By their appeal, Samsung SDI Co. Ltd and Samsung SDI (Malaysia) Bhd ask the Court to set aside the judgment of the General Court of the European Union of 9 September 2015, Samsung SDI and Others v Commission (T‑84/13, not published, ‘the judgment under appeal’, EU:T:2015:611), by which the General Court dismissed their action for the annulment in part of Commission Decision C(2012) 8839 final of 5 December 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.437 - TV and Computer Monitor Tubes) (‘the decision at issue’) in so far as it concerned them and for the reduction of the fine which had been imposed on them.
It is apparent from paragraph 7 of the judgment under appeal that, by the decision at issue, the European Commission found that the main global producers of cathode ray tubes (‘CRTs’) had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) by participating in two separate infringements, each constituting a single and continuous infringement. Those infringements concerned, on the one hand, the market for colour cathode ray tubes for computer monitors (colour display tubes, ‘CDTs’) and, on the other hand, the market for colour cathode ray tubes for television sets (colour picture tubes, ‘CPTs’).
As the General Court noted in paragraph 2 of the judgment under appeal, a CRT is an evacuated glass envelope containing an electron gun and a fluorescent screen, usually with internal or external means to accelerate and deflect the electrons. When electrons from the electron gun strike the fluorescent screen, light is emitted, creating an image on the screen. CDTs and CPTs were the only two types of CRT that existed at the time of the facts material to the decision at issue.
In paragraph 3 of the judgment under appeal, the General Court noted that, during the period in which the infringements penalised by the decision at issue were committed, the group of undertakings to which the appellants belonged manufactured and sold CRTs in the European Economic Area (EEA). As indicated in paragraph 1 of the judgment under appeal, Samsung SDI is the ultimate holding company of that group and owns 100% of the shares in Samsung SDI Germany GmbH and 68.59% of the shares in Samsung SDI (Malaysia).
As can be seen from paragraph 13 of the judgment under appeal, the Commission found, in the decision at issue, that Samsung SDI had participated in the CPT cartel directly and through its subsidiaries Samsung SDI Germany and Samsung SDI (Malaysia), and it had participated in the CDT cartel directly and through its subsidiary Samsung SDI (Malaysia).
By application lodged at the Registry of the General Court on 14 February 2013, Samsung SDI, Samsung SDI Germany and Samsung SDI (Malaysia) brought an action before the General Court. That action sought, as regards the infringement in relation to CPTs, primarily, the annulment of the decision at issue in so far as it concerned the three applicant companies and, in the alternative, a reduction of the fine imposed on them. As regards the infringement in relation to CDTs, that action sought the reduction of the fine imposed on them.
The General Court noted, as a preliminary point, in paragraph 26 of the judgment under appeal, that Samsung SDI Germany had been dissolved on 1 August 2014. It therefore concluded that there was no need to rule on the action in so far as it concerned that company.
The General Court examined, first of all, the single plea in law raised in support of the claims seeking the annulment of decision at issue, in so far as it concerned the infringement in relation to CPTs. It then examined the two pleas in law raised in support of the claims seeking the reduction of the fine imposed for that infringement. Lastly, it examined the three pleas in law raised in support of the claims seeking the reduction of the fine imposed for the infringement in relation to CDTs.
Having rejected all of those pleas in law, the General Court dismissed the action.
The appellants claim that the Court should:
The Commission claims that the Court should:
In support of their appeal, the appellants rely on four grounds of appeal alleging that (i) the General Court breached the obligation to state reasons and infringed the Commission’s 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 Guidelines on the method of setting fines’), in that it rejected their line of argument that the sales of products to which the CPT cartel did not relate should have been excluded from the fine calculation without addressing that line of argument; (ii) the General Court breached the obligation to state reasons and the principle of equal treatment, in that it rejected, without stating reasons, their line of argument that the Commission could not set an end date for their participation in the CPT cartel subsequent to the dates set for the other parties to that cartel; (iii) the General Court erred in law, in that it approved the taking into account, in the calculation of the fine, of CDT sales to Samsung Electronics Co. Ltd (‘SEC’), even though those sales were negotiated in South Korea, and (iv) the General Court erred in law in examining their line of argument relating to the Commission’s refusal to grant them the maximum leniency reduction of 50% of the amount of the fine, in respect of the CDT cartel.
