1 By its appeal, Nichicon Corporation seeks to have set aside the judgment of the General Court of the European Union of 29 September 2021, Nichicon Corporation v Commission (T‑342/18, EU:T:2021:635; ‘the judgment under appeal’), by which the General Court dismissed Nichicon Corporation’s action seeking, principally, annulment of Commission Decision C(2018) 1768 final of 21 March 2018 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.40136 - Capacitors), published in summary form in the Official Journal of the European Union of 11 December 2018 (OJ 2018 C 446, p. 10) (‘the decision at issue’), in so far as it concerns Nichicon Corporation, and, in the alternative, reduction of the amount of the fine imposed on it. Legal context
2 Article 24 of the Rules of Procedure of the General Court, entitled ‘Quorum of the Chambers sitting with three Judges or with five Judges’, provides in paragraph 1: ‘Decisions of the Chambers sitting with three or with five Judges shall be valid only if three Judges are sitting.’
3 Article 35 of the Rules of Procedure of the General Court, entitled ‘Responsibilities of the Registrar’, provides in paragraph 1: ‘The Registrar shall be responsible, under the authority of the President of the General Court, for the acceptance, transmission and custody of all documents and for effecting service as provided for by these Rules.’
4 Article 118 of the Rules of Procedure of the General Court, entitled ‘Delivery and service of the judgment’, provides in paragraph 2: ‘The original of the judgment, signed by the President, by the Judges who took part in the deliberations and by the Registrar, shall be sealed and deposited at the Registry. A copy of the judgment shall be served on each of the parties.’
5 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) provides, in Article 18, entitled ‘Requests for information’: ‘1. In order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide all necessary information. 2. When sending a simple request for information to an undertaking or an association of undertakings, the Commission shall state the legal basis and the purpose of the request, specify what information is required and fix the [time limit] within which the information is to be provided, and the penalties provided for in Article 23 for supplying incorrect or misleading information. 3. Where the Commission requires undertakings and associations of undertakings to supply information by decision, it shall state the legal basis and the purpose of the request, specify what information is required and fix the [time limit] within which it is to be provided. It shall also indicate the penalties provided for in Article 23 and indicate or impose the penalties provided for in Article 24. It shall further indicate the right to have the decision reviewed by the Court of Justice. 4. The owners of the undertakings or their representatives and, in the case of legal persons, companies or firms, or associations having no legal personality, the persons authorised to represent them by law or by their constitution shall supply the information requested on behalf of the undertaking or the association of undertakings concerned. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading. 5. The Commission shall without delay forward a copy of the simple request or of the decision to the competition authority of the Member State in whose territory the seat of the undertaking or association of undertakings is situated and the competition authority of the Member State whose territory is affected. 6. At the request of the Commission the governments and competition authorities of the Member States shall provide the Commission with all necessary information to carry out the duties assigned to it by this Regulation.’
6 Article 23 of that regulation, entitled ‘Fines’, states, in paragraphs 2 and 3 thereof: ‘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 Article 102 TFEU] … … For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year. … 3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
7 Article 31 of that regulation, entitled ‘Review by the Court of Justice’, states: ‘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.’
8 The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’) are worded as follows: ‘13. In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the [European Economic Area (EEA)]. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement (hereafter “value of sales”). … 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. … 25. In addition, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15% and 25% of the value of sales as defined in Section A above in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements. The Commission may also apply such an additional amount in the case of other infringements. For the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22. … 29. The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as: - where the undertaking concerned provides evidence that it terminated the infringement as soon as the Commission intervened: this will not apply to secret agreements or practices (in particular, cartels); - where the undertaking provides evidence that the infringement has been committed as a result of negligence; - where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount; - where the undertaking concerned has effectively cooperated with the Commission outside the scope of the Leniency Notice and beyond its legal obligation to do so; - where the [anticompetitive] conduct of the undertaking has been authorised or encouraged by public authorities or by legislation. … … 37. Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.’
9 Points 14 and 15 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) are worded as follows: ‘(14) An undertaking wishing to apply for immunity from fines should contact the Commission’s Directorate-General for Competition. The undertaking may either initially apply for a marker or immediately proceed to make a formal application to the Commission for immunity from fines in order to meet the conditions in points (8)(a) or (8)(b), as appropriate. The Commission may disregard any application for immunity from fines on the ground that it has been submitted after the statement of objections has been issued. (15) The Commission services may grant a marker protecting an immunity applicant’s place in the queue for a period to be specified on a case-by-case basis in order to allow for the gathering of the necessary information and evidence. To be eligible to secure a marker, the applicant must provide the Commission with information concerning its name and address, the parties to the alleged cartel, the affected product(s) and territory(-ies), the estimated duration of the alleged cartel and the nature of the alleged cartel conduct. The applicant should also inform the Commission on other past or possible future leniency applications to other authorities in relation to the alleged cartel and justify its request for a marker. Where a marker is granted, the Commission services determine the period within which the applicant has to perfect the marker by submitting the information and evidence required to meet the relevant threshold for immunity. Undertakings which have been granted a marker cannot perfect it by making a formal application in hypothetical terms. If the applicant perfects the marker within the period set by the Commission services, the information and evidence provided will be deemed to have been submitted on the date when the marker was granted.’ Background to the dispute and the decision at issue
10 The background to the dispute is set out in paragraphs 1 to 28 of the judgment under appeal and, for the purposes of the present proceedings, can be summarised as follows.
11 Nichicon Corporation is a company established in Japan, which manufactures and sells aluminium electrolytic capacitors and, until 6 February 2013, tantalum electrolytic capacitors.
12 The infringement at issue concerns aluminium electrolytic capacitors and tantalum electrolytic capacitors.
13 The price of those electrolytic capacitors is an important parameter of competition.
14 On 4 October 2013, Panasonic and its subsidiaries applied to the European Commission for a marker, under paragraphs 14 and 15 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases, providing information regarding the existence of an alleged infringement in the electrolytic capacitors sector.
15 On 21 March 2018, the Commission adopted the decision at issue, by which it found that there had been a single and continuous infringement of Article 101 TFEU and 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 electrolytic capacitors sector, in which nine undertakings or groups of undertakings (‘the cartel participants’) participated, namely Elna, Hitachi AIC, Holy Stone, Matsuo, NEC Tokin, Nippon Chemi-Con Corporation (‘NCC’), Rubycon, Sanyo (designating Sanyo and Panasonic together) and Nichicon Corporation.
16 The Commission stated, in essence, that the infringement at issue, covering the whole EEA, had taken place between 26 June 1998 and 23 April 2012 and had consisted of agreements and/or concerted practices that had as their object the coordination of pricing behaviour in relation to the supply of aluminium electrolytic capacitors and tantalum electrolytic capacitors.
17 The cartel was, in essence, organised through multilateral meetings, generally held in Japan every month or every two months at senior sales manager level, and every six months at higher management level, including the presidents.
18 Initially, between 1998 and 2003, the multilateral meetings were held under the name ‘Electrolytic Capacitor(s) Circle’ or ‘Electrolytic Capacitor Conference’. Subsequently, between 2003 and 2005, they were held under the name ‘Aluminium Tantalum Conference’ or ‘Aluminium Tantalum Capacitors group’ (‘the ATC meetings’). Lastly, between 2005 and 2012, they were held under the name ‘Market Study Group’ or ‘Marketing Group’ (‘the MK meetings’). In parallel with the MK meetings, and complementing those meetings, ‘Cost Up’ or ‘Condenser Up’ meetings (‘the CUP meetings’) were held between 2006 and 2008.
19 In addition to those multilateral meetings, the cartel participants also engaged in ad hoc bilateral and trilateral contacts when necessary (together, ‘the anticompetitive exchanges’). In the context of those anticompetitive exchanges, the cartel participants exchanged information regarding pricing and future pricing, information regarding future price reductions and the ranges for those reductions, and information regarding supply and demand, including information in relation to future supply and demand, and, in some instances, concluded, implemented and monitored price agreements.
20 The Commission considered that the cartel participants’ conduct constituted a form of agreement and/or concerted practice which pursued a common objective, namely avoiding price competition and coordinating their future conduct with regard to the sale of electrolytic capacitors, thereby reducing uncertainty on the market.
21 The Commission concluded that that conduct had a single anticompetitive aim.
22 It held Nichicon Corporation liable on account of its direct and continuous participation in the cartel from 26 June 1998 to 31 May 2010, although its liability did not extend to the MK meetings, and on that basis imposed a fine on it of EUR 72 901 000.
23 In order to calculate the amount of that fine, the Commission applied the methodology set out in the 2006 Guidelines.
24 In the first place, in order to determine the basic amount of the fine, it took into account the value of Nichicon Corporation’s sales during the last full business year of participation in the infringement, in accordance with point 13 of those guidelines.
