JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

13 July 2011 ( *1 )

(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 Cases T‑141/07, T‑142/07, T‑145/07 and T‑146/07,

General Technic-Otis Sàrl, established in Howald (Luxembourg), represented initially by M. Nosbusch and subsequently by A. Winckler, lawyers, and J. Temple Lang, Solicitor,

applicant in Case T‑141/07,

General Technic Sàrl, established in Howald, represented by M. Nosbusch,

applicant in Case T‑142/07,

Otis SA, established in Dilbeek (Belgium),

Otis GmbH & Co. OHG, established in Berlin (Germany),

Otis BV, established in Amersfoort (Netherlands),

Otis Elevator Company, established in Farmington, Connecticut (United States),

represented by A. Winckler and J. Temple Lang,

applicants in Case T‑145/07,

United Technologies Corporation, established in Wilmington, Delaware (United States), represented by A. Winckler and J. Temple Lang,

applicant in Case T‑146/07,

v

European Commission, represented in Cases T‑141/07 and T‑142/07, by A. Bouquet and R. Sauer, acting as Agents, and by A. Condomines, lawyer, and, in Cases T‑145/07 and T‑146/07, by A. Bouquet, R. Sauer and J. Bourke, acting as Agents, and by A. Condomines,

defendant,

APPLICATIONS for annulment of Commission Decision C (2007) 512 final of 21 February 2007 relating to a proceeding under Article 81 [EC] (Case COMP/E-1/38.823 ‐ Elevators and Escalators) or, in the alternative, reduction of the amounts of the fines imposed on the applicants,

THE GENERAL COURT (Eighth Chamber),

composed of M.E. Martins Ribeiro (Rapporteur), President, N. Wahl and A. Dittrich, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearings on 1, 6 and 7 October 2009,

gives the following

Judgment

1 These cases concern applications for annulment of Commission Decision C (2007) 512 final of 21 February 2007 relating to a proceeding under Article 81 [EC] (Case COMP/E-1/38.823 ‐ Elevators and Escalators) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union on 26 March 2008 (OJ 2008 C 75, p. 19), or, in the alternative, for reduction of the amounts of the fines imposed on the applicants.

2 In the contested decision, the Commission of the European Communities held that the following companies had infringed Article 81 EC: – Kone Belgium SA (‘Kone Belgium’), Kone GmbH (‘Kone Germany’), Kone Luxembourg Sàrl (‘Kone Luxembourg’), Kone BV Liften en Roltrappen (‘Kone Netherlands’) and Kone Oyj (‘KC’) (referred to, collectively and individually, as ‘Kone’); – Otis SA (‘Otis Belgium’), Otis GmbH & Co. OHG (‘Otis Germany’), General Technic-Otis Sàrl (‘GTO’), General Technic Sàrl (‘GT’), Otis BV (‘Otis Netherlands’), Otis Elevator Company (‘OEC’) and United Technologies Corporation (‘UTC’) (referred to, collectively and individually, as ‘Otis’); – Schindler SA (‘Schindler Belgium’), Schindler Deutschland Holding GmbH (‘Schindler Germany’), Schindler Sàrl (‘Schindler Luxembourg’), Schindler Liften BV (‘Schindler Netherlands’) and Schindler Holding Ltd (‘Schindler Holding’) (referred to, collectively and individually, as ‘Schindler’); – ThyssenKrupp Liften Ascenseurs NV (‘TKLA’), ThyssenKrupp Aufzüge GmbH (‘TKA’), ThyssenKrupp Fahrtreppen GmbH (‘TKF’), ThyssenKrupp Elevator AG (‘TKE’), ThyssenKrupp AG (‘TKAG’), ThyssenKrupp Ascenseurs Luxembourg Sàrl (‘TKAL’) and ThyssenKrupp Liften BV (‘TKL’) (referred to, collectively and individually, as ‘ThyssenKrupp’); and – Mitsubishi Elevator Europe BV (‘MEE’).

3 UTC is a world leader in the building systems and aerospace industries. OEC is a wholly-owned subsidiary of UTC which is based in the United States and carries out its activities in the elevator and escalator sector through national subsidiaries. Those subsidiaries include, in Belgium, Otis Belgium, in Germany, Otis Germany, in Luxembourg, GTO, and, in the Netherlands, Otis Netherlands. At the time of adoption of the contested decision, Otis Belgium had a 75% stake in GTO, the remaining 25% being held by GT (recitals 21 to 26 of the contested decision).

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).

Belgium

5 Starting on 28 January 2004, and during March 2004, the Commission carried out inspections under Article 14(2) and (3) of Council Regulation (EEC) 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 national subsidiaries of Kone, Otis, Schindler and ThyssenKrupp in Belgium (recitals 92, 93, 95 and 97 of the contested decision).

6 Applications for leniency, under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the 2002 Leniency Notice’), were submitted in turn by Kone, Otis, ThyssenKrupp and Schindler. Those applications were subsequently supplemented by the undertakings concerned (recitals 94, 96, 98 and 103 of the contested decision).

7 On 29 June 2004, conditional immunity was granted to Kone in application of point 8(b) of the 2002 Leniency Notice (recital 99 of the contested decision).

8 Between September and December 2004, the Commission also sent requests for information, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), to the undertakings which had participated in the infringement in Belgium, to a number of customers in Belgium and to the Belgian association Agoria (recitals 101 and 102 of the contested decision).

Germany

9 Starting on 28 January 2004, and during March 2004, the Commission carried out inspections under Article 14(3) of Regulation No 17 at, inter alia, the premises of the subsidiaries of Otis and ThyssenKrupp in Germany (recitals 104 and 106 of the contested decision).

10 On 12 and 18 February 2004, Kone supplemented its application under the 2002 Leniency Notice concerning Belgium, made on 2 February 2004, with information concerning Germany. Likewise, 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).

11 Between September and November 2004, the Commission also sent requests for information, pursuant to Article 18 of Regulation No 1/2003, to the undertakings which had participated in the infringement in Germany, to a number of customers in Germany and to the associations VDMA, VFA and VMA (recitals 110, 111 and 113 of the contested decision).

Luxembourg

12 On 5 February 2004, Kone supplemented its application of 2 February 2004 concerning Belgium with information relating to Luxembourg. Applications under the 2002 Leniency Notice were made orally by Otis and ThyssenKrupp in respect of Luxembourg. Schindler made an application under the notice in respect of Luxembourg (recitals 115, 118, 119 and 124 of the contested decision).

13 Starting on 9 March 2004, the Commission carried out inspections under Article 14(3) of Regulation No 17 at, inter alia, the premises of the subsidiaries of Otis and ThyssenKrupp in Luxembourg (recital 116 of the contested decision).

14 On 29 June 2004, conditional immunity was granted to Kone pursuant to point 8(b) of the 2002 Leniency Notice for the part of its application relating to Luxembourg (recital 120 of the contested decision).

15 In September and October 2004, the Commission sent requests for information pursuant to Article 18 of Regulation No 1/2003 to the undertakings which had participated in the infringement in Luxembourg, to a number of customers in Luxembourg and to the Fédération luxembourgeoise des ascensoristes (recitals 122 and 123 of the contested decision).

The Netherlands

16 In March 2004, Otis made an application under the 2002 Leniency Notice in respect of the Netherlands, which was subsequently supplemented. In April 2004, ThyssenKrupp made an application under the notice, in respect of which supplementary information was subsequently also provided on a number of occasions. Finally, on 19 July 2004, Kone supplemented its application of 2 February 2004 for Belgium with information concerning the Netherlands (recitals 127, 129 and 130 of the contested decision).

17 On 27 July 2004, conditional immunity was granted to Otis pursuant to point 8(a) of the 2002 Leniency Notice (recital 131 of the contested decision).

18 From 28 April 2004, the Commission carried out inspections pursuant to Article 14(3) of Regulation No 17 at, inter alia, the premises of the subsidiaries of Kone, Schindler, ThyssenKrupp and MEE in the Netherlands, and also at the premises of the association Boschduin (recital 128 of the contested decision).

19 In September 2004, the Commission sent requests for information pursuant to Article 18 of Regulation No 1/2003 to the undertakings which had participated in the infringement in the Netherlands, to a number of customers in the Netherlands and to the associations VLR and Boschduin (recitals 133 and 134 of the contested decision).

