2019:517 Sony Optiarc, Inc and Sony Optiarc America, Inc v European Commission

Court General Court
Date of ruling 12 July 2019
Case name (short version) Sony Optiarc, Inc and Sony Optiarc America, Inc v European Commission
Case Citation T-763/15

ECLI:EU:T:2019:517

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 The applicants, Sony Optiarc Inc. and Sony Optiarc America Inc. sought the annulment of, or alternatively, the reduction of fine resulting from, Decision C(2015) 7135 final in which the Commission found that undertaking colluded in the context of bidding events concerning Optical disk drives sector (ODDs) organised by two computer manufacturers (Case AT.39639 — Optical disk drives) (‘the contested decision’).
Points arising – admissibility
Points arising – substance The first plea, alleging the existence of errors of fact and of law in relation to the finding of an infringement of Article 101(1) TFEU

First part: failure to prove that the applicants participated in a restriction of competition ‘by object’

41  As a preliminary point, it should be borne in mind that it follows from Article 2 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), and from settled case-law that, in the area of competition law, where there is a dispute as to the existence of an infringement, it is incumbent on the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. In that regard, it must produce sufficiently precise and coherent proof to establish that the alleged infringement took place (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 90 and the case-law cited).

42      Where, in establishing an infringement of Articles 101 and 102 TFEU, the Commission relies on documentary evidence, the burden is on the undertakings concerned not merely to put forward a plausible alternative to the Commission’s view, but to show that the evidence relied on in the contested decision is insufficient to establish the existence of an infringement. It must be considered that, where the Commission relies on direct evidence, the burden is on the undertakings concerned to show that such evidence is insufficient. Such a reversal of the burden of proof does not infringe the principle of the presumption of innocence (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 91 and the case-law cited).

43      However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 92 and the case-law cited).

44      Indeed, the items of evidence on which the Commission relies in the decision in order to prove the existence of an infringement of Article 101(1) TFEU by an undertaking must not be assessed separately, but as a whole (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 93 and the case-law cited).

45      It is also necessary to take account of the fact that anticompetitive activities take place clandestinely, and accordingly, in most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 94 and the case-law cited).

46      The only relevant criterion for assessing freely adduced evidence relates to its credibility. According to the generally applicable rules on evidence, the credibility and, therefore, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and the soundness and reliable nature of its contents. In particular, great importance must be attached to the fact that a document has been drawn up in close connection with the events or by a direct witness of those events. Furthermore, it should be noted that the mere fact that the information has been provided by undertakings which sought to benefit from the 2006 Leniency Notice does not call its probative value into question (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 95 and the case-law cited).

47      It is settled case-law that no provision or any general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Articles 101 and 102 TFEU, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the TFEU (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 96 and the case-law cited).

48      Some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is understandable, since those participants might tend to play down the importance of their contribution to the infringement and maximise that of others. Nonetheless, in view of the inherent logic of the procedure provided for in the 2006 Leniency Notice, the fact of seeking to benefit from its application in order to obtain a reduction of the fine does not necessarily create an incentive to submit distorted evidence as to the other participants in the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking, and thereby jeopardise its chances of benefiting fully under the Leniency Notice (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 97 and the case-law cited).

49      In particular, where a person admits that he committed an infringement and thus admits the existence of facts going beyond those whose existence could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person has resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 98 and the case-law cited).

50      Nonetheless, statements made by the undertakings concerned in the context of an application for leniency pursuant to the 2006 Leniency Notice must be assessed with caution and, in general, cannot be regarded as particularly reliable evidence if they have not been corroborated by other evidence (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 99 and the case-law cited).

51      According to settled case-law, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (see judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 100 and the case-law cited).

52      As regards, as in the present case, the case of an exchange of information between competitors, such an exchange is tainted with an anticompetitive object if the exchange is capable of removing uncertainties concerning the intended conduct of the participating undertakings (judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 43).

53      Subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market (judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 51).

54      Moreover, in deciding whether a concerted practice is prohibited by Article 101(1) TFEU, there is no need to take account of its actual effects once it is apparent that its object is to prevent, restrict or distort competition within the European Union. The distinction between ‘infringements by object’ and ‘infringements by effect’ arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition (judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 29).

55      Accordingly, there is no need to consider the effects of a concerted practice where its anticompetitive object is established (judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 30).

