CELEX: 62007TJ0138
Language: en
Date: 2011-07-13
Title: Judgment of the General Court (Eighth Chamber) of 13 July 2011.#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.#Case T-138/07.

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 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 (Akzo Nobel and Others v Commission, paragraph 65 above, paragraph 61 and the case-law cited).
      
      73      Furthermore, whilst it is true that, in paragraphs 28 and 29 of its judgment in Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, the Court of Justice referred, not only to the fact that the parent company owned 100% of the capital of
         the subsidiary, but also to other circumstances, such as the fact that it was not disputed that the parent company exercised
         influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative
         procedure, the fact remains that those circumstances were mentioned for the sole purpose of identifying all the elements on
         which the General Court had based its reasoning and not to make the application of the presumption mentioned in paragraph
         71 above subject to the production of additional indicia relating to the actual exercise of influence by the parent company
         (Akzo Nobel and Others v Commission, paragraph 65 above, paragraph 62).
      
      74      It is in light of those principles that the Court must examine the present plea.
      
      75      In recital 627 of the contested decision, the Commission concluded that Schindler Holding should be held jointly and severally
         liable for the infringements committed by its subsidiaries Schindler Belgium, Schindler Germany, Schindler Luxembourg and
         Schindler Netherlands. That was because, ‘as their sole owner and ultimate parent company, [it] was able to exercise decisive
         influence over the commercial policy of each of the subsidiaries during the period of the infringement and, it is presumed,
         made use of this power’.
      
      76      In recitals 628 and 629 of the contested decision, the Commission held that Schindler Holding’s arguments that the subsidiaries
         conducted their business on the market as autonomous legal entities which determined their commercial policy largely on their
         own, and that it had no influence on the day-to-day business of the individual undertakings were ‘insufficient for the purposes
         of rebutting the presumption that [its] subsidiaries did not determine independently their own conduct on the market’.
      
      77      The Commission also stated, in recital 630 of the contested decision that, ‘during the administrative procedure, [Schindler
         Holding] could have provided evidence that it did not exert decisive influence over its subsidiaries ...’. According to the
         Commission, ‘[Schindler Holding] and its subsidiaries, however, did not provide [it] with evidence clarifying their corporate
         relationships, the management structure and reporting requirements for the purpose of rebutting [the] presumption [that] …
         [Schindler Holding], as the sole owner of its subsidiaries which are addressees of [the contested] decision, exercised its
         controlling rights and made use of all other means to exercise decisive influence to which it was entitled.’
      
      78      In recital 631 of the contested decision, the Commission held that ‘the mere existence of a compliance programme [could] not
         lead to the conclusion that [Schindler Holding] did or did not issue instructions regarding the infringement’. Thus, according
         to the Commission, ‘the presumption remains that [Schindler Holding’s] wholly-owned subsidiary did not determine autonomously
         its commercial policy on the market’.
      
      79      In light of those circumstances, the Commission concluded, in recital 632 of the contested decision that ‘[Schindler Holding]
         and its wholly-owned subsidiaries [had] not rebutted the presumption of liability for the infringements committed in Belgium,
         Germany, Luxembourg and the Netherlands [and that it] should be held jointly and severally liable with its relevant subsidiaries
         for the infringements of Article 81 of the Treaty, which are the subject of [the contested] decision’.
      
      80      First of all, it is not in dispute that, during the period of the infringement, Schindler Holding directly held the entire
         share capital of Schindler Belgium, Schindler Germany and Schindler Netherlands and, indirectly, through Schindler Belgium,
         the entire share capital of Schindler Luxembourg. There was, therefore, a presumption that Schindler Holding exercised a decisive
         influence over the conduct of its subsidiaries (see paragraph 72 above).
      
      81      Schindler cannot claim that the Commission ought to have proved that the operational activities of the said subsidiaries,
         including their conduct in breach of Article 81 EC, was actually influenced by Schindler Holding and that the latter caused
         or supported the infringement.
      
      82      The attribution of an infringement by a subsidiary 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 (Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 83). 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 (see paragraph 72 above). It should also be observed
         that 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
         (Akzo Nobel and Others v Commission, paragraph 58).
      
      83      Nor may the applicants invoke any alleged breach of the principle of fault or disregard for the principle of holding shareholders
         in limited liability companies or public limited companies liable for company debts or the actions of a company’s managing
         bodies. Suffice it to observe in this connection that that line of argument is based on a false premiss, namely that no infringement
         has been found to have been committed by the parent company, which is not the case in the present matter, since it is clear
         from recital 632 and Articles 1 and 2 of the contested decision that Schindler Holding was held individually liable for the
         infringements which it is deemed to have committed itself on account of the close economic and legal links between it and
         its subsidiaries (see, to that effect, Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraphs 28 and 34, and Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 74).
      
      84      Next, the Court must examine the arguments put forward by the applicants in order to rebut the presumption described in paragraph
         71 above, by which they contend that the subsidiaries of Schindler Holding themselves determined their commercial policy independently.
      
      85      First, the circumstance upon which Schindler Holding relies, namely that it gave no instructions to its subsidiaries which
         might in this case have authorised or encouraged contacts contrary to Article 81 EC, and had no knowledge of any such contacts,
         is not, even were it to be proven, sufficient to demonstrate the independence of its subsidiaries. As was pointed out in paragraph
         82 above, the attribution of an infringement by a subsidiary 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.
      
      86      Second, the Court must reject the argument that Schindler Holding’s subsidiaries always operated independently in their respective
         countries, without being influenced by Schindler Holding in their day-to-day operations, their ‘market acquisitions’, the
         conclusion of contracts or their pricing policy and that Schindler Holding was merely informed of deals that were likely to
         result in losses. Indeed, the applicants in question have adduced no evidence in support of those assertions and, in any event,
         such assertions, even if proven, are not sufficient to rebut the presumption described in paragraph 71 above, since it is
         clear from the case-law that factors other than those to which the applicants refer also fall within the concept of the commercial
         policy of a subsidiary for the purposes of applying Article 81 EC to its parent company. On that point it should be noted
         that, when analysing the existence of a single economic entity among a number of companies forming part of a group, the EU
         judicature has examined, inter alia, whether the parent company was able to influence pricing policy, production and distribution
         activities, sales objectives, gross margins, sales costs, cash flow, stocks and marketing. However, it cannot be inferred
         that it is only those aspects that are covered by the concept of the commercial policy of a subsidiary for the purposes of
         the application of Articles 81 EC and 82 EC with respect to the parent company (Akzo Nobel and Others v Commission, paragraph 82 above, paragraph 64 and the case-law cited).
      
      87      Third, the fact that, in the four countries concerned by the infringement, Schindler Holding’s subsidiaries participated in
         separate infringements of distinct nature, which, it is submitted, suggests that Schindler Holding did not actually influence
         the operational activities of its subsidiaries, is equally incapable of rebutting the presumption of liability. Indeed, it
         is clear from recitals 627 to 632 of the contested decision that the Commission did not rely upon any similarities between
         the infringements found in the four countries in question in order to impute liability for the subsidiaries’ conduct to Schindler
         Holding. Moreover, the applicants’ assertion that the infringements were distinct in nature is mistaken. In the four countries
         in question, Schindler Holding’s subsidiaries participated, during largely overlapping periods of time (from 9 May 1996 to
         29 January 2004 in Belgium, from 1 August 1995 to 6 December 2000 in Germany, from 7 December 1995 to 9 March 2004 in Luxembourg
         and from 1 June 1999 to 5 March 2004 in the Netherlands) in infringements having a similar purpose, consisting in ‘secret
         collusion between cartel participants to share markets or freeze market shares by allocating projects for the sale and installation
         of new elevators and/or escalators, as well as not to compete with each other for [the] maintenance and modernisation of elevators
         and escalators (except in Germany where the maintenance and modernisation business [was] not [the] subject of discussions
         between the cartel members)’ (recital 658 of the contested decision).
      
      88      Fourth, the fact that Schindler Holding did its utmost to prevent its subsidiaries engaging in conduct contrary to Article
         81 EC, in particular by adopting 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 (see, by analogy, Joined Cases C‑189/02 P,
         C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 373) and, moreover, does not demonstrate that those subsidiaries determined their commercial
         policy independently. On the contrary, the implementation within the subsidiaries of Schindler Holding of that code of conduct
         rather suggests that the parent company did in fact supervise the commercial policy of its subsidiaries, particularly since
         the applicants themselves have confirmed that compliance with the code of conduct was checked by means of regular audits and
         other measures taken by an employee of Schindler Holding responsible for compliance (a compliance officer).
      
