1 By its appeal, Infineon Technologies AG seeks the setting aside of the judgment of the General Court of the European Union of 15 December 2016, Infineon Technologies v Commission (T‑758/14, not published, ‘the judgment under appeal’, EU:T:2016:737), by which the General Court dismissed the appellant’s action which sought, primarily, the annulment of Commission Decision C(2014) 6250 final of 3 September 2014 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39574 - Smart Card Chips) (‘the decision at issue’) and, in the alternative, a reduction in the fine imposed on the appellant.
2 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 [101] and [102 TFEU] (OJ 2003 L 1, p. 1) states, in paragraphs 2 and 3: ‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article [101 or 102 TFEU]; or ... 3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
3 Article 31 of that regulation provides: ‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’
4 As regards the calculation of the fines, points 20 to 23 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’) provide: ‘20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case. 21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales. 22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. 23. Horizontal price-fixing, market-sharing and output-limitation agreements …, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’
5 The background to the dispute and the essential elements of the decision at issue as apparent from paragraphs 1 to 40 of the judgment under appeal may be summarised as follows for the purposes of this case.
6 On 22 April 2008, Renesas Technology Corp. and its subsidiaries (‘Renesas’) informed the Commission of the existence of a cartel in the smart card chip sector and submitted an application for immunity from fines pursuant to the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’). On 28 March 2011, after carrying out on-the-spot inspections at the premises of several companies in the sector and sending them requests for information, the Commission initiated proceedings, pursuant to Article 11(6) of Regulation No 1/2003, against, first, Koninklijke Philips NV and Philips France SAS (together, ‘Philips’), second, Renesas, and, third, Samsung Electronics Co. Ltd and Samsung Semiconductor Europe GmbH (together, ‘Samsung’).
7 In April 2011, the Commission initiated settlement discussions, in accordance with Article 10a of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18) with Renesas, Samsung and Philips. Those discussions were discontinued in October 2012.
8 On 18 April 2013, the Commission sent a statement of objections to Renesas, Hitachi Ltd, Mitsubishi Electric Corp., Samsung, the appellant and Philips. In their observations on the statement of objections, the appellant and Philips disputed the authenticity of certain documents provided by Samsung after the settlement procedure. Samsung replied to those observations and provided the Commission with further documents. The authenticity of those documents was moreover the subject of two accounts of the facts adopted by the Commission on 9 October 2013 and 25 July 2014.
9 The hearing was held on 20 November 2013.
10 On 3 September 2014, the Commission adopted the decision at issue.
11 By that decision, the Commission found that four undertakings, namely the appellant, Philips, Renesas and Samsung, had participated in a single and continuous infringement of Article 101(1) TFEU and of Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) (‘the EEA Agreement’) in the smart card chip sector for the whole European Economic Area (EEA) (‘the infringement at issue’). The Commission found that that infringement lasted from 24 September 2003 to 8 September 2005 and related to smart card chips.
12 The market for smart card chips consisted of two segments, namely that of chips for SIM cards, which are used mainly for mobile phones (‘SIM chips’), and that of chips for non-SIM cards, for banking, security and ID (‘non-SIM chips’). At the time of the infringement at issue, that market was characterised by a constant fall in prices, downstream pressure on prices from the largest customers of smart card chip manufacturers, imbalances in the demand/supply ratio resulting from an increase in demand, constant, rapid technological development and the structure of contract negotiations with customers.
13 The Commission took the view, as regards the main characteristics of the infringement at issue, that the cartel penalised was based on a set of bilateral contacts, which were weekly in 2003 and 2004, between the addressees of the decision at issue. According to the Commission, the participants in the infringement coordinated their pricing behaviour for smart card chips through contacts on pricing, including specific prices offered to major customers, minimum price levels and target prices, the sharing of views on the price evolution for the coming semester and pricing intentions, but also on production capacity and capacity utilisation, future market conduct as well as on contract negotiations vis-à-vis common customers. The timing of the cartel contacts, a list of which appears in Table 4 of the decision at issue, follows the timing of the business cycle. The Commission found the existence of links between those bilateral contacts on account of the object of those contacts and their dates. When those bilateral contacts took place, the undertakings made open references to other bilateral contacts being held among the participants to the infringement at issue and the information gathered was transmitted to competitors.
14 The Commission classified the infringement at issue as a single and continuous infringement. The collusive contacts were linked and complementary in nature. By interacting, they contributed to the realisation of the set of anticompetitive effects within the framework of a global plan having a single objective. According to the Commission, Samsung, Renesas and Philips were aware of the entire infringement. However, the appellant was held responsible for the infringement only in so far as it participated in collusive arrangements with Samsung and Renesas, as there was no evidence that it had contacts with Philips or that it had the subjective perception of participating in the whole of the infringement at issue.
15 Finally, the Commission held that the behaviour of the undertakings in question had the object of restricting competition in the European Union and that it had an appreciable effect upon trade between Member States and between contracting parties of the EEA Agreement.
16 For the purposes of calculating the fines imposed pursuant to Article 23(2) of Regulation No 1/2003 and the 2006 Guidelines, the Commission found that the infringement at issue had been committed intentionally. In order to calculate the basic amount, that institution applied a proxy for the annual value of sales based on the actual value of sales made of cartelised products by the undertakings during the months of their active participation in the infringement at issue. The Commission applied a gravity multiplier of 16% for the infringement at issue. As regards the duration of that infringement, it took account of 11 months and 14 days in the case of Philips, 18 months and 7 days in the appellant’s case, 23 months and 2 days in the case of Renesas and 23 months and 15 days in the case of Samsung. It applied a factor of 16% of the value of sales by way of additional amount.
17 On account of mitigating circumstances, the Commission granted the appellant a 20% reduction in the amount of the fine because it was responsible for the infringement at issue only in so far as it participated in collusive arrangements with Samsung and Renesas, and not with Philips. Pursuant to the Leniency Notice, the Commission granted Renesas immunity from fines and granted Samsung a 30% reduction in the amount of the fine.
18 In Article 1 of the decision at issue, the Commission found that the following undertakings participated in a single and continuous infringement of Article 101(1) TFEU and of Article 53 of the EEA Agreement in the smart card chip sector for the whole EEA: - the appellant, from 24 September 2003 until 31 March 2005, ‘for its coordination with Samsung and Renesas’ (Article 1(a)); - Philips, from 26 September 2003 until 9 September 2004 (Article 1(b)); - Renesas, from 7 October 2003 until 8 September 2005 (Article 1(c)); and - Samsung, from 24 September 2003 until 8 September 2005 (Article 1(d)).
19 In Article 2 of that decision, the Commission imposed fines of EUR 82784000 on the appellant (Article 2(a)), EUR 20148000 on Philips (Article 2(b)), EUR 0 on Renesas (Article 2(c)) and EUR 35116000 on Samsung (Article 2(d)).
20 By application lodged at the Registry of the General Court on 13 November 2014, the appellant brought an action for annulment of the decision at issue in so far as it concerns it or, in the alternative, for the cancellation or reduction of the amount of the fine which had been imposed on it.
21 In support of its action, the appellant put forward six pleas. Its first two pleas related to observance of the rights of the defence and of the principle of sound administration. The third plea alleged infringement of Article 101(1) TFEU. The fourth plea, raised in the alternative, alleged misapplication of the concept of a single and continuous infringement. The fifth and sixth pleas related to the fine.
22 By the judgment under appeal, the General Court dismissed those pleas and, therefore, dismissed the appellant’s action in its entirety.
23 By its appeal, the appellant claims that the Court should: - set aside the judgment under appeal; - annul the decision at issue in so far as it concerns it; - in eventu, reduce the fine in the amount of EUR 82874000 imposed on the appellant in the decision at issue to a proportionate amount; - in eventu, refer the case back to the General Court for reconsideration; and - order the Commission to pay the costs.
24 The Commission contends that the Court should: - dismiss the appeal; - in the alternative, reject the request that the Court reduce the fine imposed on the appellant; and - order the appellant to pay the costs.
25 In support of its appeal, the appellant puts forward three grounds of appeal.
26 The appellant’s first ground of appeal is divided into five parts.
27 By the first part of the first ground of appeal, which concerns in particular paragraph 160 of the judgment under appeal, the appellant complains that the General Court examined only 5 of the 11 allegedly unlawful contacts which took place between itself and Samsung or Renesas found by the Commission whereas the appellant had disputed all those contacts. That incomplete and selective judicial review of the decision at issue is contrary to Article 263 TFEU and resulted in an insufficient review of the fine. In the appellant’s submission, a finding of unlawfulness of the Commission’s assessments in relation to any one of the disputed contacts should have led to the corresponding findings of the Commission in the decision at issue being set aside.
