1 By its appeal, Nippon Chemi-Con Corporation (‘NCC’) seeks to have set aside the judgment of the General Court of the European Union of 29 September 2021, Nippon Chemi-Con Corporation v Commission (T‑363/18, EU:T:2021:638; ‘the judgment under appeal’), by which the General Court dismissed NCC’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 NCC, or, in the alternative, annulment of the fine imposed on it by that decision or a reduction in the amount of that fine. Legal context
2 Article 37 of the Statute of the Court of Justice of the European Union provides: ‘Judgments shall be signed by the President and the Registrar. They shall be read in open court.’
3 Article 24 of the Rules of Procedure of the General Court, entitled ‘Quorum of the Chambers sitting with three 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.’
4 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.’
5 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.’
6 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.’
7 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.’
8 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.’
9 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.’
10 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) provide: ‘(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
11 The background to the dispute is set out in paragraphs 1 to 36 of the judgment under appeal and, for the purposes of the present proceedings, can be summarised as follows.
12 NCC is a company established in Japan which manufactures and sells aluminium electrolytic capacitors. It also manufactured tantalum electrolytic capacitors until March 2005 and sold them until January 2011, with direct sales invoiced in the EEA until February 2005.
13 The infringement at issue concerns aluminium electrolytic capacitors and tantalum electrolytic capacitors.
14 The price of those electrolytic capacitors is an important parameter of competition.
15 On 4 October 2013, Panasonic and its subsidiaries submitted an application for a marker to the European Commission under points 14 and 15 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases concerning an alleged infringement in the electrolytic capacitors sector.
16 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, NCC, Rubycon, Sanyo (designating Sanyo and Panasonic together) and Nichicon Corporation.
17 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.
18 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.
19 Initially, between 1998 and 2003, the multilateral meetings were held under the name ‘Electrolytic Capacitor(s) Circle’ or ‘Electrolytic Capacitor Conference’ (‘the ECC meetings’). 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.
20 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, in essence, 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.
21 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.
22 The Commission concluded that that conduct had a single anticompetitive aim.
23 It held NCC liable on account of its direct and continuous participation in the cartel from 26 June 1998 to 23 April 2012 and, on that basis, it imposed on it a fine of EUR 97 921 000.
24 In order to calculate the amount of that fine, the Commission applied the methodology set out in the 2006 Guidelines.
25 In the first place, in order to determine the basic amount of the fine, it took into account the value of NCC’s sales during the last full business year of participation in the infringement, in accordance with point 13 of those guidelines.
26 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.
27 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.
28 As regards NCC, the Commission first of all considered that it was necessary to take into account, as the reference period, the last full business year of participation in the infringement in respect of the value of sales of aluminium electrolytic capacitors, namely 2011-2012, on the one hand, and the last full business year during which the appellant sold tantalum electrolytic capacitors, namely 2003-2004, given that it had stopped selling them before the end of its participation in the infringement, on the other.
29 Next, the Commission found that NCC, through Europe Chemi-Con and United Chemi-Con, had invoiced direct sales of aluminium electrolytic capacitors in the EEA throughout the period of its participation in the infringement and direct sales of tantalum electrolytic capacitors in the EEA until 1 February 2005.
30 Lastly, the Commission applied multipliers of 13.82 (corresponding to the period from 26 June 1998 to 23 April 2012) in respect of aluminium electrolytic capacitors and 5.26 (corresponding to the period from 29 October 1999 to 1 February 2005) in respect of tantalum electrolytic capacitors.
31 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.
32 The Commission 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.
33 Accordingly, the Commission set the basic amount of the fine at EUR 205 649 000.
34 In the second place, the Commission did not find that there were any aggravating or mitigating circumstances in respect of NCC.
35 In the third place, the Commission applied the limit of 10% of the applicant’s total turnover in the preceding business year, as laid down in Article 23(2) of Regulation No 1/2003.
36 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: … (g) [NCC] from 26 June 1998 until 23 April 2012; … Article 2 For the infringement referred to in Article 1, the following fines are imposed: … (j) [NCC]: EUR 97 921 000; …’ The procedure before the General Court and the judgment under appeal
37 By application lodged at the Registry of the General Court on 5 June 2018, NCC brought an action seeking, principally, annulment of the decision at issue in so far as it concerned it and, in the alternative, annulment of the fine imposed on it or a reduction in its amount.
38 In support of its action, NCC put forward six pleas in law.
39 By its first five pleas, it disputed the Commission’s conclusion that there was a single and continuous infringement of Article 101 TFEU in the electrolytic capacitors sector covering the whole of the EEA over a period of almost 14 years. The first plea alleged infringement of the right to be heard, Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the rights of the defence, and the principle of the inalterability of the measure. The second plea alleged a lack of evidence of the infringement, material errors of fact, and expiry of the relevant limitation period. The third plea alleged that there was not a single and continuous infringement. The fourth plea alleged that there was not an infringement by object. The fifth plea alleged that the Commission lacked territorial jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement in the present case.
40 By its sixth plea, NCC disputed the fine imposed on it, seeking annulment of the fine or a reduction in the amount thereof. That plea alleged errors in the calculation of the amount of the fine and infringement of the 2006 Guidelines, as well as infringement of the principles of equal treatment and proportionality.
41 In the judgment under appeal, the General Court dismissed the action in its entirety. Forms of order sought
42 By its appeal, NCC 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 NCC; - in the alternative, set aside the judgment under appeal in so far as it upholds the fine imposed on NCC, and annul Article 2(j) of the decision at issue; - in the subsequent alternative, reduce the amount of the fine imposed on NCC in the light of the grounds of appeal upheld; and - order the Commission to pay the costs of the proceedings at first instance and on appeal.
43 The Commission contends that the Court should dismiss the appeal and order NCC to pay all the costs of the present proceedings. The appeal
44 NCC puts forward six 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
45 NCC submits that the judgment under appeal does not bear the signature of the three judges who took part in the deliberations, in breach of Article 118(2) of the Rules of Procedure of the General Court and Article 37 of the Statute of the Court of Justice of the European Union. On 30 September 2021, the Registrar sent a letter to NCC in order to rectify the lack of signatures and justified it by reference to a health crisis.
46 First of all, that procedure is not provided for or authorised by the Rules of Procedure of the General Court. In particular, the Registrar cannot be delegated to rectify the absence of the judges’ signatures on a judgment.
47 Next, that infringement of the Rules of Procedure of the General Court adversely affects NCC’s interests. More specifically, the obligation for the judges to affix their original signatures to a judgment certifies that the requirement for a quorum is met. Since all the signatures are absent in the present case, there is no proof of the legally required quorum. Consequently, the judgment under appeal cannot be regarded as valid, in accordance with Article 24(1) of the Rules of Procedure of the General Court and Article 37 of the Statute of the Court of Justice of the European Union.
