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Document 62018TJ0342

Judgment of the General Court (Ninth Chamber, Extended Composition) of 29 September 2021 (Extracts).
Nichicon Corporation v European Commission.
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 – Concerted practice – Exchanges of sensitive business information – Territorial jurisdiction of the Commission – Restriction of competition by object – Statement of objections – Point 13 of the 2006 Guidelines on the method of setting fines – Value of sales – Obligation to state reasons – Proportionality – Equal treatment – Single and continuous infringement – Gravity of the infringement – Public distancing – Mitigating circumstances – Unlimited jurisdiction.
Case T-342/18.

Digital reports (Court Reports - general - 'Information on unpublished decisions' section)

ECLI identifier: ECLI:EU:T:2021:635

 JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)

29 September 2021 ( *1 )

(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 – Concerted practice – Exchanges of sensitive business information – Territorial jurisdiction of the Commission – Restriction of competition by object – Statement of objections – Point 13 of the 2006 Guidelines on the method of setting fines – Value of sales – Obligation to state reasons – Proportionality – Equal treatment – Single and continuous infringement – Gravity of the infringement – Public distancing – Mitigating circumstances – Unlimited jurisdiction)

In Case T‑342/18,

Nichicon Corporation, established in Kyoto (Japan), represented by A. Ablasser-Neuhuber, F. Neumayr, G. Fussenegger and H. Kühnert, lawyers,

applicant,

v

European Commission, represented by B. Ernst, T. Franchoo, C. Sjödin and F. van Schaik, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for, primarily, 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), in so far as it concerns the applicant, and, in the alternative, a reduction in the amount of the fine imposed on the applicant by that decision,

THE GENERAL COURT (Ninth Chamber, Extended Composition),

composed of M.J. Costeira (Rapporteur), President, D. Gratsias, M. Kancheva, B. Berke and T. Perišin, Judges,

Registrar: E. Artemiou, Administrator,

having regard to the written part of the procedure and further to the hearing on 22 October 2020,

gives the following

Judgment ( 1 )

I. Background to the dispute

A. The applicant and the sector concerned

1

The applicant, Nichicon Corporation, is a company established in Japan which manufactures and sells aluminium electrolytic capacitors. Until 6 February 2013, the applicant also manufactured and sold tantalum electrolytic capacitors.

2

The infringement at issue concerns aluminium electrolytic capacitors and tantalum electrolytic capacitors. Capacitors are electrical components that store energy electrostatically in an electric field and are used in a wide variety of electronic products such as personal computers, tablets, telephones, air conditioners, refrigerators, washing machines, automotive products and industrial appliances. The customer base is therefore very diverse.

3

Electrolytic capacitors, and more specifically aluminium electrolytic capacitors and tantalum electrolytic capacitors, are products in respect of which price is an important parameter of competition.

B. The administrative procedure

4

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 (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’), providing information regarding the existence of an alleged infringement in the electrolytic capacitors sector.

5

On 28 March 2014, under Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), the Commission sent requests for information to a number of undertakings operating in the electrolytic capacitors sector, including the applicant.

6

On 4 November 2015, the Commission adopted a statement of objections, which was addressed to the applicant.

7

The addressees of the statement of objections, including the applicant, were heard by the Commission at a hearing which took place from 12 to 14 September 2016.

C. The contested decision

8

On 21 March 2018, the Commission adopted Decision C(2018) 1768 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.40136 – Capacitors) (‘the contested decision’).

1.   The infringement

9

By the contested decision, the Commission 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 (EEA) in the electrolytic capacitors sector, in which nine undertakings or groups of undertakings, namely Elna, Hitachi AIC, Holy Stone, Matsuo, NEC Tokin, Nippon Chemi-Con (‘NCC’), Rubycon, Sanyo (designating Sanyo and Panasonic) and the applicant (collectively, ‘the cartel participants’) participated (recital 1 and Article 1 of the contested decision).

10

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 (recital 1 of the contested decision).

11

The cartel was, in essence, organised through multilateral meetings, generally held in Japan every one or two months at senior sales manager level, and every six months at higher management level, including the presidents (recitals 63, 68 and 738 of the contested decision).

12

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 (recital 69 of the contested decision).

13

In addition to those multilateral meetings, the cartel participants also engaged in ad hoc bilateral and trilateral contacts when necessary (recitals 63, 75 and 739 of the contested decision) (collectively, ‘the anticompetitive exchanges’).