Statement of objections

20 On 7 October 2005, the Commission adopted a statement of objections, addressed inter alia to the undertakings mentioned in paragraph 2 above. All the addressees of the statement of objections sent written observations in response to the objections raised by the Commission (recitals 135 and 137 of the contested decision).

21 No hearing was held, since none of the addressees of the statement of objections had requested a hearing (recital 138 of the contested decision).

Contested decision

22 On 21 February 2007, the Commission adopted the contested decision, in which it stated that the undertakings to which the decision was addressed had participated in four single, complex and continuous infringements of Article 81(1) EC in four Member States by sharing the markets 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).

23 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).

24 For the purpose of calculating the fines, the Commission applied in the contested decision the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3) (‘the 1998 Guidelines’). It also considered whether, and to what extent, the undertakings concerned satisfied the requirements set by the 2002 Leniency Notice.

25 The Commission characterised the infringements as ‘very serious’ on account of their nature and of the fact that each of them covered the whole territory of a Member State (Belgium, Germany, Luxembourg or the Netherlands), even though their actual impact could not be measured (recital 671 of the contested decision).

26 In order to take account of the effective economic capacity of the undertakings concerned to cause significant damage to competition, the Commission divided them, for each country, into a number of categories by reference to the turnover achieved in elevators and/or escalators, including, where appropriate, maintenance and modernisation services (recitals 672 and 673 of the contested decision).

27 As regards the Belgian cartel, Kone and Schindler were placed in the first category and the starting amount of the fine, determined according to the gravity of the infringement, was set at EUR 40000000. Otis was placed in the second category and the starting amount of its fine was set at EUR 27000000. ThyssenKrupp was placed in the third category and the starting amount of its fine was set at EUR 16500000 (recitals 674 and 675 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount for ThyssenKrupp, in order to take account of their size and their global resources, so that the starting amounts of their fines were increased to EUR 45900000 and EUR 33000000 respectively (recitals 690 and 691 of the contested decision). As the infringement had lasted seven years and eight months (from 9 May 1996 to 29 January 2004), the Commission increased the starting amount for the undertakings concerned by 75%. The basic amount of the fine was thus set at EUR 70000000 for Kone, EUR 80325000 for Otis, EUR 70000000 for Schindler and EUR 57750000 for ThyssenKrupp (recitals 692 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697, 698 and 708 to 710 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 733, 734, 749, 750 and 753 to 755 of the contested decision). Under the 2002 Leniency Notice, Kone was granted total immunity from fines. Otis received a reduction of 40% of the fine in the band provided for in the first indent of point 23(b) of the 2002 Leniency Notice and a reduction of 1% of the fine for not contesting the facts. ThyssenKrupp was granted a reduction of 20% of the fine in the band provided for in the second indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. Schindler was granted a reduction of 1% of the fine for not contesting the facts (recitals 760 to 777 of the contested decision).

28 As regards the German cartel, Kone, Otis and ThyssenKrupp were placed in the first category and the starting amount of the fine was set at EUR 70000000. Schindler was placed in the second category and the starting amount of its fine was set at EUR 17000000 (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 119000000 and EUR 140000000 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 126000000 for Kone, EUR 214200000 for Otis, EUR 25500000 for Schindler and EUR 252000000 for ThyssenKrupp (recitals 693 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697 to 707 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 727 to 729, 735, 736, 742 to 744, 749, 750 and 753 to 755 of the contested decision). Kone received the maximum reduction of 50% of the fine provided for in the first indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. Otis received a reduction of 25% of the fine in the band provided for in the second indent of point 23(b) of the 2002 Leniency Notice and a reduction of 1% of the fine for not contesting the facts. Schindler received a reduction of 15% of the fine in the band provided for in the third indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. ThyssenKrupp received a reduction of 1% of the fine for not contesting the facts (recitals 778 to 813 of the contested decision).

29 With respect to the Luxembourg cartel, Otis and Schindler were placed in the first category and the starting amount of the fine was set at EUR 10000000. Kone and ThyssenKrupp were placed in the second category, and the starting amount of the fine was set at EUR 2500000 (recitals 680 to 683 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount of the fine for ThyssenKrupp, to take account of their size and their global resources, and the starting amounts of their fines were thus increased to EUR 17000000 and EUR 5000000 respectively (recitals 690 and 691 of the contested decision). As the infringement had lasted eight years and three months (from 7 December 1995 to 9 March 2004), the Commission increased the starting amount of the fine for the undertakings concerned by 80%. The basic amount of the fine was thus set at EUR 4500000 for Kone, EUR 30600000 for Otis, EUR 18000000 for Schindler and EUR 9000000 for ThyssenKrupp (recitals 694 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697, 698 and 711 to 714 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 730, 749, 750 and 753 to 755 of the contested decision). Under the 2002 Leniency Notice, Kone was granted total immunity from fines. Otis received a reduction of 40% of the fine in the band provided for in the first indent of point 23(b) of the 2002 Leniency Notice and a reduction of 1% of the fine for not contesting the facts. Schindler and ThyssenKrupp received only a reduction of 1% of the fine for not contesting the facts (recitals 814 to 835 of the contested decision).

30 As regards the Netherlands cartel, Kone was placed in the first category and the starting amount of its fine was set at EUR 55000000. Otis was placed in the second category and the starting amount of its fine was set at EUR 41000000. Schindler was placed in the third category and the starting amount of its fine was set at EUR 24500000. ThyssenKrupp and MEE were placed in the fourth category and the starting amount of the fine was set at EUR 8500000 (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 69700000 and EUR 17000000 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 79750000 for Kone, EUR 108035000 for Otis, EUR 35525000 for Schindler, EUR 26350000 for ThyssenKrupp and EUR 11900000 for MEE (recitals 695 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697, 698 and 715 to 720 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 724 to 726, 731, 732, 737, 739 to 741, 745 to 748 and 751 to 755 of the contested decision). Under the 2002 Leniency Notice, Otis was granted total immunity from fines. ThyssenKrupp was granted a reduction of 40% of the fine in the band provided for in the first indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. Schindler and MEE received a reduction of 1% of the fine for not contesting the facts (recitals 836 to 855 of the contested decision).

31 The operative part of the contested decision reads as follows: ‘Article 1 1. In respect of Belgium, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for sale and installation and to refrain from competing with each other for maintenance and modernisation contracts: – Kone: [KC] and [Kone Belgium]: from 9 May 1996 to 29 January 2004; – Otis: [UTC], [OEC] and [Otis Belgium]: from 9 May 1996 to 29 January 2004; – Schindler: Schindler Holding … and [Schindler Belgium]: from 9 May 1996 to 29 January 2004; and – ThyssenKrupp: [TKAG], [TKE] and [TKLA]: from 9 May 1996 to 29 January 2004; 2. In respect of Germany, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for sale and installation: – Kone: [KC] and [Kone Germany]: from 1 August 1995 to 5 December 2003; – Otis: [UTC], [OEC] and [Otis Germany]: from 1 August 1995 to 5 December 2003; – Schindler: Schindler Holding … and [Schindler Germany]: from 1 August 1995 to 6 December 2000; and – ThyssenKrupp: [TKAG], [TKE], [TKA] and [TKF]: from 1 August 1995 to 5 December 2003. 3. In respect of Luxembourg, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for sale and installation and to refrain from competing with each other for maintenance and modernisation contracts: – Kone: [KC] and [Kone Luxembourg]: from 7 December 1995 to 29 January 2004; – Otis: [UTC], [OEC], [Otis Belgium], [GTO] and [GT]: from 7 December 1995 to 9 March 2004; – Schindler: Schindler Holding … and [Schindler Luxembourg]: from 7 December 1995 to 9 March 2004; and – ThyssenKrupp: [TKAG], [TKE] and [TKAL]: from 7 December 1995 to 9 March 2004. 4. In respect of the Netherlands, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for the sale and installation and to refrain from competing with each other for maintenance and modernisation contracts: – Kone: [KC] and [Kone Netherlands]: from 1 June 1999 to 5 March 2004; – Otis: [UTC], [OEC] and [Otis Netherlands]: from 15 April 1998 to 5 March 2004; – Schindler: Schindler Holding … and [Schindler Netherlands]: from 1 June 1999 to 5 March 2004; – ThyssenKrupp: [TKAG] and [TKL]: from 15 April 1998 to 5 March 2004; and – [MEE]: from 11 January 2000 to 5 March 2004. Article 2 1. For the infringement in Belgium referred to in Article 1(1), the following fines are imposed: – Kone: [KC] and [Kone Belgium], jointly and severally: EUR 0; – Otis: [UTC], [OEC] and [Otis Belgium], jointly and severally: EUR 47713050; – Schindler: Schindler Holding … and [Schindler Belgium], jointly and severally: EUR 69300000; and – ThyssenKrupp: [TKAG], [TKE] and [TKLA], jointly and severally: EUR 68607000. 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 62370000; – Otis: [UTC], [OEC] and [Otis Germany], jointly and severally: EUR 159043500; – Schindler: Schindler Holding … and [Schindler Germany], jointly and severally: EUR 21458250; and – ThyssenKrupp: [TKAG], [TKE], [TKA] and [TKF], jointly and severally: EUR 374220000. 3. For the infringement in Luxembourg referred to in Article 1(3), the following fines are imposed: – Kone: [KC] and [Kone Luxembourg], jointly and severally: EUR 0; – Otis: [UTC], [OEC], [Otis Belgium], [GTO] and [GT], jointly and severally: EUR 18176400; – Schindler: Schindler Holding … and [Schindler Luxembourg], jointly and severally: EUR 17820000; and – ThyssenKrupp: [TKAG], [TKE] and [TKAL], jointly and severally: EUR 13365000. 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 79750000; – Otis: [UTC], [OEC] and [Otis Netherlands], jointly and severally: EUR 0; – Schindler: Schindler Holding … and [Schindler Netherlands], jointly and severally: EUR 35169750; – ThyssenKrupp: [TKAG] and [TKL], jointly and severally: EUR 23477850; and – [MEE]: EUR 1841400. …’