56      In that regard, the essential legal criterion for ascertaining whether an agreement involves a restriction of competition ‘by object’ is the finding that such an agreement reveals in itself a sufficient degree of harm to competition for it to be considered that it is not appropriate to assess its effects (see judgment of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 104 and the case-law cited).

57      In that connection, regard must be had to the content of the provisions of the agreement at issue, the objectives which it seeks to attain and the economic and legal context of which it forms part (see judgment of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 105 and the case-law cited).

58      In respect of price-fixing agreements, which represent particularly serious restrictions of competition, the analysis of the economic and legal context of which the practice forms part may therefore be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object (see judgment of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 107 and the case-law cited).

59      Lastly, it should be borne in mind that an information exchange system relating to sales made by competitors, disseminated systematically and at short intervals, reduces or removes the degree of uncertainty as to the operation of the market and is therefore liable to have an adverse influence on competition (see, to that effect, judgment of 28 May 1998, Deere v Commission, C‑7/95 P, EU:C:1998:256, paragraphs 89 and 90).

Recital 206 of the contested decision (contact 62)

71      In that regard, it should be recalled that, in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be complied with even if the proceedings in question are administrative proceedings (judgments of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraph 94, and of 24 September 2009, Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P and C‑137/07 P, EU:C:2009:576, paragraph 270).

72      Regulation No 1/2003 provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the proceedings. That statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law, which requires observance of the rights of the defence in all proceedings capable of leading to the imposition of a penalty. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see judgment of 2 February 2012, Dow Chemical v Commission, T‑77/08, not published, EU:T:2012:47, paragraph 110 and the case-law cited).

73      However, that may be done summarily and the final decision is not necessarily required to be an exact replica of the statement of objections (judgment of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 14), since the statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature (see, to that effect, judgment of 17 November 1987, British American Tobacco and Reynolds Industries v Commission, 142/84 and 156/84, EU:C:1987:490, paragraph 70).

74      Thus, the rights of the defence are infringed as a result of a discrepancy between the statement of objections and the final decision only where an objection stated in the decision was not set out in the statement of objections in a manner sufficient to enable the addressees to defend their interests (see judgment of 8 July 2004, Mannesmannröhren-Werke v Commission, T‑44/00, EU:T:2004:218, paragraph 98 and the case-law cited).

75      In that regard, the Commission’s obligation, in the context of a statement of objections, is limited to setting out its objections and describing clearly the facts on which it relied and the classification attributed to them, so that its addressees can properly defend themselves (see judgment of 8 July 2004, Mannesmannröhren-Werke v Commission, T‑44/00, EU:T:2004:218, paragraph 99 and the case-law cited).

76      The legal classification of the facts made in the statement of objections can, by definition, be only provisional, and a subsequent Commission decision cannot be annulled on the sole ground that the definitive conclusions drawn from those facts do not correspond precisely with that intermediate classification. The Commission is required to hear the addressees of a statement of objections and, where necessary, to take account of their observations made in response to the objections by amending its analysis specifically in order to respect their rights of defence (see judgment of 8 July 2004, Mannesmannröhren-Werke v Commission, T‑44/00, EU:T:2004:218, paragraph 100 and the case-law cited).

77      In the present case, it follows from the explanations given by the Commission, which are not contradicted by the applicants on that point, that the Commission referred, in the statement of objections, to an HH SATA Combo auction held on 17 July 2007 and that it was by taking into account Sony Optiarc’s reply to that statement of objections that it referred, in the contested decision, to HH SATA BD Combos mentioned in a PLDS email of 25 July 2007.

78      As recalled above, the contested decision cannot be an exact replica of the statement of objections and the Commission may be required to take into account the replies provided by its addressees.

79      Moreover, it should be noted that the applicants had the opportunity to present their arguments as regards the HH SATA BD Combos referred to in the PLDS email of 25 July 2007. In the statement of objections, that email was referred to as ‘contact 71’. In their reply to the statement of objections, the applicants stated, in relation to contact 71 concerning the PLDS email, that there was no proof that that contact could have had an anticompetitive effect.

80      The applicants therefore cannot claim that the contested decision undermined their rights of defence in that regard.

84      It should be noted that this is a case here of an exchange of information concerning a future price. Price-fixing agreements represent particularly serious restrictions of competition (see paragraph 58 above).

