62007TJ0144_EN
Parties
Grounds
Operative part
Parties
In Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07,
ThyssenKrupp Liften Ascenseurs NV, established in Brussels (Belgium), represented initially by V. Turner and D. Mes, and subsequently by O.W. Brouwer and J. Blockx, lawyers,
applicant in Case T‑144/07,
ThyssenKrupp Aufzüge GmbH,
established in Neuhausen auf den Fildern (Germany),
ThyssenKrupp Fahrtreppen GmbH,
established in Hamburg (Germany),
represented initially by U. Itzen and K. Blau-Hansen, and subsequently by U. Itzen, K. Blau-Hansen and S. Thomas, and finally by K. Blau-Hansen and S. Thomas, lawyers,
applicants in Case T‑147/07,
ThyssenKrupp Ascenseurs Luxembourg Sàrl,
established in Howald (Luxembourg), represented by K. Beckmann, S. Dethof and U. Itzen, lawyers,
applicant in Case T‑148/07,
ThyssenKrupp Elevator AG,
established in Düsseldorf (Germany), represented by T. Klose and J. Ziebarth, lawyers,
applicant in Case T‑149/07,
ThyssenKrupp AG,
established in Duisburg (Germany), represented initially by M. Klusmann and S. Thomas, lawyers, and subsequently by M. Klusmann,
applicant in Case T‑150/07,
ThyssenKrupp Liften BV,
established in Krimpen aan den IJssel (Netherlands), represented by O.W. Brouwer and A. Stoffer, lawyers,
applicant in Case T‑154/07,
v
European Commission,
represented, in Cases T‑144/07 and T‑154/07, by A. Bouquet and R. Sauer, acting as Agents, and by F. Wijckmans and F. Tuytschaever, lawyers, in Cases T‑147/07 and T‑148/07, initially by R. Sauer and O. Weber, and subsequently by R. Sauer and K. Mojzesowicz, acting as Agents, and in Cases T‑149/07 and T‑150/07, by R. Sauer and K. Mojzesowicz, acting as Agents,
defendant,
APPLICATION for 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) or, in the alternative, reduction of the amounts of the fines imposed on the applicants,
THE GENERAL COURT (Eighth Chamber),
composed of M.E. Martins Ribeiro (Rapporteur), President, N. Wahl and A. Dittrich, Judges,
Registrar: K. Andová, Administrator,
having regard to the written procedure and further to the hearings on 3, 7 and 10 September 2009,
gives the following
Judgment
Grounds
1. The present cases concern applications for 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, for reduction of the amounts of the fines imposed on the applicants.
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 Belgium’), Kone GmbH (‘Kone Germany’), Kone Luxembourg Sàrl (‘Kone Luxembourg’), Kone BV Liften en Roltrappen (‘Kone Netherlands’) and Kone Oyj (‘KC’) (referred to, collectively and individually, as ‘Kone’);
– Otis SA (‘Otis Belgium’), Otis GmbH & Co. OHG (‘Otis Germany’), General Technic-Otis Sàrl (‘GTO’), General Technic Sàrl (‘GT’), Otis BV (‘Otis Netherlands’), Otis Elevator Company (‘OEC’) and United Technologies Corporation (‘UTC’) (referred to, collectively and individually, as ‘Otis’);
– Schindler SA (‘Schindler Belgium’), Schindler Deutschland Holding GmbH (‘Schindler Germany’), Schindler Sàrl (‘Schindler Luxembourg’), Schindler Liften BV (‘Schindler Netherlands’) and Schindler Holding Ltd (‘Schindler Holding’) (referred to, collectively and individually, as ‘Schindler’);
– ThyssenKrupp Liften Ascenseurs NV (‘TKLA’), ThyssenKrupp Aufzüge GmbH (‘TKA’), ThyssenKrupp Fahrtreppen GmbH (‘TKF’), ThyssenKrupp Elevator AG (‘TKE’), ThyssenKrupp AG (‘TKAG’), ThyssenKrupp Ascenseurs Luxembourg Sàrl (‘TKAL’) and ThyssenKrupp Liften BV (‘TKL’) (referred to, collectively and individually, as ‘ThyssenKrupp’); and
– Mitsubishi Elevator Europe BV (‘MEE’).
3. The applicants, TKLA, TKA, TKF, TKAL, TKE, TKAG and TKL, belong to the ThyssenKrupp group of companies which is active in the elevator sector, steel, the automotive industry, technologies and services. The parent company of the group is the public listed company TKAG. TKE is a wholly-owned subsidiary of TKAG and is the main company within the group responsible for the elevator sector. It is an intermediate holding company (recitals 33 to 37 of the contested decision).
4. ThyssenKrupp operates in the elevator and escalator sector through its national subsidiaries. These are, in Belgium, TKLA, in Germany, TKA and TKF, in Luxembourg, TKAL, and in the Netherlands, TKL (recitals 33 to 37 of the contested decision). With the exception of TKL, which is not a subsidiary of TKE, the other subsidiaries mentioned above are directly or indirectly wholly-owned subsidiaries of TKE and TKAG.
The administrative procedure
1. The Commission investigation
5. In the summer of 2003, the Commission received information concerning the possible existence of a cartel among the four major European manufacturers of elevators and escalators engaged in business activities in the European Union, namely Kone, Otis, Schindler and ThyssenKrupp (recitals 3 and 91 of the contested decision).
Belgium
6. Starting on 28 January 2004, and during March 2004, the Commission carried out inspections under Article 14(2) and (3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) at, inter alia, the premises of the subsidiaries of Kone, Otis, Schindler and ThyssenKrupp in Belgium (recitals 92, 93, 95 and 97 of the contested decision).
7. Applications for leniency, under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the 2002 Leniency Notice’), were submitted in turn by Kone, Otis, ThyssenKrupp and Schindler. Those applications were subsequently supplemented by the undertakings concerned (recitals 94, 96, 98 and 103 of the contested decision).
8. On 29 June 2004, conditional immunity was granted to Kone in application of point 8(b) of the 2002 Leniency Notice (recital 99 of the contested decision).
9. Between September and December 2004, the Commission also sent requests for information, pursuant to Article 18 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), to the undertakings which had participated in the infringement in Belgium, to a number of customers in Belgium and to the Belgian association Agoria (recitals 101 and 102 of the contested decision).
Germany
10. Starting on 28 January 2004, and during March 2004, the Commission carried out inspections under Article 14(3) of Regulation No 17 at, inter alia, the premises of the subsidiaries of Otis and ThyssenKrupp in Germany (recitals 104 and 106 of the contested decision).
11. On 12 and 18 February 2004, Kone supplemented its application under the 2002 Leniency Notice concerning Belgium, made on 2 February 2004, with information concerning Germany. Likewise, between March 2004 and February 2005, Otis supplemented its leniency application in respect of Belgium with information concerning Germany. On 25 November 2004, Schindler made an application under the 2002 Leniency Notice which contained information concerning Germany, which it supplemented between December 2004 and February 2005. Last, in December 2005, ThyssenKrupp submitted an application for leniency to the Commission, also under the 2002 Leniency Notice, in respect of Germany (recitals 105, 107, 112 and 114 of the contested decision).
12. Between September and November 2004, the Commission also sent requests for information, pursuant to Article 18 of Regulation No 1/2003, to the undertakings which had participated in the infringement in Germany, to a number of customers in Germany and to the associations VDMA, VFA and VMA (recitals 110, 111 and 113 of the contested decision).
Luxembourg
13. On 5 February 2004, Kone supplemented its application of 2 February 2004 concerning Belgium with information relating to Luxembourg. Applications under the 2002 Leniency Notice were made orally by Otis and ThyssenKrupp in respect of Luxembourg. Schindler made an application under the notice in respect of Luxembourg (recitals 115, 118, 119 and 124 of the contested decision).
14. Starting on 9 March 2004, the Commission carried out inspections under Article 14(3) of Regulation No 17 at, inter alia, the premises of the subsidiaries of Schindler and ThyssenKrupp in Luxembourg (recital 116 of the contested decision).
15. On 29 June 2004, conditional immunity was granted to Kone pursuant to point 8(b) of the 2002 Leniency Notice for the part of its application relating to Luxembourg (recital 120 of the contested decision).
16. In September and October 2004, the Commission sent requests for information pursuant to Article 18 of Regulation No 1/2003 to the undertakings which had participated in the infringement in Luxembourg, to a number of customers in Luxembourg and to the Fédération luxembourgeoise des ascensoristes (recitals 122 and 123 of the contested decision).
The Netherlands
17. In March 2004, Otis made an application under the 2002 Leniency Notice in respect of the Netherlands, which was subsequently supplemented. In April 2004, ThyssenKrupp made an application under the notice, in respect of which supplementary information was subsequently also provided on a number of occasions. Finally, on 19 July 2004, Kone supplemented its application of 2 February 2004 for Belgium with information concerning the Netherlands (recitals 127, 129 and 130 of the contested decision).
18. On 27 July 2004, conditional immunity was granted to Otis pursuant to point 8(a) of the 2002 Leniency Notice (recital 131 of the contested decision).
19. From 28 April 2004, the Commission carried out inspections pursuant to Article 14(3) of Regulation No 17 at, inter alia, the premises of the subsidiaries of Kone, Schindler, ThyssenKrupp and MEE in the Netherlands, and also at the premises of the association Boschduin (recital 128 of the contested decision).
20. In September 2004, the Commission sent requests for information pursuant to Article 18 of Regulation No 1/2003 to the undertakings which had participated in the infringement in the Netherlands, to a number of customers in the Netherlands and to the associations VLR and Boschduin (recitals 133 and 134 of the contested decision).
2. The statement of objections
21. On 7 October 2005, the Commission adopted a statement of objections, addressed inter alia to the companies mentioned in paragraph 2 above. All the addressees of the statement of objections sent written observations in response to the objections raised by the Commission (recitals 135 and 137 of the contested decision).
22. No hearing was held, since none of the addressees of the statement of objections had requested a hearing (recital 138 of the contested decision).
3. The contested decision
23. 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).
24. As regards the addressees of the contested decision, the Commission considered that in addition to 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 a 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 were not held jointly and severally liable for their subsidiary’s conduct because it could not be established that they had exercised a decisive influence over its conduct (recital 643 of the contested decision).
25. For the purpose of calculating the fines, the Commission applied in the contested decision the method set out in its Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the 1998 Guidelines’). It also considered whether, and to what extent, the undertakings concerned satisfied the requirements set by the 2002 Leniency Notice.
26. The Commission characterised the infringements as ‘very serious’ on account of their nature and of the fact that each of them covered the whole territory of a Member State (Belgium, Germany, Luxembourg or the Netherlands), even though their actual impact could not be measured (recital 671 of the contested decision).
27. In order to take account of the effective economic capacity of the undertakings concerned to cause significant damage to competition, the Commission divided them, for each country, into a number of categories by reference to the turnover achieved in elevators and/or escalators, including, where appropriate, maintenance and modernisation services (recitals 672 and 673 of the contested decision).
28. As regards the Belgian cartel, Kone and Schindler were placed in the first category and the starting amount of the fine, determined according to the gravity of the infringement, was set at EUR 40 000 000. Otis was placed in the second category and the starting amount of its fine was set at EUR 27 000 000. ThyssenKrupp was placed in the third category and the starting amount of its fine was set at EUR 16 500 000 (recitals 674 and 675 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount for ThyssenKrupp, in order to take account of their size and their global resources, so that the starting amounts of their fines were increased to EUR 45 900 000 and EUR 33 000 000 respectively (recitals 690 and 691 of the contested decision). As the infringement had lasted seven years and eight months (from 9 May 1996 to 29 January 2004), the Commission increased the starting amount for the undertakings concerned by 75%. The basic amount of the fine was thus set at EUR 70 000 000 for Kone, EUR 80 325 000 for Otis, EUR 70 000 000 for Schindler and EUR 57 750 000 for ThyssenKrupp (recitals 692 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697, 698 and 708 to 710 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 733, 734, 749, 750 and 753 to 755 of the contested decision). Under the 2002 Leniency Notice, Kone was granted total immunity from fines. Otis received a reduction of 40% of the fine in the band provided for in the first indent of point 23(b) of the 2002 Leniency Notice and a reduction of 1% of the fine for not contesting the facts. ThyssenKrupp was granted a reduction of 20% of the fine in the band provided for in the second indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. Schindler was granted a reduction of 1% of the fine for not contesting the facts (recitals 760 to 777 of the contested decision).
29. As regards the German cartel, Kone, Otis and ThyssenKrupp were placed in the first category and the starting amount of the fine was set at EUR 70 000 000. Schindler was placed in the second category and the starting amount of its fine was set at EUR 17 000 000 (recitals 676 to 679 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount for ThyssenKrupp, in order to take account of their size and their global resources, so that the starting amounts of their fines came to EUR 119 000 000 and EUR 140 000 000 respectively (recitals 690 and 691 of the contested decision). As the infringement by Kone, Otis and ThyssenKrupp had lasted eight years and four months (from 1 August 1995 to 5 December 2003), the Commission increased the starting amount of the fine for those undertakings by 80%. As the infringement by Schindler had lasted five years and four months (from 1 August 1995 to 6 December 2000), the Commission increased the starting amount of its fine by 50%. The basic amount of the fine was thus set at EUR 126 000 000 for Kone, EUR 214 200 000 for Otis, EUR 25 500 000 for Schindler and EUR 252 000 000 for ThyssenKrupp (recitals 693 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697 to 707 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 727 to 729, 735, 736, 742 to 744, 749, 750 and 753 to 755 of the contested decision). Kone received the maximum reduction of 50% of the fine provided for in the first indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. Otis received a reduction of 25% of the fine in the band provided for in the second indent of point 23(b) of the 2002 Leniency Notice and a reduction of 1% of the fine for not contesting the facts. Schindler received a reduction of 15% of the fine in the band provided for in the third indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. ThyssenKrupp received a reduction of 1% of the fine for not contesting the facts (recitals 778 to 813 of the contested decision).
30. With respect to the Luxembourg cartel, Otis and Schindler were placed in the first category and the starting amount of the fine was set at EUR 10 000 000. Kone and ThyssenKrupp were placed in the second category, and the starting amount of the fine was set at EUR 2 500 000 (recitals 680 to 683 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount for ThyssenKrupp, in order to take account of their size and their global resources, so that the starting amounts of their fines came to EUR 17 000 000 and EUR 5 000 000 respectively (recitals 690 and 691 of the contested decision). As the infringement had lasted eight years and three months (from 7 December 1995 to 9 March 2004), the Commission increased the starting amount of the fine for the undertakings concerned by 80%. The basic amount of the fine was thus set at EUR 4 500 000 for Kone, EUR 30 600 000 for Otis, EUR 18 000 000 for Schindler and EUR 9 000 000 for ThyssenKrupp (recitals 694 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697, 698 and 711 to 714 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 730, 749, 750 and 753 to 755 of the contested decision). Under the 2002 Leniency Notice, Kone was granted total immunity from fines. Otis received a reduction of 40% of the fine in the band provided for in the first indent of point 23(b) of the 2002 Leniency Notice and a reduction of 1% of the fine for not contesting the facts. Schindler and ThyssenKrupp received only a reduction of 1% of the fine for not contesting the facts (recitals 814 to 835 of the contested decision).
31. As regards the Netherlands cartel, Kone was placed in the first category and the starting amount of its fine was set at EUR 55 000 000. Otis was placed in the second category and the starting amount of its fine was set at EUR 41 000 000. Schindler was placed in the third category and the starting amount of its fine was set at EUR 24 500 000. ThyssenKrupp and MEE were placed in the fourth category and the starting amount of the fine was set at EUR 8 500 000 (recitals 684 and 685 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount for ThyssenKrupp, in order to take account of their size and their global resources, so that the starting amounts of their fines came to EUR 69 700 000 and EUR 17 000 000 respectively (recitals 690 and 691 of the contested decision). As the infringement by Otis and ThyssenKrupp had lasted five years and ten months (from 15 April 1998 to 5 March 2004), the Commission increased the starting amount of the fine for those undertakings by 55%. As the infringement by Kone and Schindler had lasted four years and nine months (from 1 June 1999 to 5 March 2004), the Commission increased the starting amount of the fine for those undertakings by 45%. As the infringement by MEE had lasted four years and one month (from 11 January 2000 to 5 March 2004), the Commission increased the starting amount of the fine for that undertaking by 40%. The basic amount of the fine was thus EUR 79 750 000 for Kone, EUR 108 035 000 for Otis, EUR 35 525 000 for Schindler, EUR 26 350 000 for ThyssenKrupp and EUR 11 900 000 for MEE (recitals 695 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697, 698 and 715 to 720 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 724 to 726, 731, 732, 737, 739 to 741, 745 to 748 and 751 to 755 of the contested decision). Under the 2002 Leniency Notice, Otis was granted total immunity from fines. ThyssenKrupp was granted a reduction of 40% of the fine in the band provided for in the first indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. Schindler and MEE received a reduction of 1% of the fine for not contesting the facts (recitals 836 to 855 of the contested decision).
32. The operative part of the contested decision reads as follows:
‘Article 1
1. In respect of Belgium, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for sale and installation and to refrain from competing with each other for maintenance and modernisation contracts:
– Kone: [KC] and [Kone Belgium]: from 9 May 1996 to 29 January 2004;
– Otis: [UTC], [OEC] and [Otis Belgium]: from 9 May 1996 to 29 January 2004;
– Schindler: Schindler Holding … and [Schindler Belgium]: from 9 May 1996 to 29 January 2004; and
– ThyssenKrupp: [TKAG], [TKE] and [TKLA]: from 9 May 1996 to 29 January 2004.
2. In respect of Germany, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for sale and installation:
– Kone: [KC] and [Kone Germany]: from 1 August 1995 to 5 December 2003;
– Otis: [UTC], [OEC] and [Otis Germany]: from 1 August 1995 to 5 December 2003;
– Schindler: Schindler Holding … and [Schindler Germany]: from 1 August 1995 to 6 December 2000; and
– ThyssenKrupp: [TKAG], [TKE], [TKA] and [TKF]: from 1 August 1995 to 5 December 2003.
3. In respect of Luxembourg, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for sale and installation and to refrain from competing with each other for maintenance and modernisation contracts:
– Kone: [KC] and [Kone Luxembourg]: from 7 December 1995 to 29 January 2004;
– Otis: [UTC], [OEC], [Otis Belgium], [GTO] and [GT]: from 7 December 1995 to 9 March 2004;
– Schindler: Schindler Holding … and [Schindler Luxembourg]: from 7 December 1995 to 9 March 2004; and
– ThyssenKrupp: [TKAG], [TKE] and [TKAL]: from 7 December 1995 to 9 March 2004.
4. In respect of the Netherlands, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for the sale and installation and to refrain from competing with each other for maintenance and modernisation contracts:
– Kone: [KC] and [Kone Netherlands]: from 1 June 1999 to 5 March 2004;
– Otis: [UTC], [OEC] and [Otis Netherlands]: from 15 April 1998 to 5 March 2004;
– Schindler: Schindler Holding … and [Schindler Netherlands]: from 1 June 1999 to 5 March 2004;
– ThyssenKrupp: [TKAG] and [TKL]: from 15 April 1998 to 5 March 2004; and
– [MEE]: from 11 January 2000 to 5 March 2004.
Article 2
1. For the infringement in Belgium referred to in Article 1(1), the following fines are imposed:
– Kone: [KC] and [Kone Belgium], jointly and severally: EUR 0;
– Otis: [UTC], [OEC] and [Otis Belgium], jointly and severally: EUR 47 713 050;
– Schindler: Schindler Holding … and [Schindler Belgium], jointly and severally: EUR 69 300 000; and
– ThyssenKrupp: [TKAG], [TKE] and [TKLA], jointly and severally: EUR 68 607 000.
2. For the infringement in Germany referred to in Article 1(2), the following fines are imposed:
– Kone: [KC] and [Kone Germany], jointly and severally: EUR 62 370 000;
– Otis: [UTC], [OEC] and [Otis Germany], jointly and severally: EUR 159 043 500;
– Schindler: Schindler Holding … and [Schindler Germany], jointly and severally: EUR 21 458 250; and
– ThyssenKrupp: [TKAG], [TKE], [TKA] and [TKF], jointly and severally: EUR 374 220 000.
3. For the infringement in Luxembourg referred to in Article 1(3), the following fines are imposed:
– Kone: [KC] and [Kone Luxembourg], jointly and severally: EUR 0;
– Otis: [UTC], [OEC], [Otis Belgium], [GTO] and [GT], jointly and severally: EUR 18 176 400;
– Schindler: Schindler Holding … and [Schindler Luxembourg], jointly and severally: EUR 17 820 000; and
– ThyssenKrupp: [TKAG], [TKE] and [TKAL], jointly and severally: EUR 13 365 000.
4. For the infringement in the Netherlands referred to in Article 1(4), the following fines are imposed:
– Kone: [KC] and [Kone Netherlands], jointly and severally: EUR 79 750 000;
– Otis: [UTC], [OEC] and [Otis Netherlands], jointly and severally: EUR 0;
– Schindler: Schindler Holding … and [Schindler Netherlands], jointly and severally: EUR 35 169 750;
– ThyssenKrupp: [TKAG] and [TKL], jointly and severally: EUR 23 477 850; and
– [MEE]: EUR 1 841 400.
…’
Procedure and forms of order sought
33. By applications lodged at the Registry of the Court on 7 May 2007 (in Cases T‑144/07, T‑147/07, T‑148/07 T‑149/07 and T‑150/07) and on 8 May 2007 (in Case T-154/07), the applicants brought the present actions.
34. Upon hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, put written questions to the parties and requested them to produce documents. The parties complied within the prescribed period.
35. The parties in Cases T-144/07, T-147/07, T-148/07, T-149/07, T-150/07 and T‑154/07 presented oral argument and answered the oral questions put to them by the Court at the hearings on 3, 7 and 10 September 2009. The oral procedure in Cases T-144/07 and T-148/07 was then closed.
36. Following requests made by the Commission at the hearings, the applicants in Cases T‑147/07, T-149/07, T‑150/07 and T‑154/07 produced certain documents.
37. By letters dated 14 and 15 September 2009, the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 lodged at the Registry of the Court corrigenda relating to their pleas disputing the correctness of the finding of repeated infringement.
38. By order of 20 October 2009, the oral procedure was reopened in Cases T‑144/07 and T‑148/07.
39. The applicants’ corrigenda were placed in the file in the cases mentioned in paragraph 37 above. The Commission presented its observations on those corrigenda and, in particular, objected that they were inadmissible. The applicants presented their observations in this regard and the oral procedure in the cases in question was then closed.
40. After hearing the parties’ views at the hearing, the Court decided to join the present cases for the purposes of the judgment pursuant to Article 50 of the Rules of Procedure.
41. The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 claim that the Court should:
– annul the contested decision in so far as it concerns them;
– in the alternative, reduce the fine imposed;
– order the Commission to pay the costs.
42. In each case, the Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Substance
4. Preliminary observations
43. The actions brought by the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 all have a dual objective, their primary purpose being the annulment of the contested decision and their secondary purpose being a reduction in the amounts of the fines imposed on the applicants.
44. In support of their actions, the applicants have put forward 10 pleas in law. The first two, alleging a lack of jurisdiction on the Commission’s part and a wrongful finding of joint and several liability for the infringement, support the applications for annulment of the contested decision.
45. The eight remaining pleas in law put forward by the applicants relate to the setting of the fines and therefore support their applications for annulment or for a reduction in the amount of the fines. The first of these pleas, put forward by the applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07, alleges breach of the principle non bis in idem . The second, put forward by the applicants in Cases T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07, alleges breach of the 1998 Guidelines, of the principles of proportionality and equal treatment, and of the rights of the defence in the determination of the starting amounts of the fines according to the gravity of the infringements. The third, put forward by all the applicants, alleges breach of the 1998 Guidelines, of the principle of proportionality, of Article 253 EC and of the principle of equal treatment in the application of a group multiplier for deterrence in the determination of the starting amounts of the fines. The fourth, put forward by all the applicants, alleges breach of the 1998 Guidelines, of the principle of proportionality and of the rights of the defence by reason of the
50% increase applied to the basic amounts of the fines on account of repeated infringement. The fifth, put forward by all the applicants, alleges infringement of the 2002 Leniency Notice and of the principles of the protection of legitimate expectations and equal treatment in the assessment of the cooperation which they offered. The sixth, advanced by all the applicants, alleges infringement of the principles of the protection of legitimate expectations, equal treatment, proportionality and sound administration in the determination of the amount of the reduction in the fines granted for cooperation outside the scope of the 2002 Leniency Notice. The seventh, advanced by all the applicants, alleges infringement of Article 23(2) of Regulation No 1/2003. Finally, the eighth plea, advanced by the applicants in Cases T‑144/07, T‑149/07, T‑150/07 and T‑154/07, alleges infringement of the principle of proportionality in the calculation of the final amounts of the fines.
5. The applications for annulment of the contested decision
The plea alleging a lack of jurisdiction on the Commission’s part
46. The present plea falls to be considered in two parts. The first concerns the alleged infringement of Article 81(1) EC inasmuch as the cartels in question did not affect trade between Member States. The second part, formulated in the alternative, concerns the alleged infringement of Regulation No 1/2003 and of the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43; ‘the Notice on cooperation within the Network’) and of the principles of equal treatment and the protection of legitimate expectations, inasmuch as the Commission ought to have left it to the relevant national authorities to take action against the infringements.
The first part, alleging infringement of Article 81(1) EC inasmuch as the cartels in question did not affect trade between Member States
47. In recital 602 of the contested decision, the Commission maintained that ‘the application and implementation by the four major elevator and escalator manufacturers (in the case of the Netherlands also including [MEE]) of the system of project allocation, in each of the Member States concerned, against the background of their referral policies was likely to result in the diversion of trade patterns from the course they would otherwise have followed’. In reaching this conclusion, the Commission drew on a number of elements.
48. In the first place, the Commission noted that ‘some cross-border transactions involving the sale and installation of elevators and escalators and the provision of maintenance services and modernisation services [do] take place within the EU’ (recital 86 of the contested decision; see also recital 596).
49. According to the Commission, its file ‘contains several examples of actual cross‑border trade involving essentially SMEs, but also at least one large undertaking, [MEE, which] also serves the Belgian market through its subsidiary in the Netherlands’ (recital 87 of the contested decision). Furthermore, the Commission notes that ‘the four major manufacturers also occasionally respond to cross-border tenders within the EU’, and gives a number of examples of this (recital 88 of the contested decision; see also recital 78). According to the Commission, there is an ‘increasing trend for customers to source outside the national borders’ (recital 596 of the contested decision).
50. Moreover, according to the Commission, there is ‘a trend that large (multinational) undertakings and groups of undertakings with a presence in several Member States such as, for example, international hotel chains, prefer to conclude supply agreements covering several Member States’ (recital 89 of the contested decision).