Proceedings and forms of order sought

32 By applications lodged at the Registry of the General Court on 4 May 2007 (in Cases T‑141/07 and T‑142/07) and 7 May 2007 (in Cases T‑145/07 and T‑146/07), the applicants, GTO, GT, Otis Belgium, Otis Germany, Otis Netherlands, OEC and UTC, brought the present actions.

33 Upon hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, put questions in writing to the parties and requested them to produce documents. The parties complied within the prescribed period.

34 Following a request made by the Commission on 18 August 2009 in Case T‑145/07, the Court, as a measure of organisation of procedure as provided for in Article 64 of the Rules of Procedure, also asked the Commission to reply to a number of questions and to produce documents. The Commission complied within the prescribed period.

35 The parties in Cases T‑141/07, T‑145/07 and T‑146/07 presented oral argument and answered the oral questions put to them by the Court at the hearings on 1, 6 and 7 October 2009.

36 The applicant in Case T‑142/07 was not represented at the hearing on 1 October 2009. At the hearing, the Commission nevertheless replied to the Court’s questions.

37 In Case T‑141/07, the applicant, at the request of the Court, produced, on 12 October 2009, a letter setting out details of the information in the case-file which it had, at the hearing, requested be omitted from the Court’s publications. By letter of 12 November 2009, the Commission presented its observations on that letter. The oral procedure in Case T‑141/07 was then closed.

38 In Case T‑142/07, the applicant, by letter of 12 October 2009, informed the Court that it had no objection to that case being joined for the purposes of judgment with Cases T‑141/07, T‑145/07 and T‑146/07. The oral procedure in Case T‑142/07 was then closed.

39 In Cases T‑145/07 and T‑146/07, the applicants, at the request of the Court, produced, on 15 October 2009, a letter setting out details of the information in the case-file which they had, at the hearing, requested be omitted from the Court’s publications. The oral procedure in those cases was then closed.

40 After the applicants in Cases T‑141/07, T‑145/07 and T‑146/07 had presented oral argument on the matter at the hearing and the applicant in Case T‑142/07 had also submitted its observations in writing, the Court decided, pursuant to Article 50 of the Rules of Procedure, to join the present cases for the purposes of the judgment.

41 In Case T‑141/07, the applicant claims that the Court should: – annul the contested decision in so far as it concerns the applicant; – in the alternative, annul or reduce the fine imposed on it by the contested decision; – order the Commission to pay the costs.

42 In Case T‑142/07, the applicant claims that the Court should: – annul the contested decision in so far as it concerns the applicant; – in the alternative, annul or reduce the fine imposed on it by the contested decision; – order the Commission to pay the costs.

43 In Case T‑145/07, the applicants claim that the Court should: – annul or substantially reduce the fines imposed on them by the contested decision; – order the Commission to pay the costs; – take any other measure which the Court considers appropriate.

44 In Case T‑146/07, the applicant claims that the Court should: – annul or substantially reduce the fines imposed on it by the contested decision; – order the Commission to pay the costs; – take any other measure which the Court considers appropriate.

45 The Commission contends in each case that the Court should: – dismiss the actions; – order the applicants to pay the costs.

Law

46 The Court observes, as a preliminary point, that the actions brought by the applicants in Cases T‑141/07 and T‑142/07 pursue two objectives, that is to say, principally, an application for the annulment of the contested decision and, in the alternative, an application for the annulment or reduction of the fines. By contrast, the actions brought by the applicants in Cases T‑145/07 and T‑146/07 seek only annulment or reduction of the fines.

47 At the hearing, the applicant in Case T‑141/07, in response to a request from the Court that it submit observations on the exact scope of its arguments, stated, in essence, that the only plea that was liable to entail annulment of the contested decision in its entirety was the plea concerning infringement of the principle of equal treatment in relation to the imputation to GTO’s parent companies of GTO’s conduct.

48 The applicants in Cases T‑141/07, T‑142/07, T‑145/07 and T‑146/07 put forward eight pleas in law in total. The first alleges infringement of the principles governing the attribution of liability for infringements of Article 81 EC, of the presumption of innocence, of the principle that penalties must be specific to the offender, of the principle of equal treatment, of the rights of the defence and of Article 253 EC in relation to the imputation to the parent companies of infringements committed by their various subsidiaries. The second alleges breach of the 1998 Guidelines and infringement of the principles of proportionality and equal treatment, of the rights of the defence and of Article 253 EC in the determination of the starting amounts of the fines according to the gravity of the infringements. The third, advanced solely by the applicants in Case T‑145/07, alleges breach of the 1998 Guidelines and infringement of the principle of proportionality in the determination of the starting amount of the fine by reference to the duration of the infringement in Germany. The fourth, put forward by the applicants in Cases T‑145/07 and T‑146/07, alleges breach of the 1998 Guidelines and infringement of the principle of proportionality in the application of a group multiplier for deterrence in the determination of the starting amounts of the fines. The fifth, advanced by the applicants in Cases T‑141/07 and T‑145/07, alleges breach of the 2002 Leniency Notice and infringement of Article 253 EC and of the principles of the protection of legitimate expectations, proportionality, fairness, equal treatment and of the rights of the defence in the assessment of the applicants’ cooperation. The sixth, advanced by the applicants in Cases T‑141/07 and T‑145/07, alleges infringement of the principles of the protection of legitimate expectations and proportionality in the determination of the reduction of the fines granted for cooperation outside the 2002 Leniency Notice. The seventh, put forward by the applicants in Cases T‑141/07 and T‑145/07, alleges infringement of Article 23(2) of Regulation No 1/2003. Finally, the eighth plea, advanced by the applicant in Case T‑141/07, alleges infringement of the principle of proportionality in the calculation of the final amount of the fines.

The plea alleging infringement of the principles governing the attribution of liability for infringements of Article 81 EC, infringement of the presumption of innocence, of the principle that the penalties must be specific to the offender and of the principle of equal treatment, and infringement of the rights of the defence and of Article 253 EC in relation to the imputation to the parent companies of infringements committed by their subsidiaries

Preliminary observations

49 In the context of this plea, the applicants in Cases T‑141/07, T‑142/07, T‑145/07 and T‑146/07 deny that UTC, OEC, Otis Belgium and GT are liable for the anti‑competitive conduct of their various subsidiaries in Belgium, Germany, Luxembourg and the Netherlands.

50 Although the applicants in Cases T‑145/07 and T‑146/07 advance this plea only in relation to their application for annulment or reduction of the fines, they are to be considered by it to be seeking – like the applicants in Cases T‑141/07 and T‑142/07 – not only annulment or reduction of the fines imposed but also annulment of Article 1 of the contested decision, in so far as the Commission incorrectly made a finding of infringement imputed to the parent companies.