14

In the context of the anticompetitive exchanges, the cartel participants exchanged information regarding pricing and future pricing, information regarding future price reductions and the ranges for those reductions, and information regarding supply and demand, including information in relation to future supply and demand, and, in some instances, concluded, implemented and monitored price agreements (recitals 62, 715, 732 and 741 of the contested decision).

15

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 (recitals 726 and 731 of the contested decision).

16

The Commission concluded that that conduct had a single anticompetitive aim (recital 743 of the contested decision).

2.   The applicant’s liability

17

The Commission held the applicant liable on account of its direct and continuous participation in the cartel from 26 June 1998 to 31 May 2010, but its liability did not extend to the MK meetings (recitals 760, 761, 955 and 1023 of the contested decision, as well as Article 1(f) thereof).

3.   The fine imposed on the applicant

18

Article 2(i) of the contested decision imposes a fine of EUR 72901000 on the applicant.

4.   The calculation of the amount of the fine

19

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 imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’) (recital 980 of the contested decision).

20

In the first place, in order to determine the basic amount of the fine imposed on the applicant, the Commission took into account the value of sales during the last full business year of participation in the infringement, in accordance with point 13 of the 2006 Guidelines (recital 989 of the contested decision).

21

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 (recital 990 of the contested decision).

22

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 (recital 991 of the contested decision). As regards the applicant, the Commission applied multipliers of 11.93 (corresponding to the period from 26 June 1998 to 31 May 2010) for aluminium electrolytic capacitors and 10.36 (corresponding to the period from 29 October 1999 to 9 March 2010) for tantalum electrolytic capacitors (recital 1007, Table 1, of the contested decision).

23

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 (recitals 1001 to 1003 of the contested decision).

24

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 (recital 1009 of the contested decision).

25

The Commission therefore set the basic amount of the fine to be imposed on the applicant at EUR 75156000 (recital 1010 of the contested decision).

26

In the second place, on account of mitigating circumstances, the Commission granted a 3% reduction in the basic amount of the fine imposed on the applicant, since its participation in the MK meetings was not established and there was no proof that it had been aware of those meetings (recital 1023 of the contested decision).

27

Accordingly, the Commission set the amount of the fine to be imposed on the applicant at EUR 72901000 (recital 1139, Table 3, of the contested decision).

II. Procedure and forms of order sought

29

By application lodged at the Court Registry on 30 May 2018, the applicant brought the present action.

30

On 28 September 2018, the Commission’s defence was lodged at the Court Registry.

31

The reply and the rejoinder were lodged at the Court Registry on 7 December 2018 and 28 February 2019 respectively.

32

On a proposal from the Second Chamber, the General Court decided, pursuant to Article 28 of its Rules of Procedure, to assign the case to a Chamber sitting in extended composition.

33

Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Ninth Chamber (Extended Composition), to which the present case was consequently assigned.

34

On a proposal from the Judge-Rapporteur, the General Court (Ninth Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, invited the parties to lodge certain documents.

35

The parties presented oral argument and answered the questions put to them by the Court at the hearing on 22 October 2020.

36

Following the death of Judge Berke on 1 August 2021, the three Judges whose signatures are affixed to the present judgment continued the deliberations, in accordance with Article 22 and Article 24(1) of the Rules of Procedure.

37

The applicant claims, in essence, that the Court should:

primarily, annul the contested decision in so far as it is applied to the applicant;

in the alternative, and in any event, substitute its own appraisal for that of the Commission as regards the amount of the fine imposed on the applicant and reduce that amount;

order the Commission to pay the costs.

38

The Commission contends that the Court should:

dismiss the action;

order the applicant to pay the costs.

III. Law

B. Substance

45

In support of the action, the applicant relies on five pleas in law in support of both its primary head of claim, seeking annulment of the contested decision, and its alternative head of claim, seeking a reduction in the amount of the fine imposed on it.

46

By the first, second and third pleas, the applicant disputes the Commission’s conclusion that there was a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement in the electrolytic capacitors sector throughout the EEA for a period of almost 14 years. The first plea alleges material errors of fact as regards the geographic scope of the anticompetitive exchanges. The second plea alleges errors of law regarding, first, the finding of a single and continuous infringement and, second, the applicant’s participation in that infringement. The third plea alleges that the Commission lacked jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement.

47

By its fourth plea, the applicant disputes the fine imposed on it. That plea alleges manifest errors of assessment in the calculation of the amount of the fine.

