Philips v Commission (Judgment) [2015] EUECJ T-92/13 (09 September 2015)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

(Competition — Agreements, decisions and concerted practices — Global market for cathode ray tubes for television sets and computer monitors — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Agreements and concerted practices on pricing, market sharing, capacity and production — Single and continuous infringement — Imputability to a parent company of an infringement committed by a joint venture — Equal treatment — Method of calculating the fine — Taking into account the value of sales of cathode ray tubes through transformed products — Taking into account the average value of sales recorded during the infringement — Taking into account the overall turnover of the group — Proportionality — Duration of the administrative procedure)

Koninklijke Philips Electronics NV, established in Eindhoven (Netherlands), represented by J. de Pree and S. Molin, lawyers,

European Commission, represented initially by C. Hödlmayr, M. Kellerbauer and P. Van Nuffel, subsequently by M. Kellerbauer, P. Van Nuffel and A. Biolan, and lastly by M. Kellerbauer, P. Van Nuffel and V. Bottka, acting as Agents,

APPLICATION for annulment in part of Commission Decision C(2012) 8839 final of 5 December 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.437 — TV and Computer Monitor Tubes) and, in the alternative, annulment or reduction of the fines imposed on the applicant,

composed of S. Papasavvas (Rapporteur), President, N.J. Forwood and E. Bieliūnas, Judges,

having regard to the written procedure and further to the hearing on 12 November 2014,

1 The applicant, Koninklijke Philips Electronics NV, is the parent company of the Philips group, which specialises in electronic products and, in particular, in health care, lighting and consumer electronics. Until 1 July 2001 the group produced, inter alia, cathode ray tubes (‘CRTs’).

2 A CRT is an evacuated glass envelope containing an electron gun and a fluorescent screen, usually with internal or external means to accelerate and deflect the electrons. When electrons from the electron gun strike the fluorescent screen, light is emitted, creating an image on the screen. At the material time, there were two types of CRT, namely colour display tubes for computer monitors (‘CDTs’) and colour picture tubes for television sets (‘CPTs’). CDTs and CPTs are individual components which are combined with a chassis and other essential components to produce a television or a computer monitor. They come in a number of different sizes (small, medium, large and jumbo), expressed in inches.

3 By an agreement concluded on 11 June 2001, and effective from 1 July 2001 (‘the joint venture agreement’), the applicant and LG Electronics, Inc. merged their worldwide CRT activities in a joint venture, the LPD group, headed by LG Philips Displays Holding BV (‘LPD Holding’). The applicant thus transferred its entire CRT business (CRTs and components for CRTs) to the LPD group.

4 On 1 July 2001 the shares in the LPD group were held by the applicant and its wholly owned German subsidiary Philips GmbH, namely a total of 50% plus one share for the Philips group, and also by LG Electronics and its wholly owned subsidiary LG Electronics Wales Ltd, namely a total of 50% minus one share for the LGE group. From the second quarter of 2004, 50% of the shares plus one share were owned by the applicant and 50% minus one share by LG Electronics Wales (‘LGE’).

6 On 9 March 2007, Chunghwa Picture Tubes Co. Ltd, which manufactured and sold CRTs, applied to the Commission of the European Communities for a marker, within the meaning of point 15 of the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’). Then, on 23 March 2007, it lodged an oral request for immunity from fines under the Leniency Notice.

7 On 27 November 2007 the applicant submitted a leniency application in accordance with the Leniency Notice.

8 On 23 November 2009 the Commission adopted a statement of objections addressed to the applicant, as well as to Chunghwa Picture Tubes Co., Chunghwa Picture Tubes (Malaysia) Sdn. Bhd and CPTF Optronics Co. Ltd (together ‘Chunghwa’), Samsung SDI Co. Ltd, Samsung SDI Germany GmbH, Samsung SDI (Malaysia) Bhd, LG Electronics Inc., PT LG Electronics Indonesia Ltd, LG Electronics European Holding BV, Thomson SA, Panasonic Corp., Toshiba Corp., [confidential], (1) [confidential] and MT Picture Display Co. Ltd (‘MTPD’).

9 On 1 June 2012 the Commission adopted two additional statements of objections in order to supplement, amend and clarify the objections addressed to the applicant and LGE concerning their respective liability for the CDT and CPT infringements, both before and after the creation of the LPD group.

10 By Decision C(2012) 8839 final of 5 December 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.437 — TV and Computer Monitor Tubes) (‘the contested decision’), the Commission found that the main global producers of CRTs had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) (‘the EEA Agreement’) by participating in two separate infringements, each constituting a single and continuous infringement. Those infringements related, first to the CDT market (‘the CDT cartel’) and, secondly, to the CPT market (‘the CPT cartel’), and took the form of agreements and concerted practices between CRT producers in order to fix prices, to share markets and customers by allocating sales volumes, customers and market shares, to restrict production, to exchange sensitive commercial information and to monitor the implementation of collusive agreements.

11 As regards, first, the CPT cartel, the Commission found that the participants had agreed on target prices or bottom prices for various CPT sizes, that they had made efforts to maintain a price gap between identical products marketed in Europe and in Asia and that they had closely monitored the pricing arrangements. The participants also entered into agreements defining which producer would communicate a price increase to which customer. Moreover, the CPT producers agreed on their respective market shares and agreed on coordinated output restrictions with a view to reducing supply and increasing or maintaining prices. In addition, they exchanged commercially sensitive information concerning planned production and capacity, sales made and planned, arrangements relating to future demand, pricing and price strategy, general sales conditions, customers and also negotiations on price and volumes with customers.

12 In recitals 123 and 124 to the contested decision, the Commission stated that, after an initial period during which CPTs had been discussed in the same meetings as those relating to CDTs, in the autumn of 1998 regular multilateral meetings called ‘CPT glass meetings’ began to be held in Asia (‘the Asian glass meetings’) between the Asian undertakings Chunghwa, Samsung, LGE, [confidential] and [confidential], on a monthly or quarterly basis, while in addition frequent bilateral contacts and information exchanges took place between producers worldwide. Then, from 1999, the Asian undertakings made efforts to enlarge the circle of members of the CPT cartel in order to include all the main Asian producers and also the European producers. They were thus joined by [confidential], Matsushita Electric Industrial Co. Ltd (‘MEI’), the applicant, Thomson and Toshiba. The participation of the applicant and Thomson, was proved from the time when the Commission launched, in the spring of 1999, an anti-dumping procedure concerning the import of 14-inch CPTs from Asia. From that date, evidence also shows that multilateral meetings were held in Europe (‘the European glass meetings’). Furthermore, in 2002-2003, the Asian glass meetings changed form and were then organised on two platforms for CPT producers based in Asia and consisting, first, of meetings between Samsung, MTPD and the LPD group, called ‘SML meetings’, which concerned medium-sized and large CPTs, and, secondly, south-east Asian meetings between Samsung, the LPD group, MTPD, Chunghwa and [confidential], called ‘ASEAN meetings’, concerning small and medium-sized CPTs.

13 The Commission observed that, although the European CPT-related glass meetings were organised and held separately from the Asian glass meetings, the subsidiaries of the same undertakings and occasionally the same individuals had taken part in those meetings with competitors both in Europe and in Asia. Thus, the Commission considered that the European and Asian meetings were interconnected, since the same topics were discussed and the same type of information exchanged, in spite of the fact that the documents relating to the meetings did not describe any joint central organisation. In that regard, the Commission stated that the European glass meetings were an extension of the Asian glass meetings and that they focused more particularly on market conditions and prices in Europe, whereas the contacts established in the context of the cartel in Asia were of a global nature and therefore also concerned Europe. Furthermore, the agreements relating to the European market were concluded in meetings that took place both in Europe and in Asia and the prices applied were regularly followed, the Asian prices being used as a proxy when the European price level was discussed.

14 As regards, secondly, the CDT cartel, the Commission considered that the parties had agreed on target prices, on the reasons to be given to customers to explain price increases and, in addition, on which producer would communicate such an increase to which customer. Evidence dating from the material time also suggests that increases in CDT prices were sometimes passed on to the downstream market of production of computer monitor tubes. The CDT producers participating in the cartel also entered into agreements relating to market shares. In that context, they agreed that a particular producer would sell its products to a particular customer. In addition, CDT producers agreed on coordinated output restrictions, with a view to reducing oversupply and achieving target prices and the desired market shares. In addition, the participants in the CDT meetings set up a process to monitor compliance with the agreed output restrictions. Furthermore, exchanges of detailed information on past and future pricing, capacity, output and demand formed a large part of the illicit contacts between CDT producers. Those exchanges of information served both to monitor past agreements and to jointly plan future prices, output, market shares and customer allocation.

15 The Commission considered that the multilateral meetings, which were shown to have taken place from 1997 and which became regular and more formalised from 1998, were the cornerstone of the CDT cartel. The meetings were called ‘five compan[ies]’ meetings, since Chunghwa, Samsung, LGE, the applicant and [confidential] regularly took part in them, or ‘CDT glass meetings’. The Commission considered that, from 1998, a three-tier construction had been put in place, consisting of top meetings (also called ‘green meetings’, usually held quarterly, between individuals from the highest levels of the undertakings), management level meetings (monthly meetings conducted by senior sales executives) and working level meetings (in which local sales managers and regional sales managers participated). The CDT producers also maintained frequent bilateral contacts. The Commission noted that, following the transfer of LGE’s and the applicant’s CRT business to the LPD group on 1 July 2001, the core of the cartel at issue had reformed around Chunghwa, Samsung, the LPD group and [confidential] and that, from 2003, the number of core members stabilised at three participants, namely Chunghwa, Samsung and the LPD group. In that respect, contacts with Japanese competitors, in particular MEI, Toshiba and [confidential], were a specific feature of the CDT cartel.

16 As regards, thirdly, the applicant’s involvement in the cartels in question, the Commission considered that the applicant’s subsidiaries had participated in the CDT and CPT cartels until the CRT business was transferred to the LPD group, on 1 July 2001. Consequently, the applicant was held liable, as parent company, for the infringements committed by its subsidiaries between 29 January 1997 and 30 June 2001, as regards CDTs, and between 29 September 1999 and 30 June 2001, as regards CPTs. Furthermore, the Commission considered that, from 1 July 2001, the applicant and LGE should, as parent companies, be held jointly and severally liable for the LPD group’s participation in the CDT and CPT cartels between 1 July 2001 and 30 January 2006.

17 Articles 1 to 3 of the operative part of the contested decision read as follows:

1. The [undertakings at issue] infringed Article 101 [TFEU] and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous complex of agreements and concerted practices in the [CDT sector]:

2. The [undertakings at issue] infringed Article 101 [TFEU] and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous complex of agreements and concerted practices in the [CPT sector]:

(f) Koninklijke Philips Electronics ..., from 21 September 1999 until 30 January 2006;

1. For the infringement referred to in Article 1(1), the following fines are imposed:

(e) Koninklijke Philips Electronics … and LG Electronics …, jointly and severally liable: EUR 69 048 000;

2. For the infringement referred to in Article 1(2), the following fines are imposed:

(e) Koninklijke Philips Electronics … and LG Electronics …, jointly and severally liable: EUR 322 892 000;

The undertakings listed in Article 1 shall immediately bring to an end the infringements referred to in that Article in so far as they have not already done so.

They shall refrain from repeating any act or conduct described in Article 1, and from any act or conduct having the same or similar object or effect.’

18 By application lodged at the Court Registry on 15 February 2013, the applicant brought the present action.

19 The composition of the Chambers of the Court was altered and the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was therefore assigned.

20 Upon hearing the Report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral part of the procedure.

21 The parties presented oral argument and answered the questions put by the Court at the hearing on 12 November 2014. At the hearing, the parties were asked to submit any observations on the judgment of the Court of Justice in Case C‑580/12 P Guardian Industries and Guardian Europe v Commission [2014] ECR, within 10 days of the date of delivery of that judgment. That period was extended to 28 November 2014, at the request of the parties.

22 By two letters lodged at the Court Registry on 28 November 2014, the applicant and the Commission complied with that request.

24 By order of 26 May 2015, the Court decided to reopen the oral part of the procedure pursuant to Article 62 of the Rules of Procedure of 2 May 1991.

25 In the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the General Court asked the parties to submit any observations on the Opinion of Advocate General Wathelet in Case C‑231/14 P InnoLux v Commission [2015] ECR. The parties complied with that request within the prescribed period. The parties subsequently submitted their observations on the responses provided in the context of that measure of organisation of procedure and, in particular, on the calculation and the amount of the fines.

29 It is appropriate to examine, first of all, the claims whereby the applicant seeks annulment of the contested decision in so far as it relates to the applicant and, subsequently, the claims whereby it requests the Court to exercise its unlimited jurisdiction and vary, by annulling or reducing, the fines imposed on the applicant by the Commission.

30 In support of those claims, the applicant puts forward, in essence, the following eight pleas in law:

– infringement of Article 101 TFEU and Article 53 of the EEA Agreement and breach of the principle of legal certainty, in that the Commission held the applicant liable for infringements alleged to have been committed by the LPD group;

– infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 27(1) 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) and breach of the rights of the defence, including the right to be heard and the principle of sound administration, in that the Commission did not attribute liability to the LPD group for the infringements which it is alleged to have committed;

– breach of the principle of equal treatment and of the obligation to state reasons, in that the Commission applied different standards to undertakings subject to the same proceedings;

– infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 7, Article 23 and Article 25 of Regulation No 1/2003, in that the Commission held the applicant liable for alleged infringements committed before 1 July 2001 even though they were time-barred, and breach of the principles of legal certainty and of the protection of legitimate expectations, in that the Commission imposed fines on the applicant for infringements committed by the LPD group;

– infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 23 of Regulation No 1/2003 and breach of 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’) and of the principle of equal treatment, in that the Commission included sales made outside the EEA in the turnover relevant for the purpose of calculating the basic amount of the fines;

– infringement of Article 23 of Regulation No 1/2003 and breach of the 2006 Guidelines, in that the Commission did not calculate the relevant turnover on the basis of the last full year of participation in the alleged infringements;

– infringement of Article 23 of Regulation No 1/2003, in that the Commission did not apply the limit of 10% of turnover to the LPD group for the fines imposed in respect of the infringements allegedly committed by that group;

– first, breach of the obligation to state reasons, of the principle of equal treatment and of the principle of sound administration and a manifest error of assessment, in that the Commission did not establish the existence of a single economic unit with regard to Samsung Electronics Co. Ltd (‘SEC’) and Samsung SDI Co. Ltd, and, secondly, infringement of Article 27 of Regulation No 1/2003 and Article 15 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18) and breach of the rights of the defence, in that the Commission did not give the applicant access to the documents in the investigation relating to the economic, legal and organisational links between SEC and Samsung SDI Co.