25 The Commission calculated the value of sales using sales of aluminium electrolytic capacitors and tantalum electrolytic capacitors invoiced to customers established in the EEA as a basis.
26 In addition, the Commission calculated the relevant value of sales separately for the two categories of products, namely aluminium electrolytic capacitors and tantalum electrolytic capacitors, and applied separate duration multipliers to each.
27 As regards Nichicon Corporation, the Commission applied a multiplier of 11.93 (corresponding to the period from 26 June 1998 to 31 May 2010) for aluminium electrolytic capacitors and 10.36 (corresponding to the period from 29 October 1999 to 9 March 2010) for tantalum electrolytic capacitors.
28 The Commission set the proportion of the value of sales to be taken into account in order to reflect the gravity of the infringement at 16%. In that regard, it considered that horizontal price coordination arrangements were, by their very nature, among the most serious infringements of Article 101 TFEU and Article 53 of the EEA Agreement and that the cartel covered the whole EEA.
29 It applied an additional amount of 16% under point 25 of the 2006 Guidelines in order to ensure that the fine imposed would have a sufficiently deterrent effect.
30 The Commission therefore set the basic amount of the fine at EUR 75 156 000.
31 In the second place, on account of mitigating circumstances, the Commission granted a reduction of 3% of that basic amount, since Nichicon Corporation’s participation in the MK meetings was not established and there was no proof that it had been aware of those meetings.
32 The decision at issue provides as follows: ‘Article 1 The following undertakings infringed Article 101 [TFEU] and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous infringement in the electrolytic capacitors sector covering the whole EEA, which consisted of agreements and/or concerted practices that had as their object the coordination of pricing behaviour: … (f) Nichicon Corporation from 26 June 1998 to 31 May 2010, but whose liability does not extend to the MK meetings; … Article 2 For the infringement referred to in Article 1, the following fines are imposed: … (i) Nichicon Corporation: EUR 72 901 000; …’ The procedure before the General Court and the judgment under appeal
33 By application lodged at the Registry of the General Court on 30 May 2018, Nichicon Corporation brought an action seeking, principally, annulment of the decision at issue in so far as it concerns it or, in the alternative, a reduction of the amount of the fine imposed on it.
34 In support of its action, Nichicon Corporation put forward five pleas in law.
35 By its first to third pleas, the appellant disputed the Commission’s conclusion that there was a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement in the electrolytic capacitors sector throughout the EEA for a period of almost 14 years. The first plea alleged material errors of fact as regards the geographic scope of the anticompetitive exchanges. The second plea alleged errors of law regarding, first, the finding of a single and continuous infringement and, secondly, the appellant’s participation in that infringement. The third plea alleged that the Commission lacked jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement. By the fourth plea, Nichicon Corporation disputed the fine imposed on it, due to manifest errors of assessment in the calculation of the amount of the fine. By the fifth plea, alleging infringement of the right to be heard, Nichicon Corporation disputed the legality of the procedure for establishing the infringement.
36 In the judgment under appeal, the General Court dismissed the action in its entirety. Forms of order sought
37 By its appeal, Nichicon Corporation claims that the Court of Justice should: - set aside the judgment under appeal and annul the decision at issue in so far as it concerns Nichicon Corporation; - in the alternative, set aside the judgment under appeal in so far as the General Court rejected: - the first plea in law regarding material errors of fact concerning the meetings held on ‘18 December 1998’, ‘April/May 2005’, ‘February 2009’, ‘July 2009’, ‘9 March 2010’ and ‘31 May 2010’ in order to establish Nichicon Corporation’s participation in an infringement of EU competition law; - the second part of the second plea, alleging that Nichicon Corporation was not liable in respect of the bilateral and trilateral contacts which took place between the other cartel participants; - the third part of the second plea in law, relating to the lack of participation in a single and continuous infringement before 7 November 2003; - the fourth plea in law, alleging manifest errors of assessment in the determination of the fine; and, consequently, annul the decision at issue in part and reduce to a proportionate amount the fine of EUR 72 901 000 imposed on Nichicon Corporation; - in the alternative, refer the case back to the General Court; and - order the Commission to bear the costs.
38 The Commission contends that the Court should dismiss the appeal and order Nichicon Corporation to pay all the costs incurred in the present proceedings. The appeal
39 Nichicon Corporation puts forward four grounds in support of its appeal. The first ground , alleging infringement of Article 118 (2) of the Rules of Procedure of the General Court Arguments of the parties
40 Nichicon Corporation submits that the judgment under appeal was notified to it without the judges having added their handwritten signature. By letter delivered on 30 September 2021, the General Court informed it that ‘due to exceptional circumstances relating to the health crisis, it was not possible to obtain the handwritten signatures of the Judges’.
41 First of all, according to Nichicon Corporation, the rule laid down in Article 118(2) of the Rules of Procedure of the General Court, according to which the original of the judgment must be signed by the Judges who took part in the deliberations, does not provide for such an exception.
42 Next, the case-law of the Court of Justice concerning Commission acts resulting from the judgment of 6 April 2000, Commission v ICI (C‑286/95 P, EU:C:2000:188, paragraphs 40, 42 and 46) is applicable to judgments of the General Court. According to that case-law, the authentication of acts is intended to guarantee legal certainty by ensuring that the text adopted becomes definitive in the languages which are binding, so that checking compliance with the requirement of authentication and thus of the definitive nature of the act is a preliminary to any other review. Infringement of an essential procedural requirement is the mere failure to authenticate, without it being necessary also to establish that the act is vitiated by some other defect or that the lack of authentication caused harm to the person relying on it.
43 Lastly, that authentication is a formal condition necessary to establish whether the quorum provided for in Article 24(1) of the Rules of Procedure of the General Court has been achieved and to ensure legal certainty. It follows from the judgment of 15 June 1994, Commission v BASF and Others (C‑137/92 P, EU:C:1994:247, paragraph 75) that, in the event of a dispute or an appeal, the principles of legal certainty and the rule of law require that it can be verified that the texts notified or published correspond precisely to the text adopted.
44 Furthermore, in the present case, the General Court did not authenticate the judgment under appeal by any means other than the handwritten signature, such as an electronic signature.
45 The Commission disputes that line of argument. Findings of the Court
46 The first ground of appeal alleges that the General Court infringed Article 118(2) of the Rules of Procedure of the General Court by serving on Nichicon Corporation a copy of the judgment under appeal which had not been signed by the judges who took part in the deliberations.
47 In order to rule on that ground of appeal, it is necessary to note, in the first place, that it does not follow from that provision that the copy of the judgment served on each of the parties must bear the signature of the President of the General Court, the Judges who took part in the deliberations and the Registrar of that Court (see, by analogy, order of the Vice-President of the Court of 13 December 2021, Portugal v Commission , C‑547/21 P(R), not published, EU:C:2021:1007, paragraph 116).
48 In the second place, since Nichicon Corporation relies on the letter from the Registrar of the General Court accompanying the copy of the judgment under appeal served on it in order to establish that the original of that judgment was not signed by the Judges who took part in the deliberations, it must be pointed out that, although it is indeed apparent from that letter that specific measures of organisation of procedure had been put in place within that court, as regards the detailed rules for approving judgments, in order to ensure its continued operation despite the health crisis, it does not follow from that letter that handwritten signatures are not, after the original of that judgment has been served, included on the original of that judgment, in accordance with Article 118(2) of the Rules of Procedure of the General Court (see, by analogy, order of the Vice-President of the Court of 13 December 2021, Portugal v Commission , C‑547/21 P(R), not published, EU:C:2021:1007, paragraph 117).
49 In the third place, it was in the performance of the duties assigned to him by Article 35(1) of the Rules of Procedure of the General Court, according to which the Registrar is responsible for the acceptance, transmission and custody of all documents, as well as for effecting service as provided for by those rules, that the Registrar of the General Court stated in his letter accompanying the judgment under appeal that he took formal note of the agreement of the judges who took part in the deliberations, by means of the written procedure, and of the fact that that judgment was properly delivered on 29 September 2021.
50 In those circumstances, there can be no doubt that, when the judgment under appeal was adopted, the requirements relating to the quorum were complied with and that an exact copy of that judgment was served on the parties.
51 Moreover, the case-law on which the appeal is based is irrelevant in the present case, since not only does it not concern the Rules of Procedure of the General Court, but it refers to situations in which the document in question could not have been authenticated other than with the signature of the authority which adopted it.
