Case C‑180/16 P

Toshiba Corp.

v

European Commission

(Appeal — Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision taken by the European Commission following annulment in part of the initial decision by the General Court of the European Union — Amendment of fines — Rights of the defence — No adoption of a new statement of objections — Equal treatment — Joint venture — Calculation of the starting amount — Extent of contribution to the infringement — Res judicata)

Summary — Judgment of the Court (Seventh Chamber), 6 July 2017

1. Competition—Administrative procedure—Observance of the rights of the defence—Statement of objections—Annulment in part of a decision imposing a fine—Adoption of a decision amending the decision annulled in part without a new statement of objections—Lawfulness—Conditions—Sending, by letter of facts, of information of the new elements of the method for determining the amended amount of the fine—Lawfulness

   (Art. 81 EC; EEA Agreement, Art. 53)

2. Appeal—Grounds—Grounds of a judgment vitiated by an infringement of EU law—Operative part well founded for other legal reasons

3. Competition—Fines—Amount—Determination—Determination of the basic amount—Determination of the value of sales—Respect for the principle of equal treatment—Activities of certain participants in a cartel carried on by a joint venture during the reference year—Adaptation of the method of allocating and dividing the starting amount—Lawfulness

   (Art. 81 EC; EEA Agreement, Art. 53)

4. Appeal—Grounds—Calling into question of elements examined in a previous judgment of the General Court and not disputed in the appeal brought against that judgment by the same applicant—Admissibility

   (Rules of Procedure of the Court of Justice, Art. 169)

5. Competition—Fines—Amount—Determination—Individualisation by reference to the relative gravity of the contribution of each of the incriminated undertakings—Single and continuous infringement—Participation of an undertaking in a cartel in the form of an omission to act—Respect for the principle of equal treatment—Assessment

   (Art. 81 EC; EEA Agreement, Art. 53)

1.  Where the Commission adopts, following the annulment in part of a decision imposing a fine for infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area, a decision amending the initial decision, imposing a different fine amount on the undertaking concerned, the content of the statement of objections presented to that undertaking with a view to the adoption of the initial decision may be taken into consideration in assessing whether the rights of defence of that undertaking were respected in the procedure which led to the adoption of the amending decision, in so far as the annulment in part of the initial decision did not affect the validity of the initial statement of objections.

   The annulment of an EU act does not necessarily affect preparatory measures, since the procedure for replacing the annulled measure may, in principle, be resumed at the very point at which the illegality occurred. The annulment of the act does not, in principle, affect the validity of the measures preparatory to that measure, which were taken before the stage at which the defect was observed. If it is found that the annulment does not affect the validity of the prior procedural measures, the Commission is not, as a result of that annulment alone, required to present the undertakings concerned with a new statement of objections.

   Furthermore, although the Commission, by sending a letter of facts, intended to inform Toshiba of the new elements of the method for determining the amount of its fine which the Commission considered necessary following the partial annulment of the initial decision, and although it is undisputed that the undertaking concerned could state its position both in writing and during a meeting on those elements, the fact remains that, by their nature, those elements did not have to be included in a new statement of objections.

   (see paras 23, 24, 28, 34)

2.  See the text of the decision.

   (see para. 31)

3.  See the text of the decision.

   (see paras 51-53)

4.  In examining, in an action for annulment of an amending decision adopted by the Commission following the annulment in part of its initial decision imposing a fine, of elements that have already undergone a specific examination in its previous partial annulment judgment, the General Court does not disregard, in the present case, the fact that that previous judgment is res judicata, even though the undertaking concerned had not challenged those elements in its appeal against that judgment.

   Under Article 169 of the Rules of Procedure of the Court of Justice, an appeal is to seek to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision. It follows that, in its appeal against the previous partial annulment judgment, the undertaking concerned could not challenge the grounds in question of that judgment without calling into question its operative part in so far as, by that operative part, the General Court had annulled the fine imposed on it. The undertaking concerned cannot be criticised for failing to challenge those grounds in its appeal before the Court of Justice. A party cannot be compelled to act against its own interests in order to safeguard its procedural rights, including the right to bring an appeal before the Court of Justice.

   (see paras 75-80)

5.  See the text of the decision.

   (see paras 81-84)