51. In the second place, the Commission mentions the referral policy applied by the four major elevator and escalator manufacturers in Europe. According to the Commission, ‘the number of cross-border transactions would be higher were it not for the fact that [those] … manufacturers … had implemented a policy to refuse virtually all cross-border requests for price quotes and instead direct customers to the relevant national subsidiary’ (recital 90 of the contested decision; see also recital 596).
52. In the third place, in the context of its legal assessment, the Commission emphasised that ‘the fact that a horizontal cartel covers only one single Member State does not mean that the unlawful agreements are not capable of affecting trade between Member States’ (recital 595 of the contested decision). It points out, furthermore, that, according to consistent case-law, ‘the effect which an agreement might have on trade between Member States is to be appraised in particular by reference to the position and the importance of the parties on the market for the products concerned (Case C‑306/96 Javico
[1998] ECR I‑1983, paragraph 17)’ (recital 600 of the contested decision). It also maintained that ‘[c]onsidering the four major elevator and escalator manufacturers’ very high share of turnover in elevators, escalators, maintenance and modernisation, and considering the fact that they set up and implemented a system of project allocati on which extended over the whole territory of Belgium, Luxembourg, Germany and the Netherlands, respectively, in combination with their referral policy, it is justified to assume that foreign undertakings were hampered in their ability to sell their products and services in the countries concerned, since in those countries they would have to act against a group of manufacturers, which jointly represented the vast majority of suppliers’ (recital 600 of the contested decision).
53. The applicants in Cases T-144/07, T-147/07, T-148/07, T‑149/07, T‑150/07 and T-154/07 submit, in essence, that the infringements did not significantly affect trade between Member States, and that they did not, therefore, constitute any violation of Article 81 EC.
54. As is already clear from the wording of Articles 81 EC and 82 EC, in order for the competition rules of the European Union to apply to an arrangement or abusive practice it is necessary for it to be capable of affecting trade between Member States (Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 40).
55. The interpretation and application of that condition relating to effects on trade between Member States must take as its starting point the purpose of the condition, which is to define, in the context of the law governing competition, the boundary between the areas respectively covered by European Union (‘EU’) law and the law of the Member States. Thus, EU law covers any agreement or any practice which is capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off domestic markets or by affecting the structure of competition within the common market ( Manfredi and Others, paragraph 54 above, paragraph 41; Case C‑238/05 Asnef-Equifax and Administración del Estado [2006] ECR I‑11125, paragraph 33; and Case C‑407/04 P Dalmine
v Commission
[2007] ECR I‑829, paragraph 89).
56. For an agreement, decision or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective elements of fact and law, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concerns that they might hinder the attainment of a single market between Member States. Moreover, that influence must not be insignificant ( Javico, paragraph 52 above, paragraph 16; Joined Cases C‑215/96 and C‑216/96 Bagnasco and Others [1999] ECR I‑135, paragraph 47; Manfredi and Others, paragraph 54 above, paragraph 42; Asnef-Equifax and Administración del Estado, paragraph 55 above, paragraph 34; and Dalmine
v Commission, paragraph 55 above, paragraph 90).
57. Accordingly, an effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive ( Bagnasco and Others, paragraph 56 above, paragraph 47; Manfredi and Others, paragraph 54 above, paragraph 43; and Asnef-Equifax and Administración del Estado, paragraph 55 above, paragraph 35).
58. According to the applicants, the infringements referred to in Article 1 of the contested decision had no effect on trade between Member States since elevator and escalator businesses are organised at national, or even local, level. That is because, inter alia, the installation and maintenance of elevators and escalators are the work of experienced professionals and can only be carried out locally for reasons of economic efficiency, because of the need to keep intervention times short and because of the existence of national regulations. Cross-border transactions are exceptional. The Commission itself considers that the cartels were national cartels.
59. It must be observed that the applicants do not dispute that the four cartels found in Article 1 of the contested decision covered the entire territory of Belgium, Germany, Luxembourg and the Netherlands (recitals 595 and 600 of the contested decision).
60. It is clear from consistent case-law that a cartel extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the Treaty is designed to bring about (Case 8/72 Vereeniging van Cementhandelaren
v Commission
[1972] ECR 977, paragraph 29; Case C‑309/99 Wouters and Others
[2002] ECR I‑1577, paragraph 95; Manfredi and Others, paragraph 54 above, paragraph 45; Asnef-Equifax and Administración del Estado, paragraph 55 above, paragraph 37; Joined Cases T‑213/95 and T‑18/96 SCK and FNK
v Commission [1997] ECR II‑1739, paragraph 179; and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others
v Commission
[2006] ECR II‑5169, paragraph 180).
61. It follows from that case-law that there is, at least, a strong presumption that a practice restrictive of competition applied throughout the territory of a Member State is liable to contribute to compartmentalisation of the markets and to affect intra-Community trade. That presumption can be rebutted only if an analysis of the characteristics of the agreement and its economic context demonstrates the contrary ( Raiffeisen Zentralbank Österreich and Others
v Commission, paragraph 60 above, paragraph 181).
62. First of all, contrary to what the applicants claim in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07, the Commission did not rely solely on that case-law in reaching its conclusion in the contested decision that the cartels were likely to affect trade between Member States within the meaning of Article 81(1) EC. Indeed, it is clear from paragraphs 47 to 52 above that the Commission also relied in the contested decision on the existence of certain cross-border transactions relating to the sale and installation of elevators and escalators and the provision of maintenance and modernisation services, in which the four major manufacturers to which the contested decision was addressed participated (recitals 87, 88 and 596 of the contested decision).
63. Next, it must be observed that the applicants’ arguments regarding the particular characteristics of the market in question, alleging its national, even local, nature, are not such as to alter the probative force of the documentary evidence mentioned in the contested decision (recitals 88 and 90 of the contested decision), which attests to the existence of trade between Member States on the market in issue in that decision. The same applies to the arguments regarding the exceptional nature of cross-border transactions, which put in issue only the degree of any effect on trade between Member States, not the very existence of that trade.
64. Lastly, as is clear from the contested decision, the referral policy of Kone, Otis, Schindler and ThyssenKrupp ‘is itself an indication that there is some interest from customers in approaching suppliers outside the national boundaries’ (recital 596 of the contested decision). Furthermore, the Commission took particular note of the participation of foreign undertakings in national invitations to tender (recital 78 of the contested decision) and indeed of the existence of cross-border calls for tenders (recital 89 of the contested decision). It is therefore permissible to think, as the Commission stated in recital 90 of the contested decision, that the number of cross-border transactions would have been higher were it not for the fact that the four major manufacturers mentioned above had implemented a policy to refuse virtually all cross-border requests and instead direct customers to the relevant national subsidiary.
65. In this connection, the applicants’ argument that the referral policy was dictated by the nature of the activity in question must be rejected. Indeed, it is contradicted by the very existence of certain cross-border transactions on the market in question.
66. Consequently, it must be held that the Commission was entitled to consider, on the basis of the factual findings highlighted in the preceding paragraphs and with the application of settled case-law (see paragraph 60 above), that the cartels referred to in Article 1 of the contested decision were capable of affecting trade between Member States.
67. As regards the question whether that effect may be held to be appreciable, it must be recalled that the influence which an agreement or concerted practice may have on trade between Member States is to be determined by taking into account in particular the position and importance of the parties on the market for the products concerned (Case 99/79 Lancôme and Cosparfrance Nederland
[1980] ECR 2511, paragraph 24; Javico, paragraph 52 above, paragraph 17; and Case T‑77/92 Parker Pen
v Commission
[1994] ECR II‑549, paragraph 40).
68. The manufacturers addressed in the contested decision ‘jointly represented the vast majority of supplies’ (recital 600 of the contested decision), that is to say, approximately 81% of elevator and escalator sales (by volume) in 2004 (recital 83 of the contested decision). Those manufacturers were therefore large enough and had sufficient economic power for their practices, to which the contested decision relates, to be capable of having an appreciable effect on trade between Member States (see, to that effect, Case 19/77 Miller International Schallplatten
v Commission
[1978] ECR 131, paragraph 10, and SCK and FNK
v Commission, paragraph 60 above, paragraph 181).
69. Moreover, and contrary to the applicants’ assertions, the Commission was under no obligation to prove that the agreements at issue had an appreciable effect, in practice, on trade between Member States, or even that cross-border transactions would increase after the infringements were brought to an end. Indeed, Article 81(1) EC requires only that anti-competitive agreements and concerted practices should be capable of having an effect on trade between Member States ( Asnef-Equifax and Administración del Estado, paragraph 55 above, paragraph 43, and Joined Cases T‑217/03 and T‑245/03 FNCBV and Others
v Commission [2006] ECR II‑4987, paragraph 68).
70. It follows from all the foregoing that the Commission was entitled to take the view that the cartels referred to in Article 1 of the contested decision had an appreciable effect on trade between Member States within the meaning of Article 81(1) EC.
71. Therefore the first part of the plea must be rejected.
The second part of the plea, alleging infringement of Regulation No 1/2003, of the Notice on cooperation within the Network and of the principles of equal treatment and the protection of legitimate expectations, inasmuch as the Commission ought to have left it to the relevant national competition authorities to take action against the infringements
72. In recital 543 of the contested decision, the Commission gives the following explanation of why it has jurisdiction to apply Article 81 EC to the cartels referred to in the decision:
‘… Regulation No 1/2003 has maintained the Community system of parallel jurisdiction for the application of Article 81(1) [EC]. It has in particular not modified the Commission’s power to investigate any suspected infringements and to adopt decisions under Article 81 [EC], including infringements that have their main effects in one Member State. The Notice [on cooperation within the Network] sets out orientations for the sharing of work between the Commission and the Member States’ competition authorities. Neither Regulation No 1/2003 nor the Notice [on cooperation within the Network] creates rights or expectations for an undertaking to have its case dealt with by a specific competition authority, nor is the Commission precluded from acting on a suspected breach of Article 81 [EC], including cases that are limited to the territory of a single Member State. ...’
73. The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 argue, in essence, that even if Article 81 EC were applicable, the Commission had no jurisdiction to initiate proceedings and to impose fines. The Commission’s initiation of the procedure constituted an infringement of the Notice on cooperation within the Network and of the principle of the protection of legitimate expectations. In accordance with Articles 5 and 35 of Regulation No 1/2003 and paragraphs 8 and 14 of the Notice on cooperation within the Network, the national competition authorities were the best placed to take action against the infringements. The applicants in Cases T‑147/07, T-148/07, T-149/07 and T‑150/07 also assert that the Notice on cooperation within the Network is binding in relation to the national competition authorities. That is clear from the principle that administrative management must be lawful, and the principles of equal treatment and the protection of legitimate expectations. Lastly, the applicants in Cases T‑147/07 and T‑149/07 emphasise that it would have been more effective if the national competition authorities had taken action against the infringements, given the ‘linguistic inadequacies’ of the Commission officials in charge of the file.
74. According to those applicants, the fact that the Commission left it to the Austrian competition authority to pursue a parallel infringement of Article 81 EC on the Austrian market for elevators and escalators illustrates the arbitrary nature with which the principles concerning the allocation of competence laid down in the Notice on cooperation within the Network were applied. The applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 maintain in this connection that they were treated less favourably than they would have been if the matter had been put before the competent authorities under the Notice on cooperation within the Network, in that they would have been granted immunity by the Belgian, Luxembourg and Netherlands competition authorities.
75. In the first place, it must be recalled that, as regards the division of powers between the Commission and the national competition authorities, Regulation No 1/2003 puts an end to the previous centralised regime and, in accordance with the principle of subsidiarity, establishes a wider association of national competition authorities. Thus, in accordance with Article 35 of Regulation No 1/2003, the Member States are required to designate the competition authority or authorities responsible for the application of Articles 81 EC and 82 EC, and Article 5 of Regulation No 1/2003 authorises those authorities to implement EU competition law (see, to that effect, Case T‑339/04 France Télécom
v Commission [2007] ECR II‑521, paragraph 79).
76. Nevertheless, the cooperation instituted by Regulation No 1/2003 between the Commission and the national competition authorities does not support the conclusion in this case that the Commission ought to have left it to the national competition authorities to take action against the various infringements. On the contrary, it is clear from the provisions of Regulation No 1/2003 that the Commission retains a leading role in investigating and finding infringements of the EU competition rules, which is not affected by the parallel powers of the national competition authorities under that regulation. Indeed, under Article 11(6) of Regulation No 1/2003, the Commission is entitled to initiate proceedings for the adoption of a decision even if a national authority is already acting on a case. Furthermore, under that provision, the Commission’s initiation of proceedings will relieve a national competition authority of its competence to apply the EU competition rules in the case.
77. As regards the Notice on cooperation within the Network, which the applicants allege was infringed in this case, it must be pointed out that, according to paragraph 31, the Notice does not create individual rights for the undertakings involved to have the case dealt with by a particular authority. The applicants’ contention that under the Notice they had a right or legitimate expectation that the national competition authorities would take action against the infringements found in the contested decision is therefore unfounded (see, to that effect, France Télécom
v Commission, paragraph 75 above, paragraph 83).
78. The Commission was therefore entitled to hold, in recital 543 of the contested decision, that ‘neither Regulation No 1/2003 nor the Notice [on cooperation within the Network] creates rights or expectations for an undertaking to have its case dealt with by a specific competition authority’.
79. Moreover, even if the Notice on cooperation within the Network were capable of creating rights or a legitimate expectation for undertakings to have a case dealt with by a specific authority, the applicants’ argument, which is based on paragraphs 8 and 14 of the Notice, cannot be upheld.
80. In this connection, it must be pointed out, firstly, that paragraph 8 of the Notice on cooperation within the Network, which sets out the conditions in which ‘an authority can be considered to be well placed to deal with a case’, has no binding effect. The use of the word ‘can’ shows that this merely entails the possibility of sharing tasks, which cannot be regarded as imposing an obligation on the Commission not to deal with a case or not to investigate a case where the conditions set out in paragraph 8 are met ( France Télécom
v Commission, paragraph 75 above, paragraph 84).
81. Secondly, in so far as paragraph 14 of the Notice on cooperation within the Network might create rights or legitimate expectations, in that it states that the Commission ‘is’ particularly well placed where certain conditions set out therein are met, that confirms that the Commission is competent to take action in the present case. Indeed, under paragraph 14 of the Notice on cooperation within the Network, the Commission is to be regarded as particularly well placed ‘if one or several agreement(s) or practice(s) … have effects on competition in more than three Member States’, which is the case with the infringements found in the contested decision.
82. Thirdly, as regards paragraph 15 of the Notice on cooperation within the Network, which, in the absence of a single infringement, constitutes, according to the applicants, the only basis for the Commission’s jurisdiction, but the conditions for which are not fulfilled in the present case, suffice it to observe, as does the Commission, that that provision is irrelevant to the present case, since it addresses the case where the Commission is particularly well placed to deal with a case.
83. The Notice on cooperation within the Network has not been disregarded in the present case, and there is no need to rule on the alleged infringement of the principle that administrative management must be lawful and of the principle of equal treatment, which are the basis for the binding effect of the Notice.
84. In the second place, the fact that the Austrian competition authority adopted a decision concerning a parallel national infringement is equally incapable of proving that the Commission ought to have left it to the relevant national competition authorities to take action against the infringements in Belgium, Germany, Luxembourg and the Netherlands. As is clear from the analysis carried out in paragraphs 75 to 78 above, no provision of EU law imposes such an obligation upon the Commission. It is, moreover, clear from the Commission’s explanations that the approach followed was, in any event, not arbitrary. It is not disputed that the investigations into the four cartels addressed by the contested decision were opened 32 months before the opening of the inquiry into the Austrian cartel, or that by the time the first application under the 2002 Leniency Notice was made in relation to the Austrian cartel, the investigations into the cartels addressed by the contested decision had already been wound up and a draft decision had already been prepared. The Commission’s restriction of the investigation to the four cartels addressed by the contested decision was thus motivated by the risk of delay in dealing with these cases.
85. In the th ird place, the applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 cannot refer to supposed decisions granting immunity obtained from the Belgian, Luxembourg and Netherlands competition authorities in support of their argument that the Commission ought to have left it to those national competition authorities to take action against the infringements. Those national decisions were in fact provisional (see paragraphs 167 to 174 below) and were adopted merely in the context of national proceedings. Under Article 11(6) of Regulation No 1/2003, however, the Commission is entitled to initiate proceedings at any time and thereby relieve the Member States’ competition authorities of their competence.
86. In the fourth place, the argument put forward by the applicants in Cases T‑147/07 and T‑149/07 relating to the supposed ‘linguistic inadequacies’ of the Commission officials in charge of the file must be rejected, given that the Commission is a multilingual institution which is to be regarded as able to work in all the official languages of the Community (see, to that effect, Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others
v Commission [2000] ECR II‑491, paragraph 640). Nor can the applicants claim that the notification of the statement of objections and contested decision in English, while the applicants had used German or Dutch during the administrative procedure, had impeded their rights of defence, since they acknowledge having consented to the notification of the documents in English and since their assertions are unsupported in any case.
87. It follows from all the foregoing that the second part of the present plea also cannot be upheld.
88. Therefore, the plea alleging a lack of jurisdiction on the Commission’s part must be rejected in its entirety.
The plea alleging breach of the principles governing the imputation of liability for infringements of Article 81 EC, the principle of the presumption of innocence, the principle that the penalty must be specific to the offender, the principle of equal treatment, and infringement of the rights of the defence and of Article 253 EC in imputing to the parent companies the infringements committed by their subsidiaries
Preliminary observations
89. By this plea, which relates, first, to the lawfulness of the finding of an infringement against the parent companies addressed by Article 1 of the contested decision and, second, to the lawfulness of the fines imposed on those parent companies in Article 2 of the contested decision, the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 dispute the joint and several liability of TKE and TKAG for the anti-competitive conduct of their subsidiaries in Belgium, Germany, Luxembourg and the Netherlands.
90. With regard to the joint and several liability of a parent company for the conduct of its subsidiary, the Court observes that the fact that a subsidiary has a separate legal personality is not sufficient to exclude the possibility of imputing its conduct to the parent company (Case 48/69 Imperial Chemical Industries v Commission
[1972] ECR 619, paragraph 132).
91. EU competition law refers to the activities of undertakings and the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see Case C‑97/08 P Akzo Nobel and Others
v Commission
[2009] ECR I‑8237, paragraph 54 and the case-law cited).
92. The Courts of the European Union (‘the Courts of the Union’) have also stated that, in the same context, the concept of an undertaking must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see Case 170/83 Hydrotherm Gerätebau
[1984] ECR 2999, paragraph 11; Akzo Nobel and Others
v Commission, paragraph 91 above, paragraph 55 and the case-law cited; and Case T-234/95 DSG
v Commission [2000] ECR II-2603, paragraph 124). They have emphasised that, for the purposes of applying the competition rules, the formal separation of two companies resulting from their having distinct legal identity is not decisive. The test is whether or not there is unity in their conduct on the market. Thus, it may prove necessary to establish whether two companies that have distinct legal identities form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market ( Imperial Chemical Industries
v Commission, paragraph 90 above, paragraph 140, and Case T‑325/01 DaimlerChrysler
v Commission [2005] ECR II‑3319, paragraph 85).
93. When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see Akzo Nobel and Others
v Commission, paragraph 91 above, paragraph 56 and the case-law cited).
94. Thus, the conduct of a subsidiary may be imputed to the parent company in particular where, although having 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 (see Case C-294/98 P Metsä-Serla and Others
v Commission [2000] ECR I-10065, paragraph 27; Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others
v Commission
[2005] ECR I-5425, paragraph 117; and Akzo Nobel and Others
v Commission, paragraph 91 above, paragraph 58 and the case-law cited).
95. In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of the case-law mentioned in paragraph 91 above. Thus, the fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see Akzo Nobel and Others
v Commission, paragraph 91 above, paragraph 59).
96. In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the EU competition rules, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others
v Commission, paragraph 91 above, paragraph 60 and the case-law cited).
97. In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see Akzo Nobel and Others
v Commission, paragraph 91 above, paragraph 61 and the case-law cited).
98. Furthermore, whilst it is true that in paragraphs 28 and 29 of its judgment in Case C-286/98 P Stora Kopparbergs Bergslags
v Commission
[2000] ECR I-9925 the Court of Justice referred not only to the fact that the parent company owned 100% of the capital of the subsidiary, but also to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative procedure, the fact remains that those circumstances were mentioned for the sole purpose of identifying all the elements on which the General Court had based its reasoning and not to make the application of the presumption mentioned in paragraph 96 above subject to the production of additional indicia relating to the actual exercise of influence by the parent company ( Akzo Nobel and Others
v Commission, paragraph 91 above, paragraph 62).
99. It is in light of those principles that the Court must examine the imputation of the infringements committed by TKLA, TKA, TKF and TKAL to TKE and TKAG, as well as the imputation of the infringement committed by TKL to TKAG.
The imputation of the infringements found in Article 1 of the contested decision to TKE and TKAG
100. In recitals 634, 635, 636 and 641 of the contested decision, the Commission held that TKE should, as a 100% intermediate parent company, be held jointly and severally liable for the infringements committed by its subsidiaries TKLA, TKAL, TKA and TKF in Belgium, Luxembourg and Germany respectively. The Commission also considered that TKAG should, as their 100% ultimate parent company, be held jointly and severally liable for the infringements committed by those same subsidiaries and by TKL in the Netherlands (recitals 634, 635, 636, 637 and 641 of the contested decision).
101. In recital 639 of the contested decision, the Commission stated:
‘... along the lines set out in recital 619 [of the contested decision] the Commission considers TKE’s argument groundless that the absence of overlaps in the management boards of TKE and the subsidiaries during the period of the infringements would exclude TKE’s liability. Moreover, as was set out in greater detail in recital 626, the attribution of liability to a parent company does not require any overlap between the two undertakings’ businesses. The Commission therefore considers TKE’s argument that “TKE is a pure intermediate holding company which does not run the day-to-day operative business of the companies it holds” and that therefore TKE was not able to exert influence on its subsidiaries, insufficient. Indeed, within a single economic entity it is presumed that the subsidiary essentially follows the parent’s instructions and there is no need for the parent to directly run the day-to-day operation of the subsidiary in order to exert a decisive influence over its commercial policy. The fact that TKE issued an intra-group instruction ordering its subsidiaries to focus on their home markets and that the subsidiaries followed such instructions demonstrates that TKE made use of the possibility to exercise decisive influence over the business activities of its subsidiaries. ...’
102. The Commission also stated, in recital 640 of the contested decision, that ‘[i]n their replies to the statement of objections, TKE and its relevant subsidiaries did not provide evidence clarifying their corporate relationships, the management structure and reporting requirements for the purposes of rebutting the presumption that the subsidiaries did not determine independently their own conduct on the market’ and concluded that ‘TKAG and its wholly-owned subsidiary, TKE, [had] not rebutted the presumption of liability for the infringements committed in Belgium, Germany, Luxembourg and the Netherlands’.
103. The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 maintain, in substance, that the principles on imputing to a parent company the unlawful conduct of its subsidiary have been infringed. They put forward, moreover, a number of arguments intended to show that the subsidiaries of the ThyssenKrupp group referred to in paragraph 99 above (‘the ThyssenKrupp subsidiaries’) determine their commercial policy independently, without any influence from their parent companies. Lastly, they assert that the Commission has infringed the principle that penalties must fit the offence, the principle of the presumption of innocence, their rights of defence and the duty to state reasons.
– The presumption of TKAG’s and TKE’s liability for the conduct of their subsidiaries
104. In the first place, it is not in dispute that, during the period of the infringement, TKAG directly held the entire share capital of TKE, which itself directly held the entire share capital of TKA and, indirectly, the entire share capital of TKAL, TKLA and TKF. Moreover, TKAG was also the ultimate parent company of TKL. Having regard to the case-law cited in paragraph 96 above, there is therefore a presumption that TKAG and TKE exercised a decisive influence over the conduct of their respective subsidiaries. The applicants in Cases T‑149/07 and T‑150/07 cannot therefore claim that the Commission disregarded the principles regarding the apportionment of the burden of proving the subsidiaries’ dependency upon their parent companies.
105. The applicants in Cases T‑149/07 and T‑150/07 maintain, moreover, that the conduct of subsidiaries cannot be attributed to the parent company where the parent company has not actually participated in the infringement, according to the principle that penalties must be specific to the offender, which is also inherent in the Commission’s decision-making practice.
106. It must be observed in this connection that, in accordance with the principle that penalties must be specific to the offender, which is applicable in any administrative proceedings which may lead to the imposition of penalties under the EU competition rules, an undertaking may be penalised only for acts imputed to it individually (see, to that effect, Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni
v Commission [2001] ECR II‑3757, paragraph 63).
107. However, that principle must coexist with the concept of an ‘undertaking’. It is not because of a parent-subsidiary relationship in which the parent company instigates the infringement, nor a fortiori because of the parent company’s involvement in the infringement, but because they constitute a single undertaking for the purposes of Article 81 EC that the Commission is able to address a decision imposing fines to the parent company (see, to that effect, Case T-203/01 Michelin
v Commission [2003] ECR II-4071, paragraph 290). It must be observed that TKAG and TKE were held individually liable for the infringements which they were deemed to have committed themselves on account of the close legal and economic links between them and their subsidiaries (see, to that effect, Metsä-Serla and Others
v Commission, paragraph 94 above, paragraph 34).
108. Furthermore, as regards the applicants’ reliance upon the Commission’s decision-making practice, it must be observed that the Commission’s assessments of the facts in earlier cases cannot be transposed to the present case (see, to that effect, Case T‑282/06 Sun Chemical Group and Others
v Commission [2007] ECR II‑2149, paragraph 88) and that decisions in other cases can only give an indication, since the facts of the cases are not the same (see, to that effect, Case C‑167/04 P JCB Service v Commission
[2006] ECR I‑8935, paragraphs 201 and 205, and Case C‑76/06 P Britannia Alloys & Chemicals
v Commission  [2007] ECR I‑4405, paragraph 60). Accordingly, there has in this case been no infringement of the principle that penalties must be specific to the offender.
109. In the second place, the applicants in Cases T‑149/07 and T‑150/07 argue that imputing the conduct of a subsidiary to a parent company may only enter into consideration if it is objectively necessary in order to ensure the practical effectiveness of the competition rules.
110. Such an assertion arises from a misreading of the case-law mentioned in paragraphs 90 to 98 above and must therefore be rejected. Indeed, since the Commission was entitled to take the view that TKAG, TKE and the ThyssenKrupp subsidiaries constitute, for the purposes of applying Article 81 EC, a single undertaking and that that undertaking was therefore personally liable for the infringements which it is deemed to have committed itself, the Commission was under no obligation, in the context of examining whether the infringement of a subsidiary could be imputed to a parent company, to check whether that imputation was necessary in order to ensure the ‘practical effectiveness’ of EU competition law.
