InnoLux v Commission (Judgment) [2015] EUECJ C-231/14 (09 July 2015)

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(Appeal — Competition — Agreements, decisions and concerted practices — Article 101 TFEU — Article 53 of the EEA Agreement — Worldwide market for liquid crystal display (LCD) panels — Price-fixing — Fines — Guidelines on the method of setting fines (2006) — Point 13 — Determination of the value of sales to which the infringement relates — Internal sales of the goods concerned outside the EEA — Inclusion of sales to third parties in the EEA of finished products incorporating the goods concerned)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 May 2014,

InnoLux Corp., formerly Chimei InnoLux Corp., established in Miaoli County (Taiwan), represented by J.-F. Bellis, avocat, and R. Burton, Solicitor,

European Commission, represented by A. Biolan, F. Ronkes Agerbeek and P. Van Nuffel, acting as Agents, with an address for service in Luxembourg,

composed of M. Ilešič, President of the Chamber, A.Ó Caoimh (Rapporteur), C. Toader, E. Jarašiūnas and C.G. Fernlund, Judges,

having regard to the written procedure and further to the hearing on 4 February 2015,

after hearing the Opinion of the Advocate General at the sitting on 30 April 2015,

1 By its appeal, InnoLux Corp., formerly Chimei InnoLux Corp. (‘InnoLux’), seeks to have set aside in part the judgment of the General Court of the European Union in InnoLux v Commission (T‑91/11, EU:T:2014:92, ‘the judgment under appeal’), by which the General Court, first, varied Commission Decision C(2010) 8761 final of 8 December 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the Agreement on the European Economic Area (Case COMP/39.309 — LCD — Liquid Crystal Displays), a summary of which is published in the Official Journal of the European Union of 7 October 2011 (OJ 2011 C 295, p. 8, ‘the decision at issue’), by setting the fine imposed on InnoLux in Article 2 of that decision at EUR 288 million and, secondly, dismissed the remainder of InnoLux’s action for partial annulment of that decision, in so far as it concerned InnoLux, and for a reduction in the amount of that fine.

2 Article 23(2) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) provides:

‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

For each undertaking … participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.

3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

3 Point 13 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines on the method of setting fines’), entitled ‘Calculation of the value of sales’, provides:

‘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 in the relevant geographic area within the [European Economic Area (EEA)] ...’

4 The facts which gave rise to the dispute and the decision at issue, as set out in paragraphs 1 to 27 of the judgment under appeal, may be summarised as follows.

5 Chi Mei Optoelectronics Corp. (‘CMO’) was the company governed by Taiwanese law that controlled a group of companies established and operating worldwide in the production of liquid crystal display panels (‘LCD panels’).

6 On 20 November 2009, CMO entered into a merger agreement with InnoLux Display Corp. and TPO Displays Corp. By virtue of that agreement, from 18 March 2010 TPO Displays Corp. and CMO ceased to exist. The surviving legal entity changed its name twice, first from InnoLux Display Corp. to Chimei InnoLux Corp. and then to InnoLux, the appellant in the present proceedings.

7 In spring 2006, Samsung Electronics Co. Ltd (‘Samsung’), a company governed by Korean law, submitted to the Commission an application for immunity from fines pursuant to the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3). In doing so, Samsung disclosed the existence of a cartel between several companies, including InnoLux, concerning certain types of LCD panels.

8 On 23 November 2006, the Commission granted conditional immunity to Samsung, in accordance with point 15 of that notice, whilst it refused such immunity to another cartel participant, LG Display Co. Ltd, (‘LGD’), another company governed by Korean law.

9 On 27 May 2009, the Commission initiated the administrative proceedings and adopted a statement of objections addressed to 16 companies, including CMO and two European subsidiaries which were wholly owned by it, namely Chi Mei Optoelectronics BV and Chi Mei Optoelectronics UK Ltd. That statement of objections explained, in particular, the reasons why, applying the case-law of the General Court, those two CMO subsidiaries should be held jointly and severally liable for the infringements committed by CMO.

10 Within the period allowed, the addressees of the statement of objections made known in writing to the Commission their views on the objections raised against them. In addition, a number of the addressees of the statement of objections, including InnoLux, availed themselves of their right to be heard orally during the hearing held on 22 and 23 September 2009.

11 By request for information dated 4 March 2010 and by letter of 6 April 2010, the parties were invited, inter alia, to submit data concerning the value of sales to be taken into account for the calculation of the fines and to comment on that issue. CMO replied to that letter on 23 April 2010.

