Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)

29 September 2021 (*)

(Competition – Agreements, decisions and concerted practices – Market for aluminium electrolytic capacitors and tantalum electrolytic capacitors – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Price coordination throughout the EEA – Concerted practice – Exchanges of sensitive business information – Territorial jurisdiction of the Commission – Rights of the defence and right to be heard – Inalterability of the measure – Single and continuous infringement – Restriction of competition by object – 2006 Guidelines on the method of setting fines – Value of sales – Obligation to state reasons – Proportionality – Equal treatment – Gravity of the infringement – Mitigating circumstances – Point 37 of the 2006 Guidelines on the method of setting fines – Unlimited jurisdiction)

In Case T‑363/18,

Nippon Chemi-Con Corporation, established in Tokyo (Japan), represented by H.-J. Niemeyer, M. Röhrig, I.-L. Stoicescu and P. Neideck, lawyers,

applicant,

v

European Commission, represented by A. Cleenewerck de Crayencour, B. Ernst, T. Franchoo, C. Sjödin and L. Wildpanner, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for, primarily, annulment of Commission Decision C(2018) 1768 final of 21 March 2018 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.40136 – Capacitors), in so far as it concerns the applicant, and, in the alternative, annulment of the fine imposed on it by that decision or a reduction in the amount of that fine,

THE GENERAL COURT (Ninth Chamber, Extended Composition),

composed of M.J. Costeira (Rapporteur), President, D. Gratsias, M. Kancheva, B. Berke and T. Perišin, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written part of the procedure and further to the hearing on 23 October 2020,

gives the following

Judgment (1)

I.      Background to the dispute

A.      The applicant and the sector concerned

1        The applicant, Nippon Chemi-Con Corporation, is a company established in Japan, which manufactures and sells aluminium electrolytic capacitors. It also manufactured tantalum electrolytic capacitors until March 2005 and sold them until January 2011, with direct sales invoiced in the European Economic Area (EEA) until February 2005. The applicant owns 100% of the shares in Europe Chemi-Con (Deutschland) GmbH, a company incorporated under German law, and 100% of the shares in United Chemi-Con, a company incorporated under United States law (‘Europe Chemi-Con’ and ‘United Chemi-Con’ respectively; together with the applicant, ‘the Nippon Chemi-Con group’).

2        The infringement at issue concerns aluminium electrolytic capacitors and tantalum electrolytic capacitors. Capacitors are electrical components that store energy electrostatically in an electric field. Electrolytic capacitors are used in almost all electronic products, such as personal computers, tablets, telephones, air conditioners, refrigerators, washing machines, automotive products and industrial appliances. The customer base is therefore very diverse. Electrolytic capacitors, and more specifically aluminium electrolytic capacitors and tantalum electrolytic capacitors, are products in respect of which price is an important parameter of competition.

B.      The administrative procedure

3        On 4 October 2013, Panasonic and its subsidiaries submitted an application for a marker to the European Commission under points 14 and 15 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’), providing information regarding the existence of an alleged infringement in the electrolytic capacitors sector.

4        On 28 March 2014, under Article 18 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), the Commission sent requests for information to a number of undertakings operating in the electrolytic capacitors sector, including the applicant.

5        From 3 to 6 March 2015, the Commission conducted inspections pursuant to Article 20(4) of Regulation No 1/2003 at the premises of Europe Chemi-Con.

6        On 4 November 2015, the Commission adopted a statement of objections which was addressed to, inter alia, the applicant.

7        Between 12 November and 17 December 2015, the addressees of the statement of objections were given access to most of the file by means of an ‘access-to-file DVD’.

8        Following requests for access made by several addressees of the statement of objections concerning customer names that had been redacted from the statement of objections of 4 November 2015, the Commission made available two new DVDs containing the redacted customer names, of which the applicant became aware on 7 March and 27 April 2016.

9        On 4 May 2016, the Commission sent a letter of facts concerning certain aspects of the statement of objections to the addressees of the statement of objections (‘the letter of facts’), which contained, as an annex, a new, non-redacted version of the statement of objections of 4 November 2015 and Annex 1 thereto, and set them a deadline of two weeks to reply, which was later extended to 20 May 2016.

10      On 20 May 2016, the applicant submitted a response to the statement of objections and the letter of facts.

11      The addressees of the statement of objections, including the applicant, were heard by the Commission at the hearing which took place from 12 to 14 September 2016.

C.      The contested decision

12      On 21 March 2018, the Commission adopted Decision C(2018) 1768 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.40136 – Capacitors) (‘the contested decision’).

