CJ, 13-07-2023, nr. C-757/21 P

Nichicon Corporation submits that, in paragraph 147 of the judgment under appeal, the General Court stated that the contacts at the meeting of 18 December 1998 were anticompetitive in nature and therefore found, in essence, that there was an infringement by object. As follows from paragraphs 141 to 146 of the judgment under appeal, that conclusion of the General Court is based on the following statement by rival company M.: ‘Europe — a visible drop is beginning. With respect to the euro settlement, we will provide support from April of next year’.

However, the findings of the General Court do not permit a finding of infringement by object. The concept of restriction ‘by object’, within the meaning of Article 101 TFEU, must be interpreted restrictively. It is therefore not sufficient that the exchange of information may have a direct influence on the commercial strategy and reduce the degree of uncertainty. Furthermore, that conduct must, in itself, reveal a sufficient degree of harm to competition. The General Court gave no reason why, on its own or because of its economic or legal context, an exchange of information concerning the state of orders and the acceptance of the euro should be regarded, by its very nature, as being harmful to the proper functioning of normal competition. In the absence of any characterisation as an infringement by object, it was therefore necessary to demonstrate the anticompetitive effects of the conduct censured.

The Commission disputes that line of argument.

In order to rule on the first part of the second ground of appeal, it must be noted, first, that Nichicon Corporation submits that the General Court erred in law in classifying its conduct as anticompetitive. However, it does not dispute either the case-law referred to in paragraphs 105 to 111 of the judgment under appeal or the conclusion which the General Court draws from it in paragraph 112 of that judgment, according to which the provision of commercially sensitive information, such as the exchange of information regarding pricing, including future pricing, information regarding supply and demand, including in relation to future supply and demand (in particular production volumes or increases or decreases in shipments), makes it possible to reduce uncertainty as to the conduct of competitors on the market, leading to conditions of competition which do not correspond to the normal conditions of the market and, consequently, gives rise to a concerted practice having as its object the restriction of competition, within the meaning of Article 101(1) TFEU.

Secondly, Nichicon Corporation does not dispute the General Court's conclusion in paragraph 146 of the judgment under appeal that the participants in the meeting of 18 December 1998 exchanged, at that meeting, individualised and sensitive information capable of directly influencing their conduct on the relevant market.

In those circumstances, Nichicon Corporation cannot be justified in stating that the General Court should still have ascertained whether the conduct complained of in the present case presented, in itself, a sufficient degree of harm to competition and examined its effects on competition.

Consequently, the first part of the second ground of appeal is unfounded.

Nichicon Corporation submits that, in paragraphs 195 and 227 of the judgment under appeal, the General Court accepted that the bilateral contacts with NEC Tokin which had taken place, first, in the period between April and May 2005 (‘the contact with NEC Tokin of 2005’) and, secondly, in February and July 2009, had been established by the Commission solely on the basis of NEC Tokin's statement of 30 October 2014 (ID 930). However, it wrongly rejected, in paragraphs 199 and 227 of the judgment under appeal, Nichicon Corporation's arguments that the Commission had not established those contacts to the requisite legal standard. The General Court concluded, first, that that statement was ‘reliable to a certain degree’ and that the Commission was therefore entitled to rely exclusively on that document. Secondly, the General Court, in paragraph 197 of the judgment under appeal, regarded the fact that Nichicon Corporation had not disputed the existence of the contact with NEC Tokin of 2005 in the administrative procedure as additional evidence. Those two findings are vitiated by errors of law.

In the first place, the General Court's conclusion, in paragraph 199 of the judgment under appeal, that NEC Tokin's statement of 30 October 2014 (ID 930) was ‘reliable to a certain degree’ is based on the assessment, in paragraph 196 of the judgment under appeal, that ‘it is in no way worded vaguely’, ‘originates from a direct witness’ and ‘runs counter to NEC Tokin's interests’.

First, in making those assessments, the General Court went beyond reviewing the legality of the decision at issue and substituted its own assessment for that of the Commission. The General Court's conclusion that that statement is particularly reliable has no basis in the contested decision. The Commission did not analyse whether that statement specifically satisfied the conditions for relying exclusively on it. The question whether those conditions are met cannot be dealt with for the first time before the General Court.

Secondly, by holding that the Commission could rely exclusively on NEC Tokin's statement of 30 October 2014 (ID 930) in order to establish the contacts in question, the General Court infringed Nichicon Corporation's rights of defence as set out in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. As regards the use of witness statements of accomplices in criminal proceedings, the European Court of Human Rights has held that the use of witness statements in exchange for immunity or other advantages may compromise the fairness of the proceedings brought against the accused and raise delicate issues since, by their very nature, such statements are open to manipulation and may be made solely with a view to obtaining the advantages offered in exchange or as part of a personal vendetta. Therefore, those statements should be subject to a higher degree of scrutiny. Such a high degree of scrutiny is also required for corporate leniency statements which, like NEC Tokin, are not the first to appear and which are therefore in a race to provide the Commission with significant added value.

The standard of proof applied by the General Court, which considered that it is sufficient that NEC Tokin's statement of 30 October 2014 (ID 930) was ‘reliable to a certain degree’, therefore falls short of the higher degree of scrutiny required by Article 48 of the Charter of Fundamental Rights. In addition, the General Court's analysis of that statement, which is limited solely to paragraph 196 of the judgment under appeal and which, moreover, does not take into account the entire content of that statement, also fails to meet the requirements of the case-law of the Court of Justice, in particular the judgment of 19 December 2013, Siemens and Others v Commission (C-239/11 P, C-489/11 P and C-498/1 P, not published, EU:C:2013:866, paragraphs 164 and 165).

In the second place, the General Court, in paragraphs 197 and 227 of the judgment under appeal, considered that Nichicon Corporation's failure to dispute the existence of the contacts in question in the administrative procedure is capable of constituting additional evidence. That is based on a manifest distortion of the evidence. It is clearly contradicted by Nichicon Corporation's reply to the statement of objections, in which the existence of those contacts was indeed disputed on account of a lack of corroboration.

