CJEU, 7th chamber, December 19, 2019, No C-582/18 P

THE COURT (Seventh Chamber),

1 By its appeal, Viscas Corp. asks the Court of Justice to set aside, in part, the judgment of the General Court of the European Union of 12 July 2018, Viscas v Commission (T 422/14, not published, EU:T:2018:446; 'the judgment under appeal'), by which the General Court dismissed its action seeking, first, annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 - Power Cables) ('the decision at issue'), in so far as the decision at issue concerns the appellant, and, second, a reduction of the fine imposed on it by that decision.

Legal context

Regulation (EC) No 1/2003,

2 Article 23(2) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), provides as follows:

'2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

(a) they infringe Article [101 or 102 TFEU] ...

...

3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.'

The 2006 Guidelines

3 The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; 'the 2006 Guidelines') state, in points 2 and 4, that, so far as concerns the setting of fines, 'the Commission must have regard both to the gravity and to the duration of the infringement' and that 'fines should have a sufficiently deterrent effect'.

4 It is clear from points 9 to 11 of those guidelines that, without prejudice to point 37 thereof, the method to be used by the European Commission for the setting of fines consists of two steps, namely (i) the determination of a basic amount and (ii) the adjustment of that amount upwards or downwards if appropriate. In determining the basic amount of the fine, the Commission is, first of all, to determine, in accordance with points 13 to 18 of those guidelines, the value of sales to be taken into account. Under point 19 of those guidelines, the basic amount of the fine is to be related to a proportion of the value of those sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. In addition, under point 25 of the 2006 Guidelines, the Commission may include in the basic amount a sum known as 'the entry fee', in order to deter undertakings from taking part in infringements of EU competition law.

5 Point 13 of the 2006 Guidelines is worded as follows:

'In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking's sales of goods or services to which the infringement directly or indirectly ... relates in the relevant geographic area within the [European Economic Area (EEA)]. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement ...'

6 Point 18 of the 2006 Guidelines states:

'Where the geographic scope of an infringement extends beyond the EEA (e.g. worldwide cartels), the relevant sales of the undertakings within the EEA may not properly reflect the weight of each undertaking in the infringement. This may be the case in particular with worldwide market-sharing arrangements.

In such circumstances, in order to reflect both the aggregate size of the relevant sales within the EEA and the relative weight of each undertaking in the infringement, the Commission may assess the total value of the sales of goods or services to which the infringement relates in the relevant geographic area (wider than the EEA), may determine the share of the sales of each undertaking party to the infringement on that market and may apply this share to the aggregate sales within the EEA of the undertakings concerned. The result will be taken as the value of sales for the purpose of setting the basic amount of the fine.'

7 Point 37 of those guidelines states:

'Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.'

Background to the dispute and the decision at issue

8 The background to the dispute, as set out in paragraphs 1 to 20 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.

9 The appellant, Viscas, is a Japanese company owned in equal shares by Furukawa Electric Co. Ltd ('Furukawa') and Fujikura Ltd. On 1 October 2001, when Viscas was formed, those companies transferred to it their activities in the design and sale of underground and submarine power cables for projects outside Japan, while retaining their production capabilities and their sales in Japan and abroad to Japanese customers. At the beginning of 2005, Furukawa and Fujikura transferred their respective power cable manufacturing facilities and certain sales to the appellant, while retaining their sales in Japan to certain customers.

10 In Article 1 of the decision at issue, the Commission held that the appellant and 25 other undertakings, including Furukawa and Fujikura, had participated in a cartel ('the cartel'), constituting a single and continuous infringement of Article 101 TFEU and of Article 53 of the EEA agreement, in the sector for (extra) high voltage underground and/or submarine power cables ('the infringement at issue').