The appellants submit that, in support of their claims made before the General Court seeking the annulment of the decision at issue, in so far as it concerned the CPT cartel, they had, inter alia, argued that the Commission could not take into account all CPT types and sizes in the calculation of the fine, since the scope of the cartel had evolved over time. The General Court ignored that line of argument entirely and did not address it. It follows, according to the applicant, that the General Court breached its obligation to state sufficient reasons for its judgment.
In addition, the appellants submit that, in paragraph 57 of the judgment under appeal, the General Court acknowledged, at the very least implicitly, that all CPT types and sizes had not been the subject of a cartel during the entirety of the period concerned by the decision at issue. Accordingly, in order to respect the principle of proportionality, the sales of products which had not been the subject of a cartel during a given year should have been excluded from the sales taken into account, for that year, in the calculation of the fine.
The Commission contends that the first part of the first ground of appeal is based on a misreading of the judgment under appeal. As can be seen from paragraphs 57 and 82 of the judgment under appeal, the General Court found that all CPTs had been the subject, to various degrees, of collusive contacts which constituted a single and continuous infringement. According to the Commission, that finding was sufficient to justify the rejection of the line of argument put forward by Samsung SDI and Samsung SDI (Malaysia) and the General Court did not have to give any additional reasons. The Commission takes the view that the second part of the first ground of appeal, alleging the infringement of the Guidelines on the method of setting fines, is also based on a misreading of the judgment under appeal and must be rejected.
The first part of the first ground of appeal is based on a misreading of the judgment under appeal. In paragraph 57 of the judgment under appeal, the General Court noted, inter alia, the following:
Furthermore, in paragraph 82 of the judgment under appeal, the General Court noted that ‘all CPTs were the subject of collusive contacts which constituted a single and continuous infringement’.
It follows that the General Court rejected as unfounded the appellants’ line of argument raised in paragraph 13 of the present judgment, and gave sufficient reasons for that rejection. Moreover, since the General Court considered that the infringement had related, throughout its duration, to all CPTs, it was not required to annul or amend the fine, which was calculated on the basis of the sales of all CPT types throughout the duration of the infringement. Consequently, the appellants’ line of argument set out in paragraph 14 above must also be rejected.
As regards the second part of the first ground of appeal, the Court notes that, contrary to the appellants’ submissions, the General Court in no way found in paragraph 57 of the judgment under appeal that the various types and sizes of CPT were not the subject of a cartel during the entire duration of the cartel taken into account by the Commission, but merely noted that it could be seen from the table produced by the appellants that CPTs were the subject, to various degrees, of contacts between undertakings. It cannot be inferred from that finding that, as the appellants’ line of argument implies, the General Court considered that the infringement was not a single infringement, but rather a complex infringement.
In addition, in paragraph 52 of the judgment under appeal, the General Court noted that there was a link of complementarity between the various instances of conduct in question and that they formed part of an overall plan, with the result that the Commission was entitled to characterise them as a single infringement. It is settled case-law that, if the different actions form part of an overall plan because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, inter alia, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41).
In those circumstances, the appellants cannot reasonably maintain that the General Court should have excluded the sales figures of products which were not the subject of the cartel during each year concerned from the relevant annual sales.
Consequently, the appellants’ line of argument set out in paragraph 14 above must also be rejected. It follows that the first ground of appeal must be dismissed in its entirety.
By the second ground of appeal, which is divided into two parts, the appellants’ submit that the General Court breached the obligation to state reasons and the principle of equal treatment, in that it rejected, in paragraphs 153 to 164 of the judgment under appeal, their line of argument, put forward in support of their claims seeking the annulment or alteration of the decision at issue in so far as it concerned the CPT cartel, according to which the Commission could not set an end date for their participation in the CPT cartel, in this case 15 November 2006, subsequent to the dates set for all the other parties to the proceedings concerning the same cartel.
By the first part of the second ground of appeal, the appellants argue that the General Court rejected, without giving sufficient reasons, their argument that collusion requires the involvement of at least two undertakings. They submit that, in the decision at issue, the Commission set the end date of the participation of Matsushita Toshiba Picture Display Co. Ltd and its parent companies in the CPT cartel at 12 June 2006. Furthermore, the Commission chose not to initiate proceedings against the joint venture established by LG Electronics Inc. et Koninklijke Philips Electronics NV (‘LPD’) and instead brought proceedings against LPD’s parent companies, setting the end date of their participation in the CPT cartel at 30 January 2006 on the ground that, after that date, they could not be held liable for LPD’s conduct, since the latter had been declared bankrupt and placed under the control of a court-appointed administrator. It follows, according to the appellants, that the Commission could not hold them liable for participating in the CPT cartel during the period from 13 June to 15 November 2006.