In the third place, Nichicon Corporation adds that the General Court's findings on the geographic scope of the bilateral contacts with NEC Tokin also distort the evidence. In paragraphs 205 and 233 of the judgment under appeal, the General Court rejected Nichicon Corporation's arguments that those contacts were limited to Asia. In that regard, the General Court, in paragraph 201 of the judgment under appeal, considered that NEC Tokin's statement of 3 March 2015 (ID 1369), according to which those contacts ‘overwhelmingly or entirely’ concerned Asia, was irrelevant, because it concerned only ‘sales of certain capacitor products to specific customers’. Consequently, the General Court considered that the extrapolation according to which those bilateral contacts concerned Asia was unjustified.

That assertion is based on a manifest distortion of the evidence relied on by Nichicon Corporation. It is apparent from the clear wording of that statement (‘concerning bilateral contacts identified in NEC Tokin's corporate statements, these related to sales of certain capacitor products to specific customers, overwhelmingly or entirely for delivery in Asia’) that it concerns all bilateral contacts. Although all those contacts concerned only certain products and specific customers, the statement that they were ‘overwhelmingly or entirely for delivery in Asia’ applies to each of those bilateral contacts.

Similarly, the a contrario interpretation of NEC Tokin's statement of 3 March 2015 (ID 1369), in paragraph 202 of the judgment under appeal, manifestly distorts the evidence. The General Court inferred from that statement, according to which ‘in ‘only some’ cases, supplies had been made to manufacturing plants which were not on the incomplete lists annexed to that statement’ that ‘in the other cases, the information in connection with those contacts did in fact relate to supplies made to plants on the list’, including Canon's manufacturing plants in Germany and France. However, that a contrario inference is explicitly ruled out by the preceding sentence of that statement, according to which ‘the listing below … should not as such be understood as indicating that the discussions … related to deliveries to those EEA manufacturing plants’.

The Commission disputes that line of argument.

By the second part of the second ground of appeal, Nichicon Corporation submits that, in paragraphs 195 and 227 of the judgment under appeal, the General Court accepted that the bilateral contacts with NEC Tokin referred to in paragraph 61 of the present judgment had been established by the Commission solely on the basis of NEC Tokin's statement of 30 October 2014 (ID 930).

However, first, Nichicon Corporation does not dispute the case-law, referred to in paragraphs 99 to 102 of the judgment under appeal, to which paragraph 195 of that judgment refers, according to which the Commission is entitled to rely on such a single statement since it is particularly reliable.

First of all, as the Commission points out, it was in order to respond to an argument of Nichicon Corporation that the General Court verified whether NEC Tokin's statement of 30 October 2014 (ID 930) was sufficiently credible, so that it cannot be criticised for having substituted its own assessment for that of the Commission. Furthermore, Nichicon Corporation does not claim to have disputed at first instance that the Commission failed to carry out such a verification.

Next, in paragraph 196 of the judgment under appeal, the General Court examined the degree of reliability of that statement. While maintaining that that examination was insufficient, Nichicon Corporation does not allege any error of assessment or of law committed by the General Court in paragraph 196.

Lastly, the assessment, in paragraph 197 of the judgment under appeal, that Nichicon Corporation did not dispute the existence of the contact with NEC Tokin of 2005 in the context of the administrative procedure is manifestly subsidiary, as is shown by the use of the expression ‘moreover’. Nichicon Corporation's argument directed against paragraph 197 is therefore ineffective.

Secondly, as regards the geographic scope of the bilateral contacts with NEC Tokin, the General Court's rejection of Nichicon Corporation's argument that the information exchanged concerned only Asia was based on the four grounds set out in paragraphs 201 to 204 of the judgment under appeal.

Nichicon Corporation disputes only the grounds set out in paragraphs 201 and 202 of that judgment, without calling into question paragraphs 203 and 204 of that judgment, in which the General Court held, first, that NEC Tokin's statement of 30 October 2014 (ID 930) did not show that any contact concerning Canon did not relate to Europe and, secondly, that the argument that Nichicon Corporation did not make any sales to Canon in the EEA during the relevant period had to be rejected.

Therefore, Nichicon Corporation's line of argument in that regard is ineffective.

In the light of the foregoing considerations, the second part of the second ground of appeal must be rejected.

Nichicon Corporation submits that, in paragraph 266 of the judgment under appeal, the General Court rejected its argument that the information exchanged during the bilateral contact of July 2009 with NCC did not concern Europe. That argument was based on the fact that the passage in NCC's internal email of 31 July 2009 relied on by the Commission, according to which A from NCC ‘going forward will try confirming with [Nichicon Corporation] regarding the W/W [(global)] price’, indicates that Alpine's request for proposals discussed at NCC in July 2009 concerned Japanese domestic sales, and not the ‘global price’. In paragraph 263 of the judgment under appeal, the General Court held that that sentence ‘cannot, in itself, constitute evidence that the negotiations mentioned before that sentence concerned the Japanese market’.

However, Nichicon Corporation did not rely solely on that sentence, but also argued before the General Court that, first, the employees in question of Nichicon Corporation and NCC worked for local Japanese sales offices; secondly, Nichicon Corporation's sales office in question was not involved in sales in the EEA; and, thirdly, NCC also considered that the contact in question did not concern Europe.

It is only in the absence of another plausible explanation that the passage relied on by the Commission could have constituted evidence of an infringement of the EU competition rules.

However, the General Court did not address those arguments, with the result that the judgment under appeal is vitiated by a failure to state reasons.

The Commission disputes that line of argument.

In order to rule on the third part of the second ground of appeal, it should be noted that paragraph 259 of the judgment under appeal provides the reasons why the General Court considered that the information exchanged during the contact between Nichicon Corporation and NCC in July 2009 had a link with the EEA. In that paragraph, the General Court set out four factors in that regard, on the basis of which it held, in paragraph 260 of that judgment, that the Commission was fully entitled to take the view that the information exchanged during that contact had a connection with the EEA.

