62007TJ0151_EN
Parties
Grounds
Operative part
Parties
In Case T‑151/07,
Kone Oyj,
established in Helsinki (Finland),
Kone GmbH,
established in Hanover (Germany),
Kone BV,
established in Voorburg (Netherlands),
represented by T. Vinje, Solicitor, D. Paemen, J. Schindler, B. Nijs, A. Tomtsis, lawyers, J. Flynn QC and D. Scannell, Barrister,
applicants,
v
European Commission,
represented by É. Gippini Fournier and R. Sauer, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C (2007) 512 final of 21 February 2007 relating to a proceeding under Article 81 [EC] (Case COMP/E-1/38.823 − Elevators and Escalators) or, in the alternative, reduction of the amount of the fine 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 16 October 2009,
gives the following
Judgment
Grounds
1. This 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, for 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 GmbH (‘Kone Germany’), Kone Luxembourg Sàrl, Kone BV Liften en Roltrappen (‘Kone Netherlands’) and Kone Oyj (‘KC’) (referred to, collectively and individually, as ‘Kone’);
– Otis SA, Otis GmbH & Co. OHG (‘Otis Germany’), General Technic-Otis Sàrl, General Technic Sàrl, Otis BV (‘Otis Netherlands’), Otis Elevator Company (‘OEC’) and United Technologies Corporation (‘UTC’) (referred to, collectively and individually, as ‘Otis’);
– Schindler SA, Schindler Deutschland Holding GmbH (‘Schindler Germany’), Schindler Sàrl, Schindler Liften BV (‘Schindler Netherlands’) and Schindler Holding Ltd (‘Schindler Holding’) (referred to, collectively and individually, as ‘Schindler’);
– ThyssenKrupp Liften Ascenseurs NV, ThyssenKrupp Aufzüge GmbH (‘TKA’), ThyssenKrupp Fahrtreppen GmbH (‘TKF’), ThyssenKrupp Elevator AG (‘TKE’), ThyssenKrupp AG (‘TKAG’), ThyssenKrupp Ascenseurs Luxembourg Sàrl and ThyssenKrupp Liften BV (‘TKL’) (referred to, collectively and individually, as ‘ThyssenKrupp’); and
– Mitsubishi Elevator Europe BV (‘MEE’).
3. KC, one of the applicants in the present case, is a global service and engineering undertaking, with headquarters in Finland, which sells, manufactures, installs, maintains and modernises elevators and escalators and services automatic building doors. KC operates in the elevator and escalator sectors through its national subsidiaries. The latter include, in Germany, Kone Germany, and, in the Netherlands, Kone Netherlands (recitals 15, 18 and 20 of the contested decision).
Administrative procedure
Commission investigation
4. In the summer of 2003, the Commission received information concerning the possible existence of a cartel among the four major European manufacturers of elevators and escalators engaged in business activities in the European Union, namely Kone, Otis, Schindler and ThyssenKrupp (recitals 3 and 91 of the contested decision).
Germany
5. Starting on 28 January 2004, and during March 2004, the Commission carried out inspections under Article 14(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 Otis and ThyssenKrupp in Germany (recitals 104 and 106 of the contested decision).
6. On 12 and 18 February 2004, Kone supplemented its leniency application in respect of Belgium, made on 2 February 2004, pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the 2002 Leniency Notice’), with information concerning Germany. Likewise, Otis, between March 2004 and February 2005, supplemented its leniency application in respect of Belgium with information concerning Germany. On 25 November 2004, Schindler made an application under the 2002 Leniency Notice which contained information concerning Germany, which it supplemented between December 2004 and February 2005. Last, in December 2005, ThyssenKrupp submitted an application for leniency to the Commission, also under the 2002 Leniency Notice, in respect of Germany (recitals 105, 107, 112 and 114 of the contested decision).
7. Between September and November 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 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).
The Netherlands
8. In March 2004, Otis made an application under the 2002 Leniency Notice in respect of the Netherlands, in respect of which supplementary information was subsequently provided. 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).
9. 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).
10. 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).
11. 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).
Statement of objections
12. 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).
13. No hearing was held, since none of the addressees of the statement of objections had requested a hearing (recital 138 of the contested decision).
Contested decision
14. On 21 February 2007, the Commission adopted the contested decision, in which it stated that the undertakings to which the decision was addressed had participated in four single, complex and continuous infringements of Article 81(1) EC in four Member States by sharing the markets among themselves by agreeing or concerting to allocate tenders and contracts for the sale, installation, service and modernisation of elevators and escalators (recital 2 of the contested decision).
15. As regards the addressees of the contested decision, the Commission considered that apart from the subsidiaries of the undertakings concerned in Belgium, Germany, Luxembourg and the Netherlands the parent companies of those subsidiaries should be held jointly and severally liable for the infringements of Article 81 EC committed by their respective subsidiaries because they had been able to exercise decisive influence on the subsidiaries’ commercial policy during the time of the infringement and because it could be presumed that they had made use of that power (recitals 608, 615, 622, 627 and 634 to 641 of the contested decision). The parent companies of MEE were not held jointly and severally liable for their subsidiary’s conduct because it could not be established that they had exercised decisive influence over its conduct (recital 643 of the contested decision).
16. 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.
17. 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).
18. 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).
19. 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).
20. As regards the Netherlands cartel, Kone was placed in the first category and the starting amount of its fine was set at EUR 55 000 000. Otis was placed in the second category and the starting amount of its fine was set at EUR 41 000 000. Schindler was placed in the third category and the starting amount of its fine was set at EUR 24 500 000. ThyssenKrupp and MEE were placed in the fourth category and the starting amount of the fine was set at EUR 8 500 000 (recitals 684 and 685 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount for ThyssenKrupp, to take account of their size and 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).
21. The operative part of the contested decision reads as follows:
‘Article 1
…
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.
…
4. In respect of the Netherlands, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for the sale and installation and to refrain from competing with each other for maintenance and modernisation contracts:
– Kone: [KC] and [Kone Netherlands]: from 1 June 1999 to 5 March 2004;
– Otis: [UTC], [OEC] and [Otis Netherlands]: from 15 April 1998 to 5 March 2004;
– Schindler: Schindler Holding … and [Schindler Netherlands]: from 1 June 1999 to 5 March 2004;
– ThyssenKrupp: [TKAG] and [TKL]: from 15 April 1998 to 5 March 2004; and
– [MEE]: from 11 January 2000 to 5 March 2004.
Article 2
…
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.
…
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
22. By application lodged at the Registry of the General Court on 8 May 2007, the applicants, KC, Kone Germany and Kone Netherlands, brought the present action.
23. 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 a question in writing to the applicants and requested the parties to produce documents. The applicants did not reply to the Court’s question within the prescribed period. They did, however, reply by letter of 10 September 2009. By that letter and by letter of 28 September 2009, the applicants stressed the confidential nature of certain information and required that information to be omitted from documents published by the Court. The parties replied to the request for production of documents within the prescribed period.
24. The parties presented oral argument and replied to the questions put by the Court at the hearing on 16 October 2009.
25. By order of 14 October 2009, the Court ordered the Commission, pursuant to Article 65(b), Article 66(1) and the second subparagraph of Article 67(3) of the Rules of Procedure, to produce documents which it had stated were confidential. The Commission complied within the time-limit accorded. Since the Court considered that those documents were not necessary for the purposes of deciding the case, they were returned to the Commission, without being communicated to the applicants, and the oral procedure was closed.
26. The applicants claim that the Court should:
– annul Article 2(2) of the contested decision in so far as it imposes a fine on KC and Kone Germany, and impose either no fine or a fine at a lower amount than determined in the contested decision;
– annul Article 2(4) of the contested decision in so far as it imposes a fine on KC and Kone Netherlands, and set the fine at a lower amount than determined in the contested decision;
– order the Commission to pay the costs.
27. The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
28. The applicants contest, first, the legality of Article 2(2) of the contested decision, imposing fines on the undertakings concerned for the infringements in Germany, and, second, the legality of Article 2(4) of the contested decision, imposing fines on the undertakings concerned for the infringements in the Netherlands.
29. For that purpose, the applicants raise three pleas in law. The first plea alleges breach of the 1998 Guidelines and infringement of the principle of proportionality in the setting of the starting amounts of the fines. The second plea alleges breach of the 2002 Leniency Notice and of the principles of the protection of legitimate expectations, equal treatment and the rights of the defence. The third plea alleges infringement of the principles of the protection of legitimate expectations and infringement of equal treatment on the occasion of the calculation of the reduction of the fines granted for cooperation outside the framework of the 2002 Leniency Notice.
The plea alleging breach of the 1998 Guidelines and infringement of the principle of proportionality in the setting of the starting amounts of the fines
30. The applicants claim that the Commission misapplied the 1998 Guidelines and infringed the principle of proportionality when setting the starting amounts of the fines for the infringements in Germany and the Netherlands.
31. 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).
32. The gravity of infringements of European Union (‘EU’) competition law must be determined by reference to numerous factors such as, in particular, the specific circumstances and context of the case and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (Case C‑510/06 P Archer Daniels Midland
v Commission
[2009] ECR I‑1843, paragraph 72, and Case C‑534/07 P Prym and Prym Consumer
v Commission [2009] ECR I‑7415, paragraph 54).
33. As has been stated in paragraph 16 above, the Commission, in the present case, determined the amounts of the fines by applying the method laid down in the 1998 Guidelines.
34. 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 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 209 and the case-law cited, and Case T‑73/04 Carbone‑Lorraine
v Commission [2008] ECR II‑2661, paragraph 70).
35. In adopting such rules of conduct and announcing through their publication that they will henceforth apply to the cases to which they relate, the Commission imposes 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 34 above, paragraph 211 and the case-law cited, and Carbon-Lorraine v Commission, paragraph 34 above, paragraph 71).
36. Furthermore, the 1998 Guidelines determine, generally and abstractly, the method which the Commission has bound itself to use in assessing the fines imposed by the decision and, consequently, ensure legal certainty on the part of the undertakings ( Dansk Rørindustri and Others v Commission, paragraph 34 above, paragraphs 211 and 213).
37. 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).
38. In the present case, with regard to the assessment in the contested decision of the gravity of the infringement, the Commission examined the four infringements identified in Article 1 of the contested decision in parallel ‘since [they] … present common features’ (recital 657 of the contested decision).
39. First of all, with regard to the 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 maintenance and modernisation of elevators and escalators (except in Germany where the maintenance and modernisation business were not [the] subject of discussions between the cartel members). Such horizontal restrictions are, by their very nature, among the most serious violations of Article 81 [EC]. The infringements in this case artificially nullified and denied customers the advantages they could expect to obtain from a process of competitive bidding. It is also noteworthy that some of the rigged projects were public tenders financed by taxes and carried out specifically with a view to receiving competitive and cost-effective bids.
(659)	For assessing the gravity of an infringement factors relating to its object are generally more significant than those relating to its effects, in particular where agreements, as in this case, relate to infringements which are very serious, such as price fixing and market sharing. The effects of an agreement are generally an inconclusive criterion in assessing the gravity of the infringement.’
40. The Commission states that it ‘did not attempt to demonstrate the precise effects of the infringement since it [was] impossible to determine with sufficient certainty the relevant competitive parameters (price, commercial terms, quality, innovation, and others) in the absence of the infringements’ (recital 660 of the contested decision). Nevertheless, it 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’.
41. Next, 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.
42. With regard to 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 or 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’.
43. Finally, in recital 671 of the contested decision, the Commission concludes 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’.
44. In the first place, with regard to the infringement in Germany, the applicants maintain that the contested decision does not take account of the Commission’s own findings, according to which the German cartel did not concern all elevator projects. Thus, the market affected consisted solely in elevator projects with a value of more than EUR 1 million, approximately 20 to 30% of the total market, as was stated by Kone, Otis and ThyssenKrupp in their applications for immunity (recitals 281 and 664 of the contested decision). In the reply, the applicants also submit that a comparison between, on the one hand, the general starting amount set in respect of the infringement in Germany and, on the other, those set for the infringements in Belgium and the Netherlands bear out the fact that the starting amount set for the German infringement is disproportionate, since, unlike the German cartel, the Belgian and Netherlands cartels affected the whole of the elevator market.
45. In that regard, 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 concerning the determination of the general starting amount of the fine. That method entails a fixed-band approach, whereby the general starting amount of the fine, determined according to the gravity of the infringement, is calculated by reference to the nature and geographical extent of the infringement and by reference to the actual impact of the infringement on the market where that is measurable (Case T‑15/02 BASF
v Commission [2006] ECR II‑497, paragraph 134, and Case T‑116/04 Wieland-Werke v Commission
[2009] ECR II‑1087, paragraph 62).