51 Thus, this plea relates, on the one hand, to the legality of the finding of infringement by the parent companies referred to in Article 1 of the contested decision and, on the other, to the legality of the fines imposed on those companies in Article 2 of the contested decision.

52 With regard to the joint and several liability of a parent company for the conduct of its subsidiary, the Court observes that the fact that a subsidiary has a separate legal personality is not sufficient to exclude the possibility of imputing its conduct to the parent company (Case 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, paragraph 132).

53 European Union (‘EU’) competition law refers to the activities of undertakings and the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 54 and the case-law cited).

54 The Courts of the European Union have also stated that, in the same context, the concept of an undertaking must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11; Akzo Nobel and Others v Commission, paragraph 53 above, paragraph 55 and the case-law cited; and Case T‑234/95 DSG v Commission [2000] ECR II‑2603, paragraph 124). They have emphasised that, for the purposes of applying the competition rules, formal separation of two companies resulting from their having distinct legal identity is not decisive. The test is whether or not there is unity in their conduct on the market. Thus, it may prove necessary to establish whether two companies that have distinct legal identities form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market (Imperial Chemical Industries v Commission, paragraph 52 above, paragraph 140, and Case T‑325/01 DaimlerChrysler v Commission [2005] ECR II‑3319, paragraph 85).

55 When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (Akzo Nobel and Others v Commission, paragraph 53 above, paragraph 56 and the case-law cited).

56 Thus, the conduct of a subsidiary may be imputed to the parent company in particular where, although it has a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 27; Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 117; and Akzo Nobel and Others v Commission, paragraph 53 above, paragraph 58 and the case-law cited).

57 In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of the case-law mentioned in paragraph 54 above. Thus, the fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (Akzo Nobel and Others v Commission, paragraph 53 above, paragraph 59).

58 In that regard, it must be made clear that the Commission cannot merely find that an undertaking is able to exert a decisive influence over another undertaking, without checking whether that influence was actually exerted. On the contrary, it is, as a rule, for the Commission to demonstrate such decisive influence on the basis of factual evidence, including, in particular, any management power one of the undertakings may have over the other (see, to that effect, Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, paragraphs 96 to 99; Dansk Rørindustri and Others v Commission, paragraph 56 above, paragraphs 118 to 122; and Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 136).

59 In the specific case in which a parent company holds 100% of the shares in a subsidiary which has infringed the EU competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others v Commission, paragraph 53 above, paragraph 60 and the case-law cited).

60 In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see Akzo Nobel and Others v Commission, paragraph 53 above, paragraph 61 and the case-law cited).

61 Furthermore, whilst it is true that in paragraphs 28 and 29 of its judgment in Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925 the Court of Justice referred, not only to the fact that the parent company owned 100% of the capital of the subsidiary, but also to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative procedure, the fact remains that those circumstances were mentioned for the sole purpose of identifying all the elements on which the General Court had based its reasoning and not to make the application of the presumption mentioned in paragraph 59 above subject to the production of additional indicia relating to the actual exercise of influence by the parent company (Akzo Nobel and Others v Commission, paragraph 53 above, paragraph 62).

62 It is appropriate, in the light of the above principles, to examine the imputation of the infringements committed by Otis Germany, Otis Belgium, Otis Netherlands and GTO to their respective parent companies. In that regard, the Court will examine in turn (i) the imputation to UTC and OEC of the infringements committed in Belgium, Germany and the Netherlands by Otis Belgium, Otis Germany and Otis Netherlands (taken together ‘the Otis subsidiaries’) (recitals 615 to 621 of the contested decision) and (ii) the imputation to UTC, OEC, Otis Belgium and GT of the infringements committed by GTO in Luxembourg (recitals 622 to 626 of the contested decision).

The imputation to UTC and OEC of the infringements committed by the Otis subsidiaries

63 In recital 615 of the contested decision, the Commission explains that ‘[a]lthough [the Otis subsidiaries] were the legal entities that directly participated in the cartels, their owner, OEC and its sole-owner and ultimate parent company, UTC, were able to exercise decisive influence on the commercial policy of each of the subsidiaries during the period of the infringement and, it is presumed, made use of this power’.

64 In recitals 616 to 618 of the contested decision, the Commission finds that the argument that the Otis subsidiaries took all their commercial decisions independently and without any instructions from OEC, the argument that day-to-day operations, including decisions on whether or not to participate in bids [confidential] ( 1 ), were not subject to approval at OEC level, and also the argument that [confidential] are ‘insufficient to rebut the presumption that [the Otis] subsidiaries did not determine independently their own conduct on the market’. Concerning the last argument, the Commission adds, in recital 618 of the contested decision, that [confidential] and that [confidential].

65 The Commission also states in recital 619 of the contested decision that ‘[i]n their replies to the statement of objections, OEC, UTC and their relevant subsidiaries did not provide [it] with evidence clarifying their corporate relationships, the management structure and reporting requirements for the purposes of rebutting the presumption that OEC and UTC exerted decisive influence over the subsidiaries preventing them from determining independently their own conduct on the market’.

66 Finally, in recital 620 of the contested decision, the Commission states that, contrary to OEC’s contention, ‘OEC is not to be held jointly and severally liable for the various infringements of Article 81 [EC] on the basis of “practical or policy reasons”. Rather, liability is exclusively based on the fact that OEC and UTC form part of an economic unit which has committed very serious infringements of [EU] competition law … ’.

67 In a first limb of the plea, the applicants in Cases T‑145/07 and T‑146/07 maintain, in essence, that, having regard to the personal nature of responsibility for infringements of competition law, the latter recognises only two situations in which the parent company may be held responsible for the conduct of its subsidiary: first, where the subsidiary did not decide independently upon its own commercial policy but carried out, in all respects, the instructions given to it by the parent company, which must be proved by the Commission, and, second, where the parent company was aware that its subsidiary was acting unlawfully and failed to bring the conduct to an end although it had the power to do so. The applicants submit that there is no proof to that effect in the contested decision.

68 Thus, the applicants argue that a parent company’s liability cannot be founded on its ability to exercise influence, as is the case when applying Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). The stance adopted by the Commission has the effect that no parent company would ever be in a position to rebut the presumption as construed by the Commission, since it is impossible, except in extreme situations, for a parent of a wholly-owned stock company to have no legal power to exercise influence. The applicant in Case T‑146/07 also asserts that the Commission’s stance runs counter to the presumption of innocence as enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (the ‘ECHR’) and Article 23(2) of Regulation No 1/2003, which authorises the Commission to impose fines only for infringements committed intentionally or negligently.

69 The Court finds, first, that the applicants’ arguments are based on an incorrect reading of the case-law referred to in paragraphs 52 to 61 above. According to that case-law, the Commission cannot, in order to impute the anti-competitive conduct of one company to another, take as its basis the mere ability of one company to exercise influence, as is the case regarding the application of Regulation No 139/2004, without it being necessary to ascertain whether that influence has actually been exercised. On the contrary, it is, as a rule, for the Commission to demonstrate such decisive influence on the basis of factual evidence, including, in particular, any management power one of the undertakings may have over the other. However, according to that case-law, when a parent company holds 100% of the shares in a subsidiary which has engaged in unlawful conduct, there is a rebuttable presumption that the parent company exerts a decisive influence over its subsidiary’s conduct and it is thus sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company. The Court of Justice has thus held that the parent company has the burden of rebutting that presumption by adducing sufficient evidence to show that its subsidiary acts independently on the market (Stora Kopparbergs Bergslags v Commission, paragraph 61 above, paragraph 29, and Akzo Nobel and Others v Commission, paragraph 53 above, paragraph 61).

70 In the present case, it is not disputed that, during the period of the infringement, UTC directly held 100% of the share capital in OEC and, indirectly, through OEC, 100% of the share capital in Otis Belgium, Otis Germany and Otis Netherlands. The Commission was thus correct in presuming that UTC, throughout the period of the infringement, exercised decisive influence on the commercial policy of those subsidiaries. Accordingly, the applicants in Cases T‑145/07 and T‑146/07 cannot maintain that, in the case of subsidiaries wholly owned by their parent company, the Commission has to prove that the subsidiary did not decide independently upon its own commercial policy or that the parent company was aware of its subsidiary’s unlawful conduct and did not bring it to an end although it had the power to do so.

