ORDER OF THE COURT (Sixth Chamber)
15 June 2012 (*)
(Appeals – Competition – Agreements, decisions and concerted practices – Market for the installation and maintenance of elevators and escalators – Fines – Parent company and subsidiaries – Imputability of the unlawful conduct)
In Case C‑493/11 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 September 2011,
United Technologies Corporation, established in Wilmington (United States), represented by A. Winckler and D. Gerard, lawyers, and by J. Temple Lang and C. Cook, Solicitors,
appellant,
the other party to the proceedings being:
European Commission, represented by A. Bouquet, R. Sauer and J. Bourke, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of U. Lõhmus, President of the Chamber, A. Rosas (Rapporteur) and A. Arabadjiev, Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following
Order
1        By its appeal, United Technologies Corporation (‘UTC’) requests the Court of Justice to set aside the judgment of the General Court of the European Union of 13 July 2011 in Cases T‑141/07, T‑142/07, T‑145/07 and T‑146/07 General Technic‑Otis and Others v Commission [2011] ECR II‑0000 (‘the judgment under appeal’), by which the General Court dismissed UTC’s action seeking annulment of Commission Decision C(2007) 512 final of 21 February 2007 relating to a proceeding under Article 81 [EC] (Case COMP/E-1/38.823 − Elevators and Escalators) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union on 26 March 2008 (OJ 2008 C 75, p. 19), or, in the alternative, reduction of the amount of the fine imposed on it by that decision.
Background to the dispute
2        In the contested decision, the Commission of the European Communities held that the following companies had infringed Article 81 EC:
–        Kone Belgium SA, Kone GmbH, Kone Luxembourg Sàrl, Kone BV Liften en Roltrappen and Kone Oyj;
–        Otis SA (‘Otis Belgium’), Otis GmbH & Co. OHG (‘Otis Germany’), General Technic-Otis Sàrl (‘GTO’), Otis BV (‘Otis Netherlands’), Otis Elevator Company (‘OEC’) (referred to, collectively, as the ‘Otis subsidiaries’) and General Technic Sàrl (‘GT’) as well as UTC;
–        Schindler SA, Schindler Deutschland Holding GmbH, Schindler Sàrl, Schindler Liften BV and Schindler Holding Ltd;
–        ThyssenKrupp Liften Ascenseurs NV, ThyssenKrupp Aufzüge GmbH, ThyssenKrupp Fahrtreppen GmbH, ThyssenKrupp Elevator AG, ThyssenKrupp AG, ThyssenKrupp Ascenseurs Luxembourg Sàrl and ThyssenKrupp Liften BV; and
–        Mitsubishi Elevator Europe BV (‘MEE’).
3        UTC is a world leader in the building systems and aerospace industries. OEC is a wholly-owned subsidiary of UTC which is based in the United States and carries out its activities in the elevator and escalator sector through national subsidiaries. Those subsidiaries include, in Belgium, Otis Belgium, in Germany, Otis Germany, in Luxembourg, GTO, and, in the Netherlands, Otis Netherlands. At the time of adoption of the contested decision, Otis Belgium had a 75% stake in GTO, the remaining 25% being held by GT (recitals 21 to 26 of the contested decision).
4        On 21 February 2007, the Commission adopted the contested decision, in which it stated that the undertakings to which the decision was addressed had participated in four single, complex and continuous infringements of Article 81(1) EC in four Member States by sharing the markets among themselves by agreeing or concerting to allocate tenders and contracts for the sale, installation, service and modernisation of elevators and escalators (recital 2 of the contested decision).
5        As regards the addressees of the contested decision, the Commission considered that, apart from the subsidiaries of the undertakings concerned in Belgium, Germany, Luxembourg and the Netherlands, the parent companies of those subsidiaries should be held jointly and severally liable for the infringements of Article 81 EC committed by their respective subsidiaries because they had been able to exercise decisive influence on the subsidiaries’ commercial policy during the time of the infringement and because it could be presumed that they had made use of that power (recitals 608, 615, 622, 627 and 634 to 641 of the contested decision). The parent companies of MEE, however, were not held jointly and severally liable for their subsidiary’s conduct because it could not be established that they had exercised decisive influence over its conduct (recital 643 of the contested decision).
