Philips and Philips France v Commission (Judgment) [2016] EUECJ T-762/14 (15 December 2016)

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(Competition — Agreements, decisions and concerted practices — Smart card chips — Decision finding an infringement of Article 101 TFEU — Exchange of commercially sensitive information — Infringement by object — Single and continuous infringement — Principle of sound administration — Duty of care — Proof — 2006 Leniency Notice — Settlement Notice — Limitation period — 2006 Guidelines on the method of setting fines — Value of sales)

European Commission, represented by A. Biolan, A. Dawes, J. Norris-Usher and P. Van Nuffel, acting as Agents,

APPLICATION under Article 263 TFEU for the annulment of Commission Decision C(2014) 6250 final of 3 September 2014 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39574 — Smart Card Chips) or, in the alternative, for the cancellation of or a reduction in the fine imposed on the applicants,

composed of A. Dittrich, President, J. Schwarcz and V. Tomljenović (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 27 April 2016,

1 By Decision C(2014) 6250 final of 3 September 2014 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39574 — Smart Card Chips) (‘the contested decision’), the European Commission held that there had been an infringement of Article 101(1) TFEU and Article 53 of the Agreement on the European Economic Area (EEA) in the smart card chips sector (‘the infringement at issue’). That infringement, in which four undertakings had participated, first, Infineon Technologies AG (‘Infineon’), secondly, Koninklijke Philips Electronics NV and its wholly owned subsidiary Philips France SAS, (together ‘the applicants’), thirdly, Samsung Electronics Co., Ltd, and Samsung Semiconductor Europe GmbH (together ‘Samsung’) and, fourthly, Renesas Electronics Corp., which succeeded Renesas Technology Corp., which had been created by Hitachi Ltd and Mitsubishi Electric Corp., and Renesas Electronics Europe Ltd (together ‘Renesas’), lasted from 24 September 2003 to 8 September 2005 (recital 1 and Article 1 of the contested decision).

2 According to the Commission, the infringement at issue, which was a single and continuous infringement, consisted, for the four undertakings mentioned in paragraph 1 above, in the coordination of their market behaviour by means of the exchange of commercially sensitive information concerning pricing generally and prices charged to specific customers, contract negotiation, production capacity or utilisation of that capacity and their future conduct on the market. There are other manufacturers of smart card chips operating in the EEA, such as Atmel, ST Microelectronics and NXP. In so far as NXP is concerned, the Commission states that that undertaking had taken over the activities of the applicants from the date of its establishment, on 29 September 2006. The Commission found that NXP had not participated in the infringement at issue (recital 49 and Article 1 of that decision).

3 The Commission states that smart card chips are used in SIM cards for mobile telephones, bank cards, identity cards and passports and pay-TV cards and in various other applications. Smart card chips comprise two principal elements: a processing unit and some form of memory. The market for smart card chips can be split into two segments according to the main application, namely SIM applications, which are used mainly for mobile phones (‘SIM chips’), and FSID applications, also called ‘non-SIM’ applications, for banking, security and ID (‘non-SIM chips’) (recitals 3 and 6 of the contested decision).

4 In the relevant market, on the supply side, the Commission states that, at the time of the infringement at issue, there were six large manufacturers, namely, Samsung, Infineon, Renesas, Atmel, the applicants and ST Microelectronics. In 1999 and 2000, the principal players on the European market were Siemens, Infineon, ST Microelectronics and the applicants. Between 2001 and 2004, the market saw the entry of Samsung and Atmel. In 2004-2005, the applicants took the first steps to withdraw from the lower-end applications market to focus its attention on higher-end products (recital 35 of the contested decision). On the demand side, the Commission states that the market was very concentrated, with only four main customers, including Schlumberger Smart Cards and Terminals (‘Schlumberger’), Oberthur Card Systems and Gemplus. Each of those main customers was active in both SIM and non-SIM chips. According to the Commission, 70% of worldwide sales of smart card chips took place in Europe during the period of the infringement at issue and the market for smart card chips was characterised by a substantial volume of trade between Member States of the European Union (recitals 36, 42 and 43 of the contested decision and footnote 45 to the contested decision).

5 On 22 April 2008, Renesas informed the Commission about a cartel in the smart card chips sector and submitted an application for immunity from fines pursuant to the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the Leniency Notice’). On 23 September 2008, the Commission adopted a conditional decision granting Renesas immunity in accordance with point 18 of the Leniency Notice (recital 44 of the contested decision).

6 Between 21 and 23 October 2008, the Commission carried out on-the-spot inspections pursuant to Article 20(4) 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) at the premises of several companies operating in the smart card chips sector (recital 45 of the contested decision).

7 On 27 October 2008, at 6:55 am, NXP and all the subsidiaries which it controlled directly or indirectly applied for a reduction of fines pursuant to the Leniency Notice (recital 46 of the contested decision).

8 Also on 27 October 2008, at 9:24 am, Samsung and all the subsidiaries which it controlled directly or indirectly applied for immunity from fines or a reduction of fines pursuant to the Leniency Notice (recital 47 of the contested decision).

9 Between 5 November 2008 and 16 June 2014, pursuant to Article 18 of Regulation No 1/2003, the Commission sent requests for information to various companies operating in the smart card chips sector, including the addressees of the contested decision (recital 48 of the contested decision).

10 On 28 March 2011, the Commission initiated proceedings, pursuant to Article 11(6) of Regulation No 1/2003, against the applicants, Renesas and Samsung (recital 49 of the contested decision).

11 On 31 March 2011, the Commission informed NXP that it did not intend to address a statement of objections to it or impose a fine. For those reasons, the Commission considered that there was no ground to grant it a reduction of fines under the Leniency Notice. Indeed, according to the Commission, since, in substance, the business of the applicants was not transferred to NXP until 29 September 2006 and the period of the infringement at issue had ended, as regards the applicants, on 9 September 2004, NXP could not be held liable for the infringement committed by the applicants (recital 49 of the contested decision).

12 In April 2011, the Commission initiated settlement discussions, in accordance with Article 10a of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), with Renesas, Samsung and the applicants. Those discussions were discontinued in October 2012 (recital 51 of the contested decision).

13 On 18 April 2013, the Commission sent a statement of objections (‘the Statement of Objections’) to Renesas, Hitachi, Mitsubishi Electric Corp., Samsung, Infineon and the applicants. In their observations on the Statement of Objections, Infineon and the applicants disputed the authenticity of certain documents provided by Samsung after the settlement procedure. Samsung replied to those observations and provided the Commission with further documents on 6 September 2013 (recitals 52 and 53 of the contested decision).

14 On 9 October 2013, the Commission issued a letter of facts by which it informed the parties of Samsung’s reply regarding the contesting of the authenticity of the documents which it had provided and of the new documents which it had provided (recital 54 of the contested decision).

15 On 13 November 2013, the applicants and Infineon replied to Samsung’s observations on the letter of facts.

16 The hearing was held on 20 November 2013 (recital 55 of the contested decision).

17 Between the date of the hearing and 7 July 2014, certain parties to the administrative procedure submitted observations, either at the Commission’s request or spontaneously (recital 56 of the contested decision).

18 On 25 July 2014, the Commission issued a new letter of facts by which it informed the parties to the administrative procedure of the translations which it intended to use in the event of debate concerning certain documents in Korean and of the existence of two documents submitted by Samsung supporting the authenticity of the evidence it had provided after the settlement discussions (recital 57 of the contested decision).

19 On 3 September 2014 the Commission adopted the contested decision. In its submission, the main documentary evidence relied upon to prove the existence of the infringement at issue consisted of the documents submitted by Renesas, NXP and Samsung (recital 58 of the contested decision).

20 In the contested decision, after describing the sector in question (recitals 2 to 43 of the contested decision) and the investigation which it had conducted (recitals 44 to 58 of the contested decision), in the first place, the Commission explains the principal elements of the infringement at issue.

21 First, in so far as concerns the context in which contacts between competitors had taken place, the Commission submits that the market for smart card chips was characterised by a constant fall in prices, downstream pressure on prices from the largest customers of smart card chip manufacturers, imbalances in the demand/supply ratio resulting from an increase in demand, constant, rapid technological development and the structure of contract negotiations with customers (recitals 59 to 68 of the contested decision).

22 Secondly, as regards the principal features of the infringement at issue, the Commission concludes that the cartel functioned through a network of bilateral contacts between the addressees of the contested decision either in face-to-face meetings or in telephone conversations, which were weekly in 2003 and 2004. According to the Commission, through contacts on pricing, in particular on the specific prices proposed to the principal customers, minimum price levels and target prices, the sharing of views on price developments for the coming semester and pricing intentions, and also through contacts on production capacity and capacity utilisation, future market conduct as well as contract negotiations vis-à-vis common customers, the addressees of the contested decision coordinated their pricing policy for smart card chips. The timing of the collusive contacts may be explained by the timing of the business cycle (recitals 69 to 79 of the contested decision).

23 Thirdly, as regards contacts between the parties to the administrative procedure, the Commission states that the contacts which took place before or after the period of the infringement at issue are part of the body of evidence and may be referred to in the contested decision. Thus, in Table No 4 of the contested decision, the Commission sets out all the contacts which took place between two or more of the addressees of the contested decision between 16 April 2001 and the meeting of 24 September 2003, which give a better understanding of the infringement at issue, as well as all the contacts that took place between two or more addressees of the contested decision between 24 September 2003 and 8 September 2005, which corresponds to the period of the infringement. Next, the Commission gives details of the content of each of those contacts (recitals 80 to 132 of the contested decision).

24 In the second place, the Commission applies Article 101 TFEU and Article 53 of the EEA Agreement to the facts of the case.

25 First, the Commission considers that the conduct of the undertakings sanctioned in the contested decision, whose headquarters, sales facilities, production plant and product marketing functions are inter alia in the EEA, affected competition on the internal market and trade between Member States (recitals 133 to 137 of the contested decision).

26 Secondly, as regards the evidence provided by Samsung that was contested by the applicants and Infineon, the Commission considers, in substance, that, with the exception of a document that had been altered, without any clear explanation of the circumstances in which the alteration was made, and which was not therefore relied on to prove the infringement at issue, the other documents must be regarded as credible proof of the infringement (recitals 140 to 205 of the contested decision).

27 Thirdly, as regards the products in question and the geographic scope of the infringement at issue, the Commission considers that, contrary to what the applicants and Infineon argue, the infringement at issue concerned not only SIM chips, but also non-SIM chips. In this connection, it points out, in particular, that it is not obliged to engage in a relevant market definition when conducting a cartel investigation and that it has contemporary documentary evidence that shows that non-SIM chips were the subject of anticompetitive discussions (recitals 206 to 230 of the contested decision).

28 Fourthly, as regards the nature of the infringement at issue, the Commission submits that the conduct of the undertakings sanctioned in the contested decision constituted a concerted practice for the purposes of Article 101(1) TFEU and Article 53 of the EEA Agreement. It also considers that, although the competitors were in touch essentially through bilateral contacts, those bilateral contacts were linked one with another by their subject-matter and timing, through open references to each other and by the communication of the information gathered. The competitors also consciously used market fairs and other industry gatherings for the purposes of bilateral contacts between them. It was also common knowledge among the competitors, according to Renesas, that bilateral contacts and exchanges of commercially sensitive information were taking place, at least between Samsung and its competitors. The Commission contests the arguments made by the applicants and Infineon to the effect, in particular, that the information exchanged was not sensitive (recitals 231 to 275 of the contested decision).

29 Fifth, as regards the classification of the infringement at issue, the Commission considers it to be a single and continuous infringement, given that there are objective grounds to assume the single anticompetitive aim of the participants in the collusive contacts and their common pattern of behaviour. First of all, the collusive practices in question had the same economic aim, in particular, in view of the aggressive entry into the market of Samsung and Atmel and the pressure exerted by two of the largest customers, Axalto (formerly Schlumberger) and Gemplus. The cartel members had sought to ‘limit the impact [on the competitors] that the challenging market developments … entailed’, ‘to manage the continued price drops and squeezed margins’, so as to ‘slow down the price decrease inherent to the smart card chip market’. Next, several factors, such as the common characteristics of the contacts, the identity of the people participating in the contacts, the timing of the contacts or their proximity in time, confirm that those collusive contacts were linked and complementary in nature and that, by interacting, they contributed to the realisation of the set of anticompetitive effects within the framework of a global plan having a single objective. As regards awareness of the infringement at issue, the Commission states that Samsung and Renesas had each engaged in collusive contacts with the three other undertakings sanctioned in the contested decision. According to the Commission, the applicants had contacts with Samsung and Renesas, and it was common knowledge, according to Renesas, that Samsung had contacts with its competitors. As regards Infineon, it had had direct contacts with Samsung and Renesas, although there is no evidence that Infineon had contacts with the applicants or that it had the subjective impression of participating in the whole of the infringement at issue, and so it could be held liable for that infringement only in so far as it participated in collusive arrangements with Samsung and Renesas (recitals 276 to 315 of the contested decision).

30 Sixth, the Commission considers, in substance, that the conduct of the undertakings in question had the object of restricting competition in the European Union and had an appreciable effect on trade between Member States and between contracting parties to the EEA Agreement (recitals 316 to 334 of the contested decision).

31 In the third place, in so far as concerns the duration of the infringement at issue, the Commission states that it is not possible to ascertain the exact dates on which the participants started or stopped their collusive contacts and on which the cartel started to or ceased to produce its effects. In particular, as regards Infineon, the Commission submits that the infringement at issue lasted from 24 September 2003 to 31 March 2005. As regards the applicants, the infringement lasted from 26 September 2003 to 9 September 2004 (recitals 336 to 345 of the contested decision).

32 In the fourth place, as regards the addressees of the contested decision, the Commission considers, in particular, that Infineon participated in the infringement at issue through the involvement of certain of its employees. Moreover, as regards the applicants, the Commission considers that Philips France, which was a subsidiary wholly owned, directly or indirectly, by Koninklijke Philips, participated in the infringement at issue through the involvement of one of its employees. The Commission presumes that Koninklijke Philips exerted a decisive influence over the market conduct of Philips France, given their shareholding links and other factual elements which corroborate the fact that Koninklijke Philips exerted a decisive influence over its subsidiaries (recitals 353 to 389 of the contested decision).

33 In the fifth place, as regards corrective measures, the Commission states that, since it is impossible to determine with certainty that the infringement at issue has ceased, it intends to require the undertakings in question to bring that infringement to an end, in accordance with Article 7 of Regulation No 1/2003. It also intends to impose fines in accordance with Article 23(2) of Regulation No 1/2003 and 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 2006 Guidelines’) (recitals 390 to 394 of the contested decision).

34 First of all, the Commission submits that the infringement at issue was committed intentionally (recital 395 of the contested decision).