In its appeal, Nichicon Corporation does not dispute those factors, but alleges a failure to state reasons in paragraph 263 of the judgment under appeal, by which the General Court rejected Nichicon Corporation's argument at first instance that it could be inferred from A's email of 31 July 2009 that the information exchanged related to Japanese sales.

In so doing, Nichicon Corporation is, in reality, asking the Court of Justice to assess a piece of evidence already examined by the General Court, without alleging an error of assessment on the part of the General Court, which falls outside the jurisdiction of the Court of Justice in the context of an appeal.

Consequently, the third part of the second ground of appeal is inadmissible.

Nichicon Corporation submits that the General Court, in paragraph 276 of the judgment under appeal, rejected its claim that the information exchanged during the trilateral contact of 9 March 2010 with NEC Tokin and Sanyo was limited to Taiwan.

Although, in paragraph 273 of the judgment under appeal, the General Court accepted that the information had been exchanged in Taiwan between local managers and that mention had been made of the Chinese New Year and its commercial repercussions in Taiwan, the General Court nevertheless held that those factors ‘in no way preclude the possibility that the exchanges could have related to markets other than the Taiwanese market’.

In the first place, the General Court wrongly held, in paragraphs 270 and 271 of the judgment under appeal, that there was no need to examine Nichicon Corporation's arguments concerning the geographic scope of that contact. That assessment is vitiated by a lack of reasoning. First, the General Court did not explain why, although that contact did not concern the EEA, it had to be found that there had been a continuous infringement of the EU competition rules. Secondly, the General Court was, in any event, required to rule on Nichicon Corporation's argument, given its relevance to the assessment of the gravity of the infringement.

In the second place, although an infringement may be inferred from a number of coincidences and indicia and although the evidence relied on by the Commission may then require the other party to provide an explanation or justification, the requirements for rebuttal of such a factual presumption should not be, according to Nichicon Corporation, excessive or unrealistic, in order to avoid undermining the presumption of innocence. The Court of Justice has held that the test for rebuttal of a presumption of fact is whether the arguments relied on by the undertaking concerned ‘cast the facts established by the Commission in a different light and … allow another explanation of the facts to be substituted for the one adopted by the Commission’ (judgment of 7 January 2004, Aalborg Portland and Others v Commission, 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, EU:C:2004:6, paragraph 87). By requiring Nichicon Corporation to provide evidence which rules out the possibility of that contact being linked to the EEA, the General Court departed from that test and imposed an excessive burden.

The Commission disputes that line of argument.

Nichicon Corporation submits that the General Court was wrong, in paragraph 276 of the judgment under appeal, to reject its claim that the information exchanged during the trilateral contact of 9 March 2010 with NEC Tokin and Sanyo was limited to Taiwan.

It should be noted, in that regard, that that rejection is based on the grounds set out in paragraphs 270 to 275 of the judgment under appeal.

It is true that, in paragraph 271 of the judgment under appeal, the General Court explained why it was not necessary for the Commission to prove that each contact covered the EEA. In particular, by finding, on the basis of the case-law cited in paragraphs 81 to 85 of the judgment under appeal, that it is not necessary for every piece of evidence produced by the Commission to satisfy the criteria of precision and consistency for each aspect of the infringement, the General Court held that, contrary to Nichicon Corporation's assertions, it was not necessary for the evidence relating to each contact to demonstrate explicitly that the information exchanged in the context of that contact specifically concerned the EEA.

However, in paragraphs 273 to 275 of that judgment, the General Court examined the content and context of D's email from Sanyo of 10 March 2010 in order to conclude that that information was not limited to Taiwan and that there was nothing to preclude it from relating to the EEA. In particular, the General Court considered, first of all, in paragraph 273 of the judgment under appeal, that it was apparent from that email that the principal manager of NEC Tokin's global sales promotion department, E, was present during the trilateral contact of 9 March 2010, which Nichicon Corporation did not dispute. Next, in paragraph 274 of the judgment under appeal, the General Court held that that email was addressed, inter alia, to I and F from Sanyo, who, like E, had commercial responsibilities at global level, or, at the very least, which were not limited to Taiwan. Lastly, the General Court held, in paragraph 275 of the judgment under appeal, that the oral statements of Panasonic and NEC Tokin did not confirm the interpretation that the information exchanged during that contact was limited to Taiwan. First, Panasonic's statement merely confirmed that that contact had taken place in Taiwan. Secondly, the information, taken from paragraph 23 of NEC Tokin's statement, that, in essence, NEC Tokin Taiwan was not involved in sales in the EEA, was irrelevant in the present case, since the information in that email came from a discussion with E, who was the principal manager of NEC Tokin's, and not NEC Tokin Taiwan's, sales promotion department. By contrast, it was apparent from paragraph 24 of that statement that NEC Tokin was sometimes responsible for sales in the EEA.

Nichicon Corporation does not dispute the assessment in paragraphs 272 to 275 of the judgment under appeal, from which it is apparent that it could not be ruled out that the information in question had a link with the EEA.

Moreover, in those circumstances, it cannot be held that the General Court imposed an excessive burden of proof on Nichicon Corporation.

Consequently, the fourth part of the second ground of appeal is, in part, ineffective and, in part, unfounded.

Nichicon Corporation submits that the General Court, in paragraphs 284 to 294 of the judgment under appeal, upheld the Commission's finding that Nichicon Corporation had participated in price discussions during the trilateral contact with NCC and Rubycon on 31 May 2010. Before the General Court, Nichicon Corporation claimed that no discussion of prices had taken place at that meeting in the presence of its representative, Mr Shiozaki. That argument was based on the fact that the documents on which the Commission had relied did not contain any indication of any participation on the part of Mr Shiozaki, and that Nichicon's reply (ID 740), according to which Mr Shiozaki had not participated in the price discussions at that meeting, could not be regarded as having little probative value.

In paragraph 290 of the judgment under appeal, the General Court rejected that argument, on the ground that Nichicon Corporation's reply (ID 740), ‘which is intended merely to mitigate [Nichicon Corporation's] liability’, cannot reduce the probative value of the documents relied on by the Commission.