111. In the third place, the applicants in Cases T-144/07, T‑149/07, T‑150/07 and T‑154/07 submit that the presumption of liability set out in paragraph 96 above infringes the principle of the presumption of innocence and conflicts with Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’) and Article 48(1) of the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1) (‘the Charter’).
112. It must be pointed out that the principle of the presumption of innocence, as it results in particular from Article 6(2) of the ECHR, is one of the fundamental rights which, according to the case-law of the Court of Justice, reaffirmed by Article 6(2) EU and by Article 48(1) of the Charter, are recognised in the legal order of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (Case T‑279/02 Degussa
v Commission
[2006] ECR II‑897, paragraph 115 and the case-law cited).
113. The principle of the presumption of innocence implies that every person accused is presumed to be innocent until his guilt has been established according to law (Joined Cases T-22/02 and T-23/02 Sumitomo Chemical and Sumika Fine Chemicals
v Commission
[2005] ECR II-4065, paragraph 106).
114. As regards the question whether a rule concerning the possibility of imputing an infringement such as that stated in the case-law cited in paragraph 96 above is compatible with Article 6(2) of the ECHR, the Court would point out that the European Court of Human Rights has held that that provision does not preclude presumptions of fact or of law provided for in the criminal law, but requires them to be confined within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (see Salabiaku v. France, judgment of 7 October 1988, Series A no. 141-A, § 28; see also, to that effect, Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, judgment of 23 September 2008, Reports of Judgments and Decisions
2008, § 40). Thus, the presumption of innocence is not disregarded if in competition proceedings certain conclusions are drawn on the basis of common experience provided that the undertakings concerned are at liberty to refute those conclusions (see, by analogy, Opinion of Advocate General Kokott in Case C-8/08 T‑Mobile Netherlands and Others
[2009] ECR I-4529, I-4533, point 93).
115. In the present case, the Commission first of all established, in the contested decision, without having recourse to any presumption of fact or law, that the ThyssenKrupp subsidiaries committed infringements of Article 81 EC in Belgium, Germany, Luxembourg and the Netherlands.
116. Given that Article 81 EC concerns the conduct of undertakings, the Commission went on to examine whether the economic entity which had committed those infringements also encompassed the parent companies of the ThyssenKrupp subsidiaries. It established that TKAG and TKE had exercised decisive influence over the conduct of their subsidiaries, relying on the presumption of liability deriving in particular from the case-law cited in paragraph 96 above. Finally, in compliance with the rights of the defence, those parent companies, which were addressees of the statement of objections, had the opportunity to rebut that presumption by adducing evidence demonstrating the independence of their subsidiaries. The Commission none the less concluded, in recital 641 of the contested decision, that the presumption had not been rebutted.
117. Since the presumption referred to in paragraph 96 above was rebuttable, concerning only the imputation to a parent company of an infringement already established in the case of its subsidiary and arising moreover in the framework of a procedure that observed the rights of the defence, the complaint alleging infringement of the principle of the presumption of innocence must, consequently, be rejected.
118. In the fourth place, the applicant in Case T-149/07 submits that there is no objective reason for the imposition of a fine on TKE, and that it stands in contradiction to the fact that the Commission has not imposed fines on other intermediate companies.
119. This submission must also be rejected. The possibility of imposing a penalty on the ultimate parent company for its subsidiary’s unlawful conduct does not mean that an intermediate holding company or the subsidiary itself may not be penalised, provided that the Commission is entitled to regard those companies as forming a single undertaking. Thus, in such case, the Commission may, if the conditions governing imputation are met, choose to penalise the subsidiary which participated in the infringement, the intermediate parent company which controlled it during the relevant period and the ultimate parent company of the group (see, to that effect, Raiffeisen Zentralbank Österreich and Others
v Commission, paragraph 60 above, paragraph 331).
120. It follows from all the foregoing that the entirety of the complaints regarding the application in the present case of the presumption of TKAG’s and TKE’s liability for the conduct of their subsidiaries must be rejected.
– The evidence put forward by the applicants to rebut the presumption of TKAG’s and TKE’s liability for the conduct of their respective subsidiaries
121. The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 maintain, in substance, that, even if there is a presumption of liability on the part of TKAG and TKE for the conduct of their subsidiaries, that presumption has been rebutted, since it was demonstrated to the Commission, during the administrative procedure and in particular in the meetings of 1 March 2005 and 20 September 2006, that the ThyssenKrupp subsidiaries had acted and continued to act in an economically and legally independent fashion.
122. First, the applicants in Cases T‑147/07, T‑148/07, T‑149/07 and T‑150/07 argue that TKAG is no more than a holding company which merely owns shareholdings, through the intermediary of other holding companies, in the local companies which participated in the cartels, and that TKE is merely an intermediate holding company that has no involvement in operational activities in the elevator and escalator sector. Those arguments must be rejected. The simple fact of being a holding company or an intermediate holding company is not such as to rebut the presumption of the parent company’s liability for the conduct of its subsidiaries. In that regard, it must specifically be recalled that, in the context of a group of companies, such as in the present case, 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, paragraphs 60 and 63).
123. Second, the applicants in Cases T‑147/07, T‑149/07, T‑150/07 and T‑154/07 assert that, because of the decentralised operating structure of the ‘Elevator’ segment of ThyssenKrupp, the ThyssenKrupp subsidiaries, which had their own human and physical resources, participated in the infringements without any influence from TKE or TKAG.
124. Such assertions cannot rebut the presumption of liability on the part of TKAG and TKE for the conduct of the ThyssenKrupp subsidiaries as they are unsupported. It must, in any event, be observed that the division of TKAG’s subsidiaries into segments – such as the ‘Elevator’ segment, for which TKE is responsible – into which all ThyssenKrupp subsidiaries are organised, including TKL, which is not a subsidiary of TKE, is if anything an indication that the parent companies in question do exert a decisive influence over their subsidiaries.
125. Third, the argument put forward by the applicants in Cases T‑147/07, T‑149/07, T‑150/07 and T‑154/07 to the effect that there is no overlap between the management bodies of TKE and TKAG and their relevant subsidiaries cannot be upheld. The assertion, it must be emphasised, is not supported by any documentary evidence, even though such evidence could have been produced in the form, inter alia, of the list of names of the members of the statutory organs of the said undertakings at the time of the infringement (see, to that effect, Schunk and Schunk Kohlenstoff-Technik
v Commission, paragraph 122 above, paragraph 69). Moreover, the organisational, economic and legal links between TKAG, TKE and the ThyssenKrupp subsidiaries may establish that the parent companies exercise an influence over the strategies of their subsidiaries and therefore that they can be viewed as a single economic entity (see, to that effect, Case T-112/05 Akzo Nobel and Others
v Commission
[2007] ECR II-5049, paragraph 83).
126. Fourth, the applicants in Cases T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 emphasise that they participated in the procedure independently and that they gave individual replies to the statement of objections.
127. That argument is also incapable of rebutting the presumption that TKAG and TKE are liable for the conduct of their subsidiaries. Admittedly, the Court of Justice has held that, where a parent company presents itself as the Commission’s sole interlocutor concerning an infringement, that fact may point to the exercise of a decisive influence over a subsidiary’s conduct ( Stora Kopparbergs Bergslags
v Commission, paragraph 98 above, paragraph 29). Nevertheless, the fact that the subsidiaries of a group give separate replies to a statement of objections cannot, in itself, constitute proof of the independence of those subsidiaries.
128. Fifth, the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07 and T‑150/07 maintain that recital 639 of the contested decision is incorrect, in that the Commission took the view that TKE’s decisive influence over the conduct of its subsidiaries was demonstrated by the fact that TKE issued an intra-group instruction requiring its subsidiaries to focus on their home markets, whereas in fact that instruction merely reflected the commercial policy of the national subsidiaries. Focusing on home markets was a result of a division of tasks among the subsidiaries, which arose from the particular conditions of the market.
129. That argument is based on a misreading of recitals 634 to 639 of the contested decision. Indeed, it is clear from those recitals that it was because TKE held the entire share capital of its subsidiaries and because of the resulting presumption – which was not rebutted – of the exercise of a decisive influence over the commercial policy of those subsidiaries that the Commission concluded that TKE must be held liable for the infringements committed by its subsidiaries. Admittedly, in recital 639 of the contested decision, the Commission also stated that the fact that TKE had issued an intra-group instruction ordering its subsidiaries to focus on their home markets, and that the subsidiaries followed that instruction, showed that TKE had made use of its ability to exert a decisive influence over the commercial activities of its subsidiaries. Nevertheless, that reasoning was a response to the argument formulated in TKE’s reply to the statement of objections that TKE was merely an intermediate holding company that did not run the day-to-day activities of the companies which it owned (see paragraph 122 above).
130. In any event, and contrary to the applicants’ assertions, the fact that TKE issued an instruction to the subsidiaries of the group within the ‘Elevator’ segment to focus on their home markets is, as the Commission emphasised, evidence of TKE’s decisive influence over the conduct not only of its subsidiaries, but also of TKL, which, as the applicant in Case T‑149/07 confirmed at the hearing, is part of that segment.
131. It follows from all the foregoing that the Commission was entitled to conclude, in recital 641 of the contested decision, that the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 had not rebutted the presumption of liability on the part of TKAG and TKE for the infringements committed by the ThyssenKrupp subsidiaries in Belgium, Germany, Luxembourg and the Netherlands
The infringement of the duty to state reasons and of the rights of the defence
132. The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 submit, in substance, that the Commission infringed its duty to state reasons in a number of respects. First of all, the contested decision is vitiated by a lack of reasoning in so far as concerns the finding that TKAG, TKE and the ThyssenKrupp subsidiaries formed an economic unit and fails to state in what way the evidence put forward by the companies within the ThyssenKrupp group was insufficient to rebut the presumption of liability. Next, the Commission ignored several pieces of evidence submitted by the applicants in Cases T-149/07 and T‑150/07 in reply to the statement of objections. Lastly, recital 639 of the contested decision contains errors in reasoning and, moreover, refers to the Commission’s findings with regard to the Otis group.
133. It must be recalled at the outset that it is settled case-law that, whilst, in stating the reasons for the decisions which it takes to enforce the rules on competition, the Commission is not required to discuss all the issues of fact and law and the considerations which have led it to adopt its decision, it is none the less required under Article 253 EC to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the Court and the persons concerned the circumstances in which it has applied the Treaty (Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 95 and the case-law cited).
134. First of all, the argument of the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 alleging a lack of reasoning in so far as concerns the finding that the companies within the ThyssenKrupp group to which the contested decision was addressed formed an economic unit must be rejected. Indeed, it must be observed that it is clear from recitals 633 to 641 of the contested decision that the Commission stated to the requisite legal standard the reasons for which the conduct of the ThyssenKrupp subsidiaries could be attributed to their respective parent companies TKE and/or TKAG. Indeed, in those recitals, the Commission relied upon the case-law mentioned in paragraph 96 above in reaching its conclusion that TKAG and TKE must be held liable for the conduct of their subsidiaries which were involved in the infringements of Article 81 EC. It also held that the applicants had failed to rebut the presumption of liability.
135. Second, the argument put forward by the applicants in Cases T‑149/07 and T‑150/07 that the Commission had remained silent as regards certain arguments formulated in reply to the statement of objections cannot be upheld.
136. In this context, in so far as TKE argued in its reply to the statement of objections that there had been no supranational directives and that TKE and its subsidiaries had acted independently in the administrative procedure, it must be observed that, in recital 639 of the contested decision, the Commission stated that ‘the fact that TKE issued an intra-group instruction ordering its subsidiaries to focus on their home markets, and that the subsidiaries followed that instruction demonstrates that TKE made use of the possibility to exercise decisive influence over the business activities of its subsidiaries’. Moreover, whilst, admittedly, the Commission gave no answer in the contested decision to the argument that TKE and its subsidiaries had acted independently in the administrative procedure, it must be observed that such an argument could not have had decisive importance in the context of the decision and did not, therefore, given the case-law cited in paragraph 133 above, call for any explicit answer from the Commission.
137. Furthermore, the Commission also answered the arguments formulated by TKAG in its reply to the statement of objections. In its reply, TKAG claimed that the fact of making an application under the 2002 Leniency Notice cannot give rise to actual liability on the part of TKAG, that TKAG was neither directly nor indirectly involved in the infringement, that the elevator and escalator sector was organised in a decentralised fashion and was managed independently by the national subsidiaries, that TKAG was merely a holding company which had no involvement in the operational activities of its subsidiaries active in the elevator and escalator field, that the operating companies had not complied with the directives relating to compliance with laws given to them by TKE and requiring them to bring the infringement to an end, that there was no evidence in the Commission’s file to prove that TKAG exercised a decisive influence over the operating companies and that TKAG’s participation in the administrative procedure had always been independent of that of the other companies. As the Commission rightly points out, paragraphs 74 to 87 of TKAG’s reply to the statement of objections contain mainly observations on the legal standard to be applied when imputing to a parent company the conduct of its subsidiary, upon which the Commission expressed its position in recitals 603 to 605 and 639 of the contested decision. In so far as concerns the factual assertions made therein, TKAG provided no evidence of them, merely referring to the directives relating to compliance with competition law, which, moreover, were not annexed to TKAG’s reply to the statement of objections. Lastly, as regards the argument that TKAG acted independently of its subsidiaries in the administrative procedure, given the case-law cited in paragraph 133 above, that did not call for any explicit answer from the Commission.
138. Consequently, the complaint alleging a failure to give a proper statement of reasons must be rejected.
139. Third, the applicants in Cases T‑144/07, T‑147/07, T‑148/07 and T‑149/07 argue that recital 639 of the contested decision is vitiated by a lack of reasoning and is ‘flawed as a matter of logic’ in that the Commission took the view that it could be presumed that, within a single economic entity, the subsidiary carries out, in all material respects, the instructions of the parent company. That, according to those applicants, amounts to inferring from the desired conclusion of the analysis (in this case, the existence of an economic unit), the very condition of such a conclusion (namely the absence of any evidence of the commercial independence of the ThyssenKrupp subsidiaries). Moreover, it is illogical to dismiss an argument capable of rebutting the presumption – in this case, the absence of any personal links between the boards of directors of TKE and its subsidiaries – by asserting that an overlap between the managing bodies is not necessary for the application of the presumption.
140. That argument cannot be accepted either. First of all, it misconstrues the rules on the presumption of liability as they result from the case-law mentioned in paragraphs 96 and 97 above and, in particular, the fact that the presumption may be rebutted by the parent company by adducing evidence demonstrating the independence of its subsidiaries. Second, the Commission did not reject the applicants’ argument relating to the absence of any overlap between TKE and its subsidiaries with the assertion that an overlap between the management bodies was not a condition for the presumption of liability on the part of a parent company. On the contrary, it is clear from the reference to recital 619 of the contested decision, and also from recital 640 of the decision, that the Commission rejected that argument because TKE had provided no evidence in support of it. In this connection, it must be emphasised that, even during the procedure before the Court, the applicants’ assertions relating to the absence of any overlap between TKE’s and TKAG’s managing bodies and their relevant subsidiaries were unsupported by any documentary evidence (see paragraph 125 above).
141. As regards recital 639 of the contested decision, the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07 and T‑150/07 also maintain that their rights of defence have been violated inasmuch as the reasoning set out in that recital refers to recital 626 of the contested decision, which addresses the question whether the companies within the Otis group form an economic unit, and the Commission did not divulge the decisive passages of recitals 622 to 625 of the contested decision to ThyssenKrupp.
142. It must be observed in this connection that the applicants fail to explain in what way the reference in recital 639 of the contested decision to recital 626 thereof affected their rights of defence during the administrative procedure.
143. In so far as the complaint mentioned in paragraph 141 above must be interpreted as alleging a failure to state reasons, the Court observes that, in its reference in recital 639 of the contested decision to recital 626 thereof, the Commission merely stated that, ‘as was set out in greater detail in recital (626), the attribution of liability to a parent company does not require any overlap between the two undertakings’ businesses’. The Court must, however, note that the explanations to which recital 639 refers are not to be found in recital 626 of the contested decision, which was not concealed from the companies within the ThyssenKrupp group, but in fact appear in the preceding recital, in particular in the following passage of recital 625, which, similarly, was not concealed from the ThyssenKrupp group of companies:
‘… the attribution of liability for a subsidiary’s market behaviour does not require an overlap with the parent’s business activities or a close connection with the subsidiary’s business. It is only normal that different activities and specialisations are assigned to different entities within a corporate group.’
144. The applicants cannot therefore validly maintain that the legal principles upon which the Commission relied in recital 639 of the contested decision were not made clear. That being so, the complaint set out in paragraph 141 above must also be rejected.
145. Fourth, the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 submit that the Commission set out in its defence a series of new arguments which, nevertheless, cannot make good the failure to state reasons in the contested decision. These new arguments were raised late, are inadmissible and, in any event, are unfounded.
146. As was recalled in paragraph 133 above, the Commission is required under Article 253 EC to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the Courts of the Union and the persons concerned the circumstances in which it has applied the Treaty. It is also clear from the case-law that, other than in exceptional circumstances, the statement of reasons must be contained in the decision itself, and it is not sufficient for it to be explained subsequently for the first time before the Court (see European Night Services and Others v Commission, paragraph 133 above, paragraph 95 and the case-law cited). The statement of reasons must, therefore, in principle be notified to the person concerned at the same time as the decision adversely affecting him (see Dansk Rørindustri and Others
v Commission, paragraph 94 above, paragraph 463 and the case-law cited).
147. As the Court has already held, in paragraph 134 above, it is clear from recitals 633 to 641 of the contested decision that the Commission stated to the requisite legal standard the reasons for which the conduct of the ThyssenKrupp subsidiaries could be attributed to their respective parent companies TKE and/or TKAG. It must be observed in this connection that the argume nts which the Commission set out in its defence were intended solely to answer the arguments set out in the applicants’ pleadings, not to make good any alleged failure to state reasons in the contested decision.
148. It follows that this complaint also cannot be upheld.
149. Thus, the entirety of the complaints put forward by the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 alleging infringement of Article 253 EC and of the rights of the defence as regards the attribution to TKAG and TKE of the infringements committed by the ThyssenKrupp subsidiaries must be rejected.
The requests for measures of inquiry
150. In support of their submission that the companies within the ThyssenKrupp group have explained in detail the decentralised organisation, within the group, of the business sectors concerned by the contested decision, the applicants in Cases T‑147/07, T‑148/07, T‑149/07 and T‑150/07 propose that, in accordance with Article 65(c) of the Rules of Procedure, the oral testimony should be heard of the Commission’s file manager, an official who led the inspections in Germany on 28 and 29 January 2004, as well as that of a member of TKE’s executive board. In addition, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 propose that the oral testimony of a representative of TKAG be heard. The applicant in Case T‑149/07 also requests the Court to order the Commission to produce its Decision C(2005) 4634 of 30 November 2005 relating to a proceeding under Article 81 [EC] (Case COMP/38354 – Industrial bags), a summary of which was published in the Official Journal of 26 October 2007 (OJ 2007 L 282, p. 41), from which it is clear that there is no objective reason for imposing a fine, jointly and severally, upon an intermediate holding company where a fine has already been imposed on the infringing subsidiaries and on the company heading the group.
151. As regards the assessment of applications made by a party for measures of inquiry, it must be pointed out that the General Court is the sole judge of any need to supplement the information available to it concerning the cases before it (Case C‑260/05 P Sniace
v Commission
[2007] ECR I‑10005, paragraph 77 and the case-law cited).
152. First, as regards the requests for witnesses to be heard in order to demonstrate that the companies within the ThyssenKrupp group explained in detail the decentralised organisation, within the group, of the business sectors concerned by the contested decision, it should be pointed out that the Commission does not dispute that the companies within the group provided oral explanations of its decentralised organisation. Notwithstanding, it took the view that the arguments of the companies within the ThyssenKrupp group were not supported by documentary evidence and were even contradicted by certain information in the file.
153. Second, as regards the request for Decision C(2005) 4634 to be produced, that cannot be regarded as necessary to the resolution of the dispute, since the Commission’s practice in previous decisions cannot itself serve as a legal framework for the imposition of fines in competition matters ( JCB Service v Commission, paragraph 108 above, paragraphs 201 and 205; Britannia Alloys & Chemicals
v Commission, paragraph 108 above, paragraph 60; and Case T‑73/04 Carbone‑Lorraine
v Commission
[2008] ECR II‑2661, paragraph 92).
154. The requests for measures of inquiry must therefore be rejected, since the information contained in the file is sufficient to enable the Court to rule on the present plea.
155. It is clear from all the foregoing that the present plea must be rejected.
6. The applications for annulment of the fines imposed or a reduction in their amount
The plea alleging breach of the principle non bis in idem
156. In recital 655 of the contested decision, the Commission rejected ThyssenKrupp’s argument that any fine imposed on it would be in breach of the principle non bis in idem in view of the supposed leniency decisions of the national competition authorities in Belgium, Luxembourg and the Netherlands. It stated that:
‘Application [of] the principle [ non bis in idem ] … presupposes that a ruling has been given on the question whether an offence has in fact been committed or that the legality of such conduct has been reviewed. In this case none of the national competition authorities mentioned by ThyssenKrupp has investigated the case [or] taken a final decision as to the substance of the facts. The principle non bis in idem does not prevent the Commission from using its powers in cases where a provisional decision concerning leniency has been adopted at national level. In addition, in this case, all the alleged national decisions referred to by ThyssenKrupp were adopted after the Commission had initiated proceedings, within the meaning of Article 11(6) of Regulation No 1/2003. According to this provision, in such circumstances, all national competition authorities are relieved of their competence to apply Article 81 [EC] …’
157. The applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 maintain that the contested decision breaches the principle non bis in idem . To this end, they argue that the Commission was not entitled to impose fines on them in respect of the infringements committed by ThyssenKrupp in Belgium, Luxembourg and the Netherlands given that their trial in respect of those infringements had been finally disposed of, within the meaning of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19) (‘the CISA’), by the Belgian, Luxembourg and Netherlands competition authorities. In this connection, they refer to the decision of the Belgian corps des rapporteurs [ confidential ], (1) the opinion on leniency of the Luxembourg competition authority [ confidential ] and the leniency agreement (clementietoezegging) of the Netherlands competition authority [ confidential ]. They also emphasise that the decisions of the national competition authorities preceded the initiation of the Commission’s proceedings, on 7 October 2005, such that the national competition authorities cannot be regarded as having been relieved of their competence under Article 11(6) of Regulation No 1/2003 at the time they took their decisions.
158. It must be noted that the principle non bis in idem, also enshrined in Article 4 of Protocol No 7 to the ECHR, constitutes a fundamental principle of EU law the observance of which is guaranteed by the Courts of the Union (Case C‑308/04 P SGL Carbon
v Commission [2006] ECR I‑5977, paragraph 26, and Case T‑410/03 Hoechst
v Commission [2008] ECR II‑881, paragraph 598).
159. In the field of EU competition law, it has already been held that the principle precludes an undertaking from being held liable by the Commission, or made the defendant to proceedings brought by the Commission, a second time in respect of anti-competitive conduct for which it has already been penalised or of which it has been exonerated by a previous decision of the Commission that is not amenable to challenge (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others
v Commission [2002] ECR I‑8375, paragraph 59; Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission
[2003] ECR II‑2597, paragraphs 85 and 86; Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others
v Commission
[2004] ECR II‑1181, paragraphs 130 and 131; and FNCBV and Others
v Commission, paragraph 69 above, paragraph 340).
160. The application of the principle non bis in idem therefore presupposes that a ruling has been given on the question whether an offence has in fact been committed or that the legality of the assessment thereof has been reviewed ( Limburgse Vinyl Maatschappij and Others
v Commission, paragraph 159 above, paragraph 60). Thus, the principle non bis in idem
merely prohibits a fresh assessment in depth of the alleged commission of an offence which would result in the imposition of either a second penalty, in addition to the first, in the event that liability is established a second time, or a first penalty in the event that liability not established by the first decision is established by the second ( Limburgse Vinyl Maatschappij and Others
v Commission, paragraph 159 above, paragraph 61).
161. As for the question whether a decision of a national competition authority can prevent the Commission from penalising the same undertaking a second time or making it the defendant to proceedings a second time, it must be recalled that the application of the principle non bis in idem
is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. That principle therefore precludes a penalty being imposed on the same person more than once for the same unlawful conduct for the purpose of protecting the same legal asset (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others
v Commission
[2004] ECR I‑123, paragraph 338; FNCBV and Others
v Commission, paragraph 69 above, paragraph 340; and Hoechst
v Commission, paragraph 158 above, paragraph 600).
162. Given that the action of the Member States’ competition authorities on the one hand and of the Commission on the other when bringing proceedings against undertakings or penalising them for infringements of Articles 81 EC and 82 EC, under the powers conferred upon them by Articles 5 and 14 of Regulation No 1/2003 respectively, is intended to protect the same legal asset, namely the free competition within the common market which constitutes a fundamental objective of the Community under Article 3(1)(g) EC (see, to that effect, SGL Carbon
v Commission, paragraph 158 above, paragraph 31), it must be held that the principle non bis in idem precludes an undertaking from being penalised a second time or made the defendant to proceedings brought by the Commission a second time for an infringement of Article 81 EC or 82 EC for which it has already been penalised, or of which it has been exonerated, by a previous decision of a national competition authority adopted under Article 5 of Regulation No 1/2003 which has become final.
163. It is therefore appropriate to examine, in the first place, whether the acts referred to in paragraph 157 above constitute decisions of national competition authorities penalising the applicants for, or definitively exonerating them of, the infringements committed in Belgium, Luxembourg and the Netherlands found in the contested decision.
164. It must be observed that the acts of the national competition authorities in question do refer to the immunity which the companies within the ThyssenKrupp group might, if appropriate, enjoy in respect of the infringements in Belgium, Luxembourg and the Netherlands that were subsequently found and censured in the contested decision. However, as the Commission rightly emphasised in recital 655 of the contested decision, ‘none of the national competition authorities mentioned by ThyssenKrupp … have taken a final decision on the substance’. Since the acts of the national competition authorities to which the applicants refer gave no ruling on the question whether the infringements were actually committed in Belgium, Luxembourg and the Netherlands, they cannot, according to the case-law cited in paragraph 160 above, prevent the Commission from finding and imposing penalties for those infringements in the contested decision.
165. According to the applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07, a cursory examination of an infringement by a national competition authority is, however, sufficient in order for the principle non bis in idem to apply. They refer, in this connection, to Article 54 of the CISA and to the judgment of 2003 of the Court of Justice in Joined Cases C‑187/01 and C‑385/01 Gözütok and Brügge ECR I‑1345, paragraph 30, which, they allege, invalidated the judgment in Limburgse Vinyl Maatschappij and Others
v Commission, paragraph 159 above (paragraph 60). The immunity decisions of the national competition authorities therefore satisfy the conditions of Article 54 of the CISA.