First plea in law, alleging infringement of Article 101 TFEU and Article 53 of the EEA Agreement and breach of the principle of legal certainty, in that the Commission held the applicant liable for infringements alleged to have been committed by the LPD group

31 This plea in law is composed of two parts, alleging, first, infringement of Article 101 TFEU and Article 53 of the EEA Agreement and, secondly, breach of the principle of legal certainty.

– The first part, alleging infringement of Article 101 TFEU and Article 53 of the EEA Agreement

32 The applicant claims, in essence, that the Commission infringed Article 101 TFEU and Article 53 of the EEA Agreement by holding the applicant liable for infringements alleged to have been committed by the LPD group whereas the latter was a full-function joint venture and the applicant did not exercise decisive influence over the LPD group’s conduct.

33 In the first place, the applicant submits that a full-function joint venture is an autonomous economic entity and cannot be regarded as constituting a single economic entity with one of its parent companies, or indeed both of them.

34 In that respect, it should be pointed out that, according to settled case-law, the conduct of a subsidiary can be imputed to its parent company, in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (judgment of 26 September 2013 in Case C‑172/12 P EI du Pont de Nemours v Commission, not published in the ECR, paragraph 41 and the case-law cited).

35 In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (EI du Pont de Nemours v Commission, cited in paragraph 34 above, paragraph 42).

36 It must also be noted that, in order to be able to impute the conduct of a subsidiary to the parent company, the Commission cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised (EI du Pont de Nemours v Commission, cited in paragraph 34 above, paragraph 44).

37 The Court of Justice has also held that, where two parent companies each have a 50% shareholding in the joint venture which committed an infringement of the rules of competition law, it is only for the purposes of establishing liability for participation in the infringement of that law and only in so far as the Commission has demonstrated, on the basis of factual evidence, that both parent companies did in fact exercise decisive influence over the joint venture, that those three entities can be considered to form a single economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU (EI du Pont de Nemours v Commission, cited in paragraph 34 above, paragraph 47).

38 The applicant states that, in order to attribute liability to the applicant for the LPD group’s conduct, the Commission should have established, first of all, that that group was not in fact a full-function joint venture, which the Commission failed to do in the present case.

39 In that respect, it must be pointed out that it is clear from the case-law cited in paragraphs 34 to 37 above that the fact that the LPD group was a full-function joint venture with a separate legal personality does not suffice, by itself, to exclude the possibility that its conduct may be attributed to its parent companies. Accordingly, the fact that the Commission did not seek to prove that the LPD group did not constitute a full-function joint venture has no effect on the lawfulness of the contested decision, with the result that that complaint must be rejected.

40 In the second place, the applicant submits that the Commission did not prove that it had exercised, with LGE, a decisive influence over the LPD group’s conduct.

41 In that respect, it must be pointed out that the Court of Justice has held that in order to determine whether a parent company exercises a decisive influence over its subsidiary’s conduct on the market, account must be taken of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, to that effect, Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 74, and Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 58).

42 Moreover, in the case-law, the analysis of the existence of a single economic entity among a number of companies forming part of a group involves consideration of whether the parent company has influenced the pricing policy of its subsidiary, production and distribution activities, sales objectives, gross margins, sales costs, cash-flow, stocks and marketing (see judgment of 12 December 2012 in Case T‑392/09 1. garantovaná v Commission, not published in the ECR, paragraph 31 and the case-law cited).

43 In addition, having regard to the fact that, under Article 263 TFEU, the Court must confine itself to a review of the legality of the contested decision on the basis of the reasons set out in that measure, the question whether a parent company actually exercises management power over its subsidiary must be assessed solely by reference to the evidence assembled by the Commission in the decision which attributes liability for the infringement to the parent company. Accordingly, the only relevant question is whether or not the infringement is proved in the light of that evidence (see Case T‑132/07 Fuji Electric v Commission [2011] ECR II‑4091, paragraph 185 and the case-law cited).

44 In the present case, in order to determine whether the applicant and LGE had exercised a decisive influence over the LPD group, the Commission relied, first of all, on the structural and organisation links between the LPD group and its parent companies. It then noted that the joint venture agreement included provisions establishing mutual preferential treatment between that joint venture and its parent companies as well as a non-competition clause. Lastly, it emphasised that the parent companies had not only fulfilled the role of shareholders, but also that of advisors of the LPD group and that it was unlikely that those companies were unaware of the LPD group’s involvement in the infringements in question, in view of their participation in the cartels before the creation of that group.

45 As regards the structural and organisational links between the LPD group and its parent companies, the Commission rightly pointed out that, according to the joint venture agreement, the governance structure of that group consisted of a general meeting of shareholders, a shareholders’ committee, a supervisory board, a board of management and a group management team, renamed ‘executive board’ by an amendment to that agreement dated 10 September 2002.

46 In addition, Article 6.3.1 of the joint venture agreement stipulated that the supervisory board supervised the management, direction and control of the joint venture and that it was responsible for providing strategic guidance to the executive board and for reviewing and providing final approval for the plans proposed by the executive board. The supervisory board was composed of six members, none of whom was to be an executive of the LPD group, and each parent company was responsible for nominating half of its members. It can be seen from Article 6.3.4 of that agreement that the meetings of the supervisory board were held at least once per quarter and that the agenda had to include a certain number of important matters, such as review and adjustments to rolling, quarterly budgets, extraordinary capital expenditure and any other matters requested by a member of the supervisory board. Lastly, Article 6.3.6 of the joint venture agreement stipulated that resolutions of the supervisory board were made by the affirmative vote of the majority or supermajority of its members. Thus, the adoption of a decision concerning a matter attributed to the supervisory board required an affirmative vote of at least one member nominated by each of the parent companies.

47 At the operational level, the group was managed by a board of management and a group management team which was renamed ‘executive board’, as indicated in paragraph 45 above.

48 According to Article 6.3.7 of the joint venture agreement, the board of management was responsible for the day-to-day management of the LPD group and was subject to the supervision, control and direction of the supervisory board. As the Commission rightly noted, the board of management consisted of six managing directors, each parent company appointing half of them.

49 In addition, the executive board of the LPD group was responsible for supervising the day-to-day management of the joint venture, including the control and implementation of all matters set out in each quarterly budget reviewed and authorised by the supervisory board, and had the authority to make decisions and to take actions in all matters that were not expressly reserved, by law or by the joint venture agreement, to other bodies including, in particular, the board of management and the supervisory board. The amendment of 10 September 2002 stated in particular that during the first five years of its implementation, the applicant would designate the chief executive officer (CEO) of the joint venture’s executive board and that LGE would designate the deputy CEO. Likewise, the parent companies jointly appointed the members occupying the key roles, namely the chief financial officer, the chief operating officer and the chief sales officer, and the other members of that board were proposed by the CEO and the deputy CEO and appointed by the supervisory board.

50 It follows from the foregoing that the LPD group was organised in such a way that its shareholders were in a position to control the adoption of strategic commercial decisions, the drawing up of operational and strategic plans as well as the supervision of the day-to-day management and to be informed of the operation of the group. Accordingly, in the circumstances of the present case, the abstract analysis of the provisions of the joint venture agreement constitutes prima facie evidence that the parent companies actually exercised decisive influence over the LPD group’s conduct. In that respect, it is apparent from the case-law that the examination of whether decisive influence has actually been exercised over the commercial conduct of the joint venture may consist in an abstract analysis of the documents signed before it began to operate, along the lines of an analysis of control. In particular, where those provisions and terms state that the votes of each parent company were necessary for the adoption of a resolution within a body of the joint venture, the Commission and the Court may establish, in the absence of evidence to the contrary, that those resolutions were determined jointly by the parent companies (Case T‑541/08 Sasol and Others v Commission [2014] ECR, paragraph 49).

51 That finding is supported by the other evidence invoked by the Commission in order to establish the existence of a decisive influence.

52 First, whereas it is apparent from the assessment of the provisions of the joint venture agreement, set out in paragraphs 46 to 49 above, that the supervisory board had a pre-eminent role in the structure of the LPD group, it can be seen from recitals 840 and 843 to the contested decision that several members of that board simultaneously held management positions within the applicant, which, moreover, the applicant does not essentially dispute. Accordingly, it can be seen from recital 840 to the contested decision that, from 29 June 2001 to 7 March 2006, that is to say during the period covered by the cartel, the members of the LPD group’s supervisory board appointed by the applicant simultaneously held management positions within the parent company, such as a member of the Philips group management committee and president of that group’s Consumer Electronics Division, a member of the board of management and chief technical officer of the Philips group as well as chief executive officer of Philips Research, a chief operating officer of the Consumer Electronics Division, a chief executive officer of Philips’ Business Group Connected Displays, or a chief financial officer and vice-president of the Philips group’s Components Division. According to the case-law, the extent of the parent company’s involvement in the management of its subsidiary may indeed be proved by the presence, in leading positions of the subsidiary, of many individuals who occupy managerial posts within the parent company. Such an accumulation of posts necessarily places the parent company in a position to have a decisive influence over its subsidiary’s market conduct since it enables members of the parent company’s board to ensure, while carrying out their managerial functions within the subsidiary, that the subsidiary’s course of conduct on the market is consistent with the line laid down at management level by the parent company. That objective can be attained even though member(s) of the parent company who take on managerial functions within the subsidiary do not have authority as agents of the parent company (see, to that effect, Fuji Electric v Commission, cited in paragraph 43 above, paragraph 184). In those circumstances, the presence on the joint venture’s supervisory board of several persons simultaneously carrying out managerial functions within the parent company is further evidence of the decisive influence exercised by the applicant over the LPD group’s commercial policy.

53 Secondly, it can be seen from recital 832 to the contested decision that, when the supervisory board met between 27 October 2001 and 12 January 2006, that is to say during the period covered by the infringements at issue, the supervisory board discussed, inter alia, matters relating to market developments, sales, sales prices, volume of stocks, investments in new products and the necessary reorganisations. The applicant claims that those matters concerned solely the LPD group’s financial soundness. On that point, it must be recalled that it is clear from the case-law cited in paragraph 42 above that the existence of a single economic entity among a number of companies may be shown by the influence exercised by the parent company over the pricing policy of its subsidiary, sales objectives, sales costs and stocks. Accordingly, the facts mentioned in recital 832 to the contested decision, which, moreover, are not disputed by the applicant, indicate that, when it met, the supervisory board did not limit its discussions to matters concerning the finances of the LPD group, but also examined matters relating to the commercial policy of that group. In those circumstances, the Commission was correct in noting, in recital 837 to the contested decision, that that circumstance showed that the supervisory board’s role was not limited to the tasks normally carried out by that type of body, but also allowed it to approve the major management decisions and to set the direction of the joint venture’s business.

54 Thirdly, it can also be seen from recital 832 to the contested decision that the supervisory board indeed took decisions which showed its influence on the operation and organisation of the LPD group. Thus, the supervisory board decided to change the organisational structure of that group by replacing the group management team by the executive board. It also decided to discontinue the management of the group on a regional basis and implemented central management. The supervisory board’s involvement in the structure of the LPD group is a relevant element in the assessment of the economic, organisational and legal links between a joint venture and its parent company. Moreover, although the applicant submits that the decisions of the supervisory board cannot be equated to decisions of the shareholders, the effectiveness of that argument, even were it established, is severely reduced by the method of appointment and the actual composition of the supervisory board as indicated in paragraphs 46 and 52 above.

55 Fourthly, it must be pointed out that Article 7.6 of the joint venture agreement stipulated that the LPD group was the preferential supplier of CRT products for its parent companies and that its parent companies were the preferred suppliers of any product, component and material to be used by the joint venture for its business. It must be noted, as the Commission rightly pointed out in the contested decision, that, where a parent company is also the supplier or customer of its subsidiary, it has a very specific interest in managing the production or distribution activities of the subsidiary, in order to take full advantage of the added value created by the vertical integration thus achieved (Fuji Electric v Commission, cited in paragraph 43 above, paragraph 184). The applicant submits that only a minority of the transactions of the LPD group were carried out with its parent companies; that, in any event, those transactions were concluded on an arm’s length basis, and that, as a customer of the joint venture, its interests were opposed to the latter’s. However, those circumstances, even if they were established, do not call into question the fact that the applicant, as a customer sourcing CRTs from the joint venture, had a specific interest in managing the production and distribution activities of that joint venture in relation to that product.

56 It follows from the foregoing that, in view of the body of evidence set out in the contested decision and recalled in paragraphs 46 to 55 above, the Commission adduced proof to the requisite legal standard of the actual exercise by the applicant of decisive influence over the course of conduct on the market followed by the LPD group.

57 Consequently, the Commission did not err in considering that the applicant had exercised decisive influence over the conduct of the LPD group and holding it jointly and severally liable for the participation of the LPD group in the infringements at issue.

58 That conclusion cannot be called into question by the applicant’s other arguments.

59 First, the applicant invokes the Dutch Civil Code in order to contest the existence of a decisive influence by the parent companies over the commercial policy of the LPD group.

60 The applicant submits that, in the Dutch legal system, the supervisory board is responsible, under the Dutch Civil Code, for supervising the policy determined by the board of management as well as the general affairs of the company and to advise the board of management in that respect. The applicant concludes from this that the supervisory board does not have the power and authority to exert decisive influence over the company’s market conduct. In that respect, it must be noted that in the present case, as was indicated in paragraphs 46, 47 and 52 to 54 above, the powers of the supervisory board of the LPD group, as defined by the joint venture agreement and implemented by the parties to that agreement, enabled the parent companies to exercise a decisive influence over the conduct of the joint venture.