71 Second, with regard to the alleged infringement of the principle of the presumption of innocence, it is necessary to recall that that principle, as it results in particular from Article 6(2) of the ECHR, is one of the fundamental rights which, according to the case-law of the Court of Justice, reaffirmed by Article 6(2) EU and by Article 48 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1), are recognised in the EU legal order. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies inter alia to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 115 and the case‑law cited).

72 The principle of the presumption of innocence implies that every person accused is presumed to be innocent until his guilt has been established according to law (Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II‑4065, paragraph 106).

73 As regards the question whether a rule concerning the imputability of an infringement such as that stated in the case-law cited in paragraph 59 above is compatible with Article 6(2) of the ECHR, the Court points out that the European Court of Human Rights has held that that provision does not preclude presumptions of fact or of law provided for in the criminal law, but requires them to be confined within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (see Salabiaku v. France, judgment of 7 October 1988, Series A no. 141, § 28; see also, to that effect, Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, judgment of 23 September 2008, Reports of Judgments and Decisions 2008, § 40). Thus, the presumption of innocence is not disregarded if in competition proceedings certain conclusions are drawn on the basis of common experience provided that the undertakings concerned are at liberty to refute those conclusions (see, by analogy, the Opinion of Advocate General Kokott in Case C‑8/08 T‑Mobile Netherlands and Others [2009] ECR I‑4529, I‑4533, point 93).

74 In this case, the Commission, first of all, established, in the contested decision, without having recourse to any presumption of fact or law, that the Otis subsidiaries committed infringements of Article 81 EC in Belgium, Germany and the Netherlands.

75 Given that Article 81 EC concerns the conduct of undertakings, the Commission went on to examine whether the economic entity which had committed those infringements also encompassed the parent companies of the Otis subsidiaries. It established that OEC and UTC had exercised decisive influence over the conduct of their subsidiaries, relying on the presumption of liability deriving in particular from the case-law cited in paragraph 59 above. Finally, in compliance with the rights of the defence, those parent companies, which were addressees of the statement of objections, had the opportunity to rebut that presumption by adducing evidence demonstrating the independence of the Otis subsidiaries. The Commission none the less concluded, in recital 621 of the contested decision, that that presumption had not been rebutted.

76 Since the presumption referred to in paragraph 59 above was rebuttable, concerning only the imputation to a parent company of an infringement already established in the case of its subsidiary and arising moreover in the framework of a procedure that observed the rights of the defence, the complaint alleging infringement of the principle of the presumption of innocence must be rejected.

77 Third, nor can the applicants in Cases T‑145/07 and T‑146/07 maintain that the principle that penalties must be specific to the offender has been infringed in this case. By virtue of that principle, which applies in any administrative procedure that may lead to the imposition of penalties under EU competition law, an undertaking may be penalised only for acts imputed to it individually (see, to that effect, Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II‑3757, paragraph 63). However, that principle must coexist with the concept of ‘undertaking’. It is not because of a parent-subsidiary relationship in which the parent company instigates the infringement, nor a fortiori because of the parent company’s involvement in the infringement, but because they constitute a single undertaking for the purposes of Article 81 EC that the Commission is able to address a decision imposing fines to the parent company (see, to that effect, Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 290). In that regard, it must be stated that UTC and OEC were individually penalised for infringements which they were deemed to have committed themselves on account of their close legal and economic links with the Otis subsidiaries (see, to that effect, Metsä-Serla and Others v Commission, paragraph 56 above, paragraph 34). Accordingly, there has been no infringement of the principle that penalties must be specific to the offender.

78 It must therefore be concluded that the Commission was fully entitled to rely on the presumption that OEC and UTC exercised decisive influence on the commercial policy of the Otis subsidiaries during the period of the infringement (recital 615 of the contested decision).

79 In a second limb of this plea, the applicants in Cases T‑145/07 and T‑146/07 submit that, even supposing that 100% ownership of a company is sufficient to establish the presumption of parent-company liability, they produced sufficient evidence to rebut that presumption, contrary to the statement in recital 619 of the contested decision. The Court must therefore consider whether the Commission was correct, in recital 621 of the contested decision, in stating that UTC and OEC had not rebutted the presumption that they were liable for the infringements committed by the Otis subsidiaries.

80 In the first place, the Court must reject UTC’s arguments that the contested decision was insufficiently reasoned with regard to the Commission’s conclusion that UTC had not rebutted the presumption of liability. It is settled case-law that the statement of reasons required under Article 253 EC must disclose in a clear and unequivocal fashion the reasoning followed by the EU authority which adopted the measure in question, so as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63; Case C‑301/96 Germany v Commission [2003] ECR I‑9919, paragraph 87; and Avebe v Commission, paragraph 58 above, paragraph 41). In the present case, the Commission clearly explained, in recitals 616 to 620 of the contested decision (see paragraphs 64 to 66 above), the reasons why it considered that UTC had failed to rebut that presumption.

81 In the second place, if the presumption of liability is to be rebutted, the parent company must adduce sufficient evidence to show that its subsidiary acts independently on the market. The Court must therefore ascertain whether the applicants adduced such evidence, as they claim they did.

82 First, the argument of the applicant in Case T‑146/07 that UTC and OEC are legal entities separate from their subsidiaries is not capable of rebutting the abovementioned presumption, since the formal separation of companies resulting from their distinct legal personality does not preclude them from forming a single undertaking for the purposes of the application of Article 81 EC because of the unity of their conduct on the market (see paragraph 52 above).

83 Second, the separation of the governing and managing organs of UTC and the Otis subsidiaries and [confidential] between the board of OEC and those of the subsidiaries during the period of the infringement – invoked by the applicants in Cases T‑145/07 and T‑146/07 – cannot be regarded as decisive. As the Commission noted in inter alia recital 618 of the contested decision, [confidential] does not as such show that the Otis subsidiaries determined their commercial policy independently. In any event, the fact remains that those statements are not substantiated by documentary evidence, such as the list of names of the members of the statutory organs of those undertakings at the time of the infringement (see, to that effect, Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 69).

84 Third, nor does the fact that UTC is the holding company of a diversified conglomerate group, whose supervision of OEC’s activities is limited to what was required by virtue of UTC’s obligations to its own shareholders under the applicable law, allow the presumption of liability to be rebutted. In that regard, it must specifically be recalled that in the context of a group of companies, a holding company is a company which seeks to regroup shareholdings in various companies and whose function is to ensure that they are run as one (Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 83 above, paragraph 63). In addition, in the present case, UTC itself advanced, in its reply to the statement of objections and in the application, a number of matters attesting to its involvement in the determination of its subsidiaries’ commercial policy which tend to suggest that the Otis subsidiaries do not determine their conduct on the market independently. [confidential].

85 Fourth, contrary to the submission of the applicants in Cases T‑145/07 and T‑146/07, the deployment of formal written policies for compliance with competition law does not rebut the presumption that OEC and UTC are liable for the conduct of their subsidiaries. The fact that such policies are deployed does not establish that those subsidiaries determined their commercial policy on the market independently. The fact that UTC and OEC ensure the implementation of such policies [confidential] or the fact, to which OEC drew attention in the application, that OEC [confidential] tends instead to support the proposition that the Otis subsidiaries are not managed independently.

86 In that context, the Court must also reject the arguments of the applicants in Case T‑145/07 (i) that the fact that a parent company issues rules and business guidelines on certain principles is not evidence of control over detailed day-to-day conduct and (ii) that it is contrary to common sense and elementary principles of justice to use the existence of instructions designed to prevent illegal conduct in order to establish liability for that conduct when the instructions were not obeyed. Those arguments are based on the incorrect premiss that the Commission relied on the fact that those rules and guidelines existed in order to establish OEC’s liability, which is not the case here, as the Commission relied, in recital 615 of the contested decision, on the presumption of liability as stated in settled case-law (see paragraphs 59 and 60 above).

87 Fifth, the fact, to which the applicant in Case T‑146/07 drew attention, that certain employees had disobeyed UTC’s instructions, in particular by concealing their behaviour from their superiors and UTC, does not reverse the presumption that the subsidiaries concerned were not autonomous. In that regard, the distinction drawn by UTC between, on the one hand, the Otis subsidiaries and, on the other, the employees of those subsidiaries, who are said to have committed the infringements whilst concealing their behaviour from their superiors and UTC, is artificial. Those employees are, in relation to the Otis subsidiaries which employ them, in a relationship characterised by the fact that they work for and under the management of each of them and are, throughout the term of that relationship, integrated into those undertakings, thereby forming with each of them an economic unit (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 539, and Case C‑22/98 Becu and Others [1999] ECR I‑5665, paragraph 26).