By the second part of the second ground of appeal, the appellants contest paragraph 163 of the judgment under appeal, in which the General Court, referring to the Court’s case-law and the need to reconcile the principle of equal treatment with the principle of legality, rejected their argument that the Commission had discriminated against them by selecting, to their detriment, an end date for their participation in the CPT cartel subsequent to the end dates chosen for the other undertakings. According to the appellants, the General Court’s reasoning is difficult to understand and, in any event, manifestly erroneous. The appellants also cite, in support of their line of argument, paragraph 75 of the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363).
The appellants acknowledge that they have put forward, in that second part, some new arguments which were not raised before the General Court, but they submit that those arguments do not change the subject matter of the dispute and are therefore admissible.
The Commission submits, in response to the first part of the second ground of appeal, that it did not accuse the appellants of participating alone in a cartel. It states that, as is apparent from paragraph 164 of the judgment under appeal, the appellants themselves acknowledged that they had anticompetitive contacts in relation to the CPTs until 15 November 2006. The fact that the Commission did not initiate proceedings against the other participant in those contacts, namely LPD, does not mean that the decision at issue found that the appellants participated alone in a cartel.
The Commission submits that the second part of the second ground of appeal is, in part, inadmissible, since the appellants have put forward certain arguments which were not previously raised before the General Court, concerning, on the one hand, LPD and, on the other hand, the reduction of the fine granted by the Commission to another participant in the CPT cartel. In any event, the Commission submits that the General Court correctly applied the case-law cited in paragraph 163 of the judgment under appeal and that the arguments put forward by the appellants do not demonstrate the contrary. The Commission argues that the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363), cited by the appellants, relates to a completely different situation.
By the first part of the second ground of appeal, the appellants submit, in essence, that, by confirming, in paragraphs 154 to 160 of the judgment under appeal, the Commission’s conclusion, in the decision at issue, that the end date of their participation in the CPT cartel was subsequent to the dates selected for all the other cartel participants referred to in that decision, the General Court erred in law, since it essentially considered, illogically, that, during a certain period, the undertaking of which the appellants formed part had participated alone in a cartel. In addition, the appellants submit that the General Court breached its obligation to state reasons, in that it did not address, in the judgment under appeal, their argument that an undertaking cannot participate alone in a cartel.
It is true that, in their application before the General Court, the appellants had stated that ‘collusion requires at least two parties’ and that they ‘[could not] have colluded alone’. However, it does not follow from either the summary of the appellants’ line of argument in paragraphs 152 and 153 of the judgment under appeal, or their application before the General Court, contained in the file in the case at first instance transmitted to the Court pursuant to Article 167(2) of the Rules of Procedure of the Court, that the appellants alleged, before the General Court, that all the other participants in the CPT cartel had withdrawn from that cartel prior to 15 November 2006, with the result that the appellants’ participation had ended, since an undertaking cannot participate alone in a cartel.
Before the General Court, the appellants also submitted that other undertakings, in particular LPD and its subsidiaries, had participated in the cartel until 15 November 2006, the end date of their participation in the CPT cartel selected in the decision at issue. They repeated that assertion in their appeal.
All things considered, the General Court found that, until 15 November 2006, there were at least two undertakings - namely the undertaking of which the appellants formed part and the undertaking of which LPD and its subsidiaries formed part - which participated in the CPT cartel. The fact that the Commission chose not to include the second of those two undertakings in the procedure that led to the adoption of the decision at issue, on the ground that LPD had been declared bankrupt and had subsequently been placed under the control of a court-appointed administrator, is irrelevant, in that respect, since it does not mean that that undertaking did not continue to participate in the cartel.
It follows that the appellants are not justified in maintaining that the General Court failed to take into account, in the judgment under appeal, that during part of the duration of the CPT cartel the undertaking of which the appellants formed part had participated alone in the cartel. The appellants’ argument that the General Court erred in law in that it came to that conclusion is therefore based on an erroneous premiss and must be rejected.
The same is true of the argument alleging that the General Court breached the obligation to state reasons, in that it failed to address the appellants’ line of argument that the Commission should have considered that, during a certain period, the undertaking of which they formed part had participated alone in a cartel. As noted in paragraph 30 of the present judgment, the appellants did not raise that line of argument before the General Court.
The first part of the second ground of appeal must therefore be rejected as unfounded.