6        In so far as it concerns UTC, Article 2 of the contested decision is worded as follows:
‘1.      For the infringement in Belgium referred to in Article 1(1), the following fines are imposed:
...
–        Otis: [UTC], [OEC] and [Otis Belgium], jointly and severally: EUR 47 713 050;
...
2.      For the infringement in Germany referred to in Article 1(2), the following fines are imposed:
...
–        Otis: [UTC], [OEC] and [Otis Germany], jointly and severally: EUR 159 043 500;
...
3.      For the infringement in Luxembourg referred to in Article 1(3), the following fines are imposed:
...
–        Otis: [UTC], [OEC], [Otis Belgium], [GTO] and [GT], jointly and severally: EUR 18 176 400;
...
4.      For the infringement in the Netherlands referred to in Article 1(4), the following fines are imposed:
...
–        Otis: [UTC], [OEC] and [Otis Netherlands], jointly and severally: EUR 0;
…’
Proceedings before the General Court and the judgment under appeal
7        Four actions were brought before the General Court, the first by GTO (T‑141/07), the second by GT (T‑142/07), the third by Otis Belgium, Otis Germany, Otis Netherlands and OEC (T‑145/07) and the fourth by UTC (T‑146/07). Those cases were the subject of separate written and oral procedures. However, after hearing the parties’ views in that regard, the General Court decided to join those cases for the purposes of the judgment, pursuant to Article 50 of the Rules of Procedure of the General Court.
8        The applicants at first instance put forward, in total, eight pleas in law. The first alleged infringement of the principles governing the attribution of liability for infringements of Article 81 EC, of the presumption of innocence, of the principle that penalties must be specific to the offender, of the principle of equal treatment, of the rights of the defence and of Article 253 EC in relation to the imputation to the parent companies of infringements committed by their various subsidiaries. The second alleged breach of the Commission notice entitled ‘Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty’ (OJ 1998 C 9, p. 3; ‘the 1998 Guidelines’) and infringement of the principles of proportionality and equal treatment, of the rights of the defence and of Article 253 EC in the determination of the starting amounts of the fines according to the gravity of the infringements. The third, advanced solely by Otis Belgium, Otis Germany, Otis Netherlands and OEC, alleged breach of the 1998 Guidelines and infringement of the principle of proportionality in the determination of the starting amount of the fine by reference to the duration of the infringement in Germany. The fourth, put forward by Otis Belgium, Otis Germany, Otis Netherlands, OEC and UTC, alleged breach of the 1998 Guidelines and infringement of the principle of proportionality in the application of a group multiplier for deterrence in the determination of the starting amounts of the fines. The fifth, advanced by GTO, Otis Belgium, Otis Germany, Otis Netherlands and OEC, alleged breach of the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) and infringement of Article 253 EC and of the principles of the protection of legitimate expectations, proportionality, fairness, equal treatment and of the rights of the defence in the assessment of their cooperation. The sixth, also advanced by GTO, Otis Belgium, Otis Germany, Otis Netherlands and OEC, alleged infringement of the principles of the protection of legitimate expectations and proportionality in the determination of the reduction of the fines granted for cooperation outside the 2002 Leniency Notice. The seventh, again put forward by GTO, Otis Belgium, Otis Germany, Otis Netherlands and OEC, alleged infringement of Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1). Finally, the eighth plea, advanced by GTO, alleged infringement of the principle of proportionality in the calculation of the final amount of the fines.
9        After rejecting each of those pleas in law, the General Court dismissed each of the actions and ordered the applicants at first instance to pay the costs.
Forms of order sought
10      UTC claims that the Court should:
–        set aside the judgment under appeal;
–        based on the elements available to it, partially annul the contested decision and reduce the amounts of the fines set forth therein, or, as it finds appropriate, set aside the judgment under appeal and refer the case back to the General Court for reconsideration of the relevant elements of fact, and
–        order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.
11      The Commission contends that the Court should:
–        dismiss the appeal;
–        in the alternative, dismiss the application for annulment of the contested decision; and
–        order UTC to pay the costs of these proceedings and those of the proceedings before the General Court.
The plea of inadmissibility raised by the Commission
Arguments of the parties
12      The Commission maintains that the General Court decided ultra petita in that it changed the form of order sought by UTC. As can be seen from paragraph 50 of the judgment under appeal, while UTC sought only annulment or reduction of the fines set in Article 2 of the contested decision, the General Court interpreted its first plea as also seeking annulment of Article 1 of that decision in so far as the Commission incorrectly made a finding of infringement imputed to the parent companies.