88 Sixth, as regards the argument raised by the applicants in Case T‑145/07 that the Otis subsidiaries have a ‘degree of autonomy that is sufficient’ to determine all aspects of their conduct on the market in relation to customers and competitors and ‘autonomy’ to conduct their businesses involving all transactions [confidential], the Court finds that the applicants do not maintain that the subsidiaries acted fully autonomously on the market but that instead they had only a degree of autonomy restricted to limited commercial activities.

89 In the third place, the Court must reject the argument of the applicant in Case T‑146/07 that the presumption of liability referred to in paragraph 59 above is an irrebuttable presumption or amounts to a rule of strict liability. The Court of Justice has confirmed in its recent judgment in Akzo Nobel and Others v Commission, paragraph 53 above (paragraphs 60 and 61) that the presumption is rebuttable. The fact that the applicants have not produced, in this instance, evidence capable of rebutting the presumption that the subsidiaries were not autonomous does not mean that the presumption can never be reversed (see, to that effect, the Opinion of Advocate General Kokott in Akzo Nobel and Others v Commission, paragraph 53 above, ECR I‑8241, point 75, and footnote 67).

90 It follows from all the foregoing that the Commission was fully entitled to impute the infringements committed by the Otis subsidiaries in Belgium, Germany and the Netherlands to their parent companies OEC and UTC.

The imputation of the infringement committed by GTO to GT, Otis Belgium, OEC and UTC

– Contested decision

91 In recital 626 of the contested decision, the Commission found that GT, which held [confidential]% of the capital in GTO at the time of the infringement, and Otis Belgium, which held the remaining [confidential]%, had ‘[to] be held jointly and severally liable with GTO for the infringement of Article 81 [EC] which took place in Luxembourg’. It explained to that end that because of ‘close personal, economic and legal links between GTO and its two parents, they [were] considered to form an economic unit … and it [appeared] that GTO [had] not decided independently upon its own conduct on the market but [had] carried out, in all material respects, the instructions given to it by the parents’ (recital 622 of the contested decision). The Commission held that ‘Otis Belgium and GT [had] not rebutted the evidence that they were in a position to exert decisive influence over the commercial policy of GTO, and that they [had] actually exercised their controlling rights and made use of all other means to exercise decisive influence to which they were entitled’ (recital 626 of the contested decision).

92 With regard to the exercise by GT and Otis Belgium of decisive influence over the commercial policy of GTO, the Commission observed, in recital 622 of the contested decision: ‘… [confidential] Therefore, the Commission takes the view that during the infringement in Luxembourg, GTO operated under the joint control of Otis [Belgium] and GT and the commercial policy of GTO was determined by the common understanding of its two shareholders. In addition, the parent companies are linked to GTO’s operation in Luxembourg in the following ways: [confidential].’

93 The Commission notes in recital 623 of the contested decision that ‘the fact that the day-to-day operations of a subsidiary are managed solely by the subsidiary’s officers is not a decisive factor when imputing liability to the parent’ and adds in recital 624 that, ‘because of the allocation of voting rights among the shareholders on the GTO Board’ [confidential], it had to be concluded that ‘every major decision adopted by GTO during the infringement necessarily reflected the will of both Otis [Belgium] and GT’.

94 With regard to the argument put forward by GT that it was not in a position to exercise decisive influence over the development of GTO’s commercial policy, the Commission goes on to explain in recital 625 of the contested decision: ‘[confidential].’

95 Finally, the Commission states in recital 622 of the contested decision that ‘OEC and UTC should also be held liable [for the anti-competitive conduct of GTO], [UTC] being the 100% ultimate parent company of Otis [Belgium]. Via Otis [Belgium], OEC and UTC were able to exercise decisive influence on the commercial policy of GTO throughout the period of the infringement and, it is presumed, made use of this power’.

– The imputation of the infringement committed by GTO to GT

96 The applicant in Case T‑142/07 argues, in the first place, that the reasons stated by the Commission concerning GT’s involvement in the Luxembourg infringement did not meet the requisite legal standard.

97 As has been recalled in paragraph 80 above, the statement of reasons required under Article 253 EC must disclose in a clear and unequivocal fashion the reasoning followed by the EU authority which adopted the measure in question, so as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. As has been seen in paragraphs 91 to 93 above, it is apparent from recital 622 of the contested decision that the Commission considered that, during the period of the infringement in Luxembourg, GTO was operating under joint control of Otis Belgium and GT. With regard to the involvement of GT, the Commission stated in recital 625 of the contested decision [confidential].

98 It follows that the plea concerning the inadequacy of the statement of reasons must be rejected.

99 In the second place, the applicant in Case T‑142/07 claims that there are no grounds for attributing the infringement committed by GTO to GT.

100 The applicant in Case T‑142/07 maintains that the Commission failed to establish that GT exercised decisive influence over GTO’s conduct on the market. It refers to that end to the fact that GT is purely a financial company without any commercial activity of its own whose results depend solely on what its shareholdings produce. It has never generated any turnover, has never had any employees and has never incurred operating costs. Furthermore, GT’s shareholding in GTO is a minority shareholding, which does not exceed what is necessary to protect GT’s financial interests.

101 In that regard, it should be recalled that in the field of competition law, the concept of undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. The mere fact of holding shares, even controlling shareholdings, is insufficient to characterise as economic an activity of the entity holding those shares, when it gives rise only to the exercise of the rights attached to the status of shareholder or member, as well as, depending on the circumstances, the receipt of dividends, which are merely the fruits of the ownership of an asset. On the other hand, an entity which, owning controlling shareholdings in a company, actually exercises that control by involving itself directly or indirectly in the management thereof must be regarded as taking part in the economic activity carried on by the controlled undertaking (Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, paragraphs 107, 111 and 112).

102 In this instance, although GT held only [confidential]% of the share capital of GTO, it is clear that, as is shown by the management agreement [confidential] entered into by GTO and GT (‘the 1987 Agreement’) and the management agreement [confidential] entered into by GTO and Mr D (‘the 1995 Agreement’), the [confidential] operations [confidential]. Under the terms of the 1987 and 1995 Agreements, the [confidential] management entrusted initially to GT and subsequently to Mr D [confidential].

103 Under the 1987 and 1995 Agreements, the person responsible [confidential]. In that regard, the Court observes that, when analysing the existence of an economic entity among a number of companies forming part of a group, account may be taken of the influence of the parent company on pricing policy, production and distribution activities, sales objectives, gross margins, sales costs, cash flow, stocks and marketing (see, to that effect, Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 64 and the case-law cited) but also of all the relevant factors relating to economic, organisational and legal links which tie those companies to one another, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, to that effect, Akzo Nobel and Others v Commission, paragraph 53 above, paragraph 74). It follows that the Commission was fully entitled to hold that GT and, from 1995, Mr D, [confidential], exercised a decisive influence over GTO’s commercial policy.

104 Furthermore, it is not disputed that Mr D himself participated in the anti‑competitive meetings referred to in Article 1(3) of the contested decision (see Tables 8 and 10 in recitals 311 and 347 of the contested decision), [confidential] from 1 January 1996, and that GT was therefore perfectly well aware of GTO’s actions and was implicated in them. The General Court has, in that regard, already held that the anti-competitive conduct of a subsidiary may be imputed to the parent company where there is specific evidence implicating the parent company in the subsidiary’s anti-competitive actions. That is obviously the position in this case, [confidential] (see, to that effect, Case T‑309/94 KNP BT v Commission [1998] ECR II‑1007, paragraph 47). Thus, having regard to the case-law cited in paragraph 87 above, Mr D cannot be dissociated from GT, [confidential], but must on the contrary be regarded as forming an economic unit with it.

105 Accordingly, the Commission established to the requisite legal standard that GT exercised a decisive influence over GTO’s conduct on the market. The complaint concerning the allegedly unlawful imputation of GTO’s conduct to GT must therefore be rejected.

– The imputation of the infringement committed by GTO to Otis Belgium, OEC and UTC

106 The applicants in Cases T‑141/07 and T‑145/07 maintain that the Commission has not established to the requisite legal standard that Otis Belgium, OEC and UTC were responsible for the actions of GTO.