      89      Fifth, in so far as concerns relations within the group, the management structure and the guidelines concerning reporting
         requirements within Schindler Holding, the Commission asserted, in recital 630 of the contested decision, that Schindler Holding
         and its subsidiaries had not provided it with evidence that clarified their corporate relations. Admittedly, it is clear from
         the file that, during the administrative procedure, the applicants did in fact provide the Commission with some information
         about relations within the group, the management structure and the guidelines concerning reporting requirements (reporting
         lines).
      
      90      Nevertheless, that information does not enable it to be concluded that the Schindler subsidiaries are independent. Indeed,
         the information provided, which, moreover, was not accompanied by any evidence, was incomplete and essentially concerned the
         reporting responsibilities and obligations of a few senior managers of Schindler Luxembourg and Schindler Belgium and the
         responsibilities of one employee of Schindler Germany, without clarifying to any greater extent the corporate relations between
         Schindler Holding and its subsidiaries active in the countries in question or indeed the influence that Schindler Holding
         had over them.
      
      91      In light of the presumption of liability described in paragraph 72 above and the fact that, as is clear from paragraphs 84
         to 90 above, the applicants have not rebutted that presumption, the Commission was entitled to impute the infringements committed
         by the subsidiaries of Schindler Holding to their parent company.
      
      92      The present plea must therefore be rejected.
      
      3.     The application for annulment of Article 2 of the contested decision
       The objection of illegality relating to Article 23(2) of Regulation No 1/2003, alleging breach of the principle that penalties
            must have a proper legal basis
      93      The applicants maintain that Article 23(2) of Regulation No 1/2003 confers upon the Commission an almost unlimited discretion
         as regards the setting of fines, something contrary to the principle that penalties must have a proper legal basis, which
         is defined in Article 7(1) of the ECHR and also flows from the general legal principles which have their foundation in the
         constitutional traditions common to the Member States.
      
      94      It is appropriate to recall the wording of Article 7(1) of the ECHR:
      
      ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal
         offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than
         the one that was applicable at the time the criminal offence was committed.’
      
      95      It is clear from the case-law that 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 (Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 66, Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraph 71 and the case-law cited).
      
      96      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(1) of the ECHR. 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 (see,
         to that effect, judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa v Commission and Council, not published in the ECR, paragraphs 38 to 40 and the case-law cited).
      
      97      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 (see, to that effect, Case 137/85 Maizena and Others [1987] ECR 4587, paragraph 15 and the case-law cited). 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 (see Degussa v Commission, paragraph 95 above, paragraph 67, Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 83 above, paragraph 29 and the case-law cited).
      
      98      In addition, it is settled case-law that fundamental rights form an integral part of the general principles of law whose observance
         the Courts of the Union ensure (Opinion 2/94 [1996] ECR I‑1759, paragraph 33, Case C‑299/95 Kremzow [1997] ECR I‑2629, paragraph 14). For that purpose, the Court of Justice and the General Court draw inspiration from the
         constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the
         protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special
         significance in that respect (Case C‑94/00 Roquette Frères [2002] ECR I‑9011, paragraph 23, Kremzow, paragraph 14). In addition, Article 6(2) EU states that ‘the Union shall respect fundamental rights, as guaranteed by the
         [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of [EU] law’.
      
      99      As this Court has already pointed out (Degussa v Commission (paragraph 95 above, paragraph 71), Article 7(1) of the ECHR 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 (European Court of Human Rights, Margareta and Roger Andersson v. Sweden, judgment of 25 February 1992, Series A no. 226, § 75). 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
         (European Court of Human Rights, G. v. France, judgment of 27 September 1995, Series A no. 325‑B, § 25).
      
      100    Taking into account the constitutional traditions common to the Member States does not mean giving a different interpretation
         to the general principle of EU law that penalties must have a proper legal basis from that which flows from the points developed
         above (Degussa v Commission, paragraph 95 above, paragraph 73). The applicants’ argument that at national level there is no comparable measure that empowers
         an authority to impose ‘almost unlimited’ fines must therefore be rejected.
      
      101    In the present case, 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, it must be held, first of all, that, contrary to the applicants’ submission,
         the EU legislature did not confer upon the Commission an excessive or arbitrary discretion in setting fines for infringements
         of the competition rules (Degussa v Commission, paragraph 95 above, paragraph 74).
      
      102    First of all, it must be noted that, although Article 23(2) of Regulation No 1/2003 leaves the Commission a wide discretion,
         it nevertheless limits the exercise of that discretion by establishing objective criteria to which the Commission must adhere.
         It must be recalled, first, that 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 (Evonik Degussa v Commission and Council, paragraph 96 above, paragraph 50, and Degussa v Commission, paragraph 95 above, paragraph 75).
      
      103    The applicants cannot claim that the judgment in Degussa v Commission, paragraph 95 above, (paragraphs 66 to 88), or in Jungbunzlauer v Commission, paragraph 95 above (paragraphs 69 to 92), in which the interpretation of the principle that penalties must have a proper
         legal basis adopted by the General Court corresponds to that given in Degussa v Commission, paragraph 95 above, is based upon a ‘mistaken view of the law’. Indeed, in Evonik Degussa v Commission and Council, paragraph 96 above (paragraphs 36 to 63), the Court of Justice confirmed on appeal the General Court’s interpretation of
         the principle that penalties must have a proper legal basis given in Degussa v Commission, paragraph 95 above.
      
      104    Admittedly, the judgments mentioned in the preceding paragraph relate to Article 15(2) of Regulation No 17, while the fines
         imposed in the contested decision are based upon Article 23(2) of Regulation No 1/2003. Nevertheless, given that the criteria
         for the imposition of the fines and the ceiling are the same in both provisions, the case-law cited in the preceding paragraph
         also applies with regard to Article 23(2) of Regulation No 1/2003.
      
      105    Second, 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, as
         developed by the case-law of the Court of Justice and the General Court (Evonik Degussa v Commission and Council, paragraph 96 above, paragraph 51, and Degussa v Commission, paragraph 95 above, paragraph 77).
      
      106    Third, 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 2002 Leniency Notice and the 1998 Guidelines,
         which, it should be noted, 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 (see, to that effect, Evonik Degussa v Commission and Council, paragraph 96 above, paragraphs 52 and 53, Case C‑510/06 P Archer Daniels Midland v Commission [2009] ECR I‑1843, paragraph 60, and Degussa v Commission, paragraph 95 above, paragraphs 78 and 82). Moreover, contrary to the applicants’ submission, the Commission’s adoption of
         guidelines in 1998, and then, in 2006, of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a)
         of Regulation No 1/2003 (OJ 2006 C 210, p. 2), 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, merely 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
         (see, to that effect, Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 83 above, paragraph 44).
      
      107    Fourth, it must be added that, under Article 229 EC and Article 31 of Regulation No 1/2003, the Court of Justice and the General
         Court have unlimited jurisdiction in actions challenging decisions whereby the Commission has fixed fines and may, accordingly,
         not only annul decisions taken by the Commission 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 (see, to that effect, Evonik Degussa v Commission and Council, paragraph 96 above, paragraph 54, and Degussa v Commission, paragraph 95 above, paragraph 79).
      
      108    Consequently, in view of the various considerations set out above, 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
         (Evonik Degussa v Commission and Council, paragraph 96 above, paragraph 55, and Degussa v Commission, paragraph 95 above, paragraph 83). 
      
      109    The applicants cannot therefore complain that the wording of Article 23(2) of Regulation No 1/2003 does not guarantee the
         requisite degree of foreseeability called for by the fundamental principles of criminal law and the rule of law. Indeed, the
         provision makes it possible to predict, with a sufficient decree of precision, the method of calculation and the level of
         fines imposed (see, to that effect, Evonik Degussa v Commission and Council, paragraph 96 above, paragraph 58).
      
      110    Next, contrary to the applicants’ submission, the Commission’s decision-making practice in fining matters has not developed
         in any unforeseeable or random fashion.
      
