Cases T-144/07, T-147/07 to T-150/07 and T-154/07

ThyssenKrupp Liften Ascenseurs NV and Others

v

European Commission

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

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Effect on trade between Member States – Criteria for assessment – Possible significant effect – Agreement covering the whole territory of a Member State – Partitioning of national markets – Not permissible

(Arts 81 EC and 82 EC)

2. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Effect on trade between Member States – Appreciable effect – Assessment in the light of the position and importance of the parties on the market

(Art. 81 EC)

3. Competition – Division of powers between the Commission and the national competition authorities – Commission Notice on cooperation within the Network of Competition Authorities – Right of undertakings to have their cases dealt with by a given competition authority – No such right

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 11(6); Commission Notice 2004/C 101/03, paras 8 and 31)

4. European Communities – Rules on languages – Notification of documents in a language other than the language of the parties – Parties’ consent – No irregularity

(Council Regulation No 1, Art. 3)

5. Competition – European Union rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2))

6. Competition – European Union rules – Infringements – Attribution – Parent company and subsidiaries – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2))

7. Competition – European Union rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries – Infringement of the principle that penalties must be specific to the offender – None – Infringement of the presumption of innocence – None

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2))

8. Competition – European Union rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries – Subsidiary held by an intermediate holding company – Circumstance not sufficient to rebut the presumption

(Art. 81(1) EC)

9. Acts of the institutions – Statement of reasons – Obligation – Scope – Decisions – Correction during the proceedings before the Court of shortcomings in the statement of reasons – Not permissible

(Art. 253 EC)

10. Procedure – Measures of inquiry – Hearing of witnesses

(Rules of Procedure of the General Court, Arts 64 and 65)

11. Competition – Fines – Commission decision finding an infringement adopted after a national competition authority has provisionally granted amnesty – Infringement of the principle ne bis in idem – None

(Art. 81 EC; Convention implementing the Schengen Agreement, Art. 54; Council Regulation No 1/2003, Arts 5, 14 and 23)

12. Competition – Fines – Commission decision finding an infringement adopted after a national competition authority has provisionally granted amnesty – Infringement of principle of the protection of legitimate expectations – None – Infringement of the principle of sound administration – None

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

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Criteria for assessment

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

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

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

15. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Account taken of the effective economic capacity of the undertaking to cause damage

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

16. Competition – Fines – Amount – Determination – Deterrent effect

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

17. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement – Concept

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

18. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine in return for cooperation of the fined undertaking – Conditions – Significant added value of the evidence provided by the undertaking concerned

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

19. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Commission’s discretion

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

20. Competition – Fines – Amount – Determination – Reduction of the fine for cooperation of the fined undertaking – Conditions – Reduction of the fine for not contesting the facts

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

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

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

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

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

23. Competition – Fines – Amount – Determination – Criteria – Non-imposition or reduction of the fine for cooperation of the fined undertaking – Reductions granted, first, under the Leniency Notice and, second, for not contesting the facts outside the scope of the Leniency Notice

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

24. Competition – Fines – Amount – Determination – Criteria – Overall turnover of the undertaking concerned

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 5(b))

25. Competition – Fines – Amount – Determination – Criteria – Observance of the principle of proportionality – Conditions

(Council Regulation No 1/2003, Art. 23(2))

1. The interpretation and application of the condition relating to effects on trade between Member States, which is found in Articles 81 EC and 82 EC, must take as its starting point the purpose of the condition, which is to define, in the context of the law governing competition, the boundary between the areas respectively covered by EU law and the law of the Member States. Thus, EU law covers any agreement or any practice which is capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off domestic markets or by affecting the structure of competition within the common market.

For an agreement, decision or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective elements of fact and law, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concerns that they might hinder the attainment of a single market between Member States. Moreover, that influence must not be insignificant. Accordingly, an effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive. A cartel extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the Treaty is designed to bring about.

(see paras 55-57, 60)

2. The influence which an agreement or concerted practice may have on trade between Member States is to be determined by taking into account in particular the position and importance of the parties on the market for the products concerned. When undertakings participating in a cartel jointly represent the vast majority of supplies of the products concerned on the market in question, that cartel may be considered capable of having an appreciable effect on trade between Member States.

Moreover, the Commission is under no obligation to prove that the anti-competitive practices have an appreciable effect on trade between Member States. Indeed, Article 81(1) EC requires only that anti-competitive agreements and concerted practices should be capable of having an effect on trade between Member States.

(see paras 67-69)

3. It is clear from the provisions of Regulation No 1/2003 that the Commission retains a leading role in investigating and finding infringements of the EU competition rules, which is not affected by the parallel powers of the national competition authorities under that regulation. Indeed, under Article 11(6) of Regulation No 1/2003, the Commission is entitled to initiate proceedings for the adoption of a decision even if a national authority is already acting on a case, following consultation of that authority. Furthermore, under that provision, the Commission’s initiation of proceedings will relieve a national competition authority of its competence to apply the EU competition rules in the case.

Moreover, according to paragraph 31 thereof, the Notice on cooperation within the Network of Competition Authorities does not create individual rights for the undertakings involved to have the case dealt with by a particular authority. Accordingly, an undertaking cannot maintain that it has a right or legitimate expectation that national competition authorities will investigate a given infringement in place of the Commission.

In addition, paragraph 8 of that notice has no binding effect, its wording showing that the mere possibility of sharing tasks to which it refers does not impose an obligation on the Commission not to deal with a case where the conditions set out in paragraph 8 are met.

(see paras 76-77, 80)

4. The Commission is a multilingual institution which is to be regarded as able to work in all the official languages of the Community. An applicant undertaking cannot claim that the notification of the statement of objections and the decision closing the administrative procedure in one official language, when it has used two other official languages during the administrative procedure, impedes its rights of defence where it acknowledges having consented to the notification of the documents in that language.

(see paras 86, 414)

5. 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. In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking. 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.

In the specific case in which a parent company has a 100% shareholding in a subsidiary which has infringed the EU competition rules, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary.

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 paras 94-97, 310-313)

6. In the specific case in which a parent company has a 100% shareholding in a subsidiary which has infringed the EU competition rules, there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary. Where the organisational, economic and legal links between those undertakings can establish that the parent companies exercise an influence over the strategies of their subsidiaries, those undertakings may be viewed as a single economic entity.

However, the fact that the applicant undertakings participated in the administrative procedure independently and gave individual replies to the statement of objections does not rebut the presumption of the parent companies’ liability for the conduct of their subsidiaries. While the fact that a parent company presents itself as the Commission’s sole interlocutor concerning an infringement may point to the exercise of a decisive influence over a subsidiary’s conduct, the fact that the subsidiaries of a group give separate replies to a statement of objections cannot, however, constitute proof of the independence of those subsidiaries.

(see paras 96, 125-127)

7. In accordance with the principle that penalties must be specific to the offender, which is applicable in any administrative proceedings which may lead to the imposition of penalties under the EU competition rules, an undertaking may be penalised only for acts imputed to it individually. However, that principle must coexist with the concept of an undertaking. It is not because of a parent-subsidiary relationship in which the parent company instigates the infringement, nor a fortiori because of the parent company’s involvement in the infringement, but because they constitute a single undertaking for the purposes of Article 81 EC that the Commission is able to address a decision imposing fines to the parent company. The Commission’s practice in previous decisions cannot be transposed to a particular case. Indeed, decisions in other cases can only give an indication, since the facts of the cases are not the same.

The principle of the presumption of innocence, as it results in particular from Article 6(2) of the European Convention on Human Rights, is one of the fundamental rights which are recognised in the legal order of the European Union and has, moreover been reaffirmed by Article 6(2) EU and Article 48(1) of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to procedures relating to infringements of the competition rules applicable to undertakings which may result in the imposition of fines or periodic penalty payments.