The second part of the second ground of appeal, by which the appellants allege, in essence, that the General Court erred in law in implementing the principle of equal treatment, on the ground that it rejected their line of argument that the Commission had discriminated against them by penalising them for their participation in the CPT cartel until 15 November 2006, whereas other participants in the same cartel were not penalised, in respect of part or all of their participation.
It must be recalled that, in paragraph 163 of the judgment under appeal, the General Court held that, where an undertaking has acted in breach of Article 101 TFEU, it cannot escape being penalised altogether on the ground that another undertaking has not been fined (judgments of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission, C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraph 197, and 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 160).
In doing so, the General Court did not err in law. An undertaking on which a fine has been imposed for its participation in a cartel, in breach of the competition rules, cannot request the annulment or reduction of that fine, on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel (see, to that effect, judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraphs 58 and 59).
The appellants’ argument, based on the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363), cannot lead to a different conclusion.
In that judgment, the Court, taking into account the case-law according to which, when the amount of the fine is determined, the application of different methods of calculation cannot result in discrimination between the undertakings which have participated in the same infringement of Article 101 TFEU (judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 58), reduced the fine imposed on a participant in an infringement, in order to take account of the fact that the Commission, by incorrectly applying the method it had chosen to determine the amount of the fine, had imposed on another participant in the same cartel a fine which reduced the relative size of that participant’s contribution to the infringement (judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraphs 70 to 80).
However, the appellants did not invoke, either before the General Court or before the Court, an erroneous application of the method of calculating fines. Accordingly, the case-law which they invoke is irrelevant.
In the light of the foregoing considerations and without it being necessary to rule on the Commission’s argument alleging the partial inadmissibility of the second part of the second ground of appeal, it is necessary to reject that part as unfounded and, consequently, to reject the second ground of appeal in its entirety.
The appellants submit that the General Court erred in law, in that it rejected, in paragraphs 189 to 208 of the judgment under appeal, their plea in law alleging the infringement of point 13 of the Guidelines on the method of setting fines, by which they argued that the Commission should not have taken into account, in calculating the fine that it imposed on them for their participation in the CDT cartel, Samsung SDI’s CDT sales to SEC. According to the appellants, since the prices and the quantities of CDT to be supplied had been negotiated in South Korea, directly between the management of Samsung SDI and that of SEC, those sales should not have been regarded as sales made in the EEA, for the purpose of point 13 of the Guidelines on the method of setting fines.
In that context, the appellants challenge the General Court’s rejection, in paragraph 195 of the judgment under appeal, of their argument that the concept of ‘sales’ in the EEA must be interpreted by reference to the place where competition was affected. The application of Article 101 TFEU and the Guidelines on the method of setting fines are intended, fundamentally, to safeguard competition within the EEA. Accordingly, the General Court erred and disregarded its own case-law in rejecting their line of argument, by referring, in order to determine the sales within the EEA used in the calculation of the fine, to the place of delivery of the CDTs sold to SEC, since the place where the sale was concluded is the place where competition was affected.
Lastly, the appellants state that the third ground of appeal does not concern the possible inappropriateness of the fine imposed on them, but rather concerns an error of law committed in the application of the Guidelines on the method of setting fines and is, accordingly, admissible.
The Commission contests, primarily, the admissibility of the third ground of appeal, since the appellants do not allege that the fine imposed on them is excessive to the point of being disproportionate. According to the Commission, it follows from the case-law of the Court (judgment of 10 July 2014, Telefónica et Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 205) that it is only in that situation that the Court would have to find an error of law committed by the General Court, on account of the inappropriateness of the fine.
In the alternative, the Commission argues that, contrary to the appellants’ assertions, the General Court did not commit, in paragraphs 192 to 197 of the judgment under appeal, any error of law in the application of point 13 of the Guidelines on the method of setting fines, in interpreting the concept of ‘sales ... within the EEA’ by taking account of the impact of the agreements or concerted practices in question in the EEA. The case-law of the Court invoked by the appellants does not justify a different conclusion.
Lastly, the Commission submits that the reference, in paragraph 196 of the judgment under appeal, to the principle of proportionality, merely recalls settled case-law, whereas the appellants’ line of argument relating to the damage that consumers in the EEA could have suffered as a result of a cartel outside the EEA is ineffective, since the General Court did not refer to such potential damage.
By the third ground of appeal, the appellants criticise the General Court, in essence, for considering that the Commission had not breached point 13 of its Guidelines on the method of setting fines, by taking account of the value of sales negotiated outside the EEA of goods delivered within the EEA, in calculating the fine imposed on them. The question whether the Commission correctly interpreted and applied its own guidelines and whether those guidelines comply with the provisions and principles governing the determination of the amount of the fine to be imposed for an infringement of the competition rules are questions of law, which may be raised before the Court at the appeal stage. Accordingly, the third ground of appeal is admissible.