      111    First of all, during the periods in which the four infringements found in the contested decision took place, there has merely
         been a reorganisation of the method of calculating fines, brought about by the publication of the 1998 Guidelines, which has
         been judged by the Court of Justice as reasonably foreseeable (Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 231). 
      
      112    Second, as regards the increase in the level of fines following the adoption of the 1998 Guidelines, it is settled case-law
         that the Commission may at any time adjust the level of fines if the proper application of the EU competition rules so requires
         (Musique Diffusion française and Others v Commission, paragraph 54 above, paragraph 109, Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 237), 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 recent increase in the
         level of fines, alleged and criticised by the applicants, 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, as interpreted by the Courts of the Union (see, to that
         effect, Degussa v Commission, paragraph 95 above, paragraph 81, and Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 83 above, paragraph 43).
      
      113    Third, there is no basis for the argument that, by adopting Article 15(2) of Regulation No 17 and Article 23(2) of Regulation
         No 1/2003, the Council infringed its obligation to indicate clearly the limits of the power conferred on the Commission and,
         in breach of Article 83 EC, in fact transferred to the Commission a power appertaining to it by virtue of the EC Treaty.
      
      114    Firstly, as observed above, although Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 leave the
         Commission a wide discretion, they limit its exercise by laying down objective criteria by which the Commission must abide.
         Secondly, it should be noted that Regulation No 17 and Regulation No 1/2003 were adopted on the basis of Article 83(1) EC
         which provides that ‘the appropriate regulations or directives to give effect to the principles set out in Articles 81 [EC]
         and 82 [EC] shall be laid down by the Council … on a proposal from the Commission and after consulting the European Parliament’.
         The purpose of those regulations or directives, as stated in Article 83(2)(a) and (d) EC respectively, is to ‘ensure compliance
         with the prohibitions laid down in Article 81(1) [EC] and in Article 82 [EC] by making provision for fines and periodic penalty
         payments’ and to ‘define the respective functions of the Commission and of the Court of Justice in applying the provisions
         laid down in this paragraph’. It should be noted, moreover, that, under the first indent of Article 211 EC, the Commission
         is to ‘ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied’
         and that, under the third indent of that article, it is to have ‘its own power of decision’ (Degussa v Commission, paragraph 95 above, paragraph 86, Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 83 above, paragraph 48).
      
      115    It follows that the power to impose fines for infringements of Articles 81 EC and 82 EC 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. Under the provisions of the EC Treaty cited above, 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 EC Treaty itself and is intended to facilitate the effective application
         of the prohibitions laid down in those articles (Degussa v Commission, paragraph 95 above, paragraph 87, Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 83 above, paragraph 49). 
      
      116    It follows from those considerations that the objection that Article 23(2) of Regulation No 1/2003 is unlawful in that it
         breaches the principle that penalties must have a proper legal basis must be rejected.
      
       The objection of illegality in respect of the 1998 Guidelines, alleging breach of the principle of non-retroactivity
      117    The applicants point out that no act of the European Union may apply before it is published and that the second sentence of
         Article 49(1) of the Charter provides that no heavier penalty may be imposed than that which was applicable at the time the
         offence was committed. They submit that, in the present case, the 1998 Guidelines breach the principle of non-retroactivity
         in that they go beyond the limits of foreseeability. The applicants emphasise in this connection that the toughening of decision-making
         policy in fining matters is the work of the Commission, not of the legislature.
      
      118    It is clear from the case-law that the principle of non-retroactivity of criminal laws, enshrined in Article 7 of the ECHR,
         constitutes a general principle of EU law which must be observed when fines are imposed for infringement of the competition
         rules and that that principle requires that the penalties imposed correspond with those fixed at the time when the infringement
         was committed (Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 202, LR AF 1998 v Commission, paragraph 112 above, paragraphs 218 to 221, and Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraphs 39 to 41). 
      
      119    It has also been held that 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 (Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 222).
      
      120    First, the 1998 Guidelines are capable of producing legal effects. Those effects stem not from any attribute of the 1998 Guidelines
         as rules of law in themselves, but from their adoption and publication by the Commission. By adopting and publishing the 1998
         Guidelines, the Commission imposed a limit on its own discretion; it 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, the protection of
         legitimate expectations and legal certainty (see, to that effect, Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraphs 209 to 212).
      
      121    Second, according to the case-law of the European Court of Human Rights relating to Article 7(1) of the ECHR, that provision
         precludes the retroactive application, to the detriment of the accused, of any new interpretation by the courts of a rule
         establishing an offence (see, to that effect, European Court of Human Rights, S.W. v. United Kingdom, judgment of 22 November 1995, Series A no. 335-B, §§ 34 to 36, C.R. v. United Kingdom, judgment of 22 November 1995, Series A no. 335‑C, §§ 32 to 34, Cantoni v. France, judgment of 15 November 1996, Reports of Judgments and Decisions, 1996-V, §§ 29 to 32, and Coëme and Others v. Belgium, judgment of 22 June 2000, Reports, 2000-VII, § 145). According to that case-law, this is the case in particular where there is an interpretation by the courts
         which produces a result which was not reasonably foreseeable at the time when the offence was committed, having regard notably
         to the interpretation of the rule applied in the case-law at the material time. It should however be stated that it follows
         from that same case-law that the scope of the notion of foreseeability depends to a considerable degree on the content of
         the text in issue, the field it covers and the number and status of those to whom it is addressed. Thus, a law may still satisfy
         the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree
         that is reasonable in the circumstances, the consequences which a given action may entail. More specifically, in accordance
         with Cantoni v. France (cited above, § 35), this is true particularly in relation to persons carrying on a professional activity, who are used to
         having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take
         special care in assessing the risks that such an activity entails.
      
      122    In light of the foregoing, and in order to ensure that the principle of non-retroactivity has been observed, it is necessary
         to ascertain whether the change in question, namely the adoption of the 1998 Guidelines, was reasonably foreseeable at the
         time when the infringements concerned were committed (see, to that effect, Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 224).
      
      123    It is important to observe in this connection, first of all, that the alleged increase in the level of fines resulting from
         the application of the 1998 Guidelines 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 1998 Guidelines expressly provides that the fines imposed
         may in no case exceed the 10% of turnover ceiling laid down in those provisions.
      
      124    Next, it should be noted that the main innovation in the 1998 Guidelines consisted in taking as a starting point for the calculation
         a basic amount, determined on the basis of brackets laid down for that purpose by the Guidelines, 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 (Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 225, and Archer Daniels Midland v Commission, paragraph 106 above, paragraph 61).
      
      125    Lastly, it must be borne in mind that 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 EU competition rules requires that the Commission may at any time adjust the level of fines
         to the needs of that policy (see, to that effect, Musique Diffusion française and Others v Commission, paragraph 54 above, paragraph 109, Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, paragraph 81, and Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 227; Case T‑12/89 Solvay v Commission [1992] ECR II‑907, paragraph 309, and Case T‑304/94 Europa Carton v Commission [1998] ECR II‑869, paragraph 89).
      
      126    It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate
         expectation that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines
         (Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 228).
      
      127    Consequently, the undertakings in question 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 is true not only where the Commission raises
         the level of the amount of fines when imposing fines in individual decisions but also if that increase takes effect by the
         application, in particular cases, of rules of conduct of general application, such as the 1998 Guidelines (Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraphs 229 and 230, and Archer Daniels Midland v Commission, paragraph 106 above, paragraph 59).
      
      128    It follows that the applicants are mistaken in their view that the 1998 Guidelines breach the principle of non-retroactivity
         in that they led to the imposition of larger fines than those imposed in the past and that the limits of foreseeability have
         been exceeded in the present case. The 1998 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 indeed reasonably
         foreseeable for undertakings such as the applicants at the time when the infringements concerned were committed (see, to that
         effect, Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 231). For the same reason, the Commission was under no obligation to give any further explanation
         in the 1998 Guidelines of the fact that the increase in the level of fines was necessary to ensure the implementation of the
         Community’s competition policy.
      
      129    As regards the argument that the toughening of decision-making policy in fining matters is the work of the Commission and
         not of the legislature, that argument is confused with the argument relied upon in support of the objection of illegality
         alleging the Commission’s lack of jurisdiction, and is examined in paragraphs 131 to 137 below. 
      
