attributed to the various expressions used (infringements, behaviour, contacts, conduct); (c) the extent to which the Commission’s final decision may differ from the statement of objections; [and] (d) the consequences that the wording used may have, not only in terms of public enforcement, but also in terms of private enforcement.

57. According to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. ( 14 )

58. An undertaking which has participated in such a single and complex infringement through its own conduct, which fell within the definition of an agreement or a concerted practice having an anticompetitive object for the purposes of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may accordingly be liable also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk. ( 15 )

59. An undertaking may have participated in a single and continuous infringement without directly participating in all the forms of anticompetitive conduct comprising that infringement and a single and continuous infringement may exist without all the undertakings participating in that infringement being active on the same market. ( 16 )

60. It follows that, for the purpose of demonstrating that an undertaking has participated in a single infringement of EU competition law, it must be shown: (1) that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants, and (2) that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk. ( 17 )

61. Accordingly, the concept of ‘single and continuous infringement’ presupposes the existence of an ‘overall plan’ consisting of various actions owing to their identical object of distorting competition within the common market, irrespective of whether one or more of those actions may also constitute, per se and taken in isolation, an infringement of Article 101 TFEU.

62. To my mind, this is the crucial point: the single and continuous infringement is continuous conduct consisting of a series of actions or forms of conduct (in the case of cartels such as those that are the subject of the present proceedings, contacts between different undertakings), but it is not the sum of multiple instances of unlawful conduct in violation of Article 101 TFEU.

63. Some forms of conduct, actions or contacts during the period indicated for the single and continuous infringement might not in themselves be unlawful under competition rules, or their material or legal substance might not be fully established during the administrative procedure.

64. What is the rationale behind introducing the theory of the single and continuous infringement?

65. The ‘single and continuous infringement’ doctrine originates from a widespread conception in the legal orders of the Member States of the European Union concerning the attribution of responsibility for infringements committed by several perpetrators according to their participation in the infringement as a whole. ( 18 )

66. It plays the role of a legal presumption whereby the Commission (or a national competition authority) can establish the existence of a single infringement of competition law for a given period of time and against a specific number of undertakings, ‘not only from an isolated act but also from a series of acts or from continuous conduct’. ( 19 )

67. Undoubtedly, the Commission’s application of the ‘single and continuous infringement’ doctrine facilitates its role as enforcement authority in the application of Article 101(1) TFEU, especially in relation to allegations of collusion between several parties.

68. An infringement consisting of a ‘single and continuous’ pattern of conduct for a certain period of time resolves a number of thorny practical issues that may arise in any complex allegation of collusion with regard to the application of a limitation period and reduces the burden of proof necessary to satisfy a judicial review that the collusive conduct was ongoing throughout the investigation period. ( 20 )

69. As also observed in doctrine, the introduction of the single and continuous infringement ‘significantly reduces the burden that the Commission would otherwise have to bear in order to establish collusion, particularly where a cartel has existed for a long time, during which the nature of the collusion may vary between different parties or at different times’. ( 21 )

70. The lightening of the burden of proof for specific periods and episodes, which is the rationale underlying the introduction of that concept, is countered by the need to demonstrate the existence of the common objective and awareness of the actions of the other undertakings.

71. Conversely, if there is no single and continuous infringement, the burden of proof for the instances of individual conduct (in this case, for example, contacts between competing undertakings) will revert to being particularly onerous.

72. Therefore, it is perfectly possible and entirely legitimate for the Commission, in finding an infringement of Article 101 TFEU, to characterise various forms of conduct as unlawful in themselves and, at the same time, forming part of a single collusive strategy having the abovementioned characteristics of the single and continuous infringement.

73. In this case, however, it has a different burden of proof and duty to give proper reasoning than in cases where it characterises the conduct of the undertakings solely as a single and continuous infringement.

74. As we have seen, the single and continuous infringement is always composed of multiple episodes or contacts, which, if they are to be considered as a whole to be offences under competition law, must possess the characteristics described above. Individual episodes or contacts which are part of the overall conduct do not necessarily qualify per se as competition offences.

75. In some decisions, the Court has clarified that if an undertaking has directly taken part in one or more of the forms of anticompetitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk. ( 22 )

76. That cannot, however, relieve the undertaking of liability for conduct in which it has undeniably taken part or for conduct for which it can undeniably be held responsible. Nor is the fact that an undertaking did not take part in all aspects of an anticompetitive arrangement or that it played only a minor role in the aspects in which it did participate material for the purposes of establishing the existence of an infringement on its part, given that those factors need to be taken into consideration only when the gravity of the infringement is assessed and only if and when it comes to determining the fine. ( 23 )

77. However, the Court clarified that ‘a Commission decision categorising a global cartel as a single and continuous infringement can be divided in that manner only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard’. ( 24 )

78. The single and continuous infringement, as we have seen, lightens the Commission’s burden of proof and duty to give proper reasoning. Indeed, once the existence of an overall plan and a common anticompetitive objective has been shown, it is not required to prove the unlawfulness of each instance of individual conduct.

79. For this reason, however, the Commission cannot legitimately argue that, once a single and continuous infringement has been established and proved, all individual episodes or contacts that constitute the infringement must also be considered established and proved as competition offences.

80. This is because the Commission would thus gain the unfair advantage of having its burden of proof and duty to give proper reasoning lightened on account of having characterised the infringement as a single and continuous infringement, while at the same time, in the event that the legal conditions for the characterisation of the conduct as a single and continuous infringement should fall to judicial review, the decision could be ‘rescued’ and prevented from being subject to review owing to the unlawfulness of the instances of individual conduct constituting the single and continuous infringement.

