InnoLux Corp. v European Commission.
Date: 2015-07-09
26. It must be borne in mind that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for the parties to submit observations in response to the Advocate General’s Opinion (see judgment in Vnuk , C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited).
27. Pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see judgment in Commission  v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 29 and the case-law cited).
28. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment in E .ON Energie  v Commission , C‑89/11 P, EU:C:2012:738, paragraph 62).
29. None the less, the Court may at any moment, having heard the Advocate General, order the reopening of the oral procedure under Article 83 of its Rules of Procedure if, inter alia, it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice (judgment in Nordzucker , C‑148/14, EU:C:2015:287, paragraph 24).
46. As the Court has previously held, 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 that regulation, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed (judgments in Britannia Alloys & Chemicals  v Commission , C‑76/06 P, EU:C:2007:326, paragraph 25; Guardian Industries and Guardian Europe  v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 53; and LG Display and LG Display Taiwan  v Commission , C‑227/14 P, EU:C:2015:258, paragraph 49).
47. In accordance with the Court’s settled case-law, it is permissible, for the purpose of setting the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement (judgments in Musique Diffusion française and Others v Commission , 100/80 to 103/80, EU:C:1983:158, paragraph 121; Guardian Industries and Guardian Europe  v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 54; and LG Display and LG Display Taiwan  v Commission , C‑227/14 P, EU:C:2015:258, paragraph 50).
48. According to the Court’s case-law, 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. 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. Secondly, the exercise of that discretion is also limited by rules of conduct which the Commission has imposed on itself, in particular in the Guidelines on the method of setting fines (judgments in Guardian Industries and Guardian Europe  v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 55, and LG Display and LG Display Taiwan  v Commission , C‑227/14 P, EU:C:2015:258, paragraph 51).
50. Point 13 of the Guidelines on the method of setting fines therefore pursues the objective of adopting, as the starting point for the setting of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it (judgments in Team Relocations and Others  v Commission , C‑444/11 P, EU:C:2013:464, paragraph 76; Guardian Industries and Guardian Europe  v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 57; and LG Display and LG Display Taiwan  v Commission , C‑227/14 P, EU:C:2015:258, paragraph 53).
51. Consequently, the concept of the value of sales referred to in point 13 of those Guidelines encompasses the sales made on the market concerned by the infringement in the EEA, and it is not necessary to determine whether those sales were genuinely affected by that infringement, since the proportion of the overall turnover deriving from the sale of goods in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (see, to that effect, judgments in Team Relocations and Others  v Commission , C‑444/11 P, EU:C:2013:464, paragraphs 75 to 78; Guardian Industries and Guardian Europe  v Commission , C‑580/12 P, EU:C:2014:2363, paragraphs 57 to 59; Dole Food and Dole Fresh Fruit Europe  v Commission , C‑286/13 P, EU:C:2015:184, paragraphs 148 and 149; and LG Display and LG Display Taiwan  v Commission , C‑227/14 P, EU:C:2015:258, paragraphs 53 to 58 and 64).
55. Admittedly the concept of the ‘value of sales’ referred to in point 13 of the Guidelines on the method of setting fines cannot extend to encompassing sales made by the undertaking in question which in no way fall within the scope of the alleged cartel (see Team Relocations and Others v Commission , C‑444/11 P, EU:C:2013:464, paragraph 76; Guardian Industries and Guardian Europe  v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 57; and LG Display and LG Display Taiwan  v Commission , C‑227/14 P, EU:C:2015:258, paragraph 53). It would, however, be contrary to the goal pursued by Article 23(2) of Regulation No 1/2003 if the vertically-integrated participants in a cartel could, solely because they incorporated the goods the subject of the infringement into the finished products outside the EEA, expect to have excluded from the calculation of the fine the proportion of the value of their sales of those finished products in the EEA that are capable of being regarded as corresponding to the value of the goods the subject of the infringement.
56. As the General Court found in essence in paragraph 71 of the judgment under appeal, and as the Court of Justice has also held, vertically-integrated undertakings may benefit from a horizontal price-fixing agreement concluded in breach of Article 101 TFEU, not only when sales are made to independent third parties on the market for the goods the subject of the infringement, but also on the downstream market in processed goods made up of, inter alia, the goods which are the subject of the infringement, and is so for two different reasons. Either the price increases of the inputs which result from the infringement are passed on by those undertakings in the price of the processed goods, or those undertakings do not pass these increases on, which thus effectively grants them a cost advantage in relation to their competitors which obtain those same inputs on the market for the goods which are the subject of the infringement (judgment in Guardian Industries and Guardian Europe  v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 60).
