Case T-138/07

Schindler Holding Ltd 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 – Administrative procedure – Right to fair legal process – Article 6 of the European Convention on Human Rights not applicable

(Art. 81 EC; Charter of Fundamental Rights of the European Union, Art. 47)

2. Competition – Administrative procedure – Commission decision finding an infringement and imposing fines – Criminal-law nature – None

(Arts 81 EC and 229 EC; Regulation No 1/2003, Arts 23(5) and 31)

3. Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements made by other undertakings that have taken part in the infringement – Lawfulness – Conditions

(Arts 81 EC and 82 EC)

4. Acts of the institutions – Notification – Irregularities – Effects – Suspension of the period within which an action must be brought

(Arts 230, fifth para., EC, and 254(3) EC)

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

(Art. 81 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

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

7. European Union law – General principles of law – Legal certainty – Principle that penalties must have a proper legal basis – Scope

8. Competition – Fines – Amount – Determination – Discretion conferred on the Commission by Article 23(2) of Regulation No 1/2003 – Infringement of the principle that penalties must have a proper legal basis – No such infringement – Foreseeability of changes made by the Guidelines

(Art. 229 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Arts 23(2) and 31; Commission Notices 98/C 9/03 and 2002/C 45/03)

9. Competition – European Union rules – Infringements – Fines – Determination – Criteria – Raising of the general level of fines

(Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2))

10. Competition – Fines – Commission’s own powers under the Treaty

(Arts 81 EC, 82 EC, 83(1) and (2)(a) and (d) EC, 202, third indent, EC and 211, first indent, EC; Council Regulations No 17 and No 1/2003)

11. Competition – Fines – Amount – Determination – Application of the Guidelines on the method of setting fines – Breach of the principle of non-retroactivity of criminal provisions – No such breach

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

12. Competition – Fines – Amount – Determination – Application of the Guidelines on the method of setting fines – Lawfulness – Breach of the principles of protection of legitimate expectations, transparency and foreseeability – No such breach

(Commission Notice 1998/C 9/03)

13. Competition – Fines – Amount – Determination – Application of the Leniency Notice – Breach of the principles of non-retroactivity and protection of legitimate expectations – No such breach

(Commission Notice 2002/C 45/03)

14. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned – Breach of the right against self-incrimination and of the principles of the presumption of innocence and of proportionality – No such breach – Commission not acting ultra vires in adopting the Leniency Notice

(Art. 81 EC; Charter of Fundamental Rights of the European Union, Art. 48; Council Regulation No 1/2003, Arts 18 to 21 and 23; Commission Notice 2002/C 45/03, Points 11 and 23)

15. European Union law – Principles – Fundamental rights – Right to property – Restrictions – Lawfulness

(Arts 81 EC, 82 EC and 295 EC; Council Regulation No 1/2003, Art. 23(2))

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

(Commission Notice 98/C 9/03)

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

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

18. Competition – Fines – Decision imposing fines – Duty to state reasons – Scope

(Art. 253 EC; Commission Notice 98/C 9/03)

19. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Obligation to take account of the size of the market – No such obligation

(Commission Notice 98/C 9/03, Section 1A, second para., third indent)

20. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Account taken of the effective economic capacity of the undertaking to cause damage – Obligation to set the amount of the fine in a manner proportionate to the size of the undertaking – No such obligation – Setting the fine on the basis of a division of the cartel members into categories – Conditions – Judicial review

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

21. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Termination of the infringement before the Commission’s intervention – Case of serious infringement – Not included

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, third indent)

22. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Obligation on the Commission to take into account a competition law compliance programme put in place by the undertaking concerned – No such obligation

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

23. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the undertaking concerned

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

24. Competition – Fines – Amount – Determination – Criteria – Attitude of the undertaking during the administrative procedure – Appraisal of the extent of the cooperation shown by each of the undertakings participating in the cartel

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

25. Competition – Fines – Amount – Determination – Commission’s margin of discretion – Limits – Observance of the principle of proportionality – Conditions

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

1. The principle that everyone is entitled to a fair legal process is a general principle of EU law which has been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union and guaranteed by Article 6 of the European Convention on Human Rights. That principle is inspired by the fundamental rights which form an integral part of the general principles of EU law which the Court of Justice enforces, drawing inspiration from the constitutional principles common to the Member States and from the guidelines supplied, in particular, by the European Court of Human Rights. Although, by adopting an independent interpretation of the notion of ‘criminal charge’, the bodies of the European Convention on Human Rights laid the foundations for the progressive extension of the application of the criminal-head guarantees of Article 6 to areas which do not formally fall within the traditional categories of criminal law, such as pecuniary sanctions imposed for infringements of competition law, in relation, however, to the categories which do not form part of the ‘hard core’ of criminal law, the criminal-head guarantees of that provision will not necessarily apply with their full stringency.

(see paras 51-52)

2. Commission decisions imposing fines for the infringement of competition law are not of a criminal-law nature. Thus a procedure in which the Commission adopts a decision finding an infringement and imposing fines which may subsequently be subject to review by the Courts of the European Union satisfies the requirements of Article 6(1) of the European Convention on Human Rights. Although the Commission is not a tribunal within the meaning of Article 6 of the Convention, it must nevertheless observe the general principles of EU law during the administrative procedure.

Furthermore, the review of Commission decisions which the Courts of the Union carry out ensures that the requirements of a fair process, as enshrined in Article 6(1) of that convention are satisfied. In that regard, the undertaking concerned must be able to refer any decision adopted against it to a judicial body that has full jurisdiction and, in particular, the power to quash in all respects, on questions of fact and law, the challenged decision. Where the Courts of the Union review the legality of a decision finding an infringement of Article 81 EC, the applicants may call upon them to undertake an exhaustive review of both the substantive findings of fact and the Commission’s legal appraisal of those facts. Furthermore, in so far as concerns the fines, those Courts have unlimited jurisdiction under Article 229 EC and Article 31 of Regulation No 1/2003.

