2019:522 Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. v European Commission

Court General Court
Date of ruling 12 July 2019
Case name (short version) Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. v European Commission
Case Citation T-8/16

ECLI:EU:T:2019:522

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 procurement events organised by two computer manufacturers — Breach of essential procedural requirements and of the rights of the defence — Jurisdiction of the Commission — Geographic scope of the infringement — Single and continuous infringement — Principle of good administration — 2006 Guidelines on the method of setting fines
Basic context In its judgment in Case T-8/16 Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission, delivered on 12 July 2019, the Tribunal dismissed the application of Toshiba Samsung Storage Technology Corp. and its subsidiary Toshiba Samsung Storage Technology Korea Corp. (‘the applicants’) seeking, principally, annulment of Commission Decision C(2015) 7135 final of 21 October 2015{1} and, in the alternative, a reduction of the amount of the fine imposed on them by that decision on account of an infringement of the rules of competition in the sector of the production and supply of optical disk drives (‘ODDs’).
Points arising – admissibility  –
Points arising – substance Agreements – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Imputation of liability on an undertaking for the entire infringement – Conditions – Infringing practices and conduct forming part of an overall plan – Assessment – Criteria – Common objective pursued by all the participants – Need for complementarity between the practices complained of – Absence

Agreements – Agreements and concerted practices constituting a single infringement – Concept – Criteria – Set of behaviors adopted by different parties pursuing the same anti-competitive economic aim

Acts of the institutions – Statement of reasons – Obligation – Scope – Decision applying the competition rules – Commission decision finding an infringement and imposing a fine

Competition – Administrative procedure – Statement of objections – Provisional nature – Necessary content – Respect for the rights of the defense

Following an administrative investigation initiated upon denunciation, 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, the participants in that prohibited cartel had coordinated their conduct in relation to the tendering procedures organised by the 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 the prices of ODD 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 41 304 000 on the applicants for infringement of Article 101 TFEU and Article 53 of the EEA Agreement.

The applicants put forward several pleas in law in support of their action, alleging, inter alia, infringement of essential procedural requirements and of the rights of the defence, as well as errors of fact and law in determining the geographical scope of the infringement and in finding a single and continuous infringement.

As regards the concept of a single and continuous infringement, the Tribunal recalled that it presupposes a set of conduct adopted by different parties pursuing the same anti-competitive economic aim. It thus follows from the very concept of a single and continuous infringement that such an infringement presupposes a ‘series of conduct or infringements’. The applicants could not therefore claim that the Commission had included an additional legal classification in the contested decision by holding, in addition to the single and continuous infringement identified in the statement of objections, that that infringement was composed of several ‘separate infringements’, since it was precisely those different anti-competitive behaviours which constituted that single infringement.

Furthermore, the Tribunal held that the fact that certain characteristics of the cartel had evolved over time, in particular the inclusion of new participants, the reduction in the number of participants or the enlargement of the cartel to include also Hewlett Packard, could not prevent the Commission from classifying that cartel as a single and continuous infringement since the objective of the cartel had remained unchanged.

{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 Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp.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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