81. Accordingly, the Commission’s argument that that ground of appeal is ineffective because it is contingent on finding that no single and continuous infringement exists is not persuasive.

82. Contrary to the view taken by the Commission in its response, the arguments put forward in the appeal relating to the alternative conclusion of the decision, that the single and continuous infringement included several independent infringements, are not ineffective. Indeed, they have a significant impact on the administrative procedure and on the consequences of the decision.

83. The Commission may be allowed to resort to the dual characterisation, but for this to be legitimate, it must make this explicit in the statement of objections to the parties and discharge the associated burden of proof and duty to give proper reasoning.

84. In the case-law of the Court, ( 25 ) while it is recognised that there may be differences in reasoning between the statement of objections and the final decision, precisely because of the adversarial nature of the internal procedure and the examination of legal and economic issues during the investigation, the characterisation of the facts and forms of conduct must be consistent throughout the procedure itself.

85. Observance of the rights of the defence in the conduct of administrative procedures relating to competition constitutes a general principle of EU law whose observance the Court ensures. ( 26 ) This principle requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the EU Treaty. ( 27 )

86. Article 27(1) of Regulation No 1/2003 provides that the parties are to be sent a statement of objections. It is settled case-law that the statement of objections must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure.

87. However, that may be done summarily and the decision is not necessarily required to be a replica of the Commission’s statement of objections, since the statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature. ( 28 )

88. It is true that, as the General Court states in the judgments under appeal, the legal characterisation of the facts set out in the statement of objections can, by definition, only be provisional and a subsequent Commission decision cannot be annulled solely because the final conclusions drawn from those facts do not correspond precisely to that provisional characterisation. ( 29 ) The Commission must be able to qualify that characterisation in its final decision, taking account of the information that emerges from the administrative procedure, either withdrawing objections or allegations that have turned out to be unfounded, or structuring and supplementing in fact and in law its arguments in support of the allegations relied on – on condition, however, that it relies only on facts that the interested parties have had the opportunity to take a position on and that, during the administrative procedure, it provided the necessary information for the defence. ( 30 )

89. If, however, information emerges during the investigation which persuades the Commission to alter the thema decidendum, such an alteration – even if substantial – is permitted by means of a supplementary statement of objections, which simultaneously guarantees the rights of defence of the parties.

90. In that statement, the Commission must examine in detail all contacts between the parties and give reasons regarding the legal characterisation and unlawful nature of each one.

91. This would enable the parties to exercise fully their rights of defence and allow a full judicial review of each instance of individual conduct attributed to the parties, in addition to the single and continuous infringement.

92. In this instance, the statement of objections set out in detail the facts at issue. Nevertheless, the Commission merely characterised all bilateral contacts between the participants in the cartel as a single and continuous infringement, referring only to the possibility of characterising each individual contact as a separate infringement, without going into further detail. In its final decision, the Commission followed the same line of reasoning throughout, except that it concluded, in the operative part, with the dual characterisation.

93. I cannot share the General Court’s view, which echoes the Commission’s arguments, that the parties were fully aware of the instances of individual conduct at issue and defended themselves in that respect, since the single and continuous infringement consists of a series of events, contacts and episodes, each of which is listed by the Commission and known to the parties.

94. That line of argument confuses the simple existence of an event or contact between the parties, and the fact that it is listed and presented to the parties, with its legal characterisation.

95. I believe that it is precisely on this point that the General Court is misled by the Commission’s arguments.

96. This is evidenced, for example, in paragraph 242 of the judgment in Case T‑762/15, in which the General Court states that ‘as the Commission contends, without being contradicted in this respect by the applicants, the latter contested each contact separately and at length in their reply to the statement of objections and were successful in persuading the Commission not to pursue its allegations in relation to certain bilateral contacts’.

97. On a factual level, there is no doubt that even in its statement of objections, the Commission referred to all the individual contacts between the competitors as elements capable of forming an overall picture of unlawful collusion. Moreover, the parties have had the opportunity to defend themselves regarding the existence of meetings or other contacts and the manner in which those may have taken place.

98. The Commission’s failure, throughout the administrative procedure, until the final decision, to make its position clear by providing a legal characterisation of each of those contacts prevented the undertakings who are the appellants in the present proceedings from fully exercising their rights of defence.

99. Admittedly, the characterisation of each form of anticompetitive conduct as an agreement or concerted practice is not essential. However, it is necessary for the authority responsible for public enforcement to characterise that particular fact as illegal and unlawful in order to enable the parties to defend themselves not only in relation to its existence or otherwise and the factual circumstances that surround it, but also in relation to the legal points on the basis of which that fact can be regarded as conduct in violation of Article 101 TFEU.

100. In the light of the foregoing, I observe that the statement that the single and continuous infringement is the sum of several independent infringements, each of which is automatically and individually determined by the fact that the existence of the single and continuous infringement has been proved, has no logical or legal basis; nor does it have any basis in the case-law of the Court.

101. Both sets of parties to the procedure (the enforcer and the defendant undertakings) can be said to have an interest in characterising repeated forms of conduct as a single and continuous infringement: the enforcer because, as we have seen, such a characterisation can lower the evidentiary bar in respect of the individual episodes constituting the continuous infringement; the defendant undertakings because, since the penalty will be imposed by calculating turnover percentages in proportion to the individual infringements, avoiding the charge of multiple separate forms of conduct could constitute a financial advantage.

