On 19 December 2013, the Court of Justice of the European Union handed down the judgment in joined cases C-239/11 P, C-489/11 P, C-498/11 P (Siemens v. Commission, Mitsubishi Electric v. Commission and Toshiba v. Commission, jointly the "Appellants"), for an illegal collusive tendering cartel in the market for gas insulated switchgear ("GIS"). Although all of the Appellants' claims were dismissed, this judgment further highlights the interpretation of the Court of Justice in regards to Single and Continuous Infringement ("SCI") and the right to hear witnesses.
On appeal, the Court of Justice dismissed Toshiba's argument that in concluding that there was a SCI, the General Court should have examined whether the various instances of conduct had a single objective and constituted complementary conduct. Instead, the Court of Justice stated that although the GC should assess whether or not certain conduct forms part of an overall plan, the GC is not required to examine an additional condition of complementarity.
Furthermore, the Court of Justice confirmed that although evidence of a SCI may be interrupted for certain specific periods, it does not preclude a finding that the SCI was established during a "more extensive overall period", if there are objective and consistent indicia to support that the various acts "pursue a single purpose and fall within the framework of a single and continuous infringement".
Regarding the fundamental rights arguments brought forth by the Appellants, the Court's position on the right to hear witnesses is noteworthy. Siemens claimed under Article 6(1) and 3(d) of ECHR that it has the right to examine witnesses and that the General Court should have of its own motion given the opportunity to Siemens to question a specific witness. The Court of Justice confirmed that it is established in its jurisprudence that during the administrative procedure, the Commission is not required to afford undertakings the opportunity to examine witnesses. In addition, it is for the parties, not the GC of its own motion, to request by a measure of inquiry to examine incriminating witnesses. The right is also not absolute, as it is left to the GC's discretion to grant or deny the request, which is compatible with Articles 6 and 3 ECHR.