52 It follows that the first ground of appeal is unfounded. The second ground of appeal, alleging distortions of evidence, errors of law and insufficient reasoning in the analysis of the anticompetitive exchanges
53 The second ground of appeal consists of five parts. First part of the second ground of appeal, concerning the concept of infringement by object - Arguments of the parties
54 Nichicon Corporation submits that, in paragraph 147 of the judgment under appeal, the General Court stated that the contacts at the meeting of 18 December 1998 were anticompetitive in nature and therefore found, in essence, that there was an infringement by object. As follows from paragraphs 141 to 146 of the judgment under appeal, that conclusion of the General Court is based on the following statement by rival company M.: ‘Europe - a visible drop is beginning. With respect to the euro settlement, we will provide support from April of next year’.
55 However, the findings of the General Court do not permit a finding of infringement by object. The concept of restriction ‘by object’, within the meaning of Article 101 TFEU, must be interpreted restrictively. It is therefore not sufficient that the exchange of information may have a direct influence on the commercial strategy and reduce the degree of uncertainty. Furthermore, that conduct must, in itself, reveal a sufficient degree of harm to competition. The General Court gave no reason why, on its own or because of its economic or legal context, an exchange of information concerning the state of orders and the acceptance of the euro should be regarded, by its very nature, as being harmful to the proper functioning of normal competition. In the absence of any characterisation as an infringement by object, it was therefore necessary to demonstrate the anticompetitive effects of the conduct censured.
56 The Commission disputes that line of argument. - Findings of the Court
57 In order to rule on the first part of the second ground of appeal, it must be noted, first, that Nichicon Corporation submits that the General Court erred in law in classifying its conduct as anticompetitive. However, it does not dispute either the case-law referred to in paragraphs 105 to 111 of the judgment under appeal or the conclusion which the General Court draws from it in paragraph 112 of that judgment, according to which the provision of commercially sensitive information, such as the exchange of information regarding pricing, including future pricing, information regarding supply and demand, including in relation to future supply and demand (in particular production volumes or increases or decreases in shipments), makes it possible to reduce uncertainty as to the conduct of competitors on the market, leading to conditions of competition which do not correspond to the normal conditions of the market and, consequently, gives rise to a concerted practice having as its object the restriction of competition, within the meaning of Article 101(1) TFEU.
58 Secondly, Nichicon Corporation does not dispute the General Court’s conclusion in paragraph 146 of the judgment under appeal that the participants in the meeting of 18 December 1998 exchanged, at that meeting, individualised and sensitive information capable of directly influencing their conduct on the relevant market.
59 In those circumstances, Nichicon Corporation cannot be justified in stating that the General Court should still have ascertained whether the conduct complained of in the present case presented, in itself, a sufficient degree of harm to competition and examined its effects on competition.
60 Consequently, the first part of the second ground of appeal is unfounded. The second part of the second ground of appeal, concerning the reliability of a corporate statement - Arguments of the parties
61 Nichicon Corporation submits that, in paragraphs 195 and 227 of the judgment under appeal, the General Court accepted that the bilateral contacts with NEC Tokin which had taken place, first, in the period between April and May 2005 (‘the contact with NEC Tokin of 2005’) and, secondly, in February and July 2009, had been established by the Commission solely on the basis of NEC Tokin’s statement of 30 October 2014 (ID 930). However, it wrongly rejected, in paragraphs 199 and 227 of the judgment under appeal, Nichicon Corporation’s arguments that the Commission had not established those contacts to the requisite legal standard. The General Court concluded, first, that that statement was ‘reliable to a certain degree’ and that the Commission was therefore entitled to rely exclusively on that document. Secondly, the General Court, in paragraph 197 of the judgment under appeal, regarded the fact that Nichicon Corporation had not disputed the existence of the contact with NEC Tokin of 2005 in the administrative procedure as additional evidence. Those two findings are vitiated by errors of law.
62 In the first place, the General Court’s conclusion, in paragraph 199 of the judgment under appeal, that NEC Tokin’s statement of 30 October 2014 (ID 930) was ‘reliable to a certain degree’ is based on the assessment, in paragraph 196 of the judgment under appeal, that ‘it is in no way worded vaguely’, ‘originates from a direct witness’ and ‘runs counter to NEC Tokin’s interests’.
63 First, in making those assessments, the General Court went beyond reviewing the legality of the decision at issue and substituted its own assessment for that of the Commission. The General Court’s conclusion that that statement is particularly reliable has no basis in the contested decision. The Commission did not analyse whether that statement specifically satisfied the conditions for relying exclusively on it. The question whether those conditions are met cannot be dealt with for the first time before the General Court.
64 Secondly, by holding that the Commission could rely exclusively on NEC Tokin’s statement of 30 October 2014 (ID 930) in order to establish the contacts in question, the General Court infringed Nichicon Corporation’s rights of defence as set out in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. As regards the use of witness statements of accomplices in criminal proceedings, the European Court of Human Rights has held that the use of witness statements in exchange for immunity or other advantages may compromise the fairness of the proceedings brought against the accused and raise delicate issues since, by their very nature, such statements are open to manipulation and may be made solely with a view to obtaining the advantages offered in exchange or as part of a personal vendetta. Therefore, those statements should be subject to a higher degree of scrutiny. Such a high degree of scrutiny is also required for corporate leniency statements which, like NEC Tokin, are not the first to appear and which are therefore in a race to provide the Commission with significant added value.
65 The standard of proof applied by the General Court, which considered that it is sufficient that NEC Tokin’s statement of 30 October 2014 (ID 930) was ‘reliable to a certain degree’, therefore falls short of the higher degree of scrutiny required by Article 48 of the Charter of Fundamental Rights. In addition, the General Court’s analysis of that statement, which is limited solely to paragraph 196 of the judgment under appeal and which, moreover, does not take into account the entire content of that statement, also fails to meet the requirements of the case-law of the Court of Justice, in particular the judgment of 19 December 2013, Siemens and Others v Commission (C‑239/11 P, C‑489/11 P and C‑498/1 P, not published, EU:C:2013:866, paragraphs 164 and 165).
66 In the second place, the General Court, in paragraphs 197 and 227 of the judgment under appeal, considered that Nichicon Corporation’s failure to dispute the existence of the contacts in question in the administrative procedure is capable of constituting additional evidence. That is based on a manifest distortion of the evidence. It is clearly contradicted by Nichicon Corporation’s reply to the statement of objections, in which the existence of those contacts was indeed disputed on account of a lack of corroboration.
67 In the third place, Nichicon Corporation adds that the General Court’s findings on the geographic scope of the bilateral contacts with NEC Tokin also distort the evidence. In paragraphs 205 and 233 of the judgment under appeal, the General Court rejected Nichicon Corporation’s arguments that those contacts were limited to Asia. In that regard, the General Court, in paragraph 201 of the judgment under appeal, considered that NEC Tokin’s statement of 3 March 2015 (ID 1369), according to which those contacts ‘overwhelmingly or entirely’ concerned Asia, was irrelevant, because it concerned only ‘sales of certain capacitor products to specific customers’. Consequently, the General Court considered that the extrapolation according to which those bilateral contacts concerned Asia was unjustified.
68 That assertion is based on a manifest distortion of the evidence relied on by Nichicon Corporation. It is apparent from the clear wording of that statement (‘concerning bilateral contacts identified in NEC Tokin’s corporate statements, these related to sales of certain capacitor products to specific customers, overwhelmingly or entirely for delivery in Asia’) that it concerns all bilateral contacts. Although all those contacts concerned only certain products and specific customers, the statement that they were ‘overwhelmingly or entirely for delivery in Asia’ applies to each of those bilateral contacts.
69 Similarly, the a contrario interpretation of NEC Tokin’s statement of 3 March 2015 (ID 1369), in paragraph 202 of the judgment under appeal, manifestly distorts the evidence. The General Court inferred from that statement, according to which ‘in “only some” cases, supplies had been made to manufacturing plants which were not on the incomplete lists annexed to that statement’ that ‘in the other cases, the information in connection with those contacts did in fact relate to supplies made to plants on the list’, including Canon’s manufacturing plants in Germany and France. However, that a contrario inference is explicitly ruled out by the preceding sentence of that statement, according to which ‘the listing below … should not as such be understood as indicating that the discussions … related to deliveries to those EEA manufacturing plants’.
70 The Commission disputes that line of argument. - Findings of the Court
71 By the second part of the second ground of appeal, Nichicon Corporation submits that, in paragraphs 195 and 227 of the judgment under appeal, the General Court accepted that the bilateral contacts with NEC Tokin referred to in paragraph 61 of the present judgment had been established by the Commission solely on the basis of NEC Tokin’s statement of 30 October 2014 (ID 930).