28 The General Court also infringed the obligation to state reasons laid down in Article 36 of the Statute of the Court of Justice of the European Union. In particular, it failed to provide sufficient reasoning to justify the approach that it set out in paragraph 160 of the judgment under appeal and the choice of the five contacts reviewed.
29 The appellant maintains that such a selective judicial review did not allow the General Court to fully assess the gravity of the alleged infringement and to review the amount of the fine imposed. The General Court responded insufficiently to the appellant’s arguments relating to the fine, as is apparent from the third ground of appeal. In particular, since its participation in the infringement was reduced to the five contacts whose existence was proved, the General Court could not uphold the fine that the Commission had imposed on it.
30 As regards the contacts that were not reviewed, the General Court merely referred, in particular in paragraph 153 of the judgment under appeal, to the Commission’s findings, without reviewing them as it was required to.
31 The review effected by the General Court is contradictory and inconsistent with the findings that it made in paragraphs 136, 137 and 211 of the judgment under appeal. By that selective review, the General Court distorted the characteristics of the infringement alleged by the Commission, since the contacts examined by the General Court were insufficient to substantiate the finding of a single and continuous infringement on the part of the appellant.
32 Since it failed to confirm the other contacts established by the Commission and, in particular, since it failed to examine the contacts alleged between the appellant and Renesas in 2003, which are mentioned in recital 160 of the decision at issue, the General Court had no basis for finding that unlawful meetings took place between Samsung and the appellant in 2003. Accordingly, in the appellant’s submission, the General Court had no evidence, other than the evidence that the appellant disputes, supporting the existence and content of the contacts that it had allegedly had with Samsung in 2003.
33 The appellant specifies that the selective review adversely affects its legal position in so far as it exposes it to unjustified third party claims, such as claims for damages.
34 The Commission contests all those arguments.
35 It observes that the appellant did not challenge the finding in recitals 38 to 41, 68, 76, 77, 246 and 297 of the decision at issue that the price of smart card chips was determined, in principle, on an annual basis. Therefore, according to the Commission, the General Court could limit itself to verifying that in each year between 2003 and 2005, the appellant had participated in at least one anticompetitive contact. In fact, it is sufficient that the economic consequences of anticompetitive contacts continue to produce their effects beyond the date on which they took place.
36 In those circumstances, the General Court was not required to provide reasons why it selected the five contacts that it verified or why it did not verify whether the appellant participated in six other contacts.
37 The General Court was not prevented from assessing the arguments relating to the gravity of the infringement or the amount of the fine. In particular, the number of contacts in which the appellant participated has no bearing on either the gravity of the infringement or the possibility of applying a gravity percentage of 16%.
38 Nor was the General Court prevented from examining the arguments relating to the appellant’s participation in the single and continuous infringement, since the appellant participated in at least one contact per year and those contacts formed part of an overall plan. The General Court was also able to assess correctly the arguments relating to the anticompetitive nature of the contacts with Samsung on 24 September and 3 November 2003, since the evidence provided by Renesas was just one of several reasons why the General Court upheld the Commission’s findings relating to Samsung’s credibility as a witness and to the exchange of information during those contacts.
39 The appellant’s argument relating to complete annulment of the decision at issue is inadmissible under Article 169(2) of the Rules of Procedure of the Court of Justice.
40 The argument relating to paragraph 153 of the judgment under appeal is ineffective, since the General Court drew no consequence from the reference made to the nine anticompetitive contacts other than those of 3 November and 27 November 2003.
41 The appellant has been exposed to damages claims on account not of the General Court’s approach, but of its participation in at least one anticompetitive contact per year in 2003, 2004 and 2005.
42 As regards the appellant’s argument relating to paragraphs 136 and 137 of the judgment under appeal, the appellant confuses two different notions, namely the evidence of the number of anticompetitive contacts in which the appellant participated and the proof of the anticompetitive nature of those contacts.
43 As a preliminary point, it should be observed that paragraph 160 of the judgment under appeal relates to the General Court’s assessment of the third part of the third ground of appeal raised by the appellant before it, alleging that there was no evidence establishing the existence of an infringement of Article 101 TFEU. That paragraph is worded as follows: ‘... the [appellant] does not contest the Commission’s finding that prices were determined, in principle, on an annual basis, which is apparent indeed from the discussions in which the applicant took part. In those circumstances, it is sufficient to examine, for 2003 to 2005, whether the [appellant] participated in one or, as the case may be, in two anticompetitive discussions, during each of those three years, with Samsung or Renesas, in order to find whether or not there was an infringement of Article 101 TFEU. In those circumstances, the Court considers it appropriate to examine, as a preliminary point, five contacts between the [appellant] and Samsung or Renesas, namely the contacts of 24 September 2003 (1st contact), of 3 November 2003 (2nd contact), of 18 March 2004 (6th contact), of 1 to 8 June 2004 (7th contact), and of 31 March 2005 (11th contact), those first and last contacts marking, according to the Commission, the beginning and the end respectively of the [appellant’s] participation in the infringement at issue. It is therefore only in the event that those five contacts do not make it possible to establish the existence of the infringement at issue that the Court will examine whether or not the other contacts, such as that of 17 November 2003, which - the [appellant] submits in its pleadings and at the hearing - were not unlawful, contribute to establishing the existence of that infringement.’
44 After examining the appellant’s arguments relating to those five contacts, the General Court found, in paragraph 207 of the judgment under appeal, that the Commission had not erred in finding that the appellant had participated in anticompetitive discussions with Samsung and Renesas between 24 September 2003 and 31 March 2005.
45 The General Court did not however examine the arguments by which the appellant challenged the Commission’s findings in relation to the six other bilateral contacts found in regard to it in the decision at issue.
46 The appellant challenges that approach of the General Court on the ground, in essence, that it is incompatible with the requirements of a complete judicial review in respect of both the review of the lawfulness and the review of the fine.
47 In that regard, it should be noted that the system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 71).
48 It should be recalled that the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the appellant and taking into account all the relevant evidence submitted by the latter (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 72 and the case-law cited).
49 In the present case, the appellant sought, in particular, to obtain a review of the lawfulness of the Commission’s finding that it participated in a single and continuous infringement during the period between 24 September 2003 and 31 March 2005.
50 As is apparent from paragraph 43 of this judgment, the General Court justified limiting its review to 5 of the 11 bilateral contacts at issue by the fact, which the appellant does not dispute, that prices were in principle negotiated on an annual basis. It should be added in this respect that, as is apparent from paragraphs 115 and 116 of this judgment, the appellant has not submitted any argument admissible on appeal capable of invalidating that justification.
51 Thus, the General Court explained to the requisite legal standard its reasons for exercising review over a limited number of the contacts disputed by the appellant.
52 Moreover, in order to uphold the lawfulness of the Commission’s finding of the appellant’s participation in the infringement at issue, the General Court was entitled to confine itself to reviewing the Commission’s assessments relating not only to the first and last collusive contacts, but also to one or two contacts per year of participation.
53 In the context of an infringement extending over a certain period, 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 (judgment of 21 September 2006, Technische Unie v Commission, C‑113/04 P, EU:C:2006:593, paragraph 169).
54 Moreover, according to settled case-law, the fact that an undertaking did not take part in all aspects of an anticompetitive arrangement or that it played only a minor role in the aspects in which it did participate is not material for the purposes of establishing the existence of an infringement on its part, given that those factors need to be taken into consideration only when the gravity of the infringement is assessed and only if and when it comes to determining the fine (see judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 45 and the case-law cited).
55 Accordingly, inasmuch as the first part of the first ground of appeal alleges an infringement of Article 263 TFEU and of the obligation to state reasons, it must be rejected.
56 To the extent that, as is apparent from paragraph 46 of this judgment, the first part of the first ground of appeal also alleges breach of the General Court’s unlimited jurisdiction and therefore relates to matters which will be examined in the context of the third ground of appeal, the line of argument put forward in that regard will be dealt with in conjunction with that ground of appeal.