48 Lastly, in the alternative, NCC, relying on the judgments of 15 June 1994, Commission v BASF and Others (C‑137/92 P, EU:C:1994:247, paragraph 75), and of 6 April 2000, Commission v ICI (C‑286/95 P, EU:C:2000:188, paragraphs 41 to 53), submits that the absence of the Judges’ signatures on the judgment under appeal constitutes an infringement of an essential procedural requirement within the meaning of Article 263 TFEU, namely the authentication of that judgment by means of the signature. The authentication of acts is intended to ensure legal certainty. The failure to authenticate amounts to an infringement of an essential procedural requirement, independently of any other procedural or substantive defect, and without it being necessary to prove that that failure caused any harm to one of the parties to the dispute. Checking compliance with the requirement of authentication is preliminary to any other review, and an infringement of that requirement results in annulment of the act vitiated by that defect.
49 The Commission disputes that line of argument. Findings of the Court
50 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 NCC a copy of the judgment under appeal which had not been signed by the Judges who took part in the deliberations.
51 In ruling on that ground of appeal, it should be noted, 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 (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).
52 In the second place, since NCC relies on the letter from the Registrar of the General Court accompanying the copy of the judgment under appeal which was 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 copy of that judgment has been served, affixed to 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).
53 In the third place, it is in the performance of the duties assigned to him or her 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, and 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.
54 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.
55 Moreover, the case-law on which the appeal is based is irrelevant, since not only does it not concern the Rules of Procedure of the General Court, it refers to situations in which the measure in question could not have been authenticated other than with the signature of the authority which adopted it.
56 It follows that the first ground of appeal is unfounded. The second ground of appeal, alleging infringement of Article 101 TFEU in the light of proof of the infringement
57 The second ground of appeal consists of three parts. The first part of the second ground of appeal, concerning proof of the link between the ECC and the EEA meetings - Arguments of the parties
58 By the first part of the second ground of appeal, NCC submits that the General Court erred in establishing a link between all 20 ECC and EEA meetings, relying on only 6 of those ECC meetings, the minutes of which, according to paragraphs 266 and 267 of the judgment under appeal, made explicit references to European customers and to overseas markets.
59 First, less than one third of the meetings cannot prove a link to the EEA for all 20 ECC meetings.
60 Secondly, such references do not exist in three of those six meetings, or at least the effects of those three meetings were very insignificant for the EEA.
61 First, the reference to ‘T Company’ in the minutes of the meeting of 26 June 1998 does not support the Commission’s assumption, because T was not a French company and the General Court could not rely on Rubycon’s statement, without stating why T referred to a French company.
62 Secondly, the discussions at the ECC meeting of 18 September 2002 concerned four specific types of ecological products, which represented an extremely small sub-series of aluminium electrolytic capacitors, with the result that any alleged anticompetitive conduct would have had only a very negligible effect in the EEA.
63 Thirdly, the minutes of the meeting of 15 May 2003 do not prove that the term ‘overseas’ covered the EEA, since the participants in that meeting discussed the consequences of the SARS pandemic, which occurred in China during the period between 2002 and 2003, focusing particularly on the Chinese and Taiwanese markets.
64 The Commission disputes that line of argument. - Findings of the Court
65 By the first part of the second ground of appeal, NCC submits that, by relying on the minutes of only six ECC meetings containing explicit references to European customers and to overseas markets, the General Court erred in finding that the 20 ECC meetings, taken together, had a link with the EEA.
66 That argument is based on a misreading of the judgment under appeal.
67 First of all, the General Court found, in paragraph 263 of the judgment under appeal, that the division of the 20 meetings in question into two subgroups of thematic meetings, entitled ‘Domestic’ and ‘Foreign Trade’ respectively, was irrelevant for the purpose of establishing whether or not those meetings concerned the EEA.
68 Next, as the Commission submits, without being contradicted by NCC, in paragraphs 266 and 267 of that judgment, the General Court referred only to the meetings in respect of which NCC had disputed the existence of a link with the EEA, without seeking to list all the meetings having such a link, in order to reject NCC’s argument, recalled in paragraph 265 of that judgment, that certain ECC meetings had no link with the EEA.
69 Lastly, NCC does not challenge paragraph 270 of the judgment under appeal, according to which ‘the participants in the meetings mentioned above had not confined their discussions to a particular geographical area’ and that, therefore, since the infringement at issue had a global reach, the Commission was entitled to take the view that those meetings included the EEA.
70 In those circumstances, NCC is wrong to claim that the General Court relied solely on the analysis of the meetings referred to in paragraphs 266 and 267 of the judgment under appeal in order to establish the geographic scope of the ECC meetings in question.
71 Furthermore, in so far as NCC disputes that three of the six meetings referred to in paragraphs 266 and 267 of the judgment under appeal had links with the EEA, it criticises the General Court’s assessment of the facts without alleging distortion. That argument must therefore be rejected.
72 It follows that the first part of the second ground of appeal is unfounded. The second part of the second ground of appeal, concerning the scope of the expression ‘overseas’ - Arguments of the parties
73 By the second part of the second ground of appeal, NCC submits that, by establishing the relevance of six ECC and MK meetings with respect to the EEA, the General Court applied the wrong legal test, distorted the evidence and reversed the burden of proof, thereby infringing the presumption of innocence.
74 First of all, the General Court held, in paragraph 273 of the judgment under appeal, that it was not necessary to carry out an individual assessment of each overseas meeting, provided that the body of evidence, viewed as a whole, was sufficient to establish the infringement. However, the presence of a body of evidence does not enable the General Court to disregard existing evidence or to dispense with any individual assessment of the available evidence. NCC provided such evidence. By failing to examine that evidence, the General Court erred in law and infringed NCC’s rights of defence.
75 Next, as a result of that error, the General Court distorted the clear sense of the evidence.
76 First, it failed to have regard to the evidence relied on by NCC to show that the meetings in question mainly concerned the Asian markets and, therefore, the General Court was not entitled to conclude, in paragraph 275 of the judgment under appeal, that the expression ‘overseas’ also covered the EEA and that the alleged cartel ‘had a global reach’, continuously and throughout the 14 years of its existence.
77 Secondly, and in any event, the General Court was not entitled to infer, in paragraph 273 of the judgment under appeal, from the fact that the expression ‘overseas’ included, ‘at least in certain cases’, the EEA, that the alleged cartel - considered as a whole and for its total duration - had a direct and substantial impact on the EEA.
