By their appeals, Siemens AG (‘Siemens’), Mitsubishi Electric Corp. (‘Mitsubishi’) and Toshiba Corp. (‘Toshiba’) seek the annulment, respectively, of:
Article 23 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), entitled ‘Fines’, provides:
Article 25 of Regulation No 1/2003, entitled ‘Limitation periods for the imposition of penalties’, states:
Article 31 of that regulation, entitled ‘Review by the Court of Justice’, provides:
The disputes concern a cartel relating to the sale of gas insulated switchgear (‘GIS’), which is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for turnkey power sub-stations.
On 3 March 2004, ABB Ltd (‘ABB’) informed the Commission of the existence of a cartel in the GIS sector and submitted an oral application for immunity from fines pursuant to the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the Leniency Notice’). ABB’s request for immunity was supplemented by oral observations and documentary evidence. On 25 April 2004, the Commission granted conditional immunity to ABB.
On the basis of ABB’s statements, the Commission launched an investigation and, on 11 and 12 May 2004, it carried out inspections at the premises of Siemens, Areva T&D SA, the VA Tech Group, Hitachi Ltd and Japan AE Power Systems Corp (‘JAEPS’). On 20 April 2006, the Commission adopted a statement of objections which was notified to 20 companies, including Siemens, Mitsubishi and Toshiba. A hearing of the undertakings concerned took place on 18 and 19 July 2006.
On 24 January 2007, the Commission adopted the contested decision which was notified to the same 20 companies to which the statement of complaints had been sent, namely, in addition to the three appellants, to ABB, Alstom SA, Areva SA, Areva T&D AG, Areva T&D Holding SA and Areva T&D SA (the latter four companies are referred to collectively as ‘Areva’), Fuji Electric Holdings Co. Ltd and Fuji Electric Systems Co. Ltd (the latter two companies are referred to collectively as ‘Fuji’), Hitachi Ltd and Hitachi Europe Ltd (referred to collectively as ‘Hitachi’), JAEPS, Nuova Magrini Galileo SpA, Schneider Electric SA, Siemens AG Österreich, Siemens Transmission & Distribution Ltd, Siemens Transmission & Distribution SA and VA Tech Transmission & Distribution GmbH & Co. KEG (‘VA Tech’).
The characteristics of the cartel as found in the contested decision are summarised in the judgments in similar terms. Accordingly, in paragraphs 12 to 14 of the judgment in Siemens v Commission, those characteristics are described as follows:
On the basis of the findings of fact and legal assessments made in the contested decision, the Commission concluded that the undertakings involved had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) (‘the EEA Agreement’) and imposed on them fines calculated in accordance with the methods set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) (‘the Guidelines’) and in the Leniency Notice.
The Commission decided that, pursuant to the Leniency Notice, ABB’s application for immunity had to be granted, but that each of the leniency applications brought by Siemens, Mitsubishi, Areva, the VA Tech Group, Hitachi/JAEPS and Fuji had to be rejected.
Articles 1 and 2 of the contested decision provide:
First of all, by the judgment in Siemens v Commission, the General Court rejected the three pleas raised by Siemens in support of its application for annulment of the contested decision and, consequently, dismissed the action in its entirety.
It is clear from paragraph 24 of that judgment that those pleas alleged, first, an infringement of Article 81(1) EC and Article 53 of the EEA Agreement, second, an infringement of Article 25 of Regulation No 1/2003 and, third, errors of law in the calculation of the fine.
Next, it is apparent from the judgment in Mitsubishi Electric v Commission that, in support of the form of order which it sought, Mitsubishi had raised five pleas which the General Court summarised as follows in paragraph 27 of that judgment:
The General Court rejected all of Mitsubishi’s pleas in its main application for annulment of the contested decision in so far it concerned it and TM T&D Corp. (‘TM T&D’) - a company in which Mitsubishi and Toshiba hold equal shares - and thus confirmed that those companies had committed an infringement, as was found in the contested decision.
However, in paragraphs 264 to 280 of the judgment in Mitsubishi Electric v Commission, in the context of the examination of the fifth plea raised by Mitsubishi in support of its action, the General Court held that the Commission had infringed the principle of equal treatment in calculating the starting amounts of the fines of the Japanese producers on the basis of their global sales of GIS for 2001, whereas it used 2003 as the reference year for the European producers. The General Court concluded from this that Article 2(g) and (h) of the contested decision had to be annulled in so far as it concerned Mitsubishi and that the action had to be rejected as to the remainder.
Finally, in so far as concerns the judgment in Toshiba v Commission, it is apparent from paragraph 26 of that judgment that, in support of the form of order which it sought, Toshiba relied on four pleas in law alleging, first, that, in the contested decision, the Commission did not establish to the requisite standard the existence of a common understanding, second, that the Commission did not establish a single and continuous infringement, third, that its rights of defence were infringed and, fourth, that the Commission wrongly imposed a fine on it.
By that judgment, the General Court rejected the three pleas raised by Toshiba in support of its main application seeking the annulment of the contested decision in so far as it concerned it, and thus confirmed that that company had committed an infringement, as had been found in the contested decision.
However, in paragraphs 280 to 293 of the judgment in Toshiba v Commission, in the context of the examination of the fourth plea, the General Court held that the Commission had infringed the principle of equal treatment in calculating the starting amounts of the fines of the Japanese producers on the basis of their global sales of GIS for 2001, whereas it used 2003 as the reference year for the European producers. The General Court concluded, as it did in the judgment in Mitsubishi Electric v Commission, that Article 2(h) and (i) of the contested decision had to be annulled in so far as it concerned Toshiba and that the action had to be dismissed as to the remainder.
Taking note of the judgments in Mitsubishi Electric v Commission and Toshiba v Commission, on 27 June 2012 the Commission adopted Decision C(2012) 4381, amending Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and Article 53 of the EEA Agreement to the extent that it was addressed to Mitsubishi Electric Corp. and Toshiba Corp., a summary of which has been published in the Official Journal of the European Union (OJ 2013 C 70, p. 12) (‘the contested decision as amended’). Pursuant to the contested decision as amended, the Commission imposed fines on Mitsubishi and Toshiba, in the amount of EUR 74 817 000 and EUR 56 793 000 respectively, in respect of the infringements for which each of those companies was individually liable, and EUR 4 650 000 on the same two companies in respect of the infringements in respect of which they were found to be jointly and severally liable.
By two actions brought before the General Court on 12 September 2012 (Cases T‑404/12 and T‑409/12), which are currently pending before that court, Mitsubishi and Toshiba requested the annulment of the contested decision as amended.
By its appeal, Siemens claims that the Court of Justice should:
By its appeal, Mitsubishi claims that the Court should:
By its appeal, Toshiba claims that the Court should:
The Commission contends that the Court should:
The EFTA Surveillance Authority (‘the Authority’), which was granted leave, by order of the President of the Court of Justice of 16 April 2012, to intervene in support of the form of order sought by the Commission in Case C‑239/11 P, requests the Court to dismiss the appeal in that case.
The parties, the Judge‑Rapporteur and the Advocate General having been heard on the issue, Cases C‑239/11 P, C‑489/11 P and C‑498/11 P were joined for the purposes of the judgment by decision of the President of the Fourth Chamber, taken pursuant to Article 54 of the Rules of Procedure of the Court.
Siemens raises seven grounds for annulment in support of its appeal, alleging respectively:
In support of its appeal before the Court of Justice, Mitsubishi raises two grounds for annulment. The first alleges significant errors of law committed by the General Court when assessing the evidence relating to the existence of the common understanding, and comprises seven branches, alleging respectively that the General Court:
In support of its appeal, Toshiba raises four grounds for annulment, alleging, respectively, that the General Court committed errors of law in finding:
By the first part of the second ground in support of its appeal, Siemens complains that the General Court distorted the evidence in finding, in paragraph 183 of the judgment in Siemens v Commission, that the statements of the main incriminating witness, Mr M., concerning the issue of Siemens’s participation in the cartel from 22 April 1999 to 1 September 1999 were not contradictory. Yet, it is apparent from paragraphs 181 and 182 of that judgment that, in reality, the statements at issue were equivocal, ambivalent and contradictory.
By the second part of that ground of appeal, Siemens submits that the General Court clearly infringed ‘principles derived from experience’ in finding, in paragraph 183 of the judgment in Siemens v Commission, that the evolution over time of Mr M.’s statements was a result of the fact that they simply became more and more specific over time as Mr M. remembered increasingly specific details. In accordance with established knowledge relating to the functioning of the memory and the psychology of witnesses, it is in fact indisputable that memories do not become stronger over time, but in fact become weaker.
By the third part of the second ground in support of its appeal, Siemens submits that, in finding, in paragraph 70 of the judgment in Siemens v Commission, that Mr M. could not have, in contrast to ABB, a personal interest in maximising the infringing conduct of ABB’s competitors, the General Court infringed the ‘principle derived from experience’ that individuals from an undertaking which participated in the cartel may themselves have an interest in maximising such conduct and minimising their own liability, and thus distorted the evidence in question.
As the General Court rightly stated in paragraph 64 of the judgment in Siemens v Commission, it cannot be ruled out that ABB, as a candidate for leniency, might have felt inclined to maximise the significance of the infringing conduct which it was revealing, so as to harm its competitors on the market. There is such risk not only in relation to ABB’s statements, but also those of Mr M., since the General Court confirmed, in paragraph 69 of that judgment, that those statements did not constitute different and independent evidence.
Siemens argues that the result is that the General Court ultimately accepted the self‑regarding nature of Mr M.’s statements. However, such statements, if admitted as evidence of an infringement, should have been treated critically and with caution, since they were such as to jeopardise the fairness of the procedure, as guaranteed by Article 6(1) of the ECHR.
The Commission contends that this ground of appeal is admissible in its entirety, in so far as what Siemens actually seeks to achieve from it is a reexamination of the application lodged before the General Court, which goes beyond the jurisdiction of the Court. So far as concerns the substance, the Commission considers that the General Court cannot be accused of having distorted the wording of Mr M.’s witness statement in relation to the date Siemens temporarily withdrew from the cartel.
First of all, it must be borne in mind that, in an appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted 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 evidence adduced before the General Court has been distorted, the appraisal therefore does not constitute a point of law which is subject to review by the Court of Justice (Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 38 and the case‑law cited).
The jurisdiction of the Court of Justice to review the findings of fact by the General Court therefore extends, inter alia, to the substantive inaccuracy of those findings as apparent from the documents in the file, the distortion of the evidence, the legal characterisation of that evidence and the question whether the rules relating to the burden of proof and the taking of evidence have been observed (Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 39 and the case‑law cited).
By contrast, contrary to what Siemens maintains, the Court’s power of review in the context of an appeal cannot extend to the alleged infringement of purported principles derived from experience, such as those claimed by Siemens, concerning, inter alia, established knowledge relating to the functioning of the memory and the psychology of witnesses, or the fact that individuals from an undertaking involved in the cartel may themselves have an interest in maximising the unlawful conduct of competitors and minimising their own liability.
Review of an infringement of that nature requires a factual assessment which is fundamentally different from the marginal review which the Court carries out when an appellant complains, in a sufficiently detailed manner, that the General Court distorted the evidence.
It should be pointed out that, according to settled case-law, the distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, Case C‑260/09 P Activision Blizzard Germany v Commission [2011] ECR I‑419, paragraph 53 and the case‑law cited).
Consequently, the second and third parts of Siemens’s second ground of appeal must be rejected as inadmissible, in as much as they are based on an alleged infringement of principles derived from experience.
Next, it should be borne in mind that the review carried out by the Court in order to assess a ground of appeal alleging the distortion of evidence is restricted to ascertaining that, in relying on that evidence to make a finding that an undertaking participated in a cartel, the General Court did not manifestly exceed the limits of a reasonable assessment of that evidence. The task of the Court of Justice is not, therefore, to assess independently whether the Commission has established such participation to the requisite legal standard and thus discharged the burden of proof necessary to show that the rules of competition law were infringed, but to determine whether, in finding that that was actually so, the General Court misconstrued the evidence in a manner manifestly at odds with its wording (see, to that effect, Activision Blizzard Germany v Commission, paragraph 57).
In the present case, in so far as concerns the statements of ABB and Mr M., it cannot be claimed that paragraph 183 of the judgment in Siemens v Commission is vitiated by a distortion of the evidence. In reasoning its decision on the basis of those statements to reach the conclusion that Siemens participated in the cartel from 22 April 1999 to 1 September 1999, the General Court did not manifestly exceed the limits of a reasonable assessment of those statements, since its interpretation of that evidence was not manifestly at odds with its wording.
Finally, even if an interpretation of that evidence different from the General Courts were possible, the fact remains that the interpretation put forward by Siemens is not the only interpretation which is compatible with the wording of that evidence, and that the different interpretation adopted by the General Court does not reveal any distortion of their content or, in particular, any substantive inaccuracy (see, by analogy, Activision Blizzard Germany v Commission, paragraph 54).
In the light of the foregoing, the second ground of appeal raised by Siemens must be rejected as partly inadmissible and partly unfounded.
By its third ground of appeal, Siemens complains that the General Court rejected its arguments relating to the limitation period of the infringement in respect of the period prior to 22 April 1999.
It maintains that the General Court found there to be a single and continuous infringement solely by applying, in paragraphs 242 to 254 of the judgment in Siemens v Commission, the criteria listed in paragraph 241 of that judgment. In doing so, the General Court infringed the rules on limitation periods for actions, as laid down in Article 25 of Regulation No 1/2003.
Given that the second ground of appeal raised by Siemens has been rejected, the result, as rightly submitted by the Commission, is that the third ground of appeal raised by that appellant must also be rejected.
It is apparent from paragraphs 236 to 239 of the judgment in Siemens v Commission that the General Court rejected the plea based on the limitation period on the sole ground that the Commission had rightly found, in the contested decision, that the first stage of Siemens’s participation in the infringement did not end until September 1999, thus after 10 May 1999, that is to say five years prior to the day preceding the on‑site inspections carried out by the Commission on 11 and 12 May 2004.
However, since the second ground of appeal raised by Siemens, seeking to dispute its participation in the cartel in relation to the period from 22 April 1999 to 1 September 1999, has already been rejected, the ground of appeal concerning the plea based on the limitation period must, consequently, also be rejected.
Moreover, although, in the context of the third ground of appeal, Siemens criticises, in particular, paragraphs 242 to 254 of the judgment in Siemens v Commission concerning the existence of a single and continuous infringement, it must be found that, as can be seen in particular and clearly from paragraph 239 of that judgment, paragraphs 240 to 254 of that same judgment concern grounds included purely for the sake of completeness.
It is settled case-law that complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness cannot lead to the judgment being set aside and are therefore ineffective (see, inter alia, Case C‑96/09 P Anheuser‑Busch v Budějovický Budvar [2011] ECR I‑2131, paragraph 211 and the case‑law cited).