72 [As rectified by order of 3 October 2023] However, first, Nichicon Corporation does not dispute the case-law, referred to in paragraphs 99 to 102 of the judgment under appeal, to which paragraph 195 of that judgment refers, according to which the Commission is entitled to rely on such a single statement provided that it is particularly reliable.
73 First of all, as the Commission points out, it was in order to respond to an argument of Nichicon Corporation that the General Court verified whether NEC Tokin’s statement of 30 October 2014 (ID 930) was sufficiently credible, so that it cannot be criticised for having substituted its own assessment for that of the Commission. Furthermore, Nichicon Corporation does not claim to have disputed at first instance that the Commission failed to carry out such a verification.
74 Next, in paragraph 196 of the judgment under appeal, the General Court examined the degree of reliability of that statement. While maintaining that that examination was insufficient, Nichicon Corporation does not allege any error of assessment or of law committed by the General Court in paragraph 196.
75 Lastly, the assessment, in paragraph 197 of the judgment under appeal, that Nichicon Corporation did not dispute the existence of the contact with NEC Tokin of 2005 in the context of the administrative procedure is manifestly subsidiary, as is shown by the use of the expression ‘moreover’. Nichicon Corporation’s argument directed against paragraph 197 is therefore ineffective.
76 Secondly, as regards the geographic scope of the bilateral contacts with NEC Tokin, the General Court’s rejection of Nichicon Corporation’s argument that the information exchanged concerned only Asia was based on the four grounds set out in paragraphs 201 to 204 of the judgment under appeal.
77 Nichicon Corporation disputes only the grounds set out in paragraphs 201 and 202 of that judgment, without calling into question paragraphs 203 and 204 of that judgment, in which the General Court held, first, that NEC Tokin’s statement of 30 October 2014 (ID 930) did not show that any contact concerning Canon did not relate to Europe and, secondly, that the argument that Nichicon Corporation did not make any sales to Canon in the EEA during the relevant period had to be rejected.
78 Therefore, Nichicon Corporation’s line of argument in that regard is ineffective.
79 In the light of the foregoing considerations, the second part of the second ground of appeal must be rejected. The third part of the second ground of appeal, concerning the geographic scope of a bilateral contact - Arguments of the parties
80 Nichicon Corporation submits that, in paragraph 266 of the judgment under appeal, the General Court rejected its argument that the information exchanged during the bilateral contact of July 2009 with NCC did not concern Europe. That argument was based on the fact that the passage in NCC’s internal email of 31 July 2009 relied on by the Commission, according to which A from NCC ‘going forward will try confirming with [Nichicon Corporation] regarding the W/W [(global)] price’, indicates that Alpine’s request for proposals discussed at NCC in July 2009 concerned Japanese domestic sales, and not the ‘global price’. In paragraph 263 of the judgment under appeal, the General Court held that that sentence ‘cannot, in itself, constitute evidence that the negotiations mentioned before that sentence concerned the Japanese market’.
81 However, Nichicon Corporation did not rely solely on that sentence, but also argued before the General Court that, first, the employees in question of Nichicon Corporation and NCC worked for local Japanese sales offices; secondly, Nichicon Corporation’s sales office in question was not involved in sales in the EEA; and, thirdly, NCC also considered that the contact in question did not concern Europe.
82 It is only in the absence of another plausible explanation that the passage relied on by the Commission could have constituted evidence of an infringement of the EU competition rules.
83 However, the General Court did not address those arguments, with the result that the judgment under appeal is vitiated by a failure to state reasons.
84 The Commission disputes that line of argument. - Findings of the Court
85 In order to rule on the third part of the second ground of appeal, it should be noted that paragraph 259 of the judgment under appeal provides the reasons why the General Court considered that the information exchanged during the contact between Nichicon Corporation and NCC in July 2009 had a link with the EEA. In that paragraph, the General Court set out four factors in that regard, on the basis of which it held, in paragraph 260 of that judgment, that the Commission was fully entitled to take the view that the information exchanged during that contact had a connection with the EEA.
86 In its appeal, Nichicon Corporation does not dispute those factors, but alleges a failure to state reasons in paragraph 263 of the judgment under appeal, by which the General Court rejected Nichicon Corporation’s argument at first instance that it could be inferred from A’s email of 31 July 2009 that the information exchanged related to Japanese sales.
87 In so doing, Nichicon Corporation is, in reality, asking the Court of Justice to assess a piece of evidence already examined by the General Court, without alleging an error of assessment on the part of the General Court, which falls outside the jurisdiction of the Court of Justice in the context of an appeal.
88 Consequently, the third part of the second ground of appeal is inadmissible. The fourth part of the second ground of appeal, concerning the geographic scope of a trilateral contact - Arguments of the parties
89 Nichicon Corporation submits that the General Court, in paragraph 276 of the judgment under appeal, rejected its claim that the information exchanged during the trilateral contact of 9 March 2010 with NEC Tokin and Sanyo was limited to Taiwan.
90 Although, in paragraph 273 of the judgment under appeal, the General Court accepted that the information had been exchanged in Taiwan between local managers and that mention had been made of the Chinese New Year and its commercial repercussions in Taiwan, the General Court nevertheless held that those factors ‘in no way preclude the possibility that the exchanges could have related to markets other than the Taiwanese market’.
91 In the first place, the General Court wrongly held, in paragraphs 270 and 271 of the judgment under appeal, that there was no need to examine Nichicon Corporation’s arguments concerning the geographic scope of that contact. That assessment is vitiated by a lack of reasoning. First, the General Court did not explain why, although that contact did not concern the EEA, it had to be found that there had been a continuous infringement of the EU competition rules. Secondly, the General Court was, in any event, required to rule on Nichicon Corporation’s argument, given its relevance to the assessment of the gravity of the infringement.
92 In the second place, although an infringement may be inferred from a number of coincidences and indicia and although the evidence relied on by the Commission may then require the other party to provide an explanation or justification, the requirements for rebuttal of such a factual presumption should not be, according to Nichicon Corporation, excessive or unrealistic, in order to avoid undermining the presumption of innocence. The Court of Justice has held that the test for rebuttal of a presumption of fact is whether the arguments relied on by the undertaking concerned ‘cast the facts established by the Commission in a different light and … allow another explanation of the facts to be substituted for the one adopted by the Commission’ (judgment of 7 January 2004, Aalborg Portland and Others v Commission , C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 87). By requiring Nichicon Corporation to provide evidence which rules out the possibility of that contact being linked to the EEA, the General Court departed from that test and imposed an excessive burden.
93 The Commission disputes that line of argument. - Findings of the Court
94 Nichicon Corporation submits that the General Court was wrong, in paragraph 276 of the judgment under appeal, to reject its claim that the information exchanged during the trilateral contact of 9 March 2010 with NEC Tokin and Sanyo was limited to Taiwan.
95 It should be noted, in that regard, that that rejection is based on the grounds set out in paragraphs 270 to 275 of the judgment under appeal.
96 It is true that, in paragraph 271 of the judgment under appeal, the General Court explained why it was not necessary for the Commission to prove that each contact covered the EEA. In particular, by finding, on the basis of the case-law cited in paragraphs 81 to 85 of the judgment under appeal, that it is not necessary for every piece of evidence produced by the Commission to satisfy the criteria of precision and consistency for each aspect of the infringement, the General Court held that, contrary to Nichicon Corporation’s assertions, it was not necessary for the evidence relating to each contact to demonstrate explicitly that the information exchanged in the context of that contact specifically concerned the EEA.
97 However, in paragraphs 273 to 275 of that judgment, the General Court examined the content and context of D’s email from Sanyo of 10 March 2010 in order to conclude that that information was not limited to Taiwan and that there was nothing to preclude it from relating to the EEA. In particular, the General Court considered, first of all, in paragraph 273 of the judgment under appeal, that it was apparent from that email that the principal manager of NEC Tokin’s global sales promotion department, E, was present during the trilateral contact of 9 March 2010, which Nichicon Corporation did not dispute. Next, in paragraph 274 of the judgment under appeal, the General Court held that that email was addressed, inter alia, to I and F from Sanyo, who, like E, had commercial responsibilities at global level, or, at the very least, which were not limited to Taiwan. Lastly, the General Court held, in paragraph 275 of the judgment under appeal, that the oral statements of Panasonic and NEC Tokin did not confirm the interpretation that the information exchanged during that contact was limited to Taiwan. First, Panasonic’s statement merely confirmed that that contact had taken place in Taiwan. Secondly, the information, taken from paragraph 23 of NEC Tokin’s statement, that, in essence, NEC Tokin Taiwan was not involved in sales in the EEA, was irrelevant in the present case, since the information in that email came from a discussion with E, who was the principal manager of NEC Tokin’s, and not NEC Tokin Taiwan’s, sales promotion department. By contrast, it was apparent from paragraph 24 of that statement that NEC Tokin was sometimes responsible for sales in the EEA.
