Nippon Chemi-Con Corporation v European Commission.

• Jurisdiction: European Union
• Date: 29 September 2021
• Court: General Court (European Union)

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

29 September 2021 ( *1 )

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

In Case T‑363/18,

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

applicant,

v

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

defendant,

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

THE GENERAL COURT (Ninth Chamber, Extended Composition),

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

Registrar: C. Kristensen, Administrator,

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

gives the following

Judgment ( 1 )

I. Background to the dispute

A. The applicant and the sector concerned

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

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

B. The administrative procedure

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

4 On 28 March 2014, under Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), the Commission sent requests for information to a number of undertakings operating in the electrolytic capacitors sector, including the applicant.

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

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

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

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

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

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

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

C. The contested decision

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

1. The infringement

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

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

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

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

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

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

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

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

2. The applicant’s liability

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

3. The fine imposed on the applicant

22 Article 2(j) of the contested decision imposes a fine of EUR 97921000 on the applicant.

4. The calculation of the amount of the fines

23 In order to calculate the amount of the fines, the Commission applied the methodology...