Consequently, the third ground of appeal raised by Siemens must be rejected as ineffective.
By the first part of its first ground of appeal, which concerns paragraphs 107 to 195 of the judgment in Mitsubishi Electric v Commission, Mitsubishi submits that the General Court distorted certain items of evidence relating to the existence of the common understanding.
It maintains, in that regard, first of all, that, in paragraphs 116 and 118 of that judgment, the General Court distorted the statements provided by Mr M. and other witnesses of ABB.
Second, in paragraphs 164 and 172 of the judgment in Mitsubishi Electric v Commission, Mitsubishi claims that the General Court distorted the evidence furnished by Hitachi in relation to the notification and project loading mechanism as indirect evidence of the existence of the common understanding.
Third, Mitsubishi submits that the General Court distorted the evidence furnished by Hitachi in relation to Alstom’s alleged proposal, at the meeting of 10 July 2002 and summarised in paragraph 140 of the judgment in Mitsubishi Electric v Commission, namely that ‘European suppliers should stay in Europe and the Japanese suppliers should stay in Japan and not attempt to penetrate the European market’ (‘the Alstom proposal’), in finding that Hitachi’s statement rejecting that proposal had to be interpreted as meaning that that undertaking did not reject the common understanding as such, but only its extension to central and eastern Europe.
Fourth, Mitsubishi claims that the General Court distorted other evidence in the file in that it found, in paragraphs 187 to 191 of the judgment in Mitsubishi Electric v Commission, that the Japanese producers had not participated in the EQ Agreement and that they were not aware of its existence, but none the less drew two contradictory and inadequately reasoned conclusions from those findings in paragraphs 187 and 189 of the same judgment.
The Commission contends that the first part of the first ground of Mitsubishi’s appeal must be rejected as inadmissible. In so far as they are admissible, the appellant’s arguments are either ineffective or unfounded.
By the second part of its first ground of appeal, Toshiba complains that the General Court distorted the evidence submitted to it for assessment in concluding that the witness statements produced by ABB and given by Mr Wi. and Mr P. constituted evidence of the existence of a common understanding.
Moreover, in the context of the first part of its second ground of appeal, Toshiba submits that the General Court distorted Hitachi’s rejection of the Alstom proposal in deciding, in paragraphs 153 and 154 of the judgment in Toshiba v Commission, that that evidence had to be interpreted as meaning that Hitachi had not rejected the very idea of allocating markets, but only the proposal to expand the common understanding to central and eastern European countries.
The Commission contends that the General Court’s interpretation of that evidence does not distort its content in any way, since it is manifestly a reasonable reading of it.
By the second part of its second ground of appeal, Toshiba submits that, in its assessment of several items of evidence furnished by the Commission to demonstrate the existence of the common understanding, the General Court relied on contradictory grounds. It claims that that was particularly the case for its assessment, in paragraphs 159, 160 and 206 of the judgment in Toshiba v Commission, that the EQ Agreement constituted indirect evidence of the common understanding and its assessment, made in paragraphs 184 and 206 of that judgment, that the statements of ABB and Hitachi relating to the notification and project loading mechanism also constituted indirect evidence of the common understanding.
The Commission disputes the contradictory nature of the grounds concerned.
It should be borne in mind at the outset that, within the limits described in paragraphs 42 and 44 above, the Court has jurisdiction, in the context of an appeal, to examine the substance of complaints alleging a distortion by the General Court of the evidence, provided that those complaints are developed in a sufficiently detailed manner. Second, it is settled case‑law that the question whether the grounds of a judgment of the General Court are contradictory or inadequate is a question of law which is amenable, as such, to review on appeal (Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 77 and the case‑law cited).
As regards, first of all, the alleged distortion by the General Court of the statements provided by Mr M. and other witnesses of ABB, which, it is claimed, is apparent from the considerations set out in paragraphs 116 and 118 of the judgment in Mitsubishi Electric v Commission, it must be found that Mitsubishi merely criticises two particular assessments made by the General Court, which concern the probative value of only Mr M.’s witness statement.
However, those paragraphs form part of a detailed evaluation, made by the General Court in paragraphs 107 to 128 of that judgment, of the probative value of a bundle of evidence furnished by ABB, in particular statements made by that undertaking, including its statement of 11 March 2004, and by four other witnesses, employees or former employees of that undertaking, namely Mr M., Mr Wi., Mr P. and Mr V.-A.
Following that evaluation, the General Court concluded, first, that the four witness statements provided by ABB were such as to prove the existence of the common understanding and were coherent in so far as concerns the existence and fundamental content of the common understanding and, second, that those witness statements were credible and, consequently, of high probative value.
Moreover, the two particular assessments of the probative value of the witness statement of Mr M. which is criticised by Mitsubishi, even if they were removed and analysed out of context, as noted in paragraph 69 above, do not show that the General Court distorted that witness statement in any way.
First of all, as regards paragraph 116 of the judgment in Mitsubishi Electric v Commission, the General Court essentially found in that paragraph, without manifestly distorting the wording of Mr M.’s witness statement as set out in the administrative file, that its probative value could not be called into question as a result of the fact that Mr M. was not present when the common understanding was concluded or because the subject of that understanding had not been discussed at one of the meetings at which he had been present.
The General Court substantiated its point of view on the basis, first, of the consideration that a witness is perfectly able to furnish evidence of a long-standing phenomenon even if he was not present at its inception and, second, of Mr M.’s witness statement, pursuant to which the issue of the common understanding had not been referred to explicitly at the meetings which he had attended, because the content of the common understanding was understood, accepted and implemented by the participants to the cartel without the need for any explicit discussion in that regard.
In coming to that conclusion, the General Court did not manifestly exceed the limits of a reasonable assessment of Mr M.’s witness statement and, consequently, did not distort that evidence.
That conclusion is all the more compelling when account is taken of the General Court’s grounds, set out in paragraph 115 of the judgment in Mitsubishi Electric v Commission, in the light of which the particular considerations criticised in paragraph 116 of that judgment are of secondary importance. Indeed, in paragraph 115 of that judgment, the General Court substantiated the probative value of Mr M.’s witness statement by the fact that he had been one of ABB’s representatives in the cartel between 1988 and 2002, that is during almost its entire duration, at which time ABB itself was one of the main operators within it, with the result that Mr M. had to be considered to be a direct and privileged witness of the matters which he disclosed in his witness statement.
Moreover, by submitting that the General Court should have concluded from this that Mr M.’s witness statement had no probative value in relation to the creation, existence or implementation of the common understanding, Mitsubishi is, in reality, contesting the General Court’s assessment of the probative value of that evidence.
However, since such arguments cannot be analysed as constituting a complaint alleging a distortion of, or failure to have regard to, the rules on the burden of proof and the taking of evidence, they must be rejected as inadmissible (see, to that effect, Sumitomo Metal Industries and Nippon Steel v Commission, paragraphs 56 and 57 and the case‑law cited).
Next, in so far as concerns paragraph 118 of the judgment in Mitsubishi Electric v Commission, Mitsubishi is also wrong to submit that, in that paragraph, the General Court distorted the wording of Mr M.’s witness statement in considering that that statement contained information on the duration of the common understanding, its content and the participants thereto.
In coming to that conclusion, the General Court did not distort that witness statement, since its assessment was not manifestly contrary to the content of that statement, as summarised in the following terms in paragraph 117 of the judgment in Mitsubishi Electric v Commission, and of which Mitsubishi makes no criticism:
At this stage, it is also necessary to reject the complaint raised by Toshiba in the context of its first ground of appeal, alleging that the General Court distorted, in its assessment, other witness statements provided by ABB, namely those submitted by Mr Wi. and Mr P.
Even supposing, as stated by Toshiba, that those two witnesses participated in meetings relating to the cartel in the GIS sector only for an 18‑month, or one‑year, period, and that the common understanding was not mentioned during those meetings, it is not apparent, contrary to what Toshiba maintains, that the General Court distorted the content of those witness statements in concluding, in paragraphs 130 and 131 of the judgment in Toshiba v Commission, that the evidence furnished by ABB, of which those two witness statements form part, was coherent in that the existence of the common understanding is referred to therein.
In drawing that conclusion, the General Court relied, in paragraph 128 of the judgment in Toshiba v Commission, on the following assessment of the content of the witness statements of Mr Wi. and Mr P.:
It must be found that no distortion of the wording of those two witness statements is apparent from the General Court’s assessment.
Second, in so far as concerns the complaint alleging a distortion of the evidence furnished by Hitachi concerning the notification and project loading mechanism, it should be noted that, following an examination, in paragraphs 156 to 174 of the judgment in Mitsubishi Electric v Commission, of a bundle of evidence relating to that mechanism, the General Court concluded, in paragraph 175 of that judgment, that the regular notification to the group of Japanese producers of certain GIS projects in the EEA after their allocation and the loading of those projects into the joint ‘European’ quota, provided for in the GQ Agreement, had been established in so far as concerned the period from 1988 to Hitachi’s withdrawal from the cartel in 1999 by ABB’s statements, those of Hitachi and Mr M.’s witness statement and that, in addition, that mechanism constituted indirect evidence of the existence of the common understanding.
In its analysis, the General Court also rejected, in paragraph 161 of the judgment in Mitsubishi Electric v Commission, certain items of evidence relied on by the Commission as being irrelevant as proof of that mechanism. The same is true of certain lists provided by ABB. Mitsubishi cannot, therefore, rely on such evidence, in the context of the present appeal, to challenge the assessment made by the General Court in relation to the probative value of other evidence in the file.
In paragraph 162 of that judgment, the General Court even rejected as irrelevant some of Hitachi’s statements and the Commission’s argument alleging an information communication mechanism provided for in Annex 2 to the EQ Agreement.
First, Mitsubishi criticises specifically paragraph 172 of the judgment in Mitsubishi Electric v Commission on the ground that, according to its wording, the General Court admitted that ABB’s and Hitachi’s statements did not mention regular and compulsory notification, but none the less considered that it was clear from the wording used in the documents concerned that notification was carried out regularly and applied to all of the participants and projects concerned.
Mitsubishi submits that the General Court distorted the evidence in drawing such a conclusion from it.
In the context of its second ground of appeal, Toshiba criticises paragraph 184 of the judgment in Toshiba v Commission, the wording of which is identical to that in paragraph 172 of the judgment in Mitsubishi Electric v Commission, by submitting that that paragraph of the judgment in Toshiba v Commission is based on contradictory grounds, with the result that the General Court could not rely on the evidence at issue as indirect evidence of the existence of the common understanding.
In that regard, it must be found that, in those paragraphs of the judgments under appeal concerned, the General Court stated that the issue of the regularity of the GIS project notification was not addressed explicitly in ABB’s and Hitachi’s statements or in Mr M.’s witness statement, but that it was clear from the wording used in the documents concerned that notification was carried out regularly and applied to all of the participants and projects concerned.
However, those two findings do not contradict one another, since there is nothing preventing the subject concerned, even if it is not expressly addressed in the documents at issue, from emerging implicitly from them and, consequently, through their interpretation. In addition, neither Mitsubishi nor Toshiba shows in any way how that assessment on the part of the General Court was based on a distortion of the actual wording of the documents at issue.
Consequently, the respective complaints of Mitsubishi and Toshiba concerning the assessment of that evidence must be rejected.
Moreover, in so far as concerns Mitsubishi’s complaint alleging a distortion in relation to paragraph 164 of the judgment in Mitsubishi Electric v Commission, in that the General Court wrongly held therein, in Mitsubishi’s view, that, in its response to the statement of objections, Hitachi had explicitly confirmed the existence of the notification and project loading mechanism alleged by the Commission until 1999, it must be found that the General Court arrived at that conclusion by reiterating, in paragraph 163 of that judgment, the content of that statement. It is not disputed that that reiteration is consistent with the wording set out in recital 130 of the contested decision.
In paragraph 163 of that judgment, the General Court summarised that statement as follows:
In considering, in paragraph 164 of the judgment in Mitsubishi Electric v Commission, that, by that statement, Hitachi had expressly confirmed the existence of the notification and project loading mechanism - referred to by the Commission - until 1999, the General Court did not read that statement in a manner which was manifestly contrary to its wording, as summarised in paragraph 163 of that judgment. Consequently, the General Court did not distort the meaning of that statement.
Third, as regards the complaint alleging a distortion of Hitachi’s statement relating to the Alstom proposal, that part of the file is summarised in paragraph 140 of the judgment in Mitsubishi Electric v Commission as follows:
Although, as the General Court also observes in paragraph 141 of the judgment in Mitsubishi Electric v Commission, that summary, which is moreover not criticised as such by Mitsubishi, may, at first sight, be understood as meaning that, by its statement, Hitachi rejected the proposal to conclude a new understanding, with the result that, at least as of July 2002, there was no market‑sharing agreement, the General Court ultimately opted for an alternative interpretation of that document, namely that the Alstom proposal concerned only the extension of the common understanding to central and eastern European countries, meaning that Hitachi’s rejection related only to that extension and not the common understanding as such.
It is apparent from paragraphs 142 and 143 of the judgment in Mitsubishi Electric v Commission that the General Court substantiated that interpretation by considering, in essence, that it was clear from that summary, first, that Hitachi merely rejected the Alstom proposal and not the idea itself of market sharing and, second, that Hitachi itself had stated that the claims of the European producers included central and eastern Europe. It is equally evident from those paragraphs of the judgment under appeal that the General Court also took account of the consideration that, if, as Mitsubishi claimed, the Japanese producers were not perceived by the European producers as credible competitors on the EEA market, the latter would not have been inclined in any case to propose a market share covering both the EEA market and the central and eastern European markets.
In finding as it did, the General Court did not read that summary in a manner which was manifestly contrary to its wording.
Moreover, as stated by the Commission, the, at the very least, reasonable nature of that interpretation is confirmed by the fact that that summary, which is set out in recital 127 of the contested decision, is situated in a more general context in that part of the decision, namely that concerning the perspective, as of 2002, of integrating the central and eastern European markets into the western European markets, although, traditionally, the latter were regarded by European producers as belonging to them, which, in the long run, was likely to give rise to controversy, especially since, in the past, certain Japanese producers had carried out economic activities in central and eastern European countries.
Consequently, the complaint alleging a distortion of Hitachi’s statement relating to the Alstom proposal must be rejected. Since Toshiba has essentially raised the same complaint in the context of the first part of its second ground of appeal, that ground of appeal must also be rejected on the same grounds.
Fourth, in so far as concerns the allegation of a distortion in relation to paragraphs 187 and 189 of the judgment in Mitsubishi Electric v Commission, it must be noted, first, in relation to the first of those paragraphs, that that paragraph seeks specifically to respond to an argument raised by Mitsubishi and which is reproduced in paragraph 178 of that judgment.