102. However, since – as effectively argued in doctrine – it is not necessarily more advantageous for a defendant to be charged with separate infringements, depending on the circumstances of the case, ‘there is no doubt that the presumption of innocence must play a role with regard to the factual elements on the basis of which the individual infringement must be proved, whether those facts are proved or not’. ( 31 )

103. Therefore, there is no ‘presumption of separate infringements’ which applies, in case of doubt, to the assumption that the situation will necessarily be ‘better’ for the undertaking. In fact, where the Commission finds that there have been separate infringements, the applicants who would have been better off had there been a single infringement may challenge that finding (as has happened several times). The Commission will also have to persuade the court that there have been separate infringements, which proves that the existence of separate infringements must be verified and not ‘presumed’. ( 32 )

104. A dual characterisation that is delayed until the final decision can have numerous effects, not only at the public enforcement level described above, but also at the private enforcement level.

105. The Commission’s finding, which is not limited to the single and continuous infringement but extends to instances of individual conduct during the relevant period, could have a significant impact in terms of possible actions for damages before the national courts.

106. With the single and continuous infringement, the Commission can consider the unlawful nature of the undertaking’s conduct to be proved for the entire period of infringement, even if there is no solid evidence of contacts between the parties – or some of them – for a considerable length of time. This is still based on the assumption that the requirements for an infringement to be considered single and continuous – namely a common objective and involvement of the undertakings in the overall conduct of others as described above – have been met.

107. Thus, from the point of view of the duration of the offence, the single and continuous infringement could expose the undertakings involved to the risk of unlawful conduct being attributed to them over a prolonged period; more so than if instances of individual conduct had been imputed to them which were infrequent but interlinked.

108. However, the same does not apply to the degree to which the conduct was found to be unlawful, nor to the associated burden of proof. In other words, the undertakings involved are faced with a situation in which – because not all the individual contacts or forms of conduct constituting the single and continuous infringement have been found to be unlawful – legal proceedings before national courts seeking compensation for the loss caused by the competition offence cannot be entirely exempt from proof of the unlawful nature of the individual contacts or forms of conduct because of the Commission’s finding.

109. This has considerable practical significance, especially given the wide range of parties who have standing to bring an action against the addressees of the Commission’s decision seeking compensation for the loss allegedly suffered, particularly in the light of the Court’s most recent case-law, according to which ‘both the guarantee of the full effectiveness of Article 101 TFEU and effective protection against the adverse effects of an infringement of competition law would be seriously undermined if the possibility of requesting compensation for loss caused by a cartel were limited to suppliers and customers of the market affected by the cartel’. ( 33 )

110. In cases similar to the one that is the subject of the present legal proceedings, regarding forms of conduct during bidding events, each individual event may involve different parties and there may be a considerable number of parties who, because of the competition offence, could claim damages for the distortion of competition in the single market.

111. On the basis of all of the foregoing, I conclude that the General Court erred in law by finding the wording used by the Commission in the final decision – namely that the single and continuous infringement consists of several separate infringements – to be correct under EU law.

112. Accordingly, the judgment under appeal should be set aside in so far as it rejected the second and fourth pleas in law raised by the appellants at first instance, pertaining to the dual characterisation of the cartel.

113. Under the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice, the Court of Justice may, where the decision of the General Court has been set aside, itself give final judgment in the matter, where the state of the proceedings so permits.

114. That, in my view, is the case here, at least as regards this ground of appeal.

115. The Commission’s decision should be annulled in part, in so far as it held that a single and continuous infringement necessarily consists of separate infringements.

116. The rights of defence of the parties to the proceedings were limited in part, while the wording used had – and could still have – significant implications, to the detriment of the undertakings concerned.

117. Nevertheless, in my view, this error of law has not affected the overall scheme of the judgment under appeal; nor has it affected that of the decision at issue. If the wording of the ‘dual characterisation’ is removed from the operative part, the single and continuous infringement remains fully established. Furthermore, as I understand it, the penalty was calculated solely on the basis of that single and continuous infringement.

118. In line with the case-law of the Court, ( 34 ) upholding in part the ground of appeal relating to the issue I have examined does not require the entire decision to be annulled, only the part described above.

119. Indeed, since the object of a Commission decision finding that an undertaking participated in a cartel in breach of Article 101 TFEU is to establish one or more forms of conduct constituting that breach, a partial annulment cannot alter the substance of that decision.

B. Determination of the penalty

1. Summary of the arguments of the parties

120. By their fourth ground of appeal, the appellants in Cases C‑697/19 P and C‑698/19 P submit that, by upholding the amount of the fine imposed on them based on the same revenues used to calculate the separate fine imposed on Lite-On and Quanta, respectively, the General Court erred in law, infringed the principles of equal treatment and proportionality, and failed to fulfil the obligation to state reasons. This ground of appeal is divided into three parts.

121. For ease of presentation, I will focus on the appellants’ arguments in Case C‑697/19 P.

(a) The first part of the fourth ground of appeal

122. In the first part, the appellants argue that the General Court infringed the principle of equal treatment, which, in this instance, is the basis of the criterion laid down in the Guidelines on the method of setting fines that the value of sales must reflect the economic importance of the infringement and the relative weight of each undertaking involved in the infringement.

123. Sony submits that, during the period of the alleged infringement, Lite-On manufactured ODDs which were then sold under the Sony brand. Under the revenue-sharing arrangements between the appellants and Lite-On, the appellants paid Lite-On the revenue corresponding to the products designed and manufactured by Lite-On. However, rather than attributing those sales to the company that ultimately receives the revenue – namely Lite-On – in determining the value of sales for the purpose of calculating the amount of the fine, the decision treated those proceeds as both Sony’s revenue and Lite-On’s revenue. In other words, the decision counted the same revenue twice. In doing so, the Commission departed from its established practice.

