GC, 5th chamber, July 12, 2019, No T-772/15

THE GENERAL COURT (Fifth Chamber),

Background to the dispute

1 According to Decision C(2015) 7135 final relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 - Optical disk drives) ('the contested decision'), concerning collusive agreements relating to bidding events concerning optical disk drives for notebook and desktop computers organised by two computer manufacturers, the applicant, Quanta Storage, Inc., operates in the computer storage devices sector and is engaged in the research and development, design, manufacture and supply of optical disk drives ('ODDs'). It was established in February 1999. It is a public company listed at the Taipei stock exchange in Taiwan (Republic of China) (contested decision, recital 23).

2 The infringement concerns ODDs used in personal computers (desktops and notebooks) ('PCs') produced by Dell and Hewlett Packard ('HP'). ODDs are also used in a wide range of other consumer appliances such as compact disc ('CD') or digital versatile disc ('DVD') players, game consoles and other electronic hardware devices (contested decision, recital 28).

3 ODDs used in PCs differ according to their size, loading mechanisms (slot or tray) and the types of discs that they can read or write. ODDs can be split into two groups: 'half-height' ('HH') drives for desktops and slim drives for notebooks. The slim drive sub-group includes drives that vary by size. Both HH and slim drives differ by type depending on their technical functionality (contested decision, recital 29).

4 Dell and HP are the two most important original equipment manufacturers on the global market for PCs. Dell and HP use standard procurement procedures carried out on a global basis which involve, inter alia, quarterly negotiations over a worldwide price and overall purchase volumes with a limited number of pre-qualified ODD suppliers. Generally, regional issues did not play any role in ODD procurement other than that related to forecasted demand from regions affecting overall purchase volumes (contested decision, recital 32).

5 The procurement procedures included requests for quotations, electronic requests for quotations, internet negotiations, e-auctions and bilateral (offline) negotiations. At the close of a procurement event, customers would allocate volumes to participating ODD suppliers (to all or at least most of them, unless there was an exclusion mechanism in place) depending on their quoted prices. For example, the winning bid would receive 35% to 45% of the total market allocation for the relevant quarter, the second best 25% to 30%, the third 20% and so on. These standardised procurement procedures were used by customers' procurement teams with the purpose of achieving efficient procurement at competitive prices. To this end, they used all possible practices to stimulate the price competition between the ODD suppliers (contested decision, recital 33).

6 As regards Dell, it mainly carried out bidding events by internet negotiation. That negotiation could last for a specific period of time or end after a defined period, for example 10 minutes after the last bid, when no ODD supplier continued bidding. In certain circumstances, internet negotiations could last several hours if the bidding was more active or if the duration of the internet negotiation was extended in order to incentivise ODD suppliers to continue bidding. Conversely, even where the length of the internet negotiation was indefinite and depended on the final bid, Dell could announce at some point that the internet negotiation had closed. Dell could decide to change from a 'rank-only' to a 'blind' procedure. Dell could cancel the internet negotiation if the bidding or its result were found to be unsatisfactory and run a bilateral negotiation instead. The internet negotiation process was monitored by Dell's responsible Global Commodity Managers (contested decision, recital 37).

7 With respect to HP, the main procurement procedures used were requests for quotations and electronic requests for quotations. Both procedures were carried out online using the same platform. As regards (i) the requests for quotations, they were quarterly. They combined online and bilateral offline negotiations spread over a period of time, usually 2 weeks. ODD suppliers were invited to a round of open bidding for a specified period of time to submit their quote to the online platform or by email. Once the first round of bidding had elapsed, HP would meet with each participant and start negotiations based on the ODD supplier's bid to obtain a better bid from each supplier without disclosing the identity or the bid submitted by any other ODD supplier. As regards (ii) the electronic requests for quotations, they were normally run in the format of a reverse auction. In that format, bidders would log onto the online platform at the specified time and the auction would start at a price set by HP. Bidders entering progressively lower bids would be informed of their own rank each time a new bid was submitted. At the end of the allotted time, the ODD supplier having entered the lowest bid would win the auction and other suppliers would be ranked second and third according to their bids (contested decision, recitals 41 to 44).

Administrative procedure

8 On 14 January 2009, the European Commission received a request for immunity under its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) ('the Leniency Notice') from Philips. On 29 January and 2 March 2009 that request was supplemented to include, alongside Philips, Lite-On and their joint venture Philips & Lite-On Digital Solutions Corporation ('PLDS') (contested decision, recital 54).

9 On 29 June 2009, the Commission sent a request for information to undertakings active in the ODD sector (contested decision, recital 55).

10 On 30 June 2009, the Commission granted conditional immunity to Philips, Lite-On and PLDS (contested decision, recital 56).

11 On 18 July 2012, the Commission sent a statement of objections to 13 suppliers of ODDs, including the applicant ('the statement of objections'). It stated that those companies had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA Agreement) by participating in a cartel concerning ODDs from 5 February 2004 until 29 June 2009 consisting in orchestrating their behaviour in bidding events organised by two computer manufacturers, Dell and HP.

12 On 26 October 2012, in reply to the statement of objections, the applicant submitted its written comments.

13 On 23 November 2012, Dell replied to the request for information that the Commission had addressed to it (contested decision, recital 61).

14 An oral hearing was held on 29 and 30 November 2012, in which all the addressees of the statement of objections participated (contested decision, recital 60).

15 On 14 December 2012, the Commission requested all the addressees of the statement of objections to provide the relevant documents received from Dell and HP. All those addressees replied to those requests and each was granted access to the replies provided by the other ODD suppliers (contested decision, recital 62).

16 On 13 March 2015, the Commission sent the applicant certain documents received from Dell and HP and requested it to submit its comments, which the applicant did by letter of 27 March 2015.

17 On 9 June 2015, the applicant wrote to the Commission's hearing officer asking him to confirm that the Commission had requested Dell and HP to provide evidence that those undertakings had provided their suppliers with information concerning their competitors. In his reply of 23 June, the hearing officer stated that the Commission had not submitted such a request to those undertakings.

18 On 3 June 2015, the Commission sent the applicant a statement of facts, explaining the use which it proposed to make of those documents.

19 On 21 October 2015 the Commission adopted the contested decision.

Contested decision

20 In the contested decision, the Commission considered that the cartel participants had coordinated their competitive behaviour, at least between 23 June 2004 and 25 November 2008. It specified that that coordination took place through a network of parallel bilateral contacts. It stated that the cartel participants sought to accommodate their volumes on the market and ensure that the prices remained at levels higher than they would have been in the absence of those bilateral contacts (contested decision, recital 67).

21 The Commission specified, in the contested decision, that the coordination between the cartel participants concerned the customer accounts of Dell and HP, the two most important original equipment manufacturers on the global market for PCs. According to the Commission, in addition to bilateral negotiations with their ODD suppliers, Dell and HP applied standardised procurement procedures, which took place at least on a quarterly basis. The Commission stated that the cartel members used their network of bilateral contacts to manipulate those procurement procedures, thus thwarting their customers' attempts to stimulate price competition (contested decision, recital 68).

22 According to the Commission, regular exchanges of information in particular enabled the cartel members to possess a very complex knowledge of their competitors' intentions even before they had entered the procurement procedure, and therefore to foresee their competitive strategy (contested decision, recital 69).

23 The Commission added that, on a regular basis, the cartel members exchanged pricing information regarding specific customer accounts as well as information unrelated to pricing, such as existing production and supply capacity, inventory status, the qualification status, and timing of the introduction of new products or upgrades. The Commission stated that, in addition, the ODD suppliers monitored the final results of closed procurement events, that is the rank, the price and the volume (contested decision, recital 70).

24 The Commission further stated that, whilst taking into account that they must keep their contacts secret from customers, to contact each other suppliers used the means they deemed sufficiently appropriate to achieve the desired result. The Commission specified that in fact an attempt to convene a kick-off meeting to hold regular multilateral meetings between ODD suppliers had failed in 2003 after having been revealed to a customer. According to the Commission, instead, there were bilateral contacts, mostly via phone calls and, from time to time, also via emails, including private (hotmail) addresses and instant messaging services, or meetings, mostly at the level of global account managers (contested decision, recital 71).

25 The Commission found that the cartel participants contacted each other regularly and that the contacts, mainly by telephone, became more frequent around the procurement events, amounting to several calls per day between some pairs of cartel participants. It stated that, generally, contacts between some pairs of cartel participants were significantly higher than between other pairs (contested decision, recital 72).

26 When calculating the amount of the fine imposed on the applicant, the Commission relied on the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2) ('the Guidelines').

27 First of all, in order to determine the basic amount of the fine, the Commission considered that, in view of the considerable differences in the duration of the suppliers' participation and in order better to reflect the actual impact of the cartel, it was appropriate to use an annual average calculated on the basis of the actual value of sales made by the undertakings during the full calendar months of their respective participation in the infringement (contested decision, recital 527).

28 The Commission thus explained that the value of sales was calculated on the basis of sales of ODDs for notebooks and desktops and invoiced to HP and Dell entities located in the EEA. The Commission stated that, in the applicant's case, the annual sales taken into consideration also included sales of ODDs to Sony Optiarc for HP and Dell notebooks and desktops (contested decision, recitals 528 and 529).

29 The Commission further considered that, since the anticompetitive conduct with regard to HP had begun later and in order to take the evolution of the cartel into account, the relevant value of sales would be calculated separately for HP and for Dell, and that two duration multipliers would be applied (contested decision, recital 530).

30 Next, the Commission decided that, since price coordination agreements are by their very nature among the worst kind of infringements of Article 101 TFEU and Article 53 of the EEA Agreement, and since the cartel covered at least the whole of the EEA, the percentage for gravity used in this case would be 16% for all addressees of the contested decision (contested decision, recital 544).

31 Lastly, the Commission stated that, given the circumstances of the case, it had decided to add an additional amount of 16% for deterrence (contested decision, recitals 554 and 555).

32 The operative part of the contested decision, in so far as it concerns the applicant, reads as follows:

'Article 1

The following undertakings infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, during the periods indicated, in a single and continuous infringement, which consisted of several separate infringements, in the optical disk drives sector covering the whole of the EEA, which consisted of price coordination arrangements:

...

(h) [the applicant] from 14 February 2008 to 28 October 2008, for its coordination with regards to Dell and HP.

Article 2

For the infringement referred to in Article 1, the following fines are imposed:

...

(h) [the applicant]: EUR 7 146 000.'

Procedure and forms of order sought

33 By application lodged at the Court Registry on 29 December 2015, the applicant brought the present action.

34 The Commission lodged its defence on 29 April 2016.

35 On a proposal from the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral part of the procedure.

36 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 2 May 2018.

37 The applicant claims that the Court should:

- annul the contested decision in so far as it concerns the applicant;

- in the alternative, reduce the amount of the fine imposed on the applicant;

- order the Commission to pay the costs.

38 The Commission contends that the Court should:

- dismiss the action;

- set the amount of the fine imposed on the applicant at EUR 7 186 000;

- order the applicant to pay the costs.

Law

39 The applicant puts forward five pleas in support of its action. The first plea alleges breach of the rights of the defence, of the obligation to state reasons and of the right to good administration, the second, a manifest error of law and breach of the obligation to state reasons on account of a discrepancy between the operative part of the contested decision and the Commission's reasoning as regards the duration of the infringement in relation to HP, the third, absence of proof and insufficient reasoning in relation to the applicant's participation in a single and continuous infringement, the fourth, the Commission's lack of jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement and, the fifth, errors of fact and of law in the calculation of amount of the fine and breach of the obligation to state reasons.