By that argument, Mitsubishi submitted that the fact that the EQ Agreement provided that only the European producers were to submit supporting bids for European GIS projects showed that the European customers would not have regarded bids submitted by the Japanese producers as credible.
In paragraph 187 of the judgment in Mitsubishi Electric v Commission, the General Court responded to that argument by deciding that such a conclusion in relation to the credibility of bids submitted by the Japanese producers could not be drawn from Article 6(4) of the EQ Agreement since that agreement did not concern the Japanese producers.
That assessment cannot be called into question in the context of this appeal by Mitsubishi’s argument that the General Court wrongly held that such bids were credible since, over a 16‑month period, the European customers did not ask the Japanese producers for any bids and did not question the absence of such bids. Such an argument is inadmissible on appeal, since it directly calls into question an assessment of the facts made by the General Court and relies on certain findings of facts, the accuracy of which is not for the Court to verify and which are of no relevance in demonstrating that a document in the case file has been distorted.
Second, as regards the complaint alleging a distortion of the evidence by the General Court, inferred from the considerations set out in paragraph 189 of the judgment in Mitsubishi Electric v Commission, it is first necessary to place that paragraph into context.
That paragraph forms part of the reasoning, in paragraphs 188 to 191 of that judgment, following which the General Court concluded that, since it was not proven that the mechanism of notification of certain European GIS projects to the Japanese producers, as provided for in point 4 of part ‘E (E-Members)’ of Annex 2 to the EQ Agreement, had been implemented or was known to the Japanese producers, it constituted merely an indication that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA.
By contrast, in paragraph 170 of that judgment, the General Court held that, although it could be concluded that that mechanism constituted such an indication of credibility, it was, by its very nature, different from the notification and project loading mechanism relied on by the Commission as indirect evidence of the existence of the common understanding and was, consequently, not relevant as evidence of that same mechanism.
The General Court based that conclusion relating to the credibility of the Japanese producers as competitors of the European producers for the provision of certain GIS projects in the EEA on the European markets in considering, in paragraphs 188 and 189 of the judgment in Mitsubishi Electric v Commission, that the possibility for the European producers to notify the Japanese producers of the existence of certain GIS projects prior to their allocation, as provided for in that clause of the EQ Agreement, made it possible to dismiss, to a certain extent, Mitsubishi’s argument that the Japanese producers were not perceived as credible competitors on the European markets.
Contrary to what Mitsubishi submits, it is clear from those considerations that the General Court assessed the evidence in a way which did not in fact distort its wording.
Still in relation to the notification mechanism provided for in the EQ Agreement, Toshiba submits, for its part, in the context of the second part of the second ground in support of its appeal, that the General Court adopted a contradictory position since it held, first, in paragraphs 159 and 160 of the judgment in Toshiba v Commission, that that agreement did not constitute an indication of how the European undertakings perceived their Japanese counterparts, which suggests that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA and, second, in paragraph 206 of that judgment, that the same agreement constituted indirect evidence of the existence of the common understanding.
That argument must be rejected.
It is true that the General Court held, first, that the notification mechanism provided for in the EQ Agreement could be regarded as an indication that the Japanese producers were perceived by their European counterparts as credible competitors for the provision of certain GIS projects in the EEA and, secondly, that, for that reason, that indication could be relied on, in the same way as the notification and project loading mechanism referred to in ABB’s and Hitachi’s statements, as indirect evidence of the existence of the common understanding.
However, those grounds are not contradictory, since, as the General Court considered in paragraph 206 of the judgment in Toshiba v Commission, the notification mechanism provided for in the EQ Agreement, in that it confirms that the Japanese producers were perceived as credible competitors for certain GIS markets in the EEA, suggests that the Japanese producers had committed not to enter the European market in exchange for a larger share of the GIS projects in other regions of the world.
Therefore, the first part of Mitsubishi’s first ground of appeal in support of its action and the relevant parts of the two first grounds of Toshiba’s appeal must be rejected.
By the second part of the first ground in support of its appeal, Mitsubishi complains that the General Court failed to apply the correct criteria for assessing the evidence and erroneously applied the case‑law principle that statements which run counter to the interests of the declarant must, in principle, be regarded as particularly reliable.
First, Mitsubishi complains that the General Court distorted, in paragraph 78 of the judgment in Mitsubishi Electric v Commission, the arguments by which it submitted that, in cases in which only oral evidence or company statements support the existence of the alleged infringement, although that infringement is denied by various other sources, and even the oral witness statements which support the existence of that infringement are incoherent and contradictory, the latter should not be regarded as established to the requisite legal standard.
Second, Mitsubishi submits that, in deciding, in paragraph 108 of the judgment in Mitsubishi Electric v Commission, that the statements made in the context of an application for leniency tend to be more reliable when they run counter to the interests of the declarant, the General Court misapplied the case‑law principles at issue, since statements made during immunity or leniency proceedings do not necessarily run counter to the declarant’s own interests.
In particular, it claims that Mr M.’s statements regarding the existence of the common understanding, rather than running counter to his interests, were favourable to ABB, since they consolidated the Commission’s case and, consequently, that company’s application for immunity.
Third, Mitsubishi complains that the General Court concluded, in paragraph 192 of the judgment in Mitsubishi Electric v Commission, that the Commission did not err in considering that the statements and witness statements of ABB, the statements of Fuji relating to the existence of the common understanding and the statements of Hitachi relating to the notification and project loading mechanism had to be regarded as being of a higher probative value than the statements of Siemens, Mitsubishi, Toshiba, Hitachi and VA Tech denying the existence of the common understanding.
In that regard, it submits that the General Court, first of all, did not explain why it was necessary not to attribute any probative value to the statements denying the existence of the common understanding made in the context of a leniency application, even though the undertakings at issue had the same interest as ABB in not compromising their status as applicants for leniency by providing inaccurate information.
Next, in so far as concerns Fuji’s statements relating to the common understanding, Mitsubishi claims that the General Court was wrong to find, in paragraph 135 of the judgment in Mitsubishi Electric v Commission, that those statements ran counter to the interests of that company. It claims that, in its statements, Fuji did not admit to having participated in the common understanding. It simply stated that the common understanding existed but that it concerned only the other Japanese producers, possibly with a view to being granted leniency in accordance with its own application.
Finally, it summits that the General Court was wrong to find, in paragraph 164 of the judgment in Mitsubishi Electric v Commission, that Hitachi’s statements regarding the notification and project loading mechanism were of high probative value since, first, they ran counter to its interests and constituted incriminating evidence and, second, Hitachi was not aware of the inferences which could be made from those statements. The deliberate and conscious acknowledgement of responsibility on the part of an undertaking making a declaration relating to unlawful conduct forms an integral part of the principle of statements which run counter to the interests of the declarant.
The Commission contends that the first part of the first ground of Mitsubishi’s appeal must be rejected as inadmissible. In so far as they are admissible, the appellant’s arguments are either ineffective or unfounded.
By the third part of the first ground which it raises in support of its appeal, Toshiba submits that, in holding, in paragraphs 197 and 198 of the judgment in Toshiba v Commission, that the statements made by Siemens, Mitsubishi and Hitachi denying the existence of the common understanding were less credible than the evidence to the contrary furnished by ABB, the General Court relied on contradictory and insufficient grounds, which thus vitiate its judgment by an error of law.
It claims that, after having defined, in paragraph 93 of the judgment in Toshiba v Commission, six criteria for assessing the reliability of witness statements, the General Court then failed to apply those criteria to the statements of the employees of Siemens, Mitsubishi and Hitachi, but merely affirmed, so as to dismiss their probative value, that those witness statements did not run counter to the interests of the undertakings which produced them.
The Commission contends that the General Court correctly applied the principles relating to the probative value of evidence by duly taking account of the fact that, contrary to ABB’s statements, those made on behalf of Siemens, Mitsubishi and Hitachi, denying the existence of the infringement, did not run counter to the interests of those undertakings.
The Court notes, at the outset, that the principle which prevails in European Union law is that of the unfettered evaluation of evidence, from which it results, first, that, where evidence has been obtained lawfully, its admissibility cannot be contested before the General Court and, second, that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility (see, to that effect, Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraphs 49 and 63).
Moreover, the appraisal by the General Court of the probative value of the documents submitted to it cannot, save where the rules on the burden of proof and the taking of evidence have not been observed or the evidence has been distorted, be challenged before the Court of Justice (see, inter alia, Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 56 and the case‑law cited).
By contrast, the question whether the General Court observed the rules relating to the burden of proof and the taking of evidence in its examination of the rules relied on by the Commission to support the existence of an infringement of the competition rules of the European Union constitutes a question of law which is amenable to judicial review on appeal (see, to that effect, Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 40).
As regards, first, the complaint alleging a distortion of Mitsubishi’s arguments in paragraph 78 of the judgment in Mitsubishi Electric v Commission, it must be found that that paragraph forms part of the General Court’s reasoning in which it responded to a series of arguments raised by Mitsubishi seeking to demonstrate that, in establishing its participation in the infringement, the Commission infringed the rules on the taking of evidence and the burden of proof on the ground that only oral evidence of such participation existed, which, moreover, stemmed from undertakings which had applied for leniency, and that that evidence was also discredited by other evidence or was incoherent or contradictory.
Taking account of the principles set out in paragraphs 128 to 130 above, it must be found that the General Court responded adequately to those arguments without committing any error of law.
On the one hand, the General Court was right, first of all, in paragraphs 75 and 76 of the judgment in Mitsubishi Electric v Commission, to recall the principles governing the burden of proof and the taking of evidence which it applied:
On the other hand, in paragraph 78 of that judgment, the General Court responded, equally without committing an error of law, to the more specific complaint raised by Mitsubishi that, given the statements obtained in the context of the leniency notice, it was no longer necessary to grant the Commission discretion in relation to the assessment of evidence, by deciding that:
Among the criteria in the case‑law to which the General Court refers, mention should be made of the one, rightly pointed out in paragraphs 84 and 89 of the judgment in Mitsubishi Electric v Commission, pursuant to which a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, though the ‘degree of corroboration required’ may be less in view of the reliability of the statements at issue.
Second, in so far as concerns the criticism of the considerations in paragraph 108 of the judgment in Mitsubishi Electric v Commission, the General Court did not err in law in finding that it could not be considered that the evidence furnished by ABB, and in particular Mr M.’s statements relating to the existence of the common understanding, was not capable of damaging that undertaking.
In that regard, Mitsubishi does not dispute the principle that high probative value must be granted to the statements which run counter to the interests of the undertakings on behalf of which they were made, but merely submits that, in this instance, the General Court misapplied that principle.
However, the General Court righty stated, in paragraph 107 of the judgment in Mitsubishi Electric v Commission, that, although it is possible that the representative of an undertaking which has applied for leniency may submit as much incriminating evidence as possible, the fact remains, as is correctly stated in paragraphs 88 and 89 of that judgment, that such a representative will also be aware of the potential negative consequences of submitting inaccurate information, which could, inter alia, lead to a loss of immunity after it has been granted. Moreover, the General Court was also correct to point out that the risk of the inaccurate nature of those statements being detected and leading to those consequences is increased by the fact that such statements must be corroborated by other evidence.
In so far as concerns the specific acknowledgement by ABB of its participation in the common understanding, such acknowledgement was clearly likely to run counter to the interests of that company, since it constitutes evidence which may be used against it by the Commission as a party which participated in the infringement, as is apparent from paragraph 108 of the judgment in Mitsubishi Electric v Commission.
More generally, the Court has already had the opportunity to point out that a statement made by a person acting in the capacity of a representative of a company and admitting the existence of an infringement by that company entails considerable legal and economic risks (Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 103).
Among those risks is that of actions for damages being brought before the national courts, in the context of which the Commission’s establishment of a company’s infringement may be invoked.
The potentially harmful nature for ABB of Mr M.’s statements cannot, moreover, be called into question by an argument, such as that raised by Mitsubishi, seeking to demonstrate that, in practice, ABB did not need to fear losing its immunity if it were to be found that the purported evidence which it had furnished was in fact distorted or misleading.
By such an argument, Mitsubishi is in fact inviting the Court to evaluate facts, which is beyond its jurisdiction in the context of an appeal.
Third, in so far as concerns the complaint raised by Mitsubishi against paragraph 192 of the judgment in Mitsubishi Electric v Commission, the Court notes, first of all, that, contrary to what Mitsubishi submits, in paragraphs 193 and 194 of that judgment, the General Court substantiated its finding that lower probative value had to be granted to the statements made by Siemens, Mitsubishi, Toshiba, Hitachi and VA Tech than to ABB’s statements and witness statements, Fuji’s statements on the common understanding and Hitachi’s statements on the notification and project loading mechanism.
In those paragraphs, the General Court considered, without committing any error of law, that, unlike the statements and witness statements of ABB, Fuji and Hitachi, the statements of Siemens, Mitsubishi, Toshiba, Hitachi and VA Tech respectively were not contrary to the interests of those undertakings, since they sought to contest the existence of any infringement, but it could not be considered that those undertakings had no interest in contesting the existence of the common understanding.
It also follows that, contrary to what Toshiba submits in the third part of its first ground in support of its appeal, by its approach the General Court applied, in the context of the assessment of the probative value of those statements, a criterion which it deemed to be particularly relevant in relation to them, which is, moreover, entirely appropriate when applying the European Union law principle of the unfettered evaluation of evidence, referred to in paragraph 128 above. Consequently, the grounds relied on by the General Court are not contradictory in that respect.
Next, in so far as concerns the complaint regarding paragraph 135 of the judgment in Mitsubishi Electric v Commission, alleging that the General Court wrongly considered that Fuji’s statement relating to the common understanding ran counter to its interests, the Court considers it to be an assessment of a piece of evidence by the General Court that is in principle unfettered.
In basing that assessment on the nuanced consideration that, by that statement, Fuji admitted, at least indirectly, that its absence from the European market was in part due to the common understanding and thus acknowledged a fact which could have been used against it by the Commission, the General Court did not distort that evidence either.
Finally, as regards the criticism of paragraph 164 of the judgment in Mitsubishi Electric v Commission, the Court finds that the General Court did not err in law in finding, in that paragraph, that the probative value of Hitachi’s statement was high, inter alia, because it ran counter to the interests of that company, since it implied the existence of a link between the collusive activities within the EEA and the Japanese producers and constituted, as a result, incriminating evidence.
Contrary to what Mitsubishi submits, that finding cannot be called into question by the fact, also referred to by the General Court, that, on reading that evidence, Hitachi was not aware of inferences which could have been made from that statement. That finding, although capable of explaining why Hitachi made that statement, reinforces its probative value, as the General Court rightly noted in paragraph 164 of the judgment in Mitsubishi Electric v Commission, since, irrespective of the fact that it ran counter to Hitachi’s interests, it confirms that that undertaking set out the facts therein as they happened, without seeking to manipulate them so as to draw the most favourable consequences for it.
