Final Report of the Hearing Officer (1)

COMP/39.966 — Gas Insulated Switchgear (re-adoption of fines)

2013/C 70/05

The draft decision amends the Commission's previous Decision of 24 January 2007 (2) in the Gas Insulated Switchgear case. The amendments concern only the two companies: Mitsubishi Electric Corporation (‘Melco’) and Toshiba Corporation (‘Toshiba’).

In the earlier Decision the Commission found that 20 legal entities (belonging to 10 undertakings, with some legal entities held liable as parent companies) had participated in a cartel agreement in the gas insulated switchgear industry. The Commission imposed fines, inter alia, on Melco and Toshiba.

In Case T-113/07 Toshiba Corp. v European Commission and Case T-133/07 Mitsubishi Electric Corp. v European Commission the General Court on 12 July 2011 upheld the finding that Toshiba and Melco had infringed Article 81 of the EC Treaty (now Article 101 of the TFEU) but annulled the imposition of fines on Toshiba and Melco, as the Commission had violated the principle of equal treatment, when choosing the reference year for the calculation of the fine.

On 15 February 2012, the Commission informed Melco and Toshiba by letters of facts that it intended to re-impose fines on the two undertakings for the infringement confirmed by the General Court. The letters of facts described the circumstances, parameters and method of calculation relevant for setting the fines and granted both undertakings the opportunity to submit comments until 16 March 2012. Upon Toshiba's request this deadline was extended until 23 March 2012.

On 15 March 2012, Toshiba submitted to the Hearing Officer that a letter of facts is not appropriate in this situation and that a new fine decision should be preceded by a statement of objections to which Toshiba should be entitled to reply.

I replied to Toshiba on 16 March 2012 stating that a statement of objections was not required in the present case, as the Commission was not raising any new objections against Toshiba other than those on which Toshiba was already heard in the procedure leading to the adoption of the Commission's initial decision. Moreover, Toshiba was provided with the opportunity of making known in writing its views on the Commission's intention to adopt a decision imposing a new fine.

I therefore conclude that the addressees of the draft decision were able to effectively exercise their procedural rights and that their right to be heard has been respected.

(1)  Pursuant to Article 16 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29).

(2)  Commission Decision C(2006) 6762 final of 24 January 2007. A summary of the Decision has been published in OJ C 5 of 10.1.2008, p. 7.