40 It is appropriate to examine first of all the fourth plea, alleging that the Commission lacks jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement, then the other pleas in the order in which they were presented.

Fourth plea, alleging that the Commission lacks jurisdiction

41 The applicant maintains that the Commission does not have jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement. It submits that the tests set out in the judgments of the Court of Justice and the General Court are not alternative ways of establishing the Commission's jurisdiction to apply competition law. Thus, the 'implementation' test was replaced by the 'qualified effects' test. The qualified effects test is not satisfied in the present case. The Commission does not provide any evidence that the participants in the procurement events of Dell and HP, whose registered offices are established in Asia and whose alleged contacts took place in Asia and the United States, were aware that the ODDs which they offered would ultimately be shipped to locations within the EEA. Furthermore, even if only the implementation test had to be satisfied in this case, it would not be satisfied either, as the applicant made no direct sales to Dell or HP in the EEA. In that regard, the applicant explains that the suppliers committed to sell the agreed volume of ODDs at the agreed price without knowing - either at the time of competing for the sale or at the time of agreeing the sale - the place from which the goods would be invoiced and shipped, and that the other entities within the Dell and HP groups placed individual orders for ODDs only at a later stage. That procedure is clearly explained in Dell's response of 13 November 2009 (page 249 of the defence): 'after the price negotiations were completed by the global procurement team, individual Dell regions would make ODD purchases at the determined price', that is to say, the price determined previously in the procurement event.

42 The Commission disputes the applicant's arguments.

43 It should first of all be borne in mind that, according to the case-law, the Commission's jurisdiction under public international law to find and punish conduct adopted outside the European Union may be established on the basis of either the implementation test or the qualified effects test (judgment of 6 September 2017, Intel v Commission, C 413/14 P, EU:C:2017:632, paragraphs 40 and 47).

44 Thus, the Court has held that the fact that an undertaking participating in an agreement is situated in a third country does not prevent the application of Article 101 TFEU and of Article 53 of the EEA Agreement if that agreement is operative on the territory of the internal market (judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11).

45 Moreover, in order to justify the application of the implementation test, the Court has emphasised that if the applicability of prohibitions laid down under competition law were made to depend on the place where the agreement, decision or concerted practice was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions (judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16).

46 In that regard, the Court would point out that demonstrating the implementation of the practices at issue in the EEA or demonstrating qualified effects are alternative and not cumulative approaches for the purposes of establishing that the Commission's jurisdiction is justified under the rules of public international law.

47 Since those two approaches are alternative, the applicant's argument that the implementation test was replaced by the qualified effects test must be rejected.

48 In the present case, it was the implementation test that the Commission sought to apply in the contested decision.

49 Thus, it must be observed that, in recital 53 of the contested decision, the Commission established that ODDs are supplied globally, including in the EEA, and that the suppliers that are addressees of the contested decision were active in supplying to a number of EEA Member States, inter alia Ireland and Poland. In addition, it is noted in that recital that customers of the ODD suppliers concerned by the contested decision, Dell and HP, were also established in the EEA and that, therefore, during the infringement period set out in the contested decision, there were substantial trade flows of ODDs between the Member States of the EEA. Moreover, in recital 270 of the contested decision, the Commission also stated that the cartel covered global procurements in which ODD suppliers competed for orders from Dell and HP throughout the world. Similarly, in recitals 464 to 468 of the contested decision, the Commission highlighted once again that the collusive contacts assumed a worldwide dimension and that the scope of the cartel itself covered the entire EEA.

50 With respect to Dell, it should be noted that it is apparent from its reply to the Commission's request for information of 30 September 2009 that it had entities in Poland and in Ireland. The Commission noted, moreover, that Philips had confirmed, in its oral statements, that Dell had one assembly factory in Limerick, in Ireland, and that it had made the decision to shift its European manufacturing operations to Poland.

51 With respect to HP, according to the Commission, Philips had also confirmed that HP had an office in Berkshire, in the United Kingdom, and has various sales offices in that country. Philips also stated that significant volumes of ODDs were shipped to Ireland for Dell and to the United Kingdom, the Czech Republic and the Netherlands for original design manufacturers (ODMs) acting for HP. According to Philips, apart from sales to original equipment manufacturers (OEMs), such as HP and Dell, there were also sales of ODDs to large retailers, distributors and wholesalers across the entire EEA.

52 The criterion as to the implementation of an agreement is satisfied by mere sale within the Union, irrespective of the location of the sources of supply and the production plant (judgment of 25 March 1999, Gencor v Commission, T 102/96, EU:T:1999:65, paragraph 87). It must therefore be concluded, as the Commission states, that the Commission had jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement in the present case.

53 As is apparent from the foregoing, the Commission showed to the requisite legal standard that ODDs were sold to Dell and HP in the EEA, inter alia in Ireland and Poland, and that, therefore, during the infringement period set out in the contested decision, there were substantial trade flows of ODDs between the Member States of the EEA.

54 Thus, the applicant's argument that it did not know, when it supplied ODDs to Dell and HP 'the place from which the goods would be invoiced and shipped', is unconvincing given that it was not disputed between the parties that ODDs were capable of equipping devices sold globally, which therefore undoubtedly included the EEA.

55 It follows that none of the applicant's arguments is capable of calling into question the Commission's jurisdiction to adopt the contested decision.

56 The fourth plea must therefore be rejected.

First plea, alleging breach of the rights of the defence, of the obligation to state reasons and of the right to good administration

57 This plea consists of two parts. First, the applicant submits that the Commission infringed its rights of defence by not putting it in a position to understand, during the administrative procedure, the nature of the infringements that it was later found to have committed in the contested decision. Second, the applicant submits that the Commission infringed its obligation to state reasons, as well as its rights of defence and its 'right to good administration' with regard to the issue of transparency in the ODD market created by Dell and HP.

First part, alleging breach of the rights of the defence during the administrative procedure

58 The applicant maintains that the statement of objections had found that there had been a single and continuous infringement, whereas the Commission found in the contested decision not only that there had been a single and continuous infringement but also that there had been several separate infringements. Thus, the applicant was not put in a position during the administrative procedure to understand that the single and continuous infringement in which it was alleged to have participated consisted of several separate infringements. It was therefore impossible for the applicant to defend itself against each of those infringements. In particular, the statements in recital 352 and Article 1 of the contested decision imply that the applicant ought to have defended itself against 'every combination of two or more bilateral contacts', which would have entailed such a large number of cases that such a defence would be impossible.

59 The Commission disputes the applicant's arguments.

60 It should be borne in mind that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be complied with even if the proceedings in question are administrative proceedings (judgments of 29 June 2006, SGL Carbon v Commission, C 308/04 P, EU:C:2006:433, paragraph 94, and of 24 September 2009, Erste Group Bank and Others v Commission, C 125/07 P, C 133/07 P and C 137/07 P, EU:C:2009:576, paragraph 270). In that regard, Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the proceedings. That statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law, which requires observance of the rights of the defence in all proceedings capable of leading to the imposition of a penalty. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see judgment of 2 February 2012, Dow Chemical v Commission, T 77/08, not published, EU:T:2012:47, paragraph 110 and the case-law cited).

61 However, that may be done summarily and the final decision is not necessarily required to be an exact replica of the statement of objections (judgment of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 14), since the statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature (see, to that effect, judgment of 17 November 1987, British American Tobacco and Reynolds Industries v Commission, 142/84 and 156/84, EU:C:1987:490, paragraph 70).

62 The Commission must be permitted in its decision to take account of the responses of the undertakings concerned to the statement of objections. In that regard, it must be able not only to accept or reject the arguments of the undertakings concerned, but also to carry out its own assessment of the facts put forward by those undertakings in order either to abandon such complaints as have been shown to be unfounded or to supplement and redraft its arguments, both in fact and in law, in support of the complaints which it maintains. Thus it is only if the final decision alleges that the undertakings concerned have committed infringements other than those referred to in the statement of objections or takes into consideration different facts that there will be an infringement of the rights of the defence (see, to that effect, judgments of 15 July 1970, ACF Chemiefarma v Commission, 41/69, EU:C:1970:71, paragraph 94, and of 23 February 1994, CB and Europay v Commission, T 39/92 and T 40/92, EU:T:1994:20, paragraphs 49 to 52).

63 That is not the case where the alleged differences between the statement of objections and the final decision do not concern any conduct other than that in respect of which the undertakings concerned had already submitted observations and are therefore unrelated to any new complaint (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C 238/99 P, C 244/99 P, C 245/99 P, C 247/99 P, C 250/99 P to C 252/99 P and C 254/99 P, EU:C:2002:582, paragraph 103).

64 It is therefore necessary to examine, in the light of those principles, (i) whether the applicant was clearly informed, in the statement of objections, that the Commission considered that the single and continuous infringement consisted of different bilateral agreements and (ii) whether the fact that the Commission referred to a large number of those agreements was such as to undermine the applicant's rights of defence.

65 It must first be noted that there were a number of elements, in the statement of objections, indicating to the applicant that the Commission considered that the cartel consisted of different agreements. Thus, paragraph 301 of that statement states that '[the orchestration of bids] ... ultimately resulted in some instances in outright agreements [for the purposes of] Article 101 TFEU' and observes that the bilateral contacts 'constitute at least concerted practices' for the purposes of that article. Paragraph 308 of the statement of objections mentions the 'complex of infringements in this case'. Paragraph 353 of the statement of objections refers to the principal aspects of 'the complex of agreements and concerted practices which can be characterised as restrictions of competition'. Paragraph 354 of the statement of objections states that that 'complex of concerted practices and/or agreements' had as its object the restriction of competition.

66 The definition of a single and continuous infringement should next be recalled. That concept assumes conduct adopted by different parties that pursues the same anticompetitive economic aim (see, to that effect, judgments of 24 October 1991, Rhône-Poulenc v Commission, T 1/89, EU:T:1991:56, paragraphs 125 and 126).

67 It is therefore apparent from the very concept of a single and continuous infringement that it presupposes a complex of practices. The applicant cannot therefore claim that the Commission changed its conclusions by finding, in addition to a single and continuous infringement, several 'bilateral contacts', given that those bilateral contacts are precisely what constitute that single infringement.

68 As regards the applicant's argument that the statements in recital 352 and Article 1 of the contested decision imply that the applicant ought to have defended itself against 'every combination of two or more bilateral contacts', which would have entailed such a large number of cases that such a defence would be impossible, it should be pointed out that the Commission argued in its defence, without this being called into question by the applicant, that the applicant had been successful in persuading the Commission not to pursue its allegations in relation to certain bilateral contacts, and to maintain only those that appear in the contested decision.

69 The bilateral contacts identified in the statement of objections and which the Commission maintained in the contested decision are limited in number. The contacts in question are, first, the contact of February 2008 relating to Dell's reverse internet negotiation (paragraph 199 of the statement of objections), second, contacts of April 2008 relating to the procurement event launched by HP for mobile PCs (paragraphs 203 to 205 of the statement of objections), third, the contact of July 2008 relating to the electronic procurement event launched by HP for mobile PCs concerning Slim ODDs (paragraph 276 of, and Annex 1 to, the statement of objections), fourth, the contacts of October 2008 relating to HP procurement events concerning the mainstream and OPP segments (paragraphs 219 to 222 of the statement of objections) and, fifth, the contacts of October 2008 in connection with Dell's internet negotiation (paragraph 218 of the statement of objections).

70 Accordingly, the applicant cannot claim that the number of bilateral contacts alleged by the Commission in the statement of objections was so high that it was impossible for it to defend itself properly.