48

By the fifth plea, alleging infringement of the right to be heard, the applicant disputes the legality of the procedure for establishing the infringement.

1.   The head of claim seeking annulment of the contested decision

(c)   The second plea in law, alleging errors of law in relation to the finding of a single and continuous infringement and the applicant’s liability for participation in that infringement

(1) The first part, relating to the lack of evidence of a single and continuous infringement covering all sales of electrolytic capacitors to the EEA

314

The applicant submits, in essence, that, because of the heterogeneous nature of capacitors and the specific nature of demand on the various geographic markets, the infringement, apart from the fact that it was not established by the Commission, could not cover all sales of electrolytic capacitors to the EEA.

(i) The first complaint, relating to the lack of evidence of a single and continuous infringement covering all sales of electrolytic capacitors

316

The applicant argues, as a preliminary point, that capacitors are highly diversified products, which are distinguished by a multitude of characteristics and for which there is no uniform market price, so that the infringement cannot cover all sales of electrolytic capacitors to the EEA. It submits, more specifically, that the evidence set out in recital 796 et seq. of the contested decision, on which the Commission relied in order to support its finding, is not capable of establishing to the requisite legal standard the existence of a single and continuous infringement which, taken as a whole, covered all sales of electrolytic capacitors.

317

The Commission disputes the applicant’s arguments.

318

As a preliminary point, it should be borne in mind that, in order to determine the products covered by a cartel, the Commission is not required to define the relevant market on the basis of economic criteria. It is the members of the cartel themselves who determine the products which are the subject of their discussions and concerted practices (see, to that effect, judgment of 15 June 2005, Tokai Carbon and Others v Commission, T‑71/03, T‑74/03, T‑87/03 and T‑91/03, not published, EU:T:2005:220, paragraph 90). The products covered by a cartel are determined by reference to the documentary evidence of actual anticompetitive conduct in respect of specific products (see, to that effect, judgment of 11 December 2003, Adriatica di Navigazione v Commission, T‑61/99, EU:T:2003:335, paragraph 27).

319

It must also be emphasised that the Commission cannot, in that regard, rely on a presumption which is not substantiated by any evidence (see, to that effect, judgment of 28 November 2019, ABB v Commission, C‑593/18 P, EU:C:2019:1027, paragraphs 44 and 45).

320

It is apparent, however, from the contested decision, and in particular from recital 736 thereof, that the Commission found, after examining all the anticompetitive exchanges and evidence relating thereto, that all the exchanges between the cartel participants covered either (i) aluminium electrolytic capacitors or tantalum electrolytic capacitors or (ii) both of those categories of electrolytic capacitors.

321

In recital 796 of the contested decision, the Commission, first, stated, in response to a complaint raised by the applicant during the administrative procedure and similar to the present complaint, that it was apparent from the anticompetitive exchanges that the discussions were not limited to certain subtypes of aluminium electrolytic capacitor or tantalum electrolytic capacitor.

322

As the Commission states in that recital, that failure to restrict the subject matter of the discussions is apparent not only from the meetings of 29 August 2002, 22 December 2006, 25 June 2008 and 20 December 2010, mentioned in the application, during which reference was made to a wide variety of aluminium electrolytic capacitors and/or tantalum electrolytic capacitors, but also from discussions relating specifically to the factors contributing to the determination of the selling price of the products, such as the increase in the cost of raw materials and fluctuations in exchange rates (see, by way of example, the meetings referred to in footnotes 1417 and 1418 to the contested decision). The content of those discussions was general and was intended to apply to all types of aluminium electrolytic capacitor or tantalum electrolytic capacitor.

323

Secondly, in recital 797 of the contested decision, the Commission found that the cartel participants had not introduced any limitation in their corporate statements as to the definition of the aluminium electrolytic capacitors or tantalum electrolytic capacitors covered by the cartel.

324

Thirdly, in recital 798 of that decision, the Commission stated that the majority of the representatives of the cartel participants were responsible for the manufacture and/or sale of aluminium electrolytic capacitors and tantalum electrolytic capacitors, and not a specific product line.

325

In the light of the case-law referred to in paragraphs 84, 318 and 319 above, the Commission, in the light of those findings, was right to take the view that the cartel covered all aluminium electrolytic capacitors and tantalum electrolytic capacitors and, therefore, that the single and continuous infringement covered all those products.

