62007TJ0138_EN
Parties
Grounds
Operative part
Parties
In Case T‑138/07,
Schindler Holding Ltd,
established in Hergiswil (Switzerland),
Schindler Management AG,
established in Ebikon (Switzerland),
Schindler SA,
established in Brussels (Belgium),
Schindler Deutschland Holding GmbH,
established in Berlin (Germany),
Schindler Sàrl,
established in Luxembourg (Luxembourg),
Schindler Liften BV,
established in The Hague (Netherlands),
represented by R. Bechtold, W. Bosch, U. Soltész and S. Hirsbrunner, lawyers,
applicants,
v
European Commission,
represented by K. Mojzesowicz and R. Sauer, acting as Agents,
defendant,
supported by
Council of the European Union,
represented by M. Simm and G. Kimberley, acting as Agents,
intervener,
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 hearing on 17 September 2009,
gives the following
Judgment
Grounds
1. The present case concerns an 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) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union on 26 March 2008 (OJ 2008 C 75, p. 19), or, in the alternative, reduction of the amount of the fine imposed on 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. Schindler is one of the largest groups in the world supplying elevators and escalators. Its parent company is Schindler Holding, established in Switzerland (recital 27 of the contested decision). Schindler operates in the elevator and escalator sectors through its national subsidiaries. Those subsidiaries include, in Belgium, Schindler Belgium, in Germany, Schindler Germany, in Luxembourg, Schindler Luxembourg and, in the Netherlands, Schindler Netherlands (recitals 28 to 32 of the contested decision).
The administrative procedure
1. The Commission investigation
4. In the summer of 2003, the Commission received information concerning the possible existence of a cartel among the four major 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
5. 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).
6. 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).
7. 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).
8. 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
9. 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).
10. 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. Lastly, 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).
11. 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
12. 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).
13. 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).
14. 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).
15. 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
16. 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).
17. 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).
18. 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).
19. 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
20. On 7 October 2005, the Commission adopted a statement of objections which was addressed inter alia to the undertakings 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).
21. No hearing was held, since none of the addressees of the statement of objections had requested a hearing (recital 38 of the contested decision).
3. The contested decision
22. 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 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).
23. 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 period 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).
24. For the purpose of calculating the fines, the Commission applied in the contested decision the method set out in the 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.
25. 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).
26. 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).
27. 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 mitigating 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).
28. 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).
29. With respect to the cartel in Luxembourg, 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 and 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).
30. 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 of the fine 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).
31. 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 ... 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.
…’
Proceedings and forms of order sought
32. By application lodged at the Registry of the General Court on 4 May 2007, the applicants, Schindler Holding, Schindler Management AG, Schindler Belgium, Schindler Germany, Schindler Luxembourg and Schindler Netherlands, brought the present action.
33. By document lodged at the Court Registry on 25 July 2007, the Council of the European Union applied for leave to intervene in support of the form of order sought by the Commission. By order of 8 October 2007, the President of the Eighth Chamber of the General Court granted the application to intervene.
34. On 26 November 2007, the Council submitted its statement in intervention. The main parties have submitted their observations on that statement.
35. Upon hearing the report of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 64 of the Rules of Procedure, put questions in writing to the applicants and requested the Commission to produce a document. The parties complied with those measures within the time-limit set.
36. The parties presented oral argument and replied to the oral questions put by the Court at the hearing on 17 September 2009.
37. The applicants claim that the Court should:
– annul the contested decision;
– in the alternative, reduce the amount of the fines imposed;
– find, in accordance with Article 113 of the Rules of Procedure, that there is no need to adjudicate on the action in so far as Schindler Management is concerned;
– order the Commission to pay the costs, including those connected with the finding that there is no need to adjudicate on the action brought by Schindler Management.
38. The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
39. The Council contends that the Court should:
– dismiss the action;
– make the appropriate order as to costs.
The application for a finding that there is no need to adjudicate on the action in so far as Schindler Management is concerned
40. Article 4 of the contested decision, in the version preceding the commencement of the present action, included Schindler Management among the addressees of the decision.
41. By decision of 4 September 2007, notified to the General Court on 30 June 2009, the Commission corrected Article 4 of the contested decision and informed Schindler Holding and Schindler Management of the correction. The corrected Article 4 of the contested decision no longer mentions Schindler Management.
42. According to the applicants, the correction of the contested decision rendered the action brought by Schindler Management devoid of purpose.
43. It must be held, in accordance with the form of order sought by the applicants, that, following the correction of the contested decision, the present action, in so far as it is brought by Schindler Management, has become devoid of purpose.
44. There is thus no longer any need to adjudicate on the action brought by Schindler Management.
Substance
1. Preliminary observations
45. In support of their action, the applicants have raised in their pleadings arguments in the context of thirteen pleas in law, which they present as follows. The first plea alleges breach of the principle that penalties must have a proper legal basis, in that Article 23(2) of Regulation No 1/2003 gives the Commission an unrestricted discretion in calculating fines. The second plea alleges breach of the principle of non-retroactivity in the application of the 1998 Guidelines and the 2002 Leniency Notice. The third plea alleges breach of the principle that penalties must have a proper legal basis and that the Commission lacked jurisdiction to adopt the 1998 Guidelines. The fourth plea alleges that the 2002 Leniency Notice is unlawful, in that it breaches the principles nemo tenetur se ipsum accusare, nemo tenetur se ipsum prodere
(‘together referred to as ‘the nemo tenetur
principle’ and in dubio pro reo, and the principle of proportionality. The fifth plea alleges breach of the principle of the separation of powers and a failure to observe the requirement for procedures to be based upon respect for the principles of the rule of law. The sixth plea alleges the confiscatory nature of the fines imposed upon the applicants. The seventh and eighth pleas allege breach of the 1998 Guidelines in the setting of the starting amounts of the fines and in the assessment of the mitigating circumstances. The ninth plea alleges breach of the 1998 Guidelines and the 2002 Leniency Notice in the calculation of the fines for the infringements in Belgium, Germany and Luxembourg. The tenth plea alleges the disproportionate nature of the fines. The eleventh plea alleges that no valid notice was given of the contested decision to Schindler Holding. The twelfth plea alleges the absence of liability of the part of Schindler Holding. Lastly, the thirteenth plea alleges infringement of Article 23(2) of Regulation No 1/2003.
46. Although the action brought by the applicants has a double objective, namely an application for annulment of the contested decision, and, in the alternative, an application for reduction of the amount of the fines, the various complaints put forward by the applicants in their pleadings were none the less raised without specifying which claim they supported. At the hearing, in response to a question from the Court, the applicants stated, in substance, that the first ten pleas and the thirteenth plea were directed towards the annulment of Article 2 of the contested decision, that the eleventh plea was directed towards the annulment of the contested decision in its entirety, in so far as it was addressed to Schindler Holding, and that the twelfth plea was directed towards the annulment of Articles 1, 2 and 3 of the contested decision in so far as it was addressed to Schindler Holding.
47. It must be observed in this connection that several of the applicants’ complaints concern the legality of the contested decision in its entirety. They will therefore be examined first. That applies to the complaint which the applicants make in the context of their fifth plea, which, in substance, alleges infringement of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (the ‘ECHR’). Among the complaints concerning the legality of the contested decision in its entirety are also those which have been raised in the context of the eleventh and twelfth pleas, alleging, respectively, that the contested decision is unlawful in so far as it was addressed to Schindler Holding since no valid notice of it was given, and that the contested decision is unlawful in so far as it held Schindler Holding jointly and severally liable.
48. The complaints concerning the legality of Article 2 of the contested decision, put forward in the context of the other pleas in the action, will be examined subsequently. The Court considers it appropriate to examine the applicants’ complaints as follows. First of all, it will analyse the second, third and fourth pleas, in the context of which the applicants make several objections of illegality in relation to Article 23(2) of Regulation No 1/2003, the 1998 Guidelines and the 2002 Leniency Notice. Next, the Court will examine the sixth plea, alleging that the contested decision is confiscatory in nature. Lastly, the Court will examine the seventh, eighth, ninth, tenth and thirteenth pleas, in the context of which the applicants make several complaints concerning the calculation of their fines.
2. The application for the annulment of the contested decision in its entirety
The plea alleging infringement of Article 6(1) of the ECHR
49. The applicants argue that, since the infringements of the EC Treaty which relate to competition law fall within the scope of criminal law, the procedure before the Commission must satisfy the requirements of Article 6(1) of the ECHR. Administrative authorities cannot, they submit, impose penal sanctions unless there is the possibility of judicial review, which is not so in the present case. An action for annulment before the Courts of the European Union (‘Courts of the Union’) is no more than an appeal before an administrative court of last resort and is limited to the pleas in law which the applicant actually puts forward. That does not satisfy the requirements defined by the European Court of Human Rights, in particular, in Öztürk v. Germany, judgment of 21 February 1984, Series A, no. 73. Furthermore, the procedure before the Commission cannot be regarded as a procedure before an independent, impartial tribunal since the way in which the Commission takes evidence, in the context of the 2002 Leniency Notice, which consists in its relying upon descriptions of facts obtained in the course of a process of self-incrimination, is in breach of the requirements for a procedure in accordance with the rule of law, particularly since the undertakings are given no opportunity to check the relevance of the complaints made, for example, by putting questions to witnesses giving evidence against them.
50. Article 6(1) of the ECHR states:
‘In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …’
51. It must be borne in mind that the Court of Justice has recognised the general principle of European Union (‘EU’) law that everyone is entitled to a fair legal process (Case C‑411/04 P Salzgitter Mannesmann
v Commission
[2007] ECR I‑959, paragraph 40 and the case-law cited). That principle, which, moreover, has been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) (‘the Charter’), is inspired by the fundamental rights which form an integral part of the general principles of EU law which the Court of Justice enforces, drawing inspiration from the constitutional principles common to the Member States and from the guidelines supplied, in particular, by the European Court of Human Rights ( Salzgitter Mannesmann
v Commission, paragraph 41).
52. First of all, as regards the argument that the procedure before the Commission does not satisfy the requirements of Article 6(1) of the ECHR, the Court would observe that, according to the case-law of the European Court of Human Rights, in order for Article 6 of the ECHR to apply, it is sufficient that the infringement in question is by its nature to be regarded as criminal or renders the party concerned liable to a penalty which, by its nature and degree of severity, belongs in the general criminal sphere (see European Court of Human Rights, Jussila v. Finland, judgment of 23 November 2006, Reports of Judgments and Decisions, 2006‑XIII, § 31 and the case-law cited). As can be seen from the case-law of the European Court of Human Rights, by adopting an independent interpretation of the notion of ‘criminal charge’, the ECHR bodies laid the foundations for the progressive extension of the application of the criminal-head guarantees of Article 6 to areas which do not formally fall within the traditional categories of criminal law, such as pecuniary sanctions imposed for infringement of competition law. Nevertheless, as regards the categories which do not form part of the ‘hard core’ of criminal law, the European Court of Human Rights has stated that the criminal-head guarantees will not necessarily apply with their full stringency (see, to that effect, European Court of Human Rights, Jussila
v . Finland,
paragraph 43 and the case-law cited).
53. Moreover, according to the case-law of the Courts of the Union, and as is expressly confirmed by Article 23(5) of Regulation No 1/2003, Commission decisions imposing fines for the infringement of competition law are not of a criminal law nature (see, to that effect, Case T‑83/91 Tetra Pak
v Commission [1994] ECR II‑755, paragraph 235, 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 717, and Case T‑9/99 HFB and Others
v Commission
[2002] ECR II‑1487, paragraph 390).
54. Contrary to the applicants’ contention, it must be held that a procedure in which the Commission adopts a decision finding an infringement and imposing fines which may subsequently be subject to review by the Courts of the Union satisfies the requirements of Article 6(1) of the ECHR. Admittedly, the Commission is not a tribunal within the meaning of Article 6 of the ECHR (see, to that effect, Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others
v Commission
[1980] ECR 3125, paragraph 81, and Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 7). However, the Commission must nevertheless observe the general principles of EU law during the administrative procedure (Case T‑11/89 Shell v Commission [1992] ECR II‑757, paragraph 39, Cimenteries CBR and Others
v Commission, paragraph 53 above, paragraph 718, and HFB and Others
v Commission, paragraph 53 above, paragraph 391).
55. Furthermore, the review of Commission decisions which the Courts of the Union carry out ensures that the requirements of a fair process, as enshrined in Article 6(1) of the ECHR (see paragraph 50 above) are satisfied.
56. According to the European Court of Human Rights, the undertaking concerned must be able to refer any decision adopted against it to a judicial body that has full jurisdiction and, in particular, the power to quash in all respects, on questions of fact and law, the challenged decision (see, by analogy, European Court of Human Rights, Janosevic v. Sweden, judgment of 23 July 2002, Reports of Judgments and Decisions, 2002‑VII, § 81 and the case-law cited). Where the General Court reviews the legality of a decision finding an infringement of Article 81 EC the applicants may call upon it to undertake an exhaustive review of both the substantive findings of fact and the Commission’s legal appraisal of those facts. Furthermore, in so far as concerns the fines, it has unlimited jurisdiction under Article 229 EC and Article 31 of Regulation No 1/2003 (see, to that effect, Cimenteries CBR and Others
v Commission, paragraph 53 above, paragraph 719).
57. Second, the Court must dismiss the applicants’ argument that the undertakings concerned were given no opportunity to check the relevance of the complaints made by the Commission, for example, by putting questions to witnesses giving evidence against them. According to the case-law, there is no provision or general principle of EU law that prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty. However, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (Case T‑38/02 Groupe Danone
v Commission [2005] ECR II‑4407, paragraph 285 and the case-law cited). Moreover, and in any event, it must be observed that, in the present case, the applicants have expressly admitted the facts set out in the statement of objections.
58. Third, as to the remainder of the plea, which concerns the Commission’s taking of evidence in the context of the 2002 Leniency Notice, the applicants confuse this complaint with their complaint alleging the illegality of the notice on the ground that it breaches the nemo tenetur
and in dubio pro reo
principles, which must be dismissed for the reasons set out in paragraphs 146 to 164 below.
59. It follows that the plea alleging infringement of Article 6(1) of the ECHR must be rejected.
The plea alleging that the contested decision is unlawful in so far as it was addressed to Schindler Holding since no valid notice of it was served
60. The applicants admit that the contested decision was communicated to Schindler Holding, established in Switzerland. However, it was not notified in accordance with Article 254(3) EC. The course of action taken by the Commission infringed Swiss law and is inconsistent with international law. Indeed, notification in Switzerland presupposes the existence of an international law convention with Switzerland which does not exist, with the result that, since there was no notification, the contested decision, in so far as it is addressed to Schindler Holding, is invalid and thus inexistent from a legal point of view.
61. In this connection it must be borne in mind that the Court of Justice has already held that irregularities in the procedure for notification of a decision are extraneous to that measure and cannot therefore invalidate it (Case 48/69 Imperial Chemical Industries
v Commission
[1972] ECR 619, paragraph 39). Such irregularities can only, in certain circumstances, prevent the period referred to in the fifth paragraph of Article 230 EC, within which an application must be lodged, from starting to run. In the present case, Schindler Holding indisputably had knowledge of the content of the contested decision and exercised its right to bring proceedings within the period referred to in the fifth paragraph of Article 230 EC
62. The plea must therefore be rejected.
The plea alleging that the contested decision is unlawful in so far as it held Schindler Holding jointly and severally liable
63. By this plea the applicants dispute the joint and several liability of Schindler Holding, the parent company of the Schindler group, for the anticompetitive conduct of its subsidiaries in Belgium, Germany, Luxembourg and the Netherlands.
64. 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 ( Imperial Chemical Industries v Commission, paragraph 61 above, paragraph 132).
65. 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).
66. 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 65 above, paragraph 55 and the case-law cited; see also, to that effect, 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, 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 61 above, paragraph 140, Case T‑325/01 DaimlerChrysler
v Commission [2005] ECR II‑3319, paragraph 85).
67. 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 ( Akzo Nobel and Others
v Commission, paragraph 65 above, paragraph 56 and the case-law cited).
68. The infringement of EU competition law must be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections must be addressed to that person. It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations ( Akzo Nobel and Others
v Commission, paragraph 65 above, paragraph 57 and the case-law cited).
69. It is clear from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although it has a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities ( Akzo Nobel and Others
v Commission, paragraph 65 above, paragraph 58 and the case-law cited).