124. The Commission begins by noting that the first part of the fourth ground of appeal is inadmissible, since the appellants request a re-examination of the application submitted to the General Court without identifying any specific error of law in the judgment under appeal, and the Court of Justice does not have jurisdiction to undertake that re-examination. ( 35 )

125. In any case, the Commission argues that this part should be rejected as unfounded. In the first place, point 13 of the Guidelines on the method of setting fines refers to sales directly or indirectly linked to the infringement and not to sales affected by the infringement. This means that there was no obligation for the Commission to determine which individual sales were affected by an infringement. While particular attention must be paid to the economic importance of an infringement, this must be weighed against the need to ensure that the fine enables the penalty to be applied effectively in accordance with the principles of legality and proportionality.

126. In the second place, since the appellants’ conduct does not differ substantially from that of the other addressees of the decision at issue, the calculation of the fine imposed on the appellants, taking into account their ODD sales to Dell and thus the relative weight of their participation, is consistent with the principle of equal treatment.

127. In the third place, the appellants’ arguments are based not so much on the method of calculating the fine imposed on them, as on the method of calculating the fine imposed on Lite-On. However, the issue of whether the fine imposed on Lite-On was adequate is not within the scope of the present proceedings and cannot serve as an objective basis for a reduction of the fine. In the fourth place, the appellants’ cooperation with Lite-On does not diminish the appellants’ relative weight in the infringement. The calculation that the appellants consider to be correct thus arbitrarily discriminates against the other addressees of the decision at issue, in breach of the principle of equal treatment. In the fifth place, as regards the fact that the appellants rely on the Commission’s previous decision-making practice, the General Court rightly observed that comparing the situation of an addressee of a decision with that of other undertakings cannot call into question the lawfulness of the decision at issue in so far as it finds and punishes an established infringement. ( 36 )

(b) The second part of the fourth ground of appeal

128. In the second part, the appellants argue that the General Court failed to fulfil its obligation to state reasons by ignoring their argument that double counting unlawfully inflated the economic importance of the alleged infringement and, consequently, the fine imposed on them.

129. The Commission takes the view that this part is unfounded. The General Court confirmed that the value of the sales taken into account in the decision at issue in order to calculate the basic amount of the fine was that of the appellants’ direct sales to Dell. In the light of the case-law referred to in paragraphs 265 to 269 of the judgment under appeal, the General Court correctly took the value of those direct sales into account in determining the value of the products in relation to the infringement. Lastly, according to the judgment under appeal, the method relied on by the appellants entails risks of circumvention and unequal treatment compared with the other addressees of the decision.

(c) The third part of the fourth ground of appeal

130. In the third part, the appellants argue that the General Court erred in law in rejecting their argument that the Commission had failed to justify its departure from its established practice.

131. The Commission contends that the General Court rightly held that the decision at issue sets out the reasons why the amount of the fine imposed on the appellants is to be calculated in accordance with point 13 of the Guidelines on the method of setting fines. Furthermore, the decision also explains why it would not be appropriate to depart from that approach for the appellants. Therefore, in so far as the decision at issue applies point 13 of the Guidelines on the method of setting fines in a conventional manner, it is not necessary for that decision to justify a non-existent departure from those guidelines.

2. Assessment

132. I will analyse the three parts of the fourth ground of appeal together, since the legal issue that the Court of Justice has asked me to examine concerns an alleged error of law which the General Court made in confirming that the Commission’s decision is not vitiated by the fact that it supposedly counted Sony and Lite-On’s revenues, which are covered by a profit-sharing arrangement, twice. The appellants allege that, in so doing, the General Court infringed the principles of equal treatment and proportionality and failed to fulfil its obligation to state reasons. They submit that the Commission departed from the method set out in the Guidelines on the method of setting fines by taking account of sales between participants in the cartel, thereby inflating the economic importance of the role played by the appellants in the cartel.

133. First, contrary to the Commission’s assertions, I do not consider the grounds of appeal relating to the calculation of the penalty to be inadmissible, since in the context of the appellants’ arguments, the reference to paragraphs 263 to 276 of the judgment under appeal can be implicitly but clearly inferred.

134. Turning now to the point disputed by the parties – the alleged ‘double counting’ – the Commission, in the view of the General Court, followed the method set out in the Guidelines on the method of setting fines, determining the basic amount of the fine on the basis of the sales of optical disk drives invoiced to Dell (recital 528 of the decision at issue).

135. Because of its partnership agreement with the Sony appellants, Lite-On did not record direct sales to Dell. Consequently, the Commission based its decision in respect of Lite-On – and not the appellants – on the value of Lite-On’s sales to the appellants, rather than on its (non-existent) sales to Dell.

136. On that point, the General Court held that ‘according to the explanations provided by the applicants, in the context of the agreements concluded between Lite-On and Sony, Lite-On designed and manufactured ODD products which were then sold under the Sony brand. Customer contracts and purchase orders were formally concluded with Sony, and it was Sony which was paid by customers. Accordingly, the applicants’ argument that the Commission double counted sales made to Dell is difficult to understand, given that it was Sony which received revenues from Dell. In any event, it should be borne in mind that, according to point 13 of the Guidelines [on the method of setting fines], 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’. ( 37 )

137. Moreover, ‘in determining the amount of fines for infringements of competition law, the Commission must take into account not only the gravity of the infringement and the particular circumstances of the case but also the context in which the infringement was committed and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the European Union. The gravity of infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up. In addition, the [General] Court has already stated that the Commission is not obliged in each case to ascertain the individual sales which were affected by the cartel’. ( 38 )