1.      The infringement

13      By the contested decision, the Commission found that there had been a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement in the electrolytic capacitors sector, in which nine undertakings or groups of undertakings, namely Elna, Hitachi AIC, Holy Stone, Matsuo, NEC Tokin, Nichicon, Rubycon, Sanyo (designating Sanyo and Panasonic) and the applicant (collectively, ‘the cartel participants’) participated (recital 1 and Article 1 of the contested decision).

14      The Commission stated, in essence, that the infringement at issue, covering the whole EEA, had taken place between 26 June 1998 and 23 April 2012 and had consisted of agreements and/or concerted practices that had as their object the coordination of pricing behaviour in relation to the supply of aluminium electrolytic capacitors and tantalum electrolytic capacitors (recital 1 of the contested decision).

15      The cartel was, in essence, organised through multilateral meetings, generally held in Japan every one or two months at senior sales manager level, and every six months at higher management level, including the presidents (recitals 63, 68 and 738 of the contested decision).

16      Initially, between 1998 and 2003, the multilateral meetings were held under the name ‘Electrolytic Capacitor(s) Circle’ or ‘Electrolytic Capacitor Conference’ (‘the ECC meetings’). Subsequently, between 2003 and 2005, they were held under the name ‘Aluminium Tantalum Conference’ or ‘Aluminium Tantalum Capacitors group’ (‘the ATC meetings’). Lastly, between 2005 and 2012, they were held under the name ‘Market Study Group’ or ‘Marketing Group’ (‘the MK meetings’). In parallel with the MK meetings, and complementing those meetings, ‘Cost Up’ or ‘Condenser Up’ meetings (‘the CUP meetings’) were held between 2006 and 2008 (recital 69 of the contested decision).

17      In addition to those multilateral meetings, the cartel participants also engaged in ad hoc bilateral and trilateral contacts when necessary (recitals 63, 75 and 739 of the contested decision) (collectively, ‘the anticompetitive contacts’).

18      In the context of the anticompetitive contacts, the cartel participants, in essence, exchanged information regarding pricing and future pricing, information regarding future price reductions and the ranges for those reductions, and information regarding supply and demand, including information in relation to future supply and demand, and, in some instances, concluded, implemented and monitored price agreements (recitals 62, 715, 732 and 741 of the contested decision).

19      The Commission considered that the cartel participants’ conduct constituted a form of agreement and/or concerted practice which pursued a common objective, namely avoiding price competition and coordinating their future conduct with regard to the sale of electrolytic capacitors, thereby reducing uncertainty on the market (recitals 726 and 731 of the contested decision).

20      The Commission concluded that that conduct had a single anticompetitive aim (recital 743 of the contested decision).

2.      The applicant’s liability

21      The Commission held the applicant liable on account of its direct participation in the cartel from 26 June 1998 to 23 April 2012 (recital 959 and Article 1(g) of the contested decision).

3.      The fine imposed on the applicant

22      Article 2(j) of the contested decision imposes a fine of EUR 97 921 000 on the applicant.

4.      The calculation of the amount of the fines

23      In order to calculate the amount of the fines, the Commission applied the methodology set out in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’) (recital 980 of the contested decision).

24      In the first place, in order to determine the basic amount of the fine imposed on the applicant, the Commission took into account the value of sales during the last full business year of participation in the infringement, in accordance with point 13 of the 2006 Guidelines (recital 989 of the contested decision).

25      The Commission calculated the value of sales using sales of aluminium electrolytic capacitors and tantalum electrolytic capacitors invoiced to customers established in the EEA as a basis (recital 990 of the contested decision).

26      In addition, the Commission calculated the relevant value of sales separately for the two categories of products, namely aluminium electrolytic capacitors and tantalum electrolytic capacitors, and applied separate duration multipliers to each (recital 991 of the contested decision).

27      As regards the applicant, the Commission first of all considered that it was necessary to take into account, as the reference period, the last full business year of participation in the infringement in respect of the value of sales of aluminium electrolytic capacitors, namely 2011/2012, on the one hand, and the last full business year during which the applicant sold tantalum electrolytic capacitors, namely 2003/2004, given that it had stopped selling them before the end of its participation in the infringement, on the other (recitals 34, 989 to 991 and 1007, Table 1, of the contested decision, as well as footnote 1657 thereto).

28      Next, the Commission found that the applicant, through Europe Chemi-Con and United Chemi-Con, had invoiced direct sales of aluminium electrolytic capacitors in the EEA throughout the period of its participation in the infringement (recitals 990 and 998 of the contested decision) and direct sales of tantalum electrolytic capacitors in the EEA until 1 February 2005 (recitals 34 and 1006 of the contested decision).

29      Lastly, the Commission applied to the applicant duration multipliers of 13.82 (corresponding to the period from 26 June 1998 to 23 April 2012) in respect of aluminium electrolytic capacitors and 5.26 (corresponding to the period from 29 October 1999 to 1 February 2005) in respect of tantalum electrolytic capacitors (recital 1007, Table 1, of the contested decision).