78 Thirdly, the General Court failed to assess one ECC meeting, one MK meeting and four ATC meetings.
79 Lastly, the General Court confirmed the Commission’s assessment that the expression ‘overseas’ did not refer to a particular geographical area and therefore necessarily had to cover the EEA. In so doing, the General Court required NCC to prove that the meetings in question were entirely irrelevant in respect of the EEA, whereas it was for the Commission to prove the contrary. Although the General Court referred, in paragraph 274 of the judgment under appeal, to three meetings at which the expression ‘overseas’ was used in relation to the EEA, it did not provide any explanation or put forward any hypothesis as to why that necessarily meant that that expression had always to include the EEA, at least in the vast majority of contacts.
80 The General Court therefore disregarded the case-law on the presumption of innocence, according to which the benefit of the doubt must be given to the undertaking to which the decision finding an infringement is addressed (judgment of 14 May 2020, NKT Verwaltung and NKT v Commission , C‑607/18 P, not published, EU:C:2020:385, paragraph 237). The General Court also relied on an unsubstantiated presumption, while leaving NCC the burden of rebutting that presumption, disregarding the prescribed evidential requirements (judgment of 28 November 2019, ABB v Commission , C‑593/18 P, not published, EU:C:2019:1027, paragraphs 43 and 44).
81 The Commission disputes that line of argument. - Findings of the Court
82 By the second part of the second ground of appeal, NCC submits that the General Court erred, in paragraphs 273 to 275 of the judgment under appeal, in establishing the relevance of six ECC and MK meetings in respect of the EEA because those meetings concerned overseas areas.
83 It should be noted in that regard that NCC’s line of argument, in particular as regards the meaning of the expression ‘overseas’, rests entirely on the premiss that the General Court failed to take into consideration certain items of evidence.
84 However, in paragraph 274 of the judgment under appeal, the General Court assessed the evidence in order to reach the conclusion that, in essence, the expression ‘overseas’ involved markets outside Japan and therefore also the EEA, irrespective of the references made to the EEA in a particular meeting.
85 The General Court thus found, in essence, that, first, the expression ‘overseas’ did not refer to any specific geographical area and was used generically, with the result that there was nothing to exclude the EEA. Secondly, it was not apparent from the file that the cartel participants excluded the EEA from discussions concerning the situation on the markets outside Japan. Thirdly, NCC had not disputed that the cartel participants, who used that expression during the various contacts, were mostly present on the EEA market at the time of those contacts, including NCC itself. Fourthly, in many ATC and MK meetings, the expression ‘overseas’ included the EEA.
86 However, it must be stated that NCC does not rely on any error made by the General Court in those grounds or explain the reasons why the taking into consideration of the factors which the General Court allegedly failed to consider implied the existence of an error in those grounds.
87 In the latter regard, it is sufficient to mention that, in its appeal, NCC does indeed refer to several items of evidence. However, it merely claims, in essence, that those items of evidence are capable of demonstrating that the cartel was highly concentrated on Asia and concerned the EEA only to a lesser extent.
88 Thus, since NCC did not cast doubt on the General Court’s interpretation of the expression ‘overseas’ in paragraph 274 of the judgment under appeal, NCC cannot claim that the General Court failed to have regard to the standard of proof by requiring it to rebut an unsubstantiated presumption, namely that that expression covered, in the present case, the EEA.
89 Furthermore, although NCC appears to argue that, contrary to what the General Court found in paragraph 295 of the judgment under appeal, the vast majority of the 113 contacts in question had no connection with the EEA, it did not, however, in any way substantiate that claim.
90 In those circumstances, the second part of the second ground of appeal is unfounded. The third part of the second ground of appeal, concerning the link between two meetings and the EEA - Arguments of the parties
91 By the third part of the second ground of appeal, NCC criticises the General Court for having held, in paragraphs 284 and 295 of the judgment under appeal, that it was not necessary to evaluate the ECC meeting of 7 November 2003 and the MK meeting of 17 September 2009, because of the body of evidence available. First, NCC gave detailed reasons why those two meetings were irrelevant in respect of the EEA. Thus, the General Court could not have used the body of evidence doctrine where there was evidence.
92 Secondly, NCC challenged the Commission’s interpretation of the ATC meetings of 17 December 2003, 13 May 2004, 11 November 2004 and 16 February 2005, which the judgment under appeal does not reflect. Since those meetings were included in the single and continuous infringement and in the infringement by object, they were of such interest and relevance that the General Court was, in NCC’s view, required to examine them.
93 The Commission disputes that line of argument. - Findings of the Court
94 By the third part of the second ground of appeal, NCC submits that the General Court failed, first, in paragraphs 284 and 295 of the judgment under appeal, to rule on the ECC meeting of 7 November 2003 and the MK meeting of 17 September 2009 and, secondly, to respond to NCC’s complaints regarding the Commission’s interpretation of the ATC meetings of 17 December 2003, 13 May and 11 November 2004 and 16 February 2005.
95 It should be noted that, as the Commission points out, the General Court set out, in particular in paragraphs 283, 284 and 295 of the judgment under appeal, the latter paragraph referring also to paragraphs 81 and 271 of that judgment, the reasons why it considered that the evidence gathered by the Commission was sufficient to conclude that the contacts disputed by NCC in the context of its second plea at first instance had, as a whole, immediate and substantial effects in the internal market of the European Union and that that conclusion could not be called into question by the mere fact that only some of those contacts had not, taken in isolation, had such effects.
96 Since NCC does not call into question that premiss of the General Court’s reasoning, its argument that some of those contacts, taken in isolation, had no effects in the EEA is ineffective.
97 The third part of the second ground of appeal must therefore be rejected.
98 In the light of the foregoing, the third ground of appeal is unfounded. The third ground of appeal, alleging infringement of Article 101 TFEU in the light of the single and continuous nature of the infringement
99 The third ground of appeal is composed of two parts. The first part of the third ground of appeal, concerning the existence of an overall plan - Arguments of the parties
100 By the first part of the third ground of appeal, NCC submits that the General Court applied the wrong legal test in order to determine whether there was an overall plan, allowing a finding of a single and continuous infringement. The General Court, in paragraph 320 of the judgment under appeal, considered that, to that end, it was sufficient for the Commission to show that the aim of all the actions was ‘the coordination of pricing behaviour’. Thus, the General Court permitted the Commission to define that plan in a vague manner.
101 First, the Commission should have shown that all the individual actions formed part of an overall plan, because their identical object distorts competition in the internal market (judgments of 6 December 2012, Commission v V erhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 41, and of 26 January 2017, Villeroy & Boch v Commission , C‑644/13 P, EU:C:2017:59, paragraph 47). Such an overall plan should be sufficiently precise.