That conclusion manifestly distorts the evidence. Since the Commission relied on several inculpatory statements contained in that document, it cannot be regarded as merely intended to mitigate Nichicon Corporation's liability.

Had the General Court correctly identified Nichicon Corporation's (ID 740) reply as both inculpatory and exculpatory, it could not have rejected its probative value and should therefore have assessed that value in the context of all the evidence and facts.

The Commission disputes that line of argument.

In paragraph 284 of the judgment under appeal, the General Court concluded that the Commission was fully entitled to consider that Nichicon Corporation's participation in the discussions on prices during the trilateral contact of 31 May 2010 with NCC and Rubycon had been established. Therefore, in order to call that assessment into question, Nichicon Corporation would have had to challenge the reasons supporting that assessment, set out in paragraphs 280 to 283 of that judgment. However, Nichicon Corporation does not dispute those paragraphs.

In addition, even if certain passages in Nichicon's statement (ID 740) contained inculpatory evidence, that does not preclude other passages of that document, in particular those relating to the discussions on prices, from being intended to mitigate Nichicon Corporation's liability. The General Court was therefore entitled to take the view that those passages could not reduce the probative value of the evidence referred to in paragraph 281 of the judgment under appeal.

The fifth and last part of the second ground of appeal is therefore unfounded.

In the light of the foregoing, the second ground of appeal must be rejected.

Nichicon Corporation submits that, in paragraph 360 of the judgment under appeal, the General Court rejected its arguments that the Commission had not established to the requisite legal standard Nichicon Corporation's liability for bilateral and trilateral meetings between the other cartel participants. The General Court's reasoning does not allow Nichicon Corporation to know why the General Court rejected its arguments.

In the first place, it is unclear whether the General Court upheld the Commission's finding that Nichicon Corporation was aware of bilateral and trilateral meetings between the other cartel participants, or should have foreseen them, solely on the basis of its participation in certain bilateral and trilateral meetings, or also on the basis of its participation in certain multilateral meetings.

Indeed, it would appear to follow from paragraphs 352, 357 and 359 of the judgment under appeal that the General Court established the liability of Nichicon Corporation solely on the basis of its participation in bilateral and trilateral meetings, without addressing Nichicon Corporation's pleas concerning the lack of a ‘platform’ role played by the CUP meetings.

However, in paragraph 355 of the judgment under appeal, the General Court confirmed Nichicon Corporation's liability on the basis of a body of evidence ‘which certainly includes the multilateral meetings’. The reasons given by the General Court to uphold the liability of Nichicon Corporation are therefore contradictory and unclear.

Moreover, if the General Court had indeed considered the multilateral meetings to be relevant, it would have had to respond to Nichicon Corporation's arguments that the Commission had not given it the opportunity to comment on the alleged role of the CUP meetings as a platform, and that the decision at issue does not identify any bilateral or trilateral meeting in which Nichicon Corporation participated at the CUP meetings.

In the second place, the General Court does not explain why Nichicon Corporation's participation in certain bilateral and trilateral contacts supports the conclusion that Nichicon Corporation knew, or should have foreseen, that the infringement also included other bilateral and trilateral contacts. The General Court held that, ‘apparently’, the bilateral and trilateral contacts for which Nichicon Corporation was held directly liable had certain features which led to the conclusion that it knew or should have known that bilateral and trilateral meetings took place among the other cartel participants, and that such knowledge or foreseeability continued for several years even though Nichicon Corporation had not participated in any multilateral meeting which had played a role as a platform. The reasoning of the judgment under appeal in that regard is insufficient.

In any event, in rejecting that plea, the General Court erred in law. It is for the Commission to prove that an undertaking was aware of all the offending conduct planned or put into effect by the other participants in the cartel or that it could reasonably have foreseen it and was prepared to take the risk. Although, as is apparent from paragraph 355 of the judgment under appeal, Nichicon Corporation's awareness of the conduct of the other participants in the cartel, or its foreseeability, could be established on the basis of a body of precise and consistent evidence, the presumption of innocence requires that, in the event of doubt, the benefit must be given to that undertaking.

In stating, in paragraph 352 of the judgment under appeal, that ‘because it had itself participated in such [bilateral and trilateral] contacts, it was not unaware of the fact that the scope of the cartel extended beyond the multilateral meetings and also included the bilateral and trilateral contacts’, the General Court assumed that direct participation in a category of conduct, namely bilateral and trilateral contacts, creates awareness, or foreseeability, and the intention to contribute to all conduct falling within that category, even that in which Nichicon Corporation did not directly take part.

Such a presumption has no legal basis and infringes the principle of personal responsibility and the presumption of innocence. Although the lack of direct evidence of an undertaking's participation in an infringement during a specific period does not preclude that participation from being established, such a finding cannot simply be presumed, but must be based on objective and consistent indicia. In addition, knowledge or foreseeability of bilateral contacts that took place among other cartel participants cannot be inferred from the fact that the Commission classified that conduct as falling within the same category as the bilateral contacts in which Nichicon Corporation participated directly. On the contrary, the Commission must adduce evidence that the contacts that took place between those other cartel participants were known to Nichicon Corporation or reasonably foreseeable to it.

The Commission disputes that line of argument.

Nichicon Corporation submits that, in paragraph 360 of the judgment under appeal, the General Court rejected, without stating sufficient reasons, its arguments that the Commission had not established to the requisite legal standard its liability for the bilateral and trilateral meetings between the other cartel participants.

It should be noted at the outset that Nichicon Corporation's argument is based on a misreading of the judgment under appeal.

The General Court merely applied the case-law referred to in paragraphs 347 to 349 of that judgment, which Nichicon Corporation does not dispute.

In particular, according to that case-law, an undertaking which has participated in a single and continuous infringement by its own conduct may be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the case where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all of the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (judgments of 8 July 1999, Commission v Anic Partecipazioni, C-49/92 P, EU:C:1999:356, paragraph 83; of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C-293/13 P and C-294/13 P, EU:C:2015:416, paragraph 157; and of 26 January 2017, Duravit and Others v Commission, C-609/13 P, EU:C:2017:46, paragraph 118).