61 In addition, the applicant states that the Dutch Civil Code provides that, in performing their duties, the members of the supervisory board must serve the interests of the company which that board represents. The applicant infers from this that supervisory board must not only observe the interests of the company’s shareholders, but also those of the employees, consumers and creditors. However, it must be held that that circumstance, even were it established, did not prevent the parent companies from exercising a decisive influence over the commercial policy of the LPD group. The existence of that influence does not mean that the members of the supervisory board did not act in the interests of the LPD group, since pursuing the interests of the LPD group was also in the interest of the parent companies as shareholders of the joint venture.

62 It follows from the foregoing that the applicant’s argument based on the provisions of the Dutch Civil Code cannot call into question the existence of a decisive influence exercised by the applicant over the LPD group’s conduct.

63 Secondly, the applicant submits that, where the solvency of the company is at risk, the role of the supervisory board is to ensure the continuity of the company and not to determine its commercial policy. However, again, that circumstance does not mean that the parent companies did not exercise a decisive influence over the LPD group’s conduct. Clearly, in that situation, the parent companies had, inter alia, the objective of ensuring the continuity of the company, which was, as already indicated in paragraph 61 above, also in their interest as shareholders of the joint venture.

64 Thirdly, the applicant adds that the Commission erroneously equates the decisions of the supervisory board to decisions of the LPD group’s shareholders. It must be held that that complaint lacks any basis in fact. It can be seen from recital 832 to the contested decision that the Commission also indicated that, on some occasions, the supervisory board acted on behalf of shareholders. Beyond that, the Commission merely stated that all the decisions taken by the supervisory board required an affirmative vote of at least one member nominated by each of the parent companies (recital 831 to the contested decision) and that the members of the supervisory board were senior officers from the parent companies (recital 836 to the contested decision), without, however, equating the decisions of the supervisory board to the decisions of the shareholders.

65 Fourthly, the applicant submits that, apart from the general meeting of shareholders and the shareholders’ committee, it did not participate in any other corporate body of the LPD group. It notes that, under Article 6.2 of the joint venture agreement, the role of the shareholders’ committee was to intervene to reach a final decision when the supervisory board was in a deadlock situation. The applicant states that no deadlock situation occurred during the infringement period. However, it must be pointed out that that circumstance has no effect on the existence of a decisive influence, since, according to that agreement, it is the shareholders’ committee, and therefore the parent companies, which had the last word, inter alia, on strategic questions, and the LPD group had no freedom of action in that respect.

66 Fifthly, the applicant submits that the Commission should have produced evidence that the applicant was aware of the LPD group’s participation in the cartels if it sought to take account of that circumstance in order to attribute liability for the LPD group’s conduct to the applicant. The applicant states that it is not for it to provide evidence that it was not aware of those infringements. In any event, the applicant submits that it was not aware of either the alleged participation of its subsidiaries in the cartel prior to the creation of the LPD group nor the latter’s alleged participation after 1 July 2001.

67 In that respect, it must be observed that, according to the case-law, there is no requirement, in order to impute to a parent company liability for the acts undertaken by its subsidiary, to prove that that parent company was directly involved in, or was aware of, the offending conduct. It is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they form a single undertaking for the purposes of Article 101 TFEU that the Commission is able to address the decision imposing fines to the parent company (see judgment of 2 February 2012 in Case T‑76/08 EI du Pont de Nemours and Others v Commission, not published in the ECR, paragraph 76 and the case-law cited). Accordingly, the allegation that the applicant was not aware of the infringement committed by the LPD group, even were it established, does not preclude the Commission from attributing liability for that group’s conduct to the applicant.

68 For the sake of completeness, it must be recalled that the applicant’s subsidiaries participated in the CDT cartel and in the CPT cartel until the transfer of the CRT business to the LPD group, on 1 July 2001 and that, consequently, the applicant was held liable, as a parent company, for the infringements committed by those subsidiaries from 29 January 1997 to 30 June 2001, as regards CDTs, and from 29 September 1999 to 30 June 2001, as regards CPTs. That situation, which, moreover, is not disputed by the applicant, casts doubt on the applicant’s claim that it was entirely unaware of the LPD group’s participation in the infringements at issue as regards the period after 1 July 2001.

69 In those circumstances, as set out in paragraphs 56 and 57 above, and without it even being necessary, in the light of the findings made in paragraphs 46 to 55 above, to examine the other evidence put forward in that respect in recitals 849 to 851 to the contested decision — the relevance of which has also been called into question by applicant — it must be concluded that the Commission was entitled to take the view that the applicant had exercised a decisive influence over the LPD group’s conduct. The first part of the first plea in law must therefore be rejected.

70 The applicant emphasises that it was only after the alleged infringements in the present case ceased that the Commission changed its policy and began to attribute liability to parent companies for the conduct of full-function joint ventures. By doing so, according to the applicant, the Commission violated the principle of legal certainty.

71 The Court considers it appropriate to analyse the present complaint during the examination of the fourth plea in law.

72 In those circumstances, and without prejudice to that examination, the first plea in law must be rejected.

The second plea in law, alleging infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 27(1) of Regulation No 1/2003 and breach of the rights of the defence, including the right to be heard and the principle of sound administration, in that the Commission did not attribute liability to the LPD group for the infringements which it is alleged to have committed

73 That plea in law is composed of two parts, alleging, first, infringement of Article 101 TFEU and Article 53 of the EEA Agreement and, secondly, infringement of Article 27(1) of Regulation No 1/2003 and breach of the rights of the defence and the principle of sound administration.

– The first part, alleging infringement of Article 101 TFEU and Article 53 of the EEA Agreement

74 The applicant takes issue with the Commission, in essence, for holding the applicant liable for the conduct of the joint venture even though that joint venture no longer formed part of the applicant’s group when the administrative procedure began.

75 In that respect, it can be seen from the assessment of the first plea in law that the applicant and the LPD group belonged to the same undertaking for the purpose of the case-law cited in paragraphs 34 and 35 above at least until 30 January 2006, when the LPD group was placed under the control of a liquidator. As indicated in paragraph 67 above, it is precisely because a parent company and its subsidiary form a single undertaking for the purposes of Article 101 TFEU that the Commission is able to attribute liability to the former for an infringement committed by the latter (see, to that effect, EI du Pont de Nemours v Commission, cited in paragraph 34 above, paragraph 76). Accordingly, as a result of that attribution of liability, the parent company is deemed to have committed the infringement itself (Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 28).

76 In those circumstances, the Commission infringed neither Article 101 TFEU nor Article 53 of the EEA Agreement by attributing to the applicant the anticompetitive conduct of the LPD group as regards the period prior to 30 January 2006, notwithstanding the fact that the LPD group had been placed under the control of a liquidator when the administrative procedure began.

77 That conclusion is not called into question by the applicant’s other arguments.

78 In the first place, the applicant submits that, since the liability of parent companies is purely derivative and secondary, the Commission was required to involve the LPD group in the administrative procedure and to attribute liability to it.

79 In support of its line of argument, the applicant refers first of all to the judgment in Case C‑286/11 P Commission v Tomkins [2013] ECR (paragraphs 37 and 39) which states that, where the liability of a parent company arises exclusively from its subsidiary’s participation in the cartel, that liability is derivative and secondary and depends on that of its subsidiary. However, it does not follow from that judgment that the Commission should have, in the present case, involved the LPD group in the administrative procedure, since, in that judgment, the Court of Justice merely stated that a parent company cannot be held liable for a period in respect of which no evidence has been furnished that its subsidiary committed an infringement of the EU competition rules. In the present case, it is established that the LPD group adopted anticompetitive conduct during the period in respect of which the applicant was held liable.

80 Next, the applicant invokes the Opinion of Advocate General Kokott in Akzo Nobel and Others v Commission (cited in paragraph 41 above). First, it must be pointed out that the General Court, like the Court of Justice, is not bound either by the conclusions reached by the Advocates General or by the reasoning which led to those conclusions (see Case C‑89/11 P E.ON Energie v Commission [2012] ECR, paragraph 62 and the case-law cited). Secondly, the Advocate General stated that it accords with the principle of personal responsibility and with the objective of effective enforcement of the competition rules to hold all the companies of the group which participated in the cartel, together with the parent company, jointly and severally liable for the purpose of punishing the cartel offence, solely in order to emphasise the advantage of such an approach, namely to ensure that, when assessing the amount of a fine to be imposed, the true economic strength of the whole undertaking is correctly taken into account and that the successful enforcement of the fine is not jeopardised by any transfers of assets between the parent company and its subsidiaries (Opinion of Advocate General Kokott in Akzo Nobel and Others v Commission, cited in paragraph 41 above, paragraph 43).

81 In the second place, the applicant alleges that the reasons for which the Commission did not address the contested decision to the LPD group are not valid.

82 As a preliminary point, it must be noted that, since it can be seen from the foregoing that the Commission could, without committing an error, choose to address the contested decision, not to the LPD group, but to its parent company, the applicant’s arguments seeking to show the invalidity of the reasons underlying that choice are ineffective. In any event, it must be held that those arguments are unfounded.

83 First, the applicant takes issue with the Commission for stating that the LPD group did not have any turnover or was inactive. In that respect, it must be noted that the applicant does not specify the part of the contested decision to which it refers. It can be seen from recital 860 to that decision that, in response to the objections raised by the parent companies regarding the lack of involvement of the LPD group in the procedure, the Commission indicated that the legal entities of the LPD group which had been or were still the holding companies of the group (namely LPD Holding, the initial holding company, and LPD International BV, the holding company as from January 2006) had been declared bankrupt prior to the issuing of the statement of objections. The Commission stated that it can be seen from the reports of the ‘bankruptcy trustee’ of the LPD group that the companies of that group had considerable debts, which clearly exceeded the value of the group. The Commission rightly inferred from this that the LPD group had significant liabilities and that its assets had decreased considerably. In that respect, the applicant merely submits that, during the administrative proceedings, LPD International had generated significant turnover and that the most recent report of the trustee of the LPD group, of 4 December 2012, showed substantial turnover in 2011. However, it does not contest the matters noted above, relating, inter alia, to the group’s significant debts, with the result that that complaint cannot, in any event, succeed.

84 Secondly, the applicant argues that the fact that the LPD group had been declared bankrupt was not a reason to exclude it from the proceedings in question, since the question of what entity will pay the fine has no bearing on the question of the entity to which liability for the infringement at issue must be attributed.

85 In that respect, it has been indicated in paragraph 75 above that, since the applicant and the LPD group formed a single undertaking for the purpose of Article 101 TFEU, the Commission was able to attribute liability to the former for an infringement committed by the latter.

86 Thirdly, although the applicant states that, despite their respective bankruptcies, LPD Holding, LPD International and LPD International Ltd, a wholly owned subsidiary of LPD International, replied to the requests for information in the context of the administrative procedure, it must be held that those replies were limited by the fact that the trustees managing the bankruptcies of those entities possessed little information relating to the LPD group and that that information was subsequent to 2006, that is to say, subsequent to the period covered by the infringements at issue, as can be seen from the evidence in the file.

87 Fourthly, the applicant argues that the Commission could not rely on the fact that it did not know how to contact the LPD group in order not to involve it in the procedure. In that respect, the applicant submits that the Commission erred in indicating, in recital 815 to the contested decision, that none of the parties had provided any clarification on the structure of the LPD group or any indication as to whom the Commission could contact before the reply to the statement of objections. In that respect, it suffices to note that that recital to the contested decision is not included among the reasons explaining the decision not to attribute liability to the LPD group for the infringements at issue, with the result that that argument cannot succeed.

88 In the third place, the applicant submits that the Commission’s decision not to attribute liability to the LPD group restricted its ability to have recourse against that group for the fine imposed on the applicant as a result of infringements committed by that group. However, that possibility, which is, moreover, purely theoretical in view of the financial situation of the LPD group, does not affect the legality of the contested decision, since the conditions required in order to attribute liability to the applicant for the anticompetitive conduct were met.

– The second part, alleging infringement of Article 27(1) of Regulation No 1/2003 and breach of the rights of the defence and of the principle of sound administration

90 The applicant submits, in essence, that, by not involving the LPD group in the administrative procedure or attributing any liability to that group for its conduct, the Commission prevented the applicant from accessing the information necessary to adequately prepare its defence as regards the anticompetitive activities of the LPD group.

91 It should be recalled in that respect that observance of the rights of the defence in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the European Courts ensure (see Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 26 and the case-law cited).

92 According to settled case-law, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that the undertaking has committed an infringement (see Case C‑511/06 P Archer Daniels Midland v Commission [2009] ECR I‑5843, paragraph 88 and the case-law cited).

93 Moreover, according to the case-law, the rights of the defence are infringed where it is possible that the outcome of the administrative procedure conducted by the Commission might have been different as a result of an error committed by it. An applicant undertaking establishes that there has been such an infringement where it adequately demonstrates, not that the Commission’s decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no error, for example because it would have been able to use for its defence documents to which it was denied access during the administrative procedure (see, to that effect, Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 31 and the case-law cited).

94 In addition, it must be borne in mind that during an administrative procedure before the Commission, the Commission is required to observe the procedural guarantees provided for by EU law (Case T‑348/94 Enso Española v Commission [1998] ECR II‑1875, paragraph 56).

95 The rights guaranteed by the EU legal order in administrative procedures include, in particular, the principle of sound administration, which entails the duty of the competent institution to examine carefully and impartially all the relevant aspects in the individual case (Case T‑44/90 La Cinq v Commission [1992] ECR II‑1, paragraph 86).