35 Next, as regards the value of sales to be taken into consideration, the Commission states that, in this case, it is departing from the principle that the last full business year of an undertaking’s participation in an infringement is taken into account, in view of the short duration of the infringement at issue, which spanned three calendar years, and in view of the considerable difference in the duration of the involvement of the various parties in the administrative procedure. The Commission therefore considers it appropriate to use a proxy for the annual value of sales based on the actual value of sales made of cartelised products by the undertakings during the months of their active participation in the infringement at issue (recitals 398 to 404 of the contested decision).

36 Also, as regards the calculation of the basic amounts of the fines, the Commission considers it appropriate to use a multiplier of 16% to reflect the gravity of the infringement at issue and finds the duration of the infringement to be 11 months and 14 days in the case of the applicants, 18 months and 7 days in Infineon’s case, 23 months and 2 days in the case of Renesas and 23 months and 15 days in the case of Samsung. It adds that an additional amount of 16% of the value of sales should be taken into account (recitals 405 to 420 of the contested decision).

37 Moreover, as regards adjustments to the calculation of the basic amounts of the fines and deterrence, the Commission considers there to be no aggravating circumstances. On the other hand, it grants Infineon a 20% reduction in its fine on account of the fact that it is liable for the infringement at issue only to the extent that it participated in collusive arrangements with Samsung and Renesas, not with the applicants. Furthermore, it applies a factor of 1.4 to Samsung’s fine, 1.2 to Hitachi’s fine and 1.1 to Mitsubishi’s fine (recitals 421 to 431 of the contested decision).

38 Lastly, after noting that the amounts of the fines calculated as mentioned above do not exceed the limit of 10% of total turnover of the undertakings concerned, the Commission submits, in connection with the grant of reductions in the fines under the Leniency Notice, that Renesas is entitled to immunity from fines, and that Samsung, which furnished information which provided significant added value, is entitled to a reduction of 30% of the fine that would otherwise have been imposed (recitals 432 to 456 of the contested decision).

39 In Article 1 of the contested decision, the Commission concludes that, ‘for its coordination with Samsung and Renesas’, Infineon participated in a single and continuous infringement relating to smart card chips and covering the entire EEA from 24 September 2003 to 31 March 2005, (Article 1(a)), that the applicants participated in that infringement from 26 September 2003 to 9 September 2004 (Article 1(b)), that Renesas participated in that infringement from 7 October 2003 to 8 September 2005 (Article 1(c)) and that Samsung participated in that infringement from 24 September 2003 to 8 September 2005 (Article 1(d)).

40 In Article 2 of the contested decision, the Commission imposes fines of EUR 82 784 000 on Infineon (Article 2(a)), EUR 20 148 000 on the applicants (Article 2(b)), EUR 0 on Renesas (Article 2(c)) and EUR 35 116 000 on Samsung (Article 2(d)).

41 By application lodged at the Registry of the General Court on 13 November 2014, the applicants brought the present action.

42 Upon hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure and, by way of a measure of organisation of procedure adopted on the basis of Articles 89 and 90 of its rules of procedure, requested the Commission to provide it with the transcript of certain oral statements made by Renesas and Samsung in the context of their application under the Leniency Notice. The Commission declined to accede to that request, stating that it was prepared to provide those transcripts on the basis of a measure of inquiry.

43 By measure of inquiry of 7 April 2016, the Court, on the basis of Articles 91 and 92 of the Rules of Procedure ordered the Commission to produce the documents that it had not submitted in the context of the measure of organisation of procedure referred to in paragraph 42 above. The Commission complied with that measure of inquiry within the prescribed period.

44 The parties presented oral argument and replied to questions from the Court at the hearing on 27 April 2016, at the end of which the oral part of the procedure was closed.

47 The applicants put forward nine pleas in law. By their first three pleas, they dispute the Commission’s finding that they infringed Article 101 TFEU and Article 53 of the EEA Agreement. By the first plea, they allege a failure to prove to the requisite legal standard that the contacts in which they had engaged constituted a restriction of competition by object. The second plea alleges an error of assessment as regards the Commission’s finding that the infringement at issue extended to all SIM chips and non-SIM chips, and not merely SIM chips. The third plea alleges a failure to prove to the requisite legal standard that the applicants were part of a multilateral cartel with the three other addressees of the contested decision or that they had participated in a single and continuous infringement.

48 By their fourth, fifth and sixth pleas, the applicants take issue with the way in which the Commission’s investigation was carried out. The fourth plea alleges breach of Article 41 of the Charter of Fundamental Rights of the European Union, the principle of sound administration and the duty of care, in that the Commission did not handle the case fairly and impartially. The fifth plea alleges a failure, resulting from the way in which the proceedings were conducted, to prove the infringement at issue to the requisite legal standard. The sixth plea alleges infringement of Article 27 of Regulation No 1/2003 and Article 11 of Regulation No 773/2004, in that the Commission failed to disclose to them important exculpatory evidence.

49 By their seventh, eighth and ninth pleas in law, the applicants take issue with the fine imposed on them. The seventh plea alleges infringement of Article 25 of Regulation No 1/2003, in that the Commission was barred from sanctioning the alleged infringement in so far as it took place before 3 September 2004. The eighth plea alleges infringement of the 2006 Guidelines, in that the Commission incorrectly determined the applicants’ relevant value of sales. The ninth plea alleges infringement of Article 23 of Regulation No 1/2003 and of the 2006 Guidelines, in that the Commission applied a disproportionate gravity multiplier.

The first plea, alleging a failure to prove to the requisite legal standard that the contacts in which the applicants had engaged constituted a restriction of competition by object

50 The applicants argue, in substance, that the information exchanged during the sporadic and incidental bilateral contacts that they were engaged in with their competitors was not, overall, competitively sensitive and did not remove strategic uncertainty to a sufficient extent to constitute a restriction of competition by object. First, they submit that the information exchanged would have constituted a restriction of competition by object only if, in accordance with the Guidelines on the applicability of Article [101 TFEU] to horizontal cooperation agreements (OJ 2011 C 11, p. 1; ‘the Horizontal Guidelines’), the exchange of information had concerned individualised data and intended future prices. Second, the contacts in question do not reveal a sufficient degree of harm to competition, within the meaning of the case-law. In that regard, in response to the oral questions put by the Court, the applicants described the contacts in question between competitors as mere ‘gossip’.

51 According to the applicants, in order to establish that an exchange of information has the effect of restricting competition, it is necessary, first of all, to consider the characteristics of the market, then to establish the type of information exchanged and, lastly, to ascertain whether that exchange is capable, taking into account the legal and economic context in which it occurs, by its very nature, of reducing strategic uncertainties. However, none of those conditions is fulfilled in the present case and the Commission was mistaken to take the view that it was not necessary to examine those conditions in the present case.

53 It must first be recalled that, to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement, a decision by an association of undertakings or a concerted practice must have ‘as [its] object or effect’ the prevention, restriction or distortion of competition in the internal market.

54 According to the case-law, certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 49 and the case-law cited).

55 That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 50 and the case-law cited).

56 Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market. Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51 and the case-law cited).

57 Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 52 and the case-law cited).

58 In order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 53 and the case-law cited).

59 In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 54 and the case-law cited).

60 In so far as concerns, in particular, the exchange of information between competitors, it should be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the internal market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 119 and the case-law cited).

61 While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 120 and the case-law cited).

62 In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 122 and the case-law cited).

63 The General Court has already held that the provision of sensitive business information, such as an exchange of future price increases, has — where that information is given to one or more competitors — an anticompetitive effect inasmuch as the independence of the undertakings concerned in their conduct on the market is modified as a result. Where such practices occur, the Commission is not obliged to prove their anticompetitive effects on the relevant market if they are capable in an individual case, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition within the internal market (see judgment of 16 September 2013, Wabco Europe and Others v Commission, T‑380/10, EU:T:2013:449, paragraph 78 and the case-law cited).

64 Lastly, it should be pointed out that the concept of a concerted practice, as it derives from the actual terms of Article 101(1) TFEU implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 126 and the case-law cited).

65 In that regard, the Court of Justice has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court of Justice has concluded that such a concerted practice is caught by Article 101(1) TFEU, even in the absence of anticompetitive effects on the market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 127 and the case-law cited).

66 Moreover, it should be pointed out that, in paragraphs 73 and 74 of the Horizontal Guidelines, the Commission finds as follows:

‘73.Exchanging information on companies’ individualised intentions concerning future conduct regarding prices or quantities is particularly likely to lead to a collusive outcome. Informing each other about such intentions may allow competitors to arrive at a common higher price level without incurring the risk of losing market share or triggering a price war during the period of adjustment to new prices. Moreover, it is less likely that information exchanges concerning future intentions are made for pro-competitive reasons than exchanges of actual data.

74. Information exchanges between competitors of individualised data regarding intended future prices or quantities should therefore be considered a restriction of competition by object. In addition, private exchanges between competitors of their individualised intentions regarding future prices or quantities would normally be considered and fined as cartels because they generally have the object of fixing prices or quantities. Information exchanges that constitute cartels not only infringe Article 101(1) [TFEU] but, in addition, are very unlikely to fulfil the conditions of Article 101(3) [TFEU]’.

67 In the light of the provisions and case-law set out in paragraphs 54 to 66 above, it is therefore necessary to ascertain in the present case whether, as the applicants in essence submit, the Commission was wrong in finding that the practices in question constituted a restriction of competition ‘by object’, whilst, in their submission, the three conditions that must be met in order to reach such a finding have not been fulfilled in the present case. Those conditions are, first, that the characteristics of the market, which could be characterised as very dynamic, did not lend themselves to anticompetitive coordination, second, that the information exchanged between the competitors was not precise, confidential or strategic and, third, that the bilateral contacts did not have an object of restricting competition.

68 In the first place, as regards the applicants’ complaint that the market conditions in the smart card chips sector were not conducive to anticompetitive coordination, first, it should be noted that, as the Commission rightly observes, it is not apparent from the case-law as set out in points 54 to 65 above that, in order to prove that an exchange of information constitutes a restriction of competition by object infringing Article 101(1) TFEU, the Commission is required to establish that the market concerned displays certain specific characteristics conducive to the implementation of collusive practices. By contrast, it is for the Commission to establish, as is apparent in particular from the case-law set out in paragraphs 58, 61 and 63 above, that, in view of the specific legal and economic context of which they were part, the practices at issue were, on account of their very object, capable of altering the proper functioning of normal competition on the relevant market.

69 Second, and in any event, even on the assumption that, as the applicants observe in their pleadings and at the hearing, they had contacts only on five occasions with only two of the five competitors active on the market, that the smart card chips sector was very unstable, was characterised by low entry barriers, fluctuating market shares, and by substantial and rapid technological innovations, as is apparent from the fact that two undertakings, namely Amtel and Samsung, entered the market during the period of the infringement at issue, rapidly gaining market share, those factors do not themselves alone preclude the finding that the information exchanges in question restricted normal competition on the relevant markets, in view of the other factors characterising those markets.

70 Indeed, those factors, that the Commission set out in recital 59 of the contested decision and which the applicants did not contest, are that prices for smart card chips were constantly falling, that there was downstream pressure on pricing and margins from the largest customers, of whom, moreover, there were very few, that there were imbalances in the ratio between demand and supply resulting from an increase in demand and constant, rapid technological development, and that the structure of contract negotiations consisted in smart card manufacturers negotiating their supply contracts in parallel with their customers.

71 Those factors are capable of establishing that the undertakings to which the contested decision was addressed would take advantage of an exchange of sensitive information concerning their competitors’ strategic policies in terms of prices, capacity and technological development. The exchange of that information on the market for smart card chips, as described in paragraph 70 above, was capable, as the Commission observed in recitals 287 and 288 of the contested decision, of enabling the competitors ‘to limit the impact that the challenging market developments … entailed for them’, ‘to manage the continued price drops and squeezed margins’, in order to ‘slow down the price decrease inherent to the smart card chip market’.

72 In those circumstances, the applicants’ argument that the economic analysis report drawn up at their request on the basis of the Statement of Objections concludes that, ‘when the particular features of the market are taken into consideration’, the information that they exchanged ‘was not such as to significantly reduce strategic uncertainty’, cannot succeed.

73 First, it should be pointed out, in that regard, that, whilst the view is admittedly taken in the economic analysis report mentioned in paragraph 72 above that the Commission failed to discharge the burden of proof that it set for itself in the Horizontal Guidelines, that report also recognises that, at the very least, the information exchanged by the suppliers enabled them to gain a better understanding of the market.

74 Second, and in any event, it is in accordance with both the case-law set out in paragraph 63 above and paragraph 74 of the Horizontal Guidelines that the Commission found that the exchange of commercially sensitive information concerning the pricing intentions of the applicants’ competitors and their capacities constituted an anticompetitive practice whose very object was capable of restricting the normal functioning of competition, in view of the market conditions set out in recital 59 of the contested decision.

76 In the first place, as regards the applicants’ complaints that (i) the information exchanged was neither accurate nor strategic and (ii) nothing indicated that the bilateral contacts, in particular between the applicants and the new entrant to the market, Samsung, whose objective was to become the market leader, had an object of restricting competition, it is necessary to ascertain whether the information exchanged revealed, by its very nature, a sufficient degree of harm to competition that it may be considered to result in a restriction of competition by object.

77 As a preliminary point, first, the Court would point out that, as the applicants observe, the Commission stated, on the one hand, in recital 296 of the contested decision, that the applicants had participated in ‘at least six cartel [meetings]’ and, on the other, in Table No 4 of the contested decision, that they had participated in seven cartel meetings. However, even if, as the Commission moreover recognises in its pleadings, it incorrectly mentioned, on several occasions in the contested decision, the meeting of 13 April 2004 as being one of the meetings during which collusive practices took place (recital 112, recital 243(a), and recital 256 of the contested decision), even though it had ruled out taking that meeting into consideration in finding that the conduct at issue was illegal, it must be observed that such an error would nevertheless have no effect on the classification of the practices at issue as a whole as an infringement ‘by object’, on condition that the information exchanges that took place at the other meetings taken into consideration by the Commission established the existence of an infringement by object.

78 Second, even on the assumption that, as the applicants submit, the Commission was wrong to take into consideration, in order to establish the infringement at issue, the meeting of 25 January 2004, in so far as ‘this contact was nothing more than an unsuccessful attempt by Mr [K.] of Samsung to obtain inventory information’, that would not however, in any event, lead to the conclusion that the Commission was wrong to find that the infringement at issue constituted a restriction of competition by object. Only if the information exchanges during the five other meetings in which the applicants participated during the infringement period did not constitute a restriction of competition by object would it be appropriate to find that the Commission was wrong to find that the infringement at issue constituted a restriction of competition by object.