It follows from paragraphs 345 and 350 of the judgment under appeal, which are not disputed by Nichicon Corporation, that, first, the General Court noted that Nichicon Corporation had participated, between 26 June 1998 and 31 May 2010, in 52 multilateral meetings and 6 bilateral or trilateral contacts and that the Commission had found that the evidence showed that Nichicon Corporation had directly participated in multilateral meetings and in bilateral and trilateral contacts. The General Court concluded from this that the Commission had considered that, as regards the bilateral and trilateral contacts which took place between the other cartel participants following the ATC meeting of 16 February 2005 and following the CUP meeting of 10 November 2008, Nichicon Corporation was aware of the offending conduct planned or put into effect by those other cartel participants in pursuit of the same objectives or could reasonably have foreseen that conduct and was prepared to take the risk.

Secondly, the General Court noted, in paragraph 350 of the judgment under appeal, that, in the decision at issue, ‘the Commission made the following findings. First, the multilateral meetings and bilateral or trilateral contacts formed part of an overall plan with a single anticompetitive aim. Secondly, the multilateral meetings constituted a platform for the parties to the cartel for the duration of the cartel. Thirdly, the bilateral or trilateral contacts complemented the multilateral meetings. Fourthly, the same persons participated in the bilateral or trilateral contacts and the multilateral meetings. Fifthly, because of their participation in the multilateral meetings, the parties to the cartel knew who the other cartel participants were and, accordingly, who they could contact if, for example, they wished to discuss issues relating to a specific customer. Sixthly, all the parties to the cartel had participated in the bilateral or trilateral contacts’.

Thus, the General Court started from the premiss that Nichicon Corporation had participated in multilateral meetings, the participants in the bilateral or trilateral contacts were the same as in multilateral meetings and all participants in the cartel had participated in bilateral or trilateral contacts.

In those circumstances, first of all, the General Court was entitled to consider that, by the very fact of having had bilateral or trilateral contacts with other participants in multilateral meetings, Nichicon Corporation could not have been unaware, or at least did not foresee, that other participants in those meetings had also had bilateral or trilateral contacts between them.

Contrary to Nichicon Corporation's claims, it is apparent from paragraphs 350 to 359 of the judgment under appeal that the General Court did not establish the liability of Nichicon Corporation solely on the basis of its participation in bilateral and trilateral contacts, but also took into consideration its participation in the multilateral meetings.

Since Nichicon Corporation itself directly participated in bilateral and trilateral contacts, the General Court considered in paragraphs 352 and 359 of the judgment under appeal that it knew or could foresee that the scope of the cartel went beyond the multilateral meetings and included bilateral and trilateral contacts.

Next, contrary to Nichicon Corporation's claims, the General Court addressed, in paragraphs 356 to 359 of the judgment under appeal, the arguments of Nichicon Corporation concerning ‘the lack of platform function of the CUP meetings’.

Finally, the judgment under appeal also clearly sets out the reasons why Nichicon Corporation's participation in bilateral and trilateral contacts — together with the other circumstances referred to in paragraphs 350 to 352 of that judgment — justifies the conclusion that Nichicon Corporation knew or at least could have foreseen that the infringement also included bilateral and trilateral contacts between other participants.

First, contrary to Nichicon Corporation's allegations, the General Court did not consider that the bilateral and trilateral contacts for which Nichicon Corporation was held directly liable had certain features establishing that Nichicon Corporation knew or ought to have known that bilateral or trilateral meetings took place among other cartel participants. It is apparent from paragraph 350 of that judgment that the assessments relating to the awareness of those meetings did not depend on specific characteristics of the bilateral and trilateral contacts other than the fact that they had taken place among the other cartel participants, that they were similar in nature to those in which Nichicon Corporation had participated and that they formed part, like the multilateral meetings, of a common plan with a single anticompetitive aim.

Secondly, irrespective of the fact that certain multilateral meetings provided a platform, the General Court regarded as relevant Nichicon Corporation's participation in those multilateral meetings in so far as it had enabled Nichicon Corporation to know which other undertakings participated in the cartel and, therefore, which undertakings they could contact if they wished to address issues relating to a specific customer.

Thirdly, as regards Nichicon Corporation's claim that the General Court infringed the principle of personal liability and the presumption of innocence, it should be noted that, first, contrary to Nichicon Corporation's assertions, it is apparent from the evidence set out in paragraphs 133 and 134 of the present judgment that the General Court did not presume that direct participation in a category of conduct, namely bilateral and trilateral contacts, ‘creates knowledge (or foreseeability)’ of contacts among other cartel participants.

Secondly, far from breaching the principle of personal responsibility or the presumption of innocence, paragraph 352 of the judgment under appeal merely implements the settled case-law referred to in paragraph 124 of the present judgment.

It follows that the first part of the third ground of appeal is unfounded.

Nichicon Corporation submits that, in paragraphs 371 and 372 of the judgment under appeal, the General Court rejected its arguments that the Commission had failed to establish that the infringement as a whole and Nichicon Corporation's participation in it were continuous for the period prior to 7 November 2003. In that regard, it erred in not regarding the 10-month gap between the meetings as constituting an interruption of the infringement.

First, the General Court did not address Nichicon Corporation's argument that the question whether an infringement continued without interruption should be assessed according to the frequency of the meetings and the need for coordination. The General Court's reasoning does not enable Nichicon Corporation to know why it rejected its arguments in that regard, and is therefore vitiated by a failure to state reasons.

Secondly, in its assessment of the relevance of an interruption on the basis of the total duration of the infringement, the General Court erred in law by taking into account manifestly irrelevant evidence. During 1998–1999 and 2000–2001, none of the cartel participants could have known the duration of the future conduct that the Commission imputed to them, up to 2010, in respect of Nichicon Corporation, and up to 2012, in respect of the participants at the MK meetings. The total duration of the conduct was therefore not relevant in respect of the context and functioning of the infringement.