102 Where there is a single and continuous infringement, the Commission is not required to prove the unlawfulness of each instance of individual conduct. The doctrine of single and continuous infringement thus lightens the Commission’s burden of proof and duty to give proper reasoning. However, an excessively broad interpretation of the overall plan would amount in practice to preventing an undertaking from defending itself against the finding of an infringement. That is the situation in the present case. The General Court, in paragraph 379 of the judgment under appeal, rejected NCC’s complaint that certain meetings referred to in paragraph 91 of the present judgment had different priorities, simply because they all concerned ‘price competition’ and ‘future conduct with regard to the sale of electrolytic capacitors’.
103 Secondly, in paragraph 323 of the judgment under appeal, the General Court reversed the burden of proof by asking NCC to put forward any ‘concrete evidence to suggest that certain forms of conduct had characteristics indicating that they did not have an identical anticompetitive object and, therefore, that they did not form part of the same overall plan’.
104 The Commission disputes that line of argument. - Findings of the Court
105 By the first part of the third ground of appeal, NCC submits that, in paragraph 320 of the judgment under appeal, the General Court relied on too vague a concept of ‘overall plan’, confining itself to finding that NCC’s conduct concerned price coordination.
106 It should be noted, in that regard, that it is clear from paragraph 332 of the judgment under appeal that the General Court satisfied itself that the Commission’s definition of the objective of the overall plan was not vague and that it found that the Commission had concluded that it consisted of avoiding price competition and coordinating the future conduct of participants in relation to the sale of aluminium electrolytic capacitors and tantalum electrolytic capacitors, thereby reducing uncertainty on the market.
107 The General Court also stated, both in paragraph 332 and in paragraph 320 of the judgment under appeal, that, in order to reach that conclusion, the Commission had relied, inter alia, on the evidence referred to in paragraphs 314 to 316 of that judgment.
108 It is apparent from those paragraphs of the judgment under appeal, which NCC does not dispute, that the Commission had considered that ‘the various anticompetitive contacts described in Section 4.3.6 of the [decision at issue] formed part of an overall plan with a single anticompetitive aim. The aim pursued by the parties and transpiring from those exchanges was to avoid price competition and to coordinate their future conduct with regard to the sale of electrolytic capacitors, thereby reducing uncertainty on the market … That single anticompetitive aim was pursued through discussions regarding pricing, including future pricing, discussions regarding supply and demand, including future supply and demand (inter alia in relation to production volumes or increases or decreases in shipments) and, in certain cases, regarding the conclusion, implementation and monitoring of price agreements … The Commission found that, although the cartel evolved over time, the aim had not changed, since the 113 anticompetitive contacts described in the [decision at issue] had common characteristics as regards the participants and the nature and material scope of the discussions, which overlapped. Thus, the multilateral meetings, held under different names (ECC meetings from 1998 to 2003, ATC meetings from 2003 to 2005, MK meetings from 2005 to 2012 and CUP meetings from 2006 to 2008) were, at different times, attended by the nine cartel participants and related to both aluminium electrolytic capacitors and tantalum electrolytic capacitors. In parallel, bilateral and trilateral contacts took place as required, covering specific issues. The same individuals, or their successors, as the case may be, were involved in the anticompetitive contacts …’.
109 Therefore, NCC is wrong to submit that the General Court merely verified that the Commission had found that the overall plan pursued by the cartel concerned price coordination and that it relied on that factor alone when determining whether the Commission had proved the existence of that plan.
110 Furthermore, NCC is also wrong to argue that the General Court reversed the burden of proof when, in paragraph 323 of the judgment under appeal, it criticised NCC for failing to put forward any concrete evidence to suggest that certain forms of conduct had characteristics indicating that they did not have an identical anticompetitive object and, therefore, that they did not form part of the same overall plan.
111 The General Court had already reached the conclusion, in paragraph 320 of the judgment under appeal, that the evidence identified by the Commission in the decision at issue and, in particular, the evidence referred to in paragraphs 314 to 317 of that judgment, concerning the common characteristics of the anticompetitive contacts, the ultimate aim of which was the coordination of pricing behaviour, was sufficient to demonstrate that they had an identical object and formed part of an overall plan having a single objective. Those paragraphs were not disputed by NCC.
112 In those circumstances, since the General Court correctly held that the Commission had proved to the requisite legal standard the existence of such an overall plan, it was entitled to hold that it was for NCC to prove that certain conduct fell outside that plan.
113 Moreover, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective. By contrast, the condition relating to a single objective requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market (judgment of 26 January 2017, Villeroy & Boch v Commission , C‑625/13 P, EU:C:2017:52, paragraph 58 and the case-law cited).
114 It follows that the first part of the third ground of appeal is unfounded. The second part of the third ground of appeal, concerning the continuous nature of the infringement - Arguments of the parties
115 By the second part of the third ground of appeal, NCC submits that, even if the first part of the third ground of appeal were not upheld, the facts as found by the General Court do not prove the existence of a continuous infringement.
116 NCC submits in that regard that, in order to establish a single and continuous infringement, the individual actions must continue uninterrupted, so that they can be classified as one infringement. As regards the continuous nature of the infringement, the General Court’s finding must be based on objective and consistent indicia (judgment of 19 December 2013, Siemens and Others v Commission , C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 264), that is to say, that the continuous nature of the infringement must be clearly established.
117 However, the facts on which the General Court relied do not support the finding of a single and continuous infringement, covering the entire period from 26 June 1998 to 23 April 2012, since only certain individual contacts are relevant in respect of the EEA.
118 First, the limited references to the EEA should not suffice to assume the existence of a single and continuous infringement during the period from 22 November 2000 to 29 August 2002. During that period, the Commission established the existence of five ECC meetings, the limited relevance for the EEA market of which does not permit the conclusion that the legal requirements relating to continuity are satisfied.
119 In particular, first of all, as regards the ECC meetings of 22 November 2000 and 19 September 2001, the General Court, in paragraphs 279 and 292 of the judgment under appeal, used generic references to European customers.
120 Next, as regards the ECC meetings of 14 November 2001 and 19 March 2002, the General Court, in paragraphs 272 and 274 of the judgment under appeal, relied on the generic reference to the expression ‘overseas’, without referring to the EEA.
121 Lastly, as regards the ECC meeting of 17 July 2002, the General Court, in paragraphs 272, 274 and 284 of the judgment under appeal, relied on a generic reference to the expression ‘overseas’ and the alleged relevance of the goods, which were discussed at that meeting, to the EEA, without, however, assessing its relevance in a substantial manner.
122 Secondly, some references to the EEA should not be sufficient to assume the existence of a single and continuous infringement during the period from 4 August 2005 to 18 October 2006. During that period, the Commission established the existence of eight contacts and meetings of little relevance in respect of the EEA.
123 In particular, NCC did not participate in the meeting of 16 December 2005 or the contact of 26 January 2006. The General Court is therefore wrong to state that NCC did not dispute the relevance of those meetings to the EEA, whereas it instead excluded them as relevant meetings.