In that context, a rule concerning the possibility of imputing an infringement, such as the presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries, does not breach that presumption. The European Court of Human Rights has held that Article 6 of the European Convention on Human Rights 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. 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 paras 106-108, 112, 114)

8. The possibility of imposing a penalty on the ultimate parent company for its subsidiary’s unlawful conduct does not mean that an intermediate holding company or the subsidiary itself may not be penalised, provided that the Commission is entitled to regard those companies as forming a single undertaking. Thus, in such case, the Commission may, if the conditions governing imputation are met, choose to penalise the subsidiary which participated in the infringement, the intermediate parent company which controlled it during the relevant period and the ultimate parent company of the group. In that regard, 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.

(see paras 119, 122)

9. Whilst, in stating the reasons for the decisions which it takes to enforce the rules on competition, the Commission is not required to discuss all the issues of fact and law and the considerations which have led it to adopt its decision, it is none the less required under Article 253 EC to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the Courts of the European Union and the persons concerned the circumstances in which it has applied the Treaty. In addition, other than in exceptional circumstances, the statement of reasons must be contained in the decision itself, and it is not sufficient for it to be explained subsequently for the first time before the Court. Thus the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him.

(see paras 133, 146, 399)

10. As regards the assessment by the court at first instance of applications made by a party for measures of organisation of procedure or measures of inquiry, the General Court is the sole judge of any need to supplement the information available to it concerning the cases before it.

In that regard, an applicant undertaking’s request for witnesses to be heard cannot be granted when the statements which the applicant seeks to obtain before the General Court have already been given before the Commission and were considered not to be supported by documentary evidence and even to be contradicted by certain information in the file.

A request for a previous Commission decision to be produced cannot be regarded as necessary, since the Commission’s practice in previous decisions cannot serve as a legal framework for the imposition of fines in competition matters.

(see paras 151-153, 211)

11. The principle non bis in idem, also enshrined in Article 4 of Protocol No 7 to the European Convention on Human Rights, constitutes a fundamental principle of EU law the observance of which is guaranteed by the Courts of the European Union. In the field of EU competition law, the principle precludes an undertaking from being held liable by the Commission, or made the defendant to proceedings brought by the Commission, a second time in respect of anti-competitive conduct for which it has already been penalised or of which it has been exonerated by a previous decision of the Commission that is no longer amenable to challenge. The application of the principle non bis in idem therefore presupposes that a ruling has been given on the question whether an offence has in fact been committed or that the legality of the assessment thereof has been reviewed. Thus, the principle non bis in idem merely prohibits a fresh assessment in depth of the alleged commission of an offence which would result in the imposition of either a second penalty, in addition to the first, in the event that liability is established a second time, or a first penalty in the event that liability not established by the first decision is established by the second.

As for the question whether a decision of a national competition authority can prevent the Commission from penalising the same undertaking a second time or making it the defendant to proceedings a second time, the application of the principle non bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. That principle therefore precludes a penalty being imposed on the same person more than once for the same unlawful conduct for the purpose of protecting the same legal asset.

In that regard, a provisional amnesty decision taken by a national competition authority, as it is not a definitive bar on further prosecution of an infringement of competition law, does not prevent the Commission from finding and imposing penalties for that infringement.

Moreover, even supposing that Article 54 of the Convention implementing the Schengen Agreement, inasmuch as it constitutes the expression of a general principle of EU law, namely the principle non bis in idem, could be relied upon in the field of EU competition law, a provisional amnesty decision taken by a national competition authority cannot, in any event, be regarded as falling within the scope of that provision. Indeed, the provisional grant of leniency does not have the finality of a definitive bar on further prosecution, as is required by that provision.

(see paras 158-161, 166-167, 174-176)

12. In the case of a Commission decision imposing a penalty for an infringement of the EU competition rules after national competition authorities have adopted provisional amnesty decisions, an applicant undertaking cannot rely on the principle of protection of legitimate expectations when it puts forward no evidence to show, on the one hand, that the Commission gave it precise assurances that the acts of those authorities would protect it from any proceedings and any penalty or, on the other, that it received precise assurances from those authorities that the acts that they adopted would prevent the Commission from finding and imposing penalties for that infringement.

Nor does the Commission’s failure to take account of the provisional amnesty decisions of national competition authorities infringe the principle of sound administration. Although the Commission must, in accordance with the principle of natural justice, take account of any penalties that have already been borne by the undertaking in question in respect of the same conduct where these were imposed for infringement of the law relating to cartels of a Member State and where, consequently, the infringement was committed within the European Union, that is not the situation where those national authorities imposed no fines on the applicant undertaking.

(see paras 181, 185-186)

13. 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. In this connection, the size of the relevant market is not as a rule a factor which must be taken into account, but just one among a number of other factors for evaluating the gravity of the infringement, since moreover the Commission is not obliged to define the market concerned or to assess its size where the infringement in question has an anti-competitive object. The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty do not provide that fines are to be calculated according to the overall turnover of undertakings or their turnover on the market affected. However, nor do they preclude the Commission from taking either figure into account in determining the amount of the fine in order to ensure compliance with the general principles of EU law and where circumstances demand it.

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

The same is true of the fact that the impact of the infringement on the market was not taken into account. Under Section 1A of the Guidelines, the Commission must, when assessing the gravity of the infringement, undertake an examination of the actual impact on the market only where it is apparent that that impact can be measured. In order to assess that impact, the Commission must take as a reference the competition that would normally have existed had there been no infringement. However, when the Commission considers that it was impossible to measure the precise effects of an infringement on the market – and the undertakings concerned cannot show otherwise – and bases its decision on the serious nature of the infringement and on its geographic scope without taking into account the impact of the infringement on the market, it does not manifestly go beyond the bounds of the margin of assessment that it has when setting fines for infringements of the competition rules.

(see paras 193, 208-211, 215-216, 218-220, 226-230, 239-240, 243)

14. Even assuming that, when it finds in one and the same decision that a number of very serious infringements have been committed, the Commission were required to maintain a coherent relationship between the general starting amounts and the sizes of the various markets affected, there is no indication that the general starting amounts set for infringements committed in a number of Member States lack coherence, or that they were the result of failing to follow any supposed method of calculation, where the Commission set general starting amounts that were larger where the size of the market was larger, although it did not use a precise mathematical formula – and was not in any event required to do so.

(see paras 235-236)

15. In the context of calculating fines imposed under Article 23(2) of Regulation No 1/2003, differentiated treatment of the undertakings concerned is inherent in the exercise of the Commission’s powers under that provision. In exercising its discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of the undertakings concerned in order to ensure that, in each case, the EU competition rules are fully effective. Thus, according to the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, where an infringement is sufficiently serious, it may be necessary in cases involving several undertakings, such as cartels, to apply weightings to the general starting amount in order to establish a specific starting amount taking account of the weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type. In particular, it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers.

Furthermore, in accordance with the seventh paragraph of Section 1A of the Guidelines, the differentiation between undertakings involved in the same infringement need not be governed by arithmetic calculation. Indeed, the principles of proportionality and equal treatment do not dictate that the starting amount of the fine should represent the same percentage of individual turnover for all the various members of a cartel. Thus, to check whether a division of the members of a cartel into categories is consistent with the principles of equal treatment and proportionality, the General Court, in the course of its review of the legality of the way in which the Commission exercised its discretion in the area, must restrict itself to reviewing whether that division is coherent and objectively justified. When an undertaking has participated only in one part of a cartel, its capacity to cause significant damage to competition is less. Accordingly, a Commission decision that determines the specific starting amount of the fine in a different way in relation to such an undertaking is not discriminatory.

Moreover, the fact that the starting amount of the fine does not necessarily represent the same percentage of respective turnovers for all members of a cartel is inherent in the method of dividing undertakings into categories, which has the consequence that a flat-rate starting amount is fixed for all the undertakings in the same category. Although such an approach ignores the differences in size between undertakings in the same category, it cannot in principle be condemned.