      130    It follows from all the foregoing that the present objection of illegality must also be rejected.
      
       The objection that the 1998 Guidelines are unlawful in that the Commission lacked jurisdiction and, in the alternative, in
            that the Guidelines lack transparency and were not predictable
      131    The applicants maintain that the considerable discretion conferred upon the Commission by Article 23(2) of Regulation No 1/2003
         should be delineated in abstract, general fashion, that is to say, in a substantive rule. Unlike the Council, the Commission
         has, they maintain, no jurisdiction to adopt such a rule. Moreover, even if the Commission could lawfully establish a ‘framework
         for fines’, the 1998 Guidelines are in any event ineffectual in that they are incapable of ensuring the requisite minimum
         degree of transparency and foreseeability in the calculation of fines. 
      
      132    First of all, it must be observed that the applicants have not stated in their pleadings what provision the Commission is
         supposed to have infringed by adopting the 1998 Guidelines. When questioned on this point at the hearing, the applicants stated
         that, in accordance with the principle that penalties must have a proper legal basis, it was for the Council to adopt abstract
         rules for the calculation of fines.
      
      133    The adoption by the Commission of the 1998 Guidelines, inasmuch as it fell within the statutory limits laid down by Article
         15(2) of Regulation No 17 and, subsequently, in Article 23(2) of Regulation No 1/2003, merely contributed to defining the
         limits of the exercise of the discretion which the Commission already had under those provisions (see, to that effect, Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 83 above, paragraph 44). That being so, the Court must reject the argument that the Commission lacked jurisdiction
         to adopt the Guidelines.
      
      134    Second, the Court must also reject the arguments by which it is alleged that the 1998 Guidelines lacked transparency and predictability.
      
      135    Indeed, it was with a view to transparency and to increasing legal certainty for the undertakings concerned that the Commission
         published the Guidelines in which it set out the calculation method that it would use in each case. In that regard, the Court
         of Justice has also held that, 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 Court has also held that the Guidelines determine, generally
         and abstractly, the method which the Commission has bound itself to use in setting fines and, consequently, that they ensure
         legal certainty for undertakings (Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraphs 211 and 213, and Archer Daniels Midland v Commission, paragraph 106 above, paragraph 60).
      
      136    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 (Evonik Degussa v Commission and Council, paragraph 96 above, paragraph 55). Admittedly, a trader cannot, by reference to the 1998 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 (Degussa v Commission, paragraph 95 above, paragraph 83).
      
      137    It follows from all the foregoing that the objection that the 1998 Guidelines are unlawful in that the Commission lacked jurisdiction
         and, in the alternative, in that the Guidelines lack transparency and were not predictable is without foundation.
      
       The objection of illegality in relation to the 2002 Leniency Notice, alleging breach of the principle of non-retroactivity
            and of the principle of the protection of legitimate expectations 
      138    The applicants maintain that, by applying in this case the 2002 Leniency Notice, while the majority of the facts addressed
         in the contested decision occurred prior to its entry into force, the Commission breached the principle of non-retroactivity.
         According to the applicants, the Commission ought to have applied its Notice on the non-imposition or reduction of fines in
         cartel cases (OJ 1996 C 207, p. 4) (‘the 1996 Leniency Notice’), which would have enabled them to benefit from a reduction
         in their fine of between 10% and 50% on the ground that they had not contested the facts, rather than the purely symbolic
         reduction of 1% that they were allowed in the contested decision (recitals 777, 806, 835 and 854 of the contested decision).
         By applying the 2002 Leniency Notice, the Commission also breached the principle of the protection of legitimate expectations.
      
      139    It must be borne in mind that Section D of the 1996 Leniency Notice stated that an undertaking could benefit ‘from a reduction
         of 10% to 50% of the fine that would have been imposed if it had not cooperated’ if, ‘after receiving a statement of objections,
         [it] inform[ed] the Commission that it [did] not substantially contest the facts on which the Commission base[d] its allegations’.
         The 2002 Leniency Notice, by contrast, no longer provides for any reduction in the amount of the fine on that ground.
      
      140    As regards the alleged retroactive effect of the 2002 Leniency Notice, the Court must observe that point 28 of the Notice
         states that ‘from 14 February 2002, this notice replaces the 1996 [leniency] notice for all cases in which no undertaking
         has contacted the Commission in order to take advantage of the favourable treatment set out in that notice’. Since the 2002
         Leniency Notice was published on 19 February 2002, it does, admittedly, envisage a certain retroactive application of its
         provisions, one that is, nevertheless, limited to the period 14 February 2002 to 19 February 2002 inclusive. Given that none
         of the participants in the cartel made an application under the 2002 Leniency Notice before 2 February 2004 (recitals 94,
         105, 115 and 127 of the contested decision), any unlawfulness arising from the retroactive application of the 2002 Leniency
         Notice could not have affected the lawfulness of the contested decision.
      
      141    None the less, in the present case, the applicants take issue with the immediate application of the 2002 Leniency Notice for
         the purposes of calculating fines in respect of events some of which occurred before 2002.
      
      142    First of all, it must be observed that, as is clear from the file, the applicants expressly requested the application of the
         2002 Leniency Notice on no less than six occasions during the administrative procedure.
      
      143    Second, and in any event, it follows from the case-law that the principle of non‑retroactivity does not preclude the application
         of guidelines which, ex hypothesi, have the effect of increasing the level of fines imposed for infringements committed before their adoption, provided that
         the policy which they implement is reasonably foreseeable at the time the infringements in question were committed (Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraphs 202 to 232, Joined Cases T‑101/05 and T‑111/05 BASF and UCB v Commission [2007] ECR II‑4949, paragraph 233; see also Archer Daniels Midland v Commission, paragraph 106 above, paragraph 66). The applicants do not, however, claim that the change which occurred when the 2002 Leniency
         Notice was adopted was not foreseeable.
      
      144    In so far as concerns the alleged breach of the applicants’ legitimate expectations arising from the application of the 2002
         Leniency Notice to infringements which, in part, were committed prior to its entry into force, suffice it to observe that,
         according to settled case-law, 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 (Case C‑280/93
         Germany v Council [1994] ECR I‑4973, paragraph 80, and Case C‑295/03 P Alessandrini and Others v Commission [2005] ECR I‑5673, paragraph 89 and the case-law cited). Moreover, and in any event, the applicants could, at any time, have
         caused the 1996 Leniency Notice to apply by making an application to the Commission under that Notice before the entry into
         force of the 2002 Leniency Notice. It follows that this complaint must be rejected.
      
      145    Consequently, the objection of illegality in relation to the 2002 Leniency Notice, alleging breach of the principle of non-retroactivity
         and the complaint alleging breach of the principle of the protection of legitimate expectations must be rejected.
      
       The objection of illegality relating to the 2002 Leniency Notice, alleging that it breaches the general principles of law
            nemo tenetur and in dubio pro reo and the principle of proportionality, and constitutes an abuse of discretion
      146    The applicants maintain that the 2002 Leniency Notice is unlawful in that it breaches general legal principles and goes beyond
         the scope of the discretion conferred upon the Commission. They submit that the 2002 Leniency Notice breaches the principle
         nemo tenetur, the principle in dubio pro reo and the principle of proportionality. Its adoption amounts to an abuse of the Commission’s discretion and it does not, therefore,
         apply in the present case, with the result that the evidence provided under the 2002 Leniency Notice cannot be used, since
         the use of illegally obtained evidence is prohibited.
      
      147    It is appropriate to examine separately the various complaints made in the context of the present objection of illegality.
      
       The first complaint, alleging breach of the principle nemo tenetur
      148    The applicants point out that, in accordance with the nemo tenetur principle, no person may be forced to incriminate himself or to furnish evidence against himself. The 2002 Leniency Notice
         breaches that principle since, in practice, it forces undertakings to cooperate with the Commission and to make admissions
         to it. To begin with, it is only the first undertaking to submit evidence satisfying the conditions set out in point 8(a)
         or (b) of the notice that can claim exemption from a fine. As a result, all the undertakings, racing for ‘pole position’,
         make complete (sometimes exaggerated) admissions to the Commission, without being able to weigh the benefit of cooperation
         consisting in the anticipated reduction in the fine against the disadvantages which such cooperation entails. Second, by cooperating
         under the 2002 Leniency Notice, an undertaking deprives itself of the opportunity of contesting the facts, even if untrue,
         put forward by the other undertakings, since the Commission would regard any such contestation of the facts as a lack of cooperation
         for the purposes of paragraphs 11 and 23 of the notice. That entails a grave risk of not being able to benefit from a reduction
         in the fine under the notice.
      
