Sony Corporation and Sony Electronics, Inc v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:478
• Docket Number: C-697/19
• Date: 16 June 2022
• Celex Number: 62019CJ0697
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Fourth Chamber)

16 June 2022 ( *1 )

(Appeal – Competition – Agreements, decisions and concerted practices – Optical disk drives – Decision finding an infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 – Single and continuous infringement – Definition – Collusive agreements relating to procurement events concerning optical disk drives for notebook and desktop computers organised by two computer manufacturers)

In Case C‑697/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 September 2019,

Sony Corporation, established in Tokyo (Japan),

Sony Electronics Inc., established in San Diego (United States),

represented by E. Kelly, N. Levy and R. Snelders, avocats,

appellants,

the other party to the proceedings being:

European Commission, represented by A. Dawes, M. Farley, F. van Schaik and L. Wildpanner, acting as Agents,

defendant at first instance,

THE COURT (Fourth Chamber),

composed of K. Jürimäe (Rapporteur), President of the Third Chamber, acting as President of the Fourth Chamber, S. Rodin and N. Piçarra, Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 3 June 2021,

gives the following

Judgment

1 By their appeal, Sony Corporation and Sony Electronics Inc. (together ‘the appellants’) seek to have set aside the judgment of the General Court of the European Union of 12 July 2019, Sony and Sony Electronics v Commission (T‑762/15, EU:T:2019:515, ‘the judgment under appeal’), by which the General Court dismissed their action seeking, principally, the partial annulment of Commission Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 – Optical disk drives) (‘the decision at issue’), to the extent that it concerns them, and, in the alternative, the reduction in the amount of the fine imposed on them.

Legal context

2 Article 23(2) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) provides: ‘2. The [European] Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article [101 or 102 TFEU]; or (b) they contravene a decision ordering interim measures under Article 8; or (c) they fail to comply with a commitment made binding by a decision pursuant to Article 9. … Where the infringement of an association relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by the infringement of the association. 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 27(2) of that regulation provides: ‘The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the competition authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competition authorities of the Member States, or between the latter, including documents drawn up pursuant to Articles 11 and 14. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.’

4 Article 31 of that regulation is worded as follows: ‘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.’

5 As regards the calculation of the fines, points 6 and 13 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; ‘Guidelines on the method of setting fines’) provide: ‘6. 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. Reference to these factors provides a good indication of the order of magnitude of the fine and should not be regarded as the basis for an automatic and arithmetical calculation method. … 13. 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)]. …’

Background to the dispute and the decision at issue

6 The background to the dispute is set out in paragraphs 1 to 37 of the judgment under appeal and, for the purposes of the present proceedings, can be summarised as follows.

7 The Sony Group, to which the appellants belong, manufactures audio, video, communications and information technology products for the consumer and professional markets and is a provider of entertainment content, products and services.

8 The first appellant, Sony Corporation, which is a stock corporation governed by Japanese law, is the group’s ultimate parent company. The second appellant, Sony Electronics, is a wholly owned indirect subsidiary of Sony Corporation and is established in the United States. Sony Electronics, which is governed by the laws of Delaware (United States), carries out research and development, design, engineering, sales, marketing, distribution, and customer service activities.

9 Between May 2003 and March 2007, Lite-On designed and manufactured optical disk drive (‘ODD’) products ultimately sold under the Sony brand on the basis of revenue-sharing arrangements. Under those arrangements, sales responsibility was in general conferred upon the appellants while Lite-On was responsible for quality and engineering issues.

10 The infringement at issue concerns ODDs used, in particular, in personal computers (desktops and notebooks) produced by Dell Inc. and Hewlett Packard (‘HP’).

11 Dell and HP are the two most important original equipment manufacturers on the global market for personal computers. Those two companies use standard procurement procedures carried out on a global basis which involve, inter alia, quarterly negotiations over a worldwide price and overall purchase volumes with a limited number of pre-qualified ODD suppliers.

12 The procurement procedures include requests for quotations, electronic requests for quotations, internet negotiations, e-auctions and bilateral (offline) negotiations. At the end of a procurement procedure, clients assign volumes to participating ODD suppliers in accordance with the prices that they offer.

13 Sony Electronics was, together with Sony Corporation, the legal entity participating on behalf of Sony in the procurement events organised by Dell and continued to do so until 1 April 2007.

14 On 14 January 2009, the Commission received a request for immunity under its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) lodged by Koninklijke Philips NV. On 29 January and 2 March 2009, that request was supplemented to include, alongside that company, Lite-On IT Corporation and their joint venture Philips & Lite-On Digital Solutions Corporation.

15 On 30 June 2009, the Commission granted conditional immunity to Koninklijke Philips, Lite-On IT and Philips & Lite-On Digital Solutions.

16 On 18 July 2012, the Commission sent a statement of objections to 13 suppliers of ODDs, including the appellants (‘the statement of objections’), in which it stated that they had infringed 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’) by participating in a cartel concerning ODDs from 5 February 2004 until 29 June 2009 consisting in orchestrating their behaviour in bidding events organised by two computer manufacturers, namely Dell and HP.

17 On 29 October 2012, in reply to the statement of objections, the appellants submitted their written comments. A hearing was held on 29 and 30 November 2012, in which all the addressees of the statement of objections participated.

18 On 21 October 2015, the Commission adopted the decision at issue.

19 In that decision, the Commission considered that the cartel participants had coordinated their competitive behaviour, at least between 23 June 2004 and 25 November 2008. It specified that that coordination took place through a network of parallel bilateral contacts. It stated that the cartel participants sought to accommodate their volumes on the market and ensure that the prices remained at levels higher than they would have been in the absence of those bilateral contacts.

20 The Commission specified, in the decision at issue, that the coordination between the cartel participants concerned the customer...