The Commission disputes that line of argument.

In order to rule on the second part of the third ground of appeal, it must be noted that the General Court reached the conclusion contained in paragraphs 371 and 372 on the basis of a series of factors, referred to in paragraphs 367 to 370 of the judgment under appeal.

Thus, the General Court found, in paragraph 367 of the judgment under appeal, that the Commission had stated that the cartel participants had coordinated their conduct for almost 14 years and Nichicon Corporation for almost 12 years.

In that regard, the General Court noted in paragraph 368 of the judgment under appeal that the Commission had noted that Nichicon Corporation had participated in more than 21 multilateral meetings between 26 June 1998 and 7 November 2003. In doing so, contrary to the allegations of Nichicon Corporation, the General Court took into consideration the frequency of the meetings in which Nichicon Corporation participated.

In addition, it stated, in paragraphs 369 and 370 of the judgment under appeal, first, that the anticompetitive meetings and contacts formed part of an overall plan with a single economic aim and, secondly, that there was nothing in the file to indicate that, during the period in question, Nichicon Corporation had distanced itself from the cartel, had withdrawn from it or had interrupted its participation.

In so doing, the General Court, in accordance with the case-law referred to in paragraph 366 of the judgment under appeal, considered the context of the functioning of the cartel.

The argument that, in such a context, the total duration of the cartel should not be taken into consideration must be rejected.

In order to ascertain whether the time that elapsed between two meetings is sufficiently long to constitute an interruption of participation in the cartel, the duration of that interruption is a relevant factor.

On the other hand, the fact that the participants in the cartel cannot know what the duration of the cartel established by the Commission will be is irrelevant in that regard. The duration of an infringement is an objective element of that infringement which depends only on the conduct of the participants in that infringement and not on the Commission.

The second part of the third ground of appeal is therefore unfounded.

Having regard to the foregoing considerations, the third ground of appeal must be dismissed.

Nichicon Corporation alleges errors made by the General Court, first, in the calculation of the value of sales and, secondly, in the determination of the gravity multiplier.

As regards, in the first place, the calculation of the value of sales, Nichicon Corporation observes that, in paragraph 483 of the judgment under appeal, the General Court rejected its argument that the Commission had misapplied its 2006 Guidelines by taking as a basis the value of sales invoiced in the EEA rather than the value of sales consigned to the EEA.

According to EU case-law, the place of delivery has a real impact on the level of sales made by undertakings (judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C-615/15 P, not published, EU:C:2017:190, paragraph 53). Similarly, according to paragraph 197 of the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1), the place of delivery should be regarded as the place ‘where competition takes place’ in the case of the sale of goods, even if, for example, individual orders are placed by a central purchasing body.

In accordance with that principle, it is not the value of Nichicon Corporation's sales invoiced in the EEA, but the value of sales shipped to the EEA that should have been taken into account as the starting point for determining the economic importance of the infringement and Nichicon Corporation's contribution to it.

The mere fact that the sales of Nichicon Corporation's US subsidiary to the Mexican factories of its US customers are invoiced to the European subsidiaries of those US customers does not mean that the place of billing is the best criterion for determining the effects on competition in the EEA. By refusing to take into consideration Nichicon Corporation's evidence concerning the effect on the EEA market without explaining why it considered that evidence to be irrelevant, the General Court failed to provide an adequate statement of reasons.

In addition, the General Court stated, in paragraph 484 of the judgment under appeal, that the 2006 Guidelines refer to ‘sales’ and do not specify whether ‘sales delivered’ or only ‘sales invoiced’ are relevant. Since it is for the Commission to prove that the sales taken into account are capable of determining the effects on the EEA market, it is not for Nichicon Corporation to prove that the sales invoiced are not capable of determining the effects on the EEA market, but for the Commission to demonstrate that the sales in the EEA better reflect the reality of the market. The General Court therefore also erred in attributing the burden of proof to Nichicon Corporation when it rejected its plea on the ground that it did not provide sufficient reasons as to why the sales taken into account did not reflect the impact of the infringement on competition in the EEA.

In the second place, as regards the setting of the gravity multiplier, Nichicon Corporation submits that the General Court rejected its argument that the multiplier of 16 % used by the Commission did not adequately reflect Nichicon Corporation's limited participation in the infringement. The General Court thus infringed the principle of proportionality and failed to state sufficient reasons for its judgment.

According to Nichicon Corporation, the gravity of the infringement should be assessed individually. However, the General Court failed to take account of the individual circumstances of the case which Nichicon Corporation explicitly brought before it, also with regard to the gravity multiplier.

In paragraph 503 of the judgment under appeal, the General Court wrongly stated that ‘[Nichicon Corporation] does not give details as to the specific circumstances which the Commission should have taken into account for the purposes of that determination’. Similarly, in paragraph 584 of the judgment under appeal, it wrongly rejected its unlimited jurisdiction to adjust the amount of the fine.

The gravity multiplier applied fails to take account of the fact that Nichicon Corporation's European subsidiaries had essentially independently negotiated prices and conditions in the EEA, acted independently and had different product portfolios from those which Nichicon Corporation sold in Japan. Consequently, the majority of the sales of Nichicon Corporation's subsidiaries were not affected by the infringement found and were therefore outside the scope of the infringement.

In support of that claim, Nichicon Corporation submitted evidence that there was only a limited overlap between the product portfolios sold by Nichicon Corporation and its European subsidiaries, respectively. In addition, Nichicon Corporation provided a detailed total breakdown of the sales of Nichicon Japan and Nichicon UK/Austria in the EEA, which revealed that only EUR 147.71 million of sales of products shipped in the EEA concerned products sold both by Nichicon UK/Austria and by Nichicon Japan. In other words, only about one third of the EUR 433.29 million in sales of Nichicon Corporation in the EEA, on which the Commission based its fine and which was confirmed by the General Court, could theoretically have been affected by the infringement. In any event, the General Court failed to take account of the fact that only a minority of sales in the EEA were liable to be affected by the infringement and therefore, for that reason, infringed the principle of proportionality.