70. That is the case because, 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 at paragraphs 65 and 66 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 ( Akzo Nobel and Others
v Commission, paragraph 65 above, paragraph 59).
71. 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 a decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary ( Akzo Nobel and Others v Commission, paragraph 65 above, paragraph 60 and the case-law cited).
72. 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 company 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 ( Akzo Nobel and Others
v Commission, paragraph 65 above, paragraph 61 and the case-law cited).
73. 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 71 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 65 above, paragraph 62).
74. It is in light of those principles that the Court must examine the present plea.
75. In recital 627 of the contested decision, the Commission concluded that Schindler Holding should be held jointly and severally liable for the infringements committed by its subsidiaries Schindler Belgium, Schindler Germany, Schindler Luxembourg and Schindler Netherlands. That was because, ‘as their sole owner and ultimate parent company, [it] was able to exercise decisive influence over the commercial policy of each of the subsidiaries during the period of the infringement and, it is presumed, made use of this power’.
76. In recitals 628 and 629 of the contested decision, the Commission held that Schindler Holding’s arguments that the subsidiaries conducted their business on the market as autonomous legal entities which determined their commercial policy largely on their own, and that it had no influence on the day-to-day business of the individual undertakings were ‘insufficient for the purposes of rebutting the presumption that [its] subsidiaries did not determine independently their own conduct on the market’.
77. The Commission also stated, in recital 630 of the contested decision that, ‘during the administrative procedure, [Schindler Holding] could have provided evidence that it did not exert decisive influence over its subsidiaries ...’. According to the Commission, ‘[Schindler Holding] and its subsidiaries, however, did not provide [it] with evidence clarifying their corporate relationships, the management structure and reporting requirements for the purpose of rebutting [the] presumption [that] … [Schindler Holding], as the sole owner of its subsidiaries which are addressees of [the contested] decision, exercised its controlling rights and made use of all other means to exercise decisive influence to which it was entitled.’
78. In recital 631 of the contested decision, the Commission held that ‘the mere existence of a compliance programme [could] not lead to the conclusion that [Schindler Holding] did or did not issue instructions regarding the infringement’. Thus, according to the Commission, ‘the presumption remains that [Schindler Holding’s] wholly-owned subsidiary did not determine autonomously its commercial policy on the market’.
79. In light of those circumstances, the Commission concluded, in recital 632 of the contested decision that ‘[Schindler Holding] and its wholly-owned subsidiaries [had] not rebutted the presumption of liability for the infringements committed in Belgium, Germany, Luxembourg and the Netherlands [and that it] should be held jointly and severally liable with its relevant subsidiaries for the infringements of Article 81 of the Treaty, which are the subject of [the contested] decision’.
80. First of all, it is not in dispute that, during the period of the infringement, Schindler Holding directly held the entire share capital of Schindler Belgium, Schindler Germany and Schindler Netherlands and, indirectly, through Schindler Belgium, the entire share capital of Schindler Luxembourg. There was, therefore, a presumption that Schindler Holding exercised a decisive influence over the conduct of its subsidiaries (see paragraph 72 above).
81. Schindler cannot claim that the Commission ought to have proved that the operational activities of the said subsidiaries, including their conduct in breach of Article 81 EC, was actually influenced by Schindler Holding and that the latter caused or supported the infringement.
82. The attribution of an infringement by a subsidiary to the parent company does not require proof that the parent company influences its subsidiary’s policy in the specific area in which the infringement occurred. On the other hand, the organisational, economic and legal links between the parent company and its subsidiary may establish that the parent exercises an influence over the subsidiary’s strategy and therefore that they can be viewed as a single economic entity (Case T‑112/05 Akzo Nobel and Others
v Commission
[2007] ECR II‑5049, paragraph 83). Thus, if the Commission proves that the subsidiary is wholly owned by the parent company, it may hold the parent company jointly and severally liable for payment of the fine imposed on the subsidiary, unless the parent company proves that its subsidiary acts independently on the market (see paragraph 72 above). It should also be observed that it is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved 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 of a group of companies ( Akzo Nobel and Others
v Commission, paragraph 58).
83. Nor may the applicants invoke any alleged breach of the principle of fault or disregard for the principle of holding shareholders in limited liability companies or public limited companies liable for company debts or the actions of a company’s managing bodies. Suffice it to observe in this connection that that line of argument is based on a false premiss, namely that no infringement has been found to have been committed by the parent company, which is not the case in the present matter, since it is clear from recital 632 and Articles 1 and 2 of the contested decision that Schindler Holding was held individually liable for the infringements which it is deemed to have committed itself on account of the close economic and legal links between it and its subsidiaries (see, to that effect, Case C‑294/98 P Metsä-Serla and Others
v Commission [2000] ECR I‑10065, paragraphs 28 and 34, and Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik
v Commission
[2008] ECR II‑2567, paragraph 74).
84. Next, the Court must examine the arguments put forward by the applicants in order to rebut the presumption described in paragraph 71 above, by which they contend that the subsidiaries of Schindler Holding themselves determined their commercial policy independently.
85. First, the circumstance upon which Schindler Holding relies, namely that it gave no instructions to its subsidiaries which might in this case have authorised or encouraged contacts contrary to Article 81 EC, and had no knowledge of any such contacts, is not, even were it to be proven, sufficient to demonstrate the independence of its subsidiaries. As was pointed out in paragraph 82 above, the attribution of an infringement by a subsidiary to the parent company does not require proof that the parent company influences its subsidiary’s policy in the specific area in which the infringement occurred.
86. Second, the Court must reject the argument that Schindler Holding’s subsidiaries always operated independently in their respective countries, without being influenced by Schindler Holding in their day-to-day operations, their ‘market acquisitions’, the conclusion of contracts or their pricing policy and that Schindler Holding was merely informed of deals that were likely to result in losses. Indeed, the applicants in question have adduced no evidence in support of those assertions and, in any event, such assertions, even if proven, are not sufficient to rebut the presumption described in paragraph 71 above, since it is clear from the case-law that factors other than those to which the applicants refer also fall within the concept of the commercial policy of a subsidiary for the purposes of applying Article 81 EC to its parent company. On that point it should be noted that, when analysing the existence of a single economic entity among a number of companies forming part of a group, the EU judicature has examined, inter alia, whether the parent company was able to influence pricing policy, production and distribution activities, sales objectives, gross margins, sales costs, cash flow, stocks and marketing. However, it cannot be inferred that it is only those aspects that are covered by the concept of the commercial policy of a subsidiary for the purposes of the application of Articles 81 EC and 82 EC with respect to the parent company ( Akzo Nobel and Others
v Commission, paragraph 82 above, paragraph 64 and the case-law cited).
87. Third, the fact that, in the four countries concerned by the infringement, Schindler Holding’s subsidiaries participated in separate infringements of distinct nature, which, it is submitted, suggests that Schindler Holding did not actually influence the operational activities of its subsidiaries, is equally incapable of rebutting the presumption of liability. Indeed, it is clear from recitals 627 to 632 of the contested decision that the Commission did not rely upon any similarities between the infringements found in the four countries in question in order to impute liability for the subsidiaries’ conduct to Schindler Holding. Moreover, the applicants’ assertion that the infringements were distinct in nature is mistaken. In the four countries in question, Schindler Holding’s subsidiaries participated, during largely overlapping periods of time (from 9 May 1996 to 29 January 2004 in Belgium, from 1 August 1995 to 6 December 2000 in Germany, from 7 December 1995 to 9 March 2004 in Luxembourg and from 1 June 1999 to 5 March 2004 in the Netherlands) in infringements having a similar purpose, consisting in ‘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)’ (recital 658 of the contested decision).
88. Fourth, the fact that Schindler Holding did its utmost to prevent its subsidiaries engaging in conduct contrary to Article 81 EC, in particular by adopting a code of conduct to prevent its subsidiaries from infringing competition law, along with related guidelines, does not alter the reality of the infringement found against it (see, by analogy, 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 373) and, moreover, does not demonstrate that those subsidiaries determined their commercial policy independently. On the contrary, the implementation within the subsidiaries of Schindler Holding of that code of conduct rather suggests that the parent company did in fact supervise the commercial policy of its subsidiaries, particularly since the applicants themselves have confirmed that compliance with the code of conduct was checked by means of regular audits and other measures taken by an employee of Schindler Holding responsible for compliance (a compliance officer).
89. Fifth, in so far as concerns relations within the group, the management structure and the guidelines concerning reporting requirements within Schindler Holding, the Commission asserted, in recital 630 of the contested decision, that Schindler Holding and its subsidiaries had not provided it with evidence that clarified their corporate relations. Admittedly, it is clear from the file that, during the administrative procedure, the applicants did in fact provide the Commission with some information about relations within the group, the management structure and the guidelines concerning reporting requirements (reporting lines).
90. Nevertheless, that information does not enable it to be concluded that the Schindler subsidiaries are independent. Indeed, the information provided, which, moreover, was not accompanied by any evidence, was incomplete and essentially concerned the reporting responsibilities and obligations of a few senior managers of Schindler Luxembourg and Schindler Belgium and the responsibilities of one employee of Schindler Germany, without clarifying to any greater extent the corporate relations between Schindler Holding and its subsidiaries active in the countries in question or indeed the influence that Schindler Holding had over them.
91. In light of the presumption of liability described in paragraph 72 above and the fact that, as is clear from paragraphs 84 to 90 above, the applicants have not rebutted that presumption, the Commission was entitled to impute the infringements committed by the subsidiaries of Schindler Holding to their parent company.
92. The present plea must therefore be rejected.
3. The application for annulment of Article 2 of the contested decision
The objection of illegality relating to Article 23(2) of Regulation No 1/2003, alleging breach of the principle that penalties must have a proper legal basis
93. The applicants maintain that Article 23(2) of Regulation No 1/2003 confers upon the Commission an almost unlimited discretion as regards the setting of fines, something contrary to the principle that penalties must have a proper legal basis, which is defined in Article 7(1) of the ECHR and also flows from the general legal principles which have their foundation in the constitutional traditions common to the Member States.
94. It is appropriate to recall the wording of Article 7(1) of the ECHR:
‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’
95. It is clear from the case-law that the principle that penalties must have a proper legal basis is a corollary of the principle of legal certainty, which constitutes a general principle of EU law and requires, inter alia, that any EU legislation, in particular when it imposes or permits the imposition of penalties, must be clear and precise so that the persons concerned may know without ambiguity what rights and obligations flow from it and may take steps accordingly (Case T‑279/02 Degussa
v Commission
[2006] ECR II‑897, paragraph 66, Case T‑43/02 Jungbunzlauer
v Commission
[2006] ECR II‑3435, paragraph 71 and the case-law cited).
96. The principle that penalties must have a proper legal basis, which is one of the general legal principles of EU law underlying the constitutional traditions common to the Member States, has also been enshrined in various international treaties, including in Article 7(1) of the ECHR. That principle implies that legislation must define clearly offences and the penalties which they attract. That requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. In addition, according to the case-law of the European Court of Human Rights, the clarity of a law is assessed having regard not only to the wording of the relevant provision but also to the clarification provided by settled, published case-law (see, to that effect, judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa
v Commission and Council, not published in the ECR, paragraphs 38 to 40 and the case-law cited).
97. The principle applies both to rules of a criminal law nature and to specific administrative instruments which impose administrative penalties or permit administrative penalties to be imposed (see, to that effect, Case 137/85 Maizena and Others
[1987] ECR 4587, paragraph 15 and the case-law cited). It applies not only to the rules which establish the elements of an offence, but also to those which define the consequences of contravening them (see Degussa
v Commission, paragraph 95 above, paragraph 67, Schunk and Schunk Kohlenstoff-Technik
v Commission, paragraph 83 above, paragraph 29 and the case-law cited).
98. In addition, it is settled case-law that fundamental rights form an integral part of the general principles of law whose observance the Courts of the Union ensure (Opinion 2/94 [1996] ECR I‑1759, paragraph 33, Case C‑299/95 Kremzow
[1997] ECR I‑2629, paragraph 14). For that purpose, the Court of Justice and the General Court draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (Case C‑94/00 Roquette Frères [2002] ECR I‑9011, paragraph 23, Kremzow, paragraph 14). In addition, Article 6(2) EU states that ‘the Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of [EU] law’.
99. As this Court has already pointed out ( Degussa
v Commission
(paragraph 95 above, paragraph 71), Article 7(1) of the ECHR does not require the terms of the provisions pursuant to which penalties are imposed to be so precise that the potential consequences of an infringement of those provisions should be foreseeable with absolute certainty. Indeed, according to the case-law of the European Court of Human Rights, the fact that a law confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (European Court of Human Rights, Margareta and Roger Andersson v. Sweden, judgment of 25 February 1992, Series A no. 226, § 75). In that connection, apart from the text of the law itself, the European Court of Human Rights takes account of whether the indeterminate notions used have been defined by consistent and published case‑law (European Court of Human Rights, G. v. France, judgment of 27 September 1995, Series A no. 325‑B, § 25).
100. Taking into account the constitutional traditions common to the Member States does not mean giving a different interpretation to the general principle of EU law that penalties must have a proper legal basis from that which flows from the points developed above ( Degussa
v Commission, paragraph 95 above, paragraph 73). The applicants’ argument that at national level there is no comparable measure that empowers an authority to impose ‘almost unlimited’ fines must therefore be rejected.
101. In the present case, in so far as concerns the lawfulness of Article 23(2) of Regulation No 1/2003 in the light of the principle that penalties must have a proper legal basis, it must be held, first of all, that, contrary to the applicants’ submission, the EU legislature did not confer upon the Commission an excessive or arbitrary discretion in setting fines for infringements of the competition rules ( Degussa
v Commission, paragraph 95 above, paragraph 74).
102. First of all, it must be noted that, although Article 23(2) of Regulation No 1/2003 leaves the Commission a wide discretion, it nevertheless limits the exercise of that discretion by establishing objective criteria to which the Commission must adhere. It must be recalled, first, that any fine that may be imposed is subject to a quantifiable and absolute ceiling, calculated by reference to each undertaking, for each infringement, so that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance. Second, that provision requires the Commission to fix fines in each individual case having regard both to the gravity and to the duration of the infringement ( Evonik Degussa
v Commission and Council, paragraph 96 above, paragraph 50, and Degussa
v Commission, paragraph 95 above, paragraph 75).
103. The applicants cannot claim that the judgment in Degussa
v Commission, paragraph 95 above, (paragraphs 66 to 88), or in Jungbunzlauer
v Commission, paragraph 95 above (paragraphs 69 to 92), in which the interpretation of the principle that penalties must have a proper legal basis adopted by the General Court corresponds to that given in Degussa
v Commission, paragraph 95 above, is based upon a ‘mistaken view of the law’. Indeed, in Evonik Degussa
v Commission and Council, paragraph 96 above (paragraphs 36 to 63), the Court of Justice confirmed on appeal the General Court’s interpretation of the principle that penalties must have a proper legal basis given in Degussa
v Commission, paragraph 95 above.
104. Admittedly, the judgments mentioned in the preceding paragraph relate to Article 15(2) of Regulation No 17, while the fines imposed in the contested decision are based upon Article 23(2) of Regulation No 1/2003. Nevertheless, given that the criteria for the imposition of the fines and the ceiling are the same in both provisions, the case-law cited in the preceding paragraph also applies with regard to Article 23(2) of Regulation No 1/2003.
105. Second, in the exercise of its discretion in imposing fines pursuant to Article 23(2) of Regulation No 1/2003, the Commission is bound to comply with general principles of law, in particular the principles of equal treatment and proportionality, as developed by the case-law of the Court of Justice and the General Court ( Evonik Degussa
v Commission and Council, paragraph 96 above, paragraph 51, and Degussa
v Commission, paragraph 95 above, paragraph 77).