Lastly, EU law contains no general principle that the penalty must be proportionate to the undertaking’s size on the market for the products in respect of which the infringement was committed.

(see paras 247-248, 253-254, 259-260, 263, 274, 277)

16. The need to ensure that a fine has a sufficient deterrent effect, where that need is not found to justify raising the general level of fines in the context of the implementation of a competition policy, requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed, so that the fine is not rendered negligible, or on the contrary excessive, in particular in light of the financial capacity of the undertaking in question, in accordance with the requirements arising from, on the one hand, the need to ensure effectiveness of the fine and, on the other, compliance with the principle of proportionality.

In that regard, the Commission is entitled to use the overall turnover of each undertaking participating in a cartel as a criterion relevant for the purpose of setting a deterrence multiplier. Thus, the size and overall resources of an undertaking are relevant criteria in view of the objective pursued, namely ensuring that the fine is effective by adjusting its amount in light of the overall resources of the undertaking and its capacity to raise the funds necessary to pay that fine. The setting of the rate of increase of the starting amount in order to ensure that the fine has a sufficiently deterrent effect is intended more to ensure the effectiveness of the fine than to reflect the harmfulness of the infringement to normal competition and thus the gravity of the infringement.

An increase in the starting amount to ensure the deterrent objective of the fine is also justified, as that procedure entails applying differential treatment to the members of an individual cartel to take account of the way in which they are actually affected by the fine. Such an increase does not mean that there is an infringement of the principle of equal treatment merely because the Commission refers to the overall turnover of the participants, rather than to their turnover within the European Union, or indeed on the relevant national market, in order to assess the need to increase the amounts of the fines so as to ensure their deterrent effect.

(see paras 285, 287, 292, 294-295)

17. The concept of repeated infringement, as understood in a number of national legal orders, implies that a person has committed new infringements after being punished for similar infringements. Furthermore, Section 2 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty specifically mentions repeated infringement of the same type by the same undertakings among the illustrative list of aggravating circumstances which may justify an increase in the basic amount of a fine.

In that connection, it cannot be accepted that the Commission is entitled to decide, when making a determination as to the aggravating circumstance of repeated infringement, that an undertaking should be held liable for a previous infringement in relation to which it was not penalised by a Commission decision and in the establishment of which it was not the addressee of a statement of objections, with the result that such an undertaking was not given an opportunity, in the procedure leading to the adoption of the decision establishing the previous infringement, to make representations with a view to disputing that it formed an economic unit with certain other undertakings.

That conclusion appears all the more valid since, whilst it is true that the principle of proportionality requires that the time that has elapsed between the infringement at issue and a previous breach of the competition rules be taken into account in assessing the undertaking’s tendency to infringe those rules, the Commission cannot be bound by any limitation period when reaching a finding of repeated infringement.

Similarly, whilst it would be reasonable to assume that a parent company would actually have knowledge of a previous Commission decision addressed to a subsidiary of which it owns almost the entire share capital, such knowledge cannot remedy the absence in the previous decision of any finding that the parent company and the subsidiary form an economic unit reached for the purpose of imputing to the parent company liability for the previous infringement and increasing the fines imposed on the parent company for repeated infringement.

(see paras 308, 319-320, 322)

18. The Notice on immunity from fines and reduction of fines in cartel cases constitutes an instrument intended to define, while complying with higher-ranking law, the criteria which the Commission proposes to apply in the exercise of its discretion in setting fines imposed for infringements of the EU competition rules. That discretion is thus subject to a self-imposed limitation which is not, however, incompatible with the Commission retaining a considerable margin of assessment.

Thus, the Commission enjoys a broad margin of assessment when it is required to determine whether the evidence provided by an undertaking that has stated that it wishes to benefit from the Leniency Notice represents significant added value for the purposes of point 21 of the notice.

Similarly, the Commission, once it has found that the evidence represents significant added value within the meaning of point 21 of the Leniency Notice, has a margin of assessment when it is required to determine the exact level of the reduction of the fine to be granted to the undertaking concerned. The first paragraph of point 23(b) of the Leniency Notice in fact provides for fine-reduction bands for the various categories of undertakings concerned. In view of the abovementioned margin of assessment, it is only where the Commission manifestly goes beyond the bounds of that margin that it may be criticised by the EU judicature.

Accordingly, the Commission does not make a manifest error of assessment in setting the reduction in the fine under the Leniency Notice at the minimum level within such a band where the information provided by the undertaking concerned was already in its possession, or did not relate to facts previously unknown to it, and, although it may have strengthened the Commission’s ability to prove the infringement, does not represent significant added value. Nor can an undertaking claim to be entitled to a further reduction in the fine imposed on it by the Commission on account of a document dating from the time of the infringement which it provided to the Commission, where that document was already in the Commission’s possession and the undertaking merely provided an additional explanation so that the document’s significance could be understood.

Furthermore, the Commission is not entitled, in its appraisal of the cooperation provided by members of a cartel, to disregard the principle of equal treatment. That principle is not disregarded where, first, evaluation of the added value of an application under the Leniency Notice is made by reference to evidence already in the Commission’s possession and, second, one of the undertakings concerned has provided contemporaneous documentary evidence representing significant added value, whilst another has produced only one piece of contemporaneous evidence, so that, since the two undertakings are not in a similar position, the differential treatment applied to them is justified.

(see paras 332-333, 335, 337, 350, 355, 357, 361, 363, 367-369)

19. An applicant undertaking that has been fined for infringement of the EU competition rules cannot rely on the principle in dubio pro reo to seek a more favourable percentage reduction in the fine imposed by the Commission in a case in which the reasons in the decision that relate to determination of that percentage are alleged to be uncertain. The principle relates to the taking of evidence regarding the existence of an infringement and is intended to establish whether the Commission’s findings of fact in a contested decision are supported by the evidence which it has adduced.

(see para. 343)

20. Unlike the second indent of Section D2 of the 1996 notice on the non-imposition or reduction of fines in cartel cases, the 2002 notice on immunity from fines and reduction of fines in cartel cases does not provide for any reduction in the fine for undertakings which, after receiving a statement of objections, do not substantially contest the facts on which the Commission bases its allegations. Under the 2002 notice, in order to qualify for a reduction in a fine, an undertaking must provide the Commission with evidence of the suspected infringement which offers significant added value with respect to the evidence already in the Commission’s possession.

In that regard, in accordance with points 21 and 22 of the 2002 Leniency Notice, in assessing the added value of the evidence provided by an undertaking, the Commission must take account not only of the nature and/or level of detail of the evidence, but also of the evidence already in its possession at the time when the undertaking concerned makes its application. Consequently, the Commission carries out its assessment by reference to both the quality of the cooperation of the undertaking concerned and the comparison of the added value in question with the evidence already in its possession.

(see paras 378-379, 382, 393, 398)

21. The right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is clear that the EU authorities have given him precise assurances, thereby causing him to entertain justified expectations. On the other hand, a person may not plead infringement of the principle of the protection of legitimate expectations unless he has been given precise assurances by the authorities. Information that is precise, unconditional and consistent which comes from an authorised and reliable source constitutes such an assurance.

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

Nor can the Commission’s practice in previous decisions serve as a legal framework for the imposition of fines in competition matters.

(see paras 421-425)

22. The principle of proportionality requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.

In that regard, a Commission decision which grants only a minimal reduction of 1% of the fine for not contesting the facts and has regard to the limited value of cooperation offered after the statement of objections does not infringe the principle of proportionality where that reduction is added to those already granted under the Notice on immunity from fines and reduction of fines in cartel cases.