46. 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 32 above, paragraphs 55 and 64, and Case T‑161/05 Hoechst v Commission [2009] ECR II‑3555, paragraph 109). Thus, for the purpose of determining the 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 45 above, paragraph 134, and Wieland-Werke
v Commission, paragraph 45 above, paragraph 63 and the case-law cited). 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 the general principles of EU law and where circumstances demand it (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission [2003] ECR II‑2597, paragraph 187).
47. The applicants’ argument that the general starting amount of the fine set for the German cartel should reflect the allegedly limited size of the market affected is therefore based on an incorrect assumption and must be rejected.
48. In this instance, as has been stated in paragraphs 38 to 43 above, the Commission, when determining the gravity of the infringement, took account of the nature of the infringement and of the geographic scope of the market concerned.
49. Contrary to the applicants’ submission, it is clear from recital 664 of the contested decision, in which the Commission responds to the arguments raised by Kone and Otis concerning the allegedly limited effect of the infringement, that the agreements in Germany did not affect solely escalators and elevator projects with a value of more than EUR 1 million, since the Commission took the view that it was likely that ‘the parties’ illegal agreements concerning elevator projects with a value of more than EUR 1 million, which also included high-speed/high-value elevators, could influence the operation of the remainder of the elevator market’. In the same recital, the Commission also stated that the overall value of a project was more important than the number and type of elevators, that it was impossible to demonstrate the precise effects of the infringement and that it was clear from the facts that it was not the intention of the parties to exclude certain product types but to collude on those projects where competition could most easily be eliminated.
50. It should also be observed that in its application regarding Germany under the 2002 Leniency Notice Kone itself specifically stated that [ confidential ] (1) (see also recital 256 of the contested decision), which rather tends to suggest that the objective of the cartel was to freeze market shares across the whole elevator market. As the Commission explains, explicit collusion in relation to projects worth over EUR 1 million would be incompatible with aggressive competition in respect of lower-value projects. In addition, as can be seen from recital 241 of the contested decision, which has not been challenged by the applicants, ThyssenKrupp also stated that on isolated occasions smaller projects were also discussed. Accordingly, the applicants’ argument that, so far as elevators are concerned, only around 20 to 30% of the German market was affected by the cartel must be rejected.
51. Furthermore, with regard to the German cartel, it should be observed that, although the Commission did not attempt to demonstrate the precise effects of the infringement (recital 660 of the contested decision), it none the less set a lower starting amount in order to take into account, in favour of the undertakings concerned, the possibility that the entire elevator market might not have been directly affected by the arrangements. Thus, as stated in recital 664 of the contested decision, the Commission, in response to arguments put forward by some members of the cartel that, so far as elevators were concerned, the cartel was confined to high-speed elevators, in fact took ‘the fact into account that the entire elevator market may not have been directly affected by the cartel activities’ in determining the starting amount of the fine. It is apparent that the starting amount of the fine for the German cartel was set at a lower level, when expressed as a percentage of the total size of the market, than the amounts applied in relation to the other cartels covered by the contested decision (see paragraph 55 below).
52. Moreover, even supposing that, in relation to elevators, the German cartel affected only elevator projects with a value of more than EUR 1 million – which has not been established by the applicants and is moreover contradicted by certain statements made by ThyssenKrupp (see paragraph 50 above) – the starting amount of the fine would remain justified even if it was compared with the amounts set for the other cartels. For the purpose of such a comparison, the Court points out that the geographic market concerned by the German cartel was far more extensive than the geographic markets concerned by the other cartels.
53. Furthermore, the relatively small size of the relevant product market – even assuming it to be established – is of lesser importance compared with all the other factors evidencing the gravity of the infringement, which are described in recitals 657 to 671 of the contested decision and mentioned in paragraphs 38 to 43 above (see, to that effect, Case T‑322/01 Roquette Frères
v Commission [2006] ECR II‑3137, paragraph 151).
54. Finally, 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 keep a proportionate 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 amount set for the German cartel is disproportionate as compared with the general starting amounts set for the Belgian and Netherlands cartels.
55. Consideration of the relevant information shows that, having regard to the size of the markets affected, the Commission set the starting amounts for the infringements in the Member States concerned in a reasonable and coherent manner although it did not use a precise mathematical formula – and was not in any event required to do (see paragraphs 45 to 47 above). First, for the largest market by far, that of Germany, which amounts to EUR 576 million, the general starting amount was set at EUR 70 million. For the next two markets, taken in order of size, those of the Netherlands and Belgium, which amount to EUR 363 million and EUR 254 million, the general starting amount was set at EUR 55 million and EUR 40 million, respectively.
56. In those circumstances, and having regard to the fixed-band approach implicit in the method set out in Section 1.A of the 1998 Guidelines, which does not require the Commission, when it sets the general starting amount of the fine, to take into account the size of the relevant market and still less to set that amount according to a fixed percentage of the total turnover on the market (see, to that effect, BASF
v Commission, paragraph 45 above, paragraph 134), the general starting amount set for the infringement in Germany cannot be regarded as disproportionate by comparison with the starting amounts set for the infringements in Belgium and the Netherlands.
57. In the second place, with regard to the gravity of the infringement in the Netherlands, Kone submits that the Commission must take account of the nature of the infringement, its actual impact on the market, where this can be measured, and the size of the relevant geographic market.
58. The applicants submit that the Commission incorrectly concluded that the infringement in the Netherlands was of the same nature as the infringements committed in Belgium, Germany and Luxembourg, which amounts to a manifest error of assessment and a breach of the principle of equal treatment. They argue in that regard, first, that, in those Member States, the agreements were generally concluded at the highest managerial level. Second, project allocations were based on a pre-agreed sharing of the market between the participants and had the objective of freezing those market shares. Third, project lists were kept. Furthermore, the participants also took extreme measures to conceal their unlawful conduct. Fourth, in Belgium and in Luxembourg the infringements related to all projects and/or contracts and in Germany to all projects above a certain value. Fifth, in Belgium there was a compensation mechanism for the ‘service’ branch. None of those circumstances obtained in the case of the Netherlands infringement.
59. It must be stated that those circumstances, even if established, do not call in question the Commission’s assessment, in recital 658 of the contested decision, regarding the nature of the infringement found in the Netherlands. The infringement in the Netherlands, just like those in Belgium, Germany and Luxembourg, consisted primarily 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, and not to compete with each other for maintenance and modernisation of elevators and escalators (except in Germany where the maintenance and modernisation business were 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 (recital 658 of the contested decision), as is expressly stated in Section 1.A of the 1998 Guidelines, which classifies this type of infringement as ‘very serious’.
60. In the applicants’ submission, the infringement in the Netherlands had less impact on the market than the cartels in Belgium, Germany and Luxembourg. Contrary to the Commission’s assertion, it is possible to measure the impact on the market in general terms by comparing the value of the projects concerned with the overall market value. In addition, Otis, ThyssenKrupp and Kone all give estimates of below 10% as the share of the market that might have been affected by the infringement. In the alternative, Kone claims that, in light of the evidence and the nature of the infringement and its impact, the Commission should have classified the Netherlands infringement as ‘serious’, rather than ‘very serious’, and should therefore have lowered the basic fine for that infringement.
61. Under the first paragraph of Section 1.A of the 1998 Guidelines, the Commission, when assessing the gravity of the infringement, must undertake an examination of the actual impact on the market only where it is apparent that that impact can be measured (see Prym and Prym Consumer
v Commission, paragraph 32 above, paragraph 74 and the case-law cited; Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission, paragraph 46 above, paragraph 143; and Case T‑279/02 Degussa
v Commission
[2006] ECR II‑897, paragraph 216).
62. It is settled case‑law that, in order to assess the actual impact of an infringement on the market, the Commission must take as a reference the competition that would normally have existed had there been no infringement (see Carbone‑Lorraine v Commission, paragraph 34 above, paragraph 83 and the case‑law cited).
63. 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, and even though the Commission rejects, in recitals 661 to 669, the arguments of the undertakings concerned which sought to demonstrate the limited effects of the cartels, it must be found that, in the contested decision, the assessment of the gravity of the infringements did not take account of their possible impact on the market.
64. Hence the Commission, in recital 671 of the contested decision, 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]’.
65. With regard to the argument that it is possible to measure the impact on the market in general terms by comparing the value of the projects concerned with the overall market value, the Court finds that the applicants do not provide any explanation of how the impact on the market should be calculated. In that regard, the applicants refer, in the reply, to Kone’s explanations in its reply to the statement of objections. Without it being necessary to adjudicate upon the admissibility of such arguments, which are found in an annex to the application, it should be noted that the applicants merely mention the limited impact of the cartel on the Netherlands market and to that end refer, in essence, to the statements of the undertakings concerned, according to which a limited number of projects were concerned by the cartel. However, as the Commission points out, such statements do not mean that the impact of the infringement could be measured, given that the scale of the cartel was not known. The Commission thus stated, for example, in recital 384 of the contested decision, which has not been challenged by the applicants, that ‘there was no need to allocate each and every project in the Netherlands because the undertakings concerned needed to discuss only those projects which had not been automatically allocated to one of them by virtue of an established relationship with an existing customer’. In addition, the applicants’ arguments cannot call in question the Commission’s conclusion in recital 660 of the contested decision that 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 (see paragraphs 62 and 63 above).
66. In any event, it is clear that the applicants’ arguments do not call in question the classification of the infringement in the Netherlands as ‘very serious’.
67. It must thus be stated that, by their very nature, the infringements identified in the contested decision are among the most serious breaches of Article 81 EC, since they had as their object ‘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 maintenance and modernisation of elevators and escalators (except in Germany where the maintenance and modernisation business were 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 explicitly 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 counteracting 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’ (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).
68. Furthermore, 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 32 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 61 above, paragraph 251).
69. Accordingly, the nature of the infringement plays a primary role, in particular in classifying infringements as ‘very serious’. It follows from the description of very serious infringements given by the 1998 Guidelines that agreements or concerted practices seeking inter alia, as in this case, to share markets may, solely on account of their nature, be classified as ‘very serious’, there being no need to categorise such behaviour on the basis of particular impact or geographic extent (see, to that effect, Prym and Prym Consumer
v Commission, paragraph 32 above, paragraph 75, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 103). 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, Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission
[2008] ECR II‑2567, paragraph 171 and the case-law cited).
70. Accordingly, the Commission was correct in holding that, in view of its object, the infringement in the Netherlands was, by definition, very serious.
71. In the light of all the above considerations, this plea must be rejected.
The plea alleging breach of the 2002 Leniency Notice and infringement of the principles of the protection of legitimate expectations, equal treatment and the rights of the defence
72. The applicants observe that they made applications for immunity or for a reduction of the fines under the 2002 Leniency Notice. However, the Commission misapplied the provisions of that notice when assessing the quality and usefulness of their cooperation. In their submission, the Commission also infringed their legitimate expectations and their rights of defence. Finally, the applicants submit that the Commission infringed the principle of equal treatment in the assessment of the reduction of the fines applicable under the notice.
The 2002 Leniency Notice
73. 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.
74. 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’.
75. 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’.
76. 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.’
77. 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%.’
78. 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.’
79. Finally, the last paragraph of point 23(b) of the 2002 Leniency Notice provides:
‘In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’
The Commission’s margin of assessment and review by the Courts of the European Union
80. 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 (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission
[1983] ECR 1825, paragraphs 105 and 109). That was the context in which, in order to ensure the transparency and objectivity of its fining decisions, the Commission adopted and published the 2002 Leniency Notice. 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).
81. The limitation which the Commission has imposed on its discretion by adopting the 2002 Leniency Notice is not, however, incompatible with the retention of a considerable margin of assessment (see, by analogy, 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 224).
82. 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 81 above, paragraph 224).
83. Thus, the Commission enjoys a broad margin of assessment when it is required to determine whether the evidence provided by an undertaking that has stated that it wishes to benefit from the 2002 Leniency Notice represents significant added value for the purposes of point 21 of the notice (see, to that effect, Case C‑328/05 P SGL Carbon
v Commission
[2007] ECR I‑3921, paragraph 88, and Case T‑410/03 Hoechst
v Commission [2008] ECR II‑881, paragraph 555). As regards point 8(a) and (b) of the notice, it is clear that that considerable margin of assessment results from the actual wording of that provision, which expressly refers to the provision of evidence which, ‘in the Commission’s view’, either enables it to adopt a decision to carry out an investigation or enables it to find an infringement. The assessment of the quality and usefulness of the cooperation provided by an undertaking involves complex assessments of fact (see, to that effect, SGL Carbon
v Commission, paragraph 81, and Carbone‑Lorraine
v Commission, paragraph 34 above, paragraph 271).