(see paras 53-56)

3. There is no provision or general principle of EU law that prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the Treaty. However, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence.

(see para. 57)

4. Irregularities in the procedure for notification of a decision are extraneous to that measure and cannot therefore invalidate it. Such irregularities can only, in certain circumstances, prevent the period referred to in the fifth paragraph of Article 230 EC, within which an application must be lodged, from starting to run. That is not the case where the applicant indisputably had knowledge of the content of the decision and exercised its right to bring proceedings within the period referred to in that article.

(see para. 61)

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, first, the parent company is able to exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary.

In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent company exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market.

(see paras 69-72, 82)

6. In the specific case in which a parent company has a 100% shareholding in a subsidiary which has infringed the EU competition rules, the attribution of a subsidiary’s infringement to the parent company does not require proof that the parent company influences its subsidiary’s policy in the specific area in which the infringement occurred. On the other hand, the organisational, economic and legal links between the parent company and its subsidiary may establish that the parent exercises an influence over the subsidiary’s strategy and therefore that they can be viewed as a single economic entity. Thus, if the Commission proves that the subsidiary is wholly owned by the parent company, it may hold the parent company jointly and severally liable for payment of the fine imposed on the subsidiary, unless the parent company proves that its subsidiary acts independently on the market. It is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they constitute a single undertaking for the purposes of Article 81 EC that the Commission is able to address a decision imposing fines to the parent company of a group of companies.

The fact that the parent company gave no instructions to its subsidiaries which might have authorised or encouraged contacts contrary to Article 81 EC, and had no knowledge of any such contacts, is not sufficient to demonstrate the independence of those subsidiaries. The fact that the subsidiaries participated in separate infringements of distinct nature, in four different countries, is equally incapable of rebutting the presumption of liability, where the Commission has not relied upon any similarities between the infringements found in order to impute liability for the subsidiaries’ conduct to the parent company. Similarly, the fact that the parent company has adopted a code of conduct to prevent its subsidiaries from infringing competition law, along with related guidelines, does not alter the reality of the infringement found against it and, moreover, does not demonstrate that those subsidiaries determined their commercial policy independently. On the contrary, the implementation of that code rather suggests that the parent company has in fact supervised the commercial policy of its subsidiaries.

(see paras 82, 85, 87-88)

7. The principle that penalties must have a proper legal basis is a corollary of the principle of legal certainty, which constitutes a general principle of EU law and requires, inter alia, that any EU legislation, in particular when it imposes or permits the imposition of penalties, must be clear and precise so that the persons concerned may know without ambiguity what rights and obligations flow from it and may take steps accordingly.

The principle that penalties must have a proper legal basis, which is one of the general legal principles of EU law underlying the constitutional traditions common to the Member States, has also been enshrined in various international treaties, including in Article 7 of the European Convention on Human Rights.

That principle implies that legislation must define clearly offences and the penalties which they attract. That requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. In addition, according to the case-law of the European Court of Human Rights, the clarity of a law is assessed having regard not only to the wording of the relevant provision but also to the clarification provided by settled, published case-law.

The principle applies both to rules of a criminal law nature and to specific administrative instruments which impose administrative penalties or permit administrative penalties to be imposed. It applies not only to the rules which establish the elements of an offence, but also to those which define the consequences of contravening them.

Article 7(1) of the European Convention on Human Rights does not require the terms of the provisions pursuant to which penalties are imposed to be so precise that the potential consequences of an infringement of those provisions should be foreseeable with absolute certainty. Indeed, according to the case-law of the European Court of Human Rights, the fact that a law confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference. In that connection, apart from the text of the law itself, the European Court of Human Rights takes account of whether the indeterminate notions used have been defined by consistent and published case‑law.

(see paras 95-97, 99)

8. In so far as concerns the lawfulness of Article 23(2) of Regulation No 1/2003 in the light of the principle that penalties must have a proper legal basis, the EU legislature did not confer upon the Commission an excessive or arbitrary discretion in setting fines for infringements of the competition rules.

First of all, that provision limits the exercise of that discretion by establishing objective criteria to which the Commission must adhere. In that regard, first, any fine that may be imposed is subject to a quantifiable and absolute ceiling, calculated by reference to each undertaking, for each infringement, so that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance. Second, that provision requires the Commission to fix fines in each individual case having regard both to the gravity and to the duration of the infringement.

Secondly, in the exercise of its discretion in imposing fines pursuant to Article 23(2) of Regulation No 1/2003, the Commission is bound to comply with general principles of law, in particular the principles of equal treatment and proportionality.

Thirdly, in the interests of ensuring that its actions are predictable and transparent, the Commission has also limited the exercise of its own discretion by rules of conduct which it set for itself in the Notice on immunity from fines and reduction of fines in cartel cases and in 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. To that end, the notice and the guidelines lay down rules of conduct from which the Commission may not depart without risking being found in breach of general principles of law, such as equal treatment or the protection of legitimate expectations. They also ensure legal certainty for the undertakings concerned by defining the method which the Commission has bound itself to use in setting the fines imposed pursuant to Article 23(2) of Regulation No 1/2003.