11 According to the decision at issue, the cartel took the form of a composite whole consisting of two main configurations, namely:

- a configuration that included the European undertakings, generally referred to as 'R members', the Japanese undertakings, referred to as 'A members', and, lastly, the South Korean undertakings, referred to as 'K members', which made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers ('the A/R configuration'). That allocation followed an agreement relating to the 'home territory', under which the Japanese and South Korean producers would refrain from competing for projects in the European producers' 'home territory', while the European producers stayed out of the Japanese and South Korean markets. In addition, the parties allocated projects in the 'export territories', namely the rest of the world with the notable exception of the United States;

- a configuration that involved the allocation of territories and customers by the European producers for projects to be carried out within the European 'home' territory or allocated to the European producers ('the European configuration').

12 According to the decision at issue, the appellant participated in the cartel from 1 October 2001 to 28 January 2009.

13 Having regard to the role played by the various participants in the cartel in its implementation, the Commission classified them into three groups, namely (i) the undertakings which formed the core group of the cartel, (ii) the undertakings which were not part of the core group but which nevertheless could not be regarded as fringe players in the cartel, and (iii) the fringe players in the cartel. According to the Commission, the appellant belonged to the first of those groups.

14 In calculating the amount of the fines, the Commission applied the method set out in the 2006 Guidelines.

15 First, as regards the basic amount of the fines, the Commission determined the value of sales using the method set out in point 18 of the 2006 Guidelines. It then selected the proportion of the value of sales which would reflect the gravity of the infringement in question. In that regard, the Commission considered that the infringement, by its very nature, was among the most harmful restrictions of competition, which justified a gravity percentage of 15%. The Commission also increased the gravity percentage by 2% for all addressees of the decision at issue on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all of the EEA. The Commission also considered that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the A/R configuration, the European undertakings had allocated cable projects among themselves in the context of the European configuration. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings.

16 The basic amount of the fine thus calculated came to EUR 34 992 000 for the appellant.

17 Second, as regards adjustments to the basic amounts of the fines, the Commission found there to be no aggravating circumstances or extenuating circumstances as regards the appellant.

18 Under Article 2(p) of the decision at issue, the Commission imposed a fine of EUR 34 992 000 on the appellant, jointly and severally with Furukawa and Fujikura.

The procedure before the General Court and the judgment under appeal

19 By application lodged at the Registry of the General Court on 11 June 2014, the appellant brought an action for annulment of the decision at issue in so far as it concerns the appellant, and for a reduction of the fine imposed on it.

20 In support of its action, the appellant put forward seven pleas in law. Among those pleas in law, the third and fourth alleged, inter alia, infringement of the principle of equal treatment in the calculation of the basic amount of the fine. In addition, the appellant asked the General Court to exercise its unlimited jurisdiction and significantly reduce its fine.

21 By order of 25 June 2015, the General Court granted Furukawa's application for leave to intervene in support of the form of order sought by the appellant.

22 By the judgment under appeal, the General Court dismissed the action in its entirety.

23 As regards the alleged infringement of the principle of equal treatment, the General Court rejected the appellant's arguments on the basis of two considerations. First, the General Court held, in paragraph 192 of the judgment under appeal, that the appellant's argument that the application by the Commission of the method of calculation provided for in point 18 of the 2006 Guidelines rather than that provided for in point 13 thereof had the effect of favouring the European producers, was incorrect, since, in the light of the nature of the infringement at issue, which consisted, inter alia, of restricting Japanese producers' access to the EEA market, the share of sales actually made by the European producers in the EEA could not be used as the basis for assessing their weight in the cartel. The use of the share of sales actually made by the European producers in the EEA would have led, in the present case, to their weight in the cartel being overvalued and their being penalised in excess of their participation in that cartel. It could not therefore be held that the difference between the value of the sales actually made by the European producers in the EEA and the value allocated to them pursuant to point 18 of those guidelines demonstrated an advantage conferred on them by the Commission. Second, the General Court held, in paragraph 193 of the judgment under appeal, that the appellant's argument that the use of the method laid down in point 18 of the 2006 Guidelines did not take into account the greater degree of gravity of the European producers' conduct, was unfounded on the ground that it was apparent from those guidelines that the determination of the value of sales to use for the calculation of the basic amount of the fine did not take into account the gravity of the conduct of the participants in the cartel.