84. 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 of the fine to be granted to the undertaking concerned. The first paragraph of point 23(b) of the notice provides for fine-reduction bands for the various categories of undertakings concerned, whilst the second paragraph of point 23(b) sets the criteria to be taken into account by the Commission in order to determine the level of reduction within those bands.
85. 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 83 above, paragraphs 81, 88 and 89, and Hoechst
v Commission, paragraph 83 above, paragraph 555).
Kone’s cooperation in establishing the infringement in Germany
86. Kone, which was the first undertaking to submit (on 12 February 2004) an application under the 2002 Leniency Notice in respect of the German cartel (recital 105 of the contested decision), was not granted immunity from fines under point 8 of the notice (recital 790 of the contested decision).
87. The Commission held, in recitals 783 to 786 of the contested decision, that point 8(a) of the 2002 Leniency Notice was not applicable since, acting on information provided by a third party, it had already carried out an inspection in Germany on 28 January 2004.
88. The application of point 8(b) of that notice was also precluded for the following reasons, set out in recitals 787 to 789 of the contested decision:
‘(787)The Commission will grant immunity under point 8(b) of the [2002] Leniency Notice if 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, which means the Commission did not have sufficient evidence before to find an infringement of Article 81 [EC] and no undertaking had been granted conditional immunity from fines under point 8(a).
(788)	Kone’s … [submission under the 2002 Leniency Notice] is ambiguous and unsupported by incriminating evidence other than [its] own written statements based on memory. It acknowledges that [ confidential ]. In this case, the Commission already possessed information on the suspected infringement from other sources such as third-party submissions and inspections. This information determined the main orientation of the case in the context of an administrative procedure launched upon the Commission’s own initiative. In such circumstances, therefore, an undertaking wishing to obtain immunity under point 8(b) of the [2002] Leniency Notice would have to provide the Commission with information which represents a very significant shortcut in its investigation.
(789)	Kone’s submission for Germany contains less precise descriptions of the cartel activities than its submissions for Belgium and Luxembourg and it is not supported by incriminating and documentary evidence (other than its own statements). Thus Kone cannot claim that its submissions for Belgium and Luxembourg on the one hand and Germany on the other hand were “of the same quality”.’
89. However, Kone was granted a 50% reduction of its fine under the first indent of point 23(b) of the 2002 Leniency Notice for its cooperation concerning the German cartel (recital 793 of the contested decision).
90. The applicants maintain, in the first place, that Kone met the conditions for immunity under point 8(b) of the 2002 Leniency Notice in respect of the infringement in Germany, since the Commission relied, in the contested decision, on Kone’s submissions of 12 and 18 February 2004 to prove all the constituent elements of the infringement. They stress that, at the time when Kone made its leniency application, the Commission did not yet have sufficient evidence to prove the infringement in Germany and that Kone was the first undertaking to provide information concerning that infringement.
91. The Court observes that one of the conditions for obtaining immunity under point 8(b) of the 2002 Leniency Notice is that the undertaking must be 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.
92. When Kone made its application in respect of Germany (12 February 2004), the Commission already suspected that there was a cartel in Germany in the elevator and escalator sector on the basis of information available to it at that time. It had, acting on information provided to it by a third-party informant, already carried out inspections on 28 January 2004 at the premises of ThyssenKrupp and some of its German subsidiaries (recital 104 of the contested decision).
93. Admittedly, it is not disputed that, at the time when Kone made its application under the 2002 Leniency Notice, the Commission did not have sufficient evidence to make a finding of infringement in Germany or that Kone was the first undertaking to make such an application in relation to that infringement (recital 105 of the contested decision).
94. However, contrary to the applicants’ contention, those circumstances do not suffice in themselves to found a claim for immunity from fines under point 8(b) of the 2002 Leniency Notice. It is the quality of the cooperation of an undertaking such as Kone which determines whether it may benefit from immunity from fines under that provision. It is not sufficient that Kone provided some information and material allowing the infringement to be successfully investigated. Although it is not necessary for the evidence provided to be sufficient to prove the infringement in its entirety or down to its every last detail, the evidence must none the less be sufficient in nature, precision and probative value to enable the Commission to find an infringement of Article 81 EC.
95. In view of the margin of assessment available to the Commission in evaluating the cooperation of an undertaking under the 2002 Leniency Notice, the Court must consider, in the present case, whether the Commission manifestly went beyond the bounds of that margin of assessment in holding that the evidence provided by Kone did not enable it to find an infringement of Article 81 EC in connection with the German cartel (see, to that effect, Hoechst
v Commission, paragraph 83 above, paragraph 555).
96. First, the evidence provided by Kone in the framework of its application under the 2002 Leniency Notice for Germany is included in its submission of 12 February 2004, completed and corrected by its submission of 18 February 2004. Two statements by managers of Kone (one containing a description of the cartel in the German elevator market [ confidential ] and the other containing a description of the cartel in the German escalator market [ confidential ] were attached to the submission of 12 February 2004.
97. The annexes to Kone’s submissions of 12 and 18 February 2004 include some documentary evidence. As well as documents drawn up from memory by managers at Kone for the purpose of its leniency application, which give the dates and places of certain meetings which took place in the framework of the cartel [ confidential ] and projects which were discussed there [ confidential ], Kone enclosed with its submission of 12 February 2004 a fax from Schindler [ confidential ] and undated lists of projects [ confidential ]. The submission of 18 February 2004 also included hotel bills [ confidential ].
98. Second, regarding the value of the evidence provided, it is to be noted, so far as the submission of 12 February 2004 is concerned, that Kone’s statements were drawn up from memory by its managers. It is therefore possible that they are not wholly accurate. Furthermore, Kone itself states in its submission of 18 February 2004 that the accuracy of certain of its submissions cannot be wholly guaranteed.
99. In any event, unilateral statements by an undertaking cannot suffice for a finding of infringement unless they are supported by precise and consistent documentary evidence. The Commission is required to set out in its decision sufficiently precise and consistent evidence to give grounds for a firm conviction that the alleged infringement took place (Joined Cases 29/83 and 30/83 CRAM and Rheinzink
v Commission [1984] ECR 1679, paragraph 20; judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 71; and Case T‑450/05 Peugeot and Peugeot Nederland
v Commission [2009] ECR II‑2533, paragraph 175).
100. It must be stated that the items of evidence accompanying the submissions of 12 and 18 February 2004 are of limited probative value in that either they were drawn up by Kone for the purposes of its application under the 2002 Leniency Notice and are not contemporaneous with the infringement [ confidential ] or they do not in themselves enable the Commission to find an infringement of Article 81 EC [ confidential ]. The lists of projects which were annexed to the submission of 12 February 2004 [ confidential ], which are in any event undated, have no intrinsic value in establishing that there was a cartel in Germany without the explanations provided by Kone in its submission, since they contain nothing to indicate that the projects mentioned were unlawfully allocated between competitors. The same is true of the hotel bills accompanying the submission of 18 February 2004 [ confidential ], which establish only that Kone’s managers were at a hotel at a given time and that a meeting room was reserved but contain nothing indicative of anti-competitive conduct in the elevator and escalator sector.
101. The only item of evidence accompanying Kone’s submissions which contains anything indicative of anti-competitive conduct is the fax from Schindler [ confidential ]. However, although the Commission referred to that fax in point 283 of the statement of objections, that item of evidence is of limited value in establishing the infringement in Germany, since it is not disputed that Schindler was no longer a member of the cartel at that time (see Article 1(2) of the contested decision).
102. It is apparent from the foregoing analysis that Kone’s unilateral statements in its submissions of 12 and 18 February 2004 were not supported by precise and consistent documentary evidence.
103. In those circumstances, even supposing that, contrary to the Commission’s contention in recital 788 of the contested decision, Kone’s submissions were not ambiguous and were supported by evidence, the Commission did not manifestly go beyond the bounds of its margin of assessment when it decided that those submissions were not sufficient for it to find an infringement of Article 81 EC in Germany. Accordingly, the Commission was fully entitled to refuse Kone immunity from fines under point 8(b) of the 2002 Leniency Notice.
104. That conclusion cannot be undermined either by (i) the fact that the contested decision includes numerous references to Kone’s submissions or (ii) the fact that the information provided by other participants or obtained during the inspections in March 2004, which was also referred to in that decision, corroborates the submissions previously put forward by Kone.
105. The fact that the contested decision contains references to Kone’s submissions in no way implies that those submissions were sufficient in nature, precision and probative value to enable the Commission to find an infringement in Germany. Nor does the fact that recitals 209 to 288 of the contested decision refer to other ‘corroborating’ evidence mean that Kone’s submissions of 12 and 18 February 2004 were of such nature, precision and probative value. Rather, the Commission was compelled to refer to other evidence in the contested decision, since it could not rely solely on Kone’s unilateral statements, which were not supported by precise and consistent documentary evidence, for the purpose of finding that infringement (see paragraph 99 above).
106. The applicants further submit that the evidence supplied by Kone concerning the German cartel was of the same quality as the information by virtue of which Kone was granted immunity under point 8(b) of the 2002 Leniency Notice for the infringements in Belgium and Luxembourg.
107. Without there being any need to rule on the admissibility of the applicants’ arguments, which refer in essence to documents annexed to the application, the Court finds, as was stated in paragraph 103 above, that the Commission was fully entitled to refuse to grant Kone immunity from fines under point 8(b) of the 2002 Leniency Notice. Furthermore, the applicants do not show that the Commission manifestly went beyond the bounds of its margin of assessment in granting Kone immunity in relation to Belgium and Luxembourg whilst refusing it in relation to Germany.
108. A comparison of Kone’s applications concerning, on the one hand, Belgium and Luxembourg and, on the other, Germany shows that the nature and precision of the information provided were different. First, Kone’s applications under the 2002 Leniency Notice for Belgium and Luxembourg were more detailed than its application for Germany as regards information on the meetings which had taken place in the framework of the cartel (names of the participants, dates, times, scope, agenda). Second, Kone substantiated its statements concerning the cartels in Belgium and Luxembourg with precise and consistent documentary evidence. Thus, for Belgium and Luxembourg, Kone provided full and detailed lists of projects which had been distributed to members of the cartel and which covered the entire period of the infringement in those countries as well as contemporaneous documents amounting to evidence of collusive behaviour.
109. It follows from the foregoing that all the applicants’ complaints concerning the Commission’s refusal to grant Kone immunity from fines under point 8(b) of the 2002 Leniency Notice must be rejected.
110. In the second place, the applicants submit that, in any event, Kone provided evidence which enabled the Commission to adopt a decision to carry out an investigation and that, accordingly, it should have been granted immunity under point 8(a) of the 2002 Leniency Notice.
111. In that regard, the Court observes that, under point 8(a) of the 2002 Leniency Notice, the Commission will grant immunity from fines to the undertaking which is the first to submit evidence which, in its view, may enable it to adopt a decision to carry out an investigation in connection with an alleged cartel affecting the Community. As the Commission points out, and as is clear from point 6 of the notice, the objective of that provision is to facilitate the detection of infringements of which the Commission is unaware, which would have remained secret in the absence of the evidence provided by the undertaking concerned. Thus, ‘point 8(a) of the Leniency Notice aims at rewarding contributions to detect the existence of a cartel rather than at rewarding support for additional measures in an ongoing investigation in [the] form of a more focused second inspection’ (recital 786 of the contested decision).
112. First, in this instance, it is clear that on 12 February 2004, when Kone submitted its application concerning Germany to the Commission, the Commission had already, on 28 January 2004, carried out inspections, in particular in Germany, in connection with a cartel concerning market sharing in the elevator and escalator sector, after it had received information from a third-party informant concerning the existence of a cartel in that sector (recitals 91, 104, 105 and 783 of the contested decision).
113. Since it was not Kone that enabled the Commission to detect the German cartel, Kone cannot claim to be entitled to immunity from fines under point 8(a) of the 2002 Leniency Notice. In that regard, Kone’s argument that it was entitled to immunity from fines because its application enabled the Commission successfully to carry out further inspections in Germany in March 2004 is irrelevant. Indeed, as the Commission points out (see paragraph 111 above), point 8(a) of the notice is not intended to ‘[reward] support for additional measures in an ongoing investigation in [the] form of a more focused second inspection’.