138. In conclusion, ‘in the present case, when the Commission sought to establish the value of the sales of goods to which the infringement directly or indirectly related for the purposes of point 13 of the Guidelines [on the method of setting fines], it was logical for it to use the applicants’ direct sales to Dell as the basis for calculating the amount of the fine. In that regard, the method advocated by the applicants, consisting in deducting from the revenues received by Sony from Dell the revenues passed on to Lite-On under the revenue-sharing arrangements in force between Sony and Lite-On during the relevant period in order to avoid “double counting”, despite the fact that the applicants explain that they are unable to provide exact figures in that regard, would undermine the effectiveness of the prohibition on cartels, since it would then be sufficient for undertakings to associate themselves with a participant in the cartel in order to reduce the amount of their fine’. ( 39 )

139. Therefore, the General Court, contrary to the appellants’ assertions in the appeal, does not merely make general observations on the fixing of the amount of the fines, ( 40 ) but refutes in fact and in law the assertions already made by the parties at first instance relating to the alleged ‘double counting’.

140. In essence, it is my view that, for reasons I will explain, the General Court has adequately stated reasons on the following points.

141. First of all, the Commission provided a clear description of the methodology it used to calculate the fines imposed on the addressees of the decision at issue and did not infringe the principle of proportionality. It correctly applied the principles set out in the Guidelines on the method of setting fines and took account of the gravity of the infringements and the particular circumstances of the case in exercising its technical discretion.

142. In addition, the Commission did not infringe the principle of equal treatment. In order to impose the penalty on the appellants in the present proceedings, the Commission took account of the value of sales made to Dell and did not deduct from the revenues received by Sony the amount paid to Lite-On. This was the only correct method that could be used, since no exact figures were provided in that regard and the method proposed by the parties would compromise the effectiveness of the decision both in terms of the relations between the undertakings participating in the cartel and the necessary deterrent effect of the penalty.

143. In the appeal, the parties confine themselves on this point to resubmitting the arguments relating to double counting, without providing any new information that might allow a different assessment by the Court.

144. As the Commission correctly observed, the appellants’ argument is not based on the manner in which the Commission calculated the amount of the fine imposed on them, which is identical to the method applied to most of the other addressees of the decision, but the manner in which the Commission calculated the fine imposed on Lite-On.

145. As we have seen, the General Court examined the manner in which the Commission gave its reasons for determining the calculation of the fine and found that this was based, to the requisite legal standard, on information in the decision at issue concerning the appellants’ economic power. In so doing, the General Court exercised the powers conferred by Articles 261 TFEU and 263 TFEU in a manner consistent with the requirements of exercising its powers of unlimited jurisdiction, by examining all the complaints raised by the appellants, based on issues of fact and law, in that connection. ( 41 )

146. It is clear from the case-law of the Court that, although Article 23(2) of Regulation No 1/2003 leaves the Commission a discretion, it nevertheless limits the exercise of that discretion by establishing objective criteria to which the Commission must adhere in principle. Thus, first, the amount of the fine that may be imposed on an undertaking is subject to a quantifiable and absolute ceiling, so that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance. Second, the exercise of that discretion is also limited by rules of conduct which the Commission imposed on itself, in particular in the Guidelines on the method of setting fines. ( 42 )

147. The essential procedural requirement to state reasons, which allows the exercise of discretion to be monitored, is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity and duration of the infringement. However, that requirement does not oblige the Commission to ‘indicate in its decision the figures relating to the method of calculating the fines’. ( 43 ) In any event, the Commission ‘cannot, by mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment’ ( 44 ) and ‘must assess, in each specific case and having regard to both the context and the objectives pursued by the scheme of penalties created by [Regulation No 1/2003], the intended impact on the undertaking concerned, in particular by taking into account a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed’. ( 45 )

148. As provided in point 13 of the Guidelines on the method of setting fines: ‘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 EEA. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement’.

149. As has been pointed out by the Court, point 13 of the Guidelines on the method of setting fines pursues the objective of adopting, as a starting point for the purpose of calculating the fine imposed on an undertaking, an amount which reflects the economic importance of the infringement and the relative weight of the undertaking concerned in that infringement. While the concept of the ‘value of sales’ referred to in point 13 of those guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not come within the scope of the alleged cartel, it would, however, be contrary to the goal pursued by that provision if that concept were to be understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel. ( 46 )

150. In this respect, the Court has held that to ignore the value of sales between entities belonging to the same undertaking would inevitably give an unjustified advantage to vertically integrated companies by allowing them to avoid the imposition of a fine proportionate to their importance on the product market to which the infringement relates. It follows that, in order to determine the turnover deriving from the sale of products in respect of which the infringement was committed, vertically integrated undertakings are in a comparable situation to that of non-vertically integrated producers. Those two types of undertakings must therefore be treated equally. Excluding internal sales from the relevant turnover would effectively favour the first type of undertaking by reducing its relative weight in the infringement to the detriment of the other undertakings, on the basis of a criterion having no connection with the objective pursued when that turnover is determined, namely that of reflecting the economic importance of the infringement and the relative weight of each of the undertakings that took part in it. ( 47 )

151. By applying the Court’s reasoning to all intra-cartel sales, the broad definition of ‘value of sales’ could allow the Commission to apply it even in cases such as the present instance, thus taking all sales to which the infringement directly or indirectly relates as a reference to the value of sales. Otherwise, some cartel participants could artificially avoid the fine by teaming up with another participant.