96 The applicant submits that because the Commission did not attribute liability to the LPD group, even though that group and the applicant no longer formed part of the same economic unit since 30 January 2006, it prevented that group from expressing its views and providing evidence which might have been capable of showing the absence of decisive influence by the applicant over that group’s conduct or which could have led to a reduction of the fine imposed on the applicant. The applicant adds that, after 30 January 2006, it was no longer able to access the documents available to the LPD group or its employees. The applicant therefore claims that the Commission breached both the rights of the defence and the principle of sound administration.

97 In the present case, as has been indicated in the examination of the first part of the present plea in law, the Commission did not commit any procedural irregularity by not attributing liability to the LPD group for its conduct. In that regard, the fact that the applicant and the joint venture no longer formed part of the same economic unit after 30 January 2006 is irrelevant, since the applicant was held liable for a period prior to that date. In addition, it must be borne in mind that, by virtue of a general duty of care attaching to any undertaking, the applicant was required to ensure, even in the circumstances of the winding up of the joint venture, the proper maintenance of records in its books and files of information enabling details of its activities to be retrieved, in order, in particular, to make the necessary evidence available in the event of legal or administrative proceedings (see, to that effect, Case T‑161/05 Hoechst v Commission [2009] ECR II‑3555, paragraph 171 and the case-law cited). Accordingly, the applicant is not justified in claiming that, as a result of an alleged procedural irregularity committed by the Commission during the administrative procedure, the outcome of that administrative procedure might have been different and, consequently, it cannot invoke a breach of its rights of the defence for the purpose of the case-law cited in paragraph 93 above. In any event, it can be seen from the evidence in the file that the Commission sent requests for information to various companies in the LPD group during the first phase of the administrative procedure. It is undisputed that the Commission contacted the LPD group, as well as the parent companies, several times, including in the period after 30 January 2006, and obtained, from all of those undertakings, information which, while limited, as indicated in paragraph 86 above, nevertheless allowed it to complete its file.

98 In addition, it can be seen from the documents in the file that the applicant obtained, under the Leniency Notice, a reduction of 30% of the fine imposed on it both for its direct participation and its participation through the LPD group. In order to obtain that reduction, the applicant provided the Commission with information of significant value, in particular concerning the LPD group’s participation in the cartel, which means that, contrary to what it alleges, it had access to numerous pieces of evidence on that point and that it was able to use them in order to defend itself adequately.

99 It follows from all the foregoing that the Commission carefully and impartially examined all the relevant elements of the present case and that the applicant’s rights of the defence were not infringed. Accordingly, the second part of the second plea in law must be rejected, as must the second plea in law in its entirety.

The third plea in law, alleging breach of the obligation to state reasons and of the principle of equal treatment, in that the Commission applied different standards to undertakings subject to the same proceedings

100 This plea in law is composed of two parts, alleging, first, breach of the obligation to state reasons and, secondly, breach of the principle of equal treatment.

101 The applicant submits that the Commission did not explain why the undertakings [confidential], [confidential], [confidential] and [confidential] were not held liable.

102 According to settled case-law, the statement of reasons required under Article 296 TFEU must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).

103 The Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned; it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In particular, it is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance (Case T‑349/03 Corsica Ferries France v Commission [2005] ECR II‑2197, paragraph 64, and Case T‑185/06 Air liquide v Commission [2011] ECR II‑2809, paragraph 64).

104 It is also settled case-law that, where a decision taken in application of Article 101 TFEU relates to several addressees and raises a problem with regard to liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who according to the decision must bear the liability for the infringement (Case T‑38/92 AWS Benelux v Commission [1994] ECR II‑211, paragraph 26, and Case T‑330/01 Akzo Nobel v Commission [2006] ECR II‑3389, paragraph 93). Thus, in regard to a parent company held jointly and severally liable for the infringement, such a decision must contain a detailed statement of reasons for attributing the infringement to that company (Case T‑197/06 FMC v Commission [2011] ECR II‑3179, paragraph 45; see, also, to that effect, Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraphs 78 to 80).

105 In the present case, it can be seen from recital 905 to the contested decision that the Commission indicated the reasons why it considered that liability could not be attributed to [confidential]. Thus, it explained that there was no evidence showing that [confidential] exercised the same level of influence over [confidential] as the applicant and LGE exercised over the LPD group which might justify holding [confidential] liable for [confidential]’s conduct.

106 As regards [confidential], the Commission specified, in footnote 1937 of the contested decision, that it had not imposed a fine on several undertakings, including [confidential], either because it did not have sufficient evidence that they had participated in the infringement or because the companies to which liability could be imputed no longer existed.

107 Lastly, the fact that the Commission did not explain why [confidential] and [confidential] were not held liable has no effect on the lawfulness of the contested decision, since the issue of those companies’ participation in the cartel constitutes a matter of secondary importance for the purpose of the case-law cited in paragraph 103 above.

108 In those circumstances, the first part of the third plea in law must be rejected.

109 The applicant submits that the Commission did not treat the various companies involved in the cartel equally since it did not apply consistently the rule that it is necessary to hold liable, under Article 101 TFEU, the legal entities whose representatives participated in anticompetitive conduct and the parent companies of those legal entities, which they owned wholly or partly and over whose commercial policy they exercised a decisive influence.

110 In that regard, it should be borne in mind that the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C‑485/08 P Gualtieri v Commission [2010] ECR I‑3009, paragraph 70).

111 In the present case, as regards the complaints directed against the Commission’s findings in relation to the undertakings [confidential], [confidential], [confidential] and [confidential], it is appropriate to recall that the principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party. A possible unlawful act committed with regard to another undertaking, which is not party to the present proceedings, cannot lead to a finding by the Court that it is discriminatory and, therefore, unlawful with regard to the applicants. Such an approach would be tantamount to laying down a principle of ‘equal treatment in illegality’ and to requiring the Commission, in the present case, to disregard the evidence in its possession to sanction the undertaking which has committed a punishable infringement, solely on the ground that another undertaking which may find itself in a comparable situation has unlawfully escaped being penalised. Moreover, as is clear from the case-law relating to the principle of equal treatment, an undertaking which has acted in breach of Article 101(1) TFEU cannot escape being penalised altogether on the ground that other undertakings have not been fined, where those undertakings’ circumstances are not the subject of proceedings before the Court (Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraph 197).

112 In addition, no provision of Regulation No 1/2003 requires the Commission to find and sanction all anticompetitive conduct. As is plain from Article 7 of that regulation, it only has the power to act in that way where it considers that the infringement in question so justifies (judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 369).

113 In those circumstances, the applicant’s arguments seeking to establish the existence of a breach of the principle of equal treatment are ineffective and must be rejected.

115 In the first place, the applicant submits that the Commission attributed liability to MTPD, the joint venture created by Toshiba and Panasonic, whereas it did not impute liability to the LPD group as the joint venture between LGE and the applicant. However, it must be held that, as has been indicated in paragraph 5 above, LPD Holding was declared bankrupt on 30 January 2006. Moreover, although the applicant states that, during the administrative procedure, LPD International was still generating turnover of over EUR 1.1 billion, it does not call into question the explanations in the contested decision, referred to in paragraph 83 above, in which the Commission found, relying on the reports of the ‘bankruptcy trustee’ of the LPD group, that the companies of that group had considerable debts, which clearly exceeded the value of the group. There is nothing in the file to indicate that MTPD was in a comparable situation at the time of the contested decision. Accordingly, the situation of MTPD and that of the LPD group were not comparable and the Commission was not required to treat them in the same way.

116 In the second place, the applicant submits that the Commission erred in failing to attribute liability to [confidential] for infringements committed by its subsidiary, [confidential], after 28 February 2005, when that subsidiary was sold by [confidential] to the [confidential] group, to which [confidential] belongs. In that respect, it cannot be seen from the documents in the file that [confidential] participated in the cartel after 28 February 2005. In those circumstances, [confidential] was not in the same situation as the applicant and the Commission had no reason to attribute liability to that company for the conduct of its subsidiary [confidential]. Moreover, although the applicant claims that the Commission should have attributed liability to that subsidiary, it must be pointed out that it neither proves, nor even alleges, that the subsidiary in question was in a situation similar to its own situation or, at the very least, to that of the LPD group.

117 In the third place, the applicant submits that, in the contested decision, the Commission established that [confidential] had participated in the infringement relating to CPTs from 3 December 1997 to 9 November 2006 and mentioned that that company belonged to the [confidential] group. The applicant criticises the Commission for not attributing liability to the parent company of the [confidential] group for the infringement committed by [confidential], even though, according to the applicant, [confidential] held 65% of [confidential] during the period of the infringements at issue and it must be assumed to have exercised effective control over [confidential]. The Commission contends that it had no evidence indicating that [confidential] exercised a level of influence over [confidential] comparable to that exercised by the applicant over the LPD group. The Commission adds that, to its knowledge, the alleged increase of [confidential]’s shareholding in [confidential] occurred at a later stage.

118 In that regard, it must be noted that the circumstance that [confidential] held a 65% shareholding in [confidential], even assuming that it were sufficiently proven by the production of a screen capture of the [confidential] group’s website, does not suffice, by itself, to establish the actual exercise of decisive influence by [confidential] over [confidential].

119 Furthermore, the applicant claims that the Commission did not sufficiently investigate the links between [confidential] and [confidential]. In that respect, the Commission states, without being contradicted, that, in the absence of a response on the part of [confidential] to a request for information sent on 8 November 2007, its ability to clarify the factual situation as regards a company located outside its jurisdiction, namely in Thailand, was bound to be limited.

120 In those circumstances, the applicant is not justified in claiming that it was in a situation comparable to that of [confidential].

121 In the fourth place, the applicant submits that the Commission established that [confidential] had participated in the infringement regarding CPTs from 11 October 2000 to 13 October 2006, but that it nevertheless did not attribute liability to [confidential] for that alleged infringement. However, it does not appear from the documents in the file that [confidential] was in a situation comparable to that of the applicant, with the result that the applicant cannot invoke a breach of the principle of equal treatment.

122 It follows from the foregoing that the second part of the third plea in law must be rejected, as must the third plea in law in its entirety.

The fourth plea in law, alleging infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 7, Article 23 and Article 25 of Regulation No 1/2003, in that the Commission held the applicant liable for alleged infringements committed before 1 July 2001 even though they were time-barred, and breach of the principles of legal certainty and of the protection of legitimate expectations, in that the Commission imposed fines on the applicant for infringements committed by the LPD group

123 This plea in law is essentially composed of three parts, alleging, first, infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 23 and Article 25 of Regulation No 1/2003, secondly, infringement of Article 7 of Regulation No 1/2003 and, thirdly, breach of the principles of legal certainty and of the protection of legitimate expectations.

– The first part, alleging infringement of Article 101 TFEU, of Article 53 of the EEA Agreement as well as Article 23 and Article 25 of Regulation No 1/2003

124 The applicant submits, in essence, that, by imposing a fine on it for its direct participation in the cartel until 1 July 2001, the Commission breached the rules on limitation and, in particular, Article 23 and Article 25 of Regulation No 1/2003.

125 In that regard, it must be borne in mind that, pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission may, by decision, impose fines on undertakings or associations of undertakings where, either intentionally or negligently, they infringe Article 101 TFEU or Article 102 TFEU. In addition, Article 25(1)(b) of Regulation No 1/2003 sets a limitation period of five years for infringements of the kind alleged against the applicant. According to Article 25(2) of Regulation No 1/2003, in the case of continuing or repeated infringements, time is to begin to run on the day on which the infringement ceases. Lastly, under the first sentence of Article 25(3) of that regulation, any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement interrupts the limitation period.

126 In the present case, it follows from the analysis of the first plea in law that the Commission rightly found that the applicant should be held jointly and severally liable for the LPD group’s conduct from 1 July 2001 to 30 January 2006 in the context of the CDT and CPT cartels. In addition, the applicant does not dispute the characterisation of the infringements committed between 28 January 1997 and 30 January 2006, as regards CDTs, and between 21 September 1999 and 30 January 2006, as regards CPTs, as ‘single and continuous infringements’. It follows that, contrary to what the applicant alleges, the infringements that it committed did not come to an end on 1 July 2001, but on 30 January 2006 and that the Commission was justified in imposing a fine in respect of the whole period during which those infringements had been committed, including the period prior to 1 July 2001.

127 That conclusion is not called into question by the applicant’s argument that the infringements in respect of which it is held liable were committed by two different entities, namely the Philips group, as regards the period prior to 1 July 2001, and the LPD group, as regards the period after that date.

128 In that respect, it must be noted that the applicant invokes paragraphs 56 and 61 of Fuji Electric v Commission, cited in paragraph 43 above, in support of the present complaint. However, those paragraphs merely refer, respectively, to the definition of the concept of an undertaking within the meaning of competition law and to the application of that definition to the facts of the instant case, and do not relate to the rules on the limitation of actions. In any event, the circumstance, invoked by the applicant, that the anticompetitive conduct at issue was committed by the applicant prior to 1 July 2001, and by the LPD group after that date, does not support the conclusion that the Commission infringed the rules on the limitation of actions, since that conduct, taken as a whole, constituted two single and continuous infringements, extending before and after 1 July 2001.

129 Accordingly, given that the applicant does not put forward any line of argument to show an infringement of Article 101 TFEU and of Article 53 of the EEA Agreement, the first part of the fourth plea in law must be rejected.

130 The applicant submits that, to order infringers to bring an infringement to an end when those infringers have already brought that infringement to an end, the Commission must demonstrate a legitimate interest in doing so, in accordance with Article 7(1) of Regulation No 1/2003. It claims that, in the present case, the Commission has not demonstrated that it had such a legitimate interest and, therefore infringed that provision.

131 In that respect, it must be stated that, by the present complaint, the applicant must be regarded as seeking the annulment of Article 3 of the operative part of the contested decision in so far as it concerns the applicant.

132 Furthermore, it must be recalled that Article 7(1) of Regulation No 1/2003 provides, inter alia, that where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article 101 TFEU or of Article 102 TFEU, it may by decision require the undertakings and associations of undertakings concerned to bring that infringement to an end. That article also provides that, if the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past.