12 On 8 December 2010, the Commission adopted the decision at issue. That decision was addressed to six of the 16 companies to which the statement of objections was addressed, including InnoLux, LGD and AU Optronics (‘AUO’). By contrast, InnoLux’s subsidiaries were no longer included as addressees.

13 In the decision at issue, the Commission found there to be a cartel among six major international manufacturers of LCD panels, including InnoLux, LGD and AUO, concerning the two following categories of products equal to or greater than 12 inches in size: LCD panels for information technology, such as those for notebooks and PC monitors, and LCD panels for televisions (referred to collectively as ‘cartelised LCD panels’).

14 According to the decision at issue, that cartel took the form of a single and continuous infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) (‘the EEA Agreement’), which took place from 5 October 2001 until at least 1 February 2006. During that period, the participants in the cartel held numerous multilateral meetings, which they called ‘Crystal Meetings’. Those meetings had a clearly anti-competitive object, since they provided an opportunity for the participants, inter alia, to fix minimum prices for cartelised LCD panels, to discuss their future prices in order to avoid price reductions and to coordinate increases in prices and levels of production. During the infringement period, the cartel participants also met bilaterally and frequently exchanged information on matters dealt with in the ‘Crystal Meetings’. They also took steps in order to verify whether the decisions adopted at those meetings had been applied.

15 In setting the fines imposed by the decision at issue, the Commission used the Guidelines on the method of setting fines. In accordance with those Guidelines, the Commission established the value of the sales of the cartelised LCD panels either directly or indirectly concerned by the infringement. To that end, it established the following three categories of sales made by the participants in the cartel:

– the category of ‘direct EEA sales’, which includes sales of cartelised LCD panels to another undertaking within the EEA;

– the category ‘direct EEA sales through transformed products’, which comprises sales of cartelised LCD panels incorporated, within the group to which the producer belongs, into finished products which are then sold to another undertaking within the EEA; and

– the category of ‘indirect sales’, which comprises sales of cartelised LCD panels to another undertaking outside the EEA, which then incorporates the panels into finished products which it sells within the EEA.

16 However, the Commission took the view that it needed to examine only the first two categories mentioned in the preceding paragraph, as the inclusion of the third category was not necessary for the fines imposed to achieve a sufficient level of deterrence.

17 As regards InnoLux, the Commission rejected its complaints, in particular, that the value of relevant sales should have been calculated without taking into account its ‘direct EEA sales through transformed products’.

18 In addition, pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases, the Commission confirmed the total immunity granted to Samsung. By contrast, it took the view that the cooperation provided by InnoLux did not entitle it to any reduction of the fine.

19 Taking into account those considerations, the Commission, in Article 2 of the decision at issue, ordered InnoLux to pay a fine of EUR 300 000 000.

20 By application lodged at the General Court Registry on 21 February 2011, InnoLux brought an action before that court for the annulment in part of the decision at issue and the reduction of the amount of the fine imposed on it under that decision.

21 In support of its application, InnoLux put forward three pleas in law, including the first plea in law, which alleged that the Commission applied a legally flawed concept — that of ‘direct EEA sales through transformed products’ — in determining the value of relevant sales for the calculation of the fine, and the third plea in law, which alleged that the value of relevant sales used by the Commission with regard to InnoLux wrongly included sales other than those relating to cartelised LCD panels.

22 In the judgment under appeal, the General Court upheld the third plea in law and, consequently, in exercising its unlimited jurisdiction, reduced the amount of InnoLux’s fine to EUR 288 000 000. The General Court dismissed the remainder of InnoLux’s action.

Forms of order sought by the parties and the procedure before the Court of Justice

– set aside in part the judgment under appeal, in so far as it dismissed its action for the annulment in part of the decision at issue;

– annul in part the decision at issue and, exercising its unlimited jurisdiction, reduce the amount of the fine imposed on InnoLux, and

– order the Commission to bear the costs incurred before both the Court of Justice and the General Court.

24 The Commission contends that the Court should dismiss the appeal and order InnoLux to pay the costs.

25 Following the delivery of the Opinion of the Advocate General, the Commission, by a document lodged at the Court Registry on 6 May 2015, applied for the oral procedure to be reopened. In support of that application, the Commission argues, in essence, that the Advocate General’s Opinion distorts some of its arguments and borrows passages from the text of the appeal that are misleading and factually incorrect.

