Final report of the Hearing Officer on the procedure in the Case COMP/E-1/38.823 — Elevators and Escalators (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21 )
Date: 2007-02-12
Institutions: European Commission
Subjects: EU control, building services, dominant position, fine, restriction on competition, restrictive trade practice

26.3.2008

EN

Official Journal of the European Union

C 75/15

Final report of the Hearing Officer on the procedure in the Case COMP/E-1/38.823 — Elevators and
Escalators

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of
reference of hearing officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2008/C 75/08)

The draft decision gives rise to the following observations:

Summary of the case

The present case was initiated following information provided in the summer of 2003 by an informant who
approached the Commission with information concerning the existence of cartel activities among the four
major manufacturers of elevators and escalators in the European Union.

Starting in January 2004, a series of inspections under Article 14(3) of Regulation No 17 took place in a
number of countries including initially Belgium and Germany, and subsequently Luxembourg and the
Netherlands. These inspections and a large number of applications under the Commission's Notice on
Immunity from fines and reduction of fines in cartel cases provided the Commission with evidence of infrin-
gements of Article 81(1) of the EC Treaty through agreements and concerted practices, the facts of which as
set out in the Statement of Objections (‘SO’) are not contested as such by the addressees of the draft Deci-
sion.

The initiation of proceedings, access to file, waiver of the right to an oral hearing

On 7 October 2005, the Commission addressed a Statement of Objections (‘SO’) to the following undertak-
ings: KONE Belgium SA, KONE GmbH, KONE Luxembourg SARL, KONE BV Liften en Roltrappen, KONE
Corporation (hereinafter jointly ‘KONE’), NV OTIS SA, Otis GmbH & Co. OHG, General Technic-Otis SARL,
General Technic SARL, Otis BV, Otis Elevator Company (hereinafter jointly ‘OTIS’), Schindler SA/NV,
Schindler Deutschland Holding GmbH, Schindler SARL, Schindler Liften BV, Schindler Holding Ltd
(hereinafter jointly ‘Schindler’), ThyssenKrupp Liften Ascenseurs NV/SA, ThyssenKrupp Aufzüge GmbH,
ThyssenKrupp Fahrtreppen GmbH, ThyssenKrupp Ascenseurs Luxembourg SARL, ThyssenKrupp Liften BV,
ThyssenKrupp Elevator AG and ThyssenKrupp AG (hereinafter jointly ‘ThyssenKrupp’), Mitsubishi Elevator
Europe BV, United Technologies Corporation and two other undertakings.

The undertakings were given access to the Commission's investigation file in the form of (a) copy(ies) on
DVD. Access to documents relating to oral statements submitted by Leniency applicants was given at the
Commission premises.

All the companies to which the SO had been addressed submitted written comments in response to the
objections raised by the Commission.

None of the addressees to the SO chose to request an oral hearing and therefore no oral hearing took place
in the present case.

The main procedural issues raised by the parties

In the course of the proceedings leading to the present draft decision, a series of procedural issues was
raised, in particular the following:

— The deadline for replying to the SO

Most of the addressees of the SO requested an extension of the deadline (two months from the date of
receipt of the access to file DVD) to reply to the SO. I fixed new deadlines for the companies in question
between 21 and 27 February 2006 in accordance with the pertinence of the reasons given to support
their individual requests.

— The preparation of a single SO and the organisation of the Commission's file

The relevant Commission service decided to send all companies implicated in the case a single SO that
contained sections for all countries covered by the investigation regardless of whether the company in
question was involved in the entirety of the respective countries or practices described. Furthermore, the
Commission decided to grant all addressees of the SO access to the file concerning the entirety of these
countries or practices (except for business secrets and other confidential information). The parties were
given the opportunity to express their views to the Hearing Officer before access was given on this basis.