106. Third, in the interests of ensuring that its actions are predictable and transparent, the Commission has also limited the exercise of its own discretion by rules of conduct which it set for itself in the 2002 Leniency Notice and the 1998 Guidelines, which, it should be noted, lay down rules of conduct from which the Commission may not depart without risking being found in breach of general principles of law, such as equal treatment or the protection of legitimate expectations. They also ensure legal certainty for the undertakings concerned by defining the method which the Commission has bound itself to use in setting the fines imposed pursuant to Article 23(2) of Regulation No 1/2003 (see, to that effect, Evonik Degussa
v Commission and Council, paragraph 96 above, paragraphs 52 and 53, Case C‑510/06 P Archer Daniels Midland
v Commission
[2009] ECR I‑1843, paragraph 60, and Degussa
v Commission, paragraph 95 above, paragraphs 78 and 82). Moreover, contrary to the applicants’ submission, the Commission’s adoption of guidelines in 1998, and then, in 2006, of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2), inasmuch as it fell within the statutory limits laid down by Article 15(2) of Regulation No 17 and by Article 23(2) of Regulation No 1/2003, merely contributed to defining the limits of the exercise of the discretion which the Commission already had under those provisions, and it cannot be inferred from their adoption that the limits on the Commission’s competence in the area in question were not initially defined sufficiently by the EU legislature (see, to that effect, Schunk and Schunk Kohlenstoff-Technik
v Commission, paragraph 83 above, paragraph 44).
107. Fourth, it must be added that, under Article 229 EC and Article 31 of Regulation No 1/2003, the Court of Justice and the General Court have unlimited jurisdiction in actions challenging decisions whereby the Commission has fixed fines and may, accordingly, not only annul decisions taken by the Commission but also cancel, reduce or increase the fines imposed. As a result, the Commission’s well-known and accessible administrative practice is subject to unlimited review by the EU judicature. That review has made it possible, through a consistent and published body of case-law, to define any indeterminate concepts contained in Article 15(2) of Regulation No 17 and, subsequently, Article 23(2) of Regulation No 1/2003 (see, to that effect, Evonik Degussa
v Commission and Council, paragraph 96 above, paragraph 54, and Degussa
v Commission, paragraph 95 above, paragraph 79).
108. Consequently, in view of the various considerations set out above, a prudent trader is able, if need be by taking legal advice, to foresee in a sufficiently precise manner the method of calculation and order of magnitude of the fines which he risks for a given line of conduct. The fact that such a trader cannot, in advance, know precisely the level of the fines which the Commission will impose in each individual case cannot constitute a breach of the principle that penalties must have a proper legal basis ( Evonik Degussa
v Commission and Council, paragraph 96 above, paragraph 55, and Degussa
v Commission, paragraph 95 above, paragraph 83).
109. The applicants cannot therefore complain that the wording of Article 23(2) of Regulation No 1/2003 does not guarantee the requisite degree of foreseeability called for by the fundamental principles of criminal law and the rule of law. Indeed, the provision makes it possible to predict, with a sufficient decree of precision, the method of calculation and the level of fines imposed (see, to that effect, Evonik Degussa
v Commission and Council, paragraph 96 above, paragraph 58).
110. Next, contrary to the applicants’ submission, the Commission’s decision-making practice in fining matters has not developed in any unforeseeable or random fashion.
111. First of all, during the periods in which the four infringements found in the contested decision took place, there has merely been a reorganisation of the method of calculating fines, brought about by the publication of the 1998 Guidelines, which has been judged by the Court of Justice as reasonably foreseeable ( Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraph 231).
112. Second, as regards the increase in the level of fines following the adoption of the 1998 Guidelines, it is settled case-law that the Commission may at any time adjust the level of fines if the proper application of the EU competition rules so requires ( Musique Diffusion française and Others v Commission, paragraph 54 above, paragraph 109, Case T‑23/99 LR AF 1998
v Commission
[2002] ECR II‑1705, paragraph 237), since such an alteration of an administrative practice may then be regarded as objectively justified by the objective of general prevention of infringements of the EU competition rules. The recent increase in the level of fines, alleged and criticised by the applicants, cannot therefore, in itself, be regarded as unlawful in light of the principle that penalties must have a proper legal basis, since it remains within the statutory limits laid down by Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, as interpreted by the Courts of the Union (see, to that effect, Degussa
v Commission, paragraph 95 above, paragraph 81, and Schunk and Schunk Kohlenstoff-Technik
v Commission, paragraph 83 above, paragraph 43).
113. Third, there is no basis for the argument that, by adopting Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, the Council infringed its obligation to indicate clearly the limits of the power conferred on the Commission and, in breach of Article 83 EC, in fact transferred to the Commission a power appertaining to it by virtue of the EC Treaty.
114. Firstly, as observed above, although Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 leave the Commission a wide discretion, they limit its exercise by laying down objective criteria by which the Commission must abide. Secondly, it should be noted that Regulation No 17 and Regulation No 1/2003 were adopted on the basis of Article 83(1) EC which provides that ‘the appropriate regulations or directives to give effect to the principles set out in Articles 81 [EC] and 82 [EC] shall be laid down by the Council … on a proposal from the Commission and after consulting the European Parliament’. The purpose of those regulations or directives, as stated in Article 83(2)(a) and (d) EC respectively, is to ‘ensure compliance with the prohibitions laid down in Article 81(1) [EC] and in Article 82 [EC] by making provision for fines and periodic penalty payments’ and to ‘define the respective functions of the Commission and of the Court of Justice in applying the provisions laid down in this paragraph’. It should be noted, moreover, that, under the first indent of Article 211 EC, the Commission is to ‘ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied’ and that, under the third indent of that article, it is to have ‘its own power of decision’ ( Degussa
v Commission, paragraph 95 above, paragraph 86, Schunk and Schunk Kohlenstoff-Technik
v Commission, paragraph 83 above, paragraph 48).
115. It follows that the power to impose fines for infringements of Articles 81 EC and 82 EC cannot be regarded as having originally belonged to the Council, with the Council then transferring it or delegating its exercise to the Commission, as provided for in the third indent of Article 202 EC. Under the provisions of the EC Treaty cited above, that power is part of the Commission’s role of ensuring that EU law is applied, that role having been defined, framed and formalised, as regards the application of Articles 81 EC and 82 EC, by Regulations Nos 17 and 1/2003. The power to impose fines, which those regulations confer on the Commission, therefore stems from the provisions of the EC Treaty itself and is intended to facilitate the effective application of the prohibitions laid down in those articles ( Degussa
v Commission, paragraph 95 above, paragraph 87, Schunk and Schunk Kohlenstoff-Technik
v Commission, paragraph 83 above, paragraph 49).
116. It follows from those considerations that the objection that Article 23(2) of Regulation No 1/2003 is unlawful in that it breaches the principle that penalties must have a proper legal basis must be rejected.
The objection of illegality in respect of the 1998 Guidelines, alleging breach of the principle of non-retroactivity
117. The applicants point out that no act of the European Union may apply before it is published and that the second sentence of Article 49(1) of the Charter provides that no heavier penalty may be imposed than that which was applicable at the time the offence was committed. They submit that, in the present case, the 1998 Guidelines breach the principle of non-retroactivity in that they go beyond the limits of foreseeability. The applicants emphasise in this connection that the toughening of decision-making policy in fining matters is the work of the Commission, not of the legislature.
118. It is clear from the case-law that the principle of non-retroactivity of criminal laws, enshrined in Article 7 of the ECHR, constitutes a general principle of EU law which must be observed when fines are imposed for infringement of the competition rules and that that principle requires that the penalties imposed correspond with those fixed at the time when the infringement was committed ( Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraph 202, LR AF 1998
v Commission, paragraph 112 above, paragraphs 218 to 221, and Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission
[2003] ECR II‑2597, paragraphs 39 to 41).
119. It has also been held that the adoption of guidelines capable of changing the Commission’s general competition policy in fining matters may, in principle, fall within the scope of the principle of non-retroactivity ( Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraph 222).
120. First, the 1998 Guidelines are capable of producing legal effects. Those effects stem not from any attribute of the 1998 Guidelines as rules of law in themselves, but from their adoption and publication by the Commission. By adopting and publishing the 1998 Guidelines, the Commission imposed a limit on its own discretion; it 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, the protection of legitimate expectations and legal certainty (see, to that effect, Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraphs 209 to 212).
121. Second, according to the case-law of the European Court of Human Rights relating to Article 7(1) of the ECHR, that provision precludes the retroactive application, to the detriment of the accused, of any new interpretation by the courts of a rule establishing an offence (see, to that effect, European Court of Human Rights, S.W. v. United Kingdom, judgment of 22 November 1995, Series A no. 335-B, §§ 34 to 36, C.R. v. United Kingdom, judgment of 22 November 1995, Series A no. 335‑C, §§ 32 to 34, Cantoni v. France, judgment of 15 November 1996, Reports of Judgments and Decisions, 1996-V, §§ 29 to 32, and Coëme and Others v. Belgium, judgment of 22 June 2000, Reports, 2000-VII, § 145). According to that case-law, this is the case in particular where there is an interpretation by the courts which produces a result which was not reasonably foreseeable at the time when the offence was committed, having regard notably to the interpretation of the rule applied in the case-law at the material time. It should however be stated that it follows from that same case-law that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it covers and the number and status of those to whom it is addressed. Thus, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. More specifically, in accordance with Cantoni
v. France
(cited above, § 35), this is true particularly in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such an activity entails.
122. In light of the foregoing, and in order to ensure that the principle of non-retroactivity has been observed, it is necessary to ascertain whether the change in question, namely the adoption of the 1998 Guidelines, was reasonably foreseeable at the time when the infringements concerned were committed (see, to that effect, Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraph 224).
123. It is important to observe in this connection, first of all, that the alleged increase in the level of fines resulting from the application of the 1998 Guidelines remains within the statutory framework set by Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, inasmuch as Section 5(a) of the 1998 Guidelines expressly provides that the fines imposed may in no case exceed the 10% of turnover ceiling laid down in those provisions.
124. Next, it should be noted that the main innovation in the 1998 Guidelines consisted in taking as a starting point for the calculation a basic amount, determined on the basis of brackets laid down for that purpose by the Guidelines, those brackets reflecting the various degrees of gravity of infringements but, as such, bearing no relation to the relevant turnover. The essential feature of that method is thus that fines are determined on a tariff basis, albeit one that is relative and flexible ( Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraph 225, and Archer Daniels Midland
v Commission, paragraph 106 above, paragraph 61).
125. Lastly, it must be borne in mind that the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level, within the limits indicated in Regulations No 17 and 1/2003, if that is necessary to ensure the implementation of the European Union’s competition policy. On the contrary, the proper application of the EU competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy (see, to that effect, Musique Diffusion française and Others v Commission, paragraph 54 above, paragraph 109, Case C‑196/99 P Aristrain
v Commission [2003] ECR I‑11005, paragraph 81, and Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraph 227; Case T‑12/89 Solvay v Commission [1992] ECR II‑907, paragraph 309, and Case T‑304/94 Europa Carton
v Commission [1998] ECR II‑869, paragraph 89).
126. It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines ( Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraph 228).
127. Consequently, the undertakings in question must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. That is true not only where the Commission raises the level of the amount of fines when imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the 1998 Guidelines ( Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraphs 229 and 230, and Archer Daniels Midland
v Commission, paragraph 106 above, paragraph 59).
128. It follows that the applicants are mistaken in their view that the 1998 Guidelines breach the principle of non-retroactivity in that they led to the imposition of larger fines than those imposed in the past and that the limits of foreseeability have been exceeded in the present case. The 1998 Guidelines and, in particular, the new method of calculating fines contained therein, on the assumption that this new method had the effect of increasing the level of the fines imposed, were indeed reasonably foreseeable for undertakings such as the applicants at the time when the infringements concerned were committed (see, to that effect, Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraph 231). For the same reason, the Commission was under no obligation to give any further explanation in the 1998 Guidelines of the fact that the increase in the level of fines was necessary to ensure the implementation of the Community’s competition policy.
129. As regards the argument that the toughening of decision-making policy in fining matters is the work of the Commission and not of the legislature, that argument is confused with the argument relied upon in support of the objection of illegality alleging the Commission’s lack of jurisdiction, and is examined in paragraphs 131 to 137 below.
130. It follows from all the foregoing that the present objection of illegality must also be rejected.
The objection that the 1998 Guidelines are unlawful in that the Commission lacked jurisdiction and, in the alternative, in that the Guidelines lack transparency and were not predictable
131. The applicants maintain that the considerable discretion conferred upon the Commission by Article 23(2) of Regulation No 1/2003 should be delineated in abstract, general fashion, that is to say, in a substantive rule. Unlike the Council, the Commission has, they maintain, no jurisdiction to adopt such a rule. Moreover, even if the Commission could lawfully establish a ‘framework for fines’, the 1998 Guidelines are in any event ineffectual in that they are incapable of ensuring the requisite minimum degree of transparency and foreseeability in the calculation of fines.
132. First of all, it must be observed that the applicants have not stated in their pleadings what provision the Commission is supposed to have infringed by adopting the 1998 Guidelines. When questioned on this point at the hearing, the applicants stated that, in accordance with the principle that penalties must have a proper legal basis, it was for the Council to adopt abstract rules for the calculation of fines.
133. The adoption by the Commission of the 1998 Guidelines, inasmuch as it fell within the statutory limits laid down by Article 15(2) of Regulation No 17 and, subsequently, in Article 23(2) of Regulation No 1/2003, merely contributed to defining the limits of the exercise of the discretion which the Commission already had under those provisions (see, to that effect, Schunk and Schunk Kohlenstoff-Technik
v Commission, paragraph 83 above, paragraph 44). That being so, the Court must reject the argument that the Commission lacked jurisdiction to adopt the Guidelines.
134. Second, the Court must also reject the arguments by which it is alleged that the 1998 Guidelines lacked transparency and predictability.
135. Indeed, it was with a view to transparency and to increasing legal certainty for the undertakings concerned that the Commission published the Guidelines in which it set out the calculation method that it would use in each case. In that regard, the Court of Justice has also held that, in adopting such rules of conduct and, by publishing them, announcing that they would henceforth apply in the cases to which they relate, the Commission imposed a limit on the exercise of its discretion and rules from which it cannot depart without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment and the protection of legitimate expectations. The Court has also held that the Guidelines determine, generally and abstractly, the method which the Commission has bound itself to use in setting fines and, consequently, that they ensure legal certainty for undertakings ( Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraphs 211 and 213, and Archer Daniels Midland
v Commission, paragraph 106 above, paragraph 60).
136. Moreover, a prudent trader is able, if need be by taking legal advice, to foresee in a sufficiently precise manner the method of calculation and order of magnitude of the fines which he risks for a given line of conduct ( Evonik Degussa
v Commission and Council, paragraph 96 above, paragraph 55). Admittedly, a trader cannot, by reference to the 1998 Guidelines, predict the precise amount of the fine which the Commission will impose in each individual case. However, owing to the gravity of the infringements which the Commission is required to penalise, the objectives of punishment and deterrence justify preventing undertakings from being in a position to assess the benefits which they would derive from their participation in an infringement by taking account, in advance, of the amount of the fine which would be imposed on them for that unlawful conduct ( Degussa
v Commission, paragraph 95 above, paragraph 83).
137. It follows from all the foregoing that the objection that the 1998 Guidelines are unlawful in that the Commission lacked jurisdiction and, in the alternative, in that the Guidelines lack transparency and were not predictable is without foundation.
The objection of illegality in relation to the 2002 Leniency Notice, alleging breach of the principle of non-retroactivity and of the principle of the protection of legitimate expectations
138. The applicants maintain that, by applying in this case the 2002 Leniency Notice, while the majority of the facts addressed in the contested decision occurred prior to its entry into force, the Commission breached the principle of non-retroactivity. According to the applicants, the Commission ought to have applied its Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the 1996 Leniency Notice’), which would have enabled them to benefit from a reduction in their fine of between 10% and 50% on the ground that they had not contested the facts, rather than the purely symbolic reduction of 1% that they were allowed in the contested decision (recitals 777, 806, 835 and 854 of the contested decision). By applying the 2002 Leniency Notice, the Commission also breached the principle of the protection of legitimate expectations.
139. It must be borne in mind that Section D of the 1996 Leniency Notice stated that an undertaking could benefit ‘from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated’ if, ‘after receiving a statement of objections, [it] inform[ed] the Commission that it [did] not substantially contest the facts on which the Commission base[d] its allegations’. The 2002 Leniency Notice, by contrast, no longer provides for any reduction in the amount of the fine on that ground.
140. As regards the alleged retroactive effect of the 2002 Leniency Notice, the Court must observe that point 28 of the Notice states that ‘from 14 February 2002, this notice replaces the 1996 [leniency] notice for all cases in which no undertaking has contacted the Commission in order to take advantage of the favourable treatment set out in that notice’. Since the 2002 Leniency Notice was published on 19 February 2002, it does, admittedly, envisage a certain retroactive application of its provisions, one that is, nevertheless, limited to the period 14 February 2002 to 19 February 2002 inclusive. Given that none of the participants in the cartel made an application under the 2002 Leniency Notice before 2 February 2004 (recitals 94, 105, 115 and 127 of the contested decision), any unlawfulness arising from the retroactive application of the 2002 Leniency Notice could not have affected the lawfulness of the contested decision.