Moreover, the Commission’s adoption of those guidelines and then of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, inasmuch as it fell within the statutory limits laid down by Article 15(2) of Regulation No 17 and by Article 23(2) of Regulation No 1/2003, only contributed to defining the limits of the exercise of the discretion which the Commission already had under those provisions, and it cannot be inferred from their adoption that the limits on the Commission’s competence in the area in question were not initially defined sufficiently by the EU legislature.

Fourthly, under Article 229 EC and Article 31 of Regulation No 1/2003, the EU judicature has unlimited jurisdiction in actions challenging decisions whereby the Commission has fixed fines and may, accordingly, not only annul those decisions but also cancel, reduce or increase the fines imposed. As a result, the Commission’s well-known and accessible administrative practice is subject to unlimited review by the EU judicature. That review has made it possible, through a consistent and published body of case-law, to define any indeterminate concepts contained in Article 15(2) of Regulation No 17 and, subsequently, Article 23(2) of Regulation No 1/2003. Consequently, a prudent trader is able, if need be by taking legal advice, to foresee in a sufficiently precise manner the method of calculation and order of magnitude of the fines which he risks for a given line of conduct. The fact that such a trader cannot, in advance, know precisely the level of the fines which the Commission will impose in each individual case cannot constitute a breach of the principle that penalties must have a proper legal basis.

(see paras 101-102, 105-108)

9. As regards the increase in the level of fines following the adoption 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, the Commission may at any time adjust the level of fines if the proper application of the EU competition rules so requires, since such an alteration of an administrative practice may then be regarded as objectively justified by the objective of general prevention of infringements of the EU competition rules. The increase in the level of fines cannot therefore, in itself, be regarded as unlawful in light of the principle that penalties must have a proper legal basis, since it remains within the statutory limits laid down by Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003.

(see para. 112)

10. With regard to the Commission’s competence to impose fines for infringements of the EU competition rules, the power to impose such fines cannot be regarded as having originally belonged to the Council, with the Council then transferring it or delegating its exercise to the Commission, as provided for in the third indent of Article 202 EC. By virtue of Articles 81 EC, 82 EC, 83(1) and (2)(a) and (d) EC and 202, third indent, EC, that power is part of the Commission’s role of ensuring that EU law is applied, that role having been defined, framed and formalised, as regards the application of Articles 81 EC and 82 EC, by Regulations Nos 17 and 1/2003. The power to impose fines, which those regulations confer on the Commission therefore stems from the provisions of the Treaty itself and is intended to facilitate the effective application of the prohibitions laid down in those articles.

(see para. 115)

11. The principle of non-retroactivity of criminal laws, enshrined in Article 7 of the European Convention on Human Rights, constitutes a general principle of EU law which must be observed when fines are imposed for infringement of the competition rules and requires that the penalties imposed correspond with those fixed at the time when the infringement was committed. The adoption of guidelines capable of changing the Commission’s general competition policy in fining matters may, in principle, fall within the scope of the principle of non-retroactivity.

As regards compliance with the principle of non-retroactivity by 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, the increase in the level of fines remains within the statutory framework set by Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, inasmuch as Section 5(a) of the guidelines expressly provides that the fines imposed may in no case exceed the 10% of turnover ceiling laid down in those provisions.

The main innovation in those guidelines consists in taking as a starting point for the calculation a basic amount, determined on the basis of brackets, those brackets reflecting the various degrees of gravity of infringements but, as such, bearing no relation to the relevant turnover. The essential feature of that method is thus that fines are determined on a tariff basis, albeit one that is relative and flexible.

The fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level, within the limits indicated in Regulations No 17 and 1/2003, if that is necessary to ensure the implementation of the European Union’s competition policy. On the contrary, the proper application of the competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.

It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation either that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines. Consequently, the undertakings concerned must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past.

That being so, the abovementioned guidelines, in that they may have led to the imposition of larger fines than those imposed in the past or in that the limits of foreseeability may have been exceeded, do not breach the principle of non-retroactivity. The guidelines and, in particular, the new method of calculating fines contained therein, on the assumption that this new method had the effect of increasing the level of the fines imposed, were in fact reasonably foreseeable.

(see paras 118-119, 123-128, 133)

12. The Commission published 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, in which it set out, with a view to transparency and to increasing legal certainty for the undertakings concerned, the calculation method that it would use in each case. In adopting such rules of conduct and, by publishing them, announcing that they would henceforth apply in the cases to which they relate, the Commission imposed a limit on the exercise of its discretion and rules from which it cannot depart without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment and the protection of legitimate expectations. The guidelines determine, generally and abstractly, the method which the Commission has bound itself to use in setting fines and, consequently, ensure legal certainty for undertakings. Moreover, a prudent trader is able, if need be by taking legal advice, to foresee in a sufficiently precise manner the method of calculation and order of magnitude of the fines which he risks for a given line of conduct. Admittedly, a trader cannot, by reference to those guidelines, predict the precise amount of the fine which the Commission will impose in each individual case. However, owing to the gravity of the infringements which the Commission is required to penalise, the objectives of punishment and deterrence justify preventing undertakings from being in a position to assess the benefits which they would derive from their participation in an infringement by taking account, in advance, of the amount of the fine which would be imposed on them for that unlawful conduct.

(see paras 135-136, 201-202)

13. Neither the principle of non‑retroactivity nor the principle of the protection of legitimate expectations is infringed when, in the determination of the amounts of fines for infringement of the EU competition rules, account is taken of the Notice on immunity from fines and reduction of fines in cartel cases. Indeed, of those two principles, the first does not preclude the application of guidelines which, ex hypothesi, have the effect of increasing the level of fines, provided that the policy which they implement is reasonably foreseeable. As to the second, economic operators cannot have a legitimate expectation that an existing situation which is capable of being altered by the institutions within the limits of their discretionary power will be maintained.

