LG Display Co. Ltd and LG Display Taiwan Co. Ltd v European Commission.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Ó Caoimh
• ECLI: ECLI:EU:C:2015:258
• Date: 23 April 2015
• Docket Number: C-227/14
• Procedure Type: Recurso de anulación

JUDGMENT OF THE COURT (Eighth Chamber)

23 April 2015 ( *1 )

‛Appeal — Competition — Agreements, decisions and concerted practices — Article 101 TFEU and Article 53 of the EEA Agreement — Worldwide market for liquid crystal display (LCD) panels — Price-fixing — Fines — Guidelines on the method of setting fines (2006) — Point 13 — Determination of value of sales — Joint venture — Taking sales to parent companies into account — Notice on immunity from fines and reduction of fines in cartel cases (2002) — Point 23(b), final paragraph — Partial immunity from fines — Evidence of facts previously unknown to the Commission’

In Case C‑227/14 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 May 2014,

LG Display Co. Ltd, established in Seoul (South Korea),

LG Display Taiwan Co. Ltd, established in Taipei (Taiwan),

represented by A. Winckler and F.-C. Laprévote, avocats,

appellants,

the other party to the proceedings being:

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

defendant at first instance,

THE COURT (Eighth Chamber),

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

Advocate General: M. Wathelet,

Registrar: I. Illéssy, Administrator,

having regard to the written procedure and further to the hearing on 26 January 2015,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By their appeal, LG Display Co. Ltd (‘LGD’) and LG Display Taiwan Co. Ltd (‘LGDT’) request the Court partly to set aside the judgment of the General Court of the European Union in LG Display and LG Display Taiwan v Commission (T‑128/11, EU:T:2014:88; ‘the judgment under appeal’), whereby the General Court (i) varied Commission Decision C(2010) 8761 final of 8 December 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the Agreement on the European Economic Area (Case COMP/39.309 — LCD), a summary of which was published in the Official Journal of the European Union of 7 October 2011 (OJ 2011 C 295, p. 8; ‘the contested decision’), by setting at EUR 210000000 the fine imposed jointly and severally on them in Article 2 of that decision and (ii) dismissed, as to the remainder, their action for the partial annulment of that decision, in so far as it concerns them, and for a reduction in the amount of that fine.

Legal context

2 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), provides in Article 23(2) and (3) thereof: ‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article [101 TFEU] or [102 TFEU] ... ... For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year. ... 3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

3 Article 31 of that regulation provides: ‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’

4 Point 6 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 Guidelines on the method of setting fines’) provides: ‘The 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 ...’

5 Under the heading ‘Basic amount of the fine’, point 13 of those Guidelines states: ‘In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within [the European Economic Area (EEA)]. ...’

6 Point 23(b) of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’) provides for various reductions in fines which can be granted to undertakings according to the order on which they provided information. The final paragraph of that provision reads as follows: ‘In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’

Background to the dispute and the contested decision

7 The facts giving rise to the dispute and the contested decision, as set out in paragraphs 1 to 31 of the judgment under appeal, may be summarised as follows.

8 LGD is a company governed by Korean law which controls a group of companies established and operating worldwide in the production of liquid crystal display panels (‘LCD panels’). LGD was formed on 26 July 1999 through a joint venture agreement between LG Electronics Inc., a company governed by Korean law (‘LGE’), and Koninklijke Philips Electronics NV (‘Philips’), a company governed by Netherlands law. From 26 July 1999 until 23 July 2004, LGE and Philips each owned 50% of the capital of LGD. Subsequently, their respective shareholdings fell to 37.9% and 32.87%.

9 LGDT, a company governed by Taiwanese law, is a wholly owned subsidiary of LGD and is active in the production and supply of LCD panels.

10 In the spring of 2006, Samsung Electronics Co. Ltd (‘Samsung’), a company governed by Korean law, submitted to the Commission an application for immunity from fines under the Leniency Notice. In doing so, Samsung disclosed the existence of a cartel between several companies, including LGD and LGDT, concerning certain types of LCD panels.

11 On 17 July 2006 LGD also submitted to the Commission an application for immunity from fines under the Leniency Notice.

12 On 23 November 2006 the Commission granted conditional immunity to Samsung, in accordance with point 15 of the Leniency Notice, whereas it refused LGD such immunity.

13 On 27 May 2009 the Commission initiated the administrative procedure and adopted a statement of objections which was sent to 16 companies, including the appellants, LGE, and Philips. That statement of objections explained, inter alia, the reasons why, pursuant to the case-law of the General Court, those parties were to be held jointly and severally responsible for the infringements committed by LGD.

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

15 On 1 February 2010 LGD submitted an application, based on the final paragraph of point 23(b) of the Leniency Notice, whereby it requested partial immunity with respect to its participation in the cartel in the years 2005 and 2006.

16 By a request for information of 4 March 2010 and by a supplementary letter of 6 April 2010, the parties were, inter alia, invited to submit to the Commission data concerning the value of the sales to be taken into account for the setting of the basic amount of the fines and to comment on that issue. LGD provided the data concerning it by letter of 21 April 2010.

17 On 8 December 2010 the Commission adopted the decision at issue. The contested decision is addressed to 6 of the 16 companies to which the statement of objections was addressed, including the appellants and Samsung. By contrast, LGE and Philips were not included.

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

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