1 By its appeal, Quanta Storage Inc. (‘the appellant’) seeks to have set aside the judgment of the General Court of the European Union of 12 July 2019, Quanta Storage v Commission (T‑772/15, EU:T:2019:519, ‘the judgment under appeal’), by which the General Court dismissed its action seeking, principally, annulment in part of Commission Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 - Optical disk drives) (‘the decision at issue’), in so far as it concerns the appellant, or, in the alternative, a reduction of the amount of the fine imposed on the appellant.
2 Article 23(2) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) provides: ‘2. The [European] Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article [101 or 102 TFEU]; or (b) they contravene a decision ordering interim measures under Article 8; or (c) they fail to comply with a commitment made binding by a decision pursuant to Article 9. … Where the infringement of an association relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by the infringement of the association. 3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
3 Article 27(1) and (2) of that regulation provides: ‘1. Before taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity of being heard on the matters to which the Commission has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings. 2. The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the competition authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competition authorities of the Member States, or between the latter, including documents drawn up pursuant to Articles 11 and 14. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.’
4 Article 31 of that regulation is worded as follows: ‘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.’
5 As regards the calculation of the fines, points 6 and 13 of 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) provide: ‘6. The combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement. Reference to these factors provides a good indication of the order of magnitude of the fine and should not be regarded as the basis for an automatic and arithmetical calculation method. … 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)]. …’
6 The background to the dispute is set out in paragraphs 1 to 32 of the judgment under appeal and, for the purposes of the present proceedings, can be summarised as follows.
7 Quanta Storage operates in the computer storage devices sector and is engaged in the research and development, design, manufacture and supply of optical disk drives (‘ODDs’). It was established in February 1999. It is a public company listed at the Taipei stock exchange in Taiwan (Republic of China).
8 The infringement at issue concerns ODDs used, inter alia, in personal computers (desktops and notebooks) produced by Dell Inc. and Hewlett Packard (‘HP’).
9 Dell and HP are the two most important original equipment manufacturers on the global market for personal computers. Those two companies use standard procurement procedures carried out on a global basis which involve, inter alia, quarterly negotiations over a worldwide price and overall purchase volumes with a limited number of pre-qualified ODD suppliers.
10 The procurement procedures include requests for quotations, electronic requests for quotations, internet negotiations, e-auctions and bilateral (offline) negotiations. At the close of a procurement procedure, customers allocate volumes to participating ODD suppliers depending on their quoted prices.
11 On 14 January 2009, the Commission received a request for immunity under its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) lodged by Koninklijke Philips NV (‘Philips’). On 29 January and 2 March 2009, that request was supplemented to include, alongside that company, Lite-On IT Corporation and their joint venture Philips & Lite-On Digital Solutions Corporation (‘PLDS’).
12 On 30 June 2009, the Commission granted conditional immunity to Philips, Lite-On IT and PLDS.
13 On 18 July 2012, the Commission sent a statement of objections to 13 ODD suppliers, including the appellant (‘the statement of objections’), in which it stated that those companies had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’) by participating in a cartel concerning ODDs from 5 February 2004 until 29 June 2009, consisting in orchestrating their conduct with respect to invitations to tender organised by two computer manufacturers, Dell and HP.
14 On 26 October 2012, in reply to the statement of objections, the appellant submitted its written comments. A hearing was held on 29 and 30 November 2012, in which all the addressees of the statement of objections took part.
15 On 21 October 2015, the Commission adopted the decision at issue.
16 In that decision, the Commission considered that the cartel participants had coordinated their competitive behaviour, at least between 23 June 2004 and 25 November 2008. It specified that that coordination took place through a network of parallel bilateral contacts. It stated that the cartel participants sought to accommodate their volumes on the market and ensure that the prices remained at levels higher than they would have been in the absence of those bilateral contacts.
17 The Commission specified, in the decision at issue, that the coordination between the cartel participants concerned the customer accounts of Dell and HP. According to the Commission, in addition to bilateral negotiations with their ODD suppliers, Dell and HP applied standardised procurement procedures, which took place at least on a quarterly basis. The Commission stated that the cartel members used their network of bilateral contacts to manipulate those procurement procedures, thus thwarting their customers’ attempts to stimulate price competition.
18 According to the Commission, regular exchanges of information in particular enabled the cartel members to possess a very complex knowledge of their competitors’ intentions even before they had entered the procurement procedure, and therefore to foresee their competitive strategy.
19 The Commission added that, on a regular basis, the cartel members exchanged pricing information regarding specific customer accounts as well as information unrelated to pricing, such as existing production, supply capacity, inventory status, the qualification status, and timing of the introduction of new products or upgrades. The Commission stated that, in addition, the ODD suppliers monitored the final results of closed procurement events, that is the rank, the price and the volume obtained.
20 The Commission further stated that, whilst knowing that they must keep their contacts secret from customers, to contact each other, ODD suppliers used the means they deemed sufficiently appropriate to achieve the desired result. The Commission stated, in addition, that an attempt to convene an initial meeting in order to hold regular multilateral meetings between those suppliers had failed in 2003, after having been revealed to a customer. According to the Commission, instead of those meetings, there were bilateral contacts, mostly via phone calls and, from time to time, via emails, including private email addresses and instant messaging services, or meetings, mostly at the level of global account managers.
21 The Commission found that the cartel participants contacted each other regularly and that the contacts, mainly by telephone, became more frequent around the procurement events, amounting to several calls per day between some pairs of cartel participants. It stated that, generally, contacts between some pairs of cartel participants were significantly higher than between other pairs.
22 When calculating the amount of the fine imposed on the appellant, the Commission relied on the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003.
23 First of all, in order to determine the basic amount of the fine, the Commission considered that, in view of the considerable differences in the duration of the ODD suppliers’ participation in the cartel and in order better to reflect the actual impact of the cartel, it was appropriate to use an annual average calculated on the basis of the actual value of sales made by the undertakings concerned during the full calendar months of their respective participation in the infringement.
