Judgments nº T-422/14 of Tribunal General de la Unión Europea, July 12, 2018

• Resolution Date: July 12, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-422/14

(Competition - Agreements, decisions and concerted practices - European market for power cables - Decision finding an infringement of Article 101 TFEU - Single and continuous infringement - Proof of the infringement - Duration of participation - Public distancing - Calculation of the fine - Gravity of the infringement - Unlimited jurisdiction)

In Case T-422/14,

Viscas Corp., established in Tokyo (Japan), represented by J.-F. Bellis, lawyer,

applicant,

supported by

Furukawa Electric Co. Ltd, established in Tokyo, represented by C. Pouncey, A. Luke and L. Geary, Solicitors,

intervener,

v

European Commission, represented by C. Giolito, L. Parpala, H. van Vliet and A. Biolan, acting as Agents, and by B. Doherty, Barrister,

defendant,

ACTION pursuant to Article 263 TFEU for partial annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 - Power cables) in so far as it concerns the applicant and, in the alternative, an application for a reduction in the amount of the fine imposed on the applicant in that decision,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins, President, M. Kancheva (Rapporteur) and R. Barents, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 5 May 2017,

gives the following

Judgment

Background to the dispute

The applicant and the sector concerned

1 The applicant, Viscas Corp., is a company owned in equal shares by Furukawa Electric Co. Ltd (‘Furukawa’) and Fujikura Ltd. On 1 October 2001, when Viscas Corp. was formed, those companies transferred to it their activities in the design and sale of underground and submarine power cables for projects outside Japan, while retaining their production capabilities and their sales in Japan and abroad to Japanese customers. At the beginning of 2005, Furukawa and Fujikura transferred their respective power cable manufacturing facilities and certain sales to the applicant, while retaining their sales in Japan to certain reserved customers. Submarine power cables are used under water and underground power cables are used under the ground for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage, and high and extra high voltage. High voltage and extra high voltage power cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of the power cable and the necessary additional equipment, installation and services. Power cables are sold throughout the world to large national grid operators and other electricity companies, principally through competitive public tender procedures.

The administrative procedure

2 By letter of 17 October 2008, the Swedish company ABB provided the Commission of the European Communities with a series of statements and documents concerning restrictive commercial practices in the underground and submarine power cable production and supply sector. Those statements and documents were provided in support of an application for immunity submitted in accordance with the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the Leniency Notice’).

3 From 28 January to 3 February 2009, further to the statements made by ABB, the Commission carried out inspections at the premises of the Italian companies Prysmian SpA and Prysmian Cavi e Sistemi Energia Srl and the French companies Nexans SA and Nexans France SAS.

4 On 2 February 2009, the Japanese companies Sumitomo Electric Industries Ltd, Hitachi Cable Ltd and J-Power Systems Corp. submitted a joint application for immunity from fines, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction in their amount, in accordance with point 27 of the Leniency Notice. They then supplied the Commission with further oral statements and documentation.

5 During the course of the investigation, the Commission sent several requests for information to undertakings in the underground and submarine power cable production and supply sector, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1), and point 12 of the Leniency Notice.

6 On 30 June 2011, the Commission opened a procedure and adopted a statement of objections against the following legal entities: Pirelli & C. SpA, Prysmian Cavi e Sistemi Energia, Prysmian, The Goldman Sachs Group Inc., Nexans, Nexans France, Sumitomo Electric Industries, Hitachi Cable, J-Power Systems, Furukawa, Fujikura, SWCC Showa Holdings Co. Ltd, Mitsubishi Cable Industries Ltd, Exsym Corp., ABB, ABB Ltd, Brugg Kabel AG, Kabelwerke Brugg AG Holding, nkt cables GmbH, NKT Holding A/S, Silec Cable SAS, Grupo General Cable Sistemas SA, Safran SA, General Cable Corp., LS Cable & System Ltd, Taihan Electric Wire Co. Ltd and the applicant.

7 Between 11 and 18 June 2012, the addressees of the statement of objections, with the exception of Furukawa, took part in an administrative hearing before the Commission.

8 By judgments of 14 November 2012, Nexans France and Nexans v Commission (T-135/09, EU:T:2012:596), and of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T-140/09, not published, EU:T:2012:597), the Court partly annulled the inspection decisions addressed, first, to Nexans and Nexans France and, second, to Prysmian and Prysmian Cavi e Sistemi Energia, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the action as to the remainder. On 24 January 2013, Nexans and Nexans France brought an appeal against the first of those two judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C-37/13 P, EU:C:2014:2030), the Court of Justice dismissed that appeal.

9 On 2 April 2014, the Commission adopted Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 - Power cables) (‘the contested decision’).

The contested decision

The infringement at issue

10 Article 1 of the contested decision states that several undertakings participated, over various periods of time, in a single and continuous infringement of Article 101 TFEU in the ‘(extra) high voltage underground and/or submarine power cable sector’. In essence, the Commission found that, from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables had participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition in connection with (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers among themselves, thereby distorting the normal competitive process (recitals 10 to 13 and 66 of that decision).

11 In the contested decision, the Commission found that the cartel consisted of two main configurations, which formed a composite whole. More specifically, according to the Commission, the cartel comprised:

- the ‘A/R cartel configuration’, which included the European undertakings, generally referred to as the ‘R’ members, the Japanese undertakings, referred to as the ‘A’ members, and lastly the South Korean undertakings, referred to as the ‘K’ members. That configuration made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers. That allocation followed an agreement relating to ‘home territory’, under which the Japanese and Korean producers would refrain from competing for projects in the European producers’ ‘home territory’, while the European producers stayed out of the Japanese and South Korean markets. In addition, the parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States. For a time that allocation was based on a ‘60/40 quota’, meaning that 60% of the projects were reserved for the European producers and the remaining 40% for the Asian producers; and

- the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects to be implemented within the European ‘home’ territory or allocated to the European producers (see Section 3.3 of the contested decision and, in particular, recitals 73 and 74 of that decision).

12 The Commission found that the participants in the cartel had established obligations to exchange information in order to enable the allocation agreements to be monitored (recitals 94 to 106 and 111 to 115 of the contested decision).

13 The Commission classified the cartel participants in three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group of the cartel, which included, on the one hand, the European undertakings Nexans France, the subsidiary undertakings of Pirelli & C., formerly Pirelli SpA, which participated successively in the cartel (‘Pirelli’) and Prysmian Cavi e Sistemi Energia and, on the other hand, the Japanese undertakings Furukawa, Fujikura and their joint venture, namely the applicant, as well as Sumitomo Electric Industries, Hitachi Cable and their joint venture J-Power Systems (recitals 545 to 561 of the contested decision). Next, it identified a group of undertakings which were not part of the core group but which nevertheless could not be regarded as merely fringe players in the cartel. In this group it placed ABB, Exsym, Brugg Kabel and the entity constituted by Sagem SA, Safran and Silec Cable (recitals 562 to 575 of the...