(see paras 143-144)

14. Although it is true that, by virtue of the general principles of EU law, of which fundamental rights are an integral part and in the light of which all EU laws must be interpreted, undertakings have the right not to be compelled by the Commission to admit their participation in an infringement, the Commission is not on that account prevented from taking account, when setting the amount of the fine, of the assistance given by an undertaking, of its own volition, in order to establish the existence of the infringement. In this connection, cooperation under the Notice on immunity from fines and reduction of fines in cartel cases is a matter entirely within the will of the undertaking concerned. It is not in any way coerced to provide evidence of the presumed cartel. The degree of cooperation which the undertaking wishes to offer in the administrative procedure is therefore determined exclusively by its freedom of choice and is not in any circumstances imposed by the Leniency Notice. Moreover, no provision of that notice requires the undertaking in question to abstain from contesting or correcting untrue facts put forward by another undertaking.

Nor does that notice infringe the principle in dubio pro reo or the principle of the presumption of innocence, as it results in particular from Article 6(2) of the European Convention on Human Rights, which is also one of the fundamental rights which, according to the case-law of the Court of Justice, reaffirmed by Article 6(2) EU and by Article 48 of the Charter of Fundamental Rights of the European Union, are recognised in the legal order of the European Union. Cooperation under that notice, first, is a matter entirely within the will of the undertaking concerned and in no way implies any obligation upon an undertaking to provide evidence and, second, does not alter the duty of the Commission, which has the burden of proving the infringements found by it, to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting the infringement. To that end, the Commission may rely, without breaching the principle of the presumption of innocence, not only upon documents which it has obtained during the course of inspections carried out under Regulations Nos 17 and 1/2003, or which it has received in response to requests for information made under those regulations, but also upon evidence which an undertaking has voluntarily submitted to it under the Leniency Notice.

Nor does the Leniency Notice infringe the principle of proportionality. The notice appears to be an appropriate instrument for establishing the existence of secret horizontal cartels and thus for directing the conduct of undertakings towards compliance with the competition rules. Indeed, indeed, even though the means provided for in Articles 18 to 21 of Regulation No 1/2003, namely requests for information and inspections, are indispensable measures in the prosecution of infringements of competition law, secret cartels are often difficult to detect and investigate without the cooperation of the undertakings concerned. Thus, a cartel member that wishes to terminate its involvement in a cartel might be dissuaded from informing the Commission by the risk of receiving a heavy fine. By making provision for the grant of immunity from fines, and for a significant reduction in the amount of any fines for undertakings providing the Commission with evidence of the existence of a horizontal cartel, the Leniency Notice seeks to prevent such cartel members from deciding not to inform the Commission of the existence of a cartel.

Finally, the Commission did not exceed the powers conferred on it by Regulation No 1/2003 by adopting rules of practice in the Leniency Notice to direct the exercise of its discretion concerning the fixing of fines in order to take account, inter alia, of the conduct of undertakings during the administrative procedure and thus to better ensure equal treatment of the undertakings concerned. The Commission has the right, but no obligation, to impose a fine upon an undertaking that has infringed Article 81 EC. Moreover, paragraphs 2 and 3 of Article 23 of Regulation No 1/2003 do not set out an exhaustive list of the criteria which the Commission may take into account when fixing the amount of a fine. The conduct of the undertaking during the administrative procedure may therefore be one of the factors to be taken into account when fixing the fine.

(see paras 149-150, 153, 155, 160, 162-163, 168-169, 171, 174-176)

15. The Community must respect international law in the exercise of its powers. The right to property is not only protected by international law but is also one of the general principles of EU law. However, the primacy of international law over EU law does not extend to primary law, in particular to the general principles of which fundamental rights form a part. In this regard the right to property is not absolute but must be considered in relation to its function in society. Consequently, its exercise may be restricted, provided that the restrictions in fact correspond to objectives of public interest pursued by the Community and do not constitute, in relation to the objective pursued, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed. Given that the application of Articles 81 EC and 82 EC constitutes one of the aspects of public interest in the Community, restrictions may be applied, pursuant to those articles, on the exercise of the right to property, provided that they are not disproportionate and do not impair the substance of that right.

(see paras 187-190)

16. Although the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. In adopting such rules of conduct and announcing through their publication that they would henceforth apply to the cases to which they relate, the Commission imposed a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations. Furthermore, those guidelines determine, generally and abstractly, the method which the Commission has bound itself to use in setting fines and, consequently, ensure legal certainty for undertakings.

(see paras 200-202)

17. 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.

Under the first paragraph of Section 1A 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, 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. Thus, where the applicants do not show that the actual impact of the infringements could have been measured, the Commission is not obliged to take account of the actual impact of the infringements for the purpose of assessing their gravity. The effect of an anti-competitive practice is not a conclusive criterion for assessing the gravity of an infringement. Factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such as market sharing. Accordingly, the nature of the infringement plays a primary role, in particular in classifying infringements as ‘very serious’. It is clear from the description of very serious infringements given in the guidelines that agreements or concerted practices which are mainly designed to share markets may, on the basis of their nature alone, be categorised as ‘very serious’, without there being any need to distinguish such conduct by reference to a particular impact or geographic area, while the fact that the actual impact of the infringements was not taken into consideration cannot give rise to any breach of the principle of the presumption of innocence.

