Samsung SDI Co. Ltd and Samsung SDI (Malaysia) Bhd v European Commission.
Date: 2017-03-09
In addition, in paragraph 52 of the judgment under appeal, the General Court noted that there was a link of complementarity between the various instances of conduct in question and that they formed part of an overall plan, with the result that the Commission was entitled to characterise them as a single infringement. It is settled case-law that, if the different actions form part of an overall plan because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, inter alia, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41).
It must be recalled that, in paragraph 163 of the judgment under appeal, the General Court held that, where an undertaking has acted in breach of Article 101 TFEU, it cannot escape being penalised altogether on the ground that another undertaking has not been fined (judgments of 31 March 1993, 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, paragraph 197, and 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 160).
In doing so, the General Court did not err in law. An undertaking on which a fine has been imposed for its participation in a cartel, in breach of the competition rules, cannot request the annulment or reduction of that fine, on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel (see, to that effect, judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraphs 58 and 59).
In that judgment, the Court, taking into account the case-law according to which, when the amount of the fine is determined, the application of different methods of calculation cannot result in discrimination between the undertakings which have participated in the same infringement of Article 101 TFEU (judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 58), reduced the fine imposed on a participant in an infringement, in order to take account of the fact that the Commission, by incorrectly applying the method it had chosen to determine the amount of the fine, had imposed on another participant in the same cartel a fine which reduced the relative size of that participant’s contribution to the infringement (judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraphs 70 to 80).
The Commission contests, primarily, the admissibility of the third ground of appeal, since the appellants do not allege that the fine imposed on them is excessive to the point of being disproportionate. According to the Commission, it follows from the case-law of the Court (judgment of 10 July 2014, Telefónica et Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 205) that it is only in that situation that the Court would have to find an error of law committed by the General Court, on account of the inappropriateness of the fine.
It must be recalled that point 13 of the Guidelines on the method of setting fines pursues the objective of adopting as the starting point for the calculation of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (judgment of 9 July 2015, InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 50 and the case-law cited).
Consequently, the concept of the ‘value of sales’, referred to in point 13 of the Guidelines on the method of setting fines, 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 (judgment of 9 July 2015, InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 51 and the case-law cited).
Furthermore, if the appellants’ argument were accepted, an undertaking participating in an infringement would merely have to negotiate its sales with its customers outside the EEA in order to ensure that those sales would not be taken into account in the calculation of a potential fine, which would therefore be much smaller (see, by analogy, judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16).
Even if the two parts of the ground of appeal were well founded, it must be borne in mind that it is not for the Court of Justice, when ruling on questions 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. Accordingly, only inasmuch as the Court of Justice considers that the level of the fine is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 205 and the case-law cited).