57 By the second part of the first ground of appeal, the appellant complains that, in paragraph 118 of the judgment under appeal, the General Court incorrectly placed the burden of proof on the appellant to show that an internal Samsung email of 3 November 2003 (‘the email of 3 November 2003’) was inauthentic. The appellant claims that since the Commission, which is responsible for proving the infringement, failed to establish the authenticity of that email in accordance with the principle of good administration, and in view of the serious concerns raised by the appellant, that piece of evidence and other evidence from Samsung should have been declared inadmissible.
58 The General Court also made manifest errors and infringed the rights of the defence in finding, in paragraph 74 of the judgment under appeal, that the forensic IT report submitted by the appellant had not concluded that that email was not authentic.
59 Moreover, by stating, in paragraph 118 of the judgment under appeal, that the appellant had not put forward any argument showing the need for an independent expert report, the General Court infringed the rights of the defence and the right to a fair trial. The appellant, relying on a decision of the Autorité de la concurrence française (French Competition Authority), submits that, in view of the observations made by itself and by Samsung, the Commission was under an obligation to appoint an independent professional expert to assess the authenticity of the email in question. That is all the more important in cartel proceedings because of their criminal nature. The Commission’s forensic assessments are not capable of removing any doubt as to the authenticity of the evidence put forward.
60 By relying on such evidence, the General Court incorrectly assessed the duration and scope of the infringement at issue. Without the evidence provided by Samsung, which should have been declared inadmissible, the Commission would not have been able to establish either that the appellant committed an infringement during 2003 or that it participated in a single and continuous infringement. In particular, the appellant disputes paragraphs 143 and 144 of the judgment under appeal and the reference, in paragraph 150 of that judgment, to contemporaneous evidence and to evidence provided by Renesas, since that evidence was never assessed by the General Court.
61 The Commission disputes the merits of all those arguments.
62 As a preliminary point, it should be noted that it is apparent from the General Court’s findings of fact that the email of 3 November 2003, submitted by Samsung following the suspension of the settlement discussions, was used by the Commission to establish that there was anticompetitive contact between the appellant and Samsung on the same day. The appellant disputed the authenticity of that email before the Commission and submitted an expert report in its observations on the second statement of facts, on the occasion of which that email was communicated to it. Without having recourse to an independent forensic expert report, the Commission dismissed the appellant’s doubts on the basis of its own forensic assessments regarding the authenticity of that email.
63 By this part of the first ground of appeal, the appellant takes issue with the General Court’s rejection of its argument that the Commission should have had recourse to an independent export report in order to satisfy itself of the authenticity of the email of 3 November 2003. In that regard, the General Court held, in paragraph 118 of the judgment under appeal, that the Commission has some latitude in deciding on additional steps to be taken and that, in the present case, the appellant failed to establish that such a request was necessary.
64 The appellant submits that, in so doing, the General Court placed on it the burden of proving that the email of 3 November 2003 was not authentic, thereby vitiating the judgment under appeal by an error of law.
65 The Court notes that the principle which prevails in EU 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, secondly, that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 128 and the case-law cited).
66 When the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence so that the Commission bears the burden of proving that that circumstance was not capable of affecting the probative value of that evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, first, the existence of the circumstance relied on by it and, second, that that circumstance calls into question the probative value of the evidence relied on by the Commission (judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 76).
67 Those considerations are applicable to a situation in which the appellant contests, as in the present case, the authenticity of an item of evidence rather than its credibility.
68 In the present case, it is apparent from recitals 164 to 174 of the decision at issue and paragraphs 65, 74, 82 and 182 of the judgment under appeal that, in that decision, the Commission responded in detail to the concerns raised by the appellant with respect to the authenticity of the email of 3 November 2003 and that it essentially dismissed them. In those circumstances, it was for the appellant to show, before the General Court, that the Commission had vitiated its response by errors on account of an insufficient investigation. However, in that latter respect, it is apparent in essence from paragraphs 65 and 82 to 84 of the judgment under appeal that the appellant did not succeed in establishing that such errors were committed.
69 It follows that that the General Court was entitled, without effecting an unjustified reversal of the burden of proof, to reject the appellant’s various arguments alleging the inauthenticity of the email of 3 November 2003, on the ground that that email did not establish that the Commission’s explanations were incorrect. The General Court was also entitled, without effecting such a reversal, to reject, in paragraph 118 of the judgment under appeal, the appellant’s arguments that the Commission should have requested an independent forensic expert report in order to establish the authenticity of that email.
70 In so far as the appellant claims, in that context, an infringement of its rights of defence, it is sufficient to observe that it was able, both during the administrative procedure and the procedure before the General Court, to put forward its arguments relating to the authenticity of the email of 3 November 2003.
71 In the light of the foregoing, inasmuch as the appellant’s arguments relating to paragraphs 143, 144 and 150 of the judgment under appeal are based on the incorrect premiss that the General Court placed on it the burden of proving that the email of 3 November 2003 was not authentic, they must be regarded as ineffective.
72 The second part of the first ground of appeal must therefore be rejected.
73 By the third part of the first ground of appeal, the appellant complains that the General Court infringed its rights of defence and made a manifest error of law, inasmuch as it held, in paragraph 85 of the judgment under appeal, that the failure to communicate in good time to the appellant the Commission’s forensic assessments relating to the authenticity of the email of 3 November 2003, which constituted inculpatory evidence, had had no effect on the result at which the Commission arrived in the decision at issue.
74 The appellant submits that the Commission’s failure to communicate to it those assessments deprived it of the opportunity to further substantiate the serious concerns it had raised in respect of the authenticity of that email, to demonstrate its inauthenticity or the need for an independent expert and to respond to the Commission’s assessments. The breach of its rights of defence, which is further compounded by the misallocation of the burden of proving the inauthenticity of that email, cannot be remedied by the submission of the forensic assessments in the course of the procedure before the General Court.
75 The Commission contests all those arguments.
76 By this part, the appellant claims that the General Court was wrong to reject its line of argument alleging that the Commission, by failing to communicate to it during the administrative procedure its own forensic assessments relating to the authenticity of the email of 3 November 2003, had infringed the appellant’s rights of defence.
77 In that regard, the General Court observed, in paragraphs 77 and 80 of the judgment under appeal, that the Commission should have provided its forensic assessments to the appellant as inculpatory evidence. It nevertheless held, in paragraphs 81 to 85 of that judgment, that the appellant had not established that the result at which the Commission had arrived in the decision at issue would have been different if there had been such a communication, and therefore rejected the appellant’s line of argument alleging infringement of its rights of defence.
78 In so doing, the General Court complied with the case-law of the Court of Justice according to which an infringement of the rights of the defence results in the annulment of the contested measure only if, without such an irregularity, the outcome of the procedure might have been different, which it is for the undertaking concerned to show (judgment of 16 June 2016, SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission, C‑154/14 P, EU:C:2016:445, paragraph 69 and the case-law cited).
79 The appellant has not submitted any material capable of showing that the General Court erred in law or distorted the facts or evidence inasmuch as it found, on the basis of the arguments and evidence submitted before it, that the appellant had not established that the result at which the Commission arrived in the decision at issue might have been different if that institution had communicated to the appellant its forensic assessments during the administrative procedure.
80 Accordingly, the third part of the first ground of appeal must be rejected.
81 The fourth part of the first ground of appeal, alleging breaches of the presumption of innocence, of the rights of the defence and of the obligation to state reasons, is divided into two main complaints.
82 By its first complaint, the appellant disputes the General Court’s assessments, set out in particular in paragraphs 93 and 126 of the judgment under appeal, relating to Samsung’s credibility as a witness.
83 In the first place, the appellant submits that the argument that Samsung is a credible witness because of its status as a leniency applicant is valid only for evidence provided by a witness who has already been granted a provisional leniency status by the Commission. However, that was not the case in respect of Samsung at the time that the contested evidence was submitted. Facing a full fine after the settlement had failed, Samsung had nothing to lose from making false statements especially as, under Korean law, it ran no risk of criminal penalties for making a false statement.
84 Accordingly, the General Court should have had to rely on other evidence for the purpose of supporting the existence of the contested bilateral contacts between Samsung and the appellant. However, there is no such evidence. In that regard, the appellant criticises paragraphs 145 to 151 of the judgment under appeal which, in its submission, cannot be considered to be points merely for the sake of completeness. Paragraphs 148 and 149 of that judgment, which state that the evidence provided by Samsung was corroborated by other members of the infringement, contradict paragraph 155 of that judgment. The email of Philips, mentioned in paragraph 147 of the judgment under appeal, relies solely on a ‘statement by hearsay’ and the appellant had no bilateral contact with Philips. The passages of the decision at issue referred to do not state that NXP Semiconductors NV submitted material corroborating the evidence adduced by Samsung. The fact, mentioned in recital 157 of the decision at issue, that Renesas might have produced material in support of that evidence is illogical and contradicted by the General Court’s partial review, which did not examine or establish the existence of a meeting between Renesas and the appellant in 2003, the year of the contested contacts with Samsung. Therefore, Renesas could not substantiate the contested facts established on the basis of the inadmissible evidence from Samsung.