Therefore, the second part of Mitsubishi’s first ground and the third part of Toshiba’s first ground raised in support of their respective appeals must be rejected.
By the third part of its first ground of appeal, which concerns paragraphs 118 and 128 of the judgment in Mitsubishi Electric v Commission, Mitsubishi complains that the General Court misconstrued the principles relating to the assessment and weighting of evidence by considering Mr M.’s witness statement to be of high probative value as evidence demonstrating the existence of the common understanding.
By those considerations, it argues, the General Court misapplied the six criteria resulting from its own case‑law and, in particular, from Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] (ECR II‑2501, paragraphs 205 to 210) (‘the six JFE Engineering criteria’), reiterated in paragraph 87 of the judgment in Mitsubishi Electric v Commission in the following terms:
Mitsubishi considers that, in the light of the six JFE Engineering criteria, Mr M.’s statements could be regarded as being of only weak probative value.
The Commission contends the substance of that argument, submitting, inter alia, that the six JFE Engineering criteria laid down can be explained by the circumstances of the case which gave rise to that judgment. Moreover, the assessment of the probative value of the evidence at issue as made by the General Court cannot be criticised, especially in the light of the principle of the unfettered evaluation of evidence.
By the first part of its first ground which it raises in support of its appeal, Toshiba submits that the General Court relied on contradictory and insufficient grounds in concluding that Mr M.’s witness statement was credible and of high probative value and, consequently, was capable of proving the existence of the common understanding.
It claims that the General Court accepted, in paragraph 93 of the judgment in Toshiba v Commission, the relevant legal basis for assessing the credibility of Mr M.’s witness statement, namely the six JFE Engineering criteria, but then misapplied those criteria to that witness statement in that four of the six criteria concerned were not established.
The Commission contends that that argument is inadmissible in the context of an appeal, since it seeks to have the Court re‑examine a finding of fact, namely the credibility of Mr M.’s witness statement, without showing that the General Court distorted any evidence in its assessment. In any event, it claims that argument is unfounded.
Mitsubishi and Toshiba call into question the probative value accorded by the General Court to one of the items of evidence furnished by ABB, as put forward in the contested decision to show the existence of the common understanding, namely the witness statement of Mr M., a former employee of ABB.
They consider, in essence, that the General Court committed an error of law in deeming that witness statement to be of high probative value, whereas it admitted or, at least, should have admitted that that witness statement did not satisfy some, or the majority, of the six JFE Engineering criteria which the General Court purported to apply.
In that regard, it must be found, as a preliminary point, that the General Court concluded, following a detailed assessment of Mr M.’s witness statement, first, that that witness statement, just like the coherent statements submitted by ABB’s employees, namely Mr Wi., Mr P. and Mr V.-A, was capable of proving both the existence and the fundamental content of the common understanding, even if it needed to be corroborated by other evidence and, second, that those four witness statements needed to be regarded as being of high probative value.
As regards, first of all, the wording of Mr M.’s witness statement, it must be found that Mitsubishi and Toshiba do not make any submissions capable of showing that the General Court distorted that statement in finding that it confirmed the existence and the fundamental content of the common understanding.
In so far as concerns, second, the ‘high probative value’ accorded by the General Court to that witness statement, as has already been referred to in paragraph 128 above, given that the prevailing principle under European Union law is that of the unfettered evaluation of evidence, the only relevant criterion for the purpose of assessing the evidence adduced relates to its credibility, as also rightly pointed out by the General Court in paragraph 85 of the judgment in Mitsubishi Electric v Commission and paragraph 91 of the judgment in Toshiba v Commission.
Although it is true that, in the introductory part - which is common to both - of the judgments in Mitsubishi Electric v Commission and Toshiba v Commission, the General Court also noted that ‘particularly high probative value’ could be recognised to a witness statement which satisfies the six JFE Engineering criteria, the fact remains that it did not subsequently refer to that criteria in its specific assessment of Mr M.’s witness statement and did not, moreover, just apply those criteria in a mechanical fashion.
On the contrary, following an overall and concrete assessment of the credibility of Mr M.’s witness statement, the General Court considered that, since the statements of the four witnesses at issue came from direct witnesses and it was not apparent from the circumstances reported by those witnesses that they were motivated to submit inaccurate information, they had to be regarded as being of high probative value.
In ruling to that effect, the General Court did not misconstrue the rules on the burden of proof and the taking of evidence, or manifestly distort the wording of Mr M.’s witness statement.
Moreover, even supposing that, in the case at hand, some of the six JFE Engineering criteria were not satisfied, the General Court was able to regard Mr M.’s witness statement as being of high probative value, since, following an overall and concrete assessment of the reliability of that witness statement, it concluded that it was credible, while stating that that evidence still needed to be corroborated by other evidence.
As rightly pointed out by the Commission, the present case differs from that in JFE Engineering v Commission, in which the General Court recognised particularly high probative value to a witness statement which satisfied the six JFE Engineering criteria, which could justify the fact that that witness statement was sufficient to establish certain elements of the infringement and that there was less justification to require that witness statement to be corroborated by other evidence.
As regards, more specifically, the consideration - deemed crucial by the General Court - that Mr M. had to be regarded as ‘a direct and privileged witness of the facts which he disclosed’, it must be found that the General Court could justify such an assessment without distorting the evidence, on the basis of the factual finding, set out in paragraph 115 of the judgment in Mitsubishi Electric v Commission and paragraph 121 of the judgment in Toshiba v Commission, that ‘Mr M. was one of ABB’s representatives in the cartel between 1988 and 2002, that is during almost its entire duration, at which time ABB itself was one of the main operators’.
It has already been held in paragraphs 72 and 73 above that the General Court did not commit an error of law, in paragraph 116 of the judgment in Mitsubishi Electric v Commission and in paragraph 122 of the judgment in Toshiba v Commission, in finding that the probative value of that witness statement could not be called into question by the fact that Mr M. was not present when the common understanding was concluded, or the fact that the subject‑matter of the common understanding was not raised specifically at one of the meetings at which he was present.
It follows that the General Court was able to attach particular importance to the fact that Mr M. was not only a direct witness but also a privileged one in respect of the facts which he disclosed, namely those relating to the existence and fundamental content of the common understanding.
Next, it must be found, contrary to what Mitsubishi and Toshiba submit, that the General Court took due account, in its assessment of the credibility of Mr M.’s witness statement, of the fact that, at his interview, ABB’s outside counsel intervened suggesting to him that it could be profitable for the Japanese producers to penetrate the European market, of which Mr M. did not appear to be convinced.
In paragraph 110 of the judgment in Mitsubishi Electric v Commission and paragraph 118 of the judgment in Toshiba v Commission, the General Court indeed inferred from that intervention that Mr M. expressed doubts as to the commercial interest of such a step and that account needed to be taken of that fact when assessing the content of his witness statement.
However, the General Court immediately put into perspective the impact of that fact on the credibility of Mr M.’s witness statement, as such, by stating that neither Mitsubishi nor Toshiba had explained the extent to which that intervention of ABB’s outside counsel affected the credibility of Mr M.’s witness statement in other respects.
Moreover, Mr M.’s reaction to the intervention of ABB’s outside counsel suggests precisely that Mr M. did not allow himself to be influenced by that step, since his statement went against what was suggested by that counsel. Mr M.’s reaction to the outside counsel’s intervention is thus rather such as to strengthen the credibility of his witness statement.
Furthermore, in paragraph 125 of the judgment in Mitsubishi Electric v Commission and in the same paragraph of the judgment in Toshiba v Commission, the General Court stated that the position of Mr M., which was shared by Mr P., whereby there was no commercial interest for the Japanese producers in entering the European market, had no bearing on the fact that, according to ABB’s four witnesses and ABB itself, the Japanese undertakings were committed not to enter the EEA market even though they were capable of doing so at a technical level.
It is also apparent that, contrary to what Toshiba submitted, it cannot be claimed that, in this instance, the General Court committed any error of law in relation to the reliability of Mr M.’s witness statement.
In the light of all of the foregoing considerations, the grounds of appeal alleging errors of law in the application of the criteria for the assessment and weighting of evidence must be rejected.
By the fourth part of its first ground in support of its appeal, Mitsubishi complains that the General Court erroneously applied the principles relating to the corroboration of evidence in its assessment of Fuji’s reply to the statement of objections (‘Fuji’s statement’), in finding, in paragraphs 134 to 139 of the judgment in Mitsubishi Electric v Commission, that, in spite of its ‘relatively vague’ nature and its ‘limited’ probative value, that statement could be qualified as evidence which ‘tend[ed] to corroborate’ the evidence furnished by ABB.
It claims that it is apparent from paragraph 84 of the judgment in Mitsubishi Electric v Commission that the statements submitted by ABB had, in any event, to be supported by other evidence.
The case‑law does not recognise a distinct category of evidence which ‘tends to corroborate’ other evidence. Fuji’s statement does not corroborate, to the requisite legal standard, the existence of the common understanding since it amounts to nothing more than an unreliable and self‑serving assumption.
The Commission contends that that argument is erroneous, essentially on the ground that it is based on a distinction which runs counter to the principle of the unfettered evaluation of evidence.
In the context of the first part of the second ground raised in support of its appeal, Toshiba submits that the General Court erred in law in finding that Fuji’s statement and the evidence furnished by Hitachi relating to the Alstom proposal corroborated, or were capable of corroborating, the evidence furnished by ABB concerning the existence of a common understanding.
First, it is apparent from the case‑law that such evidence cannot corroborate the evidence furnished by ABB since, although it is true that leniency statements can substantiate each other, corroboration of such statements can be provided only by other evidence contemporaneous with the facts at issue, namely evidence dating from the time of the infringement (Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 168).
Secondly, as regards Fuji’s statement in particular, the General Court relied, first, on contradictory grounds, since it considered, in paragraphs 144 and 160 of the judgment in Toshiba v Commission, that that statement was relatively vague and of limited probative value, but still concluded that it tended to corroborate ABB’s statements concerning the existence of the common understanding.
Next, the General Court wrongly held, in paragraph 145 of that judgment, that the content of the witness statements of the five senior employees of Fuji, in that they were silent as to the existence of a common understanding, did not call into question the probative value of Fuji’s statement. Those five witness statements were, it claims, of particular importance due to the fact that they were provided after the statement of objections - in which the existence of the common understanding was alleged - had been sent.
Finally, the General Court adopted a contradictory position in finding, in paragraph 144 of the judgment in Toshiba v Commission, that Fuji’s secondary role within the cartel explained the lack of precision of its statement relating to the existence of a common understanding, without, however, preventing that statement from reinforcing ABB’s evidence, whereas, in paragraph 181 of that judgment, on the basis of the same secondary role played by Fuji, the General Court rejected the evidence furnished by that company denying the existence of the notification and project loading mechanism.
The Commission contends that that line of argument is either inadmissible or unfounded.
In so far as concerns the criteria governing the assessment of the ability of one item of evidence to corroborate another, it is apparent from paragraphs 84 and 85 of the judgment in Mitsubishi Electric v Commission and paragraphs 90 and 91 of the judgment in Toshiba v Commission, first, that the statement of an undertaking which is accused of having participated in a cartel, a statement whose accuracy is contested by several of the other undertakings concerned, cannot be regarded as constituting sufficient evidence of the existence of an infringement committed by those undertakings if not supported by other evidence, given that the ‘degree of corroboration required’ may be lower as a result of the reliability of the statements at issue and, second, in relation to the probative value of the various items of evidence, that the only relevant criterion for the purpose of assessing the evidence adduced relates to its credibility.
It is apparent, more specifically, from the principle of the unfettered evaluation of evidence, as referred to in paragraph 128 above, that the question whether, or to what extent, evidence may corroborate other evidence is not governed by specific rules, in particular in relation to the type or source of evidence capable of corroborating other evidence, but only by the criterion relating to the credibility of the evidence.
It follows that, contrary to what Toshiba maintains, it cannot be submitted that, in principle, statements made with a view to benefiting under the Leniency Notice, cannot be corroborated by other statements of that nature, but solely by other evidence contemporaneous with the facts at issue, namely evidence dating from the time of the infringement.
Moreover, although in paragraph 168 of the judgment in Bolloré and Others v Commission, the General Court found that, in the case which gave rise to that judgment, such evidence contemporaneous with the facts at issue was in fact capable of confirming other evidence, the General Court clearly did not - and rightly so - present that finding as a rule applicable in all circumstances.
Nor did the General Court err in law in finding, in paragraphs 134 to 139 of the judgment in Mitsubishi Electric v Commission and in paragraphs 114 and 160 of the judgment in Toshiba v Commission, that, in spite of the relatively vague nature of Fuji’s statement, that statement tended to corroborate the evidence furnished by ABB, although its probative value was limited.
That nuanced assessment of the relevance and probative value of the evidence at issue does not reveal any distortion of its wording and is not vitiated by any contradiction.
As regards, first, the relevance of Fuji’s statement, the General Court held, as is apparent from paragraph 136 of the judgment in Mitsubishi Electric v Commission and paragraph 144 of the judgment in Toshiba v Commission, that, although that statement was vague, in that it merely referred to the commitment of the Japanese producers not to enter the European market, it none the less corroborated the key element resulting from the evidence submitted by ABB and relied on by the Commission against the Japanese producers, with the result that it was relevant in this instance.
Moreover, it follows that the phrase ‘tends to corroborate’, used in the conclusion reached in paragraph 139 of the judgment in Mitsubishi Electric v Commission, refers to the relevance of Fuji’s statement in terms of its aptitude to confirm the existence and essential content of the common understanding.
The General Court considered, using its unfettered discretion and without distorting the wording of Fuji’s statement, that the credibility and, consequently, the probative value of that declaration was limited, essentially, by the fact that Fuji played only a secondary role within the cartel and thus had only limited knowledge of it.
Next, as regards paragraph 145 of the judgment in Toshiba v Commission, which Toshiba challenges, it must be found that, having held in that paragraph that the content of the witness statements of the five employees of Fuji, in that they did not dispute the existence of the common understanding, but merely remained silent on that issue, did not call into question the probative value of Fuji’s statement, the General Court carried out an assessment of the probative value of those witness statements which cannot be disputed on appeal, since there is no apparent distortion in it of their wording or any manifest substantive inaccuracy.
Moreover, the argument that that assessment is erroneous, since the witness statements at issue were of particular importance because they were submitted after the statement of objections - in which the existence of the common understanding was alleged - had been sent, is inadmissible as it seeks, in reality, a re‑examination of the facts by the Court.