141. None the less, in the present case, the applicants take issue with the immediate application of the 2002 Leniency Notice for the purposes of calculating fines in respect of events some of which occurred before 2002.
142. First of all, it must be observed that, as is clear from the file, the applicants expressly requested the application of the 2002 Leniency Notice on no less than six occasions during the administrative procedure.
143. Second, and in any event, it follows from the case-law that the principle of non‑retroactivity does not preclude the application of guidelines which, ex hypothesi, have the effect of increasing the level of fines imposed for infringements committed before their adoption, provided that the policy which they implement is reasonably foreseeable at the time the infringements in question were committed ( Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraphs 202 to 232, Joined Cases T‑101/05 and T‑111/05 BASF and UCB
v Commission
[2007] ECR II‑4949, paragraph 233; see also Archer Daniels Midland
v Commission, paragraph 106 above, paragraph 66). The applicants do not, however, claim that the change which occurred when the 2002 Leniency Notice was adopted was not foreseeable.
144. In so far as concerns the alleged breach of the applicants’ legitimate expectations arising from the application of the 2002 Leniency Notice to infringements which, in part, were committed prior to its entry into force, suffice it to observe that, according to settled case-law, economic operators cannot have a legitimate expectation that an existing situation which is capable of being altered by the institutions within the limits of their discretionary power will be maintained (Case C‑280/93 Germany
v Council
[1994] ECR I‑4973, paragraph 80, and Case C‑295/03 P Alessandrini and Others
v Commission [2005] ECR I‑5673, paragraph 89 and the case-law cited). Moreover, and in any event, the applicants could, at any time, have caused the 1996 Leniency Notice to apply by making an application to the Commission under that Notice before the entry into force of the 2002 Leniency Notice. It follows that this complaint must be rejected.
145. Consequently, the objection of illegality in relation to the 2002 Leniency Notice, alleging breach of the principle of non-retroactivity and the complaint alleging breach of the principle of the protection of legitimate expectations must be rejected.
The objection of illegality relating to the 2002 Leniency Notice, alleging that it breaches the general principles of law nemo tenetur and in dubio pro reo and the principle of proportionality, and constitutes an abuse of discretion
146. The applicants maintain that the 2002 Leniency Notice is unlawful in that it breaches general legal principles and goes beyond the scope of the discretion conferred upon the Commission. They submit that the 2002 Leniency Notice breaches the principle nemo tenetur, the principle in dubio pro reo and the principle of proportionality. Its adoption amounts to an abuse of the Commission’s discretion and it does not, therefore, apply in the present case, with the result that the evidence provided under the 2002 Leniency Notice cannot be used, since the use of illegally obtained evidence is prohibited.
147. It is appropriate to examine separately the various complaints made in the context of the present objection of illegality.
The first complaint, alleging breach of the principle nemo tenetur
148. The applicants point out that, in accordance with the nemo tenetur
principle, no person may be forced to incriminate himself or to furnish evidence against himself. The 2002 Leniency Notice breaches that principle since, in practice, it forces undertakings to cooperate with the Commission and to make admissions to it. To begin with, it is only the first undertaking to submit evidence satisfying the conditions set out in point 8(a) or (b) of the notice that can claim exemption from a fine. As a result, all the undertakings, racing for ‘pole position’, make complete (sometimes exaggerated) admissions to the Commission, without being able to weigh the benefit of cooperation consisting in the anticipated reduction in the fine against the disadvantages which such cooperation entails. Second, by cooperating under the 2002 Leniency Notice, an undertaking deprives itself of the opportunity of contesting the facts, even if untrue, put forward by the other undertakings, since the Commission would regard any such contestation of the facts as a lack of cooperation for the purposes of paragraphs 11 and 23 of the notice. That entails a grave risk of not being able to benefit from a reduction in the fine under the notice.
149. It is clear from the case-law, first, that, as one of the general principles of EU law, of which fundamental rights are an integral part and in the light of which all EU laws must be interpreted, undertakings have the right not to be compelled by the Commission to admit their participation in an infringement (see, to that effect, Case 374/87 Orkem
v Commission
[1989] ECR 3283, paragraph 35, and 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 273).
150. Second, while the Commission may not compel an undertaking to admit its participation in an infringement, it is not thereby prevented from taking account, when setting the amount of the fine, of the assistance given by that undertaking, of its own volition, in order to establish the existence of the infringement (Case C‑57/02 P Acerinox v Commission
[2005] ECR I‑6689, paragraph 87, and Joined Cases C‑65/02 P and C‑73/02 P ThyssenKrupp
v Commission
[2005] ECR I‑6773, paragraph 50).
151. The applicants cannot claim that the case-law mentioned in paragraphs 149 and 150 above is ‘outdated’. On the contrary, the Court of Justice has expressly confirmed it, after taking note of the developments in the case-law of the European Court of Human Rights, in particular, in Funke v. France, judgment of 25 February 1993 (Series A no. 256) and Saunders v. United Kingdom, judgment of 17 December 1996 ( Reports of Judgments and Decisions 1996-VI), to which the applicants refer ( Limburgse Vinyl Maatschappij and Others
v Commission, paragraph 149 above, paragraphs 273 to 280).
152. It is therefore in the light of the principles established in the case-law cited in paragraphs 149 and 150 above that the Court must examine the lawfulness of the 2002 Leniency Notice, with regard to the nemo tenetur
principle.
153. It must be observed in this connection that cooperation under the 2002 Leniency Notice is a matter entirely within the will of the undertaking concerned. It is not in any way coerced to provide evidence of the presumed cartel. The degree of cooperation which the undertaking wishes to offer in the administrative procedure is therefore determined exclusively by its freedom of choice and is not in any circumstances imposed by the 2002 Leniency Notice (see, to that effect, ThyssenKrupp
v Commission, paragraph 150 above, paragraph 52, and the Opinion of Advocate-General Léger in that case at ECR I‑6777, point 140).
154. The argument that, by cooperating, an undertaking deprives itself of the opportunity of contesting the facts, even if untrue, put forward by other undertakings is based on a misreading of the 2002 Leniency Notice
155. First, contrary to the applicants’ submission, neither point 11 of the notice, which requires that the undertaking in question ‘cooperates fully, on a continuous basis and expeditiously throughout the Commission’s administrative procedure’, nor point 23, which states that the Commission ‘may ... take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission’ requires the undertaking in question to abstain from contesting or correcting untrue facts put forward by another undertaking. Moreover, the applicants’ assertion is based upon the mistaken premiss that statements which are made unilaterally by a single undertaking that has participated in a cartel and are uncorroborated by evidence are sufficient to establish an infringement.
156. Second, unlike the 1996 Leniency Notice, the 2002 Leniency Notice does not provide for any reduction in the amount of a fine on the ground of not contesting the facts. The 2002 Leniency Notice cannot therefore be regarded as ‘obliging’ undertakings wishing to benefit from its application not to contest the facts put forward by other undertakings.
157. In any event, the allegation that an undertaking is under an obligation not to dispute facts of which it is not the author is based on the purely theoretical hypothesis of an undertaking’s accusing itself of an infringement which it has not committed in the hope of receiving a reduction in the fine which it fears will nevertheless be imposed on it. Such an assumption cannot serve as a basis for an argument alleging breach of the nemo tenetur principle (see, to that effect, Case C‑298/98 P Finnboard [ Metsä-Serla Sales Oy ] v Commission
[2000] ECR I‑10157, paragraph 58).
158. It follows that the first complaint put forward in the context of the objection that the 2002 Leniency Notice is unlawful must be dismissed.
The second complaint, alleging breach of the principle in dubio pro reo
159. The applicants argue that, in accordance with the principle in dubio pro reo, or the principle of the presumption of innocence, the burden of proving the unlawful conduct and the undertaking’s liability therefor rests upon the Commission. The 2002 Leniency Notice breaches the principle of the presumption of innocence in that it results, in practice, in the undertakings themselves furnishing evidence of their own infringement and of their own liability therefor, as well as evidence of the infringements and liability of other undertakings.
160. It must be recalled 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 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 ( Degussa
v Commission, paragraph 95 above, paragraph 115 and the case-law cited).
161. Contrary to the applicant’s submission, the 2002 Leniency Notice does not breach the principle of the presumption of innocence.
162. First, as was pointed out in paragraph 153 above, cooperation under the 2002 Leniency Notice is a matter entirely within the will of the undertaking concerned. It in no way implies any obligation upon an undertaking to provide evidence of the infringement in which it is alleged to have participated.
163. Second, the 2002 Leniency Notice does not alter the duty of the Commission, which has the burden of proving the infringements found by it, to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting the infringement. Nevertheless, in proving the existence of an infringement, the Commission may rely upon any relevant information available to it. Thus, it may, without breaching the principle of the presumption of innocence, rely not only upon documents which it has obtained during the course of inspections carried out under Regulations Nos 17 and 1/2003, or which it has received in response to requests for information made under those regulations, but also upon evidence which an undertaking has voluntarily submitted to it under the 2002 Leniency Notice.
164. It follows from all the foregoing that the Court cannot uphold the complaint alleging that the 2002 Leniency Notice is unlawful in that it breaches the principle of the presumption of innocence.
The third complaint, alleging breach of the principle of proportionality
165. The applicants maintain that the 2002 Leniency Notice is neither necessary nor appropriate and therefore breaches the principle of proportionality. It is not necessary given that Regulation No 1/2003, and in particular Articles 18 to 21 thereof, affords the Commission sufficient means to investigate cartels. Nor is it appropriate or proportionate. Indeed, whilst the 2002 Leniency Notice makes it easier to establish the existence of cartels, which is in the interests of the Community, it rewards undertakings which have infringed Article 81 EC and places honest undertakings at a disadvantage, since it prevents undertakings which have participated in a cartel and have taken advantage of the 2002 Leniency Notice from receiving a fine. The 2002 Leniency Notice also undermines the interest of the Community in punishing infringements of competition law.
166. It should be recalled that, according to settled case-law, the principle of proportionality, which is one of the general principles of EU law, requires that acts adopted by the institutions of the European Union do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives 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‑189/01 Jippes and Others
[2001] ECR I‑5689, paragraph 81 and the case-law cited).
167. It must also be borne in mind that, in the context of Regulation No 1/2003, the Commission has a broad discretion when setting fines, so that it may direct the conduct of undertakings towards compliance with the competition rules (see, to that effect, Groupe Danone
v Commission, paragraph 57 above, paragraph 134 and the case-law cited). Given that the 2002 Leniency Notice forms part of the Commission’s policy on the setting of fines in respect of horizontal cartels infringing Article 81 EC, account must be taken of that broad discretion when examining the applicants’ complaint alleging breach of the principle of proportionality.
168. The Court cannot but hold that the 2002 Leniency Notice appears to be an appropriate instrument for establishing the existence of secret horizontal cartels and thus for directing the conduct of undertakings towards compliance with the competition rules.
169. Indeed, even though the means provided for in Articles 18 to 21 of Regulation No 1/2003, namely requests for information and inspections, are indispensable measures in the prosecution of infringements of competition law, it must be observed that secret cartels are often difficult to detect and investigate without the cooperation of the undertakings concerned. Whilst a cartel member will always be at risk of the cartel’s being discovered at some point, in particular, following the submission of a complaint to the Commission or to a national authority, a cartel member that wishes to terminate its involvement in a cartel might be dissuaded from informing the Commission by the risk of receiving a heavy fine. By making provision for the grant of immunity from fines, and for a significant reduction in the amount of any fines for undertakings providing the Commission with evidence of the existence of a horizontal cartel, the 2002 Leniency Notice seeks to prevent such cartel members from deciding not to inform the Commission of the existence of a cartel.
170. The Court must reject the argument that the 2002 Leniency Notice enables certain undertakings which have participated in cartels prohibited by Article 81 EC to be rewarded. As the Commission emphasises in point 4 of the 2002 Leniency Notice, ‘the interests of consumers and citizens in ensuring that secret cartels are detected and punished outweigh the interest in fining those undertakings that enable the Commission to detect and prohibit such practices’.
171. Thus, the 2002 Leniency Notice does not clearly exceed the limits of what is appropriate and necessary in order to attain the legitimate objective which it pursues.
172. It follows from all the foregoing that the complaint that the 2002 Leniency Notice is unlawful in that it breaches the principle of proportionality is unfounded.
The fourth complaint, alleging an abuse of discretion
173. According to the applicants, by adopting the 2002 Leniency Notice the Commission went beyond the scope of the discretion conferred upon it by Article 23(2) and (3) of Regulation No 1/2003. Article 23(3) requires the Commission, when fixing the amount of a fine, to have regard to the gravity and duration of the infringement, which it is impossible to do where there is ‘total remission of the penalty’. Section A of the 2002 Leniency Notice is therefore unlawful, entailing the illegality of the notice in its entirety.
174. It must be borne in mind that, under Article 23(2)(a) of Regulation No 1/2003, ‘the Commission may by decision impose fines on undertakings ... where, either intentionally or negligently[,] ... they infringe Article 81 [EC] or Article 82 [EC]’. It is thus clear from the very wording of the provision that the Commission has the right, but no obligation, to impose a fine upon an undertaking that has infringed Article 81 EC.
175. Moreover, paragraphs 2 and 3 of Article 23 of Regulation No 1/2003 do not set out an exhaustive list of the criteria which the Commission may take into account when fixing the amount of a fine. The conduct of the undertaking during the administrative procedure may therefore be one of the factors to be taken into account when fixing the fine (see, to that effect, Finnboard
[ Metsä-Serla Sales Oy ] v Commission, paragraph 157 above, paragraph 56 and the case-law cited).
176. The Commission did not, therefore, exceed the powers conferred on it by Regulation No 1/2003 by adopting rules of practice in the 2002 Leniency Notice to direct the exercise of its discretion concerning the fixing of fines in order to take account, inter alia, of the conduct of undertakings during the administrative procedure and thus to better ensure equal treatment of the undertakings concerned (see, to that effect, Finnboard
[ Metsä-Serla Sales Oy ] v Commission, paragraph 157 above, paragraph 57).
177. It follows that this last complaint is also unfounded.
178. It follows from all the foregoing that the objection of illegality in relation to the 2002 Leniency Notice must be dismissed in its entirety.
The plea alleging the confiscatory nature of the contested decision, in breach of international law
Admissibility
179. The Commission emphasises that the plea alleging the confiscatory nature of the contested decision, in breach of international law, does not satisfy the requirements of Article 44(1)(c) of the Rules of Procedure and is thus inadmissible. From a factual point of view, the application lacks any statement of how the fines imposed had dramatic repercussions for the economic survival of Schindler Holding’s subsidiaries. From a legal point of view, the applicants have failed to identify the treaties which apply or the rules which have been infringed.
180. It should be noted that, under the first paragraph of Article 21 of the Statute of the Court of Justice, which applies to the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute, and under Article 44(1)(c) of the Rules of Procedure, all applications must, inter alia, contain a summary of the pleas in law on which the application is based. Those statements must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further supporting information. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (Case T‑195/95 Guérin automobiles
v Commission
[1997] ECR II‑679, paragraph 20, Case T‑154/01 Distilleria Palma
v Commission
[2004] ECR II‑1493, paragraph 58, and judgment of 12 March 2008 in Case T‑332/03 European Service Network
v Commission, not published in the ECR, paragraph 229).
181. In the present case, the applicants have stated in their application in sufficiently clear and precise terms that the imposition of the fines upon Schindler by the contested decision is confiscatory and breaches international law.
182. The Commission cannot take issue with the application’s failure to identify any applicable treaties. Indeed, in their application, the applicants do not allege the infringement of any bilateral or multilateral treaty on the protection of investments. They simply mention that such agreements exist in order to show that there is a rule of customary international law which has been infringed in the present case. The applicants explain in their application that, even if no general convention between the Community and Switzerland exists for the protection of investments, the prohibition on expropriation without compensation for foreign investors which is entrenched in customary international law cannot seriously be called into question. Contrary to the Commission’s submission, the rule that has been infringed, namely a rule of customary international law, is thus clearly indicated in the application.