133 In the present case, it must be noted that Article 3 of the operative part of the contested decision contains, in fact, two orders. The first requires that the undertakings concerned immediately bring to an end the infringements referred to in Article 1 of that operative part of the contested decision in so far as they have not already done so. Since the applicant confirmed that the infringement had come to an end at the time of the adoption of the contested decision, it was not concerned by that order and its complaint against it is ineffective (see, to that effect, Joined Cases T‑456/05 and T‑457/05 Gütermann and Zwicky v Commission [2010] ECR II‑1443, paragraph 61 and the case-law cited). The applicant is, however, concerned by the second order, which requires the undertakings listed in Article 1 of the contested decision to refrain from repeating any act or conduct described in Article 1 and any act or conduct having the same or similar object or effect. In those circumstances, the applicant cannot effectively claim that the Commission ordered it to bring an end to the infringement. Accordingly, the premiss on which the present line of argument is based is erroneous and the second part of the fourth plea in law must be rejected, since the applicant does not raise any argument against the second order.

– The third part, alleging breach of the principles of legal certainty and of the protection of legitimate expectations

134 The applicant claims not only that the Commission’s practice has changed since the Flexsys Decision of 21 December 2005 (Case COMP/F/C.38.443 — Rubber Chemicals) (‘the Flexsys Decision’), thus breaching the principle of legal certainty and the principle of the protection of legitimate expectations, but that it also made that change retroactively, since it applied the new rules on the liability of parent companies for the conduct of their joint ventures to an infringement committed between 1 July 2001 and 30 January 2006.

135 In that regard, it must be borne in mind, first, that the principle of legal certainty requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them, and that those persons must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (Case C‑345/06 Heinrich [2009] ECR I‑1659, paragraph 44 and the case-law cited).

136 Secondly, it must be recalled that, according to settled case-law, the principle that penal provisions may not have retroactive effect, as laid down in Article 49 of the Charter of Fundamental Rights of the European Union and enshrined, inter alia, in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), whose observance is ensured by the Courts of the European Union, may preclude the retroactive application of a new interpretation of a rule establishing an offence, where the result of that interpretation was not reasonably foreseeable at the time when the offence was committed (see Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraphs 87 to 89 and the case-law cited, and judgment of 2 February 2012 in Case T‑83/08 Denki Kagaku Kogyo and Denka Chemicals v Commission, not published in the ECR, paragraph 120).

137 Thirdly, it is also settled case-law that, although Article 23(5) of Regulation No 1/2003 provides that Commission decisions imposing fines for infringement of competition law are not of a criminal nature, the Commission is none the less required to observe the principle of non-retroactivity in any administrative procedure capable of leading to fines under the Treaty rules on competition (Denki Kagaku Kogyo and Denka Chemicals v Commission, cited in paragraph 136 above, paragraph 122).

138 Fourthly, in order to ensure observance of the principle of non-retroactivity, the Court of Justice has held that it is necessary to ascertain whether the change in question was reasonably foreseeable at the time when the infringements concerned were committed (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 224). The scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such an activity entails (Dansk Rørindustri and Others v Commission, paragraph 219).

139 In that respect, it must be recalled that, although it is settled case-law that the principle of the protection of legitimate expectations is one of the fundamental principles of the European Union, operators cannot have a legitimate expectation that an existing situation which is capable of being altered by the EU institutions in the exercise of their discretion will be maintained (see Case C‑350/88 Delacre and Others v Commission [1990] ECR I‑395, paragraph 33 and the case-law cited). That principle clearly applies in the field of competition policy, which is characterised by a broad discretion on the part of the Commission (Dansk Rørindustri and Others v Commission, cited in paragraph 138 above, paragraph 172).

140 In that respect, it must be pointed out that, in the Flexsys decision, the Commission did not dismiss the possibility of attributing liability to a parent company for the conduct of its subsidiary in the event that the latter constitutes a joint venture, but merely mentioned that there is a presumption of autonomy for a joint venture controlled by two parent companies each holding a 50% shareholding. Since it can be seen from the examination of the first plea in law that the applicant indeed exercised a decisive influence over the joint venture, depriving the latter of autonomy, it must be considered that the Commission reversed that presumption without actually changing its practice. In those circumstances, and in view of the degree of caution which the applicant was required to show, the attribution to the applicant of liability for its joint venture’s conduct was reasonably foreseeable at the time the infringement at issue was committed. Moreover, and in any event, the applicant was not justified in harbouring a legitimate expectation that an existing situation which was capable of being altered by the Commission in the exercise of its discretion would be maintained.

141 It follows from the foregoing that the Commission breached neither the principle of legal certainty nor the principle of the protection of legitimate expectations.

142 Consequently, the third part of the fourth plea in law must be rejected, as must that plea in law in its entirety.

The fifth plea in law, alleging infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 23 of Regulation No 1/2003 and breach of the 2006 Guidelines and of the principle of equal treatment, in that the Commission included sales made outside the EEA in the turnover relevant for the purpose of calculating the basic amount of the fines

143 The present plea in law is composed of three parts alleging, first, that the Commission erred in characterising the sales made by the LPD group to the television and computer monitor manufacturers in the Philips group and the LGE group as ‘intragroup sales’, secondly, that the Commission infringed Article 101 TFEU, Article 53 of the EEA Agreement and Article 23 of Regulation No 1/2003, and breached the 2006 Guidelines and, thirdly, breach of the principle of equal treatment.

– The first part, alleging that the Commission erred in characterising the sales made by the LPD group to the television and computer monitor manufacturers in the Philips group and the LGE group as ‘intragroup sales’

144 The applicants submit that the Commission incorrectly characterised the sales made by the LPD group to the television and computer monitor manufacturers in the LGE group and the applicant’s own group as ‘intragroup sales’. In that respect, it again asserts that it did not form a single undertaking, for the purposes of competition law, with the LPD and LGE groups.

145 In that respect, it can be seen from the assessment of the first plea in law that the Commission was entitled to take the view that the applicant had exercised a decisive influence over the conduct of the LPD group. Moreover, in the judgment delivered today in Case T‑91/13 LG Electronics v Commission, the Court has held that LGE had also exercised a decisive influence over the conduct of that group. Thus, the Commission did not err in taking the view that the LPD group constituted, with its parent companies, an economic unit acting as an undertaking within the meaning of Article 101 TFEU and therefore attributing the liability for the anticompetitive conduct of that group to the applicant and to LGE. Accordingly, contrary to what is alleged by the applicant, the Commission could characterise the CRT sales made by the LPD group to its parent companies as ‘intragroup sales’, or internal sales. The first part of the fifth plea in law must therefore be rejected.

– The second part, alleging infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 23 of Regulation No 1/2003, and breach of the 2006 Guidelines

146 The applicant submits, in essence, that when calculating the basic amount of the fines, the Commission included in the relevant turnover not only CRT sales to customers in the EEA but also CRT sales to customers outside the EEA. The applicant adds that the Commission did not establish that those sales had any effect in the EEA. It infers from this that the Commission exceeded its jurisdiction for applying Article 101 TFEU, Article 53 of the EEA Agreement and Article 23 of Regulation No 1/2003. It adds that, in doing so, the Commission also breached the 2006 Guidelines.

147 First, the applicant claims that the Commission was not justified in taking into account the sales made outside the EEA in determining the basic amount of the fine.

148 In the present case, it can be seen from recital 1021 to the contested decision that, in order to determine the basic amount of the fine, the Commission decided to take into account the turnover corresponding to the sales where the ‘first real sale’ of the CRT — as such or integrated in a final computer monitor or television product — was made in the EEA during the period of the infringement by one of the addressees of the contested decision. Starting from that premiss, the Commission determined three categories of sales, namely ‘direct EEA sales’, corresponding to CRTs directly sold to customers in the EEA by one of the addressees of the contested decision, ‘direct EEA sales through transformed products’, corresponding to CRTs incorporated intragroup into a final computer monitor or television and subsequently sold to customers in the EEA by one of the addressees of the contested decision, and ‘indirect sales’, corresponding to CRTs sold by one of the addressees of the contested decision to customers outside the EEA, which would incorporate the CRTs into the final computer monitor or television products and then sell them in the EEA. In the present case, it is undisputed that the Commission took into account only the direct EEA sales and direct EEA sales through transformed products in calculating the amount of the fine.

149 Furthermore, it must be noted that, when undertakings established outside the EEA, but which produce goods that are sold within the EEA to third parties, concert on the prices they charge to their customers in the EEA and put that concertation into effect by selling at prices which are actually coordinated, they are taking part in concertation 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, Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85 Ahlström Osakeyhtiö and Others v Commission [1988] ECR 5193, ‘Wood Pulp I’, paragraphs 13 and 14).

150 It also follows from the case-law that an infringement of Article 101 TFEU consists of two elements, the formation of the agreement, decision or concerted practice and the implementation thereof. If the applicability of prohibitions laid down under competition law were made to depend on the place where the agreement, decision or concerted practice was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions. What counts is therefore the place where it is implemented. Moreover, in determining whether that place is in the EEA, it is immaterial whether or not the participants in the cartel had recourse to subsidiaries, agents, sub-agents, or branches within the EEA in order to make their contacts with purchasers established there (Wood Pulp I, cited in paragraph 149 above, paragraphs 16 and 17).

151 Where the condition relating to implementation is satisfied, the Commission’s jurisdiction to apply the EU competition rules to such conduct is covered by the territoriality principle as universally recognised in public international law (Wood Pulp I, cited in paragraph 149 above, paragraph 18).

152 Moreover, the criterion of the implementation of an agreement 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 agreement, irrespective of the location of the sources of supply and the production plants (Case T‑91/11 InnoLux v Commission [2014] ECR, paragraph 63).

153 It follows from the foregoing that the Commission was entitled to find 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.

154 Secondly, the applicant claims that the Commission did not establish that the infringements which it is alleged to have committed had a harmful effect on the prices of televisions or computer monitors in the EEA.

155 In that respect, it suffices to point out that the Commission was not required to prove that the incorporation of cartelised CRTs in televisions and computer monitors had an impact on the prices of those televisions and monitors.

156 As the Court of Justice has 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 the subject of the infringement, and this 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 the subject of the infringement (Guardian Industries and Guardian Europe v Commission, cited in paragraph 21 above, paragraph 60).

157 In addition, the applicant’s line of argument is ineffective, since, in the present case, it can be seen from recitals 1026 and 1029 to the contested decision that the sales of televisions and computer monitors incorporating the cartelised CRTs 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 CRTs that were incorporated into the televisions and computer monitors, when those products were sold by the undertaking to which the applicant belongs to independent third parties established in the EEA.

159 Thirdly, the applicant criticises the Commission for relying on the judgment in Case T‑304/94 Europa Carton v Commission ([1998] ECR II‑869), which, according to the applicants, does not provide a legal basis for taking into account direct EEA sales through transformed products.

160 As a preliminary point, it must be noted that, in Europa Carton, cited in paragraph 159 above (paragraph 128), the Court held that to ignore the value of the applicant’s internal cartonboard deliveries would inevitably give an unjustified advantage to vertically integrated companies. It added that, in such case, the benefit derived from the cartel might not be taken into account and the undertaking in question would avoid the imposition of a fine proportionate to its importance on the product market to which the infringement relates.

161 The applicant submits that, in the present case, the question is not whether internal sales were subject to the alleged cartel arrangements, but whether sales made outside the EEA can be taken into account in order to determine the basic amount of a fine for conduct that allegedly affected the EEA market.

162 In that respect, it must be pointed out that, as the applicant notes, the facts of Europa Carton, cited in paragraph 159 above, differ from those of the present case. However, it must be held that that judgment cannot be interpreted as precluding the taking into account of direct EEA sales through transformed products.

163 Moreover, nothing prevented the Commission, provided it complied with the provisions referred to in paragraph 146 above, from adapting that case-law to the specific circumstances of the present case in order to achieve the aim, to which that case-law refers, of not affording more favourable treatment to vertically integrated undertakings which have participated in a cartel.

164 It follows from the foregoing that the applicant has not established that the Commission breached point 13 of the 2006 Guidelines by taking into account direct EEA sales through transformed products in order to calculate the amount of the fine. Accordingly, the applicant’s complaint that the Commission should have stated the reasons for deliberately choosing to depart from the 2006 Guidelines in determining the basic amount of the fine to be imposed is irrelevant.

165 Furthermore, and in any event, the applicant cannot effectively argue that the principle of legal certainty required that the 2006 Guidelines specify that the Commission could, in order to determine the basic amount of the fine, take into account sales of cartelised products to customers outside the EEA where those products were then incorporated into other products sold to customers within the EEA. In that respect, it was recalled, in paragraph 135 above, that the principle of legal certainty requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them, and that those persons must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (see Heinrich, cited in paragraph 135 above, paragraph 44 and the case-law cited). As regards the 2006 Guidelines, according to the case-law, they ensure legal certainty for the undertakings concerned by defining the method which the Commission has imposed on itself in order to set the amount of fines imposed under Regulation No 1/2003 (see, by analogy, judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa v Commission, not published in the ECR, paragraph 53). However, contrary to what is suggested by the applicant in its written pleadings, those guidelines are not intended to list exhaustively all the situations which the Commission may face in calculating the amount of fines; this is in order to respect the broad discretion enjoyed by the Commission in setting that amount. That argument must therefore be rejected.

166 Fourthly, the applicant states that the direct EEA sales through transformed products are not sales to which the infringement directly or indirectly relates, for the purpose of point 13 of the 2006 Guidelines.

167 In that respect, 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.

168 As the Court of Justice 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 (Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 25; Guardian Industries and Guardian Europe v Commission, cited in paragraph 21 above, paragraph 53; and Case C‑227/14 P LG Display and LG Display Taiwan v Commission [2015] ECR, paragraph 49).

169 In accordance with 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 (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 121; Guardian Industries and Guardian Europe v Commission, cited in paragraph 21 above, paragraph 54; and LG Display and LG Display Taiwan v Commission, cited in paragraph 168 above, paragraph 50).

170 It is also clear from the case-law of the Court of Justice that, 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 2006 Guidelines (Guardian Industries and Guardian Europe v Commission, cited in paragraph 21 above, paragraph 55, and LG Display and LG Display Taiwan v Commission, cited in paragraph 168 above, paragraph 51).