79 In those circumstances, and without there being any need to ascertain whether the meeting of 25 January 2004 could be considered anticompetitive, it is necessary to consider whether one or other of the five other contacts engaged in by the applicants, between 26 September 2003 and 9 September 2004, with some of their competitors, could legitimately be classified by the Commission as restrictions of competition ‘by object’.

80 As a preliminary point, the Court notes, in that regard, that, although the applicants claim that the contacts in which they engaged did not constitute a restriction of competition, they nonetheless acknowledged in their pleadings and at the hearing, in particular in response to the questions put by the Court, that they ‘[do] not deny that the file shows that some of these discussions may also have touched upon more sensitive issues’, that the exchange of that type of information with competitors ‘would have been against [their] internal compliance policy’, that some of those exchanges on prices were ‘definitely not allowed under [their] internal compliance rules’ or even that it is true that ‘it was clear that Samsung [had] contacted [them] to improve its market position’, even though, in the applicants’ submission, Samsung had the objective at the time ‘[of competing] more effectively on the market’. It must therefore be held that, even if those statements of the applicants seek, in their submission, only to contest the existence of a single infringement, the fact remains that, in those statements, the applicants recognise that the information exchanges in which they participated had, at the very least, as their object to ‘improve [their] market position’.

81 As regards the first anticompetitive meeting in which the applicants allegedly participated, on 26 September 2003, first, it must be stated that, as is set out in recital 91 of the contested decision, the applicants acknowledge that their employee, Mr D., met the Samsung employee, Mr K., in Paris (France), on that date. Moreover, it should be noted that the applicants do not contest that, at that meeting, the Samsung employee, Mr K., informed the applicants’ employee, Mr D., of the content of its discussions with the Infineon employee, Mr L., two days earlier in Munich (Germany), as the Commission stated in recital 90 of the contested decision.

82 Second, it should be noted that the applicants do not contest the content of the exchanges which took place between Samsung and them on 26 September 2003, as set out by the Commission in recital 91 of the contested decision. However, they claim, in essence, that the information exchanged was not such as to significantly reduce commercial uncertainty between the competitors on the relevant markets. Such an argument is not however convincing in the light of the competitively sensitive nature of the information exchanged.

83 As the Commission states in essence, it is apparent from recital 91 of the contested decision that, after the applicants had provided an estimate of the overall market for SIM chips for the following year and they had exchanged their estimates relating to the individual capacities of each smart card chip manufacturer, they communicated to one another their estimates in terms of demand and capacity levels for 2004, as well as the development of demand and capacities on account of the migration of their products to new technologies. Such an exchange of information relating to the future capacities of competitors on the market is capable, in particular on a market where supply and demand are concentrated, of influencing directly the commercial strategy of those competitors.

84 Moreover, as regards the prices of the products in question, the applicants and Samsung discussed, at the very least, the price that the customer Schlumberger had requested from them for 2004, the intention of Samsung and of the applicants not to offer the price requested by that customer, namely US dollars (USD) 0.80, and of the applicants’ intention not to offer for that product a price under USD 1. Such an exchange of information relating to the future pricing strategy of the undertaking in general, and of a customer in particular, is capable of affecting normal competition.

85 It is apparent therefore from the findings set out in paragraphs 81 to 84 above that the applicants exchanged with Samsung detailed and individualised information, and not general information, as they claim, on their current and future production capacities, as well as on their current and future prices in general and, in particular, on those charged to one of the four main purchasers of the products in question.

86 The arguments put forward by the applicants, in that regard, cannot invalidate that finding.

87 First, in so far as the applicants submit that the information exchanged on the size of the market was very general and was in the public domain, the Court notes that, as the Commission states, the documents that the applicants have provided to the Court, in that regard, and which indicate the estimates of the market shares of their competitors, all date from 2004. Accordingly, as the Commission rightly observes, those documents provided by the applicants do not show that the individualised market shares constituted public information on the date of the meeting in question, which took place on 26 September 2003.

88 The fact that, as the applicants submit, market shares evolved rapidly after Samsung entered the market in 2001 does not affect the finding that the exchange of estimated individualised market shares between competitors in 2003 was capable of reducing or removing the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings was restricted.

89 Second, in so far as the applicants claim that the information exchanged on the migration of their products to new technologies was imprecise and public, the Court notes that, as the Commission states, the applicants communicated to Samsung their commercial strategy by indicating to it that they had started their ‘allocation’ in the fourth quarter of 2003. Such information relating to the production capacity of an undertaking is by its very nature sensitive and confidential.

90 In addition, the fact that, as the applicants observe, the smart card chip manufacturers were liable to make public in marketing material the general timing of putting new products on the market does not however establish that they made public the strategies to which they would resort in order to deal with the consequences of technological evolution. In that regard, the Court notes that, even on the assumption that, as the applicants explain, the expression ‘allocation’ in that context did not imply a ‘reduction or limit on … production’, but only that the smart card chip manufacturer ‘[would] have to make an economically rational choice in allocating its production lines over the various chip applications’, the fact remains that an exchange of such information is competitively sensitive. The exchange concerns the applicants’ strategic and confidential choices concerning the manufacture and marketing of their products.

91 Moreover, the Court notes that, even if, as the applicants claim, the information that they disclosed was inaccurate, in so far as they had not experienced a shortage, the fact remains that the very disclosure of that type of information on future prices, whether correct or inaccurate, is capable of influencing the conduct of undertakings on the market. In that regard, it has been held that, even on the assumption that it is proved that certain participants in the cartel succeeded in misleading other participants by sending incorrect information and in using the cartel to their advantage, by not complying with it, the infringement committed is not eliminated by that simple fact (judgment of 8 July 2008, Knauf Gips v Commission, T‑52/03, not published, EU:T:2008:253, paragraph 201; see also, to that effect, judgment of 15 June 2005, Tokai Carbon and Others v Commission, T‑71/03, T‑74/03, T‑87/03 and T‑91/03, not published, EU:T:2005:220, paragraph 74).

92 Third, the applicants put forward, in essence, three main arguments aimed at establishing that the information exchanged on prices was ‘generic, imprecise or even inaccurate’, and that it was therefore incapable of restricting competition.

93 First of all, the applicants submit that it was not selling 64 K SIM chips to Schlumberger in 2003, so that it would be incorrect to take the view that they might have indicated to Samsung that the price that they were charging at that time to Schlumberger was USD 1.15 and that Schlumberger requested from Samsung a price of USD 0.8 for 2004.

94 In that regard, the Court notes that, as the applicants maintain in their pleadings and at the hearing, the documents provided by the Commission, relating to the supplying of Schlumberger in particular, do not establish that the applicants supplied to Schlumberger any 64 K SIM chips in 2003.

95 However, that finding alone does not lead to the conclusion that the discussions between the applicants and Samsung concerning the future prices charged to Schlumberger had no effect on competition.

96 The Court would point out that, as may be seen from the case-law set out in paragraph 91 above, the mere fact that the applicants sought to mislead Samsung by providing it with incorrect information does not lead to the conclusion that they did not influence Samsung’s conduct on the market.

97 Moreover, and in any event, the Court would point out that, as the Commission stated in recital 91 of the contested decision, the applicants do not contest that Samsung, which supplied 64 K SIM cards to Schlumberger in 2003 and in 2004, informed the applicants of the prices that it was charging to that customer in 2003, namely USD 1.10 to USD 1.15, and of the fact the it considered that the price requested by Schlumberger for 2004, namely USD 0.80, was too low. At that meeting, the applicants therefore, at the very least, acquainted themselves with strategic information on Samsung’s pricing intentions in respect of the following year, 2004, for one of the four main customers of smart card chips.

98 In those circumstances, the information that Samsung would refuse to supply those goods to Schlumberger at that price constituted competitively sensitive information, which was capable of influencing the applicants’ conduct on the market.

99 Next, the applicants claim that the average selling price of the 64 K SIM chips or higher was EUR 2.68, and that of non-SIM chips was EUR 1.84 in the fourth quarter of 2003, which corresponded therefore to amounts significantly higher not only than the price of USD 1.15, on which the parties allegedly exchanged, but also to the applicants’ intention not to reduce prices below USD 1.

100 That argument of the applicants is not however convincing, since it is apparent from the material in the file before the Court that the price of USD 1.15 in 2003 corresponded to the actual prices charged at that time.

101 Indeed, Samsung’s internal report, dated 24 September 2003, which refers to its meeting with Infineon, states that the prices of ‘SIM 64 K [cards] are at [USD] 1.1 for large customers’ and that ’64 K products will go under [USD] 1 in [the first quarter of] 2004’, and an email of Renesas, dated 7 October 2003, states that ‘[Samsung’s] 64 K pricing is EUR 1.1 to EUR 1.2’.

102 Lastly, the applicants’ arguments aimed at establishing that the information exchange at issue was not anticompetitive must be rejected as unfounded.

103 In so far as the applicants claim in particular at the hearing, in response to oral questions put by the Court, that the target prices provided by the customers, such as the price of USD 0.80 announced by Schlumberger, were publicly circulated in the market, and that the prices charged were USD 1.10 to USD 1.15 in 2003, that argument must be rejected as unfounded. By indicating to the applicants that it would not make an offer to Schlumberger to the price requested by the latter, on the ground that that price was too low, Samsung communicated to the applicants its pricing intentions. Those intentions did not constitute public information.

104 In the light of all the foregoing considerations, it must be held that the first plea, according to which the Commission was wrong to find that the unlawful practices in question did not constitute a restriction of competition by object, must be rejected as unfounded. The mere finding that the information exchanged at the meeting of 26 September 2003 between the applicants and Samsung, and in particular that relating to future capacities and prices, was, on account of its very object, capable of influencing the conduct on the market of the competitors, is sufficient for the view to be taken that the Commission was fully entitled to find that the practices in question constituted a restriction of competition by object.

105 For that reason, it is solely for the sake of completeness that it is necessary to examine whether the information exchanges which took place during the four other contacts of the applicants with their competitors also constituted restrictions of competition by object.

106 As regards the second meeting, in which the applicants’ employee, Mr D., participated, with the Renesas employee, Mr B., on 16 October 2003, at a restaurant in Saint-Cloud (France), and to which the Commission refers in recital 94 of the contested decision, first, it should be noted that the applicants do not contest having participated in that meeting.

107 Second, in so far as the applicants claim that the handwritten notes of the Renesas employee, Mr B., on which the Commission relied in finding that the exchanges at that meeting were anticompetitive, are insufficiently corroborated, since NXP stated merely that the exchanges in question concerned general information, that argument must be rejected as unfounded.

108 In that regard, it should be recalled that, as the Commission rightly argues, there is no principle of EU law which precludes the Commission from relying on a single document, provided that its evidential value is undoubted and that the document by itself definitely attests to the existence of the infringement in question (judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 1838).

109 Moreover, under the general rules of evidence, the fact that documents relating directly to the meetings concerned were drawn up and clearly without any thought for the fact that they might fall into the hands of third parties must be regarded as having great significance (judgment of 27 September 2012, Shell Petroleum and Others v Commission, T‑343/06, EU:T:2012:478, paragraph 207).

110 In the light of the case-law set out in paragraphs 108 and 109 above, it must therefore be stated, in the present case, that the handwritten notes of Renesas alone, regarding which NXP merely stated during the administrative procedure that it recalls only that ‘general market intelligence was exchanged’, establishes the facts to the requisite legal standard. Those notes were drafted at the material time by one of the participants in that meeting and were gathered by the Commission during its on-the-spot inspections, so that those notes must be considered credible evidence of the content of the discussions at issue. Moreover, it must be stated that the content of those notes is consistent with those drafted by Samsung with respect to the meeting of 26 September 2003, in relation to which the applicants relayed the information to Renesas at the meeting of 16 October 2003.

111 In that regard, it is necessary to reject as unfounded the applicants’ argument, put forward at the hearing, that the Commission was wrong to rely on the evidence adduced by Samsung alone in order to establish the existence of the infringement at issue. As is apparent in particular from the evidence establishing the unlawfulness of the meeting of 26 September 2003, the Commission did not rely solely on the evidence provided by Samsung, but also on that adduced by Renesas and NXP in order to corroborate the statements and documents provided by Samsung.

112 Third, in so far as the applicants contest the anticompetitive nature of the information exchanged on account of the fact that that information was imprecise and not capable of restricting competition on the market, the Court shares the Commission’s view that that information was competitively sensitive.

113 The applicants communicated to Renesas their production capacities for 0.18 μm chips, and their upcoming commercial strategy, which was to move away from the production of 4 K chips to EMV banking applications. In that regard, the Court notes that, even on the assumption that, as the applicants claim, that information disclosed was inaccurate in so far as the applicants had not experienced a shortage, the fact remains that, as was already found in paragraph 91 above, such information was capable of influencing the conduct of their competitors in terms of commercial positioning.

114 Moreover, as regards future prices, the applicants indicated to Renesas, during the meeting of 16 October 2003 that, as regards 64 K chips, their sale price would be EUR 1.00 or above in 2004. In addition, the applicants reported to Renesas on the information on prices that they had exchanged with Samsung at their meeting of 26 September 2003. In that regard, contrary to what the applicants assert, such information on future pricing intentions is sensitive and capable of influencing the pricing strategy of their competitors.

115 In those circumstances, it must be stated that the Commission did not err in considering that the exchange of information between the applicants and Renesas, on 16 October 2003, constituted a restriction of competition by object, contrary to Article 101 TFEU and Article 53 of the EEA Agreement.

116 As regards the third meeting in which the applicants allegedly participated, with Renesas, between 18 and 20 November 2003, in the context of the ‘Cartes’ trade fair, in Paris, and to which the Commission refers in particular in recitals 98, 99 and 103 of the contested decision, first, it should be noted that the applicants submit that the Commission has insufficient evidence to prove their participation in that meeting.

117 However, the Court would point out, in that regard, that the applicants do not contest that the oral statements of Renesas are corroborated by the report annexed to the two Renesas internal emails, dated 26 November 2003, in which it is expressly stated that Renesas had contacts with most of its competitors, including the applicants. Thus, it is apparent from the report of the Renesas employee, Mr H., annexed to his internal email of 26 November 2003, that he had noted that ‘[m]ost [chip] makers agree[d] they wish[ed] to avoid further significant price erosion in all applications including finance and mobile communication during 2004’. The fact, raised by the applicants, that their employee, Mr D., does not recall that meeting or that Mr D.’s name is misspelt in that report does not alter that finding.

118 Moreover, and in any event, it must be stated that the applicants do not put forward any argument or evidence capable of substantiating their assertion that their employee, Mr D., was not present at that meeting, contrary to what the information that Renesas obtained on their capacity levels and their pricing intentions shows; that information emerges from the documents annexed to the internal email of 26 November 2003 of the Renesas employee, Mr D.