26 It must be borne in mind that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for the parties to submit observations in response to the Advocate General’s Opinion (see judgment in Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited).

27 Pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see judgment in Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 29 and the case-law cited).

28 Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment in E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 62).

29 None the less, the Court may at any moment, having heard the Advocate General, order the reopening of the oral procedure under Article 83 of its Rules of Procedure if, inter alia, it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice (judgment in Nordzucker, C‑148/14, EU:C:2015:287, paragraph 24).

30 That is not the position in the present case. Like InnoLux, the Commission set out, both during the written part of the procedure and during the oral part, all its arguments of fact and law in support of its contentions. The Court therefore considers, having heard the Advocate General, that it has before it all the necessary information to give judgment and that that information has been the subject of debate before it.

31 In the light of the foregoing, the Court considers that there is no need to order that the oral part of the procedure be reopened.

32 In support of its appeal, InnoLux puts forward two grounds of appeal. The first ground alleges that the General Court erred in law, in that, for the purposes of calculating the fine, it took into account — in breach of Article 101 TFEU and Article 53 of the EEA Agreement, through recourse to the concept of ‘direct EEA sales through transformed products’ — InnoLux’s internal sales outside the EEA of the goods concerned by the infringement, on the sole basis that those goods were incorporated into the finished products destined for sale to independent third parties in the EEA. The second ground alleges that the General Court erred in law by applying the concept of ‘direct EEA sales through transformed products’ to each of the vertically-integrated cartel participants, thereby failing to observe the principle of non-discrimination.

The first ground of appeal, concerning the inclusion, for the purposes of calculating the fine, of the sales of finished products incorporating the goods concerned by the infringement

33 In the first place, InnoLux complains that, in breach of point 13 of the Guidelines on the method of setting fines, the General Court included InnoLux’s sales in the EEA of finished products — as ‘direct EEA sales through transformed products’ — in the value of sales taken into account in order calculate the fine, whereas those sales do not relate to the infringement, within the meaning of that provision.

34 InnoLux submits that as the infringement found in the decision at issue covers only LCD panels and not the finished products into which they are incorporated, the only sales in the EEA to which the infringement relates, within the meaning of point 13 of the Guidelines on the method of setting fines, are those of LCD panels, whether sold to third parties or supplied intra-group to related customers. Even though an LCD is a component of the finished product, what is being sold is not an LCD panel for incorporation into a finished product but rather the finished product itself. Sales of finished products are not made on the market concerned by the infringement. For that reason, sales of finished products in the EEA cannot restrict competition on the market for LCD panels in the EEA. They therefore fall outside the scope of the finding of infringement set out in the decision at issue.

35 InnoLux further submits that the General Court was wrong to make a distinction between internal deliveries by vertically-integrated cartel participants who form a single undertaking with their related purchaser, corresponding to the category ‘direct EEA sales through transformed products’, and those who do not, corresponding to the category ‘direct EEA sales’. There is no support in the finding of infringement for such a distinction, since that finding encompasses intra-group sales.

36 In that regard, InnoLux submits that the General Court erred in finding, in paragraphs 48 and 49 of the judgment under appeal, that the choice made to take into account ‘direct EEA sales through transformed products’ is all the more justified on the ground that it was clear from the evidence that internal sales of cartelised LCD panels to undertakings participating in the cartel were made at prices affected by the cartel and the cartel participants were aware that the price of cartelised LCD panels affected the price of the finished products into which they were incorporated. Those findings refer to all the parties to the infringement in general. The distinction between intra-group sales which are ‘real’, meaning that they can be counted as such for the calculation of the fine, and those which are not ‘real’, meaning that they are ignored and replaced by ‘real’ sales to third parties in the shape of an LCD panel in a finished product, is therefore completely artificial.

37 In the second place, InnoLux submits that the Commission failed to have regard to the case-law of the General Court resulting from the judgment in Europa Carton v Commission (T‑304/94, EU:T:1998:89), confirmed by the Court of Justice in the judgment in Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363), inasmuch as, instead of treating internal sales exactly as if they were sales to third parties, the Commission applied to some of the addressees of the decision at issue a different criterion to determine the location of their internal sales.

