On 9 March 2017, the Court of Justice delivered its judgment on the appeal of Samsung SDI and Samsung SDI (Malaysia) (together "Samsung") against the General Court's ("GC") ruling of 9 September 2015. The GC had earlier dismissed Samsung's appeal against the cathode ray tubes cartel decision from the European Commission [see our October 2015 Newsletter] and confirmed the fines imposed by the Commission.

The cathode ray tubes decision relates to two cartels concerning colour display tubes ("CDT") and colour picture tubes ("CPT"). The Court of Justice dismissed Samsung's appeal in its entirety and ordered Samsung to bear the costs. The Court held that the GC had given sufficient reasons for rejecting Samsung's argument that not all CPTs were the subject of the cartel during each year and as such those sales should have been excluded from the calculation of the fine. The Court of Justice found that the GC had correctly rejected this claim, as all CPTs were the subject of collusive contacts which constituted a single and continuous infringement. Under those circumstances, the fact that not all CPTs were the subject of the cartel during each separate year of the infringement did not constitute a reason to exclude the associated sales for fine calculation purposes.

Furthermore, Samsung was of the view that in calculating the fine regarding CDTs the GC had erroneously taken into account sales that were negotiated in South Korea, which should not be considered as sales made within the EEA. However, the Court of Justice found that the GC had not erred in law and that in determining the amount of sales within the EEA it was necessary to take all deliveries made in the EEA into account. The Court took the view that if Samsung's argument was accepted then an undertaking participating in an infringement could circumvent a significant part of a potential fine simply by negotiating its sales with its customers outside the EEA.

Finally, in response to the argument to reduce the fine, based on the erroneous assessment of Samsung's contribution to the leniency programme, the Court held that it could not substitute its own assessment for that of the GC regarding the amount of fines imposed. The Court could only do so if, following a claim by the appellant, it considered that the level of fine was inappropriate and excessive to the point of being disproportionate. However, Samsung did not bring the argument alleging that the fine was disproportionate before the Court.

This article was published in the Competition Law Newsletter of April 2017.