124 As regards the other meetings and contacts, first, the General Court refers, in paragraph 365 of the judgment under appeal, to a European customer and to Germany, referred to in the minutes of the MK meeting of 10 November 2005. However, the wording of those minutes (‘Casio showing strong in Japan, Germany’) does not provide any pricing information.
125 Secondly, the General Court stated, in paragraph 366 of the judgment under appeal, that two customers, Intel and Dell, which owned plants in Europe, were referred to during the trilateral contact in January 2006, without it being clear whether those plants were covered by that trilateral contact, even though a clear reference to Asia was apparent from the evidence and the evidence established links between polymer aluminium electrolytic capacitors in Japan.
126 Thirdly, in paragraph 367 of the judgment under appeal, the General Court referred, in a general manner, to the European car market and to the European markets, referred to in the minutes of the MK meeting of 12 April 2006, although the General Court acknowledged the irrelevance of game consoles for the EEA and the general statements concerning the European markets did not contain sensitive information, which the Commission acknowledged.
127 Fourthly, the General Court, in paragraph 368 of the judgment under appeal, makes a general reference to the credibility of the evidence and to the global reach of the CUP meeting of 4 July 2006. The General Court manifestly misinterpreted NCC’s criticisms of the minutes of that meeting and the oral statement produced by Rubycon. The complaint relating to the unreliability of the evidence focused on the fact that the notes had been provided on the basis of the recollection of a single employee almost a decade after that meeting. In addition, the General Court’s interpretation of the minutes of that meeting, according to which the discussions ‘were not confined to a specific geographical area’, is incorrect because the allegedly sensitive information exchanged, as referred to in the minutes, expressly referred to the ‘BRICS market’ (Brazil, Russia, India, China and South Africa), that is to say, it excluded the EEA.
128 Fifthly, the General Court noted, in paragraph 369 of the judgment under appeal, a mere reference to the expression ‘overseas’ in the minutes of the MK meeting of 12 July 2006, whereas, at other meetings, that expression was defined as meaning ‘China and Taiwan’. In addition, the General Court rejected NCC’s argument concerning price negotiations at the end of each year with European customers. The unsubstantiated assumption by the General Court that prices were allegedly discussed ‘during the year in question’ does not refute the fact that discussing prices in the middle of the year (12 July) made no sense.
129 Sixthly, the General Court, in paragraph 370 of the judgment under appeal, relied on the minutes of the MK meeting of 13 September 2006 referring to three Japanese customers, namely SONY, Pioneer and JVC, some of which proved to be customers of NCC’s European subsidiary. However, the General Court wrongly considered that that evidence was sufficient to demonstrate that the information exchanged at that MK meeting affected sales of capacitors to the European branches of the three customers.
130 The Commission disputes that line of argument. - Findings of the Court
131 By the second part of the third ground of appeal, NCC submits that, even if the first part of the third ground of appeal were not upheld, the facts as found by the General Court do not support the existence of a continuous infringement.
132 In that regard, first of all, in so far as, by its arguments, NCC submits that certain contacts or meetings did not concern the EEA, it is sufficient to note, as the General Court recalled in paragraph 360 of the judgment under appeal, that ‘the cartel had a global reach and that its connection with the EEA was based, primarily, on the fact that the cartel participants had sales of electrolytic capacitors in the EEA’. The Commission was therefore not required to demonstrate that each anticompetitive meeting or exchange included a specific reference to the EEA.
133 Next, in so far as, by this part of the ground of appeal, NCC asks the Court to assess the evidence available to the Commission in order to ascertain whether those anticompetitive meetings or exchanges were linked to the EEA market, that part is manifestly inadmissible at the appeal stage.
134 Lastly, in so far as NCC complains that the General Court erred in its assessment of the evidence without, however, alleging distortion, it asks the Court to substitute its own assessment for that of the General Court. Such a request does not fall within the scope of the Court’s power of review on appeal.
135 It follows that the second part of the third ground of appeal is partly inadmissible and partly unfounded.
136 In the light of the foregoing, the third ground of appeal must be rejected. The fourth ground of appeal, alleging infringement of Article 101 TFEU in the light of the concept of infringement by object
137 The fourth ground of appeal is composed of two parts. The first part of the fourth ground of appeal, concerning the characterisation of the infringement by object in its entirety - Arguments of the parties
138 By the first part of the fourth ground of appeal, NCC submits that the General Court failed to give sufficient reasons as to why the entire infringement, that is to say, all 113 meetings and contacts, was characterised as an infringement by object.
139 According to NCC, a finding of an infringement by object exempts the Commission from examining the effects of the anticompetitive conduct. Such an exemption must be limited to actions which by their very nature reveal a sufficient degree of harm to competition (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission , C‑286/13 P, EU:C:2015:184, paragraphs 113 and 114). As regards the exchange of information, the conduct should reduce or remove the degree of uncertainty as to the operation of the market (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission , C‑286/13 P, EU:C:2015:184, paragraphs 121 and 122). The General Court should not have recourse to a systemic analysis but should take into consideration the nature of the goods or services affected and the real conditions of the functioning and structure of the market or markets in question.
140 The General Court did not explain why it rejected NCC’s claim that it rarely shared pricing information.
141 First, contrary to what the General Court stated in paragraph 423 of the judgment under appeal, it is necessary to determine not whether an isolated exchange of information is sufficient to establish concerted action, but whether there is sufficient evidence to characterise the infringement as a whole as an infringement by object. Individual price exchanges are insufficient in that regard.
142 Secondly, the General Court merely stated, in paragraph 425 of the judgment under appeal, that, at ‘several meetings’, information was disclosed concerning future pricing intentions. It referred, in general terms, to its previous assessment, in paragraphs 199 to 257 of the judgment under appeal, of the ‘anticompetitive nature’ of the exchanges of information. On account of the general terms of the reference, it is unclear which threshold the General Court applied in order to establish that the overall infringement could be regarded as an infringement by object and which meetings support the General Court’s finding of the infringement by object.
143 The Commission disputes that line of argument. - Findings of the Court
144 By the first part of the fourth ground of appeal, NCC submits that the General Court failed to give sufficient reasons why the infringement was characterised in its entirety as an infringement by object.
145 In order to rule on that part, it is sufficient to note, in the first place, that the General Court, in particular in paragraphs 409 to 414 of the judgment under appeal, which are not disputed in the appeal, set out the reasons why it considered that the infringement as a whole constituted an infringement by object. In particular, in those paragraphs, the General Court explained that the infringement had to be regarded as an infringement by object, since the cartel participants had exchanged sensitive information enabling them to coordinate their conduct on the market.