71 Moreover, the Commission cannot be held responsible for the possibly high number of bilateral contacts in which the applicant might have engaged. On the contrary, it is for any person subject to the law to bear the consequences of its own actions.

72 It follows from the foregoing that the applicant's arguments relating to a breach of its rights of defence in the context of the statement of objections cannot succeed.

Second part, alleging breach of the obligation to state reasons, the rights of the defence and the principle of good administration as regards transparency in the ODD market

73 The applicant submits that Dell and HP regularly passed on information to their suppliers. It adduced evidence, as did two other suppliers, of the existence of such information in the context of the administrative procedure. In that regard, first, the contested decision does not indicate the Commission's reasoning explaining why it rejected that evidence. Second, by reversing the burden of proof as regards transparency, the Commission infringed the applicant's rights of defence. Third, by failing to investigate this aspect of the case thoroughly, the Commission has infringed the applicant's 'right to good administration'.

- Breach of the obligation to state reasons

74 According to the applicant, the Commission did not state in the contested decision the reasons why it rejected the evidence relating to transparency which the applicant, and also TSST and Sony, had supplied during the administrative procedure. The reasons set out in recitals 311 to 319 of the contested decision are insufficient in that regard.

75 The Commission disputes the applicant's arguments.

76 It should be borne in mind that, according to settled case-law, the statement of reasons required by Article 296(2) TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question, in such a way as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights and to enable the EU judicature to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, for the purpose of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations (see judgment of 16 December 2015, Air France-KLM v Commission, T 62/11, not published, EU:T:2015:996, paragraph 36 and the case-law cited).

77 It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 16 December 2015, Air France-KLM v Commission, T 62/11, not published, EU:T:2015:996, paragraph 37 and the case-law cited).

78 The fact remains that, in stating the reasons for a decision which it takes to enforce the rules on competition, the Commission is required under Article 296 TFEU to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the competent court and the persons concerned the circumstances in which it has applied EU law (see judgment of 16 December 2015, Air France-KLM v Commission, T 62/11, not published, EU:T:2015:996, paragraph 38 and the case-law cited).

79 In the present case, it should be noted that recital 309 et seq. of the contested decision relate to 'transparency of the ODD market and availability of information from third parties'.

80 Those recitals are intended to respond to the argument of the applicant and of certain other suppliers of ODDs, which was put forward in particular in their written replies to the statement of objections, that Dell and HP provided information to ODD suppliers, which proves the existence of unusual transparency in that sector.

81 Thus, in recital 311 of the contested decision, the Commission stated that it had relied exclusively on information produced by the ODD suppliers, whether on the basis of documents, indicia or inferences from other documents, statements or phone records, and that the contested decision is therefore based on express evidence of contacts between competitors, rather than on contacts between competitors and their customers or third parties.

82 In recital 312 of the contested decision, the Commission explained that it accepted that the ODD suppliers could have been gathering information from numerous sources, including from customers.

83 However, the Commission stated, in recital 313 of the contested decision, that Dell and HP sought to protect commercially sensitive information in order to prevent its disclosure to ODD suppliers. It is stated in that recital that Dell had thus invested in a system which masked information about other ODD suppliers and that HP did not share price- or volume-related information of ODD suppliers with the other ODD suppliers. In that regard, documents in support of those assertions are referred to in this recital.

84 In recital 314 of the contested decision, the Commission states that, although HP and Dell employees might have supplied information, if at all commercially sensitive and relevant for this case, it was not systematic or regular.

85 In recital 315 of the contested decision, the Commission also pointed out the limited reliability of information received from customers, which disclosed information to suppliers for their own benefit, often bluffing.

86 It is explained in recital 316 of the contested decision that that information was thus not reliable, which is illustrated by a number of examples provided in that recital.

87 In recital 317 of the contested decision, it is stated that information concerning behaviour for future bids or the overall strategy of ODD suppliers was available only in the context of contacts between competitors and, by definition could not have been received from customers.

88 Lastly, in recital 319 of the contested decision, it is stated that the vast number of competitor contacts clearly proves that the ODD market was not transparent. If that had been the case, those contacts would not have been necessary.

89 It must therefore be held that the contested decision is sufficiently reasoned on the issue of transparency.

- Infringement of the rights of the defence

90 The applicant maintains that the Commission has sought to reverse the burden of proof with regard to the market transparency created by customers. When assessing the evidence on the file, the Commission presumed that if a supplier received sensitive information about a competitor, and if the source of such information could not be identified, that source could only be a competitor. In that regard, the applicant refers to recital 250 of the contested decision, where the Commission cites an internal report of the applicant, dated 24 October 2008, as evidence of price discussions with its competitors concerning HP's OPP electronic requests for quotations of October 2008. In the applicant's submission, the report in question sets out basic information about the procurement event and price projections in general terms, but makes no mention of the expected price of any individual supplier. The applicant states that it informed the Commission in its reply to the statement of objections that it received that information from HP. But as it is impossible actually to identify the source of that information, the Commission simply presumed that it came from a competitor. In addition, the Commission's assertion that 'there is no plausible explanation, why HP would have been trying to spread this type of information among its ODD suppliers' (recital 255 of the contested decision) is directly contradicted by clear, contemporaneous evidence showing that HP provided exactly the same evidence to at least one other ODD supplier in addition to the applicant, namely Hitachi LG Data Storage ('HLDS'), as shown in an internal HLDS email dated 23 October 2008 supplied by the applicant in an annex to its application. Lastly, the applicant also produces in an annex to its application two other internal HLDS emails showing that HP circulated information on prices, ranking and bidding intentions not only to the applicant and HLDS, but also to all its other suppliers at the same time.

91 The Commission disputes the applicant's arguments.

92 It must be pointed out that, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence - resulting in particular from Article 48(1) of the Charter of Fundamental Rights of the European Union and Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 - applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see judgment of 9 September 2015, Toshiba v Commission, T 104/13, EU:T:2015:610, paragraph 49 and the case-law cited).

93 It follows from the foregoing, first, that the Commission must adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement of Article 101 TFEU and, secondly, that any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. In doing this, the Commission must establish in particular all the facts enabling the conclusion to be drawn that an undertaking participated in such an infringement and that it was responsible for the various aspects of it. It follows that the participation of an undertaking in a cartel cannot be inferred from speculation based on imprecise evidence (see judgment of 9 September 2015, Toshiba v Commission, T 104/13, EU:T:2015:610, paragraph 50 and the case-law cited).

94 Moreover, it must be observed that, according to recital 311 of the contested decision, the Commission based its findings 'exclusively on evidence including information originating from ODD suppliers, where the source of information is established either on the basis of the wording of the source document itself or can be reasonably determined based on corroboration, consistent indicia or inference from other documents, corporate statements or phone records'.

95 It is therefore necessary to determine whether the evidence relied on by the Commission in the contested decision is sufficiently credible, precise and consistent.

96 First, as regards recital 250 of the contested decision, relating to its internal email of 24 October 2008, the applicant takes issue with the Commission for considering that it follows from the statement 'in order to protect the price [at a] certain level, suppliers have the consensus to keep the price no lower than [24.25 United States dollars (USD)]' that the ODD suppliers had the subjective intention to stop the price falling below a specified level, because such a statement could only have derived from contacts between the applicant and other ODD suppliers, and not from HP, since intentions which are hostile to the financial interests of HP are involved.

97 It is necessary to assess that email in the light of the HLDS internal email, also dated 24 October 2008, and which forms the subject matter of recital 251 of the contested decision.

98 In that email, HLDS describes Sony Optiarc's internal thinking about the OPP procurement before it had even begun, and expressly identifies the source of this description as the applicant: '[Sony Optiarc] - Although they want to secure more product volume, because internally there [are] a lot of concerns over dropping the prices lower than the current level, it seems that a price reduction of more than 20 cents is not expected. However, this response is based on [the applicant's] opinion'.

99 In that regard, the reference by HLDS to '[the applicant's] opinion' may be classified as a strong indication of contacts between them, and the applicant does not indeed challenge the veracity of that statement.

100 Second, in order to prove that it received information not from competitors, but from HP, the applicant explains that the information set out in its internal email of 24 October 2008 can originate only from HP, since it states the same prices as those set out in the HLDS email of 23 October 2008, mentioning information given by HP.

101 However, it must be stated that that comparison appears to be incorrect, since it is probable that the HLDS email, unlike the applicant's email, does not concern the OPP procurement. The HLDS email of 24 October 2008, mentioned in recital 251 of the contested decision, and which relates to the OPP procurement, mentions pricing with a view to a '1st round Quote idea', whereas the HLDS email of 23 October 2008, on which the applicant relies to make its case, refers in the subject heading to a 'first negotiation' as already having taken place and submits that it 'looks like the deal will be closed by tonight'.

102 Moreover, in any event, the fact that HP might have given one of the suppliers the benefit of a confidential item of information cannot exonerate the applicant from its possible liability.

103 Third, the applicant submits that it follows from the internal emails of HLDS that HP passed on not only to that undertaking, but also to all the ODD suppliers, information on proposed pricing during procurement events. Thus, the applicant refers, for example, to the HLDS internal email of 28 October 2008, which states that 'all the other competitors' received the same information. That expression cannot however suffice, on its own, to show that the applicant was included in that expression. Moreover, as the Commission observes, those emails do not show that HP communicated all the information to all the competitors, but only that at certain times, HP sought to exert commercial pressure on bidders by stating that their competitors had offered prices which were more attractive for it.

104 Moreover, it should be noted that there are several other elements showing that the applicant was in direct contact with its competitors.

105 As is also noted in paragraph 144 below, recital 401 of the contested decision refers, in a footnote, to the applicant's written observations of 26 October 2012, in which the applicant stated that it had been obliged to ensure that Philips and Sony did not bid at prices that would not cover its costs, or which would result in a volume commitment that it could not deliver. The applicant also stated in those observations that it had provided Philips and Sony with input on suggested pricing before new bids and communicated with Philips and Sony during the bids.

106 That information might suffice, on its own, to prove the existence of contacts between the applicant and some of its competitors.

107 It must therefore be held (i) that the Commission did not reverse the burden of proof and (ii) that the applicant's arguments by which it seeks to prove that the information in its possession had in fact been passed on to it by HP are not convincing.

- Breach of the right to good administration

108 The applicant emphasises that it had requested the Commission during the administrative procedure to ask Dell and HP to supply evidence of their communications with ODD suppliers that disclosed sensitive commercial information. By failing to ask Dell and HP for evidence with regard to transparency, the Commission breached the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights.

109 The Commission disputes the applicant's arguments.

110 It should be noted that the guarantees afforded by EU law in administrative proceedings include, in particular, the principle of sound administration, which is enshrined in Article 41 of the Charter of Fundamental Rights, which entails the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 27 September 2012, Shell Petroleum and Others v Commission, T 343/06, EU:T:2012:478, paragraph 170 and the case-law cited).

111 However, the Court would point out that neither Regulation No 1/2003, Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004, L 123, p. 18), nor any other legislation requires the Commission to hold fresh hearings or send new requests for information where the assertions of an undertaking are challenged by another undertaking during the administrative procedure. The only constraint on the Commission is that it must ensure that the rights of the defence are respected during that procedure, as stated in Article 27(2) of Regulation No 1/2003. The Courts of the European Union have thus considered that the Commission has a reasonable margin of discretion to decide how expedient it may be to hear persons whose evidence may be relevant to the investigation, and the guarantee of the rights of the defence does not require the Commission to hear witnesses put forward by the parties concerned, where it considers that the investigation of the case has been sufficient. Similarly, where legislative texts and its own notices allow it the scope to choose, from several types of evidence or approaches which may in theory be relevant, it retains great freedom of action (see judgment of 27 September 2012, Shell Petroleum and Others v Commission, T 343/06, EU:T:2012:478, paragraph 171 and the case-law cited).