(see paras 428, 432, 449)

23. In its appraisal of the cooperation provided by cartel members during the administrative procedure, the Commission is not entitled to disregard the principle of equal treatment. However, leaving aside the fact that reductions in the fines granted under the Notice on immunity from fines and reduction of fines in cartel cases and reductions granted for reasons falling outside the scope of that notice constitute separate stages in the calculation of the fines, undertakings which have cooperated both under that notice and outside the scope thereof, on the one hand, and undertakings which have cooperated solely outside the scope of the notice, on the other, are not in the same situation. Accordingly, the Commission is fully entitled to apply a reduction in the fine for cooperation outside the scope of the Leniency Notice, on the one hand, directly to the total amount of the fine as regards undertakings which have not cooperated under that notice and, on the other, to the amount which has already been reduced pursuant to that notice as regards undertakings which have cooperated thereunder.

(see paras 435-437)

24. Under Article 23(2) of Regulation No 1/2003, for each undertaking and association of undertakings participating in an infringement of the EU competition rules the fine is not to exceed 10% of its total turnover in the preceding business year. The turnover figure referred to in that provision is the overall turnover of the undertaking concerned. Thus, the 10% of turnover limit laid down in that provision must be calculated on the basis of the aggregated turnover of all the companies comprising the economic unit that acted as an undertaking for the purposes of Article 81 EC.

(see paras 443-444)

25. By virtue of the principle of proportionality, in the determination of the amounts of fines for infringements of the EU competition rules, such fines must not be disproportionate to the aims pursued, that is to say, to compliance with the competition rules, and the amount of the fine imposed on an undertaking for an infringement of competition law must be proportionate to the infringement, viewed as a whole, account being taken, in particular, of the gravity of the infringement. Furthermore, in determining the amounts of fines, the Commission is entitled to take into account the need to ensure that fines have a sufficient deterrent effect.

In that regard, first, infringements consisting primarily of secret collusion between cartel participants to share markets or freeze market shares by allocating projects for the sale and installation of new elevators and/or escalators, as well as not to compete with each other for the maintenance and modernisation of elevators and escalators, are, by their very nature, among the most serious infringements of Article 81 EC. In this connection, the relatively small size of the market for the products in question, assuming that factor to be established, is of only lesser importance compared with all the other factors evidencing the gravity of the infringement.

Second, the rule that the fines be proportionate to the size and economic strength of the economic units concerned, which acted, for the purposes of Article 81 EC, as undertakings, is not infringed where the fines do not exceed the ceiling referred to in Article 23(2) of Regulation No 1/2003, the purpose of which is to ensure that fines are not disproportionate in relation to the size of the undertaking.

Third, the Commission, when calculating fines, may take into account, inter alia, the size and economic strength of the economic unit which, for the purposes of Article 81 EC, is acting as an undertaking. However, it is possible that the relevant undertaking to be taken into account is not each of the subsidiaries which participated in the infringements found, but the undertakings constituted by the parent company and each of the subsidiaries.

Fourth, the Commission is not required, when determining fines according to the gravity and duration of the infringement, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their turnover on the market concerned by the infringement. The final amount of the fine is not necessarily an appropriate factor in determining a lack of proportionality of the fine in view of the size of the participants in the cartel. That final amount is set, inter alia, on the basis of various factors linked to the individual conduct of the undertaking in question, such as the duration of the infringement, the existence of aggravating or attenuating circumstances and the degree to which that undertaking cooperated, but not to its market share or turnover.

(see paras 450-456)

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

13 July 2011 ( )

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

In Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07,

ThyssenKrupp Liften Ascenseurs NV, established in Brussels (Belgium), represented initially by V. Turner and D. Mes, and subsequently by O.W. Brouwer and J. Blockx, lawyers,

applicant in Case T‑144/07,

ThyssenKrupp Aufzüge GmbH, established in Neuhausen auf den Fildern (Germany),

ThyssenKrupp Fahrtreppen GmbH, established in Hamburg (Germany),

represented initially by U. Itzen and K. Blau-Hansen, and subsequently by U. Itzen, K. Blau-Hansen and S. Thomas, and finally by K. Blau-Hansen and S. Thomas, lawyers,

applicants in Case T‑147/07,

ThyssenKrupp Ascenseurs Luxembourg Sàrl, established in Howald (Luxembourg), represented by K. Beckmann, S. Dethof and U. Itzen, lawyers,

applicant in Case T‑148/07,

ThyssenKrupp Elevator AG, established in Düsseldorf (Germany), represented by T. Klose and J. Ziebarth, lawyers,

applicant in Case T‑149/07,

ThyssenKrupp AG, established in Duisburg (Germany), represented initially by M. Klusmann and S. Thomas, lawyers, and subsequently by M. Klusmann,

applicant in Case T‑150/07,

ThyssenKrupp Liften BV, established in Krimpen aan den IJssel (Netherlands), represented by O.W. Brouwer and A. Stoffer, lawyers,

applicant in Case T‑154/07,

v

European Commission, represented, in Cases T‑144/07 and T‑154/07, by A. Bouquet and R. Sauer, acting as Agents, and by F. Wijckmans and F. Tuytschaever, lawyers, in Cases T‑147/07 and T‑148/07, initially by R. Sauer and O. Weber, and subsequently by R. Sauer and K. Mojzesowicz, acting as Agents, and in Cases T‑149/07 and T‑150/07, by R. Sauer and K. Mojzesowicz, acting as Agents,

defendant,

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

THE GENERAL COURT (Eighth Chamber),

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

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearings on 3, 7 and 10 September 2009,

gives the following

Judgment

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

2 In the contested decision, the Commission of the European Communities held that the following companies had infringed Article 81 EC:

– Kone Belgium SA (‘Kone Belgium’), Kone GmbH (‘Kone Germany’), Kone Luxembourg Sàrl (‘Kone Luxembourg’), Kone BV Liften en Roltrappen (‘Kone Netherlands’) and Kone Oyj (‘KC’) (referred to, collectively and individually, as ‘Kone’);

– Otis SA (‘Otis Belgium’), Otis GmbH & Co. OHG (‘Otis Germany’), General Technic-Otis Sàrl (‘GTO’), General Technic Sàrl (‘GT’), Otis BV (‘Otis Netherlands’), Otis Elevator Company (‘OEC’) and United Technologies Corporation (‘UTC’) (referred to, collectively and individually, as ‘Otis’);

– Schindler SA (‘Schindler Belgium’), Schindler Deutschland Holding GmbH (‘Schindler Germany’), Schindler Sàrl (‘Schindler Luxembourg’), Schindler Liften BV (‘Schindler Netherlands’) and Schindler Holding Ltd (‘Schindler Holding’) (referred to, collectively and individually, as ‘Schindler’);

– ThyssenKrupp Liften Ascenseurs NV (‘TKLA’), ThyssenKrupp Aufzüge GmbH (‘TKA’), ThyssenKrupp Fahrtreppen GmbH (‘TKF’), ThyssenKrupp Elevator AG (‘TKE’), ThyssenKrupp AG (‘TKAG’), ThyssenKrupp Ascenseurs Luxembourg Sàrl (‘TKAL’) and ThyssenKrupp Liften BV (‘TKL’) (referred to, collectively and individually, as ‘ThyssenKrupp’); and

– Mitsubishi Elevator Europe BV (‘MEE’).

3 The applicants, TKLA, TKA, TKF, TKAL, TKE, TKAG and TKL, belong to the ThyssenKrupp group of companies which is active in the elevator sector, steel, the automotive industry, technologies and services. The parent company of the group is the public listed company TKAG. TKE is a wholly-owned subsidiary of TKAG and is the main company within the group responsible for the elevator sector. It is an intermediate holding company (recitals 33 to 37 of the contested decision).

4 ThyssenKrupp operates in the elevator and escalator sector through its national subsidiaries. These are, in Belgium, TKLA, in Germany, TKA and TKF, in Luxembourg, TKAL, and in the Netherlands, TKL (recitals 33 to 37 of the contested decision). With the exception of TKL, which is not a subsidiary of TKE, the other subsidiaries mentioned above are directly or indirectly wholly-owned subsidiaries of TKE and TKAG.

