Toshiba Corporation v European Commission.
Date: 2017-07-06
21


As regards the merits, the General Court was right, in paragraphs 40 and 41 of the judgment under appeal, to rely on the principle, established in the settled case-law of the Court, that, in order to fulfil its obligation to respect the right of undertakings to be heard, the Commission is required to indicate expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and to set out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and whether it has been committed intentionally or negligently. It is also apparent from that case-law that the Commission is not, however, required, once it has indicated the main factual and legal criteria on which it will base its calculation of the amount of the fines, to specify the way in which it will use each of those elements in order to determine their level (see, inter alia, judgment of 28 June 2005, 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, paragraphs 428 and 437).
24


In that regard, it is to be recalled that the annulment of an EU act does not necessarily affect preparatory measures, since the procedure for replacing the annulled measure may, in principle, be resumed at the very point at which the illegality occurred. The annulment of the act does not, in principle, affect the validity of the measures preparatory to that measure, which were taken before the stage at which the defect was observed. If it is found that the annulment does not affect the validity of the prior procedural measures, the Commission is not, as a result of that annulment alone, required to present the undertakings concerned with a new statement of objections (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraphs 73 to 75 and 80 and 81).
31


Although, as is apparent from the foregoing, paragraph 74 of the judgment under appeal is vitiated by an error of law, that does not affect the validity of the judgment under appeal since its operative part is sufficiently well founded on other legal grounds (see, to that effect, inter alia, judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 136).
33


It may also be recalled that, although, in certain circumstances, in particular where the Commission intends to apply new guidelines on the method of setting fines, and provided that that does not mean that it anticipates its decision on the objections in an inappropriate manner, it may be desirable that the Commission should specify the way in which it proposes to employ the imperative criteria of the gravity and the duration of the infringement when determining the amount of the fines, the fact remains that the right to be heard does not cover such elements related to the method for determining the amount of the fines (judgment of 28 June 2005, 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, paragraphs 438 and 439).
74


Following the dismissal of that appeal by the judgment of 19 December 2013, Siemens and Others v Commission (C‑239/11 P,C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866), the judgment of the General Court of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343) — specifically its operative part and the grounds constituting its ratio decidendi — became final (see, to that effect, judgment of 19 February 2009, Gorostiaga Atxalandabaso v Parliament, C‑308/07 P, EU:C:2009:103, paragraph 57).
81


[As rectified by order of 12 July 2017] In paragraphs 141 and 142 of the judgment under appeal, the General Court held, without erring in law, that, given that the participation of the Japanese undertakings in the common understanding was a ‘prerequisite’ for the effective implementation of the EQ Agreement in which only the European undertakings participated and that the Japanese undertakings’ honouring of their commitments therefore made a ‘necessary contribution’ to the functioning of the infringement, it had to be concluded that Toshiba’s contribution to the infringement was comparable to that of the European undertakings.