Case T‑343/18

Tokin Corp.

v

European Commission

Judgment of the General Court (Ninth Chamber, Extended Composition), 29 September 2021

(Competition – Agreements, decisions and concerted practices – Market for aluminium electrolytic capacitors and tantalum electrolytic capacitors – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Price coordination throughout the EEA – Statement of objections – 2006 Guidelines on the method of setting fines – Value of sales – Proportionality – Equal treatment – Gravity of the infringement – Mitigating circumstances)

1. Competition – Fines – Amount – Determination – Discretion of the Commission – Judicial review – Unlimited jurisdiction of the EU judicature – Scope – Substitution of grounds for the contested decision

   (Arts 101, 102, 261 and 263 TFEU; Council Regulation No 1/2003, Art. 31)

   (see paragraphs 44-48)

2. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Overall turnover of the undertaking concerned – Turnover corresponding to the goods covered by the infringement – To be taken into consideration – Limits – Determination of the value of sales directly or indirectly related to the infringement

   (Arts 101 and 102 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 13)

   (see paragraphs 58, 59)

3. Competition – Fines – Amount – Determination – Determination of the basic amount – Gravity of the infringement – Criteria for assessment – Commission’s margin of discretion – Limits – Compliance with the principle of proportionality and the principle that penalties must fit the offender

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 13)

   (see paragraphs 60-63, 65, 66)

4. Competition – Administrative procedure – Statement of objections – Provisional character – Obligation on the Commission to explain in the final decision the differences between that decision and its provisional assessments – None – Final decision establishing a different end date for the infringement than the one provisionally used at the stage of the statement of objections – Whether permissible

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 27)

   (see paragraphs 81-85)

5. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Reference year – Last full year of the infringement – Use of different reference years for all undertakings involved in the infringement – Use of a different reference period for an undertaking that has stopped selling the products affected by the cartel – Whether permissible – Breach of the principle of equal treatment – None

   (Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, point 13)

   (see paragraphs 101-104, 110-114, 116-119, 120)

6. Competition – Fines – Amount – Determination – Determination of the basic amount – Gravity of the infringement – Taking into account the gravity of an undertaking’s participation in an infringement for the purposes of adjustment and not for the purpose of setting the basic amount – Whether permissible

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 19 to 22)

   (see paragraphs 131, 132, 138, 139, 141)

7. Competition – Fines – Amount – Determination – Discretion of the Commission – Judicial review – Unlimited jurisdiction of the EU judicature – Scope – Subject to the Guidelines on the method of setting fines – Precluded – Obligation to comply with the principle of equal treatment

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02)

   (see paragraphs 160-164)

Résumé

Tokin Corp. (‘Tokin’) is a company established in Japan which manufactures and sells tantalum electrolytic capacitors. From 1 August 2009 until 31 January 2013, Tokin was fully owned by Nec Corp.

By decision of 21 March 2018 ( 1 ) (‘the contested decision’), the European Commission found that Tokin and Nec Corp. had infringed Article 101 TFEU by participating in 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. In that regard, the Commission held Tokin liable on account of its direct participation in that cartel from 29 January 2003 to 23 April 2012, and Nec Corp., in its capacity as a parent company, for the period from 1 August 2009 to 23 April 2012. The contested decision imposed, first, a fine on Tokin jointly and severally with Nec Corp. and, second, individual fines on Tokin and Nec Corp. respectively.

In order to calculate the amount of the fines, the Commission applied the methodology set out in the Guidelines on the method of setting fines. ( 2 )

In calculating the fines imposed on Tokin, the Commission determined the basic amount by referring, first, to the value of sales of the electrolytic capacitors concerned during the last full business year of participation in the infringement and then by applying a duration multiplier corresponding to the period from 29 January 2003 to 23 April 2012. Taking the view that horizontal price coordination arrangements are, by their very nature, among the most serious infringements of Article 101 TFEU, 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 order to ensure that the fines imposed would have a sufficiently deterrent effect, the Commission also applied an additional amount of 16%.

