Toshiba Corporation v European Commission.
Date: 2016-01-20
24


In that regard, it should be noted that, in order to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement must have as its ‘object or effect’ the prevention, restriction or distortion of competition within the internal market. According to the settled case-law of the Court of Justice since the judgment in LTM (56/65, EU:C:1966:38), the alternative nature of that requirement, as shown by the conjunction ‘or’, means that it is first necessary to consider the precise object of the agreement (judgment in ING Pensii, C‑172/14, EU:C:2015:484, paragraph 30).
25


Thus, where the anticompetitive object of the agreement is established, it is not necessary to examine its effects on competition (see, to that effect, judgments in T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraphs 28 and 30, and GlaxoSmithKline Services and Others v Commission and Others, C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 55).
26


With regard to the classification of a practice as a restriction by object, it is clear from the case-law of the Court that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that there is no need to examine their effects (judgment in ING Pensii, C‑172/14, EU:C:2015:484, paragraph 31). That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (judgment in CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 50).
27


The Court’s case-law has also established that, in order to determine whether an agreement between undertakings reveals a sufficient degree of harm that it may be considered a ‘restriction of competition by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part (judgment in ING Pensii, C‑172/14, EU:C:2015:484, paragraph 33).
28


Thus, the Court has already held that market-sharing agreements constitute particularly serious breaches of the competition rules (see, to that effect, judgments in Solvay Solexis v Commission, C‑449/11 P, EU:C:2013:802, paragraph 82, and YKK and Others v Commission, C‑408/12 P, EU:C:2014:2153, paragraph 26). The Court has also held that agreements which aim to share markets have, in themselves, an object restrictive of competition and fall within a category of agreements expressly prohibited by Article 101(1) TFEU, and that such an object cannot be justified by an analysis of the economic context of the anticompetitive conduct concerned (judgment in Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, EU:C:2013:866, paragraph 218).
29


In respect of such agreements, the analysis of the economic and legal context of which the practice forms part may thus be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object.
40


It should be observed that, according to the settled case-law of the Court of Justice, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice.
61


In that regard, it should be borne in mind that it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anticompetitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anticompetitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (judgment in 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 81).
62


In order to assess whether an undertaking has actually distanced itself, it is indeed the understanding which the other participants in a cartel have of that undertaking’s intention which is of critical importance when assessing whether it sought to distance itself from the unlawful agreement (judgment in Archer Daniels Midland v Commission, C‑510/06 P, EU:C:2009:166, paragraph 120).
63


In that context, it should be noted that the concept of ‘public distancing’ reflects a factual situation, the existence of which is found by the General Court, on a case-by-case basis, taking account of a number of coincidences and indicia submitted to it and accordingly an overall assessment of all the relevant evidence and indicia. Provided that that evidence has been properly obtained and that the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, to that effect, judgment in Comap v Commission, C‑290/11 P, EU:C:2012:271, paragraph 71).
71


In that regard, it should be borne in mind that an undertaking’s participation in a meeting having an anticompetitive object creates a presumption of the illegality of its participation, which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other parties to the cartel (judgment in Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 21).
83


It should be observed, in the first place, that the Commission adopted the 2006 Guidelines, in connection with the application of fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, in order to ensure the transparency and impartiality of its decisions. That provision is designed, inter alia, to ensure that the fine has sufficient deterrent effect, which justifies the taking into consideration of the economic power of the undertaking concerned (judgment in Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 142). It is the intention to ensure that the fine has sufficient deterrent effect, reiterated in point 4 of the 2006 Guidelines, which justifies the taking into account of the financial capacity of the undertaking concerned (see, to that effect, judgments in YKK and Others v Commission, C‑408/12 P, EU:C:2014:2153, paragraph 85, and Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 143).
84


Accordingly, the Commission must assess, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by Regulation No 1/2003, the intended consequences for the undertaking in question, taking into account the turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed (see judgment in Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 144).
85


In the second place, it should be recalled that point 13 of the 2006 Guidelines, concerning infringements whose geographic scope does not extend beyond that of the EEA, provides that the value of sales to be used in determining the basic amount of the fine to be imposed is the value of the undertaking’s sales of goods or services to which the infringement relates. That point pursues the objective of adopting as the starting point for the calculation of the fine to be imposed on an undertaking an amount which reflects the economic importance of the infringement and the size of the undertaking’s contribution to it (see, to that effect, judgment in Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 148).