57. It follows that the General Court was fully entitled to hold, in paragraphs 70 and 71 of the judgment under appeal that when a vertically-integrated undertaking incorporates the goods in respect of which the infringement was committed into the finished products in its production units situated outside the EEA, the sale by that undertaking of those finished products in the EEA to independent third parties is liable to affect competition on the market for those products and, therefore, such an infringement may be considered to have had repercussions in the EEA, even if the market for the finished products in question constitutes a separate market from that concerned by the infringement.
59. It should be recalled that, according to the settled case-law of the Court of Justice, the General Court has exclusive jurisdiction to find and appraise the relevant 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 (judgment in E.ON Energie  v Commission , C‑89/11 P, EU:C:2012:738, paragraph 64 and the case-law cited).
62. It should also be pointed out that excluding those sales would have the effect of artificially minimising the economic significance of the infringement committed by a particular undertaking, since the mere fact such sales genuinely affected by the cartel in the EEA are excluded from being taken into account would lead to the imposition of a fine which bore no actual relation to the scope of application of that cartel in that territory (see, by analogy, judgments in Team Relocations and Others  v Commission , C‑444/11 P, EU:C:2013:464, paragraph 77; Guardian Industries and Guardian Europe  v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 58; and LG Display and LG Display Taiwan  v Commission , C‑227/14 P, EU:C:2015:258, paragraph 54).
65. According to the settled case-law of the Court, in the context of competition law the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several natural or legal persons (see, in particular, judgments in Hydrotherm Gerätebau , 170/83, EU:C:1984:271, paragraph 11, and Arkema  v Commission , C‑520/09 P, EU:C:2011:619, paragraph 37).
66. Consequently, as the General Court was fully entitled to find in paragraph 90 of the judgment under appeal, cartel participants which like InnoLux form a single undertaking, for the purposes of Article 101 TFEU, with the production units which incorporate the goods concerned into the finished products are in an objectively different situation from cartel participants which, like the appellants in the judgment in LG Display and LG Display Taiwan  (C‑227/14 P, EU:C:2015:258, paragraphs 46 and 47), form a separate undertaking, for the purposes of that provision, from the undertaking which incorporates the goods. While in the first case the sales of the goods concerned are internal in nature, in the second case those sales are made to independent third-party undertakings. That objective difference in situation therefore justifies treating those sales differently. InnoLux has at no point challenged in these appeal proceedings the findings of the General Court, in particular those in paragraphs 70 and 90 of the judgment under appeal, regarding whether or not cartel participants formed a single undertaking.
67. Admittedly, as InnoLux has argued, in the judgment in Guardian Industries and Guardian Europe  v Commission  (C‑580/12 P, EU:C:2014:2363, paragraph 59) the Court held, in a context internal to the EEA, that in order to determine the value of sales to be taken into account for the purposes of calculating the amount of the fines imposed for breach of Article 101 TFEU, a distinction should not be drawn depending on whether those sales are to independent third parties or to entities belonging to the same undertaking.
72. Admittedly, as the General Court noted in paragraph 58 of the judgment under appeal, it is apparent from the case-law of the Court of Justice that when undertakings which are established outside the EEA, but which produce goods that are sold within the EEA to third parties, collude on the prices they charge to their customers in the EEA and put that collusion into effect by selling at prices which are actually coordinated, they are taking part in collusion which has the object and effect of restricting competition within the internal market within the meaning of Article 101 TFEU and which the Commission has territorial jurisdiction to proceed against (see, to that effect, judgment in Ahlström Osakeyhtiö and Others  v Commission , C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraphs 13 and 14).
75. As regards, in that respect, InnoLux’s argument that taking those sales into account in order to calculate the fine imposed for breach of Article 101 TFEU is likely to result in the same anti-competitive conduct giving rise to concurrent penalties imposed by the competition authorities of a non-member State, it must be pointed out that, contrary to the Commission’s contentions, that claim is admissible at the appeal stage in the light of Article 170(1) of the Rules of Procedure of the Court, since it does not change the subject-matter of the proceedings. However, it must be borne in mind that, as the Court has held, neither the principle non bis in idem  nor any other principle of law obliges the Commission to take account of proceedings and penalties to which the undertaking has been subject in non-member States (see judgments in Showa Denko  v Commission , C‑289/04 P, EU:C:2006:431, paragraphs 52 to 58; SGL Carbon  v Commission , C‑308/04 P, EU:C:2006:433, paragraphs 28 to 34; and SGL Carbon  v Commission , C‑328/05 P, EU:C:2007:277, paragraphs 24 to 35).
83. In any event, in so far as the present ground of appeal is directed at paragraphs 93 and 94 of the judgment under appeal, it must be rejected as ineffective, since it relates to grounds included in the judgment purely for the sake of completeness which cannot lead to the judgment being set aside (see, in particular, judgment in Dansk Rørindustri and Others  v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 148 and the case-law cited).