13      According to the Commission, if the Court of Justice were to consider that UTC’s action concerns only Article 2 of the contested decision, the appeal should be declared – in whole or in part – inadmissible.
14      In the reply, UTC argues that the Commission’s argument is obscure and that, in any event, it seeks the annulment of the judgment under appeal rather than the inadmissibility of the appeal. UTC also submits that this plea of inadmissibility should have been raised before the General Court and that, if this argument were to be interpreted as a cross-appeal, it would have to be declared out of time.
15      In the rejoinder, the Commission denies that it has raised a cross-appeal. It explains that its argument is a request to the Court of Justice to raise the question of its own motion and it leaves it to the wisdom of the Court to decide on that point. The Commission also contends that its argument is relevant for the admissibility of the appeal, since, should the Court set aside the judgment and decide itself on the initial action, it could not annul Article 1 of the contested decision without ruling ultra petita.
Findings of the Court
16      The plea of inadmissibility set out by the Commission is hypothetical and obscure inasmuch as it is based on the assumption that the General Court will be found to have exceeded its jurisdiction, the Commission not, however, having shown there to be any link between that hypothetical exceeding of jurisdiction and the admissibility of the appeal.
17      In principle, a plea that the General Court has exceeded its jurisdiction does not seem to have any purpose other than to secure the setting aside of the judgment under appeal. However, the Commission has not, in its heads of claim, requested that that judgment be set aside, either in whole or in part.
18      Furthermore, this objection to admissibility is obscure in that, as is indicated in paragraph 16 of this order, the Commission does not give an adequate and clear explanation of the link between the General Court allegedly exceeding its jurisdiction and the admissibility of the appeal.
19      Since the plea of inadmissibility is based on a hypothesis and, in any event, does not meet the requirements of clarity, precision and adequate reasoning enabling the Court of Justice to carry out its review, it must be rejected.
The appeal
20      Under Article 119 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal in whole or in part by reasoned order.
21      UTC raises two grounds of appeal. By its first ground of appeal, it challenges the conclusion in the judgment under appeal that the Commission was entitled to attribute to it liability for the conduct of GTO and OEC’s subsidiaries. By its second ground of appeal, it maintains that the General Court failed to address UTC’s plea at first instance alleging that the Commission was in breach of its obligation to apply equal treatment as between UTC and Mitsubishi Elevator Corporation (‘MEC’), one of MEE’s parent companies.
The first ground of appeal
22      The first ground of appeal is subdivided into three parts. By the first part of this ground of appeal, it is claimed that the General Court made an error of law in its application of the conditions to be met by a parent company in order to rebut the presumption of liability for the actions of its subsidiaries when the parent holds 100% of the share capital of those subsidiaries. By the second part of this ground of appeal, it is alleged that the General Court’s interpretation of the test for the rebuttal of the presumption of liability infringes the Charter of Fundamental Rights of the European Union (‘the Charter’). The third part of the ground of appeal alleges that the General Court failed to provide adequate reasoning when rejecting UTC’s arguments seeking to rebut the presumption of liability which operates against it in its capacity as a parent company.
23      This ground of appeal concerns in essence paragraphs 49 to 62 of the judgment under appeal as well as paragraphs 63 to 90 thereof.
24      Paragraphs 49 to 62 of the judgment under appeal comprise the General Court’s preliminary observations on the concept of ‘undertaking’ in competition law, on the treatment of relations between a parent company and its subsidiaries and, more particularly, the possibility of imputing to a parent company the unlawful conduct of its subsidiary.
25      In paragraphs 63 to 66 of the judgment under appeal, the General Court summarised recitals 615 to 620 of the contested decision. Paragraphs 67 to 78 of the judgment under appeal comprise the General Court’s answer to the first part of the first plea in law raised before it by Otis Belgium, Otis Germany, Otis Netherlands, OEC and UTC, concerning the rules governing the use of a presumption. In paragraphs 79 to 90 of its judgment, the General Court, addressing the second part of the first plea, examined the merits of the Commission’s conclusion that UTC and OEC did not rebut the presumption of liability for the infringements committed by the Otis subsidiaries.