326

That finding is not called into question by the applicant’s arguments.

327

First, the applicant claims that the Commission in fact refers to four meetings only in order to maintain, in recital 796 of the contested decision, that the cartel covered all sales of electrolytic capacitors. It also adds that none of the exchanges mentioned in footnotes 1417 and 1418 to that recital concerned all sales of electrolytic capacitors.

328

However, the applicant misinterprets the contested decision, in particular recital 796 thereof. First, the Commission relies on more than four anticompetitive exchanges to support its conclusion that the cartel covered all aluminium electrolytic capacitors and tantalum electrolytic capacitors and not a specific capacitor subtype. Second, the Commission did not intend to demonstrate, in that recital, that the discussions during each exchange related to all sales of capacitors, but merely to substantiate its conclusion, citing by way of example the exchanges referred to in footnotes 1417 and 1418 thereto. That argument must therefore be rejected.

329

Secondly, the applicant submits that the fact that no limitation is laid down in the leniency statements as regards the products covered by the cartel is not sufficient evidence to establish that the infringement concerned all sales of electrolytic capacitors.

330

However, first, it has been pointed out in paragraph 318 above that, according to the case-law, it is the members of the cartel themselves who determine the products which are the subject of their discussions and concerted practices. Second, it is apparent from the preceding paragraphs that the Commission’s conclusion is not based solely on the undertakings’ leniency statements. That argument must therefore be rejected.

331

Thirdly, the applicant asserts that Annex II to the contested decision does not enable it to be established that the persons who participated in the cartel were generally responsible for all electrolytic capacitors, on the grounds, first, that that annex mentions only those persons’ job titles, without providing details of their exact responsibilities, and, second, that the exchanges took place in Japan between Japanese employees, who were generally not responsible for sales to Europe.

332

However, it is sufficient to note that the fact that the details of the responsibilities of the persons concerned were not known does not preclude them from being able to exercise responsibilities in relation to all the goods covered, which, moreover, is not disputed by the applicant. Second, the fact that those persons were not, in general, responsible for sales to Europe does not preclude them from being responsible for occasional sales to Europe. In any event, it should be borne in mind that the persons mentioned on that list were the representatives of the cartel participants, so that they necessarily had responsibilities relating to the goods in question. That argument must therefore be rejected.

333

In the light of all the foregoing considerations, the present complaint must be rejected.

(e)   The fourth plea in law, alleging manifest errors of assessment in the determination of the fine

442

By the present plea, the applicant submits that, by imposing a fine of EUR 72901000 on it, the Commission infringed the principles of proportionality, ne bis in idem and equal treatment and failed to fulfil its obligation to state reasons.

(1) The first part, relating to the incorrect calculation of the amount of the fine

446

This part may be divided into three complaints. The first complaint relates to the incorrect use of the total value of sales invoiced in the EEA for the purpose of calculating the amount of the fine. The second complaint relates to the determination of the multiplier to be taken into account for the purpose of assessing the gravity of the infringement. The third complaint relates to the determination of the additional amount to be taken into account.

(i) The first complaint, relating to the incorrect use of the total value of sales invoiced in the EEA

447

The applicant submits, in essence, that the Commission infringed the principle of proportionality by taking as the basis for the calculation of the amount of the fine the total value of sales of aluminium electrolytic capacitors and tantalum electrolytic capacitors invoiced during the last business year of its participation in the cartel.

448

The Commission disputes the applicant’s arguments.

483

Sixthly, it is necessary to reject the argument that the Commission misapplied the 2006 Guidelines by taking as the basis for calculating the amount of the fine the total value of sales invoiced in the EEA instead of the total value of sales consigned to the EEA.

484

First, it should be noted, as the Commission does, that point 13 of the 2006 Guidelines refers neither to ‘sales delivered’ nor to ‘sales invoiced’. It refers only to ‘sales’ in the EEA. It follows that those guidelines, just as they do not require account to be taken of sales delivered in the EEA, do not preclude the Commission from using the sales invoiced in the EEA to calculate the value of each undertaking’s sales within the EEA (judgment of 17 May 2013, Parker ITR and Parker-Hannifin v Commission, T‑146/09, EU:T:2013:258, paragraph 210).