114. In any event, Kone never applied for immunity under point 8(a), as its application in respect of Germany was a supplement to its application under the 2002 Leniency Notice concerning Belgium and Luxembourg, forming an integral part of the latter application, and was expressly made under point 8(b) of the 2002 Leniency Notice. Furthermore, Kone does not dispute that it claimed immunity under point 8(a) of the notice, during meetings with the Commission, more than a year after submitting its application and about nine months after having been informed by the Commission, by letter of 29 June 2004, that its application did not meet the conditions of point 8(b) of the 2002 Leniency Notice.
115. Second, the Court rejects the applicants’ argument that Kone’s submissions of 12 and 18 February 2004 provided the Commission with information concerning a separate infringement distinct from the one which was the subject of the inspections in January 2004, namely a cartel in Germany in the elevator and escalator sector concerning projects valued at over EUR 1 million, and not, as the decisions ordering an investigation (‘the inspection decisions’) indicate, a cartel of at least European-wide scale involving the whole of the elevator and escalator market.
116. Admittedly, it is apparent from the inspection decisions that the Commission believed, at the time of their adoption, that the cartel concerning market sharing in the elevator and escalator sector extended at the least to each Member State of the European Union. It is also clear from the case-law that, as regards decisions ordering an investigation, the Commission must clearly indicate the presumed facts which it intends to investigate (see, to that effect, Joined Cases 46/87 and 227/88 Hoechst
v Commission [1989] ECR 2859, paragraph 41). However, it is not necessary for a decision ordering an investigation to delimit precisely the relevant market, to set out the exact legal nature of the presumed infringements and to indicate the period during which those infringements were committed (see, to that effect, Case 85/87 Dow Benelux
v Commission
[1989] ECR 3137, paragraph 10).
117. The fact remains that when Kone submitted its application to the Commission in February 2004, the Commission had already received information about a market-sharing cartel in the elevator and escalator sector ‘affecting the Community’ within the meaning of point 8(a) of the 2002 Leniency Notice. Furthermore, the inspection decisions clearly indicate that the inspections related specifically to the activities of the undertakings concerned on both the potential market for the sale and installation of elevators and escalators and the potential after-sales services and maintenance market and that the Commission had been informed that managers of the four members of the alleged cartel met annually in order to determine the shares of each cartel member at the very least in each Member State of the European Union. On the basis of the information in its possession, the Commission had as early as January 2004 taken the view that the German market was affected by that cartel, which prompted it to organise inspections in Germany on 28 January 2004. In that regard, Kone’s assertion that the premises of ThyssenKrupp in Germany were inspected solely because ThyssenKrupp had its headquarters in Germany is contradicted by the fact that, on 29 January 2004, the Commission also carried out inspections at the premises of subsidiaries of the ThyssenKrupp group active on the German market (recital 104 of the contested decision).
118. In those circumstances, the applicants cannot maintain that the infringement which gave rise to the inspections of March 2004 in Germany is a different infringement from the one which was the subject of inspections in January 2004.
119. It is clear from all the foregoing that, when Kone submitted its application under the 2002 Leniency Notice to the Commission, it was no longer entitled to claim immunity from fines under point 8(a) of the notice in respect of its participation in the German cartel.
120. In the third place, the applicants maintain that the Commission should have reduced Kone’s fine to zero pursuant to the last paragraph of point 23(b) of the 2002 Leniency Notice, given that none of the facts pertaining to the German cartel were known to the Commission before Kone submitted its leniency application.
121. That provision states that ‘if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence’.
122. In the present case, it is not in dispute that, on 12 February 2004, when Kone submitted its application concerning Germany to the Commission the Commission had already received information about a market-sharing cartel in the elevator and escalator sector in the European Union and that the German market was affected by the cartel. That is why the Commission had, on the basis of information already in its possession, organised inspections in Germany, approximately two weeks before Kone’s application reached it.
123. Even though Kone’s cooperation represented significant added value with respect to the evidence already in the Commission’s possession, which led the Commission to grant Kone the maximum reduction of 50% of the fine provided for in the first indent of point 23(b) of the 2002 Leniency Notice (recitals 792 and 793 of the contested decision), the Commission was entitled to hold, in recital 791 of the contested decision, that Kone was not eligible for a further reduction of the fine under the last paragraph of point 23(b) of the notice.
124. In that regard, Kone’s application comprised unilateral statements drawn up from memory, which were not accompanied by precise and consistent documentary evidence of the infringement (see paragraphs 96 to 109 above). In those circumstances, Kone’s application concerning Germany did not contain evidence having a direct bearing on either the gravity or duration of the infringement but consisted essentially of statements that needed to be corroborated by other evidence which the Commission subsequently gathered in the course of its investigation.
125. The complaint concerning the failure to apply the last paragraph of point 23(b) of the 2002 Leniency Notice must thus also be rejected.
126. In the fourth place, the applicants argue that, by denying Kone immunity under point 8 of the 2002 Leniency Notice without informing Kone promptly that that immunity was no longer available, the Commission breached Kone’s legitimate expectation. The right to be informed is a fundamental procedural safeguard of the right not to incriminate oneself, which is confirmed by the fact that an applicant is entitled, under point 17 of the 2002 Leniency Notice, to withdraw an application and the evidence disclosed in support thereof when it has been informed by the Commission that it cannot be granted immunity.
127. The Court observes that, as is stated in point 29 of the 2002 Leniency Notice, the notice creates legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to the Commission. In view of the legitimate expectation which undertakings intending to cooperate with the Commission were entitled to derive from the notice, the Commission was therefore obliged to adhere to it when it assessed Kone’s cooperation for the purpose of determining the fine to be imposed on it (see, to that effect, Case T‑9/99 HFB and Others
v Commission [2002] ECR II‑1487, paragraph 608, and Case T‑26/02 Daiichi Pharmaceutical
v Commission [2006] ECR II‑713, paragraph 147).
128. In this instance, with regard to the infringement in Germany, Kone submitted an application to the Commission on 12 February 2004, which was supplemented on 18 February 2004. It is also established that, on 29 June 2004, the Commission rejected Kone’s application for immunity, informing it that the conditions laid down in poin t 8(b) of the 2002 Leniency Notice were not met.
129. Although, under point 12 of the 2002 Leniency Notice, ‘the undertaking will be immediately informed that immunity from fines is not available for the suspected infringement’ if it becomes apparent that the requirements for such immunity are not met, Kone could not, on the basis of the period of time between its application and the decision of 29 June 2004 refusing it immunity, entertain a legitimate expectation that it would be exempted from any fine.
130. First, it is clear from point 15 of the 2002 Leniency Notice that, if the conditions of point 8(a) or (b) are met, ‘[the Commission] will grant the undertaking [concerned] conditional immunity from fines in writing’. It follows that an economic operator cannot, as a rule, base a legitimate expectation that immunity from fines will be granted merely on mere silence on the part of the Commission.
131. Second and in any event, it is clear from the analysis in paragraphs 96 to 119 above that Kone could not expect to benefit, in this instance, from immunity from fines under the 2002 Leniency Notice, since it should have known that neither the conditions of point 8(a) nor those of point 8(b) of the notice were met – particularly since, as stated in paragraph 114 above, Kone does not deny that it claimed immunity under point 8(a) of the notice only about nine months after its application for immunity under point 8(b) was rejected.
132. Last, the applicants cannot maintain that the Commission’s attitude affected Kone’s rights under point 17 of the 2002 Leniency Notice. There was nothing to prevent Kone from withdrawing its application under that notice and/or the evidence which it had disclosed when the Commission informed it of its decision not to grant it immunity from fines.
133. The complaint alleging infringement of the principle of the protection of legitimate expectations must therefore also be rejected.
134. In the fifth place, the applicants claim that the Commission’s refusal to grant Kone immunity under point 8(a) of the 2002 Leniency Notice is discriminatory. They argue that, before Kone submitted its application for immunity, the Commission had no more indications of a cartel in Germany than it had of a cartel in the Netherlands before Otis submitted its application for immunity. The inspections carried out at ThyssenKrupp’s premises in January 2004 took place because ThyssenKrupp had its headquarters in Germany and not because the Commission was investigating a cartel in Germany. Thus, if ThyssenKrupp’s headquarters had been in any other Member State, point 8(a) of the 2002 Leniency Notice could have been applied to Kone, because no other inspection would already have been carried out in Germany at the time of its application for immunity.
135. It should be observed 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 (see Krupp Thyssen Stainless and Acciai speciali Terni
v Commission, paragraph 68 above, paragraph 237, and Case T‑31/99 ABB Asea Brown Boveri v Commission
[2002] ECR II‑1881, paragraph 240 and the case-law cited).
136. However, the situation of Otis in the Netherlands, when it submitted its leniency application in March 2004 (recital 127 of the contested decision), was not comparable to that of Kone in Germany at the time when Kone made its leniency application on 12 February 2004 (recital 105 of the contested decision).
137. The Commission had not included the Netherlands either in its first round of inspections in January 2004 or in its second round of inspections in March 2004. The first inspections in the Netherlands did not take place until 28 April 2004 and were triggered by Otis’ application for immunity in March 2004 (recital 837 of the contested decision).
138. By contrast, when Kone made its application concerning Germany on 12 February 2004, the Commission had already carried out, on 28 January 2004, inspections in Germany concerning a market-sharing cartel in the elevator and escalator sector (recitals 104, 105 and 783 of the contested decision).
139. Finally, as mentioned in paragraph 117 above, and as is apparent from the file, the Commission’s inspections in Germany on 28 January 2004 took place not only at the headquarters of TKAG and TKE in Düsseldorf, but also at two German subsidiaries, namely TKA in Stuttgart and ThyssenKrupp Aufzug AG in Essen (recital 104 of the contested decision). In view of the latter fact, the applicants have no grounds for maintaining that the inspections were carried out in Germany solely because ThyssenKrupp had its headquarters there.
140. In those circumstances, since the situations of Kone and Otis were not comparable, the Commission did not infringe the principle of equal treatment in refusing Kone immunity from fines under point 8(a) of the 2002 Leniency Notice in respect of its cooperation in establishing the infringement in Germany.
141. It follows from all the foregoing that Kone’s complaints concerning the way in which the 2002 Leniency Notice was applied to its cooperation in establishing the infringement in Germany must be rejected in their entirety.
142. In the sixth place, the applicants submit that the Commission breached Kone’s rights of defence in refusing it access, during the administrative procedure, to various documents which could have been useful for its defence.
143. It is settled case-law that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be complied with even if the proceedings in question are administrative proceedings (see Papierfabrik August Koehler and Others v Commission, paragraph 31 above, paragraph 34, and Prym and Prym Consumer
v Commission, paragraph 32 above, paragraph 26 and the case-law cited).
144. According to the case-law, access to the file in competition cases is intended in particular to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission’s file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections. Access to the file is thus one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard can be exercised effectively (see, to that effect, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others
v Commission [2004] ECR I‑123, paragraph 68; see also Case T‑38/02 Groupe Danone
v Commission
[2005] ECR II‑4407, paragraph 33 and the case-law cited).
145. The Commission is thus under a duty to make available to the undertakings involved in proceedings under Article 81(1) EC all documents, incriminating or exculpatory, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the institution or other confidential information are involved (see, to that effect, Aalborg Portland and Others
v Commission, paragraph 144 above, paragraph 68, and Groupe Danone v Commission, paragraph 144 above, paragraph 34).
146. It must also be recalled that the mere failure to disclose an incriminating document constitutes a breach of the rights of the defence only if the undertaking concerned is able to show that the Commission relied on that document to support its objection concerning the existence of an infringement and that the objection could be proved only by reference to that document (see Case 107/82 AEG‑Telefunken v Commission [1983] ECR 3151, paragraphs 24 to 30; Case 322/81 Michelin v Commission
[1983] ECR 3461, paragraphs 7 to 9; and SGL Carbon
v Commission, paragraph 83 above, paragraph 97).
147. As regards, however, failure to disclose an exculpatory document, it is settled case-law that the undertaking concerned need establish only that the non-disclosure was able to influence, to its detriment, the course of the procedure and the content of the Commission’s decision. It is thus sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to put forward evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in any decision, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine (see Aalborg Portland and Others
v Commission, paragraph 144 above, paragraphs 74 and 75 and the case-law cited).
148. First, the applicants submit that the Commission relied, in the contested decision, on particular documents but did not give Kone an opportunity to review or comment on them and did not refer to those documents in the statement of objections. The applicants refer in that regard to the documents mentioned in footnote 927 to recital 783 of the contested decision.