146 In the second place, the General Court, in paragraphs 422 to 425 of the judgment under appeal, responded to NCC’s claim that it rarely shared its pricing intentions.
147 In those paragraphs, the General Court explained that that claim had to be rejected on the ground that it was, first, irrelevant because, even if it were correct, it would not be sufficient to exclude an infringement by object, and, secondly, factually inaccurate, since NCC disclosed its future pricing intentions at several meetings that took place during the infringement period, as can be seen from the General Court’s analysis of the second plea in law.
148 Contrary to NCC’s claim, the fact that, in paragraph 425 of the judgment under appeal, the General Court referred to reasoning contained in another part of that judgment cannot imply an inadequate statement of reasons. That reasoning is clearly identifiable, since NCC itself indicated it as being the reasoning set out in paragraphs 199 to 257 of that judgment, paragraphs which NCC did not validly challenge.
149 The reference, in paragraph 425 of the judgment under appeal, to those paragraphs 199 to 257 enabled NCC to understand why, according to the General Court, there was sufficient evidence to characterise the whole of the infringement as an infringement by object. In particular, in paragraph 425, the General Court stated that the cartel participants, including NCC, disclosed their future pricing intentions at several meetings which took place during the infringement period, those meetings therefore being the meetings analysed in paragraphs 199 to 257 of the judgment under appeal, in which the General Court examined and rejected NCC’s claims that the cartel participants did not exchange commercially sensitive information during the various contacts.
150 In those circumstances, NCC’s claim that it rarely shared its pricing intentions has no factual basis and there is therefore no need to ascertain whether or not it was relevant in the present case.
151 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 characterisation of an infringement by object - Arguments of the parties
152 By the second part of the fourth ground of appeal, NCC submits that the General Court failed to apply the correct legal test for establishing an infringement by object.
153 First, in paragraph 417 of the judgment under appeal, the General Court justified the existence of an infringement by object by reference to an alleged single economic aim, namely the coordination of pricing behaviour. However, an economic objective alone does not make it possible to establish that individual actions, in particular the infringement as a whole, cause a ‘sufficient degree of harm to competition’, which is the prerequisite for establishing an infringement by object. An individual assessment of the allegedly anticompetitive conduct would have been necessary.
154 Secondly, the General Court rejected the argument that the information shared at the meetings and contacts was not such as to reduce or remove the degree of uncertainty as to the operation of the market in question, by simply stating, in paragraphs 423 and 424 of the judgment under appeal, that an isolated exchange of information could be sufficient to establish concerted action and that it was not necessary to show that the competitors colluded over their future conduct on the market. Furthermore, in paragraph 426 of the judgment under appeal, the General Court referred in general terms to the economic and legal context of the infringement. However, the General Court overlooked the fact that, in many meetings and contacts, the information exchanged was very general, not price-related and publicly available, which can hardly cause a sufficient degree of harm to competition.
155 The Commission disputes that line of argument. - Findings of the Court
156 By the second part of the fourth ground of appeal, NCC submits that the General Court failed to apply the correct legal test for the characterisation of an infringement by object.
157 As the Commission contends, NCC’s line of argument is based on a misreading of the judgment under appeal.
158 Contrary to NCC’s claims, it was not in paragraph 417 of that judgment that the General Court gave reasons for its finding that the infringement constituted an infringement by object. The General Court had already reached that conclusion in paragraph 414 of that judgment, on the basis of the grounds, not disputed in the appeal, set out in paragraphs 409 to 413 of that judgment, in which the General Court considered, in essence, that the object of the infringement was price coordination.
159 In particular, that conclusion was not based on the existence of a single economic objective, but in particular on the fact, referred to in paragraph 412 of the judgment under appeal, that the information exchanges were intended not only to eliminate or reduce uncertainties as to the conceivable behaviour of the cartel participants, but also to enable those participants to agree on prices and to limit their customers’ bargaining power.
160 By contrast, in paragraph 417 of the judgment under appeal, the General Court merely addressed an argument put forward by NCC and, to that end, referred to the existence of a single economic aim in order to confirm the existence of a regular pattern enabling a competitive strategy to be established.
161 Furthermore, NCC does not challenge paragraph 419 of the judgment under appeal, in which the General Court found that the cartel participants exchanged individualised, sensitive and confidential information capable of directly influencing their commercial strategy and of reducing the degree of uncertainty as to the operation of the market in question. Such a finding is sufficient to establish that the infringement at issue had an anticompetitive object.
162 It follows that the second part of the fourth ground of appeal is unfounded.
163 In the light of the foregoing, the fourth ground of appeal must be rejected. The fifth ground of appeal, alleging infringement of Article 101 TFEU in the light of the Commission’s territorial jurisdiction Arguments of the parties
164 By the fifth ground of appeal, NCC submits that, in paragraphs 71 to 83 of the judgment under appeal, the General Court misapplied Article 101 TFEU and Articles 53 and 56 of the EEA Agreement when it concluded that the Commission had territorial jurisdiction to sanction the entire infringement.
165 In particular, by applying the case-law according to which the Commission has jurisdiction where a cartel has been implemented in the territory of the internal market, irrespective of where it was formed (judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission , 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16), the General Court, in paragraph 81 of the judgment under appeal, confirmed that jurisdiction on the sole ground that NCC ‘does not deny that the cartel participants, itself included, directly or indirectly sold electrolytic capacitors worldwide, including in Europe, although [NCC] claims that sales in that geographical area were very limited and were made by its subsidiaries’.
166 NCC submits that, in fact, if sales in the territory of the European Union can be regarded as a form of implementation of the practices referred to in the decision at issue, the general reference to a mere sale within the European Union should not be sufficient to establish the Commission’s jurisdiction for all meetings and contacts.
167 First, the meetings in question were held in Japan, included only some references to European customers or products sold on the European market and concerned limited sales to the territory of the EEA. Against that background, the General Court should have applied a materiality threshold, rather than resorting to a mere sale within the European Union.
168 Secondly, it is not clear from the judgment under appeal on which particular sales the General Court’s assessment is based, which should at least have explained why the, often limited, sales were sufficient in order to establish the Commission’s jurisdiction for the infringement as a whole.
169 The Commission disputes that line of argument. Findings of the Court
170 In order to rule on the fifth ground of appeal, it must be noted, first, that, although NCC submits that its sales in the EEA were insignificant, it does not deny that it made such sales and that those sales may be regarded as an implementation of the cartel.
171 As the Commission correctly maintains, unlike the gravity of an infringement, which may indeed depend, in particular, on the volume of sales in the EEA and therefore on the extent of the implementation of that infringement in the EEA, the Commission’s jurisdiction to bring proceedings against such an infringement is justified by the mere fact that it was implemented in the internal market.