85      It should moreover be pointed out that, as the Court of Justice has held, if supply on a market is highly concentrated, the exchange of certain information may, according in particular to the type of information exchanged, be liable to enable undertakings to be aware of the market position and commercial strategy of their competitors, thus distorting rivalry on the market and increasing the probability of collusion, or even facilitating it (judgment of 23 November 2006, Asnef-Equifax and Administración del Estado, C‑238/05, EU:C:2006:734, paragraph 58).

Recital 210 of the contested decision (contact 65)

106    As regards the argument that the information given by Sony Optiarc in fact enhanced competition, it should be recalled that an undertaking which, despite colluding with its competitors, follows a more or less independent policy in the market may simply be trying to exploit the cartel for its own benefit (judgment of 28 February 2002, Cascades v Commission, T‑308/94, EU:T:2002:47, paragraph 230). In any event, the mere disclosure of commercially sensitive information to competitors amounts to a prohibited practice since it removes uncertainty as to the future conduct of a competitor and thus directly or indirectly influences the strategy of the recipient of the information (see judgment of 16 September 2013, Wabco Europe and Others v Commission, T‑380/10, EU:T:2013:449, paragraph 124 and the case-law cited).

Recitals 216 to 219 of the contested decision (contact 88 in Annex I)

116    It must therefore be held that those three emails had an anticompetitive object.

117    Thus, as has been pointed out in paragraph 55 of the present judgment, there is no need to consider the effects of a concerted practice where its anticompetitive object is established (judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 30). In the present case, the Commission therefore did not have to show the actual effect of the contacts on the result of the internet negotiations.

Recital 220 of the contested decision (contact 89 in Annex I)

126    As the Commission maintains, even if the information that Sony Optiarc sought to lower its prices –– after having carried out investigations with component suppliers –– was more general than the information provided by TSST and HLDS, it constitutes an anticompetitive contact prior to an auction. Combined with the information relating to other competitors, the information relating to Sony Optiarc reduced uncertainty concerning its future conduct.

127    Moreover, it should be noted that the ‘extra info’ given at the end of the email reveals that Sony Optiarc provided additional information on the future auction by way of information on its past prices.

128    As was stated in paragraph 92 et seq. above, information on a price from an auction that has already closed is very useful for starting a future bid.

129    Therefore, it must be held that the Commission was right to find that the information obtained from Sony Optiarc was capable of impacting PLDS’s pricing decisions.

Recital 222 of the contested decision (contact 95 in Annex I)

136    Therefore, the information provided by Sony Optiarc appears capable of having helped the cartel participants to predict better the future conduct of competitors on the market and to draw conclusions in relation to their own conduct.

Recital 229 of the contested decision (contact 98 in Annex I)

143    As regards the usefulness of that information, if it was provided by Sony Optiarc, as noted by the Commission, it can only be found that the knowledge that Sony Optiarc was experiencing production constraints allowed its competitors to infer that Sony Optiarc would not bid aggressively in upcoming tenders. Such information was thus capable of reducing uncertainty as regards the future conduct of the competitors.

144      Thus, it must be concluded that contact 98 is capable of contributing to a body of evidence.

Recitals 233 to 236 of the contested decision (contact 100 in Annex I)

148    The email of 2 June 2008, quoted by the parties, which concerns an auction that took place on 5 June 2008 for HH DVDRW drives for the third quarter of 2008, states (i) that Sony Optiarc proposed a price of USD 18.88 and (ii) that the latter ‘indicated that they wanted [3rd] or even [2nd place]’.

149    As regards the price, the applicants maintain that it was both old information, because it in fact related to a price proposed for the previous auction, and incorrect information, because Sony Optiarc ultimately proposed lower prices for September and October 2008.

150    First, it cannot be held that it was old information since, as has already been explained, the final price proposed by a participant during the previous auction generally served as the starting point for its price for the new auction. Accordingly, nor could the price be regarded as inaccurate, in that it was not final.

151    As regards Sony Optiarc’s statement on the rank which it wanted, it follows from paragraph 96 above that the information relating to the ranking in a past auction could be useful. That is the case, a fortiori, for desired ranking for an upcoming auction.

152    Therefore, it must be held that that email was part of an information sharing system relating to sales made by competitors seeking to reduce the degree of uncertainty, within the meaning of the case-law cited in paragraph 59 above.