30      The Commission set the proportion of the value of sales to be taken into account in order to reflect the gravity of the infringement at 16%. In that regard, it considered that horizontal price coordination ‘arrangements’ were, by their very nature, among the most serious infringements of Article 101 TFEU and Article 53 of the EEA Agreement and that the cartel covered the whole EEA (recitals 1001 to 1003 of the contested decision).

31      The Commission applied an additional amount of 16% under point 25 of the 2006 Guidelines in order to ensure that the fine imposed would have a sufficiently deterrent effect (recital 1009 of the contested decision).

32      Accordingly, the Commission set the basic amount of the fine to be imposed on the applicant at EUR 205 649 000 (recital 1010 of the contested decision).

33      In the second place, as regards the adjustments to the basic amount of the fines, the Commission did not find that there were any aggravating or mitigating circumstances in the applicant’s case (recital 1054 of the contested decision).

34      In the third place, the Commission applied the limit of 10% of the applicant’s total turnover in the preceding business year, as laid down in Article 23(2) of Regulation No 1/2003 (recitals 1057 and 1058 of the contested decision).

35      Accordingly, the Commission set the total amount of the fine to be imposed on the applicant at EUR 97 921 000 (recital 1139, Table 3, of the contested decision).

…

II.    Procedure and forms of order sought

37      By application lodged at the Court Registry on 5 June 2018, the applicant brought the present action.

38      On 19 October 2018, the Commission’s defence was lodged at the Court Registry.

39      The reply and the rejoinder were lodged at the Court Registry on 27 February and 5 June 2019 respectively.

40      On a proposal from the Second Chamber, the General Court decided, pursuant to Article 28 of its Rules of Procedure, to assign the case to a Chamber sitting in extended composition.

41      Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Ninth Chamber (Extended Composition), to which the present case was consequently allocated.

42      On a proposal from the Judge-Rapporteur, the General Court (Ninth Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties, asking them to provide answers at the hearing.

43      The parties presented oral argument and answered the written and oral questions put by the Court at the hearing on 23 October 2020.

44      Following the death of Judge Berke on 1 August 2021, the three Judges whose signatures are affixed to the present judgment continued the deliberations, in accordance with Article 22 and Article 24(1) of the Rules of Procedure.

45      The applicant claims that the Court should:

–        primarily, annul the contested decision in so far as that decision found that the applicant had infringed Article 101 TFEU;

–        in the alternative, annul the fine imposed on it or, in the further alternative, reduce the amount of that fine;

–        order the Commission to pay the costs.

46      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

III. Law

…

B.      Substance

56      In support of its action, the applicant raises six pleas in law in support of both its primary head of claim, seeking annulment of the contested decision, and its alternative head of claim, seeking annulment of the fine imposed on it or a reduction in the amount of that fine.

57      By the first five pleas, the applicant disputes the Commission’s conclusion that there was a single and continuous infringement of Article 101 TFEU in the electrolytic capacitors sector covering the whole EEA over a period of almost 14 years. The first plea alleges infringement of the right to be heard, Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the rights of the defence, and the principle of the inalterability of the measure. The second plea alleges a lack of evidence of the infringement, material errors of fact, and expiry of the relevant limitation period. The third plea alleges that there was not a single and continuous infringement. The fourth plea alleges that there was not an infringement by object. The fifth plea alleges that the Commission lacked territorial jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement in the present case.

58      By its sixth plea, the applicant disputes the fine imposed on it, seeking annulment of the fine or a reduction in the amount thereof. This plea alleges errors in the calculation of the amount of the fine and infringement of the 2006 Guidelines, as well as infringement of the principles of equal treatment and proportionality.

…

1.      The head of claim seeking annulment of the contested decision

…

(a)    The fifth plea in law, alleging that the Commission lacked territorial jurisdiction

71      The applicant submits, in essence, that the Commission erred in concluding, in recital 660 of the contested decision, that it had territorial jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement in the present case on the ground that the anticompetitive conduct had been implemented worldwide, including in the EEA, whereas that conduct was Asia-oriented and was not implemented in the EEA; nor did it have a significant effect there.

72      The Commission disputes those arguments.

73      As regards the territorial applicability of Article 101 TFEU and Article 53 of the EEA Agreement, it should be recalled that the EU competition rule set out in Article 101 TFEU prohibits agreements and practices which have as their object or effect the prevention, restriction or distortion of competition ‘within the internal market’.

74      It should also be noted that the conditions for the territorial application of Article 101 TFEU are satisfied in two situations.

75      In the first place, the application of Article 101 TFEU is justified where the practices it covers are implemented in the territory of the internal market, irrespective of the place where they were formed. If the applicability of prohibitions laid down under competition law were made to depend on the place where an agreement, decision or concerted practice was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions (judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16).