166. It must be observed in this connection that Article 54 of the CISA provides that ‘[a] person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts …’. According to Gözütok and Brügge, paragraph 165 above, paragraphs 30 and 31, a person’s case is finally disposed of if, following a national procedure, further prosecution is definitively barred, even if no court is involved in such a procedure.
167. Even supposing that Article 54 of the CISA, to the extent that it constitutes the expression of a general principle of EU law, namely the principle non bis in idem, could be relied upon in the field of EU competition law, it should be observed that a provisional amnesty decision taken by a national competition authority cannot, in any event, be regarded as falling within the scope of that provision. Indeed, the provisional grant of leniency does not have the finality of a definitive bar on further prosecution, as is required by Article 54 of the CISA.
168. First, as regards the supposed decision of the Belgian competition authority, it must be observed that that decision, [ confidential ], was issued by the Belgian corps des rapporteurs . According to the communication conjointe du conseil de la concurrence et du corps des rapporteurs sur l’immunité d’amendes et la réduction de leur montant dans les affaires portant sur des ententes (joint communication from the competition council and the corps des rapporteurs on immunity from fines and the reduction of fines in cartel cases; ‘the Belgian Leniency Notice’), applications for leniency made to the Belgian competition authority are first examined by the corps des rapporteurs (points 7 and 8 of the Belgian Leniency Notice). However, given that ‘… the competition council ... is the body with power to adopt decisions’ (point 7 of the Belgian Leniency Notice), it is for that authority alone to adopt a final leniency decision ‘[o]n conclusion of the investigation ... on the basis of the rapporteur’s investigation report ...’ (point 8 of the Belgian Leniency Notice; see also points 21 and 22). In light of that legal framework in Belgium, a letter from the corps des rapporteurs relating to an application for immunity thus remains purely provisional.
169. The provisional nature of the letter from the corps des rapporteurs [ confidential ] is also clear from its content, in that it confirms that the applications ‘satisfy, prima facie, the conditions for the grant of immunity ...’.
170. It cannot, therefore, be concluded that the letter from the corps des rapporteurs [ confidential ] definitively barred further prosecution in so far as concerns ThyssenKrupp’s involvement in the infringement in Belgium. Since the trial of ThyssenKrupp has not been ‘finally disposed of’, within the meaning of Article 54 of the CISA, by the Belgian competition authority, the Commission was not in this case prevented from finding and imposing penalties for, in Article 1(1) and Article 2(1) of the contested decision respectively, that undertaking’s involvement in the infringement in Belgium.
171. Second, as regards the opinion on leniency of the Luxembourg competition council [ confidential ], it must be observed that that opinion took formal note of TKAL’s and TKE’s application for leniency and confirmed that it took priority for the purposes of the procedure in Luxembourg (Articles 1 and 2 of the opinion on leniency). Nevertheless, as with the letter from the Belgian corps des rapporteurs, no final decision was taken on the application for immunity. Indeed the Luxembourg competition council took the view that it was ‘appropriate to stay proceedings on the substance of the leniency application pending the outcome of the Commission investigation ...’ (point 6 and Article 3 of the opinion on leniency).
172. That being so, the trial of ThyssenKrupp has not been ‘finally disposed of’, within the meaning of Article 54 of the CISA, by the opinion on leniency [ confidential ] of the Luxembourg competition council either. Therefore, that opinion on leniency did not prevent the Commission from finding and imposing penalties in respect of, in Article 1(3) and Article 2(3) of the contested decision respectively, that undertaking’s involvement in the infringement in Luxembourg.
173. Third, as regards the leniency agreement of the Netherlands competition authority [ confidential ], it must be observed that that agreement is not final either. Indeed, it granted TKAG and TKL immunity only in the event that the Netherlands competition authority were itself to examine and pursue the infringement in the Netherlands, either at the Commission’s request or on its own initiative (point 7 of the leniency agreement). However, since that did not transpire in this case, the leniency agreement remained provisional and did not have the effect of definitively barring further prosecution of ThyssenKrupp for its infringement in the Netherlands.
174. That being so, the leniency agreement did not prevent the Commission from finding and imposing penalties for, in Article 1(4) and Article 2(4) of the contested decision respectively, ThyssenKrupp’s involvement in the infringement in the Netherlands.
175. The Commission was therefore entitled to conclude, in recital 655 of the contested decision, that the acts of the national competition authorities referred to in paragraph 157 above were provisional leniency decisions which did not prevent it from exercising its powers.
176. In the second place, in light of the above findings, the applicants’ argument that the Commission erred in taking the view, in recital 655 of the contested decision, that the national competition authorities in question had been relieved of their competence in accordance with Article 11(6) of Regulation No 1/2003 at the time they adopted the acts mentioned in paragraph 157 above is ineffective. Indeed, even supposing that those authorities still had jurisdiction to adopt leniency decisions when they adopted the acts mentioned in paragraph 157 above, it must be observed that those acts are insufficient, in the present case, to enable the application of the principle non bis in idem, since they gave no ruling on the question whether the infringement had actually been committed and, in any event, were only provisional.
177. The same applies to the argument alleging the primacy of the principle non bis in idem over the secondary legislation of the European Union, since, in any event, the conditions for applying that principle are not satisfied in the present case.
178. In the third place, the applicants in Cases T‑144/07, T‑149/07 and T‑150/07 argue that they had a legitimate expectation that the acts of the national competition authorities mentioned in paragraph 157 above protected them from fresh proceedings being launched by the Commission.
179. The right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is clear that the EU authorities have given him precise assurances, thereby causing him to entertain justified expectations (Joined Cases C-37/02 and C-38/02 Di Lenardo and Dilexport
[2004] ECR I-6911, paragraph 70; Case T-203/96 Embassy Limousines & Services
v Parliament
[1998] ECR II-4239, paragraph 74; and judgment of 15 November 2007 in Case T-71/06 Enercon v OHIM (Wind Turbine), not published in the ECR, paragraph 36).
180. However, a person may not plead infringement of the principle of the protection of legitimate expectations unless he has been given precise assurances by the authorities (Case T-571/93 Lefebvre and Others
v Commission [1995] ECR II‑2379, paragraph 72, and Case T-113/96 Dubois et Fils
v Council and Commission
[1998] ECR II-125, paragraph 68). Regardless of the form in which it is communicated, information that is precise, unconditional and consistent which comes from an authorised and reliable source constitutes such assurance (Joined Cases T-66/96 and T-221/97 Mellett
v Court of Justice
[1998] ECR-SC I-A-449 and II-1305, paragraphs 104 and 107).
181. It must be observed that the applicants have put forward no evidence to show that the Commission gave them precise assurances that the acts of the national competition authorities mentioned in paragraph 157 above would protect them from any proceedings and any penalty in relation to the infringements in Belgium, Luxembourg and the Netherlands found and penalised in the contested decision. Similarly, and independently of the question whether the conduct of the national competition authorities was capable of giving rise to a legitimate expectation on the part of individuals such as to affect the lawfulness of a Commission decision, the applicants have put forward no evidence to show that they received precise assurances from the national competition authorities that the acts mentioned in paragraph 157 above would prevent the Commission from finding and imposing penalties for those infringements. Lastly, as the Court has already pointed out in paragraphs 168 to 175 above, it is clear from the content of those acts that they were provisional in nature and could not, therefore, give rise to any legitimate expectation that proceedings would not be brought against ThyssenKrupp and no penalties would be imposed on it in respect of the infringements found in the contested decision.
182. The argument relating to the principle of the protection of legitimate expectations must therefore be rejected.
183. In the fourth place, and in the alternative, the applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 submit that, even if the principle non bis in idem were not to apply, the failure to take account in the contested decision of the national immunity decisions adopted in their regard amounts to a manifest error of assessment and a breach of the principles of sound administration and legal certainty.
184. First of all, as was made clear in paragraphs 158 to 175 above, the acts of the national competition authorities to which the applicants refer are provisional leniency decisions that do not prevent the Commission from exercising its powers.
185. Next, it is clear from the case-law upon which the applicants rely in support of their argument that, when determining the amount of a fine, the Commission must, in accordance with the principle of natural justice, take account of any penalties that have already been borne by the undertaking in question in respect of the same conduct where these were imposed for infringement of the law relating to cartels of a Member State and where, consequently, the infringement was committed within the European Union (Case 14/68 Wilhelm and Others
[1969] ECR 1, paragraph 1; Case 7/72 Boehringer Mannheim
v Commission [1972] ECR 1281, paragraph 3, and Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission, paragraph 159 above, paragraph 87; see also, to that effect, Case T‑322/01 Roquette Frères
v Commission [2006] ECR II‑3137, paragraph 279).
186. However, that is obviously not the situation in the present case, since it is clear that the acts of the national competition authorities mentioned in paragraph 157 above imposed no fines on the applicants.
187. Lastly, and in any event, the case-law cited in paragraph 185 above relates to decisions taken by national competition authorities at a time when Regulation No 1/2003 was not in force and addressed the risk of an infringement being subject to parallel penalties under national law and under EU competition law. As the Commission rightly points out, there is no such risk at present thanks to the European Competition Network created by Regulation No 1/2003, the provisions on cooperation between the Commission and the competition authorities of the Member States contained in that regulation and the Notice on cooperation within the Network.
188. In the present case, in light of the foregoing, no principle of EU law required the Commission to take account, when setting the fines in the contested decision, of the provisional leniency decisions mentioned in paragraph 157 above.
189. The argument put forward in the alternative by the applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 must therefore also be rejected.
190. That being so, the plea alleging breach of the principle non bis in idem must be dismissed in its entirety.
The plea alleging breach of the 1998 Guidelines, infringement of the principles of proportionality and equal treatment, and of the rights of the defence in the determination of the starting amounts of the fines according to the gravity of the infringements
Preliminary observations
191. By the present plea, the applicants in Cases T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 take issue with the Commission’s determination of the starting amounts of the fines.
192. As a preliminary point, it should be observed that it is settled case-law that the Commission enjoys a broad discretion as regards the method for calculating fines. That method, set out in the 1998 Guidelines, displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Article 23(2) of Regulation No 1/2003 (see, to that effect, Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others v Commission
[2009] ECR I-7191, paragraph 112 and the case-law cited).
193. The gravity of infringements of EU competition law must be determined by reference to numerous factors such as, in particular, the specific circumstances and context of the case and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (Case C‑510/06 P Archer Daniels Midland
v Commission [2009] ECR I-1843, paragraph 72, and Case C‑534/07 P Prym and Prym Consumer
v Commission
[2009] ECR I‑7415, paragraph 54).
194. As was stated in paragraph 25 above, in the present case, the Commission determined the amounts of the fines by applying the method laid down in the 1998 Guidelines.
195. Although the 1998 Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (see Dansk Rørindustri and Others
v Commission, paragraph 94 above, paragraph 209 and the case-law cited, and Carbone-Lorraine
v Commission, paragraph 153 above, paragraph 70).
196. In adopting such rules of practice and announcing through their publication that they will henceforth apply to the cases to which they relate, the Commission imposed a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see Dansk Rørindustri and Others
v Commission, paragraph 94 above, paragraph 211 and the case-law cited, and Carbone-Lorraine
v Commission, paragraph 153 above, paragraph 71).
197. Furthermore, the 1998 Guidelines determine, generally and abstractly, the method which the Commission has bound itself to use in setting fines and, consequently, ensure legal certainty for undertakings ( Dansk Rørindustri and Others
v Commission, paragraph 94 above, paragraphs 211 and 213).
198. Finally, it should be recalled that the 1998 Guidelines provide, in the first place, for the assessment of the gravity of the infringement as such, on the basis of which a general starting amount can be set (Section 1.A, second paragraph). In the second place, the gravity is assessed in relation to the nature of the infringements committed and the characteristics of the undertaking involved, in particular its size and its position on the relevant market, which can give rise to the weighting of the starting amount, to grouping the undertakings into categories and to setting a specific starting amount (Section 1.A, third to seventh paragraphs).
The contested decision
199. In the first place, in the section of the contested decision dealing with the gravity of the infringements (Section 13.6.1), the Commission examines the four infringements identified in Article 1 of the contested decision in parallel ‘since [they] … present common features’ (recital 657 of the contested decision). That section is divided into three subsections, the first headed ‘Nature of the infringements’ (Subsection 13.6.1.1), the second headed ‘The size of the relevant geographic market’ (Subsection 13.6.1.2) and the third headed ‘Conclusion on the gravity of the infringement’ (Subsection 13.6.1.3).
200. In the subsection headed ‘Nature of the infringements’, in recitals 658 and 659 of the contested decision, the Commission explains the following:
‘(658)	The infringements that are the subject of this Decision consisted primarily of secret collusion between cartel participants to share markets or freeze market shares by allocating projects for the sale and installation of new elevators and/or escalators, as well as not to compete with each other for [the] maintenance and modernisation of elevators and escalators (except in Germany where the maintenance and modernisation business [was] not [the] subject of discussions between the cartel members). Such horizontal restrictions are, by their very nature, among the most serious violations of Article 81 [EC]. The infringements in this case artificially nullified and denied customers the advantages they could expect to obtain from a process of competitive bidding. It is also noteworthy that some of the rigged projects were public tenders financed by taxes and carried out specifically with a view to receiving competitive and cost-effective bids.
(659)	For assessing the gravity of an infringement factors relating to its object are generally more significant than those relating to its effects, in particular where agreements, as in this case, relate to infringements which are very serious, such as price fixing and market sharing. The effects of an agreement are generally an inconclusive criterion in assessing the gravity of the infringement.’
201. The Commission states that it ‘did not attempt to demonstrate the precise effects of the infringement since it [was] impossible to determine with sufficient certainty the relevant competitive parameters (price, commercial terms, quality, innovation, and others) in the absence of the infringements’ (recital 660 of the contested decision). Nevertheless, it considered that ‘[i]t [was] obvious that the infringements did have an actual impact’ and explained to that end that ‘[t]he fact that the various anti-competitive arrangements were implemented by the cartel participants in itself suggests an impact on the market, even if the actual effect is difficult to measure because it is, in particular, not known if and how many other projects were subject to bid-rigging, nor how many projects may have been subject to allocation between cartel members without there being a need for contacts between them’ (recital 660 of the contested decision). In the same recital, the Commission adds that ‘[t]he high aggregate market shares of the cartel participants make anti-competitive effects appear likely and the relative stability of these market shares throughout the duration of the infringements would confirm these effects’.
202. In recitals 661 to 669 of the contested decision, the Commission addresses the arguments which the applicants raised during the administrative procedure to demonstrate that the infringements had only a limited effect on the market.
203. In the subsection headed ‘The size of the relevant geographic market’, the Commission maintains, in recital 670 of the contested decision, that ‘[t]he cartels that are the subject of [the contested] decision covered the whole territories of Belgium, Germany, Luxembourg [and] the Netherlands, respectively’ and that ‘[i]t is clear from case-law that a national geographic market extending to the whole of a Member State in itself already represents a substantial part of the common market’.
204. In the subsection headed ‘Conclusion on the gravity of the infringement’, the Commission states, in recital 671 of the contested decision, that ‘[t]aking into account the nature of the infringements and the fact that each of them covered the whole territory of a Member State (Belgium, Germany, Luxembourg or the Netherlands)’, each addressee has committed one or several very serious infringements of Article 81 EC. It concludes that ‘these factors are such that the infringements must be regarded as very serious even if their actual impact cannot be measured’.
205. In the second place, in the section of the contested decision headed ‘Differential treatment’ (Section 13.6.2), the Commission sets a starting amount of the fine for each undertaking to have participated in the various cartels (see paragraphs 28 to 31 above), which takes account, according to recital 672 of the contested decision, of ‘the effective economic capacity of the offenders to cause significant damage to competition’. The Commission explains in recital 673 of the contested decision that, ‘[t]o that end, the undertakings can be subdivided into several categories according to their turnover in elevators and/or escalators, including, where applicable, maintenance and modernisation services’.
The alleged unlawfulness of the general starting amounts of the fines
206. In the first place, as regards the infringement in Germany, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 argue that the Commission infringed the principle of proportionality and departed from its own decision-making practice when setting the starting amount of the fine. It in fact set the starting amount of the fine on the basis of the size of the market for elevators and escalators, a market which is worth over EUR 500 million (recital 664 of the contested decision). However, the cartels affected only escalator sales and a small proportion of elevator sales in Germany, represented by large-scale or prestige projects. The value of the market to which the agreements related is thus no more than EUR 170 million. The market for large-scale projects is distinct from other markets in the elevator sector. Only Otis, Schindler, Kone and ThyssenKrupp are present on that market and the competitive conditions there are so special that the cartels relating to it could not have had any appreciable effect on the market for standard elevators. So much is clear from an expert’s report produced by the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 (‘the expert’s report’). According to the applicants in Cases T‑149/07 and T‑150/07, speculation about possibly more significant effects cannot, in any event, be taken into account, since such speculation did not figure in the statement of objections, in breach of their rights of defence.
207. Firstly, it is important to emphasise that the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 do not dispute the legality of the method set out in Section 1.A of the 1998 Guidelines for determining the general starting amount of the fine. That method entails a fixed-band approach, whereby the general starting amount of the fine, determined according to the gravity of the infringement, is calculated by reference to the nature and geographic extent of the infringement and by reference to the actual impact of the infringement on the market, where that can be measured (Case T-15/02 BASF
v Commission
[2006] ECR II-497, paragraph 134, and Case T-116/04 Wieland-Werke
v Commission
[2009] ECR II-1087, paragraph 62).
208. Contrary to the contention of the applicants in Cases T‑147/07, T‑149/07 and T‑150/07, the Commission did not base the general starting amount of the fine for the German infringement on the size of the market supposedly affected. As is apparent from recitals 657 to 671 of the contested decision, the Commission based its conclusion concerning the assessment of the gravity of the infringements on the nature of those infringements and their geographic scope.
209. In this connection, it must be pointed out that the size of the relevant market is not as a rule a factor which must be taken into account, but just one among a number of other factors for evaluating the gravity of the infringement, since moreover the Commission, as stated in the case-law, is not obliged to define the market concerned or to assess its size where the infringement in question has an anti-competitive object (see, to that effect, Prym and Prym Consumer
v Commission, paragraph 193 above, paragraphs 55 and 64).
210. Thus, for the purpose of determining the general starting amount of the fine, the Commission may have regard to the value of the market on which the infringement has taken place but is not obliged to do so (see, to that effect, BASF v Commission, paragraph 207 above, paragraph 134, and Wieland-Werke
v Commission, paragraph 207 above, paragraph 63). The 1998 Guidelines do not provide that fines are to be calculated according to the overall turnover of undertakings or their turnover on the market affected. However, nor do they preclude the Commission from taking either figure into account in determining the amount of the fine in order to ensure compliance with the general principles of EU law and where circumstances demand it ( Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission, paragraph 159 above, paragraph 187). The applicants’ argument that the general starting amount of the fine set for the German cartel should reflect the allegedly limited size of the market affected is therefore based on an incorrect assumption and must be rejected.
211. The Court must therefore reject the applicants’ argument that the Commission infringed the principle of proportionality by failing to take account of the fact that, as regards the market for elevators, the cartels affected only large-scale or prestige projects and that th e value of the market concerned by the cartels did not therefore exceed EUR 170 million. Furthermore, the argument alleging a departure from the Commission’s decision-making practice cannot succeed, since, as was pointed out in paragraph 153 above, the Commission’s practice in previous decisions cannot itself serve as a legal framework for the imposition of fines in competition matters.
212. In any event, the Court would observe that, even on the basis of the applicants’ estimates, which value the market concerned at no more than EUR 170 million, the starting amount of the fine of EUR 70 million represents approximately 41% of the market. It has already been held that starting amounts of such a high percentage may be justified in cases of very serious infringements (see, to that effect, BASF
v Commission, paragraph 207 above, paragraphs 130 and 133 to 137).
213. Against that background, the argument alleging infringement of the rights of defence of the applicants in Cases T‑149/07 and T‑150/07 cannot be upheld either. Leaving aside the fact that, contrary to the applicants’ contentions, the Commission did not determine the gravity of the infringement on the basis of the size of the market affected by the cartel, or its impact on that market, it is important to note that, in the statement of objections, and in particular in points 77 to 83, 579 and 583 thereof, the Commission expressed its view that the German cartel related to all elevator and escalator sectors. Furthermore, as regards the assessment of the gravity of each infringement for the purpose of setting the amount of the fine, the Commission stated, in point 617(b) of the statement of objections, that it would take account of ‘the cartel arrangements permeating the entire elevator and escalator sectors’.
214. Secondly, as regards the argument of the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 that the cartels had no effects on the supposedly separate market for standard elevators, the Court would recall that, as regards the assessment of the gravity of the infringement, the 1998 Guidelines state, in the first and second paragraphs of Section 1.A, that:
‘In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market.
Infringements will thus be put into one of three categories: minor infringements, serious infringements and very serious infringements.’
215. Under the first paragraph of Section 1.A of the 1998 Guidelines, the Commission must therefore, when assessing the gravity of the infringement, undertake an examination of the actual impact on the market only where it is apparent that that impact can be measured (see, to that effect, Prym and Prym Consumer
v Commission, paragraph 193 above, paragraph 74; Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission, paragraph 159 above, paragraph 143; and Degussa
v Commission, paragraph 112 above, paragraph 216).
216. It is settled case‑law that, in order to assess the actual impact of an infringement on the market, the Commission must take as a reference the competition that would normally have existed had there been no infringement (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others
v Commission [1975] ECR 1663, paragraphs 619 and 620; Case T‑347/94 Mayr Melnhof v Commission
[1998] ECR II‑1751, paragraph 235; Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 159 above, paragraph 150; and Carbone‑Lorraine v Commission, paragraph 153 above, paragraph 83).
217. The Commission states, in recital 660 of the contested decision, that ‘[it] did not attempt to demonstrate the precise effects of the infringement since it [was] impossible to determine with sufficient certainty the relevant competitive parameters (price, commercial terms, quality, innovation, and others) in the absence of the infringements’. Even though the Commission concludes, in recital 660 of the contested decision, that it is obvious that the cartels did have an actual impact, since they were implemented, which in itself suggests an impact on the market, and even though the Commission rejects, in recitals 661 to 669, the arguments of the undertakings concerned which sought to demonstrate the limited effects of the cartels, it must be found that, in the contested decision, the assessment of the gravity of the infringements did not take account of their possible impact on the market.
218. Hence, in recital 671 of the contested decision, the Commission bases its conclusion on the assessment of the gravity of the infringements solely on the nature of those infringements and their geographic scope. The Commission concludes in that recital that ‘[t]aking into account the nature of the infringements and the fact that each of them covered the whole territory of a Member State (Belgium, Germany, Luxembourg or the Netherlands) … [it must be held] that each addressee has committed one or several very serious infringements of Article 81 [EC]’.
219. In particular, as regards the infringement in Germany, it is clear from recital 664 of the contested decision, in which the Commission responds to the arguments raised by Kone and Otis concerning the allegedly limited impact of the infringement, that it was ‘impossible to demonstrate the precise effects of the infringement’ and that the German agreements were not confined to escalator and high-value elevator projects, as the Commission had concluded that it was likely ‘that the parties’ illegal agreements concerning elevator projects with a value of more than EUR 1 million, which also included high-speed/high-value elevators, could influence the operation of the remainder of the elevator market’. In that recital, the Commission also stated that the overall value of a project was more important than the number and type of elevators, that it was impossible to demonstrate the precise effects of the infringement and that it was clear from the facts that it was not the intention of the parties to exclude certain product types but to collude on those projects where competition could most easily be eliminated.
220. It must be observed in this case that the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 do not maintain that the impact of the infringement in Germany could have been measured, merely that the infringement related to a supposedly small market and that the arrangements could not have had any appreciable effect on the supposed market for standard elevators. In those circumstances, the applicants have not established that in this instance the Commission was obliged, by virtue of the 1998 Guidelines and the case-law cited in paragraph 215 above, to take account of the actual impact of the infringements for the purpose of assessing their gravity. Their argument cannot, therefore, succeed.
221. In light of the foregoing, there is no need for the Court to rule on whether the expert’s report is admissible – which the Commission disputes – the aim of which is to show that the cartel in Germany covered only part of the market for elevators, or to grant the requests for measures of inquiry proposed in this connection by the applicants in Cases T‑147/07, T‑149/07 and T‑150/07, the purpose of which was to demonstrate the admissibility of the expert’s report.
222. On the question of this report, it must in any event be pointed out that, although the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 maintain that the market supposedly affected by the agreements was not worth more than EUR 170 million and that there could have been no appreciable effects on the market for standard elevators, the expert’s report indicates, first, that high-speed elevators (High‑Tech/Premium) accounted in 2003 for between EUR 11.5 and 13.04 million and, second, that large-scale projects involve both high-speed elevators and standard elevators. Therefore, even if it were to be held that only so-called large‑scale projects were concerned by the cartel, it would still not be possible to say that they had no impact on the supposed market for standard elevators, since large-scale projects manifestly involve a large number of standard elevators.
223. Moreover, even supposing that the Commission had deemed it fit to take into account the impact of the infringement on the market (a factor which it has the option of taking into account) and should consequently have provided, in the contested decision, specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition on the market ( Prym and Prym Consumer
v Commission, paragraph 193 above, paragraph 82), the Court finds that it would in any event have fulfilled that obligation.
224. So far as the German infringement is concerned, the Commission noted, inter alia, that Kone, Otis, Schindler and ThyssenKrupp accounted for over 60% of elevator sales and close to 100% of escalator sales (recitals 51 and 232 of the contested decision). In addition, after 2000, the three cartel members accounted for approximately 75% of the escalator market and close to 50% of the elevator market (recitals 278 and 280 of the contested decision). Moreover, the objective of the cartel was to freeze the respective market shares of the undertakings concerned (recital 236 et seq .
of the contested decision). The Commission also drew attention to the fact that there were regular meetings (recitals 217 and 218 of the contested decision) and to the measures taken by the participants to conceal the contacts between them (recitals 219 to 221 of the contested decision).
225. Thus, as was pointed out in paragraph 217 above, the Commission concluded, in recital 660 of the contested decision, that the fact that the various anti-competitive arrangements were implemented in itself suggested an impact on the market, even if the actual effect was difficult to measure, because it was, in particular, not known if and how many other projects had been subject to bid-rigging, nor how many projects may have been subject to allocation between cartel members without there being a need for contacts between them. The Commission added that the high aggregate market shares of the cartel participants made anti‑competitive effects appear likely and that the relative stability of these market shares throughout the duration of the infringements would confirm those effects.