38 InnoLux submits that, in the case of sales of LCD panels to third parties, the criterion used by the Commission is the place of delivery of the LCD panels for incorporation into finished products, regardless of where the finished products are sold. By contrast, in the case of internal deliveries of LCD panels by InnoLux, the criterion used referred to the place of delivery of the finished product into which the LCD panel is incorporated, regardless of where the LCD panels are incorporated into such finished products. The Commission afforded a differential, less favourable treatment to internal deliveries of LCD panels by some of the vertically-integrated addressees of the decision at issue. In fact, since the cartel extended to internal sales as well as sales to third parties the correct application of the judgment in Europa Carton v Commission (T‑304/94, EU:T:1998:89) was to count all deliveries of LCD panels by any cartel participant in the EEA, whether made to third parties or intra-group.

39 In the third place, InnoLux submits that it follows from the judgment in Ahlström Osakeyhtiö and Others v Commission (C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120) that the European Union’s jurisdiction extends, not to every and any sale made in the EEA, but merely to sales made in the EEA of relevant goods to which the concerted action giving rise to the finding of an infringement relates. In the present case, the infringement concerned only LCD panels, not downstream finished products into which they are incorporated. The General Court was therefore wrong to hold, in paragraph 70 of the judgment under appeal, that the judgment in Ahlström Osakeyhtiö and Others v Commission (C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120) enabled account to be taken of the internal deliveries of LCD panels by InnoLux outside the EEA because those LCD panels were incorporated into the finished products by companies belonging to the same undertaking and those products were sold in the EEA by that undertaking.

40 InnoLux also submits that the General Court disregards the test in the judgment in Ahlström Osakeyhtiö and Others v Commission (C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120) when it states, in paragraph 46 of the judgment under appeal, that sales of finished products incorporating LCD panels are ‘harmful to competition within the EEA.’ Those sales of finished products are not made on the EEA market concerned by the infringement. By definition, those sales cannot therefore restrict competition on that market. It is not sufficient to identify ‘sales having a link with the EEA’ in order to establish jurisdiction of the European Union under the test set out in Ahlström Osakeyhtiö and Others v Commission (C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120). What must, however, be shown is the existence of sales in the EEA of the goods concerned by the infringement, namely LCD panels.

41 In the fourth place, InnoLux submits that it is contrary to paragraph 33 of the judgment in Istituto Chemioterapico Italiano and Commercial Solvents v Commission (6/73 and 7/73, EU:C:1974:18) to take the view that internal deliveries of LCD panels to manufacturing facilities in the EEA, as in Samsung’s case, are not sales in the EEA when the finished products into which the LCD panels are incorporated are sold outside the EEA. The view that an internal sale of LCD panels within the EEA restricts competition within the EEA only when the finished product into which the LCD panel is incorporated is sold in the EEA is misconceived.

42 In the fifth place, InnoLux submits that the test used by the Commission and the General Court to identify the place of internal deliveries gives rise to a risk of concurrent penalties and jurisdictional conflict with other competition authorities, in that it may lead to the self-same transaction being subject to a finding of infringement and sanctioned by multiple competition authorities worldwide. Consequently, in the present case, if the Commission imposes a fine in relation to a transaction concerning a component delivered outside the EEA on the ground that a finished product in which that component has been incorporated was sold in the EEA, the self-same transaction may be sanctioned both outside and inside the EEA.

43 The Commission contends that the reasoning which the General Court adopted in order to reject InnoLux’s arguments is not wrong in law. The first ground of appeal is therefore unfounded. In addition, the final argument of that ground of appeal is new and therefore inadmissible, since it is raised for the first time in these appeal proceedings.

44 By its first ground of appeal, InnoLux submits essentially that the General Court erred in law by including in the value of sales taken into account in order to calculate the fine imposed on it — as ‘direct EEA sales through transformed products’ — sales in the EEA of finished products by its wholly-owned subsidiaries situated outside the EEA, after the cartelised LCD panels had been incorporated into those products, even though those sales do not relate to the infringement. In so doing, it is alleged that the General Court disregarded both point 13 of the Guidelines on the method of setting fines and the relevant case-law of the Court of Justice and the General Court as well as the limits of the Commission’s territorial jurisdiction.

45 It must be noted that the second subparagraph of Article 23(2) of Regulation No 1/2003 provides that for each undertaking and each association of undertakings participating in the infringement the fine must not exceed 10% of its total turnover in the preceding business year.

46 As the Court has previously held, the Commission must assess, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by that regulation, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed (judgments in Britannia Alloys & Chemicals v Commission, C‑76/06 P, EU:C:2007:326, paragraph 25; Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 53; and LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 49).