183. The applicants explain, moreover, that the confiscatory nature of the fines imposed is explained by the significant depreciation of Schindler’s investments in Belgium, Luxembourg and the Netherlands. According to the applicants, the severity of the attack upon Schindler Holding’s assets is clear from a comparison of the amount of the fines with the own assets, annual turnover and end-of-year profits figures for Schindler Belgium, Schindler Luxembourg and Schindler Netherlands.
184. It follows from all the foregoing that the present plea fulfils the requirements mentioned in paragraph 180 above and is therefore admissible.
Substance
185. The applicants point out that the principle of the protection of foreign investors is entrenched in numerous bilateral and multilateral agreements relating to the protection of investments. Under those conventions, the cross-border holding of shares in an undertaking established in another Member State falls within the concept of investment and benefits from protection which, first, permits expropriation only under very strict conditions and, second, requires foreign investors to be treated fairly and equitably in the State in which they make their investment. Such protection is also recognised in customary international law.
186. The fines imposed upon Schindler Holding, a company established under Swiss law, equate, in economic effect, to the expropriation, contrary to international law, of Schindler Holding’s investments in Belgium, Luxembourg and the Netherlands. Whilst an order to pay a fine does not constitute expropriation in form, it nevertheless constitutes expropriation in fact, in that Schindler Holding’s investments in Belgium, Luxembourg and the Netherlands have suffered significant depreciation. The severity of the attack upon Schindler Holding’s assets is clear first and foremost from a comparison of the amount of the fines with the own assets, annual turnover and end-of-year profits figures for Schindler Belgium, Schindler Luxembourg and Schindler Netherlands.
187. It must be borne in mind that the Community must respect international law in the exercise of its powers (Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission
[2008] ECR I‑6351, paragraph 291 and the case-law cited).
188. The right to property is not only protected by international law but is also one of the general principles of EU law ( Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 187 above, paragraph 355 and the case-law cited). However, since the primacy of international law over EU law does not extend to primary law, in particular to the general principles of which fundamental rights form a part, ( Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 187 above, paragraph 308), the Court must examine, in the context of the present plea, whether the fines imposed on Schindler Holding undermine the fundamental right to respect for property.
189. It must be borne in mind in this connection that the right to property is not absolute but must be considered in relation to its function in society. Consequently, its exercise may be restricted, provided that the restrictions in fact correspond to objectives of public interest pursued by the Community and do not constitute, in relation to the objective pursued, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed (Case 265/87 Schräder HS Kraftfutter
[1989] ECR 2237, paragraph 15, Germany
v Council, paragraph 144 above, paragraph 78, and Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 187 above, paragraph 355).
190. Article 3(1)(g) EC provides that in order to achieve the aims of the Community, its activities are to include ‘a system ensuring that competition in the internal market is not distorted’. It follows that the application of Articles 81 EC and 82 EC constitutes one of the aspects of public interest in the Community. Consequently, pursuant to those articles, restrictions may be applied on the exercise of the right to property, provided that they are not disproportionate and do not impair the substance of that right (Case T‑65/98 Van den Bergh Foods
v Commission [2003] ECR II‑4653, paragraph 170).
191. The Court must therefore examine whether the fines imposed on Schindler Holding constitute a disproportionate and intolerable interference, impairing the very substance of the fundamental right to respect for property.
192. First, it must be observed that the contested decision does not affect Schindler’s ownership structure.
193. Second, whilst the payment of fines will certainly affect the asset value of the debtor company, it cannot be considered that, in the present case, the fines imposed on Schindler Holding and its subsidiaries have totally depleted the value of those companies, Indeed, it is clear from the file that the fines imposed upon the Schindler group by the contested decision, taken together, remain below the limit of 10% of Schindler Holding’s consolidated turnover in the financial year preceding the date of the contested decision. The 10% ceiling laid down in Article 23(2) of Regulation No 1/2003 is intended, inter alia, to protect undertakings against excessive fines which could destroy them commercially (judgment of 15 June 2003 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 389).
194. Third, in so far as the applicants take issue with the imposition of an excessive fine on the subsidiaries in the four countries in question, the Court would observe that, in the contested decision, in respect of each infringement, Schindler Holding was held jointly and severally liable with the relevant subsidiary for payment of the fine (see also paragraphs 63 to 91 above). As the Commission emphasises, determining what contributions should be made by the various companies within a single group that are held jointly and severally liable for the payment of the same fine is a matter for those companies. The contested decision therefore does not necessarily affect the value of the investments which Schindler Holding has in its subsidiaries.
195. Fourth, in so far as the applicants complain that the fines imposed for the infringements are excessive when compared to the turnover and annual profit figures of the subsidiaries in question, that line of argument is confused with the plea alleging the illegality of the contested decision on the ground that it held Schindler Holding jointly and severally liable. Indeed, it would only be if the national subsidiaries did not constitute, together with Schindler Holding, an undertaking in the sense of an economic entity responsible for the infringements penalised, that the fines imposed in the present case would be capable of undermining the right to property. Any such fines would, in any event, be unlawful in that they would infringe Article 23(2) of Regulation No 1/2003. However, it is clear from paragraphs 63 to 91 above that the Commission was entitled to impute the infringements of the national subsidiaries in question to Schindler Holding.
196. It follows that the present plea must be rejected.
The plea alleging breach of the 1998 Guidelines and of the duty to state reasons as regards the determination of the starting amounts of the fines
Preliminary observations
197. 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).
198. 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 ( Archer Daniels Midland
v Commission, paragraph 106 above, paragraph 72, Case C‑534/07 P Prym and Prym Consumer
v Commission [2009] ECR I‑7415, paragraph 54).
199. As stated in paragraph 24 above, the Commission, in the present case, determined the amounts of the fines by applying the method laid down in the 1998 Guidelines.
200. 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 88 above, paragraph 209 and the case-law cited, and Case T‑73/04 Carbone‑Lorraine
v Commission [2008] ECR II‑2661, paragraph 70).
201. As stated in paragraph 135 above, in adopting such rules of conduct and announcing through their publication that they would 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 88 above, paragraph 211 and the case-law cited, and Carbon-Lorraine v Commission, paragraph 200 above, paragraph 71).
202. 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 88 above, paragraphs 211 and 213).
203. 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, 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
204. 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).
205. In the subsection headed ‘Nature of the infringements’, the Commission explains in recitals 658 and 659 of the contested decision:
‘(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 of little probative value for the purpose of assessing the gravity of the infringement.’
206. The Commission states that it ‘did not attempt to demonstrate the precise effects of the infringement since it [was] impossible to d etermine 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 considers that ‘[i]t is obvious that the infringements did have an actual impact’ and explains 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’.
207. In recitals 661 to 669 of the contested decision, the Commission addresses the arguments raised by the applicants during the administrative procedure which sought to show that the infringements had only a limited effect on the market.
208. 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’.
209. 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’.
210. 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 27 to 30 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 sub-divided into several categories according to their turnover in elevators and/or escalators, including, where applicable, maintenance and modernisation services’.
The classification of the infringements as ‘very serious’
211. First of all, the applicants argue that the Commission’s assessment of the gravity of the infringements is misconceived. According to the applicants, the Commission adopted an aggregating approach in classifying the infringements as ‘very serious’ without taking into account either the fact that the agreements in the Member States concerned were structured very differently or the actual impact of the infringements, which, they allege, was limited.
212. To that end, the applicants refer to price reductions on the German and Luxembourg markets, the fluctuation of market shares on the German, Belgian and Luxembourg markets, the fact that the agreements on the German market were ineffective and were not complied with, and the fact that the cartels in Luxembourg and the Netherlands concerned only certain projects. The applicants also argue that in Germany Schindler’s involvement was limited to escalators. Lastly, the cartel in Luxembourg ought, in accordance with the Commission’s decision-making practice, to have been classified as ‘serious’, given that it concerned only a small Member State.
213. 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.’
214. 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 198 above, paragraph 74, Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission, paragraph 118 above, paragraph 143, and Degussa
v Commission, paragraph 95 above, paragraph 216).
215. 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 ( Carbone‑Lorraine v Commission, paragraph 200 above, paragraph 83 and the case‑law cited).
216. In this case, 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 intended 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.
217. 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]’.
218. It must be observed that the applicants have not shown that the actual impact of the agreements could have been measured in this case. They merely emphasise, in their reply, that there are various scientific methods for calculating the economic impact of a cartel, and simply assert that the effects were necessarily minimal. In that regard, the circumstances relied on by the applicants, concerning price reductions, the fluctuation of market shares and the fact that the agreements were not complied with and were ineffectual (see paragraph 212 above), even if they were proved, do not lead to the conclusion that the effects of the agreements could be measured on the markets concerned, particularly since the applicants do not challenge the Commission’s assertion that it was impossible, in this instance, to determine with sufficient certainty the relevant competitive parameters in the absence of the infringements.
219. 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 214 above, to take account of the actual impact of the infringements for the purpose of assessing their gravity.
220. Furthermore, even supposing that the actual impact of the infringements could be measured and that the arguments of the applicants set out in paragraphs 211 and 212 above were well-founded in that they establish that the cartel had a limited impact on the markets in question, the fact remains that the classification of these infringements as ‘very serious’ none the less remains appropriate.
221. First of all, it must be observed that, irrespective of any alleged differences in the structures of the cartels, by their very nature, the infringements found in the contested decision are among the most serious violations of Article 81 EC, in that their purpose was ‘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)’ (recital 658 of the contested decision). In that regard, the 1998 Guidelines explain that ‘very serious’ infringements consist generally in horizontal restrictions such as price cartels and market-sharing quotas, or other practices which jeopardise the proper functioning of the single market. Those infringements are also among the examples of agreements expressly declared to be incompatible with the common market in Article 81(1)(c) EC. Apart from the serious distortion of competition which they entail, such agreements, by obliging the parties to respect distinct markets, often delimited by national frontiers, cause the isolation of those markets, thereby thwarting the EC Treaty’s main objective of integrating the Community market. Thus, infringements of this type, especially where horizontal cartels are concerned, are classified by the case-law as ‘particularly serious’ or ‘obvious infringements’ (see, to that effect, Case T‑148/89 Tréfilunion v Commission [1995] ECR II‑1063, paragraph 109, 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 136, and Case T‑241/01 Scandinavian Airlines System
v Commission [2005] ECR II‑2917, paragraph 85).
222. Second, it has consistently been held that the effect of an anti-competitive practice is not a conclusive criterion for assessing the gravity of an infringement. Factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such as market sharing (Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 118, Prym and Prym Consumer v Commission, paragraph 198 above, paragraph 96, Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni
v Commission [2001] ECR II‑3757, paragraph 199, and Degussa
v Commission, paragraph 95 above, paragraph 251).
223. Accordingly, the nature of the infringement plays a primary role, in particular in classifying infringements as ‘very serious’. It is clear from the description of very serious infringements given in the 1998 Guidelines that agreements or concerted practices which – as in the present case – are mainly designed to share markets may, on the basis of their nature alone, be categorised as ‘very serious’, without there being any need to distinguish such conduct by reference to a particular impact or geographic area ( Prym and Prym Consumer v Commission, paragraph 198 above, paragraph 75). That conclusion is corroborated by the fact that, whilst the description of serious
infringements expressly mentions their impact on the market and their effects on extensive areas of the common market, that of very serious
infringements, on the other hand, does not mention any requirement as to the actual market impact or the effects produced in a particular geographic area (see, to that effect, Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 83 above, paragraph 171 and the case-law cited). That being so, the Court must reject the applicants’ argument that the present case did not involve any market sharing, but ‘mainly quota agreements’, since the freezing of market shares necessarily implies prior sharing of the markets concerned.
224. Accordingly, in view of their purpose, the infringements found in the contested decision were intrinsically very serious, even if it were to be established that the cartels did not cover the entirety of the market for the goods in question and did not produce all the effects hoped for.
225. Moreover, since the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters (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, Carbone‑Lorraine
v Commission, paragraph 200 above, paragraph 92), and, in any event, in view of the analysis in paragraphs 221 to 224 above, the argument by which the applicants allege, on the basis of the Commission’s decision-making practice, that the infringement in Luxembourg ought to have been classified as ‘serious’, given the relatively small size of that Member State, must be rejected. The Court would also point out in this connection that it was precisely the Commission’s consideration of ‘[t]he size of the Luxembourg market in relation to other Member States’ (recital 666 of the contested decision) that led it to set a general starting amount of the fine for this infringement 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).
226. Lastly, 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 as a consequence 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 in the market ( Prym and Prym Consumer
v Commission, paragraph 198 above, paragraph 82), the Court finds that it has, in any event, fulfilled that obligation.
227. Indeed, it is clear from the contested decision that, in so far as concerns the infringement in Belgium, the Commission held, inter alia, that the anti‑competitive agreements covered the entire elevators and escalators market, irrespective of project value, and that, having regard to the high aggregate market shares of the undertakings concerned (recital 50 of the contested decision), they were unlikely to face competitive constraints from smaller elevator and escalator companies such as might have prevented them from fixing supra-competitive prices having an impact on the market (recital 662 of the contested decision). It also noted that representatives of the four undertakings met regularly (recitals 153 and 160 of the contested decision), spoke regularly over the telephone about specific projects (recital 153 of the contested decision) and had stipulated a compensation mechanism to deal with differences between agreed and actual market shares (recitals 162 and 175 of the contested decision). Project lists were also created, enabling the undertakings in question continuously to check and ensure that everyone followed the arrangements and to make the necessary adjustments in the event of deviations from what had previously been agreed (recital 166 of the contested decision). Particularly elaborate measures were adopted in order to keep the agreements secret (recital 153 of the contested decision).
228. So far as the German infringement is concerned, the Commission noted, inter alia, that the members of the cartel accounted for, by value, over 60% of elevator sales and close to 100% of escalator sales (recitals 51 and 232 of the contested decision) and that 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 their meetings (recitals 219 to 221 of the contested decision).
229. As regards the Luxembourg infringement, the Commission found that the undertakings concerned by the agreements had accounted for nearly 100% of combined sales of elevators and escalators in 2003, noting that the local subsidiaries of Kone, Otis, Schindler and ThyssenKrupp were the only suppliers established in Luxembourg which supplied escalators (recital 52 of the contested decision). It also drew attention to the fact that there were regular meetings (recital 302 of the contested decision), to the measures taken to conceal meetings and contacts (recitals 304 to 307 of the contested decision) and to the existence of an adjustment mechanism (recitals 317 and 336 of the contested decision).
230. Finally, as regards the infringement in the Netherlands, the Commission noted the significant aggregated market shares of the members of the cartel (recital 53 of the contested decision). It also drew attention to the fact that the participants met frequently (recitals 383 and 397 to 401 of the contested decision), to the allocation process drawn up by the participants (recital 411 et seq. of the contested decision), to the measures taken to conceal contacts between the participants (recital 391 of the contested decision) and to the existence of a de facto compensation mechanism (recital 434 of the contested decision).
231. Thus, the Commission concluded, in recital 660 of the contested decision, that the fact that the various anti-competitive arrangements had been implemented in itself suggested that there was 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 might have been subject to allocation between cartel members without there being a need for contacts between them. It added that the high aggregate market shares of the cartel participants made anti-competitive effects appear likely and that the relative stability of those market shares throughout the duration of the infringements would confirm those effects.
232. It follows from all the foregoing that the applicants’ arguments summarised in paragraphs 211 and 212 above are not capable of affecting the legality of the classification of the infringements found in Article 1 of the contested decision as ‘very serious’. They must therefore be rejected.
233. Second, the applicants submit that the Commission failed to have regard to the principle of the presumption of innocence by placing on them the burden of proving that the cartel had no impact.
234. It must be observed that, in accordance with Section 1.A the 1998 Guidelines, it is for the Commission to prove the actual impact of a cartel, where this can be measured. Nevertheless, in this case, the Commission stated its view, in recital 660 of the contested decision, that the actual impact of the cartel could not be measured, and the applicants have not successfully called that finding into question (see paragraphs 211 to 232 above).
235. That being so, the fact that the actual impact of the infringements was not taken into account cannot be the source of any breach of the principle of the presumption of innocence, since, in this case, the gravity of the infringements could, in accordance with Section 1.A the 1998 Guidelines, be determined without their impact having to be established.
236. The argument alleging breach of the principle of the presumption of innocence cannot therefore be upheld.
237. Therefore, the whole of the present complaint regarding the classification of the infringements as ‘very serious’ must be dismissed.