149. The Court notes that the documents to which the applicants refer, which are documents which were seized in Germany at ThyssenKrupp during the inspections of 28 January 2004, were not used by the Commission for the finding of infringement in Germany. They were mentioned only in footnote 927 to recital 783 of the contested decision, which relates, in the part dealing with the fine, to the Commission’s refusal to grant Kone immunity from fines under point 8(a) of the 2002 Leniency Notice.
150. In the contested decision, the principal basis for the Commission’s refusal is not the documents cited in footnote 927, but rather the finding that the Commission had, acting on information provided to it by a third-party informant before Kone’s application of 12 February 2004, already arranged to carry out inspections in Germany on 28 January 2004 (recital 783 of the contested decision). This complaint must accordingly be rejected.
151. Second, the applicants submit that Kone’s rights of defence were infringed since it did not have access during the administrative procedure to a number of documents, or to parts of documents regarded by the Commission as confidential, which could have helped it to establish that its application of 12 February 2004 met the conditions of point 8(a) of the 2002 Leniency Notice. The documents concerned are a more complete non-confidential version of the informant’s statement, a limited number of documents found at ThyssenKrupp’s premises during the inspections in Germany on 28 January 2004 and a briefing note for the March 2004 inspections.
152. In the applicants’ submission, if Kone had been given access to those documents, it could have established, during the administrative procedure, that the Commission did not – once Kone’s application of 12 February 2004 is disregarded – have sufficient evidence of an infringement in Germany to order a second round of inspections there in March 2004. Kone would thus have been able to establish that its application of 12 February 2004 was the basis for the inspections carried out in Germany in March 2004, with the result that it would have been entitled to immunity from fines under point 8(a) of the 2002 Leniency Notice. Kone would thus also have been able to show that the reasons advanced by the Commission for its refusal to grant access were unjustified.
153. It is therefore necessary to consider whether, in view of the case-law cited in paragraphs 143 to 147 above, the applicants have established that the non-disclosure of that material was able to influence, to their detriment, the course of the administrative procedure and the content of the contested decision.
154. It is clear from the analysis in paragraphs 110 to 119 above that the Commission was fully entitled to hold, in recitals 783 to 786 of the contested decision, that, at the time when Kone submitted its application concerning Germany to it on 12 February 2004, and in so far as the application could be regarded as being based on point 8(a) of the 2002 Leniency Notice, Kone was no longer able to claim immunity from fines under that provision in respect of its participation in the German cartel. Indeed, when Kone submitted its leniency application to the Commission, the latter had already – on 28 January 2004 – carried out inspections in Germany concerning a market-sharing cartel in the elevator and escalator sector (recitals 104, 105 and 783 of the contested decision), having learnt of the existence of a cartel in that sector from a third-party informant.
155. Accordingly, the applicants’ complaint alleging that their rights of defence were infringed because they were refused access, during the administrative procedure, to the material referred to in paragraph 151 above cannot be accepted. Since Kone was not the first undertaking to submit evidence to the Commission which enabled it to adopt a decision to carry out an investigation under Article 14(3) of Regulation No 17, any additional arguments which Kone might have developed during the administrative procedure had it had had access to the material referred to in paragraph 151 above could not have resulted in the Commission taking a different stance with regard to its leniency application. Furthermore, even supposing that the applicants had managed to show that the documents referred to in paragraph 151 above, to which they had been refused access, would have helped them to establish that their leniency application of 12 February 2004 met the conditions of point 8(a) of the 2002 Leniency Notice, the fact remains that they did not even ask the Commission to disclose all the documents seized during the inspections at ThyssenKrupp on 28 January 2004: the applicants expressly acknowledged that fact at the hearing in response to a question put by the Court, explaining that, at that time, Kone was not contemplating claiming immunity pursuant to point 8(a) of the 2002 Leniency Notice.
156. Accordingly, even supposing that the Commission acted improperly in failing to disclose to Kone the material referred to in paragraph 151 above – which is not established given the Commission’s contention that such material is confidential or comprises Commission internal documents (see paragraph 145 above) – and that Kone should therefore have been given access to all the documents requested, Kone would not have been in a position to establish that the Commission did not have, prior to Kone’s leniency application, sufficient indicia pointing to the existence of an infringement in Germany to order a second round of inspections there in March 2004. Since Kone did not request disclosure of all the documents seized during the inspections at ThyssenKrupp on 28 January 2004, it would not, in any event, have been in a position to establish that the Commission did not have sufficient indicia to carry out a second round of inspections in Germany. The applicants’ complaint therefore cannot succeed.
157. In those circumstances, nor can the Court uphold the applicants’ request for a measure of organisation of procedure ordering the Commission to produce the documents referred to in paragraph 151 above.
158. The plea alleging an infringement of the rights of the defence must therefore be rejected.
159. Accordingly, the Court must reject all Kone’s complaints concerning the application of the 2002 Leniency Notice to its cooperation in establishing the infringement in Germany.
Kone’s cooperation in establishing the infringement in the Netherlands
160. Kone, which was the third undertaking to make an application under the 2002 Leniency Notice in respect of the Netherlands cartel (recitals 130 and 846 of the contested decision), was not granted any reduction of its fine under the notice so far as that cartel was concerned (recital 850 of the contested decision). The Commission sets out the following explanation in that connection, in recitals 848 and 849 of the contested decision:
‘(848)Kone’s submission concerning the Netherlands [ confidential ].
(849)	The character of Kone’s … submission [under the 2002 Leniency Notice] remains ambiguous as to the extent of its involvement in the cartel activities and the anti-competitive purpose of the discussions. [ confidential ]. Kone further insists that certain decisions were driven by legitimate business reasons. Considering this ambiguity and the fact that at the time of Kone’s submission the Commission already possessed a solid body of evidence [ confidential ], Kone’s submission concerning the Netherlands did not provide the Commission with any new substantial evidence, further details or information that would have generally strengthened the Commission’s ability to prove the infringement. Consequently, the requirements of point 21 of the [2002] Leniency Notice are not satisfied.’
161. In the first place, the applicants maintain that the Commission misapplied point 21 of the 2002 Leniency Notice in its assessment of Kone’s cooperation. Kone’s participation in the infringement ended when it made its leniency application and provided the Commission with evidence of the suspected infringement which added significant value with respect to the evidence already in the Commission’s possession.
162. The Court recalls that, in view of the margin of assessment available to the Commission in evaluating the cooperation of an undertaking under the 2002 Leniency Notice, and in particular in determining whether evidence represents significant added value within the meaning of point 21 of the notice, it is only where the Commission manifestly goes beyond the bounds of that margin that it may be criticised by the General Court (see, to that effect, Hoechst
v Commission, paragraph 83 above, paragraph 555).
163. Consideration must therefore be given to whether the Commission manifestly went beyond the bounds of its margin of assessment in finding that the evidence provided by Kone did not represent significant added value with respect to the evidence already in the Commission’s possession at the time when Kone made its leniency application.
164. In that regard, it is clear from point 7 of the 2002 Leniency Notice that ‘cooperation by one or more undertakings may justify a reduction of a fine by the Commission’ and that ‘any reduction of a fine must reflect an undertaking’s actual contribution in terms of quality and timing, to the Commission’s establishment of the infringement’. Furthermore, under point 22 of the notice ‘[t]he 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’. Point 22 also states that ‘[i]n 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’ and that ‘[s]imilarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance’. Finally, point 24 of the notice states that ‘[a]n undertaking wishing to benefit from a reduction of a fine should provide the Commission with evidence of the cartel in question’.
165. First, wit h regard to the very nature of the evidence provided, Kone did not provide the Commission with contemporaneous evidence. In its application concerning the Netherlands, Kone merely advanced explanations and observations concerning contacts and discussions which had taken place between Kone, Schindler, Otis, ThyssenKrupp and MEE in the Netherlands (collectively, ‘the group of five’), whilst denying that they were anti-competitive. [ confidential ].
166. Second, as regards the level of precision of the evidence provided, the applicants submit that Kone supplied detailed information [ confidential ]. Kone claims in that regard to have provided information about the [ confidential ] project, which was used to establish the date of commencement of its involvement in the Netherlands cartel as well as that of Schindler. Kone also claims that it provided information which was not used by the Commission in the contested decision.
167. With regard to [ confidential ], the applicants maintain that they provided the Commission with information representing significant added value [ confidential ].
168. In that regard, the Court notes that the information provided by Kone in its application under the 2002 Leniency Notice denied that the discussions that took place among the group of five had an anti-competitive purpose. In particular, Kone maintained in its application that [ confidential ]. In addition, Kone stated in its leniency application that, during the meetings attended by the group of five, the participants [ confidential ].
169. In those circumstances, the Commission was fully entitled to hold, in recital 849 of the contested decision, that the information referred to in paragraph 167 above and provided by Kone in its leniency submission was ambiguous or that, in other words, it was not sufficiently precise to represent significant added value within the meaning of point 21 of the 2002 Leniency Notice. When an undertaking which does not, in the framework of its leniency application, provide the Commission with contemporaneous evidence informs the Commission of certain matters previously unknown to it, those matters cannot be regarded as significantly strengthening the Commission’s ability to prove the infringement unless the undertaking concerned shows the connection between those matters and the cartel’s existence, since the undertaking’s contribution has actually to strengthen the Commission’s ability to prove the infringement. In the present case, as the Commission has pointed out, Kone’s submission concerning the Netherlands tended to reduce the probative value of the evidence which the Commission already had, since Kone denied, inter alia, that the discussions between competitors had an anti-competitive purpose.
170. Furthermore, with regard first of all to the ‘information’ provided [ confidential ], the Court finds that Kone does not explain, in its leniency submission, how projects covered by the cartel were identified and provides no information on any allocation mechanism agreed upon between the cartel members in the Netherlands. [ confidential ]. In those circumstances, the ‘information’ provided by Kone [ confidential ] cannot be regarded as meeting the conditions of point 21 of the 2002 Leniency Notice. The fact that the Commission included, in recital 430 of the contested decision, an extract from Kone’s submission to support its assertion that the group of five was seeking to maintain price stability on the market is irrelevant in this regard.
171. With regard, next, to the General Committee (‘Commissie Algemeen’) (recitals 391 and 398 of the contested decision), Kone’s submission contained information [ confidential ]. However, as has been stated in paragraph 168 above, Kone denied their anti-competitive object, stating that [ confidential ]. No significant added value can therefore be attributed to the observations made by Kone in its leniency submission in relation to the General Committee. In any event, the Commission was already aware of the meetings of the General Committee at the point when Kone made its leniency application (19 July 2004), since the fact that those meetings took place was mentioned in ThyssenKrupp’s application of April 2004 and in its supplemental submission of 11 May 2004 and is shown directly by the documents seized during the inspection at ThyssenKrupp on 28 April 2004 (recital 398 of the contested decision and the documents cited in footnotes 577 and 578).
172. With regard, last, to ‘cluster’ contracts, they were mentioned in the contested decision (recitals 457 to 463) since they required a further project allocation mechanism to be put in place. In its application under the 2002 Leniency Notice, Kone merely informed the Commission [ confidential ]. No significant added value can therefore be attributed to the observations relating to cluster contracts made by Kone in its leniency submission.
173. With regard to the ‘information’ provided by Kone concerning the implementation of the cartel, [ confidential ] the Court finds that Kone’s application of 19 July 2004 does include information [ confidential ]. However, as stated in paragraph 168 above, Kone has sought to show that those events could be explained by legitimate business reasons.
174. As has been stated in paragraph 169 above, when an undertaking which does not, in the framework of its leniency application, provide the Commission with contemporaneous evidence informs the Commission of certain matters previously unknown to it, that information cannot be regarded as significantly strengthening the Commission’s ability to prove an infringement unless the undertaking concerned shows the connection between those matters and the cartel’s existence.
175. In the present case, because it is ambiguous, the information which was provided by Kone in its application concerning the Netherlands served only to confirm the dates of the meetings and the projects which were discussed there – matters which could be regarded as integral to the infringement only as a result of the statements and evidence submitted by Otis and ThyssenKrupp or obtained independently by the Commission by means of an in-depth investigation. In those circumstances, the Commission was fully entitled to hold that the information relating to the projects discussed among competitors and at meetings between competitors, as referred to in Kone’s application, did not represent significant added value within the meaning of point 21 of the 2002 Leniency Notice.