112 In the present case, it is not disputed that, after hearing the arguments of the addressees of the contested decision regarding market transparency at the hearings of 29 and 30 November 2012, the Commission issued requests for information on 14 December 2012, in order to obtain from the addressees the documents that they received from HP and Dell.

113 Moreover, as is apparent from the foregoing, not only did the Commission sufficiently establish, in the contested decision, the fact that the applicant had communicated on pricing with HLDS, but the applicant itself indicated to the Commission in its written observations of 26 October 2012, as noted above, that it had communicated with Philips and Sony.

114 Accordingly, it is necessary to reject the applicant's argument that the Commission infringed Article 41 of the Charter of Fundamental Rights by failing to ask Dell and HP to produce the documents by which they allegedly kept the ODD suppliers informed of the prices that their competitors were offering.

115 It follows from all the foregoing that the first plea must be rejected.

Second plea, alleging a discrepancy between the operative part of the contested decision and the Commission's reasoning as regards the duration of the infringement in relation to HP

116 The applicant observes that it is apparent from Table 2 in recital 553 of the contested decision that the Commission considered that the applicant had participated in the infringement concerning Dell from 14 February 2008, and concerning HP from 10 April 2008. That position is therefore inconsistent with the finding in Article 1 of the contested decision that the applicant participated in a single and continuous infringement - including the 'Dell component' and the 'HP component' - from 14 February until 28 October 2008. The contradiction between the reasoning and the operative part of the contested decision constitutes an error of fact and of law. In addition, the fact that the applicant is not in a position to understand whether the Commission considered that it had participated in an infringement relating to HP between 14 February and 9 April 2008 constitutes a breach of the Commission's obligation to state reasons. Lastly, those errors have practical consequences. In the event of private actions for damages on the basis of the contested decision, any national court in the European Union would have to find the applicant liable for both the 'Dell and the HP components' of the infringement from 14 February 2008. The applicant further observes that the contested decision did not find certain suppliers liable in respect of the 'HP component', which amounts to discrimination against the applicant. The applicant emphasises, lastly, that several recitals of the contested decision refer to 'the part of the infringement that relates to HP'. The Commission cannot therefore claim that it did not identify two infringements or two distinct parts of infringements in the contested decision.

117 The Commission disputes the applicant's arguments.

118 In the present case, Article 1 of the contested decision indicates that the Commission revealed the existence of a single and continuous infringement. However, that does not mean that all the addressees of the contested decision must be penalised for the whole of that single and continuous infringement.

119 Indeed, that Article 1 specifies that the single and continuous infringement consists of 'several separate infringements'.

120 Accordingly, the Commission did not contradict itself by stating, in Article 1 of the contested decision, that the applicant had participated in a single and continuous infringement in relation to Dell and HP from 14 February to 28 October 2008, and by taking into account, in recital 553 of the contested decision relating to the calculation of the amount of the fine, the later date of its first contacts with regard to HP.

121 In any event, there has been no discrimination with respect to the applicant, nor any error liable to have repercussions in the event of litigation before national courts.

122 It follows from all the foregoing that the second plea must be rejected.

123 Moreover, to the extent that the applicant seeks, by this line of argument, to claim that there has been a breach of the obligation to state reasons, it must be stated that the contested decision was sufficiently clear in that regard and, consequently, such a claim must be rejected.

Third plea, alleging absence of proof of the applicant's participation in a single and continuous infringement

124 In support of this plea, the applicant puts forward, in essence, four parts. Moreover, in the presentation of the factual context, in the application and in the introductory part of the reply, the applicant sets out a line of argument which is also linked to this plea. It is appropriate to start by examining that line of argument.

The line of argument set out in the preliminary considerations of the application and of the reply

125 In the application, in the presentation of the factual context, the applicant maintains that it operates at a different level of the market from the other addressees of the contested decision and that its activities are materially different from theirs. During the period of the alleged infringement, the applicant made no sales to Dell or HP and it never issued invoices to either of them. Its role in the market was that of a manufacturer of ODDs for Sony Optiarc, which then sold the products to Dell or HP. Furthermore, it played only a marginal role in the alleged cartel, as is apparent from Annex I to the contested decision, according to which the applicant participated in only five anticompetitive contacts (out of a total of 119 contacts).

126 Moreover, the applicant, in the introductory part of the reply, submits that none of the evidence produced by the Commission in the section of its defence covering the facts was adduced in the contested decision. That evidence, and the arguments based on it, should therefore be rejected.

127 The Commission disputes the applicant's arguments.

128 First, as regards the applicant's argument that it operates on the market at a level different from the other addressees of the contested decision, it is necessary to cite several recitals of the contested decision.

129 Thus, according to the contested decision, a Sony Optiarc email chain from February 2008 shows that Sony Optiarc was in contact with TSST and PLDS in order to discuss their strategy in an upcoming Dell reverse internet negotiation. Sony Optiarc's account manager for Dell reported internally, on 14 February 2008, putting Quanta in copy (see Section 2.2.2), that '[customer's] Price Target for Slim DVDRW is [approximately USD] 24.50-25.00 ... TSST mentioned that they will be price leader but they do not want 60% [of the total available market] as they [would] have concern[s] on supply'. In relation to PLDS, the email reports that '[PLDS] mentioned that they will not be aggressive on price' and concludes lastly that '[the c]oncern is that there might be a stalemate as no one would want to take 60% [of the total available market]'. A PLDS internal email, sent on the same day, also makes reference to contacts with TSST and Sony Optiarc regarding that reverse internet negotiation (contested decision, recital 216).

130 Several days later, the same Sony Optiarc representative reported internally on the results of the internet negotiation, including the final bids and ranking of both TSST and PLDS internally, again putting the applicant in copy. The internal Sony Optiarc report shows that TSST and PLDS ranked first and second respectively and neither TSST nor PLDS reached the target price requested by Dell. The ensuing increased prices subsequently had an impact on the price negotiation, in which both undertakings were asked by Dell to match or to go lower than the second ranked bid of PLDS (contested decision, recital 217).

131 HLDS, TSST, PLDS and the applicant took part in numerous additional anticompetitive contacts which took place in April 2008 before and after HP's requests for quotations ('RFQs') relating to ODDs for mobile personal computers ('MPCs'). In relation to this call for tenders, there is evidence that HLDS, PLDS, TSST and the applicant shared information relating to their bidding strategy. Specifically, an HLDS representative sent an internal email on 4 April 2008 concerning verified information from TSST and PLDS. The email contained targeted ranking and pricing strategy of both competitors for the upcoming HP RFQ relating to ODDs for MPCs. On the basis of the information received from competitors, the email concludes: 'There is [a] high possibility of limited price competition for PATA drives while having strong price competition for SATA drives'. This recital of the contested decision also states that evidence shows that a similar type of information concerning the bidding strategy was also shared between PLDS and HLDS on several occasions in the framework of this RFQ (contested decision, recital 223).

132 Lastly, there is evidence that PLDS also exchanged pricing information with Quanta in relation to the same request for quotation. PLDS reported in an internal email dated 10 April 2008 that: 'Per the conversation with [the applicant] yesterday, [it] put [USD] 26.30 for SATA drive', and that 'its intention is not to be [ranked fifth]. Hence, [the applicant] will no[t] move [its] price in round 2'. Two internal PLDS emails from April 2008 indicate that PLDS quoted its price to HP based on the price information that it had received from Quanta (contested decision, recital 225).

133 An email from PLDS to HLDS of 2 July 2008 states that PLDS 'manage[d] to [talk] to [the applicant, which] did not make any price movement. [Its] price is still the same' (contested decision, recital 242).

134 Numerous contacts took place in October 2008 among account managers at HLDS, TSST, PLDS and the applicant in relation to two HP procurement events - mainstream and OPP (contested decision, recital 248).

135 As regards the mainstream RFQ, the evidence shows that HLDS, TSST, PLDS and the applicant exchanged pricing information concerning this procurement event. An internal email of the applicant of 20 October 2008 refers to a meeting with HLDS: 'Last week I met [an] HLDS guy. According to what he said, their best price is around [USD] 24[.]65 eventually. However, they won't go that far in the 1st round as well and might provide a higher price'. Accordingly, the applicant contemplated proposing a price ranging between USD 24.70 and USD 24.75. An internal HLDS email sent on 21 October 2008 gives information on the prices proposed by TSST following the first round of the request for quotation. The email reads: 'It seems that T offered [USD] 24.64, but T's information is hard to trust. However, because T says that it came in 2nd, it seems that there is not much difference with the current price'. A PLDS internal email of 24 October 2008 reports on its discussion with HLDS: 'I've checked with HLDS yesterday and I asked them if they quoted around [USD] 24.50 for mainstream ... and [they] acknowledged' (contested decision, recital 249).

136 As for the OPP RFQ, the evidence shows that discussions were held between PLDS, TSST, HLDS and the applicant. An internal report of the applicant of 24 October 2008 states that 'in order to protect the price [at a] certain level, suppliers have the consensus to keep the price no lower than USD 24.25' (contested decision, recital 250).

137 The contacts between HLDS, PLDS, Quanta and TSST are further confirmed by an internal HLDS email sent on the same day, in which information received from individual competitors is provided. The email states inter alia:

'1) PLDS ... is targeting for 1st or 2nd place ... It has not yet been settled on a price standard, and PLDS hopes that the price will be determined at a reasonable level. However, PLDS is trying to secure more than 30% of the Shares even if it has to go through a second round of negotiations, 2) SNO - Although they want to secure more product volume, because internally there [are] a lot of concerns over dropping the prices lower than the current level, it seems that a price reduction of more than 20 cents is not to be expected. However, this response is based [on the applicant's] opinion and because Optiarc's decision [is] expected to come from Japan, it is not clear as to what price they may actually offer, 3) TSST - TSST is saying that even if the price goes down to the [USD] 24.3-24.2 level it will still proceed, but this cannot be trusted. We tried to cooperate with TSST, but they said that they wanted to do a free competition. They are currently expressing that they will try to secure as much of the product volume as they can' (contested decision, recital 251).

138 It must therefore be stated that, according to the contested decision, the applicant was not only copied in emails relating to discussions among the suppliers on ODD pricing, but also, on certain occasions, it discussed with some of them and even supplied useful information. Moreover, it should be noted that the applicant nevertheless concedes that it played 'a marginal role [in the alleged cartel]'.

139 Accordingly, the applicant cannot claim that it should be automatically excluded from the list of the addressees of the contested decision.

140 Second, as regards the admissibility of evidence which is alleged to have been adduced by the Commission only at the stage of the defence, it should be borne in mind that, in accordance with the case-law to which the applicant itself refers, in an action for annulment brought under Article 263 TFEU, although the Commission cannot, in support of the contested decision, produce new inculpatory evidence not contained in the decision, it is nevertheless entitled to respond to the applicant's arguments where the applicant seeks to establish, on the basis of documents other than those produced by it to the Court, that the Commission's assertion is incorrect in fact (see, to that effect, judgment of 8 July 2004, JFE Engineering v Commission, T 67/00, T 68/00, T 71/00 and T 78/00, EU:T:2004:221, paragraphs 175 and 176). Moreover, the Court of Justice has already recognised that the author of a contested decision is entitled to provide explanations at the stage of the judicial proceedings in order to supplement a statement of reasons which is already adequate in itself, since those explanations may serve a useful purpose in relation to review by the Courts of the European Union of the adequacy of the grounds of the decision, since they enable the institution to explain the reasons underlying its decision (judgment of 16 November 2000, Finnboard v Commission, C 298/98 P, EU:C:2000:634, paragraph 46).