98 Nichicon Corporation does not dispute the assessment in paragraphs 272 to 275 of the judgment under appeal, from which it is apparent that it could not be ruled out that the information in question had a link with the EEA.
99 Moreover, in those circumstances, it cannot be held that the General Court imposed an excessive burden of proof on Nichicon Corporation.
100 Consequently, the fourth part of the second ground of appeal is, in part, ineffective and, in part, unfounded. The fifth part of the second ground of appeal, concerning Nichicon Corporation’s involvement in a trilateral contact - Arguments of the parties
101 Nichicon Corporation submits that the General Court, in paragraphs 284 to 294 of the judgment under appeal, upheld the Commission’s finding that Nichicon Corporation had participated in price discussions during the trilateral contact with NCC and Rubycon on 31 May 2010. Before the General Court, Nichicon Corporation claimed that no discussion of prices had taken place at that meeting in the presence of its representative, Mr Shiozaki. That argument was based on the fact that the documents on which the Commission had relied did not contain any indication of any participation on the part of Mr Shiozaki, and that Nichicon’s reply (ID 740), according to which Mr Shiozaki had not participated in the price discussions at that meeting, could not be regarded as having little probative value.
102 In paragraph 290 of the judgment under appeal, the General Court rejected that argument, on the ground that Nichicon Corporation’s reply (ID 740), ‘which is intended merely to mitigate [Nichicon Corporation’s] liability’, cannot reduce the probative value of the documents relied on by the Commission.
103 That conclusion manifestly distorts the evidence. Since the Commission relied on several inculpatory statements contained in that document, it cannot be regarded as merely intended to mitigate Nichicon Corporation’s liability.
104 Had the General Court correctly identified Nichicon Corporation’s (ID 740) reply as both inculpatory and exculpatory, it could not have rejected its probative value and should therefore have assessed that value in the context of all the evidence and facts.
105 The Commission disputes that line of argument. - Findings of the Court
106 In paragraph 284 of the judgment under appeal, the General Court concluded that the Commission was fully entitled to consider that Nichicon Corporation’s participation in the discussions on prices during the trilateral contact of 31 May 2010 with NCC and Rubycon had been established. Therefore, in order to call that assessment into question, Nichicon Corporation would have had to challenge the reasons supporting that assessment, set out in paragraphs 280 to 283 of that judgment. However, Nichicon Corporation does not dispute those paragraphs.
107 In addition, even if certain passages in Nichicon’s statement (ID 740) contained inculpatory evidence, that does not preclude other passages of that document, in particular those relating to the discussions on prices, from being intended to mitigate Nichicon Corporation’s liability. The General Court was therefore entitled to take the view that those passages could not reduce the probative value of the evidence referred to in paragraph 281 of the judgment under appeal.
108 The fifth and last part of the second ground of appeal is therefore unfounded.
109 In the light of the foregoing, the second ground of appeal must be rejected. The third ground of appeal, alleging errors of law in the examination of the Commission’s findings relating to Nichicon Corporation’s participation in a single and continuous infringement and its liability
110 The third ground of appeal consists of two parts. The first part of the third ground of appeal, concerning Nichicon Corporation’s participation in the anticompetitive exchanges - Arguments of the parties
111 Nichicon Corporation submits that, in paragraph 360 of the judgment under appeal, the General Court rejected its arguments that the Commission had not established to the requisite legal standard Nichicon Corporation’s liability for bilateral and trilateral meetings between the other cartel participants. The General Court’s reasoning does not allow Nichicon Corporation to know why the General Court rejected its arguments.
112 In the first place, it is unclear whether the General Court upheld the Commission’s finding that Nichicon Corporation was aware of bilateral and trilateral meetings between the other cartel participants, or should have foreseen them, solely on the basis of its participation in certain bilateral and trilateral meetings, or also on the basis of its participation in certain multilateral meetings.
113 Indeed, it would appear to follow from paragraphs 352, 357 and 359 of the judgment under appeal that the General Court established the liability of Nichicon Corporation solely on the basis of its participation in bilateral and trilateral meetings, without addressing Nichicon Corporation’s pleas concerning the lack of a ‘platform’ role played by the CUP meetings.
114 However, in paragraph 355 of the judgment under appeal, the General Court confirmed Nichicon Corporation’s liability on the basis of a body of evidence ‘which certainly includes the multilateral meetings’. The reasons given by the General Court to uphold the liability of Nichicon Corporation are therefore contradictory and unclear.
115 Moreover, if the General Court had indeed considered the multilateral meetings to be relevant, it would have had to respond to Nichicon Corporation’s arguments that the Commission had not given it the opportunity to comment on the alleged role of the CUP meetings as a platform, and that the decision at issue does not identify any bilateral or trilateral meeting in which Nichicon Corporation participated at the CUP meetings.
116 In the second place, the General Court does not explain why Nichicon Corporation’s participation in certain bilateral and trilateral contacts supports the conclusion that Nichicon Corporation knew, or should have foreseen, that the infringement also included other bilateral and trilateral contacts. The General Court held that, ‘apparently’, the bilateral and trilateral contacts for which Nichicon Corporation was held directly liable had certain features which led to the conclusion that it knew or should have known that bilateral and trilateral meetings took place among the other cartel participants, and that such knowledge or foreseeability continued for several years even though Nichicon Corporation had not participated in any multilateral meeting which had played a role as a platform. The reasoning of the judgment under appeal in that regard is insufficient.
117 In any event, in rejecting that plea, the General Court erred in law. It is for the Commission to prove that an undertaking was aware of all the offending conduct planned or put into effect by the other participants in the cartel or that it could reasonably have foreseen it and was prepared to take the risk. Although, as is apparent from paragraph 355 of the judgment under appeal, Nichicon Corporation’s awareness of the conduct of the other participants in the cartel, or its foreseeability, could be established on the basis of a body of precise and consistent evidence, the presumption of innocence requires that, in the event of doubt, the benefit must be given to that undertaking.
118 In stating, in paragraph 352 of the judgment under appeal, that ‘because it had itself participated in such [bilateral and trilateral] contacts, it was not unaware of the fact that the scope of the cartel extended beyond the multilateral meetings and also included the bilateral and trilateral contacts’, the General Court assumed that direct participation in a category of conduct, namely bilateral and trilateral contacts, creates awareness, or foreseeability, and the intention to contribute to all conduct falling within that category, even that in which Nichicon Corporation did not directly take part.
119 Such a presumption has no legal basis and infringes the principle of personal responsibility and the presumption of innocence. Although the lack of direct evidence of an undertaking’s participation in an infringement during a specific period does not preclude that participation from being established, such a finding cannot simply be presumed, but must be based on objective and consistent indicia. In addition, knowledge or foreseeability of bilateral contacts that took place among other cartel participants cannot be inferred from the fact that the Commission classified that conduct as falling within the same category as the bilateral contacts in which Nichicon Corporation participated directly. On the contrary, the Commission must adduce evidence that the contacts that took place between those other cartel participants were known to Nichicon Corporation or reasonably foreseeable to it.
120 The Commission disputes that line of argument. - Findings of the Court
121 Nichicon Corporation submits that, in paragraph 360 of the judgment under appeal, the General Court rejected, without stating sufficient reasons, its arguments that the Commission had not established to the requisite legal standard its liability for the bilateral and trilateral meetings between the other cartel participants.
122 It should be noted at the outset that Nichicon Corporation’s argument is based on a misreading of the judgment under appeal.
123 The General Court merely applied the case-law referred to in paragraphs 347 to 349 of that judgment, which Nichicon Corporation does not dispute.
124 In particular, according to that case-law, an undertaking which has participated in a single and continuous infringement by its own conduct may be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the case where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all of 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 8 July 1999, Commission v Anic Partecipazioni , C‑49/92 P, EU:C:1999:356, paragraph 83; 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; and of 26 January 2017, Duravit and Others v Commission , C‑609/13 P, EU:C:2017:46, paragraph 118).
125 It follows from paragraphs 345 and 350 of the judgment under appeal, which are not disputed by Nichicon Corporation, that, first, the General Court noted that Nichicon Corporation had participated, between 26 June 1998 and 31 May 2010, in 52 multilateral meetings and 6 bilateral or trilateral contacts and that the Commission had found that the evidence showed that Nichicon Corporation had directly participated in multilateral meetings and in bilateral and trilateral contacts. The General Court concluded from this that the Commission had considered that, as regards the bilateral and trilateral contacts which took place between the other cartel participants following the ATC meeting of 16 February 2005 and following the CUP meeting of 10 November 2008, Nichicon Corporation was aware of the offending conduct planned or put into effect by those other cartel participants in pursuit of the same objectives or could reasonably have foreseen that conduct and was prepared to take the risk.