24 The Commission thus explained that the value of sales was calculated on the basis of sales of ODDs for personal computers invoiced to HP and Dell entities located in the EEA.
25 The Commission stated that, in the appellant’s case, the annual sales taken into consideration also included sales of ODDs to Sony Optiarc Inc. for HP and Dell notebooks and desktops.
26 The Commission further considered that, since the anticompetitive conduct with regard to HP had begun later and in order to take the evolution of the cartel into account, the relevant value of sales would be calculated separately for HP and for Dell, and that two duration multipliers would be applied.
27 Next, the Commission decided that, since price coordination agreements are by their very nature among the worst kind of infringements of Article 101 TFEU and Article 53 of the EEA Agreement, and since the cartel covered at least the whole of the EEA, the percentage for gravity used in this case would be 16% for all addressees of the decision at issue.
28 Lastly, the Commission stated that, given the circumstances of the case, it had decided to add an additional amount of 16% for deterrence.
29 The operative part of the decision at issue, in so far as it concerns the appellant, reads 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, which consisted of several separate infringements, in the [ODD] sector covering the whole of the EEA, which consisted of price coordination arrangements: … (h) [the appellant] from 14 February 2008 to 28 October 2008, for its coordination with regards to Dell and HP. Article 2 For the infringement referred to in Article 1, the following fines are imposed: … (h) [the appellant]: EUR 7146000.’
30 By application lodged at the Registry of the General Court on 29 December 2015, the appellant brought an action seeking, principally, annulment of the decision at issue in so far as it concerns the appellant or, in the alternative, a reduction of the amount of the fine imposed on the appellant.
31 In support of its action, the appellant raised five pleas in law. Those pleas alleged, first, breach of the rights of the defence, of the obligation to state reasons and of the right to good administration, second, a manifest error of law and breach of the obligation to state reasons on account of a discrepancy between the operative part of the decision at issue and the Commission’s reasoning as regards the duration of the infringement in relation to HP, third, absence of proof and insufficient reasoning in relation to the appellant’s participation in a single and continuous infringement, fourth, the Commission’s lack of jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement and, fifth, errors of fact and of law in the calculation of the amount of the fine and breach of the obligation to state reasons.
32 By the judgment under appeal, the General Court rejected those pleas and, accordingly, dismissed the action in its entirety.
33 By its appeal, the appellant claims that the Court should: - set aside the judgment under appeal; - annul the decision at issue in so far as it concerns the appellant; - in the alternative, reduce the fine imposed on the appellant; - in the alternative, refer the case back to the General Court; and - order the Commission to pay all the costs.
34 The Commission contends that the Court should: - dismiss the appeal; and - order the appellant to pay all the costs of the present proceedings.
35 In support of its appeal, the appellant raises five grounds of appeal, which concern, in essence, the General Court’s assessment, first, of the Commission’s finding that the single and continuous infringement of which the appellant was accused consisted of several separate infringements, second, of certain items of evidence that were distorted, third, of the duration of the appellant’s participation in that single and continuous infringement, fourth, of the appellant’s alleged awareness of that infringement and, fifth, of the amount of the fine imposed on the appellant.
36 By its first ground of appeal, the appellant claims that the General Court failed to apply, in paragraphs 58 to 72 of the judgment under appeal, the relevant legal test and distorted the clear sense of the evidence when it rejected the appellant’s plea for annulment alleging breach of its rights of defence, which the Commission breached by finding, in the decision at issue, in addition to a single and continuous infringement, several separate infringements which it had not characterised as such in the statement of objections.
37 The appellant recalls the fundamental nature of the principle of observance of the rights of the defence, which applies in all proceedings in which penalties, in particular fines or penalty payments, may be imposed. The appellant submits that in competition matters, that principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty contain a number of essential elements, such as the facts, the legal characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it.
38 According to the appellant, the case-law cited by the General Court in paragraphs 62 and 63 of the judgment under appeal cannot be reconciled with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, or with Article 41(1) and (2) and Article 48(1) and (2) of the Charter of Fundamental Rights of the European Union. Thus, the appellant submits that the General Court erred in law in holding that its rights of defence had been observed, whereas, in the statement of objections, the Commission did not characterise as separate infringements the elements which it characterised as such in the operative part of the decision at issue. The various combinations of anticompetitive contacts alleged in that statement of objections could have given rise to a large number of infringements.
39 The appellant maintains that that would also be the case, even if the Commission had based the decision at issue on only five contacts. As regards, by way of example, contact 5, the appellant submits that that contact cannot in itself constitute an infringement of Article 101 TFEU. On the other hand, it could be characterised as such in combination with other contacts. The same is true of all the combinations of anticompetitive contacts which include that contact.
40 Thus, according to the appellant, although the facts and evidence were set out in the statement of objections, the characterisation of that evidence was not. The absence of that characterisation in the statement of objections led to a breach of the appellant’s rights of defence, which the General Court failed to recognise.
41 The appellant claims that the General Court also erred in law by limiting its review solely to the contacts that were referred to in the decision at issue. According to the appellant, even if the statement of objections had indicated that each combination of contacts constituted an infringement, it would have been impossible for the appellant to address each of those combinations without knowing the precise characterisation used by the Commission. The General Court further erred in law in finding that the statement of objections had made the appellant aware that the Commission had considered any combination of bilateral contacts to be separate infringements.
42 As regards distortion of the facts, the appellant observes that the General Court considered that recitals 301, 308, 353 and 354 of the statement of objections referred to a complex of agreements and concerted practices and that, therefore, the appellant had been made aware of the Commission’s intention to find separate infringements. The appellant submits, however, that the General Court did not take account of the first sentence of recital 353 of the statement of objections, which makes it abundantly clear that the Commission considered that there was only one single and continuous infringement.