The administrative procedure

1. The Commission investigation

5 In the summer of 2003, the Commission received information concerning the possible existence of a cartel among the four major European manufacturers of elevators and escalators engaged in business activities in the European Union, namely Kone, Otis, Schindler and ThyssenKrupp (recitals 3 and 91 of the contested decision).

Belgium

6 Starting on 28 January 2004, and during March 2004, the Commission carried out inspections under Article 14(2) and (3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) at, inter alia, the premises of the subsidiaries of Kone, Otis, Schindler and ThyssenKrupp in Belgium (recitals 92, 93, 95 and 97 of the contested decision).

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

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

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

Germany

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

11 On 12 and 18 February 2004, Kone supplemented its application under the 2002 Leniency Notice concerning Belgium, made on 2 February 2004, with information concerning Germany. Likewise, between March 2004 and February 2005, Otis supplemented its leniency application in respect of Belgium with information concerning Germany. On 25 November 2004, Schindler made an application under the 2002 Leniency Notice which contained information concerning Germany, which it supplemented between December 2004 and February 2005. Last, in December 2005, ThyssenKrupp submitted an application for leniency to the Commission, also under the 2002 Leniency Notice, in respect of Germany (recitals 105, 107, 112 and 114 of the contested decision).

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

Luxembourg

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

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

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

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

The Netherlands

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

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

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

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

2. The statement of objections

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

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

3. The contested decision

23 On 21 February 2007, the Commission adopted the contested decision, in which it stated that the undertakings to which the decision was addressed had participated in four single, complex and continuous infringements of Article 81(1) EC in four Member States by sharing the markets among themselves by agreeing or concerting to allocate tenders and contracts for the sale, installation, service and modernisation of elevators and escalators (recital 2 of the contested decision).

24 As regards the addressees of the contested decision, the Commission considered that in addition to the subsidiaries of the undertakings concerned in Belgium, Germany, Luxembourg and the Netherlands, the parent companies of those subsidiaries should be held jointly and severally liable for the infringements of Article 81 EC committed by their respective subsidiaries because they had been able to exercise a decisive influence on the subsidiaries’ commercial policy during the time of the infringement and because it could be presumed that they had made use of that power (recitals 608, 615, 622, 627 and 634 to 641 of the contested decision). The parent companies of MEE were not held jointly and severally liable for their subsidiary’s conduct because it could not be established that they had exercised a decisive influence over its conduct (recital 643 of the contested decision).

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

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

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

28 As regards the Belgian cartel, Kone and Schindler were placed in the first category and the starting amount of the fine, determined according to the gravity of the infringement, was set at EUR 40 000 000. Otis was placed in the second category and the starting amount of its fine was set at EUR 27 000 000. ThyssenKrupp was placed in the third category and the starting amount of its fine was set at EUR 16 500 000 (recitals 674 and 675 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount for ThyssenKrupp, in order to take account of their size and their global resources, so that the starting amounts of their fines were increased to EUR 45 900 000 and EUR 33 000 000 respectively (recitals 690 and 691 of the contested decision). As the infringement had lasted seven years and eight months (from 9 May 1996 to 29 January 2004), the Commission increased the starting amount for the undertakings concerned by 75%. The basic amount of the fine was thus set at EUR 70 000 000 for Kone, EUR 80 325 000 for Otis, EUR 70 000 000 for Schindler and EUR 57 750 000 for ThyssenKrupp (recitals 692 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697, 698 and 708 to 710 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 733, 734, 749, 750 and 753 to 755 of the contested decision). Under the 2002 Leniency Notice, Kone was granted total immunity from fines. Otis received a reduction of 40% of the fine in the band provided for in the first indent of point 23(b) of the 2002 Leniency Notice and a reduction of 1% of the fine for not contesting the facts. ThyssenKrupp was granted a reduction of 20% of the fine in the band provided for in the second indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. Schindler was granted a reduction of 1% of the fine for not contesting the facts (recitals 760 to 777 of the contested decision).

29 As regards the German cartel, Kone, Otis and ThyssenKrupp were placed in the first category and the starting amount of the fine was set at EUR 70 000 000. Schindler was placed in the second category and the starting amount of its fine was set at EUR 17 000 000 (recitals 676 to 679 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount for ThyssenKrupp, in order to take account of their size and their global resources, so that the starting amounts of their fines came to EUR 119 000 000 and EUR 140 000 000 respectively (recitals 690 and 691 of the contested decision). As the infringement by Kone, Otis and ThyssenKrupp had lasted eight years and four months (from 1 August 1995 to 5 December 2003), the Commission increased the starting amount of the fine for those undertakings by 80%. As the infringement by Schindler had lasted five years and four months (from 1 August 1995 to 6 December 2000), the Commission increased the starting amount of its fine by 50%. The basic amount of the fine was thus set at EUR 126 000 000 for Kone, EUR 214 200 000 for Otis, EUR 25 500 000 for Schindler and EUR 252 000 000 for ThyssenKrupp (recitals 693 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697 to 707 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 727 to 729, 735, 736, 742 to 744, 749, 750 and 753 to 755 of the contested decision). Kone received the maximum reduction of 50% of the fine provided for in the first indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. Otis received a reduction of 25% of the fine in the band provided for in the second indent of point 23(b) of the 2002 Leniency Notice and a reduction of 1% of the fine for not contesting the facts. Schindler received a reduction of 15% of the fine in the band provided for in the third indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. ThyssenKrupp received a reduction of 1% of the fine for not contesting the facts (recitals 778 to 813 of the contested decision).

30 With respect to the Luxembourg cartel, Otis and Schindler were placed in the first category and the starting amount of the fine was set at EUR 10 000 000. Kone and ThyssenKrupp were placed in the second category, and the starting amount of the fine was set at EUR 2 500 000 (recitals 680 to 683 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount for ThyssenKrupp, in order to take account of their size and their global resources, so that the starting amounts of their fines came to EUR 17 000 000 and EUR 5 000 000 respectively (recitals 690 and 691 of the contested decision). As the infringement had lasted eight years and three months (from 7 December 1995 to 9 March 2004), the Commission increased the starting amount of the fine for the undertakings concerned by 80%. The basic amount of the fine was thus set at EUR 4 500 000 for Kone, EUR 30 600 000 for Otis, EUR 18 000 000 for Schindler and EUR 9 000 000 for ThyssenKrupp (recitals 694 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697, 698 and 711 to 714 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 730, 749, 750 and 753 to 755 of the contested decision). Under the 2002 Leniency Notice, Kone was granted total immunity from fines. Otis received a reduction of 40% of the fine in the band provided for in the first indent of point 23(b) of the 2002 Leniency Notice and a reduction of 1% of the fine for not contesting the facts. Schindler and ThyssenKrupp received only a reduction of 1% of the fine for not contesting the facts (recitals 814 to 835 of the contested decision).

31 As regards the Netherlands cartel, Kone was placed in the first category and the starting amount of its fine was set at EUR 55 000 000. Otis was placed in the second category and the starting amount of its fine was set at EUR 41 000 000. Schindler was placed in the third category and the starting amount of its fine was set at EUR 24 500 000. ThyssenKrupp and MEE were placed in the fourth category and the starting amount of the fine was set at EUR 8 500 000 (recitals 684 and 685 of the contested decision). A multiplier of 1.7 was applied to the starting amount of the fine to be imposed on Otis and a multiplier of 2 was applied to the starting amount for ThyssenKrupp, in order to take account of their size and their global resources, so that the starting amounts of their fines came to EUR 69 700 000 and EUR 17 000 000 respectively (recitals 690 and 691 of the contested decision). As the infringement by Otis and ThyssenKrupp had lasted five years and ten months (from 15 April 1998 to 5 March 2004), the Commission increased the starting amount of the fine for those undertakings by 55%. As the infringement by Kone and Schindler had lasted four years and nine months (from 1 June 1999 to 5 March 2004), the Commission increased the starting amount of the fine for those undertakings by 45%. As the infringement by MEE had lasted four years and one month (from 11 January 2000 to 5 March 2004), the Commission increased the starting amount of the fine for that undertaking by 40%. The basic amount of the fine was thus EUR 79 750 000 for Kone, EUR 108 035 000 for Otis, EUR 35 525 000 for Schindler, EUR 26 350 000 for ThyssenKrupp and EUR 11 900 000 for MEE (recitals 695 and 696 of the contested decision). The Commission considered that ThyssenKrupp had to be regarded as a repeat infringer and for that reason increased its fine by 50% to take account of that aggravating circumstance (recitals 697, 698 and 715 to 720 of the contested decision). No attenuating circumstance was taken into account for the undertakings concerned (recitals 724 to 726, 731, 732, 737, 739 to 741, 745 to 748 and 751 to 755 of the contested decision). Under the 2002 Leniency Notice, Otis was granted total immunity from fines. ThyssenKrupp was granted a reduction of 40% of the fine in the band provided for in the first indent of point 23(b) of the 2002 Leniency Notice and also a reduction of 1% of the fine for not contesting the facts. Schindler and MEE received a reduction of 1% of the fine for not contesting the facts (recitals 836 to 855 of the contested decision).