107 In the first place, they submit that the fact that Otis Belgium, OEC and UTC had a stake in GTO does not suffice for GTO’s infringement to be imputed to them. Thus, the notion of joint control, used by the Commission, is irrelevant. In accordance with the Commission’s practice in previous decisions, which was approved by the General Court in Avebe v Commission, paragraph 58 above, parent companies which have a stake in a joint venture are liable for the anti-competitive practices of the latter only if they have been involved in such practices or have been aware of them.

108 As a preliminary point, with regard to the reliance placed by the applicants in Cases T‑141/07 and T‑145/07 on the Commission’s practice in previous decisions, the Court notes that the question of any joint management power of parent companies over their subsidiary must be assessed by reference to the circumstances of each case. Consequently, the Commission’s assessments of the facts in earlier cases cannot be transposed to the present case (see, to that effect, Case T‑282/06 Sun Chemical Group and Others v Commission [2007] ECR II‑2149, paragraph 88). It should also be observed that decisions concerning other cases can be no more than indicative when the circumstances of the cases are not the same (see, to that effect, Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraphs 201 and 205, and Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 60).

109 Contrary to the contention of the applicants in Cases T‑141/07 and T‑145/07, the Court did not, in Avebe v Commission, paragraph 58 above, require that the Commission show, for the purpose of imputing to a parent company the infringement of a jointly-owned subsidiary, that the parent company has itself participated in the cartel or has been aware of the subsidiary’s participation in the cartel. In that judgment, the Court held that a situation in which the parent companies of a common subsidiary jointly control all the shares in the subsidiary and have a joint management power with respect to the subsidiary amounts to a situation analogous to that in Stora Kopparbergs Bergslags v Commission, paragraph 61 above, in which a single parent company held 100% of the shares in its subsidiary, for the purpose of establishing the presumption that that parent company actually exerted influence over its subsidiary’s conduct. It should be noted inter alia that the Court found in Avebe v Commission that the two partners which each held a 50% stake in the joint venture concerned were empowered only jointly to act and sign on behalf of the joint venture, to bind it towards third parties, to bind third parties to it, and to receive and spend funds on its behalf. In addition, the day-to-day management was entrusted to two directors appointed by the parent companies. Last, the parent companies assumed the subsidiary’s commitments jointly and without limitation. The Court found that, as a whole, that factual evidence provided a sufficient basis for the presumption that the parent companies determined jointly their subsidiary’s course of action on the market to the point where it was deemed not to have any real autonomy in the matter (Avebe v Commission, paragraph 58 above, paragraphs 138 and 139).

110 In the present case, contrary to the contention of the applicants in Cases T‑141/07 and T‑145/07, the Commission did not rely merely on the shareholdings of Otis Belgium and, indirectly, OEC and UTC in their subsidiary for the purpose of finding them liable. In recital 622 of the contested decision, the Commission held, first, [confidential]. Second, the Commission held that Otis Belgium was also linked to GTO’s operation in Luxembourg in a number of ways. [confidential] (recital 622 of the contested decision).

111 In the second place, the applicants in Cases T‑141/07 and T‑145/07 maintain that Otis Belgium, OEC and UTC were not in a position to exercise influence over GTO’s commercial policy. In particular, the role of Otis Belgium was limited to providing capital and collecting dividends. Relying in particular on the 1987 Agreement, which entrusted the [confidential] management of GTO to GT, and on the 1995 Agreement, which entrusted it to Mr D, the applicants assert that Otis Belgium did not have power to involve itself in the management of GTO or to appoint the persons authorised to represent GTO and that consequently responsibility for GTO’s unlawful conduct cannot be imputed to Otis Belgium. The Court must therefore consider whether the matters advanced by the Commission in the contested decision establish to the requisite legal standard that Otis Belgium exercised decisive influence on GTO’s commercial policy.

112 In accordance with Article 8 of GTO’s articles of association, decisions of GTO’s board had to be taken with a majority of 80% of the votes. Having regard to the fact that [confidential]% of GTO was owned by Otis Belgium, the remaining [confidential]% being held by GT, and given that, under Article 7 of GTO’s articles of association, each shareholder was represented on the company’s board in proportion to its shareholding, Otis Belgium necessarily, through its representative(s) on the board, during the whole period of the infringement, signalled its agreement to all decisions of the board which had to be taken with a majority of 80% of the votes. It should also be noted in that respect that the quorum required for the adoption of resolutions of GTO’s board was set jointly by GT and Otis Belgium in the instrument creating GTO.

113 Under Article 8 of GTO’s articles of association, the board had powers in respect of all matters not strictly reserved to the shareholders by law or by the articles of association. The board could delegate day-to-day management powers to a manager. Under that provision, day-to-day management of GTO was none the less restricted, as matters not falling within its scope were reserved to the board and required the approval of 80% of its members. Furthermore, as provided in the third resolution of GTO’s board [confidential], confirmed by the GTO board’s decision [confidential], the GTO board had specific powers, which it was not entitled to delegate, [confidential]. It must therefore be found that, first, those powers, held by the board, related to the determination of GTO’s commercial policy, in particular [confidential] and, second, that the exercise of those powers necessarily required the approval of the representative(s) of Otis Belgium within GTO’s board.

114 In response to a written question from the Court, the applicant in Case T‑141/07 also stated that an examination of the records available showed that GTO’s board had not exercised the abovementioned powers, which had been reserved to it by the resolution of 10 February 1987. [confidential]

115 Notwithstanding the matters referred to in paragraphs 112 to 114 above, the applicants in Cases T‑141/07 and T‑145/07 maintain that Otis Belgium, OEC and UTC were not able to exercise decisive influence over GTO’s commercial policy, since its [confidential] management, defined very broadly in the 1987 and 1995 Agreements [confidential], was entrusted, initially, to GT and, subsequently, to Mr D. They claim that, contrary to the Commission’s statement in recital 622 of the contested decision, [confidential]. In their submission, GTO was, throughout the whole period of the infringement, run wholly independently by Mr D.

116 Although, as the applicants in Cases T‑141/07 and T‑145/07 maintain and as has been stated in paragraph 102 above, the [confidential] management powers conferred on Mr D were [confidential], GTO’s articles of association none the less explicitly provided, in Article 8, that ‘this day-to-day management [would] none the less be restricted and [that] matters not falling within the scope thereof [would] be reserved to the board and [would] require the approval of 80% of its members’.

117 In that regard, the Court notes that, in response to a written question from the Court, the applicant in Case T‑141/07 produced the minutes of a number of board meetings held during the period of the infringement. [confidential]

118 In view of the foregoing, the Commission was fully entitled to hold, in recital 622 of the contested decision, that all major decisions within GTO had to be taken with a majority of 80% of the votes and that accordingly during the period of the Luxembourg infringement, GTO operated under the joint control of Otis Belgium and GT and that GTO’s commercial policy was determined by the common agreement of its two shareholders. Consequently, the Commission was entitled to conclude that Otis Belgium and GT should be held liable for the infringement of GTO in Luxembourg.

119 Since, as has been stated in paragraphs 63 to 90 above, OEC and UTC may be considered to have exercised decisive influence on the commercial policy of Otis Belgium, the Commission was also entitled to hold, in recital 622 of the contested decision, that OEC and UTC should be held liable for GTO’s infringement.

120 Since it is clear from the foregoing reasoning that the Commission was fully entitled to hold Otis Belgium, OEC and UTC liable for GTO’s infringement, there is no need to consider the argument of the applicants in Cases T‑141/07 and T‑145/07 that the participation of Otis Belgium in the Belgian cartel is irrelevant.

– Infringement of the rights of the defence

121 The applicants in Cases T‑141/07 and T‑145/07 submit that their rights of defence were infringed because no mention was made in the statement of objections [confidential], on which it claims the Commission relied in recital 622 of the contested decision in order to establish that Otis Belgium was linked to the operation of GTO [confidential].

122 It is settled case-law that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be complied with even if the proceedings in question are administrative proceedings. In that regard, the statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law which requires observance of the rights of the defence in all proceedings. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (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, paragraphs 34 to 36 and the case-law cited; see also Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 26).

123 Respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that the undertaking has committed an infringement (see Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 66 and the case‑law cited).

124 In that regard, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document. If there were other documentary evidence of which the parties were aware during the administrative procedure that specifically supported the Commission’s findings, the fact that an incriminating document not communicated to the person concerned was inadmissible as evidence would not affect the validity of the objections upheld in the contested decision. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence (Aalborg Portland and Others v Commission, paragraph 123 above, paragraphs 71 to 73).