85 Since the appellant’s witness, unlike Samsung’s witness, runs a risk of criminal penalties in the event of a false affidavit, the General Court should have favoured the statements of the appellant’s witness and given the appellant the benefit of the doubt, in accordance with the principle in dubio pro reo.
86 In the second place, that principle was also infringed on the ground that, in paragraphs 123 and 124 of the judgment under appeal, the General Court applied to Samsung the rule of legal privilege between a lawyer and his client, to the detriment of the appellant. As regards the statement in question, the Samsung employee who supplied that statement provided only faint recollections to Samsung’s counsel, 10 years after the alleged infringement.
87 By the second complaint, the appellant submits that the General Court wrongly considered that its non-SIM chips formed part of the infringement at issue, provided insufficient reasoning in its judgment and infringed the principle in dubio pro reo.
88 First, in paragraph 255 of the judgment under appeal, the General Court used an incorrect translation of the Samsung internal report and thus distorted the evidence. On the basis of the correct translation, the General Court could not have taken the view that the evidence at issue supported the finding that non-SIM chips were the subject of the discussion between Samsung and the appellant on 24 September 2003.
89 Second, the findings made in paragraph 256 of the judgment under appeal are not capable of establishing that revenues relating to non-SIM chips should be included in the calculation of the fine for the entire infringement period and are at odds with the approach set out in paragraph 160 of that judgment. In the Samsung internal report used to establish the contact of 24 September 2003, non-SIM chips are mentioned only for 2004 in a highly generic statement which cannot be regarded as having as its object or effect a restriction of competition. The statement is not capable of reducing Samsung’s uncertainty, given that, in the sector of smart card chips, which are short-lived due to continuous technological progress, prices are constantly declining. In the absence of any other contact relating to non-SIM chips, revenues relating to those products could at most have been taken into account, for the calculation of the amount of the fine, only in respect of 2004.
90 Third, the appellant disputes the correlation between SIM chips and non-SIM chips found in paragraph 257 of the judgment under appeal, inasmuch as that correlation is vitiated by a manifestly erroneous assessment and thus by a distortion of the evidence used by the Commission in recital 221 of the decision at issue. It is apparent from recitals 6 and 221 of that decision that the smart card chip market could be split into two segments. If the segmentation was not absolute, the Commission would not however have found any correlation.
91 Fourth, even if such a correlation exists, the General Court failed to explain how any alleged exchange concerning SIM chips could have adversely impacted competition in relation to non-SIM chips. In particular, paragraph 258 of the judgment under appeal is insufficiently reasoned in this respect. Moreover, the statement of Renesas, referred to in recital 217 of the decision at issue, according to which the infringement concerned both types of chips and information about non-SIM applications was relevant to suppliers of SIM applications, was unsubstantiated and was challenged by the appellant and Philips. In the light of that challenge, that statement should have been corroborated by other material in order that it could be taken into account.
92 The Commission disputes the merits of all those arguments.
93 By the first complaint, the appellant disputes some of the General Court’s findings in relation to Samsung’s credibility as a witness and the probative value ascribed to evidence that Samsung submitted.
94 In that regard, first, it must be stated, first of all, that the General Court was correct to find, in paragraph 93 of the judgment under appeal, that the fact that the Samsung employee who was the author of the statement whose probative value the appellant disputed ran no risk of criminal sanctions in Korea in the event of a false affidavit does not deprive that affidavit of its probative value, since Samsung, as an applicant under the Leniency Notice, risked losing the benefit of that leniency if it made a false statement.
95 Indeed, any attempt by an applicant under that notice to mislead the Commission could call into question the sincerity and the completeness of its cooperation, and thereby jeopardise its chances of benefiting fully under that notice (see, by analogy, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 138).
96 Next, the appellant, by its claim that the evidence adduced by Samsung should have been corroborated by other members of the infringement at issue, which was not the case, does not in actual fact dispute paragraphs 148 and 149 of the judgment under appeal but the Commission’s assessments in recitals 156 to 161 of the decision at issue, according to which Samsung’s statements had been corroborated by other members of the infringement at issue. In those paragraphs, the General Court found that those assessments were not called into question before it, which the appellant does not dispute before the Court of Justice.
97 Accordingly, that claim is inadmissible in accordance with settled case-law that, in an appeal, the jurisdiction of the Court of Justice is confined to a review of the findings of law on the pleas and arguments debated before the General Court. Accordingly a party cannot raise for the first time before the Court of Justice an argument that it did not put forward before the General Court (see, to that effect, judgments of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 43, and of 13 December 2017, Telefónica v Commission, C‑487/16 P, not published, EU:C:2017:961, paragraph 84).
98 Moreover, it is necessary to reject the argument based on an alleged contradiction of the grounds between paragraphs 148 and 149 of the judgment under appeal and paragraph 155 of that judgment. In paragraph 155, without contradicting the fact that, as a whole, Samsung’s statements were corroborated by other members of the infringement, the General Court confined itself to replying to an argument of the appellant by observing that, in recitals 152, 157 and 158 of the decision at issue, which are contested by the appellant, the Commission had not found that the contacts of 3 and 17 November 2003 had been corroborated by evidence from those other members.
99 Lastly, the argument alleging distortion of the evidence on account of the reference, in paragraph 147 of the judgment under appeal, to NXP Semiconductors is based on a misreading of the decision at issue. Contrary to what the appellant claims, NXP Semiconductors is mentioned in recitals 158, 159 and 161 of that decision.
100 Second, as regards paragraphs 123 and 124 of the judgment under appeal, it should be pointed out that, in so far the appellant relies on the vagueness of the statement mentioned in paragraph 123 of that judgment, it is, in reality, seeking to obtain a fresh assessment of the probative value of that statement, which, according to settled case-law of the Court of Justice, falls outside the jurisdiction of the Court, save where that evidence has been distorted (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 153 and the case-law cited). Moreover, as regards the argument relating to paragraph 124 of the judgment under appeal, it is sufficient to note that that paragraph set outs a ground included for the sake of completeness, as evidenced by the introductory expression ‘in any event’. Accordingly, that argument is ineffective.
101 Consequently, the first complaint must be rejected.
102 By the second complaint, directed against paragraphs 255 to 258 of the judgment under appeal, the appellant essentially alleges distortions of evidence against the General Court inasmuch as it upheld the finding that the appellant participated in an infringement relating to non-SIM chips and confirmed that the appellant’s revenues relating to those products should be taken into account in the calculation of the amount of the fine.
103 There is distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. It is for appellants to indicate precisely the evidence which has been distorted and show the errors of appraisal which have allegedly been made (see, to that effect, judgments of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraphs 16 and 17, and of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraphs 47 and 48).
104 In paragraphs 255 to 258 of the judgment under appeal, the General Court rejected the fifth plea raised before it, alleging an error in calculating the amount of the fine inasmuch as the Commission had taken account of non-SIM chips.
105 First, in paragraph 255 of the judgment under appeal, the General Court found that the appellant and Samsung had raised the matter of the prices and the market of non-SIM chips during the contact of 24 September 2003. In paragraph 256 of that judgment, the General Court held that that fact, which emerged from the internal report of a Samsung employee, was sufficient to find that the anticompetitive discussions had not only concerned SIM chips, even though there was no written evidence of the existence of other exchanges between the appellant and its competitors regarding non-SIM chips.
106 In that regard, it should be pointed out that, on the assumption that the General Court relied on an incorrect translation of that internal report, the fact remains that it is apparent from the two translations submitted by the appellant before the Court of Justice that prices in sectors which, such as banking and ID, use non-SIM chips were indeed discussed during the contact of 24 September 2003. The General Court did not therefore distort the evidence in finding the existence of an exchange on the prices of non-SIM chips on the occasion of that contact.