Finally, in so far as concerns the alleged contradictions between the considerations in paragraphs 144 and 181 of the judgment in Toshiba v Commission, suffice it to note that the General Court explained why the secondary role which Fuji played within the cartel did not prevent that statement from being able to corroborate the evidence furnished by ABB concerning the essential content of the common understanding, but that it did call into question the reliability of that evidence in terms of its ability to corroborate the existence of the notification and project loading mechanism.
In reaching that conclusion, the General Court relied on the fact that Fuji was not privy to all the information exchanged by the group of European producers and, unlike ABB and Hitachi, was not among the members of the Europe/Japan committee which were closely associated with the detailed functioning of that mechanism.
That explanation also appears entirely appropriate in the light of the fact that, in its assessment of the probative value of the notification and project loading mechanism, the General Court attached particular importance to the fact that that mechanism had not been implemented occasionally and in a discretionary manner, but, on the contrary, that notification was carried out on a regular basis.
It results from the foregoing that the grounds of appeal alleging errors of law in the application of the principles concerning the corroboration of evidence must be rejected.
By the seventh part of the first ground in support of its appeal, concerning paragraphs 79 to 82 of the judgment in Mitsubishi Electric v Commission, Mitsubishi complains that the General Court infringed the presumption of innocence and erroneously applied principles of law in refusing to take an alternative plausible explanation into consideration.
It submits that, contrary to what the General Court held in paragraph 80 of that judgment, it is clear from its case‑law that the possibility of advancing an alternative explanation is excluded only where the Commission’s conclusions are based on documentary evidence (Case T‑36/05 Coats Holdings and Coats v Commission [2007] ECR II‑110, paragraph 72).
However, it is apparent from paragraphs 212 to 215 of the judgment in Mitsubishi Electric v Commission that, in this case, there is no documentary evidence establishing the existence of the common understanding.
The possibility of submitting an alternative explanation based on evidence of technical and economic barriers to entry to the European market by the Japanese producers constitutes the only ground enabling Mitsubishi to prove that the common understanding did not exist and thus to exercise its rights of defence.
The evidence furnished in support of the common understanding, in that it is based on deductions, assumptions and interpretations, should have been set against the alternative plausible explanation proposed by Mitsubishi and confirmed by both the Japanese and European producers, namely the existence of technical and economic barriers to entry to the European market. That evidence, unlike that furnished in relation to the common understanding, is substantial, compelling and independently verifiable.
The Commission contends that, in the present case, it did not base the contested decision on the argument that the established facts can be explained only on the basis of concerted action between the undertakings. On the contrary, the contested decision was based not on a deduction from certain circumstances, but on evidence from various sources confirming the existence of the common understanding.
By the third part of the second ground in support of its appeal, Toshiba maintains that the General Court committed a two‑fold error of law in refusing to examine the alternative plausible explanation which it had put forward.
In paragraphs 82, 85 and 86 of the judgment in Toshiba v Commission, the General Court set out three instances in which an undertaking may submit an alternative explanation of the facts, namely, first, where the Commission bases its decision solely on the conduct of the undertakings at issue on the market to conclude that there was an infringement, second, where there is no documentary evidence or where such evidence is ambiguous or subject to interpretation and, finally, where the existence of an infringement is deduced from a certain number of coincidences and indicia.
In refusing, in paragraphs 87 and 88 of that judgment, to authorise Toshiba to submit an alternative explanation of the facts, the General Court committed its first error of law, since it is apparent from those paragraphs that, in the present case, the existence of an infringement was established on the basis of a global assessment of a set of indicia, or by deduction from other facts, and by indirect or non‑documentary evidence. Consequently, this case falls within the third instance in which an undertaking may, in accordance with the case‑law of the General Court, submit an alternative explanation of the facts (Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraphs 64 and 65).
The General Court committed its second error of law in finding, in paragraph 209 of the judgment in Toshiba v Commission, that the alternative explanation put forward by Toshiba was irrelevant in so far as concerns the existence of the infringement, on the ground that, in establishing that infringement, the Commission did not rely exclusively on the conduct of the undertakings at issue on the market. The General Court thus referred to only one of the three instances in which an alternative explanation may be provided. However, in the present case the General Court should have permitted such an explanation since it concerned one of the other three instances.
The Commission challenges that argument, contending, inter alia, that the three tests in question are merely examples of situations which illustrate one and the same essential principle, namely that an infringement must be proven by the Commission.
The contested paragraphs of the judgments in Mitsubishi Electric v Commission and Toshiba v Commission, in which the General Court refused to examine an alternative plausible explanation, submitted by Mitsubishi and Toshiba, of the conduct complained of, namely the existence of technical and economic barriers for the Japanese producers to entry to the European market for the products concerned, must first be put back in their context within those judgments.
Those paragraphs form part of the section of the judgment in which the General Court set out the principles which it applied governing the burden of proof and the taking of evidence.
In that context, the General Court, inter alia, referred to the case-law according to which the Commission is required to produce sufficiently precise and consistent evidence to support the conviction that the infringement was committed. It also rightly stated that it is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see, by analogy, Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 42).
It may also be added that agreements which aim to share markets pursue, in themselves, an object restrictive of competition and fall within a category of agreements expressly prohibited by Article 101(1) TFEU. Such an object cannot be justified by an analysis of the economic context of the anti-competitive conduct concerned (see, by analogy, Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 43).
Consequently, it is immaterial, in so far as concerns the existence of such an infringement, that, in the present case, the agreement at issue was concluded in spite of the existence for the Japanese producers of purported technical and economic barriers to entry to the European market for the products concerned (see, by analogy, Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 43).
It follows that, where the General Court considers that the Commission has succeeded in gathering evidence in support of the alleged infringement, and where that evidence appears to be sufficient to demonstrate the existence of an agreement of an anti-competitive nature, there is no need to examine the question whether there is a plausible alternative explanation for the conduct complained of (see, by analogy, Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 46).
In such circumstances, as the General Court rightly held in paragraphs 81 and 82 of the judgment in Mitsubishi Electric v Commission and in paragraphs 87 and 88 of the judgment in Toshiba v Commission, it would be contrary to the prevailing principle of European Union law of the unfettered evaluation of evidence to require the General Court to examine a possible alternative explanation of the facts put forward by an undertaking in order to call the Commission’s claims into question.
In that context, the General Court was also right to reject the more specific arguments raised by Mitsubishi and Toshiba, by which they claimed that the General Court is required to examine an alternative explanation each time an infringement seems to be established by deduction from other facts, indirect evidence or non‑documentary evidence.
Finally, in paragraphs 212 to 224 of the judgment in Mitsubishi Electric v Commission and in paragraphs 204 to 211 of the judgment in Toshiba v Commission, the General Court considered, in the context of a global assessment of all of the evidence furnished by the Commission, that the latter had demonstrated to the requisite legal standard the existence of the common understanding.
Accordingly, the General Court did not err in law in concluding, in paragraph 222 of the judgment in Mitsubishi Electric v Commission and in paragraph 209 of the judgment in Toshiba v Commission, that, since the Commission did not rely solely on the conduct of the undertakings at issue to demonstrate the alleged infringement, the alternative explanation submitted by Mitsubishi and Toshiba was not sufficient to establish that the common understanding did not exist and was, consequently, irrelevant.
In the light of all of the foregoing considerations, the Court must reject the grounds of appeal raised by Mitsubishi and Toshiba alleging an error of law in that the General Court did not allow them to submit an alternative explanation of the facts alleged against them by the Commission.
By its second ground in support of its appeal, Mitsubishi submits, first of all, that, in the light of the arguments already raised in the context of its first ground of appeal, the evidence relating to the existence of a continuous infringement - including the period between September 1999 and May 2004 - furnished by Mr M. and by the other witnesses of ABB, referred to in paragraph 244 of the judgment in Mitsubishi Electric v Commission, is not corroborated by the evidence on which the Commission relied, namely that furnished by Fuji and Alstom, referred to respectively in paragraphs 245 and 246 of that judgment.
In any event, Fuji’s statement establishes the duration of the infringement only up to September 2000. The continuous absence of the Japanese producers from the European market during the period of the infringement concerned, referred to in paragraph 247 of the judgment in Mitsubishi Electric v Commission, can be fully explained by the technical and economic barriers to entry to the European market demonstrated by Mitsubishi along with other Japanese and European producers.
Secondly, it claims, as regards paragraphs 248 to 250 of that judgment, that the General Court distorted Mitsubishi’s argument in affirming that the latter had not explicitly criticised the fact that the Commission had concluded that there was a single infringement encompassing inter alia the common understanding and the GQ Agreement, to conclude that the common understanding had been implemented throughout the entire duration of the continuous application of the GQ Agreement. Mitsubishi has always denied the existence of the common understanding and thus also contested the view that the common understanding and the GQ Agreement constituted a single infringement.
The Commission contends that the conclusion concerning the existence of a continuous infringement including the period from September 1999 to May 2004, set out in paragraph 252 of the judgment in Mitsubishi Electric v Commission, is not vitiated in any event by an error of law, since it is based on a series of factors set out in paragraphs 244 to 251 of that judgment.
By the third ground which it raises in support of its appeal, Toshiba submits, in the first place, that the General Court committed three errors of law in concluding, in paragraph 229 of the judgment in Toshiba v Commission, that the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activities of the European producers within the EEA constituted a single infringement.
First, it is apparent, in particular, from Case T‑385/06 Aalberts Industries and Others v Commission [2011] ECR II‑1223, paragraph 88, that, in coming to such a conclusion, the General Court should have examined not only whether the common understanding and the EQ Agreement had a single objective, but also whether they were complementary. However, in paragraph 228 of the judgment in Toshiba v Commission, the General Court merely found that the various measures had the same common objective.
Next, the General Court relied to a large extent on inaccurate conclusions in finding, in paragraph 226 of the judgment in Toshiba v Commission, that Toshiba should reasonably have been able to envisage that the European producers would adopt collusive conduct in relation to the allocation of GIS projects in the EEA as a result of the regular notification to the Japanese undertakings of the results of calls for tenders for some of those projects.
Finally, since the General Court admitted that the regular notification which constituted the basis of Toshiba’s purported knowledge of the collusive conduct of the European manufacturers had not been demonstrated for the period after September 1999, the General Court committed an error of law in confirming that Toshiba was responsible for a continuous infringement committed between September 1999 and May 2004.
In the second place, Toshiba submits that, although, in paragraphs 235 and 236 of the judgment in Toshiba v Commission, the General Court set out the correct legal test which must be met in order to prove a continuous infringement, it then, in particular in paragraphs 238 to 241 and 243 of that judgment, erroneously applied that test in concluding, on the basis of an analysis of the evidence concerned which was either vitiated by contradictory grounds or errors of law, that Toshiba had continued to participate in the infringement between September 1999 and March 2002.
The Commission disputes Toshiba’s arguments, contending, inter alia, that, in so far as concerns the existence of a single infringement, the General Court cannot be criticised for not having examined the complementary nature of the common understanding and the EQ Agreement, since Toshiba did not question it on that point, and that, as regards the continuous nature of the infringement, Toshiba criticises the assessment made by the General Court of the facts or relies on arguments which have already been raised in the context of other grounds of appeal.
It is necessary, first of all, to address the arguments raised by Mitsubishi and Toshiba in support of their grounds of appeal alleging an error of law, in that the General Court held that the Commission was correct in holding those two undertakings liable for a single infringement, consisting of the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activities of the European producers within the EEA.
In that regard, it must be found, at the outset, that, before the General Court, Mitsubishi, unlike Toshiba, as is apparent from paragraph 214 of the judgment in Toshiba v Commission, did not submit that, even supposing that the Commission adequately demonstrated the existence of the common understanding, it had not established that Mitsubishi could be held liable for that single infringement.
On the contrary, it is apparent from the judgment in Mitsubishi Electric v Commission, in particular paragraphs 237 to 253 thereof relating to the thirteenth plea raised by Mitsubishi before the General Court, that Mitsubishi merely called into question the continuous nature of the infringement of which it was accused.
Although it is true that Mitsubishi raised a series of arguments seeking to contest the proof of the existence of the common understanding and, consequently, of one of the elements of the single infringement at issue, the fact remains that Mitsubishi did not raise any arguments seeking explicitly to call into question the single nature of the infringement of which it was accused by the Commission. In particular, Mitsubishi did not raise a subsidiary argument seeking to dispute the single nature of the infringement if it were to be concluded that the Commission had demonstrated the existence of a common understanding. That is why the judgment in Mitsubishi Electric v Commission, unlike the judgment in Toshiba v Commission, does not contain an examination of the question whether, in the particular case, the Commission was able to conclude that there was a single infringement in the light of the criteria resulting from the relevant case‑law in that respect.
Accordingly, Mitsubishi has failed to demonstrate that the General Court distorted its argument in stating, in paragraph 248 of the judgment in Mitsubishi Electric v Commission, that it had not expressly criticised the fact that the Commission concluded that there was a single infringement encompassing inter alia the common understanding and the GQ Agreement.
In so far as concerns the arguments raised by Toshiba, seeking to contest its liability for the single infringement at issue, it must be found, first, that it does not follow from the case‑law, set out in paragraphs 218 and 219 of the judgment in Toshiba v Commission, that, in concluding that there was a single infringement, the General Court should have examined not only whether the common understanding and the EQ Agreement had a single objective, but also whether that anti‑competitive conduct was complementary.
It is settled case‑law that an undertaking which has participated in a single and complex infringement by means of anti‑competitive conduct which sought to contribute to the realisation of the infringement as a whole may also be responsible for conduct which was in fact implemented by other participating undertakings, but which has an identical object or identical anti‑competitive effect and thus forms part of an ‘overall plan’ as a result of its identical object distorting the normal pattern of competition within the common market. Such is the case where it is established that that undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the unlawful conduct planned or put into effect by other undertakings in pursuit of those same objectives, or that it could reasonably have foreseen it, and that it was prepared to take the risk (see, to that effect, inter alia, Case C‑441/11 P Commission v Verhuizingen Coppens [2012] ECR I‑0000, paragraphs 41 and 42, and Case C‑287/11 P Commission v Aalberts Industries and Others [2013] ECR I‑0000, paragraph 63).
In paragraph 228 of the judgment in Toshiba v Commission, the General Court correctly applied the first of those two conditions to be satisfied, relating essentially to the fact that the different forms of conduct which make up the infringement must have the same object and pursue common objectives to which the undertaking has sought to contribute by its own conduct, in deciding the following:
Contrary to what Toshiba submits, that assessment cannot be called into question in the light of the recent case‑law of the General Court (see, inter alia, Aalberts Industries and Others v Commission, paragraph 88).
According to settled case‑law, the concept of a single objective cannot be determined by a general reference to the distortion of competition on the market concerned by the infringement, since an impact on competition, whether it is the object or the effect of the conduct in question, is inherent in any conduct covered by Article 101(1) TFEU. Such a definition of the concept of a single objective would be likely to deprive the concept of a single and continuous infringement of part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited under Article 101(1) TFEU would have to be systematically characterised as a single infringement.