226. It follows from the foregoing considerations that the starting amount of EUR 70 million set in respect of the German infringement is not disproportionate having regard to the particular gravity of the infringement, even if it were to be established that, as the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 claim, in so far as elevators are concerned, the cartel only affected large-scale projects.
227. Thirdly, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 argue that the cartel produced effects only in Germany, and then on only a negligible part of the market, such that the starting amount of EUR 70 million set in respect of the German infringement must be reduced, having regard to the geographic market concerned.
228. In this connection, it should be recalled that the general starting amount of the fine is determined, inter alia, by reference to the geographic scope of the infringement.
229. Furthermore, it is settled case-law that a geographic market of national dimensions corresponds to a substantial part of the common market (Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission [1983] ECR 3461, paragraph 28, and Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others v Commission [2005] ECR II‑3033, paragraph 176). Since it is not in dispute that the cartel in Germany covered the entire territory of that Member State, it must be held that it covered a substantial part of the common market.
230. Having regard, first, to the particularly grave nature of the cartel and, second, to the fact that it covered a substantial part of the common market, it must be held that the Commission’s setting of the starting amount of the fine for the infringement in Germany at EUR 70 million does not infringe the principle of proportionality.
231. In the alternative, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 maintain that, even taking the total volume of elevator sales as a basis, the starting amount of EUR 70 million set in respect of the infringement in Germany is excessive, since the undertakings which participated in the procedure accounted for less than 50% of total sales on the German escalator market (recital 280 of the contested decision). That argument must, however, be rejected, given that, as was pointed out in paragraphs 208 to 210 above, the Commission was not obliged to set, and in the present case did not set, the general starting amount of the fine for the infringement in Germany on the basis of the size of the market that was supposedly affected.
232. In any event, the applicants do not dispute that, in 2003, the undertakings which participated in the German cartel accounted for 48% of all elevator sales, estimated at EUR 506 million (recital 280 of the contested decision) and 75% of all escalator sales, estimated at EUR 70 million (recitals 82 and 278 of the contested decision). The starting amount of EUR 70 million thus represents 23.7% of turnover achieved by the undertakings which participated in the German cartel. That sort of percentage cannot be regarded as excessive having regard, first to the particularly grave nature of the infringement and, second, to its geographical scope.
233. In the further alternative, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 maintain that, when determining the starting amount of the fine in respect of the infringement in Germany, the Commission failed to follow the method for calculating the fine elsewhere applied in the contested decision. As the Commission had recognised that the scope of the German arrangements was more limited than in the three Benelux countries, it could not apply the same criteria for calculating the fine imposed in respect of the German infringement.
234. It should be observed in this connection that, although the Commission did not attempt to demonstrate the precise effects of the infringement (recital 660 of the contested decision), it none the less, in the case of the German cartel, set a lower starting amount in order to take into account, in favour of the undertakings concerned, the possibility that the entire elevator market might not have been directly affected by the arrangements. Thus, as the Commission stated in recital 664 of the contested decision, it in fact took ‘the fact into account that the entire elevator market [might] not have been directly affected by the cartel activities’ in determining the starting amount of the fine. Indeed, it does appear that the starting amount of the fine in respect of the German cartel was set at a lower level than those for the other cartels referred to in the contested decision, given the relative sizes of the markets in question.
235. Even assuming that, when it finds in one and the same decision that a number of very serious infringements have been committed, the Commission were required to maintain a coherent relationship between the general starting amounts and the sizes of the various markets affected, there is nothing in this case to show that the general starting amounts set for the cartels in Belgium, Germany, Luxembourg and the Netherlands lack coherence or that they were the result of failing to follow any supposed method for calculating the fines applied in the contested decision.
236. Consideration of the relevant information shows that, having regard to the size of the markets affected, the Commission did set the general starting amounts of the fines in a coherent manner. Thus, the Commission set starting amounts that were larger where the size of the market was larger, although it did not use a precise mathematical formula – and was not in any event required to do so (see paragraphs 207 to 210 above). Thus, for the largest market by far, that of Germany, which is worth EUR 576 million, the general starting amount was set at EUR 70 million. For the next two markets, taken in order of size, those of the Netherlands and Belgium, which are worth EUR 363 million and EUR 254 million, the general starting amounts were set at EUR 55 million and EUR 40 million, respectively. Lastly, in the case of the Luxembourg market, which was obviously much smaller, at EUR 32 million, the Commission – although the 1998 Guidelines provide, in the case of very serious infringements, for the amount set for gravity to be ‘above [EUR] 20 million’ – deemed it appropriate to restrict that amount to EUR 10 million (see, to that effect, BASF
v Commission, paragraph 207 above, paragraph 136). The applicants’ complaint must therefore be rejected.
237. It follows that the complaints relating to the determination of the starting amount of the fine in respect of the infringement in Germany must be rejected in their entirety.
238. In the second place, as regards the Luxembourg cartel, the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 argue that the general starting amount of the fine is disproportional to the size of the market to which the infringement related.
239. It is important to point out in this connection that the applicant in Case T‑148/07 also does not dispute the legality of the method set out in Section 1.A of the 1998 Guidelines concerning the determination of the starting amount of the fine, which, as was observed in paragraph 207 above, entails a fixed-band approach. In addition, as stated in the case-law cited in paragraph 209 above, the size of the market concerned is just one of the relevant factors for evaluating the gravity of the infringement, which the Commission is not obliged to take into account when determining the starting amount of the fine. As was pointed out in paragraph 208 above, in the present case, as is apparent from recitals 657 to 671 of the contested decision, the Commission based its conclusion concerning the assessment of the gravity of the infringements on the nature of those infringements and their geographic scope. The applicants’ argument that the starting amount of the fine set in respect of the infringement in Luxembourg is excessive, having regard to the size of the market concerned, must therefore be rejected.
240. It should, in any event, be emphasised that the Commission set the general starting amount of the fine in respect of the Luxembourg cartel at EUR 10 million. Thus, although the Commission determined the gravity of the infringement according to its nature and its geographic scope, it deemed it appropriate to set a general starting amount of the fine representing half the minimum level of EUR 20 million normally envisaged by the Guidelines for this type of very serious infringement (see Section 1.A, second paragraph, third indent, of the 1998 Guidelines).
241. It follows that the arguments of the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 must be rejected.
242. In the third place, as regards the Netherlands cartel, the applicants in Cases T‑150/07 and T‑154/07 maintain that the Commission ignored the fact that the infringement had limited effect on the market, in that less than 10% to 15% of the market was affected by the cartel, a fact confirmed by all the undertakings involved in the Netherlands cartel. Moreover, even though the Commission was not required to ascertain the precise repercussions of the infringement on the Netherlands market, it should, according to the applicants, have taken account of the very limited volume of sales affected by the cartel.
243. It is important to point out in this connection that the applicant in Case T‑154/07 also does not dispute the legality of the method set out in Section 1.A of the 1998 Guidelines concerning the determination of the starting amount of the fine, which, as was observed in paragraph 207 above, entails a fixed-band approach. In addition, as stated in the case-law cited in paragraph 209 above, the size of the market concerned is just one of the relevant factors for evaluating the gravity of the infringement, which the Commission is not obliged to take into account when determining the starting amount of the fine. As was pointed out in paragraph 208 above, in the present case, as is apparent from recitals 657 to 671 of the contested decision, the Commission based its conclusion concerning the assessment of the gravity of the infringements on the nature of those infringements and their geographic scope. The applicants’ argument that the starting amount of the fine set in respect of the infringement in the Netherlands is excessive, having regard to the size of the market concerned, must therefore be rejected.
244. Moreover, as the Commission rightly points out, first, the statements made by the members of the Netherlands cartel regarding the projects which were supposedly affected by the cartel are based solely on the number of projects in relation to which the participants expressly acknowledged the existence of a cartel. As the Commission pointed out in recital 384 of the contested d ecision, there was no need to allocate each and every project in the Netherlands cartel because the undertakings concerned needed to discuss only those projects which had not been automatically allocated to one or other of them by virtue of an established relationship with an existing customer. Second, and in any event, whilst Otis and ThyssenKrupp admittedly claimed that the total number of projects for which allocation discussions took place only amounted to a limited proportion of all projects to be carried out (recital 492 of the contested decision), the calculations which they presented in this connection show substantial variations (recitals 494, 495, 496, 497 and 499 of the contested decision).
245. It follows that the arguments alleging that the starting amount of the fine in respect of the infringement in the Netherlands was excessive must be rejected.
246. Accordingly, the complaints concerning the general starting amounts of the fines must be rejected in their entirety.
The alleged unlawfulness of the specific starting amounts of the fines
247. The Court recalls that, in the context of calculating fines imposed under Article 23(2) of Regulation No 1/2003, differentiated treatment of the undertakings concerned is inherent in the exercise of the Commission’s powers under that provision. In exercising its discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of the undertakings concerned in order to ensure that, in each case, the EU competition rules are fully effective (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others
v Commission
[1983] ECR 1825, paragraph 109, and Britannia Alloys & Chemicals
v Commission, paragraph 108 above, paragraph 44).
248. Thus the 1998 Guidelines provide that, where an infringement is sufficiently serious, it may be necessary in cases involving several undertakings, such as cartels, to apply weightings to the general starting amount in order to establish a specific starting amount taking account of the weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type (Section 1.A, sixth paragraph). In particular, it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers (Section 1.A, fourth paragraph).
249. The 1998 Guidelines also state that the principle of equal punishment for the same conduct may, if the circumstances so warrant, lead to different fines being imposed on the undertakings concerned without that differentiation being governed by arithmetic calculation (Section 1.A, seventh paragraph).
250. As was pointed out in paragraph 210 above, it is evident from the case-law that the 1998 Guidelines do not provide that fines are to be calculated according to the turnover of the undertakings on the market concerned. Thus, for the purpose of assessing the influence of an undertaking on the market or, in the words of the Guidelines, its effective economic capacity to cause significant damage to other operators, the Commission is not obliged first to define the market and to assess its size ( Prym and Prym Consumer
v Commission, paragraph 193 above, paragraph 63). However, nor do the 1998 Guidelines preclude the Commission from taking that figure into account in determining the amount of the fine in order to ensure compliance with the general principles of EU law and where circumstances demand it (Case T-23/99 LR AF 1998
v Commission
[2002] ECR II-1705, paragraphs 283 and 284; Case T-220/00 Cheil Jedang
v Commission
[2003] ECR II-2473, paragraph 82; and Case T-38/02 Groupe Danone
v Commission
[2005] ECR II-4407, paragraph 157).
251. In the present case, it is clear from recitals 672 to 685 of the contested decision that the Commission applied, for each infringement identified in Article 1 of the contested decision, ‘differential treatment to undertakings in order to take account of the effective economic capacity of the offenders to cause significant damage to competition’ (recital 672 of the contested decision). For each infringement, it placed the undertakings in categories for the purpose of setting the specific starting amounts of the fine, according to their turnover on each national market for the products concerned (recitals 673 to 685 of the contested decision). Except when it determined the specific starting amount for Schindler in respect of its participation in the German cartel, the Commission took as its basis, when determining the specific starting amounts of the other undertakings, for each infringement, the 2003 turnover, which in its view was the most recent full year in which those undertakings were active in the cartels concerned (recitals 674, 676, 680 and 684 of the contested decision).
252. In the first place, with regard to the Belgian infringement, the applicants in Cases T‑149/07 and T‑150/07 submit in their arguments relating the starting amounts of the fines, that, during the period of the infringement in Belgium, ThyssenKrupp enjoyed a much smaller share of the market than Kone and Schindler, and that the starting amount of its fine should accordingly be reduced.
253. In accordance with the seventh paragraph of Section 1.A of the 1998 Guidelines, the differentiation between undertakings involved in the same infringement need not be governed by arithmetic calculation. Indeed, the principles of proportionality and equal treatment do not dictate that the starting amount of the fine should represent the same percentage of individual turnover for all the various members of a cartel ( BASF
v Commission, paragraph 207 above, paragraph 149).
254. Thus, to check whether a division of the members of a cartel into categories is consistent with the principles of equal treatment and proportionality, the Court, in the course of its review of the legality of the way in which the Commission exercised its discretion in the area, must restrict itself to reviewing whether that division is coherent and objectively justified (Case T‑213/00 CMA CGM and Others
v Commission
[2003] ECR II‑913, paragraphs 406 and 416; Tokai Carbon and Others
v Commission, paragraph 159 above, paragraphs 220 and 222; BASF v Commission, paragraph 207 above, paragraph 157; and Schunk and Schunk Kohlenstoff-Technik
v Commission, paragraph 122 above, paragraph 184).
255. In the present case, contrary to the submissions of the applicants in Cases T‑149/07 and T‑150/07, the Commission did take account of TKLA’s relatively minor position on the Belgian market and placed it in a separate category with a significantly lower starting amount than those set for the other participants in the Belgian cartel. Thus, by contrast with Kone and Schindler, which were placed in the first category, with a starting amount of EUR 40 million, and Otis, which was placed in the second category, with a starting amount of EUR 27 million, ThyssenKrupp was placed in the third category, with a starting amount of EUR 16.5 million, which is, moreover, below the minimum threshold of EUR 20 million laid down in the 1998 Guidelines as standard for ‘very serious’ infringements (see the third indent of the second paragraph of Section 1.A) (see, to that effect, Case T‑230/00 Daesang and Sewon Europe
v Commission [2003] ECR II‑2733, paragraph 58).
256. That being so, the arguments of the applicants in Cases T‑149/07 and T‑150/07 alleging the unlawfulness of the specific starting amount of the fine imposed on it in respect of TKLA’s participation in the Belgian cartel must be rejected.
257. In the second place, with regard to the infringement in Germany, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 first allege discriminatory treatment inasmuch as the starting amount of the fine imposed on them was calculated solely on the basis of the nature and geographic scope of the unlawful conduct, whereas the fine imposed on Schindler took account of the fact that the unlawful conduct related solely to part of the market for the products in question. If the approach that the Commission chose to take vis-à-vis Schindler were applied to the situation of the applicants in Cases T-147/07, T‑149/07 and T‑150/07, that would result in a reduction of the starting amount of their fine.
258. It must be observed, firstly, that it is indisputably clear from the contested decision, and from recitals 676 to 679 in particular, that, in placing the undertakings which participated in the German cartel into categories, the Commission based its decision, both for Schindler and for the other participants in the German cartel, on the turnover achieved by the undertakings in question on the market affected by the cartel.
259. Next, it should be pointed out that, in the case of the German cartel, Schindler’s situation is different from that of ThyssenKrupp. Indeed, it is not disputed that, throughout the whole period of Schindler’s participation in the German cartel, between August 1995 and December 2000, the cartel concerned only escalators (recital 213 and Article 1(2) of the contested decision). Schindler thus participated only in the escalator part of the infringement identified in Article 1(2) of the contested decision. ThyssenKrupp, by contrast, participated in both parts of the infringement, namely that concerning escalators (between August 1995 and December 2003) and that concerning elevators (between December 2000 and December 2003) (recitals 212 and 213 and Article 1(2) of the contested decision). The application of differential treatment is intended precisely to take into account the differences between undertakings so far as their capacity to cause significant damage to competition is concerned, which, in Schindler’s case, was necessarily less since it did not participate in the part of the infringement relating to elevators.
260. In those circumstances, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 cannot reasonably plead that they were discriminated against on the ground that in Schindler’s case only turnover on the escalator market was taken into account for the purpose of determining the specific starting amount of the fine. On the contrary, what prompted the Commission – in compliance with the principle of equal treatment – to take into account different turnovers for the two categories of undertakings concerned was, in particular, the fact that account had been taken of differences between Schindler’s situation, on the one hand, and that of the other cartel members, on the other.
261. Secondly, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 maintain that they were wrongly placed in the first category, since, according to the information in their possession, the Commission misunderstood the real situation in terms of market shares. In support of their argument, the applicants refer, first, to Schindler’s share of the market for elevators and escalators in 2003, the reference year. Second, the applicants submit that they do not enjoy the same share of the German market as Kone and Otis so far as escalators and large-scale projects are concerned. The Commission failed to disclose the calculations underlying its definition of the categories in terms of market shares, even after being called upon by the applicants to do so.
262. It should be recalled first of all that, for the purpose of setting the specific starting amounts of the fine, the Commission placed the undertakings in categories according to their turnover on each national market for the products concerned (recital 673 of the contested decision) (see paragraph 251 above). In this connection, in recital 678 of the contested decision, the Commission concluded that ‘in view of the similar market shares and economic capacity of Kone, Otis and ThyssenKrupp, it is not appropriate to apply any differential treatment to them for the purpose of calculating the fine’.
263. It should also be pointed out that the fact that the starting amount of the fine does not necessarily represent the same percentage of respective turnovers for all members of a cartel is inherent in the method of dividing undertakings into categories, which has the consequence that a flat-rate starting amount is fixed for all the undertakings in the same category. The Court has already held that, although such an approach ignores the differences in size between undertakings in the same category, it cannot in principle be condemned ( CMA CGM and Others
v Commission, paragraph 254 above, paragraph 385; Tokai Carbon and Others
v Commission, paragraph 159 above, paragraph 217; and BASF
v Commission, paragraph 207 above, paragraph 150).
264. In the present case, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 do not dispute the assertions contained in recitals 673 and 678 of the contested decision.
265. Since the cartel in which Schindler participated related only to escalators, the Commission was right to take into account only the turnover achieved by that undertaking in that sector for the purpose of setting the specific starting amount of the fine for the undertaking. The applicants’ argument based upon a comparison with Schindler’s share of the market for elevators and escalators in 2003 cannot, therefore, succeed.
266. Since the applicants do not take issue with the Commission’s having placed the undertakings into categories on the basis of their turnover on each national market for the products concerned (recital 673 of the contested decision) and given that, in order to assess the influence of an undertaking on the market or, to follow the wording used in the 1998 Guidelines, its effective economic capacity to cause significant damage to other operators, the Commission is not obliged first to define the market and to assess its size ( Prym and Prym Consumer
v Commission, paragraph 193 above, paragraph 63), the applicants’ arguments based on the respective market shares of the undertakings concerned, in the escalator sector and, within the elevator sector, in large-scale projects, cannot in any event succeed.
267. The applicants’ argument that they were wrongly placed in the first category must therefore be dismissed. Accordingly, there is no need for the Court to grant the request of the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 for measures of organisation of procedure requiring the Commission to disclose its calculations relating to the market shares on the German market.
268. In the third place, with regard to the infringement in Luxembourg, the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 point out that, because of its small size and its modest share of the market, ThyssenKrupp was incapable of causing harm to other operators and consumers (Section 1.A of the 1998 Guidelines).
269. Firstly, the Commission placed ThyssenKrupp and Kone in the second category, even though Kone enjoyed a much larger share of the market, as much as twice that of ThyssenKrupp (recital 680 of the contested decision).
270. In this connection, it must be observed that, as is clear from recital 680 of the contested decision, in 2003, the turnover figures for Kone and ThyssenKrupp on the Luxembourg market were relatively similar and were in each case between three and four times lower than those of Otis and Schindler on that market. The Commission did not, therefore, manifestly go beyond the bounds of its margin of assessment in placing Schindler and Otis in the first category and Kone and ThyssenKrupp in the second category. Indeed, that classification appears to be coherent and objectively justified.
271. Secondly, a comparison of ThyssenKrupp’s market share with those of Otis and Schindler demonstrates, according to the applicants, that it was clearly incorrect to place ThyssenKrupp in the second category. Otis and Schindler were placed in the first category and, in 2003, enjoyed market shares approximately five times larger than that of ThyssenKrupp. The starting amount of ThyssenKrupp’s fine is a quarter of that set for Otis and Schindler, even though its market share was only about a fifth of the market share of the other two undertakings and only about half of Kone’s market share. The applicants argue that that disproportion is inconsistent with the practice followed by the Commission in taking decisions, whereby the basic amounts for the lower categories have always been reduced proportionally in comparison with the amounts set for the first category.
272. This argument must also be rejected. The significant difference between the market shares of Otis and Schindler on the one hand, and Kone and ThyssenKrupp on the other, justified their being placed in two different categories. However, in addition to the fact that the determination of a starting amount for each category is not governed by any arithmetic calculation designed to reflect the differences observed in terms of market shares as between the undertakings, according to whether they fall into the first or the second category, it must be observed that, since, in the present case, the turnover achieved by one of the undertakings in the first category amounts to approximately four times that of ThyssenKrupp, which was placed in the second category, setting a starting amount for ThyssenKrupp of 25% of the starting amount imposed on the undertakings in the first category appears, in any event, to be coherent and objectively justified.
273. Thirdly, as regards Luxembourg, the applicants maintain that the Commission incorrectly applied the system of categorisation, since, given the classification of TKLA and TKL in connection with the infringements in Belgium and the Netherlands, the Commission ought to have reflected ThyssenKrupp’s modest market share in Luxembourg and placed it in a lower category than Kone, and consequently set a lower basic amount for it.
274. It has already been observed in this connection, in paragraph 270 above, that the Commission did not manifestly go beyond the bounds of its margin of assessment in placing Kone and ThyssenKrupp in the second category, that classification appearing to be coherent and objectively justified. Moreover, the argument relating to the differential treatment applied by the Commission to other companies within the ThyssenKrupp group in the context of other infringements is irrelevant, since the purpose of differential treatment is precisely so that due consideration may be given to the relative sizes of the undertakings concerned on the markets concerned, in the case of each infringement. These arguments of the applicants must therefore be rejected.
275. Fourthly, the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 complain of an alleged infringement of the principle of proportionality by reason of the relationship between the turnover which they achieved on the relevant market and the starting amount of the fine imposed on them. The applicants in Cases T‑148/07, T‑149/07 and T‑150/07 point out that the starting amount decided upon for them is [ confidential ] to the turnover which they achieved on the Luxembourg market in 2003.
276. As is clear from paragraph 218 above, however, the general starting amounts of the fines were determined by taking into account the nature of the infringements and the size of the relevant geographic markets. Moreover, the Commission took into account the turnover achieved on the Luxembourg market by each of the undertakings concerned solely in the context of applying differential treatment to the undertakings, so as to reflect their relative weight on the market and their effective economic capacity to cause significant damage to competition (recital 672 of the contested decision), something which is quite consistent with the case‑law cited in paragraphs 247 and 250 above. The comparison which the applicants make between the turnover figures which they achieved on the markets in question and the starting amounts of their fines cannot therefore succeed.
277. Therefore, and since, in any event, EU law contains no general principle that the penalty must be proportionate to the undertaking’s size on the market for the products in respect of which the infringement was committed ( Archer Daniels Midland
v Commission, paragraph 193 above, paragraph 75), the argument that the starting amount of the fine imposed on ThyssenKrupp in respect of the Luxembourg infringement is excessive must be rejected.
278. It is clear from all the foregoing that all the complaints concerning the specific starting amounts of the fines must be rejected.
279. This present plea must therefore be rejected in its entirety.
The plea alleging breach of the 1998 Guidelines, infringement of the principle of proportionality, of Article 253 EC and of the principle of equal treatment in the application of a group multiplier for deterrence in the determination of the starting amounts of the fines
280. In the contested decision, the Commission alludes to the need to set the fines ‘at a level which ensures that they have sufficient deterrent effect, taking into account the size of each undertaking’ (recital 686 of the contested decision). Thus, having stated that ‘with their respective worldwide turnovers of EUR 47 100 000 000 and EUR 34 300 000 000, ThyssenKrupp and UTC/Otis are much larger players than the other addressees’, the Commission considered that ‘the appropriate starting amount for a fine [required] further upward adjustment to take account of the size and the overall resources’ of those undertakings and that ‘the application of a multiplier of 2 (increase of 100%) in respect of the starting amount of the fine to be imposed on ThyssenKrupp and of 1.7 (increase of 70%) in respect of the starting amount of the fine to be imposed on UTC/Otis [was] appropriate’ (recital 690 of the contested decision).
281. The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 argue that the Commission infringed the 1998 Guidelines, the principle of proportionality and the principle of equal treatment in applying a multiplier of 2 to the starting amounts of the fines imposed on the companies within the ThyssenKrupp group in the four Member States concerned, with the aim of ensuring that those fines had sufficient deterrent effect. The applicant in Case T‑154/07 also argues that insufficient reasons were given for the multiplier used in the contested decision.
282. In the first place, the complaint of the applicant in Case T‑154/07 alleging an infringement of Article 253 EC must be rejected. Indeed, in recitals 689 and 690 of the contested decision, the Commission stated its reasons for applying a multiplier of 2, referring to the considerable economic and financial strength of ThyssenKrupp, whose worldwide turnover, like that of Otis, far surpasses that of Kone and Schindler.
283. In the second place, the applicants mentioned in paragraph 281 above take issue with the reliance upon ThyssenKrupp’s worldwide turnover figure for the purposes of determining the multiplier. They emphasise in this connection that the subsidiaries which committed the infringements do not form an economic unit with their parent companies. The applicant in Case T‑154/07 adds that ThyssenKrupp is organised in a decentralised fashion, in the context of which TKL operates autonomously and independently. The applicants in Cases T‑147/07 and T‑148/07 also argue that only turnover in the ‘elevator’ sector of the ThyssenKrupp group could be of relevance in determining the multiplier. Lastly, the applicant in Case T‑144/07 submits that the application of a group multiplier for deterrence is not necessary in order to ensure compliance with competition law since, even without that multiplier, TKLA’s fine would amount to [ confidential ]% of turnover achieved in Belgium by that company during the relevant period.
284. First of all, the Court recalls that the Commission was entitled to hold that the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 form an economic unit (see paragraphs 100 to 131 above).
285. Next, the need to ensure that a fine has a sufficient deterrent effect, where that need is not found to justify raising the general level of fines in the context of the implementation of a competition policy, requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed, so that the fine is not rendered negligible, or on the contrary excessive, in particular in light of the financial capacity of the undertaking in question, in accordance with the requirements arising from, on the one hand, the need to ensure effectiveness of the fine and, on the other, compliance with the principle of proportionality (judgment of 8 July 2008 in Case T-54/03 Lafarge
v Commission, not published in the ECR, paragraph 670).
286. It is true that the Commission did not lay down in the 1998 Guidelines any method or specific criteria as to the manner in which the objective of deterrence was to be taken into account and which, had they been set out expressly, would have been capable of having binding effect. In the indications concerning the evaluation of the gravity of an infringement, the fourth paragraph of Section 1.A of the 1998 Guidelines refers only to the need to set the fine at a level which ensures that it will have sufficient deterrent effect ( Schunk and Schunk Kohlenstoff-Technik
v Commission, paragraph 122 above, paragraph 193).