485

Moreover, it is admittedly apparent from the case-law that, to be able to use the sales invoiced in the EEA, it is necessary for that criterion to reflect the reality of the market, that is to say for it to be the best criterion for ascertaining the effects of the cartel on competition in the EEA (judgment of 17 May 2013, Parker ITR and Parker-Hannifin v Commission, T‑146/09, EU:T:2013:258, paragraph 211). However, the applicant does not explain how the fact that the Commission took into account, when calculating the amount of the fine, certain sales invoiced to customers in the EEA but subsequently delivered to sites outside that geographic area does not reflect the impact of the infringement on competition in the EEA.

486

It follows from the foregoing considerations that the applicant has not put forward any evidence to establish that the turnover achieved during the last full business year of participation in the infringement, in respect of all sales of aluminium electrolytic capacitors and tantalum electrolytic capacitors in the EEA, did not constitute, at the time when the Commission adopted the contested decision, an indication of its true size, its economic power on the market and the extent of the infringement in question.

487

It follows that the present complaint must be rejected.

(iii) The third complaint, relating to the determination of the additional amount to be taken into account

509

The applicant submits, in essence, that, in view of the fact that the cartel participants had already been given substantial fines in non-member countries, which took into account the global aspects of the infringement and a deterrent effect, the Commission has infringed the principle ne bis in idem and the principle of proportionality by also imposing an amount in addition to the basic amount in order to deter the cartel participants from engaging in any unlawful cartels in the future.

510

The Commission disputes the applicant’s arguments.

511

As a preliminary point, it is apparent from recital 1009 of the contested decision that the Commission stated that, in the light of the specific circumstances of the present case and the criteria discussed in Section 8.3.3.1 of that decision, the percentage to be applied to the additional amount for deterrence should be 16%.

512

It should be borne in mind that the principle ne bis in idem, also enshrined in Article 4 of Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, constitutes a fundamental principle of EU law the observance of which is guaranteed by the judicature (see judgment of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraph 26 and the case-law cited).

513

Under the principle ne bis in idem, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal interest. The application of that principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected (see judgment of 27 September 2006, Roquette Frères v Commission, T‑322/01, EU:T:2006:267, paragraph 278 and the case-law cited).

514

First, in so far as the applicant claims that, by imposing a fine on it for participation in a cartel already penalised by the authorities of non-member States, the Commission infringed the principle ne bis in idem, it should be noted that the principle ne bis in idem cannot apply in circumstances such as those of this case, where the proceedings conducted and penalties imposed by the Commission, on the one hand, and by the authorities of non-member States, on the other, clearly do not pursue the same objectives (see, by analogy, judgment of 27 September 2006, Roquette Frères v Commission, T‑322/01, EU:T:2006:267, paragraphs 280 and 281 and the case-law cited).

515

Whereas, in the former scenario, it is a question of preserving undistorted competition in the EEA, the protection sought, in the latter scenario, concerns the market of the non-member country. The condition of unity of the legal interest protected, which is necessary for the application of the principle ne bis in idem, is therefore lacking.

516

Moreover, the applicant neither invokes nor demonstrates the existence of a principle of law or a rule or convention of public international law prohibiting authorities or courts of different States from prosecuting or convicting a person on the basis of identical facts producing effects on their territory or within their jurisdiction. In the absence of proof of the existence of such a rule or convention binding the European Union or non-member States and providing for such a prohibition, the Commission cannot be bound by it (see, to that effect, judgment of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraph 34).

517

Consequently, the applicant’s claim alleging that the Commission infringed the principle ne bis in idem must be rejected.

518

Secondly, in so far as the applicant claims that the Commission infringed the principle of proportionality by failing to take account, in determining the additional percentage to be applied, of the fact that the fines imposed on it by other States already included a deterrent effect, it must be borne in mind that point 25 of the 2006 Guidelines states that, ‘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’.

519

Moreover, it should be observed that any consideration concerning the existence of fines imposed by the authorities of a non-member State can be taken into account only under the Commission’s discretion in setting fines for infringements of EU competition law. Accordingly, although it cannot be ruled out that the Commission may take into account fines imposed previously by the authorities of non-member States, it cannot be required to do so. The objective of deterrence which the Commission is entitled to pursue when setting the amount of a fine is to ensure compliance by undertakings with the competition rules laid down by the FEU Treaty for the conduct of their activities within the internal market. Consequently, when assessing the deterrent nature of a fine to be imposed for infringement of those rules, the Commission is not required to take into account any penalties imposed on an undertaking for infringement of the competition rules of non-member States (see judgment of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraphs 36 and 37 and the case-law cited).