The alleged unlawfulness of the starting amounts of the fines
238. The applicants argue that the Commission has infringed Section 1.A of the 1998 Guidelines in that it failed to take account, in the contested decision, of the size of the market controlled by the undertakings concerned and the subject of the agreements when setting the basic amounts of the fines. The applicants also argue that the basic amounts of the fines were disproportionate, bearing no coherent relationship to the size of the market concerned or the turnover of Schindler’s subsidiaries. In the reply, the applicants also put forward the view that, irrespective of the classification of the infringements as ‘very serious’, the arguments set out in paragraphs 211 and 212 above justified a reduction in the starting amounts of the fines. They also submit that the Commission did not distinguish sufficiently between the undertakings concerned. When questioned at the hearing about the precise scope of their plea, the applicants stated that, contrary to what they had indicated in their pleadings, their complaint related not to the basic amounts of the fines, but to the starting amounts of the fines.
239. In particular, in the case of the infringement in Luxembourg, the applicants submit that the EUR 10 million starting amount of the fine is disproportionate, representing almost one third of the Luxembourg market concerned by the cartel. They add that that amount, [ confidential ] (1) . As regards the cartel in Germany, the specific starting amount corresponds to [ confidential ]. Lastly, in so far as concerns the Netherlands cartel, the applicants point out that the specific starting amount of the fine is excessive, in that it represents [ confidential ], even though Schindler has only a small share of the market there.
240. As was pointed out in paragraph 203 above, the 1998 Guidelines provide, first, 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). Second, the gravity is assessed in relation to 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) ( Carbone‑Lorraine
v Commission, paragraph 200 above, paragraph 73).
241. It is necessary to observe in this connection, first of all, that the applicants’ allegations of infringement of the 1998 Guidelines and of the principle of proportionality, in that they relate to the failure to take account of the size of the markets concerned by the agreements, and to the absence of any coherent relationship between the starting amounts of the fines and the size of those markets, concern the general starting amounts of the fines since they relate to the intrinsic gravity of the infringements. The same applies to the complaints relating to the structure of the agreements and their limited impact, which, although raised in order to dispute the classification of the infringements as ‘very serious’, would also, the applicants say, justify a reduction in the starting amounts of the fines. Next, the applicants’ allegations regarding the lack of proportion of the starting amounts of the fines, the lack of any proper relationship between those amounts and the turnover figures of Schindler’s subsidiaries, and inadequate differentiation between the undertakings concerned, relate to the determination of the specific starting amounts of the fines, in that they concern the grouping of the undertakings into categories. Lastly, the applicants put forward a plea alleging that insufficient reasoning was given in the contested decision for the Commission’s determination of the various starting amounts of the fines.
– The allegation of an insufficient statement of reasons
242. The applicants maintained in their pleadings that insufficient reasons were given for the basic amounts of the fines determined in the contested decision. As was mentioned in paragraph 238 above, the applicants’ explanations at the hearing have made it clear that their complaint concerns the inadequacy of the reasons given for the starting amounts of the fines. The applicants had been unable to determine what principles and material factors had provided the basis for determining the starting amounts. Since those starting amounts provide the basis for subsequent calculations, the Commission’s meticulous care in calculating any increases or reductions in them would be utterly pointless if the starting amounts were fixed purely arbitrarily.
243. It is settled case-law that the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration, there being no requirement for any more detailed explanation or indication of the figures relating to the method of calculating the fine (Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 44, and Limburgse Vinyl Maatschappij and Others
v Commission, paragraph 149 above, paragraphs 463 and 464; Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 131).
244. The Commission began by explaining, in recitals 657 to 671 of the contested decision, that the starting amounts of the fines had been determined taking into account the nature of the infringements and the size of the relevant geographic markets. It can also be seen from recitals 672 to 685 of the contested decision that the Commission analysed the gravity of the infringements with reference to the characteristics of the participants, applying, for each infringement, a differential treatment to each of the undertakings involved, depending on its turnover in the products subject to the cartel in the country concerned.
245. The factors which enabled the Commission to measure the gravity of the established infringements were therefore sufficiently explained in the contested decision. In those circumstances, the complaint alleging breach of Article 253 EC must be rejected.
– The general starting amounts of the fines
246. First of all, it is to be noted that the applicants 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 fines. 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 geographical extent of the infringement and by reference to the actual impact of the infringement on the market, where that can be measured ( BASF
v Commission, paragraph 243 above, paragraph 134, Case T‑116/04 Wieland-Werke v Commission
[2009] ECR II‑1087, paragraph 62).
247. Furthermore, 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 the Commission – as stated in the case-law moreover – 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 198 above, paragraphs 55 and 64). 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 243 above, paragraph 134, and Wieland-Werke
v Commission, paragraph 246 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 in 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 general principles of EU law and where circumstances demand it ( Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission, paragraph 118 above, paragraph 187).
248. In light of that, the applicants’ arguments must be rejected in so far as they rely on the allegedly disproportionate nature of the general starting amounts of the fines set for the Luxembourg infringement. The turnover achieved in that Member State was taken into account for the purposes of grouping the undertakings into categories and thereby fixing the specific starting amounts for those undertakings (recitals 680 and 684 of the contested decision). In any event, as stated in paragraph 225 above, it was precisely the Commission’s consideration of ‘[t]he size of the Luxembourg market in relation to other Member States’ (recital 666 of the contested decision) that led it to set a general starting amount for this infringement at 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).
249. Second, the applicants submit that there is no coherence between the general starting amounts fixed for the various cartels. They maintain that the starting amount is disproportionate to the size of the market in Luxembourg.
250. Contrary to the Commission’s submission, that argument satisfies the requirements of Article 44(1)(c) of the Rules of Procedure. What the applicants are drawing attention to by this argument is that, assuming it is necessary to regard the various infringements as similar, the Commission ought, in the case of the Luxembourg infringement in particular, to have applied a starting amount that was similar, as a percentage of the size of the market, to the starting amounts decided upon for the other infringements.
251. It must be borne in mind that, having regard to the fixed-band approach implicit in the method set out in Section 1.A of the 1998 Guidelines, the Commission is not obliged, when it sets the general starting amount of the fine, to take into account the size of the market affected (see paragraphs 246 and 247 above).
252. Even assuming that the Commission, when it finds in one and the same decision that a number of very serious infringements have been committed, were required to maintain a certain 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 Belgian, German, Luxembourg and Netherlands cartels lack coherence.
253. Thus, the Commission set general starting amounts that were higher 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. For the largest market, Germany, valued at EUR 576 million, the general starting amount was set out EUR 70 million. For the two next largest markets, the Netherlands and Belgium, estimated at EUR 363 million and EUR 254 million respectively, the general starting amounts were set at EUR 55 million and EUR 40 million respectively. Finally, for the very much smaller Luxembourg market, worth EUR 32 million, even though the 1998 Guidelines provide, in the case of very serious infringements, for an amount to be set on account of gravity ‘above [EUR] 20 million’, the Commission considered it appropriate to limit that sum to EUR 10 million.
254. Third, the applicants put forward the argument that the fact that the cartels had minimal impact justified a lower starting amount. That argument must also be rejected. As was pointed out in paragraphs 213 to 219 above, the Commission must, 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, which was not so in the present case. Moreover, as was pointed out in paragraphs 220 to 224 above, even supposing that the actual impact of the infringements could have been measured here, the fact remains that the classification of these infringements as ‘very serious’ none the less remains appropriate. The applicants have advanced no other arguments justifying, despite the classification of the infringements as ‘very serious’, a reduction in the general starting amounts of the fines imposed by the Commission.
– The specific starting amounts of the fines
255. 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, Musique Diffusion française and Others v Commission, paragraph 54 above, paragraph 109, and Britannia Alloys & Chemicals
v Commission, paragraph 225 above, paragraph 44).
256. 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).
257. 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 arithmetical calculation (Section 1.A, seventh paragraph).
258. 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. However, nor do they preclude the Commission from taking such turnover figures into account in determining the amount of the fine in order to ensure compliance with general principles of EU law and where circumstances demand it ( LR AF 1998
v Commission, paragraph 112 above, paragraph 283, Case T‑220/00 Cheil Jedang
v Commission
[2003] ECR II‑2473, paragraph 82, and Groupe Danone
v Commission, paragraph 57 above, paragraph 157). The General Court has already held, moreover, that there is no need for a strictly proportional relationship between the size of each undertaking and the fine imposed on it (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others
v Commission [2004] ECR II‑2501, paragraph 534).
259. 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 [the] 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 fines, according to their turnover on each national market for the goods 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).
260. However, the applicants argue that the specific starting amounts of their fines for their part in the infringements in Germany, Luxembourg and the Netherlands were determined in a way that misapplied the 1998 Guidelines and was disproportionate. They also argue that there was insufficient differentiation between the undertakings concerned.
261. First, as regards the infringements in Germany, Luxembourg and the Netherlands, the applicants allege breach of the 1998 Guidelines and of the principle of proportionality [ confidential ].
262. However, as is clear from paragraph 244 above, first, the general starting amounts of the fines were determined taking into account the nature of the infringements and the size of the relevant geographic markets. Second, the Commission took into account the turnover achieved in the German 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 relevant 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 255 and 258 above. The comparison which the applicants make between the turnover figures which they claim to have achieved on the markets in question and the starting amounts of the fines cannot therefore be accepted.
263. Thus, given that EU law in any event contains no general principle that the penalty must be proportionate to the undertaking’s size on the product market in relation to which the infringement is committed ( Archer Daniels Midland
v Commission, paragraph 106 above, paragraph 75), the argument alleging the excessive nature of the specific starting amounts of the fines imposed on Schindler for the infringements in Germany, Luxembourg and the Netherlands must be rejected.
264. Second, as regards the infringement in Luxembourg, the applicants draw attention to the fact that Schindler was placed in the same category as Otis, even though, with turnover in Luxembourg of between EUR 9 million and 13 million and a market share of between 40% and 50%, the latter company’s economic strength is considerably greater.
265. In this connection, it must be borne in mind that, in order to ascertain whether the division of the members of a cartel into categories is in keeping with the principles of equal treatment and proportionality, the Court, as part of its review of the lawfulness of the exercise of the Commission’s discretion in the matter, must confine itself to checking that the division is coherent and objectively justified (see, to that effect, Case T‑213/00 CMA CGM and Others
v Commission [2003] ECR II‑913, paragraphs 406 and 416, BASF
v Commission, paragraph 243 above, paragraph 157, and Schunk and Schunk Kohlenstoff-Technik
v Commission, paragraph 83 above, paragraph 184). Furthermore, as was pointed out in paragraph 257 above, the 1998 Guidelines state that the principle of equal punishment for the same conduct may lead to different fines being imposed on the undertakings concerned without this differentiation being governed by arithmetical calculation (seventh paragraph of Section 1.A). As the Court stated in paragraph 258 above, there is no need for a strictly proportional relationship between the size of each undertaking and t he fine imposed on it.
266. In the present case it must be observed that, as is clear from recital 680 of the contested decision, in 2003, the turnover figures for Schindler and Otis on the Luxembourg market were relatively similar and were in either case between three and four times higher than those of Kone and ThyssenKrupp 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.
267. Third, as regards the infringement in the Netherlands, the applicants assert that their small market share in that Member State ‘was not obviously taken into account’. The starting amount represents [ confidential ], despite a market share of [ confidential ].
268. It must be held that, given the considerable differences in turnover achieved by the cartel members in the Netherlands, the Commission did not manifestly go beyond the bounds of its margin of assessment in dividing them into four categories for the purpose of determining the specific starting amounts of the fines or by placing Schindler, the third largest operator on the Netherlands market for the goods in question, in the third category.
269. It is clear from all the foregoing that all the complaints concerning the determination of the specific starting amounts of the fines imposed upon the applicants must be rejected.
270. The present plea must therefore be rejected in its entirety.
The plea alleging infringement of the 1998 Guidelines, breach of the principle that the penalty must fit the offence, and breach of the duty to state reasons in connection with the taking into account of mitigating circumstances
271. The applicants contend that the Commission infringed the 1998 Guidelines, the principle that the penalty must fit the offence and the principle of proportionality, and failed in its duty to state reasons by wrongly refusing to take into account as mitigating circumstances, first, the fact the infringement in Germany was voluntarily brought to an end as early as 2000 and, second, that Schindler made intensive efforts to prevent any infringement of Article 81 EC.
272. First of all, as regard the early voluntary cessation of the infringement, the Commission noted in the contested decision that ‘Schindler left the German cartel in 2000’, but held that ‘[t]he fact that an undertaking voluntarily puts an end to the infringement before the Commission has opened its investigation is sufficiently taken into account in the calculation of the duration of the infringement period and does not constitute an attenuating circumstance’ (recital 742 of the contested decision).
273. The applicants point out that the 1998 Guidelines provide, in Section 3, for a reduction in the starting amount of a fine where there are specific attenuating circumstances such as, inter alia, termination of the infringement as soon as the Commission intervenes. That mitigating circumstance should, a fortiori, apply, according to the applicants, where the termination of the offending behaviour occurs before that intervention, as in the present case.
274. That argument cannot be upheld. Indeed, the Court of Justice has recently confirmed, in this connection, that the benefit of a mitigating circumstance cannot be granted under the third indent of Section 3 of the 1998 Guidelines where the infringement has already come to an end before the date on which the Commission first intervenes ( Prym and Prym Consumer
v Commission, paragraph 198 above, paragraph 150). Logically, there can be a mitigating circumstance within the meaning of Section 3 of the 1998 Guidelines only if the undertakings concerned are encouraged to cease their anti-competitive conduct by the Commission’s actions. The purpose of that provision is to encourage undertakings to terminate their anti-competitive conduct as soon as the Commission launches an investigation into it; consequently, the fine cannot be reduced on that basis where the infringement has already come to an end before the date on which the Commission first intervenes. A reduction applied in such circumstances would duplicate the reduction for duration which is applied in calculating the fines. (Case T‑50/00 Dalmine
v Commission
[2004] ECR II‑2395, paragraphs 328 to 330, Carbone‑Lorraine
v Commission, paragraph 200 above, paragraph 227).
275. It must also be borne in mind that the grant of such a reduction in the basic amount of the fine is necessarily linked to the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful agreement (Case C‑511/06 P Archer Daniels Midland
v Commission [2009] ECR I‑5843, paragraph 104). In that regard, the application of that provision of the Guidelines in favour of an undertaking will be particularly appropriate where the conduct in question is not manifestly anti-competitive. Conversely, its application will be less appropriate, as a general rule, where the conduct is clearly anti-competitive, on the assumption that it is proven (Case T‑44/00 Mannesmannröhren‑Werke
v Commission
[2004] ECR II‑2223, paragraph 281, 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 497, and Carbone-Lorraine
v Commission, paragraph 200 above, paragraph 228). To recognise a mitigating circumstance in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement could encourage undertakings to continue a secret agreement as long as possible, in the hope that their conduct will never be discovered, while knowing that, if it is discovered, they could, by then curtailing the infringement, expect their fine to be reduced. Such recognition would deprive the fine imposed of any deterrent effect and would undermine the effectiveness of Article 81(1) EC ( Archer Daniels Midland
v Commission, paragraph 105 and the case-law cited). In the present case, in the contested decision, even the immediate termination of the illegal behaviour by another undertaking, namely Kone, upon the Commission’s intervention was not regarded as a mitigating circumstance in view of the manifest and deliberate nature of the infringement of Article 81 EC (recital 744 of the contested decision).
276. Thus, even if the 1998 Guidelines recognised the voluntary termination of the infringement prior to the Commission’s intervention as a mitigating circumstance, it would have been quite proper to treat the manifest and deliberate nature of the infringement, which is not disputed by the applicants, and the fact that, according to the file, Schindler left the cartel solely because of a disagreement with the other members over their refusal to allow it a larger share of the market, as further reason not to reduce the basic amount on this ground. Contrary to the applicants’ submission, therefore, there is, in any event, no reason to call into question the case-law cited in paragraph 274 above.
277. Lastly, the applicants refer to the Commission’s practice in previous decisions, in accordance with which it would have treated the voluntary termination of an infringement prior to any intervention on its part as a mitigating circumstance.
278. As was pointed out in paragraph 225 above, the previous Commission decisions referred to by the applicants are not relevant, since the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters.