      149    It is clear from the case-law, first, that, as one 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 (see, to that effect, Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 35, and Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P
         and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 273).
      
      150    Second, while the Commission may not compel an undertaking to admit its participation in an infringement, it is not thereby
         prevented from taking account, when setting the amount of the fine, of the assistance given by that undertaking, of its own
         volition, in order to establish the existence of the infringement (Case C‑57/02 P Acerinox v Commission [2005] ECR I‑6689, paragraph 87, and Joined Cases C‑65/02 P and C‑73/02 P ThyssenKrupp v Commission [2005] ECR I‑6773, paragraph 50). 
      
      151    The applicants cannot claim that the case-law mentioned in paragraphs 149 and 150 above is ‘outdated’. On the contrary, the
         Court of Justice has expressly confirmed it, after taking note of the developments in the case-law of the European Court of
         Human Rights, in particular, in Funke v. France, judgment of 25 February 1993 (Series A no. 256) and Saunders v. United Kingdom, judgment of 17 December 1996 (Reports of Judgments and Decisions 1996-VI), to which the applicants refer (Limburgse Vinyl Maatschappij and Others v Commission, paragraph 149 above, paragraphs 273 to 280).
      
      152    It is therefore in the light of the principles established in the case-law cited in paragraphs 149 and 150 above that the
         Court must examine the lawfulness of the 2002 Leniency Notice, with regard to the nemo tenetur principle.
      
      153    It must be observed in this connection that cooperation under the 2002 Leniency Notice 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 2002 Leniency Notice (see, to that effect, ThyssenKrupp v Commission, paragraph 150 above, paragraph 52, and the Opinion of Advocate-General Léger in that case at ECR I‑6777, point 140).
      
      154    The argument that, by cooperating, an undertaking deprives itself of the opportunity of contesting the facts, even if untrue,
         put forward by other undertakings is based on a misreading of the 2002 Leniency Notice
      
      155    First, contrary to the applicants’ submission, neither point 11 of the notice, which requires that the undertaking in question
         ‘cooperates fully, on a continuous basis and expeditiously throughout the Commission’s administrative procedure’, nor point
         23, which states that the Commission ‘may ... take into account the extent and continuity of any cooperation provided by the
         undertaking following the date of its submission’ requires the undertaking in question to abstain from contesting or correcting
         untrue facts put forward by another undertaking. Moreover, the applicants’ assertion is based upon the mistaken premiss that
         statements which are made unilaterally by a single undertaking that has participated in a cartel and are uncorroborated by
         evidence are sufficient to establish an infringement.
      
      156    Second, unlike the 1996 Leniency Notice, the 2002 Leniency Notice does not provide for any reduction in the amount of a fine
         on the ground of not contesting the facts. The 2002 Leniency Notice cannot therefore be regarded as ‘obliging’ undertakings
         wishing to benefit from its application not to contest the facts put forward by other undertakings.
      
      157    In any event, the allegation that an undertaking is under an obligation not to dispute facts of which it is not the author
         is based on the purely theoretical hypothesis of an undertaking’s accusing itself of an infringement which it has not committed
         in the hope of receiving a reduction in the fine which it fears will nevertheless be imposed on it. Such an assumption cannot
         serve as a basis for an argument alleging breach of the nemo tenetur principle (see, to that effect, Case C‑298/98 P Finnboard [Metsä-Serla Sales Oy] v Commission [2000] ECR I‑10157, paragraph 58).
      
      158    It follows that the first complaint put forward in the context of the objection that the 2002 Leniency Notice is unlawful
         must be dismissed.
      
       The second complaint, alleging breach of the principle in dubio pro reo 
      159    The applicants argue that, in accordance with the principle in dubio pro reo, or the principle of the presumption of innocence, the burden of proving the unlawful conduct and the undertaking’s liability
         therefor rests upon the Commission. The 2002 Leniency Notice breaches the principle of the presumption of innocence in that
         it results, in practice, in the undertakings themselves furnishing evidence of their own infringement and of their own liability
         therefor, as well as evidence of the infringements and liability of other undertakings.
      
      160    It must be recalled that the principle of the presumption of innocence, as it results in particular from Article 6(2) of the
         ECHR, is one of the fundamental rights which, according to the case-law of the Court of Justice, reaffirmed by Article 6(2)
         EU and by Article 48 of the Charter, are recognised in the legal order of the European Union. Given the nature of the infringements
         in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence
         applies in particular to procedures relating to infringements of the competition rules applicable to undertakings that may
         result in the imposition of fines or periodic penalty payments (Degussa v Commission, paragraph 95 above, paragraph 115 and the case-law cited).
      
      161    Contrary to the applicant’s submission, the 2002 Leniency Notice does not breach the principle of the presumption of innocence.
      
      162    First, as was pointed out in paragraph 153 above, cooperation under the 2002 Leniency Notice is a matter entirely within the
         will of the undertaking concerned. It in no way implies any obligation upon an undertaking to provide evidence of the infringement
         in which it is alleged to have participated.
      
      163    Second, the 2002 Leniency Notice 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. Nevertheless, in proving the existence of an infringement, the Commission may rely upon any
         relevant information available to it. Thus, it may, without breaching the principle of the presumption of innocence, rely
         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 2002 Leniency Notice. 
      
      164    It follows from all the foregoing that the Court cannot uphold the complaint alleging that the 2002 Leniency Notice is unlawful
         in that it breaches the principle of the presumption of innocence.
      
       The third complaint, alleging breach of the principle of proportionality
      165    The applicants maintain that the 2002 Leniency Notice is neither necessary nor appropriate and therefore breaches the principle
         of proportionality. It is not necessary given that Regulation No 1/2003, and in particular Articles 18 to 21 thereof, affords
         the Commission sufficient means to investigate cartels. Nor is it appropriate or proportionate. Indeed, whilst the 2002 Leniency
         Notice makes it easier to establish the existence of cartels, which is in the interests of the Community, it rewards undertakings
         which have infringed Article 81 EC and places honest undertakings at a disadvantage, since it prevents undertakings which
         have participated in a cartel and have taken advantage of the 2002 Leniency Notice from receiving a fine. The 2002 Leniency
         Notice also undermines the interest of the Community in punishing infringements of competition law.
      
      166    It should be recalled that, according to settled case-law, the principle of proportionality, which is one of the general principles
         of EU law, requires that acts adopted by the institutions of the European Union do not exceed the limits of what is appropriate
         and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice
         between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be
         disproportionate to the aims pursued (Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81 and the case-law cited).
      
      167    It must also be borne in mind that, in the context of Regulation No 1/2003, the Commission has a broad discretion when setting
         fines, so that it may direct the conduct of undertakings towards compliance with the competition rules (see, to that effect,
         Groupe Danone v Commission, paragraph 57 above, paragraph 134 and the case-law cited). Given that the 2002 Leniency Notice forms part of the Commission’s
         policy on the setting of fines in respect of horizontal cartels infringing Article 81 EC, account must be taken of that broad
         discretion when examining the applicants’ complaint alleging breach of the principle of proportionality.
      
      168    The Court cannot but hold that the 2002 Leniency 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.
      
      169    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, it must be observed that secret
         cartels are often difficult to detect and investigate without the cooperation of the undertakings concerned. Whilst a cartel
         member will always be at risk of the cartel’s being discovered at some point, in particular, following the submission of a
         complaint to the Commission or to a national authority, 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 2002 Leniency Notice seeks to prevent such cartel members from
         deciding not to inform the Commission of the existence of a cartel.
      
      170    The Court must reject the argument that the 2002 Leniency Notice enables certain undertakings which have participated in cartels
         prohibited by Article 81 EC to be rewarded. As the Commission emphasises in point 4 of the 2002 Leniency Notice, ‘the interests
         of consumers and citizens in ensuring that secret cartels are detected and punished outweigh the interest in fining those
         undertakings that enable the Commission to detect and prohibit such practices’.
      
      171    Thus, the 2002 Leniency Notice does not clearly exceed the limits of what is appropriate and necessary in order to attain
         the legitimate objective which it pursues.
      