43 The Commission contends, as a preliminary point, that this ground of appeal is ineffective. It points out that the General Court confirmed its finding that the appellant had participated in a single and continuous infringement between 14 February 2008 and 28 October 2008. Accordingly, the appellant’s arguments in respect of the Commission’s incidental finding that that single and continuous infringement comprised several separate infringements are ineffective since they cannot affect the operative part of the judgment under appeal.
44 In any event, the Commission contends that those arguments are unfounded.
45 First, the Commission submits that the appellant distorts the judgment under appeal by claiming that the General Court held therein that it follows from the case-law that a party’s procedural rights are waived if that party made observations on what was presented to it. On the contrary, the General Court correctly summarised, in paragraphs 60 to 63 of that judgment, the principles applicable to the right to be heard.
46 Second, according to the Commission, the appellant’s argument alleging a manifest distortion of the statement of objections, in paragraph 65 of the judgment under appeal, should be rejected. The appellant was heard during the administrative procedure on the allegation that its conduct constituted not only a single and continuous infringement but also a series of separate infringements. The Commission maintains that the General Court correctly held, in paragraphs 66 and 67 of that judgment, that anticompetitive contacts may constitute separate infringements and at the same time, taken together, be characterised as a single and continuous infringement. That conclusion is consistent with the case-law of the Court of Justice. Moreover, contrary to what the appellant claims, the statement of objections did indeed refer to a complex of infringements in several instances.
47 Third, the Commission submits that, contrary to the appellant’s claims, the General Court, in paragraphs 68 to 70 of the judgment under appeal, responded to its argument that the different permutations of contacts alleged in the statement of objections would have resulted in a large number of possible infringements. The General Court found that the number of contacts in which the appellant was involved was limited. That finding, which is factual in nature, cannot be challenged on appeal. Furthermore, the General Court also found that, in any event, the appellant was able to defend itself in respect of all the alleged bilateral contacts and that the appellant made use of that possibility, so that it cannot claim that its rights of defence were breached.
48 Fourth, according to the Commission, the appellant distorts the decision at issue by claiming that the anticompetitive nature of contact 5 depends only on contact 1. Apart from the fact that that interpretation disregards the substance of recitals 257 to 259 of that decision, the General Court correctly concluded, in paragraphs 68 to 70 of the judgment under appeal, that the appellant had had the opportunity to challenge the anticompetitive nature of both contact 1 and contact 5.
49 Fifth, the Commission submits that the appellant misinterprets paragraphs 70 and 71 of the judgment under appeal. The General Court did not state that the rights of the defence apply only where an undertaking has engaged in a limited number of bilateral contacts. It merely stated, for the sake of completeness, in paragraph 71 of that judgment, that the Commission cannot be held responsible for the possibly high number of bilateral contacts in which the appellant might have engaged.
50 By its first ground of appeal, the appellant claims that, in paragraphs 58 to 72 of the judgment under appeal, the General Court erred in law and distorted the evidence by holding that the Commission had not breached the appellant’s rights of defence by finding, in the decision at issue, in addition to a single and continuous infringement, several separate infringements which it had not characterised as such in the statement of objections.
51 In that regard, it must be observed that, in Article 1(h) of the decision at issue the Commission found, in essence, first, that there was a single and continuous infringement and, second, that that infringement consisted of ‘several separate infringements’.
52 In that context, it must also be observed that the first ground of appeal seeks to challenge only the assessment, by the General Court, of the second finding, which relates to the existence of several separate infringements. By contrast, this ground of appeal does not relate to its assessment of the finding, which appears in that provision, that the appellant participated in a single and continuous infringement.
53 It follows that, contrary to the Commission’s submission, to the extent that in the present case it has based the decision at issue on two distinct findings of infringement, this ground of appeal cannot be rejected at the outset as ineffective.
54 In order to examine this ground of appeal, it must be recalled, as a preliminary point, that it is clear from well-established case-law that an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).
55 An undertaking which has participated in such a single and continuous infringement through its own conduct, which fell within the definition of an ‘agreement’ or a ‘concerted practice’ having an anticompetitive object for the purposes of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may accordingly be liable 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 (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited).
56 As the Advocate General observed in point 59 of his Opinion, an undertaking may have participated in a single and continuous infringement without directly participating in all the forms of anticompetitive conduct comprising that infringement (see, to that effect, judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission, C‑702/19 P, EU:C:2020:857, paragraph 82 and the case-law cited).
57 It is in the light of those factors that the first ground of appeal must be examined.
58 The appellant claims that the General Court erred in law, in paragraphs 58 to 72 of the judgment under appeal, in rejecting its argument that the Commission breached its rights of defence by accusing it, for the first time in the decision at issue, in addition to its participation in a single and continuous infringement, of participation in several separate infringements comprising that single and continuous infringement.
59 It should be recalled that the concept of a ‘single and continuous infringement’ presupposes a complex of practices that may also constitute, in themselves, an infringement of Article 101(1) TFEU. While a complex of practices may be legally characterised, under the conditions set out in paragraphs 54 and 55 of this judgment, as a single and continuous infringement, it cannot be deduced therefrom that each of those practices must, in itself and taken in isolation, necessarily be characterised as a separate infringement of that provision. In order to do so, the Commission must go on to identify and legally characterise as such each of those practices and, next, adduce proof of the involvement of the undertaking concerned to which those practices are imputed.
60 In that regard, the Court of Justice has already held that a Commission decision categorising a global cartel as a single and continuous infringement can be divided only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard (see, by analogy, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 46).
61 According to settled case-law, in all proceedings in which penalties, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be fully complied with by the Commission (see, to that effect, judgment of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 94 and the case-law cited).
62 In that regard, as the General Court correctly recalled in paragraph 60 of the judgment under appeal, Regulation No 1/2003 provides that the parties are to receive a statement of objections which must set out clearly all the essential facts upon which the Commission is relying at that stage of the procedure. That statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law, which requires observance of the rights of the defence in all proceedings capable of leading to the imposition of a penalty. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see, to that effect, judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraphs 35 and 36 and the case-law cited).