107 Second, in paragraph 257 of the judgment under appeal, the General Court added that the appellant had not put forward any argument in its pleadings aimed at challenging the assessment, in recital 221 of the decision at issue, that there is a correlation between SIM chips and non-SIM chips. Since the General Court considered that the anticompetitive practices concerning the prices of SIM chips necessarily had an effect on the price of non-SIM chips, it found, in paragraph 258 of that judgment, that the fact that SIM chips and non-SIM chips were not part of the same product market had no bearing on whether the Commission was entitled to take non-SIM chips into consideration for the purpose of calculating the amount of the fine.
108 Before the Court of Justice, the appellant has not challenged the General Court’s interpretation of its pleadings at first instance according to which it did not dispute the Commission’s finding of a correlation between SIM chips and non-SIM chips. When questioned in this respect at the hearing before the Court of Justice, the appellant did not indeed identify any material in those pleadings showing that it disputed that correlation before the General Court. Accordingly, the appellant is not entitled to dispute the assessment of that correlation before the Court of Justice.
109 In those circumstances, and given that, before the General Court, the appellant did not properly challenge all the findings made in the decision at issue in order to justify the inclusion of non-SIM chips in the infringement that it committed, the appellant cannot claim that the General Court misconstrued the scope of its unlimited jurisdiction by confirming that the Commission was correct to take account of its revenues relating to those chips for the entire duration of its participation in the infringement at issue.
110 Consequently, the second complaint and, therefore, the fourth part of the first ground of appeal must be rejected.
111 By the fifth part of the first ground of appeal, the appellant complains that the General Court distorted the evidence.
112 In the first place, the General Court distorted the evidence by stating, in paragraph 160 of the judgment under appeal, that prices were determined, in principle, on an annual basis. It is apparent from recitals 38 to 41 and recitals 65 and 297 of the decision at issue that prices were negotiated on an annual or quarterly basis, or even more frequently. If the General Court had taken account of quarterly price negotiations, it would have needed further evidence in order to find that the appellant participated in the infringement at issue.
113 In the second place, the General Court distorted the evidence by identifying the email referred to in paragraphs 191 to 196 of the judgment under appeal as an email from Samsung. It is apparent from the evidence in question and from recital 116 of the decision at issue that it is an internal email of the appellant. That distortion resulted in a breach of the duty to perform a full review of the appellant’s arguments.
114 The Commission disputes the merits of those arguments.
115 In the first place, the appellant claims that the General Court distorted the evidence by stating, in paragraph 160 of the judgment under appeal, that prices were determined, in principle, on an annual basis.
116 As is expressly apparent from paragraph 160 of the judgment under appeal, without the appellant, when questioned in this respect at the hearing before the Court, casting doubt thereon, it did not dispute, before the General Court, the fact that prices were negotiated, in principle, on an annual basis. Accordingly, the argument relating to that paragraph 160 is inadmissible in accordance with the case-law cited in paragraph 97 of this judgment.
117 In the second place, the appellant complains that the General Court distorted facts when assessing, in paragraphs 191 to 196 of the judgment under appeal, the contact with Samsung between 1 and 8 June 2004.
118 It is necessary to examine that line of argument in the light of the case-law recalled in paragraphs 100 and 103 of this judgment.
119 In the present case, the Commission agrees with the appellant that, in paragraphs 191 and 193 of the judgment under appeal, the General Court erroneously identified the email referred to in those paragraphs as an email from Samsung which was discovered at Samsung’s premises, whereas it originated from the appellant and was discovered at its premises.
120 However, before the Court of Justice, the appellant disputes neither the actual existence and the substantive content of the email in question nor the conclusions that the General Court drew on the basis of that email. In particular, it does not put forward any argument capable of showing that the General Court distorted the evidence by finding, on the basis of that email, that it had participated in a contact with Samsung and exchanged, on that occasion, certain items of information that the General Court, which alone has jurisdiction to assess the facts, classified as anticompetitive.
121 In those circumstances, it must be held that the erroneous identification of the email in question results from a clerical error which had no effect on the substantive assessment of the appellant’s arguments relating to the contact which took place from 1 to 8 June 2004 in the light of the content of that email.
122 To the extent that the appellant adds that, on account of the erroneous identification of the email in question, the General Court infringed its duty to perform a full review of its arguments, it must be observed that its line of argument does not make it possible to identify the errors of law that it alleges against the General Court, and that line of argument must therefore be rejected as inadmissible in that regard.
123 In view of the foregoing, the fifth part of the first ground of appeal must be rejected.
124 In the light of all the foregoing considerations, the first ground of appeal must be rejected, subject to examination, in paragraph 191 et seq. of this judgment, of the first part of the first ground of appeal inasmuch as it alleges breach of unlimited jurisdiction.
125 The appellant’s second ground of appeal comprises three parts.
126 By the first part of the second ground of appeal, the appellant complains that the General Court erred in law by classifying the relevant facts under Article 101 TFEU. It disputes the General Court’s assessment of the contacts of 24 September and 3 November 2003 with Samsung.
127 In the first place, as regards the contact of 24 September 2003, first, the appellant is of the opinion that the findings in paragraph 168 of the judgment under appeal do not support a finding of a restriction of competition as early as 2003. First of all, referring to recitals 90 and 297 of the decision at issue, the appellant observes that only two references to prices in 2003 can be inferred from the body of evidence used, namely (i) a mere observation of the pricing levels on the market at the relevant time which were publicly known and (ii) an adjustment of prices for the fourth quarter of 2003 in the case of the customer Schlumberger Smart Cards and Terminals. Next, the appellant submits that the exchanges on future prices and capacities mentioned in paragraph 168 of the judgment under appeal cannot support the finding that the alleged infringement may have already affected competition as early as 2003. Lastly, the judgment under appeal does not contain any analysis as to the effects of the exchange in relation to prices in 2003 on competition, and the General Court did not classify that exchange as a restriction of competition by object.
128 Second, the appellant submits that the statement - which is indeed generic and does not indicate any future pricing or market behaviour - relating to non-SIM chips on the occasion of the contact of 24 September 2003 is not alone sufficient to establish an unlawful exchange of sensitive information with regard to those products. Neither the Commission nor the General Court has established that the sharing of that information could restrict competition. Accordingly, by finding the contrary in paragraph 256 of the judgment under appeal, the General Court erred or even distorted the evidence. Consequently, it incorrectly took account of revenues relating to those products for the purpose of calculating the amount of the fine imposed on the appellant.
129 In the second place, as regards the contact of 3 November 2003, the appellant submits that the General Court infringed its obligation to state reasons, since it provided no reason capable of classifying that contact as an unlawful exchange of information and failed to respond to the arguments set out in this regard in paragraphs 83 to 86 of the application at first instance.
130 Moreover, the assessment, in paragraphs 181 to 183 of the judgment under appeal, regarding the probative value of the evidence used in order to establish the contact of 3 November 2003 is vitiated by breaches of the obligation to state reasons and of the presumption of innocence and by a manifest error of assessment and a distortion of the evidence. Neither the Commission nor the General Court provided a sufficient explanation for the existence of the different versions of the email of 3 November 2003 or its authenticity. As regards the body of evidence set out in paragraph 183 of that judgment, which merely consists of two sources, the appellant states that the Renesas internal email of 7 October 2003 is based on information by hearsay and that, since it predates the contact of 3 November 2003, it clearly cannot demonstrate the existence of that contact. The General Court failed to explain the reasons why the Commission could infer from Samsung’s email of 7 November 2003, which mentioned only the proposal for a future meeting on 17 November 2003, that the contact of 3 November 2003 had taken place. For those reasons, the General Court infringed the rules on the burden of proof, distorted the evidence and made manifestly incorrect assessments.
131 The Commission submits that those arguments are both inadmissible, inasmuch as the appellant seeks to call into question the General Court’s factual assessments, and unfounded.
132 As a preliminary point, in view of the Commission’s arguments, it must be stated that, for the most part, by the arguments raised in support of this part, the appellant does not seek to challenge the General Court’s factual assessments, but alleges errors of law that the latter made in the assessment of the contacts with Samsung of 24 September and 3 November 2003.
133 In the first place, as regards the contact of 24 September 2003, the appellant disputes paragraphs 168 and 256 of the judgment under appeal, inasmuch as the General Court held that the infringement that it committed started during 2003 and related to non-SIM chips.
134 First, it is common ground that, as the General Court observed in particular in paragraphs 166, 168 and 173 to 175 of the judgment under appeal, during the contact of 24 September 2003, the appellant and Samsung exchanged sensitive information relating, in particular, to their future prices.