520

Consequently, the applicant’s claim alleging infringement of the principle of proportionality must be rejected.

521

On the basis of all the foregoing considerations, the first part of the present plea must be rejected.

(2) The second part, relating to the failure to take account of the mitigating circumstances surrounding the applicant

(i) The first complaint, relating to the fact that the amount of the fine does not sufficiently reflect the applicant’s absence from the MK meetings

523

The applicant submits, in essence, that the amount of the reduction granted to it on account of its non-participation in the MK meetings is not consistent with the principles of proportionality and equal treatment.

524

The Commission disputes the applicant’s arguments.

525

As a preliminary point, it is apparent from recital 1023 of the contested decision that the Commission granted the applicant, on account of mitigating circumstances, a 3% reduction in the basic amount of the fine imposed, on the ground that its participation in the MK meetings had not been established and that there was no evidence that it had been aware of those meetings.

526

In the first place, the applicant submits that the reduction granted to it on account of its non-participation in the MK meetings was insufficient, given the importance of those meetings in the characterisation of the infringement.

527

According to the case-law, the grant of a reduction in the basic amount of the fine in respect of mitigating circumstances is necessarily linked to the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful agreement. Recognition of a mitigating circumstance, in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement, cannot result in the fine imposed being deprived of deterrent effect and the effectiveness of Article 101(1) TFEU being undermined (see judgment of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraph 237 and the case-law cited).

528

Although the circumstances in the list in point 29 of the 2006 Guidelines are certainly among those which may be taken into account by the Commission in a specific case, it is not required to grant a further reduction as a matter of course once an undertaking has put forward evidence of the existence of one of those circumstances; the appropriateness of any reduction of the fine in respect of mitigating circumstances must be examined comprehensively on the basis of all the relevant circumstances (see, to that effect, judgment of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraph 240 and the case-law cited).

529

It has been observed that, first, the applicant had participated in the infringement for almost the whole infringement period, that is to say for almost 12 years of the cartel’s 14-year duration. Secondly, notwithstanding its non-participation in the MK meetings, the applicant had taken part in 52 multilateral meetings, including the ECC, ATC and CUP meetings, and in 6 bilateral or trilateral contacts. Thirdly, the applicant had not disputed that the CUP meetings complemented the MK meetings and that they were considered by the cartel participants to be ‘shadow meetings’ held in parallel with the MK meetings, in so far as they were generally held one week after those meetings and brought together most of their participants. Fourthly, all the anticompetitive exchanges formed part of the same overall plan, pursuing a single economic aim. Moreover, it is not apparent from the contested decision that the MK meetings were particularly important in comparison with the other meetings.

530

Furthermore, as regards the reductions granted in other cases, it has been pointed out, in paragraphs 505 and 506 above, that the Commission’s practice in previous decisions cannot serve as a legal framework for fines imposed in competition matters.

531

In the light of those considerations, it must be held that, notwithstanding its non-participation in the MK meetings, the applicant is not justified in claiming that its participation in the cartel was limited and that it revealed a degree of harm which would have justified a greater reduction in the amount of the fine. It follows that the Commission has not infringed the principle of proportionality. The applicant’s claim must therefore be rejected.

532

In the second place, the applicant criticises the Commission for having granted it the same reduction as that granted to the cartel participants which did not take part in the CUP meetings, even though they were not in comparable situations, having regard to the importance of the MK meetings in comparison with the CUP meetings in the characterisation of the infringement.

533

In that regard, it should be borne in mind that the principle of equal treatment, which is a general principle of EU law enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraphs 77 and 78 and the case-law cited).

534

When the amount of the fine is determined, that principle means that the Commission cannot, by the application of different methods of calculation, discriminate between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 79 and the case-law cited).

535

First, it has been observed, in paragraph 529 above, that the MK meetings were not particularly important in comparison with the other meetings. Second, it is apparent from recital 1022 of the contested decision that the Commission considered that Sanyo, NEC Tokin and Matsuo were liable for the entirety of the single and continuous infringement, with the exception of the CUP meetings, given that their participation in those meetings had not been established and there was no proof that they had been aware of those meetings.

536

It follows that the Commission considered that those undertakings, like the applicant, were liable for the entirety of the single and continuous infringement, with the exception of a group of meetings, in respect of which their participation had not been established.

537

In those circumstances, by granting the same reduction to all those undertakings, the Commission observed the principle of equal treatment, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.