47 In accordance with the Court’s settled case-law, it is permissible, for the purpose of setting 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 goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement (judgments in Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 121; Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 54; and LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 50).

48 According to the Court’s case-law, although Article 23(2) of Regulation No 1/2003 leaves the Commission a discretion, it nevertheless limits the exercise of that discretion by establishing objective criteria to which the Commission must adhere. Thus, first, the amount of the fine that may be imposed on an undertaking is subject to a quantifiable and absolute ceiling, so that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance. Secondly, the exercise of that discretion is also limited by rules of conduct which the Commission has imposed on itself, in particular in the Guidelines on the method of setting fines (judgments in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 55, and LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 51).

49 Point 13 of the 2006 Guidelines states, ‘[i]n 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 in the relevant geographic area within the EEA’. Those Guidelines state, at point 6, that ‘[t]he combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’.

50 Point 13 of the Guidelines on the method of setting fines therefore pursues the objective of adopting, as the starting point for the setting of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it (judgments in Team Relocations and Others v Commission, C‑444/11 P, EU:C:2013:464, paragraph 76; Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 57; and LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 53).

51 Consequently, the concept of the value of sales referred to in point 13 of those Guidelines encompasses the sales made on the market concerned by the infringement in the EEA, and it is not necessary to determine whether those sales were genuinely affected by that infringement, since the proportion of the overall turnover deriving from the sale of goods in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (see, to that effect, judgments in Team Relocations and Others v Commission, C‑444/11 P, EU:C:2013:464, paragraphs 75 to 78; Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraphs 57 to 59; Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraphs 148 and 149; and LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraphs 53 to 58 and 64).

52 In the present case, it is established, as is apparent in particular from paragraphs 73 and 90 of the judgment under appeal, that InnoLux’s sales taken into account for the purposes of setting the amount of the fine for ‘direct EEA sales through transformed products’ were not made on the product market concerned by the infringement, in this case the market for the cartelised LCD panels, but on a different product market, namely the downstream market for finished products incorporating the cartelised LCD panels; those panels had in that case been the subject of internal sales outside the EEA between InnoLux and its vertically-integrated subsidiaries.

53 It is, however, apparent from paragraph 45 of the judgment under appeal that the sales of finished products incorporating the cartelised LCD panels were not taken into account up to their full value, but only up to the proportion of that value which corresponded to the value of the cartelised LCD panels that were incorporated into the finished products, when the latter were sold by the undertaking to which InnoLux belongs to independent third parties established in the EEA. That finding has not been challenged.

54 Contrary to the what InnoLux maintains, the General Court did not err in law in holding, in particular in paragraph 47 of the judgment under appeal, that the Commission could take into account in that manner the sales of finished products in order to calculate the amount of the fine.

55 Admittedly the concept of the ‘value of sales’ referred to in point 13 of the Guidelines on the method of setting fines cannot extend to encompassing sales made by the undertaking in question which in no way fall within the scope of the alleged cartel (see Team Relocations and Others v Commission, C‑444/11 P, EU:C:2013:464, paragraph 76; Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 57; and LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 53). It would, however, be contrary to the goal pursued by Article 23(2) of Regulation No 1/2003 if the vertically-integrated participants in a cartel could, solely because they incorporated the goods the subject of the infringement into the finished products outside the EEA, expect to have excluded from the calculation of the fine the proportion of the value of their sales of those finished products in the EEA that are capable of being regarded as corresponding to the value of the goods the subject of the infringement.

56 As the General Court found in essence in paragraph 71 of the judgment under appeal, and as the Court of Justice has also held, vertically-integrated undertakings may benefit from a horizontal price-fixing agreement concluded in breach of Article 101 TFEU, not only when sales are made to independent third parties on the market for the goods the subject of the infringement, but also on the downstream market in processed goods made up of, inter alia, the goods which are the subject of the infringement, and is so for two different reasons. Either the price increases of the inputs which result from the infringement are passed on by those undertakings in the price of the processed goods, or those undertakings do not pass these increases on, which thus effectively grants them a cost advantage in relation to their competitors which obtain those same inputs on the market for the goods which are the subject of the infringement (judgment in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 60).

57 It follows that the General Court was fully entitled to hold, in paragraphs 70 and 71 of the judgment under appeal that when a vertically-integrated undertaking incorporates the goods in respect of which the infringement was committed into the finished products in its production units situated outside the EEA, the sale by that undertaking of those finished products in the EEA to independent third parties is liable to affect competition on the market for those products and, therefore, such an infringement may be considered to have had repercussions in the EEA, even if the market for the finished products in question constitutes a separate market from that concerned by the infringement.