135 It is on account of the very object of that discussion between competitors that the General Court was fully entitled to classify it as an infringement by object, without moreover - as is apparent from paragraphs 157 to 160 of this judgment - the arguments raised by the appellant in the context of the second part of this ground of appeal being capable of establishing that that classification is vitiated by an error of law.
136 In those circumstances, even if the competitors did not discuss prices for 2003, the General Court did not make an error of law regarding the beginning of the infringement period by finding that the appellant had participated in such an infringement from 24 September 2003 onwards.
137 Accordingly, not only are the appellant’s arguments seeking to show that, at the meeting of 24 September 2003, prices for 2003 were not discussed aimed in reality at obtaining a fresh examination of the facts which falls outside the jurisdiction of the Court of Justice on appeal, but are also irrelevant.
138 Moreover, the General Court was in no way required to examine and establish the existence of anticompetitive effects for 2003. According to the case-law of the Court of Justice, there is no need to consider the effects of a concerted practice where its anticompetitive object is established (judgment of 4 June 2009, T‑Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 30).
139 Second, as regards the argument relating to the infringement concerning non-SIM chips and directed against paragraph 256 of the judgment under appeal, it should be pointed out that it is apparent from reading the appellant’s pleadings at first instance that, in its fifth plea raised before the General Court, it denied any discussion on non-SIM chips, without in any way claiming, if need be in the alternative, that the discussion relating to those products on the occasion of the contact of 24 September 2003 could not be classified as anticompetitive by object. Accordingly, the General Court was not required to consider that matter in more detail. As to the remainder, it is necessary to refer to the findings set out in paragraphs 104 to 109 of this judgment.
140 In the second place, as regards the contact of 3 November 2003, the appellant disputes the General Court’s assessments in paragraphs 181 to 183 and 185 of the judgment under appeal concerning the existence of that contact and its unlawful nature, respectively.
141 First, in paragraphs 181 to 183 of the judgment under appeal, the General Court found (i) that the appellant had not proved that the objective reasons, which were put forward by the Commission to explain why there are several versions of the email of 3 November 2003, are incorrect and (ii) that there was a body of evidence resulting from other evidence tending to show that an anticompetitive contact took place on that date.
142 In that regard, it has already been noted, in paragraphs 68 and 69 of this judgment, that it was for the appellant to dispute, before the General Court, the Commission’s findings in the decision at issue regarding the authenticity of the email of 3 November 2003 and that the General Court set out the reasons why the appellant had not succeeded in showing that those findings were incorrect.
143 In those circumstances, the General Court did not err in law and infringe its obligation to state reasons by rejecting the appellant’s arguments relating to the authenticity of the email of 3 November 2003.
144 Moreover, as regards the argument by which the appellant criticises the body of evidence mentioned in paragraphs 181 and 183 of the judgment under appeal, it is sufficient to recall that, save where the evidence has been distorted, the assessment thereof falls outside the jurisdiction of the Court of Justice on appeal. Although the appellant claims that the evidence comprising that body of evidence is not capable of supporting the existence of an unlawful contact on 3 November 2003, it does not in any way establish that the General Court distorted that evidence.
145 Second, in paragraph 185 of the judgment under appeal, the General Court held, in so far as the appellant submitted that the contact of 3 November 2003 did not constitute a restriction of competition by object, that the Commission was not required to establish that each unlawful discussion constituted such a restriction, provided that it had established that the practices in question, taken together, constituted a restriction of competition by object.
146 In so doing, as the appellant claims, the General Court found that the discussion in question was unlawful and refrained from examining the appellant’s arguments relating to the anticompetitive nature by object of the contact of 3 November 2003.
147 However, in the light of the findings set out in paragraphs 43 to 55 of this judgment, such an approach is not contrary, in the circumstances of the present case, to the requirements of the review of the lawfulness of the finding of the infringement. The appellant does not indeed submit that such an approach would be capable of affecting the assessment of the appropriateness of the amount of the fine to the infringement.
148 Accordingly, the first part of the second ground of appeal must be rejected.
149 By the second part of the second ground of appeal, the appellant complains that the General Court misinterpreted the concept of restriction of competition by object in paragraphs 172 to 176, 185 and 189 of the judgment under appeal. In the appellant’s submission, the General Court failed to conduct a sufficient analysis of the nature of the practices at issue and confined itself, in particular in paragraphs 176 and 189 of that judgment, to insufficient reasoning and a contradictory approach.
150 The appellant submits that the General Court, disregarding the case-law of the Court of Justice in that respect, failed to analyse and demonstrate that the exchanges of information in question revealed a sufficient degree of harm to competition in the smart card ship market. It submits that a sporadic exchange on current market prices or general and potential future price trends and market developments do not reveal, in themselves, such harm in an extremely competitive market such as that smart card chip market.
151 The appellant states that the assessment, which is insufficiently reasoned, set out in paragraph 174 of the judgment under appeal according to which the conduct at issue ‘was capable’ of ‘enabling the competitors to limit’ competition introduces two uncertain conditions which differ from the criterion of the degree of harm required by the Court of Justice.
152 Lastly, in view of the different characteristics of the five contacts examined by the General Court, the latter erred in finding, as it appears to have done in paragraph 185 of the judgment under appeal, an overall restriction of competition by object.
153 The Commission contests all those arguments.
154 By the second part of the second ground of appeal, the appellant complains that the General Court disregarded the case-law of the Court of Justice relating to the concept of a restriction of competition by object.
155 According to the case-law of the Court of Justice, the essential legal criterion for ascertaining whether an agreement or a concerted practice involves a restriction of competition ‘by object’, for the purposes of Article 101(1) TFEU, is the finding that such an agreement or practice reveals in itself a sufficient degree of harm to competition for it to be considered that it is not appropriate to assess its effects (see, to that effect, judgment of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 104 and the case-law cited).
156 In order to determine whether a type of coordination between undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’, regard must be had, inter alia, to its content, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (see, to that effect, judgments of 5 December 2013, Solvay Solexis v Commission, C‑449/11 P, not published, EU:C:2013:802, paragraph 36; of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 117 and the case-law cited; and of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 105 and the case-law cited).
157 First, as regards the contact of 24 September 2003, it is apparent from the findings of fact carried out by the General Court in paragraphs 164 and 165 of the judgment under appeal that the appellant and Samsung exchanged information regarding their current and future capacities and prices, as well as their technological development strategy. In paragraph 166 of that judgment, the General Court found that such an exchange on prices and capacities is capable, in particular on a market where supply and demand are concentrated, of influencing directly the commercial strategy of competitors.
158 In response to the appellant’s arguments aimed at disputing the Commission’s classification of that contact as a restriction of competition by object, the General Court once again noted, in particular, the case-law cited in paragraph 155 of this judgment and found, in paragraphs 173 and 174 of the judgment under appeal, that the economic factors characterising the market in question, which were not contested by the appellant, were capable of establishing that the undertakings in question would take advantage of an exchange of sensitive information concerning their competitors’ strategic policies in terms of prices, capacity and technological development, inasmuch as that exchange was capable of allowing them to slow down the price decrease inherent in the market in question.
159 In so doing, contrary to the appellant’s arguments, the General Court complied with the case-law set out in paragraphs 155 and 156 of this judgment. The General Court examined the content of the exchange between the competitors, including the nature of the information exchanged, assessed the objectives pursued by the competitors and took account of the context of the market in which those discussions took place.
160 Moreover, contrary to what the appellant suggests, classification of the exchange of sensitive information between the competitors on the market in question as a restriction of competition by object cannot depend on the frequency of the exchanges of information. Indeed, no such criterion can be inferred from the case-law cited in paragraphs 155 and 156 of this judgment.
161 Second, in paragraph 176 of the judgment under appeal, the General Court rejected the appellant’s argument that the Commission had failed to demonstrate that the discussions relating to production capacity on the occasion of the contact of 24 September 2003 were liable to restrict competition. According to the General Court, since the Commission had identified the reasons why it considered that that exchange was, in the light of the market characteristics, capable of restricting competition, it was not required to demonstrate the existence of anticompetitive effects.
162 It follows that the General Court essentially found that, by its argument, the appellant was complaining that the Commission had failed to demonstrate the existence of anticompetitive effects. In its appeal, the appellant does not claim that the General Court was mistaken about the scope of its argument. Moreover, the General Court’s assessment of that argument is consistent with the case-law of the Court of Justice cited in paragraph 138 of this judgment.
163 Third, the appellant’s argument relating to paragraph 185 of the judgment under appeal must be rejected for the reasons set out in paragraphs 145 to 147 of this judgment.
