Case C‑373/14 P

Toshiba Corporation

v

European Commission

‛Appeal — Competition — Agreements, decisions and concerted practices — Article 101(1) TFEU — Power transformers market — Oral market-sharing agreement (‘Gentlemen’s Agreement’) — Restriction of competition ‘by object’ — Barriers to entry — Presumption of participation in an unlawful cartel — Fines — Guidelines on the method of setting fines (2006) — Point 18’

Summary — Judgment of the Court (Second Chamber), 20 January 2016

1. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Wording and purpose of an agreement and the economic and legal context of the development of that agreement — Distinction between infringements by object and infringements by effect — Infringement by object — Market-sharing agreements — Particularly serious infringement — Scope of the analysis of the economic and legal context

   (Arts 101(1) TFEU; EEA Agreement, Art. 53)

2. Appeal — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted

   (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)

3. Agreements, decisions and concerted practices — Participation in meetings of undertakings having an anti-competitive object — Tacit approval without any public distancing of itself by the undertaking enough for it to incur liability — Public distancing rebutting presumption of participation — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted — No Infringement of the principle of personal liability

   (Arts 101(1) TFEU and 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)

4. Competition — Fines — Amount — Determination — Deterrent effect — Criteria — Size and global resources of the undertaking penalised — Turnover from sales directly or indirectly related to the infringement

   (Art. 101(1) TFEU; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 23(2); Commission Communication 2006/C 210/02, paras 4, 13 and 18)

1.  Since market-sharing agreements constitute particularly serious breaches of the competition rules, the analysis of the economic and legal context of which those practices form part may be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object.

   (see paras 28, 29)

2.  See the text of the decision.

   (see paras 35, 40-44)

3.  Within the context of EU competition law, an undertaking’s participation in a meeting having an anticompetitive object creates a presumption of the illegality of its participation, which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other parties to the cartel.

   In that context, the concept of public distancing reflects a factual situation, the existence of which is found by the General Court, on a case-by-case basis, taking account of a number of coincidences and indicia submitted to it and accordingly an overall assessment of all the relevant evidence and indicia. Provided that that evidence has been properly obtained and that the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice.

   (see paras 63, 71)

4.  See the text of the decision.

   (see paras 83-87)