63 It is true that, as the Advocate General recalled in point 88 of his Opinion, it is permissible for the Commission to qualify, in its final decision, the legal characterisation of the facts that it found, provisionally, in the statement of objections, taking account of the information that emerges from the administrative procedure, either withdrawing objections or allegations that have turned out to be unfounded, or structuring and supplementing in fact and in law its arguments in support of the allegations relied on (see, to that effect, judgment of 5 December 2013, SNIA v Commission, C‑448/11 P, not published, EU:C:2013:801, paragraphs 42 to 44). However, that means that the Commission must, in the statement of objections, set out each legal characterisation of the facts on which it intends to rely in its final decision.
64 Therefore the rights of defence of the undertaking concerned are infringed as a result of a discrepancy between the statement of objections and the final decision only where an objection that is upheld in the latter had not been set out in the statement of objections or if it had not been set out in a manner sufficient to enable the addressees of that statement effectively to make their arguments in the context of the procedure brought against them.
65 It follows that, where the Commission intends to allege against the addressees of a statement of objections not only a single and continuous infringement, but also each of the forms of conduct comprising that infringement taken individually as separate infringements, observance of the rights of defence of those addressees requires the Commission to set out, in that statement, the necessary elements to enable them to understand that the Commission alleges against them both that single and continuous infringement and each of those separate infringements.
66 In paragraphs 60 to 63 of the judgment under appeal, the General Court correctly recalled the principles relating to observance of the rights of the defence in the context of a procedure that could lead to a finding of an infringement of Article 101(1) TFEU. It also correctly stated, in paragraph 62 of that judgment, that it is only if the final decision alleges that the undertakings concerned have committed infringements other than those referred to in the statement of objections or takes into consideration different facts that there will be an infringement of the rights of the defence.
67 By contrast, the appellant cannot rely on the fact that the General Court held, in paragraph 63 of the judgment under appeal, referring to the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582), that there will be no infringement of the rights of the defence where the alleged differences between the statement of objections and the final decision do not concern any conduct other than that in respect of which the undertakings concerned had already submitted observations and are therefore unrelated to any new complaint.
68 Such a consideration is based on the premiss that the Commission clearly indicated, first, its intention to characterise as a separate infringement each of the forms of conduct or combination of forms of conduct at issue, taken in isolation, and, second, to which undertaking it imputed them.
69 In paragraph 65 of the judgment under appeal, the General Court indeed found that a number of elements set out in the statement of objections indicated that the Commission considered that the cartel consisted of different agreements. However, the General Court could not deduce from those general considerations, or even from the bilateral contacts identified in that statement of objections and referred to in paragraph 69 of that judgment, that the Commission had clearly set out in that statement the evidence necessary to enable the appellant to understand that the Commission had, in addition to a single and continuous infringement, also intended to allege against it, as separate infringements, each of the forms of conduct or combinations of forms of conduct in which the appellant had directly participated, taken in isolation.
70 By so doing, the General Court erred in law. By confusing the concepts ‘conduct’ and ‘infringement’, moreover implicitly, the appellant could not understand, in the absence of any clear indication in the statement of objections, that the Commission intended to allege against it, not only the single and continuous infringement alleged in that statement, but also several separate infringements consisting of the various bilateral contacts referred to in that statement.
71 It follows that the General Court could not, without erring in law, hold that the Commission had not breached the appellant’s rights of defence, since the statement of objections did not contain the essential elements found against it as regards those separate infringements, in particular the legal characterisation envisaged for the forms of conduct or combinations of forms of conduct alleged against it.
72 Accordingly, the first ground of appeal must be upheld.
73 By its second ground of appeal, the appellant claims that, in paragraphs 104 to 107 and 113 to 115 of the judgment under appeal, the General Court distorted the evidence which it submitted in connection with the second part of the first plea in its action for annulment, which concerned observance of the rights of the defence and the right to good administration. More specifically, the appellant claims that the General Court distorted the clear sense of paragraph 13 of its reply to the statement of objections, which referred only to contacts between the appellant and Philips and Sony Optiarc, of which the appellant was the supplier, in concluding that those contacts demonstrated that the appellant was in direct contact with its competitors.
74 In the first place, the appellant submits that, by finding, in paragraphs 104 to 107 of the judgment under appeal, that the Commission had not breached the appellant’s rights of defence, the General Court reversed the burden of proof.
75 In the second place, the appellant submits that, as regards the breach of the right to good administration, the General Court wrongly considered that, by refusing to ask HP and Dell to provide evidence on market transparency, the Commission had not breached that right.
76 In that regard, according to the appellant, it is apparent from paragraphs 113 and 114 of the judgment under appeal that the General Court misconstrued the appellant’s statements as admissions of unlawful contacts with competitors, when they were merely contacts between a supplier and its customers. The distortion of the clear sense of those statements led the General Court to conclude, wrongly, that there was no need for the Commission to request HP and Dell to produce certain documents.
77 The Commission contends that the second ground of appeal is ineffective and unfounded.
78 It should be recalled that, according to settled case-law, the Court of Justice rejects outright complaints directed against grounds of a judgment of the General Court which are included purely for the sake of completeness, since they cannot lead to its being set aside (judgment of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraph 106 and the case-law cited).
79 It should be noted that the distortions of evidence alleged by the appellant relate only to matters which do not directly support the conclusions set out in paragraphs 107 and 115 of the judgment under appeal.
80 First, the evidence referred to in paragraphs 104 to 106 of that judgment is in addition to three other items of evidence, set out in paragraphs 96, 100 and 103 of that judgment, which are sufficient to justify the finding in paragraph 107 of that judgment. Second, the contested part of paragraph 113 of the judgment under appeal is also not necessary to substantiate the conclusions set out in paragraphs 114 and 115 of that judgment. That paragraph 113 opens with a finding of fact, which is not disputed, which is in itself sufficient to substantiate those conclusions. It relates to the fact that the appellant took part in direct contacts during which the cartel participants had exchanged information on prices. That is sufficient to justify the General Court’s finding that the Commission did not need to ask Dell and HP to produce documents by which they had kept ODD suppliers informed of their competitors’ prices. A possible distortion of evidence in the second part of paragraph 113 would have no effect on those conclusions set out in paragraphs 114 and 115 of that judgment.