119 Moreover, in so far as the applicants submit that the information concerning them was provided by their customers and not by their competitors, that argument must be rejected as having no factual basis. The fact that the information was collected by Renesas directly from the applicants is expressly clear from the wording of the report drawn up by Renesas which states under the name ‘Philips’: ‘[…] — [c]laim[s] to be a key player’ or ‘will refuse to continue price battle on EMV’.

120 In those circumstances, it must be held that the Commission has established to the requisite legal standard that the applicants participated in that meeting.

121 Second, in so far as the applicants contest, in essence, the anticompetitive nature of the information exchanged during that meeting between themselves and Renesas, the Court observes that it is apparent from the internal notes of Renesas that the applicants and Renesas informed each other about their commercial strategy vis-à-vis some of their products, expected profitability, of the fact that they were manufacturing at full capacity and that the applicants did not intend to engage in price battles either for non-SIM chips (Europay Mastercard Visa), in particular because that ‘[was] no fun below [EUR] 0.4’, or for 64 K SIM chips, in order to preserve their profit margins.

122 In that regard, the Court notes that, contrary to the applicants’ arguments that the information exchanged was not precise, or even if, as they claim, that information was inaccurate, the fact would remain that disclosure by the applicants to Renesas of information on their pricing and commercial strategy is involved. That information does not fall within the public domain and the exchange thereof between two competitors is capable of restricting normal competition on the market.

123 In those circumstances, the Court rejects as unfounded the applicants’ argument that they did not participate in a meeting with Renesas between 18 and 20 November 2003 and that that meeting was not anticompetitive by reason of its very object.

124 As regards the fourth contact, that the applicants allegedly had with Samsung, between 18 and 20 November 2003, and to which the Commission refers in recital 104 of the contested decision, in the first place, it should be noted that the applicants contest the very existence of the contact in question, claiming, in essence, that the only evidence of that contact is the report of that telephone conversation that Samsung drew up, which is contradicted by the oral statements of NXP and an entry in the calendar of the applicants’ employee, Mr D., which would indicate on the contrary that a meeting, rather than a telephone conversation, took place.

125 In that regard, the Court would point out that the Commission has contemporaneous evidence establishing, first, that Samsung and Renesas had planned to meet each other at the ‘Cartes’ fair, in Paris, on 18 or 19 November 2003 in the afternoon, as is apparent from the email sent by the Samsung employee, Mr K., to the applicants’ employee, Mr D., in order to discuss ‘2004 market forecasting and price trend’ and ‘Capacity issue’.

126 Furthermore, it is apparent from two other items of contemporaneous evidence that those individuals had a telephone conversation, rather than a meeting. That is apparent from the diary of the applicants’ employee, Mr D, in which the name and telephone number of the Samsung employee, Mr K., appear on 18 November 2003 at 17.30. In that regard, contrary to the applicants’ submission, it is not apparent from that diary entry that those individuals met one another, rather than spoke on the telephone; only the name and telephone number of the Samsung employee, Mr K., were entered, with no meeting place foreseen. In addition, that is apparent also from the ‘Business trip report’ drawn up the Samsung employee, Mr K., in which it is stated that they spoke on the telephone on account of a change to the schedule.

127 The oral statements of (i) the applicants’ employee, Mr D, according to which ‘[he] does not recall there being such a phone call’ and (ii) NXP, which allegedly referred to a meeting, rather than a telephone conversation, are not capable of casting doubt on the finding that the documents mentioned in paragraphs 125 and 126 above, which were compiled at the material time by one of the participants in those conversations, are capable of establishing to the requisite legal standard the existence of a telephone conversation between the applicants and Samsung.

128 In the second place, it is apparent from the information exchanged that the applicants informed Samsung of the evolution of their production by stating, in essence, that the supply of 0.18 μm chips was very difficult and would worsen in 2004 and that they would increase their prices during the following quarter, in 2004. As the Commission states and contrary to the applicants’ assertion, the references made to those price increases ‘in [the first quarter of] 2003’ in the report in question, rather than the first quarter of 2004, must be interpreted as being a clerical mistake, since, according to the title itself of the email at issue, the discussions relate to future price estimates. Moreover, even on the assumption that those forecast increases do not correspond to the prices subsequently charged, as the applicants state, that would have no effect on the finding that the disclosure of that information was capable of influencing the competitors’ conduct on the market.

129 Furthermore, in so far as the applicants submit that the information exchanged was not sufficiently precise to result in a restriction of competition by object, it should be noted that the information exchanges were not as specific on the occasion of that contact as during earlier contacts. The evidence adduced by the Commission support a finding that the applicants and Samsung exchanged information of an exclusively general nature, in terms of price and volume, without however indicating the specific prices and volumes envisaged.

130 It must therefore be held that that exchange of information corroborates the finding that the applicants participated in unlawful information exchanges on prices and capacities, but that that exchange is on its own insufficient to establish the existence of a restriction of competition by object.

131 As regards the fifth contact that the applicants had, with Samsung, on 9 September 2004, at Paris-Charles-de-Gaulle airport, and to which the Commission refers in recitals 121 and 123 of the contested decision, first, it should be noted that the applicants state themselves that they ‘[do] not deny that there was [that] meeting’.

132 Second, in so far as the applicants observe that the Commission did not rely on Samsung’s internal report to establish unlawful information exchanges, the Court notes that, as is apparent from the case-law cited in paragraphs 108 and 109 above, the Commission is entitled to rely solely on one contemporaneous document in order to establish facts provided that the document is sufficiently credible.

133 Third, in so far as the applicants contest that the information exchanged is competitively sensitive, that argument must be rejected as unfounded.

134 It is apparent from Samsung’s report that, as the Commission observed in recital 123 of the contested decision, the applicants disclosed the average sale price of their 64 K/128 K chips, their pricing intentions regarding one of the four main customers for 128 K chips, namely USD 1.5, their commercial intentions regarding 0.18 μm chips and their 32 K/16 K chips, as well as their capacity levels, in so far as ‘[they] had no inventory problems’.

135 Moreover, in so far as the applicants contest that Samsung provided them with indications on future prices for its customer Schlumberger, but submit that that information was not sensitive since Schlumberger was not one of their customers for SIM chips, but only for non-SIM chips, and that prices varied greatly from year to year and according to each customer, such an argument is not convincing. As the Commission rightly observes, the information concerning the future prices that Samsung intended to charge one of its main customers for smart card chips reduced in any event the uncertainty the applicants had when negotiating with their own customers, in particular if, as is found in the context of the second plea (see paragraphs 142 to 155 below), (i) there is a price correlation between SIM chips and non-SIM chips and (ii) certain SIM chips and non-SIM chips are interchangeable.

136 In the light of the foregoing, it must be held that the information mentioned in paragraphs 134 and 135 above is part of the strategic information of an undertaking, the disclosure of which by one competitor to another is capable of influencing their conduct on the market and thus of influencing normal competition.

137 In those circumstances, the fact that the information communicated might not have been accurate or concerned undertakings, such as Schlumberger, which were not customers of one of the two competitors of the applicants does not permit the inference that their conduct on the market was not altered by the disclosure of such information.

138 Moreover, in so far as the Commission contends, in its pleadings and at the hearing, that the applicants participated in anticompetitive contacts other than the five contacts mentioned above, and that it is in the light of those other contacts that it is necessary to assess the evidence of the anticompetitive nature of the information exchanges in which the applicants were involved, that argument must be rejected as ineffective. It is true that, as the Commission correctly notes, according to the case-law, allegedly anticompetitive meetings, but not classified as such in the contested decision by the Commission, may form part of the body of evidence relied on correctly in order to prove the date on which the cartel ceased (judgment of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraphs 188 and 193). That does not mean, however, that the Commission may rely, in the proceedings before the Court, on the unlawfulness of contacts that it did not penalise in the contested decision, in order to claim that the practices in question infringed Article 101 TFEU.

139 In the light of all the foregoing, the arguments put forward by the applicants at the hearing according to which they did not participate in an infringement, since only one of their employees met, on five occasions only, two of the five competitors on the market, in order to obtain general market information, must therefore be rejected as unfounded.

140 Accordingly, it must be held that the Commission did not err in finding that the applicants had participated in anticompetitive practices which constituted a restriction of competition by object in breach of Article 101(1) TFEU.

The second plea, alleging an error of assessment as regards the Commission’s finding that the infringement at issue extended to all SIM chips and non-SIM chips, and not merely SIM chips

142 The applicants argue, in substance, that the Commission has failed to prove that non-SIM chips for bank cards, cards for public transport and identity cards were covered by the allegedly anticompetitive discussions. The Commission should have taken into consideration, in accordance with the case-law, the differences between those subgroups of smart card chips. In that regard, the applicants put forward four principal complaints.

143 First, in the applicants’ submission, Renesas and Samsung were hardly active in the non-SIM chip sector. The Commission moreover errs in law by taking the view that there is a single infringement without however proving the existence of a distortion of competition in relation to each of the product subgroups (judgment of 16 September 2013, Wabco Europe and Others v Commission, T‑380/10, EU:T:2013:449, paragraph 92).

144 Second, the Commission was wrong to take the view that SIM chips and non-SIM chips were part of the same market or were, in any event, interchangeable. Multipurpose usage or substitution between applications, although occasionally possible, was rare and those chips were the subject of very different price levels and trends. The fact that the infrastructure for producing those chips was the same is irrelevant.

145 Third, the Commission was wrong to rely on Renesas’s assertions that price trends for SIM chips and non-SIM chips were correlated. At the material time, Renesas exercised 99.2% of its activities in the field of SIM chips. The Commission moreover failed to have those assertions corroborated by a third party. Lastly, since Renesas and Samsung were not active on the non-SIM chip market, the exchange of information with the applicants on those products did not have any consequences on the non-SIM chip market.

146 Fourth, even if the allegedly anticompetitive discussions had affected non-SIM chips, that would not automatically mean that the anticompetitive practices concerning those chips constituted also restrictions of competition by object. The applicants observe that the two contacts mentioned between Renesas and themselves, concerning non-SIM chips, are the only contacts that took place. That is therefore insufficient to establish the existence of an infringement covering those two products.

148 In the present case, it must be stated that, as is apparent from recitals 214 to 230 of the contested decision and contrary to the applicants’ assertions, the applicants participated in exchanges of commercially sensitive information concerning both SIM chips and non-SIM chips.

149 First, it must be stated, in that regard, that, in so far as the applicants submit that they did not participate in any exchange of commercial information concerning non-SIM chips, such an argument is not convincing.

150 The Court notes that, as the Commission states, without being challenged by the applicants, at the meeting of 16 October 2003, they informed Renesas about their strategy to move away from 4 K chips to EMV banking applications and, during their discussion with Renesas which was held between 18 and 20 November 2003, the applicants stated that they ‘[would] refuse to continue price battle on EMV (no fun below [EUR] 0.4) and 64 K SIM IC’. The applicants thus provided Renesas with commercially sensitive information concerning non-SIM chips at that meeting. Contrary to what the applicants claim, that exchange of sensitive information alone concerning prices is sufficient to conclude that that practice has an anticompetitive object that the Commission was entitled to penalise.

151 Moreover, it should be noted, in that regard, that, as the Commission correctly found in recital 216 of the contested decision and without being challenged by the applicants, meetings between other participants in the infringement at issue, such as that of 24 September 2003 between Infineon and Samsung, show that those undertakings exchanged on prices of both SIM chips and non-SIM chips. Thus, contrary to what the applicants claim, even though they were not present at the meeting of 24 September 2003 between Infineon and Samsung, the fact remains that that meeting corroborates the finding that there were information exchanges concerning those two types of chips.

152 In addition, the contested decision shows to the requisite legal standard that, even if SIM chips and non-SIM chips did not belong to the same relevant market, the anticompetitive practices concerning SIM chips also affected non-SIM chips for the reasons set out in paragraphs 153 to 155 below.

153 First of all, the applicants do not challenge the Commission’s assessment, in recital 217 of the contested decision, that Renesas stated that ‘the discussions did not and generally could not, focus on chips for single applications in isolation, but were relevant to [anti]competitive behaviour with respect to chips for both applications’, and that Samsung took the view that ‘it was useful for competitors to understand how their competitors would act/react on [both markets]’. Those two statements by Samsung and Renesas, which corroborate one another, indicate therefore that, from the perspective of the competitors who exchanged commercially sensitive information, there was a correlation between SIM chips and non-SIM chips, thus showing that the anticompetitive practices at issue affected those two types of chips.

154 Next, as the Commission rightly observes, even if it were true that the prices of SIM chips and non-SIM chips differed, and that Renesas exercised 99.2% of its activities in the area of SIM chips and therefore hardly manufactured any non-SIM chips at the material time, as the applicants stated in their pleadings, that does not however show that Renesas was wrong to take the view that the prices of those products were correlated, or that the infrastructure for producing those two types of chips was fundamentally different. Similarly, the applicants do not put forward any argument aimed at challenging Samsung’s assertion, reproduced by the Commission in recital 222 of the contested decision, in relation to Infineon, that, ‘even if SIM experiences backwards growth, if there is increase in demand in banking or ID Cards, a supply shortage is expected’ and, therefore, that there was a correlation between those two types of chips.

155 Lastly, it should be noted that, although the applicants assert that SIM chips and non-SIM chips were not interchangeable and that they state that customers considered, in essence, that SIM chips and non-SIM chips were different, which the Commission has allegedly itself recognised in one of its merger decisions, the fact remains that they do not put forward any argument casting doubt on the assessments, set out by the Commission in recital 221 of the contested decision, that the same customers of smart card chips had, even if that could be considered marginal, used certain 32 K SIM chips instead of non-SIM chips for loyalty cards, and that certain chips had been used for both SIM and non-SIM products, so that the anticompetitive discussions concerning SIM chips were capable of influencing prices of non-SIM chips. On the contrary, the applicants acknowledged explicitly that multipurpose usage or substitution between applications was ‘occasionally possible’, even though it was rare.

156 It is apparent therefore from the foregoing considerations that, apart from the fact that the Commission possesses evidence establishing that the applicants participated in exchanges concerning SIM chips and non-SIM chips and that that evidence originates not only from Renesas, but also from Samsung, the Commission has also established to the requisite legal standard that the anticompetitive discussions concerning SIM chips necessarily affected non-SIM chips.

157 Second, the applicants submit that Renesas and Samsung were not active on the non-SIM chip market, and that the exchange of information with the applicants on those products did not have any consequences on the SIM chip market. The applicants submit that, for that reason, as in the case leading to the judgment of 16 September 2013, Wabco Europe and Others v Commission (T‑380/10, EU:T:2013:449), the Court should find that no distortion of competition occurred on the non-SIM chip market.