126 Secondly, the General Court noted, in paragraph 350 of the judgment under appeal, that, in the decision at issue, ‘the Commission made the following findings. First, the multilateral meetings and bilateral or trilateral contacts formed part of an overall plan with a single anticompetitive aim. Secondly, the multilateral meetings constituted a platform for the parties to the cartel for the duration of the cartel. Thirdly, the bilateral or trilateral contacts complemented the multilateral meetings. Fourthly, the same persons participated in the bilateral or trilateral contacts and the multilateral meetings. Fifthly, because of their participation in the multilateral meetings, the parties to the cartel knew who the other cartel participants were and, accordingly, who they could contact if, for example, they wished to discuss issues relating to a specific customer. Sixthly, all the parties to the cartel had participated in the bilateral or trilateral contacts’.
127 Thus, the General Court started from the premiss that Nichicon Corporation had participated in multilateral meetings, the participants in the bilateral or trilateral contacts were the same as in multilateral meetings and all participants in the cartel had participated in bilateral or trilateral contacts.
128 [As rectified by order of 3 October 2023] In those circumstances, first of all, the General Court was entitled to consider that, by the very fact of having had bilateral or trilateral contacts with other participants in multilateral meetings, Nichicon Corporation could not have been unaware, or at least could not have failed to foresee, that other participants in those meetings had also had bilateral or trilateral contacts between them.
129 Contrary to Nichicon Corporation’s claims, it is apparent from paragraphs 350 to 359 of the judgment under appeal that the General Court did not establish the liability of Nichicon Corporation solely on the basis of its participation in bilateral and trilateral contacts, but also took into consideration its participation in the multilateral meetings.
130 Since Nichicon Corporation itself directly participated in bilateral and trilateral contacts, the General Court considered in paragraphs 352 and 359 of the judgment under appeal that it knew or could foresee that the scope of the cartel went beyond the multilateral meetings and included bilateral and trilateral contacts.
131 Next, contrary to Nichicon Corporation’s claims, the General Court addressed, in paragraphs 356 to 359 of the judgment under appeal, the arguments of Nichicon Corporation concerning ‘the lack of platform function of the CUP meetings’.
132 Finally, the judgment under appeal also clearly sets out the reasons why Nichicon Corporation’s participation in bilateral and trilateral contacts - together with the other circumstances referred to in paragraphs 350 to 352 of that judgment - justifies the conclusion that Nichicon Corporation knew or at least could have foreseen that the infringement also included bilateral and trilateral contacts between other participants.
133 First, contrary to Nichicon Corporation’s allegations, the General Court did not consider that the bilateral and trilateral contacts for which Nichicon Corporation was held directly liable had certain features establishing that Nichicon Corporation knew or ought to have known that bilateral or trilateral meetings took place among other cartel participants. It is apparent from paragraph 350 of that judgment that the assessments relating to the awareness of those meetings did not depend on specific characteristics of the bilateral and trilateral contacts other than the fact that they had taken place among the other cartel participants, that they were similar in nature to those in which Nichicon Corporation had participated and that they formed part, like the multilateral meetings, of a common plan with a single anticompetitive aim.
134 Secondly, irrespective of the fact that certain multilateral meetings provided a platform, the General Court regarded as relevant Nichicon Corporation’s participation in those multilateral meetings in so far as it had enabled Nichicon Corporation to know which other undertakings participated in the cartel and, therefore, which undertakings they could contact if they wished to address issues relating to a specific customer.
135 Thirdly, as regards Nichicon Corporation’s claim that the General Court infringed the principle of personal liability and the presumption of innocence, it should be noted that, first, contrary to Nichicon Corporation’s assertions, it is apparent from the evidence set out in paragraphs 133 and 134 of the present judgment that the General Court did not presume that direct participation in a category of conduct, namely bilateral and trilateral contacts, ‘creates knowledge (or foreseeability)’ of contacts among other cartel participants.
136 Secondly, far from breaching the principle of personal responsibility or the presumption of innocence, paragraph 352 of the judgment under appeal merely implements the settled case-law referred to in paragraph 124 of the present judgment.
137 It follows that the first part of the third ground of appeal is unfounded. Second part of the third ground of appeal, concerning the continuous nature of the infringement - Arguments of the parties
138 Nichicon Corporation submits that, in paragraphs 371 and 372 of the judgment under appeal, the General Court rejected its arguments that the Commission had failed to establish that the infringement as a whole and Nichicon Corporation’s participation in it were continuous for the period prior to 7 November 2003. In that regard, it erred in not regarding the 10-month gap between the meetings as constituting an interruption of the infringement.
139 First, the General Court did not address Nichicon Corporation’s argument that the question whether an infringement continued without interruption should be assessed according to the frequency of the meetings and the need for coordination. The General Court’s reasoning does not enable Nichicon Corporation to know why it rejected its arguments in that regard, and is therefore vitiated by a failure to state reasons.
140 Secondly, in its assessment of the relevance of an interruption on the basis of the total duration of the infringement, the General Court erred in law by taking into account manifestly irrelevant evidence. During 1998-1999 and 2000-2001, none of the cartel participants could have known the duration of the future conduct that the Commission imputed to them, up to 2010, in respect of Nichicon Corporation, and up to 2012, in respect of the participants at the MK meetings. The total duration of the conduct was therefore not relevant in respect of the context and functioning of the infringement.
141 The Commission disputes that line of argument. - Findings of the Court
142 In order to rule on the second part of the third ground of appeal, it must be noted that the General Court reached the conclusion contained in paragraphs 371 and 372 on the basis of a series of factors, referred to in paragraphs 367 to 370 of the judgment under appeal.
143 Thus, the General Court found, in paragraph 367 of the judgment under appeal, that the Commission had stated that the cartel participants had coordinated their conduct for almost 14 years and Nichicon Corporation for almost 12 years.
144 In that regard, the General Court noted in paragraph 368 of the judgment under appeal that the Commission had noted that Nichicon Corporation had participated in more than 21 multilateral meetings between 26 June 1998 and 7 November 2003. In doing so, contrary to the allegations of Nichicon Corporation, the General Court took into consideration the frequency of the meetings in which Nichicon Corporation participated.
145 In addition, it stated, in paragraphs 369 and 370 of the judgment under appeal, first, that the anticompetitive meetings and contacts formed part of an overall plan with a single economic aim and, secondly, that there was nothing in the file to indicate that, during the period in question, Nichicon Corporation had distanced itself from the cartel, had withdrawn from it or had interrupted its participation.
146 In so doing, the General Court, in accordance with the case-law referred to in paragraph 366 of the judgment under appeal, considered the context of the functioning of the cartel.
147 The argument that, in such a context, the total duration of the cartel should not be taken into consideration must be rejected.
148 [As rectified by order of 3 October 2023] In order to ascertain whether the time that elapsed between two meetings is sufficiently long to constitute an interruption of participation in the cartel, the duration of that cartel is a relevant factor.
149 On the other hand, the fact that the participants in the cartel cannot know what the duration of the cartel established by the Commission will be is irrelevant in that regard. The duration of an infringement is an objective element of that infringement which depends only on the conduct of the participants in that infringement and not on the Commission.
150 The second part of the third ground of appeal is therefore unfounded.
151 Having regard to the foregoing considerations, the third ground of appeal must be dismissed. The fourth ground of appeal, alleging errors of law in the calculation of the amount of the fine
152 The fourth ground of appeal is composed of two parts. The first part of the fourth ground of appeal, concerning the calculation of the basic amount of the fine - Arguments of the parties
153 Nichicon Corporation alleges errors made by the General Court, first, in the calculation of the value of sales and, secondly, in the determination of the gravity multiplier.
154 As regards, in the first place, the calculation of the value of sales, Nichicon Corporation observes that, in paragraph 483 of the judgment under appeal, the General Court rejected its argument that the Commission had misapplied its 2006 Guidelines by taking as a basis the value of sales invoiced in the EEA rather than the value of sales consigned to the EEA.
155 According to EU case-law, the place of delivery has a real impact on the level of sales made by undertakings (judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission , C‑615/15 P, not published, EU:C:2017:190, paragraph 53). Similarly, according to paragraph 197 of the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1), the place of delivery should be regarded as the place ‘where competition takes place’ in the case of the sale of goods, even if, for example, individual orders are placed by a central purchasing body.
156 In accordance with that principle, it is not the value of Nichicon Corporation’s sales invoiced in the EEA, but the value of sales shipped to the EEA that should have been taken into account as the starting point for determining the economic importance of the infringement and Nichicon Corporation’s contribution to it.