In the present case, as is apparent from paragraph 228 of the judgment in Toshiba v Commission, the concept of a single objective was not determined by a general reference to the distortion of competition on the market concerned by the infringement.
Moreover, Toshiba cannot rely on certain grounds of the judgment in Aalberts Industries and Others v Commission to justify its argument that, for the purposes of characterising various instances of conduct as a single and continuous infringement, it is necessary to establish whether they present a link of complementarity, in that each of them is intended to deal with one or more consequences of the normal pattern of competition, and through that interaction, they contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of an overall plan having a single objective. In that regard, it is necessary to take into account any circumstance capable of establishing or casting doubt on that link, such as the period of application, the content, including the methods used, and, correlatively, the objective of the various instances of conduct concerned.
The General Court is not in fact required to examine such an additional condition of complementarity. On the other hand, the condition relating to a single objective requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the conduct in fact implemented by other participating undertakings does not have an identical object or identical anti‑competitive effect and, consequently, do not form part of an ‘overall plan’ as a result of an identical object distorting the normal pattern of competition within the internal market.
In the present case, it does not appear that the General Court failed to have regard to that requirement in its analysis. In any event, it must be found that Toshiba did not submit before the General Court that the condition relating to a single objective was not satisfied, with the result that a more thorough assessment of that condition was not required.
Moreover, Toshiba submits that the General Court erred in law in finding that the second condition, referred to in paragraph 228 of the judgment in Toshiba v Commission, was satisfied. As regards the collusive activities of the European producers within the EEA, it claims that the General Court relied on inaccurate findings of fact in concluding that Toshiba was aware of that conduct or that it could reasonably have foreseen it, and was prepared to take the risk.
In that regard, it must be found that Toshiba’s argument merely calls into question the factual assessments made by the General Court, without showing that those assessments were vitiated by a distortion or substantive inaccuracy.
The same is true in particular of the manifestly fundamental assessment, in paragraph 226 of the judgment in Toshiba v Commission, that, as a result of the regular notification of the results of calls for tenders for certain GIS projects in the EEA, carried out at least between 1988 and 1999, the Japanese undertakings could reasonably have envisaged that the allocation of GIS projects in the EEA among European producers was the result of collusive activity.
By those considerations, the General Court did not go beyond the limits of a reasonable assessment of the evidence concerned, in view also of the fact that, in paragraph 226 of the judgment in Toshiba v Commission, it added that the fact that a group of producers has communicated to it regularly, over several years, the results of calls for tenders in which the members of another group of producers in the same industrial sector participated, without any apparent legitimate reason, goes beyond the limits of normal competitive conduct, and that that notification should therefore have given rise to doubts regarding the conditions under which the GIS projects concerned were allocated.
In so far as Toshiba calls that assessment of the General Court into question on the ground that it was ‘simply speculation with no legal basis’, its argument must be rejected as inadmissible.
Contrary to what Toshiba submits, that assessment can also not be called into question on the ground that, since the regular notification of the results of calls for tenders concerning certain GIS projects in the EEA was demonstrated only for the period of infringement between 1988 and 1999, that factor, showing that Toshiba was aware of the collusive conduct of the European manufacturers, could not be relied on to hold Toshiba liable for a continuous infringement between September 1999 and May 2004.
As the General Court held in paragraph 227 of the judgment in Toshiba v Commission - a paragraph which, moreover, is not criticised by Toshiba - the Commission rightly stated, in recital 277 of the contested decision, that knowledge of the collusive nature of the allocation of GIS projects in the EEA, acquired by the Japanese undertakings as a result of the notification mechanism between 1988 and 1999, was not likely to be affected by any subsequent interruption of notification.
In the second place, it is necessary to address the arguments raised by Mitsubishi and Toshiba in support of their grounds of appeal alleging an error of law in that the General Court held that the Commission was able to find them liable for a single infringement consisting of the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activities of the European producers within the EEA for the entire duration of that infringement, with the result that it had to be regarded as a continuous infringement.
As regards, first, Mitsubishi’s arguments in that respect, the Court finds that those arguments refer to those raised in the context of its first ground in support of its appeal, alleging that the evidence concerning the duration of the infringement submitted by Mr M. and the other witnesses of ABB, referred to in paragraph 244 of the judgment in Mitsubishi Electric v Commission, was not corroborated by the evidence on which the Commission relied, namely that furnished by Fuji and Alstom, referred to respectively in paragraphs 245 and 246 of that judgment.
Those arguments cannot succeed, since they have already been rejected in the context of the examination of the various parts of the first ground of appeal.
The same is true of the argument concerning the continuous absence of the Japanese producers from the European market during the period of infringement referred to by the General Court in paragraph 247 of the judgment in Mitsubishi Electric v Commission as evidence of the duration of the infringement. Mitsubishi submits that that absence is fully explainable by technical and economic barriers to entry to the internal market. However, that argument, which relates to the existence of an alternative explanation of the facts, has already been rejected.
Moreover, in so far as concerns the more specific argument that, in any event, the evidence furnished by Fuji establishes the duration of the infringement only until September 1999, it must be found that, in paragraph 245 of the judgment in Mitsubishi Electric v Commission, the General Court stated that that evidence confirmed the duration of the infringement until that date, the point at which Fuji claims to have left the cartel.
However, the General Court concluded, in paragraph 252 of that judgment, in the context of an overall assessment, that the evidence relied on by the Commission in respect of the implementation of the common understanding and the GQ Agreement between September 1999 and March 2004 related to facts sufficiently proximate in time, which meant that, contrary to what Mitsubishi submitted before the General Court, evidence of a continuous infringement was adduced in relation to the period concerned.
By those considerations, the General Court adequately applied the principles to which it referred in paragraph 242 of the judgment in Mitsubishi Electric v Commission and which emerge from the Court’s settled case‑law.
The fact that the evidence of the existence of a continuous infringement was not adduced for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement (see, inter alia, Commission v Verhuizingen Coppens, paragraph 72).
As regards the argument raised by Toshiba, the General Court cannot, contrary to what Toshiba submits, be criticised for having inadequately applied, in paragraphs 238 to 241, 243 and 244 of the judgment in Toshiba v Commission, the test which must be met in order to prove the existence of a continuous infringement, as set out in paragraphs 235 and 236 of that judgment.
In that regard, the Court finds, first of all, that the criticism of paragraphs 238 to 241 of the judgment in Toshiba v Commission cannot succeed on any account in so far as it is based on arguments - essentially alleging distortion or contradictory grounds affecting the assessment of the evidence concerned - which have already be rejected in the context of the examination of the other grounds of appeal raised by Toshiba.
Next, as regards paragraphs 239, 243 and 244 of that judgment, in so far as Toshiba’s complaints relate to the fact that the evidence concerned refers to part of the total duration of the infringement, suffice it to note that, in paragraph 247 of that judgment, the General Court concluded, in the context of an overall assessment, that the evidence relied on by the Commission in respect of the implementation of the common understanding and the GQ Agreement between September 1999 and March 2002 related to facts sufficiently proximate in time, which meant that, contrary to what Toshiba submitted before the General Court, evidence of a continuous infringement was adduced in relation to the period concerned.
In ruling to that effect, the General Court adequately applied the principles which it set out in paragraph 236 of the judgment in Toshiba v Commission and which emerge from the Court’s settled case‑law, noted in paragraph 264 above.
Finally, in so far as concerns the exchange of a series of faxes referred to in paragraph 243 of the judgment in Toshiba v Commission, although it is true that those faxes related to the allocation of projects under the GQ Agreement, the fact remains that the General Court was able to take account of them, as it indeed did in paragraph 247 of that judgment, as relevant evidence establishing the implementation of the GQ Agreement between September 1999 and March 2002.
Consequently, the Court must reject Mitsubishi’s and Toshiba’s grounds of appeal alleging an error of law in that the General Court held that the Commission was able to conclude that there was a single and continuous infringement.
By its fourth ground of appeal, Siemens complains that the General Court infringed the principle of equal treatment in approving, in paragraphs 296 to 301 of the judgment in Siemens v Commission, the fact that in categorising the undertakings with a view to determining their economic weight, the Commission used different reference years, which meant that Siemens was placed in the first category together with ABB, although it should have been placed in another category.
Siemens submits that the judgments in Mitsubishi Electric v Commission and Toshiba v Commission confirm the validity of its argument that, for the purposes of that categorisation, the Commission was required to use a single reference year to calculate the worldwide turnover in relation to GIS projects, with that result that the Commission infringed the principle of equal treatment in using, in the contested decision, 2003 as the reference year for the European producers and 2001 as the reference year for their Japanese counterparts.
However, it does not emerge from those judgments that the Commission was able to use 2003 as the sole reference year. On the contrary, it would have been possible, and even appropriate, to have used 2001 as the reference year in this instance.
First, the turnover in relation to GIS made by Siemens in 2003 was not related to the cartel, since that turnover corresponded to GIS projects concluded during its period of withdrawal from the cartel, namely from 1999 to 2002. Second, in the absence of turnover figures for the Japanese undertakings in relation to 2003, 2001 was the earliest point at which turnover figures for all the undertakings were available.
Moreover, Siemens submits that, even if it were to be considered that, in the present case, the Commission should have used 2003 as the sole reference year for all the producers, including the Japanese ones, the General Court would still have committed an error of law.
Using 2003 as the sole reference year for all the producers also leads to a situation in which different results are produced when determining the relative weight of one undertaking in relation to the others, placing them, consequently, in a different category. However, Siemens has not yet been able to submit detailed arguments in that respect since, in infringement of its rights of the defence, the Commission rejected several of its requests for access to data relating to the 2001 and 2003 turnover figures of the other undertakings concerned.
The Commission considers that Siemens’s complaint that 2003 was erroneously used as a reference year is inadmissible and, in any event, unfounded. Next, as regards the argument that 2001 should have been used as the sole reference year, the Commission contends that the General Court cannot be accused of having committed an error of law.
By the fifth ground which it raises in support of its appeal, Siemens complains that the General Court rejected its argument that the Commission infringed the principle of equal treatment in that, in calculating the deterrent multiplier used to increase the starting amount of its fine, the Commission did not take sufficient account of the difference in size between Siemens and ABB, which meant that the multiplier was set too high for Siemens in comparison to that which was set for ABB.
Siemens states that, as the General Court noted in paragraph 314 of the judgment in Siemens v Commission, the Commission calculated the deterrent multiplier on the basis of the worldwide turnover for 2005 of the various undertakings and that, in paragraph 309 of that judgment, the method used to calculate that multiplier was described on the basis of explanations provided for the first time by the Commission at the hearing before the General Court.
In the light of those factors, it is, however, impossible to understand how, in paragraph 320 of that judgment, the General Court was able to reach the conclusion that, by drawing a graph of the various multipliers applied in relation to the respective turnovers of the undertakings concerned, the result obtained was a straight line which showed that the multipliers applied were proportionate.
The relevant turnover for Siemens was only approximately four times greater than that of ABB. However, the deterrent multiplier approved by the General Court in relation to Siemens was six times greater than that applied to ABB.
The increase in the starting amount of the fine for the purposes of deterrence should have reflected, at least approximately, the difference in turnovers referred to above.
The only way to examine the validity of the deterrent factor of 2.5 applied to Siemens is to compare it with the lowest factor, namely 1.25, which was applied to ABB. Consequently, since factor 1 is neutral, the Commission should have opted for a factor of 2 in relation to Siemens, and not 2.5.
The Commission contends that the method used in this case to determine the deterrent multipliers establishes a specific relationship between those multipliers and turnover, and can thus not be criticised.
As regards, first, the complaint relating to the choice of reference year, the Court finds that, in paragraphs 297 to 305 of the judgment in Siemens v Commission, the General Court responded to two arguments raised by Siemens and summarised in paragraph 296 of that judgment, namely, (i) the argument that, in order to categorise it on the basis of its economic weight as determined for the calculation of the starting amount of its fine, the Commission should not have used Siemens’s turnover for 2003 as the reference year, as it did for the other European producers, but 2001, as used for the Japanese producers, and, (ii) the argument that the Commission could not place Siemens in the same group as ABB, since its turnover for 2001 and 2003 was significantly lower than the latter’s.
It must be found, at the outset, that, before the General Court, Siemens did not submit that, if the categorisation of all the producers including the Japanese producers had been carried out uniformly on the basis of turnover for 2003, the categories would have had to have been defined differently and that that was likely to work in its favour.
That argument, which cannot be regarded as an amplification of one of the two arguments referred to above which were essentially raised before the General Court, has thus been raised for the first time on appeal. The jurisdiction of the Court of Justice is confined to a review of the findings of law on the pleas argued before the General Court (see, inter alia, to that effect Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR I‑0000, paragraph 111). Consequently, it constitutes a new plea, which must be rejected as inadmissible.
As regards the Commission’s choice of 2003 as the reference year for categorising the undertakings which participated in the cartel in order to establish their relative economic weight, the General Court considered, in paragraphs 297 to 299 of the judgment in Siemens v Commission, first, that the Guidelines do not lay down any rules determining that choice, second, that, in the present case, the choice of 2003, which was the last complete year of activity of the cartel, appeared appropriate and, finally, that, even supposing that the contested decision were vitiated by an illegality in that the Commission could opt only for 2001 as a reference year for the Japanese producers on the ground that it did not have separate data for those undertakings in respect of 2003, it would be necessary, in such a case, to amend the contested decision in so far as concerns the Japanese producers and not Siemens.
In the judgments in Mitsubishi Electric v Commission and Toshiba v Commission, the General Court then held that, in choosing 2001 as the reference year for the Japanese producers, the Commission infringed the principle of equal treatment, since, in making such a choice, those producers were victims of unequal and unjustified treatment as compared with the European producers, in relation to which 2003 was used as the reference year and, consequently, annulled the fines imposed on the two Japanese producers at issue.
It follows that the General Court thus held that, in the contested decision, the Commission was able to choose 2003 as a reference year and that the reason submitted for applying 2001 as a reference year only to the Japanese producers could not ultimately be upheld.
It also follows that the General Court made it clear that the illegality thus found needed to be corrected in the contested decision, not in respect of Siemens, but in respect of the Japanese producers concerned, which is what the Commission appears to have done in the contested decision as amended.
Therefore, Siemens cannot submit, in the context of this appeal, that the judgments in Mitsubishi Electric v Commission and Toshiba v Commission make it possible to call into question the choice of 2003 as the reference year.
Moreover, Siemens has not shown that the General Court committed an error of law in holding that the choice of 2003 - which was the last full year of the cartel - as a reference year, was appropriate.