Recitals 237 to 241 of the contested decision (contact 101 in Annex I)

159      In the light of the foregoing, it must be concluded that contact 101 is not capable of contributing to a body of evidence.

Annex I to the contested decision (contact 105)

165    It follows from the wording of that email that, even if the information is not absolutely proved, it reveals a high degree of certainty (‘most likely’). It therefore constitutes useful information, which is capable of reducing uncertainty in relation to the price which would be offered by Sony Optiarc.

166    As regards the information which was exchanged after that allocation, the Commission refers to the PLDS email of 11 July 2008, which states the following:

‘Optiarc … Optiarc said they quoted [USD] 41 (I believed it is lower than [USD] 41 and above [USD] 40). HLDS. Quoted [USD] 40 … Very confident to get [the application] slot. … mentioned to both that their competition quoted [USD] 38.00. IMPACT: PLDS needs to be able to have a sales price of [USD] 40 in Q4 [for the 2008–2009 business year] with profit!’

167    As the Commission argues, that email demonstrates the fact that PLDS adjusted its sales price based on the information provided by Optiarc. Thus, that email illustrates the fact that the information received through the contacts had an effect on the conduct of the competitors.

168    It must therefore be concluded that contact 105 is capable of contributing to a body of evidence.

Recitals 257 to 259 of the contested decision (contact 116 in Annex I)

175    It follows that the Commission was entitled, without committing any errors and without infringing its obligation to state reasons, to find, in the light of the evidence and indicia which could be taken into account, considered as a whole, that the applicants had participated in an infringement ‘by object’ of Article 101 TFEU.

Second part: lack of evidence of a ‘single and continuous’ infringement

178    It should be recalled that the fact that there is a single and continuous infringement does not necessarily mean that an undertaking participating in one or more aspects can be held liable for the infringement as a whole. The Commission still has to establish that that undertaking was aware of the other undertakings’ anticompetitive activities at European level or that it could reasonably have foreseen them. The mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice for a finding that the undertaking participated in the overall cartel. Article 101(1) TFEU does not apply unless there exists a concurrence of wills between the parties concerned (judgments of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 62, and of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 52).

179    Accordingly, it is only if the undertaking knew or should have known when it participated in an agreement that in doing so it was joining in the overall cartel that its participation in the agreement concerned can constitute the expression of its accession to that cartel (judgments of 20 March 2002, Sigma Tecnologie v Commission, T‑28/99, EU:T:2002:76, paragraph 45; of 16 November 2011, Low & Bonar and Bonar Technical Fabrics v Commission, T‑59/06, not published, EU:T:2011:669, paragraph 61, and of 30 November 2011, Quinn Barlo and Others v Commission, T‑208/06, EU:T:2011:701, paragraph 144). In other words, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the unlawful conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (judgments of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 63, and of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 53).

180    The undertaking concerned must therefore be aware of the general scope and the essential characteristics of the cartel as a whole (judgments of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 64, and of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 54).

181    Where that is the case, the fact that an undertaking did not take part in all the constituent elements of a cartel or that it played only a minor role in the elements in which it did participate must be taken into consideration only when the gravity of the infringement is assessed and, as the case may be, in determining the amount of the fine (judgments of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraph 90, of 14 May 1998, Buchmann v Commission, T‑295/94, EU:T:1998:88, paragraph 121, and of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 65).

186    First, as regards the applicants’ argument that the Commission did not assess whether the periods separating the contacts were sufficiently short to establish a continuous infringement, it should be borne in mind that the fact that the evidence of the existence of a continuous infringement was not adduced for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that a cartel reveals itself at different periods, which may be separated by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement (judgment of 21 September 2006, Technische Unie v Commission, C‑113/04 P, EU:C:2006:593, paragraph 169).

187    In the present case, it must be pointed out that it is apparent from the foregoing that the applicants participated in a number of contacts over a period of fifteen months. Most of the contacts were only a month apart and the applicants sometimes participated in several contacts in the same month. The longest established period without a contact taking place is only 3 months (between July and October 2008).

188    Secondly, as regards the applicants’ argument that the Commission has not demonstrated in the contested decision that Sony Optiarc was aware of the existence of a common objective and intended to contribute to it, it is sufficient to refer to recitals 373 and 374 of the contested decision.