58 In that regard, the General Court found moreover, in paragraphs 48 and 49 of the judgment under appeal, first, that it is clear from the evidence presented, in particular in recital 394 of the decision at issue, which was not called in question before the General Court, that internal sales of cartelised LCD panels to undertakings participating in the cartel were made at prices affected by the cartel and, secondly, that it is apparent, in particular from recitals 92 and 93 of the decision at issue, that the cartel participants were aware that the price of cartelised LCD panels affected the price of the finished products into which they were incorporated.

59 It should be recalled that, according to the settled case-law of the Court of Justice, the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment in E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 64 and the case-law cited).

60 Although in support of its first ground of appeal InnoLux submits that the evidence relied on in paragraphs 48 and 49 of the judgment under appeal referred not only to vertically-integrated undertakings in respect of which the Commission used the concept of ‘direct EEA sales through transformed products’, but also other cartel participants, possibly all such participants, InnoLux does not allege that the General Court distorted that evidence.

61 In those circumstances, the General Court was fully entitled to find, in paragraphs 46, 70 and 84 of the judgment under appeal, that while not made on the market for the goods concerned by the infringement, the sales of the finished products none the less distorted competition in the EEA in breach of Article 101 TFEU, to the detriment of consumers in particular. The General Court did not therefore err in law in finding, in particular in paragraphs 47 and 87 of that judgment, that the sales of the finished products were related to the infringement in the EEA, within the meaning of point 13 of the Guidelines on the method of setting fines.

62 It should also be pointed out that excluding those sales would have the effect of artificially minimising the economic significance of the infringement committed by a particular undertaking, since the mere fact such sales genuinely affected by the cartel in the EEA are excluded from being taken into account would lead to the imposition of a fine which bore no actual relation to the scope of application of that cartel in that territory (see, by analogy, judgments in Team Relocations and Others v Commission, C‑444/11 P, EU:C:2013:464, paragraph 77; Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 58; and LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 54).

63 In particular, as the General Court found in paragraphs 46, 47, 71 and 74 of the judgment under appeal, to ignore the value of those sales would inevitably give an unjustified advantage to vertically-integrated companies which, like InnoLux, incorporate a significant part of the goods in respect of which the infringement was committed in their production units established outside the EEA, enabling them to avoid the imposition of a fine proportionate to their importance on the market for those goods and the harm which their conduct does to normal competition in the EEA.

64 In that regard, the General Court cannot be criticised for drawing a distinction between the sales made by the cartel participants depending on whether or not they form a single undertaking with the companies incorporating the goods concerned by the infringement into the finished products.

65 According to the settled case-law of the Court, in the context of competition law the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several natural or legal persons (see, in particular, judgments in Hydrotherm Gerätebau, 170/83, EU:C:1984:271, paragraph 11, and Arkema v Commission, C‑520/09 P, EU:C:2011:619, paragraph 37).

66 Consequently, as the General Court was fully entitled to find in paragraph 90 of the judgment under appeal, cartel participants which like InnoLux form a single undertaking, for the purposes of Article 101 TFEU, with the production units which incorporate the goods concerned into the finished products are in an objectively different situation from cartel participants which, like the appellants in the judgment in LG Display and LG Display Taiwan (C‑227/14 P, EU:C:2015:258, paragraphs 46 and 47), form a separate undertaking, for the purposes of that provision, from the undertaking which incorporates the goods. While in the first case the sales of the goods concerned are internal in nature, in the second case those sales are made to independent third-party undertakings. That objective difference in situation therefore justifies treating those sales differently. InnoLux has at no point challenged in these appeal proceedings the findings of the General Court, in particular those in paragraphs 70 and 90 of the judgment under appeal, regarding whether or not cartel participants formed a single undertaking.

67 Admittedly, as InnoLux has argued, in the judgment in Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363, paragraph 59) the Court held, in a context internal to the EEA, that in order to determine the value of sales to be taken into account for the purposes of calculating the amount of the fines imposed for breach of Article 101 TFEU, a distinction should not be drawn depending on whether those sales are to independent third parties or to entities belonging to the same undertaking.