32 The operative part of the contested decision reads as follows:

‘Article 1

1. In respect of Belgium, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for sale and installation and to refrain from competing with each other for maintenance and modernisation contracts:

– Kone: [KC] and [Kone Belgium]: from 9 May 1996 to 29 January 2004;

– Otis: [UTC], [OEC] and [Otis Belgium]: from 9 May 1996 to 29 January 2004;

– Schindler: Schindler Holding … and [Schindler Belgium]: from 9 May 1996 to 29 January 2004; and

– ThyssenKrupp: [TKAG], [TKE] and [TKLA]: from 9 May 1996 to 29 January 2004.

2. In respect of Germany, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for sale and installation:

– Kone: [KC] and [Kone Germany]: from 1 August 1995 to 5 December 2003;

– Otis: [UTC], [OEC] and [Otis Germany]: from 1 August 1995 to 5 December 2003;

– Schindler: Schindler Holding … and [Schindler Germany]: from 1 August 1995 to 6 December 2000; and

– ThyssenKrupp: [TKAG], [TKE], [TKA] and [TKF]: from 1 August 1995 to 5 December 2003.

3. In respect of Luxembourg, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for sale and installation and to refrain from competing with each other for maintenance and modernisation contracts:

– Kone: [KC] and [Kone Luxembourg]: from 7 December 1995 to 29 January 2004;

– Otis: [UTC], [OEC], [Otis Belgium], [GTO] and [GT]: from 7 December 1995 to 9 March 2004;

– Schindler: Schindler Holding … and [Schindler Luxembourg]: from 7 December 1995 to 9 March 2004; and

– ThyssenKrupp: [TKAG], [TKE] and [TKAL]: from 7 December 1995 to 9 March 2004.

4. In respect of the Netherlands, the following undertakings have infringed Article 81 [EC] by regularly agreeing collectively, for the periods indicated, in the context of related national agreements and concerted practices concerning elevators and escalators to share markets, allocate public and private tenders and other contracts in accordance with the pre-agreed shares for the sale and installation and to refrain from competing with each other for maintenance and modernisation contracts:

– Kone: [KC] and [Kone Netherlands]: from 1 June 1999 to 5 March 2004;

– Otis: [UTC], [OEC] and [Otis Netherlands]: from 15 April 1998 to 5 March 2004;

– Schindler: Schindler Holding … and [Schindler Netherlands]: from 1 June 1999 to 5 March 2004;

– ThyssenKrupp: [TKAG] and [TKL]: from 15 April 1998 to 5 March 2004; and

– [MEE]: from 11 January 2000 to 5 March 2004.

Article 2

1. For the infringement in Belgium referred to in Article 1(1), the following fines are imposed:

– Kone: [KC] and [Kone Belgium], jointly and severally: EUR 0;

– Otis: [UTC], [OEC] and [Otis Belgium], jointly and severally: EUR 47 713 050;

– Schindler: Schindler Holding … and [Schindler Belgium], jointly and severally: EUR 69 300 000; and

– ThyssenKrupp: [TKAG], [TKE] and [TKLA], jointly and severally: EUR 68 607 000.

2. For the infringement in Germany referred to in Article 1(2), the following fines are imposed:

– Kone: [KC] and [Kone Germany], jointly and severally: EUR 62 370 000;

– Otis: [UTC], [OEC] and [Otis Germany], jointly and severally: EUR 159 043 500;

– Schindler: Schindler Holding … and [Schindler Germany], jointly and severally: EUR 21 458 250; and

– ThyssenKrupp: [TKAG], [TKE], [TKA] and [TKF], jointly and severally: EUR 374 220 000.

3. For the infringement in Luxembourg referred to in Article 1(3), the following fines are imposed:

– Kone: [KC] and [Kone Luxembourg], jointly and severally: EUR 0;

– Otis: [UTC], [OEC], [Otis Belgium], [GTO] and [GT], jointly and severally: EUR 18 176 400;

– Schindler: Schindler Holding … and [Schindler Luxembourg], jointly and severally: EUR 17 820 000; and

– ThyssenKrupp: [TKAG], [TKE] and [TKAL], jointly and severally: EUR 13 365 000.

4. For the infringement in the Netherlands referred to in Article 1(4), the following fines are imposed:

– Kone: [KC] and [Kone Netherlands], jointly and severally: EUR 79 750 000;

– Otis: [UTC], [OEC] and [Otis Netherlands], jointly and severally: EUR 0;

– Schindler: Schindler Holding … and [Schindler Netherlands], jointly and severally: EUR 35 169 750;

– ThyssenKrupp: [TKAG] and [TKL], jointly and severally: EUR 23 477 850; and

– [MEE]: EUR 1 841 400.

…’

Procedure and forms of order sought

33 By applications lodged at the Registry of the Court on 7 May 2007 (in Cases T‑144/07, T‑147/07, T‑148/07 T‑149/07 and T‑150/07) and on 8 May 2007 (in Case T-154/07), the applicants brought the present actions.

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

35 The parties in Cases T-144/07, T-147/07, T-148/07, T-149/07, T-150/07 and T‑154/07 presented oral argument and answered the oral questions put to them by the Court at the hearings on 3, 7 and 10 September 2009. The oral procedure in Cases T-144/07 and T-148/07 was then closed.

36 Following requests made by the Commission at the hearings, the applicants in Cases T‑147/07, T-149/07, T‑150/07 and T‑154/07 produced certain documents.

37 By letters dated 14 and 15 September 2009, the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 lodged at the Registry of the Court corrigenda relating to their pleas disputing the correctness of the finding of repeated infringement.

38 By order of 20 October 2009, the oral procedure was reopened in Cases T‑144/07 and T‑148/07.

39 The applicants’ corrigenda were placed in the file in the cases mentioned in paragraph 37 above. The Commission presented its observations on those corrigenda and, in particular, objected that they were inadmissible. The applicants presented their observations in this regard and the oral procedure in the cases in question was then closed.

40 After hearing the parties’ views at the hearing, the Court decided to join the present cases for the purposes of the judgment pursuant to Article 50 of the Rules of Procedure.

41 The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 claim that the Court should:

– annul the contested decision in so far as it concerns them;

– in the alternative, reduce the fine imposed;

– order the Commission to pay the costs.

42 In each case, the Commission contends that the Court should:

– dismiss the action;

– order the applicants to pay the costs.

Substance

4. Preliminary observations

43 The actions brought by the applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 all have a dual objective, their primary purpose being the annulment of the contested decision and their secondary purpose being a reduction in the amounts of the fines imposed on the applicants.

44 In support of their actions, the applicants have put forward 10 pleas in law. The first two, alleging a lack of jurisdiction on the Commission’s part and a wrongful finding of joint and several liability for the infringement, support the applications for annulment of the contested decision.

