Case T-151/07

Kone Oyj and Others

v

European Commission

(Competition – Agreements, decisions and concerted practices – Market for the installation and maintenance of elevators and escalators – Decision finding an infringement of Article 81 EC – Bid-rigging – Market sharing – Price fixing)

Summary of the Judgment

1. Competition – Fines – Guidelines on the method of setting fines – Legal nature

(Commission Notice 98/C 9/03)

2. Competition – Fines – Amount – Determination – Criteria – Consistency as between the amounts imposed on a number of undertakings

(Art. 81 EC; Council Regulation No 1/2003; Commission Notice 98/C 9/03, Section 1A)

3. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Obligation to take account of the actual impact on the market – No such obligation – Primary role played by the criterion relating to the nature of the infringement

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

4. Competition – Fines – Amount – Determination – Application of the Leniency Notice – Discretion of the Commission

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03)

5. Competition – Administrative procedure – Inspection powers of the Commission – Decision ordering an investigation – Duty to state reasons – Scope

(Art. 81 EC; Council Regulation No 1/2003, Art. 20(4))

6. Competition – Fines – Amount – Determination – Commission notice on the non-imposition or reduction of fines in return for cooperation of the undertakings concerned – Binding upon the Commission

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03)

7. Competition – Fines – Amount – Determination – Breach of the principle of equal treatment – Conditions – Comparability of situations

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03)

8. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Refusal to supply a document – Consequences – Need to draw a distinction, in relation to the burden of proof borne by the undertaking concerned, between incriminating and exculpatory documents

9. Competition – Fines – Amount – Determination – Criteria – Attitude of the undertaking during the administrative procedure

(Art. 81 EC; Council Regulation No 1/2003, Arts 18(1) and 20(3))

10. Competition – Fines – Amount – Determination – Criteria – Non-imposition or reduction of the fine in return for cooperation of the undertaking concerned – Application of the Leniency Notice – Reduction for not contesting the facts outside the Leniency Notice

(Council Regulation No 1/2003, Art. 23(2); Commission Notices 96/C 207/04 and 2002/C 45/03)

11. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine in return for cooperation of the undertaking concerned – Reduction for not contesting the facts – Conditions

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 96/C 207/04, Section D2)

12. Competition – Fines – Amount – Determination – Criteria – Attitude of the undertaking during the administrative procedure – Unlawfulness of reductions in the fine granted to undertakings that have not expressly recognised the Commission’s allegations of fact

(Council Regulation No 1/2003, Art. 23)

1. Although the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty 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. 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. Furthermore, those 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.

(see paras 34-36)

2. 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 no indication that a general starting amount set for an infringement in a Member State is disproportionate as compared with the general starting amounts set for infringements in other Member States if the Commission sets the starting amounts in a reasonable and coherent manner without, however, using a precise mathematical formula, which it is not in any event required to do.

(see paras 54-55)

3. The gravity of infringements of EU competition law must be assessed in the light of numerous factors, such as, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up. In that regard, the size of the relevant market is not as a rule a factor which must be taken into account, but just one among a number of other factors for evaluating the gravity of the infringement, since, moreover, the Commission is not obliged to define the market concerned or to assess its size where the infringement in question has an anti-competitive object.

The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty 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.

In that context, where the Commission has not set the general starting amount of a fine for an infringement concerning one Member State on the basis of the size of the market affected but has based its decision on the nature of that infringement and its geographic scope, the view that the general starting amount of the fine set for the infringement in that Member State should reflect the allegedly limited size of the market affected is based on an incorrect assumption and the Commission’s decision does not infringe the principle of proportionality.

The same is true where the impact of the infringement on the market is not taken into account. Under the first paragraph of Section 1A of the abovementioned 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. In order to assess that impact, the Commission must take as a reference the competition that would normally have existed had there been no infringement. However, when the Commission considers that it was impossible to measure the precise effects of an infringement on the market – and the undertakings concerned have not established that that was not the case – the Commission may base its decision on the serious nature of the infringement and on its geographic scope.

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. 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 said guidelines that agreements or concerted practices seeking inter alia 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. 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.

Accordingly, by their very nature, infringements of the EU competition rules established in a Commission decision are among the most serious breaches of Article 81 EC where they have 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. 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 Treaty’s main objective of integrating the Community market. Thus, infringements of this type, especially where horizontal cartels are concerned, are classified by the case-law as particularly serious or obvious infringements.

(see paras 32, 46-47, 56, 61-62, 64, 67-69)

4. The Notice on immunity from fines and reduction of fines in cartel cases 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 when setting fines for infringements of the EU competition rules. That discretion is thus subject to a self-imposed limitation which is not, however, incompatible with the retention of a considerable margin of assessment for the Commission.

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 Leniency Notice represents significant added value for the purposes of point 21 of the notice.

Similarly, the Commission, once it has found that the evidence represents significant added value within the meaning of point 21 of the 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 Leniency Notice in fact provides for fine-reduction bands for the various categories of undertakings concerned. In view of that margin of assessment, it is only where the bounds of that margin are manifestly exceeded that there may be censure by the Courts of the European Union.