287. However, it is clear from consistent case-law that the Commission is entitled to use the overall turnover of each undertaking participating in a cartel as a criterion relevant for the purpose of setting a deterrence multiplier (see, to that effect, Case C-289/04 P Showa Denko
v Commission
[2006] ECR I-5859, paragraphs 17 and 18). Thus, the size and overall resources of an undertaking are relevant criteria in view of the objective pursued, namely ensuring that the fine is effective by adjusting its amount in light of the overall resources of the undertaking and its capacity to raise the funds necessary to pay that fine. The setting of the rate of increase of the starting amount in order to ensure that the fine has a sufficiently deterrent effect is intended more to ensure the effectiveness of the fine than to reflect the harmfulness of the infringement to normal competition and thus the gravity of the infringement ( Lafarge
v Commission, paragraph 285 above, paragraph 672).
288. Consequently, the Commission did not breach the 1998 Guidelines or the principle of proportionality when it relied on the overall turnover of the ThyssenKrupp group for the purpose of applying the deterrence factor. The argument which the applicant in Case T‑144/07 puts forward, comparing TKLA’s turnover in Belgium with the amount of the fine in order to demonstrate that there was no need to apply to its fine a multiplier for deterrence, cannot, therefore, succeed either.
289. In the third place, as regards the multiplier of 2 applied to the fines imposed on the ThyssenKrupp group, the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07 and T‑150/07 refer to the Commission’s practice in previous decisions, and in particular to Commission Decision 2007/534/EC of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen (NL) (OJ 2007 L 196, p. 40; ‘the road bitumen decision’), and submit that, since the facts in issue were purely national in scope, the multiplier should have been set at a lower level. In this connection, the applicants in Cases T‑147/07, T‑148/07, T‑149/07 and T‑150/07 ask the Court to order the Commission to produce the road bitumen decision, in accordance with Article 65(b) of the Rules of Procedure.
290. As to the question whether the multiplier applied in the present case is excessive, the Court observes that an increase in a fine for deterrence is intended to ensure that the fine is effective by adjusting its amount having regard to the overall resources of the undertaking and its capacity to raise the funds necessary to pay that fine ( Lafarge
v Commission, paragraph 285 above, paragraph 671). The argument that the infringements established by the Commission were purely national in scope cannot therefore succeed.
291. Nor may the argument based upon the road bitumen decision be upheld. Indeed, in accordance with the case-law cited in paragraph 153 above, the Commission’s previous decisions are not relevant, since, as was pointed out in paragraph 108 above, the Commission’s practice in previous decisions cannot itself serve as a legal framework for the imposition of fines in competition matters. The Court must therefore also reject the request for measures of inquiry submitted by the applicants in Cases T‑147/07, T‑148/07, T‑149/07 and T‑150/07, by which they seek an order requiring the Commission to produce the road bitumen decision.
292. In any event, given ThyssenKrupp’s overall turnover of EUR 47.1 billion (recital 689 of the contested decision), the application of a multiplier of 2 to the starting amounts of the fines imposed on ThyssenKrupp appears to be appropriate for ensuring the effectiveness of the fines, having regard to the financial strength of that undertaking, and thus also for ensuring that the fines imposed on it have sufficient deterrent effect.
293. In the fourth place, the applicants in Cases T‑144/07 and T‑154/07 allege that the application of a multiplier to their respective fines is discriminatory, since the Commission did not apply a multiplier for deterrence in the case of Kone and Schindler, even though those undertakings are part of multinational groups whose turnover in the European Union is much higher. Moreover, the subsidiaries of Kone and Schindler enjoy a very much stronger position on the relevant market in the Netherlands than ThyssenKrupp’s subsidiary.
294. That argument cannot be accepted. Indeed, by increasing the starting amount to ensure the deterrent objective of the fine, the Commission is in fact merely applying differential treatment to the members of each individual cartel to take account of the way in which they are actually affected by the fine ( BASF v Commission, paragraph 207 above, paragraph 241).
295. Thus, the Commission in no way infringed the principle of equal treatment by referring, in this case, to the overall turnover of the participants, rather than to their turnover within the European Union, or indeed on the relevant national market, in order to assess the need to increase the amounts of the fines so as to ensure their deterrent effect. Given ThyssenKrupp’s overall turnover, it is permissible to think that that undertaking would have been affected by the fines imposed to a lesser extent than Kone and Schindler, whose respective turnover figures are EUR 3.2 billion and EUR 5.73 billion (recital 689 of the contested decision), had the fines not been increased for deterrence.
296. The application of a multiplier of 2 to the fines imposed on ThyssenKrupp thus appears to be justified in the present case, in order to ensure the effectiveness of the fines in view of the undertaking’s financial strength.
297. It follows from all the foregoing that this plea must be rejected.
The plea alleging breach of the 1998 Guidelines and infringement of the principle of proportionality and of the rights of the defence by reason of the 50% increase applied to the basic amounts of the fines on account of repeated infringement
298. In the contested decision, the Commission took the view that the basic amounts of the fines imposed on TKAG, TKE and the ThyssenKrupp subsidiaries should be increased by 50% on account of repeated infringement (recitals 707, 710, 714 and 720 of the contested decision).
299. In recital 697 of the contested decision, the Commission points out the following:
‘… a repeated infringement of the same type occurs when an undertaking which has been held liable for an infringement in a past Commission Decision is later found responsible for another infringement of the same type, even if it is committed in a different business sector or in respect of a different product. [Section 2] of the [1998] Guidelines considers repeated infringements of the same type by the same undertaking(s) to constitute an aggravating circumstance. The notion of “undertaking” includes all legal entities within the same group not determining independently their own market conduct. In Michelin [v Commission, paragraph 107 above, paragraph 290] the Court of First Instance confirmed that recidivism could also apply to an entity which is fully-owned by a (parent) company in control of another entity which has been censured for a previous offence.’
300. In reaching its finding of repeated infringement in the present case, the Commission referred, in recital 698 of the contested decision, to its Decision 98/247/ECSC of 21 January 1998 relating to a proceeding pursuant to Article 65 [CS] (Case IV/35.814 – Alloy surcharge) (OJ 1998 L 100, p. 55; ‘the alloy surcharge decision’). In that recital, the Commission states as follows:
‘In 1998, in [the] [a]lloy [s]urcharge [decision], fines were imposed for a cartel having both the object and the effect of restricting and distorting competition. Among others, a fine was imposed on ThyssenKrupp Stainless GmbH (TKS), an undertaking incorporated under German law and established on 1 January 1995 as a result of a merger of the stainless steel businesses of Krupp and Thyssen. A fine was also imposed on Acciai Speciali Terni SpA (AST), an undertaking incorporated under Italian law, set up on 1 January 1994, whose principal activities include the production of stainless steel flat products. In December 1994, a number of undertakings, including Krupp and Thyssen, jointly acquired AST. In December 1995, Krupp increased its share in AST from 50% to 75% and to 100% in May 1996. Krupp then transferred all its shares in AST to TKS. ...’
301. The Commission also states in the contested decision (recitals 700, 704, 709, 713 and 717) that the cartel established in the alloy surcharge decision was in existence from 16 December 1993, the date on which a meeting was held at which the participating undertakings decided to collude together, until 21 January 1998, the date on which the decision establishing the infringement was adopted, meaning not only that the infringements committed by the companies of the ThyssenKrupp group were repeated, but also that they overlapped and were pursued in parallel.
302. The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07 T‑150/07 and T‑154/07 maintain that the Commission erred, in recitals 699 to 707 (Cases T‑147/07 and T‑150/07), 708 to 710 (Cases T‑144/07 and T‑150/07), 711 to 714 (Cases T‑148/07 and T‑149/07), 717 (Case T‑150/07) and 720 (Cases T‑150/07 and T‑154/07) of the contested decision, in increasing the amounts of their fines by 50% on account of repeated infringement. The Commission was not entitled to hold that the infringement for which ThyssenKrupp Stainless AG, named KruppThyssen Nirosta GmbH until September 1997 (footnote 882 to the contested decision) (‘TKS’, in respect of the periods before and after September 1997), and Acciai Speciali Terni SpA (‘AST’) were penalised in the alloy surcharge decision constituted a previous similar infringement committed by them.
303. It should be recalled at the outset that, in Article 1 of the alloy surcharge decision, to which the Commission referred in the contested decision in reaching its finding of repeated infringement in the present case, the Commission found that a number of companies, including Krupp Hoesch Stahl AG (‘KHS’) (TKS from 1 January 1995 onwards), Thyssen Stahl AG (‘TS’) (TKS from 1 January 1995 onwards) and AST had infringed Article 65(1) CS from December 1993 until, in the case of those undertakings, 21 January 1998, by modifying and applying in concerted fashion the reference values used to calculate the alloy surcharge. It considered that that practice had both the object and the effect of restricting and distorting competition within the common market.
304. The alloy surcharge decision made it clear that KHS and TS had participated directly in the infringement until 31 December 1994 and must therefore accept liability for it separately. However, the fine which the Commission ought to have imposed on them was imposed solely on TKS, which, by letter of 23 July 1997, had informed the Commission that it assumed full liability for the acts of TS and KHS from 1993 onwards (recitals 14 and 102 of the alloy surcharge decision).
305. On 11 and 13 March 1998 respectively, TKS and AST brought actions before the Court of First Instance for the annulment of the alloy surcharge decision in so far as it concerned them and, in the alternative, for substantial reduction of the fines imposed on them by that decision. By its judgment in Krupp Thyssen Stainless and Acciai speciali Terni
v Commission, paragraph 106 above, the Court annulled Article 1 of the alloy surcharge decision in so far as it imputed liability for the infringement committed by TS to TKS, on the ground that TKS’s rights of defence had been infringed in that it had not been given an opportunity to submit its comments on the truth and relevance of the acts imputed to TS. Two appeals were brought against the judgment and were dismissed by the Court of Justice in its judgment in Joined Cases C‑65/02 P and C‑73/02 P ThyssenKrupp
v Commission [2005] ECR I‑6773).
306. Following the judgment in Krupp Thyssen Stainless and Acciai speciali Terni
v Commission, paragraph 106 above, the Commission, on 20 December 2006, adopted Decision C(2006) 6765 final relating to a proceeding under Article 65 [CS] (Case No COMP/F/39.234 – Alloy surcharge – readoption). In that decision, the Commission held that TS had infringed Article 65(1) CS between 16 December 1993 and 31 December 1994 and held TKS liable for TS’s conduct on the basis of TKS’s letter of 23 July 1997.
307. By the present plea, the applicants dispute that they form an economic unit, within the meaning of Articles 81 EC and 82 EC, with the undertakings penalised in the alloy surcharge decision. They argue in this connection that the Commission was mistaken to infer from the judgment in Michelin
v Commission, paragraph 107 above, that the fact that a parent company held the entire share capital of its subsidiary provided sufficient grounds for imputing the previous infringement of that subsidiary to its parent company without the question of the actual independence of the subsidiary having been addressed. Thus, according to the applicants, and contrary to the Commission’s submission, the Commission would not have been entitled, had it wished to do so, to impose the fine on the same parent company in the two decisions, as was required by Michelin
v Commission, paragraph 107 above, paragraph 290.
308. It must be recalled that the concept of repeated infringement, as understood in a number of national legal orders, implies that a person has committed new infringements after being punished for similar infringements (Case T‑141/94 Thyssen Stahl
v Commission
[1999] ECR II‑347, paragraph 617; Michelin
v Commission, paragraph 107 above, paragraph 284; Groupe Danone v Commission, paragraph 250 above, paragraph 362; and Hoechst
v Commission, paragraph 158 above, paragraph 450). Furthermore, Section 2 of the 1998 Guidelines specifically mentions ‘repeated infringement of the same type by the same undertaking(s)’ among the illustrative list of aggravating circumstances which may justify an increase in the basic amount of a fine.
309. As the Court pointed out in paragraph 92 above, in competition law, the term ‘undertaking’ must be understood as designating an economic unit from the point of view of the subject-matter of the agreement in question even if in law that economic unit consists of several persons, natural or legal.
310. An undertaking’s anti‑competitive conduct can therefore be attributed to another undertaking where it has not decided independently upon its own conduct on the market, but has carried out, in all material respects, the instructions given to it by that other undertaking, having regard in particular to the economic and legal links between them ( Dansk Rørindustri and Others
v Commission, paragraph 94 above, paragraph 117; Metsä-Serla and Others
v Commission, paragraph 94 above, paragraph 27; Akzo Nobel and Others
v Commission, paragraph 91 above, paragraph 58; and Case T‑314/01 Avebe v Commission
[2006] ECR II‑3085, paragraph 135).
311. In this connection, it must be made clear that, according to the case-law, the Commission cannot merely find that an undertaking ‘was able’ to exert a decisive influence over another undertaking, without checking whether that influence was actually exerted. On the contrary, it is, as a rule, for the Commission to demonstrate such decisive influence on the basis of factual evidence, including, in particular, any management power one of the undertakings may have over the other (see, to that effect, Case C-196/99 P Aristrain
v Commission
[2003] ECR I‑11005, paragraphs 95 to 99; Dansk Rørindustri and Others
v Commission, paragraph 94 above, paragraphs 118 to 122; Case T‑9/99 HFB and Others
v Commission [2002] ECR II‑1487, paragraph 527; and Avebe v Commission, paragraph 310 above, paragraph 136).
312. As the Commission points out, it is true that the Court held in Michelin
v Commission, paragraph 107 above, paragraph 290, that, where two subsidiaries are more than 99% owned, directly or indirectly, by the same parent company, it is reasonable to conclude that those subsidiaries do not determine independently their own conduct on the market. In that judgment, the Court added that different companies belonging to the same group form an economic unit and therefore an undertaking within the meaning of Articles 81 EC and 82 EC if the companies concerned do not independently determine their own conduct on the market.
313. Nevertheless, as was pointed out in paragraphs 96 and 97 above, the Court of Justice has recently noted that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the EU competition rules, whilst there is a presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary, that presumption is rebuttable (see, to that effect, Akzo Nobel and Others
v Commission, paragraph 91 above, paragraphs 60 and 61 and the case-law cited). Moreover, as the Court of Justice pointed out in Aristrain
v Commission, paragraph 311 above, paragraph 99, the simple fact that the share capital of two separate commercial companies is held by the same person is insufficient, in itself, to establish that those two companies are an economic unit with the result that, under EU competition law, the actions of one company can be attributed to the other.
314. It must be observed in the present case, first, that, in the alloy surcharge case, the Commission did not find that the parent companies of KHS, TS, TKS and AST, of which TKAG is the economic and legal successor, formed an economic unit with those companies for the purposes of applying Articles 81 EC and 82 EC, and did not therefore claim that KHS, TS, TKS and AST did not decide independently upon their own conduct on the market. It is in fact clear from the alloy surcharge decision that, as regards the companies within the ThyssenKrupp group, the Commission found only KHS, TS, TKS and AST liable for an infringement, and not their respective parent companies, which, as the applicants submit without being contradicted on the point by the Commission, were not given an opportunity to make representations in the administrative procedure leading to the adoption of the decision.
315. Second, it does not appear from the contested decision that the Commission took the view in the present case that KHS, TS, TKS and AST form part of the undertakings found liable for the infringements established in Article 1 of the decision.
316. Therefore, the infringements established in Article 1 of the contested decision cannot be regarded as repetitions on the part of the same undertaking or undertakings as were held liable for infringements in the alloy surcharge decision.
317. On this point, first of all, the Court cannot uphold the Commission’s argument that ThyssenKrupp was given an opportunity in the administrative procedure leading to the adoption of the contested decision and in the present action to dispute that it formed an economic unit with the undertakings penalised in the alloy surcharge case.
318. Indeed, it should be pointed out that, according to the case-law of the Court of Justice, first, the principle of respect for the rights of the defence precludes a competition decision in which the Commission imposes a fine on an undertaking without first having informed it of the objections relied on against it from being held to be lawful and, second, given its importance, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person ( Papierfabrik August Koehler and Others v Commission, paragraph 192 above, paragraphs 37 and 38, and Akzo Nobel and Others
v Commission, paragraph 91 above, paragraph 57 and the case-law cited).
319. Thus, it cannot be accepted that the Commission is entitled to decide, when making a determination as to the aggravating circumstance of repeated infringement, that an undertaking should be held liable for a previous infringement in relation to which it was not penalised by a Commission decision and in the establishment of which it was not the addressee of a statement of objections, with the result that such an undertaking was not given an opportunity, in the procedure leading to the adoption of the decision establishing the previous infringement, to make representations with a view to disputing that it formed an economic unit with certain other undertakings.
320. That conclusion appears all the more valid since, whilst it is true that the principle of proportionality requires that the time that has elapsed between the infringement at issue and a previous breach of the competition rules be taken into account in assessing the undertaking’s tendency to infringe those rules, the Court of Justice has already stated that the Commission cannot be bound by any limitation period when reaching a finding of repeated infringement (Case C‑3/06 P Groupe Danone
v Commission
[2007] ECR I‑1331, paragraph 38, and Hoechst
v Commission, paragraph 158 above, paragraph 462; see also Groupe Danone
v Commission, paragraph 250 above, paragraph 353) and that such a finding may therefore be reached several years after a finding of infringement, at a time when the undertaking concerned would, in any event, be incapable of disputing the existence of such an economic unit, in particular if the presumption referred to in paragraph 313 above is applied.
321. Nor can the Court uphold the Commission’s argument that an increase in the fine for repeated infringement is also justified in view of the infringements established in Commission Decision 90/417/ECSC of 18 July 1990 relating to a proceeding under Article 65 [CS] concerning an agreement and concerted practices engaged in by European producers of cold-rolled stainless steel flat products (OJ 1990 L 220, p. 28) and in Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 [CS] concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 116, p. 1). In addition to the fact that those decisions were not mentioned either in the statement of objections or in the contested decision, it must be held that, like the undertakings penalised in the alloy surcharge decision, the undertakings penalised in these decisions are not the same undertakings, within the meaning of Articles 81 EC and 82 EC, as those penalised in the contested decision.
322. Lastly, the Court is equally unable to uphold the Commission’s argument that, where a parent company owns almost the entire share capital of its subsidiary, that parent company also becomes the addressee of the warning which is directed towards its subsidiary as a result of a previous Commission decision penalising the latter for an infringement of competition law. Indeed, whilst it would be reasonable to assume that a parent company would actually have knowledge of a previous Commission decision addressed to a subsidiary of which it owned almost the entire share capital, such knowledge cannot remedy the absence of any finding in the previous decision that the parent company and the subsidiary form an economic unit reached for the purpose of imputing to the parent company liability for the previous infringement and increasing the fines imposed on the parent company for repeated infringement.
323. It follows that the present plea is well founded and that the contested decision must be adjusted, without it being necessary for the Court to examine the other arguments formulated by the applicants in the context of this plea. The consequences of that adjustment will be set out in paragraphs 461 and 462 below.
The plea alleging breach of the 2002 Leniency Notice and infringement of the principles of the protection of legitimate expectations and equal treatment in the assessment of the cooperation offered
324. The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07 and T‑150/07 point out that they applied for immunity from fines or for a reduction of the fines under the 2002 Leniency Notice. However, the Commission misapplied the provisions of that notice when assessing the quality and usefulness of their cooperation. According to the applicants in Cases T‑147/07, T‑149/07 and T‑150/07, the Commission also failed to meet their legitimate expectations in so far as concerns its assessment of their cooperation in establishing the infringement in Germany. Lastly, the applicants in Cases T‑144/07, T‑149/07 and T‑150/07 plead infringement of the principle of equal treatment in the application of the 2002 Leniency Notice in connection with the infringement in Belgium.
The 2002 Leniency Notice
325. The Court observes that in the 2002 Leniency Notice the Commission defined the conditions under which undertakings which cooperate with it for the purpose of establishing there to have been a cartel may be exempted from fines, or may be granted reductions in the fine which would otherwise have been imposed upon them.
326. First of all, the 2002 Leniency Notice provides, in Section A, at point 8:
‘The Commission will grant an undertaking immunity from any fine which would otherwise have been imposed if:
(a) the undertaking is the first to submit evidence which in the Commission’s view may enable it to adopt a decision to carry out an investigation in the sense of Article 14(3) of Regulation No 17 in connection with an alleged cartel affecting the Community; or
(b) the undertaking is the first to submit evidence which in the Commission’s view may enable it to find an infringement of Article 81 [EC] in connection with an alleged cartel affecting the Community.’
327. The 2002 Leniency Notice goes on to provide, in Section B, at point 20, that ‘[u]ndertakings that do not meet the conditions [of exemption from the fine] under Section A above may be eligible to benefit from a reduction of any fine that would otherwise have been imposed’ and, at point 21, that ‘[i]n order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence’.
328. As regards the concept of added value, the following explanation is given at point 22 of the 2002 Leniency Notice:
‘The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance.’
329. The first paragraph of point 23(b) of the 2002 Leniency Notice provides for reductions in fines to be classified in three categories:
‘– first undertaking to meet point 21: a reduction of 30-50%;
– second undertaking to meet point 21: a reduction of 20-30%;
– subsequent undertakings that meet point 21: a reduction of up to 20%.’
330. The second paragraph of point 23(b) of the 2002 Leniency Notice provides:
‘In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.’
331. Finally, the last paragraph of point 23(b) of the 2002 Leniency Notice provides:
‘If an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’
The Commission’s margin of discretion and review by the Courts of the Union
332. The Court recalls that Article 23(2) of Regulation No 1/2003, which is the legal basis for imposing fines in the event of infringement of the EU competition rules, confers on the Commission a margin of assessment in setting fines (see, to that effect, Case T‑229/94 Deutsche Bahn
v Commission
[1997] ECR II‑1689, paragraph 127), which will depend, in particular, on its general policy in competition matters (see, to that effect, Musique Diffusion française and Others
v Commission, paragraph 247 above, paragraphs 105 and 109). It was against that background that, in order to ensure the transparency and objectivity of its fining decisions, the Commission adopted and published the Leniency Notice in 2002. The notice constitutes an instrument intended to define, while complying with higher-ranking law, the criteria which the Commission proposes to apply in the exercise of its discretion, which is thus subject to a self-imposed limitation (see, by analogy, Case T‑214/95 Vlaams Gewest
v Commission [1998] ECR II-717, paragraph 89), in so far as the Commission must comply with self-imposed guidelines (see, by analogy, Case T-380/94 AIUFFASS and AKT
v Commission
[1996] ECR II‑2169, paragraph 57).
333. The limitation which the Commission has imposed on its discretion by adopting the 2002 Leniency Notice is not, however, incompatible with the retention of a considerable margin of assessment (see, by analogy, Raiffeisen Zentralbank Österreich and Others
v Commission, paragraph 60 above, paragraph 224).
334. The 2002 Leniency Notice displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Article 23 of Regulation No 1/2003, as interpreted by the Court of Justice (see, by analogy, Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 60 above, paragraph 224).
335. Thus, the Commission enjoys a broad margin of assessment when it is required to determine whether the evidence provided by an undertaking that has stated that it wishes to benefit from the 2002 Leniency Notice represents significant added value for the purposes of point 21 of the notice (see, to that effect, Case C‑328/05 P SGL Carbon
v Commission
[2007] ECR I-3921, paragraph 88, and Hoechst
v Commission, paragraph 158 above, paragraph 555). As regards point 8(a) and (b) of the notice, it is clear that that considerable margin of assessment results from the actual wording of that provision, which expressly refers to the provision of evidence which, ‘in the Commission’s view’, either enables it to adopt a decision to carry out an investigation or enables it to find an infringement. The assessment of the quality and usefulness of the cooperation provided by an undertaking involves complex assessments of fact (see, to that effect, SGL Carbon
v Commission, paragraph 81, and Carbone-Lorraine
v Commission, paragraph 153 above, paragraph 271).
336. Similarly, the Commission, once it has found that the evidence represents significant added value within the meaning of point 21 of the 2002 Leniency Notice, has a margin of discretion when it is required to determine the exact level of the reduction of the fine to be granted to the undertaking concerned. The first paragraph of point 23(b) of the notice provides for fine-reduction bands for the various categories of undertakings concerned, whilst the second paragraph of point 23(b) sets the criteria to be taken into account by the Commission in order to determine the level of reduction within those bands.
337. In view of the margin of assessment available to the Commission in evaluating the cooperation of an undertaking under the 2002 Leniency Notice, it is only where it manifestly goes beyond the bounds of that margin that it may be criticised by the General Court (see, to that effect, SGL Carbon
v Commission, paragraph 335 above, paragraphs 81, 88 and 89, and Hoechst
v Commission, paragraph 158 above, paragraph 555).
ThyssenKrupp’s cooperation in establishing the infringement in Belgium
338. The Commission decided, in recital 773 of the contested decision, ‘to grant ThyssenKrupp a reduction [in the fine] of 20% within the band provided for in the second indent of point 23(b) of the [2002] Leniency Notice’.
339. In recital 769 of the contested decision, the Commission explains in this connection that ‘[w]hen ThyssenKrupp submitted its leniency application [under the 2002 Leniency Notice] the Commission had already conducted three inspections in Belgium and received two corroborating leniency applications [under that notice] from Kone and Otis concerning cartel activities in Belgium’.
340. After stating in recital 770 of the contested decision that ‘[t]he new information provided by ThyssenKrupp consisted mainly of oral explanations of certain elevator and escalator projects’, the Commission acknowledges, in recital 771, that ‘ThyssenKrupp’s leniency application [under the 2002 Leniency Notice] represents significant added value because it provided additional information about [ confidential ]’. The Commission adds, in recital 771, that ‘[m]oreover, ThyssenKrupp’s submission corroborated evidence already in the Commission’s possession relating to the companies involved, the products and services covered and the period under investigation, the location and logistics of cartel meetings, as well as the operation and implementation of the cartel’.
341. In recital 772 of the contested decision, the Commission concludes that ThyssenKrupp ‘provided significant added value that considerably strengthened the Commission’s ability to prove the infringement’, adding that ‘[h]owever, the evidence submitted does not relate to facts previously unknown to the Commission, nor does it contain any contemporaneous evidence’.
342. First of all, the applicants in Cases T‑144/07, T‑149/07 and T‑150/07 maintain that the contested decision is confusing as regards the percentage by which the Commission intended to reduce ThyssenKrupp’s fine in recognition of its cooperation in establishing the infringement in Belgium. In recital 773 of the contested decision, the Commission mentioned a reduction of 20%, whereas, according to recital 856 of the decision, the reduction is 25%. The applicants argue that, pursuant to the principle in dubio pro reo, ThyssenKrupp should benefit from the more favourable interpretation of the contested decision in so far as concerns the amount of the fine. The fine should therefore be reduced by 25% rather than 20%.
343. It must be observed that the applicants in Cases T‑144/07, T‑149/07 and T‑150/07 cannot rely in this connection on the principle in dubio pro reo, according to which the doubt must be construed in favour of the undertakings concerned, since the principle relates to the taking of evidence regarding the existence of an infringement and is intended to establish whether the Commission’s findings of fact in a contested decision are supported by the evidence which it has adduced. The applicants do not, however, dispute the fact of the infringement for which they were penalised in the contested decision.