279. The first complaint raised in the context of the present plea must therefore be rejected.
280. Second, the applicants maintain that the Commission did not take into account, or even consider, Schindler’s competition law compliance programme as a mitigating circumstance. That constitutes a failure to state reasons. The applicants also submit that compliance measures should have been taken into account in the calculation of the fines since, by adopting internal measures, the applicants were doing their utmost to avoid infringements, and also such measures would have had the secondary effect of making it more difficult to discover infringements internally, since employees would be at risk of sanctions. The applicants once again refer to certain earlier decisions of the Commission in which the existence of a competition law compliance programme was taken into consideration as a mitigating circumstance.
281. As regards the alleged failure to state reasons, the Court would observe that recital 754 of the contested decision states that ‘[w]hile the Commission welcomes measures taken by undertakings to avoid cartel infringements in the future, such measures cannot change the reality of the infringements and the need to sanction them in this decision’, and that ‘[t]he mere fact that in certain of its previous decisions, the Commission took such measures into consideration as attenuating circumstances does not mean that it is obliged to act in the same manner in every case’. Even though recital 754 of the contested decision is a response to the argument raised by Otis and set out in recital 753, it also enables the applicants to ascertain the reasons for which Schindler’s compliance programme, like that of Otis, could not be regarded as a mitigating circumstance and enables the Court to exercise its power of review of the lawfulness of the fines imposed upon the companies within the Schindler group. The argument alleging a failure to state reasons must therefore be dismissed (see, to that effect, Case C‑367/95 P Commission
v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63).
282. As regards the merits of the Commission’s approach, it has already been held that the adoption of a compliance programme by the undertaking concerned does not oblige the Commission to grant a reduction in the fine on that account ( BASF and UCB
v Commission, paragraph 143 above, paragraph 52). Moreover, whilst it is important that an undertaking take steps to prevent fresh infringements of EU competition law from being committed in the future by members of its staff, the taking of such steps does not alter the fact that an infringement has been committed. The Commission is not, therefore, bound to consider such a factor as a mitigating circumstance, all the more so when the infringements found in the contested decision are, as in the present case, a clear infringement of Article 81 EC ( Dansk Rørindustri and Others
v Commission, paragraph 88 above, paragraph 373, Carbon-Lorraine
v Commission, paragraph 200 above, paragraph 231). It follows that the applicants’ argument by which they allege that the Commission disregarded the need to determine the amounts of the fines individually by failing to grant Schindler any reduction in the fines on account of its compliance programme cannot be upheld.
283. Lastly, the argument based upon the Commission’s practice in previous decisions must be dismissed for the reasons set out in paragraph 278 above.
284. The second complaint raised in the context of the present plea therefore cannot be upheld either.
285. Since the applicants’ complaints alleging that the penalty does not fit the offence and breach of the principle of proportionality rest entirely on the fact that not all the mitigating circumstances were taken into account, those complaints must, having regard to the findings in paragraphs 272 to 284 above, be rejected.
286. Accordingly, this plea must be rejected in its entirety.
The plea alleging breach of the 2002 Leniency Notice, the principle of equal treatment and the duty to state reasons for the grant of reductions in the fines
287. The applicants recall that they made applications for immunity or for a reduction in the fines under the 2002 Leniency Notice, in connection with Belgium, Germany and Luxembourg. However, the Commission misapplied the provisions of that notice when assessing the quality and usefulness of their cooperation. The applicants also submit that the Commission infringed the principle of equal treatment in the assessment of the reduction in the fines applicable under that notice. The applicants also claim that the statement of reasons is defective.
The 2002 Leniency Notice
288. 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.
289. 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’.
290. The 2002 Leniency Notice goes on to provide, in Section B, at point 20, that ‘[u]ndertakings that do not meet the conditions 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’.
291. 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.’
292. 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%.’
293. 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.’
294. Finally, the last paragraph of point 23(b) of the 2002 Leniency Notice provides:
‘[i]f 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 assessment and review by the Courts of the Union
295. 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 ( Musique Diffusion française and Others v Commission, paragraph 54 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).
296. 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, to that effect, Case C‑328/05 P SGL Carbon
v Commission
[2007] ECR I‑3921, paragraph 81; see, by analogy, Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 275 above, paragraph 224).
297. 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 275 above, p aragraph 224).
298. 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, SGL Carbon
v Commission, paragraph 296 above, paragraph 88). 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 296 above, paragraph 81, and Carbone‑Lorraine v Commission, paragraph 200 above, paragraph 271).
299. 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 assessment when it is required to determine the exact level of the reduction in the fine to be granted to the undertaking concerned. The first paragraph of point 23(b) of the 2002 Leniency 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.
300. 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 296 above, paragraphs 81, 88 and 89).
Schindler’s cooperation in establishing the infringement in Belgium
301. Schindler, which was the fourth undertaking to make an application under the 2002 Leniency Notice in respect of its participation in the infringement in Belgium (recital 775 of the contested decision), was not granted any reduction in its fine for that infringement (recital 776 of the contested decision). In recital 776 to the contested decision the Commission gives the following explanation:
‘776 Although Schindler submitted some contemporaneous evidence, in the form of cartel lists from 2000 to 2003, this evidence did not strengthen the Commission’s case, as it already had cartel lists from that same period. Schindler submitted its leniency application on 21 January 2005, that is, one year after the first inspection had taken place in Belgium, at a time when the Commission had already conducted two rounds of inspections in Belgium and had received three corroborating leniency applications. Moreover, the nature of the very limited information provided by Schindler (mostly cartel lists for 2000-2003) did not to any significant extent strengthen the Commission’s ability to prove the facts in question. Consequently, the requirements of point 21 of the Leniency Notice are not satisfied. Subsequent to its leniency application, Schindler has continued to cooperate with the Commission; however, without providing any significant added value.’
302. First of all, the applicants claim that, in the contested decision, the Commission failed to have regard to the fact that the project lists which Schindler sent to it during the administrative procedure did in fact offer added value within the meaning of the 2002 Leniency Notice. First, those lists did not contain the same dates as the lists communicated by Kone and Otis. Second, Schindler’s lists mentioned numerous projects that did not appear on the lists communicated by Kone and Otis. Third, the Commission expressly referred in recital 164 (footnote 176) of the contested decision, to the project lists communicated by Kone, Otis and Schindler. Fourth, the Commission drew conclusions from its comparison of the project lists sent to it by the various undertakings, which demonstrates that all the project lists sent to it were important pieces of evidence in establishing the infringement and that it was purely thanks to the project lists of Kone, Otis and Schindler that the Commission was able to prove the existence of the cartel. In accordance with the first paragraph of point 23(b) of the 2002 Leniency Notice, therefore, Schindler was entitled, as the fourth undertaking to cooperate, to a reduction in its fine of up to 20%.
303. It is therefore appropriate to examine, having regard to the case-law mentioned in paragraph 300 above, whether the Commission manifestly went beyond the bounds of its margin of assessment in finding that the evidence provided by Schindler did not represent significant added value by comparison with the evidence already in its possession at the time Schindler made its application under the 2002 Leniency Notice.
304. In this connection, it must be pointed out first of all that the applicants, which do not take issue with the grant to Kone of immunity from fines, do not dispute the finding in recital 761 of the contested decision that ‘the information provided by Kone already enabled the Commission to find an infringement in Belgium’. The Commission had therefore already received sufficient evidence to reach its finding of an infringement in Belgium by the time Schindler made its application under the 2002 Leniency Notice.
305. Next, it must be observed that, in order to demonstrate the significant added value of Schindler’s cooperation, the applicants merely refer to the project lists from 2000 to 2003 which Schindler sent to the Commission in the context of its application under the notice.
306. However, even though the lists sent by Schindler bore different dates from those provided by Kone and Otis, and even though they also referred to a number of projects not included in the lists sent by Kone and Otis, they cannot be regarded as having significantly strengthened the Commission’s ability to establish the infringement in Belgium.
307. First of all, it must be emphasised that, in the contested decision, the Commission established that the cartel relating to new elevators and escalators in Belgium had been put into effect not only by reference to the project lists communicated by Kone, Otis and Schindler, but also on the basis of observations made by the cartel members in Belgium in the context of their applications under the 2002 Leniency Notice and the replies furnished by the undertakings to the Commission’s requests for information (see the footnotes to recitals 163 to 168 of the contested decision). The project lists are therefore merely one of several pieces of evidence used to establish the cartel’s implementation in Belgium.
308. Second, it is not in dispute that, by the time Schindler communicated project lists for 2000 to 2003 to the Commission, the institution already had in its possession project lists for the same period, sent to it earlier by Kone and Otis (recitals 164 and 776 of the contested decision).
309. A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does not facilitate the Commission’s task significantly and is therefore insufficient to justify a reduction in the fine for cooperation ( Groupe Danone
v Commission, paragraph 57 supra, paragraph 455).
310. Given the statement in the previous paragraph and the fact that the applicants do not dispute that the cooperation provided by Kone had already enabled the Commission to establish the infringement in Belgium, the applicants cannot claim that it was only the project lists mentioned in the contested decision taken as a whole, including those sent by Schindler, which enabled the Commission to prove the existence of the cartel in Belgium.
311. The Commission did not, therefore, manifestly go beyond the bounds of its margin of assessment in finding that the evidence furnished by Schindler did not represent significant added value within the meaning of point 21 of the Leniency Notice. The complaint relating to the significant added value of the project lists which Schindler communicated to the Commission in the context of its application under that notice must therefore be rejected.
312. Second, the applicants argue that a comparison of its treatment with that of Otis and ThyssenKrupp shows that the Commission breached the principle of equal treatment by refusing to grant Schindler a reduction in the amount of its fine under the 2002 Leniency Notice. They explain, to that end, that Kone provided sufficient evidence to enable the Commission to establish an infringement of Article 81 EC. Otis provided evidence that contained only very little new information, and obtained a reduction in its fine of 40%. ThyssenKrupp merely provided supplemental information relating to a small number of maintenance projects, and the Commission found that none of the evidence provided related to facts of which it had previously been unaware and that the information communicated did not relate to the period of the cartel. Yet ThyssenKrupp was allowed a reduction in its fine of 20%. For its part, Schindler communicated lists relating to the years 2000 to 2003, of which the Commission had no prior knowledge and which did relate to the period of the cartel. It is thus entitled to a reduction in the amount of its fine of up to 20%.
313. It should be observed in this connection that, 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 (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, paragraph 394 and the case-law cited).
314. In the present case, it must be observed that the cooperation provided by Otis and ThyssenKrupp was very different from that provided by Schindler.
315. First of all, the Court must point out that the assessment of the added value of cooperation is carried out by reference to the evidence already in the Commission’s possession. Since the cooperation which Otis and ThyssenKrupp offered preceded that of Schindler (recitals 96, 98 and 103 of the contested decision), the Commission was in possession of more evidence by the time Schindler made its application under the 2002 Leniency Notice than it had had when Otis and ThyssenKrupp made theirs.
316. Second, it can be seen from the contested decision that the cooperation offered by ThyssenKrupp and Otis did represent significant added value within the meaning of point 21 of the 2002 Leniency Notice.
317. In so far as Otis’s cooperation is concerned, that undertaking provided the Commission with ‘contemporaneous documentary evidence’ (recital 766 of the contested decision) and that evidence provided information, albeit limited information, on ‘facts previously unknown to the Commission’ (recital 766 of the contested decision). In so far as concerns the cooperation provided by ThyssenKrupp, it too represented significant added value ‘because it provided additional information about some maintenance/modernisation projects and detailed explanations about the system used to fix prices of maintenance contracts’ (recital 771 of the contested decision).
318. In so far as Schindler’s cooperation is concerned, on the other hand, it is clear from the Court’s analysis in paragraphs 303 to 311 above that the Commission was entitled to regard it as not meeting the conditions of point 21 of the 2002 Leniency Notice.
319. That being so, and since the positions of the various undertakings are not comparable, the Commission did not breach the principle of equal treatment by granting reductions in the amounts of their fines to Otis (40%) and ThyssenKrupp (20%) and refusing Schindler the benefit of any reduction in the amount of its fine under the 2002 Leniency Notice.
320. It is clear from all the foregoing that all of Schindler’s complaints relating to the way in which the 2002 Leniency Notice was applied to its cooperation in establishing the infringement in Belgium must be rejected.
Schindler’s cooperation in establishing the infringement in Germany
321. In recital 805 of the contested decision, the Commission decided ‘to grant Schindler a reduction of 15% within the band provided for in the third indent of [the first paragraph of] point 23(b) of the [2002] Leniency Notice’, on account of its cooperation in establishing the infringement in Germany.
322. In recital 803 of the contested decision, the Commission explains that it was impossible to grant immunity from fines under point 8(b) of the 2002 Leniency Notice or a 100% reduction in the fine under the last paragraph of point 23(b) of the notice because, by the time Schindler made its application under the notice, it ‘was already in possession of a body of evidence enabling it to find an infringement of Article 81 [EC], including the period 1995 to 2000’.
323. In recital 804 of the contested decision, the Commission adds:
‘… Since Schindler completely fulfilled the condition of point 21 only after the 25 November 2004 supplement, that is, eight months after the first two … applications [under the 2002 Leniency Notice], this delay is to be considered for the reduction within the band. Schindler did provide some added value that strengthened the Commission’s ability to prove the infringement. However, the added value of Schindler’s leniency application remained limited given that it consisted mainly in own statements, contained no documentary evidence and mainly corroborated evidence already in the Commission’s possession’.
324. As a preliminary point, the applicants draw attention to the fact that Schindler participated only in the cartels relating to the installation of escalators between 1995 and 2000, such that only those cartels and only that period should be taken into account by the Commission in its assessment of Schindler’s cooperation. That infringement was an isolated infringement and should be considered separately from the infringements relating to escalators and elevators committed by other undertakings after 2000. Schindler had not participated in those infringements and knew nothing of them.
325. First, Schindler maintains that it ought to be regarded as the first undertaking to submit evidence enabling the Commission to find an infringement, for the purposes of point 8(b) of the 2002 Leniency Notice, and should thus benefit from a total remission of its fine.
326. The applicants admit that the Commission received applications under the 2002 Leniency Notice in relation to the German cartels from Kone and Otis before it received Schindler’s application. Nevertheless, those applications were not such as to prove the infringement of Article 81 EC in which Schindler participated, namely the agreements relating to escalators concluded between 1995 and 2000. Without the evidence provided by Schindler, the Commission would not have been in a position to establish the infringement of Article 81 EC. In its application and supplemental applications, Schindler showed that 33 meetings had been held in Germany between 29 April 1994 and 6 December 2000. Otis disclosed only three meetings in 1999 (on 20 January, 28 October and 22 December 1999) and five meetings in 2000 (on 20 January, 18 February, 3 April, 16 June and 6 December 2000). Nor did the statements made by Kone make it possible to establish that regular meetings had been held concerning the escalator projects in Germany between 1995 and 2000.
327. Second, and in the alternative, the applicants maintain that, in accordance with the last paragraph of point 23(b) of the 2002 Leniency Notice, Schindler ought not, in any case, to have received a fine, since it was the only undertaking to provide sufficient evidence to establish the infringement in Germany between 1995 and 2000. The evidence provided by Kone and Otis related to the period after 2000. Moreover, in so far as the Commission asserts, in recital 803 of the contested decision, that it already had sufficient evidence in its possession prior to Schindler’s application, without, however, stating what that evidence was, the applicants argue that the statement of reasons for the contested decision is deficient.
328. The Court observes, first of all, that, contrary to the Commission’s contention, the fact that the applicants do not call into question the classification of the infringement in Germany as a single infringement does not render their arguments inadmissible.
329. Indeed, in the contested decision, the Commission itself identifies two phases in the infringement in Germany, the first lasting from August 1995 to December 2000 and relating solely to escalators, the other lasting from December 2000 to December 2003 and relating to both escalators and elevators (recitals 213, 277 and 278 of the contested decision), without that distinction altering its classification of the cartel as a single infringement for the reason that all the arrangements followed pursued the same goals and had the same result (recital 568 of the contested decision). Nor is it in dispute that Schindler participated only in the escalators phase of the infringement found in Article 1(2) of the contested decision, since Schindler left the cartel in 2000 (recital 213 of the contested decision).
