On 27 June 2012 the European Commission ("Commission") issued a statement announcing that it had re-imposed fines on Mitsubishi and Toshiba for their roles in the GIS cartel after the General Court quashed the original fining decision vis-à-vis these parties in July 2011 ( Cases T-113/07 and T-133/07)
The General Court found in relation to the initial fines that the Commission had breached the principle of equal treatment. When calculating cartel fines, the Commission - on the basis of its fining guidelines - determines the value of sales in order to establish the starting amount of the fine. It does this in relation to a so-called 'reference year'. In the initial decision the Commission had used a different reference year for Mitsubishi and Toshiba as it used for the other cartel participants.
The Commission defended this approach by referring to the fact that Mitsubishi and Toshiba had participated in the cartel through a joint venture for part of the duration of their participation. And that circumstance, according to the Commission, rendered it undesirable to use the same reference year for the companies tied up in the joint venture as it used for the other participants, since such approach would not express the fact that those companies had significantly diverging market shares. Therefore, for Mitsubishi and Toshiba, the Commission took a reference year prior to the establishment of the joint venture.
Although the General Court indicated that it supported the rationale behind the Commission's approach - i.e. to have the fines reflect the actual market position of the joint venture's parents - it did not agree with the Commission's methodology to accomplish this by using diverging reference years as this violated the principle of equal treatment. Accordingly, the General Court proceeded to annul the fines.
The Commission has now re-imposed fines - albeit lower ones - taking into account the guidance of the General Court. According to the Commission, the new decision ensures that companies which have infringed EU competition law do not escape sanctions due to procedural shortcomings.
This proclamation was confirmed by the General Court judgment of 27 June 2012 in Bolloré (Case T-372/10). The Commission's original decision in that case had also been annulled because of procedural errors (in this case relating to the "statement of objections"). The Commission then readopted the decision against Bolloré in 2010. Bollloré appealed against that new decision on the basis of various procedural grounds. However, the General Court dismissed all of the appeals.