In order to obtain immunity from fines under point 8(b) of the Leniency Notice, 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.

Furthermore, it is the quality of the cooperation of an undertaking which determines whether it may benefit from immunity from fines under that provision. It is not sufficient that such an undertaking 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.

In that respect, statements drawn up from memory by the managers of an undertaking, which may not be wholly accurate, and unilateral statements 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.

In those circumstances, the Commission does not manifestly go beyond the bounds of its margin of assessment when it refuses immunity from fines to an undertaking which has provided evidence of limited probative value, which is not contemporaneous with the infringement and a part of which is undated. The fact that that undertaking obtained immunity for infringements of the same type committed in other Member States is irrelevant in that regard since the nature and precision of the information provided in each case were different.

Nor does the Commission manifestly go beyond the bounds of the margin of assessment it enjoys in the appraisal of an undertaking’s cooperation for the purpose of reducing the amount of the fine imposed in concluding that evidence which is not contemporaneous, which denies the anti-competitive object of a cartel and which is ambiguous is not sufficiently precise to represent significant added value within the meaning of point 21 of the Leniency Notice. Indeed, 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. Thus, any reduction of a fine by the Commission must reflect an undertaking’s actual contribution to the Commission’s establishment of the infringement.

(see paras 80-81, 83-84, 91, 94, 97-99, 100, 102-103, 108, 111-113, 117-119, 122-124, 162, 165, 169, 174-176, 179)

5. The Commission must, in its decisions ordering an investigation, clearly indicate the presumed facts which it intends to investigate. 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 para. 116)

6. The Commission notice on immunity from fines and reduction of fines in cartel cases 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 are entitled to derive from the notice, the Commission is obliged to adhere to it when it assesses, for the purpose of determining the fine to be imposed on an undertaking, the latter’s cooperation. In that regard, an economic operator cannot, as a rule, base a legitimate expectation that immunity from fines will be granted merely on silence on the part of the Commission.

(see paras 127, 130, 186)

7. The Commission is not entitled, in its appraisal of the cooperation provided by members of a cartel, to disregard the principle of equal treatment. There is no breach of that principle – since the two situations are not comparable – when the Commission, on the one hand, grants immunity from fines to an undertaking whose information triggered the first inspections and, on the other, refuses immunity to another undertaking which provided information after the Commission had carried out that first round of inspections.

(see paras 135, 137-138, 140)

8. 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.

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.

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.

Moreover, 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.

As regards, however, failure to disclose an exculpatory document, 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 paras 143-147,151)

9. In the determination of the amount of a fine for infringement of the EU competition rules, 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. Moreover, 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.

Moreover, under 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.

Furthermore, 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. In that regard, an investigation is not affected in any negative manner by any reasonable confidentiality claims and, in any event, it is for the undertaking concerned to request confidential treatment for information which it considers should not be disclosed to third parties.

Consequently, cooperation which does not go beyond those limits cannot give rise to a legitimate expectation as regards a reduction of the fine.

(see paras 204, 222)

10. 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. 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. Information that is precise, unconditional and consistent and comes from an authorised and reliable source constitutes such assurances.

In the determination of the amount of a fine for infringement of the EU competition rules, the announcement by the Commission in the statement of objections that it is considering granting a reduction in the fine outside the Notice on immunity from fines and reduction of fines in cartel cases does not amount to a precise assurance as to the extent or the rate of the reduction that might, where appropriate, be granted to the undertakings concerned. Accordingly, such an announcement can in no case give rise to any legitimate expectation whatsoever in that regard.

Nor can a practice of the Commission in previous decisions cause the undertakings concerned to entertain a legitimate expectation concerning the rate of reduction of a fine.

In any event, 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. 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 paras 206-208, 210, 212)

11. In order to receive a reduction of the fine on the ground that it does not contest the facts, in accordance with the second indent of Section D2 of the Commission notice on the non-imposition or reduction of fines in cartel cases, an undertaking must expressly inform the Commission, after perusing the statement of objections, that it has no intention of substantially contesting the facts. In that regard, a general statement that the undertaking concerned 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 as facilitating the Commission’s task of finding infringements of the EU competition rules and bringing them to an end. The same is true where the non-contestation is purely formal and ambiguous and does not have any positive impact on the establishment of the facts, the undertaking concerned merely describing its participation either in purely hypothetical terms or in terms playing down the anti-competitive effects of the unlawful arrangements.

(see paras 227, 230-231)

12. In the determination of the amount of a fine for infringement of the EU competition rules, the Commission is not entitled, in its appraisal of the cooperation shown by members of a cartel, to disregard the principle of equal treatment. 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.

In that regard, 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.

(see paras 234-235)

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

13 July 2011 ( )

(Competition – Agreements, decisions and concerted practices – Market for the installation and maintenance of elevators and escalators – Decision finding an infringement of Article 81 EC – Bid-rigging – Market sharing – Price fixing)

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

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] ( ) (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 infrin