158 In that regard, it should be noted that that argument of the applicants has no factual basis. Indeed, it is apparent from the table provided to the Commission by Schlumberger that Schlumberger obtained both SIM chip and non-SIM chip supplies from Renesas in 2004. The applicants are therefore wrong to claim that the situation in the present case is similar to that leading to the judgment of 16 September 2013, Wabco Europe and Others v Commission (T‑380/10, EU:T:2013:449).

159 Third, as regards the applicants’ argument that, even if the allegedly anticompetitive discussions had affected non-SIM chips, that would not automatically mean that the practices concerning non-SIM chips constituted restrictions of competition by object, it must be rejected as unfounded. Since the two contacts (see paragraphs 106 and 116 above) that the applicants had with Renesas concerned also the exchange of information on prices for non-SIM chips, the Commission did not err in taking the view that those anticompetitive practices, which concerned without distinction SIM chips and non-SIM chips, constituted restrictions of competition by object.

The third plea, alleging a failure to prove to the requisite legal standard that the applicants were part of a multilateral cartel with the three other addressees of the contested decision or that they had participated in a single and continuous infringement

161 The applicants dispute, in essence, the Commission’s classification in the contested decision of the infringement as single and continuous, since all the contacts were bilateral and the number of contacts that the applicants allegedly participated in is very limited. They submit that the Commission was mistaken in concluding that there was a single anticompetitive aim, that there was a common pattern of behaviour and that they were aware of other anticompetitive discussions.

162 First, the applicants submit that there are no facts to establish that there had been a common anticompetitive objective of slowing down the fall in prices. They claim in that regard also that the oral statements alone of the parties, which the Commission cites, are insufficient, that the existence of a single and continuous infringement was contradicted by Samsung, that, as was submitted in the second plea, the infringement at issue did not cover non-SIM chips and that they did not participate in all the meetings constituting that infringement.

163 Second, in the applicants’ submission, the Commission was wrong to conclude that there was common behaviour among the competitors. First of all, as regards the content of the contacts, they did not consistently and repeatedly concern the same parameters, the Commission failing to find a single example in that regard. Next, as regards the participants, the applicants participated in only five contacts and only one employee of the applicants, Mr D., was involved, whereas more than 12 Samsung employees and 5 Renesas employees were involved. Lastly, as regards the regularity of the contacts, they were sporadic and few, and were prompted by the trips of the Samsung employee, Mr K., to Europe.

164 Thirdly, in the applicants’ submission, it was, in accordance with the case-law, for the Commission to prove that they were aware of the anticompetitive conduct of their competitors, which it failed to do. It is not apparent from the meetings that the applicants held that they were aware of the anticompetitive behaviour of the other members of the cartel. Moreover, it was known that Samsung was contacting competitors and searching for market intelligence, although the competitors did not know that the discussions were anticompetitive at that time.

165 Fourth, the applicants argue that a finding that they did not take part in a single infringement must result in the annulment of the contested decision in its entirety.

167 It should be recalled that, as was stated in paragraph 29 above, the Commission found, in recitals 285 to 315 of the contested decision, that the participants in the infringement at issue, including the applicants, had taken part in a single and continuous infringement, given that there were objective grounds to assume that the single aim, in the collusive contacts and their common pattern of behaviour, was anticompetitive. The collusive practices in question had the same economic aim. In particular, in view of the aggressive entry into the market of Samsung and Atmel and the pressure exerted by two of the largest customers, Axalto and Gemplus, the cartel members had sought to ‘limit the impact [on the competitors] that the challenging market developments … entailed’ and ‘to manage the continued price drops and squeezed margins’, so as to ‘slow down the price decrease inherent to the smart card chip market’. Moreover, several factors, such as the common characteristics of the contacts, the identity of the people participating in the contacts, the timing of the contacts or their proximity in time, confirm that those collusive contacts were linked and complementary in nature and that, by interacting, they contributed to the realisation of the set of anticompetitive effects within the framework of a global plan having a single objective. As regards awareness of the infringement at issue, the Commission stated that Samsung and Renesas engaged in collusive contacts with the three other undertakings sanctioned in the contested decision. According to the Commission, the applicants had contacts with Samsung and Renesas, and it was common knowledge, according to Renesas, that Samsung had contacts with its competitors.

168 According to the case-law, so far as concerns, in the first place, the finding of a single infringement, it is for the Commission to establish that the agreements or concerted practices in issue, although they relate to distinct goods, services or territories, form part of an overall plan knowingly implemented by the undertakings in question with a view to achieving a single anticompetitive objective (see, to that effect, judgments 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, paragraphs 258 and 260 and the case-law cited, and of 8 July 2008, Lafarge v Commission, T‑54/03, not published, EU:T:2008:255, paragraph 482).

169 Links of complementarity between agreements or concerted practices constitute objective indicia of an overall plan. Such links exist if those agreements or concerted practices are intended to deal with one or more consequences of the normal pattern of competition and, through their interaction, contribute to the attainment of a single anticompetitive objective. The Commission is required to examine in that regard all the facts capable of establishing or of casting doubt on that overall plan (see, to that effect, judgments of 8 July 2008, Lafarge v Commission, T‑54/03, not published, EU:T:2008:255, paragraph 483, and of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165 point 92 and the case-law cited).

170 As regards, in the second place, the participation of an undertaking in a single infringement, it should be recalled that the agreements and concerted practices referred to in Article 101(1) TFEU are necessarily the result of collaboration by several undertakings, who are all co-perpetrators of the infringement but whose participation can take different forms according, in particular, to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged. Accordingly, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement, including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but which has the same anticompetitive object or effect (judgments of 6 March 2012, UPM-Kymmene v Commission, T‑53/06, not published, EU:T:2012:101, paragraph 53, and of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 60).

171 Thus, an undertaking which has participated in a single and continuous infringement through conduct of its own which falls within the concept of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and is intended to help bring about the infringement as a whole may also be liable for conduct put into effect by other undertakings in the context of the same infringement throughout the period of its participation in the infringement (judgments of 6 March 2012, UPM-Kymmene v Commission, T‑53/06, not published, EU:T:2012:101, paragraph 52, and of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 61).

172 However, the fact that there is a single and continuous infringement does not necessarily mean that an undertaking participating in one or more aspects can be held liable for the infringement as a whole. The Commission still has to establish that that undertaking was aware of the other undertakings’ anticompetitive activities at EU level or that it could reasonably have foreseen them. The mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice to render that undertaking responsible for the overall cartel. It should be recalled that Article 101(1) TFEU does not apply unless there exists a concurrence of wills between the parties concerned (see judgments of 19 May 2010, IMI and Others v Commission, T‑18/05, EU:T:2010:202, paragraph 88 and the case-law cited, and of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 62).

173 Accordingly, it is only if the undertaking knew or should have known when it participated in an agreement that in doing so it was joining in the cartel as a whole that its participation in the agreement concerned can constitute the expression of its accession to that cartel (judgments of 16 November 2011, Low & Bonar and Bonar Technical Fabrics v Commission, T‑59/06, not published, EU:T:2011:669, paragraph 61; of 30 November 2011, Quinn Barlo and Others v Commission, T‑208/06, EU:T:2011:701, paragraph 144, and of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 63). In other words, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the unlawful conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, not published, EU:C:2012:778, paragraph 42; of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 50, and of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 61).

174 The undertaking concerned must therefore be aware of the general scope and the essential characteristics of the cartel as a whole (see, to that effect, judgments of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraphs 191 and 193; of 24 March 2011, Aalberts Industries and Others v Commission, T‑385/06, EU:T:2011:114, paragraphs 111 to 119, and of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 64).

175 Where that is the case, the fact that an undertaking did not take part in all the constituent elements of a cartel or that it played only a minor role in the elements in which it did participate must be taken into consideration only when the gravity of the infringement is assessed and, as the case may be, in determining the amount of the fine (judgments of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraph 90; of 14 May 1998, Buchmann v Commission, T‑295/94, EU:T:1998:88, paragraph 121, and of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 65).

176 In the present case, it should be noted, as a preliminary point, that, as was held in the context of the examination of the first plea, the Commission did not err in finding that the applicants had participated in five bilateral contacts of an anticompetitive nature with (i) Samsung and (ii) Renesas.

177 Moreover, it must be stated that, neither in this plea nor in the other pleas that they raise do the applicants contest that Renesas, Samsung and Infineon had bilateral contacts between themselves. Although the applicants claim that they were not aware of the content of those contacts, they acknowledge expressly, however, as does Renesas, that it was known that Samsung was contacting its competitors.

178 In those circumstances, it is necessary to ascertain whether (i) the Commission established to the requisite legal standard that the bilateral contacts as a whole in which the applicants and their competitors had participated constituted a single and continuous infringement and (ii) whether the applicants could be considered to have participated in that infringement, on account of their awareness of the general scope and the essential characteristics of the cartel as a whole.

179 In the first place, as regards the question whether the Commission established to the requisite legal standard the existence of a single and continuous infringement, the applicants raise two main complaints.

180 First, as regards the existence of a common objective, the applicants submit that there are no facts to establish that there had been such an objective of slowing down the fall in prices. They claim, in that regard also, that the oral statements alone of the parties which the Commission cites are insufficient, that the existence of a single and continuous infringement was contradicted by Samsung, that, as was submitted in the second plea, the infringement at issue did not cover non-SIM cards, and that they did not participate in all the meetings constituting that infringement.

181 The Court would point out that the applicants do not put forward any argument or evidence capable of showing that the Commission was wrong to take the view that, in view of the market conditions, as they are described in paragraph 70 above, the participants in the infringement at issue sought to limit the drop in prices resulting from both the pressure exerted by the main customers of smart card chips and the arrival of new entrants, such as Samsung, which, it is not disputed, had an aggressive price policy.

182 Moreover, the Court observes that the applicants contest that, as the Commission considered in essence in recitals 287 and 288 of the contested decision, and as it contends in its pleadings, Renesas’s statements may be interpreted as meaning that the sharp fall in prices from 2003 onwards led the participants in the infringement at issue to exchange sensitive information and that Samsung’s statements could be interpreted as meaning that Samsung took the view that its competitors were providing it with information so that it adopted a pricing strategy that was not unnecessarily aggressive.

183 In that regard, it must however be stated that, contrary to what the applicants submitted in particular at the hearing, it is apparent not only from the oral statements of Samsung, but also from those of Renesas, that the Commission provided in reply to the measure of inquiry adopted by the General Court, that there was a common objective between the participants in the infringement at issue consisting in limiting the falls in prices resulting from Samsung’s aggressive pricing policy.

184 It is apparent in particular from Renesas’s statement that one of the reasons underlying the unlawful contacts at issue was to gain a better understanding of the extent of the price fall and the reasons behind that development following, in particular, Samsung’s market entry. Moreover, Samsung stated that those contacts between competitors were the result of its aggressive commercial expansion policy and that its competitors feared that it would push prices down too aggressively. In that regard, Samsung stated that its employees had exchanged information with the competitors to slow down the price decrease inherent in the smart card market and to avoid misunderstandings regarding specific events which could otherwise negatively influence price developments.

185 Contrary to what the applicants submitted at the hearing, that common objective is moreover corroborated by material evidence establishing the aim of the unlawful contacts between the applicants and Renesas or Samsung. As is apparent, for example, from the report of the Renesas employee, Mr H., attached to his internal email of 26 November 2003, which is referred to in paragraph 118 above, Mr H. considered on that occasion that ‘[m]ost [chip] makers agree[d] they wish[ed] to avoid further significant price erosion in all applications including finance and mobile communication during 2004’. That document therefore establishes, in keeping with the oral statements of Samsung and Renesas, that the participants in the practices in question sought to contain price erosion on the market.

186 In those circumstances, the Court observes that, contrary to the applicants’ submission, both the oral statements of Renesas and Samsung and the material evidence concerning the content of their discussions establish the existence of a specific anticompetitive objective between the competitors, namely containing price erosion on the market.

187 In so far as the applicants claimed, in particular at the hearing, that the oral statements of NXP, but also that certain statements of Renesas, tended to indicate that the contacts between the competitors were aimed solely at ‘gaining a better understanding of the market’, it is sufficient to note that such statements do not contradict the finding that, as is apparent from the statements and documentary evidence mentioned in paragraphs 183 to 185 above, if the participants in the infringement at issue engaged in contacts in order to ‘gain a better understanding of the market’, that could not have had an aim other than to seek to limit the rapid and significant fall in prices on that market, in particular from the time that Samsung entered the market.

188 In addition, the applicants’ argument, raised at the hearing, that, in essence, it is apparent from the case-law that the existence of an objective consisting in distorting normal competition in general would be insufficient to classify an infringement as single and continuous, must be rejected as unfounded. In the present case, the Commission established to the requisite legal standard that the contacts at issue between competitors had the specific object of containing price erosion, in particular since Samsung’s entry on the relevant markets.

189 Moreover, in so far as the applicants contest that the infringement at issue concerned also non-SIM chips, that argument must be rejected as having no factual basis. As was found, in the context of the second plea (see, in particular, paragraph 156 above), the anticompetitive practices at issue concerned both SIM chips and non-SIM chips.

190 Lastly, in so far as the applicants claim that they did not take part in the contacts between Renesas and Samsung, let alone between Renesas, Samsung and Infineon, it is sufficient to note that the fact that an undertaking has not participated in all the anticompetitive practices has no bearing on the question whether the competitors on the market acted in pursuit of a common objective.

191 All the applicants’ arguments aimed at contesting the existence of a common objective must therefore be rejected as unfounded.

192 Second, the applicants dispute, in essence, the existence of common behaviour between the parties to the infringement at issue.

193 In that regard, the Court would point out at the outset that, in accordance with the case-law cited in paragraph 168 above, the finding of a single infringement does not require, in addition to the existence of a common objective, ‘common … behaviour’, as the applicants claim and as the title above recital 294 of the contested decision incorrectly states, but that there exist, as the Commission by contrast correctly found in recital 294 of that decision, links of complementarity between agreements or concerted practices constituting objective indicia of an overall plan. Such links exist if those practices contribute, through their interaction, to the attainment of a common anticompetitive objective.

194 In the contested decision, the Commission found in essence, in recitals 294 to 298, that, first, the common characteristics of the contacts, namely discussions relating to the participants’ intended price quotes, ranges, directions or acceptance of requests by customers, as well as exchanges concerning production and supply capacities, second, the identity of the participants in the contacts and, third, the timing of the contacts and their proximity in time, contributed, through their interaction, to the implementation of a global plan having a single objective.