189    Accordingly, in recital 373 of that decision, the Commission pointed out that an internal PLDS email of 20 June 2007 demonstrated that Sony Optiarc had disclosed information, which it had received from TSST, to PLDS: ‘According to resources, TSST has still reserved 40% for HH SATA DVD & DVDRW. This has been further confirmed with HLDS & Sony Optiarc Account Managers’. In that regard, it should be recalled that, in cases concerning infringements of the competition rules, the taking into account of circumstances prior to the period of infringement is not precluded, in so far as those circumstances can, inter alia, serve to create an overall picture of the situation and corroborate the interpretation of other evidence (see judgment of 23 January 2014, Gigaset v Commission, T‑395/09, not published, EU:T:2014:23, paragraph 67 and the case-law cited).

190    Moreover, the Commission pointed out in recital 373 that the fact that Sony Optiarc shared information with its competitors is also apparent from an HLDS email of 23 June 2008, in which it is stated that ‘SNO [Sony Optiarc] is also already checking up on the price levels of T[SST] and P[LDS] company’.

191    According to recital 374 of the contested decision, an internal Sony Optiarc email of 14 February 2008 shows that it engaged in contacts with TSST and PLDS and that it also disclosed sensitive information to Quanta. Furthermore, according to that recital, internal HLDS and PLDS emails, dated 18 September and 25 July 2007, confirm that Sony Optiarc participated in anticompetitive contacts.

192    Lastly, in its oral statement, PLDS stated that HLDS, TSST and Optiarc: ‘[had], at some point in time, told it that they had spoken to each other’.

193    Moreover, it can be noted that the applicants never publicly distanced themselves from the cartel, nor reported it to the administrative authorities, which effectively encouraged the continuation of the infringement and compromised its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 84).

194    Thus, the Commission rightly found in recital 374 of the contested decision that Sony Optiarc, by engaging in those various contacts, knew or could have reasonably foreseen that those contacts were not isolated, but were united by the same objective and constituted a large ODD cartel consisting of a wider network of parallel contacts.

195    Third, as regards the applicants’ argument that the Commission produced no evidence that Sony Optiarc had taken part ‘in nearly every auction’ in a ‘systematic’ sharing of future intentions, given that it is apparent from the foregoing that the applicants intended to contribute to the common objective of the infringement and were aware of the general scope and the essential characteristics of the cartel or could have reasonably foreseen them, it was not for the Commission to prove that Sony Optiarc had participated in all the auctions. In that regard, the fact that Sony Optiarc might not have participated in certain discussions cannot suffice to exonerate it.

196    Fourthly, as regards the applicants’ argument that Sony Optiarc made no attempt to conceal its conduct, and, on the contrary, sometimes bid aggressively in the auctions, it should be noted that the fact that Sony Optiarc may not have tried or managed to conceal its conduct to the same extent as the other cartel participants can have no impact on the classification of its conduct as anticompetitive.

197    As regards Sony Optiarc’s sometimes aggressive conduct in the context of certain auctions, the fact that it might have tried to exploit the cartel for its own benefit does not mean that it did not participate in the single and continuous infringement (see paragraphs 106 and 114 above).

198    Fifth, as regards the applicants’ argument that the Commission does not take account, in the contested decision, of the fact that it alleges only seventeen contacts against Sony Optiarc, it must be pointed out that it is apparent from Annex I to the contested decision that the Commission established thirty-one contacts in relation to Dell during the period of Sony Optiarc’s participation in the cartel. According to that annex, HLDS was involved in twenty-two contacts, TSST in eighteen contacts and PLDS in all of the contacts. Even if account is taken of the fact that some of the contacts are not absolutely proved (see paragraph 67 et seq. above), the number of Sony Optiarc’s contacts, contrary to what the applicants claim, cannot be classified as minor.

199    It follows that none of the applicants’ arguments is capable of calling into question the Commission’s finding that the infringement in which the applicants participated is a single and continuous infringement.

200    The second part of the first plea must therefore be rejected.

Fourth part: breach of the rights of the defence, lack of proof and failure to state reasons

208    It is necessary to examine, in the light of the principles referred to in paragraph 71 et seq. above, whether Sony Optiarc was clearly informed, in the statement of objections, that the Commission considered that the single and continuous infringement consisted of different bilateral agreements.