Forms of order sought by the parties before the Court of Justice

24 By its appeal, the appellant claims that the Court should:

- set aside the judgment under appeal in so far as it rejected the plea in law alleging infringement of the principle of equal treatment as regards the calculation of the amount of the fine imposed on the appellant and ordered it to pay the costs;

- annul Article 2 of the decision at issue in so far as the amount of the fine imposed on it was set at EUR 34 992 000;

- set the amount of the fine at EUR 19 595 520; and

- order the Commission to pay the costs.

25 The Commission contends that the Court should:

- dismiss the appeal; and

- order the appellant to pay the costs.

26 Furukawa claims that the Court should:

- uphold the appellant's appeal; and

- order the Commission to pay the costs incurred in the present appeal and in the proceedings before the General Court.

The appeal

27 In support of its appeal, the appellant relies, as it clarified at the hearing before the Court of Justice, on a single ground of appeal divided into two parts, the first of which alleges that the General Court made an error in law by rejecting its plea alleging infringement of the principle of equal treatment and, the second, failure to state reasons.

Arguments of the parties

28 By the first part of its ground of appeal, the appellant, supported by Furukawa, claims that in the present case all the undertakings covered by the decision at issue were treated in the same way as regards the determination of the sales to be taken into account in calculating the fines, even though their respective situations were objectively different. Unlike the appellant, the European producers participated not only in the A/R configuration but also in the European configuration.

29 If the cartel had been limited to the European configuration alone, the basic amounts of the fines would have been calculated by reference to the method provided for in point 13 of the 2006 Guidelines, namely on the basis of actual sales within the EEA. The fact that, in the present case, the infringement at issue included an additional international cartel should logically have led to the fines imposed on the undertakings involved in both configurations being higher. However, the method applied by the Commission in the decision at issue, the validity of which was confirmed by the judgment under appeal, led to the opposite outcome, since the European undertakings' hypothetical sales within the EEA, which the Commission applied, were on average 44% lower than their actual sales in that area. As a result, the European producers were treated more favourably by receiving lower fines for having participated in two cartels rather than one.

30 According to the appellant, the principle of equal treatment dictates that, in setting fines, the Commission may not use a method that confers a discriminatory advantage on some producers by undervaluing their weight in the cartel in question. Faced with a composite infringement which neither point 13 nor point 18 of the 2006 Guidelines covers, it was the Commission's responsibility to devise a method that, consistent with the principle of equal treatment, was capable of measuring the relative weight of each of the producers in the cartel.

31 The Commission was wrong to have taken the view in the decision at issue, the validity of which was confirmed by the judgment under appeal, that for the purposes of calculating the fines against the participants in the cartel it could rely on the method set out in point 18 of the 2006 Guidelines concerning international cartels, provided that it applied to the result obtained a higher gravity percentage in respect of the undertakings involved in both the configurations of the cartel. According to the appellant, this resulted in an infringement of the principle of equal treatment, since the determination of the value of sales and the setting of the gravity percentage perform different functions in the setting of the basic amount of the fine.

32 In any event, the application of a 2% higher gravity percentage for the undertakings involved in both configurations of the cartel reduced only marginally the significant preferential treatment they received by the fact that the hypothetical sales and not the actual sales of the European producers in the EEA were taken into account.

33 Moreover, in the appellant's view, the General Court made an error in law by refusing to exercise its unlimited jurisdiction to reduce the fine imposed on the appellant by an amount corresponding to the discriminatory advantage obtained by the addressees of the decision at issue that participated in both configurations of the cartel, namely a reduction of 44% or EUR 15 571 440.

34 By the second part of its ground of appeal, the appellant claims that the judgment under appeal is vitiated by a failure to state reasons, in so far as it cannot, logically, without breaching the principle of equal treatment, be inferred from the General Court's reasoning in paragraphs 192 and 193 of the judgment under appeal that the Commission was fully entitled to use the method set out in point 18 of the 2006 Guidelines.