However, with regard to its substance, that third ground of appeal cannot succeed.
It must be recalled that point 13 of the Guidelines on the method of setting fines pursues the objective of adopting as the starting point for the calculation of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (judgment of 9 July 2015, InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 50 and the case-law cited).
Consequently, the concept of the ‘value of sales’, referred to in point 13 of the Guidelines on the method of setting fines, encompasses the sales made on the market concerned by the infringement in the EEA, and it is not necessary to determine whether those sales were genuinely affected by that infringement (judgment of 9 July 2015, InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 51 and the case-law cited).
However, in paragraph 195 of the judgment under appeal, the General Court held that, in the present case, the place of delivery had a real impact on the level of sales made by the appellants. Although the prices and quantities of CDTs to be supplied were negotiated, for the most part, in South Korea, between the headquarters of Samsung SDI and those of SEC, the CDTs were delivered directly from the warehouses managed by Samsung SDI, located in the EEA, to SEC, in its warehouses also located in the EEA, and, moreover, SEC’s European subsidiaries ultimately had the possibility of changing their production plans and, accordingly, the number of CDTs that they needed. In that case, the level of sales finally made by Samsung SDI to SEC would be altered.
Consequently, the General Court did not err in law in considering that, in order to determine the amount of sales within the EEA, for the purpose of those guidelines, it was necessary to take account of all deliveries made in the EEA.
Furthermore, if the appellants’ argument were accepted, an undertaking participating in an infringement would merely have to negotiate its sales with its customers outside the EEA in order to ensure that those sales would not be taken into account in the calculation of a potential fine, which would therefore be much smaller (see, by analogy, judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16).
It follows from the foregoing that the third ground of appeal must be rejected as unfounded.
The appellants submit that the General Court erred in law in rejecting, in paragraphs 217 to 223 of the judgment under appeal, their plea in law seeking the reduction of the fine imposed on them for their participation in the CDT cartel, by which they argued that a reduction of 50%, rather than 40%, of the fine should have been granted to them under the leniency programme.
In support of their ground of appeal, the appellants submit that the General Court erred in law, in that it referred, in paragraph 220 of the judgment under appeal, to its considerations concerning the reduction of the fine imposed for their participation in the CPT cartel, even though the CDT cartel was a separate infringement and had been examined, by the Commission, in a separate part of the decision at issue, which did not make any reference to the parts of that decision concerning the CPT cartel.
In addition, they argue that the General Court - by applying the leniency application incorrectly, in a manner contrary to its own case-law - confirmed, in paragraph 221 of the judgment under appeal, the Commission’s conclusion that they did not merit a reduction of 50% of the fine, since they had omitted to state, in their reply to the statement of objections, that market sharing was a core feature of the CDT cartel. However, the Commission could not criticise the appellants in that respect since responses to the statement of objections are only intended to allow the cartel participants to exercise their rights of defence and raise objections to the Commission’s allegations and since, as the General Court noted in paragraph 221 of the judgment under appeal, the appellants specified the market sharing aspects in the agreements relating to CDTs in a statement accompanying the reply to the statement of objections.
The Commission submits that the fourth ground of appeal is inadmissible, for reasons identical to those put forward in response to the third ground of appeal, set out in paragraph 46 above. It also cites, in support of its line of argument, paragraph 69 of the judgment of 5 December 2013, Solvay v Commission (C‑455/11 P, not published, EU:C:2013:796). It adds that the appellants’ have produced, in annex to their appeal, new documents, that were not produced before the General Court, which - like the argument to which they relate - must be rejected.
In any event, the Commission argues that the arguments put forward by the appellants in the fourth ground of appeal cannot succeed, with the result that this ground of appeal must be rejected as unfounded.
Even if the two parts of the ground of appeal were well founded, it must be borne in mind that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law. Accordingly, only inasmuch as the Court of Justice considers that the level of the fine is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 205 and the case-law cited).
In the present case, the appellants have not put forward any argument alleging that the fine imposed on them is disproportionate.
It follows from all the foregoing considerations that the fourth ground of appeal is ineffective. Accordingly, since all the grounds of appeal put forward by the appellants must be rejected, the appeal must be dismissed.
In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the Commission has applied for costs against the appellants and the appellants have been unsuccessful, they should be ordered to pay the costs.