176. In that regard, the applicants have stressed that the information concerning the [ confidential ] project which Kone submitted to the Commission was used in the contested decision (recitals 519 and 523 of the contested decision) in order to establish 1 June 1999 as the date of commencement of Kone’s and Schindler’s involvement in the collusive activities in the Netherlands. However, as stated in paragraph 175 above, the fact remains that that information served only to confirm the date of the meeting and the project which was discussed there, whilst Kone did not acknowledge the anti-competitive nature of the meeting concerning that project. In that regard, as observed in paragraph 164 above, any reduction of a fine by the Commission must reflect an undertaking’s actual contribution to the Commission’s establishment of the infringement. In those circumstances, the information concerning the [ confidential ] project to which the applicants refer and which was contained in Kone’s submission cannot be regarded as representing significant added value within the meaning of point 21 of the 2002 Leniency Notice.
177. As regards the information provided by Kone to the Commission but not mentioned in the contested decision, the fact that it was not used as such for the purpose of establishing the Netherlands cartel is an indication that that information did not strengthen the Commission’s ability to establish the infringement and therefore had no significant added value within the meaning of point 21 of the 2002 Leniency Notice. With regard to the [ confidential ] project – specifically mentioned by Kone – which was referred to in the statement of objections but of which no description was given in the contested decision, apart from the fact that the information provided by Kone concerning that project did not in any event represent significant added value (see paragraph 176 above), the Court concurs with the Commission that, although the information in the Commission’s possession clearly indicated collusion, it did not permit any reliable conclusion as to the content of the collusion, which is why the Commission did not mention that project in the list of examples of project allocation in Section 12.2.4 of the contested decision.
178. Third, the applicants cannot base an argument on the number of references which the contested decision makes to Kone’s 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 Kone in its leniency application, does not establish that Kone’s information represented significant added value with respect to the evidence already in the Commission’s possession at that time.
179. Fourth, even though, as the applicants maintain, it cannot immediately be precluded that information provided by a third or fourth applicant under the 2002 Leniency Notice may add significant value, the Court finds that, in this instance, having regard to the nature and degree of precision of the evidence provided by Kone, the Commission did not on any view manifestly go beyond the bounds of its margin of assessment in concluding that that evidence did not represent significant added value within the meaning of point 21 of the 2002 Leniency Notice. In fact it is apparent from the foregoing analysis that, even supposing that the information provided in Kone’s leniency submission could have been of some added value in that it brought to the Commission’s knowledge matters previously unknown to it, those matters cannot be regarded as having significantly strengthened the Commission’s ability to prove the infringement in question, regard being had to the inaccuracies in that submission concerning the anti-competitive nature of the discussions between the competitors.
180. It follows from all the foregoing that the complaint alleging infringement of point 21 of the 2002 Leniency Notice must be rejected.
181. In the second place, the applicants submit that Kone cooperated fully and on a continuous basis and that, throughout the investigation, it provided the Commission with all the information available to it. Thus, in their submission, Kone acknowledged that it had participated in the Netherlands cartel as soon as it became aware, following its internal audit, of the participation of its Netherlands subsidiary.
182. However, it is apparent from the foregoing analysis that the evidence submitted by Kone did not represent significant added value within the meaning of point 21 of the 2002 Leniency Notice. In those circumstances, in accordance with that provision, the Commission was fully entitled to hold that Kone was not eligible for a reduction of the fine under the notice.
183. Whilst it is true that under the second paragraph of point 23(b) of the 2002 Leniency Notice, the Commission may take into account the extent and continuity of the cooperation when it determines, within the relevant band, the reduction of the fine to be granted to an undertaking which has submitted evidence representing significant added value within the meaning of point 21 of the notice, the applicants’ reference in the present case to the extent and continuity of Kone’s cooperation is irrelevant since the conditions of point 21 of the notice were not in any event fulfilled.
184. The complaint concerning the extent and continuity of Kone’s cooperation must therefore be rejected.
185. In the third place, the applicants claim that by refusing to allow Kone to take advantage of Section B of the 2002 Leniency Notice, the Commission breached the principle of the protection of legitimate expectations. Applicants for immunity under the notice can expect that if they comply with the conditions laid down in the notice they will obtain immunity or a reduction of the fine. Kone’s application in respect of the Netherlands fulfilled the conditions of the notice.
186. As is stated in point 29 of the 2002 Leniency Notice, the notice creates legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to the Commission. In view of the legitimate expectation which undertakings intending to cooperate with the Commission were entitled to derive from the notice, the Commission was therefore obliged to adhere to it when it assessed Kone’s cooperation for the purpose of determining the fine to be imposed on it (see, to that effect, HFB and Others v Commission, paragraph 127 above, paragraph 608, and Daiichi Pharmaceutical v Commission, paragraph 127 above, paragraph 147).
187. However, since the applicants have not established that the Commission infringed the provisions of the 2002 Leniency Notice when it assessed Kone’s cooperation, the complaint concerning breach of the principle of the protection of legitimate expectations must also be rejected.
188. In the fourth place, the applicants submit that the Commission’s refusal to grant any leniency to Kone under the 2002 Leniency Notice amounts to a breach of the principle of equal treatment.
189. In their submission, Kone’s application for leniency is no more ambiguous than that of Otis or ThyssenKrupp. First, Otis denied that there was a structural cartel and maintained that the infringement was time-barred. Second, ThyssenKrupp stated in its application for leniency that meetings took place at irregular intervals and that there were considerable periods when no meetings took place. ThyssenKrupp further stated that the infringement had concerned a small number of projects. Third, Kone’s leniency application was submitted two and a half months after the Commission’s inspections in the Netherlands, that is to say, relatively early in the procedure. In any event, the time when the application for immunity is submitted is irrelevant, provided that the application adds significant value. In relation to the German cartel, Schindler was granted a 15% reduction in respect of an application made almost eight months after the inspections in Germany and three months after the Commission sent requests for information to the participants in the German infringement (recitals 110, 112 and 856 of the contested decision).
190. The applicants claim that Kone’s position should be compared with ThyssenKrupp’s position in Belgium. ThyssenKrupp was granted a 20% reduction of its fine under the 2002 Leniency Notice (recitals 769 to 773 of the contested decision). However, ThyssenKrupp was the third undertaking to submit a leniency application for Belgium; its application was confined to statements (and not documentary evidence) which corroborated evidence already in the Commission’s possession. Moreover, at the time when that application was submitted, the Commission already had much more evidence in its possession concerning the Belgian cartel than it had concerning the Netherlands cartel at the time when Kone submitted its application for immunity. The refusal to grant Kone a reduction in relation to the Netherlands cartel is therefore discriminatory.
191. As has been observed in paragraph 135 above, it is settled case-law that the Commission is not entitled, in its appraisal of the cooperation provided by members of a cartel, to disregard the principle of equal treatment.
192. With regard, first, to the alleged breach of the principle of equal treatment in the appraisal of the cooperation provided by members of the Netherlands cartel, the Court finds that Otis was granted immunity from fines because it was, under point 8(a) of the 2002 Leniency Notice, the first undertaking to have submitted evidence to the Commission which enabled it to adopt a decision to carry out an investigation (recital 837 of the contested decision). Otis’ situation cannot therefore be compared to that of Kone, which submitted its leniency application in respect of the Netherlands at a time when the Commission had already carried out inspections there (recital 846 of the contested decision).
193. For its part, ThyssenKrupp was the second undertaking to have made an application under the 2002 Leniency Notice in respect of the Netherlands, submitted on the day of the inspections carried out by the Commission in that Member State (28 April 2004) (recitals 128, 129 and 840 of the contested decision). It obtained a 40% reduction of its fine under the first indent of point 23(b) of the 2002 Leniency Notice since it was the first undertaking to meet point 21 of the notice by having provided the Commission with evidence representing significant added value (recital 844 of the contested decision). The inevitable conclusion is that, following the first indent of point 23(b) of the notice, Kone could not have benefited from a reduction under that provision, since the reduction of the fine provided for is reserved to a single undertaking – in this case ThyssenKrupp whose cooperation pre-dated that of Kone.
194. Independently of the finding made in the preceding paragraph, Kone’s cooperation cannot be regarded as comparable to that of ThyssenKrupp. It is not disputed that ThyssenKrupp’s leniency application contained one new contemporaneous piece of evidence, which assisted the Commission in establishing the implementation of the collusion (recital 842 of the contested decision). By contrast, Kone did not provide any contemporaneous evidence. Moreover, it is apparent from ThyssenKrupp’s statements of April, May and October 2004 that, unlike Kone, ThyssenKrupp never sought to deny that there was a cartel in the Netherlands or to sow doubt about whether such a cartel existed. Lastly, Kone submitted its application only on 19 July 2004 (recital 130 of the contested decision) whilst ThyssenKrupp had already submitted its application in April 2004 (recital 129 of the contested decision). The date on which an application under the 2002 Leniency Notice is submitted is relevant for the appraisal of the added value of evidence provided, since that appraisal is carried out by reference to the evidence already in the Commission’s possession (points 7 and 21 of the 2002 Leniency Notice).
195. In those circumstances, since the situations of Kone, on the one hand, and of Otis and ThyssenKrupp, on the other, were not comparable, the Commission did not breach the principle of equal treatment when it refused to grant Kone a reduction of the fine in respect of its cooperation in establishing the Netherlands infringement.
196. Second, with regard to the treatment of ThyssenKrupp for its cooperation in establishing the Belgian cartel, the assessment of what constitutes significant added value by definition entails an analysis specific to the context of all the evidence available to the Commission in connection with a particular infringement; accordingly, information connected with separate infringements, in this instance the infringements in Belgium and the Netherlands, is not comparable.
197. In any event, as regards the Belgian infringement, Kone does not dispute that ThyssenKrupp’s leniency application corroborated evidence already in the Commission’s possession. By contrast, as regards the Netherlands infringement, it is clear from paragraphs 165 to 180 above that Kone’s leniency application did not represent significant added value within the meaning of point 21 of the 2002 Leniency Notice. Since the situations of the various undertakings are not comparable, the Commission did not breach the principle of equal treatment when it refused Kone the benefit of a reduction of its fine in respect of its cooperation in establishing the Netherlands cartel.
198. It is apparent from all the foregoing that all Kone’s complaints relating to the way in which the 2002 Leniency Notice was applied to its cooperation in establishing the Netherlands infringement must be rejected.
The plea alleging infringement of the principles of the protection of legitimate expectations and of equal treatment in the determination of the reduction of the fines granted in respect of Kone’s cooperation during the administrative procedure
Preliminary observations
199. The Commission stated in point 614 of the statement of objections that ‘it [was considering] whether to grant any reduction [of 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 suppl ementing, the facts found by the Commission’.
200. 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’.
201. 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 of 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).
202. It is necessary to consider in turn, first of all, Kone’s complaints relating to the alleged illegality of the level of the reduction of the fine granted for not contesting the facts in relation to the infringement in Germany, next, Kone’s complaints concerning the Commission’s refusal to grant a further reduction of the fine in respect of the provision of additional information or further clarifications with regard to the German infringement and, lastly, the arguments concerning the Commission’s refusal to grant Kone a reduction of the fine on account of its alleged cooperation outside the 2002 Leniency Notice with regard to the establishment of the Netherlands infringement.
The level of reduction of the fine for not contesting the facts relating to the infringement in Germany
203. The applicants submit that they can expect a reduction of at least 10% of the fine in respect of their cooperation outside the 2002 Leniency Notice in establishing the German cartel. The Commission actually created a legitimate expectation to that effect in point 614 of the statement of objections. In departing 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 of the fine which would have been imposed on it, in accordance with the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the 1996 Leniency Notice’), the Commission failed to meet the applicants’ legitimate expectations.
204. It should be recalled, as a preliminary point, that a reduction of the fine on grounds of cooperation during the administrative procedure is justified only if the conduct of the undertaking in question enabled the Commission to establish the existence of an 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 68 above, paragraph 270; and Groupe Danone
v Commission, paragraph 144 above, paragraph 449). 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 and bringing them to an end (Case T‑352/94 Mo och Domsjö v Commission [1998] ECR II‑1989, paragraph 395, and SCA Holding
v Commission, paragraph 157).
205. It is true that the 2002 Leniency Notice, unlike the 1996 Leniency Notice, does not provide for any reduction of fines for undertakings which do not substantially contest the facts on which the Commission bases its allegations in the statement of objections. However, the Commission acknowledged, in recital 758 of the contested decision, that point 614 of the statement of objections created for the undertakings a legitimate expectation that, if the facts were not contested, that would entail a reduction of the fine outside the 2002 Leniency Notice; it accordingly decided to interpret that point in favour of the undertakings. 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’.