In those circumstances, irrespective of any alleged differences in the structures of the cartels, the infringements found in a Commission decision are, by their very nature, among the most serious violations of Article 81 EC where their purpose is 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. Apart from the serious distortion of competition which they entail, such agreements, by obliging the parties to respect distinct markets, often delimited by national frontiers, cause the isolation of those markets, thereby thwarting the Treaty’s main objective of integrating the Community market. Thus, infringements of this type, especially where horizontal cartels are concerned, are classified as particularly serious or obvious infringements.

(see paras 198, 214-215, 221-223, 234-235, 254)

18. As regards Commission decisions finding infringements of the EU competition rules and imposing fines, the essential procedural requirement to state reasons is satisfied where, in its decision, the Commission indicates the factors which enabled it to determine the gravity of the infringement and its duration, there being no requirement for any more detailed explanation or indication of the figures relating to the method of calculating the fine. If the Commission, in the contested decision, explains that the starting amounts of the fines have been determined taking into account the nature of the infringements and the size of the relevant geographic markets and that it has analysed the gravity of the infringements with reference to the characteristics of the participants, applying, for each infringement, a differential treatment to each of the undertakings involved, depending on its turnover in the products subject to the cartel in the country concerned, the factors which enabled the Commission to measure the gravity of the established infringements are sufficiently explained in the contested decision in compliance with Article 253 EC.

(see paras 203, 240, 243-245)

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

Accordingly, starting amounts for fines set for an infringement committed in Luxembourg which amount to half the minimum level normally envisaged by the guidelines for a very serious infringement are not disproportionate.

(see paras 247-248)

20. 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, 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 state that, where an infringement is sufficiently serious, it may be necessary in cases involving several undertakings, such as cartels, to apply weightings to the general starting amount in order to establish a specific starting amount taking account of the weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type. 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.

Moreover, EU law contains no general principle that the penalty must be proportionate to the undertaking’s size on the product market in relation to which the infringement is committed.

Finally, as regards the assessment of the gravity of the infringement on the basis of the division of the cartel members into categories, in order to ascertain whether such a division is in keeping with the principles of equal treatment and proportionality, the EU judicature, as part of its review of the lawfulness of the exercise of the Commission’s discretion in the matter, must confine itself to checking that the division is coherent and objectively justified. Furthermore, the abovementioned guidelines on the method of setting fines state that the principle of equal punishment for the same conduct may lead to different fines being imposed on the undertakings concerned without this differentiation being governed by arithmetical calculation.

(see paras 255-258, 263, 265)

21. The benefit of a mitigating circumstance cannot be granted under the third indent of Section 3 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 where the infringement has already come to an end before the date on which the Commission first intervenes. Logically, there can be a mitigating circumstance within the meaning of that provision only if the undertakings concerned are encouraged to cease their anti-competitive conduct by the Commission’s actions. The purpose of that provision is to encourage undertakings to terminate their anti-competitive conduct as soon as the Commission launches an investigation into it; consequently the fine cannot be reduced on that basis where the infringement has already come to an end before the date on which the Commission first intervenes. A reduction applied in such circumstances would duplicate the reduction for duration which is applied in calculating the fines.

(see para. 274)

22. The adoption, by an undertaking that has infringed the EU competition rules, of a compliance programme does not oblige the Commission to grant a reduction in the fine on that account. Moreover, whilst it is important that an undertaking take steps to prevent fresh infringements of EU competition law from being committed in the future by members of its staff, the taking of such steps does not alter the fact that an infringement has been committed. The Commission is not, therefore, bound to consider such a factor as a mitigating circumstance, all the more so when the infringements found in the contested decision are a clear infringement of Article 81 EC.

(see para. 282)

23. 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 manifestly go beyond the bounds of its margin of assessment when it considers not to represent significant added value a statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal, since such a declaration does not facilitate its task significantly and is therefore insufficient to justify a reduction in the fine for cooperation.

(see paras 295-296, 298-300, 309, 311)

24. 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. Where the positions of various undertakings which have been fined for an infringement of the EU competition rules are not comparable, the Commission does not breach the principle of equal treatment by granting certain undertakings reductions in the amounts of the fines, according to the added value of their respective cooperation, and by refusing another undertaking the benefit of such a reduction under the Notice on immunity from fines and reduction of fines in cartel cases. In that regard, the assessment of the added value of cooperation is carried out by reference to the evidence already in the Commission’s possession. Thus, when an undertaking provides evidence which is not decisive in establishing the existence of a cartel but merely strengthens the Commission’s ability to find the infringement by corroborating the evidence already in its possession, or when such an undertaking sends evidence of significant added value to the Commission only several months after the communications sent by other undertakings and in any event does not provide any contemporaneous documentary evidence, the Commission does not manifestly go beyond the bounds of its margin of assessment by setting a very low percentage reduction in the amount of such an undertaking’s fine.

(see paras 313, 315, 319, 335-336, 344, 347)

25. As regards observance 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 such 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, firstly, 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.

Second, when calculating fines, the Commission may take into account, inter alia, the size and economic strength of the economic unit which, for the purposes of Article 81 EC, is acting as an undertaking. However, the relevant undertaking to which the Commission must have regard is not each of the subsidiaries involved in the infringement, but the parent company and its subsidiaries. Third, as regards the proportionality of the fines by comparison with the size and economic strength of the economic units concerned, the Commission is bound by the 10% ceiling referred to in Article 23(2) of Regulation No 1/2003, the purpose of which is to ensure that fines are not disproportionate in relation to the size of the undertaking. A total amount of fines that represents approximately 2% of the aggregated turnover of the undertaking concerned in the financial year preceding the adoption of the contested decision cannot be regarded as disproportionate in relation to the size of that undertaking.