The Commission disputes that line of argument.

In the first place, in so far as, by that part of the fourth ground of appeal, Nichicon Corporation submits that the General Court erred in law in accepting that the Commission could calculate the basic amount of the fine not on the basis of sales consigned to the EEA, but on the basis of sales invoiced in the EEA, it should be noted, first of all, that the present case differs from that which gave rise to the judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission (C-615/15 P, not published, EU:C:2017:190). In that case, the Commission had decided to determine the value of sales referred to in point 13 of the 2006 Guidelines on the basis of the goods actually delivered in the EEA when the negotiation of sales and their payment took place outside the EEA. That approach was confirmed by the Court in the light of the circumstances referred to in paragraphs 53 and 54 of that judgment. The Court added, in paragraph 55 of the judgment, that the mere fact that the place of negotiation of sales is outside the EEA does not allow their value to be excluded for the purpose of the determination of the value of sales within the EEA. By contrast, in the present case, the Commission took into account the sales invoiced within the EEA.

Next, the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings is not relevant in the present case, since the assessment of the consequences of a concentration on the market is not comparable to the determination of the amount of a fine imposed for an infringement of Article 101 TFEU.

Moreover, nothing in the 2006 Guidelines prevents the Commission from taking into account not only sales consigned to the EEA but also sales invoiced in the EEA. As the General Court noted in paragraph 484 of the judgment under appeal, point 13 of the 2006 Guidelines refers neither to ‘sales delivered’ or ‘sales invoiced’ but refers only to ‘sales’ in the EEA. As for the judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission (C-615/15 P, not published, EU:C:2017:190), it does not preclude the sales invoiced in the EEA being taken into account when determining the level of sales made.

In those circumstances, Nichicon Corporation is also wrong to claim that the General Court reversed the burden of proof. In so far as the Commission took into account sales made in the EEA, whether or not they were consigned to the EEA, that is sufficient to establish that the value of those sales falls within the scope of the cartel.

The General Court was therefore correct to hold that it was for Nichicon Corporation to explain how the fact that the Commission took into account, in calculating the amount of the fine, certain sales invoiced to customers located in the EEA, but subsequently delivered to sites outside that geographic area, could not reflect the impact of the infringement on competition in the EEA.

Furthermore, Nichicon Corporation submits that the General Court wrongly found that it had not explained the reasons why certain sales invoiced to customers in the EEA should be excluded from the level of sales in the EEA. However, Nichicon Corporation merely claims that it provided the General Court with relevant evidence, but fails to identify that evidence. Consequently, its argument must be rejected.

In the second place, as regards the gravity factor, Nichicon Corporation submits that the General Court was wrong, in paragraph 503 of the judgment under appeal, to assert that Nichicon Corporation had not given details as to the specific circumstances which the Commission should have taken into account for the purposes of determining the multiplier.

In that regard, it is indeed apparent from the application at first instance that Nichicon Corporation argued before the General Court that the Commission should have taken account of certain specific circumstances when determining the multiplier.

It must nonetheless be recalled that if the grounds of a decision of the General Court reveal an infringement of EU law but the operative part of the judgment can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made (judgment of 25 March 2021, Xellia Pharmaceuticals and Alpharma v Commission, C-611/16 P, EU:C:2021:245, paragraph 149). That is the situation in the present case.

The specific circumstances to which Nichicon Corporation refers relate, as mentioned in paragraph 162 of the present judgment, to the fact that Nichicon Corporation's European subsidiaries had essentially independently negotiated prices and conditions in the EEA, had acted independently and had product portfolios different from those which Nichicon Corporation sold in Japan.

It should be noted in that regard that the General Court, in paragraphs 476 to 482 of the judgment under appeal, assessed those specific circumstances and, in paragraph 482 of that judgment, concluded, in essence, that, since they concerned Nichicon Corporation's sales structure and fell solely within its commercial strategy, they did not, in themselves, constitute particular circumstances justifying the application of a different method of calculation of the basic amount of the fine. Nichicon Corporation did not validly challenge those paragraphs of the judgment under appeal.

Those reasons apply mutatis mutandis to the calculation of the multiplier. In those circumstances, the General Court did not err in concluding that the Commission was not required to take those specific circumstances into consideration when calculating the multiplier.

For the same reasons, the General Court did not err in law when, in paragraph 584 of the judgment under appeal, it refused to reduce the multiplier in the exercise of its unlimited jurisdiction.

Furthermore, Nichicon Corporation did not dispute the findings, set out in paragraph 502 of the judgment under appeal, on the basis of which the General Court found that the Commission had complied with the 2006 Guidelines.

It follows that the first part of the fourth ground of appeal is unfounded.

Nichicon Corporation, in order to challenge the assessment of mitigating circumstances carried out by the General Court, submits, in the first place, that the General Court did not properly take into account Nichicon Corporation's absence from the MK meetings.

First, the General Court, in paragraph 17 of the judgment under appeal, confirmed that the liability of Nichicon Corporation did not extend to the MK Meetings. However, it rejected Nichicon Corporation's argument that its participation was limited, contradicting its own judgment and distorting the evidence when it declared, in paragraph 531 of the judgment under appeal, that ‘not withstanding its non-participation in the MK meetings, [Nichicon Corporation] is not justified in claiming that its participation in the cartel was limited’.

Secondly, that error of law led to a further error on the part of the General Court when it stated, in paragraph 586 of the judgment under appeal, that Nichicon Corporation was not justified in claiming that its participation in the cartel was limited and that it ‘revealed a lesser degree of harm justifying’ a reduction in the amount of the fine.

It is clear from the case-law of the Court of Justice that it is necessary to take into consideration the fact that an undertaking has not taken part in all aspects of an anticompetitive arrangement or that it played only a minor role in assessing the gravity of the infringement and, as the case may be, in determining the fine (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C-441/11 P, EU:C:2012:778, paragraphs 45 and 74).