209    It must first be noted that there were a number of elements, in the statement of objections, indicating to Sony Optiarc that the Commission considered that the cartel consisted of different agreements. Thus, in particular, recital 301 of that statement states that ‘[the orchestration of bids] … ultimately resulted in some instances in outright agreements [for the purposes of] Article 101 TFEU’ and observes that the bilateral contacts ‘constitute at least concerted practices’ for the purposes of that article. Recital 308 of the statement of objections mentions the ‘complex of infringements in this case’. Recital 353 of the statement of objections refers to the principal aspects of ‘the complex of agreements and concerted practices which can be characterised as restrictions of competition’. Recital 354 of the statement of objections states that that ‘complex of concerted practices and/or agreements’ had as its object the restriction of competition.

210    It should next be recalled that, according to the case-law, an infringement of Article 101 TFEU may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves an infringement of Article 101 TFEU (judgment of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraph 81).

211    The concept of a single and continuous infringement presupposes a complex of practices adopted by various parties in pursuit of a single anticompetitive economic aim (see, to that effect, judgments of 24 October 1991, Rhône-Poulenc v Commission, T‑1/89, EU:T:1991:56, paragraphs 125 and 126).

212    It is therefore apparent from the very concept of a single and continuous infringement that it presupposes a ‘complex of practices’. The applicants cannot therefore claim that the Commission changed its conclusions by finding, in addition to a single and continuous infringement, several ‘bilateral contacts’, given that those bilateral contacts are precisely what constitute that single infringement.

213    There was therefore no inconsistency, in recital 352 of the contested decision, in so far as the Commission stated therein that the contacts constitute individual infringements and at the same time meet the criteria for a single and continuous infringement.

214    Moreover, all the bilateral contacts in which the applicants were found to have engaged were mentioned in the statement of objections. In that regard, a list setting out those contacts is given in recital 275 of that statement.

215    Indeed, as the Commission contends, without being contradicted in this respect by the applicants, the latter contested each contact separately and at length in their reply to the statement of objections and were successful in persuading the Commission not to pursue its allegations in relation to certain bilateral contacts.

216    Accordingly, the applicants cannot claim that the contested decision contains an infringement additional to or separate from that found in the statement of objections.

217    The applicants’ arguments relating to a breach of the rights of the defence must therefore be rejected.

–       Failure to state reasons

222    According to settled case-law, the statement of reasons required under Article 296 TFEU must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, for the purpose of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 14 July 2016, Parker Hannifin Manufacturing and Parker-Hannifin v Commission, T‑146/09 RENV, EU:T:2016:411, paragraph 82 and the case-law cited).

223    The fact remains that, in stating the reasons for a decision which it takes to enforce the rules on competition, the Commission is required under Article 296 TFEU to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the competent court and the persons concerned the circumstances in which it has applied EU law (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 91).

224    In addition, the statement of the reasons must be logical and, in particular, contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 169, and of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 151).

225    Furthermore, it should be borne in mind that the principle of effective judicial protection, a general principle of EU law which is now enshrined in Article 47 of the Charter of Fundamental Rights of the European Union and which corresponds, in EU law, to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (see judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 57 and the case-law cited), requires that the operative part of a decision adopted by the Commission, finding infringements of the competition rules, must be particularly clear and precise and that the undertakings held liable and penalised must be in a position to understand and to contest that imputation of liability and the imposition of those penalties, as set out in the wording of that operative part.

226    It should be borne in mind that it is in the operative part of a decision that the Commission must indicate the nature and extent of the infringements which it penalises. In principle, as regards in particular the scope and nature of the infringements penalised, it is the operative part, and not the statement of reasons, which is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision. As the European Union Courts have held, for the purpose of determining the persons to whom a decision finding an infringement applies, only the operative part of the decision must be considered, provided that it is not open to more than one interpretation (judgments of 16 December 1975, Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraph 315, and of 11 December 2003, Adriatica di Navigazione v Commission, T‑61/99, EU:T:2003:335, paragraph 43).

227    In the present case, as was just noted, there is no inconsistency, in recital 352 of the contested decision, in so far as the Commission stated therein that the contacts constitute individual infringements and at the same time meet the criteria for a single and continuous infringement (see paragraph 213 above).

228    Accordingly, nor is there any inconsistency between those recitals and Article 1 of the contested decision, which states that the single and continuous infringement consisted of several separate infringements.

229    As is apparent from the foregoing, the Commission explained clearly and unequivocally the scope and nature of the applicants’ conduct that it considered to constitute an infringement of Article 101 TFEU, as well as the evidence underpinning those conclusions.