35 First, according to the appellant, the General Court's reasoning in paragraph 192 of the judgment under appeal is manifestly incorrect. Such reasoning would have been correct only if the infringement at issue had been limited to the A/R configuration. The General Court failed to take into account the fact that that configuration was not the only component of the infringement. In particular, the General Court did not explain how the fact that the infringement at issue consisted 'inter alia' of an international cartel, which is only one of two configurations of that cartel, justified the Commission's failure to take any account of the other component, namely the European configuration, in determining the relative weight in the cartel of the various producers concerned. The present case concerns a situation similar to that which gave rise to the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C 580/12 P, EU:C:2014:2363), namely a situation in which a significant portion of the value of sales of certain undertakings were excluded from the calculation of the basic amount of the fine, which had the effect of artificially minimising the economic significance of the infringement found to exist in that case and to confer a significant advantage on the undertakings that committed that infringement.

36 Second, as regards paragraph 193 of the judgment under appeal, the General Court rejected an argument which the appellant had not raised.

37 The Commission contests those arguments. It maintains that the first part of the single ground of appeal is based on the assumption that the appellant and the European producers were not involved in the same infringement. However, both the decision at issue and the judgment under appeal clearly state that the infringement at issue was the result of a single and complex cartel consisting of two main configurations. Since that finding has not been contested by the appellant, the Commission takes the view that the first part of that ground of appeal should be rejected as inadmissible or, at least, as ineffective. It is, in any event, unfounded.

Findings of the Court

The second part of the single ground of appeal

38 As regards the second part of the single ground of appeal, alleging failure to state reasons, which it is appropriate to examine in the first place, it must be borne in mind that, as is apparent from paragraphs 190 and 191 of the judgment under appeal, the appellant claimed before the General Court that the application of the method provided for in point 18 of the 2006 Guidelines did not correctly reflect the relative weight of the participants in the cartel where, as in the present case, the European producers did not merely abstain from entering the domestic market of the Japanese and South Korean producers, but also divided the market in the EEA among themselves. The appellant argues that, in such a situation, the application of that method leads to the weight of the European producers in the cartel being undervalued and, accordingly, the weight of the Japanese and South Korean producers being overvalued, which constitutes an infringement of the principle of equal treatment in determining the amount of the fine.

39 The General Court addressed that argument in paragraphs 192 and 193 of the judgment under appeal.

40 In paragraph 192 of the judgment under appeal, the General Court took the view that that argument relied on the incorrect premiss that the application of the method laid down in point 18 of the 2006 Guidelines favoured the European producers by reducing the share of the sales actually made in the EEA which should have been allocated to them pursuant to point 13 of those guidelines. In paragraph 193 of the judgment under appeal, the General Court stated that it was necessary to draw a distinction between, on the one hand, the determination of the proportion of the value of sales to be used in calculating the basic amount of the fine and, on the other hand, the gravity of the conduct of the participants in the cartel. In those observations, the General Court stated, to the requisite legal standard, the reasons for its decision to reject the appellant's plea alleging infringement of the principle of equal treatment.

41 In so far as the appellant argues that that reasoning is flawed, it must be recalled that the obligation to state reasons provided for in Article 296 TFEU constitutes an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgment of 14 September 2016, Trafilerie Meridionali v Commission, C 519/15 P, not published, EU:C:2016:682, paragraph 40 and the case-law cited).

42 As regards the appellant's argument that in paragraph 193 of the judgment under appeal the General Court addressed an argument that the appellant had not raised, such allegedly supplementary reasoning cannot, in any event, constitute a failure to state reasons.

43 In the light of the foregoing, the second part of the single ground of appeal must be rejected as unfounded.

The first part of the single ground of appeal

44 As regards the Commission's claim that the first part of the single ground of appeal is inadmissible since it relies on the incorrect premiss that the appellant had not been involved in the same infringement as the European producers, it must, from the outset, be noted that, although the appellant referred to the existence of two cartels in its appeal, it confirmed, in its reply, that it did not contest the fact that it had participated in a single and continuous infringement, resulting from one and the same cartel composed of two configurations.