Arguments of the parties
26      By the first part of the first ground of appeal, UTC submits that the General Court misapplied the conditions to be met by a parent company holding 100% of the share capital in its subsidiary in order to rebut the presumption that it is liable for the actions of its subsidiary, as those conditions have been developed by the case-law of the Court of Justice. The General Court, in that regard, is alleged to have applied a stricter test, which has no basis in the case-law and which results in parent companies owning 100% of the share capital in their subsidiaries being strictly liable for the actions of those subsidiaries.
27      The appellant takes issue with, in essence, paragraphs 84, 88 and 89 of the judgment under appeal, which are worded as follows:
‘84      Third, nor does the fact that UTC is the holding company of a diversified conglomerate group, whose supervision of OEC’s activities is limited to what was required by virtue of UTC’s obligations to its own shareholders under the applicable law, allow the presumption of liability to be rebutted. In that regard, it must specifically be recalled that in the context of a group of companies, a holding company is a company which seeks to regroup shareholdings in various companies and whose function is to ensure that they are run as one ([Case T‑69/04] Schunk and Schunk Kohlenstoff-Technik v Commission [[2008] ECR II‑2567], … paragraph 63). In addition, in the present case, UTC itself advanced, in its reply to the statement of objections and in the application, a number of matters attesting to its involvement in the determination of its subsidiaries’ commercial policy which tend to suggest that the Otis subsidiaries do not determine their conduct on the market independently. [confidential]
...
88      Sixth, as regards the argument raised by [Otis Belgium, Otis Germany, Otis Netherlands and OEC] that the Otis subsidiaries have a “degree of autonomy that is sufficient” to determine all aspects of their conduct on the market in relation to customers and competitors and “autonomy” to conduct their businesses involving all transactions [confidential], the Court finds that [Otis Belgium, Otis Germany, Otis Netherlands and OEC] do not maintain that the subsidiaries acted fully autonomously on the market but that instead they had only a degree of autonomy restricted to limited commercial activities.
89      In the third place, the Court must reject [UTC’s] argument … that the presumption of liability referred to in paragraph 59 above is an irrebuttable presumption or amounts to a rule of strict liability. The Court of Justice has confirmed in its recent judgment in [Case C‑97/08 P] Akzo Nobel and Others v Commission [[2009] ECR I‑8237] … (paragraphs 60 and 61) that the presumption is rebuttable. The fact that the applicants have not produced, in this instance, evidence capable of rebutting the presumption that the subsidiaries were not autonomous does not mean that the presumption can never be reversed (see, to that effect, the Opinion of Advocate General Kokott in Akzo Nobel and Others v Commission, paragraph 53 above, ECR I‑8241, point 75, and footnote 67).’
28      UTC maintains that the notion to which the General Court refers in paragraph 88 of the judgment under appeal, namely that of acting ‘fully autonomously on the market’ does not correspond to the test for rebuttal of the presumption in the case of wholly-owned subsidiaries and amounts to establishing a de facto irrebuttable presumption which operates against parent companies. It claims that the General Court applied a new test in paragraphs 79 to 90 of the judgment under appeal, which is far stricter than, and therefore inconsistent with, the test established by the Court of Justice.
29      UTC further submits that the test for reversal of the presumption must enable a parent company to exercise the control required by the law applicable to it. Criticising in that regard paragraph 84 of the judgment under appeal, it asserts that, as the General Court accepted, its supervision of OEC’s activities was limited to what was required of UTC with regard to its subsidiaries.
30      In the second part of this ground of appeal, UTC claims that turning the rebuttable presumption into a de facto irrebuttable presumption is contrary to the Charter, in particular Articles 17, 47 to 49 and 52. This irrebuttable presumption cannot be regarded as having been ‘provided for by law’. It is contrary to Regulation No 1/2003, Article 23 of which permits fines to be imposed only to censure acts committed ‘intentionally or negligently’. Finally, such a measure is neither necessary nor proportionate and consequently the conditions of Article 52 of the Charter are not met.
31      In the third part of the ground of appeal, UTC complains that the General Court failed to state adequate reasons for rejecting the specific arguments put forward by UTC in order to rebut the presumption of liability upon it. That complaint is directed more specifically at paragraph 83 of the judgment under appeal relating to the separation of the governing and managing organs of UTC and the Otis subsidiaries respectively, paragraph 84 as regards the argument concerning UTC’s capacity as a holding company, paragraphs 85 to 87 as regards compliance policies and paragraph 88 as regards significant independence on the market.