76      In determining whether the place where the cartel was implemented is in the EEA, it is immaterial whether or not the participants in the cartel had recourse to subsidiaries established in the EEA in order to make their contacts with purchasers established there (judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 17). Moreover, that criterion of the implementation of a cartel as a factor linking the latter to EU territory is satisfied by mere sale within the European Union of the product that is the subject of the cartel, irrespective of the location of the sources of supply and the production plants (see judgment of 9 September 2015, LG Electronics v Commission, T‑91/13, not published, EU:T:2015:609, paragraph 149 and the case-law cited).

77      In the second place, the application of Article 101 TFEU is also justified under public international law when it is foreseeable that the practices it covers will have an immediate and substantial effect in the internal market (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11).

78      In the present case, the Commission concluded in recital 660 of the contested decision that it was the competent authority to apply both Article 101 TFEU and Article 53 of the EEA Agreement on the basis of Article 56 of the EEA Agreement, in so far as the cartel’s conduct had been implemented on a global scale, including in the EEA.

79      In that regard, the Commission considered that, first of all, although the cartel participants were undertakings based in Japan and the anticompetitive contacts took place in Japan, those contacts either had a global reach, so that they included the EEA, or directly concerned the EEA. In particular, the connection with the EEA was demonstrated by the fact that the cartel participants, including the applicant, had sold electrolytic capacitors in the EEA during the infringement period. Next, the cartel participants exchanged information concerning customers with headquarters in the EEA or customers with manufacturing plants in the EEA and coordinated their commercial policy, depending in particular on fluctuations in currency exchange rates, including the euro, and increases in the price of raw materials, without any geographical limitation. Lastly, the information exchanged covered all sales, whether in Japan or overseas, and whether the customers were Japanese or foreign (recitals 665 to 672 of the contested decision).

80      It is true that the applicant, on the one hand, disputes the existence of a link between some of the anticompetitive contacts and the EEA, which will be analysed by the Court in connection with the second and third pleas, and, on the other hand, maintains that there was a limited link between the cartel and the EEA, which will be examined in connection with the second, third and sixth pleas.

81      However, the applicant does not deny that the cartel participants, itself included, directly or indirectly sold electrolytic capacitors worldwide, including in Europe, although the applicant claims that sales in that geographical area were very limited and were made by its subsidiaries.

82      It follows that the criterion of the implementation of the cartel as a factor linking it to EU territory is satisfied in the present case and that the infringement referred to in the contested decision therefore falls within the scope of Article 101(1) TFEU. Accordingly, the Commission was fully entitled to find that it had jurisdiction for the purpose of applying Article 101 TFEU and Article 53 of the EEA Agreement.

83      The fifth plea in law must therefore be rejected.

…

(d)    The third plea in law, alleging that there was not a single and continuous infringement

308    By its third plea, the applicant submits, in essence, that the Commission has not established that there was a single and continuous infringement covering all electrolytic capacitors for the entire duration of the alleged infringement.

309    This plea is divided into three parts. The first part alleges failure to demonstrate an overall plan. The second part alleges that there is no evidence of a link of complementarity between the anticompetitive contacts. The third part alleges that the Commission failed to take account of the heterogeneous nature of the capacitor industry, which makes it impossible to establish the alleged infringement.

…

314    In the present case, the Commission considered that the various anticompetitive contacts described in Section 4.3.6 of the contested decision formed part of an overall plan with a single anticompetitive aim. The aim pursued by the parties and transpiring from those exchanges was to avoid price competition and to coordinate their future conduct with regard to the sale of electrolytic capacitors, thereby reducing uncertainty on the market (recitals 730 and 731 of the contested decision).

315    That single anticompetitive aim was pursued through discussions regarding pricing, including future pricing, discussions regarding supply and demand, including future supply and demand (inter alia in relation to production volumes or increases or decreases in shipments) and, in certain cases, regarding the conclusion, implementation and monitoring of price agreements (recitals 62 and 715 of the contested decision).

316    The Commission found that, although the cartel evolved over time, the aim had not changed, since the 113 anticompetitive contacts described in the contested decision had common characteristics as regards the participants and the nature and material scope of the discussions, which overlapped. Thus, the multilateral meetings, held under different names (ECC meetings from 1998 to 2003, ATC meetings from 2003 to 2005, MK meetings from 2005 to 2012 and CUP meetings from 2006 to 2008) were, at different times, attended by the nine cartel participants and related to both aluminium electrolytic capacitors and tantalum electrolytic capacitors. In parallel, bilateral and trilateral contacts took place as required, covering specific issues. The same individuals, or their successors as the case may be, were involved in the anticompetitive contacts (recitals 70 to 75, 726, 732, 741 and 743 of the contested decision).