81 The appellant’s second ground of appeal must therefore be rejected as ineffective.
82 By its third ground of appeal, the appellant claims that the General Court breached its obligation to state reasons or failed to apply the correct legal test by rejecting the second plea in its action for annulment, alleging a contradiction between the grounds of the decision at issue and its operative part.
83 According to the appellant, the General Court’s reasoning in paragraphs 118 to 121 of the judgment under appeal does not constitute a sufficient response to that second plea. The appellant submits that there is a contradiction between recital 553 of the decision at issue, which states that the appellant participated, as regards HP, in the single and continuous infringement at issue only from 10 April to 28 October 2008, and the operative part of that decision, which found that the appellant participated in that infringement, as regards both Dell and HP, from 14 February 2008 to 28 October 2008.
84 The appellant submits that that contradiction should have led the General Court to uphold the second plea in the appellant’s action for annulment.
85 The Commission contends that the third ground of appeal should be rejected as unfounded.
86 By its third ground of appeal, the appellant claims that the General Court breached its obligation to state reasons or erred in law in rejecting the second plea in its action for annulment, alleging a contradiction between the grounds and the operative part of the decision at issue.
87 In that regard, in paragraph 118 of the judgment under appeal, the General Court noted that Article 1 of the decision at issue indicates that the Commission revealed the existence of a single and continuous infringement and that that did not mean, however, that all the addressees of that decision had to be penalised for the whole of that infringement. In paragraph 119 of that judgment, the General Court pointed out that Article 1 specifies that that infringement consists of ‘several separate infringements’.
88 In paragraph 120 of that judgment, the General Court concluded that the Commission did not contradict itself by stating, in Article 1 of the decision at issue, that the appellant had participated in a single and continuous infringement in relation to Dell and HP from 14 February to 28 October 2008, and by taking into account, in recital 553 of that decision, relating to the calculation of the amount of the fine, the later date of the appellant’s first contacts with regard to HP.
89 That reasoning is not vitiated by an inadequate statement of reasons or by an error of law as regards the applicable legal test.
90 According to settled case-law, the fact that an undertaking did not take part in all aspects of an anticompetitive arrangement or that it played only a minor role in the aspects in which it did participate is not material for the purposes of establishing the existence of an infringement on its part, given that those factors need to be taken into consideration only when the gravity of the infringement is assessed and only if and when it comes to determining the fine (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 54 and the case-law cited).
91 In the present case, the Commission followed a line of reasoning that is consistent with the requirements stemming from that case-law. After finding, in recital 517 of the decision at issue, that the appellant had participated in a single and continuous infringement from 14 February to 28 October 2008, it examined, in Section 8 of that decision, what remedies should be adopted in respect of the undertakings which had participated in that infringement. As part of that assessment, the Commission set out, for the purposes of calculating the fine, the duration of the participation of the undertakings concerned in each of the constituent elements of that infringement, namely the part of that infringement relating to sales made to Dell (‘the Dell part of the infringement’) and the part of that infringement relating to sales made to HP (‘the HP part of the infringement’). Thus, the table in recital 553 of that decision merely provides guidance not for the purposes of finding the single and continuous infringement at issue, but of calculating the fine. There is therefore no contradiction between recital 553 and Article 1(h) of the decision at issue, which, for its part, does not relate to the calculation of the fine, but to the finding of that infringement.
92 Accordingly, in the light of the matters set out in paragraphs 87 and 88 of the present judgment, the General Court did not incorrectly state the reasons for the judgment under appeal or err in law in rejecting the second plea in the appellant’s action for annulment.
93 Accordingly, the third ground of appeal must be rejected as unfounded.
94 By its fourth ground of appeal, the appellant claims that the General Court made several errors of law as regards its assessment of the appellant’s liability for the Dell part of the infringement. This ground of appeal is divided into two parts.
95 The first part of the fourth ground of appeal relates, in essence, to the appellant’s alleged awareness of the single and continuous infringement at issue. According to the appellant, the General Court’s conclusion that the Commission had rightly considered that the appellant was aware or ought to have been aware of the Dell part of the infringement is based on a distortion of the evidence.
96 In that regard, according to the appellant, the Commission based its finding on two internal Sony Optiarc emails of 14 February and 28 October 2008, a copy of which was received by the appellant. The Commission inferred from this that the appellant had understood or ought to have understood that the information contained in those emails originated from a competitor and evidenced unlawful exchanges between competitors.
97 Before the General Court, the appellant claimed that those emails did not constitute sufficient evidence to demonstrate its awareness of the single and continuous infringement at issue, since it understood that the information contained in those emails came from Dell.
98 The appellant submits that, in the judgment under appeal, the General Court wrongly rejected that argument.
99 As regards the email of 14 February 2008, according to the appellant, the General Court analysed, in paragraphs 157 to 160 of the judgment under appeal, four separate indicia constituting, in its view, a body of evidence sufficient to demonstrate that the appellant must have understood that the information contained in that email came not from Dell, but from a competitor. Therefore, if the General Court’s reasoning is flawed in respect of one of those indicia, its entire conclusion is flawed.
100 The appellant claims that the General Court distorted one of the items of evidence relied on as a fourth indicium in paragraph 160 of the judgment under appeal. Those items of evidence are two Sony Optiarc emails, one of 30 October 2007 and the other of 13 December 2007. According to the appellant, it is clear that, contrary to what is stated by the General Court, the email of 30 October 2007 was exchanged between two Sony Optiarc employees, not between Sony Optiarc and the appellant. The General Court therefore distorted that item of evidence, which calls into question its finding relating to the email of 14 February 2008.
101 As regards the email of 28 October 2008, according to the appellant, the General Court wrongly held, in paragraphs 202 to 205 of the judgment under appeal, that it could be regarded as constituting evidence of an anticompetitive contact relating to prices. The General Court based that conclusion on a number of indicia.