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Official Journal of the European Union

26.3.2008

United Technologies Corporation, Schindler, OTIS and ThyssenKrupp claimed that the Commission
should have sent distinct and separate SOs to the addressees in accordance with their involvement in the
different national cartels and should have organised the file differently, given that the Commission had
alleged the existence of separate national infringements rather than the existence of a pan European
cartel. They considered that companies which were only accused of having participated in the infringe-
ment in one country should only have access to the documents in the file relating to the country in
question. Furthermore, they took the view that the addressees of the SO involved in a cartel in a different
country had no legitimate interest in seeing all documents in the Commission's file. Other parties took a
contrary view.

In response, I considered that the relevant Commission service enjoys a certain margin of discretion in
its decision jointly to investigate infringements that it considers to be related. I informed the parties that
if there were objective reasons that had led the relevant Commission service to believe that a compre-
hensive and thorough analysis of the anticompetitive behaviour under investigation requires an explora-
tion into different geographical markets at the same time, I was willing to accept this finding. Having
examined carefully the manner in which the investigation had been carried out, the nature of the alleged
infringements and the companies involved,
it appeared to me that there were sufficient reasons to
assume that the alleged infringements in the different markets in question were sufficiently linked to be
subject of a common investigation. In particular, in the light of the specific factors involved, I considered
the relevant Commission service had acted in an appropriate manner in maintaining a common investi-
gation after reaching the provisional conclusion that the infringements at issue were four separate
national cartels.

Concerning access to file, I consider that EC Competition Law and the jurisprudence of the Community
Courts ensure sufficiently the protection of the companies' sensitive information and assured the compa-
nies that any piece of information for which they could put forward that the disclosure would cause
significant and serious harm would be afforded special protection throughout
the administrative
proceedings. This principle was respected in the present case.

— Access to additional documents

KONE requested access to additional documents, including, inter alia, a more comprehensive summary
of the informant's submission to the Commission that had initiated the first inspections, and also an
internal document of the Commission relating to the preparation of inspections in Germany. These
immunity under the
documents were requested in order to prove that they should be granted full
Commission's Leniency Notice.

With regard to the informant's submission, the Commission is under a strict obligation to protect the
identity of its informers against the danger of retaliation (1). In particular, where powerful companies are
investigated for alleged infringements of competition law, the Commission has the duty to protect whis-
tleblowers from the harsh reactions they might have to face should their identity be revealed. Accord-
ingly, whilst I was able to single out a few further passages that in my view could be disclosed to KONE
without risk of endangering the informant's anonymity, and which were subsequently made available, I
otherwise endorsed the decision taken by the relevant Commission service not to grant access to the
whistleblower's submission in this case.

With regard to the request for internal documents, according to the case law and the Commission's
Notice on access to file, the Commission's internal documents are in principle inaccessible. I took the
view that the mere allegation by a company that internal documents could be useful in the preparation
of its defence cannot be sufficient to create an obligation on the part of the Commission to render these
information would be
documents accessible. Otherwise, the rule of inaccessibility of such internal
reversed and the legitimate interest in keeping the Commission's internal deliberations secret seriously
undermined. I consider that it is rather for the Commission services to verify themselves and, upon
substantiated request, for the Hearing Officer to crosscheck, whether the Commission's internal docu-
ments contain factual evidence which could be indispensable for a party's defence. Upon verification, my
view was that this was not the case in this particular instance. Accordingly, access was not granted.

(1) Judgement of the Court of 7 November 1985 in Case 145/83, Stanley George Adams v Commission (ECR) 1985, p. 3539

and paragraph 19 of the Commission Notice of 13 December 2005 on the rules for access to the Commission file.

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Official Journal of the European Union

C 75/17

The draft Decision

In the draft Decision the objections against two undertakings have been dropped. With regard to the other
addressees of the SO, some minor calculation errors have been rectified without, however, modifying the
start and end dates of the infringement (except for the case of OTIS in the Netherlands cartel where a later
starting date was set).

The draft Decision submitted to the Commission only contains objections about which the parties have had
the opportunity to state their views.

In the light of the above, I consider that the right of the parties to be heard has been fully respected in this
case.

Brussels, 12 February 2007.

Karen WILLIAMS