152. In that respect, in paragraph 271 of the judgment under appeal, the General Court held – correctly, in my view – that using the method advocated by the appellants would undermine the effectiveness of the prohibition on cartels, since it would then be sufficient for undertakings to associate themselves with a participant in the cartel in order to reduce the amount of their fine.

153. That interpretation is borne out by the objective of the EU rules on competition. The interpretation put forward by the appellants would mean that, in order to determine the basic amount of the fines to be imposed in cartel cases, the Commission would be required in each case to ascertain the individual sales affected by the cartel. As the General Court correctly points out in paragraph 268 of the judgment under appeal, no obligation of that kind has ever been imposed by the Courts of the European Union.

154. In accordance with the principle of equal treatment, the fine imposed on the appellants was calculated in the same way as for all the other participants in the cartel who recorded direct sales to Dell and/or HP. Using the undertaking’s sales to customers of the product in question is the conventional method for assessing the economic importance of an addressee’s behaviour, and this method has always been recognised as being in line with the principles of European law.

155. As the General Court pointed out in paragraph 272 of the judgment under appeal, as regards contacts concerning Dell, the appellants’ conduct did not fundamentally differ from that of the other addressees of the decision. Consequently, the relative weight of their participation is duly recognised taking into account their sales of optical disk drives to Dell. The General Court thus correctly concluded that it was logical for the Commission to use the appellants’ direct sales to Dell in the EEA as the basis for calculating the amount of the fine imposed on them (paragraph 270 of the judgment under appeal). Such an approach ensures equal treatment with the other participants.

156. The fact that the appellants cooperated with Lite-On in the production, development and sale of optical disk drives on behalf of Dell does not diminish the appellants’ relative weight in the infringement. Notwithstanding the partnership agreement, the appellants are responsible for their own conduct and the decision holds them liable for their own infringement, separately from that of Lite-On. Reducing the fine imposed on the appellants for the simple reason that they returned to Lite-On some of the revenue generated by the sale of optical disk drives to Dell would result in arbitrary discrimination against other addressees of the decision, in breach of the principle of equal treatment (and not in accordance with it, as is maintained by the appellants).

157. As regards the appellants’ argument that the Commission, in certain previous cases, used calculation methods designed to avoid any risk of double counting of sales by the participants in the cartel in question, it is sufficient to recall the settled case-law that the Commission’s practice in previous decisions does not serve as a legal framework for fines imposed in competition matters, since the Commission enjoys a wide discretion in the area of setting fines and is not bound by assessments which it has made in the past. ( 48 )

158. The General Court correctly concluded, in paragraph 275 of the judgment under appeal, that the mere fact that the appellants relied on an earlier decision is in itself ineffective, since the Commission was not required to assess the case under consideration in the same manner.

159. The precedents cited by the appellants also show a reconstruction of the Commission based on an overall assessment and a substantial fairness of the decision.

160. The principle of equal treatment in the imposition of the penalty is, in fact, ‘particularly relevant among undertakings involved in the same cartel. Comparison with other cases is allowed only in exceptional cases’. ( 49 )

161. Moreover, it is reiterated that the provisions contained in the Guidelines on the method of setting fines, in particular as regards the determination of the value of sales, provide a benchmark which must, however, be lowered in the case in question and adapted to the specific circumstances.

162. In the case in question, the Commission was faced with an established cartel between players with significant market power and, in particular, Sony and Sony Optiarc, appellants in the present proceedings, who have a considerable relevant turnover.

163. In addition, one of the two parties to the profit-sharing arrangement, Lite-On, was excluded from any resulting penalties due to the leniency programme. Therefore, this is a special case in which all the specific factors must be assessed to ensure that the penalty has the necessary deterrent effect.

164. According to the case file, Lite-On did not sell any products directly to Dell on account of the previous arrangement with Sony. The direct sales to Dell were all made by Sony, so the Commission took them fully into account as connected with the infringement.

165. In determining the penalty, the position of Lite-On, whose leniency application and subsequent cooperation were found to be genuine and sincere by the Commission, cannot be examined because the Commission excluded it entirely from the fine.

166. In any case, under the profit-sharing arrangement, Sony was, in general, responsible for sales, while Lite-On was responsible for quality and engineering issues and recovered some of the revenue generated from ODD sales from the appellants. Because almost all of Lite-On’s revenues from ODD sales to Dell were generated in this way, Lite-On made very few direct sales to Dell. If the Commission had based Lite-On’s fine solely on direct sales to Dell’s entities in the EEA, as it did for almost all the other addressees of the decision (including the appellants), this would have resulted in a negligible fine for Lite-On.

167. Given Lite-On’s direct involvement in the collusion with other ODD suppliers and given that it participated fully in the cartel, despite the fact that it was eventually granted immunity from fines, that outcome would not have adequately reflected the gravity of Lite-On’s involvement in the infringement and would not have had the required deterrent effect. Therefore, in the proxy for the annual value of Lite-On’s sales, the Commission included the sales intended for Dell’s notebooks and desktops that were made to Sony during the infringement period established for Lite-On (recital 529 of the decision).

168. On the one hand, therefore, the method of calculating the penalty for Lite-On cannot be used as a benchmark because the penalty was not actually imposed. On the other, the Commission regarded any increase in the total amount on which to calculate the penalty, in exercising its technical discretion, essential to maintain the necessary deterrent effect of the penalty for parties with particularly high relevant turnover. It must be recalled in that regard that the principle of equal treatment 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. ( 50 )

169. Therefore, in view of the specific nature of the circumstances, I am not entirely convinced that the appellants’ assertion that there has been (unlawful) double counting is actually true.

170. By contrast, the Commission’s assertion, as confirmed by the General Court, is plausible, especially in the light of the principles governing the methods that the Commission uses to calculate penalties.

