On June 16, 2022, the Court of Justice set aside four judgments of the General Court and partially annulled the Commission’s decision in the Optical Disc Drives cartel case.
The Court of Justice found—contrary to the General Court—that the Commission had breached the appellants’ rights of defense, and that the Commission’s decision was insufficiently reasoned. The judgments related principally to the Commission’s characterization of the conduct as several standalone infringements in addition to a single and continuous infringement (“SCI”), and to the General Court’s assertion that an SCI necessarily consists of multiple separate infringements.
The Court of Justice nevertheless upheld the Commission’s decision on the SCI and fine calculation, because the issues identified with respect to the additional standalone infringements did not affect the Commission’s SCI finding, and none of the appellants’ other arguments on fine calculation and the SCI finding were sufficient to warrant a different outcome.
On October 21, 2015, the Commission fined five optical disc drive (“ODD”) suppliers €116 million for participating in a cartel. The Commission found that those companies had colluded, through a network of bilateral contacts, to fix procurement tenders between at least June 23, 2004 and November 25, 2008. While the SO had characterized the conduct as an SCI, the Commission’s decision added that this consisted of several separate infringements.
ODD suppliers challenged this “dual characterization” before the General Court, alleging (among other things): (i) that the Commission had breached their rights of defense by failing to put the characterization of the conduct as several separate infringements to them in the administrative procedure (and giving them an opportunity to comment); and (ii) that the Commission’s decision had failed to properly explain this characterization. The General Court disagreed, holding that an SCI presupposes a “complex of practices”, each of which necessarily amounts to a distinct infringement. Accordingly, by alleging an SCI, the Commission had also—by definition—alleged the characterization of the conduct as a series of discrete infringements. In other words, the suppliers had been put on notice.
The 2022 Court of Justice judgments
The Court of Justice held that an SCI presupposes “a complex of practices”, but that these practices may (or may not) amount to separate infringements. The General Court had therefore erred in law by stating that an SCI always consists of distinct infringements. Accordingly, the Commission should have put both characterizations of the conduct—as an SCI and as several distinct infringements—to the ODD suppliers during the administrative procedure and substantiated its reasoning in its final decision.
Specifically, the Court of Justice held that the SO had failed to set out the necessary elements to enable the appellants to understand that the Commission would allege both an SCI and separate infringements, and to defend themselves on this point.
The Court of Justice set aside the General Court’s judgments and partially annulled the Commission’s decision to the extent it found that the appellants had been guilty of separate infringements, on the grounds that the Commission had breached the ODD suppliers’ rights of defense and the Commission’s own duty to give reasons for its decision. The Court of Justice nevertheless upheld the fine imposed by the Commission because the SCI finding had been properly put to the defendants during the administrative procedure, and the Commission’s decision provided sufficient reasons on this point.
Similarly to the Qualcomm judgment discussed above, these judgments underline the importance of the SO as a procedural instrument safeguarding undertakings’ rights of defense, and in particular their ability to effectively make their arguments during the administrative procedure with respect to the objections ultimately retained in the decision. The Commission breaches an undertaking’s defense rights where this is not the case, and the decision upholds an objection that it had not set out in the SO, or that it had set out in a way that did not enable the addressees to make their arguments during the administrative procedure.
The judgments also underline, however, that a breach of defense rights will not lead to the annulment of a decision or a fine reduction if the decision can be maintained—while respecting procedural rights—on other grounds. In other words, any procedural errors must taint the decision fully in order to be of any practical consequence.
Separately, these judgments clarify the relationship between an SCI and individual infringements, which may (but do not necessarily) occur in parallel. Where this is the case, the Commission may not just rely on the SCI finding. Rather, it must prove the unlawful nature of each instance of conduct which it characterizes as a distinct infringement, and set out such objections in the SO in a way that enables the addressees to defend themselves on this point before the final decision. The decision must, in turn, adequately state the reasons for such a “dual characterization”.
 Sony Corporation and Sony Electronics v. Commission (Case C-697/19 P) EU:C:2022:478; Sony Optiarc and Sony Optiarc America v. Commission (Case C-698/19 P) EU:C:2022:480; Quanta Storage, Inc. v. Commission (Case C-699/19 P) EU:C:2022:483; Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. v. Commission (Case C-700/19 P) EU:C:2022:484.
 Three more cartel participants received immunity under the 2006 Leniency Notice. See Commission Press Release IP/15/5885, “Commission fines suppliers of optical disc drives € 116 million for cartel,” October 21, 2015.
 Optical Disc Drives (Case COMP/AT.39639), Commission decision of October 21, 2015.
 See, e.g., Sony & Others v. Commission (Case T-762/15) EU:T:2019:515, paras. 236-240 and 254.
 See, e.g., Sony & Others v. Commission (Case C-697/19 P) EU:C:2022:478, para. 67.
 Ibid., para. 68.
 As the Court of Justice recalled, the SO must clearly set out the essential matters on which the Commission relies at that stage of the proceedings—e.g., the facts, the legal characterization thereof, and the corresponding evidence.
 In doing so, the Court of Justice rejected a number of additional arguments from the appellants against the SCI finding, as well as on the calculation of the fines.