      172    It follows from all the foregoing that the complaint that the 2002 Leniency Notice is unlawful in that it breaches the principle
         of proportionality is unfounded.
      
       The fourth complaint, alleging an abuse of discretion
      173    According to the applicants, by adopting the 2002 Leniency Notice the Commission went beyond the scope of the discretion conferred
         upon it by Article 23(2) and (3) of Regulation No 1/2003. Article 23(3) requires the Commission, when fixing the amount of
         a fine, to have regard to the gravity and duration of the infringement, which it is impossible to do where there is ‘total
         remission of the penalty’. Section A of the 2002 Leniency Notice is therefore unlawful, entailing the illegality of the notice
         in its entirety.
      
      174    It must be borne in mind that, under Article 23(2)(a) of Regulation No 1/2003, ‘the Commission may by decision impose fines
         on undertakings ... where, either intentionally or negligently[,] ... they infringe Article 81 [EC] or Article 82 [EC]’. It
         is thus clear from the very wording of the provision that the Commission has the right, but no obligation, to impose a fine
         upon an undertaking that has infringed Article 81 EC.
      
      175    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, to that effect, Finnboard [Metsä-Serla Sales Oy] v Commission, paragraph 157 above, paragraph 56 and the case-law cited).
      
      176    The Commission did not, therefore, exceed the powers conferred on it by Regulation No 1/2003 by adopting rules of practice
         in the 2002 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 (see, to that effect, Finnboard [Metsä-Serla Sales Oy] v Commission, paragraph 157 above, paragraph 57).
      
      177    It follows that this last complaint is also unfounded.
      
      178    It follows from all the foregoing that the objection of illegality in relation to the 2002 Leniency Notice must be dismissed
         in its entirety.
      
       The plea alleging the confiscatory nature of the contested decision, in breach of international law
       Admissibility
      179    The Commission emphasises that the plea alleging the confiscatory nature of the contested decision, in breach of international
         law, does not satisfy the requirements of Article 44(1)(c) of the Rules of Procedure and is thus inadmissible. From a factual
         point of view, the application lacks any statement of how the fines imposed had dramatic repercussions for the economic survival
         of Schindler Holding’s subsidiaries. From a legal point of view, the applicants have failed to identify the treaties which
         apply or the rules which have been infringed.
      
      180    It should be noted that, under the first paragraph of Article 21 of the Statute of the Court of Justice, which applies to
         the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute, and under Article 44(1)(c)
         of the Rules of Procedure, all applications must, inter alia, contain a summary of the pleas in law on which the application
         is based. Those statements must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court
         to rule on the application, if necessary, without any further supporting information. In order to guarantee legal certainty
         and sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual
         particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (Case
         T‑195/95 Guérin automobiles v Commission [1997] ECR II‑679, paragraph 20, Case T‑154/01 Distilleria Palma v Commission [2004] ECR II‑1493, paragraph 58, and judgment of 12 March 2008 in Case T‑332/03 European Service Network v Commission, not published in the ECR, paragraph 229).
      
      181    In the present case, the applicants have stated in their application in sufficiently clear and precise terms that the imposition
         of the fines upon Schindler by the contested decision is confiscatory and breaches international law.
      
      182    The Commission cannot take issue with the application’s failure to identify any applicable treaties. Indeed, in their application,
         the applicants do not allege the infringement of any bilateral or multilateral treaty on the protection of investments. They
         simply mention that such agreements exist in order to show that there is a rule of customary international law which has been
         infringed in the present case. The applicants explain in their application that, even if no general convention between the
         Community and Switzerland exists for the protection of investments, the prohibition on expropriation without compensation
         for foreign investors which is entrenched in customary international law cannot seriously be called into question. Contrary
         to the Commission’s submission, the rule that has been infringed, namely a rule of customary international law, is thus clearly
         indicated in the application.
      
      183    The applicants explain, moreover, that the confiscatory nature of the fines imposed is explained by the significant depreciation
         of Schindler’s investments in Belgium, Luxembourg and the Netherlands. According to the applicants, the severity of the attack
         upon Schindler Holding’s assets is clear from a comparison of the amount of the fines with the own assets, annual turnover
         and end-of-year profits figures for Schindler Belgium, Schindler Luxembourg and Schindler Netherlands.
      
      184    It follows from all the foregoing that the present plea fulfils the requirements mentioned in paragraph 180 above and is therefore
         admissible.
      
       Substance
      185    The applicants point out that the principle of the protection of foreign investors is entrenched in numerous bilateral and
         multilateral agreements relating to the protection of investments. Under those conventions, the cross-border holding of shares
         in an undertaking established in another Member State falls within the concept of investment and benefits from protection
         which, first, permits expropriation only under very strict conditions and, second, requires foreign investors to be treated
         fairly and equitably in the State in which they make their investment. Such protection is also recognised in customary international
         law.
      
      186    The fines imposed upon Schindler Holding, a company established under Swiss law, equate, in economic effect, to the expropriation,
         contrary to international law, of Schindler Holding’s investments in Belgium, Luxembourg and the Netherlands. Whilst an order
         to pay a fine does not constitute expropriation in form, it nevertheless constitutes expropriation in fact, in that Schindler
         Holding’s investments in Belgium, Luxembourg and the Netherlands have suffered significant depreciation. The severity of the
         attack upon Schindler Holding’s assets is clear first and foremost from a comparison of the amount of the fines with the own
         assets, annual turnover and end-of-year profits figures for Schindler Belgium, Schindler Luxembourg and Schindler Netherlands.
      
      187    It must be borne in mind that the Community must respect international law in the exercise of its powers (Joined Cases C‑402/05 P
         and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 291 and the case-law cited).
      
      188    The right to property is not only protected by international law but is also one of the general principles of EU law (Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 187 above, paragraph 355 and the case-law cited). However, since 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, (Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 187 above, paragraph 308), the Court must examine, in the context of the present plea, whether the fines imposed
         on Schindler Holding undermine the fundamental right to respect for property.
      
      189    It must be borne in mind in this connection that 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 (Case 265/87 Schräder HS Kraftfutter [1989] ECR 2237, paragraph 15, Germany v Council, paragraph 144 above, paragraph 78, and Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 187 above, paragraph 355).
      
      190    Article 3(1)(g) EC provides that in order to achieve the aims of the Community, its activities are to include ‘a system ensuring
         that competition in the internal market is not distorted’. It follows that the application of Articles 81 EC and 82 EC constitutes
         one of the aspects of public interest in the Community. Consequently, pursuant to those articles, restrictions may be applied
         on the exercise of the right to property, provided that they are not disproportionate and do not impair the substance of that
         right (Case T‑65/98 Van den Bergh Foods v Commission [2003] ECR II‑4653, paragraph 170).
      
      191    The Court must therefore examine whether the fines imposed on Schindler Holding constitute a disproportionate and intolerable
         interference, impairing the very substance of the fundamental right to respect for property.
      
      192    First, it must be observed that the contested decision does not affect Schindler’s ownership structure.
      
      193    Second, whilst the payment of fines will certainly affect the asset value of the debtor company, it cannot be considered that,
         in the present case, the fines imposed on Schindler Holding and its subsidiaries have totally depleted the value of those
         companies, Indeed, it is clear from the file that the fines imposed upon the Schindler group by the contested decision, taken
         together, remain below the limit of 10% of Schindler Holding’s consolidated turnover in the financial year preceding the date
         of the contested decision. The 10% ceiling laid down in Article 23(2) of Regulation No 1/2003 is intended, inter alia, to
         protect undertakings against excessive fines which could destroy them commercially (judgment of 15 June 2003 in Joined Cases
         T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 389).
      
      194    Third, in so far as the applicants take issue with the imposition of an excessive fine on the subsidiaries in the four countries
         in question, the Court would observe that, in the contested decision, in respect of each infringement, Schindler Holding was
         held jointly and severally liable with the relevant subsidiary for payment of the fine (see also paragraphs 63 to 91 above).
         As the Commission emphasises, determining what contributions should be made by the various companies within a single group
         that are held jointly and severally liable for the payment of the same fine is a matter for those companies. The contested
         decision therefore does not necessarily affect the value of the investments which Schindler Holding has in its subsidiaries.
      