In so far as concerns Siemens’s complaint that its turnover for 2003 could not be used since it related to projects carried out during the period during which it had withdrawn from the cartel - between 1999 and 2002 - and is thus not representative of its relative weight therein, the Court finds that that argument, which would need to be examined essentially from a factual point of view, was not raised before the General Court, with the result that it constitutes a new plea which is, consequently, inadmissible on appeal.
The same is true of the argument raised for the first time in the context of these proceedings that, in the absence of turnover figures for the Japanese undertakings in respect of 2003, 2001 is the most recent year for which turnover figures for all of the undertakings were available.
That argument also manifestly lacks a factual basis, since, in the judgments in Mitsubishi Electric v Commission and Toshiba v Commission, the General Court held that, in spite of the absence of separate figures in relation to 2003 for the Japanese producers, the Commission was able to determine the turnover of those producers for 2003, namely by applying a method of calculation to the turnover of their joint venture.
In so far as concerns, second, Siemens’s argument relating to the calculation of the deterrent multiplier, Siemens submits, in essence, that the Commission fixed its multiplier too high as compared with that of ABB. In the present case, the Commission chose a method of calculation exclusively proportional to the worldwide turnover of the undertakings at issue in order to determine the deterrent multiplier. Given that Siemens’s total turnover is only four times greater than that of ABB, a coefficient of 2, and not 2.5, should have been applied to it.
In that regard, it should be noted that the purpose of the deterrent multiplier and the taking into consideration, in that context, of the size and worldwide resources of the undertaking in question resides in the impact sought on that undertaking, and the sanction must not be negligible in the light, particularly, of its financial capacity (see, inter alia, Case C‑511/11 P Versalis v Commission [2013] ECR I‑0000, paragraph 102 and the case‑law cited).
Moreover, although it is permissible, for the purpose of fixing the fine, to have regard 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, it is important not to confer on that factor an importance disproportionate in relation to the other factors. Consequently, the fixing of an appropriate fine cannot be the result of a simple calculation based on worldwide turnover (see, to that effect, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 243).
In the present case, it is apparent from paragraphs 320 and 321 of the judgment in Siemens v Commission that, in order to determine the deterrent multipliers, the Commission used a method of calculation which was objectively justified, logical and coherent in that it establishes a sufficiently proportionate relationship between the multipliers of the various companies and their worldwide turnovers.
In ruling as it did, the General Court did not err in law.
In the light of the case‑law referred to in paragraph 298 above, the Commission was required to ensure, in particular, that, in the present case, the fine was not rendered ‘negligible’ when compared, inter alia, with the financial capacity of the undertakings concerned. However, contrary to what Siemens submits, the Commission was not able to calculate the deterrent multipliers on the basis of a simple mathematical calculation based on the turnover of the various undertakings concerned, which, as is apparent from paragraph 309 of the judgment in Siemens v Commission, it indeed did not do.
Therefore, Siemens cannot criticise the determination of those multipliers on the ground that they are not exactly proportionate to the turnovers of the various undertakings concerned.
Moreover, as is apparent from paragraph 320 of the judgment in Siemens v Commission, the specific method as applied by the Commission in the present case, in that it is not based on such an exact proportionate relationship, was also favourable to Siemens in so far as the same multiplier was applied to it as to Hitachi, even though its worldwide turnover was EUR 6 billion greater than Hitachi’s.
Finally, the General Court was right to state, in paragraph 323 of that judgment, that, while, in contrast to the deterrent multipliers, the increase to the basic amount of the fines resulting from applying those multipliers is not proportionate, but progressive, that circumstance is an automatic result of the application of the method chosen by the Commission.
In that regard, the Commission stated, without being contradicted by Siemens in that regard, that, although the total turnover of Siemens is approximately EUR 57 400 million greater than ABB’s, the additional amount of the fine imposed on Siemens by way of deterrence is only EUR 56 million greater than that imposed on ABB.
Consequently, the fourth and fifth grounds raised by Siemens in support of its appeal must be rejected.
By the first ground in support of its appeal, Siemens complains that the General Court based its finding that Siemens participated in the infringement in the period from 22 April 1999 to 1 September 1999 primarily on the statements of Mr M., a former ABB employee, without giving it the opportunity to question that witness.
Siemens maintains that, under Article 6(1) and (3)(d) of the ECHR, everyone has the right, during the procedure, to examine or have examined witnesses against him, and that if the charge is based mainly on the statement of a witness who it was not possible to examine, it infringes the principle of fairness and observance of the rights of the defence.
Since, in the present case, Siemens was not given the opportunity to question Mr M. either during the administrative procedure or before the General Court it claims that its fundamental rights were infringed.
As regards the administrative procedure, Siemens submits that the Commission could have requested - as the hearing officer has done recently on numerous occasions - that the leniency applicant be accompanied by the main incriminating witness at the hearing, on pain of infringing his duty to cooperate.
Finally, Siemens submits that, in order to ensure a fair procedure, the General Court could, of its own motion, have invited Mr M. to act as a witness so as to give Siemens the opportunity to question him. The High Court of New Zealand proceeded in that manner in subjecting Mr M. to cross‑examination in the context of proceedings relating to a cartel in the GIS sector.
The Commission refutes that argument by contending, inter alia, that Mr M.’s statements do not constitute the only or even the main item of evidence that Siemens withdrew from the cartel in September 1999 and not in April of that year. That argument must be rejected, in any event, in the light of the case‑law from which it results that it is for the General Court to decide whether it is necessary or appropriate to call on a witness in the light of all the evidence on which the charge at issue is based.
The Authority contends that the possibility of examining incriminating witnesses seeks to preserve the equality of arms between the prosecution and the defence in criminal proceedings. It does not lay down, however, an inviolable right to cross-examine witnesses because of the inherent qualities of cross‑examination in establishing the truth.
It should be noted, at the outset, that it indeed does not appear to be excluded that, as the Commission submits, the first ground raised by Siemens in support of its appeal cannot succeed since the premiss on which it is based has not been verified. It appears disputable that, as Siemens submits, the General Court primarily based its finding that that undertaking participated in the infringement from 22 April 1999 to 1 September 1999 on Mr M.’s statements alone.
However, it is not necessary to give judgment on that issue, since the ground of appeal must be rejected in any event in the light of principles which are well established in the case‑law.
As regards, first, the argument that it stems from the fundamental principles of European Union law of the right to a fair hearing and observance of the rights of the defence from which arises the specific right - laid down in Article 6(3)(d) of the ECHR - that everyone has the right, inter alia, to examine or have examined witnesses against him, that, during the administrative procedure, the Commission should have afforded Siemens the opportunity to question the witness Mr M. directly, the General Court was right to reject that argument in paragraphs 186 to 189 of the judgment in Siemens v Commission.
As the General Court noted in paragraph 189 of that judgment, observance of those fundamental principles requires that the undertakings and associations of undertakings concerned by the Commission’s investigation into competition be afforded the opportunity, from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission.
By contrast, the Commission is not required to afford undertakings the opportunity, in the administrative procedure, to examine for themselves the witnesses heard by the Commission (see, to that effect, Joined Cases 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 Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 200).
Moreover, it is not disputed that, in the present case, Siemens did not request the Commission at any point to afford it the opportunity to question Mr M..
Next, in so far as concerns Siemens’s complaint that the General Court should have called on Mr M. of its own motion for him to be questioned by Siemens, the Court notes that, since proceedings before the Courts of the European Union are inter partes, it is for the applicant to raise pleas in law against a decision of the Commission imposing a fine on it for an infringement of the rules on competition, with the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for a contested decision (Case C‑272/09 P KME Germany and Others v Commission [2011] ECR I‑12789, paragraph 104, and Case C‑386/10 P Chalkor v Commission [2011] ECR I‑3085, paragraph 64).
In that regard, it must be pointed out that there was nothing preventing Siemens from requesting, by means of a measure of inquiry, that the incriminating witnesses be brought and questioned before the General Court, namely Mr M. in this instance, who Siemens considered to be the main witness testifying to its participation in the cartel during the period concerned. However, the Court notes that Siemens did not make such a request.
In any event, it should be noted that, as the Court has held in another case concerning competition law, even where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the General Court to assess the relevance of the application to the subject-matter of the dispute and the need to examine the witnesses named (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 70).
Furthermore, the Court has also stated that the General Court’s discretion in that regard is in line with the fundamental right to a fair hearing and, in particular, Article 6(3)(d) of the ECHR.
It is apparent from the Court’s case-law that that provision does not confer on the accused an absolute right to obtain the attendance of witnesses before a court and that it is in principle for the national court to determine whether it is necessary or appropriate to call a witness. Article 6(3) of the ECHR does not require that every witness be called but is aimed at full equality of arms, ensuring that the procedure in issue, considered in its entirety, gave the accused an adequate and proper opportunity to challenge the suspicions concerning him (see, to that effect, Dansk Rørindustri and Others v Commission, paragraphs 70 and 71 and the case‑law cited).
In the present case, it must be found that, following a detailed examination of a bundle of evidence which Siemens had ample opportunity to contest, the General Court concluded, in paragraph 207 of the judgment in Siemens v Commission, that the Commission was able to rely on various items of evidence to find that Siemens participated in the cartel until September 1999, among which the statements of ABB and Mr M., which were found to be credible and which were confirmed in that respect by the statements of Mitsubishi, Areva and Fuji, some of which, namely those of Mitsubishi and Fuji, were highly credible.
Accordingly, the first ground raised by Siemens in support of its appeal must be rejected as unfounded.
By the sixth ground raised in support of its appeal, Siemens submits that the General Court infringed its right to an effective legal remedy, as provided for in Article 6 of the ECHR and Article 47 of the Charter, in that it held, in paragraph 323 of the judgment in Siemens v Commission, that it could not substitute the Commission’s chosen method for calculating the deterrent multiplier with its own calculation method, and thus failed to exercise its unlimited jurisdiction to cancel, reduce or increase fines granted to it under Article 261 TFEU in conjunction with Article 31 of Regulation No 1/2003.
Siemens considers that, in accordance with its powers of unlimited jurisdiction, the General Court did not only have the power to assess the lawfulness of that method of calculation, but, in this instance, in the light of the considerable size of the fine imposed on it and the significant infringement of its rights resulting therefrom, that it was required to review the contested decision in close detail.
The Commission contends that the review carried out by the General Court of the lawfulness of the Commission’s use of its discretion in respect of determining deterrent multipliers must be limited to verifying whether the determination made by the Commission was coherent and objectively justified.
The Authority considers that the General Court exercised its judicial review of the contested decision to a sufficient degree to respond to the complaints raised by Siemens at first instance, in particular in relation to the deterrent multiplier.
Siemens essentially submits that the General Court infringed the principle of effective judicial protection in finding, in paragraph 323 of the judgment in Siemens v Commission, that it could not substitute, in exercising its powers of unlimited jurisdiction, its own assessment of whether the deterrent multiplier applied was sufficient for that of the Commission.
In that regard, the Court notes its case‑law relating to the requirements resulting in that context from the observance of the principle of effective judicial protection, as laid down in Article 47 of the Charter.
It is apparent from that case‑law that, in the context of the judicial review system of decisions of the institutions, as organised by the founding Treaties, the review of legality concerning the determination of fines for the infringement of European Union competition law, afforded to the Courts of the European Union by virtue of Article 263 TFEU, is supplemented by the unlimited jurisdiction which those were afforded by Article 31 of Regulation No 1/2003, empowers the Courts of the European Union, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see, to that effect, KME Germany and Others v Commission, paragraph 103, and Chalkor v Commission, paragraph 63).
It must, however, be pointed out that the exercise of unlimited jurisdiction 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, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas (KME Germany and Others v Commission, paragraph 104, and Chalkor v Commission, paragraph 64).
Moreover, the Court has also stated that that requirement, which is procedural in nature, does not conflict with the rule that, in regard to infringements of the competition rules, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. What the applicant is required to do in the context of a legal challenge is to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence to demonstrate that its objections are well founded (KME Germany and Others v Commission, paragraph 105, and Chalkor v Commission, paragraph 65).
However, it does not appear that the General Court failed to have regard to those principles in paragraph 323 of the judgment in Siemens v Commission.
In that paragraph, the General Court merely found, in the context of the complaints raised by Siemens in respect of the disputed parts of the contested decision relating to the fixing of the deterrent multiplier, seeking essentially to show unequal treatment as compared with ABB, that the Commission had evidently considered that the progressive increase in the starting amount in relation to turnover resulting from the application of the deterrent multipliers was necessary to ensure that the fines had sufficient deterrent effect with regard to those undertakings concerned, which had a particularly large turnover.
It is precisely in that context that the General Court stated that it did not have jurisdiction to substitute its own assessment for that of the Commission in relation to whether the deterrent multiplier applied was sufficient, even more so in the absence of any factual element indicating that the system applied by the Commission led to results in excess of what was necessary to ensure those fines remained sufficiently dissuasive.
Contrary to what Siemens submits, in such a context, the General Court was not required to substitute, in exercising is powers of unlimited jurisdiction, its own assessment for that of the Commission in that regard by examining, of its own motion, other complaints which could possibly be raised against the disputed parts of the contested decision relating to the deterrent multiplier. Moreover, the mere fact that the amount of the fine imposed is high cannot give rise to such an obligation.
Consequently, the ground of appeal raised by Siemens alleging an infringement of the principle of effective judicial protection must be rejected.
By the fifth part of the first ground raised in support of its appeal, Mitsubishi complains that the General Court did not take account of the overall effect of the various infringements of its rights of the defence and its right to be heard resulting from the Commission’s failure to grant it access to incriminating and exculpatory evidence.
First, in so far as concerns the exculpatory evidence furnished by Siemens, Toshiba, VA Tech and Hitachi, the General Court did not apply the appropriate legal test in requiring, in paragraph 55 of the judgment in Mitsubishi Electric v Commission, that Mitsubishi show the extent to which its defence was made more difficult by not having been granted access to that evidence.
According to the Court’s case‑law, it is sufficient for Mitsubishi to show that it could have relied on an exculpatory document to refute the Commission’s inferences and to influence the decision of that institution in one way or another (Aalborg Portland and Others v Commission, paragraphs 74 and 75).
Second, in so far as concerns the incriminating evidence furnished by Fuji, Alstom and Areva, the General Court erred in law in holding, in paragraph 51 of the judgment in Mitsubishi Electric v Commission, that the only way that Mitsubishi could show that it had the right of access to an incriminating document was to establish beforehand that it was not personally liable.
In accordance with the case‑law set out by the General Court in paragraph 45 of the judgment in Mitsubishi Electric v Commission, Mitsubishi was required to show that the conclusion at which the Commission arrived would have been different if the document which was not disclosed had been discarded.
