9.4.2011   

EN

Official Journal of the European Union

C 113/18

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annul Commission Decision C(2010) 8761 final of 8 December 2010 in Case COMP/39.309 — LCD — Liquid Crystal Displays insofar as it finds that the infringement extended to LCD panels for TV applications;

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reduce the amount of the fine imposed upon the applicant in the decision; and

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order the defendant to bear the costs of the proceedings.

1.

First plea in law, alleging the Commission applied a legally flawed concept, the concept of so-called ‘direct EEA sales through transformed products’, in determining the relevant value of sales for the calculation of the fine.

In calculating the relevant value of sales of the applicant for the purpose of the determination of the fine, the Commission counted the value of LCD panels incorporated in finished IT or TV products sold by the applicant in the EEA. The applicant submits that this concept of ‘direct EEA sales through transformed products’ is legally unsound and cannot be used for the determination of the relevant value of sales. The applicant submits that the concept relies on sales of products to which the infringement does not directly or indirectly relate and artificially shifts the location of relevant intra-group sales of LCD panels from outside the EEA to within the EEA and vice versa depending upon the location of sale of the finished products into which such LCD panels are incorporated. As such, the applicant submits that the concept is inconsistent with the past case-law of the EU courts dealing, among others, with the treatment of intra-group sales for the calculation of the fine. Finally, the applicant submits that the concept as applied by the Commission in the decision leads to discrimination between the addressees of the decision illegally based on the mere form of their respective corporate structures.

2.

Second plea in law, alleging that the Commission violated Article 101 TFEU and Article 53 of the EEA Agreement in finding that the infringement extended to LCD panels for TV applications.

The applicant submits that, due to the specific characteristics of LCD panels for TV applications, the superficial and episodic nature of the discussions relating to such panels, and the fact that other, more detailed bilateral discussions concerning LCD panels for TV applications involving third parties were disregarded by the Commission in the decision, conduct regarding LCD panels for TV applications should have been analysed and assessed distinctly from the conduct relating to LCD panels for IT applications. In particular, in light of these factors, the applicant submits that the Commission’s finding that the infringement extended to LCD panels for TV applications is vitiated by violations of the principle of equal treatment and fundamental procedural requirements and must be annulled or, at the very least, that the Commission ought to have assessed the gravity and duration of any infringement arising from the conduct relating to LCD panels for TV applications separately from the infringement relating to LCD panels for IT applications for the purposes of calculating the fine.

3.

Third plea in law, alleging that the relevant value of sales taken by the Commission as the basis for the calculation of the applicant’s fine erroneously include sales other than sales of liquid crystal display panels for IT and TV applications.

Sales of LCD panels for medical applications, which are used in the manufacture of medical equipment, were mistakenly included in sales data provided to the Commission during the administrative procedure. Given that medical panels do not qualify as IT or TV panels as defined by the Commission in the decision, the applicant submits that its sales of medical panels must be excluded from the relevant value of sales used to calculate the fine. Sales of so-called LCD open cells were also mistakenly included in sales data provided to the Commission during the administrative procedure. Given that LCD open cells are not finished products and the decision finds no infringement in relation to semi-finished products, the applicant submits that its sales of LCD open cells must be excluded from the relevant value of sales used to calculate the fine.