157 The mere fact that the sales of Nichicon Corporation’s US subsidiary to the Mexican factories of its US customers are invoiced to the European subsidiaries of those US customers does not mean that the place of billing is the best criterion for determining the effects on competition in the EEA. By refusing to take into consideration Nichicon Corporation’s evidence concerning the effect on the EEA market without explaining why it considered that evidence to be irrelevant, the General Court failed to provide an adequate statement of reasons.
158 In addition, the General Court stated, in paragraph 484 of the judgment under appeal, that the 2006 Guidelines refer to ‘sales’ and do not specify whether ‘sales delivered’ or only ‘sales invoiced’ are relevant. Since it is for the Commission to prove that the sales taken into account are capable of determining the effects on the EEA market, it is not for Nichicon Corporation to prove that the sales invoiced are not capable of determining the effects on the EEA market, but for the Commission to demonstrate that the sales in the EEA better reflect the reality of the market. The General Court therefore also erred in attributing the burden of proof to Nichicon Corporation when it rejected its plea on the ground that it did not provide sufficient reasons as to why the sales taken into account did not reflect the impact of the infringement on competition in the EEA.
159 In the second place, as regards the setting of the gravity multiplier, Nichicon Corporation submits that the General Court rejected its argument that the multiplier of 16% used by the Commission did not adequately reflect Nichicon Corporation’s limited participation in the infringement. The General Court thus infringed the principle of proportionality and failed to state sufficient reasons for its judgment.
160 According to Nichicon Corporation, the gravity of the infringement should be assessed individually. However, the General Court failed to take account of the individual circumstances of the case which Nichicon Corporation explicitly brought before it, also with regard to the gravity multiplier.
161 In paragraph 503 of the judgment under appeal, the General Court wrongly stated that ‘[Nichicon Corporation] does not give details as to the specific circumstances which the Commission should have taken into account for the purposes of that determination’. Similarly, in paragraph 584 of the judgment under appeal, it wrongly rejected its unlimited jurisdiction to adjust the amount of the fine.
162 The gravity multiplier applied fails to take account of the fact that Nichicon Corporation’s European subsidiaries had essentially independently negotiated prices and conditions in the EEA, acted independently and had different product portfolios from those which Nichicon Corporation sold in Japan. Consequently, the majority of the sales of Nichicon Corporation’s subsidiaries were not affected by the infringement found and were therefore outside the scope of the infringement.
163 In support of that claim, Nichicon Corporation submitted evidence that there was only a limited overlap between the product portfolios sold by Nichicon Corporation and its European subsidiaries, respectively. In addition, Nichicon Corporation provided a detailed total breakdown of the sales of Nichicon Japan and Nichicon UK/Austria in the EEA, which revealed that only EUR 147.71 million of sales of products shipped in the EEA concerned products sold both by Nichicon UK/Austria and by Nichicon Japan. In other words, only about one third of the EUR 433.29 million in sales of Nichicon Corporation in the EEA, on which the Commission based its fine and which was confirmed by the General Court, could theoretically have been affected by the infringement. In any event, the General Court failed to take account of the fact that only a minority of sales in the EEA were liable to be affected by the infringement and therefore, for that reason, infringed the principle of proportionality.
164 The Commission disputes that line of argument. - Findings of the Court
165 In the first place, in so far as, by that part of the fourth ground of appeal, Nichicon Corporation submits that the General Court erred in law in accepting that the Commission could calculate the basic amount of the fine not on the basis of sales consigned to the EEA, but on the basis of sales invoiced in the EEA, it should be noted, first of all, that the present case differs from that which gave rise to the judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission (C‑615/15 P, not published, EU:C:2017:190). In that case, the Commission had decided to determine the value of sales referred to in point 13 of the 2006 Guidelines on the basis of the goods actually delivered in the EEA when the negotiation of sales and their payment took place outside the EEA. That approach was confirmed by the Court in the light of the circumstances referred to in paragraphs 53 and 54 of that judgment. The Court added, in paragraph 55 of the judgment, that the mere fact that the place of negotiation of sales is outside the EEA does not allow their value to be excluded for the purpose of the determination of the value of sales within the EEA. By contrast, in the present case, the Commission took into account the sales invoiced within the EEA.
166 Next, the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings is not relevant in the present case, since the assessment of the consequences of a concentration on the market is not comparable to the determination of the amount of a fine imposed for an infringement of Article 101 TFEU.
167 Moreover, nothing in the 2006 Guidelines prevents the Commission from taking into account not only sales consigned to the EEA but also sales invoiced in the EEA. As the General Court noted in paragraph 484 of the judgment under appeal, point 13 of the 2006 Guidelines refers neither to ‘sales delivered’ or ‘sales invoiced’ but refers only to ‘sales’ in the EEA. As for the judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission (C‑615/15 P, not published, EU:C:2017:190), it does not preclude the sales invoiced in the EEA being taken into account when determining the level of sales made.
168 In those circumstances, Nichicon Corporation is also wrong to claim that the General Court reversed the burden of proof. In so far as the Commission took into account sales made in the EEA, whether or not they were consigned to the EEA, that is sufficient to establish that the value of those sales falls within the scope of the cartel.
169 The General Court was therefore correct to hold that it was for Nichicon Corporation to explain how the fact that the Commission took into account, in calculating the amount of the fine, certain sales invoiced to customers located in the EEA, but subsequently delivered to sites outside that geographic area, could not reflect the impact of the infringement on competition in the EEA.
170 Furthermore, Nichicon Corporation submits that the General Court wrongly found that it had not explained the reasons why certain sales invoiced to customers in the EEA should be excluded from the level of sales in the EEA. However, Nichicon Corporation merely claims that it provided the General Court with relevant evidence, but fails to identify that evidence. Consequently, its argument must be rejected.
171 In the second place, as regards the gravity factor, Nichicon Corporation submits that the General Court was wrong, in paragraph 503 of the judgment under appeal, to assert that Nichicon Corporation had not given details as to the specific circumstances which the Commission should have taken into account for the purposes of determining the multiplier.
172 In that regard, it is indeed apparent from the application at first instance that Nichicon Corporation argued before the General Court that the Commission should have taken account of certain specific circumstances when determining the multiplier.
173 It must nonetheless be recalled that if the grounds of a decision of the General Court reveal an infringement of EU law but the operative part of the judgment can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made (judgment of 25 March 2021, Xellia Pharmaceuticals and Alpharma v Commission , C‑611/16 P, EU:C:2021:245, paragraph 149). That is the situation in the present case.
174 The specific circumstances to which Nichicon Corporation refers relate, as mentioned in paragraph 162 of the present judgment, to the fact that Nichicon Corporation’s European subsidiaries had essentially independently negotiated prices and conditions in the EEA, had acted independently and had product portfolios different from those which Nichicon Corporation sold in Japan.
175 It should be noted in that regard that the General Court, in paragraphs 476 to 482 of the judgment under appeal, assessed those specific circumstances and, in paragraph 482 of that judgment, concluded, in essence, that, since they concerned Nichicon Corporation’s sales structure and fell solely within its commercial strategy, they did not, in themselves, constitute particular circumstances justifying the application of a different method of calculation of the basic amount of the fine. Nichicon Corporation did not validly challenge those paragraphs of the judgment under appeal.
176 Those reasons apply mutatis mutandis to the calculation of the multiplier. In those circumstances, the General Court did not err in concluding that the Commission was not required to take those specific circumstances into consideration when calculating the multiplier.
177 For the same reasons, the General Court did not err in law when, in paragraph 584 of the judgment under appeal, it refused to reduce the multiplier in the exercise of its unlimited jurisdiction.
178 Furthermore, Nichicon Corporation did not dispute the findings, set out in paragraph 502 of the judgment under appeal, on the basis of which the General Court found that the Commission had complied with the 2006 Guidelines.
179 It follows that the first part of the fourth ground of appeal is unfounded. The second part of the fourth ground of appeal, concerning the assessment of mitigating circumstances - Arguments of the parties
180 Nichicon Corporation, in order to challenge the assessment of mitigating circumstances carried out by the General Court, submits, in the first place, that the General Court did not properly take into account Nichicon Corporation’s absence from the MK meetings.
181 First, the General Court, in paragraph 17 of the judgment under appeal, confirmed that the liability of Nichicon Corporation did not extend to the MK Meetings. However, it rejected Nichicon Corporation’s argument that its participation was limited, contradicting its own judgment and distorting the evidence when it declared, in paragraph 531 of the judgment under appeal, that ‘not withstanding its non-participation in the MK meetings, [Nichicon Corporation] is not justified in claiming that its participation in the cartel was limited’.