141 In the present case, it is necessary to cite also certain recitals of the contested decision.

142 Thus, recital 368 of the contested decision is intended to summarise the evidence of the applicant's involvement. It states that a number of items of contemporaneous evidence demonstrate that Quanta was aware of the other parties' involvement in the ODD cartel throughout the period during which it participated in that cartel itself. In that recital, the Commission noted, first, that Quanta was copied in an internal Sony Optiarc email dated 14 February 2008 revealing anticompetitive contacts between Sony Optiarc and TSST as well as between Sony Optiarc and PLDS: '[Internet negotiation] Pre-Information ... TSST mentioned that they will be price leader but they do not want 60% [of the total available market] as they have concern[s] on supply ... [PLDS] mentioned that they will not be aggressive on price and maybe only looking at ... 10% [of the total available market] offline negotiation'. Second, according to that recital, an internal email of the applicant of 24 October 2008 reporting on an ongoing HP tender involving PLDS, TSST, HLDS and Quanta states that: 'in order to protect the price [at a] certain level, suppliers have the consensus to keep the price no lower than [USD] 24.25'. This email demonstrates that, by colluding with PLDS, TSST and HLDS, Quanta was aware of the unlawful behaviour of the other undertakings and shared the same anticompetitive objective with them. Third, according to that recital, a series of emails also shows that by engaging in numerous cartel contacts relating to Dell or HP tenders, although those contacts were of a largely bilateral nature concerning various bidding events and involving various parties, Quanta knew or could have reasonably foreseen that these contacts were not isolated, but were united by the same objective and constituted part of a larger ODD cartel consisting of a wider network of parallel contacts.

143 Moreover, in recital 401 of the contested decision, which is intended to respond to the applicant's argument already raised during the administrative stage that it is just a mere supplier of Sony Optiarc, it is stated that it follows from the facts set out in Section 4 of the contested decision (in particular in recitals 216, 217, 223, 225 and 248 to 251) that the applicant took part in a single and continuous infringement by its own contribution to the overall plan described in this decision. According to this recital, the evidence demonstrates that notwithstanding the existence of supplier-customer relationship, the applicant was directly involved in the anticompetitive behaviour which forms the subject matter of the contested decision and had a commercial interest in belonging to the cartel, and even when operating as a manufacturer for another entity, the applicant was clearly involved in setting the price at which ODDs were sold to Dell or HP respectively by Quanta's contract partner and equally had a commercial interest in the price-setting, since its margin was derived from the sales to Dell and HP.

144 It should also be noted that the footnote to which reference is made in that recital 401 of the contested decision mentions written observations, in the context of the administrative procedure, of the applicant of 26 October 2012, in which the applicant stated that it had been obliged to ensure that Philips and Sony did not bid at prices that would not cover its costs, or which would result in a volume commitment that it could not deliver. The applicant also stated in those observations that it had provided Philips and Sony with input on suggested pricing before new bids and communicated with Philips and Sony during the bids.

145 The Commission thus provided a statement of reasons that was already adequate in itself, in the contested decision, which it was entitled to supplement, in accordance with the case-law referred to in paragraph 140 above.

146 In any event, it must be held that the arguments and evidence provided by the Commission in its defence, which will be examined below, are intended only to respond to the arguments raised by the applicant in its application. Moreover, as the Commission notes, the applicant itself provided numerous documents in the context of the application.

147 The applicant's request by which it seeks to have that evidence and the arguments based thereon declared inadmissible must therefore be rejected.

First part, alleging no participation in the infringement between 14 February and 9 April 2008

148 The applicant observes that the Commission states in recital 216 of the contested decision that it began to participate in the infringement on 14 February 2008 because on that date it received an email from Sony Optiarc showing that the latter had exchanged information with the applicant's competitors in relation to a Dell procurement event. According to the applicant, however, in essence, that email, which was copied to two of its employees, does not suffice to prove that the applicant ought to have been aware that an infringement existed. An addressee in the applicant's position would probably have assumed that all the information in the email came from Dell, especially because Sony Optiarc was responsible for organising participation in Dell's procurement events.

149 The Commission disputes the applicant's arguments.

150 It should be pointed out the Commission must produce precise and consistent evidence to support the firm conviction that the infringement was committed (see judgment of 8 July 2004, JFE Engineering v Commission, T 67/00, T 68/00, T 71/00 and T 78/00, EU:T:2004:221, paragraph 179 and the case-law cited).

151 However, it should be emphasised that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see judgment of 8 July 2004, JFE Engineering v Commission, T 67/00, T 68/00, T 71/00 and T 78/00, EU:T:2004:221, paragraph 180 and the case-law cited).

152 Furthermore, it is normal for the activities entailed by anticompetitive practices and agreements to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between operators, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgment of 13 July 2011, Trade-Stomil v Commission, T 53/07, EU:T:2011:360, paragraph 64).

153 It should be recalled that 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 European 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 for a finding that the undertaking participated in the overall cartel. Article 101(1) TFEU does not apply unless there exists a concurrence of wills between the parties concerned (judgments of 10 October 2014, Soliver v Commission, T 68/09, EU:T:2014:867, paragraph 62, and of 9 September 2015, Toshiba v Commission, T 104/13, EU:T:2015:610, paragraph 52).

154 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 overall cartel that its participation in the agreement concerned can constitute the expression of its accession to that cartel (judgments of 20 March 2002, Sigma Tecnologie v Commission, T 28/99, EU:T:2002:76, paragraph 45; of 16 November 2011, Low & Bonar and Bonar Technical Fabrics v Commission, T 59/06, not published, EU:T:2011:669, paragraph 61; and of 30 November 2011, Quinn Barlo and Others v Commission, T 208/06, EU:T:2011:701, paragraph 144). 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 10 October 2014, Soliver v Commission, T 68/09, EU:T:2014:867, paragraph 63, and of 9 September 2015, Toshiba v Commission, T 104/13, EU:T:2015:610, paragraph 53).

155 The undertaking concerned must therefore be aware of the general scope and the essential characteristics of the cartel as a whole (judgments of 10 October 2014, Soliver v Commission, T 68/09, EU:T:2014:867, paragraph 64, and of 9 September 2015, Toshiba v Commission, T 104/13, EU:T:2015:610, paragraph 54).

156 It is in the light of that case-law that it is necessary to assess whether there are sufficiently convincing indicia to consider that the applicant was aware that the information came directly from TSST and PLDS, and not, as the applicant asserts, from Dell.

157 First, it should be noted that the expressions 'TSST mentioned' and 'PLDS mentioned' in the Sony Optiarc internal email of 14 February 2008 (contested decision, recital 216; see paragraph 129 above) suggest that Sony Optiarc had direct conversations with TSST and PLDS.

158 Second, the content of the information attributed to TSST and PLDS in that internal email is such that the applicant must have understood that it would have been provided by those companies only to another competitor, and not to Dell. Logically, TSST would not have told Dell that it intended to be the 'price leader'. Similarly, PLDS would not have told Dell that it would 'not be aggressive' on price during the bidding process. Such information about how TSST and PLDS intended to conduct their bidding seems to be intended more for their competitors in the context of an unlawful cartel than for Dell.

159 Third, as the Commission observes, Sony Optiarc was normally careful to point out when information came from Dell rather than from competitors. It may thus be read in the same email chain, which the applicant itself provided in an annex to its application: 'Please see the expectation from [Dell] as follows'; '[Dell] is proposing for a change in the coming [internet negotiation] for April [total available market], please changes as follows'; '[Dell] Price Target'; '[Dell] has given confirmation'; '[Dell] is requesting'; and '[Dell] mention[s] that [it] will check the HLDS price'. It may therefore be argued that, in its internal email of 14 February 2008, Sony Optiarc would have mentioned Dell as being the source of the information if that had been the case.

160 Fourth, it follows from two Sony Optiarc emails sent to the applicant, provided by the Commission in an annex to its defence, that the applicant knew that Sony Optiarc had recently had contacts with the other suppliers to obtain information. In the first email, dated 30 October 2007, Sony Optiarc asked the applicant what it knew about the status of a bidding process for Dell: 'Can you help to check with the other suppliers and see if they are telling the same story?'. In the second email, of 13 December 2007, Sony Optiarc indicated to the applicant its estimates of competitor prices in a bidding process for Dell and again asked the applicant: 'Appreciate if you can also help to verify the prices'. Consequently, the applicant must have been able to understand that the Sony Optiarc internal email of 14 February 2008 was referring to contacts with competitors.

161 It must be held that those indicia constitute a sufficiently convincing body of evidence, for the purpose of the case-law referred to in paragraph 151 above, to prove that the applicant must have understood that the information came not from Dell, but from competing suppliers.

162 In those circumstances, the first part of the third plea must be rejected.

Second part, alleging no participation in the infringement between 10 April and 27 October 2008

163 In the applicant's submission, with regard to the period between 10 April and 27 October 2008, the Commission adduced no evidence showing that the applicant engaged in any anticompetitive contacts concerning Dell, the evidence adduced for that period relating solely to HP. Moreover, that evidence is sparse and indicates only sporadic contacts.

- HP's RFQ for Slim ODDs for MPC of April 2008 (recitals 223 to 225 of the contested decision)

164 According to the applicant, the evidence relating to HP's RFQ for ODDs for MPC of April 2008 referred to in recital 223 et seq. of the contested decision (see paragraph 131 above) does not show that it had anticompetitive contacts or that it participated in the alleged infringement. In that regard, the applicant observes that the contested decision, so far as the applicant is concerned, mentions only a single possible bilateral contact with PLDS, referred to in an internal PLDS email of 10 April 2008. In addition, the applicant disputes the Commission's assertion, in recital 225 of the contested decision, that it informed PLDS on 9 April 2008 of the price which it had submitted in the first round of HP's RFQ. According to the applicant, which claims to have no record of any contact with PLDS at that time, the Commission ought to have sought a statement from PLDS in order to corroborate that assertion. As for the internal PLDS email of 10 April 2008 referred to in recital 225 of the contested decision, it is clear from the wording of that email ('[I was] not able to get the Round [No] 2 Rank [No] 1 & 2 pricing [be]cause [HP] does not share') that HP disclosed the prices submitted by the suppliers ranked third, fourth and fifth. That is also proved by another internal PLDS email, of 9 April 2008, stating that '[HP] told [PLDS] that the ranking [No] 4 is [USD] 25.80'. Consequently, in the applicant's submission, even if it had informed PLDS of the price which it had submitted in the first round, that would only have allowed PLDS to understand, in the circumstances, which supplier had bid one particular price which it already knew had been submitted. As PLDS had been informed by an anonymous contact that the applicant did not want to be last in the RFQ, such an exchange is innocuous from the aspect of competition law. As for the two internal PLDS reports of April 2008 referred to in recital 225 of the contested decision and supplied by the applicant in the annexes to its application, which indicate that PLDS quoted its price to HP on the basis of the price information received from the applicant, there is no evidence to support that assertion. The first report does not state the price that PLDS intended to quote; and the second related to a different product from that referred to in recital 225 of the contested decision.

165 The Commission disputes the applicant's arguments.

166 The first item of evidence, which is mentioned in recital 225 of the contested decision, is a PLDS internal email of 10 April 2008. It states: 'Per the conversation with [the applicant] yesterday, [it] put [USD] 26.30 for SATA drive. [Its] intention is not to be [ranked fifth]. Hence, [the applicant] will no[t] move [its] price in round 2'.