45 The eight remaining pleas in law put forward by the applicants relate to the setting of the fines and therefore support their applications for annulment or for a reduction in the amount of the fines. The first of these pleas, put forward by the applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07, alleges breach of the principle non bis in idem. The second, put forward by the applicants in Cases T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07, alleges breach of the 1998 Guidelines, of the principles of proportionality and equal treatment, and of the rights of the defence in the determination of the starting amounts of the fines according to the gravity of the infringements. The third, put forward by all the applicants, alleges breach of the 1998 Guidelines, of the principle of proportionality, of Article 253 EC and of the principle of equal treatment in the application of a group multiplier for deterrence in the determination of the starting amounts of the fines. The fourth, put forward by all the applicants, alleges breach of the 1998 Guidelines, of the principle of proportionality and of the rights of the defence by reason of the 50% increase applied to the basic amounts of the fines on account of repeated infringement. The fifth, put forward by all the applicants, alleges infringement of the 2002 Leniency Notice and of the principles of the protection of legitimate expectations and equal treatment in the assessment of the cooperation which they offered. The sixth, advanced by all the applicants, alleges infringement of the principles of the protection of legitimate expectations, equal treatment, proportionality and sound administration in the determination of the amount of the reduction in the fines granted for cooperation outside the scope of the 2002 Leniency Notice. The seventh, advanced by all the applicants, alleges infringement of Article 23(2) of Regulation No 1/2003. Finally, the eighth plea, advanced by the applicants in Cases T‑144/07, T‑149/07, T‑150/07 and T‑154/07, alleges infringement of the principle of proportionality in the calculation of the final amounts of the fines.

5. The applications for annulment of the contested decision





The plea alleging a lack of jurisdiction on the Commission’s part

46 The present plea falls to be considered in two parts. The first concerns the alleged infringement of Article 81(1) EC inasmuch as the cartels in question did not affect trade between Member States. The second part, formulated in the alternative, concerns the alleged infringement of Regulation No 1/2003 and of the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43; ‘the Notice on cooperation within the Network’) and of the principles of equal treatment and the protection of legitimate expectations, inasmuch as the Commission ought to have left it to the relevant national authorities to take action against the infringements.

The first part, alleging infringement of Article 81(1) EC inasmuch as the cartels in question did not affect trade between Member States

47 In recital 602 of the contested decision, the Commission maintained that ‘the application and implementation by the four major elevator and escalator manufacturers (in the case of the Netherlands also including [MEE]) of the system of project allocation, in each of the Member States concerned, against the background of their referral policies was likely to result in the diversion of trade patterns from the course they would otherwise have followed’. In reaching this conclusion, the Commission drew on a number of elements.

48 In the first place, the Commission noted that ‘some cross-border transactions involving the sale and installation of elevators and escalators and the provision of maintenance services and modernisation services [do] take place within the EU’ (recital 86 of the contested decision; see also recital 596).

49 According to the Commission, its file ‘contains several examples of actual cross‑border trade involving essentially SMEs, but also at least one large undertaking, [MEE, which] also serves the Belgian market through its subsidiary in the Netherlands’ (recital 87 of the contested decision). Furthermore, the Commission notes that ‘the four major manufacturers also occasionally respond to cross-border tenders within the EU’, and gives a number of examples of this (recital 88 of the contested decision; see also recital 78). According to the Commission, there is an ‘increasing trend for customers to source outside the national borders’ (recital 596 of the contested decision).

50 Moreover, according to the Commission, there is ‘a trend that large (multinational) undertakings and groups of undertakings with a presence in several Member States such as, for example, international hotel chains, prefer to conclude supply agreements covering several Member States’ (recital 89 of the contested decision).

51 In the second place, the Commission mentions the referral policy applied by the four major elevator and escalator manufacturers in Europe. According to the Commission, ‘the number of cross-border transactions would be higher were it not for the fact that [those] … manufacturers … had implemented a policy to refuse virtually all cross-border requests for price quotes and instead direct customers to the relevant national subsidiary’ (recital 90 of the contested decision; see also recital 596).

52 In the third place, in the context of its legal assessment, the Commission emphasised that ‘the fact that a horizontal cartel covers only one single Member State does not mean that the unlawful agreements are not capable of affecting trade between Member States’ (recital 595 of the contested decision). It points out, furthermore, that, according to consistent case-law, ‘the effect which an agreement might have on trade between Member States is to be appraised in particular by reference to the position and the importance of the parties on the market for the products concerned (Case C‑306/96 Javico [1998] ECR I‑1983, paragraph 17)’ (recital 600 of the contested decision). It also maintained that ‘[c]onsidering the four major elevator and escalator manufacturers’ very high share of turnover in elevators, escalators, maintenance and modernisation, and considering the fact that they set up and implemented a system of project allocation which extended over the whole territory of Belgium, Luxembourg, Germany and the Netherlands, respectively, in combination with their referral policy, it is justified to assume that foreign undertakings were hampered in their ability to sell their products and services in the countries concerned, since in those countries they would have to act against a group of manufacturers, which jointly represented the vast majority of suppliers’ (recital 600 of the contested decision).

53 The applicants in Cases T-144/07, T-147/07, T-148/07, T‑149/07, T‑150/07 and T-154/07 submit, in essence, that the infringements did not significantly affect trade between Member States, and that they did not, therefore, constitute any violation of Article 81 EC.

54 As is already clear from the wording of Articles 81 EC and 82 EC, in order for the competition rules of the European Union to apply to an arrangement or abusive practice it is necessary for it to be capable of affecting trade between Member States (Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 40).

55 The interpretation and application of that condition relating to effects on trade between Member States must take as its starting point the purpose of the condition, which is to define, in the context of the law governing competition, the boundary between the areas respectively covered by European Union (‘EU’) law and the law of the Member States. Thus, EU law covers any agreement or any practice which is capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off domestic markets or by affecting the structure of competition within the common market (Manfredi and Others, paragraph 54 above, paragraph 41; Case C‑238/05 Asnef-Equifax and Administración del Estado [2006] ECR I‑11125, paragraph 33; and Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 89).

56 For an agreement, decision or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective elements of fact and law, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concerns that they might hinder the attainment of a single market between Member States. Moreover, that influence must not be insignificant (Javico, paragraph 52 above, paragraph 16; Joined Cases C‑215/96 and C‑216/96 Bagnasco and Others [1999] ECR I‑135, paragraph 47; Manfredi and Others, paragraph 54 above, paragraph 42; Asnef-Equifax and Administración del Estado, paragraph 55 above, paragraph 34; and Dalmine v Commission, paragraph 55 above, paragraph 90).

57 Accordingly, an effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive (Bagnasco and Others, paragraph 56 above, paragraph 47; Manfredi and Others, paragraph 54 above, paragraph 43; and Asnef-Equifax and Administración del Estado, paragraph 55 above, paragraph 35).

58 According to the applicants, the infringements referred to in Article 1 of the contested decision had no effect on trade between Member States since elevator and escalator businesses are organised at national, or even local, level. That is because, inter alia, the installation and maintenance of elevators and escalators are the work of experienced professionals and can only be carried out locally for reasons of economic efficiency, because of the need to keep intervention times short and because of the existence of national regulations. Cross-border transactions are exceptional. The Commission itself considers that the cartels were national cartels.

59 It must be observed that the applicants do not dispute that the four cartels found in Article 1 of the contested decision covered the entire territory of Belgium, Germany, Luxembourg and the Netherlands (recitals 595 and 600 of the contested decision).

60 It is clear from consistent case-law that a cartel extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the Treaty is designed to bring about (Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29; Case C‑309/99 Wouters and Others [2002] ECR I‑1577, paragraph 95; Manfredi and Others, paragraph 54 above, paragraph 45; Asnef-Equifax and Administración del Estado, paragraph 55 above, paragraph 37; Joined Cases T‑213/95 and T‑18/96 SCK and FNK v Commission [1997] ECR II‑1739, paragraph 179; and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 180).