45 In any event, the incorrect nature of that premiss, given that the appellant did not draw any legal consequences from it in support of its plea alleging infringement of the principle of equal treatment, has no effect on the admissibility of that plea.

46 It follows that the objection of inadmissibility must be rejected.

47 As regards substance, it must be borne in mind that the principle of equal treatment is a general principle of EU law enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. In accordance with the settled case-law of the Court, that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C 580/12 P, EU:C:2014:2363, paragraph 51).

48 In the present case the appellant submits that, by calculating the basic amounts of all the fines which were imposed in the decision at issue on the basis of the method set out in point 18 of the 2006 Guidelines, the Commission treated different situations in the same way, without objectively justifying such uniform treatment.

49 It is therefore necessary to examine, in the first place, whether the appellant and the other Japanese and South Korean participants in the cartel were in a different situation to that of the European producers.

50 Indeed, that was the case.

51 As the General Court found in paragraph 17 of the judgment under appeal, the Commission considered, in paragraphs 997 to 1010 of the decision at issue, that the conduct of the European undertakings had been more detrimental to free competition than that of the other undertakings, inasmuch as, in addition to their participation in the A/R configuration, the European undertakings had allocated power cable projects among themselves in the EEA in the context of the European configuration. More specifically, in recital 999 of the decision at issue, the Commission stated that the latter configuration '[had been] carried out exclusively by the European producers'. It follows that the Commission had itself taken the view that there was a difference between, on the one hand, the situation of the appellant and the other Japanese and South Korean participants, which participated in the A/R cartel configuration and, on the other hand, that of the producers who participated both in that configuration and in the European configuration.

52 That finding is not affected by the fact that recital 999 of the decision at issue is in the section of the decision examining the gravity of the conduct of the undertakings in question, since it is apparent from that section that, in justifying the application of a 2% higher gravity percentage for the European producers, the Commission relied on a difference between the situation of those European producers and that of the Japanese and South Korean participants in the cartel. That finding is also not called into question by the Commission's argument that, by guaranteeing that it would stay out of the European market, the appellant was a silent but necessary partner of the European producers in the more specific agreements to share the European market, since it is not apparent from the decision at issue that, in the present case, the Commission relied on such a consideration to justify its approach as regards the calculation of the fines to be imposed on the participants in the cartel.

53 It follows that the appellant was not in the same situation as the European producers as regards its participation in the infringement at issue.

54 However, contrary to what the appellant submits, it cannot be considered that the General Court made an error in law by finding that the Commission had not infringed the principle of equal treatment merely because it applied the method provided for in point 18 of the 2006 Guidelines for the purpose of calculating the fines for all the participants in the cartel.

55 Since the infringement at issue constitutes a single infringement committed as part of one and the same cartel, a point that is not contested by the appellant, it was for the Commission to calculate appropriate fines to sanction that infringement, not fines relating to one or the other of the configurations of that cartel. As the General Court correctly stated in paragraph 192 of the judgment under appeal, the application in the present case of the method provided for in point 13 of the 2006 Guidelines would have led to the weight of the European producers in the cartel being overvalued and to those producers being penalised beyond their participation in that cartel, since that cartel also consisted of a configuration going beyond the territory of the EEA, namely the A/R configuration. The application of the method provided for in point 13 of the 2006 Guidelines to all of the participants in the cartel would have resulted in the Japanese and South Korean participants having no fines or only small fines imposed on them.

56 It is true that, in addition to the A/R configuration, the geographical scope of which went beyond the territory of the EEA and for which both the European producers and the Japanese and South Korean producers were held liable in the decision at issue, the cartel consisted also of the European configuration, which covered in particular the territory of the EEA and which, according to the decision at issue, exclusively involved the European producers.