167 It must first be stated that that email does indeed mention a direct discussion between the applicant and PLDS.

168 Next, as regards the PLDS email to which the applicant refers, which was one hour earlier, it must be stated that it does not make the exchange between PLDS and the applicant less significant. That email simply indicated that PLDS had failed to obtain the second round pricing of the first and second-placed bidders from HP, but, contrary to what the applicant suggests, it does not follow that PLDS obtained the prices of the third-, fourth- and fifth-placed bidders. This is similarly not proved by the PLDS internal email of 9 April 2008 cited by the applicant.

169 In any event, it should be noted that the PLDS internal email of 9 April 2008, mentioned by the applicant itself, stating '[HP] told [PLDS] that the ranking [number] 4 is [USD] 25.80', also states that, 'after checking with [the applicant], their price is [USD] 25.50 - [USD] 26.00'.

170 The applicant was therefore in contact with PLDS, to discuss pricing, that is to say information which it cannot claim has no competitive significance.

171 The second item of evidence, which is also mentioned in recital 225 of the contested decision, is the PLDS internal email of 9 April 2008. That internal email states as follows:

'Please confirm back to [HP] that PLDS agree[s] to provide [USD] 26.00 with 400K award for PATA drive. [HP] told [PLDS] that the [fourth-placed ranking] is [USD] 25.80. After checking with [the applicant], their price is [USD] 25.50 - [USD] 26.00. And per their understanding, we are the only one who is above [USD] 26.00. Hence, we agree the deal.'

172 That PLDS internal email thus clearly sets out the pricing information received from the applicant and expressly states that PLDS's final price was determined on the basis of that information. By informing PLDS that it as well as the other suppliers were offering a price under or equal to USD 26.00, the applicant indisputably provided information distorting competition.

173 In that regard, the applicant's argument that the same product is not involved is unconvincing. That internal email and the other internal email also cited in recital 225 of the contested decision refer expressly to PATA drives.

174 The applicant's arguments concerning HP's RFQ for Slim ODDs for MPC of April 2008 must therefore be rejected.

- HP's Slim DVDRW RFQ for MPC of July 2008 (recital 242 of the contested decision)

175 In the applicant's submission, the evidence relating to HP's Slim DVDRW RFQ for MPC of July 2008 cannot be relied on in order to show that the applicant had anticompetitive contacts or that it participated in the alleged infringement. The email of 2 July 2008 from PLDS to HLDS referred to in recital 242 of the contested decision was not cited as evidence in the statement of objections, but appeared only in a footnote and in Annex 1 to the statement of objections, which did not allow the applicant to assess the credence which the Commission gave to that evidence. According to the judgment of 9 July 2009, Archer Daniels Midland v Commission (C 511/06 P, EU:C:2009:433, paragraph 94), the Commission cannot merely annex to the statement of objections the documents and items of evidence from which it took the facts on which it relied in the contested decision without referring to those facts expressly in the wording itself of that statement. Furthermore, HP itself sent information to its suppliers concerning that specific procurement event and the applicant produced an email of 26 June 2008 on that subject.

176 The Commission disputes the applicant's arguments.

177 It should be noted that the applicant does not challenge the information given in recital 242 of the contested decision, relating to the email from PLDS to HLDS of 2 July 2008, stating that it 'manage[d] to [talk] to [the applicant, which] did not make any price movement. [Its] price is still the same'.

178 In any event, the applicant does not therefore dispute that it was in direct contact with PLDS and that it discussed pricing.

179 Moreover, it should be noted that, in paragraph 278 of the statement of objections, which appears in the section entitled 'Main evidence regarding individual cartel participants', in the sub-heading relating to the applicant, it is indicated that the applicant was directed to read the 'the evidence outlined in Annexes I and III'.

180 That Annex I consists of a table of incidents. Item 130 of the table gives the following information: the contacts took place in July 2008; they related directly to HP's electronic request for quotation for MPCs for slim ODDs, of 25 to 28 July 2008; the applicant is specifically mentioned, together with HLDS and Sony Optiarc; the evidence included document 'ID 1479/703-704'.

181 In fact, the applicant does not claim that it did not understand where the information was, but only that that reference did not 'allow' the applicant 'to assess the credence which the Commission gave to [it]'.

182 However, it must be held that the applicant cannot rely on its own negligence, by not referring to the document given in reference, to claim that it was not in a position to assess that 'credence'.

183 In that regard, the applicant refers to paragraphs 74 to 94 of the judgment of 9 July 2009, Archer Daniels Midland v Commission (C 511/06 P, EU:C:2009:433), in which the Court held that the Commission had failed to indicate, in the statement of objections, the facts on which it relied, namely, in particular, the fact that the undertaking concerned was a ringleader, when it merely annexed certain reports that expressed the subjective views of their authors that the undertaking was a ringleader.

184 However, in the present case, it must be pointed out that the statement of objections, as was noted above, provided specific information on the allegations concerning HP's electronic procurement event for MPC in relation to Slim ODDs of July 2008.

185 The reference made by the applicant to the judgment of 9 July 2009, Archer Daniels Midland v Commission (C 511/06 P, EU:C:2009:433), is therefore ineffective.

186 As regards the applicant's argument that HP itself sent information to its suppliers concerning that specific procurement event and in respect of which the applicant produces one of its internal emails of 26 June 2008, reporting a conversation of the applicant with HP, it must be stated that, even if the conversation reveals that the applicant received certain information from HP about its competitors, that information, which is imprecise and whose purpose, it may be assumed, was to encourage the applicant to offer a better price, is not capable of calling into question the anticompetitive nature of the contact between PLDS and the applicant.

187 The applicant's arguments concerning HP's Slim DVDRW RFQ for MPC of July 2008 must therefore be rejected.

- HP's mainstream RFQ of October 2008 (recital 249 of the contested decision)

188 According to the applicant, the evidence relating to HP's mainstream RFQ of October 2008 does not show that the applicant had anticompetitive contacts or that it participated in the alleged infringement, contrary to the assertions in recital 249 of the contested decision. The evidence cited by the Commission indicates only that an employee of the applicant met an HLDS employee and there is no evidence that the applicant participated in any other contacts or exchanges. Furthermore, the Commission has again failed to take account of the fact that in that procurement event the applicant's most important source of information was HP itself, as is shown by the email exchange cited in recital 249 of the contested decision, which the applicant produces in an annex to its application.

189 The Commission disputes the applicant's arguments.

190 In the first place, it must be stated that the applicant did indeed have a direct contact with HLDS, as is apparent from a first internal email of the applicant of 20 October 2008, cited in recital 249 of the contested decision:

'Last week I met [an] HLDS guy. According to what he said, their best price is around [USD] 24[.]65 eventually. However, they won't go that far in the 1st round as well and might provide a higher price ...'

191 As is also noted in recital 249 of the contested decision, the applicant consequently contemplated in that email proposing a price ranging between USD 24.70 and USD 24.75.

192 Moreover, slightly later that day, a second internal email of the applicant, in reply to the first internal email, provided by the applicant in an annex to its application, did indeed take into account the information provided in the first email, since it mentions a price ranging between 'USD 24.70 and USD 24.75'.

193 It therefore follows clearly from those emails that the applicant did indeed take into account the information given by HLDS.

194 In that regard, it is irrelevant that that contact with HLDS might have been the only contact during that period, as the applicant claims.

195 In the second place, it should be pointed out that the second internal email, referred to in paragraph 192 above, states: 'When you have lunch with [HP], you can give him some hint and try to get other suppliers' [information]'.

196 That latter statement might lend weight to the applicant's argument that HP provided certain information to the suppliers.

197 However, in any event, the fact that HP might have provided certain confidential information to the suppliers cannot exonerate them from their responsibility for having exchanged confidential information among themselves.

198 The applicant's arguments regarding HP's mainstream RFQ of October 2008 must therefore be rejected.

199 In those circumstances, the second part of the third plea must also be rejected.

Third part, alleging that the applicant did not participate in an infringement on 28 October 2008

200 According to the applicant, the email from Sony Optiarc, cited in recital 257 of the contested decision, is insufficient to prove that the applicant engaged in an anticompetitive contact. The applicant explains that it was reasonable for it to think that the information given to it by Sony Optiarc came from Dell. Nor can the applicant be considered to have participated tacitly in an infringement, since, according to the Commission's own argument, its participation in the cartel ceased on the same day that it received the email in question.

201 The Commission disputes the applicant's arguments.

202 The Sony Optiarc email of 28 October 2008, mentioned in recital 257 of the contested decision as an email in which the applicant was copied, states that 'PLDS will launch their refresh model in [January 2009] at [USD] 25.00. (They will use this price as [the] start price for [January 2009]'.

203 That information appears to be certain. There is therefore every reason to suppose that it comes from the party concerned, that is to say PLDS, rather than from Dell. Indeed, apart from the fact that it does not seem to be in Dell's interest to distort competition by revealing the price offered by a supplier, as the Commission notes, it appears unlikely that Dell might have known the 'start' price offered by PLDS for a model which would be marketed only 3 months later.

204 Moreover, the context in which that email of 29 October 2008 occurs, namely the contacts between the applicant and PLDS in April 2008 (contested decision, recital 223) and in July 2008 (contested decision, recital 242), as well as with HLDS in October 2008 (contested decision, recital 249), together with its knowledge of the contacts of Sony Optiarc with PLDS and TSST in February 2008 (contested decision, recital 216), could logically only have led the applicant to think that the information of 28 October 2008 relating to the price set by PLDS came from PLDS.

205 As regards the applicant's argument that, according to the Commission's own argument, its participation in the cartel ceased on the same day that it received the email in question, it must be stated that the Commission does not contend that its participation ceased on that day, but finds merely that that is the last date for which the Commission has clear evidence of the applicant's involvement in anticompetitive contacts.

206 Since 28 October 2008 was the last date for which the Commission has clear evidence, it is logical that the Commission uses that date as that of the end of the cartel.

207 The applicant's line of argument regarding the third part of the third plea must therefore be rejected.

Fourth part, alleging insufficient proof that the applicant was aware of the overall plan of the cartel or of its general scope and essential characteristics

208 According to the applicant, the evidence on the file does not support the conclusion that there was 'an overall plan with a single aim' (contested decision, recitals 354 to 356) namely 'to distort the normal operation of competition for ODD procurement events organised by Dell and HP' (contested decision, recital 355). The Commission's investigation has revealed - at worst - only bilateral contacts. According to the Commission itself, the cartel always pursued two separate objects, one relating to sales to Dell and the other relating to sales to HP. Furthermore, proof that the applicant was aware of that overall plan was not produced in the contested decision. In that regard, the applicant lists the four pieces of evidence itemised in recital 368 of the contested decision and reiterates the arguments already set out in the preceding parts to dispute the first three pieces of evidence. As for the fourth piece of evidence, according to which the emails preceding the applicant's involvement in the infringement show that it was aware of 'the whole cartel' before 14 February 2008, the applicant maintains that although the Commission refers in that regard to three pieces of evidence by reference to their 'ID number' in a footnote, it does not state what those pieces of evidence consist of, what their subject matter is, who provided them or the conclusions which it reached on the basis of that evidence, and has provided no explanation of the fact that those emails date from 3 or 4 years before the applicant allegedly began to participate in the infringement on which the contested decision is based.

209 The Commission disputes the applicant's arguments.

210 In the first place, as regards the applicant's argument that proof of the existence of an overall plan has not been established, it is necessary to recall, in addition to the case-law cited in paragraphs 150 to 154 above, that the concept of 'single infringement' assumes conduct adopted by different parties that pursues the same anticompetitive aim. The fact that the various actions of the undertakings form part of an 'overall plan', because their identical object distorts competition within the common market, is decisive for the finding of a single infringement (see judgment of 13 September 2013, Total Raffinage Marketing v Commission, T 566/08, EU:T:2013:423, paragraph 265 and the case-law cited).