164 Fourth, the ground set out in paragraph 189 of the judgment under appeal, according to which ‘the exchange of … confidential information [relating to the intention to increase prices for an entire specific category of products] between competitors led necessarily to a distortion of competition’, cannot, in the light of the economic context of the smart card chip market, as described in paragraph 173 of the judgment under appeal, be regarded as vitiated by an error of law.
165 Consequently, the second part of the second ground of appeal must be rejected.
166 By the third part of the second ground of appeal, the appellant disputes the grounds set out in paragraphs 215 to 224, 226 and 227 of the judgment under appeal regarding its participation in a single and continuous infringement.
167 It observes that there is a contradiction of grounds between paragraphs 215, 226 and 227 of the judgment under appeal, inasmuch as the General Court attributed to it liability for the overall infringement at issue, whilst also stating that it had not participated in the single and continuous infringement as a whole.
168 Moreover, the appellant observes that, according to the case-law of the Court of Justice, three conditions must be met in order to establish an undertaking’s participation in a single and continuous infringement, namely, first, the existence of an overall plan pursuing a common objective, second, that undertaking’s intentional contribution to that plan and, third, its awareness, proved or presumed, of the offending conduct of the other participants. However, in this case, neither the General Court nor the Commission provided reasons to support a finding that it had intentionally contributed to the same single objective as Renesas, Samsung and Philips. As is apparent from recital 312 of the decision at issue and from paragraph 231 of the judgment under appeal, the Court and the Commission did not moreover establish that the appellant was aware of the conduct of Renesas, Samsung and Philips.
169 Thus, both the Commission and the General Court failed to have regard to the criterion relating to the individual intention to participate in a common plan. By contrast, in the judgment of 15 July 2015, voestalpine and voestalpine Wire Rod Austria v Commission (T‑418/10, EU:T:2015:516, paragraph 302), the General Court carried out a detailed analysis of that criterion.
170 The Commission contests the merits of that part
171 By the third part of the second ground of appeal, the appellant complains that the General Court erred in law in the analysis of its participation in a single and continuous infringement.
172 According to the case-law of the Court of Justice, an undertaking which has participated in a single and complex infringement, by its own conduct, which meets the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42, and of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 157).
173 On the other hand, if an undertaking has directly taken part in one or more of the forms of anticompetitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk (judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 44, and of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 159).
174 In the present case, in accordance with that case-law, the General Court observed, in paragraph 226 of the judgment under appeal, that the finding of the existence of a single infringement is separate from the question whether liability for that infringement as a whole is imputable to an undertaking.
175 In that latter respect, it is unequivocally clear from the findings made by the General Court in paragraphs 229 and 231 of the judgment under appeal that, notwithstanding some ambiguity of the decision at issue, whose main findings the General Court set out in paragraphs 215, 227 and 228 of that judgment, in that decision, the Commission held the appellant liable for its participation in the infringement at issue on account solely of its bilateral contacts with Samsung and Renesas and that it did not attribute liability to the appellant for that infringement as a whole.
176 Accordingly, the judgment under appeal is not vitiated by contradictory reasoning regarding the extent of the appellant’s participation in the infringement at issue.
177 Moreover, given that the appellant was held liable for its participation in the infringement at issue not as a whole, but only to the extent that it participated directly in manifestations of that infringement, it was entirely unnecessary, in the present case, to establish that it was aware of the collusive conduct of the other members of that infringement.
178 Accordingly, it is necessary to reject the third part of the second ground of appeal and, consequently, the second ground of appeal in its entirety.
179 The third ground of appeal raised by the appellant is in two parts.
180 By the first part of the third ground of appeal, the appellant complains that the General Court made a manifest error of assessment when determining the amount of the fine, on account of the incomplete and selective review, as highlighted in the first part of the first ground of appeal, of the bilateral contacts which it disputed. In the exercise of its unlimited jurisdiction, the General Court should have taken account of the number of incidents and the individual participation of each undertaking in the infringement. By omitting to do so, the General Court failed to have regard to the case-law of the Court of Justice. The General Court also provided insufficient reasons for its assessment that the reduction of the fine granted by the Commission was appropriate even though the General Court examined less than half of the contacts whose existence had been established by the Commission and the appellant had contested the proportionality of the amount of the fine imposed on it on the basis of those contacts.
181 By the second part of the third ground of appeal, the appellant complains that the General Court failed to have regard to the principle of proportionality.
182 In the first place, it submits that the General Court took insufficient account of the fact that it participated in a limited manner in the infringement.
183 The appellant claims that, contrary to what the General Court held in paragraph 239 of the judgment under appeal, it had put forward arguments challenging the reduction of 20% granted by the Commission in paragraph 172 of its application at first instance and in paragraph 115 of its reply lodged before the General Court.
184 Moreover, the appellant submits that the General Court omitted, thus failing to apply the case-law of the Court of Justice, to take account of the relative gravity of its very limited individual participation in the infringement for the purpose of determining the amount of the fine. That amount does not reflect the appellant’s actual participation in that infringement since the General Court reviewed only a small number of contacts, the appellant was unaware of the bilateral contacts between the other participants in the infringement and only a single contact involving the appellant concerned non-SIM chips. It specifies that its revenues relating to non-SIM chips made up more than 50% of its overall turnover and that the infringement for non-SIM chips could have related only to 2004. The General Court thus failed to consider sufficiently the proportion of the turnover accounted for by the goods in respect of which the infringement was committed, contrary to what is required by the case-law of the Court of Justice.
185 In the second place, the appellant disputes paragraphs 269 and 270 of the judgment under appeal by submitting that, by imposing on it a disproportionate fine, the Commission and the General Court infringed Article 49 of the Charter of Fundamental Rights of the European Union and the General Court failed to have regard to its unlimited jurisdiction. In the appellant’s submission, the General Court failed to take account of its limited participation in the infringement at issue. In particular, the determination of the amount of the fine resulted from an incorrect calculation of the turnover which is contrary to the case-law cited in paragraph 269 of that judgment. The appellant’s entire revenues relating to non-SIM chips during the whole period of the alleged infringement were therefore incorrectly taken into account. In the appellant’s submission, the infringement relating to non-SIM chips was relevant at most (quod non) only for 2004.
186 The Commission contends that those arguments should be rejected.
187 As regards the first part, the Commission argues that the number of contacts in which the appellant participated cannot alter the gravity of its participation in the infringement, since the economic consequences of the anticompetitive contacts produced their effects after the date on which they took place.
188 As regards the second part of that ground of appeal, the Commission contends that the argument based on the fact that, when examining the gravity of the appellant’s participation in the infringement, the General Court should have taken account of the circumstance that only some of those contacts had related to non-SIM chips is inadmissible under Article 170 of the Rules of Procedure of the Court of Justice, since it has been put forward for the first time before the Court. In any event, the General Court was right to find that the infringement at issue related to such chips.
189 In the first place, the Commission observes that, since it is entitled to take into account the relative gravity of an undertaking’s participation in an infringement either when determining the basic amount of the fine that it may impose on it, or on account of mitigating or aggravating circumstances, the General Court rightly upheld the setting of a gravity percentage of 16% for all the parties to the cartel. The appellant has failed to show that the reduction of 20% applied to it would lead to an excessive fine, to the point of being disproportionate.
190 In the second place, as regards the alleged breach of the principle of proportionality, the Commission contends that the imposition of a fine on the appellant of an amount higher than that imposed by the decision at issue on the other participants in the infringement stems from the fact that the value of the sales of the appellant’s smart cards is the highest of the four participants. In that regard, the Commission states that turnover constitutes an objective criterion giving a proper measure of the harm of the collusive conduct to normal competition. None of the other factors relied on by the appellant could alter the General Court’s assessment of the gravity of the infringement.
191 Since the two parts of the third ground of appeal overlap in part, it is appropriate to examine them together. Moreover, in accordance with what was stated in paragraph 56 of this judgment, it is necessary to examine also the arguments raised in support of the first part of the first ground of appeal, inasmuch as they concern the General Court’s exercise of its unlimited jurisdiction.
192 In the first place, it must be recalled that the General Court alone has jurisdiction to examine how in each particular case the Commission assessed the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the General Court took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 101 TFEU and Article 23 of Regulation No 1/2003 and, second, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised in support of the claim for cancellation or reduction of the fine (judgment of 26 January 2017, Laufen Austria v Commission, C‑637/13 P, EU:C:2017:51, paragraph 58).