195 The applicants contest each of the three indicia found by the Commission which are set out in paragraph 194 above.

196 First of all, as regards the similarity of the content of the contacts at issue, the applicants contest that they had common characteristics, since the contacts did not relate to the same allegedly competitively sensitive parameters. In that regard, it is sufficient to note however that, even if the competitors addressed in their discussions several market parameters, the fact remains that they exchanged regularly their information on prices and future capacities. It is sufficient in that regard to refer to the examination of the first plea, from which it is apparent that the applicants had exchanged with both Samsung and Renesas their future price intentions and their capacity intentions for 2004. In addition, it should be noted that, as the examination of the first plea also shows, the complementarity of the bilateral contacts between the competitors is also demonstrated by the fact that they frequently reported the content of their earlier discussions to other competitors during those bilateral talks (see, in that regard paragraph 81 above).

197 Next, as regards the similarity of the individuals involved in the infringement at issue, the applicants state that the fact that only one of their employees, Mr D., participated in those meetings demonstrates their limited involvement in the contacts with their competitors. In that regard, it is sufficient to note however that the fact that it was the same employee of the applicants, and the same employees of their competitors, who were involved in the various bilateral contacts, tends, on the other hand, to show the complementary nature of those contacts in which the same individuals featured.

198 Lastly, as regards the timing of the contacts, the applicants claim that, unlike the contacts between Samsung and Renesas, which occurred 17 times, the applicants had only ‘sporadic’ and ‘few’ contacts. However, even if the applicants’ contacts with Renesas and Samsung were to be classified as ‘sporadic’ and ‘few’, the fact remains that, as the Commission states, those contacts occurred each year between September and January, within close time proximity, taking advantage of the ‘Cartes’ 2003 fair in Paris, as was also the case for their competitors and as is apparent from Table No 4 of the contested decision. The bilateral contacts between competitors thus enabled them to inform one another about each competitor’s conduct on the market during the period when prices were fixed. The fact that, as the applicants claim, Samsung was the driving force behind those contacts tends to show the link between those contacts, whose object was to limit the fall in prices, in particular on account of Samsung’s aggressive pricing policy on the market.

199 All the arguments put forward by the applicants concerning the absence of a common objective and of links of complementarity between the collusive practices at issue, capable of establishing the existence of a single and continuous infringement, must therefore be rejected as unfounded.

200 In the second place, as regards the question whether the Commission established to the requisite legal standard that the applicants were aware of the infringement at issue, the applicants claim that the Commission did not establish that they were aware, or should have been aware, sufficiently precisely, of the discussions of an anticompetitive nature between the other participants in the infringement at issue, including Infineon.

202 On the one hand, as is apparent from the examination of the first plea, at the meetings of 26 September and 16 October 2003, the applicants were informed, first by Samsung, then by Renesas, of the bilateral discussions relating to prices and capacities that Samsung and Renesas had had earlier with their competitors, and Samsung and Renesas relayed to those competitors the information on prices and capacities that they had been sent at the time of earlier contacts. Contrary to the applicants’ assertions, the Commission did not err in taking the view that the applicants were aware, for the purposes of the case-law cited in paragraph 174 above, of the unlawful discussions in which their competitors participated in their absence.

203 Moreover, in so far as the applicants argue that they were unaware that the contacts that Samsung had with its competitors were of an anticompetitive nature, such an argument must be rejected as unfounded. As is apparent in particular from the meeting of 26 September 2003 between the applicants and Samsung, the latter had informed the applicants about the discussions on prices and capacities that it had had with Infineon two days earlier (see paragraph 81 above).

204 On the other hand, in so far as the applicants claim that they were unaware that the unlawful discussions concerned also non-SIM chips, such an argument must be rejected as unfounded. As was found in the context of the second plea (see paragraph 156 above), the anticompetitive practices at issue concerned both SIM chips and non-SIM chips.

205 In the light of all the foregoing, it must therefore be held that the Commission established to the requisite legal standard that the applicants were aware of the anticompetitive actions of their competitors.

206 Accordingly, it must be held that the Commission was right to find that the applicants had participated in a single and continuous infringement and, consequently, the third plea must be rejected in its entirety as unfounded.

The fourth plea, alleging breach of Article 41 of the Charter of Fundamental Rights, the principle of sound administration and the duty of care, in that the Commission did not treat the applicants fairly and impartially

207 The applicants argue, in substance, that the Commission breached Article 41 of the Charter of Fundamental Rights, the principle of sound administration and the duty of care in that it did not treat them fairly and impartially during the administrative procedure. They put forward seven main complaints.

209 Under Article 41(1) of the Charter of Fundamental Rights, relating to ‘[r]ight to good administration’, every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.

210 According to the case-law, the principle of sound administration consists in the duty of the competent institution to examine carefully and impartially all the relevant aspects in the individual case (judgment of 24 January 1992, La Cinq v Commission, T‑44/90, EU:T:1992:5, paragraph 86).

211 Moreover, the duty of diligence applies generally to the actions of the Union administration in its relations with the public. The protective nature of the duty of diligence in relation to individuals imposes on the competent institution the obligation to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 15 January 2015, Ziegler and Ziegler Relocation v Commission, T‑539/12 and T‑150/13, not published, EU:T:2015:15, paragraph 97 and the case-law cited).

212 As a preliminary point, it should be noted at the outset that, although the applicants plead breach of the principle of sound administration and of the Commission’s duty of care, they nevertheless claim, in essence, that that principle and that duty were infringed in so far as the Commission breached the rules governing the law of evidence, since it wrongly relied on evidence provided by Samsung, which they consider to be fundamentally unreliable, insufficient, contradictory, inaccurate or inauthentic. It is in that context that each of the seven complaints put forward by the applicants should be examined.

213 In their first complaint, the applicants rely, in essence, on three principal arguments.

214 In the first place, the applicants claim that, by basing the entirety of the contested decision on Samsung’s statements, the Commission infringed the case-law according to which (i) in order to assess the credibility of evidence, regard should be had in particular to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed, and whether, on its face, the document appears sound and reliable and (ii) undertakings seeking to benefit from leniency tend to play down the importance of their contribution to the infringement and maximise that of others.

215 It is sufficient to note, in that regard, that, as was found in the context of the examination of the first plea, the Commission did not rely exclusively on Samsung’s contributions in order to find that the applicants had participated in anticompetitive discussions. As was stated, the Commission corroborated the information provided by Samsung with that provided by Renesas. Moreover, and as the Commission correctly observes, the fact that Samsung submitted a leniency application does not constitute a ground which deprives its statements of all probative value. On the contrary, according to the case-law, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, given the possibility that those participants might have tended to play down the importance of their contribution to the infringement and to maximise that of others, the fact remains that seeking to benefit from the application of the Leniency Notice in order to obtain a reduction in the fine does not necessarily create an incentive for the other participants in the offending cartel to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice (judgment of 16 November 2006, Peróxidos Orgánicos v Commission, T‑120/04, EU:T:2006:350, paragraph 70).

217 In the second place, in so far as the applicants claim that the Commission relied exclusively on Samsung’s statements in order to conclude that the competitors had pursued a single objective aimed at slowing down the price fall, the Court would point out that that argument was already dealt with in the context of the third plea (see paragraph 206 above), in which it was held that the Commission had sufficient evidence, not only from Samsung, but also from Renesas, to conclude that the object of the unlawful exchanges between the competitors was to slow down the price decrease.

218 In the third place, in so far as the applicants state that the Commission should display particular caution and scrutiny, in the case of leniency applications concerning information exchanges, in so far as it is difficult for an undertaking submitting a leniency application to judge whether an infringement of the competition rules has been committed, such an argument must be rejected as ineffective.

219 The Court would point out that it is in any event for the Commission alone, on the basis of the matters of fact that it gathers, to verify whether or not a practice of exchanging information constitutes a restriction of competition by object, irrespective of the statements made by an undertaking in that regard. The reference by the applicants to a scholarly article stating, in essence, that competition authorities might be prompted to classify as a restriction of competition by object the information exchanges that the member of cartels themselves classify as a cartel, without ascertaining whether those exchanges are actually capable of influencing competition, does not moreover alter the finding that the mere assertion by Samsung that the exchanges at issue were unlawful would, in any event, have been insufficient for the Commission to be able to find a restriction of competition by object.

220 For all the foregoing reasons, the first complaint must be rejected as being in part unfounded and in part ineffective.

221 The applicants submit that, in accordance with the case-law, the Leniency Notice does not necessarily create an incentive to submit distorted evidence. However, since it obtained knowledge of the file at an early stage of the procedure, it was in Samsung’s interest to ‘distort’ the evidence in order (i) not to be the only undertaking to have a fine imposed on it since Renesas would receive immunity from fines and (ii) to provide evidence having significant added value.

222 In that regard, it should be recalled that, according to the case-law cited in paragraph 215 above, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, given the possibility that those participants might have tended to play down the importance of their contribution to the infringement and to maximise that of others, the fact remains that seeking to benefit from the application of the Leniency Notice in order to obtain a reduction in the fine does not necessarily create an incentive for the other participants in the offending cartel to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice.

223 Moreover, in so far as the applicants claim that it was in Samsung’s interest to distort the evidence provided to the Commission, in view of the fact that it had obtained knowledge, by the request for information sent to it on 11 May 2009, of all the contacts in which it had participated, the Court would point out that such an argument is based on three incorrect premisses.

224 First of all, the applicants, who had lodged an application for a fine reduction on 27 October 2008, that is four days after the inspections carried out by the Commission, had, from that date onwards, and in order to be eligible for a fine reduction, in particular an obligation to cooperate with the Commission, in accordance with point 30 of the Leniency Notice. Accordingly, the fact that the Commission sent them a request for information on 11 May 2009, from which it was apparent that it was aware of the meetings in which Samsung had participated, was not liable to induce the applicants to provide the Commission with distorted evidence. In that regard, the Court would point out that, as the Commission contends, there is nothing to permit the inference that information provided by an undertaking following a request for information from the Commission has less probative value than information provided voluntarily by an undertaking.

225 Next, the applicants claim that, in the light of the information requested by the Commission, Samsung had an incentive to provide distorted information to avoid being the only undertaking penalised. That incentive for Samsung to distort the facts allegedly results from the fact that it knew that Renesas had benefited from immunity from fines and that the Commission had no case against the applicants or Infineon. It must be stated however that that argument of the applicants is based on the incorrect premiss that Samsung knew, as of 11 May 2009, that Renesas and other undertakings had made leniency applications. However, it was only on 28 March 2011 that Samsung could have known that other undertakings had made such applications, when, in accordance with point 29 of the Leniency Notice, the Commission informed it of the band of the fine reduction from which it would benefit.

226 Lastly, for the same reason as that set out in paragraph 224 above, the applicants’ argument that it was in Samsung’s interest to distort the evidence since it feared that the evidence that it submitted concerning Renesas alone was insufficient to obtain a fine reduction must be rejected as unfounded. On 11 May 2009, Samsung was not aware, in accordance with point 29 of the Leniency Notice, that Renesas was the beneficiary of immunity from fines and that other undertakings had applied to the Commission for fine reductions.

227 It is apparent therefore from the foregoing that the fact that Samsung was informed on 11 May 2009 of the fact that the Commission was aware of the meetings in which the applicants had participated did not constitute a factor which should have led it ‘to treat’ Samsung’s statements ‘with more than average caution’.

229 The applicants claim that the accuracy of statements made in the context of the Leniency Notice, such as those of Samsung, made after the failure of settlement proceedings, does not have the same probative value as statements made spontaneously. In that regard, the applicants observe that Samsung explicitly stated that it submitted ‘documents … as a result of [a] revisiting of [its] files in light of the settlement position taken by the European Commission as well as the considerations following from the access to file’. The applicants refer to the statements made by Samsung and to the submissions made after 8 October 2012.

230 First, it should be observed, in that regard, that as the Commission in essence contends, the fact that an undertaking seeking leniency provides evidence and oral statements before or after the failure of a settlement procedure has no bearing on the credibility of that evidence, since, irrespective of the time at which that evidence and those statements are lodged, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice.

231 In addition, and in any event, even if the view should be taken that the oral statements provided by an undertaking seeking leniency must be considered to have less probative value than that of statements provided before the failure of a settlement procedure, on the ground that they are not spontaneous, but given ‘in reaction’ to the documents in the file to which the Commission might have given it access during the settlement procedure (see point 16 of the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1; ‘the Settlement Notice’)), that would not however mean that those statements lack any probative value. In such a case also, the applicant could lose its entitlement to a reduction in the fine if the information provided is false.

232 Second, in so far as the applicants criticise the fact that Samsung provided certain information or evidence only after the failure of the settlement procedure, it must be stated that, as the Commission observes, Samsung was able, on the basis of the evidence in the Commission’s file to which it had access during the settlement procedure, to conduct ‘targeted’ searches thus enabling it to collect ‘additional evidence previously undetected’. Such a statement of reasons does not therefore permit the inference, contrary to the applicants’ submission and as is apparent indeed from the correspondence sent by Samsung to the Commission explaining the investigation process that it conducted, that the evidence provided by Samsung is not credible, but on the contrary leads to the finding that the information that an undertaking seeking leniency provides after the failure of a settlement serves to confirm or cast doubt on facts already known to the Commission, without its being possible to call in question their intrinsic credibility from the mere fact that that information was provided after the failure of a settlement. In those circumstances, the fact that some of the information provided by Samsung after the failure of the settlements is of a general nature in no way alters that finding.

233 In those circumstances, the third complaint of the applicants must be rejected as unfounded.

234 The applicants claim that the credibility of Samsung’s statements must be assessed in light of the fact that the Commission put Samsung under pressure to admit to having participated in a cartel. That, they allege, is apparent from the reply sent by Samsung to a question put at the oral hearing, in which it stated that its lawyer had received an unusual letter in which, in essence, its attention was drawn to the fact that the Commission considered that Samsung’s leniency application ‘may’ not satisfy its obligation, under the Leniency Notice, to ‘disclose [its] participation in an alleged cartel affecting the [Union]’. It was therefore in order to be sure of obtaining a reduction of the fine under the Leniency Notice that Samsung succumbed to the Commission’s pressure in agreeing that the behaviour at issue constituted an infringement.

235 It must be stated that the applicants take the view therefore that the Commission exerted undue pressure on Samsung to classify the facts at issue as an infringement on account of the letter sent to Samsung on 18 October 2009 indicating that the Commission services considered on that date that Samsung ‘may not’ have satisfied the requirement mentioned in points 8 and 23 of the Leniency Notice.

236 However, it is sufficient to note in that regard that reminding Samsung of the condition, laid down in point 23 of the Leniency Notice, that undertakings seeking to benefit from that notice must ‘disclos[e] their participation in an alleged cartel’ does not constitute the exertion of undue pressure by the administration on that undertaking to force it to admit its participation in a cartel, but a reminder by the Commission, in accordance with the principle of sound administration, that that notice applies only in cases where the undertaking considers itself that it has participated in a suspected cartel.