The Commission considers that, in so far as concerns, first, the alleged infringement of the rights of defence resulting from the non‑disclosure of the exculpatory documents, the General Court applied a legal test which corresponds to that in paragraph 52 of the judgment in Case C‑110/10 P Solvay v Commission [2011] ECR I‑10439, namely that ‘those documents could have been useful for its defence’.
Second, as regards the complaint relating to the refusal of access to incriminating evidence, the Commission contends that Mitsubishi’s criticism is unfounded, since it is based on an erroneous reading of paragraph 51 of the judgment in Mitsubishi Electric v Commission.
By the sixth part of its first ground of appeal, Mitsubishi submits that the General Court infringed its rights of the defence, and in particular the principle of the presumption of innocence, in requiring that it prove a negative, namely that it did not commit an infringement. In paragraphs 116, 158, 186 and 231 of the judgment in Mitsubishi Electric v Commission, the General Court imposed such an insurmountable burden of proof on it.
The Commission contends, in particular, that that criticism is based on an inaccurate reading of those paragraphs of the judgment in Mitsubishi Electric v Commission.
By the fourth ground raised in support of its appeal, Toshiba submits that its rights of the defence have been infringed, in that the Commission did not grant it access to exculpatory evidence.
It maintains, first of all, that the General Court applied an imprecise legal test to evaluate the exculpatory nature of the statements at issue.
An appropriate test would not concern the issue whether the undertaking at issue was aware of the information in the statements whose non‑disclosure is contested, nor whether those statements could have influenced the Commission’s decision.
It claims that the Court stated, as in paragraph 52 of Solvay v Commission, that the undertaking concerned is not required to show that the Commission’s decision would have been different if it had been granted access to the non-disclosed documents, but only that those documents could have been useful for its defence.
Second, as regards the non‑disclosure of the written statements of two employees of Mitsubishi, submitted in November 2006, the General Court erred in law in concluding, in paragraph 61 of the judgment in Toshiba v Commission, that the communication of that exculpatory evidence was not capable of influencing the course of the proceedings and the content of the contested decision.
According to Toshiba, those statements should have been used as additional evidence of the fact that Fuji was not aware of the common understanding, with the result that it could not confirm its existence.
Third, in so far as concerns the non‑disclosure of the written statements of two employees of Hitachi, also submitted in November 2006, Toshiba complains that the General Court held that they did not constitute exculpatory evidence.
Those statements, its claims, contain additional information which Toshiba could have used to show that Hitachi’s rejection of the Alstom proposal had to be understood as confirming that the existence of the common understanding alleged by the Commission was not established and that the interpretation of that rejection, as adopted by the Commission in the statement of objections, was thus incorrect.
Fourth, Toshiba submits that the General Court erred in law in concluding, in paragraphs 62 and 63 of the judgment in Toshiba v Commission, that the communication of Mr S.’s statements, submitted by Areva, was not capable of influencing the course of the proceedings and the content of the contested decision.
Toshiba considers that access to those statements during the administrative procedure would have enabled it not only to strengthen its argument that it had ceased its participation in the GQ Agreement between September 1999 and March 2002, but also to weaken the Commission’s argument relating to the existence of a single and continuous infringement between April 1988 and May 2004, which would have changed the content of the contested decision.
The Commission contends, first, that the complaint concerning the inadequate test applied by the General Court in paragraph 45 of the judgment in Toshiba v Commission to determine whether the evidence could be regarded as exculpatory or not is inadmissible since it was not raised in Toshiba’s appeal, but only in its reply.
Second, as regards the argument concerning specifically the written statements of employees of Mitsubishi and Hitachi, and the statement of Mr S. submitted by Areva, that argument should be rejected in any event, since Toshiba does not dispute the finding made by the General Court that those statements do not constitute exculpatory evidence.
It is first necessary to examine the complaints of Mitsubishi and Toshiba relating to the alleged infringement of their rights of the defence resulting from the non‑disclosure to them of certain items of exculpatory evidence.
In paragraphs 43 and 44 of the judgment in Mitsubishi Electric v Commission, the wording of which is identical to that in paragraphs 44 and 45 of the judgment in Toshiba v Commission, the General Court first summarised in the following terms what, in its view, constitutes ‘exculpatory evidence’:
As regards the consequences of access to the file which is not consistent with the rule relating to the disclosure of exculpatory evidence, the General Court, in referring to paragraphs 74 and 75 of Aalborg Portland and Others v Commission, decided, in paragraph 46 of the judgment in Mitsubishi Electric v Commission, the wording of which is identical to that in paragraph 47 of the judgment in Toshiba v Commission, as follows:
The test thus used by the General Court to evaluate the consequences of non‑disclosure of items of exculpatory evidence is, in essence, the same as that used by the Court in paragraph 52 of Solvay v Commission, read in conjunction, inter alia, with paragraph 131 of Aalborg Portland and Others v Commission. That test requires that the undertaking concerned must show only that those documents could have been useful for its defence and not that, if it had been granted access to the undisclosed documents, the content of the Commission’s decision would have been different.
The result is that, if a procedural document which may be categorised - since it is capable of exonerating an undertaking which is accused of having participated in a cartel - as exculpatory evidence is not communicated to that undertaking, the latter’s rights of the defence are infringed if that undertaking shows that the document at issue could have been useful for its defence.
Such evidence may be furnished by showing that the non‑disclosure was capable of influencing, to the detriment of the undertaking at issue, the course of the proceedings and the content of the Commission’s decision, or that it could have harmed or rendered more difficult the defence of that undertaking’s interests during the administrative procedure.
Contrary to what Toshiba submits, the General Court thus did not apply an inaccurate legal test to evaluate the impact of the non‑disclosure of an item of exculpatory evidence on its rights of the defence.
As regards Toshiba’s argument seeking to criticise the test applied by the General Court, in paragraph 45 of the judgment in Toshiba v Commission, to determine whether the arguments raised by other undertakings constituted exculpatory evidence, the Court finds that that argument was raised for the first time at the stage of its reply.
That argument therefore constitutes, in accordance with Articles 127 and 190 of the Rules of Procedure, a new plea in law introduced in the course of proceedings which must be rejected as inadmissible, since it is not based on matters of law or of fact which came to light in the course of the procedure before the Court (see, to that effect, inter alia, Case C‑104/97 P Atlanta v Commission of the European Communities and Council of the European Union [1999] ECR I‑6983, paragraph 22, and Case C‑193/06 P Nestlé v OHIM [2007] ECR I‑114, paragraph 54).
In its appeal, Toshiba merely criticised the test used by the General Court in paragraph 47 of the judgment in Toshiba v Commission to determine whether the non‑disclosure of evidence which may be regarded as exculpatory led to an infringement of the rights of defence of the undertaking concerned.
Mitsubishi submits, in addition, that the General Court failed to have regard to the criterion relating to the consequences of the non‑disclosure of exculpatory evidence in requiring, in paragraph 55 of the judgment in Mitsubishi Electric v Commission, that that applicant show the extent to which its defence was made more difficult by not having been granted access to the evidence concerned, namely, in this instance, the statements submitted by VA Tech.
In that regard, it must be found, first, that, in paragraph 55 of the judgment in Mitsubishi Electric v Commission, the General Court made a mere reference to the test set out in paragraph 46 of that judgment, succinctly setting out its scope. As stated in paragraphs 366 to 368 above, the General Court applied a precise legal test in paragraph 46 of the judgment in Mitsubishi Electric v Commission.
Second, that argument is ineffective in any case since it is apparent from paragraphs 56 and 57 of the judgment in Mitsubishi Electric v Commission, which have not been criticised by Mitsubishi, that those statements cannot be regarded as exculpatory evidence.
The same is true of the argument raised by Toshiba that the General Court should have accepted that Toshiba ought to have been granted access to the written statements of the employees of Mitsubishi and Hitachi and the statements of Mr S., submitted by Areva, since they could have been useful for its defence.
The Court finds that Toshiba has not contested paragraphs 59, 60 and 62 of the judgment in Toshiba v Commission, from which it results that the statements at issue, at least in so far as concerns the issues addressed and in respect of which Toshiba submits that they could have been used in its defence, do not constitute exculpatory evidence, primarily as a result of the fact that Toshiba was already familiar with their content by means of other evidence to which it had access, or as a result of the fact that the argument at issue was identical in substance to Toshiba’s own argument, namely in that, by their statements, other undertakings involved in the cartel or their employees merely contested the existence of the common understanding.
Secondly, it is necessary to address the argument raised by Mitsubishi relating to the consequences drawn by the General Court, in paragraph 51 of the judgment in Mitsubishi Electric v Commission, from the non‑disclosure of certain items of incriminating evidence.
That argument must be rejected since it is based on an erroneous reading of that paragraph.
It must be found that, contrary to what Mitsubishi submits, that paragraph cannot be interpreted as meaning that the only way in which Mitsubishi could show that it had the right of access to an incriminating document consisted in establishing beforehand that there was no liability on its part.
On the contrary, in accordance with paragraph 51 of that judgment, the General Court merely concluded that, if it had to be found, following the examination of the plea relating to proof of the common understanding, that the non-disclosed incriminating evidence concerned constituted necessary evidence in support of the findings made in the contested decision in that regard, it would be necessary to uphold Mitsubishi’s argument and, consequently, to annul the contested decision in so far as it concerns it.
Moreover, the General Court concluded, in paragraph 224 of the judgment in Mitsubishi Electric v Commission, in the context of the overall assessment of the evidence relied on by the Commission - taken as a whole - to establish the existence of the common understanding, that the Commission was founded in concluding that the common understanding existed, without taking account of the incriminating evidence concerned, with the result that, in accordance with what was stated in paragraph 51 of that judgment, it was ultimately necessary to reject the plea alleging an infringement of the right of access to the file.
Consequently, it is necessary to reject Mitsubishi’s and Toshiba’s complaints relating to the alleged infringement of their rights of the defence in that certain items of incriminating and exculpatory evidence were not disclosed to them.
Finally, as regards the argument raised by Mitsubishi that the General Court infringed its rights of the defence, and in particular the principle of the presumption of innocence, in imposing on it, in paragraphs 116, 158, 186 and 231 of the judgment in Mitsubishi Electric v Commission, an insurmountable burden of proof requiring it to prove that it did not commit an infringement, it must be found that, by that argument, Mitsubishi seeks, once again, to call into question the General Court’s assessment of evidence showing the existence of the common understanding, although the arguments already raised by Mitsubishi to that effect have been rejected earlier in this judgment.
In any event, that argument is manifestly unfounded, since the paragraphs being criticised cannot be understood as meaning that the General Court reversed therein the burden of proof in requiring that Mitsubishi prove that it did not commit an infringement. Those paragraphs bear no relation to the burden of proof of the infringement, but form part of the assessment and weighting of the various items of evidence by the General Court, following which it held that the Commission had demonstrated that infringement to the requisite legal standard.
In the light of all of the foregoing considerations, the grounds of appeal raised by Mitsubishi and Toshiba alleging an infringement of their rights of the defence must be rejected.
By the seventh ground which it raises in support of its appeal, Siemens submits that the General Court infringed the duty to state reasons laid down in Article 296 TFEU in granting, in paragraphs 310 to 318 of the judgment in Siemens v Commission, unjustified leniency by omitting to censure the Commission for having failed to explain its method for calculating the deterrent multipliers.
A fuller statement of reasons was necessary in the present case as a result of the exceptional size of the fine imposed on Siemens, of the increasing severity of fines imposed by the Commission, of general considerations relating to the rule of law, of the principle of effective legal protection and of the fact that the Court has justified the broad discretion with which the Commission is entrusted in calculating the level of fines by the existence of the unlimited powers of judicial review of the Courts of the European Union in respect of that assessment.
Consequently, in the light of the Commission’s duty to provide a fuller reasoning in the present case, Siemens claims that the General Court should have decided that the method of calculating deterrent multipliers had, at the very least, to be set out in the contested decision. However, in the present case, the General Court was required to question the Commission at the hearing in order for it to disclose its method.
The Commission contends that, in the light of the explanations provided in the contested decision, Siemens was in a position to develop, in its application at first instance, its argument relating to the infringement of the principle of equal treatment in that the Commission did not use a method which was directly proportionate with turnover. Consequently, the statement of reasons in the contested decision met the requisite legal standard in relation to the deterrent multiplier.
The Authority considers that, in paragraphs 311 and 312 of the judgment in Siemens v Commission, the General Court correctly set out the principles applicable in relation to the duty to state reasons with which the Commission must comply.
The Court notes that the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union Court to exercise its power of review (see, inter alia, Alliance One International and Standard Commercial Tobacco v Commission and Commission Alliance One International and Others, paragraph 72).
Thus, in the context of individual decisions, in accordance with the Court’s settled case‑law, the purpose of the duty to state reasons for an individual decision is both to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is vitiated by a defect which may permit its legality to be contested (see, inter alia, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, paragraph 73).
The essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity and duration of the infringement (see, to that effect, Joined Cases 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 Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 463).
However, that requirement does not oblige the Commission to indicate in its decision the figures relating to the method of calculating the fines, it being pointed out, in any event, that the Commission cannot, by mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, paragraph 464).
It must be found, in the present case, first, that, in paragraphs 310 and 311 of the judgment in Siemens v Commission, the General Court, inter alia, set out those principles. Contrary to what Siemens submits, those principles do not need to be differentiated according to the absolute or relative importance of the amount of the fine imposed. They must be complied with in the same way for any decision imposing a fine for an infringement of the rules regarding competition under European Union law.
Second, it must be found that the General Court correctly applied those principles.
The General Court held, in paragraph 315 of the judgment in Siemens v Commission, that it was apparent, in essence, from recital 491 of the contested decision that the Commission considered that an increase in the starting amount of the fine fixed for Siemens was necessary to ensure that the fine was sufficiently dissuasive in the light of the size and worldwide resources of that undertaking, and that the Commission relied, in that regard, on its worldwide turnover for 2005.
In paragraph 317 of that judgment, the General Court concluded that it thus appeared that, in the contested decision, the Commission had set out to the requisite legal standard the evidence taken into consideration in increasing the starting amount of the fines for the purposes of deterrence, thus enabling Siemens to understand the justification for that increase in relation to the starting amount of the fine imposed on it and to exercise its rights, while also enabling the Courts of the European Union to review its legality.
Accordingly, the General Court did not err in law in stating that, regard being had to the principles laid down in the case‑law and noted in paragraphs 394 and 395 above, the Commission was not required to set out, in the contested decision, the figures which it provided at the hearing.
Consequently, the seventh ground raised by Siemens in support of its appeal, alleging a failure to state reasons, must be rejected.
In the light of all of the foregoing considerations, the Court concludes that, since none of the grounds of appeal raised by Siemens, Mitsubishi and Toshiba can be upheld, their respective appeals must be dismissed.
Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Siemens, Mitsubishi and Toshiba have been unsuccessful in their grounds of appeal, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.