330. If, as the applicants claim, Schindler was the first undertaking to provide decisive evidence enabling the Commission to establish the existence of the cartel in Germany from August 1995 to December 2000 it would be entitled, in accordance with the last paragraph of point 23(b) of the 2002 Leniency Notice, and irrespective of the possible application of point 8(b) of the notice, to a 100% reduction in the amount of its fine, since its cooperation would have directly altered the duration of the supposed cartel, to the extent of the entire duration of Schindler’s participation in it.
331. However, it is clear from recitals 214 and 803 of the contested decision that, by the time Schindler made its application, on 25 November 2004, the Commission had in its possession sufficient evidence to establish the existence of the infringement in Germany from 1995 to 2000.
332. Thus, in its application of 12 February 2004 under the 2002 Leniency Notice, Kone provided specific evidence about the cartel in Germany relating both to the period before Schindler left the cartel and to the period following its departure. As regards the first phase of the infringement, Kone’s statement thus informed the Commission that a cartel to share the escalators market had been in existence since at least 1 August 1995, provided it with a list of the cartel members, and informed it of the principles governing the allocation of projects and other matters relating to the cartel’s implementation. In its application Kone also stated clearly that Schindler had left the cartel ‘[at] the end of 2000’.
333. In its submission of April 2004 supplementing its application of March 2004, Otis confirmed the existence of a cartel in Germany to share the market for escalators, the list of cartel members, the principles governing the allocation of projects and other information relating to the cartel’s implementation as well as Schindler’s departure from the cartel in 2000. In its supplemental submission of April 2004, Otis also indicated that the cartel on the escalators market had been in existence since the 1980s.
334. Therefore, by the time Schindler made its application under the 2002 Leniency Notice, on 25 November 2004, the Commission already had in its possession two concurring statements enabling it to establish the phase of the infringement in Germany in which Schindler had participated.
335. Admittedly, in its application of 25 November 2004 and in its supplemental statement of 7 December 2004, Schindler provided the Commission with information of which it was not yet aware, namely the dates of certain meetings of the cartel members which took place between 29 April 1994 and 6 December 2000. However, having regard to the Court’s findings in paragraph 334 above, the Commission was entitled to take the view that that evidence provided significant added value within the meaning of point 21 of the 2002 Leniency Notice and qualified for a reduction in the fine, but did not give rise to complete immunity from the fine under point 8(b) or complete remission of the fine under the last paragraph of point 23(b) of the notice. Indeed, the evidence in question was not decisive in establishing the existence of the cartel in Germany during the period of Schindler’s participation in it, but merely strengthened the Commission’s ability to find the infringement by corroborating the evidence already in its possession.
336. Next, as regards the fact that Schindler was the third undertaking to make an application under the 2002 Leniency Notice, the applicable reduction in the fine was that provided for in the third indent of the first paragraph of point 23(b) of the notice. Given that no evidence of significant added value was sent to the Commission until eight months after the first two applications under the notice were made, and that it is not in dispute that Schindler did not communicate any contemporaneous documentary evidence, the Commission did not manifestly go beyond the bounds of its margin of assessment by setting the reduction in the amount of Schindler’s fine at 15%.
337. Lastly, as regards the complaint alleging infringement of Article 253 EC, it must be held that recital 803 of the contested decision sets out, clearly and unequivocally, the reasons for which the Commission considered that the evidence submitted by Schindler in its application under the 2002 Leniency Notice did not give rise to immunity from the fine. In this connection, the Commission mentions that ‘at the time of Schindler’s submission, [it] was already in possession of a body of evidence enabling it to find an infringement of Article 81 [EC]’ (recital 803 of the contested decision). Taken in context, those reasons necessarily relate to the body of evidence contained in the applications made by Kone and Otis, which, in recitals 792 and 799 of the contested decision, was ascribed added value. Those recitals thus enabled the interested parties to ascertain the reasons for the Commission’s refusal to grant Schindler immunity from fines in recognition of its cooperation in establishing the infringement in Germany and the Court to carry out its review of the legality thereof. The complaint alleging infringement of Article 253 EC must therefore be rejected.
338. Accordingly, the Court must reject all of Schindler’s complaints concerning the application of the 2002 Leniency Notice to its cooperation in establishing the cartel in Germany.
Schindler’s cooperation in establishing the infringement in Luxembourg
339. Schindler, which was the fourth undertaking to make an application under the 2002 Leniency Notice in respect of the Luxembourg cartel (recital 830 of the contested decision), was not granted any reduction in its fine under the 2002 Leniency Notice in so far as that infringement was concerned (recital 834 of the contested decision).The Commission gives the following explanation in that connection in recitals 831 to 833 of the contested decision:
‘831 Schindler’s … application [under the 2002 Leniency Notice] consists mainly of a written corporate statement and some internal documents from 2002 which Schindler claims were created in the context of normal business operations. Schindler’s leniency application did not provide the Commission with new evidence of significant added value. The new information consists of descriptions of the industry at the time of the infringement and other details of minor importance. Otherwise, Schindler’s leniency application mainly confirms information already known to the Commission.
832 Besides, Schindler claimed that agreements with respect to new installations, modernisation, repair and maintenance of elevators and escalators were in place as early as 1993, and that Schindler had left the cartel in 1994 and only returned in 1999. The Commission has found no indications supporting this statement. The Commission cannot rely on a party’s unsupported unilateral statement on a critical matter that could lead to serious legal consequences for the other participants.
833 The Commission concludes that Schindler’s submission did not contain new evidence of any appreciable value but mainly corroborated facts already known to the Commission. The information provided by Schindler, compared to the evidence in the Commission’s possession at the time of Schindler’s leniency application did not to any significant extent strengthen the Commission’s ability to prove the facts in question. Consequently, the requirements of point 21 of the [2002] Leniency Notice are not satisfied. Subsequent to its leniency application, Schindler has not further cooperated other than providing information upon request of the Commission.’
340. The applicants maintain that Schindler is entitled to a reduction in its fine of 20% to 30% under points 21 and 23 of the 2002 Leniency Notice. They maintain that Schindler did provide evidence of considerable added value concerning agreements in the maintenance field. Without Schindler’s application of 4 November 2004, the Commission would not have been in a position to establish the existence of agreements in that field, in relation to which the applications of Kone and ThyssenKrupp contain only very little information. Moreover, Otis did not expressly admit its participation in agreements in this field.
341. The applicants argue that the significance of Schindler’s application under the 2002 Leniency Notice as regards the Commission’s taking of evidence is also clear from the number of times it is referred to in the contested decision, by comparison with the references to Kone’s and ThyssenKrupp’s applications. The Commission rejected Schindler’s line of argument in recital 831 of the contested decision, without, however, answering the argument which Schindler set out in its reply to the statement of objections. That constitutes a failure to state reasons within the meaning of Article 253 EC.
342. Having regard to the case-law recalled in paragraph 300 above, it is appropriate for the Court to examine whether the Commission manifestly went beyond the bounds of its margin of assessment in finding that the evidence provided by Schindler did not represent significant added value by comparison with the evidence already in its possession at the time Schindler made its application under the 2002 Leniency Notice.
343.
In this connection, it must be pointed out first of all that the applicants, which do not take issue with the grant to Kone of immunity from fines under point 8(b) of the 2002 Leniency Notice, 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 thus already had sufficient evidence to make a finding of infringement in Luxembourg at the time Schindler submitted its application under that notice. Moreover, prior to Schindler’s application, the Commission had already received an application from Otis under the notice, in March 2004, which led to a reduction in its fine of 40% (recitals 118 and 823 of the contested decision).
344. Second, as regards the question whether, in accordance with points 21 and 22 of the 2002 Leniency Notice, the evidence provided by Schindler represented significant added value in that it considerably strengthened the Commission’s ability to establish the infringement in Luxembourg, it must be observed that the evidence which, according to the applicants, offered significant added value related to only one of the two parts of the infringement found in Article 1(3) of the contested decision, namely the sharing of the markets for maintenance and modernisation contracts (see also recitals 293 and 830 of the contested decision).
345. However, it can be seen from Kone’s application of 4 February 2004, as supplemented by the information of 19 February 2004, that that application already contained a clear description of the part of the cartel which was later the subject of Schindler’s cooperation.
346. Third, the applicants cannot base an argument on the number of references which the contested decision makes to their application under the 2002 Leniency Notice. 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 Schindler in its leniency application of 4 November 2004, does not establish that Schindler’s information represented significant added value with respect to the evidence already in the Commission’s possession at that time.
347. It follows from all the foregoing that the Commission did not manifestly go beyond the bounds of its margin of assessment in holding that the evidence provided by Schindler did not represent significant added value for the purposes of point 21 of the 2002 Leniency Notice.
348. As regards the complaint alleging infringement of Article 253 EC, it must be observed that the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned; rather, it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (Case T‑349/03 Corsica Ferries France
v Commission
[2005] ECR II‑2197, paragraph 64 and the case-law cited). It must be observed in this connection that, in recitals 831 to 833 of the contested decision, the Commission gave an adequate explanation of the reasons why it considered the evidence submitted by Schindler in its application of 4 November 2004 not to represent significant added value within the meaning of point 21 of the 2002 Leniency Notice. Those recitals enable the interested parties to ascertain the reasons for the Commission’s refusal to grant Schindler a reduction in its fine in recognition of its cooperation in establishing the infringement in Luxembourg and the Court to carry out its review of the legality thereof. The complaint alleging infringement of Article 253 EC must therefore be rejected.
349. It is clear from all the foregoing that all of Schindler’s complaints relating to the way in which the 2002 Leniency Notice was applied to its cooperation in establishing the infringement in Luxembourg must be rejected.
The plea alleging breach of the 2002 Leniency Notice and the 1998 Guidelines on the ground of the insufficiency of the reduction in the fines for not contesting the facts
350. The Commission 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’.
351. 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’.
352. 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 the 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).
353. The applicants submit, first of all, that they can expect a reduction of at least 10%, rather than 1%, in the fine in respect of their cooperation outside the 2002 Leniency Notice. That would be consistent with the practice followed by the Commission in taking decisions in other cases. Second, despite a request to that effect, the Commission had failed to take account of the fact that the applicants had cooperated to an extent far greater than merely not contesting the facts. That entitled them to a reduction in the fine of at least 10% under the 2002 Leniency Notice or a reduction under the sixth indent of Section 3 of the 1998 Guidelines.
354. It must be recalled at the outset that a reduction in the fine on the ground of cooperation during the administrative procedure is justified only if the conduct of the undertaking in question enabled the Commission to establish the infringement more easily and, where relevant, to bring it to an end (Case T‑327/94 SCA Holding
v Commission
[1998] ECR II‑1373, paragraph 156, Krupp Thyssen Stainless and Acciai speciali Terni
v Commission, paragraph 222 above, paragraph 270, and Groupe Danone
v Commission, paragraph 57 above, paragraph 449).
355. Moreover, 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 (Case T‑352/94 Mo och Domsjö v Commission [1998] ECR II‑1989, paragraph 395, and SCA Holding
v Commission, paragraph 354 above, paragraph 157).
356. It is true that the 2002 Leniency Notice, unlike the 1996 Leniency Notice, does not provide for any reduction in 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 acknowledges, 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 in the fine outside the 2002 Leniency Notice. It also stated in recital 758 that ‘[t]he extent of the reduction should take into account 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’.
357. First of all, the Court must 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, in accordance with the 1996 Leniency Notice.
358. Whilst, admittedly, the 1996 Leniency Notice provided in the second indent of Section D.2 that an undertaking could benefit ‘from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated … if … after receiving a statement of objections, [it informed] the Commission that it [did] not substantially contest the facts on which the Commission [based] its allegations’, the 2002 Leniency Notice no longer provides for a reduction of the amount of the fine on that ground. However, as is clear from paragraphs 142 and 143 above, only the 2002 Leniency Notice applies to the applicants’ leniency applications, which, moreover, were expressly submitted on the basis of that notice.
359. In any event, as was pointed out in paragraph 225 above, the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters.
360. Second, as regards the applicants’ arguments that, throughout the procedure, Schindler provided the Commission with information about the infringements which was cited in key passages of the contested decision, suffice it to observe that the applicants do not claim that that collaboration went any further than that required in order for the 2002 Leniency Notice to apply. Their complaint must therefore be rejected. The same applies to the plea, raised in the reply, that that cooperation justified the recognition in Schindler’s favour of a mitigating circumstance, in accordance with the 1998 Guidelines.
361. It follows that the plea must be dismissed in its entirety.
The plea alleging infringement of Article 23(2) of Regulation No 1/2003
362. The applicants argue that the fines imposed in Article 2 of the contested decision for each infringement breach Article 23(2) of Regulation No 1/2003 in that, in establishing the ceiling of 10% of the turnover of the undertaking concerned, the Commission took as reference the turnover figures of the parent companies of the groups of companies concerned, rather than the turnover of the subsidiaries which directly participated in the infringements.
363. The applicants argue that the infringements committed by the respective subsidiaries cannot be attributed to their parent companies 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.
364. However, given that the applicants do not complain that the fines imposed in the contested decision exceed the ceiling of 10% of the turnover achieved by Schindler Holding during the previous financial year, the Court must observe that this complaint is confused with the complaints examined in paragraphs 63 to 91 above, relating to the imputation to Schindler Holding of the conduct of its subsidiaries. It is clear from the reasoning relating thereto that the Commission was entitled to impute to Schindler Holding the conduct of its subsidiaries, with which it forms an economic unit. This plea must therefore be dismissed.
The plea alleging breach of the principle of proportionality in the calculation of the final amounts of the fines
365. The applicants argue that the final amounts of the fines imposed on them are disproportionate, in that they were neither necessary nor appropriate in order to attain the objective pursued, namely the discouragement of unlawful conduct and the prevention of repeat infringements. The present case involves four isolated infringements committed by four different companies, such that the fines imposed ought not to exceed 10% of the turnover figures of each company. The applicants also submit that, if the Commission’s argument that a fine is not disproportionate where it does not exceed the ceiling of 10% of the turnover of the undertaking concerned were accepted, it would be practically impossible to apply the principle of proportionality. In the present case, Schindler Belgium and Schindler Luxembourg received fines equating to [ confidential ]% of the average aggregated turnover of Schindler Belgium and Schindler Luxembourg [ confidential ]. In so far as Schindler Netherlands is conce rned, the fine equates to [ confidential ].
366. 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 (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).
367. It follows that fines must not be disproportionate to the aims pursued, that 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 366 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 54 above, paragraph 108, Europa Carton v Commission, paragraph 125 above, paragraph 89).
368. 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).
369. Second, 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, contrary to the applicants’ submission, the relevant undertaking to which the Commission must, in the present case, have regard is not each of the subsidiaries involved in the infringements found in Article 1(1), (3) and (4) of the contested decision. On the contrary, it is clear from the foregoing analysis that the infringements with which Schindler is charged were committed by Schindler Holding and its subsidiaries. That being so, the arguments by which 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 their parent company, must be rejected.
370. Third, as regards the proportionality of the fines by comparison with the size and economic strength of the economic units concerned, it must be observed that it follows from the foregoing explanations that those fines do not exceed the 10% 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 54 above, paragraph 119, Prym and Prym Consumer
v Commission, paragraph 366 above, paragraph 229). In this connection, it is also clear from the file that the total amount of the fines imposed on Schindler in the contested decision represents approximately 2% of the aggregated turnover of Schindler Holding in the financial year preceding the adoption of the contested decision. That cannot be regarded as disproportionate in relation to the size of the undertaking.
371. Having regard to the foregoing considerations, the plea alleging breach of the principle of proportionality in the calculation of the final amounts of the fines must be dismissed.
372. It follows that the action must be dismissed in its entirety.
Costs
373. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the other party’s pleadings. In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs shall be in the discretion of the General Court.
374. It must be observed that the present action, in so far as it was brought by Schindler Management, became devoid of purpose following the Commission’s correction of the contested decision. Since all the pleas in the action have been raised by all the applicants without distinction and since Schindler Holding, Schindler Belgium, Schindler Germany and Schindler Luxembourg have been unsuccessful, they must be ordered to pay the Commission’s costs. The Council must bear its own costs.
(1) .
(1)
– Confidential information omitted.
Operative part
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Declares that there is no need to adjudicate on the action in so far as it has been brought by Schindler Management AG;
2. Dismisses the action as to the remainder;
3. Orders Schindler Holding Ltd, Schindler SA, Schindler Deutschland Holding GmbH, Schindler Sàrl and Schindler Liften BV to pay the costs;
4. Orders Schindler Management to bear its own costs;
5. Orders the Council of the European Union to bear its own costs.