102 The appellant submits that the General Court distorted the clear sense of the evidence used as indicia. Not only is there nothing to be inferred from the email of 14 February 2008 to demonstrate the nature of the anticompetitive contact of 28 October 2008, but it is also impossible to deduce from the evidence relating to the HP part of the infringement any finding in respect of the Dell part of the infringement. Consequently, according to the appellant, the General Court erred in law in concluding that the evidence was sufficient to demonstrate the anticompetitive nature of that contact.
103 The Commission contends that the first part of the fourth ground of appeal should be rejected as ineffective and unfounded.
104 By the first part of its fourth ground of appeal, the appellant claims that the General Court distorted the evidence relating to its awareness of the Dell part of the infringement and failed to state reasons.
105 In that regard, it should be recalled that there is distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. It is for the appellant to indicate precisely the evidence which has been distorted and show the errors of appraisal which have allegedly been made (judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 103 and the case-law cited).
106 In the present case, as regards, first, the internal Sony Optiarc email of 14 February 2008, in which the appellant was copied, the appellant maintains that the General Court based its conclusion that that email was sufficient to demonstrate that the appellant must have understood that there was an infringement on the four indicia set out in paragraphs 157 to 160 of the judgment under appeal. The appellant submits that those indicia are cumulative, so that if one of them is missing, that conclusion cannot be upheld.
107 Irrespective of whether the General Court actually distorted one of those items of evidence, it must be held that, contrary to what the appellant claims, it is clear from the judgment under appeal that those indicia are not to be understood as cumulative conditions to which the General Court’s conclusion is subject, but as autonomous but consistent items of evidence tending to show that the appellant must have understood that the email of 14 February 2008 referred to exchanges of information between competitors.
108 The General Court first analysed, in paragraphs 157 and 158 of the judgment under appeal, the content of that email. It concluded therefrom that the very words used in that email suggested that Sony Optiarc had had direct conversations with Toshiba Samsung Storage Technology (TSST) and PLDS and, moreover, that the content of the information attributed to those companies in that email was such that the appellant must have understood that it would have been provided by those companies only to another competitor, and not to Dell.
109 Next, in paragraph 159 of the judgment under appeal, the General Court deduced from the finding that Sony Optiarc was normally careful to specify when information came from Dell that the absence of such specification was, in the present case, significant.
110 Lastly, in paragraph 160 of the judgment under appeal, the General Court referred to two other Sony Optiarc emails, one of 30 October 2007 and the other of 13 December 2007, further deducing therefrom that the appellant must have been able to understand that the internal Sony Optiarc email of 14 February 2008 referred to contacts with competitors.
111 It follows from that analysis by the General Court that it clearly presented those four indicia not as four cumulative elements necessary for the purposes of concluding that the appellant must have understood that there was an infringement, but simply as independent indicia all leading to the same conclusion.
112 It follows that the complaint of distortion relating to the emails of 30 October and 13 December 2007 cannot, in itself, call into question the General Court’s conclusion set out in paragraph 161 of the judgment under appeal, with the result that that complaint must be rejected as ineffective.
113 As regards, second, the internal email of 28 October 2008, the appellant argued before the General Court that that email could be understood as referring to information from Dell and not from competitors. The General Court rejected that argument.
114 Challenging that rejection, the appellant calls into question, first, the probative nature of the email of 28 October 2008 with the same arguments put forward with regard to the email of 14 February 2008.
115 However, for the same reasons as those set out in paragraphs 106 to 111 above, that argument cannot succeed.
116 Next, the appellant claims the General Court failed to explain, in paragraph 204 of the judgment under appeal, why knowledge of or participation in the HP part of the single and continuous infringement was a relevant factor tending to show that the appellant must have understood that the email of 28 October 2008 revealed information provided by competitors.
117 It should however be pointed out that, by that argument, the appellant is, in reality, seeking to obtain a fresh assessment of the probative value of that evidence, which, according to the settled case-law of the Court, falls outside the jurisdiction of the Court, save where that evidence has been distorted (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 153 and the case-law cited), which the appellant has not demonstrated. In those circumstances, it must be held that that argument is inadmissible.
118 The first part of the fourth ground of appeal must therefore be rejected as in part ineffective and in part inadmissible.
119 By the second part of its fourth ground of appeal, the appellant criticises the General Court for holding, in paragraphs 148 to 207 of the judgment under appeal, that the Commission had demonstrated that the appellant had intended, through its own conduct, to contribute to the common objectives pursued by all the participants in the infringement at issue. According to the appellant, the General Court did not respond to the arguments the appellant put forward before it in that regard.
120 The appellant submits that it is apparent from the case-law that the Commission had to prove its participation in the single and continuous infringement at issue by demonstrating that it intended, through its own conduct, to contribute to the objectives pursued by all the participants in that infringement. According to the appellant, it would have been open to the Commission to demonstrate passive participation if the appellant had participated in anticompetitive discussions and had not publicly distanced itself from those discussions.
121 The appellant submits that, in recital 219 of the decision at issue, the Commission argued that the appellant’s contribution, through its own conduct, to such objectives was shown by the fact that it had not objected to being copied in Sony Optiarc emails. In so doing, the Commission merely found that the appellant did not publicly distance itself when it received certain internal Sony Optiarc emails in order to conclude that the appellant had participated in the alleged infringement. As regards the Dell part of the infringement, the appellant submits that it did not participate in any direct discussions and only received indirect information from its customer, Sony Optiarc, which informed it of its exchanges with its competitors. The appellant was therefore, it maintains, not in a position to raise any objections to those exchanges. It could neither prevent those exchanges nor give competitors the impression that it subscribed to their agreement or concerted practice. According to the appellant, it follows that the Commission has not established that the appellant began to participate in the alleged infringement, tacitly or otherwise, on 14 February 2008 or on 28 October 2008.