172 Thus, given that the General Court found, in paragraph 81 of the judgment under appeal, that NCC had not disputed that the cartel participants, including NCC, had made sales in the EEA, it was fully entitled to conclude, in paragraph 82 of that judgment, that the criterion of the implementation of the cartel as a factor linking it to EU territory was satisfied in the present case, that the infringement referred to in the decision at issue therefore fell within the scope of Article 101(1) TFEU and that the Commission had jurisdiction for the purposes of applying that provision and Article 53 of the EEA Agreement.
173 Secondly, in so far as NCC submits that certain meetings and contacts did not fall within the Commission’s jurisdiction, it is sufficient to recall that the Court of Justice has already held that it is necessary to examine the conduct of the undertaking or undertakings in question, viewed as a whole, in order to determine whether the Commission has the necessary jurisdiction to apply, in each case, EU competition law (judgment of 6 September 2017, Intel v Commission , C‑413/14 P, EU:C:2017:632, paragraph 50).
174 It follows that the fifth ground of appeal is unfounded. Sixth ground of appeal, alleging infringement of the principle of proportionality with regard to the calculation of the amount of the fine
175 The sixth ground of appeal consists of three parts. The first part of the sixth ground of appeal, concerning the taking into account of the limited links between the infringement and the EEA - Arguments of the parties
176 By the first part of the sixth ground of appeal, NCC submits that the General Court infringed the principle of proportionality by holding that the amount of the fine imposed on NCC was not disproportionate to the gravity of the alleged infringement.
177 In particular, the General Court erred when, inter alia, in paragraphs 490 to 495 and 523 of the judgment under appeal, it disregarded, for the purposes of calculating the fine, the limited links between the infringement and the EEA. Furthermore, although the General Court stated, in paragraph 523 of the judgment under appeal, or at least, ‘insinuated’, in paragraph 504 of that judgment, that the existence of limited links between the infringement and the EEA had not been demonstrated, it did not in fact carry out any quantitative or qualitative assessment of the extent and intensity of those links with the EEA.
178 The principle of proportionality requires the Commission and the General Court to conduct an overall assessment of the alleged infringement, weighing all the facts before them. In particular, the gravity of the infringement must be assessed on a case-by-case basis, taking account of all the relevant factors, which include the number and intensity of the incidents of anticompetitive conduct (judgment of 26 September 2018, Infineon Technologies v Commission , C‑99/17 P, EU:C:2018:773, paragraph 197 and the case-law cited). The extent to which an infringement has links with the EEA pertains to the intensity of that infringement in the EEA. The same applies to the market shares that the addressees of a Commission decision have in the EEA, particularly if they substantially differ from the global market share, as in the present case.
179 The Commission failed to exercise its discretion when setting the amount of the fines.
180 In the judgment under appeal, first of all, the General Court did not explain why the Commission did not have discretion to apply the 2006 Guidelines, as NCC had argued.
181 Nor, next, did it justify the assertion that the Commission’s application of those guidelines was consistent with the principle of proportionality. The reference to the fact that a gravity factor of 16% is exactly in the middle of the range, which may be up to 30% under those guidelines, as the General Court stated in paragraphs 502 and 503 of the judgment under appeal, disregards the Commission’s long-standing practice of applying gravity factors of between 15 and 18% even for the most egregious cartels, a category which does not include NCC’s infringement.
182 Furthermore, although the General Court recognised that the list of mitigating circumstances is not exhaustive, it did not explain why limited links with the EEA could not be classified as ‘extraordinary’ mitigating circumstances. By contrast, in paragraph 504 of the judgment under appeal, the General Court digressed, referring to circumstances such as the fact that the infringement was not limited to the EEA, which had no connection with the specific complaints raised by NCC.
183 Lastly, the General Court held, in paragraph 509 of the judgment under appeal, that limited links between the infringement and the EEA could not be taken into consideration under point 37 of the 2006 Guidelines. In reality, the Commission cannot and must not only have recourse to point 37 of those guidelines when it is required to do so in order to ensure compliance with the principles of equal treatment, protection of legitimate expectations and proportionality.
184 The Commission disputes that line of argument. - Findings of the Court
185 By the first part of the sixth ground of appeal, NCC submits that, by holding that the amount of the fine imposed on NCC was not disproportionate to the gravity of the infringement, the General Court infringed the principle of proportionality.
186 In order to rule on that part, it should be noted that, in paragraphs 490 to 511 of the judgment under appeal, the General Court, in order to reject the second part of the sixth plea in law, alleging failure to reduce the amount of the fine on the basis of the limited links between the infringement and the EEA, followed a four-stage line of reasoning.
187 In the first place, in paragraphs 493 to 499 of the judgment under appeal, the General Court rejected NCC’s arguments concerning the alleged existence of limited links between the infringement and the EEA. To that end, the General Court referred, in essence, to the grounds relating to NCC’s same claims seeking to call into question the very existence of the infringement.
188 As the Commission submits, that could have been sufficient to reject the second part of the sixth plea in the action at first instance, since the other arguments in support of that plea presuppose the existence of such limited links. Moreover, the reference to the case-law arising from the judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773, paragraphs 203 to 207) is irrelevant in that regard. In that judgment, the Court recognised the importance of the frequency of contacts and not of their link with the EEA.
189 In any event, in the second place, the General Court, in paragraphs 500 to 503 of the judgment under appeal, rejected NCC’s argument that the Commission should have taken account of the limited links between the cartel and the EEA in order to reduce the gravity factor of the infringement. For those purposes, the General Court explained why it considered that the taking into account of 16% of NCC’s value of sales under point 21 of the 2006 Guidelines was not disproportionate in the present case.
190 In the third place, the General Court, in paragraph 504 of the judgment under appeal, rejected NCC’s argument that the Commission should have taken into account the limited links between the infringement and the EEA as mitigating circumstances. The General Court noted that, first, it had already been established that the infringement referred to in the decision at issue ‘had a connection with the EEA throughout the infringement period’ and that, secondly, even if the links between the infringement and the EEA were limited, it would not have been possible to link that circumstance to one of the mitigating circumstances expressly mentioned in point 29 of the 2006 Guidelines. In addition, even though the list laid down in point 29 was not exhaustive, the fact that the infringement was not limited to the EEA, and that it did not originate in the EEA, was not capable of mitigating the relative gravity of NCC’s participation in that infringement and, therefore, of justifying a reduction, on account of mitigating circumstances, in the basic amount of the fine imposed on it.
191 In the fourth and last place, the General Court, in paragraphs 505 to 509 of the judgment under appeal, rejected NCC’s claims that the particularities of the case justified the Commission departing, under point 37 of the 2006 Guidelines, from the methodology for calculating the amount of the fine set by those guidelines.