538

It follows that the Commission has not infringed the principle of equal treatment. The applicant’s claim must therefore be rejected.

539

It follows from all of the foregoing that the present complaint must be rejected.

2.   The head of claim seeking a reduction in the amount of the fine

571

By its second head of claim, the applicant requests the Court, in any event, to exercise its unlimited jurisdiction in order to substitute its own assessment for that of the Commission concerning the amount of the fine, and, consequently, to reduce the amount of the fine imposed on it.

572

As a preliminary point, it should be noted that, in support of the present head of claim, the applicant relies on the arguments put forward in support of the fourth plea in law, alleging manifest errors in the determination of the amount of the fine.

573

It should be borne in mind that the unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003 pursuant to Article 261 TFEU empowers it, in addition to merely reviewing the legality of the penalty, to substitute its own assessment in relation to the determination of the amount of that penalty for that of the Commission, the author of the act in which that amount was initially fixed. Consequently, the EU judicature may vary the contested act, even without annulling it, in order to cancel, reduce or increase the amount of the fine imposed, that jurisdiction being exercised by taking into account all the factual circumstances (see judgment of 25 July 2018, Orange Polska v Commission, C‑123/16 P, EU:C:2018:590, paragraph 106 and the case-law cited).

574

In order to satisfy the requirements of Article 47 of the Charter of Fundamental Rights of the European Union when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see judgment of 26 January 2017, Villeroy & Boch v Commission, C‑625/13 P, EU:C:2017:52, paragraph 180 and the case-law cited).

575

It must however be noted that the exercise of powers of unlimited jurisdiction does not amount to a review of the Court’s own motion and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy, which the Courts are required to raise of their own motion, such as a lack of reasoning in the contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas (see judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission, C‑617/13 P, EU:C:2016:416, paragraph 85 and the case-law cited).

576

In addition, when exercising its unlimited jurisdiction, the General Court is not bound by the 2006 Guidelines, which do not prejudge the assessment of the fine by the EU judicature. Indeed, although the Commission must observe the principle of the protection of legitimate expectations when it applies its self-imposed rules, such as the 2006 Guidelines, that principle cannot bind the Courts of the European Union in the same way, in so far as they do not propose to apply a specific method of setting fines in the exercise of their unlimited jurisdiction, but consider case by case the situations before them, taking account of all the matters of fact and of law relating to those situations (see judgment of 14 May 2014, Donau Chemie v Commission, T‑406/09, EU:T:2014:254, paragraph 59 and the case-law cited).

577

Nevertheless, the case-law of the Court of Justice also makes clear that the exercise of unlimited jurisdiction with regard to the determination of fines cannot result in discrimination between undertakings which have participated in an agreement contrary to the competition rules of EU law. If the General Court intends, in the case of one of those undertakings, to depart specifically from the method of calculation followed by the Commission, which it has not called into question, it must give reasons for doing so in its judgment (see judgment of 14 May 2014, Donau Chemie v Commission, T‑406/09, EU:T:2014:254, paragraph 60 and the case-law cited).

578

The General Court may therefore reduce a fine to a level below that which results from the application of the 2006 Guidelines where the circumstances of the case before it justify such action. Nevertheless, the applicant must cite grounds which are relevant and capable of justifying such a reduction and substantiate those grounds with evidence (see judgment of 14 May 2014, Donau Chemie v Commission, T‑406/09, EU:T:2014:254, paragraph 310 and the case-law cited).

579

It is in the light of those considerations that it is necessary to examine whether the circumstances relied on by the applicant may, even in the absence of an error of law or an error of assessment on the part of the Commission, justify a reduction in the amount of the fine imposed on the applicant by the contested decision.

580

In the first place, as regards the calculation of the value of sales, first of all, it has been found, in connection with the examination of the first complaint in the first part of the fourth plea in law, that the taking into account of the total value of sales of the products concerned during the last year of participation in the cartel as a basis for calculating the fine was such as to give a proper indication of the scale of the infringement on the relevant market and its economic significance for the cartel participants’ activities.

581

Furthermore, it should be noted that the arguments put forward by the applicant in that regard are not sufficiently precise to enable the Court to understand how the applicant determines the basis of assessment and the alternative calculation methods on which it relies. The applicant considers, on the basis of the information contained in the study carried out by an independent firm, that the amount of the fine should be reduced in order to be set at a level varying between EUR 25 million and EUR 40 million. In addition, the proposed basis of assessment and calculation methods do not offer any indication that they would reflect the scale of the infringement on the relevant market or its economic significance for the applicant’s activities and, moreover, that they would ensure observance of the principle of equal treatment as between the cartel participants.