317    The Commission concluded that the infringement had continued uninterrupted despite changes in the economic situation, changes in the organisational structure of some of the undertakings concerned and changes in the personnel involved in the conduct (recitals 76, 729, 742 and 745 of the contested decision).

(1)    The first part of the third plea, alleging that there was not an overall plan

318    The applicant maintains that the Commission failed to establish that there was an overall plan, since, in essence, in the first place, the Commission failed to prove that each anticompetitive contact had the same single aim, whereas the fact that the CUP meetings used a different ‘mechanism’ from that used in the other meetings demonstrates that the various anticompetitive contacts pursued different aims. In the second place, the description of the overall plan, both in the statement of objections and in the contested decision, is overly vague and imprecise, whereas the concept of an overall plan requires a reference to specific products, to a specific geographical area and to a specific collusive mechanism. In the third place, the evidence relied on by the Commission does not prove that a single anticompetitive aim was pursued throughout the infringement period.

319    The Commission disputes those arguments.

320    In the present case, it should be noted that the evidence set out by the Commission in the contested decision and, in particular, the evidence referred to in paragraphs 314 to 317 above, concerning the common characteristics of the anticompetitive contacts, the ultimate aim of which was the coordination of pricing behaviour, is sufficient, in the light of the requirements stemming from the case-law referred to in paragraphs 150 and 151, as well as paragraphs 310 and 311 above, to demonstrate that they had an identical object and formed part of an overall plan having a single objective.

321    The applicant’s arguments do not call that finding into question.

322    In the first place, it was not necessary for the Commission to ascertain whether each of the various anticompetitive contacts was intended to deal with one or more consequences of the normal pattern of competition and, through interaction, contributed to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of an overall plan having a single objective. It is the set of anticompetitive effects desired by the cartel participants which constitutes the overall plan as envisaged by the case-law referred to in paragraph 313 above.

323    In addition, the applicant does not put forward any concrete evidence to suggest that certain forms of conduct had characteristics indicating that they did not have an identical anticompetitive object and, therefore, that they did not form part of the same overall plan.

324    In that regard, the applicant errs in maintaining that the CUP meetings had a different aim, revealed by the fact that those meetings used a different ‘mechanism’ from that used by the other meetings. It is true that the Commission found that the participants in the CUP meetings had concluded price agreements and had established a system of reporting on the undertakings’ actions for the purpose of monitoring their strategy for price increases (see recital 72 of the contested decision). However, as is apparent from paragraph 315 above, that ‘mechanism’ for monitoring the strategy for price increases was only one of the means of pursuing the ultimate objective of coordinating pricing behaviour. In addition, the Commission also found that that monitoring ‘mechanism’ formed part of an overall strategy according to which the undertakings monitored each other’s behaviour in a general manner and, therefore, also outside the CUP meetings (see recital 716 of the contested decision).

325    Thus, although in the CUP meetings the participants pursued price agreements and a system for monitoring pricing strategy, whereas in other meetings they exchanged information regarding pricing or information regarding supply and demand, the CUP meetings cannot be regarded as pursuing a different aim from that pursued by the other anticompetitive contacts.

326    It follows from the foregoing that the applicant’s argument, according to which the Commission failed to prove that the anticompetitive contacts described in the contested decision had a single aim, in the light of the allegedly different aim pursued by the CUP meetings, must be rejected.

327    In the second place, the applicant claims that the description of the overall plan in the contested decision is ‘overly vague and imprecise’ and is ‘nothing more than a general reference to a distortion of competition in the market’.

328    Admittedly, as is apparent from the case-law cited in paragraph 312 above, the concept of a single objective cannot be determined by a general reference to the distortion of competition in the market concerned by the infringement.

329    However, in the present case, the applicant’s arguments alleging that the statement of objections contains an inadequate description of the overall plan are ineffective. The measure which is the subject of the present action is the contested decision and not the statement of objections, which, moreover, is a purely provisional measure. Although the statement of objections must set forth all the essential facts upon which the Commission is relying at that stage of the procedure, this may be done summarily and the decision is not necessarily required to be a replica of the statement of objections, since that statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature (see judgment of 5 December 2013, SNIA v Commission, C‑448/11 P, not published, EU:C:2013:801, paragraphs 41 and 42 and the case-law cited).

330    Furthermore, contrary to the applicant’s assertions, the description of the overall plan is not ‘vague’ as regards the products, the collusive mechanisms and the markets concerned. All those aspects are clear from the description provided in the contested decision, as summarised in Article 1 of that decision, according to which the infringement at issue, covering the whole EEA, took place between 26 June 1998 and 23 April 2012 and consisted of agreements and/or concerted practices that had as their object the coordination of pricing behaviour in relation to the supply of aluminium electrolytic capacitors and tantalum electrolytic capacitors (see paragraph 14 above).

331    Lastly, it should be noted that the applicant’s arguments in support of a ‘vague’ description of the overall plan are based to a large extent on recitals 767, 769 and 770 of the contested decision, which contain the Commission’s response to the applicant’s arguments set out in its reply to the statement of objections and the letter of facts (see paragraph 10 above). As the Commission contends, the applicant ignores recitals 730 to 743 of the contested decision, which contain the reasons why the Commission concluded that there was an overall plan with a common objective.

332    It is apparent from recitals 730 to 743 of the contested decision, among other recitals referred to in paragraphs 314 to 316 above, that, first, the Commission defined the overall plan as consisting of avoiding price competition and coordinating the future conduct of participants in relation to the sale of aluminium electrolytic capacitors and tantalum electrolytic capacitors, thereby reducing uncertainty on the market. Secondly, the Commission explained how that common objective was pursued and why the anticompetitive contacts described in the contested decision constituted continuous conduct in the pursuit of a single economic aim, within the meaning of the case-law referred to in paragraph 310 above.

333    In the third place, the applicant claims that the evidence relied on by the Commission does not prove that a single anticompetitive aim was pursued throughout the infringement period.

334    In that regard, the applicant’s argument that the Commission relies solely on evidence concerning the ECC and ATC meetings without specifying the underlying aim of the other meetings is directly contradicted by the very wording of the contested decision. The applicant’s argument is essentially based on recital 733 of the contested decision, which does not contain an exhaustive list of the items demonstrating the participants’ aim, but merely refers, by way of ‘example’, to certain items taken from Section 4.3.6 of the contested decision.

335    Section 4.3.6 of the contested decision presents a full chronology of the anticompetitive contacts, with details relating to each multilateral meeting and each bilateral or trilateral contact, as well as an indication, in footnotes, of the evidence relied on by the Commission. In addition, recitals 77 to 105 of the contested decision contain a brief overview of the anticompetitive contacts as regards the dates, places, participants and topics dealt with at the various groups of meetings and contacts. The evidence on which the Commission relied is also set out in the footnotes relating to those recitals.

336    In the light of the foregoing, the applicant’s arguments challenging the accuracy of the statements made by the parties at some of the ATC meetings and relied on by the Commission in recital 733 of the contested decision, inasmuch as those statements do not appear in the minutes of those meetings and do not reflect a broader aim, must also be rejected. The applicant’s reasoning is based on the incorrect assumption that the Commission determined the common objective of the cartel solely on the basis of those statements, whereas they are given by way of example and the Commission’s conclusion regarding that common objective was based on several other factors. Thus, even if the applicant’s line of argument concerning the accuracy of the statements made by the parties at some of the ATC meetings were well founded, it could not call into question the Commission’s conclusion that there was an objective common to all the anticompetitive contacts.

337    As is apparent from the case-law referred to in paragraphs 148 and 149 above, 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. Thus, the items of evidence on which the Commission relies in the contested 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.

…

345    In any event, the absence of an express reference to the EEA during certain meetings does not mean that none of the anticompetitive contacts referred to by the Commission in the contested decision establishes a link with the EEA. In the present case, first, as is apparent from paragraph 271 above, it must be held that there is a body of consistent evidence which is sufficient to infer a link between the contested contacts, taken as a whole, and the EEA. Secondly, the Commission was fully entitled to find that the cartel participants, including the applicant, made direct sales of electrolytic capacitors in the EEA. In that context, in order to demonstrate a link with the EEA, the Commission was not required to show that the applicant made sales in the EEA to all the customers referred to in the anticompetitive contacts.

346    It follows from all of the foregoing that the Commission was fully entitled to conclude that there was an overall plan.

347    The first part of the third plea must therefore be rejected.

…

(3)    The third part of the third plea, based on the heterogeneous nature of the capacitor industry

388    The applicant submits that the heterogeneous nature of the capacitor industry renders collusion across all electrolytic capacitors impossible. The applicant submits, in essence, that the Commission failed to establish to the requisite legal standard the existence of a single and continuous infringement covering all aluminium electrolytic capacitors and tantalum electrolytic capacitors in general. Capacitors are highly diversified products, which are distinguished by a multitude of characteristics and for which, in view of their prevalent supply model, there is no uniform market price. Consequently, the infringement at issue could not cover all sales of electrolytic capacitors to the EEA. The two distinct categories of aluminium electrolytic capacitors and tantalum electrolytic capacitors cover a wide variety of product types, in particular as regards their price and the geographical area concerned. The exchanges of general information which took place during the anticompetitive contacts were insufficient to reduce uncertainty on the market and to facilitate price coordination between competitors, especially since not all types of aluminium electrolytic capacitors and tantalum electrolytic capacitors were the subject of such exchanges.

389    The Commission disputes those arguments.

390    As a preliminary point, it should be noted that the applicant misinterprets the contested decision when it submits that the Commission considered that there was a single and continuous infringement which, taken as a whole, covered all types of aluminium electrolytic capacitors and tantalum electrolytic capacitors.

391    What is apparent from the contested decision, and in particular from recital 736 thereof, is that the Commission found, after examining all the meetings and evidence relating thereto, that all the anticompetitive contacts concerned aluminium electrolytic capacitors or tantalum electrolytic capacitors, or even both, in general.

392    In that regard, it should be borne in mind that the Commission is not required to define the relevant market on the basis of economic criteria. It is the members of the cartel themselves who determine the products which are the subject of their discussions and concerted practices (see, to that effect, judgment of 15 June 2005, Tokai Carbon and Others v Commission, T‑71/03, T‑74/03, T‑87/03 and T‑91/03, not published, EU:T:2005:220, paragraph 90).

393    In addition, the products covered by a cartel are determined by reference to the documentary evidence of actual anticompetitive conduct in respect of specific products (see, to that effect, judgment of 11 December 2003, Adriatica di Navigazione v Commission, T‑61/99, EU:T:2003:335, paragraph 27).

394    It must also be emphasised that the Commission cannot, in that regard, rely on a presumption which is not substantiated by any evidence (see, to that effect, judgment of 28 November 2019, ABB v Commission, C‑593/18 P, EU:C:2019:1027, paragraphs 44 and 45).

395    However, in the present case, first, the Commission stated in the contested decision that it was apparent from the anticompetitive contacts as a whole and, in particular, from the meetings of 29 August 2002, 22 December 2006, 25 June 2008 and 20 December 2010, cited by way of example, that the information exchanged was not limited to certain subtypes of aluminium electrolytic capacitors and tantalum electrolytic capacitors, but covered aluminium electrolytic capacitors and tantalum electrolytic capacitors in general (see recital 796 of the contested decision).

396    Secondly, the information exchanged also related to specific considerations that were nonetheless relevant for the purpose of determining the selling price of the products, such as the increase in raw material costs and the fluctuation of exchange rates, which were not limited to certain subtypes of aluminium electrolytic capacitors and tantalum electrolytic capacitors (see, inter alia, recital 796 of the contested decision, as well as footnotes 1417 and 1418 thereto).

397    Thirdly, the cartel participants had not introduced any limitation in their corporate statements as to the definition of the products covered by the cartel (see recital 797 of the contested decision).

398    Fourthly, most of the representatives of the cartel participants were responsible for the manufacture and/or sale of aluminium electrolytic capacitors and tantalum electrolytic capacitors in general and not for a specific range of capacitors (see recital 798 of the contested decision).

399    In those circumstances, and in the light of the case-law referred to in paragraphs 151 and 392 to 394 above, the Commission cannot be criticised for having considered that, taken as a whole, the information exchanged during the anticompetitive contacts covered all aluminium electrolytic capacitors and tantalum electrolytic capacitors and, therefore, that the single and continuous infringement covered all those products.

400    It follows that the third part of the third plea must be rejected and, accordingly, the third plea in law must be rejected in its entirety.

…

(f)    The sixth plea in law, alleging errors in the calculation of the amount of the fine and infringement of the 2006 Guidelines, as well asinfringement of the principles of equal treatment and proportionality

…

(1)    The first part of the sixth plea, alleging errors in the calculation of the value of sales

…

(ii) The second complaint in the first part of the sixth plea, alleging an error inasmuch as the value of sales includes sales made by the applicant’s subsidiaries

460    The applicant contests, in essence, the fact that the Commission included the sales of the Nippon Chemi-Con group and, in particular, of Europe Chemi-Con, invoiced to all customers established in the EEA, in its calculation of the value of sales. In the first place, the Commission failed to take account of the fact that the applicant did not itself make any sales in the EEA and that the conduct described in the contested decision relates only to very few customers of the Nippon Chemi-Con group. Of the 60 customers mentioned in the contested decision, only 2 are global customers of United Chemi-Com and only 4 are global customers of Europe Chemi-Con. In the second place, the Commission did not take into account that Europe Chemi-Con and United Chemi-Con enjoyed independent pricing authority in relation to their local customers and to global customers headquartered in Europe, that authority being sufficient to rebut the presumption that those subsidiaries, wholly owned by the applicant, were part of the same undertaking. In the third place, the Commission did not establish that the Nippon Chemi-Con group’s sales to its local and global customers were directly or indirectly related to the infringement, or that the infringement had any specific effects in the EEA.

461    The Commission disputes those arguments.

462    It is settled case-law that EU competition law, in particular Article 101 TFEU, refers to the activities of undertakings and the concept of ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see judgments of 10 September 2009, Akzo Nobel and Others v Commission, C‑97/08 P, EU:C:2009:536, paragraph 54 and the case-law cited, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 140 and the case-law cited).

463    On that point, the Court of Justice has stated, first, that the concept of an undertaking, in that context, must be understood as designating an economic unit even if in law that economic unit consists of several natural or legal persons, and, second, that when such an economic entity infringes the competition rules, it is for that entity, consistently with the principle of personal liability, to answer for that infringement (see judgment of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, not published, EU:C:2017:819, paragraph 82 and the case-law cited).

464    As regards, again, the concept of an undertaking, this time in the context of calculating the fine, it must be borne in mind that it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the products in respect of which the infringement was committed, which gives an indication of the scale of the infringement (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 145 and the case-law cited). The proportion of the overall turnover deriving from the sale of products in respect of which the infringement was committed is best able to reflect the economic importance of the infringement (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 149 and the case-law cited).

465    Furthermore, in the specific case where a parent company holds all or almost all of the capital in a subsidiary which has infringed the EU competition rules, there is a rebuttable presumption that that parent company actually exercises a decisive influence over its subsidiary (see judgment of 27 April 2017, Akzo Nobel and Others v Commission, C‑516/15 P, EU:C:2017:314, paragraph 54 and the case-law cited; see also, to that effect, judgment of 10 September 2009, Akzo Nobel and Others v Commission, C‑97/08 P, EU:C:2009:536, paragraph 63). Such a presumption implies, unless it is rebutted, that the actual exercise of decisive influence by the parent company over its subsidiary is established and gives grounds for the Commission to hold the former responsible for the conduct of the latter, without having to produce any further evidence (see judgment of 27 April 2017, Akzo Nobel and Others v Commission, C‑516/15 P, EU:C:2017:314, paragraph 55 and the case-law cited).

466    Admittedly, the presumption that subsidiaries are not autonomous has been developed by the case-law in order to allow the conduct of one legal entity (the subsidiary) to be imputed to another (the parent company). However, that presumption that subsidiaries are not autonomous also applies where, as in the present case, it is a matter of determining the relevant value of sales for the purpose of calculating the basic amount of the fine to be imposed on a parent company which participated directly in the infringement and which, during the infringement period, sold the products covered by that infringement in the EEA through its subsidiaries.

467    In the present case, it is common ground that the applicant owned 100% of the shares in Europe Chemi-Con and 100% of the shares in United Chemi-Con for the entire duration of the infringement (see paragraph 1 above). It follows that the applicant and its subsidiaries constitute a single economic unit and thus form a single undertaking for the purposes of Article 101 TFEU, in accordance with the case-law referred to in paragraph 463 above. It also follows that there is a rebuttable presumption that the subsidiaries concerned were not autonomous.

468    The applicant has not put forward any specific evidence to rebut that presumption of a lack of autonomy and to substantiate the alleged independent pricing authority of its subsidiaries. On the other hand, it follows from the analysis of the second plea that certain customers of Europe Chemi-Con and United Chemi-Con which had their headquarters or manufacturing plants in Europe were discussed during some of the anticompetitive contacts (see paragraphs 249, 280 and 296 above), which, moreover, the applicant itself acknowledges in the application.

469    It must therefore be held that the presumption that the applicant’s subsidiaries were not autonomous has not been rebutted in the present case.

470    In addition, it should be noted that the value of sales relevant to the calculation of the basic amount of the fine must correspond to the value of the ‘undertaking’s’ sales of goods or services to which the infringement directly or indirectly relates in the EEA (see paragraph 434 above). This means that, in the present case, the value of sales must include the sales of aluminium electrolytic capacitors and tantalum electrolytic capacitors made in the EEA by the economic unit formed by the applicant and its wholly owned subsidiaries.

471    Accordingly, the Commission cannot be criticised for having taken into account, when determining the value of the undertaking’s sales to which the infringement directly or indirectly relates, in accordance with point 13 of the 2006 Guidelines, the amount of sales of electrolytic capacitors which the applicant’s subsidiaries invoiced to customers established in Europe (see, to that effect, judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 150).

…

474    The second complaint in the first part of the sixth plea must therefore be rejected.

…

On those grounds,

THE GENERAL COURT (Ninth Chamber, Extended Composition)

hereby:

1.      Dismisses the action;

2.      Orders Nippon Chemi-Con Corporation to bear its own costs and to pay the costs incurred by the European Commission.

Delivered in open court in Luxembourg on 29 September 2021.

[Signatures]

*      Language of the case: English.

1      Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.

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