238 The applicants claim that the Commission’s file contains numerous indications that Samsung's statements are not accurate. In that regard, they submit that both Samsung’s statements that the alleged contacts were aimed at slowing down the price fall and its statements that there were reference prices are contradicted by all other parties to the proceedings, certain other statements of Samsung itself and by documentary evidence. Moreover, the applicants recall the case-law according to which there is no reason to attach greater credibility to statements of an undertaking which has made an application under the Leniency Notice than to statements contesting the accuracy of those statements.

239 It must be stated that the argument that the Commission was wrong to find that the cartel had the single objective of limiting the price decrease was examined in the context of the third plea. For the reasons set out in that context (see paragraph 199 above), that argument must therefore be rejected as unfounded.

240 Moreover, in so far as the applicants claim that Samsung’s statements that there were reference prices are incorrect, it must be stated that, as examined in the context of the first plea, the Commission relied on several sources in order to conclude that the price exchanges at issue, in which the applicants had participated, had an anticompetitive object.

242 The applicants claim that the credibility of Samsung’s statements must be assessed in light of the fact that serious questions have been raised about the authenticity of the documents which it submitted. First, the Commission excluded from the file an email, of 13 April 2004, unfavourable to the applicants, since Samsung had tampered with it. Second, as is apparent from recitals 165 et seq. of the contested decision, the Samsung internal email of 3 November 2003 was originally tampered with. Third, Samsung’s report on its meetings of 16 to 21 November 2003 also gives rise to doubts.

243 In the first place, in so far as the applicants contest the authenticity of the documents provided by Samsung on account of the lack of authenticity of the email of 13 April 2004, it must be stated at the outset that the Commission confirms, as is apparent moreover from the examination of the first plea and from recitals 204 and 205 of the contested decision, that, although it mentioned that email by mistake several times in the contested decision (recitals 243, 246, 269 and 325 of that decision), it did not however use it as evidence to substantiate its conclusion that the applicants had participated in the infringement at issue. The Commission justified its decision to disregard that, in so far as it ‘had been altered with no clear explanation on the circumstances of the alteration’. Since the Commission did not rely on that document in finding that the applicants participated in the infringement at issue, the possible tempering with that document has no bearing on the lawfulness of the contested decision.

244 In the second place, in so far as the applicants contest the authenticity of a Samsung internal email, of 3 November 2003, in which reference is made to a telephone call from Samsung to Infineon, the applicants claim that Samsung provided three versions of the same email, some of which did not mention the people in copy whereas others did.

245 First, it must be stated that the applicants merely reiterate the arguments that they put forward in the context of the administrative procedure without however calling in question the three principal grounds advanced by the Commission in the contested decision justifying why it considered that email credible (recitals 164 to 177 of the contested decision). The Commission stated that it was apparent from its examination of the email that computer systems can be configured in such a way that certain features of emails do not appear upon printing when they are sent and received within the same organisation. Next, the Commission took the view that the forensic IT report submitted by Infineon did not prove that the email was not authentic, since that report did not indicate that a deep analysis of that email had been performed beyond an account of general information and comments on the theory of email systems. Lastly, an email of 7 November 2003, the authenticity of which the applicants do not contest, confirms that a discussion took place earlier in the week, which also tends to confirm that that conversation took place between Samsung and Infineon.

246 Second, and in any event, it should be noted, in that regard, that, even on the assumption that that email of 3 November 2003 concerning Infineon and Samsung is not authentic, that would not affect the finding of the Court, made in the context of the first plea, that the Commission established to the requisite legal standard that the applicants were involved in anticompetitive practices with Renesas and Samsung. For that same reason, the fact that the Commission did not communicate its own forensic IT report which led it to consider that the email of 3 November 2003 was credible has no bearing on the finding that, as regards the applicants, the Commission established to the requisite legal standard their participation in anticompetitive practices.

247 In those circumstances, the Court finds that the applicants have failed to establish that the Commission was wrong to take the view that the email of 3 November 2003 was credible.

248 In the third place, as regards the report of the meeting of 16 to 21 November 2003, the applicants claim, in essence, as the Commission rightly observes, that they contest the authenticity of that report, because, first, that report of the Samsung employee, Mr K., was written in English whereas the other reports were written in Korean and the way of noting the time and date is not similar to that of the other reports by that same employee and, second, it is not sufficiently clear why Samsung provided that report to the Commission only in 2012.

249 First, in so far as the applicants claim that that report by the Samsung employee, Mr K, is not authentic because it was written in English, whereas the other reports were written in Korean, it must be stated that the applicants do not provide any argument or evidence capable of invalidating the finding of the Commission, set out in recitals 179 and 180 of the contested decision, that that employee had drafted at least one other report in English, that he had provided an affidavit that he had written that report, and that he drafted his reports in English or Korean depending on the addressees.

250 Moreover, as regards the applicants’ argument that the way of noting the time and date in that report is not similar to that of the other reports of the Samsung employee, Mr K., the Court would point out that, as the Commission considered, in recital 182 of the contested decision, those differences are not conclusive, since, in all the reports of that employee, there are a number of differences, which the applicants do not contest. Moreover, nor do the applicants contest the finding, set out in recital 185 of the contested decision, that there is other evidence, such as emails, confirming at the very least that that employee had held with Infineon the meeting which is referred to in the report at issue and that the discussions had been corroborated by Renesas in particular, before it knew about that report (recital 191 of the contested decision).

251 Second, in so far as the applicants submit that the authenticity of that report is doubtful in so far as the reasons why Samsung provided it to the Commission in 2012 are insufficiently explained, it is sufficient to note that the fact that Samsung discovered that document only at a very advanced stage of its internal investigation does not in itself permit the inference that that document had been tampered with. It cannot be ruled out that, notwithstanding its obligation to cooperate with the Commission in the context of the Leniency Notice, an undertaking discovers relevant documents only at an advanced stage of the administrative procedure, after obtaining knowledge of information in the Commission’s file enabling it to supplement its internal investigation.

252 The sixth complaint of the applicants must therefore be rejected as unfounded.

253 The applicants submit that the Commission pursued the administrative procedure obstinately and inappropriately, as a result of which it failed to take due account of the applicants’ arguments.

254 First, in so far as the applicants claim that the questionable behaviour of the Commission began when it compelled Samsung to admit that the contacts at issue constituted an infringement, it is sufficient to recall that it was found, in paragraph 236 above, that the applicants had failed to establish that the Commission had exerted undue pressure on Samsung to make it admit to the existence of an infringement.

255 Second, in so far as the applicants claim that the Commission discontinued the settlement procedure when the applicants as well as Renesas and Samsung refused to admit to a single and continuous infringement, it should be noted that, in accordance with point 5 of the Settlement Notice, the Commission retains a broad margin of discretion to discontinue a settlement without having to provide reasons for its decision in that regard.

256 Moreover, the fact that a settlement procedure does not succeed cannot be interpreted as meaning that the Commission would then necessarily carry out a biased examination of the parties’ arguments. If a settlement procedure fails, the Commission is entitled to resume the ‘normal’ administrative procedure. If the undertaking concerned decides to no longer participate in such a procedure, the procedure leading to the final decision is governed by the general provisions of Regulation No 773/2004, instead of those governing the settlement procedure. The same applies even if the Commission takes the initiative to terminate the settlement procedure (points 19, 27 and 29 of the Settlement Notice).

257 Third, in so far as the applicants claim that the Commission pursued its procedure after the failure of the settlement solely so as not to jeopardise the credibility of that procedure, it must be stated that the fact that the Commission decides to pursue the ‘normal’ administrative procedure, after the failure of a settlement procedure, cannot be interpreted otherwise than as the reflection of the exercise of its right to discontinue the settlement procedure and to resume a ‘normal’ procedure, as that right is laid down in point 19 of the Settlement Notice.

258 For all those reasons, it is necessary to reject the seventh complaint put forward by the applicants and, therefore, the fourth plea in its entirety.

The fifth plea, alleging a failure, resulting from the way in which the proceedings were conducted, to prove the infringement at issue to the requisite legal standard

259 The applicants claim that, given the way in which the Commission conducted the proceedings, it failed to prove the infringement at issue to the requisite legal standard, having failed to assess properly the evidence submitted by Samsung.

261 It should be noted at the outset that, contrary to the applicants’ assertions in that regard in the reply, the fifth plea is a repetition, in slightly different terms, of the fourth plea.

262 In the fourth plea, the applicants put forward seven complaints in which they submit, in essence, that the Commission infringed the principle of sound administration and the duty of care, on the ground that the evidence on which they relied was insufficient to find the existence of an infringement (see in particular paragraph 232 above). In the context of the fifth plea, the applicants claim that the Commission failed to prove to the requisite legal standard the infringement at issue and put forward, in essence, the same complaints as those raised in the context of the fourth plea (see in particular paragraphs 134 and 135 of the application) in order to establish that the evidence was insufficient to find the existence of an infringement.

263 Accordingly, the applicants’ argument that the fifth plea, which concerns the issue of evidence, is distinct from the fourth plea, which concerns the issue of the impartiality and fairness of the procedure, must be rejected as unfounded.

264 It must therefore be held that the fifth plea must be rejected for the same reasons as those set out in response to the arguments put forward by the applicants in the context of the fourth plea.

The sixth plea, alleging infringement of Article 27 of Regulation No 1/2003, Article 11 of Regulation No 773/2004 and Article 48 of the Charter of Fundamental Rights, in that the Commission failed to disclose to the applicants important exculpatory evidence

265 The applicants argue that the Commission failed to disclose to them, as is required by the case-law, three documents, relating to the authenticity of the email of 13 April 2004, constituting important exculpatory evidence which they could have relied on in their defence. By so doing, the Commission infringed Article 27 of Regulation No 1/2003, Article 11 of Regulation No 773/2004 and Article 48 of the Charter of Fundamental Rights.

267 The applicants submit, in essence, that the Commission infringed Article 48 of the Charter of Fundamental Rights, Article 27 of Regulation No 1/2003 and Article 11 of Regulation No 773/2004, in that the Commission failed to disclose to the applicants evidence which they consider to be exculpatory. Those documents are, first, two letters of Samsung of 11 April and 12 May 2014, addressed to the Commission, concerning in particular the reasons why it provided the Commission with certain documents only in October 2012, and, second, the forensic IT report sent by Samsung to the Commission in April or May 2014.

268 Under Article 48 of the Charter of Fundamental Rights, ‘respect for the rights of the defence of anyone who has been charged shall be guaranteed’.

269 Article 27(2) of Regulation No 1/2003 provides that the rights of defence of the parties concerned are to be fully respected in the proceedings.

‘1. The Commission shall give the parties to whom it has addressed a statement of objections the opportunity to be heard before consulting the Advisory Committee referred to in Article 14(1) of Regulation (EC) No 1/2003.

2. The Commission shall, in its decisions, deal only with objections in respect of which the parties referred to in paragraph 1 have been able to comment’.

271 According to the case-law, the right of access to the Commission’s file, which is the corollary of the principle of respect for the rights of the defence, means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents comprise both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (see 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 68 and the case-law cited).

272 If a procedural document before the Commission which may be categorised as inculpatory evidence, because the Commission relied on that document to support its objection concerning the existence of an infringement, was not communicated, it is for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if that document which was not communicated and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence (see, to that effect, 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, paragraphs 71 and 73).

273 If, however, a procedural document before the Commission which may be categorised — since it is capable of exonerating an undertaking which is accused of having participated in a cartel — as exculpatory evidence is not communicated to that undertaking, the latter’s rights of the defence are infringed if that undertaking shows that the document at issue could have been useful for its defence. Such evidence may be furnished by showing that the non-disclosure was capable of influencing, to the detriment of the undertaking at issue, the course of the proceedings and the content of the Commission’s decision, or that it could have harmed or rendered more difficult the defence of that undertaking’s interests during the administrative procedure (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraphs 367 and 368).

274 First, it should be noted that the Commission recognises that it did not communicate to the applicants three documents relating to the credibility of the email of 13 April 2004.

275 Second, it should be pointed out that it is apparent from recital 204 of the contested decision that the Commission decided not to use the email of 13 April 2004 to penalise the applicants, since it had been altered ‘with no clear explanation on the circumstances of the alteration’. In so far as the three documents at issue did not lead the Commission to censure the applicants, the Court finds that the failure to communicate those documents to the applicants was not capable of influencing the conduct of the administrative procedure and the content of the contested decision, which the applicants do not indeed claim.

276 In those circumstances, it must be held that the Commission did not infringe the applicants’ rights of defence.

277 Moreover, the applicants’ argument that access to those documents would have enabled them to assess the ‘reliability of the other documents submitted by Samsung after failure of the settlement proceedings and … the unreliability of Samsung as a witness more generally’ must be rejected as unfounded. Even on the assumption that the applicants could have demonstrated, on the basis of the three documents at issue, that the email of 13 April 2004 had been tampered with, that would nevertheless have no bearing on the finding that (i) as regards the five contacts on which the Commission relied to find the existence of the infringement at issue, the applicants failed to establish that the evidence on which the Commission had relied was not credible and (ii) the oral statements of Samsung had moreover been corroborated either by other documents or by statements of other undertakings, as is apparent from the examination of the first plea.

278 In the light of the foregoing, the sixth plea must be rejected as unfounded.

The seventh plea, alleging infringement of Article 25 of Regulation No 1/2003, in that the Commission was barred from sanctioning the alleged the infringement at issue in so far as it took place before 3 September 2004

279 The applicants argue that the Commission infringed Article 25 of Regulation No 1/2003, since the infringement at issue was time-barred.

281 Under Article 25(1)(a) and (b) of Regulation No 1/2003, the powers conferred on the Commission to impose fines are to be subject to limitation periods of three years in the case of infringements of provisions concerning requests for information or the conduct of inspections and five years in the case of all other infringements.

282 Under Article 25(2) of Regulation No 1/2003, time begins to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time begins to run on the day on which the infringement ceases.

283 According to Article 25(5) of Regulation No 1/2003, the limitation period is to expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment.

284 It is apparent therefore from reading Article 25(1), (2) and (5) of Regulation No 1/2003 that the Commission may not impose fines on an undertaking for its participation in a cartel where a period of 10 years has expired from the day the infringement ceased.

286 First, the applicants submit that the Commission infringed Article 25 of Regulation No 1/2003, since the infringement at issue was not a single and continuous infringement. The Commission, which adopted the contested decision on 3 September 2014, was entitled to penalise only the alleged unlawful contact that the applicants engaged in on 9 September 2004, but not the earlier contacts which are covered by the 10-year limitation period.

287 In that regard, it is sufficient to note that, as the Commission correctly observes, that complaint is based on the incorrect premiss that the Commission was wrong to take the view the infringement at issue was a single and continuous infringement. However, as was held in the context of the third plea (see paragraph 206 above), the Commission did not err in finding that the five contacts in which the applicants participated between 26 September 2003 and 9 September 2004 established the existence of a single and continuous infringement. In so far as the infringement at issue ceased, as regards the applicants, on 9 September 2004, the Commission did not commit any error in adopting the contested decision on 3 September 2014 for the purposes of penalising the infringement.