344. As regards the applicants’ argument that the fine imposed on ThyssenKrupp in respect of the infringement in Belgium should be reduced because recital 856 of the contested decision mentions a reduction of 25%, it must be recalled that the amount of the fine imposed in the fourth indent of Article 1(1) of the contested decision includes a 20% reduction on account of ThyssenKrupp’s cooperation under the 2002 Leniency Notice.
345. It is true that the operative part of an act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (Case C‑355/95 P TWD
v Commission
[1997] ECR I‑2549, paragraph 21). Nevertheless, the grounds for the contested decision clearly reveal the Commission’s intention to grant ThyssenKrupp a reduction in its fine of 20%, not 25%, under the 2002 Leniency Notice.
346. First, in recital 772 of the contested decision, the Commission stated that ‘ThyssenKrupp completely fulfilled the conditions of point 21 [of the 2002 Leniency Notice] [ confidential ] and provided significant added value that considerably strengthened the Commission’s ability to prove the infringement’. It went on to state, ‘[h]owever, [that] the evidence submitted does not relate to facts previously unknown to the Commission, nor does it contain any contemporaneous evidence’, which suggested that the minimum reduction of the fine provided for in the second indent of the first paragraph of point 23(b) of the 2002 Leniency Notice should be applied. Second, recital 773 of the contested decision expressly confirms that ‘[b]ased on the foregoing, it is appropriate to grant ThyssenKrupp a reduction of 20% within the [applicable] band’.
347. The mention of 25% in recital 856 of the contested decision, a recital which recapitulates all the reductions in the fines granted to the various undertakings in return for their cooperation during the administrative procedure, must, in light of recitals 772 and 773 and of the operative part of the contested decision, be regarded as a clerical error. The first complaint of the applicants in Cases T‑144/07, T‑149/07 and T‑150/07 must therefore be rejected.
348. Second, the applicants in Cases T‑144/07, T‑149/07 and T‑150/07 maintain that ThyssenKrupp ought, under the 2002 Leniency Notice, to have benefited from a reduction of at least 25% of the fine imposed on it in respect of the infringement in Belgium. ThyssenKrupp adduced evidence of facts and circumstances previously unknown to the Commission. Furthermore, this was key information relating to the infringement.
349. In that regard, it must be stated that the applicants in Cases T‑144/07, T‑149/07 and T‑150/07 do not dispute that ThyssenKrupp’s cooperation falls within the second indent of the first paragraph of point 23(b) of the 2002 Leniency Notice and that on that account the undertaking was entitled to a reduction in its fine of between 20% and 30%. The 20% reduction in the fine awarded to ThyssenKrupp in respect of its cooperation (recital 773 of the contested decision) is thus within the band provided for by the notice.
350. It must also be borne in mind that the Commission has a margin of discretion when it is required to determine the exact level of the reduction of the fine to be granted within the bands provided for in the first paragraph of point 23(b) of the 2002 Leniency Notice and it is only where it manifestly goes beyond the bounds of that margin that it may be criticised by the General Court (see, to that effect, SGL Carbon
v Commission, paragraph 335 above, paragraphs 81, 88 and 89).
351. In the contested decision, the Commission, after acknowledging that ThyssenKrupp was entitled to a reduction in its fine because the evidence which it had adduced had ‘considerably strengthened the Commission’s ability to prove the infringement’, decided to grant a 20% reduction in its fine, since ‘the evidence submitted [did] not relate to facts previously unknown to the Commission, nor [did] it contain any contemporaneous evidence’ (recital 772 of the contested decision).
352. The applicants in Cases T‑144/07, T‑149/07 and T‑150/07 dispute the material accuracy of the findings set out in recital 772 of the contested decision.
353. First of all, they maintain that the infringement in Belgium fell into two phases, first, an agreement concerning market shares and the freezing of market shares and, second, an agreement concerning the allocation of public and private tenders in order to arrive at the agreed market shares. The Commission relied solely on the evidence put forward by ThyssenKrupp to reach its finding, in recitals 158 and 159 of the contested decision, on the freezing of the market shares of the undertakings concerned. ThyssenKrupp thus provided information previously unknown to the Commission relating to a constituent part of the infringement in Belgium, namely the agreement relating to the sharing of the elevator and escalator sales and installation sector in Belgium.
354. It must be observed in this connection that the two aspects of the infringement described in recital 158 of the contested decision are intrinsically linked. Indeed, the allocation of public and private tenders and other contracts ‘in accordance with each … pre-agreed share’ referred to in the third sentence of recital 158 presupposes the existence of an agreement relating to the sharing of the market, as referred to in the first sentence of recital 158 and in recital 159 of the contested decision. Since the applicants do not dispute that the evidence put forward by Kone and Otis was sufficient to establish the existence of the agreement referred to in the third sentence of recital 158, it must be held that the Commission necessarily knew of the existence of an agreement between the four manufacturers concerned relating to market shares by the time ThyssenKrupp made its application.
355. In any event, it is clear from the Commission’s file that, as early as February 2004, Kone informed the Commission of the existence of an adjustment mechanism between the participants in the Belgian cartel in the event that actual market shares differed from the agreed market shares, something which could only be contemplated in the context of an agreement on market shares. That being so, whilst the fact that recital 159 of the contested decision refers only to evidence emanating from ThyssenKrupp in order to establish the existence of an agreement on market shares admittedly demonstrates that that evidence strengthened the Commission’s ability to prove the infringement, it does not, however, imply that ThyssenKrupp informed the Commission of facts previously unknown to it.
356. Furthermore, the fact that representatives of Kone stated, in response to a question put by the Commission during a meeting [ confidential ] and relating to ‘the origins of the market shares used’, that they did not know their origin because the market shares had already been fixed by the time they took up their positions within Kone, in no way implies that the Commission was unaware of the existence of an agreement on market shares before [ confidential ], the date on which ThyssenKrupp’s application was received by the Commission. On the contrary, the simple fact that the Commission questioned Kone’s representatives on the manner in which the market shares of the participating undertakings had been determined adequately demonstrates that the Commission was already aware of the existence of an agreement on market shares by [ confidential ].
357. As the file shows, in view of the evidence of which the Commission was already aware when ThyssenKrupp made its application under the 2002 Leniency Notice, namely evidence of the existence of an agreement on market shares and of the market shares actually agreed between the participants, it must be held that the information which that undertaking communicated to the Commission did not relate to facts previously unknown to the institution. Moreover, as regards the assertion that the market shares had been frozen on the basis of market statistics prepared by the sectoral association Agoria, formerly Fabrimetal, it must be held that the information provided offered only limited added value in establishing the infringement in Belgium.
358. Next, the applicants in Cases T-144/07, T-149/07 and T‑150/07 argue that ThyssenKrupp made a decisive contribution to establishing the cartel relating to the maintenance and modernisation of elevators and escalators in Belgium (recital 771 of the contested decision), in that it had been the first undertaking to furnish proof that the undertakings involved had used [ confidential ], thus aggravating the infringement, a point which becomes clear on comparing the statement of objections with the contested decision (recitals 189 to 196 of the contested decision).
359. The applicants explain that they had given the Commission a facsimile from Schindler as evidence of their allegations [ confidential ]. The Commission was therefore mistaken in its assertion, in recital 772 of the contested decision, that ThyssenKrupp had provided no evidence at all dating back to the time of the infringement. Even though the facsimile had been copied during the inspections carried out at the premises of Schindler and Kone, the Commission had only understood the document’s significance as a result of the information provided by ThyssenKrupp. The added value lies precisely in the additional explanation provided by ThyssenKrupp, especially since the evidence in the Commission’s possession – in particular a statement made by Kone on 11 February 2004 – indicated that no [ confidential ] had been used.
360. It must be observed in this connection that the facsimile from Schindler to which the applicants refer was already in the Commission’s possession by the time ThyssenKrupp made its application, [ confidential ]. Indeed, it is clear from the undisputed findings in recital 196 of the contested decision and from the documents mentioned in footnote 224 to the decision that the facsimile from Schindler had already been seized at the premises of Kone and Schindler in January 2004. That being so, even though the facsimile is an item of evidence contemporaneous with the infringement, it nevertheless remains the case that that document, sent by ThyssenKrupp, cannot be considered to have provided significant added value over and above the evidence already in the Commission’s possession when the undertaking made its application. Given that the document does not fulfil the conditions of point 21 of the 2002 Leniency Notice, there was no need for the Commission to take account of it when determining the size of the reduction in the fine to be granted to ThyssenKrupp in return for its cooperation under the notice. Indeed, only evidence satisfying the conditions of point 21 of the notice gives rise to an entitlement to a reduction in the fine under the notice.
361. Admittedly, when sending Schindler’s facsimile, ThyssenKrupp provided additional information relating to [ confidential ]. Whilst that information satisfied the conditions of point 21 of the 2002 Leniency Notice, it did not constitute contemporaneous evidence and related to a fact, namely [ confidential ], that was already apparent from the explanations offered by Otis in March 2004 (recital 194 of the contested decision and footnote 222 to the decision). In any event, it is clear from recitals 189 and 193 to 196 of the contested decision that the [ confidential ] to which the applicants refer related solely to the functioning and implementation of the cartel relating to maintenance contracts and was not, in itself, decisive in establishing the infringement referred to in Article 1(1) of the contested decision.
362. Lastly, the applicants in Cases T‑144/07, T‑149/07 and T‑150/07 cannot maintain that it is clear from a comparison of the statement of objections with the contested decision that the Commission was able to establish a more serious infringement after receiving the information which ThyssenKrupp sent to it. Indeed, a comparison of points 195 to 200 of the statement of objections with recitals 189 to 196 of the contested decision, to which the applicants refer, does not show that in the period between the statement of objections and the adoption of the contested decision the classification of the facts changed so they were regarded as more serious. In any event, any such change in the classification of the infringement following the statement of objections could not have been the result of Schindler’s facsimile and the explanations provided by ThyssenKrupp in its leniency application, since that application preceded the statement of objections, and Schindler’s facsimile and ThyssenKrupp’s explanations had already been extensively analysed in points 196 and 200 of the statement of objections.
363. In light of all the foregoing, it must be held that the Commission could, without manifestly going beyond the bounds of its margin of assessment, set the reduction in ThyssenKrupp’s fine in return for its cooperation in establishing the Belgian cartel at the minimum level within the band provided for in the second indent of the first paragraph of point 23(b) of the 2002 Leniency Notice.
364. Third, the applicants in Cases T‑144/07, T‑149/07 and T‑150/07 argue that the Commission infringed the principle of equal treatment by granting ThyssenKrupp a 20% reduction in its fine while it granted a 40% reduction to Otis, whose cooperation was similar to that offered by ThyssenKrupp.
365. According to settled case-law, the Commission is not entitled, in its appraisal of the cooperation provided by members of a cartel, to disregard the principle of equal treatment ( Krupp Thyssen Stainless and Acciai speciali Terni
v Commission, paragraph 106 above, paragraph 237, and Case T-31/99 ABB Asea Brown Boveri
v Commission
[2002] ECR II-1881, paragraph 240 and the case-law cited).
366. Nevertheless, the Court cannot uphold the argument set out in paragraph 364, by which the applicants seek to establish an infringement of the principle of equal treatment.
367. First, the evaluation of the added value of an application under the 2002 Leniency Notice is made by reference to the evidence already in the Commission’s possession. Given that Otis’s cooperation preceded that of ThyssenKrupp (recitals 96 and 98 of the contested decision), the Commission had more evidence in its possession when ThyssenKrupp made its application under the notice than it did when Otis made its application.
368. Second, Otis provided contemporaneous documentary evidence that represented significant added value (recital 766 of the contested decision) whereas ThyssenKrupp produced only one piece of contemporaneous documentary evidence, namely the facsimile from Schindler referred to in paragraph 360 above, which did not, nevertheless, satisfy the conditions of point 21 of the 2002 Leniency Notice since it was already in the Commission’s possession when ThyssenKrupp made its application under that notice.
369. That being so, Otis and ThyssenKrupp were not in a similar position and the Commission did not therefore infringe the principle of equal treatment when granting ThyssenKrupp a 20% reduction in its fine under the second indent of the said provision.
370. It is apparent from all the foregoing that all ThyssenKrupp’s complaints concerning the application of the 2002 Leniency Notice to its cooperation in establishing the infringement in Belgium must be rejected.
ThyssenKrupp’s cooperation in establishing the infringement in Germany
371. In recital 812 of the contested decision, the Commission decided not to grant ThyssenKrupp immunity from or a reduction in the fine in return for its cooperation in establishing the infringement in Germany, [ confidential ] (recital 807 of the contested decision).
372. In recital 808 of the contested decision, the Commission states that ‘ThyssenKrupp brings forward certain allegations concerning [ confidential ]’. However, ‘[t]hese allegations are unsupported by any contemporaneous evidence and the Commission has found no evidence in support of them’.
373. Next, in recital 809 of the contested decision, the Commission asserts that ‘[t]he remainder of the information provided by ThyssenKrupp [ confidential ] was mere corroboration of evidence in the statement of objections, which neither qualifies as a decisive contribution, nor represents significant added value’.
374. Lastly, in recitals 810 and 811 of the contested decision, the Commission explains the following:
‘(810) … ThyssenKrupp’s submission was not decisive for the Commission to find such an infringement because it already had sufficient evidence available, as demonstrated in the statement of objections. ... ThyssenKrupp did not submit evidence originating from the period of time covered by the investigation. Instead, the statements, drawn up after notification of the statement of objections and after access to the file, only corroborate evidence already in the Commission’s possession. … [t]he non-corroborated unilateral statements referring to [ confidential ], remain unproved.
(811) In view of the above, the information provided by ThyssenKrupp cannot be considered to constitute significant added value under the [2002] Leniency Notice. [ confidential ] Even then, ThyssenKrupp limited its cooperation [ confidential ] to a mere confirmation of the statements already made by all other cartel members. [ confidential ].’
375. The applicants in Cases T‑147/07, T‑149/07 and T‑150/07 maintain that the Commission acted in breach of the 2002 Leniency Notice in forming the conclusion that the evidence provided by ThyssenKrupp in relation to the infringements committed in Germany did not represent significant added value.
376. First of all, ThyssenKrupp did not dispute the facts alleged in the statement of objections but confirmed them and supplemented them. It therefore strengthened the Commission’s ability to prove the infringement, as provided for in the first sentence of point 22 of the 2002 Leniency Notice. ThyssenKrupp immediately made the results of its internal inquiries available to the Commission, once it had been able to throw light upon the infringements committed in Germany.
377. Second, by giving information [ confidential ], ThyssenKrupp provided the Commission with evidence that offered significant added value, justifying a 20% reduction in the fine imposed on it in respect of the German cartel. The evidence [ confidential ] was of significant added value regardless of whether or not the Commission took it into account. By failing to take the evidence into consideration, moreover, the Commission violated the applicants’ legitimate expectations, since, as is clear from point 617 of the statement of objections, [ confidential ] was taken into account in the assessment of the gravity of each infringement.
378. The Court must point out in this connection that, unlike the second indent of Section D.2 of the notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the 1996 Leniency Notice’), the 2002 Leniency Notice does not provide for any reduction in the fine for undertakings which, after receiving a statement of objections, do not substantially contest the facts on which the Commission bases its allegations.
379. Under the 2002 Leniency Notice, in order to qualify for a reduction in a fine, an undertaking must provide the Commission with evidence of the suspected infringement which offers significant added value with respect to the evidence already in the Commission’s possession (see point 21 of the notice).
380. Having regard to the margin of assessment which the Commission enjoys in evaluating an undertaking’s cooperation under the 2002 Leniency Notice, and in particular in deciding whether the evidence represents significant added value, it is only where it manifestly goes beyond the bounds of that margin that it may be criticised by the General Court (see paragraph 350 above).
381. It is therefore necessary to examine whether the Commission manifestly went beyond the bounds of its margin of assessment in concluding that the evidence furnished by ThyssenKrupp did not represent significant added value within the meaning of the notice.
382. In accordance with points 21 and 22 of the 2002 Leniency Notice, in assessing the added value of the evidence provided by an undertaking, the Commission must take account not only of the nature and/or level of detail of the evidence, but also of the evidence already in its possession at the time when the undertaking in question makes its application.
383. It must be observed in this connection that, by the time ThyssenKrupp made its application, [ confidential ], the Commission had not only already received applications under the 2002 Leniency Notice relating to the German cartel from Kone, Otis and Schindler, but had also organised two rounds of inspections under Article 14(3) of Regulation No 17 (recitals 104 and 106 of the contested decision) and had sent requests for information, pursuant to Article 18 of Regulation No 1/2003, to the undertakings which had participated in the German cartel, to the associations VDMA, VFA and VMA and to a number of customers in Germany (recitals 110, 111 and 113 of the contested decision). Moreover, the Commission had already gathered sufficient evidence in order to address a statement of objections to the participants in the German cartel on 7 October 2005, before ThyssenKrupp made its application (recital 135 of the contested decision). Furthermore, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 do not dispute the fact that ThyssenKrupp’s assertions were not corroborated by contemporaneous evidence (recitals 808 and 810 of the contested decision).
384. In so far as concerns the assertions of the applicants in Cases T‑147/07, T‑149/07 and T‑150/07, to the effect that ThyssenKrupp had ‘confirmed and supplemented’ the facts relating to the German cartel, it must be observed that, leaving aside the evidence of how the cartel had been concealed, the applicants offer no further details about the evidence which they provided or about the way in which it represented significant added value, within the meaning of point 21 of the 2002 Leniency Notice.
385. As regards the evidence relating to [ confidential ] in Germany, it is clear from the documents mentioned in points 234 to 236 of the statement of objections and in recitals 219 to 221 of the contested decision that the evidence which Kone, Otis and Schindler submitted before ThyssenKrupp made its application was already sufficient to establish that the participants in the German cartel had adopted various precautions [ confidential ].
386. In so far as the argument of the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 relates to [ confidential ], the Court would point out that those endeavours, to the extent that they have been proven, relate to the period after the infringement as it was established in Article 1(2) of the contested decision. That evidence was thus incapable of strengthening the Commission’s ability to establish the infringement and thus offered no significant added value within the meaning of point 21 of the 2002 Leniency Notice.
387. Since, in this case, the evidence provided by ThyssenKrupp did not satisfy the conditions of that provision, the Commission was entitled to refuse to grant ThyssenKrupp any reduction in its fine under the last paragraph of point 23(b) of the notice.
388. Lastly, as regards the complaint of infringement of the principle of the protection of legitimate expectations, it was pointed out in paragraph 179 above that the right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is clear that the EU authorities have given him precise assurances, thereby causing him to entertain justified expectations.
389. However, the Commission’s explanation in point 617 of the statement of objections, to the effect that, when assessing the gravity of the infringement, it would, inter alia, take account of the fact that the participants in the cartel had adopted numerous precautions to ensure that the cartel was not discovered, cannot be regarded as a precise assurance that ThyssenKrupp would benefit from a reduction in its fine under point 23 of the 2002 Leniency Notice. Indeed, any reduction in a fine under that provision is dependent upon the evidence representing significant added value, on which matter point 617 of the statement of objections is silent. Moreover, given that ThyssenKrupp had not yet made its application under the 2002 Leniency Notice with respect to the German cartel by the time it received notification of the statement of objections, point 617 of the statement of objections could not in any event have created any legitimate expectations as to the added value of the evidence which it had not yet submitted. The Court must therefore reject that last complaint also.
390. It is apparent from all the foregoing that all ThyssenKrupp’s complaints concerning the application of the 2002 Leniency Notice to its cooperation in establishing the infringement in Germany must be rejected.
ThyssenKrupp’s cooperation in establishing the infringement in Luxembourg
391. ThyssenKrupp, which was the third undertaking to make an application under the 2002 Leniency Notice in respect of the Luxembourg cartel (recital 119 of the contested decision), was not granted any reduction of its fine under the notice so far as that cartel was concerned (recital 828 of the contested decision). The Commission explains this in recital 827 of the contested decision:
‘The Commission observes that it had already conducted an inspection in Luxembourg and received two corroborating leniency applications from Kone and Otis [under the 2002 Leniency Notice] concerning cartel activities in Luxembourg before ThyssenKrupp submitted its leniency application [under that notice]. ThyssenKrupp’s application consisted of one brief oral corporate statement and did not provide any contemporaneous evidence or new information of significance, limiting itself largely to confirming information previously known to the Commission, for example, concerning the persons participating in the cartel. Therefore ThyssenKrupp did not provide new evidence of significant added value and did not, compared to the evidence in the Commission’s possession at the time of the submission, to any significant extent strengthen the Commission’s ability to prove the facts in question. Subsequent to its … application, ThyssenKrupp has not further cooperated except [for] responding to the Commission’s … request for information [under Article 18(2) of Regulation No 1/2003].’
392. The applicants in Cases T‑148/07, T‑149/07 and T‑150/07 maintain that the Commission’s application of the 2002 Leniency Notice was legally incorrect, in that it failed to take account of the added value of the evidence provided by ThyssenKrupp. That undertaking had, in fact, obtained for the Commission evidence representing significant added value, inasmuch as it had not denied the facts set out in the statement of objections and had agreed with and supplemented the complaints expressed by the Commission, something which ought, in accordance with the second indent of the first paragraph of point 23(b) of the 2002 Leniency Notice, to have been reflected by a reduction of 20% to 30% of the fine imposed on the undertaking in respect of the Luxembourg cartel.
393. As has already been pointed out in paragraph 378 above, the 2002 Leniency Notice does not provide for any reduction in the fine for undertakings which, after receiving a statement of objections, do not substantially contest the facts on which the Commission bases its allegations. It is therefore necessary to examine whether, having regard to the margin of assessment which the Commission enjoys in evaluating an undertaking’s cooperation under the 2002 Leniency Notice, the Commission manifestly went beyond the bounds of that margin of assessment in finding that the evidence provided by ThyssenKrupp did not represent significant added value by comparison with the evidence already in its possession at the time the undertaking made its application under that notice.
394. In this case, it must be pointed out, in the first place, that the applicants in Cases T‑148/07, T‑149/07 and T‑150/07, which do not take issue with the grant to Kone of immunity from fines under point 8(b) of the 2002 Leniency Notice, equally do not dispute that the information provided by Kone already enabled the Commission to find an infringement in Luxembourg (recital 816 of the contested decision). The Commission had, therefore, already received sufficient evidence to establish an infringement in Luxembourg by the time ThyssenKrupp made its application. Furthermore, prior to ThyssenKrupp’s application, the Commission had already received an application from Otis, in March 2004, as a result of which Otis benefited from a 40% reduction in the fine imposed on it in respect of the Luxembourg cartel (recitals 118 and 823 of the contested decision).
395. In the second place, the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 do not dispute the fact that, in its application [ confidential ], ThyssenKrupp provided no contemporaneous evidence (recital 827 of the contested decision). In accordance with point 22 of the 2002 Leniency Notice, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to be of greater value than evidence subsequently established.
396. The applicants in Cases T‑148/07, T‑149/07 and T‑150/07 nevertheless put forward a number of points which, they argue, demonstrate that the evidence provided by ThyssenKrupp represented significant added value by comparison with the evidence already in the Commission’s possession.
397. Firstly, the applicants rely upon the large number of references in the contested decision to ThyssenKrupp’s application under the 2002 Leniency Notice in order to show that that application represented added value.
398. However, the fact that the Commission made use, in the contested decision, of all the evidence available to it, and thus also of the information provided by ThyssenKrupp in its leniency application [ confidential ], does not establish that ThyssenKrupp’s information represented significant added value with respect to the evidence already in the Commission’s possession at that time. Indeed, the Commission evaluates added value for the purposes of the 2002 Leniency Notice by reference to both the quality of the cooperation offered and a comparison with the evidence already available to the Commission.
399. The applicants in Cases T‑148/07, T‑149/07 and T‑150/07 cannot, in this context, argue that the Commission breached its duty to state reasons in that it wrongly diminished the importance for the undertakings of submitting detailed evidence to the Commission. According to settled case-law, the statement of reasons required by Article 253 EC must disclose in a clear and unequivocal fashion the reasoning followed by the EU authority which adopted the contested measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court having jurisdiction to exercise its power of review (Case C‑367/95 P Commission
v Sytraval and Brink’s France
[1998] ECR I‑1719, paragraph 63, and Case C-301/96 Germany v Commission
[2003] ECR I‑9919, paragraph 87). In the present case, the Commission clearly set out, in recitals 825 to 828 of the contested decision (see, in particular, paragraph 391 above), the reasons for which no reduction in the fine imposed in respect of the Luxembourg cartel could be granted.
400. Secondly, the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 argue that the Commission relied upon ThyssenKrupp’s statements when it referred, in recital 307 of the contested decision, to the precautions taken by the participants in the cartel to conceal the meetings and contacts between competitors.
401. It must be observed that the statements made by ThyssenKrupp to which reference is made in recital 307 of the contested decision record the use of a second mobile telephone [ confidential ] of TKAL with pre-paid cards to organise anti-competitive meetings. However, the efforts which the participants in the Luxembourg cartel made in order to conceal their meetings and contacts were already clear from Kone’s application of 5 February 2004, and in particular points 3.4.2 and 3.4.5 thereof. That being so, the Commission did not manifestly go beyond the bounds of its margin of assessment in holding that the statements made by ThyssenKrupp summarised in recital 307 of the contested decision did not represent significant added value by comparison with the evidence already in its possession.
402. Thirdly, the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 point out that ThyssenKrupp was the first undertaking to inform the Commission that the unlawful meetings were organised [ confidential ] (recital 303 of the contested decision). It is clear from footnote 455 to the contested decision that ThyssenKrupp’s [ confidential ] contribution preceded the contributions of its competitors.
403. However, it must be held that, as is clear from the file and contrary to the contention of the applicants in Cases T‑148/07, T‑149/07 and T‑150/07, the Commission knew of the role [ confidential ] in organising the unlawful meetings once Kone and Otis had made their statements in February and March 2004, before ThyssenKrupp made its contribution. That being so, no significant added value, within the meaning of point 21 of the 2002 Leniency Notice, may be ascribed to the statements made by ThyssenKrupp mentioned in the previous paragraph.
404. In any event, even if ThyssenKrupp had been the first undertaking to communicate the information referred to in paragraph 402 above, the Commission did not manifestly go beyond the bounds of its margin of assessment in reaching the conclusion that that evidence did not represent significant added value within the meaning of point 21 of the notice. In addition to the fact that the identity of the undertaking which called the unlawful meetings cannot be regarded as an important factor in proving the existence of a cartel, it is clear from recital 721 of the contested decision that the Commission did not judge the information in question to be sufficiently convincing to conclude that [ confidential ] had been the instigator of the Luxembourg cartel or had played a leading role in it.