As regards the adjustments to the basic amount of the fines, the Commission granted Tokin and Nec Corp. a 3% reduction in the basic amount of the fine, on the ground that their participation in certain meetings had not been established. In addition, for their cooperation under the 2006 Leniency Notice, ( 3 ) Tokin and Nec Corp. obtained a 15% reduction in the amount of any fine which would otherwise have been imposed on them for the infringement.

Tokin brought an action for annulment of the contested decision, which is, however, dismissed by the Ninth Chamber (Extended Composition) of the General Court.

Findings of the Court

In the first place, the Court rejects Tokin’s plea alleging, first, a failure to have regard to the limits imposed on the Commission’s discretion and, second, an infringement of the principle of proportionality, inasmuch as the Commission changed the end date of Tokin’s participation in the infringement, while knowing that that change would have the effect of multiplying the value of the relevant sales and, consequently, the amount of the fine.

In that regard, the Court observes that the statement of objections indicated that Tokin had participated in the infringement until 11 December 2013, whereas, in the contested decision, the Commission finds that the duration of the infringement at issue is established until 23 April 2012 and that Tokin participated in it until that date.

However, although the statement of objections must set forth all the essential facts upon which the Commission is relying in connection with its investigative procedure, that statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature. Consequently, a final decision of the Commission cannot be annulled solely on the ground that the definitive conclusions drawn from the facts set out in the statement of objections do not correspond precisely to the provisional assessment of those facts contained in that statement. Moreover, since the Commission is not required to maintain the factual or legal assessments made in the statement of objections, the Commission cannot be criticised for having taken account, in the contested decision, of an end date of the infringement which was different from the end date it had mentioned in the statement of objections.

Furthermore, Tokin did not dispute either the end date of the infringement indicated in the contested decision or the fact that the last full business year of its participation in the infringement corresponded to the period from 1 April 2011 to 31 March 2012.

As regards the alleged infringement of the principle of proportionality, the Court finds that Tokin had not put forward any detailed argument in support of the alleged infringement.

In the second place, the Court rejects Tokin’s complaint alleging an infringement of the principles of non-discrimination and equal treatment inasmuch as the Commission used different reference years depending on the addressees of the contested decision for the purpose of calculating the fine.

In that regard, the Court finds, first of all, that the principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way. Next, the Court observes that, in order to determine the basic amount of the fines to be imposed, the Commission had applied to all the undertakings, with the exception of two of those undertakings, the criterion set out in point 13 of the 2006 Guidelines, according to which that amount must be determined using as a point of reference the value of sales achieved by the undertaking in question during the last full business year of its participation in the infringement. According to the Court, the derogation from that criterion for two of the undertakings concerned was objectively justified, since those undertakings had ceased to sell the products in respect of which the infringement was committed before the end of the infringement and were therefore in a different situation from that of the other participants in the infringement. Lastly, the Court notes that the Commission had indeed calculated separately, for all the cartel participants, the relevant value of sales of the two categories of products concerned, namely aluminium electrolytic capacitors and tantalum electrolytic capacitors.

In the light of those findings, the Court confirms that the method used by the Commission to calculate the value of sales was not arbitrary and did not, in itself, lead to an infringement of the principles of non-discrimination and equal treatment.

In the third place, the Court also rejects Tokin’s plea alleging that, when calculating the basic amount of the fine, the Commission should have taken into account its non-participation in certain anticompetitive meetings in the gravity percentage of the infringement and not as a mitigating circumstance.

In that regard, the Court recalls that, according to settled case-law, the Commission may take into account the relative gravity of the participation of an undertaking in an infringement and the particular circumstances of the case either when calculating the basic amount of the fine or when adjusting the basic amount of the fine in the light of mitigating and aggravating circumstances. Accordingly, in view of all the characteristics of the infringement at issue, the Commission’s decision to apply a gravity percentage of 16% for the purpose of determining the basic amount of the fine and to grant a 3% reduction in the basic amount of the fine on account of mitigating circumstances did not infringe either Regulation No 1/2003 or the principle of personal liability.

( 1 ) Commission Decision C(2018) 1768 final of 21 March 2018 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the Agreement on the European Economic Area (Case AT.40136 – Capacitors).

( 2 ) 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’).

( 3 ) Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ).