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Gas insulated switchgear

2017-520 Report – Toshiba Corporation v European Commission

Court Court of Justice
Date of ruling 6 July 2017
Case name (short version) Toshiba Corporation v European Commission
Case Citation Case C-180/16 P

ECLI:EU:C:2017:520

Key words Appeal — Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision taken by the European Commission following annulment in part of the initial decision by the General Court of the European Union — Amendment of fines — Rights of the defence — No adoption of a new statement of objections — Equal treatment — Joint venture — Calculation of the starting amount — Extent of contribution to the infringement — Res judicata
Basic context Toshiba Corp. (‘Toshiba’) unsuccessfully appealed the judgment of the General Court of 19 January 2016, Toshiba v Commission (T‑404/12, EU:T:2016:18; ‘the judgment under appeal’), by which the General Court dismissed its action seeking the annulment of Commission Decision C(2012) 4381 of 27 June 2012 amending Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC (now Article 101 TFEU)] and Article 53 of the EEA Agreement to the extent that it was addressed to Mitsubishi Electric Corporation and Toshiba Corporation (Case COMP/39.966 — Gas Insulated Switchgear — Fines) (‘the decision at issue’).
Points arising – admissibility
Points arising – substance  The first ground of appeal, alleging a breach of the rights of the defence in that a new statement of objections was not issued before the adoption of the decision at issue

23      The General Court was consequently entitled to conclude, in the same paragraph of the judgment under appeal, without erring in law, that the content of the 2006 statement of objections may be taken into consideration in assessing whether Toshiba’s rights of defence were respected in the procedure which led to the adoption of the decision at issue, in so far as that content was not called into question in the judgment of the General Court of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343).

24      In that regard, it is to be recalled that the annulment of an EU act does not necessarily affect preparatory measures, since the procedure for replacing the annulled measure may, in principle, be resumed at the very point at which the illegality occurred. The annulment of the act does not, in principle, affect the validity of the measures preparatory to that measure, which were taken before the stage at which the defect was observed. If it is found that the annulment does not affect the validity of the prior procedural measures, the Commission is not, as a result of that annulment alone, required to present the undertakings concerned with a new statement of objections (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraphs 73 to 75 and 80 and 81).

28      It follows that the General Court, in the exercise of its, in principle, exclusive jurisdiction to assess the facts and evidence, found, without Toshiba having invoked any distortion of that evidence, that Toshiba had not shown that the annulment by the judgment of the General Court of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343) of the 2007 decision affected the validity of the 2006 statement of objections and that that was moreover not the case given that the defect identified did not concern the objections raised against Toshiba or the factors to be taken into account when calculating the amount of its fine.

 

31      Although, as is apparent from the foregoing, paragraph 74 of the judgment under appeal is vitiated by an error of law, that does not affect the validity of the judgment under appeal since its operative part is sufficiently well founded on other legal grounds (see, to that effect, inter alia, judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 136).

34      Last, although, in the present case, the Commission, by sending the letter of facts, intended to inform Toshiba of the new elements of the method for determining the amount of its fine which the Commission considered necessary following the partial annulment of the 2007 decision by the judgment of the General Court of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343), and although it is undisputed that Toshiba could state its position both in writing and during a meeting on those elements, as the decision at issue confirms, the fact remains that, by their nature, those elements, under the case-law recalled in paragraph 21 of the present judgment, did not have to be included in a new statement of objections.

35      Having regard to all the foregoing, the first ground of appeal must be rejected.

The second ground of appeal, alleging an infringement of the principle of equal treatment in relation to the starting amount of the fine

51      The General Court, relying in particular on recitals 62 and 66 of the decision at issue, rightly found, essentially for the reasons set out in paragraphs 114 to 117 and 123 to 125 of the judgment under appeal, that the Commission was entitled to infer from the fact that Toshiba had not made any GIS sales during the 2003 reference year that it would be inappropriate to calculate a virtual turnover for that undertaking for that year by artificially dividing up TM T&D’s turnover for 2003 and disregard the fact that that joint venture was active on the market during the reference year as a separate operator from its shareholders.

52      The fact that, in 2003, Toshiba had no turnover of its own in the GIS sector is a factor which objectively differentiates its situation from that of other undertakings that participated in the cartel, in particular the European undertakings, from which it follows that the fine that was imposed on it had to be calculated from the actual turnover achieved by TM T&D in 2003 and not from a virtual turnover obtained by splitting TM T&D’s turnover.

53      As the General Court notes, in paragraph 125 of the judgment under appeal, the approach advocated by Toshiba would essentially amount to departing from the Commission’s intention to take the turnover generated during 2003 as a basis for determining the fines.

The third ground of appeal, alleging an infringement of the principle of equal treatment regarding Toshiba’s level of culpability compared to the European participants in the infringement

75      It is true that, in its appeal against the judgment of the General Court of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343), Toshiba did not challenge paragraphs 258 to 262 of that judgment.

76      Nevertheless, under Article 169 of the Rules of Procedure of the Court of Justice, an appeal is to seek to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision.

77      It follows that, in its appeal against the judgment of the General Court of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343), Toshiba could not challenge the grounds contained in paragraphs 258 to 262 of that judgment without calling into question its operative part in so far as, by that operative part, the General Court had annulled the fine imposed on it.

78      Toshiba cannot be criticised for failing to challenge those grounds in its appeal before the Court of Justice but limiting its appeal to the grounds of the judgment of the General Court of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343) concerning the infringement that was alleged against it.

79      A party cannot be compelled to act against its own interests in order to safeguard its procedural rights, including the right to bring an appeal before the Court of Justice.

80      Thus, in examining, in paragraphs 139 to 141 of the judgment under appeal, the issue of the conformity with the principle of equal treatment of the determination of the amount of the fine imposed on Toshiba in view of the gravity of the infringement alleged against it compared to that found for the European producers, the General Court did not disregard the fact that the judgment of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343) is res judicata.

81      [As rectified by order of 12 July 2017] In paragraphs 141 and 142 of the judgment under appeal, the General Court held, without erring in law, that, given that the participation of the Japanese undertakings in the common understanding was a ‘prerequisite’ for the effective implementation of the EQ Agreement in which only the European undertakings participated and that the Japanese undertakings’ honouring of their commitments therefore made a ‘necessary contribution’ to the functioning of the infringement, it had to be concluded that Toshiba’s contribution to the infringement was comparable to that of the European undertakings.

82      [As rectified by order of 12 July 2017] Furthermore, in paragraph 141 of the judgment under appeal, the General Court referred to paragraph 261 of the judgment of 12 July 2011, Toshiba v Commission (T‑113/07, EU:T:2011:343), in which the General Court also rightly held that, since Toshiba undertook under the common understanding not to operate on the EEA market, its participation also in the EQ Agreement — whose purpose was the sharing of GIS projects on the EEA market — was unnecessary. The fact that Toshiba did not participate in the EQ Agreement was irrelevant and not the result of its choice.

83      [As rectified by order of 12 July 2017] In other words, as the Advocate General noted in point 134 of his Opinion, the General Court correctly held that the fact that Toshiba did not participate in the EQ Agreement was a mere consequence of its participation in the common understanding and thus does not mean that its conduct was less serious than that of the European producers.

84      [As rectified by order of 12 July 2017] In those conditions, Toshiba could not criticise the Commission for not granting it a reduction in the amount of its fine on account of the fact that it did not participate in the EQ Agreement.

Intervention
Interim measures
Order 1.      Dismisses the appeal;

2.      Orders Toshiba Corp. to pay the costs

Fine changed No
Case duration 16 months
Judge-rapporteur Prechal
Advocate-general Tanchev
Notes on academic writings

About the Author

Kiran Desai

Desai Kiran

Kiran S. Desai has over 25 years’ experience of private practice in EU competition law. He is engaged in all aspects of EU competition law, including litigation before the courts and has written extensively on EU competition law matters. He is a partner at HVG advocaten-avocats, based in Brussels, and is the EU Competition Law Leader for EY Law.


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