192 Thus, contrary to the claims made in the appeal, first of all, the General Court indicated, with reference to other parts of the judgment under appeal, the reasons why it considered that NCC had not proved the existence of limited links between the infringement and the EEA.
193 Next, as regards the gravity factor, the General Court was right to find that, since the infringement was, by its very nature, among the most serious infringements and covered the whole of the EEA, it cannot be held that the gravity factor of 16% was not appropriate or was too high in the light of NCC’s infringement or that its application to all the addressees of the decision at issue infringes the principle of equal treatment. The Commission’s previous practice is not relevant in that regard.
194 Moreover, as regards NCC’s argument that the Commission should have taken into account the limited links between the infringement and the EEA as mitigating circumstances, since the very existence of those limited links has not been proved, that argument is ineffective.
195 Finally, as regards NCC’s argument concerning the application of point 37 of the 2006 Guidelines, it is for the undertaking concerned to prove that a case has particularities justifying the Commission departing from the method laid down in the 2006 Guidelines. Those guidelines circumscribe the Commission’s discretion in setting fines and the Commission, once it decides to adopt such guidelines, is, in principle, required to follow them.
196 It follows that the first part of the sixth ground of appeal is unfounded. The second part of the sixth ground of appeal, concerning the General Court’s exercise of its unlimited jurisdiction - Arguments of the parties
197 By the second part of the sixth ground of appeal, NCC submits, in essence, that, for the same reasons as those summarised in paragraphs 177 to 179 of the present judgment, the General Court infringed the principle of proportionality and Article 49 of the Charter by not exercising the unlimited jurisdiction conferred on it under Article 261 TFEU and Article 31 of Regulation No 1/2003 in order to reduce the amount of the fine imposed on NCC. Although the scope of the review by the Court of Justice in the context of an appeal prevents it from substituting, on grounds of fairness, its assessment of the amount of the fine for that of the General Court, NCC submits that the Court of Justice may nevertheless review whether the General Court, in the exercise of its unlimited jurisdiction, committed a manifest error or breached the principles of proportionality and equal treatment.
198 Thus, in NCC’s submission, even if the other pleas in law were unfounded, the fact remains that the General Court was required, in accordance with the principle of proportionality, to exercise its unlimited jurisdiction in order to reduce the amount of the fine on account of the limited links between the infringement and the EEA.
199 The Commission disputes that line of argument. - Findings of the Court
200 By the second part of the sixth ground of appeal, NCC submits that, by not exercising its unlimited jurisdiction in order to reduce the amount of the fine imposed on it, the General Court infringed the principle of proportionality and Article 49 of the Charter.
201 Contrary to what is submitted by the Commission, NCC does not ask the Court to substitute its own assessment for that of the General Court in order to reduce the fine imposed on it, so that that second part is admissible.
202 However, that second part of the sixth ground of appeal is based on the same arguments as those put forward in support of the first part of that ground of appeal.
203 Since it follows from paragraph 196 of the present judgment that the first part is unfounded, the second part of the sixth ground of appeal must also be rejected. The third part of the sixth ground of appeal, concerning essential elements of the calculation of the fine - Arguments of the parties
204 By the third part of the sixth ground of appeal, NCC submits that the General Court erred in law by giving insufficient reasons for its assessments concerning essential elements of the calculation of the fine, thereby infringing Article 41(1) and (2)(c) of the Charter. The General Court also erred in law by providing an incomplete assessment of the evidence and the facts.
205 First of all, the General Court, in paragraphs 505 and 509 of the judgment under appeal, did not state sufficient reasons for its conclusion that the Commission was not required to grant NCC a reduction of its fine, in accordance with point 37 of the 2006 Guidelines, on the ground that no particularity had been demonstrated, justifying the application of point 37. In fact, NCC had demonstrated such particularities.
206 Next, in paragraph 458 of the judgment under appeal, the General Court failed to provide a complete assessment of the relevant evidence and facts submitted by NCC in support of its argument that the Commission’s calculation of the value of sales infringed the principle of proportionality.
207 Finally, in paragraphs 483 to 489 of the judgment under appeal, the General Court failed to produce a full assessment of the evidence and facts presented by NCC concerning the extraordinary nature of the 2011/2012 financial year.
208 The Commission disputes that line of argument. - Findings of the Court
209 By the third part of the sixth ground of appeal, NCC submits that, by giving insufficient reasons for its assessments concerning essential elements of the calculation of the fine, the General Court infringed Article 41(1) and (2)(c) of the Charter. The General Court also erred in law by carrying out an incomplete assessment of the evidence and the facts.
210 In order to rule on that third part, it should be noted that, first of all, NCC repeats its arguments, set out in the first part of the sixth ground of appeal, concerning the absence of links between the infringement and the EEA, arguments which cannot succeed for the reasons set out in paragraphs 185 to 196 of the present judgment.
211 Next, in so far as NCC complains that the General Court failed, in paragraph 458 of the judgment under appeal, to carry out a complete assessment of the evidence in support of its argument that the Commission’s calculation of the value of sales infringed the principle of proportionality, it is sufficient to note that, in paragraph 458, it was in the alternative that the General Court considered that NCC’s argument alleging infringement of the principle of proportionality was not substantiated. Primarily, the General Court stated, in paragraph 458 of the judgment under appeal, that NCC’s relevant sales in the EEA corresponded to turnover deriving from the products in respect of which the infringement was committed and that, accordingly, those sales constituted an objective criterion giving a proper measure of the harm caused by the infringement, its scale on the relevant market and the size of the appellant’s contribution to the infringement. Since NCC has not challenged that assessment, made principally, its line of argument directed against the subsidiary assessment set out in paragraph 458 of the judgment under appeal is ineffective.
212 Lastly, in so far as NCC submits that the General Court did not carry out a full assessment of the Commission’s use of the 2011/2012 business year as the reference year to determine NCC’s value of sales, it is sufficient to note that the taking into account of that business year followed from the application of the 2006 Guidelines. Therefore, the Commission was required to take that business year into account, as the General Court held in paragraph 482 of the judgment under appeal. In that regard, the General Court held, in paragraph 486 of the judgment under appeal, that the evidence relied on by NCC was not sufficient to prove that that taking into account of the 2011/12 business year was unjustified. In those circumstances, the General Court cannot be criticised for not having assessed that evidence.
213 It follows that the third part of the sixth ground of appeal is unfounded.
214 In the light of the foregoing, the sixth ground of appeal must be rejected.
215 Since none of the grounds of appeal has been successful, the appeal must be dismissed as in part inadmissible and in part unfounded. Costs
216 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
217 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.
218 In the present case, since NCC 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 Commission. On those grounds, the Court (Ninth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Nippon Chemi-Con Corporation to bear its own costs and to pay those 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.