171. As we have seen, the Guidelines on the method of setting fines have no bearing on this particular situation. Therefore, the principles expressed therein must be applied as interpreted by the case-law of the Court.

172. The principles to be balanced are the principles of proportionality and equal treatment, on the one hand, and the principles of the effectiveness and deterrence of the penalty, on the other.

173. In determining the appropriate level of fines to be imposed, the Commission must ensure, taking into account the particular circumstances of the case in question, that its action has the necessary deterrent effect. To achieve this objective, the Commission is to refer to the value of the sales of goods or services linked to the infringement as the basis for calculating the amount of the fine, as well as to the duration and gravity of the infringement. However, although referring to those factors gives a good indication of the economic importance of the infringement as a whole and of the relative weight of each undertaking, it should not be seen as the basis for an automatic and arithmetic calculation method.

174. The Guidelines on the method of setting fines provide the parties and the court with objective criteria for assessing the correctness of the Commission’s decisions, but also contain limitations and exclusions which strengthen the Commission’s margin of discretion. It is sufficient to recall, in particular, point 37 of those guidelines, which states that ‘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’.

175. Accordingly, there is not, in my view, any obvious error of law in the judgments under appeal as regards the method of calculating the penalties, either in terms of the obligation to state reasons or in terms of the principles of proportionality and equal treatment.

176. The General Court has provided adequate reasoning on each point at issue and has shown that the Commission exercised the discretion conferred on it in accordance with the principles of proportionality and equal treatment.

177. It should be recalled that it is not for the Court of Justice, when ruling on points of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law. Only where the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, does it have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine. ( 51 )

178. However, it should be noted in that regard that the exercise of powers of unlimited jurisdiction provided for in Article 261 TFEU and Article 31 of Regulation No 1/2003 does not amount to a review of the Court’s own motion and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy, which the Courts are required to raise of their own motion, it is therefore for an applicant to raise pleas in law against the decision being contested and to adduce evidence in support of those pleas. ( 52 )

179. Since the reasons for the method of calculating the penalty offered by the Commission and confirmed by the General Court are based on legal arguments relating to the rules on determining penalties which seem to be in line with the Court’s guidelines as set out above, whereas the appellants’ arguments, in reiterating the allegations already made at first instance, do not offer any new element of assessment, I propose that the Court reject the ground of appeal relating to the legal issue addressed above.

V. Conclusion

180. In the light of all the foregoing considerations, I propose that the Court uphold, within the limits set out above, the third ground of appeal in Cases C‑697/19 P and C‑698/19 P and the first ground of appeal in Cases C‑699/19 P and C‑700/19 P, and reject, as unfounded, the fourth ground of appeal in Cases C‑697/19 P and C‑698/19 P.

( 1 ) Original language: Italian.

( 2 ) Judgments of the General Court of the European Union of 12 July 2019, Sony and Sony Electronics v Commission (T‑762/15, not published, EU:T:2019:515) (‘the judgment under appeal’); Sony Optiarc and Sony Optiarc America v Commission (T‑763/15, not published, EU:T:2019:517); Quanta Storage v Commission (T‑772/15, not published, EU:T:2019:519); and Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission (T‑8/16, not published, EU:T:2019:522) (collectively, ‘the judgments under appeal’).

( 3 ) Commission Decision C (2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (AT.39639 – Optical Disk Drives) (OJ 2015 C 484, p. 22).

( 4 ) For a detailed description, reference is made to the judgments under appeal, and specifically paragraphs 1 to 37 of the judgments in T‑762/15 and T‑763/15, and paragraphs 1 to 32 of the judgments in T‑772/15 and T‑8/16.

( 5 ) OJ 2006 C 298, p. 17.

( 6 ) OJ 2006 C 210, p. 2.

( 7 ) All italics used in the text are mine.

( 8 ) The third ground of appeal in Cases C‑697/19 P and C‑698/19 P and the first ground of appeal in Cases C‑699/19 P and C‑700/19 P.

( 9 ) See judgment of 10 October 2014, Soliver v Commission (T‑68/09, EU:T:2014:867).

( 10 ) See judgment of 26 January 2017, Villeroy & Boch Belgium v Commission (C‑642/13 P, EU:C:2017:58, paragraph 54).

( 11 ) See judgment of 16 December 2015, Singapore Airlines and Singapore Airlines Cargo v Commission (T‑43/11, not published,EU:T:2015:989).

( 12 ) See judgment of 23 November 2006, ASNEF-EQUIFAX and Administración del Estado (C‑238/05, EU:C:2006:734, paragraphs 30 to 32).

( 13 ) ‘Any one of the aspects of conduct in respect of any customer concerned (Dell or HP) or any set (or several sets) of bilateral contacts has as its object the restriction of competition and therefore constitutes an infringement of Article 101(1) of the TFEU’ (recital 352 of the Commission’s decision).

( 14 ) See, to that effect, albeit in relation to the former Article 81(1) EC, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 156).

( 15 ) See, to that effect, albeit in relation to the former Article 81(1) EC, judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited).

( 16 ) See judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission (C‑702/19 P, EU:C:2020:857, paragraphs 81 and 82). See also judgment of 26 January 2017, Villeroy & Boch v Commission (C‑644/13 P, EU:C:2017:59, paragraph 47 and the case-law cited).

( 17 ) See judgment of 24 September 2020, Prysmian and Prysmian Cavi e Sistemi v Commission (C‑601/18 P, EU:C:2020:751, paragraph 130). See also, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773, paragraph 172 and the case-law cited).