122 The Commission contends that the second part of the fourth ground of appeal is unfounded.
123 By the second part of its fourth ground of appeal, the appellant criticises the General Court for holding that the Commission had rightly considered, in the decision at issue, that the appellant’s contribution, through its own conduct, to the infringement at issue was established by the fact that it had not publicly distanced itself from the unlawful conduct, whereas its participation consisted solely in being copied in internal Sony Optiarc emails referring to unlawful exchanges of information between competitors.
124 In that regard, it should be borne in mind that, according to settled case-law, in order to establish that an undertaking has participated in a single and continuous infringement, the Commission must prove that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the substantive 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 (see, to that effect, judgment of 24 September 2020, Prysmian and Prysmian Cavi e Sistemi v Commission, C‑601/18 P, EU:C:2020:751, paragraph 130 and the case-law cited).
125 From that perspective, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from the content of that initiative or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is capable of rendering the undertaking concerned liable (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 73).
126 In addition, it must be recalled that the fact that an undertaking did not take part in all aspects of an anticompetitive arrangement or that it played only a minor role in the aspects in which it did participate is not material for the purposes of establishing the existence of an infringement on its part, given that those factors need to be taken into consideration only when the gravity of the infringement is assessed and only if and when it comes to determining the fine (judgments 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 86, and of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 54).
127 In the present case, the General Court found, in paragraph 217 of the judgment under appeal, that the appellant had knowingly received information regarding participants in the cartel, namely TSST, PLDS, Hitachi-LG Data Storage Inc., and Hitachi-LG Data Storage Korea Inc., and that it had maintained bilateral contacts with a competitor in relation to a procurement event organised by HP. It then held, in paragraphs 218 and 219 of that judgment, that, on the basis, inter alia, of those items of evidence, taken as a whole, the Commission had been fully entitled, first, to find that the appellant had shared information with the other ODD suppliers about the strategy as to pricing or ranking in forthcoming procurement events in order to coordinate their conduct, and, second, correctly to conclude therefrom that the appellant had intentionally contributed to the single anticompetitive and economic aim of the infringement at issue.
128 Therefore, in the light of the case-law referred to in paragraphs 124 and 125 above, the General Court correctly held that the Commission was entitled to rely on emails in which the appellant was copied in order to characterise its contribution to that infringement, since the characterisation of the appellant’s passive participation in that infringement is not subject to the condition that it participated in direct discussions with its competitors.
129 In any event, it must be noted that the appellant’s complaint is based on an artificial distinction between the Dell part of the infringement and the HP part of the infringement.
130 In the light of the case-law referred to in the preceding paragraphs, the General Court did not have to ascertain whether the Commission had demonstrated that the appellant was aware or ought to have been aware of the existence of an infringement and that it had contributed or intended to contribute to it both for the Dell part of the infringement and for the HP part of the infringement. The General Court was therefore correct to hold, in paragraph 219 of the judgment under appeal, first, that the appellant had intentionally contributed to the single anticompetitive and economic aim to distort the normal operation of competition for ODD procurement events organised by Dell and HP and, second, that the appellant was aware of the other parties’ involvement in the ODD cartel throughout the period of its participation.
131 It follows that the second part of the fourth ground of appeal is unfounded. Accordingly, that ground of appeal must be rejected in its entirety as in part inadmissible, in part ineffective and in part unfounded.
132 By its fifth ground of appeal, the appellant submits that the General Court wrongly rejected its argument that the amount of the fine imposed on it was manifestly disproportionate.
133 According to the appellant, the General Court, in breach of the rules relating to the exercise of its unlimited jurisdiction, erred in law or failed to give sufficient reasons for its decision in holding that the Commission had not made any error of law in calculating that amount.
134 Thus, the appellant claims that the General Court erred in finding, in paragraph 236 of the judgment under appeal, that its anticompetitive contacts were capable of affecting its pricing policy. In that regard, the General Court wrongly found, first, that it had actively participated in discussions with other competing suppliers and, second, that the exchanges of information on prices and volumes, rankings of suppliers or supply constraints had affected its pricing policy.
135 The appellant claims that those findings of the General Court are incorrect.
136 First, according to the appellant, when reviewing the calculation of the fine, the General Court should have taken account of the fact that, as is apparent from the evidence submitted to the Court of Justice in connection with the fourth ground of appeal, it could not be concluded that the appellant had participated in the Dell part of the infringement.
137 Second, the appellant submits that the General Court failed to demonstrate that the exchanges of information referred to in paragraph 134 above had any effect on the appellant’s prices. In that regard, it confined itself, in paragraph 236 of the judgment under appeal, to a mere unsubstantiated assertion.
138 The Commission contends that the fifth ground of appeal is in part inadmissible and in part ineffective or unfounded.
139 By its fifth ground of appeal, the appellant claims that the General Court erred in law and failed to give sufficient reasons for its decision in rejecting the fifth plea in its action for annulment.
140 As regards the appellant’s claim that the General Court infringed the rules relating to the exercise of its unlimited jurisdiction, which it is appropriate to examine in the first place, it is sufficient to note that the General Court rejected that fifth plea in its entirety without it being necessary to rule on the appellant’s alternative claim that it should exercise that jurisdiction. Moreover, since that claim is unsubstantiated, it does not satisfy the requirements stemming from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice and must, consequently, be dismissed as inadmissible.
141 As regards, in the second place, the alleged failure to state reasons vitiating paragraph 236 of the judgment under appeal, it must be observed, first, that the mere fact that the appellant admitted its involvement, as regards HP, in direct exchanges with competitors substantiates the General Court’s assertion that it actively participated in discussions with other competing suppliers, without it being necessary to demonstrate that it participated in all the exchanges in question.