(see paras 367-370)

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

13 July 2011 ( )

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

In Case T‑138/07,

Schindler Holding Ltd, established in Hergiswil (Switzerland),

Schindler Management AG, established in Ebikon (Switzerland),

Schindler SA, established in Brussels (Belgium),

Schindler Deutschland Holding GmbH, established in Berlin (Germany),

Schindler Sàrl, established in Luxembourg (Luxembourg),

Schindler Liften BV, established in The Hague (Netherlands),

represented by R. Bechtold, W. Bosch, U. Soltész and S. Hirsbrunner, lawyers,

applicants,

v

European Commission, represented by K. Mojzesowicz and R. Sauer, acting as Agents,

defendant,

supported by

Council of the European Union, represented by M. Simm and G. Kimberley, acting as Agents,

intervener,

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

THE GENERAL COURT (Eighth Chamber),

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

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 17 September 2009,

gives the following

Judgment

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

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

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

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

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

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

– Mitsubishi Elevator Europe BV (‘MEE’);

3 Schindler is one of the largest groups in the world supplying elevators and escalators. Its parent company is Schindler Holding, established in Switzerland (recital 27 of the contested decision). Schindler operates in the elevator and escalator sectors through its national subsidiaries. Those subsidiaries include, in Belgium, Schindler Belgium, in Germany, Schindler Germany, in Luxembourg, Schindler Luxembourg and, in the Netherlands, Schindler Netherlands (recitals 28 to 32 of the contested decision).

The administrative procedure

1. The Commission investigation

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

Belgium

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

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

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

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

Germany

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

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

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

Luxembourg

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

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

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

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

The Netherlands

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

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

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

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

2. The statement of objections

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

21 No hearing was held, since none of the addressees of the statement of objections had requested a hearing (recital 38 of the contested decision).

3. The contested decision

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

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

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

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

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

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

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

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

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

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

‘Article 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– [MEE]: EUR 1 841 400.

…’

Proceedings and forms of order sought

32 By application lodged at the Registry of the General Court on 4 May 2007, the applicants, Schindler Holding, Schindler Management AG, Schindler Belgium, Schindler Germany, Schindler Luxembourg and Schindler Netherlands, brought the present action.

33 By document lodged at the Court Registry on 25 July 2007, the Council of the European Union applied for leave to intervene in support of the form of order sought by the Commission. By order of 8 October 2007, the President of the Eighth Chamber of the General Court granted the application to intervene.

34 On 26 November 2007, the Council submitted its statement in intervention. The main parties have submitted their observations on that statement.

35 Upon hearing the report of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 64 of the Rules of Procedure, put questions in writing to the applicants and requested the Commission to produce a document. The parties complied with those measures within the time-limit set.

36 The parties presented oral argument and replied to the oral questions put by the Court at the hearing on 17 September 2009.

37 The applicants claim that the Court should:

– annul the contested decision;

– in the alternative, reduce the amount of the fines imposed;

– find, in accordance with Article 113 of the Rules of Procedure, that there is no need to adjudicate on the action in so far as Schindler Management is concerned;

– order the Commission to pay the costs, including those connected with the finding that there is no need to adjudicate on the action brought by Schindler Management.

38 The Commission contends that the Court should:

– dismiss the action;

– order the applicants to pay the costs.

39 The Council contends that the Court should:

– dismiss the action;

– make the appropriate order as to costs.

The application for a finding that there is no need to adjudicate on the action in so far as Schindler Management is concerned

40 Article 4 of the contested decision, in the version preceding the commencement of the present action, included Schindler Management among the addressees of the decision.

41 By decision of 4 September 2007, notified to the General Court on 30 June 2009, the Commission corrected Article 4 of the contested decision and informed Schindler Holding and Schindler Management of the correction. The corrected Article 4 of the contested decision no longer mentions Schindler Management.

42 According to the applicants, the correction of the contested decision rendered the action brought by Schindler Management devoid of purpose.

43 It must be held, in accordance with the form of order sought by the applicants, that, following the correction of the contested decision, the present action, in so far as it is brought by Schindler Management, has become devoid of purpose.

44 There is thus no longer any need to adjudicate on the action brought by Schindler Management.

Substance

1. Preliminary observations

45 In support of their action, the applicants have raised in their pleadings arguments in the context of thirteen pleas in law, which they present as follows. The first plea alleges breach of the principle that penalties must have a proper legal basis, in that Article 23(2) of Regulation No 1/2003 gives the Commission an unrestricted discretion in calculating fines. The second plea alleges breach of the principle of non-retroactivity in the application of the 1998 Guidelines and the 2002 Leniency Notice. The third plea alleges breach of the principle that penalties must have a proper legal basis and that the Commission lacked jurisdiction to adopt the 1998 Guidelines. The fourth plea alleges that the 2002 Leniency Notice is unlawful, in that it breaches the principles nemo tenetur se ipsum accusare, nemo tenetur se ipsum prodere (‘together referred to as ‘the nemo tenetur principle’ and in dubio pro reo, and the principle of proportionality. The fifth plea alleges breach of the principle of the separation of powers and a failure to observe the requirement for procedures to be based upon respect for the principles of the rule of law. The sixth plea alleges the confiscatory nature of the fines imposed upon the applicants. The seventh and eighth pleas allege breach of the 1998 Guidelines in the setting of the starting amounts of the fines and in the assessment of the mitigating circumstances. The ninth plea alleges breach of the 1998 Guidelines and the 2002 Leniency Notice in the calculation of the fines for the infringements in Belgium, Germany and Luxembourg. The tenth plea alleges the disproportionate nature of the fines. The eleventh plea alleges that no valid notice was given of the contested decision to Schindler Holding. The twelfth plea alleges the absence of liability of the part of Schindler Holding. Lastly, the thirteenth plea alleges infringement of Article 23(2) of Regulation No 1/2003.

