On June 3, 2021, Advocate General Pitruzzella delivered an Opinion in the Optical Disk Drives case, finding that the Commission breached the appellants’ rights of defense, but that the fines imposed should nevertheless stand.[1]


On October 21, 2015, the Commission fined five companies a total of €116 million for colluding in bids for sales of optical disk drives to Dell and Hewlett-Packard.[2] The decision found that the collusion was effected through a network of parallel bilateral contacts between 2004 and 2008. On July 12, 2019, the General Court dismissed all five appeals against the Commission decision.[3] Four of the five participants lodged further appeals with the Court of Justice, predominantly concerning whether a single and continuous infringement (“SCI”) necessarily consists of several discrete infringements.

During the administrative procedure and in the SO, the Commission had classified the contacts between the competitors as an SCI. In practical terms, this alleviates the evidentiary burden on the Commission: instead of proving that each contact was a distinct infringement, the Commission need only to show that each contact contributed to an “overall plan.” The Commission decision, however, subsequently stated that the SCI in question necessarily consisted of several discrete infringements. The appellants argued that the classification of the contacts as several discrete infringements had not been put to them during the administrative procedure, breaching their rights of defense. But the General Court rejected this argument.

AG opinion

AG Pitruzzella disagreed with the General Court. He explained first that the standard of proof required to maintain an SCI is distinct from—and lower than—the standard of proof required to maintain discrete infringements. He then noted that an SCI does not necessarily consist of discrete infringements. Were this the case, the Commission could evade the higher standard of proof required to characterize conduct as a series of discrete infringements by instead characterizing it as an SCI.

AG Pitruzzella therefore concluded that an SCI is not the sum of discrete infringements, that the Commission should have put this dual characterization of the conduct to the appellants during the administrative procedure, and that its failure to do so breached their rights of defense. AG Pitruzzella did not, however, consider this breach sufficient to annul the Commission decision—or even reduce the fines imposed. This is because the Commission had adduced sufficient evidence of an SCI, which determined the ultimate fine.

AG Pitruzzella’s Opinion is at variance with a number of other recent appeals, where shortcomings identified by the EU Courts in the Commission’s investigation and reasoning had led to the Courts reducing or annulling the fines imposed.[4]

[1]      Sony and Others v. Commission (Joined Cases C-697/19 to C-700/19 P), Opinion of AG Pitruzzella, EU:C:2021:452.

[2]      Optical Disk Drives (Case AT.39639), Commission decision of October 21, 2015. The five companies were Hitachi-LG Data Storage, Sony, Toshiba, Quanta, and Sony Optiarc (a joint venture between Sony and NEC).

[3]      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.

[4]      See, e.g., NKT Verwaltung and NKT v. Commission (C-607/18 P) EU:C:2020:385.