142 Second, the General Court in no way failed to state reasons on the ground that it found that the information on prices and volumes, rankings of suppliers or supply constraints affected the appellant’s pricing policy. The Court has already held that there is a presumption of a causal connection between a concertation and the market conduct of the undertakings participating in the practice, according to which those undertakings, where they remain active on that market, take account of the information exchanged with their competitors in determining their conduct on that market (judgment of 21 January 2016, Eturas and Others, C‑74/14, EU:C:2016:42, paragraph 33 and the case-law cited). The General Court’s reasoning is therefore consistent with the case-law of the Court.
143 It follows that the fifth ground of appeal is in part inadmissible and in part unfounded.
144 As is apparent from the analysis, in paragraphs 50 to 72 above, of the appellant’s first ground of appeal, the General Court erred in law.
145 In those circumstances, the judgment under appeal must be set aside.
146 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice is to quash the decision of the General Court if the appeal is well founded. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
147 In the present case, it is appropriate to give final judgment in the matter, as the state of the proceedings so permits.
148 As stated in paragraph 31 above, the appellant raised five pleas in support of its action before the General Court.
149 By the first part of the first plea in that action, the appellant claims inter alia that, by stating for the first time in the decision at issue that it had participated in several separate infringements comprising the single and continuous infringement imputed to it, without having alleged such participation during the administrative procedure, the Commission breached its rights of defence.
150 In the light of paragraphs 54 to 72 of the present judgment, it must be held that the Commission breached the appellant’s rights of defence by accusing it, in the decision at issue, of participating in several separate infringements comprising the single and continuous infringement imputed to it, without having clearly set out that accusation in the statement of objections.
151 That said, it must be stated that a procedural irregularity will entail the annulment of a decision in whole or in part only if it is shown that in the absence of such irregularity that decision might have been substantively different (judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo, C‑56/18 P, EU:C:2020:192, paragraph 80).
152 In the present case, the breach of the appellant’s rights of defence led the Commission to impute to the appellant infringements in respect of which it was unable to defend itself. Had the Commission explicitly stated, during the administrative procedure, the legal characterisation envisaged for each of the forms of conduct of which it intended to accuse the appellant, the appellant might have been able to put forward evidence capable of calling those characterisations into question. It follows that in the absence of that breach the decision at issue might have been substantively different.
153 Accordingly, the first plea raised by the appellant in support of its action must be upheld in so far as it alleges that the Commission breached the appellant’s rights of defence as regards its participation in the separate infringements.
154 Having regard to the foregoing, and in the light of what has been stated in paragraphs 51 to 53 of this judgment, Article 1(h) of the decision at issue must be annulled in so far as it finds that the appellant infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in several separate infringements.
155 By the second plea in its action before the General Court, the appellant claims that the Commission made a manifest error of law and breached its obligation to state reasons by reason of a discrepancy between the grounds and the operative part of the decision at issue.
156 In the present case, it must be held that, for the reasons set out in paragraphs 86 to 93 above, there is no contradiction between the table in recital 553 of the decision at issue and Article 1(h) of that decision. The Commission thus did not make an error of law or breach its obligation to state reasons in that regard.
157 The appellant’s second plea before the General Court must therefore be rejected.
158 By the third plea in its action before the General Court, the appellant submits that the Commission failed to prove the appellant’s participation in a single and continuous infringement.
159 In the present case, the Court adopts the reasoning set out by the General Court in paragraphs 128 to 147, 150 to 162, 166 to 174, 177 to 187, 190 to 199, 202 to 207 and 210 to 222 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs, the third plea must be rejected.
160 By the fourth plea in its action before the General Court, the appellant maintains that the Commission lacks jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement.
161 In the present case, the Court adopts the reasoning set out by the General Court in paragraphs 43 to 56 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs, the fourth plea must be rejected.
162 By the fifth plea in its action before the General Court, the appellant submits, first, that the Commission made errors of fact and of law in calculating the amount of the fine and, second, that it breached its obligation to state reasons.
163 In the present case, in the light of paragraphs 139 to 143 above, the Court adopts the reasoning set out by the General Court in paragraphs 226 to 239, 243 to 251, 255 to 258 and 262 to 267 of the judgment under appeal. Accordingly, for the reasons set out in those paragraphs of the judgment under appeal, the appellant’s fifth plea before the General Court must be rejected.
164 The Court must also rule, in accordance with the unlimited jurisdiction conferred on it by Article 261 TFEU and Article 31 of Regulation No 1/2003, on the amount of the fine to be imposed on the appellant (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 87 and the case-law cited).
165 In this regard, it must be noted that the Court, when itself giving final judgment in the matter, in accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, is empowered, in the exercise of its unlimited jurisdiction, to substitute its own appraisal for that of the Commission and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 88 and the case-law cited).
166 In order to determine the amount of the fine imposed, it is for the Court to assess for itself the circumstances of the case and the nature of the infringement in question (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 89 and the case-law cited).
167 That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without the Court being bound by the indicative rules defined by the Commission in its Guidelines on the method of setting fines, even where the latter may give guidance to the EU Courts when they exercise their unlimited jurisdiction (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 90 and the case-law cited).
168 In the present case, the Court considers that none of the elements relied on by the appellant in the present case, nor any ground of public policy, justifies it making use of that jurisdiction to reduce the amount of the fine referred to in Article 2(h) of the decision at issue.
169 In the light of all the foregoing considerations, Article 1(h) of the decision at issue must be annulled in so far as it finds that the appellant infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in several separate infringements, and the action must be dismissed as to the remainder.
170 Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs.
171 Under Article 138(1) of those rules, applicable to the procedure on appeal pursuant to 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. Article 138(3) of those rules states that where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
172 In the present case, the appellant has applied for the Commission to be ordered to pay all the costs and the Commission has been unsuccessful in its submissions at the appeal stage and, in part, in its submissions at first instance. The appellant was partially unsuccessful in its claims at first instance. That being so, the Court considers, having regard to the circumstances of the present case, that the Commission must be ordered to bear its own costs relating to both the proceedings at first instance and the appeal proceedings and to pay all the costs incurred by the appellant in the present appeal and half of the costs which it incurred at first instance. The appellant must bear half of its own costs relating to the proceedings at first instance.