Thirdly, on the basis of those two errors, the General Court upheld the excessively limited reduction of 3 % on account of mitigating circumstances which had been granted by the Commission.

Fourthly, in breach of the principle of proportionality, the General Court did not recognise, in paragraph 529 of the judgment under appeal, the real importance of the MK meetings, which, according to Nichicon Corporation, did not constitute only a complementary part of the infringement, but were, in their own right, of substantial importance.

Fifthly, the General Court infringed the principle of equal treatment by granting the undertakings that had not participated in the CUP meetings the same reduction as Nichicon Corporation, which had not participated in the MK meetings. In particular, the judgment under appeal did not address the question of whether the MK meetings and the CUP meetings were comparable. Those meetings differ not only in terms of their frequency and duration, but also in terms of their content. In any event, the number of MK meetings and CUP meetings is a relevant factor in assessing the gravity of the infringement. Nichicon Corporation participated in far fewer anticompetitive contacts than the other cartel participants.

In the second place, in paragraphs 549 to 554 of the judgment under appeal, the General Court rejected Nichicon Corporation's arguments that, when determining the fine based on mitigating circumstances, the Commission should have taken account of the fact that the president of Nichicon Corporation had attempted to prevent infringements of competition law, that its president's policy was known to the participants in the MK meetings and that they had therefore invited Mr Shiozaki to attend subsequent meetings in a personal capacity.

The General Court, in paragraph 553 of the judgment under appeal, relied on the case-law according to which the liability of an undertaking for infringements of competition law is engaged by any person authorised to act on behalf of an undertaking, regardless of whether there is action by, or even knowledge on the part of its principal managers (judgment of 16 February 2017, Tudapetrol Mineralölerzeugnisse Nils Hansen v Commission, C-94/15 P, not published, EU:C:2017:124, paragraph 28). However, that case-law concerns the establishment of liability. The General Court failed to state the reasons why it considered that the arguments and evidence put forward were not relevant to the assessment of Nichicon Corporation's negligence.

In the third place, Nichicon Corporation submits that the General Court failed to take proper account of its competitive conduct, relating, in particular, to its aggressive pricing policy and its limited involvement in the infringement. In particular, the General Court rejected the existence of a mitigating circumstance relating to the competitive conduct of Nichicon Corporation, stating, in paragraph 563 of the judgment under appeal, that Nichicon Corporation, inter alia, ‘had not demonstrated that it clearly and publicly distanced itself from the cartel’ and that it ‘clearly and firmly opposed the implementation of the cartel to the point of disrupting its operation’.

Thus, according to the test applied by the General Court, competitive conduct can constitute a mitigating circumstance only if the undertaking in question ceases to participate in the infringement concerned and can no longer be held liable for it. However, in such a case, it would no longer be necessary to recognise the existence of mitigating circumstances, since no fine could in any event be imposed. Thus, the General Court completely removed competitive conduct as a ground justifying the existence of a mitigating circumstance.

The Commission disputes that line of argument.

In order to rule on the second part of the fourth ground of appeal, it should be noted, first, that the fact that Nichicon Corporation participated in all the constituent elements of the cartel with the exception of the MK meetings is not, in itself, sufficient for its participation in the cartel to be regarded as limited. The General Court considered, in paragraph 529 of the judgment under appeal, that those meetings were not of particular importance in the wider context of the cartel, which, as the Commission points out, constitutes a factual assessment.

Secondly, Nichicon Corporation is wrong to claim that the General Court failed to ensure that the Commission took into account the fact that Nichicon Corporation did not participate in those meetings. It is apparent from paragraph 525 of the judgment under appeal that it was precisely in the light of that fact that the Commission, in the exercise of its broad discretion in that regard, reduced the amount of the fine by 3 %.

Thirdly, in paragraph 531 of the judgment under appeal, the General Court concluded that, in so doing, the Commission had not infringed the principle of proportionality. While Nichicon Corporation appears to criticise that conclusion, it nevertheless failed to challenge the reasons for it set out in paragraphs 526 to 530 of the judgment under appeal.

Fourthly, as regards the taking into account of Nichicon Corporation's competitive conduct, the General Court, in paragraphs 561 to 563 of the judgment under appeal, did not consider that it could justify a reduction of the fine. The General Court noted that Nichicon Corporation had put forward an inconsistent argument, had not demonstrated that it clearly and publicly distanced itself from the cartel, had not clearly and firmly opposed the implementation of that cartel and the competitive conduct alleged by Nichicon Corporation was not corroborated by the analysis, carried out by an independent firm, of its prices in the EEA. Therefore, Nichicon Corporation's argument that the General Court failed to take into account its competitive conduct in order to reduce the amount of the fine is based on a misreading of the judgment under appeal.

Fifthly, it should be noted, first, that the Court of Justice has already held that, in order to benefit from the mitigating circumstance relating to the adoption of competitive conduct or the non-implementation of the cartel, an undertaking must show not only that it adopted competitive conduct, but also that it did not give the appearance of being a member of the cartel and thereby incited other undertakings to implement it (see, to that effect, judgment of 8 December 2011, KME Germany and Others v Commission, C-389/10 P, EU:C:2011:816, paragraphs 93 to 96).

In paragraphs 561 to 564 of the judgment under appeal, the General Court held, without being contradicted by the appeal, that Nichicon Corporation did not fulfil any of those conditions.

On the other hand, contrary to Nichicon Corporation's claim, the General Court did not reject the allegation regarding its competitive conduct solely because Nichicon Corporation did not publicly distance itself from the collusive behaviour. In paragraph 563 of the judgment under appeal, it also found that Nichicon Corporation had not demonstrated its clear and firm opposition to the implementation of the cartel to the point of disrupting its operation and that that allegation by Nichicon Corporation was not corroborated by the analysis of the price of its capacitors in the EEA during the infringement period.

It follows that the second part of the fourth ground of appeal is unfounded.

In the light of the foregoing, the fourth ground of appeal must be rejected.