68 It does not, however, follow from that judgment, contrary to InnoLux’s arguments at the hearing before the Court, that internal sales should be treated in the same manner as sales to independent third parties, so that where, for independent third parties, only sales in the EEA were taken into account, likewise only the internal sales in the EEA should be counted in order to calculate the fine.

69 As the General Court held in essence in paragraphs 73 and 74 of the judgment under appeal, from the judgment in Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363) it follows only that the value of sales to be taken into account for the purposes of calculating the fine imposed on a vertically-integrated undertaking must generally encompass all the sales relating to the goods concerned by the infringement in the EEA, including the internal sales of those goods within that undertaking.

70 However, whereas in the present case the internal sales of the goods concerned by the infringement took place within a vertically-integrated undertaking outside the EEA, nothing precludes, for the purposes of setting the fine to be imposed on a cartel participant belonging to that undertaking, account being taken of the sales of finished products by that undertaking in the EEA to independent third parties. On the contrary, as noted in paragraph 56 above, it is apparent precisely from paragraph 60 of the judgment in Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363) that those sales must generally be taken into account since they were inevitably affected by that infringement.

71 In that regard, InnoLux’s arguments concerning the territorial jurisdiction of the Commission are irrelevant.

72 Admittedly, as the General Court noted in paragraph 58 of the judgment under appeal, it is apparent from the case-law of the Court of Justice that when undertakings which are established outside the EEA, but which produce goods that are sold within the EEA to third parties, collude on the prices they charge to their customers in the EEA and put that collusion into effect by selling at prices which are actually coordinated, they are taking part in collusion which has the object and effect of restricting competition within the internal market within the meaning of Article 101 TFEU and which the Commission has territorial jurisdiction to proceed against (see, to that effect, judgment in Ahlström Osakeyhtiö and Others v Commission, C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraphs 13 and 14).

73 In the present case, it not disputed, however, that the Commission had jurisdiction to apply Article 101 TFEU to the cartel at issue, since as is apparent from paragraphs 42 and 66 of the judgment under appeal, the cartel participants, including InnoLux, implemented that worldwide cartel in the EEA by making sales in the EEA of the goods concerned by the infringement to independent third parties.

74 By contrast, the present ground of appeal concerns a separate question, namely the calculation of the amount of the fine to be imposed on InnoLux for that infringement of Article 101 TFEU. In that regard, it is important, in accordance with the case-law referred to in paragraphs 46 to 51 above, to determine the value of sales to be taken into account, so that the amount of that fine reflects the economic importance of the infringement as well as the relative weight of InnoLux in the infringement. As is apparent from paragraphs 52 to 70 above, the General Court was fully entitled to find that the Commission could, to that end, when the internal sales of the goods concerned by the infringement were made by InnoLux outside the EEA, take into account the sales of finished products by it in the EEA to independent third parties.

75 As regards, in that respect, InnoLux’s argument that taking those sales into account in order to calculate the fine imposed for breach of Article 101 TFEU is likely to result in the same anti-competitive conduct giving rise to concurrent penalties imposed by the competition authorities of a non-member State, it must be pointed out that, contrary to the Commission’s contentions, that claim is admissible at the appeal stage in the light of Article 170(1) of the Rules of Procedure of the Court, since it does not change the subject-matter of the proceedings. However, it must be borne in mind that, as the Court has held, neither the principle non bis in idem nor any other principle of law obliges the Commission to take account of proceedings and penalties to which the undertaking has been subject in non-member States (see judgments in Showa Denko v Commission, C‑289/04 P, EU:C:2006:431, paragraphs 52 to 58; SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraphs 28 to 34; and SGL Carbon v Commission, C‑328/05 P, EU:C:2007:277, paragraphs 24 to 35).

76 As regards InnoLux’s claim based on paragraph 33 of the judgment in Istituto Chemioterapico Italiano and Commercial Solvents v Commission (6/73 and 7/73, EU:C:1974:18), it suffices to note that that judgment is of no relevance in the context of the present ground of appeal. This is because, as the General Court was fully entitled to find in paragraph 87 of the judgment under appeal, that judgment concerned not the setting of the fines imposed for breach of the competition rules laid down by the Treaty on the Functioning of the European Union, but the conditions for applying the prohibition of abuse of a dominant position laid down in Article 102 TFEU, in particular the condition relating to the effect on trade between Member States.