288 Second, in so far as the applicants claim more specifically that, in so far as no anticompetitive act was found by the Commission during the period that ran between the allegedly illegal contact of 18 November 2003 and that of 9 September 2004, the Commission was not entitled, in any event, to penalise the infringement committed on 18 November 2003, that argument must be rejected as unfounded.

289 As is apparent from the examination of the meetings of 16 October 2003 (see paragraph 113 and 114 above) and 18 November 2003 (see paragraph 128 above), the unlawful discussions in which the applicants participated at the 2003 ‘Cartes’ fair concerned prices and capacities for 2004. Moreover, the applicants do not contest the Commission’s finding, in recitals 39 and 40 of the contested decision, that, according to Infineon or Samsung, the negotiation of annual contracts took place between September and October of each year for the following year, quarterly negotiations or negotiations based on specific requirements subsequently being conducted in the following year. In those circumstances, it must be held that there was no interruption in the infringement at issue between 18 November 2003 and 9 September 2004, the anticompetitive effects of the meetings held in 2003 having continued until 9 September 2004.

290 In the light of the foregoing, the seventh plea must therefore be rejected as unfounded.

The eighth plea, alleging infringement of the 2006 Guidelines, in that the Commission incorrectly determined the relevant value of sales affected by the infringement at issue

291 The applicants argue that the Commission infringed point 13 of the 2006 Guidelines in that it did not correctly determine the relevant value of sales, which must be the value of sales to which the infringement directly or indirectly relates.

293 Il should be recalled, in that regard, that the purpose of point 13 of the 2006 Guidelines is to adopt as the starting point for the calculation of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it. Consequently, while the concept of the value of sales referred to in point 13 of those guidelines cannot extend to encompassing sales made by the undertaking in question which do not fall within the scope of the alleged cartel, it would however be contrary to the objective of that provision if that concept were understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel.

294 Thus, contrary to the applicants’ assertions, it does not follow from point 13 of the 2006 Guidelines that only the value of sales made on the basis of contracts in respect of which specific collusion has been proven may be taken into consideration in the calculation of the basic amount of a fine.

295 It must be added that such a limitation would have the effect of artificially minimising the economic significance of the infringement committed by a particular undertaking since the mere fact that a limited amount of direct evidence of sales actually affected by the cartel had been found would lead to the imposition of a fine which bore no actual relation to the scope of the cartel in question. Such a reward for being secretive would also adversely affect the objective of the effective investigation and penalising of infringements of Article 101 TFEU and, therefore, cannot be permitted.

296 In the first place, in so far as the applicants claim that the Commission should not have taken into consideration non-SIM chips in calculating the amount of the fine since those chips were not concerned by the infringement at issue, it is sufficient to point out that, as was already held in the context of the second plea, the Commission did not err in finding that non-SIM chips were concerned by the infringement at issue. In those circumstances, the Court finds that the Commission was fully entitled to take into consideration the turnover generated by the sale of those non-SIM chips in calculating the amount of the fine, in accordance with point 13 of the 2006 Guidelines.

297 In the second place, in so far as the applicants claim that the Commission was wrong to take account of turnover related to long-term contracts concluded before the infringement period, the Court finds, first of all, that, as is stated in paragraph 293 above, point 13 of the 2006 Guidelines cannot be limited to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel.

298 Next, in so far as the applicants claim that their prices during the last quarter of 2003 were not altered, it must however be stated that, in their reply of 25 August 2014 to the Commission’s requests, the applicants claim that, as the Commission correctly observed in recital 403 of the contested decision, their framework agreements were renegotiated only in ‘exceptional circumstances (e.g. delays in delivery, defective products)’.

299 In addition, the applicants acknowledge, in their letter to the Commission of 27 August 2014, that ‘certain prices could be updated in the course of the year, but it would seem that [certain] prices were fixed at least two quarters in advance’. In that regard, the Court notes that the applicants admit that long-term contracts could therefore be modified before they expired, even if the applicants claim, without however being certain thereof, (‘it would seem’ or ‘it is highly unlikely’), that the contracts had been modified only two quarters in advance.

300 Lastly, it must be stated that the applicants’ assertions, in that regard, are contrary to those of Samsung and Infineon, which did not rule out the possibility that price modifications could be envisaged for long-term contracts. Even if it cannot be ruled out that Samsung’s and Infineon’s relevant practices might have differed from the applicants’, the fact remains then that the infringement at issue also concerned sales deriving from those long-term contracts.

301 It is apparent from the foregoing that the Commission did not err in finding that the prices of long-term contracts, concluded before the start of the infringement at issue, were affected by that infringement.

302 In the third place, in so far as the applicants claim that the Commission failed to explain how discussions between competitors on volumes could have had any impact on long-term contracts, if they were not used to adapt prices, such an argument must be rejected. As the Commission observes in recital 403 of the contested decision, since it is not contested that the volumes of products sold under the long-term contracts were not fixed in advance, the anticompetitive discussions necessarily took into consideration the volumes of products sold which were concerned by those contracts.

303 For that last reason, the Court finds that the Commission did not err in taking account of the applicants’ turnover in relation to long-term contracts.

304 It is apparent from all the foregoing that the eighth plea must be rejected in its entirety.

The ninth plea, alleging infringement of Article 23 of Regulation No 1/2003 and of the 2006 Guidelines, in that the Commission applied a disproportionate gravity multiplier

305 The applicants claim, in essence, that the Commission infringed Article 23(3) of Regulation No 1/2003, points 20 and 22 of the 2006 Guidelines, and the principle of proportionality, by applying a gravity multiplier of 16% in order to calculate the amount of the fine. They request in addition that the Court should not limit itself to assessing whether the Commission correctly applied the 2006 Guidelines, but should also ensure that all the relevant elements were taken into account in determining a gravity multiplier of 16%, in the exercise of its unlimited jurisdiction.

307 Pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission may, by decision, impose fines on undertakings or associations of undertakings where, either intentionally or negligently, they infringe Articles 101 and 102 TFEU.

308 According to Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

‘19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.

20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.

21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.

22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.

23. Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’

310 Lastly, as regards the alleged infringement of the principle of proportionality, it should be recalled that, according to the case-law, that principle requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 5 May 1998, United Kingdom v Commission, C‑180/96, EU:C:1998:192, paragraph 96).

311 In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of that principle requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof (see, to that effect, judgment of 12 September 2007, Prym and Prym Consumer v Commission, T‑30/05, not published, EU:T:2007:267, paragraphs 223 and 224 and the case-law cited). In particular, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (judgments of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraphs 226 to 228, and of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 171).

312 As regards cartel infringements which are considered to be the most serious, the Court has held, after observing that, under point 23 of the 2006 Guidelines, since the proportion of the value of sales taken into account will generally be set ‘at the higher end of the scale’ for the most harmful restrictions, the rate should, at the very least, be above 15% (judgment of 16 June 2011, Ziegler v Commission, T‑199/08, EU:T:2011:285, paragraph 141).

313 In the present case, it should be pointed out that, as the Commission correctly observed in recital 408 of the contested decision in order to justify the application of a gravity multiplier of 16%, (i) price coordination practices are, by their very nature, among the most serious restrictions of competition, as was recalled in paragraph 309 below, and (ii) the practices in question covered the whole of the EEA.

314 In those circumstances, the Commission was fully entitled to apply, without committing any error of assessment or any infringement of the principle of proportionality, a gravity multiplier of 16%, which constitutes a multiplier at the beginning of the upper band of the scale fixed in point 21 of the 2006 Guidelines, which ranges from 0 to 30%, and reflecting the seriousness of the infringement at issue.

315 The arguments which the applicants put forward in that regard are not convincing.

316 First, in so far as the applicants take issue with the Commission for finding, incorrectly, in recital 413 of the contested decision, that the infringement at issue was of the same gravity as horizontal price-fixing, it should be pointed out that, as was held in the context of the first plea, a coordination practice resulting from information exchanges concerning prices and future capacities constitutes an infringement which is, on account of its very object, harmful to the proper functioning of competition. The Commission did not therefore err in finding that the infringement at issue was one of the most serious infringements of competition law. The applicants’ argument must therefore be rejected as unfounded.

317 Second, in so far as the applicants claim that the Commission was wrong to find that it was not relevant, for determining the gravity multiplier, to take important circumstances into account, as is required by points 20 and 22 of the 2006 Guidelines, such as the fact that the allegedly unlawful contacts were strictly bilateral, very few in number and consisted merely in exchanges of information and not price-fixing agreements, that the applicants had not participated in all aspects of the infringement at issue and had played a minor role and that, in the light of those circumstances, a gravity multiplier of 16% is not appropriate, that argument must be rejected as unfounded. In that regard, it should be stated that, even on the assumption that all the circumstances raised by the applicants are proved, the fact would remain that, in so far as the infringement at issue consisted in particular in coordination of prices and of future capacities and that it extended to the entire territory of the EEA, those two factors were sufficient for the Commission to be able to find that, on account of the very nature and of the scope of that infringement, a multiplier of 16% was proportionate to the gravity of that infringement.

318 Third, in so far as the applicants claim that the Court cannot limit itself to assessing whether the Commission applied the 2006 Guidelines correctly and that it should ensure that all the relevant elements were actually taken into account, in accordance with the judgment of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815), it must be stated, in that regard, that, as the applicants confirmed at the hearing in reply to the Court’s oral questions and as was recorded in the minutes of the hearing, the applicants also request that the Court — in addition to carrying out a mere review of legality — exercise its unlimited jurisdiction in accordance with Article 261 TFEU, in order to rule on whether the gravity multiplier of 16%, and, as the case may be, the fine as a whole, are appropriate in the present case.

319 It should be recalled, in that regard that, according to the case-law, the judicial review carried out by the Courts of the European Union of decisions adopted by the Commission to punish infringements of competition law is based on the review of legality, provided for in Article 263 TFEU, which is supplemented, where an application for such review is made to them, by the unlimited jurisdiction conferred upon those Courts by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraphs 53, 63 and 64). Under that jurisdiction, the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, may substitute their own appraisal for the Commission’s and, consequently, depending on the circumstances, cancel, reduce or increase the fine or penalty payment imposed (see judgment of 8 December 2011, KME Germany and Others v Commission, C‑272/09 P, EU:C:2011:810, paragraph 103 and the case-law cited; see also, to that effect, judgment of 5 October 2011, Romana Tabacchi v Commission, T‑11/06, EU:T:2011:560, paragraph 265).

320 However, the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion. Therefore, with the exception of grounds involving matters of public policy which the Courts of the Union are required to raise of their own motion, such as the failure to state reasons for a contested decision or the inadequacy of the reasons stated, it is for the applicant to raise the pleas in law on which it intends to rely and to adduce evidence in support of those pleas (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 64).

321 In the present case, the Court observes that the applicants do not put forward any argument other than those put forward in support of their complaint that the Commission infringed the 2006 Guidelines and which seeks to establish that the gravity multiplier of 16% or even that the total fine imposed on them is not appropriate in the light of the actual gravity of the infringement at issue and of the significant scope of that infringement. The applicants’ request that the Court reduce the gravity multiplier and the amount of the fine in the context of Article 261 TFEU cannot therefore succeed.

322 Fourth, the applicants claim that the Commission infringed Article 23(3) of Regulation No 1/2003, in so far as it was required to have regard to the duration, in addition to the gravity, of the infringement at issue.

323 It should be pointed out in that regard that, according to the case-law, in adopting the 2006 Guidelines, the Commission did not exceed the limits of the discretion afforded it by Article 23(2) and (3) of Regulation No 1/2003. Article 23(3) of Regulation No 1/2003 provides that in fixing the amount of the fine the Commission must have regard both to the gravity and to the duration of the infringement. Point 19 of the 2006 Guidelines provides that the basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.

324 In the present case, it must therefore be held that, by first determining the multiplier for gravity of the infringement, as indicated in recitals 408 to 415 of the contested decision, by taking into consideration, first of all, the gravity of the infringement at issue and, next, a multiplier of 0.91 for the applicants in order to take into account the duration of their participation in that infringement, as indicated in recitals 416 and 417 of that decision, the Commission complied with the 2006 Guidelines, which, the Court has already held, makes it possible to take into consideration the gravity and duration of the infringement in accordance with Article 23(3) of Regulation No 1/2003.

325 In those circumstances, the applicants’ fourth argument must be rejected as unfounded.

326 Fifth, the applicants’ argument that the Commission departed from its own practice in previous decisions by applying a gravity multiplier of 16%, whereas, in two other decisions which they consider to involve more serious matters, it applied a gravity multiplier of 16%, must be rejected as unfounded. It has consistently been held that the Commission’s practice in previous decisions does not constitute a legal framework for the fines imposed in competition matters, that assertion applying both to the determination of the amount of individual fines and to the Commission’s interpretation of its own 2006 Guidelines, therefore in relation to the general level of fines or to the methodology employed in calculating them (see judgment of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 50 and the case-law cited). Moreover, and in any event, since the Commission did not err in applying a gravity multiplier of 16%, as was found in paragraph 322 above, the fact that it applied an identical multiplier in other cases involving allegedly more serious matters, has no bearing on the finding that a gravity multiplier of 16% in the present case is neither disproportionate nor inappropriate in the light of the infringement at issue.

327 In the light of all the foregoing, the ninth plea and, therefore, this action in its entirety, must be rejected as unfounded.

328 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

329 Since the applicants have been unsuccessful in all their pleas and the Commission has applied for costs, the applicants must be ordered to pay all the costs.

2. Orders Koninklijke Philips NV and Philips France to bear their own costs and to pay those of the European Commission.

The first plea, alleging a failure to prove to the requisite legal standard that the contacts in which the applicants had engaged constituted a restriction of competition by object

The second plea, alleging an error of assessment as regards the Commission’s finding that the infringement at issue extended to all SIM chips and non-SIM chips, and not merely SIM chips

The fifth plea, alleging a failure, resulting from the way in which the proceedings were conducted, to prove the infringement at issue to the requisite legal standard

The eighth plea, alleging infringement of the 2006 Guidelines, in that the Commission incorrectly determined the relevant value of sales affected by the infringement at issue

The ninth plea, alleging infringement of Article 23 of Regulation No 1/2003 and of the 2006 Guidelines, in that the Commission applied a disproportionate gravity multiplier

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Philips and Philips France v Commission (Judgment) [2016] EUECJ T-762/14 (15 December 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T76214.html Cite as: [2016] EUECJ T-762/14, EU:T:2016:738, ECLI:EU:T:2016:738

Court of Justice of the European Communities (including Court of First Instance Decisions)