211 However, the criteria of coordination and cooperation necessary for determining the existence of a concerted practice, far from requiring an actual 'plan' to have been worked out, are to be understood in the light of the concept inherent in the provisions of the TFEU and the EEA Agreement on competition, according to which each economic operator must determine independently the policy which it intends to adopt on the market of the EU and of the EEA and the conditions which it intends to offer to its customers (see judgment of 2 October 2003, Krupp Hoesch v Commission, C 195/99 P, EU:C:2003:528, paragraph 59 and the case-law cited).

212 While it is true that this requirement of independence does not deprive operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact between them, the object or effect of which 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 and the volume of the said market (see judgment of 2 October 2003, Krupp Hoesch v Commission, C 195/99 P, EU:C:2003:528, paragraph 60 and the case-law cited).

213 It follows from the foregoing that the applicant did indeed have contacts with the other suppliers which were intended, according to the wording of recital 383 of the contested decision, 'to distort the normal operation of competition for ODD procurement for Dell and HP'.

214 In that regard, the fact that the anticompetitive conduct affected two customers, Dell and HP, is irrelevant. The Commission's assertion in that recital 383 of the contested decision that 'knowing competitor's information for one customer aided the parties in tailoring their strategy for the other customer too' is confirmed by HLDS which had stated, as that recital reports, that 'keeping track of the situation of each supplier with all major customers served several purposes ... For instance, if one of HLDS' rivals had won [fewer] orders (or supplied less volume) than expected with customer X that rival supplier might be more aggressive than usual in an event around the same time organised by customer Y'.

215 In the second place, as regards the applicant's argument that proof that it was aware of that overall plan was not produced in the contested decision, it is necessary to recall, in addition to the case-law cited in paragraphs 153 to 155 above, that, in order to establish the applicant's participation in the single and continuous infringement relating to ODDs, the Commission cannot simply establish the anticompetitive nature of the contacts established between the applicant and the other ODD suppliers, between 14 February and 28 October 2008, but must also prove that the applicant knew or could reasonably be considered to have known (i) of the fact that the contacts formed part of an overall plan and were designed to contribute to the achievement of the objective pursued by the overall cartel and (ii) of the general scope and the essential characteristics of that cartel (see, to that effect, judgment of 9 September 2015, Toshiba v Commission, T 104/13, EU:T:2015:610, paragraph 55).

216 In the present case, it follows from the foregoing that the applicant participated in several bilateral anticompetitive contacts with other ODD suppliers.

217 Thus, on 14 February 2008, the applicant knowingly received information regarding TSST and PLDS through Sony Optiarc on their bidding intentions in the upcoming Dell reverse internet negotiation. In April 2008, it was established that the applicant had engaged in contacts with PLDS in relation to a procurement event organised by HP. In July 2008, the applicant again engaged in contacts with PLDS to discuss another HP request for quotations. In October 2008, the applicant had bilateral contacts in relation to two HP procurement events with at least HLDS. Lastly, on 28 October 2008, the applicant knowingly received bidding information from PLDS and HLDS.

218 Accordingly, on the basis of those five items of evidence, taken as a whole, the Commission was entitled, in recital 354 of the contested decision, to find that applicant had shared information with the other suppliers about strategy as to the price or ranking in forthcoming procurement events in order to coordinate their conduct.

219 It was thus fully entitled to find, in recitals 355 and 357 of the contested decision, that the applicant had intentionally contributed to the single anticompetitive and economic aim to distort the normal operation of competition for ODD procurement events organised by Dell and HP by exchanging information with respect to defining essential parameters such as price and ranking dictating volume allocation as well as with respect to other commercially sensitive information and, in recital 368 of the contested decision, that the applicant was aware of the other parties' involvement in the ODD cartel throughout the period of its participation.

220 Lastly, as regards the applicant's argument relating to the emails prior to the infringement period which were cited in recital 368 of the contested decision, it must be pointed out that, in any event, the Commission did not rely on those emails in order to find the applicant liable.

221 The third part of the third plea must therefore be rejected.

222 It follows from all the foregoing that the third plea must be rejected.

Fifth plea, alleging manifest errors of fact and of law in the calculation of the amount of the fine and breach of the obligation to state reasons

223 In support of this plea, the applicant puts forward four parts. Moreover, in this plea, the Commission requests that the Court increase the amount of the fine imposed on the applicant.

First part, alleging errors of fact and of law in the calculation of the basic amount, and failure to state reasons

224 First, the applicant observes that, in recital 528 of the contested decision, the Commission stated that when calculating the amount of the fine it had used a proxy for the annual value of sales that was based on 'sales of ODDs for notebooks and desktops invoiced to Dell and HP entities located in the EEA', whereas in recital 529 of the contested decision it stated that in the applicant's case that proxy 'also include[d] the sales of ODDs intended for HP's and Dell's notebooks and desktops that were made to ... Sony Optiarc'. That statement is incorrect, as the applicant's fine is based only on sales to Sony Optiarc. The applicant never invoiced any sales to Dell or HP during the period of its alleged participation in the infringement. Consequently, the Commission has not explained why the applicant's sales to a third party, almost all of which were invoiced and delivered outside the EEA, had the effect of 'captur[ing] the effects of the cartel on competition in the EEA', as stated in recital 528 of the contested decision. Second, in the applicant's submission, the Commission has breached the 'principle of international comity'. As almost all of the applicant's sales were made to Sony Optiarc in Japan, Taiwan and the United States, the rule ne bis in idem prevents the competition authorities in Taiwan, where the applicant is established, or in Japan, where it sold the majority of the ODDs, from imposing a fine on it. Third, the Commission's assumption, stated in recital 540 of the contested decision, that '[the applicant's] pricing policy must have been affected by the anticompetitive contacts' that form the basis of the alleged cartel has no basis in the facts and the Commission's reasoning in that respect is insufficient. Fourth, there is no justification for calculating the amount of the applicant's fine by reference to all of its sales to Dell and HP during the period in question. To impose a fine based on sales in respect of which no infringement was committed would be unjust and would exceed the limits set by Regulation No 1/2003.

225 The Commission disputes the applicant's arguments.

226 As regards the applicant's first argument, according to which (i) there is an inconsistency between recitals 528 and 529 of the contested decision and (ii) the Commission has not explained why the applicant's sales to a third party, almost all of which were invoiced and delivered outside the EEA, had the effect of 'captur[ing] the effects of the cartel on competition in the EEA', it should first of all be noted that recital 528 sets out the general principle, valid for all the addressees of the contested decision, that, in order to reflect the reality of the cartel, the value of sales was calculated on the basis of sales of ODDs for notebooks and desktops and invoiced to HP and Dell entities located in the EEA.

227 As the applicant observes and the Commission has confirmed, in the applicant's case, there were no direct sales to Dell and HP during the period in question.

228 Recital 529 of the contested decision states that, in the case of Lite-On and the applicant, the annual sales taken into consideration also include sales of ODDs intended for HP and Dell notebooks and desktops made to Sony and Sony Optiarc respectively.

229 It is thus apparent from recitals 528 and 529 of the contested decision that the Commission took into account, in the applicant's case, sales invoiced to Dell and HP entities in the EEA, of which there were none in the present case, and included the applicant's sales to Sony Optiarc. There is therefore no inconsistency.

230 In that regard, it should be pointed out that if that were not the case, an undertaking could evade the prohibition on cartels simply by setting up arrangements to sell to their end-customers through an intermediary.

231 Moreover, it should be noted that, in recital 540 of the contested decision, it is stated that in reply to a request for information from the Commission, the applicant provided the Commission with sales data for ODDs sold via Sony Optiarc to Dell and HP entities in the EEA. The applicant was thus aware of the location of the end customers of ODDs that it delivered to Sony Optiarc and cannot now claim that those sales were almost all invoiced and delivered outside the EEA and that it does not understand why those sales were taken into account.

232 As regards the applicant's second argument, that the contested decision is contrary to the 'principle of international comity', it should first of all be noted that the applicant adduces no evidence to show that almost all its sales were made in Japan, Taiwan and the United States. In addition, the applicant has not demonstrated the existence of ongoing proceedings by the Taiwanese, US or Japanese competition authorities. Its argument is therefore purely hypothetical.

233 Moreover, in any event, it should be borne in mind that the principle non bis in idem does not apply to situations in which the legal systems and competition authorities of non-member States might be called upon to intervene within their own jurisdiction (judgment of 29 June 2006, Showa Denko v Commission, C 289/04 P, EU:C:2006:431, paragraph 56).

234 Furthermore, there is no other principle of law obliging the Commission to take account of proceedings and penalties to which the applicant may be subject in non-member States (see, to that effect, judgment of 29 June 2006, Showa Denko v Commission, C 289/04 P, EU:C:2006:431, paragraph 57).

235 In that regard, it must be stated that there is no principle of public international law that prevents the public authorities, including the courts, of different States from trying and convicting the same natural or legal person on the basis of the same facts as those for which that person has already been tried in another State. In addition, there is no public international law convention under which the Commission could be obliged, upon setting a fine under Article 23(2) of Regulation No 1/2003, to take account of fines imposed by the authorities of non-member States pursuant to their competition law powers (judgment of 29 June 2006, Showa Denko v Commission, C 289/04 P, EU:C:2006:431, paragraph 58).

236 As regards the applicant's third argument, that the Commission merely assumes, in recital 540 of the contested decision, that the anticompetitive contacts affected the applicant's pricing policy, it is sufficient to note that it follows from the foregoing that the applicant was not merely a supplier that negotiated its price with Sony Optiarc independently of the price charged to Dell and HP, but that on the contrary it participated actively in discussions with other competing suppliers. Moreover, those discussions were not limited, contrary to what the applicant claims, to specific Dell or HP procurement events, but also concerned, as is apparent from the first and third pleas, exchanges of information on the overall strategy of the cartel participants, such as prices and volumes, rankings of suppliers or supply constraints. The applicant cannot claim that such information is not capable of 'affecting' its pricing policy.

237 Lastly, as regards the applicant's fourth argument, that there is no justification for calculating the amount of the applicant's fine by reference to all of its sales to Dell and HP during the period in question, it should be borne in mind that the fine was imposed on it in relation to its participation in the single and continuous infringement as a whole, and not merely for the specific contacts that it had with competitors.

238 In addition, it is inevitable, in cartel cases, which by their very nature are secret, that some of the documents showing each of the manifestations of anticompetitive practices will not be discovered. In the present case, it would indeed be impossible to find evidence in relation to each of the specific contacts in which the applicant may have engaged with competitors (see, to that effect, judgment of 16 June 2011, Team Relocations and Others v Commission, T 204/08 and T 212/08, EU:T:2011:286, paragraph 65).

239 Lastly, it is settled case-law that the proportion of the turnover accounted for by the goods in respect of which the infringement was committed gives a proper indication of the scale of the infringement on the relevant market. In particular, the turnover in the products which were the subject of a restrictive practice constitutes an objective criterion giving a proper measure of the harm which that practice does to normal competition (see judgment of 16 June 2011, Team Relocations and Others v Commission, T 204/08 and T 212/08, EU:T:2011:286, paragraph 66 and the case-law cited).