61 It follows from that case-law that there is, at least, a strong presumption that a practice restrictive of competition applied throughout the territory of a Member State is liable to contribute to compartmentalisation of the markets and to affect intra-Community trade. That presumption can be rebutted only if an analysis of the characteristics of the agreement and its economic context demonstrates the contrary (Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 60 above, paragraph 181).

62 First of all, contrary to what the applicants claim in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07, the Commission did not rely solely on that case-law in reaching its conclusion in the contested decision that the cartels were likely to affect trade between Member States within the meaning of Article 81(1) EC. Indeed, it is clear from paragraphs 47 to 52 above that the Commission also relied in the contested decision on the existence of certain cross-border transactions relating to the sale and installation of elevators and escalators and the provision of maintenance and modernisation services, in which the four major manufacturers to which the contested decision was addressed participated (recitals 87, 88 and 596 of the contested decision).

63 Next, it must be observed that the applicants’ arguments regarding the particular characteristics of the market in question, alleging its national, even local, nature, are not such as to alter the probative force of the documentary evidence mentioned in the contested decision (recitals 88 and 90 of the contested decision), which attests to the existence of trade between Member States on the market in issue in that decision. The same applies to the arguments regarding the exceptional nature of cross-border transactions, which put in issue only the degree of any effect on trade between Member States, not the very existence of that trade.

64 Lastly, as is clear from the contested decision, the referral policy of Kone, Otis, Schindler and ThyssenKrupp ‘is itself an indication that there is some interest from customers in approaching suppliers outside the national boundaries’ (recital 596 of the contested decision). Furthermore, the Commission took particular note of the participation of foreign undertakings in national invitations to tender (recital 78 of the contested decision) and indeed of the existence of cross-border calls for tenders (recital 89 of the contested decision). It is therefore permissible to think, as the Commission stated in recital 90 of the contested decision, that the number of cross-border transactions would have been higher were it not for the fact that the four major manufacturers mentioned above had implemented a policy to refuse virtually all cross-border requests and instead direct customers to the relevant national subsidiary.

65 In this connection, the applicants’ argument that the referral policy was dictated by the nature of the activity in question must be rejected. Indeed, it is contradicted by the very existence of certain cross-border transactions on the market in question.

66 Consequently, it must be held that the Commission was entitled to consider, on the basis of the factual findings highlighted in the preceding paragraphs and with the application of settled case-law (see paragraph 60 above), that the cartels referred to in Article 1 of the contested decision were capable of affecting trade between Member States.

67 As regards the question whether that effect may be held to be appreciable, it must be recalled that the influence which an agreement or concerted practice may have on trade between Member States is to be determined by taking into account in particular the position and importance of the parties on the market for the products concerned (Case 99/79 Lancôme and Cosparfrance Nederland [1980] ECR 2511, paragraph 24; Javico, paragraph 52 above, paragraph 17; and Case T‑77/92 Parker Pen v Commission [1994] ECR II‑549, paragraph 40).

68 The manufacturers addressed in the contested decision ‘jointly represented the vast majority of supplies’ (recital 600 of the contested decision), that is to say, approximately 81% of elevator and escalator sales (by volume) in 2004 (recital 83 of the contested decision). Those manufacturers were therefore large enough and had sufficient economic power for their practices, to which the contested decision relates, to be capable of having an appreciable effect on trade between Member States (see, to that effect, Case 19/77 Miller International Schallplatten v Commission [1978] ECR 131, paragraph 10, and SCK and FNK v Commission, paragraph 60 above, paragraph 181).

69 Moreover, and contrary to the applicants’ assertions, the Commission was under no obligation to prove that the agreements at issue had an appreciable effect, in practice, on trade between Member States, or even that cross-border transactions would increase after the infringements were brought to an end. Indeed, Article 81(1) EC requires only that anti-competitive agreements and concerted practices should be capable of having an effect on trade between Member States (Asnef-Equifax and Administración del Estado, paragraph 55 above, paragraph 43, and Joined Cases T‑217/03 and T‑245/03 FNCBV and Others v Commission [2006] ECR II‑4987, paragraph 68).

70 It follows from all the foregoing that the Commission was entitled to take the view that the cartels referred to in Article 1 of the contested decision had an appreciable effect on trade between Member States within the meaning of Article 81(1) EC.

71 Therefore the first part of the plea must be rejected.

The second part of the plea, alleging infringement of Regulation No 1/2003, of the Notice on cooperation within the Network and of the principles of equal treatment and the protection of legitimate expectations, inasmuch as the Commission ought to have left it to the relevant national competition authorities to take action against the infringements

72 In recital 543 of the contested decision, the Commission gives the following explanation of why it has jurisdiction to apply Article 81 EC to the cartels referred to in the decision:

‘… Regulation No 1/2003 has maintained the Community system of parallel jurisdiction for the application of Article 81(1) [EC]. It has in particular not modified the Commission’s power to investigate any suspected infringements and to adopt decisions under Article 81 [EC], including infringements that have their main effects in one Member State. The Notice [on cooperation within the Network] sets out orientations for the sharing of work between the Commission and the Member States’ competition authorities. Neither Regulation No 1/2003 nor the Notice [on cooperation within the Network] creates rights or expectations for an undertaking to have its case dealt with by a specific competition authority, nor is the Commission precluded from acting on a suspected breach of Article 81 [EC], including cases that are limited to the territory of a single Member State. ...’

73 The applicants in Cases T‑144/07, T‑147/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 argue, in essence, that even if Article 81 EC were applicable, the Commission had no jurisdiction to initiate proceedings and to impose fines. The Commission’s initiation of the procedure constituted an infringement of the Notice on cooperation within the Network and of the principle of the protection of legitimate expectations. In accordance with Articles 5 and 35 of Regulation No 1/2003 and paragraphs 8 and 14 of the Notice on cooperation within the Network, the national competition authorities were the best placed to take action against the infringements. The applicants in Cases T‑147/07, T-148/07, T-149/07 and T‑150/07 also assert that the Notice on cooperation within the Network is binding in relation to the national competition authorities. That is clear from the principle that administrative management must be lawful, and the principles of equal treatment and the protection of legitimate expectations. Lastly, the applicants in Cases T‑147/07 and T‑149/07 emphasise that it would have been more effective if the national competition authorities had taken action against the infringements, given the ‘linguistic inadequacies’ of the Commission officials in charge of the file.

74 According to those applicants, the fact that the Commission left it to the Austrian competition authority to pursue a parallel infringement of Article 81 EC on the Austrian market for elevators and escalators illustrates the arbitrary nature with which the principles concerning the allocation of competence laid down in the Notice on cooperation within the Network were applied. The applicants in Cases T‑144/07, T‑148/07, T‑149/07, T‑150/07 and T‑154/07 maintain in this connection that they were treated less favourably than they would have been if the matter had been put before the competent authorities under the Notice on cooperation within the Network, in that they would have been granted immunity by the Belgian, Luxembourg and Netherlands competition authorities.

75 In the first place, it must be recalled that, as regards the division of powers between the Commission and the national competition authorities, Regulation No 1/2003 puts an end to the previous centralised regime and, in accordance with the principle of subsidiarity, establishes a wider association of national competition authorities. Thus, in accordance with Article 35 of Regulation No 1/2003, the Member States are required to designate the competition authority or authorities responsible for the application of Articles 81 EC and 82 EC, and Article 5 of Regulation No 1/2003 authorises those authorities to implement EU competition law (see, to that effect, Case T‑339/04 France Télécom v Commission [2007] ECR II‑521, paragraph 79).

76 Nevertheless, the cooperation instituted by Regulation No 1/2003 between the Commission and the national competition authorities does not support the conclusion in this case that the Commission ought to have left it to the national competition authorities to take action against the various infringements. On the contrary, it is clear from the provisions of Regulation No 1/2003 that the Commission retains a le