582

Next, it has been pointed out, in the examination of the first complaint in the first part of the second plea in law, that the applicant had participated in a single and continuous infringement which was not limited to a specific type of aluminium electrolytic capacitor or tantalum electrolytic capacitor, but covered a wide range of aluminium electrolytic capacitors and tantalum electrolytic capacitors; nor was it limited to certain customers.

583

Lastly, it has been pointed out in paragraph 482 above that the specific internal circumstances relied on by the applicant, relating to its sales structure, formed part of its single commercial strategy and did not in themselves constitute particular circumstances justifying the application of a different calculation method for the determination of the value of sales.

584

In the second place, as regards the reduction of the gravity multiplier applied by the Commission, relied on by the applicant in connection with the second complaint in the first part of the fourth plea in law, first, it should be noted at the outset that the applicant has not indicated either the specific circumstances which justify a reduction in the percentage chosen by the Commission or the percentage at which that multiplier should be set. Secondly, it has been pointed out in paragraph 502 above that the infringement at issue was, by its very nature, one of the most harmful restrictions of competition. Thirdly, it has been pointed out in paragraph 367 above that the applicant had participated in the infringement for almost the whole infringement period, that is to say for almost 12 years of the cartel’s 14-year duration. Fourthly, it is apparent from the examination of the second complaint in the first part of the second plea in law that the infringement extended to the whole of the EEA. Fifthly, although, by the references made to the multiplier used by the Commission in other decisions, the applicant sought to demonstrate, in the present case, potential discrimination, it should be borne in mind, in that regard, that the Court is not bound by the Commission’s previous practice in taking decisions (see, by analogy, judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 78).

585

In the third place, as regards the reduction in the additional amount applied by the Commission, which is the subject of the third complaint in the first part of the fourth plea in law, first, it has been noted in paragraph 519 above that the deterrent nature of a fine to be imposed for infringement of the EU competition rules cannot be determined by reference to any penalties imposed on an undertaking for infringement of the competition rules of non-member States. Secondly, the Commission applied an additional amount of 16% of the value of sales in the present case, that is to say, an amount within one percentage point of the lowest percentage which it could have selected, in accordance with point 25 of the 2006 Guidelines.

586

In the fourth place, as regards the greater reduction of its fine on account of mitigating circumstances, it has been observed, in paragraph 531 above, that, notwithstanding its non-participation in the MK meetings, the applicant was not justified in claiming that its participation in the cartel was limited and that it revealed a lesser degree of harm justifying such a reduction. It has also been observed, in paragraph 536 above, that the Commission had granted a similar reduction to all the undertakings which had been held liable for the entirety of the infringement, with the exception of a group of meetings in respect of which their participation had not been established.

587

In the fifth place, it has been found in paragraph 546 above that the applicant could not have been unaware of the reprehensible nature of its conduct and, therefore, maintain that it could at most be held liable only for a negligent infringement.

588

In the sixth place, it has been found in paragraph 564 above that the applicant was not justified in relying on the existence of a mitigating circumstance relating to its competitive conduct on the market. In particular, there is nothing in the file to show that the applicant acted differently from the other cartel participants and disrupted the functioning of the cartel.

589

It follows from all of the foregoing that none of the factual and legal circumstances relied on by the applicant in support of a reduction of the fine imposed on it justifies, in particular in the light of the principles of proportionality and equal treatment, the adoption of a calculation method different from that adopted by the Commission, such as to lead to such a reduction. Consequently, there is no need for the Court to exercise its unlimited jurisdiction in the present case.

590

It follows that the applicant’s head of claim seeking a reduction in the amount of the fine must be rejected and, consequently, the action must be dismissed in its entirety.

 

On those grounds,

THE GENERAL COURT (Ninth Chamber, Extended Composition)

hereby:

 

1.

Dismisses the action;

 

2.

Orders Nichicon Corporation to bear its own costs and to pay those incurred by the European Commission.

 

Costeira

Gratsias

Kancheva

Delivered in open court in Luxembourg on 29 September 2021.

[Signatures]


( *1 ) Language of the case: English.

( 1 ) Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.

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