240 The first part of the fifth plea must therefore be rejected.

Second part, alleging failure to use the best available figures on the value of the applicant's sales

241 According to the applicant, the 'proxy for the annual value of sales' used by the Commission in recital 527 of the contested decision artificially inflated the amount of the fine imposed on it. The Commission did not need to use such a proxy, since the applicant provided it with the precise value of all of those sales during the whole of 2008. The Commission thus breached point 15 of the Guidelines, according to which it is to use the 'best available figures'. The applicant explains that in order to arrive at the value of sales in 2008, the Commission annualised sales between March and September 2008 (inclusive) for Dell and sales between May and September 2008 (inclusive) for HP. If the fine had been calculated by reference to the applicant's actual sales in 2008, it would have been around EUR 1.5 million less. In addition, the applicant emphasises that in reality if it had participated in the cartel for a full year, the amount of its fine would have been lower than that imposed on it by the Commission. The contested decision should therefore be annulled in so far as it concerns the applicant or, in the alternative, the amount of its fine should be recalculated.

242 The Commission disputes the applicant's arguments.

243 It should be observed that the self-limitation of the Commission's discretion arising from the adoption of the Guidelines is not incompatible with the Commission's maintaining a substantial margin of discretion. The Guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with the provisions of Regulation No 1/2003, as interpreted by the EU Courts (see judgment of 9 September 2015, Samsung SDI and Others v Commission, T 84/13, not published, EU:T:2015:611, paragraph 214 and the case-law cited).

244 Thus, the Court has already held, in a case in which the applicants took issue with the Commission for having departed from the rule laid down in point 13 of the Guidelines, that, since the applicants had not shown that the Commission had erred, the latter had not exceeded the limits of its margin of discretion in choosing to apply an alternative method (judgment of 9 September 2015, Samsung SDI and Others v Commission, T 84/13, not published, EU:T:2015:611, paragraph 215).

245 It should also be added that the Commission's consistent practice of taking account, for the purposes of determining the starting amount of fines, of turnover for the last full year of the infringement, has been accepted in the case-law (see, to that effect, judgment of 16 November 2000, Sarrió v Commission, C 291/98 P, EU:C:2000:631, paragraphs 85 to 87).

246 In the present case, as the applicant explained, the Commission annualised sales between March and September 2008 (that is 7 months) for Dell and sales between May and September 2008 (that is 5 months) for HP.

247 The applicant does not call into question the principle of annualising the starting amount, but proposes that all sales made during 2008 be taken into account, including the months during which it did not commit an infringement, namely January, November and December.

248 However, that method appears to be inappropriate, since it would lead to the imposition of a fine based on sales made during periods in which no infringement was found, whereas the Commission was able to use data limited to the infringement period.

249 Logically, the Commission could not use the applicant's sales in the 'last full business year' of its infringement, because its infringement lasted only around 8 months.

250 In addition, as the Commission states in its defence, the applicant cannot be entitled to a lower fine simply because it achieved lower sales when it was not breaking the law.

251 In those circumstances, the Commission did not exceed the limits of its margin of discretion in finding that, in order better to reflect the actual impact of the cartel, it was appropriate to use an annual average calculated on the basis of the actual value of sales made by the undertakings during the full calendar months of their respective participation in the infringement.

252 Accordingly, the second part of the fifth plea must be rejected.

Third part, alleging breach of the principle of equal treatment in the calculation of the basic amount

253 The applicant observes that, whereas the fines imposed on PLDS, HLDS, TSST and Sony were based on the value of those undertakings' direct sales to Dell and HP, in the applicant's case the Commission imposed a fine based on the value of its sales of ODDs to Sony Optiarc that were subsequently purchased by Dell and HP. The Commission thus treated the applicant differently from the other addressees of the contested decision, although it alleged that the applicant had participated in exactly the same infringement as those other addressees.

254 The Commission disputes the applicant's arguments.

255 It is apparent from the first and third pleas that the applicant participated in the infringement in the same way as the other addressees of the contested decision.

256 The Commission took account, in the contested decision, of the applicant's conduct in order to calculate the amount of its fine, just as it took account of the conduct of each of the other addressees of that decision in order to determine the amounts of their respective fines. The principle of equal treatment was thus respected.

257 In that regard, it would on the contrary be by reducing the amount of its fine, as the applicant proposes, on account of the presence of an intermediary, that is to say Sony Optiarc, in its sales to Dell and HP, that there would be arbitrary discrimination against other addressees.

258 Such an approach would also undermine the effectiveness of the prohibition on cartels, since it would then be sufficient for undertakings to find an intermediary to evade the principle of the prohibition on cartels.

259 The third part of the fifth plea must therefore be rejected.

Fourth part, alleging errors of assessment in the appraisal of gravity and mitigating circumstances

260 The applicant maintains that, as point 20 of the Guidelines establishes the principle that the penalty must fit the offence, it is unjustified, and contrary to the principle of equal treatment, that the Commission should have applied to the applicant the same percentage for gravity as that applied to the other addressees, which in some cases participated in 10 to 20 times as many anticompetitive contacts. The proper assessment of gravity is all the more important because, owing to the very short duration of the undertaking's infringement, the additional amount represents more than 60% of its total fine. Moreover, even if the Court does not consider that the applicant's limited participation merits a reduction in gravity for the purpose of calculating the amount of its fine, that limited participation should be regarded as a mitigating circumstance, as in other previous Commission decisions.

261 The Commission disputes the applicant's arguments.

262 First, as regards the applicant's argument that the other addressees of the contested decision participated in 10 to 20 times more anticompetitive contacts than it did, it should be recalled that, as was found in paragraph 236 above, the applicant participated in exchanges of information on the overall strategy of the participants. Such conduct pursued the same anticompetitive objective as that of the other addressees of the contested decision.

263 Moreover, it should be noted that the applicant has not shown that the other addressees of the contested decision were guilty of each of the instances of conduct listed by the applicant, and the Commission has not, furthermore, alleged this.

264 The applicant cannot therefore rely on the fact that it did not engage in certain instances of conduct in which other addressees might have engaged in order that it may be considered that its participation was less serious. In that regard, the fact that, for the applicant, the additional amount represents 60% of the amount of its total fine cannot call that conclusion into question.

265 Lastly, as regards the Commission's previous decisions to which the applicant refers, in any event, it should be recalled that the Commission's practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters (judgment of 16 September 2013, Nynäs Petroleum and Nynas Petróleo v Commission, T 482/07, not published, EU:T:2013:437, paragraph 338 and the case-law cited).

266 It follows from all of the foregoing considerations that the arguments put forward by the applicant in the context of this part of the fifth plea are insufficient to prove that the Commission's assessment of the gravity of the infringement at issue is in any way vitiated by error.

267 Furthermore, those arguments of the applicant do not support the conclusion that the basic amount of the fine imposed on the applicant, as determined by the Commission in accordance with the method set out in the Guidelines, exceeds what is reasonable.

268 The fourth part of the fifth plea must therefore be rejected.

269 It follows from the foregoing that the fifth plea must be rejected and, consequently, the applicant's action must be dismissed in its entirety.

The Commission's request for an increase in the amount of the fine

270 In its defence, the Commission explains that when calculating the amount of the fine to be imposed on the applicant it chose to exclude all sales of ODDs made to Dell and HP that were incorporated into servers. In order to make that deduction, the Commission relied on the estimates provided by the applicant, according to which at least 10% of its sales of ODDs had been incorporated into servers by Dell. Immediately after the adoption of the contested decision, however, Dell informed the Commission of the exact figures, according to which less than 1% of ODDs had been incorporated into servers. Ultimately, the fine imposed on the applicant in the contested decision is EUR 40 000 lower than the fine that ought to have been imposed on it on the basis of the correct value of the sales figures. In order to impose an appropriate penalty on the applicant for its infringement and to ensure equal treatment of the addressees of the contested decision, the Commission therefore asks the Court to make use of its unlimited jurisdiction and to set the fine imposed on the applicant at EUR 7 186 000.

271 The applicant disputes the Commission's arguments.

272 It must be borne in mind that the Court has power to assess, in the context of its unlimited jurisdiction under Article 261 TFEU and Article 31 of Regulation No 1/2003, the appropriateness of the amount of the fines. In the context of its unlimited jurisdiction, the powers of the EU judicature are not limited to declaring the contested decision void, as provided in Article 264 TFEU, but allow it to vary the penalty imposed by that decision (see judgment of 8 October 2008, Schunk and Schunk Kohlenstoff-Technik v Commission, T 69/04, EU:T:2008:415, paragraph 242 and the case-law cited).

273 Thus, as the Commission states, the EU judicature is therefore empowered, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission's and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see judgment of 8 October 2008, Schunk and Schunk Kohlenstoff-Technik v Commission, T 69/04, EU:T:2008:415, paragraph 243 and the case-law cited).

274 Accordingly, although the exercise of unlimited jurisdiction is most often requested by applicants in the sense of a reduction of the fine, there is nothing preventing the Commission from also referring to the EU judicature the question of the amount of the fine and from applying to have that fine increased (judgment of 8 October 2008, Schunk and Schunk Kohlenstoff-Technik v Commission, T 69/04, EU:T:2008:415, paragraph 244).

275 Thus, it is for the General Court, in the exercise of its unlimited jurisdiction, to assess, on the date on which it adopts its decision, whether the applicant received a fine whose amount properly reflects the gravity of the infringement in question (see judgment of 27 September 2012, Shell Petroleum and Others v Commission, T 343/06, EU:T:2012:478, paragraph 117 and the case-law cited).

276 Lastly, as the Commission observes in its pleadings, the amount of the fine cannot be maintained when it is the result of taking into account a factually incorrect matter (see judgment of 7 June 2011, Arkema France and Others v Commission, T 217/06, EU:T:2011:251, paragraph 274 and the case-law cited).

277 In the present case, the applicant provided the Commission with its estimate in particular by an email of 28 September 2015. Dell provided its estimate by an email of 21 October 2015, namely the day on which the Commission adopted the contested decision.

278 In that regard, it should be recalled that, according to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (judgment of 12 December 2014, Eni v Commission, T 558/08, EU:T:2014:1080, paragraph 39 and the case-law cited).

279 It should first of all be noted that both the estimate submitted by the applicant and that submitted by Dell were provided by simple emails, in reply to the Commission's emails, and did not contain either the signatures or names of the persons responsible for the estimates.

280 Next, it should be noted that although, in support of the finding that less than 1% of ODDs had been incorporated into servers by Dell, that company's email specified that that figure was 0.4% by revenue, 0.5% by cost, and 0.7% by quantity, it gave no explanation in relation to the method of calculation which enabled it to arrive at that figure.

281 As regards the applicant's email, it stated only that at least 10% of its ODDs had been incorporated into servers by Dell, but did not give any further explanations as to the method used either.

282 Consequently, although the estimate provided by Dell might appear to be more substantiated, it is not, however, sufficiently reliable for it to be established with certainty that the estimate initially submitted by the applicant constituted a factually incorrect matter within the meaning of the judgment of 7 June 2011, Arkema France and Others v Commission (T 217/06, EU:T:2011:251, paragraph 274). The applicant must therefore be given the benefit of the doubt.

283 Accordingly, the Commission's request that the amount of the fine be increased must be rejected.

Costs

284 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Nevertheless, under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.

285 In the present case, the applicant has been unsuccessful in its action, while the Commission has been unsuccessful in its request that the amount of the fine be increased. Since that request was submitted in the context of the fifth plea, the applicant must be ordered to bear its own costs and to pay four fifths of the costs incurred by the Commission.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1. Dismisses the action;

2. Dismisses the European Commission's request that the amount of the fine of Quanta Storage, Inc. be increased;

3. Orders Quanta Storage to bear its own costs and to pay four fifths of the costs incurred by the Commission.