171 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’.

172 Point 13 of the 2006 Guidelines 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 (judgment of 11 July 2013 in Case C‑444/11 P Team Relocations and Others v Commission, not published in the ECR, paragraph 76; Guardian Industries and Guardian Europe v Commission, cited in paragraph 21 above, paragraph 57; and LG Display and LG Display Taiwan v Commission, cited in paragraph 168 above, paragraph 53).

173 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, Team Relocations and Others v Commission, cited in paragraph 172 above, paragraphs 75 to 78; Guardian Industries and Guardian Europe v Commission, cited in paragraph 21 above, paragraphs 57 to 59; Case C‑286/13 P Dole Food and Dole Fresh Fruit Europe v Commission [2015] ECR, paragraphs 148 and 149; and LG Display and LG Display Taiwan v Commission, cited in paragraph 168 above, paragraphs 53 to 58 and 64).

174 In the present case, the applicant’s sales taken into account for the purposes of setting the amount of the fine as 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 CRTs, but on a different product market, namely the downstream market for televisions and computer monitors incorporating the cartelised CRTs; those CRTs had in that case been the subject of internal sales outside the EEA within the undertaking to which the applicant belongs.

175 It is, however, apparent from recitals 1026 and 1029 to the contested decision that, as indicated in paragraph 157 above, the sales of televisions and computer monitors incorporating the cartelised CRTs 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 CRTs that were incorporated into the televisions and computer monitors, when those products were sold by the undertaking to which the applicant belongs to independent third parties established in the EEA. That finding has not been challenged.

176 Admittedly the concept of the ‘value of sales’ referred to in point 13 of the 2006 Guidelines 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, cited in paragraph 172 above, paragraph 76; Guardian Industries and Guardian Europe v Commission, cited in paragraph 21 above, paragraph 57; and LG Display and LG Display Taiwan v Commission, cited in paragraph 168 above, 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 which were the subject of the infringement into 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 which were the subject of the infringement.

177 As indicated in paragraph 156 above, 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 this 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 the subject of the infringement (Guardian Industries and Guardian Europe v Commission, cited in paragraph 21 above, paragraph 60).

178 It follows that the Commission was entitled to find that the sales of the finished products, while not made on the market for the goods concerned by the infringement, none the less distorted competition in the EEA in breach of Article 101 TFEU, to the detriment of consumers in particular. The Commission therefore did not err in law in finding that the sales of the finished products were related to the infringement in the EEA, within the meaning of point 13 of the 2006 Guidelines.

179 Fifthly, the applicant submits that the Commission indicated, in the contested decision, that it took into account sales to which the infringement indirectly related in calculating the basic amount of the fine whereas it stated in its defence that those sales directly related to the infringement. It must however be pointed out those allegations have no factual basis since it can be seen from the contested decision, and in particular from recitals 1021 and 1026 to the contested decision, that only the value of direct EEA sales and the value of direct EEA sales through transformed products were taken into account.

180 It follows from the foregoing that the second part of the fifth plea must be rejected.

181 The applicant submits that direct EEA sales through transformed products were taken into consideration by the Commission only in so far as those sales had been characterised as ‘intragroup sales’. It adds that CRT sales made by non-vertically integrated CRT manufacturers to television or computer monitor manufacturers established outside the EEA were not taken into account in calculating the fine, whereas the same type of sales made by vertically integrated CRT manufacturers to television or computer monitor manufacturers belonging to the same group were taken into account. It concludes from this that the method used by the Commission in order to determine the basic amount of the fine breached the principle of equal treatment between the undertakings which are vertically integrated and those which are not.

182 In that respect, it must be pointed out that, when the amount of the fine is determined, the principle of equal treatment means that the Commission cannot, by the application of different methods of calculation, discriminate between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR, paragraph 58 and the case-law cited).

183 As a preliminary point, it must be noted that, in recital 1022 to the contested decision, the Commission justified its choice of methodology based on the ‘first real sale’ by invoking the need not to discriminate against non-vertically integrated undertakings.

184 Furthermore, it must be pointed out that, in reality, the applicant criticises the Commission for failing to take into account indirect sales in calculating the amount of the fine imposed on non-vertically integrated undertakings.

185 In that respect, it must be noted, first of all, that, contrary to what the applicant seems to suggest, indirect sales are liable to concern all the undertakings and not only those which are not vertically integrated. Accordingly, to take account of indirect sales only as regards the non-vertically integrated undertakings would amount to clearly discriminating between those two types of undertakings to the detriment of non-vertically integrated undertakings.

186 Moreover, it is settled case-law that the Commission enjoys a broad discretion as regards the method for calculating fines. That method, set out in the 2006 Guidelines, displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Regulation No 1/2003 (see, to that effect, Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I‑7191, paragraph 112, and Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I‑9555, paragraph 271). Furthermore, the Commission is not obliged to find and penalise all anticompetitive conduct (Tokai Carbon and Others v Commission, cited in paragraph 112 above, paragraph 369).

187 In the present case, it has been noted in paragraph 148 above that the Commission applied the same methodology to all the undertakings by taking into account, as regards each of them, the ‘first real sale’ and by establishing three categories on the basis of that criterion. In those circumstances, the fact that the category of direct EEA sales through transformed products was applicable only in the case of some of those participants, namely to all of the vertically integrated undertakings, does not amount to discrimination, since the Commission assessed the applicability of that category to each of the participants on the basis of the same objective criteria. Similarly, the fact that the non-inclusion of indirect sales may have been of greater benefit to certain participants than it was to the applicant does not in itself amount to discrimination (InnoLux v Commission, cited in paragraph 152 above, paragraph 80).

188 In those circumstances, the Commission cannot be held to have committed any breach of the principle of equal treatment. The third part of the fifth plea in law must therefore be rejected, as must that plea in law in its entirety.

The sixth plea in law, alleging infringement of Article 23 of Regulation No 1/2003 and breach of the 2006 Guidelines, in that the Commission did not calculate the relevant turnover on the basis of the last full year of participation in the alleged infringements

189 The applicant submits that the reasons provided by the Commission for deviating from the principle set out in point 13 of the 2006 Guidelines are not valid and infers from this that the Commission therefore infringed Article 23 of Regulation No 1/2003 and breached the 2006 Guidelines.

190 As a preliminary point, it must be observed that Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine, regard must be had both to the gravity and to the duration of the infringement.

191 Moreover, point 13 of the 2006 Guidelines states that, in determining the basic amount of the fine to be imposed, the Commission will normally take the sales made by the undertaking during the last full business year of its participation in the infringement. Paragraph 14 of those guidelines state that, where the infringement by an association of undertakings relates to the activities of its members, the value of sales will generally correspond to the sum of the value of sales by its members.

192 In the present case, it can be seen from recital 1039 to the contested decision that, in order to determine the basic amount of the fine, the Commission used the average annual value of sales made over the entire duration of the infringement. The Commission therefore deviated from point 13 of the 2006 Guidelines in that respect.

193 However, it must be borne in mind that the self-limitation on the Commission’s discretion arising from the adoption of the Guidelines is not incompatible with the Commission’s maintaining a substantial margin of discretion. The 2006 Guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with the provisions of Regulation No 1/2003, as interpreted by the Court of Justice (Dansk Rørindustri and Others v Commission, cited in paragraph 138 above, paragraph 267, and Case T‑21/05 Chalkor v Commission [2010] ECR II‑1895, paragraph 62).

194 However, according to the case-law, when setting the amount of the fine, the Commission is bound to comply with the general principles of law, in particular the principles of equal treatment and proportionality, as developed in the case-law of the EU judicature (Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 77).

195 In the first place, the applicant argues that, in order to determine the amount of the fine, taking into account the undertaking’s sales during the last full year of its participation in the infringement would have provided a better indication of the gravity of the infringement than taking into account the average value of sales made throughout the entire infringement period.

196 It can be seen from recital 1042 to the contested decision that the Commission considered, on the contrary, that, in the particular circumstances of the present case, the undertakings’ sales during the last full year of their participation in the infringement were not sufficiently representative of the economic importance of the infringement given the considerable decline of CRT sales during the period covered by that infringement.

197 In particular, the Commission noted that the total CDT sales of all the parties had decreased by more than 80% between 1998 and 2005 and that the total CPT sales of those parties had decreased by more than 60% between 2000 and 2005. The contested decision also indicates that the value of sales from one year to the next during the period of the infringement varied considerably, namely up to 99% of a difference between the highest and the lowest annual value of sales, the difference for most parties being between 42% and 92% as regards CDTs and between 55% and 86% as regards CPTs.

198 It must be pointed out that, as regards the period to be taken into account in calculating the fine, point 13 of the 2006 Guidelines contains an element of flexibility enabling the Commission to exercise its discretion, since it indicates that the Commission must ‘normally’ use the sales made by the undertaking during the last full business year of its participation in the infringement. Furthermore, the figures put forward by the Commission, which are not disputed by the applicant, reveal the magnitude of the decline of sales during the infringement period and show that taking into account the average value of sales made throughout that period made it possible to reflect the gravity of the infringement during the entire period in question. In those circumstances, by using that value in order to calculate the fine, the Commission exercised its discretion in accordance with Article 23 of Regulation No 1/2003.

200 First, the applicant asserts that the fact that the CRT sales completely collapsed during the period of the infringements at issue means that those infringements are less likely to have had an actual effect than if they had been committed in the context of market stability with little fluctuation and decline in turnover. It follows, according to the applicant, that the turnover of the last year of the infringement would have provided, in the present case, a better indication of the gravity of that infringement.

201 However, that line of argument is ineffective since it is not intended to demonstrate that the Commission’s choice to take into account the average value of sales made throughout the infringement period was not legally justified, but only that there was a better option. When the EU judicature is called upon to review the legality of Commission decisions imposing fines for infringements of the EU competition rules, it cannot encroach upon the discretion available to the Commission in the administrative proceedings by substituting its own assessment of complex economic circumstances for that of the Commission, but, where relevant, must demonstrate that the way in which the Commission reached its conclusions was not justified in law (see judgment of 24 October 2013 in Case C‑510/11 P Kone and Others v Commission, not published in the ECR, paragraph 27 and the case-law cited).

202 Secondly, in the reply, the applicant submits that it also contests that the alleged cartel had a significant economic importance. However, that assertion cannot be established merely by referring to the decline of sales as from 2000. Moreover, even if that assertion were established, it has no effect on the ability of the method used by the Commission to reflect the scope of the infringement committed by the undertakings concerned.

203 Thirdly, the applicant asserts that, by applying the method mentioned in paragraph 192 above, the Commission departed from its previous practice in its decisions.

204 In that respect, it suffices to recall that observance of the principle of equal treatment is incumbent on the Commission when it imposes a fine on an undertaking for infringement of the competition rules, as it is on any institution in carrying out all its activities (see Case T‑67/01 JCB Service v Commission [2004] ECR II‑49, paragraph 187 and the case-law cited).

205 However, previous decisions by the Commission imposing fines can be relevant from the point of view of observance of the principle of equal treatment only where it is demonstrated that the facts of the cases in those other decisions, such as markets, products, the countries, the undertakings and periods concerned, are comparable to those of the present case (see, to that effect, Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraph 316 and the case-law cited).

206 In the present case, the applicant does not invoke any previous decision in support of its complaint, with the result that it must be rejected.

207 In the second place, the applicant claims that the second reason put forward by the Commission in order to justify its choice of method — alleging that that method would allow it to avoid discrimination against parent companies that created joint ventures during the period covered by the infringement — is not valid since the Commission stated that the participation of the applicant and of LGE in the infringements at issue had been uninterrupted before and after the creation of the LPD group.

208 The Commission contends that, even if the parent companies of the LPD group were not liable to be discriminated against since they participated uninterruptedly in the infringement throughout the entire period of that infringement, as the applicant emphasises, it is nevertheless the case that the calculation of fines must distinguish, for the purpose of determining the joint and several liability of those parent companies, between the period before the creation of the joint venture and the period subsequent to the creation of that joint venture. Its adds that, in a market of fluctuating and decreasing sales, taking into account the sales made during the last full business year of the period of the parent company’s sole participation in the infringement would have led to significant differences between the addressees of the contested decision depending on whether the joint venture was created in the middle of the infringement, when the level of sales was still high, or later on. In any event, that approach would have entailed more favourable treatment for undertakings which were not parent companies of a joint venture whose last full year of participation was at the very end of the infringement period, when the sales had significantly decreased. By taking the average value of sales, the Commission managed to avoid such different treatment.

209 The applicant has not adduced any evidence or put forward any argument liable to call into question the validity of that reason.

210 Furthermore, the applicant submits that there was no risk of discrimination against it since the Commission found that its participation in the cartel had been uninterrupted before and after the creation of the joint venture.

211 In that respect, it must be borne in mind that, to the extent to which reliance is to be placed on the turnover of the undertakings involved in the same infringement for the purpose of determining the proportions between the fines to be imposed, the period to be taken into consideration must be ascertained in such a way that the resulting turnovers are as comparable as possible. Consequently, an individual undertaking cannot compel the Commission to rely, in its case, upon a period different from that used for the other undertakings, unless it proves that, for reasons peculiar to it, its turnover in the latter period does not reflect its true size and economic power or the scale of the infringement which it committed (Case T‑319/94 Fiskeby Board v Commission [1998] ECR II‑1331, paragraph 42). In the present case, in the absence of such proof, the applicant’s complaint must be rejected.

The seventh plea in law, alleging infringement of Article 23 of Regulation No 1/2003, in that the Commission did not apply the limit of 10% of turnover to the LPD group for the fines imposed in respect of the infringements allegedly committed by that group

213 The applicant claims that, since the infringements at issue were committed by the LPD group as from 1 July 2001, the fines imposed by the Commission should not have exceeded 10% of that group’s turnover in 2011, namely during the business year preceding the year in which the Commission adopted the contested decision.