( 18 ) See judgment of 8 July 1999, Commission v Anic Partecipazioni (C‑49/92 P, EU:C:1999:356, paragraph 84).

( 19 ) See judgment of 8 July 1999, Commission v Anic Partecipazioni (C‑49/92 P, EU:C:1999:356, paragraph 81).

( 20 ) See, to that effect, Alexiadis, P., Swanson, D.G. and Guerrero-Perez, A., Raising the EU evidentiary bar for the ‘single and continuous infringement’ doctrine, Concurrences, 2016, p. 3.

( 21 ) Siragusa, M. and Rizza, C. (eds), EU Competition Law, Volume III: Cartels & Collusive Behaviour. Restrictive Agreements and Practices Between Competitors, 2012, paragraph 1.7. See, also, Simonsson, I., Legitimacy in EU Cartel Control, Hart Publishing, Modern Studies in European Law, 2010, paragraph 135.

( 22 ) See judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778, paragraph 44).

( 23 ) See judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778, paragraph 45).

( 24 ) See judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778, paragraph 46).

( 25 ) See judgment of 5 December 2013, SNIA v Commission (C‑448/11 P, not published, EU:C:2013:801, paragraphs 42 to 44).

( 26 ) See judgment of 3 September 2009, Prym and Prym Consumer v Commission (C‑534/07 P, EU:C:2009:505, paragraph 26 and the case-law cited).

( 27 ) See judgment of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 66 and the case‑law cited).

( 28 ) See judgment of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 67 and the case‑law cited).

( 29 ) See judgment of 5 December 2013, SNIA v Commission(C‑448/11 P, not published, EU:C:2013:801, paragraphs 42 and 43).

( 30 ) See judgment of 5 December 2013, SNIA v Commission (C‑448/11 P, not published, EU:C:2013:801, paragraph 44).

( 31 ) Castillo de la Torre, F., Gippini Fournier, E., Evidence, Proof and Judicial Review in EU Competition Law, 2017, p. 92.

( 32 ) Castillo de la Torre, F., Gippini Fournier, E., Evidence, Proof and Judicial Review in EU Competition Law, 2017, p. 92.

( 33 ) See judgment of 12 December 2019, Otis and Others (C‑435/18, EU:C:2019:1069, paragraph 27).

( 34 ) See judgments of 31 October 2019, Repower v EUIPO (C‑281/18 P, EU:C:2019:916, paragraph 38), and of 1 July 2010, Knauf Gips v Commission (C‑407/08 P, EU:C:2010:389, paragraph 28).

( 35 ) See judgment of 4 July 2000, Bergaderm and Goupil v Commission (C‑352/98 P, EU:C:2000:361, paragraphs 34 and 35).

( 36 ) See judgment of 28 November 2019, ABB v Commission (C‑593/18 P, not published, EU:C:2019:1027, paragraphs 80 to 86).

( 37 ) Judgment of 12 July 2019, Sony and Sony Electronics v Commission (T‑762/15, EU:T:2019:515, paragraphs 263 to 266).

( 38 ) Judgment of 12 July 2019, Sony and Sony Electronics v Commission (T‑762/15, EU:T:2019:515, paragraphs 266 to 268).

( 39 ) Judgment of 12 July 2019, Sony and Sony Electronics v Commission (T‑762/15, EU:T:2019:515, paragraphs 270 and 271).

( 40 ) Paragraph 79 of the appeal in Case C‑697/19 P.

( 41 ) See judgment of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraph 214).

( 42 ) See judgments of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363, paragraph 55 and the case-law cited), and of 18 July 2013, Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraph 58).

( 43 ) Judgment of 19 December 2013, Siemens v Commission (C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 394 and the case-law cited).

( 44 ) Judgment of 19 December 2013, Siemens v Commission (C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 395 and the case-law cited).

( 45 ) See, most recently, judgment of 25 March 2021, Lundbeck v Commission (C‑591/16 P, EU:C:2021:243, paragraph 185 and the case-law cited).

( 46 ) See, most recently, judgment of 25 March 2021, Lundbeck v Commission (C‑591/16 P, EU:C:2021:243, paragraph 187 and the case-law cited).

( 47 ) See judgment of 1 February 2018, Kühne + Nagel International and Others v Commission (C‑261/16 P, not published, EU:C:2018:56, paragraph 83 and the case-law cited).

( 48 ) See judgment of 19 March 2009, Archer Daniels Midland v Commission (C‑510/06 P, EU:C:2009:166, paragraph 82).

( 49 ) See, in doctrine, Galokho, S., ‘Les atteintes au principe d’égalité dans le cadre du calcul des amendes en droit européen des ententes’, Revue internationale de droit économique, p. 186; Bernardeau, L. and Christienne, J.‑Ph., Les amendes en droit de la concurrence. Pratique décisionnelle et contrôle juridictionnel du droit de l’Union, coll. Europe(s), Brussels, Larcier, 2013, p. 1267. In case-law, for the finding that in principle, decisions in other cases can give only an indication for the purpose of determining whether there is discrimination, and that comparisons with other Commission decisions can be relevant for the principle of equality only if it is shown that the specific data in the cases in question are closely comparable, see judgment of 19 December 2012, Heineken Nederlandand Heineken v Commission (C‑452/11 P, not published, EU:C:2012:829, paragraph 108).

( 50 ) See judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraphs 54 and 55 and the case-law cited).

( 51 ) See, most recently, judgment of 25 March 2021, Lundbeck v Commission (C‑591/16 P, EU:C:2021:243, paragraphs 197 and 198 and the case-law cited).

( 52 ) See judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717, paragraph 75).