On 9 July 2015, the Court of Justice handed down its judgment in the case InnoLux Corp v Commission in the Liquid Cristal Display ("LCD") case (C-231/14 P). The Court decided that when internal sales of cartelised goods are made outside the EEA, the Commission can take into account sales of downstream products containing the cartelised goods within the EEA, in setting the fines.
Under the Commission's 2006 Fining Guidelines, penalties are based on an undertaking's sales to which an infringement directly or indirectly relates in the relevant geographic area within the EEA. In the LCD case, which concerned a worldwide cartel infringement on the market for LCD panels, InnoLux had sold the cartelised product outside the EEA to its vertically integrated subsidiary. This subsidiary had subsequently incorporated the LCD panels in finished products and sold these products on the (non-cartelised) downstream market within the EEA. The question before the Court of Justice was whether InnoLux's downstream sales were indirectly related to the infringement, thus permitting the Commission to take into account a portion of those EEA sales in the calculation of the fine.
The Court of Justice established that InnoLux's downstream sales were not made on the product market concerned by the infringement but on the downstream market for finished products. Nevertheless, the Court followed the Commission's view that the sales to third parties on the downstream market within the EEA "up to the proportion of that value which corresponded to the value of the cartelised LCD panels that were incorporated into the finished products" could be taken into account.
The Court decided that not including those sales in the fine calculation would artificially minimize the economic significance of the infringement committed by an undertaking and grant an unjustified advantage to vertically-integrated companies like InnoLux, which incorporate cartelised goods into a finished product outside the EEA. The Court considered that vertically-integrated undertakings could benefit from horizontal price-fixing on an upstream market either by price increases on an upstream level or cost advantages on a downstream level.
The Court of Justice also dismissed InnoLux's argument that the upstream sales of the cartelised products outside of the EEA may be subject to penalties by other jurisdictions, and thus taking into account the sales of these same products downstream would lead to double punishment. The Court reiterated that none of the principles of law, including ne bis in idem, places an obligation on the Commission to take into account proceedings and penalties to which undertakings will be subjected in non-member States.
The judgment makes it clear that the Commission is allowed to interpret the concept of sales "directly or indirectly related to an infringement" broadly and may take into account sales on a downstream market that is itself not cartelised. In this way, sales outside the EEA can be pulled into the geographic scope of the Commission for the purpose of setting the fines.