214 In that respect, it must be recalled that Article 23(2) of Regulation No 1/2003 provides that the Commission may impose fines on undertakings which infringe Article 101 TFEU but that, for each undertaking participating in the infringement, the fine is not to exceed 10% of its total turnover in the preceding business year.

215 That upper limit of the amount of the fine seeks to prevent fines being imposed which it is foreseeable that the undertakings will not be able to pay, having regard to their size, as determined, albeit approximately and imperfectly, by their total turnover. That limit is therefore one which is uniformly applicable to all undertakings, arrived at by reference to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate (Case C‑58/12 P Groupe Gascogne v Commission [2013] ECR, paragraph 48 and the case-law cited).

216 That objective must, however, be combined with the aim of ensuring that the fine has sufficient deterrent effect, which justifies taking into consideration the size and the economic power of the undertaking concerned, namely the global resources of the infringer (see Groupe Gascogne v Commission, cited in paragraph 215 above, paragraph 49 and the case-law cited).

217 Taking into consideration the size and overall resources of the undertaking in question is, primarily, justified by the impact sought on the undertaking concerned, in order to ensure that the fine has sufficient deterrent effect, as the penalty must not be negligible in the light, particularly, of its financial capacity (see Groupe Gascogne v Commission, cited in paragraph 215 above, paragraph 50 and the case-law cited).

218 In those circumstances, when assessing the financial resources of an undertaking to which a breach of the EU competition law rules is attributed, the taking into account of the turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 101 TFEU is justified (order of 3 May 2012 in Case C‑240/11 P World Wide Tobacco España v Commission, not published in the ECR, paragraphs 45 and 46, and Case C‑508/11 P Eni v Commission [2013] ECR, paragraph 109).

219 That turnover is the best indicator of the ability of the undertaking concerned to mobilise the funds needed to pay the fine (Groupe Gascogne v Commission, cited in paragraph 215 above, paragraph 53).

220 In the present case, since it has been indicated, in paragraph 69 above, that the Commission had established to a sufficient legal standard that the infringements at issue could be attributed to the parent companies of the LPD group, which formed, with that group, a single economic unit, the Commission was entitled, for the purposes of assessing the financial capacity of that unit, to take into consideration the turnover of all of the undertakings comprising that unit.

221 It must be noted that, contrary to the applicant’s argument, the fact that the LPD group did not carry out any of the business conducted by its parent companies cannot justify the exclusion of the latters’ turnover in determining the basic amount of the fine. Since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question (Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 90), the fact that some of those companies were not active on the same market is irrelevant to the determination of the turnover to be taken into account.

The eighth plea in law, alleging, first, breach of the obligation to state reasons, of the principle of equal treatment and of the principle of sound administration and a manifest error of assessment, in that the Commission did not establish the existence of a single economic unit with regard to SEC and Samsung SDI Co., and, secondly, infringement of Article 27 of Regulation No 1/2003 and Article 15 of Regulation No 773/2004 and breach of the rights of the defence, in that the Commission did not give the applicant access to the documents in the investigation relating to the economic, legal and organisational links between SEC and Samsung SDI Co.

223 This plea in law is divided into four parts, alleging, first, breach of the obligation to state reasons, secondly, breach of the principle of equal treatment and a manifest error of assessment, thirdly, breach of the principle of sound administration and, fourthly, infringement of Article 27 of Regulation No 1/2003, of Article 15 of Regulation No 773/2004 and breach of the rights of the defence.

224 The applicant submits that, in view of the information and documents available to the Commission on the structure of the Samsung SDI group, the Commission could not, without breaching the obligation to state reasons, state in the contested decision that it had no evidence proving that SEC and Samsung SDI Co. formed part of the same undertaking.

225 However, it can be seen from the contested decision and, in particular, from recital 745, that the Commission adequately explained its reasons for considering that SEC could not be regarded as having exercised decisive influence over Samsung SDI Co. The Commission noted that SEC’s shareholding in Samsung SDI Co. was below 20% during the period covered by the infringements at issue, without any special rights allowing SEC either to determine Samsung SDI Co.’s commercial conduct or to block its strategic decisions, and it therefore concluded that SEC could not be held liable for Samsung SDI Co.’s conduct. In addition, in footnotes 1938 and 1939, the Commission referred to certain evidence indicating that SEC had no special rights that would allow it to determine Samsung SDI Co.’s commercial conduct, including veto rights entitling it to block strategic decisions, that no employees of SEC had taken part in anticompetitive meetings and SEC was not aware of the existence of the cartels or of Samsung SDI Co.’s involvement in the infringements at issue. In those circumstances, the contested decision discloses the Commission’s reasoning in a clear and unequivocal fashion.

226 It follows from the foregoing that the first part of the eighth plea in law must be rejected.

– The second part, alleging breach of the principle of equal treatment and a manifest error of assessment

227 The applicant submits that the Commission should have found that Samsung SDI Co. and SEC formed part of a single undertaking for the purpose of competition law and that it should, consequently, have attributed liability for the infringements committed by Samsung SDI Co. to SEC or to the controlling party of the Samsung SDI group. It submits that, by failing to carry out such an assessment as regards Samsung SDI Co. and SEC, the Commission committed a manifest error of assessment and breached the principle of equal treatment.

228 In the reply, the applicant argues that the difference in treatment referred to above had the outcome that SEC escaped liability altogether for the infringements committed by Samsung SDI Co., whereas the applicant was held liable for the LPD group’s conduct.

229 According to the applicant, circular shareholdings allowed the L. family, under the management of Mr L., to control the Samsung SDI group with relatively limited equity compared to what would have been required to control the same group in a holding structure, creating major discrepancies between cash flow rights and voting rights. It adds that the strategy of the Samsung SDI group was centrally determined through an informal office held by Mr L. and his family, which decided on appointments, promotions and transfers of top executives within that group. The applicant submits that, during the period concerned by the cartels, numerous senior executives of Samsung SDI Co. held, consecutively or simultaneously, senior management positions in other companies of the group. Lastly, the applicant sets out further indicia to support its line of argument, such as the existence of common commercial principles and values between the two companies as well as centralised recruitment methods for the entire group.

230 However, it must be noted that, as the Commission rightly points out, the applicant does not contest the accuracy of the evidence referred to in recital 745 to the contested decision, according to which SEC’s shareholding in Samsung SDI Co. was less than 20% during the period covered by the infringements at issue, without any special rights, deriving from that shareholding, allowing SEC either to determine Samsung SDI Co.’s commercial conduct or to block its strategic decisions. The applicant argues merely that that evidence is not sufficient to find that Samsung SDI Co. and SEC did not constitute a single undertaking for the purpose of competition law, in view of the elements referred to in paragraph 229 above.

231 However, it must be noted that, although it can be seen from all the elements put forward by the applicant that Samsung SDI Co. and SEC had a particularly close commercial relationship, the applicant has not established that SEC exercised a decisive influence over Samsung SDI Co. and, accordingly, that those two companies constituted an economic unit within the meaning of the case-law cited in paragraphs 34 and 35 above. Consequently, the Commission did not commit a manifest error of assessment in finding that SEC could not be held liable for the conduct of Samsung SDI Co. In those circumstances, the applicant and the LPD group, on the one hand, and SEC and Samsung SDI Co., on the other, were not in comparable situations and the Commission was not required to treat them in the same way (see, to that effect, Gualtieri v Commission, cited in paragraph 110 above, paragraph 70). Accordingly, the applicant is not justified in claiming that the Commission applied different standards to undertakings subject to the same proceedings and thereby breached the principle of equal treatment.

232 Furthermore, that conclusion is supported by other facts of the case. Thus, it must be held that the argument that the Commission applied different standards to different undertakings subject to the same proceedings has no basis in fact. Although it can be seen from the contested decision that, in the absence of evidence, the Commission did not apply the rules on parent companies exercising a decisive influence over their subsidiaries to Samsung SDI Co. and SEC, it must be pointed out that it applied those rules to Samsung SDI Co. and its subsidiaries. Thus, it can be seen from recitals 744 to 753 to the contested decision that the Commission examined the links between Samsung SDI Co., on the one hand, and Samsung SDI Germany and Samsung SDI (Malaysia), on the other, and that it concluded that Samsung SDI Co. had exercised a decisive influence over its subsidiaries. On that basis, the Commission imposed a fine on Samsung SDI Co. not only in respect of its own conduct but also, in its capacity as a parent company, in respect of the unlawful conduct of its two subsidiaries. Consequently, as regards the determination of the fine, it is not established that the Commission, by the application of different methods of calculation, discriminated between the undertakings which had participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see, to that effect, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, cited in paragraph 182 above, paragraph 58 and the case-law cited).

233 Lastly, and in any event, it should be borne in mind that where an undertaking, by its conduct, has infringed Article 101 TFEU, it cannot escape being penalised altogether on the ground that another trader has not been fined when, as in the present case, that trader’s circumstances are not even the subject of proceedings before the Court (Ahlström Osakeyhtiö and Others v Commission, cited in paragraph 111 above, paragraph 197).

234 In those circumstances, the second part of the eighth plea in law must be rejected.

235 The applicant submits that, by ignoring the evidence the applicant had provided concerning the structure of the Samsung SDI group, the Commission breached the principle of sound administration, according to which the Commission has to examine carefully all the relevant aspects of the case.

236 In that respect, it has been recalled, in paragraph 94 above, that, during an administrative procedure before the Commission, the Commission is required to observe the procedural guarantees provided for by EU law (Enso Española v Commission, cited in paragraph 94 above, paragraph 56).

237 The guarantees conferred by the European Union legal order in administrative proceedings include, in particular, the principle of sound administration, which entails the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (La Cinq v Commission, cited in paragraph 95 above, paragraph 86).

238 In the present case, the applicant submits that the Commission ignored the evidence the applicant had provided to it and found that SEC had not exercised a decisive influence over Samsung SDI Co. However, as has been indicated in paragraph 225 above, the Commission — which was not required to refer to all the evidence provided by the applicant on the situation of Samsung SDI Co. and SEC — noted, in the contested decision, several factors which allowed it to conclude that SEC did not have a decisive influence over Samsung SDI Co., with the result that it cannot be claimed that the Commission did not examine carefully and impartially the relevant aspects of the individual case. Moreover, and in any event, it has been indicated, in paragraph 231 above, that the evidence adduced by the applicant on the situation of Samsung SDI Co. and SEC did not establish that SEC had exercised a decisive influence over Samsung SDI Co. Accordingly, the third part of the eighth plea in law must be rejected.

– The fourth part, alleging infringement of Article 27 of Regulation No 1/2003, of Article 15 of Regulation No 773/2004 and of the rights of the defence

239 The applicant submits that the Commission infringed Article 27 of Regulation No 1/2003, Article 15 of Regulation No 773/2004, the Notice on the rules for access to the file and the rights of the defence by failing to provide to the applicant, during the administrative procedure, the documents relating to the investigation into the economic, legal and organisation links between SEC and Samsung SDI Co.

240 In that respect, it must be borne in mind that the right of access to the file, which is a corollary of the principle of protection of the rights of the defence, means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information (see Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 68 and the case-law cited).

241 It may be that the undertaking draws the Commission’s attention to documents capable of providing a different economic explanation for the overall economic assessment carried out by the Commission, in particular those describing the relevant market and the importance and the conduct of the undertakings acting on that market (see Aalborg Portland and Others v Commission, cited in paragraph 240 above, paragraph 69 and the case-law cited).

242 The failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement (see Aalborg Portland and Others v Commission, cited in paragraph 240 above, paragraph 71 and the case-law cited) and, secondly, that the objection could be proved only by reference to that document (see Aalborg Portland and Others v Commission, cited in paragraph 240 above, paragraph 71 and the case-law cited).

243 If there were other documentary evidence of which the parties were aware during the administrative procedure that specifically supported the Commission’s findings, the fact that an incriminating document not communicated to the person concerned was inadmissible as evidence would not affect the validity of the objections upheld in the contested decision (see Aalborg Portland and Others v Commission, cited in paragraph 240 above, paragraph 72).

244 It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence (Aalborg Portland and Others v Commission, cited in paragraph 240 above, paragraph 73).

245 By contrast, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission (see Aalborg Portland and Others v Commission, cited in paragraph 240 above, paragraph 74 and the case-law cited).

246 It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents in its defence, in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission’s assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine (see Aalborg Portland and Others v Commission, cited in paragraph 240 above, paragraph 75 and the case-law cited).

247 The possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might — in the light of that evidence — have had a significance which ought not to have been disregarded. In the context of that provisional analysis, it is for the Court to assess the value which should be attached to the evidence produced to it (see Aalborg Portland and Others v Commission, cited in paragraph 240 above, paragraphs 76 and the case-law cited).

248 In the present case, the applicant argues that the Commission breached the rights of the defence by not giving it access to the documents relating to the economic, legal and organisation links between SEC and Samsung SDI Co., even though those documents were relevant to establishing whether the Commission had applied the same standards and had observed the principal of equal treatment when attributing liability and calculating the amounts of fines to be imposed.

249 First, it is clear from the case-law cited in paragraphs 240 to 247 above that the right of access to the file means only that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence, namely both the incriminating and exculpatory evidence. The documents in respect of which the applicant invokes a breach of the right of access constitute neither incriminating nor exculpatory evidence.

250 Secondly, even if the documents in question could be regarded as incriminating evidence, the applicant has not established that the Commission relied on those documents in order to support its objection relating to the existence of an infringement or that that objection could be proved only by reference to those documents, with the result that it cannot be claimed that the Commission breached the rights of the defence. Likewise, even if the documents at issue could be regarded as exculpatory evidence, the applicant has not demonstrated that it would have been able to use those documents in its defence, in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission’s assessment in the decision it adopted, at least as regards the gravity and the duration of the conduct of which it was accused and accordingly, the level of the fine.

251 Thirdly, the fact that the documents in question were not disclosed did not prevent the applicant from developing, after receiving the statement of objections, a line of argument seeking to establish that SEC and Samsung SDI Co. constituted a single economic unit and that SEC should be held liable for the conduct of Samsung SDI Co. Moreover, the Commission responded to that line of argument, in particular in recital 1030 to the contested decision.