125 In the present case, since it is apparent from paragraphs 106 to 118 above that, irrespective of [confidential], the Commission was entitled to hold, in recital 622 of the contested decision, that, during the period of the infringement in Luxembourg, GTO operated under the joint control of Otis Belgium and GT and that the commercial policy of GTO was determined by the common understanding of its two shareholders, the Commission’s alleged irregularity in failing to mention [confidential] in the statement of objections does not amount to an infringement of the applicants’ rights of defence. The administrative procedure would not have had a different outcome had that piece of information been included in the statement of objections.

126 Furthermore, it is true that the Commission, in point 597 of the statement of objections, merely indicated that it was considering holding Otis Belgium and GT liable for the infringement committed by their subsidiary GTO and stated that major decisions at GTO required the agreement of GT and Otis Belgium. It also remarked upon the direct participation of Otis Belgium in the Belgian cartel and upon the personal links between Mr D, [confidential] of GT, and GTO, of which he was [confidential]. The existence of [confidential] was therefore not mentioned in the statement of objections.

127 However, in any event, the fact that [confidential] can be seen from a number of documents which the applicants in Cases T‑141/07 and T‑145/07 provided to the Commission, in response to the statement of objections, in particular [confidential].

128 The Commission specifically mentioned, in point 597 of the statement of objections, that it was considering holding Otis Belgium liable for the infringement committed by GTO in Luxembourg. Furthermore, the applicants in Cases T‑141/07 and T‑145/07 could not have failed to be aware of the content of those documents and their possible relevance to that liability when they provided them to the Commission, as the applicants had expressly relied on those documents to support their arguments. Accordingly, they cannot, having regard to the case-law referred to in paragraphs 122 to 124 above, plead an infringement of their rights of defence (see, to that effect, Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraph 270).

129 This complaint must accordingly be rejected.

– Infringement of the principle of equal treatment

130 The applicants in Cases T‑141/07, T‑145/07 and T‑146/07, relying on the articles of association of MEE, which do not form part of the Commission’s file and have not been included with their application, argue, in essence, that the Commission infringed the principle of equal treatment by holding Otis Belgium and GT liable for the infringement committed by their subsidiary GTO, whilst it, correctly, considered the control exercised over MEE by its parent companies Mitsubishi Electric Corporation (‘MEC’) and TBI Holding not to be sufficient for the infringement committed by their subsidiary to be imputed to them.

131 In that regard, it is to be noted that, as is clear from paragraphs 106 to 118 above, the Commission was entitled to hold, in recital 622 of the contested decision, that, during the period of the infringement in Luxembourg, GTO operated under the joint control of Otis Belgium and GT and that the commercial policy of GTO was determined by the common understanding of its two shareholders. The Court cannot therefore accept the argument that, like MEE’s parent companies, GTO’s parent companies should not have been held liable for the infringement of GTO.

132 In view of the foregoing and given that the applicants in Cases T‑141/07, T‑145/07 and T‑146/07 maintain that the Commission was correct in finding that the control exercised over MEE by its parent companies was not sufficient for the infringement committed by their subsidiary to be imputed to them, the situations of MEE and GTO cannot be regarded as comparable and consequently the complaint alleging infringement of the principle of equal treatment cannot, in any event, succeed.

133 It is clear from the foregoing that all the complaints concerning the imputability of the infringements of GTO and the Otis subsidiaries to their respective parent companies must be rejected.

The plea alleging breach of the 1998 Guidelines and infringement of the principles of proportionality and equal treatment, of the rights of the defence and of Article 253 EC in the determination of the starting amounts of the fines according to the gravity of the infringements

Preliminary observations

134 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 Papierfabrik August Koehler and Others v Commission, paragraph 122 above, paragraph 112 and the case-law cited).

135 The gravity of infringements of EU competition law must be determined by reference to numerous factors such as, in particular, the specific circumstances and context of the case and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (Case C‑510/06 P Archer Daniels Midland v Commission [2009] ECR I‑1843, paragraph 72, and Prym and Prym Consumer v Commission, paragraph 122 above, paragraph 54).

136 As has been stated in paragraph 24 above, the Commission, in the present case, determined the amounts of the fines by applying the method laid down in the 1998 Guidelines.

137 Although the 1998 Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (see Dansk Rørindustri and Others v Commission, paragraph 56 above, paragraph 209 and the case-law cited, and Case T‑73/04 Carbone‑Lorraine v Commission [2008] ECR II‑2661, paragraph 70).

138 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 56 above, paragraph 211 and the case-law cited, and Carbon-Lorraine v Commission, paragraph 137 above, paragraph 71).

139 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 56 above, paragraphs 211 and 213).

140 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).

Contested decision

141 In the first place, in the section of the contested decision dealing with the gravity of the infringements (Section 13.6.1), the Commission examines the four infringements identified in Article 1 of the contested decision in parallel ‘since [they] … present common features’ (recital 657 of the contested decision). That section is divided into three subsections, the first headed ‘Nature of the infringements’ (Subsection 13.6.1.1), the second headed ‘The size of the relevant geographic market’ (Subsection 13.6.1.2) and the third headed ‘Conclusion on the gravity of the infringement’ (Subsection 13.6.1.3).

142 In the subsection headed ‘Nature of the infringements’, the Commission explains in recitals 658 and 659 of the contested decision: ‘(658) The infringements that are the subject of this Decision consisted primarily of secret collusion between cartel participants to share markets or freeze market shares by allocating projects for the sale and installation of new elevators and/or escalators, as well as not to compete with each other for 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.’

143 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’.

144 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.

145 In the subsection headed ‘The size of the relevant geographic market’, the Commission maintains, in recital 670 of the contested decision, that ‘[t]he cartels that are the subject of [the contested] decision covered the whole territories of Belgium, Germany, Luxembourg 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’.

146 In the subsection headed ‘Conclusion on the gravity of the infringement’, the Commission states, in recital 671 of the contested decision, that ‘[t]aking into account the nature of the infringements and the fact that each of them covered the whole territory of a Member State (Belgium, Germany, Luxembourg or the Netherlands)’, each addressee has committed one or several very serious infringements of Article 81 EC. It concludes that ‘these factors are such that the infringements must be regarded as very serious even if their actual impact cannot be measured’.

147 In the second place, in the section of the contested decision headed ‘Differential treatment’ (Section 13.6.2), the Commission sets a starting amount of the fine for each undertaking to have participated in the various cartels (see paragraphs 27 to 30 above), which takes account, according to recital 672 of the contested decision, of ‘the effective economic capacity of the offenders to cause significant damage to competition’. The Commission explains in recital 673 of the contested decision that, ‘[t]o that end, the undertakings can be sub-divided into several categories according to their turnover in elevators and/or escalators, including, where applicable, maintenance and modernisation services’.

The classification of the Luxembourg infringement as ‘very serious’

148 The applicant in Case T‑141/07 maintains that, by classifying the Luxembourg infringement as ‘very serious’, the Commission misapplied the 1998 Guidelines, regard being had to the limited geographic scope of the infringement, which is usually taken into account when the Commission takes decisions, and to the limited impact of the practices concerned on the relevant market. It concludes that the starting amount of EUR 10 million set for the Luxembourg infringement must be reduced. The applicant also argues that the Commission failed to take account of the total value of the market affected by the Luxembourg cartel. Although the applicant in Case T‑141/07 put the latter argument forward in the context of its plea alleging the incorrect classification of the Luxembourg infringement, it is clear from its pleadings that the complaint relates, in essence, to the determination of the general starting amount of the fine and it is therefore considered in paragraphs 166 to 178 below.

149 In the first place, the applicant in Case T‑141/07 maintains that the assessment of the gravity of an infringement must take into account the actual impact of the infringement on the market where this can be measured. In its submission, the impact of the Luxembourg infringement was insignificant, which should have led the Commission to limit the amount of the fine imposed on GTO. To substantiate that claim, GTO refers in particular to the fact that the agreements were not complied with and were ineffective, to the fact that some undertakings did not participate in the cartel, which allowed some degree of competition to be maintained, and to the fact that, amongst the cartel members, the loss of tenders to third-party undertakings was not offset by a reallocation of existing projects. The applicant in Case T‑141/07 also argues that only some projects were covered by the cartel.

150 The Court recalls that, as regards the assessment of the gravity of the infringement, the 1998 Guidelines state, in the first and second paragraphs of Section 1.A, that: ‘In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where