      195    Fourth, in so far as the applicants complain that the fines imposed for the infringements are excessive when compared to the
         turnover and annual profit figures of the subsidiaries in question, that line of argument is confused with the plea alleging
         the illegality of the contested decision on the ground that it held Schindler Holding jointly and severally liable. Indeed,
         it would only be if the national subsidiaries did not constitute, together with Schindler Holding, an undertaking in the sense
         of an economic entity responsible for the infringements penalised, that the fines imposed in the present case would be capable
         of undermining the right to property. Any such fines would, in any event, be unlawful in that they would infringe Article 23(2)
         of Regulation No 1/2003. However, it is clear from paragraphs 63 to 91 above that the Commission was entitled to impute the
         infringements of the national subsidiaries in question to Schindler Holding.
      
      196    It follows that the present plea must be rejected.
      
       The plea alleging breach of the 1998 Guidelines and of the duty to state reasons as regards the determination of the starting
            amounts of the fines
       Preliminary observations
      197    As a preliminary point, it should be observed that it is settled case-law that the Commission enjoys a broad discretion as
         regards the method for calculating fines. That method, set out in the 1998 Guidelines, displays flexibility in a number of
         ways, enabling the Commission to exercise its discretion in accordance with Article 23(2) of Regulation No 1/2003 (see, to
         that effect, Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I‑7191, paragraph 112 and the case-law cited).
      
      198    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 (Archer Daniels Midland v Commission, paragraph 106 above, paragraph 72, Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 54).
      
      199    As stated in paragraph 24 above, the Commission, in the present case, determined the amounts of the fines by applying the
         method laid down in the 1998 Guidelines.
      
      200    Although the 1998 Guidelines may not be regarded as rules of law which the administration is always bound to observe, they
         nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons
         that are compatible with the principle of equal treatment (see Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 209 and the case-law cited, and Case T‑73/04 Carbone‑Lorraine v Commission [2008] ECR II‑2661, paragraph 70).
      
      201    As stated in paragraph 135 above, 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 (see Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 211 and the case-law cited, and Carbon-Lorraine v Commission, paragraph 200 above, paragraph 71).
      
      202    Furthermore, the 1998 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 (Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraphs 211 and 213).
      
      203    Finally, it should be recalled that the 1998 Guidelines provide, in the first place, for the assessment of the gravity of
         the infringement as such, on the basis of which a general starting amount can be set (Section 1.A, second paragraph). In the
         second place, the gravity is assessed in relation to the nature of the infringements committed, the characteristics of the
         undertaking involved, in particular its size and its position on the relevant market, which can give rise to the weighting
         of the starting amount, to grouping the undertakings into categories and to setting a specific starting amount (Section 1.A,
         third to seventh paragraphs).
      
       The contested decision
      204    In the first place, in the section of the contested decision dealing with the gravity of the infringements (Section 13.6.1),
         the Commission examines the four infringements identified in Article 1 of the contested decision in parallel ‘since [they]
         … present common features’ (recital 657 of the contested decision). That section is divided into three subsections, the first
         headed ‘Nature of the infringements’ (Subsection 13.6.1.1), the second headed ‘The size of the relevant geographic market’
         (Subsection 13.6.1.2) and the third headed ‘Conclusion on the gravity of the infringement’ (Subsection 13.6.1.3).
      
      205    In the subsection headed ‘Nature of the infringements’, the Commission explains in recitals 658 and 659 of the contested decision:
         
      
      ‘(658)      The infringements that are the subject of this Decision consisted primarily of secret collusion between cartel participants
         to share markets or freeze market shares by allocating projects for the sale and installation of new elevators and/or escalators,
         as well as not to compete with each other for [the] maintenance and modernisation of elevators and escalators (except in Germany
         where the maintenance and modernisation business [was] not [the] subject of discussions between the cartel members). Such
         horizontal restrictions are, by their very nature, among the most serious violations of Article 81 [EC]. The infringements
         in this case artificially nullified and denied customers the advantages they could expect to obtain from a process of competitive
         bidding. It is also noteworthy that some of the rigged projects were public tenders financed by taxes and carried out specifically
         with a view to receiving competitive and cost-effective bids.
      
      (659)  For assessing the gravity of an infringement factors relating to its object are generally more significant than those relating
         to its effects, in particular where agreements, as in this case, relate to infringements which are very serious, such as price
         fixing and market sharing. The effects of an agreement are generally of little probative value for the purpose of assessing
         the gravity of the infringement.’
      
      206    The Commission states that it ‘did not attempt to demonstrate the precise effects of the infringement since it [was] impossible
         to determine with sufficient certainty the relevant competitive parameters (price, commercial terms, quality, innovation,
         and others) in the absence of the infringements’ (recital 660 of the contested decision). Nevertheless, it considers that
         ‘[i]t is obvious that the infringements did have an actual impact’ and explains to that end that ‘[t]he fact that the various
         anti-competitive arrangements were implemented by the cartel participants in itself suggests an impact on the market, even
         if the actual effect is difficult to measure because it is, in particular, not known if and how many other projects were subject
         to bid-rigging, nor how many projects may have been subject to allocation between cartel members without there being a need
         for contacts between them’ (recital 660 of the contested decision). In the same recital, the Commission adds that ‘[t]he high
         aggregate market shares of the cartel participants make anti-competitive effects appear likely and the relative stability
         of these market shares throughout the duration of the infringements would confirm these effects’.
      
      207    In recitals 661 to 669 of the contested decision, the Commission addresses the arguments raised by the applicants during the
         administrative procedure which sought to show that the infringements had only a limited effect on the market.
      
      208    In the subsection headed ‘The size of the relevant geographic market’, the Commission maintains, in recital 670 of the contested
         decision, that ‘[t]he cartels that are the subject of [the contested] decision covered the whole territories of Belgium, Germany,
         Luxembourg [and] the Netherlands, respectively’ and that ‘[i]t is clear from case-law that a national geographic market extending
         to the whole of a Member State in itself already represents a substantial part of the common market’.
      
      209    In the subsection headed ‘Conclusion on the gravity of the infringement’, the Commission states, in recital 671 of the contested
         decision, that ‘[t]aking into account the nature of the infringements and the fact that each of them covered the whole territory
         of a Member State (Belgium, Germany, Luxembourg or the Netherlands)’, each addressee has committed one or several very serious
         infringements of Article 81 EC. It concludes that ‘these factors are such that the infringements must be regarded as very
         serious even if their actual impact cannot be measured’.
      
      210    In the second place, in the section of the contested decision headed ‘Differential treatment’ (Section 13.6.2), the Commission
         sets a starting amount of the fine for each undertaking to have participated in the various cartels (see paragraphs 27 to
         30 above), which takes account, according to recital 672 of the contested decision, of ‘the effective economic capacity of
         the offenders to cause significant damage to competition’. The Commission explains in recital 673 of the contested decision
         that, ‘[t]o that end, the undertakings can be sub-divided into several categories according to their turnover in elevators
         and/or escalators, including, where applicable, maintenance and modernisation services’.
      
       The classification of the infringements as ‘very serious’
      211    First of all, the applicants argue that the Commission’s assessment of the gravity of the infringements is misconceived. According
         to the applicants, the Commission adopted an aggregating approach in classifying the infringements as ‘very serious’ without
         taking into account either the fact that the agreements in the Member States concerned were structured very differently or
         the actual impact of the infringements, which, they allege, was limited.
      
      212    To that end, the applicants refer to price reductions on the German and Luxembourg markets, the fluctuation of market shares
         on the German, Belgian and Luxembourg markets, the fact that the agreements on the German market were ineffective and were
         not complied with, and the fact that the cartels in Luxembourg and the Netherlands concerned only certain projects. The applicants
         also argue that in Germany Schindler’s involvement was limited to escalators. Lastly, the cartel in Luxembourg ought, in accordance
         with the Commission’s decision-making practice, to have been classified as ‘serious’, given that it concerned only a small
         Member State. 
      
      213    The Court would recall that, as regards the assessment of the gravity of the infringement, the 1998 Guidelines state, in the
         first and second paragraphs of Section 1.A, that:
      
      ‘In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where
         this can be measured, and the size of the relevant geographic market.
      