206. The right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is clear that the EU authorities have given him precise assurances, thereby causing him to entertain justified expectations (Joined Cases C-37/02 and C-38/02 Di Lenardo and Dilexport [2004] ECR I-6911, paragraph 70; Case T‑203/96 Embassy Limousines & Services v Parliament [1998] ECR II‑4239, paragraph 74; and judgment of 15 November 2007 in Case T‑71/06 Enercon
v OHIM (Wind Turbine), not published in the ECR, paragraph 36).
207. However, a person may not plead infringement of the principle of the protection of legitimate expectations unless he has been given precise assurances by the authorities (Case T-571/93 Lefebvre and Others v Commission [1995] ECR II‑2379, paragraph 72, and Case T-113/96 Dubois et Fils
v Council and Commission
[1998] ECR II-125, paragraph 68). Information that is precise, unconditional and consistent and comes from an authorised and reliable source constitutes such assurances (Joined Cases T‑66/96 and T‑221/97 Mellett v Court of Justice [1998] ECR-SC I‑A‑449 and II‑1305, paragraphs 104 and 107).
208. In the present case, as has been stated in paragraph 199 above, the Commission stated in point 614 of the statement of objections that ‘it [was considering] whether to grant any reduction [of the fines] for cooperation outside the [2002] Leniency Notice, in particular where a company [did] not contest, or where it [provided] further assistance in clarifying or supplementing, the facts found by the Commission’. Such a statement cannot be regarded as a precise assurance which could have caused Kone to entertain justified expectations that a reduction greater than 1% of the amount of the fine would be granted to it. Point 614 of the statement of objections does not give any indication of the extent or rate of the reduction which would, where appropriate, be granted to the undertakings concerned, so that it can in no case have given rise to any legitimate expectation whatsoever in that regard.
209. In that regard, the Court must also reject the applicants’ argument that the Commission departed from its previous practice, whereby an undertaking which did not substantially contest the facts complained of in the statement of objections would be granted a 10% reduction of the fine which would have been imposed on it, in accordance with the 1996 Leniency Notice.
210. First of all, although, 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 fine on that ground. The applicants do not dispute that it is only the 2002 Leniency Notice which applies to their leniency application, the latter having in any event expressly been made under that notice. Therefore, a practice of the Commission in previous decisions relating to the application of the second indent of Section D.2 of the 1996 Leniency Notice cannot cause the applicants to entertain a legitimate expectation, on the basis of point 614 of the statement of objections, concerning the rate by which Kone would have its fine reduced for not contesting the facts relating to the German cartel (see, to that effect, Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraphs 201 and 205; Case C‑76/06 P Britannia Alloys & Chemicals
v Commission [2007] ECR I‑4405, paragraph 60; and Carbone‑Lorraine
v Commission, paragraph 34 above, paragraph 92).
211. Next, the applicants’ assertion, challenged by the Commission, that the Commission had indicated to Kone in the course of a meeting on 26 January 2005 that point 614 of the statement of objections would be applied in the same way as under the previous rules is not supported by any evidence. On the contrary, the minutes of that meeting drawn up by the Commission make no mention, in connection with the discussions that took place concerning point 614 of the statement of objections, of any assurance given to Kone by the Commission in that regard.
212. Lastly, it is clear from the case-law that economic operators are not justified in having a legitimate expectation that an existing situation which is capable of being altered by the institutions in the exercise of their discretion 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; see also Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission, paragraph 46 above, paragraph 64 and the case-law cited). Thus, the proper application of the EU competition rules requires that the Commission be able at any time to adjust the level of fines to the needs of that policy (see, to that effect, Musique Diffusion française and Others v Commission, paragraph 80 above, paragraph 109; Case C‑196/99 P Aristrain
v Commission [2003] ECR I‑11005, paragraph 81; Dansk Rørindustri and Others v Commission, paragraph 34 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).
213. Accordingly, the Court finds unfounded the applicants’ complaint that the reduction of their fine for not contesting the facts in relation to the German infringement was insufficient.
The Commission’s refusal to grant a further reduction of the fine in respect of the provision of additional information and further clarifications with regard to the infringement in Germany
214. The applicants maintain that, in relation to the infringement in Germany, Kone is entitled to a further reduction of the fine on account of its cooperation outside the 2002 Leniency Notice, since, contrary to the Commission’s contention in the contested decision (recital 794), it allowed the facts in the statement of objections to be clarified and supplemented. Section 7 of Kone’s reply to the statement of objections corrected and clarified a number of facts relating to the role of the German trade association VDMA. Kone also drew the Commission’s attention to the fact that in the statement of objections the Commission had incorrectly taken account of the revenues of the entire ‘new-equipment’, ‘service’ and ‘modernisation’ sectors. The Commission recognised, in the contested decision, that the cartel concerned only the revenue of the ‘new-equipment’ sector.
215. In that regard, the Court notes that the applicants do not indicate in what way Kone’s alleged clarifications as to the role of the trade association VDMA assisted the Commission in its investigation. In any event, Kone’s ‘explanations’ in this connection did not seek to clarify or supplement the facts set out in the statement of objections but to contradict them, the explanations seeking in the main to discredit Schindler’s statements concerning the establishment of an escalator working group. Kone drew attention moreover, in the exercise of its rights of defence, to the irrelevance of the reference to that project in the statement of objections. As regards the fact that the Commission had incorrectly taken account, in the statement of objections, of the revenue of all the business areas mentioned in paragraph 214 above, the Court notes that Kone’s reply to the statement of objections was intended to show that the Commission, when calculating the amount of the fine, had not properly defined the elevator and escalator markets affected by the cartel. Kone thereby merely exercised, successfully, its rights of defence, since the Commission took into account in the contested decision the definition suggested by Kone in its reply to the statement of objections. This complaint must therefore be rejected.
The Commission’s refusal to grant Kone a reduction of the fine on account of its alleged cooperation outside the 2002 Leniency Notice in establishing the Netherlands cartel
216. In recital 851 of the contested decision, the Commission gives the following explanation concerning Kone’s alleged cooperation outside the 2002 Leniency Notice:
‘In its reply to the statement of objections, Kone stated not to contest the facts relating to the Netherlands. Rather than providing further assistance in clarifying or supplementing the facts in the statement of objections, Kone aimed at systematically weakening the substance of the facts therein. The non-contestation therefore has to be characterised as purely formal and ambiguous and does not have any positive impact on the establishment of the facts. Since it is insufficient to state in general terms that the facts are not contested if that statement is not of any help to the Commission at all because it is qualified by a large number of reservations as in this case, Kone should not be granted any additional reduction of the fine.’
217. In the first place, the applicants maintain that the Commission should have granted Kone a reduction of the fine under the sixth indent of point 3 of the 1998 Guidelines because of its effective cooperation in the proceedings establishing that there was a cartel in the Netherlands and that, in failing to do so, the Commission made a manifest error of assessment. They also maintain that, having regard to point 614 of the statement of objections and recital 758 of the contested decision, they had a legitimate expectation that that cooperation would be rewarded by a reduction of their fine.
218. It is to be noted that, under the sixth indent of point 3 of the 1998 Guidelines, cooperation outside the scope of the 1996 Leniency Notice may be regarded as an attenuating circumstance. In that connection, the Commission stated in point 614 of the statement of objections that it would consider whether ‘to grant any reduction [of 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’. Against that background, the Commission, in recital 758 of the contested decision, 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’.
219. First, in the applicants’ submission, Kone’s cooperation in the administrative procedure should have been regarded as an attenuating circumstance under the sixth indent of point 3 of the 1998 Guidelines, entitling it to a reduction of the fine.
220. In that regard, it is sufficient to state that, in view of the ambiguous nature of the statements made by Kone in its application under the 2002 Leniency Notice (see paragraph 175 above), which moreover did not give grounds for any reduction under that notice of the fine imposed on Kone for the Netherlands infringement, Kone’s cooperation cannot on any view be regarded as an attenuating circumstance. Nor can the applicants claim to have had any legitimate expectation that they would be granted a reduction of the fine on that basis.
221. Second, the applicants take the view that Kone cooperated fully with the Commission throughout the procedure, beyond what was required by the 2002 Leniency Notice. Thus, first of all, Kone did not place any impediment in the Commission’s way during the inspection of its premises in the Netherlands and did everything in its power to facilitate the collection of information by the Commission’s agents. Next, Kone responded promptly and fully to the Commission’s request for information concerning the Netherlands, which it received on 13 September 2004. Lastly, Kone was very flexible with respect to the requirements for confidentiality of the information which it supplied, which reduced the Commission’s administrative burden when compiling the non-confidential version of its file for disclosure to the parties.
222. Those arguments cannot be accepted. By virtue of Article 18(1) and Article 20(3) of Regulation No 1/2003, undertakings are obliged to respond to requests for information and to submit to inspections. Cooperation in an investigation which does not go beyond that which undertakings are required to provide under those provisions does not justify a reduction of the fine (see, to that effect, Case T‑317/94 Weig
v Commission [1998] ECR II‑1235, paragraph 283, and Scandinavian Airlines System
v Commission, paragraph 67 above, paragraph 218). Moreover, the fact that an undertaking has claimed to have been flexible with regard to claims for confidential treatment of information it provides to the Commission cannot be regarded as facilitating the Commission’s task of finding infringements of the EU competition rules and bringing them to an end ( Mo och Domsjö
v Commission, paragraph 204 above, paragraphs 395 and 396). In that regard, as the Commission states, an investigation is not affected in any negative manner by any reasonable confidentiality claims and, in any event, it was for Kone to request confidential treatment for information which it considered should not be disclosed to third parties. Consequently, the circumstances mentioned in paragraph 221 above cannot have caused Kone to entertain any legitimate expectation whatsoever that it would be granted a reduction of the fine.
223. Third, the applicants maintain that the Commission’s decision not to grant Kone a reduction of its fine is in breach of the principle of equal treatment, since no other undertaking on which fines were imposed provided information on its own initiative and outside the 2002 Leniency Notice which enabled the Commission to make a finding of infringement more easily. In that regard, the Court finds that the applicants’ argument is based on an incorrect assumption. As is clear from recitals 845, 854 and 855 of the contested decision, ThyssenKrupp, Schindler and MEE were granted a reduction of their fine, not because they provided additional information on their own initiative and outside the 2002 Leniency Notice but because they stated that they did not contest the facts set out in the statement of objections. The situation of Kone and that of the other undertakings on which fines were imposed on account of the Netherlands cartel cannot therefore be regarded as comparable and the Commission’s refusal to reduce Kone’s fine is thus not in breach of the principle of equal treatment.
224. In the second place, the applicants maintain that the Commission should have granted Kone a reduction of the fine since at no stage in the procedure did Kone contest the Commission’s main findings of fact. Thus, the assertion in recital 851 of and footnote 949 to the contested decision that the failure to contest the facts is purely formal and ambiguous is manifestly incorrect.
225. In that regard, it must be recalled that, in its submission concerning the Netherlands under the 2002 Leniency Notice, Kone denied that the meetings between competitors had an anti-competitive purpose. [ confidential ]. It should also be pointed out that Kone never retracted those statements but sought to justify them in its reply to the statement of objections.
226. It is true that Kone confirms, in its reply to the statement of objections that it ‘does not dispute the facts in the statement of objections’ and that it ‘was involved in collusive behaviour [in the] … elevators and escalators [sector] … in the Netherlands from June 1999 until 5 March 2004’ and that ‘it does not contest that the collusion, to the extent that this is supported by the facts in the Commission’s file …, concerned a single and continuous infringement’. However, the fact remains that Kone’s reply to the statement of objections is characterised by the same ambiguity as its submission concerning the Netherlands under the 2002 Leniency Notice.
227. Thus, first, whereas for the infringements in Belgium, Germany and Luxembourg, Kone’s reply to the statement of objections includes, each time, a statement that it ‘does not dispute the facts in the statement of objections’, no such statement is made in the part of its reply to the statement of objections which deals with the Netherlands infringement. In order to receive a reduction of the fine on the ground that it does not contest the facts, an undertaking must inform the Commission, after perusing the statement of objections, that it has no intention of substantially contesting the facts (see, to that effect, Groupe Danone v Commission, paragraph 144 above, paragraph 504). A statement that Kone ‘does not contest that the collusion, to the extent that this is supported by the facts in the Commission’s file …, concerned a single and continuous infringement’ cannot be regarded, unlike the statements made in relation to the three other Member States concerned, as facilitating the Commission’s task of finding infringements of the EU competition rules and bringing them to an end ( Mo och Domsjö
v Commission, paragraph 204 above, paragraphs 395 and 396).