405. Fourthly, ThyssenKrupp had informed the Commission in its application [ confidential ] of the existence of an adjustment mechanism. Projects would automatically be reallocated among the cartel members if the agreed market shares were not adhered to (recitals 317 and 336 of the contested decision). In the contested decision (footnotes 484 and 517 thereto), the Commission mentions in this connection a contribution which Kone made on 29 October 2004 that was not made voluntarily and came well after ThyssenKrupp’s contribution.
406. However, it must be held that, as is clear from the file, in its application [ confidential ], ThyssenKrupp merely stated that the reason for allocating projects was to freeze market shares and that failure to adhere to the agreements gave rise to a rectification for subsequent projects. That information, however, was already available to the Commission when ThyssenKrupp made its application. No significant added value, within the meaning of point 21 of the 2002 Leniency Notice, can therefore be ascribed to the information which ThyssenKrupp communicated regarding the adjustment mechanism.
407. Fifthly, in its contribution [ confidential ], ThyssenKrupp revealed that the project lists contained the names of projects, the numbers of elevators and prices. The Commission used that information in paragraphs (a), (c) and (d) of recital 321 of the contested decision, without, however, acknowledging that this contribution came from ThyssenKrupp.
408. As is clear from the file, however, it must be observed that the information mentioned in the previous paragraph was already in the Commission’s possession when ThyssenKrupp made its application. No significant added value, within the meaning of point 21 of the 2002 Leniency Notice, can therefore be ascribed to that information.
409. Sixthly, the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 maintain that the Commission used information relating to the content of maintenance contracts and relied, in this connection, on Kone’s contribution of 5 February 2004 and ThyssenKrupp’s contribution [ confidential ], the information provided by Schindler and Luxlift not being given until some time later (recital 348 of the contested decision). The Commission confirmed the information referred to in recital 348 by reference to four statements from competitors and thus clearly could not have relied solely on the statement made by Kone.
410. It must, however, be observed that, as is clear from the file, prior to ThyssenKrupp’s application [ confidential ], Kone had, on 5 and 11 February 2004, provided much more detailed information on maintenance contracts than that communicated by ThyssenKrupp, and that that information was confirmed orally by Otis on 23 March 2004. That being so, no significant added value may be ascribed to the information on maintenance contracts communicated by ThyssenKrupp in the context of its application under the 2002 Leniency Notice.
411. It follows from the foregoing that the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 have failed to demonstrate that the Commission clearly went beyond the bounds of its margin of assessment in finding that the evidence provided by ThyssenKrupp did not represent significant added value within the meaning of point 21 of the 2002 Leniency Notice.
412. In the third place, the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 claim that the Commission made a grave error of assessment by failing to have regard to the decision [ confidential ] of the Luxembourg competition authority granting ThyssenKrupp immunity, which thereby suggested that the undertaking’s cooperation had been sufficient, under Luxembourg law, to justify the award of immunity or a reduction in the fine, and that it thus represented significant added value.
413. It must be recalled in this connection that the opinion on leniency of the Luxembourg competition council [ confidential ] took formal note of TKAL’s and TKE’s application for leniency in connection with the Luxembourg cartel and confirmed that it took priority for the purposes of the procedure in Luxembourg (Articles 1 and 2). Nevertheless, the opinion on leniency contained no assessment as to the quality of the evidence provided by ThyssenKrupp. Indeed the Luxembourg competition council took the view that it was ‘appropriate to stay proceedings on the substance of the leniency application pending the outcome of the Commission investigation ...’ (point 6 and Article 3 of the opinion on leniency). That being so, the applicants’ argument cannot be upheld.
414. In the fourth place, the applicants in Cases T‑148/07, T‑149/07 and T‑150/07 maintain that, because of the obvious linguistic inadequacies of the officials in charge of the case, which led to the misinterpretation of certain items of evidence, the Commission incorrectly evaluated the added value of ThyssenKrupp’s contribution under the 2002 Leniency Notice. However, that argument must be dismissed, for the reasons given in paragraph 86 above.
415. It is apparent from all the foregoing that all ThyssenKrupp’s complaints concerning the application of the 2002 Leniency Notice to its cooperation in establishing the infringement in Luxembourg must be rejected.
416. The present plea must therefore be dismissed in its entirety.
The plea alleging infringement of the principles of the protection of legitimate expectations, equal treatment, proportionality and sound administration in the determination of the amount of the reduction in the fines granted for cooperation outside the scope of the 2002 Leniency Notice
417. The Commission had stated in point 614 of the statement of objections that it was considering whether ‘to grant any reduction [in the fines] for cooperation outside the [2002] Leniency Notice, in particular where a company [did] not contest, or where it [provided] further assistance in clarifying or supplementing, the facts found by the Commission’.
418. In recital 758 of the contested decision, the Commission explained that, ‘[t]o the extent [that point] 614 of the statement of objections created expectations in this case, [it] [had] decided to interpret [that point] in favour of those undertakings relying on it and assisting in the establishment of the infringement in [the contested] decision by not contesting the facts or by providing additional information or further clarifications’.
419. The Commission thus granted all the participants in the four infringements, with the exception of (i) undertakings granted immunity from fines (recitals 762, 817 and 839 of the contested decision) and (ii) Kone in relation to the Netherlands cartel (recital 851 of the contested decision), a 1% reduction in their fines for their cooperation outside the 2002 Leniency Notice, in recognition of the fact that they had not contested the facts set out in the statement of objections (recitals 768, 774, 777, 794, 801, 806, 813, 824, 829, 835, 845, 854, 855 and 856 of the contested decision).
420. In the first place, the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 submit that they could legitimately expect a reduction of at least 10% of the fines imposed on ThyssenKrupp for the infringements in Belgium, Germany, Luxembourg and the Netherlands since they had not contested the facts in the statement of objections. That legitimate expectation flowed, in their submission, from point 614 of the statement of objections and the Commission’s decision-making practice, pursuant to which an undertaking that did not substantially contest the facts complained of in the statement of objections would be granted a 10% reduction in its fine, in accordance with the 1996 Leniency Notice.
421. First of all, it was recalled in paragraph 388 above that the right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is clear that the EU authorities have given him precise assurances, thereby causing him to entertain justified expectations.
422. On the other hand, as was already pointed out in paragraph 180 above, a person may not plead infringement of the principle of the protection of legitimate expectations unless he has been given precise assurances by the authorities. Information that is precise, unconditional and consistent which comes from an authorised and reliable source constitutes such an assurance.
423. It is true that the 2002 Leniency Notice, unlike the 1996 Leniency Notice, does not provide for any reduction of fines for undertakings which do not substantially contest the facts on which the Commission bases its allegations in the statement of objections. However, the Commission acknowledged, in recital 758 of the contested decision, that point 614 of the statement of objections created for the undertakings a legitimate expectation that if the facts were not contested, that would entail a reduction of the fine outside the 2002 Leniency Notice.
424. In point 614 of the statement of objections, the Commission had stated that ‘it [was considering] whether to grant any reduction [in the fines] for cooperation outside the [2002] Leniency Notice, in particular where a company [did] not contest, or where it [provided] further assistance in clarifying or supplementing, the facts found by the Commission’. Such a statement cannot be regarded as a precise assurance which could have caused the applicants to entertain justified expectations that a reduction greater than 1% of the amount of the fine would be granted to them. Point 614 of the statement of objections does not give any indication of the extent or rate of the reduction which would, where appropriate, be granted to the undertakings concerned, so that it can in no case have given rise to any legitimate expectation whatsoever in that regard.
425. Second, the Court must also reject the applicants’ argument that the Commission departed from its previous practice, whereby an undertaking which did not substantially contest the facts complained of in the statement of objections would be granted a 10% reduction in the fine which would have been imposed on it, since, as was stated in paragraph 153 above, it has consistently been held that the Commission’s practice in previous decisions cannot itself serve as a legal framework for the imposition of fines in competition matters.
426. Moreover, the applicants do not dispute that the 2002 Leniency Notice alone applies to their applications. Therefore, the Commission’s practice in previous decisions, or the case-law, relating to the application of the second indent of Section D.2 of the 1996 Leniency Notice cannot in any event have caused the applicants to entertain a legitimate expectation, on the basis of point 614 of the statement of objections, concerning the rate by which the fines would be reduced on the ground that they did not contest the facts relating to the Belgian, German, Luxembourg and Netherlands cartels.
427. In the second place, the applicants in Cases T‑144/07 and T‑154/07 maintain that the Commission infringed the principle of proportionality in failing to award them a 10% reduction for not contesting the facts. They also argue in this connection infringement of the principle of sound administration, since the Commission induced the undertakings not to contest the facts and yet allowed them only a 1% reduction in the amount of their fines.
428. It should be recalled in this connection that the principle of proportionality requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑180/96 United Kingdom
v Commission
[1998] ECR I‑2265, paragraph 96, and judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer
v Commission, not published in the ECR, paragraph 223).
429. As regards the rate of any reduction in the fine on the ground that the facts have not been contested, it is clear from the case-law that an undertaking which expressly states that it is not contesting the allegations of fact on which the Commission bases its objections may be regarded as having facilitated the Commission’s task of finding infringements of the EU competition rules and bringing them to an end (Case T-352/94 Mo och Domsjö
v Commission [1998] ECR II-1989, paragraph 395, and Case T-327/94 SCA Holding
v Commission
[1998] ECR II-1373, paragraph 157).
430. In recital 758 of the contested decision, the Commission none the less stated that ‘[t]he extent of the reduction should take into account [the fact] that cooperation offered after the statement of objections, after the Commission has established all the elements of the infringement, at a time when the undertaking is aware of all the results of the investigation and has had access to the investigation file, can only assist the Commission marginally, if at all, in its investigation’. The Commission also stated that ‘[i]n general, admission of the facts in these circumstances is at most corroborating evidence of facts that the Commission would regularly consider already sufficiently proven by other evidence in the file’.
431. It should be borne in mind in that regard that the 2002 Leniency Notice requires a high level of cooperation with the Commission, envisaging moreover ‘a closer alignment between the level of reduction of fines and the value of a company’s contribution to establishing the infringement’ (point 5). Thus, first, as was already pointed out in paragraph 378 above, unlike the 1996 Leniency Notice, the 2002 Leniency Notice does not provide for a reduction in fines for not contesting the facts and, second, as regards applications made to the Commission under the 2002 Leniency Notice, the maximum reduction which may be awarded to undertakings that are neither the first nor the second to meet point 21 of the notice, but whose evidence none the less represents significant added value with respect to the evidence already in the Commission’s possession, amounts to 20%.
432. Having regard to the foregoing, to the fact that the reductions granted in this instance for not contesting the facts are added to the reductions in the fines already granted under the 2002 Leniency Notice and to the limited value of cooperation offered after the statement of objections (recital 758 of the contested decision), the Commission did not infringe the principle of proportionality by not granting ThyssenKrupp a 10% reduction for not contesting the facts relating to the cartels in Belgium, Germany, Luxembourg and the Netherlands. Moreover, the applicants in Cases T‑144/07 and T‑154/07 have adduced no evidence to show that the Commission induced them not to contest the facts, and therefore their complaint of infringement of the principle of sound administration cannot, in any event, be upheld.
433. In the third place, the applicants in Cases T‑147/07, T‑149/07 and T‑150/07 maintain that ThyssenKrupp, which informed the Commission about the efforts of the participants in the German cartel to obstruct its investigation, was the victim of discriminatory treatment by comparison with the undertakings which denied such actions, inasmuch as both sets of undertakings received the same reduction in their fine in return for their cooperation outside the scope of the 2002 Leniency Notice. The applicant in Case T‑144/07 also argues in this connection that a reduction in the fine of 1% was granted to all the undertakings, regardless of their cooperation.
434. That argument cannot be accepted. Given that ThyssenKrupp’s assertions regarding the efforts made to obstruct the investigation did not make it easier for the Commission to establish the infringement (see paragraph 386 above), the useful cooperation which ThyssenKrupp offered outside the scope of the 2002 Leniency Notice was limited to not contesting the facts. ThyssenKrupp’s cooperation is thus comparable to that offered by the other undertakings which, in so far as concerns cooperation outside the scope of the notice, did no more than refrain from contesting the facts set out in the statement of objections.
435. In the fourth place, the applicants in Cases T‑144/07, T‑149/07, T‑150/07 and T‑154/07 submit that the method by which the 1% reduction in return for not contesting the facts was calculated financially prejudiced ThyssenKrupp by comparison with the other undertakings involved in the administrative procedure. In the case of ThyssenKrupp, the Commission calculated the reductions in the fines which it granted in two stages: first, reductions of 20% and 40% in relation to Belgium and the Netherlands respectively in return for cooperation under the 2002 Leniency Notice, and then 1% reductions in return for cooperation outside the scope of that notice. In the case of the other undertakings, the 1% reduction was applied directly to the fine set by the Commission. By that calculation method, therefore, the Commission favoured the undertakings which received no reduction in their fine under the 2002 Leniency Notice, by comparison with the undertakings which did offer cooperation during the administrative procedure.
436. The Court has already pointed out (see paragraph 365 above) that it is settled case‑law that the Commission is not entitled, in its appraisal of the cooperation provided by members of a cartel, to disregard the principle of equal treatment.
437. However, leaving aside the fact that the reductions in the fines granted under the 2002 Leniency Notice and the reductions granted for reasons falling outside the scope of that notice constitute separate stages in the calculation of the fines, it must be observed that the undertakings which cooperated both under the 2002 Leniency Notice and outside the scope of that notice, on the one hand, and the undertakings which cooperated solely outside the scope of the notice, on the other hand, are not in the same situation. The complaint alleging infringement of the principle of equal treatment cannot therefore succeed.
438. The present plea must therefore be dismissed in its entirety.
The plea alleging infringement of Article 23(2) of Regulation No 1/2003
439. The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 argue that the fines imposed in Article 2 of the contested decision for the infringements established therein infringe Article 23(2) of Regulation No 1/2003 in that, in determining the ceiling of 10% of the turnover of the undertakings concerned, the Commission took as reference the turnover figure of the ThyssenKrupp group, rather than the turnover of the subsidiaries which directly participated in the infringements.
440. The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 submit, first of all, that the infringements committed by their respective subsidiaries cannot be attributed to TKAG and TKE and that, consequently, the ceiling of 10% of turnover referred to in Article 23(2) of Regulation No 1/2003 ought to be calculated by reference to the turnover figures of the subsidiaries.
441. However, it must be observed that this complaint is confused with the complaints examined in paragraphs 100 to 149 above, relating to the imputation to the parent companies of the ThyssenKrupp group of the conduct of their subsidiaries. It is clear, however, from the reasoning relating thereto, that the Commission was entitled to conclude that TKAG and TKE form an economic unit with their respective subsidiaries. This complaint must therefore be rejected.
442. Second, the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 assert that the ceiling for the fines cannot in any event be calculated on the basis of the turnover of the parent company since Article 23(2) of Regulation No 1/2003 refers to the ‘undertakings participating in the infringement’. The 10% ceiling thus applies to the turnover of the perpetrator directly involved in the infringement, not to the turnover of the parent company held jointly and severally liable.
443. It must be pointed out in this connection that Article 23(2) of Regulation No 1/2003 provides that, ‘[f]or each undertaking and association of undertakings participating in the infringement the fine shall not exceed 10% of its total turnover in the preceding business year’. According to settled case-law, the turnover figure referred to in that provision is the overall turnover of the undertaking concerned ( Dalmine
v Commission, paragraph 55 above, paragraph 146, and Prym and Prym Consumer
v Commission, paragraph 428 above, paragraph 177 and the case-law cited).
444. Thus, the 10% of turnover limit laid down in Article 23(2) of Regulation No 1/2003 must be calculated on the basis of the aggregated turnover of all the companies comprising the economic unit that acted as an undertaking for the purposes of Article 81 EC ( HFB and Others
v Commission, paragraph 311 above, paragraph 528, and judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others
v Commission, not published in the ECR, paragraph 390).
445. In the present case, the Commission established that, for the purpose of applying Article 81 EC, TKAG formed an economic unit with its subsidiaries referred to in Article 1 of the contested decision (see paragraphs 100 to 149 above). Having regard to the case-law cited in paragraphs 443 and 444 above, the Commission was entitled to take as a basis for calculating the fines which it imposed in Article 2 of the contested decision the turnover of the parent company, so as to set the fines at a sufficiently deterrent level.
446. It follows that the Commission did not infringe Article 23(2) of Regulation No 1/2003 by taking as a reference, for the purpose of determining the 10% of turnover limit for the fines which it was to impose in respect of the infringements committed by the companies within the ThyssenKrupp group, the turnover of TKAG. Given that the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 do not submit that the fine imposed on them exceeded the limit of 10% of that turnover, their complaints must be rejected.
The plea alleging infringement of the principle of proportionality in the calculation of the final amounts of the fines
447. The applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 argue that the final amounts of the fines imposed on them are disproportionate.
448. In order to establish the infringement of the principle of proportionality, the applicants in Cases T‑144/07, T‑149/07 and T‑150/07 first of all emphasise the national nature of the cartels in respect of which penalties are imposed in the contested decision. Second, the applicants in Cases T‑144/07, T‑148/07, T‑149/07 and T‑150/07 argue that the fines imposed on ThyssenKrupp in respect of the infringements in Belgium and Luxembourg are excessive, given the size of the markets in question, and do not properly reflect the relationships of economic strength between the undertakings which participated in the infringements, which were decisive at the time the infringements were committed. The applicants in Cases T‑144/07, T‑149/07, T‑150/07 and T‑154/07 emphasise, again in this same context, that the fines imposed on them in respect of the infringements in Belgium and the Netherlands, are several times greater than the respective turnover figures of TKLA and TKL. Third, the applicant in Case T‑144/07 submits that the principle of proportionality obliges the Commission to set the final amount of the fine in such a way as to reflect the full extent of the cooperation which TKLA offered, and in particular to take account of the promise of leniency given by the Belgian competition authority. The applicant in Case T‑154/07 also argues, in this connection, that the Commission ought to have taken the immunity which TKL would have been granted by the Netherlands competition authority into consideration.
449. It should be recalled at the outset that the principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see paragraph 428 above).
450. It follows that fines must not be disproportionate to the aims pursued, t hat is to say, to compliance with the competition rules, and that the amount of the fine imposed on an undertaking for an infringement of competition law must be proportionate to the infringement, viewed as a whole, account being taken, in particular, of the gravity of the infringement ( Prym and Prym Consumer
v Commission, paragraph 428 above, paragraph 224). Furthermore, in determining the amounts of fines, the Commission is entitled to take into account the need to ensure that fines have a sufficient deterrent effect (see, to that effect, Musique Diffusion française and Others
v Commission, paragraph 247 above, paragraph 108, and Case T‑304/94 Europa Carton
v Commission
[1998] ECR II‑869, paragraph 89).
451. It must be observed, first of all, that the infringements consisted in this case primarily of secret collusion between cartel participants to share markets or freeze market shares by allocating projects for the sale and installation of new elevators and/or escalators, as well as not to compete with each other for the maintenance and modernisation of elevators and escalators (except in Germany where the maintenance and modernisation business was not the subject of discussions between the cartel members). Such infringements are, by their very nature, among the most serious infringements of Article 81 EC (recital 658 of the contested decision).
452. In this connection, the relatively small size of the market for the products in question, assuming that factor to be established, is of only lesser importance compared with all the other factors evidencing the gravity of the infringement (see, to that effect, Roquette Frères
v Commission, paragraph 185 above, paragraph 151). The applicants’ arguments that the fines imposed by the Commission are disproportionate to the size of the relevant markets must, therefore, be rejected.
453. Second, as regards the proportionality of the fines by comparison with the size and economic strength of the economic units concerned, which acted, for the purposes of Article 81 EC, as undertakings, it must be recalled that it is clear from the foregoing arguments that those fines do not exceed the ceiling referred to in Article 23(2) of Regulation No 1/2003, the purpose of which is to ensure that fines are not disproportionate in relation to the size of the undertaking (see to that effect, Musique Diffusion française and Others
v Commission, paragraph 247 above, paragraph 119, and Prym and Prym Consumer
v Commission, paragraph 428 above, paragraph 229).
454. Third, it is settled case-law that, when calculating fines, the Commission may take into account, inter alia, the size and economic strength of the economic unit which, for the purposes of Article 81 EC, is acting as an undertaking. However, the relevant undertaking for the purposes of the present case is not each of the subsidiaries which participated in the infringements established in Article 1(1), (3) and (4) of the contested decision. On the contrary, it is clear from the foregoing analysis that the undertakings which committed the infringements referred to in the fourth indent of Article 1(1), of Article 1(3) and of Article 1(4) of the contested decision are constituted by TKAG and each of the subsidiaries mentioned in those provisions of the contested decisions (see paragraphs 100 to 149 above). That being so, the arguments by which the applicants merely seek to establish that the amounts of the fines imposed by the Commission are disproportionate to the turnover achieved by each of the subsidiaries, with the exclusion of its parent company, must be rejected.
455. Fourth, it has consistently been held that the Commission is not required, when determining fines according to the gravity and duration of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their turnover on the market concerned by the infringement (see, to that effect, Dansk Rørindustri and Others
v Commission, paragraph 94 above, paragraph 312, and Case T‑304/02 Hoek Loos
v Commission
[2006] ECR II‑1887, paragraph 84).
456. The General Court has thus already held that the final amount of the fine is not necessarily an appropriate factor in determining a lack of proportionality of the fine in view of the size of the participants in the cartel. That final amount is set, inter alia, on the basis of various factors linked to the individual conduct of the undertaking in question, such as the duration of the infringement, the existence of aggravating or attenuating circumstances and the degree to which that undertaking cooperated, but not to its market share or turnover ( Hoek Loos
v Commission, paragraph 455 above, paragraphs 85 and 86).
457. Moreover, it is clear from recitals 672, 673, 674, 676, 680 and 686 of the contested decision that, in setting the specific starting amounts of the fines, the Commission applied differential treatment to the undertakings concerned so that due consideration could be given to the relative sizes of the undertakings on the markets concerned by the cartels. The Commission therefore subdivided the undertakings ‘into several categories according to their turnover in elevators and/or escalators, including, where applicable, maintenance and modernisation services’ (recital 673 of the contested decision). The applicants’ arguments that the fines imposed did not properly reflect the relationships of economic strength between the undertakings which participated in the infringements cannot therefore be upheld.
458. Fifth, the arguments of the undertakings in Cases T‑144/07 and T‑154/07 to the effect that the Commission failed to take account of the full extent of the cooperation offered by ThyssenKrupp in Belgium, and that it ought to have taken the acts of the national competition authorities into consideration must also be rejected.
459. It should be recalled that the Commission gave due consideration to TKLA’s cooperation in establishing the Belgian cartel in recitals 769 to 774 of the contested decision. It is also clear from the foregoing reasoning (paragraphs 338 to 370 above) that the Commission made no manifest error of assessment in this connection. It is also clear from paragraphs 156 to 190 above that the applicants cannot invoke the promises of leniency which they received from the Belgian and Netherlands competition authorities.
460. In light of the foregoing considerations, the plea put forward by the applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 alleging infringement of the principle of proportionality in the calculation of the final amounts of the fines must be rejected.
The calculation of the final amounts of the fines
461. As was made clear in paragraphs 303 to 323 above, the Court must alter the contested decision in so far as it increased the basic amount of the fines imposed on ThyssenKrupp in the contested decision by 50% on account of repeated infringement.
462. The final amounts of the fines are therefore calculated as follows:
– In respect of the Belgian cartel, the basic amount of the fine (EUR 57 750 000) is reduced by 20% in recognition of the cooperation offered in the context of the 2002 Leniency Notice, giving EUR 46 200 000, and by 1% in recognition of the cooperation offered outside the scope of the 2002 Leniency Notice, giving a final amount of EUR 45 738 000.
– In respect of the German cartel, the basic amount of the fine (EUR 252 000 000) is reduced by 1% in recognition of the cooperation offered outside the scope of the 2002 Leniency Notice, giving a final amount of EUR 249 480 000.
– In respect of the Luxembourg cartel, the basic amount of the fine (EUR 9 000 000) is reduced by 1% in recognition of the cooperation offered outside the scope of the 2002 Leniency Notice, giving a final amount of EUR 8 910 000.
– In respect of the Netherlands cartel, the basic amount of the fine (EUR 26 350 000) is reduced by 40% in recognition of the cooperation offered in the context of the 2002 Leniency Notice, giving EUR 15 810 000, and by 1% in recognition of the cooperation offered outside the scope of the 2002 Leniency Notice, giving a final amount of EUR 15 651 900.
Costs
463. Under Article 87(3) of the Rules of Procedure, the Court may rule that costs are to be shared or that each party is to bear its own costs where each party succeeds on some and fails on other heads. In the present case, it must be held that the applicants are to bear three quarters of their own costs and to pay three quarters of those incurred by the Commission. The Commission shall bear a quarter of its own costs and pay a quarter of those of the applicants.
(1) .
(1)  –	Confidential information omitted.
Operative part
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Orders that Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 are joined for the purposes of the present judgment;
2. Annuls Article 2(1), fourth indent, Article 2(2), fourth indent, Article 2(3), fourth indent, and Article 2(4), fourth indent, 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);
3. In Cases T‑144/07, T‑149/07 and T‑150/07, sets the fine imposed on ThyssenKrupp Liften Ascenseurs NV, ThyssenKrupp Elevator AG and ThyssenKrupp AG in Article 2(1), fourth indent, of Decision C(2007) 512 in respect of the Belgian cartel at EUR 45 738 000;
4. In Cases T‑147/07, T‑149/07 and T‑150/07, sets the fine imposed on ThyssenKrupp Aufzüge GmbH, ThyssenKrupp Fahrtreppen GmbH, ThyssenKrupp Elevator and ThyssenKrupp in Article 2(2), fourth indent, of Decision C(2007) 512 in respect of the German cartel at EUR 249 480 000;
5. In Cases T‑148/07, T‑149/07 and T‑150/07, sets the fine imposed on ThyssenKrupp Ascenseurs Luxembourg Sàrl, ThyssenKrupp Elevator and ThyssenKrupp in Article 2(3), fourth indent, of Decision C(2007) 512 in respect of the Luxembourg cartel at EUR 8 910 000;
6. In Cases T‑150/07 and T‑154/07, sets the fine imposed on ThyssenKrupp Liften BV and ThyssenKrupp in Article 2(4), fourth indent, of Decision C(2007) 512 in respect of the Netherlands cartel at EUR 15 651 900;
7. Dismisses the actions as to the remainder;
8. In each action, orders the applicants to bear three quarters of their own costs and to pay three quarters of those incurred by the European Commission. The Commission shall bear a quarter of its own costs and pay a quarter of those of the applicants.