46 Although the action brought by the applicants has a double objective, namely an application for annulment of the contested decision, and, in the alternative, an application for reduction of the amount of the fines, the various complaints put forward by the applicants in their pleadings were none the less raised without specifying which claim they supported. At the hearing, in response to a question from the Court, the applicants stated, in substance, that the first ten pleas and the thirteenth plea were directed towards the annulment of Article 2 of the contested decision, that the eleventh plea was directed towards the annulment of the contested decision in its entirety, in so far as it was addressed to Schindler Holding, and that the twelfth plea was directed towards the annulment of Articles 1, 2 and 3 of the contested decision in so far as it was addressed to Schindler Holding.

47 It must be observed in this connection that several of the applicants’ complaints concern the legality of the contested decision in its entirety. They will therefore be examined first. That applies to the complaint which the applicants make in the context of their fifth plea, which, in substance, alleges infringement of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (the ‘ECHR’). Among the complaints concerning the legality of the contested decision in its entirety are also those which have been raised in the context of the eleventh and twelfth pleas, alleging, respectively, that the contested decision is unlawful in so far as it was addressed to Schindler Holding since no valid notice of it was given, and that the contested decision is unlawful in so far as it held Schindler Holding jointly and severally liable.

48 The complaints concerning the legality of Article 2 of the contested decision, put forward in the context of the other pleas in the action, will be examined subsequently. The Court considers it appropriate to examine the applicants’ complaints as follows. First of all, it will analyse the second, third and fourth pleas, in the context of which the applicants make several objections of illegality in relation to Article 23(2) of Regulation No 1/2003, the 1998 Guidelines and the 2002 Leniency Notice. Next, the Court will examine the sixth plea, alleging that the contested decision is confiscatory in nature. Lastly, the Court will examine the seventh, eighth, ninth, tenth and thirteenth pleas, in the context of which the applicants make several complaints concerning the calculation of their fines.

2. The application for the annulment of the contested decision in its entirety

The plea alleging infringement of Article 6(1) of the ECHR

49 The applicants argue that, since the infringements of the EC Treaty which relate to competition law fall within the scope of criminal law, the procedure before the Commission must satisfy the requirements of Article 6(1) of the ECHR. Administrative authorities cannot, they submit, impose penal sanctions unless there is the possibility of judicial review, which is not so in the present case. An action for annulment before the Courts of the European Union (‘Courts of the Union’) is no more than an appeal before an administrative court of last resort and is limited to the pleas in law which the applicant actually puts forward. That does not satisfy the requirements defined by the European Court of Human Rights, in particular, in Öztürk v. Germany, judgment of 21 February 1984, Series A, no. 73. Furthermore, the procedure before the Commission cannot be regarded as a procedure before an independent, impartial tribunal since the way in which the Commission takes evidence, in the context of the 2002 Leniency Notice, which consists in its relying upon descriptions of facts obtained in the course of a process of self-incrimination, is in breach of the requirements for a procedure in accordance with the rule of law, particularly since the undertakings are given no opportunity to check the relevance of the complaints made, for example, by putting questions to witnesses giving evidence against them.

50 Article 6(1) of the ECHR states:

‘In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …’

51 It must be borne in mind that the Court of Justice has recognised the general principle of European Union (‘EU’) law that everyone is entitled to a fair legal process (Case C‑411/04 P Salzgitter Mannesmann v Commission [2007] ECR I‑959, paragraph 40 and the case-law cited). That principle, which, moreover, has been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) (‘the Charter’), is inspired by the fundamental rights which form an integral part of the general principles of EU law which the Court of Justice enforces, drawing inspiration from the constitutional principles common to the Member States and from the guidelines supplied, in particular, by the European Court of Human Rights (Salzgitter Mannesmann v Commission, paragraph 41).

52 First of all, as regards the argument that the procedure before the Commission does not satisfy the requirements of Article 6(1) of the ECHR, the Court would observe that, according to the case-law of the European Court of Human Rights, in order for Article 6 of the ECHR to apply, it is sufficient that the infringement in question is by its nature to be regarded as criminal or renders the party concerned liable to a penalty which, by its nature and degree of severity, belongs in the general criminal sphere (see European Court of Human Rights, Jussila v. Finland, judgment of 23 November 2006, Reports of Judgments and Decisions, 2006‑XIII, § 31 and the case-law cited). As can be seen from the case-law of the European Court of Human Rights, by adopting an independent interpretation of the notion of ‘criminal charge’, the ECHR bodies laid the foundations for the progressive extension of the application of the criminal-head guarantees of Article 6 to areas which do not formally fall within the traditional categories of criminal law, such as pecuniary sanctions imposed for infringement of competition law. Nevertheless, as regards the categories which do not form part of the ‘hard core’ of criminal law, the European Court of Human Rights has stated that the criminal-head guarantees will not necessarily apply with their full stringency (see, to that effect, European Court of Human Rights, Jussila v. Finland, paragraph 43 and the case-law cited).

53 Moreover, according to the case-law of the Courts of the Union, and as is expressly confirmed by Article 23(5) of Regulation No 1/2003, Commission decisions imposing fines for the infringement of competition law are not of a criminal law nature (see, to that effect, Case T‑83/91 Tetra Pak v Commission [1994] ECR II‑755, paragraph 235, Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 717, and Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 390).