77 In the light of the foregoing considerations, the first ground of appeal must be rejected as unfounded.

78 In the first place, InnoLux submits that the distinction drawn by the General Court between vertically-integrated undertakings, depending on whether or not they form a single undertaking with related entities, is not based on any relevant distinction. Thus, in its judgment in LG Display and LG Display Taiwan v Commission (T‑128/11, EU:T:2014:88), in order to reject the argument that the sales of LCD panels to the applicants’ parent companies in that case should be excluded, the General Court did not rely on the fact that the sales in question were made within a single undertaking. On the contrary, at paragraph 89 of that judgment, the General Court found that the sales in question were in fact sales to related parties which came within the scope of the finding of infringement solely by virtue of the fact that intra-group sales were covered by the cartel. From that viewpoint, there is no difference whatsoever between the intra-group deliveries made by the applicants in the judgment in LG Display and LG Display Taiwan v Commission (T‑128/11, EU:T:2014:88) and those made by InnoLux in the present case.

79 InnoLux submits that that distinction also lacks objectivity and coherence. In paragraph 140 of the judgment in LG Display and LG Display Taiwan v Commission (T‑128/11, EU:T:2014:88), the General Court states that ‘wholly-owned subsidiaries were regarded as forming part of the same undertaking as the cartel participants, whereas companies with a shareholding in companies forming part of the cartel were not regarded as parent companies where it was not shown that the conditions laid down in that regard by the case-law were met’. The logic of distinguishing among vertically-integrated companies depending upon whether the relevant sales are made to related subsidiaries rather than related parent companies is difficult to grasp.

80 In the second place, InnoLux submits that the General Court erred in law in relying, in paragraphs 93 and 94 of the judgment under appeal, on the principle of legality in order to reject its arguments based on the principle of equal treatment. It is clear from the judgment in Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others (C‑628/10 P and C‑14/11 P, EU:C:2012:479) that it is only in situations where a party claims the benefit of an illegal method for the calculation of the fine that the principle of legality can be invoked to deny it that benefit. In the present case, however, InnoLux has been deprived of the benefit of a method for calculating the fine that is perfectly legal. Indeed, the method applied to intra-group deliveries of LCD panels by LGD and AUO is that which the General Court and the Court of Justice upheld in the judgment in Europa Carton v Commission (T‑304/94, EU:T:1998:89) and KNP BT v Commission (C‑248/98 P, EU:C:2000:625). The General Court also upheld the legality of that method in the judgment in LG Display and LG Display Taiwan v Commission (T‑128/11, EU:T:2014:88) and therefore contradicts itself in the judgment under appeal.

81 The Commission contends that the present ground of appeal is unfounded and must therefore be rejected.

82 The second ground of appeal, which seeks, in essence, to challenge the distinction between the cartel participants, drawn by the General Court, depending on whether they form a single undertaking with the companies incorporating the goods concerned by the infringement into the finished products must be rejected as unfounded on the same grounds as those set out in paragraphs 64 to 66 above relating to the first ground of appeal.

83 In any event, in so far as the present ground of appeal is directed at paragraphs 93 and 94 of the judgment under appeal, it must be rejected as ineffective, since it relates to grounds included in the judgment purely for the sake of completeness which cannot lead to the judgment being set aside (see, in particular, judgment in 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 148 and the case-law cited).

84 In paragraph 92 of the judgment under appeal, the General Court held — and this is not called into question in the present appeal — that even if the Commission was wrong to have concluded that neither LGD nor AUO formed a single undertaking with the companies related to them, that would be of no benefit at all to InnoLux, since those alleged errors, even if they were established, would not show that the concept of ‘direct EEA sales through transformed products’ is itself erroneous, that concept being defined independently of the cases to which it has or has not been applied. Consequently, since the General Court rejected InnoLux’s arguments on that point as inadmissible on the ground of lack of interest in bringing proceedings, the findings in paragraphs 93 and 94 of the judgment under appeal concerning the merits of those arguments were presented only in the alternative, as is apparent moreover from the expression ‘[i]n any event’ preceding those paragraphs.

85 In the light of the foregoing, the second ground of appeal must be rejected as being in part unfounded and in part ineffective.

86 It follows from all of the foregoing considerations that the appeal must be dismissed in its entirety.

87 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

88 Since the Commission has applied for costs against InnoLux, and the latter has been unsuccessful, InnoLux must be ordered to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> InnoLux v Commission (Judgment) [2015] EUECJ C-231/14 (09 July 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/C23114.html Cite as: EU:C:2015:451, ECLI:EU:C:2015:451, [2015] EUECJ C-231/14

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