On July 12, 2019, the General Court rejected five appeals against a 2015 Commission decision imposing a total fine of €116 million on five cartel participants for colluding to rig optical disc drive (“ODD”) procurement tenders organized by Dell and Hewlett-Packard (“HP”). The judgment serves as a reminder of the discretion the Commission enjoys when imposing cartel fines, and the General Court’s tendency to defer to the Commission’s cartel policy.
On October 21, 2015, the Commission fined Hitachi-LG Data Storage (“HLDS”), Toshiba Samsung Storage Technology (“TSST”), Sony, Sony Optiarc and Quanta Storage (Philips, Lite-On and its joint venture PLDS jointly received full immunity) for engaging in parallel bilateral contacts that pursued a single plan to avoid competition in Dell’s and HP’s ODD procurement tenders for end-use in desktops and laptops. All five companies appealed to the General Court.
General Court appeal
The General Court dismissed the appellants’ claims. Most notably, the General Court rejected Sony Optiarc’s argument that the Commission had double-counted its revenues in the calculation of the value of sales. Sony Optiarc was selling the ODDs produced by Quanta Storage and passed-on all revenues (save for a small sales fee) obtained from Dell to Quanta Storage. The Commission has accounted for the entirety of the passed-on revenues in the value of sales of both Sony Optiarc and Quanta Storage. Sony Optiarc claimed that this approach effectively amounted to double- counting, and thus, a breach of the principle of equal treatment and proportionality (Sony raised the same claim vis-à-vis revenue pass-on under a separate agreement with Lite-On). Indeed, the Commission expressly deducted intra-cartel sales from the calculation of the value of sales in the Shrimps and Retail Food Packaging cartels, but it did not address the issue in this case nor state the reasons for its departure from past practice.
The General Court held that deducting the passed-on revenues from Sony Optiarc’s value of sales “would undermine the effectiveness of the prohibition on cartels” by allowing participants to reduce their amount of fines by simply associating themselves with another cartel participant.
The judgment serves as a reminder of the discretion the Commission enjoys when imposing cartel fines and the General Court’s tendency to defer to the Commission’s cartel policy. It remains to be seen how the General Court’s judgment would fare in the event of an appeal to the Court of Justice.
 Sony and Sony Electronics v. Commission (Case T-762/15) EU:T:2019:515; Sony Optiarc Inc. and Sony Optiarc America Inc v. Commission (Case T-763/15) EU:T:2019:517; Quanta Storage Inc v. Commission (Case T-772/15) EU:T:2019:519; Hitachi-LG Data Storage Inc. and Hitachi-LG Data Storage Korea Inc. v. Commission (Case T-1/16) EU:T:2019:514; and Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. v. Commission (Case T-8/16) EU:T:2019:522.
 Shrimps (Case COMP/AT.39633), Commission decision of November 27, 2013.
 Retail Food Packaging (Case COMP/AT.39563), Commission decision of June 24, 2015.