252 It follows from all the foregoing that the Commission did not infringe Article 27 of Regulation No 1/2003, Article 15 of Regulation No 773/2004, or the rights of the defence by not granting access to the documents in question to the applicant. Consequently, the fourth part of the eighth plea in law must be rejected, as must that plea in its entirety.

253 Accordingly, the claims seeking partial annulment of the contested decision must be rejected.

The claims, submitted in the alternative, seeking the annulment or reduction of the fines imposed on the applicant

254 In support of the second head of claim, the applicant raises, in essence, two pleas in law alleging, first, breach of the ‘reasonable time’ principle and infringement of Article 41 and Article 47 of the Charter of Fundamental Rights and of Article 6 of the ECHR and, secondly, breach of the principle of proportionality in the calculation of the fine.

The first plea in law, alleging breach of the ‘reasonable time’ principle and infringement of Article 41 and Article 47 of the Charter of Fundamental Rights and of Article 6 of the ECHR

255 The applicant claims that the duration of the period between the statement of objections and the contested decision was greater than 36 months and exceeded the time normally needed for the adoption of a decision. It adds that that excessively long period was attributable to two errors on the Commission’s part, which resulted in its having to issue a supplementary statement of objections. The applicant therefore asks the Court to exercise its unlimited jurisdiction in order to grant the applicant fair satisfaction for the excessive length of the procedure.

256 According to settled case-law, compliance with the requirement that administrative procedures relating to competition policy be conducted within a reasonable time constitutes a general principle of EU law whose observance the EU judicature ensures (Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 40).

257 The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities. That list of criteria is not exhaustive and the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case may be deemed to justify a duration which is prima facie too long. (see Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraphs 116 to 117 and the case-law cited).

258 Furthermore, it is clear from the case-law that breach of the ‘reasonable time’ principle may have two types of legal consequences. First, where the breach of the ‘reasonable principle’ has had an effect on the outcome of the procedure, that breach may entail the annulment of the contested decision (see Technische Unie v Commission, cited in paragraph 256 above, paragraph 48 and the case-law cited).

259 Secondly, where the breach of the ‘reasonable time’ principle has no bearing on the outcome of the procedure, that breach may lead the Court, in the exercise of its unlimited jurisdiction, to give adequate redress for the breach resulting from the failure to adjudicate within a reasonable time in the administrative procedure by reducing, if necessary, the amount of the fine imposed (see, to that effect, Case T‑240/07 Heineken Nederland and Heineken v Commission [2011] ECR II‑3355, paragraphs 429 and 434).

260 For the purposes of the application of that principle, a distinction must be drawn between the two stages of the administrative procedure, namely the investigation stage preceding the statement of objections and the stage corresponding to the remainder of the administrative procedure, each corresponding to its own internal logic (Technische Unie v Commission, cited in paragraph 256 above, paragraphs 42 and 43).

261 The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, under the powers conferred by the legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned (Technische Unie v Commission, cited in paragraph 256 above, paragraph 43).

262 In the present case, it must be noted, first, that the applicant invokes the unreasonable duration of the administrative procedure in order to obtain a reduction of the fine imposed on it and not in support of its claims seeking the annulment of the contested decision. Secondly, the applicant solely takes issue with the Commission as regards the unreasonable nature of the second period of the administrative procedure. In that respect, it asserts that the period between the notification of the statement of objections, on 23 November 2009, and the adoption of the contested decision, on 5 December 2012 — more than 36 months — is unreasonable. The applicant adds that the reason the Commission had to issue a supplementary statement of objections in June 2012 was to correct mistakes it had made in the first statement of objections, and it follows, according to the applicant, that the delay in adopting the contested decision is due to the Commission’s behaviour.

263 As a preliminary point, it must be stated that undertakings have a specific interest in the second stage of the procedure being conducted with particular diligence since, by adopting the statement of objections, the Commission evidences its intention to proceed to a decision finding an infringement and it is only on receipt of that statement of objections that an undertaking may take cognisance of the subject-matter of the procedure which is initiated against it and of the conduct of which it is accused.

264 In the present case, it must be noted that the second stage of the administrative procedure lasted from 23 November 2009 to 5 December 2012, that is to say, three years and twelve days.

265 First, it must be pointed out that, during that period, the Commission conducted the administrative procedure diligently. Thus, after adopting the statement of objections, on 23 November 2009, the Commission informed the addressees of that document that they could access the investigation file; it received the written submissions of some of those addressees; it organised an oral hearing held on 26 and 27 May 2010; it received additional submissions from Toshiba and Panasonic, and then MTPD, along with evidence; it sent, on 22 December 2010, a letter of facts to Toshiba and Panasonic, and then MTPD, concerning their decisive influence over MTPD, to which Toshiba replied on 4 February 2011; it informed the addressees of the statement of objections that, from 9 to 12 November 2010, they could access statements made by a Toshiba employee; on 4 March 2011, it sent requests to the addressees of the statement of objections asking them to provide information on their sales and overall turnover, which were followed by further requests to supplement or clarify the data provided; it adopted two supplementary statements of objections intended to supplement, amend and clarify the objections addressed to Philips and LGE; it informed Philips and LGE that they could access the file; it received their written submissions and heard them on 6 September 2012, and, lastly, on 5 July 2012, it sent all the addressees of the statement of objections a new letter of facts, to which Toshiba, Samsung SDI Co. and Panasonic, and then MTPD, responded, on 19, 27 and 31 July 2012 respectively. Finally, the contested decision was adopted on 5 December 2012.

266 Secondly, as the Commission rightly submits, as a result, inter alia, of the significant number of leniency applications in the present case, the Commission had to deal with a voluminous file relating to more than 1 000 collusive contacts and containing numerous documents that had to be translated from Chinese, Korean or Japanese into English. In that respect, it is necessary to reject the applicant’s argument that the fact that there was a large number of leniency applications in the present case provided the Commission, without its having to undertake investigative measures, with documents in which the relevant information had been identified by the leniency applicants, thereby reducing the Commission’s workload. As the Commission rightly points out, it is nevertheless the case that much of the information provided by the leniency applicants had to be analysed, verified and, where necessary, translated and completed by the Commission, which affected the duration of the administrative procedure.

267 Furthermore, it does not appear from the file that the duration of the second stage of the procedure is attributable to the Commission’s behaviour alone and, in particular, to the need to correct mistakes in the statement of objections by adopting supplementary statements of objections. In recital 2 to the supplementary statement of objections, addressed to the applicant, the Commission indicated that, throughout the administrative procedure, the applicant had failed to clarify the place occupied by the entity responsible for the CRT business within its group. In the rejoinder, the Commission stated that the supplementary statement of objections had become necessary because of the applicant’s incomplete and inaccurate replies to the Commission’s requests for information. In that respect, it must be noted, first, that the applicant has not contested the findings in recital 2 to the statement of objections concerning the incomplete nature of the information that it provided. Secondly, the applicant refers to annexes to the application in an attempt to establish that, from its reply to the first statement of objections, in March 2010, and from the hearing held in May 2010, it had provided the Commission with the necessary information concerning, inter alia, the structure of its group and, in particular, the entity managing the CRT business within that group. It must be pointed out, however, that those annexes do not contradict the Commission’s line of argument concerning the incomplete nature of the information provided by the applicant. One of those annexes corresponds to the applicant’s reply to the statement of objections, dated 12 March 2010, but it does not contain any explanation of the structure of the applicant’s group. Moreover, another of those annexes, which corresponds to the statement made by the applicant at its hearing in May 2010, merely indicates that the infringements committed before 1 July 2001, which the applicant is alleged to have committed by the Commission, are time-barred. In those circumstances, the Commission’s adoption of two supplementary statements of objections cannot be regarded as being entirely attributable to its own behaviour.

268 In the light of the findings in paragraphs 265 to 267 above, it must be held that the second stage of the administrative procedure, and, moreover, of the procedure as a whole, was not of an unreasonable duration given the circumstances of the case. It therefore cannot be claimed that the Commission infringed Article 41 and Article 47 of the Charter of Fundamental Rights or Article 6 of the ECHR.

The second plea in law, alleging breach of the principle of proportionality in the calculation of the fine

270 The applicant submits, in essence, that the fines imposed on it are excessive and disproportionate and asks the Court to reduce them.

271 It must be recalled that, under Article 23(2) of Regulation No 1/2003, the Commission may by decision impose fines on undertakings which, either intentionally or negligently, infringe Article 101 TFEU, and that, for each undertaking and association of undertakings participating in the infringement, the fines are not to exceed 10% of its total turnover in the preceding business year. Paragraph 3 of that article provides that, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement.

272 It is settled case-law that the amount of the fine must be fixed at a level which takes account of the circumstances and the gravity of the infringement, the latter to be appraised by taking into account, inter alia, the nature of the restrictions on competition (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 176, and Joined Cases T‑213/95 and T‑18/96 SCK and FNK v Commission [1997] ECR II‑1739, paragraph 246). Although the choice of the amount of fines constitutes an instrument of the Commission’s competition policy, used in order to channel the conduct of undertakings towards observance of the competition rules (Case T‑150/89 Martinelli v Commission [1995] ECR II‑1165, paragraph 59, and Case T‑49/95 Van Megen Sports v Commission [1996] ECR II‑1799, paragraph 53), the Court is nevertheless under a duty to verify whether the amount of the fine imposed is proportionate in relation to the gravity and duration of the infringement (Case T‑229/94 Deutsche Bahn v Commission [1997] ECR II‑1689, paragraph 127). The Court must, in particular, weigh the gravity of the infringement and the circumstances invoked by the applicant (Case C‑333/94 P Tetra Pak v Commission [1996] ECR I‑5951, paragraph 48).

273 In the present case, the Commission set the fines imposed on the applicant, in view of the gravity and the duration of the infringements at issue, at EUR 73 185 000, as regards CDTs, and at EUR 240 171 000, as regards CPTs. It also imposed a fine of EUR 69 048 000, as regards CDTs, and of EUR 322 892 000, as regards CPTs, on the applicant jointly and severally with LGE.

274 In order to establish the disproportionate nature of the fines imposed on it, the applicant claims, first, that the cartel took place during a period in which the relevant market experienced a collapse in sales followed by the disappearance of the market in the EEA, with the result that the cartel is likely to have had a smaller impact on the market than it might have had in a situation of market stability and a relatively small decline in prices and turnover.

275 However, the applicant cannot effectively invoke the poor financial health of the CRT sector during the period concerned by the cartel in order to support its claim that the fine is disproportionate. As the Commission rightly notes, cartels such as those in the present case generally come into being when a sector encounters difficulties. Furthermore, the applicant has not put forward any evidence, in particular any evidence supported by figures, capable of establishing that the infringements at issue had only a small impact on the market.

276 Secondly, the applicant observes that it did not commit the infringements directly but that it is held liable for the participation of another entity, from which it bought CRTs at cartelised prices without deriving the slightest advantage from the arrangement.

277 However, as indicated in paragraph 35 above, where a parent company exercises a decisive influence over its subsidiary, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (EI du Pont de Nemours v Commission, cited in paragraph 35 above, paragraph 42). Accordingly, the fact that the applicant did not itself commit the infringement is irrelevant in the present case.

278 Furthermore, the fact that the applicant did not derive any advantage from the conduct of the LPD group is ineffective. Whilst the amount of the fine imposed must be in proportion to the duration of the infringement and to the other factors capable of affecting the assessment of the gravity of the infringement, including the profit which the undertaking concerned was able to derive from those practices, the fact that an undertaking did not benefit from an infringement cannot, according to the case-law, preclude the imposition of a fine, since otherwise it would cease to have a deterrent effect (Case T‑52/02 SNCZ v Commission [2005] ECR II‑5005, paragraph 89 and the case-law cited).

279 Thirdly, the applicant alleges that the Commission did not notify the contested decision to the LPD group, with the result that the applicant is restricted in its ability to recover part of the fines from that group. However, that situation, which is, moreover, entirely theoretical (see paragraph 88 above) and which concerns neither the gravity nor the duration of the infringement, has no bearing on the assessment of the proportionate nature of the fine at issue.

280 Fourthly, there is no other ground to justify the Court varying the contested decision as regards the amount of the fine.

281 The Court takes the view, lastly, that there is in this case no public policy ground which it is required to raise of its own motion (see, to that effect, Case C‑389/10 P KME Germany and Others v Commission [2011] ECR I‑13125, paragraph 131) to justify it making use of its power to vary the contested decision with a view to annulling or reducing the fine.

282 It follows from all of the foregoing that the second plea in law put forward in support of the claim seeking the reduction or the annulment of the fines must be rejected, as must the claims in their entirety.

284 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

– The first part, alleging infringement of Article 101 TFEU and Article 53 of the EEA Agreement

– The second part, alleging infringement of Article 27(1) of Regulation No 1/2003 and breach of the rights of the defence and of the principle of sound administration

– The first part, alleging infringement of Article 101 TFEU, of Article 53 of the EEA Agreement as well as Article 23 and Article 25 of Regulation No 1/2003

– The third part, alleging breach of the principles of legal certainty and of the protection of legitimate expectations

– The second part, alleging infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 23 of Regulation No 1/2003, and breach of the 2006 Guidelines

– The second part, alleging breach of the principle of equal treatment and a manifest error of assessment

– The fourth part, alleging infringement of Article 27 of Regulation No 1/2003, of Article 15 of Regulation No 773/2004 and of the rights of the defence

The claims, submitted in the alternative, seeking the annulment or reduction of the fines imposed on the applicant

The first plea in law, alleging breach of the ‘reasonable time’ principle and infringement of Article 41 and Article 47 of the Charter of Fundamental Rights and of Article 6 of the ECHR

The second plea in law, alleging breach of the principle of proportionality in the calculation of the fine

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Philips v Commission (Judgment) [2015] EUECJ T-92/13 (09 September 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T9213.html Cite as: EU:T:2015:605, [2015] EUECJ T-92/13, ECLI:EU:T:2015:605

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