182 Secondly, that error of law led to a further error on the part of the General Court when it stated, in paragraph 586 of the judgment under appeal, that Nichicon Corporation was not justified in claiming that its participation in the cartel was limited and that it ‘revealed a lesser degree of harm justifying’ a reduction in the amount of the fine.
183 It is clear from the case-law of the Court of Justice that it is necessary to take into consideration the fact that an undertaking has not taken part in all aspects of an anticompetitive arrangement or that it played only a minor role in assessing the gravity of the infringement and, as the case may be, in determining the fine (judgment of 6 December 2012, Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraphs 45 and 74).
184 Thirdly, on the basis of those two errors, the General Court upheld the excessively limited reduction of 3% on account of mitigating circumstances which had been granted by the Commission.
185 Fourthly, in breach of the principle of proportionality, the General Court did not recognise, in paragraph 529 of the judgment under appeal, the real importance of the MK meetings, which, according to Nichicon Corporation, did not constitute only a complementary part of the infringement, but were, in their own right, of substantial importance.
186 Fifthly, the General Court infringed the principle of equal treatment by granting the undertakings that had not participated in the CUP meetings the same reduction as Nichicon Corporation, which had not participated in the MK meetings. In particular, the judgment under appeal did not address the question of whether the MK meetings and the CUP meetings were comparable. Those meetings differ not only in terms of their frequency and duration, but also in terms of their content. In any event, the number of MK meetings and CUP meetings is a relevant factor in assessing the gravity of the infringement. Nichicon Corporation participated in far fewer anticompetitive contacts than the other cartel participants.
187 In the second place, in paragraphs 549 to 554 of the judgment under appeal, the General Court rejected Nichicon Corporation’s arguments that, when determining the fine based on mitigating circumstances, the Commission should have taken account of the fact that the president of Nichicon Corporation had attempted to prevent infringements of competition law, that its president’s policy was known to the participants in the MK meetings and that they had therefore invited Mr Shiozaki to attend subsequent meetings in a personal capacity.
188 The General Court, in paragraph 553 of the judgment under appeal, relied on the case-law according to which the liability of an undertaking for infringements of competition law is engaged by any person authorised to act on behalf of an undertaking, regardless of whether there is action by, or even knowledge on the part of its principal managers (judgment of 16 February 2017, Tudapetrol Mineralölerzeugnisse Nils Hansen v Commission , C‑94/15 P, not published, EU:C:2017:124, paragraph 28). However, that case-law concerns the establishment of liability. The General Court failed to state the reasons why it considered that the arguments and evidence put forward were not relevant to the assessment of Nichicon Corporation’s negligence.
189 In the third place, Nichicon Corporation submits that the General Court failed to take proper account of its competitive conduct, relating, in particular, to its aggressive pricing policy and its limited involvement in the infringement. In particular, the General Court rejected the existence of a mitigating circumstance relating to the competitive conduct of Nichicon Corporation, stating, in paragraph 563 of the judgment under appeal, that Nichicon Corporation, inter alia, ‘had not demonstrated that it clearly and publicly distanced itself from the cartel’ and that it ‘clearly and firmly opposed the implementation of the cartel to the point of disrupting its operation’.
190 Thus, according to the test applied by the General Court, competitive conduct can constitute a mitigating circumstance only if the undertaking in question ceases to participate in the infringement concerned and can no longer be held liable for it. However, in such a case, it would no longer be necessary to recognise the existence of mitigating circumstances, since no fine could in any event be imposed. Thus, the General Court completely removed competitive conduct as a ground justifying the existence of a mitigating circumstance.
191 The Commission disputes that line of argument. - Findings of the Court
192 In order to rule on the second part of the fourth ground of appeal, it should be noted, first, that the fact that Nichicon Corporation participated in all the constituent elements of the cartel with the exception of the MK meetings is not, in itself, sufficient for its participation in the cartel to be regarded as limited. The General Court considered, in paragraph 529 of the judgment under appeal, that those meetings were not of particular importance in the wider context of the cartel, which, as the Commission points out, constitutes a factual assessment.
193 Secondly, Nichicon Corporation is wrong to claim that the General Court failed to ensure that the Commission took into account the fact that Nichicon Corporation did not participate in those meetings. It is apparent from paragraph 525 of the judgment under appeal that it was precisely in the light of that fact that the Commission, in the exercise of its broad discretion in that regard, reduced the amount of the fine by 3%.
194 Thirdly, in paragraph 531 of the judgment under appeal, the General Court concluded that, in so doing, the Commission had not infringed the principle of proportionality. While Nichicon Corporation appears to criticise that conclusion, it nevertheless failed to challenge the reasons for it set out in paragraphs 526 to 530 of the judgment under appeal.
195 Fourthly, as regards the taking into account of Nichicon Corporation’s competitive conduct, the General Court, in paragraphs 561 to 563 of the judgment under appeal, did not consider that it could justify a reduction of the fine. The General Court noted that Nichicon Corporation had put forward an inconsistent argument, had not demonstrated that it clearly and publicly distanced itself from the cartel, had not clearly and firmly opposed the implementation of that cartel and the competitive conduct alleged by Nichicon Corporation was not corroborated by the analysis, carried out by an independent firm, of its prices in the EEA. Therefore, Nichicon Corporation’s argument that the General Court failed to take into account its competitive conduct in order to reduce the amount of the fine is based on a misreading of the judgment under appeal.
196 Fifthly, it should be noted, first, that the Court of Justice has already held that, in order to benefit from the mitigating circumstance relating to the adoption of competitive conduct or the non-implementation of the cartel, an undertaking must show not only that it adopted competitive conduct, but also that it did not give the appearance of being a member of the cartel and thereby incited other undertakings to implement it (see, to that effect, judgment of 8 December 2011, KME Germany and Others v Commission , C‑389/10 P, EU:C:2011:816, paragraphs 93 to 96).
197 In paragraphs 561 to 564 of the judgment under appeal, the General Court held, without being contradicted by the appeal, that Nichicon Corporation did not fulfil any of those conditions.
198 On the other hand, contrary to Nichicon Corporation’s claim, the General Court did not reject the allegation regarding its competitive conduct solely because Nichicon Corporation did not publicly distance itself from the collusive behaviour. In paragraph 563 of the judgment under appeal, it also found that Nichicon Corporation had not demonstrated its clear and firm opposition to the implementation of the cartel to the point of disrupting its operation and that that allegation by Nichicon Corporation was not corroborated by the analysis of the price of its capacitors in the EEA during the infringement period.
199 It follows that the second part of the fourth ground of appeal is unfounded.
200 In the light of the foregoing, the fourth ground of appeal must be rejected. The request that the Court exercise its unlimited jurisdiction Arguments of the parties
201 Nichicon Corporation submits that the General Court’s refusal to reduce the fine results in the imposition of an excessive and therefore disproportionate fine. Consequently, the General Court erred in law by refusing to exercise its unlimited jurisdiction. It therefore requests the Court to exercise its unlimited jurisdiction under Article 261 TFEU and Article 31 of Regulation No 1/2003 and to substitute its own assessment in order to reduce the amount of the fine imposed by taking into account all the factual circumstances.
202 The Commission contends that that request is inadmissible. Findings of the Court
203 In so far as Nichicon Corporation’s request must be understood as seeking to criticise the General Court for having erred in law by deciding not to reduce the amount of the fine imposed on it, it should be noted that, after having rejected all the arguments and pleas in law in the action at first instance, the General Court, in paragraphs 579 to 590 of the judgment under appeal, examined each of the circumstances relied on by Nichicon Corporation and concluded that they did not justify a reduction of the fine. In its appeal, Nichicon Corporation has not established any specific error on the part of the General Court in that regard.
204 In so far as that request asks the Court to exercise its unlimited jurisdiction, it must be recalled that, according to the case-law, it is not for the Court, 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 (judgment of 11 July 2013, Team Relocations and Others v Commission , C‑444/11 P, not published, EU:C:2013:464, paragraph 97).
205 It follows that Nichicon Corporation’s request cannot be granted.
206 In the light of all of the foregoing considerations, the appeal must be dismissed as partly inadmissible and partly unfounded. Costs
207 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where an appeal is unfounded, the Court is to make a decision as to costs.
208 Under Article 138(1) of the Rules of Procedure, applicable 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.
209 In the present case, since Nichicon Corporation has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter. On those grounds, the Court (Ninth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Nichicon Corporation to bear its own costs and to pay the costs incurred by the European Commission. Rossi Bonichot Rodin Delivered in open court in Luxembourg on 13 July 2023. A. Calot Escobar L.S. Rossi Registrar President of the Chamber * Language of the case: English.