57 However, although the application of the method provided for in point 18 of the 2006 Guidelines did not allow the Commission to take into account the respective weight in the cartel of, on the one hand, the European producers and, on the other hand, the Japanese and South Korean producers, nothing prevented the Commission from taking it into account at another stage of the calculation, particularly when adjusting the basic amount in the light of aggravating and mitigating circumstances, or in the context of determining the value of sales to be used in calculating the basic amount of the fine, in order to ensure respect of the principle of equal treatment (see, to that effect, judgment of 26 January 2017, Zucchetti Rubinetteria v Commission, C 618/13 P, EU:C:2017:48, paragraph 56). It follows that it is possible to take into consideration different situations as regards the participation of an undertaking in an infringement of EU competition law at various stages of the calculation of the fine and not necessarily only at the stage at which the value of sales is determined.

58 In that regard, it must be borne in mind that, in the decision at issue, the gravity percentage applied by the Commission to the European producers was 2% higher than that applied by the Commission to the Japanese and South Korean producers. Therefore, the Commission did not treat the appellant in the same way as the European producers as regards the setting of fines. The appellant claims that that increase of gravity percentage for the European producers reduced only marginally the substantial advantage granted to them in the present case. However, that argument is based on the incorrect premiss, as is apparent from paragraph 55 above, that the alleged preferential treatment received by the European producers in the present case should have been determined in the light of the hypothetical fines that would have been imposed on them according to a calculation based on the method provided for in point 13 of the 2006 Guidelines.

59 That consideration is not called into question by the case-law established in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C 580/12 P, EU:C:2014:2363), relied on by the appellant. In the case that gave rise to that judgment, the Commission had calculated the basic amount of the fines on the basis of the method provided for in point 13 of the 2006 Guidelines. As the Court of Justice later clarified, the judgment under appeal in the context of that case was vitiated by an error of law in so far as the General Court had decided that the Commission had been fully entitled to exclude from that calculation the sales made with entities belonging to the same undertaking, thereby misapplying the method that the Commission had itself chosen in order to determine the amount of the fine (see, to that effect, judgment of 14 September 2017, LG Electronics and Koninklijke Philips Electronics v Commission, C 588/15 P and C 622/15 P, EU:C:2017:679, paragraph 95). By contrast, in the present case the appellant criticises the Commission not for a misapplication of the method provided for in point 18 of the 2006 Guidelines but for having made an error in applying that method in the same way as regards all the undertakings that participated in the cartel. It follows that, contrary to what the appellant submits, the claims it makes against the Commission in support of the present appeal are not analogous to those which gave rise to the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C 580/12 P, EU:C:2014:2363).

60 Lastly, as regards the appellant's argument that the General Court made an error in law by refusing to exercise its unlimited jurisdiction to reduce its fine by an amount corresponding to the discriminatory advantage allegedly obtained by the European producers, by that argument the appellant seeks to criticise the General Court for failing to draw what the appellant believes to be the logical conclusion from the infringement of the principle of equal treatment. However, since the appellant cannot rely on an infringement of that principle in the present case for the reasons set out in paragraphs 54 to 59 above, that argument must, accordingly, be rejected.

61 It is therefore also necessary to reject the first part of the single ground of appeal and, accordingly, the appeal in its entirety.

Costs

62 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings.

63 Since the appellant has been unsuccessful and the Commission has applied for an order for costs, the appellant must be ordered to bear its own costs and to pay those incurred by the Commission.

64 Under Article 184(4) of the Rules of Procedure, where the appeal has not been brought by an intervener at first instance, he may not be ordered to pay costs in the appeal proceedings unless he participated in the written or oral part of the proceedings before the Court. Where an intervener at first instance takes part in the proceedings, the Court may decide that he shall bear his own costs.

65 Since Furukawa participated in the proceedings before the Court, it must be held, in the circumstances of the present case, that it must bear its own costs.

On those grounds, the Court (Seventh Chamber) hereby:

1. Dismisses the appeal;

2. Orders Viscas Corp. to bear its own costs and to pay those incurred by the European Commission;

3. Orders Furukawa Electric Co. Ltd to bear its own costs.