228. Second, in its reply to the statement of objections, Kone stated that its employees in the Netherlands ‘have not been involved in anti-competitive behaviour, at least not to any substantial degree’. Although Kone admits that it ‘may have crossed the line of what was legitimate’, it none the less asserts, referring to its application under the 2002 Leniency Notice for the Netherlands, that the fact of not submitting a bid, or submitting a relatively high bid, for a project can result from unilateral commercial decisions and does not necessarily mean that a cartel exists. In relation to maintenance and modernisation contracts, Kone confirms in its reply to the statement of objections that its policy in that area was based on ‘commercial reasons’ and that its ‘strategy cannot have had any anti-competitive object [or] effect’. With regard to new equipment, Kone also refers, when describing the projects which allegedly were covered by the cartel, to the commercial reasons underlying its behaviour and indicates that ‘[f]rom the abovementioned projects it follows not only that the scope of the collusion was very limited, but also that the nature of the collusion ranged from only a discussion about the project without the exchange of prices … to the exchange of prices without allocating the project … and only in very few circumstances the allocation of a project …’. Kone also states that ‘even if the parties allocated a project, this did not have an effect on the market’ and that ‘[o]ften, the outcome would have been the [same] in [the] absence of the contact between the parties’. Likewise, so far as some individual projects, [ confidential ], are concerned, Kone asserted that the Commission’s file did not include sufficient proof to conclude that there was anti-competitive behaviour.
229. Third, in its reply to the statement of objections, Kone also sought to minimise the probative value of the statements of ThyssenKrupp and Otis, which, as is clear from recitals 370 to 530 of the contested decision, were of fundamental importance in establishing the Netherlands infringement. As a result, the Commission had to answer Kone’s arguments in full in recitals 531 to 541 of the contested decision.
230. Accordingly, the Court finds, like the Commission (recital 851 of the contested decision), that Kone’s non-contestation of the facts with regard to the Netherlands infringement was purely formal and ambiguous and did not have any positive impact on the establishment of the facts.
231. It follows from the foregoing that, in its reply to the statement of objections, Kone describes its participation in the Netherlands infringement either in purely hypothetical terms or in terms which play down the anti-competitive effects of the arrangements. Since Kone also challenges the statements which ThyssenKrupp and Otis made in their applications under the 2002 Leniency Notice for the Netherlands, the Court finds that in the circumstances of the present case, Kone’s statements which have been reproduced in paragraph 227 above were of no help to the Commission at all (see, to that effect, Case T‑48/00 Corus UK
v Commission [2004] ECR II‑2325, paragraph 193, and Groupe Danone
v Commission, paragraph 144 above, paragraph 505). In contesting, in its reply to the statement of objections, the essential points of the allegations of fact advanced by the Commission, Kone did not facilitate the Commission’s task of finding infringements of the EU competition rules and bringing them to an end (see, to that effect, Mo och Domsjö
v Commission, paragraph 204 above, paragraph 396). Although, in acting in that way, Kone was certainly lawfully exercising its rights of defence, the Commission cannot be criticised for not having awarded it, on that ground, a reduction of the fine for not contesting the facts.
232. The Commission was thus fully entitled to decide, in recital 851 of the contested decision, not to grant Kone a reduction of the fine in respect of its cooperation outside the 2002 Leniency Notice, in relation to the Netherlands infringement.
233. In the third place, the applicants maintain that the Commission infringed the principle of equal treatment in granting ThyssenKrupp, Schindler and MEE a reduction of the fines on the ground that they did not contest the facts, whilst refusing to grant Kone such a reduction. According to the applicants – which, for the remainder, do not challenge the Commission’s findings that ThyssenKrupp, Schindler and MEE expressly stated, in their replies to the statement of objections, that they did not contest the facts as stated (recitals 845, 854 and 855 of the contested decision) – it can be seen from the contested decision that ThyssenKrupp, Schindler and MEE did, in their replies, challenge certain of the Commission’s findings concerning the Netherlands.
234. In that regard, the Court has observed that it is settled case-law that the Commission is not entitled, in its appraisal of the cooperation shown by members of a cartel, to disregard the principle of equal treatment (see paragraph 135 above). However, respect for the principle of equal treatment must be reconciled with respect for the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (see, to that effect, Case 134/84 Williams
v Court of Auditors [1985] ECR 2225, paragraph 14; SCA Holding v Commission, paragraph 204 above, paragraph 160; Case T-23/99 LR AF 1998 v Commission
[2002] ECR II‑1705, paragraph 263; and Mo och Domsjö v Commission, paragraph 204 above, paragraph 398).
235. Furthermore, according to the case-law, 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 and bringing to an end infringements of the EU competition rules. In its decisions finding infringements of those rules, the Commission is entitled to take the view that such conduct constitutes an acknowledgement of the allegations of fact and thus proves that the allegations are correct. Such conduct may therefore justify a reduction of the fine. That is not the case when an undertaking contests in its reply the essential points of those allegations. By adopting such an attitude during the administrative procedure the undertaking does not facilitate the Commission’s task of finding infringements of the EU competition rules and bringing them to an end ( Mo och Domsjö
v Commission, paragraph 204 above, paragraphs 395 and 396).
236. In that regard, when the Commission awards, in recitals 845, 854 and 855 of the contested decision, 1% reductions of the fines to ThyssenKrupp, Schindler and MEE on the ground that they did not contest the facts, the reductions can be considered to be lawful only in so far as the undertakings concerned expressly stated that they were not contesting those facts (see, to that effect, Case T‑347/94 Mayr-Melnhof v Commission  [1998] ECR II‑1751, paragraph 333, and Mo och Domsjö
v Commission, paragraph 204 above, paragraph 397) and did not contest, in their replies to the statement of objections, the essential points of the Commission’s allegations (see, to that effect, Mo och Domsjö
v Commission, paragraph 204 above, paragraph 396).
237. The applicants’ plea must be rejected as unfounded, since it is based on the premiss that reductions of the fines were unlawfully awarded to other members of the Netherlands cartel, inasmuch as the recitals of the contested decision on which the applicants rely specifically show – in their submission – that those cartel members had in fact contested the facts mentioned in the statement of objections.
238. Moreover, as regards the arguments put forward by the applicants which, in their submission, show that other undertakings were awarded a reduction of their fines on grounds of the absence of a challenge to the facts even though they had contested the facts regarding the Netherlands in their replies to the statement of objections, it is clear from the statement of objections and the contested decision that those arguments are without foundation.
239. As regards, first, Schindler, the applicants maintain that it is apparent from recitals 593 and 594 of the contested decision that Schindler denied that there had been an infringement of Article 81 EC. Furthermore, they claim that recital 667 of the contested decision shows that Schindler maintained that illegal contacts between the competitors had not caused price rises and that only a limited proportion of the projects had been allocated, whilst competition continued between the cartel members. Lastly, they submit that, according to recital 751 of the contested decision, Schindler had claimed that competitors had not agreed on any mutual retaliatory measures with a view to enforcing compliance with the agreements.
240. In that regard, although, as can be seen from recitals 593 and 594 of the contested decision, Schindler maintained that Article 81 EC did not apply to the cartels concerned because, owing to their national scope, there was a lack of appreciable effect upon trade between Member States, the Court finds that, in so doing, it did not contest the facts – set out in the statement of objections – underpinning the Commission’s assessment concerning the appreciable effect of the infringements in question on that trade. Furthermore, the statements concerning the absence of price rises and the limited number of projects allocated cannot be construed as Schindler contesting the facts, since those facts are clear from, inter alia, points 412, 415, 437 and 442 of the statement of objections. Lastly, Schindler’s argument that it should benefit from an attenuating circumstance because of the absence of retaliatory measures does not amount to it challenging the facts, as the fact that there were no such measures was noted in point 432 of the statement of objections. Schindler thus merely exploited that finding for the purpose of showing that an attenuating circumstance should be recognised so far as it was concerned.
241. In any event, it is clear from the non-confidential version of Schindler’s reply to the statement of objections, produced at the Court’s request, that Schindler, which expressly stated in that reply that it was not contesting the facts underpinning the Commission’s objections, did not therein contest the facts as stated by the Commission.
242. Second, the applicants maintain that it follows from recitals 593, 594 and 724 of the contested decision that ThyssenKrupp denied that there was an infringement of Article 81 EC and claimed that it had not participated in all elements of the infringement. In their submission, it also follows from recitals 508, 513 and 515 of the contested decision that ThyssenKrupp contested certain facts relating to the duration of its participation in the cartel.
243. In that regard, although it is true, as is clear from recitals 593 and 594 of the contested decision, that ThyssenKrupp maintained that Article 81 EC did not apply to the cartels concerned because, owing to their national scope, there was a lack of appreciable effect upon trade between Member States, the Court finds that, in so doing, it did not contest the facts – set out in the statement of objections – underpinning the Commission’s assessment concerning the appreciable effect of the infringements in question on that trade. The possibility that ThyssenKrupp did not participate in all the meetings follows from point 575 of the statement of objections. Far from denying that fact, ThyssenKrupp merely exploited it in order to show that there was an attenuating circumstance so far as it was concerned (recital 726 of the contested decision). Lastly, as regards the alleged challenge to the facts concerning the duration of its participation in the cartel, which the applicants claim is clear from recitals 508 and 513 to 515 of the contested decision, ThyssenKrupp’s assertion that it did not participate in any meetings between mid-2002 and April/May 2003 was already expressly mentioned in point 506 of the statement of objections. In recital 515 of the contested decision, the Commission in essence took the view that it was possible that ThyssenKrupp was not present at meetings during the second half of 2002 but that such a fact, even if proved, did not indicate that ThyssenKrupp had left the cartel.
244. Third, so far as MEE is concerned, the applicants claim, first of all, that it is apparent from recital 751 of the contested decision that MEE had submitted that there had been no compensation or monitoring system. Next, they submit that it is clear from footnotes 644, 676, 693, 697, 709, 713 and 714 to the contested decision that MEE had asserted that it had not been invited to tender for seven projects mentioned in the statement of objections and that it had therefore not submitted a bid for those projects. Furthermore, they claim that recital 481 of and footnote 715 to the contested decision show that MEE had disputed the finding that it had attended other meetings concerning new installations of equipment after September 2001. Lastly, according to recital 724 of the contested decision, MEE had claimed in its reply to the statement of objections that it had not participated in all the elements of the infringement.
245. The Court finds that those statements do not amount to a challenge to the facts set out in the statement of objections.
246. As regards the argument that there was no compensation or monitoring system, that fact is clear from point 431 of the statement of objections. Thus, rather than gainsaying that fact, MEE tried to turn it to its advantage in order to obtain a reduction of the fine on the ground of an attenuating circumstance (recital 751 of the contested decision).
247. As regards the assertion that MEE claimed that it had not been invited to tender for seven projects mentioned in the statement of objections and had therefore not submitted a bid for those projects, it can be seen from point 441 of the statement of objections that customers did not always invite all the members of the Netherlands cartel to make a bid for a given project. In any event, as is clear from the recitals and footnotes cited by the applicants, MEE did not deny that it may have attended the meetings in question and that it had been informed of the discussions (footnotes 644, 676, 693, 697, 713 and 714 to the contested decision).
248. It is also clear from footnote 709 to the contested decision that MEE is not disputing a finding of fact made by the Commission but merely an allegation made by a single cartel member, namely Kone, referred to in point 497 of the statement of objections, which, moreover, was not confirmed by the other participants.
249. As regards the allegation that MEE denied that it had attended other meetings on projects concerning installations of new equipment after September 2001, it is sufficient to state that the applicants do not identify with precision any specific project relating to installations of new equipment in which MEE participated after September 2001.
250. The Commission itself found, in point 575 of the statement of objections, that MEE had not participated in all the meetings and MEE tried to exploit that fact as an attenuating circumstance in order to obtain a reduction of its fine (recital 724 of the contested decision).
251. It must therefore be found that the complaint alleging an infringement of the principle of equal treatment is in any event based on the incorrect premiss that the recitals of the contested decision relied on by the applicants show that Schindler, ThyssenKrupp and MEE disputed the facts with regard to the Netherlands cartel.
252. Accordingly, the Court must reject all the complaints relating to the assessment of Kone’s cooperation outside the scope of the 2002 Leniency Notice in establishing the infringements in Germany and the Netherlands.
253. It follows that the action must be dismissed in its entirety.
Costs
254. 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 successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
(1) .
(1)
Confidential information omitted.
Operative part
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Kone Oyj, Kone GmbH and Kone BV to pay the costs.