2019:515 Sony Corporation and Sony Electronics, Inc v European Commission

Court General Court
Date of ruling 12 July 2019
Case name (short version) Sony Corporation and Sony Electronics, Inc v European Commission
Case Citation T-762/15

ECLI:EU:T:2019:515

Key words Competition — Agreements, decisions and concerted practices — Market for optical disk drives — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Collusive agreements relating to bidding events concerning optical disk drives for notebook and desktop computers — Infringement by object — Rights of the defence — Obligation to state reasons — Principle of good administration — Fines — Single and continuous infringement — 2006 Guidelines on the method of setting fines
Basic context In its judgment in Case T-762/15 Sony and Sony Electronics v Commission, delivered on 12 July 2019, the Tribunal dismissed the application of Sony Corporation and its subsidiary Sony Electronics for partial annulment of Commission Decision C(2015) 7135 final, of 21 October 2015{1}, and, in the alternative, to the reduction of the fine imposed on them by that decision on account of an infringement of the competition rules in the sector of the production and supply of optical disc players (hereinafter ‘ODDs’).
Points arising – admissibility
Points arising – substance Competition – Fines – Amount – Determination – Adjustment of the basic amount – Deterrent effect – Application of a multiplying factor to the starting amount – Criteria – Overall size and resources of the undertaking penalized

Following an administrative investigation initiated following a complaint, the Commission concluded that thirteen companies had participated in a cartel on the ODD market. In the contested decision, the Commission found that, at least from 23 June 2004 to 25 November 2008, Sony Corporation, its subsidiary Sony Electronics and the other participants in that prohibited cartel had coordinated their conduct in relation to the tendering procedures organised by computer manufacturers Dell and Hewlett Packard. According to the Commission, the companies involved had sought, through a network of parallel bilateral contacts, to ensure that prices for LDO products remained at higher levels than they would have been in the absence of these bilateral contacts. Accordingly, the Commission imposed a fine of EUR 21 024 000 on Sony Corporation and its subsidiary Sony Electronics for violation of Article 101 TFEU and Article 53 of the EEA Agreement.

Sony Corporation and Sony Electronics raised two pleas in law in support of their action, the first relating, in substance, to the existence of an infringement of Article 101(1) TFEU and the second, raised in the alternative, to the calculation of the amount of the fine imposed. The Tribunal, however, rejected his pleas in law.

As regards the calculation of the amount of the fine imposed, the Tribunal recalled that the need to ensure that the fine has a sufficient deterrent effect requires that the amount of the fine be varied in order to take account of the intended impact on the undertaking on which it is imposed, in particular with regard to its financial capacity. The Tribunal therefore considered that the Commission was right to apply a multiplier of 1.2 to the basic amount of the fine for Sony Corporation and Sony Electronics, even though it had not applied such a multiplier to some of the other operators involved, whose parent companies had a turnover comparable to or greater than that of Sony Corporation and Sony Electronics, but whose infringements had not been attributed to those parent companies. Therefore, the Commission cannot be criticised for applying a deterrence factor to Sony Corporation and Sony Electronics when it did not increase the fines imposed on those operators on the basis of the turnover and profits of their parent companies.

{1} Commission Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 – Optical disc players).

Intervention  –
Interim measures  –
Order
  1. Dismisses the action;
  2. Orders Sony Corporation and Sony Electronics, Inc. to bear their own costs and pay the costs incurred by the European Commission.
Fine changed  –
Case duration 3 years 7 months
Judge-rapporteur Ulloa Rubio
Notes on academic writings Idot, Laurence: Cartels (2), Europe 2019 Mois Comm. nº 10 p.33 (FR)

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