32      The Commission contends that the first part of the ground of appeal is based on a misreading of the judgment under appeal. In the Commission’s submission, by referring to ‘full’ autonomy, the General Court was seeking to ascertain whether the subsidiaries were independent of the parent company and whether they formed part of separate economic units. The General Court did not, on that account, change the legal test for rebuttal of the presumption.
33      The Commission also argues that the rebuttable character of the presumption does not require it to be easy to rebut. By definition, when the law creates a presumption, it is because, when the premiss of fact justifying the presumption is established, the fact that is presumed is generally true. In the case of a parent company holding 100% of the share capital in its subsidiary, rebuttal of the presumption may be possible only in exceptional circumstances but that does not mean that the presumption becomes de facto irrebuttable.
34      Finally, the Commission submits that UTC cannot use as a defence the fact that a particular law of a country requires a parent company to exercise effective control over its wholly-owned subsidiaries. The case mentioned by UTC is particular and is not covered by a general rule to which parent companies are subject.
35      In relation to the second part of this ground of appeal, the Commission maintains that it is also based on an incorrect reading of the judgment under appeal, as UTC starts from the premiss that the General Court treated the presumption as irrebuttable. The Commission points out that even a presumption which is difficult to rebut fulfils the requirements of the case-law of the European Court of Human Rights. That court has also held that the presumption of effective control respects the principle of presumption of innocence and the rights of defence and of a fair trial. The fact that the presumption has been established by case-law does not constitute a violation of the principle of legality. Furthermore, the presumption pursues a legitimate aim since a parent company is liable to profit from the cartel activities of a subsidiary. The Commission recalls, finally, that the liability of a parent company is based not on its inability to prevent its subsidiary from committing an infringement but rather on the economic concept of ‘undertaking’.
36      As regards the third part of this ground of appeal, the Commission submits that, contrary to what UTC maintains, the General Court did properly state its reasons for rejecting each of the arguments put forward by UTC with a view to rebutting the presumption operating against UTC in its capacity as a parent company.
Findings of the Court
37      The first part of this ground of appeal is based on a misreading of the judgment under appeal. The General Court did not err in law when it recalled, in paragraph 56 of the judgment under appeal, the case-law according to which the conduct of a subsidiary may be imputed to the parent company in particular where, although it has a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities.
38      It does not appear that the General Court changed the meaning of the case-law by using, in paragraph 88 of the judgment under appeal, the expression ‘fully autonomously’. In doing so, it was replying to the applicants’ argument, set out in points 58 and 59 of the application at first instance, seeking to show that the local subsidiaries had a ‘degree of autonomy that [was] sufficient’ or autonomy to conduct certain transactions, neither of which corresponds to the conditions established by the case-law of the Court of Justice under which it may be presumed that liability for the conduct of a subsidiary is imputable to its parent company, as that case-law has been recalled at paragraph 37 of this order.
39      As regards the obligations imposed by legislation on UTC with regard to its subsidiaries, suffice it to observe that, contrary to what has been argued by UTC, the General Court did not accept, in paragraph 84 of the judgment under appeal, that UTC’s supervision of OEC’s activities was limited to the obligations to its own shareholders. On the contrary, the Court found, in paragraph 84, that the arguments put forward by UTC included a number of elements showing its involvement in the determination of its subsidiaries’ commercial policy.
40      The first part of the ground of appeal is therefore clearly unfounded.
41      The second part of the ground of appeal, concerning an infringement of the Charter, is based on the premiss that, by changing the test for rebutting the presumption, the General Court made the presumption de facto irrebuttable. Since that is not the case and since the General Court, on the contrary, examined the matters which UTC put forward with a view to rebutting the presumption, this part of the ground of appeal must be held to be clearly unfounded.
42      The third part of the ground of appeal alleges a failure to give reasons. In that regard, it is to be recalled that, in accordance with settled case-law, the statement of the reasons on which a judgment of the General Court is based, which is provided for in Article 36 and Article 53, first paragraph, of the Statute of the Court of Justice of the European Union, must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, in particular, Case C‑259/96 P Council v de Nil and Impens [1998] ECR I‑2915, paragraphs 32 and 33, and Case C‑90/09 P General Química and Others v Commission [2011] ECR I‑0000, paragraph 59).
