On 6 July 2017, the European Court of Justice (“ECJ”) has rejected Toshiba’s appeal against the judgment of the General Court of 19 January 2016 and upheld the €61.44 million fine imposed by the Commission against Toshiba (of which €4.65 million jointly and severally with Mitsubishi) for its participation in the gas insulated switchgear (“GIS”) cartel, as recalculated after the annulment on procedural grounds of the first Commission’s decision (the “Judgment”).
On 24 January 2007, the Commission imposed fines totalling €750.71 million on twenty European and Japanese companies for their participation in a cartel on the GIS market between 1988 and 2004. According to the Commission, the undertakings developed a quota system aimed at determining the market shares of each group and concluded an unwritten understanding to reserve the European market to European undertakings and the Japanese market to Japanese undertakings.
Toshiba and Mitsubishi Electric were fined €86.25 million and €113.92 million respectively and they were ordered to pay a further amount of €4.65 million joint and severally for the infringement committed by TM 
T&D Corp., a company jointly owned in equal shares by Toshiba and Mitsubishi and through which Toshiba had carried on its GIS business between October 2002 and April 2005. On 12 July 2011, the General Court annulled on procedural grounds the fines imposed on Toshiba and Mitsubishi but confirmed their participation in the cartel. The judgment of the General Court was upheld by the Court of Justice in a judgment of 19 December 2013.
Therefore, the Commission recalculated the fines imposed on Toshiba and Mitsubishi and fixed them at €56.79 million and €74.82 million respectively. The amount to be paid joint and severally by those two undertakings was again fixed at €4.65 million. The second Commission’s decision was upheld by the General Court by judgment of 19 January 2016. Mitsubishi did not bring an appeal and the fine of €79.47 million – of which €4.65 million to be paid jointly and severally with Toshiba – became final. However, Toshiba brought an appeal before the ECJ.
The Judgment dismisses Toshiba’s appeal and upholds the fine imposed by the Commission on Toshiba of €61.44 million, that becomes final. According to the ECJ, the General Court rightly held that Toshiba’s rights of defence were not infringed even if it did not receive a new statement of objections before the adoption of the second Commission’s decision. Moreover, the ECJ rejected Toshiba’s argument of a breach of the principle of equal treatment with respect to the determination of the amount of the fine on the basis that in 2003 it had no turnover of its own in the GIS sector. Similarly, the ECJ confirmed that Toshiba was not entitled to a reduction of the fine for not having taken part to the agreement of the European producers, because it was a mere consequence of its participation in the market sharing plan and it did not mean that its conduct was less serious than that of the European producers.
The text of the Judgment is available here: Toshiba v. Commission