54 Contrary to the applicants’ contention, it must be held that a procedure in which the Commission adopts a decision finding an infringement and imposing fines which may subsequently be subject to review by the Courts of the Union satisfies the requirements of Article 6(1) of the ECHR. Admittedly, the Commission is not a tribunal within the meaning of Article 6 of the ECHR (see, to that effect, Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission [1980] ECR 3125, paragraph 81, and Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 7). However, the Commission must nevertheless observe the general principles of EU law during the administrative procedure (Case T‑11/89 Shell v Commission [1992] ECR II‑757, paragraph 39, Cimenteries CBR and Others v Commission, paragraph 53 above, paragraph 718, and HFB and Others v Commission, paragraph 53 above, paragraph 391).

55 Furthermore, the review of Commission decisions which the Courts of the Union carry out ensures that the requirements of a fair process, as enshrined in Article 6(1) of the ECHR (see paragraph 50 above) are satisfied.

56 According to the European Court of Human Rights, the undertaking concerned must be able to refer any decision adopted against it to a judicial body that has full jurisdiction and, in particular, the power to quash in all respects, on questions of fact and law, the challenged decision (see, by analogy, European Court of Human Rights, Janosevic v. Sweden, judgment of 23 July 2002, Reports of Judgments and Decisions, 2002‑VII, § 81 and the case-law cited). Where the General Court reviews the legality of a decision finding an infringement of Article 81 EC the applicants may call upon it to undertake an exhaustive review of both the substantive findings of fact and the Commission’s legal appraisal of those facts. Furthermore, in so far as concerns the fines, it has unlimited jurisdiction under Article 229 EC and Article 31 of Regulation No 1/2003 (see, to that effect, Cimenteries CBR and Others v Commission, paragraph 53 above, paragraph 719).

57 Second, the Court must dismiss the applicants’ argument that the undertakings concerned were given no opportunity to check the relevance of the complaints made by the Commission, for example, by putting questions to witnesses giving evidence against them. According to the case-law, there is no provision or general principle of EU law that prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty. However, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 285 and the case-law cited). Moreover, and in any event, it must be observed that, in the present case, the applicants have expressly admitted the facts set out in the statement of objections.

58 Third, as to the remainder of the plea, which concerns the Commission’s taking of evidence in the context of the 2002 Leniency Notice, the applicants confuse this complaint with their complaint alleging the illegality of the notice on the ground that it breaches the nemo tenetur and in dubio pro reo principles, which must be dismissed for the reasons set out in paragraphs 146 to 164 below.

59 It follows that the plea alleging infringement of Article 6(1) of the ECHR must be rejected.

The plea alleging that the contested decision is unlawful in so far as it was addressed to Schindler Holding since no valid notice of it was served

60 The applicants admit that the contested decision was communicated to Schindler Holding, established in Switzerland. However, it was not notified in accordance with Article 254(3) EC. The course of action taken by the Commission infringed Swiss law and is inconsistent with international law. Indeed, notification in Switzerland presupposes the existence of an international law convention with Switzerland which does not exist, with the result that, since there was no notification, the contested decision, in so far as it is addressed to Schindler Holding, is invalid and thus inexistent from a legal point of view.

61 In this connection it must be borne in mind that the Court of Justice has already held that irregularities in the procedure for notification of a decision are extraneous to that measure and cannot therefore invalidate it (Case 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, paragraph 39). Such irregularities can only, in certain circumstances, prevent the period referred to in the fifth paragraph of Article 230 EC, within which an application must be lodged, from starting to run. In the present case, Schindler Holding indisputably had knowledge of the content of the contested decision and exercised its right to bring proceedings within the period referred to in the fifth paragraph of Article 230 EC

62 The plea must therefore be rejected.

The plea alleging that the contested decision is unlawful in so far as it held Schindler Holding jointly and severally liable

63 By this plea the applicants dispute the joint and several liability of Schindler Holding, the parent company of the Schindler group, for the anticompetitive conduct of its subsidiaries in Belgium, Germany, Luxembourg and the Netherlands.

64 With regard to the joint and several liability of a parent company for the conduct of its subsidiary, the Court observes that the fact that a subsidiary has a separate legal personality is not sufficient to exclude the possibility of imputing its conduct to the parent company (Imperial Chemical Industries v Commission, paragraph 61 above, paragraph 132).

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

66 The Courts of the Union have also stated that, in the same context, the concept of an undertaking must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11, Akzo Nobel and Others v Commission, paragraph 65 above, paragraph 55 and the case-law cited; see also, to that effect, Case T‑234/95 DSG v Commission [2000] ECR II‑2603, paragraph 124). They have emphasised that, for the purposes of applying the competition rules, formal separation of two companies resulting from their having distinct legal identity is not decisive. The test is whether or not there is unity in their conduct on the market. Thus, it may prove necessary to establish whether two companies that have distinct legal identities form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market (Imperial Chemical Industries v Commission, paragraph 61 above, paragraph 140, Case T‑325/01 DaimlerChrysler v Commission [2005] ECR II‑3319, paragraph 85).

67 When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (Akzo Nobel and Others v Commission, paragraph 65 above, paragraph 56 and the case-law cited).

68 The infringement of EU competition law must be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections must be addressed to that person. It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations (Akzo Nobel and Others v Commission, paragraph 65 above, paragraph 57 and the case-law cited).

69 It is clear from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although it has a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (Akzo Nobel and Others v Commission, paragraph 65 above, paragraph 58 and the case-law cited).

70 That is the case because, in such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of the case-law mentioned at paragraphs 65 and 66 above. Thus, the fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (Akzo Nobel and Others v Commission, paragraph 65 above, paragraph 59).

71 In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the EU competition rules, the parent company is able to exercise a decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (Akzo Nobel and Others v Commission, paragraph 65 above, paragraph 60 and the case-law cited).

72 In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent compa