230    In addition, while Article 101 TFEU distinguishes between ‘concerted practices’, ‘agreements between undertakings’ and ‘decisions by associations of undertakings’, the aim is to have the prohibitions of that article catch different forms of coordination and collusion between undertakings. Accordingly, a precise characterisation of the nature of the cooperation at issue in the main proceedings, consisting in an exchange of information between competitors, is not liable to alter the legal analysis to be carried out under Article 101 TFEU (see, to that effect, judgment of 23 November 2006, Asnef-Equifax and Administración del Estado, C‑238/05, EU:C:2006:734, paragraph 32).

231    The applicants were thus in a position to understand the reasons underlying the Decision and, as is apparent from the foregoing, were able to submit before the Court detailed arguments in respect of each contact in which the Commission found the applicants to have been involved.

232    It must, therefore, be held that the Commission satisfied its obligations under Article 296 TFEU and the fourth part of the first plea must therefore be rejected.

Second plea, raised in the alternative: the setting of the fine is vitiated by errors of fact and of law and by an insufficient statement of reasons

First part: the application of ‘double counting’ to Sony Optiarc’s detriment

239    In any event, it should be borne in mind that, according to point 13 of the Guidelines, in determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates.

240    In determining the amount of fines for infringements of competition law, the Commission must take into account not only the gravity of the infringement and the particular circumstances of the case but also the context in which the infringement was committed and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the European Union (see judgment of 5 April 2006, Degussa v Commission, T‑279/02, EU:T:2006:103, paragraph 272 and the case-law cited).

241    The gravity of infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 241).

242    In addition, the Court has already stated that the Commission is not obliged in each case to ascertain the individual sales which were affected by the cartel. An obligation of that kind has never been imposed by the Courts of the European Union and there is no indication that the Commission intended to assume such an obligation in the Guidelines (judgment of 16 June 2011, Team Relocations and Others v Commission, T‑204/08 and T‑212/08, EU:T:2011:286, paragraph 64).

243    Lastly, it should be recalled that the fact of not benefiting from an infringement cannot constitute a mitigating circumstance, since otherwise the fine would cease to have any deterrent effect (see judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 489 and the case-law cited).

244    In the present case, when the Commission sought to establish the value of the sales of goods to which the infringement directly or indirectly related for the purposes of point 13 of the Guidelines, it was logical for it to use the applicants’ direct sales to Dell as the basis for calculating the amount of the fine.

245    In that regard, the method advocated by the applicants, consisting in deducting from the revenues received by Sony Optiarc from Dell the revenues passed on to Quanta under the revenue-sharing arrangements in force between Sony Optiarc and Quanta during the relevant period in order to avoid ‘double counting’, despite the fact that the applicants explain that they are unable to provide exact figures in that regard, would undermine the effectiveness of the prohibition on cartels, since it would then be sufficient for undertakings to associate themselves with a participant in the cartel in order to reduce the amount of their fine.

246    Moreover, it is apparent from the first plea that the applicants’ conduct did not fundamentally differ from that of the other addressees of the contested decision both as regards the fact of having exchanged information in particular on prices and as regards the frequency of those exchanges.

247    In that regard, the contested decision did not therefore undermine the principles of equal treatment and of proportionality, or the Guidelines.

249    Lastly, as regards the applicants’ argument that, in an earlier decision, the Commission used a calculation method designed to avoid any risk of double-counting of the sales made by the participants in the cartel in question, it is sufficient to recall that the Commission is entitled to address to each undertaking against which an infringement is found a decision recording that infringement and imposing a penalty on it. Arguments based on a comparison of the situation of the addressee of such a decision with the situation of other undertakings (whether or not addressees of the same decision) cannot in any circumstances call into question the legality of the decision in so far as it finds and penalises a duly established infringement (judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 139). That applies all the more, in the present case, given that the decision to which the applicants refer has no direct link with this case.

Intervention  –
Interim measures  –
Order
  1. Dismisses the action;
  2. Orders Sony Optiarc, Inc. and Sony Optiarc America, 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)

If you are interested, please use our Newletter to stay informed about our upcoming conferences, workshops, trainings and current published journals in our core areas of EU competition, data protection, substances and environmental law, as well as exciting new projects in emerging technologies and digitalisation.

Don’t miss any news and sign up for our free news alert.  Sign up now