193 In the second place, according to the case-law of the Court of Justice, the unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the competent Court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (judgments of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited, and of 26 January 2017, Villeroy & Boch Austria v Commission, C‑626/13 P, EU:C:2017:54, paragraph 81).
194 It is true that the exercise of that jurisdiction does not amount to a review of the Court’s own motion, and proceedings are inter partes. It is, in principle, for the applicant to raise pleas in law against the decision at issue and to adduce evidence in support of those pleas (judgments of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 76 and the case-law cited, and of 26 January 2017, Villeroy & Boch Austria v Commission, C‑626/13 P, EU:C:2017:54, paragraph 83).
195 However, as the Advocate General observed in point 74 of his Opinion, in order to satisfy the requirements of Article 47 of the Charter of Fundamental Rights of the European Union when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (judgments of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited, and of 26 January 2017, Villeroy & Boch Austria v Commission, C‑626/13 P, EU:C:2017:54, paragraph 82).
196 In the third place, the gravity of the infringement must be assessed on an individual basis (judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 102). In order to determine the amount of a fine, it is necessary to take account of the duration of the infringement and of all the factors capable of affecting the assessment of its gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the European Union (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 56 and the case-law cited).
197 Those factors also include the number and intensity of the incidents of anticompetitive conduct (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 57 and the case-law cited).
198 However, the Court has recalled that there is no binding or exhaustive list of criteria to be taken into account when assessing the gravity of an infringement (judgments of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 54, and of 13 June 2013, Versalis v Commission, C‑511/11 P, EU:C:2013:386, paragraph 82 and the case-law cited).
199 Moreover, according to the case-law of the Court of Justice, the Commission may take into account the relative gravity of the participation of an undertaking in an infringement and the particular circumstances of the case when assessing the gravity of the infringement within the meaning of Article 23 of Regulation No 1/2003, or when adjusting the basic amount of the fine in the light of mitigating and aggravating circumstances. Granting such an option to the Commission is consistent with the case-law referred to in paragraph 196 of this judgment, since the undertaking’s individual conduct must, in any event, be taken into account when the amount of the fine is determined (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraphs 104 and 105).
200 In the present case, first of all, it is unequivocally clear from the decision at issue and from the General Court’s findings in paragraphs 215, 229 and 231 of the judgment under appeal that, although, in that decision, the Commission found the existence of a single and continuous infringement, that institution held the appellant liable for that infringement only to the extent of the unlawful contacts that it had with Samsung and Renesas between 24 September 2003 and 31 March 2005. Thus, the appellant was held liable for the infringement at issue only on the basis of the 11 bilateral contacts found in regard to it in the decision at issue and which it disputed before the General Court.
201 The Commission took account of that limited participation of the appellant in the infringement at issue in the calculation of the fine by granting to it a reduction of 20% on account of mitigating circumstances, whilst applying a uniform gravity multiplier of 16% in respect of all the participants in the infringement at issue.
202 Next, it is unequivocally clear from reading the application at first instance that the appellant sought not only the annulment of the decision at issue in so far as it concerns it, but also, in the alternative, a reduction of the amount of the fine that had been imposed on it. In that regard, it should be specified that, at the hearing before the Court of Justice, the Commission withdrew its line of argument that the appellant had not asked the General Court to exercise its unlimited jurisdiction.
203 By its pleas raised before the General Court, the appellant disputed inter alia the Commission’s assessments on each of the 11 bilateral contacts found against it and criticised the calculation of the amount of the fine that was imposed on it as regards both the gravity multiplier of 16% and the rate of reduction of 20% which was granted on account of mitigating circumstances.
204 It follows that, by its line of argument put forward in its application at first instance, the appellant requested the General Court to examine whether it actually participated in the infringement at issue and, if so, the precise extent of that participation. That line of argument could be relevant in order to assess, in accordance with the case-law cited in paragraph 195 of this judgment, in the light of the appellant’s conduct, whether the amount of the fine that was imposed on it is commensurate with the infringement that it committed.
205 Although, for the purpose of assessing the gravity of the infringement committed by the applicant and setting the amount of the fine, the General Court is not required to rely on the exact number of bilateral contacts found in regard to the applicant, that factor may nevertheless constitute a relevant factor among others (see, by analogy, judgments of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 132, and of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraph 277).
206 In those circumstances, the General Court was not entitled, without misconstruing the extent of its unlimited jurisdiction, to refrain from responding to the argument raised by the appellant according to which the Commission had infringed the principle of proportionality by setting the amount of the fine imposed without taking into account the small number of contacts in which the appellant participated. That conclusion is all the more compelling given that, in the present case, the General Court confined itself to confirming 5 of the 11 contacts found in the decision at issue, whilst not responding to the question whether the Commission had established the existence of the 6 other contacts found in that decision.
207 In so far as, in the judgment under appeal, the General Court did not review the proportionality of the amount of the fine imposed in relation to the number of contacts that it found against the appellant, and did not set out the reasons why it did not conduct such a review, it made an error of law.
208 That assessment is not called into question by the Commission’s arguments.
209 It is true, as the General Court recalled in paragraph 269 of the judgment under appeal, that the proportion of the overall turnover deriving from the sale of products in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 55), so that the fact that the appellant’s turnover is much greater than that of the other undertakings penalised may justify that the highest fine was imposed on it in the present case.
210 Moreover, according to the case-law of the Court of Justice, having regard to point 23 of the 2006 Guidelines, a gravity multiplier of 16% may be warranted in view of the very nature of the infringement at issue, since, as the General Court noted, it is among the most harmful restrictions of competition for the purpose of point 23 of the 2006 Guidelines and since that rate is one of the lowest rates on the scale of penalties prescribed for such infringements under those guidelines (see, to that effect, judgment of 26 January 2017, Aloys F. Dornbracht v Commission, C‑604/13 P, EU:C:2017:45, paragraph 75).
211 However, the circumstances identified and the case-law cited in paragraphs 209 and 210 of this judgment cannot, in themselves, justify, in the circumstances of the present case, the General Court refraining from examining whether the amount of the fine is commensurate with the number of contacts that it found in regard to the appellant. Indeed, such an examination was necessary in order to assess, in particular, whether the small number of those contacts warranted a reduction of the amount of the fine imposed on the appellant exceeding the 20% reduction granted to it on account of mitigating circumstances.
212 It is true that the Court has already held that it is not necessary to grant automatically a further reduction for each mitigating circumstance alleged by an applicant, even if it is well founded, provided that an overall analysis taking account of all the relevant circumstances leads to the finding that the amount of the fine imposed by the Commission is proportionate (see, to that effect, judgment of 5 December 2013, Caffaro v Commission, C‑447/11 P, not published, EU:C:2013:797, paragraphs 103 and 104).
213 Or, in this case, such an overall analysis taking account of all the relevant circumstances is specifically lacking in the judgment under appeal, in so far as the General Court refrained from examining the proportionality of the fine in relation to the number of contacts found against the appellant.
214 In the second place, the appellant’s arguments relating to the taking into account of its revenues deriving from non-SIM chips must be rejected for the reasons set out in paragraphs 104 to 109 and 139 of this judgment.
215 Consequently, it is necessary to uphold the first part of the first ground of appeal and the third ground of appeal in so far as the appellant complains that the General Court did not take account, when assessing the amount of the fine, of the number of contacts that it found against it, and to reject them as to the remainder.
216 It follows from the foregoing that the judgment under appeal is vitiated by an error of law as regards the General Court’s exercise of its unlimited jurisdiction.
217 In those circumstances, it is necessary to set aside the judgment under appeal inasmuch as the General Court rejected the appellant’s claim in the alternative for a reduction of the amount of the fine that the Commission imposed on it, and to dismiss the appeal as to the remainder.
218 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.
219 That is not the position in the present case.
220 It is common ground that the examination of the appellant’s claim for a reduction of the amount of the fine that was imposed on it by the decision at issue is likely to involve factual assessments relating, primarily, to the bilateral contacts, which it disputes in the third part of the third plea that it raised before the General Court, which were not assessed by the General Court and which have not been fully debated before the Court of Justice.
221 Consequently, it is necessary to refer the case back to the General Court for it to assess the proportionality of the amount of the fine imposed in relation to the number of contacts found against the appellant, if necessary by examining whether the Commission established the six contacts on which the General Court has not yet adjudicated.
222 Since the case is being referred back to the General Court, it is appropriate to reserve the costs.