43      In paragraphs 83 to 88 of the judgment under appeal, the General Court replied to each of the arguments put forward by the applicants at first instance. The responses provided by the General Court are clear and unequivocal and disclose the matters which it found persuasive in arriving at its conclusion. The fact that the General Court, on the merits, arrived at a different conclusion from the appellant cannot in itself vitiate the judgment for failure to state reasons (Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 80). It follows that the complaint alleging a failure to give reasons is clearly unfounded.
44      In so far as UTC seeks to call into question the merits of the General Court’s reasoning, the paragraphs of the judgment under appeal that are challenged comprise factual assessments which cannot be reviewed by the Court of Justice in an appeal. Such a ground of challenge is therefore clearly inadmissible.
45      It follows that the third part of the ground of appeal is clearly unfounded.
The second ground of appeal
Arguments of the parties
46      By its second ground of appeal, UTC maintains that the judgment under appeal contains an error of law inasmuch as the General Court does not address its plea concerning infringement of the principle of equal treatment in relation to MEC. That plea was set out in points 78 to 82 of the application at first instance and claimed that ‘the different treatment of UTC and MEC has no legal or economic justification’.
47      The Commission contends that the General Court’s response to that plea is apparent from paragraphs 131 to 133 and 106 to 118 of the judgment under appeal.
Findings of the Court
48      A preliminary point to note is that a ground of appeal which claims that the General Court has failed to address a plea in law raised before it amounts, in essence, to pleading that the obligation to state reasons, which derives from Article 36 and Article 53, first paragraph, of the Statute of the Court of Justice, has been infringed (see, to that effect, Case C‑197/99 P Belgium v Commission [2003] ECR I‑8461, paragraphs 80 to 83). In that regard, it is clear from settled case-law that the Court of Justice does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the General Court’s reasoning may therefore be implicit on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (Case C‑263/09 P Edwin v OHIM [2011] ECR I‑0000, paragraph 64).
49      In paragraphs 131 and 132 of the judgment under appeal, the General Court explained in what respect the situations of MEE, a subsidiary of MEC and TBI Holding, on the one hand, and GTO, a subsidiary of Otis Belgium and GT, on the other, were not comparable.
50      In describing MEE’s situation, the General Court referred, in paragraphs 130 and 132, to the arguments of GTO, Otis Belgium, Otis Germany, Otis Netherlands, OEC and UTC, according to which the Commission was correct in considering the control exercised over MEE by its parent companies MEC and TBI Holding not to be sufficient for the infringement committed by their subsidiary to be imputed to them.
51      In describing GTO’s situation, the General Court referred, in paragraph 131 of the judgment under appeal, to its own reasoning and to its conclusion that the Commission was entitled to hold, in recital 622 of the contested decision, that, during the period of the infringement in Luxembourg, GTO operated under the joint control of Otis Belgium and GT and that the commercial policy of GTO was determined by the common understanding of its two shareholders.
52      The General Court concluded, in paragraph 133 of the judgment under appeal, that ‘it is clear from the foregoing that all the complaints concerning the imputability of the infringements of GTO and the Otis subsidiaries to their respective parent companies must be rejected’.
53      In doing so, the General Court rejected UTC’s plea completely, referring to the reasoning in the previous paragraphs of the judgment under appeal. In that regard, the General Court, in paragraphs 63 to 90 and 106 to 120 of the judgment under appeal, established that the Commission was fully entitled to have imputed to UTC, in particular, the infringements committed by its subsidiaries.
54      It follows from a reading those paragraphs, in conjunction with paragraphs 131 and 132, of the judgment under appeal, that the General Court’s reasoning enabled UTC to understand the General Court’s answer to its plea and enabled the Court of Justice to carry out its review.
55      It follows that the second ground of appeal is clearly unfounded.
56      Consequently, the appeal must be dismissed in its entirety as being in part clearly inadmissible and in part clearly unfounded.
Costs
57      Under Article 69(2) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs against UTC and the latter has been unsuccessful, UTC must be ordered to pay the costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1.      The appeal is dismissed.
2.      United Technologies Corporation shall pay the costs.
[Signatures]
* Language of the case: English.