      Infringements will thus be put into one of three categories: minor infringements, serious infringements and very serious infringements.’
      214    Under the first paragraph of Section 1.A of the 1998 Guidelines, the Commission must therefore, 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 (see, to that effect, Prym and Prym Consumer v Commission, paragraph 198 above, paragraph 74, Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 118 above, paragraph 143, and Degussa v Commission, paragraph 95 above, paragraph 216).
      
      215    It is settled case‑law that, in order to assess the actual impact of an infringement on the market, the Commission must take
         as a reference the competition that would normally have existed had there been no infringement (Carbone‑Lorraine v Commission, paragraph 200 above, paragraph 83 and the case‑law cited).
      
      216    In this case, the Commission states, in recital 660 of the contested decision, that ‘[it] did not attempt to demonstrate the
         precise effects of the infringement since it [was] impossible to determine with sufficient certainty the relevant competitive
         parameters (price, commercial terms, quality, innovation, and others) in the absence of the infringements’. Even though the
         Commission concludes, in recital 660 of the contested decision, that it is obvious that the cartels did have an actual impact,
         since they were implemented, which in itself suggests an impact on the market, and even though the Commission rejects, in
         recitals 661 to 669, the arguments of the undertakings concerned intended to demonstrate the limited effects of the cartels,
         it must be found that, in the contested decision, the assessment of the gravity of the infringements did not take account
         of their possible impact on the market.
      
      217    Hence, in recital 671 of the contested decision, the Commission bases its conclusion on the assessment of the gravity of the
         infringements solely on the nature of those infringements and their geographic scope. The Commission concludes in that recital
         that ‘[t]aking into account the nature of the infringements and the fact that each of them covered the whole territory of
         a Member State (Belgium, Germany, Luxembourg or the Netherlands) … [it must be held] that each addressee has committed one
         or several very serious infringements of Article 81 [EC]’.
      
      218    It must be observed that the applicants have not shown that the actual impact of the agreements could have been measured in
         this case. They merely emphasise, in their reply, that there are various scientific methods for calculating the economic impact
         of a cartel, and simply assert that the effects were necessarily minimal. In that regard, the circumstances relied on by the
         applicants, concerning price reductions, the fluctuation of market shares and the fact that the agreements were not complied
         with and were ineffectual (see paragraph 212 above), even if they were proved, do not lead to the conclusion that the effects
         of the agreements could be measured on the markets concerned, particularly since the applicants do not challenge the Commission’s
         assertion that it was impossible, in this instance, to determine with sufficient certainty the relevant competitive parameters
         in the absence of the infringements.
      
      219    In those circumstances, the applicants have not established that in this instance the Commission was obliged, by virtue of
         the 1998 Guidelines and the case-law cited in paragraph 214 above, to take account of the actual impact of the infringements
         for the purpose of assessing their gravity.
      
      220    Furthermore, even supposing that the actual impact of the infringements could be measured and that the arguments of the applicants
         set out in paragraphs 211 and 212 above were well-founded in that they establish that the cartel had a limited impact on the
         markets in question, the fact remains that the classification of these infringements as ‘very serious’ none the less remains
         appropriate.
      
      221    First of all, it must be observed that, irrespective of any alleged differences in the structures of the cartels, by their
         very nature, the infringements found in the contested decision are among the most serious violations of Article 81 EC, in
         that their purpose was ‘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 (except in Germany where the maintenance and modernisation business
         [was] not [the] subject of discussions between the cartel members)’ (recital 658 of the contested decision). In that regard,
         the 1998 Guidelines explain that ‘very serious’ infringements consist generally in horizontal restrictions such as price cartels
         and market-sharing quotas, or other practices which jeopardise the proper functioning of the single market. Those infringements
         are also among the examples of agreements expressly declared to be incompatible with the common market in Article 81(1)(c) EC.
         Apart from the serious distortion of competition which they entail, such agreements, by obliging the parties to respect distinct
         markets, often delimited by national frontiers, cause the isolation of those markets, thereby thwarting the EC Treaty’s main
         objective of integrating the Community market. Thus, infringements of this type, especially where horizontal cartels are concerned,
         are classified by the case-law as ‘particularly serious’ or ‘obvious infringements’ (see, to that effect, Case T‑148/89 Tréfilunion v Commission [1995] ECR II‑1063, paragraph 109, Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 136, and Case T‑241/01 Scandinavian Airlines System v Commission [2005] ECR II‑2917, paragraph 85).
      
      222    Second, it has consistently been held that the effect of an anti-competitive practice is not a conclusive criterion for assessing
         the gravity of an infringement. Factors relating to the intentional aspect may be more significant than those relating to
         the effects, particularly where they relate to infringements which are intrinsically serious, such as market sharing (Case
         C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 118, Prym and Prym Consumer v Commission, paragraph 198 above, paragraph 96, Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II‑3757, paragraph 199, and Degussa v Commission, paragraph 95 above, paragraph 251).
      
      223    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 1998 Guidelines that agreements or concerted practices
         which – as in the present case – 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 (Prym and Prym Consumer v Commission, paragraph 198 above, paragraph 75). That conclusion is corroborated by the fact that, whilst the description of serious infringements expressly mentions their impact on the market and their effects on extensive areas of the common market, that
         of very serious infringements, on the other hand, does not mention any requirement as to the actual market impact or the effects produced
         in a particular geographic area (see, to that effect, Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 83 above, paragraph 171 and the case-law cited). That being so, the Court must reject the applicants’ argument
         that the present case did not involve any market sharing, but ‘mainly quota agreements’, since the freezing of market shares
         necessarily implies prior sharing of the markets concerned.
      
      224    Accordingly, in view of their purpose, the infringements found in the contested decision were intrinsically very serious,
         even if it were to be established that the cartels did not cover the entirety of the market for the goods in question and
         did not produce all the effects hoped for.
      
      225    Moreover, since the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed
         in competition matters (see, to that effect, Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraphs 201 and 205, and Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 60, Carbone‑Lorraine v Commission, paragraph 200 above, paragraph 92), and, in any event, in view of the analysis in paragraphs 221 to 224 above, the argument
         by which the applicants allege, on the basis of the Commission’s decision-making practice, that the infringement in Luxembourg
         ought to have been classified as ‘serious’, given the relatively small size of that Member State, must be rejected. The Court
         would also point out in this connection that it was precisely the Commission’s consideration of ‘[t]he size of the Luxembourg
         market in relation to other Member States’ (recital 666 of the contested decision) that led it to set a general starting amount
         of the fine for this infringement representing half the minimum level of EUR 20 million normally envisaged by the Guidelines
         for this type of very serious infringement (see Section 1.A, second paragraph, third indent of the 1998 Guidelines).
      
      226    Lastly, even supposing that the Commission had deemed it fit to take into account the impact of the infringement on the market
         (a factor which it has the option of taking into account) and should as a consequence have provided, in the contested decision,
         specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition
         in the market (Prym and Prym Consumer v Commission, paragraph 198 above, paragraph 82), the Court finds that it has, in any event, fulfilled that obligation.
      
      227    Indeed, it is clear from the contested decision that, in so far as concerns the infringement in Belgium, the Commission held,
         inter alia, that the anti‑competitive agreements covered the entire elevators and escalators market, irrespective of project
         value, and that, having regard to the high aggregate market shares of the undertakings concerned (recital 50 of the contested
         decision), they were unlikely to face competitive constraints from smaller elevator and escalator companies such as might
         have prevented them from fixing supra-competitive prices having an impact on the market (recital 662 of the contested decision).
         It also noted that representatives of the four undertakings met regularly (recitals 153 and 160 of the contested decision),
         spoke regularly over the telephone about specific projects (recital 153 of the contested decision) and had stipulated a compensation
         mechanism to deal with differences between agreed and actual market shares (recitals 162 and 175 of the contested decision).
         Project lists were also created, enabling the undertakings in question continuously to check and ensure that everyone followed
         the arrangements and to make the necessary adjustments in the event of deviations from what had previously been agreed (recital
         166 of the contested decision). Particularly elaborate measures were adopted in order to keep the agreements secret (recital
         153 of the contested decision).
      
      228    So far as the German infringement is concerned, the Commission noted, inter alia, that the members of the cartel accounted
         for, by value, over 60% of elevator sales and close to 100% of escalator sales (recitals 51 and 232 of the contested decision)
         and that the objective of the cartel was to freeze the respective market shares of the undertakings concerned (recital 236
         et seq. of the contested decision). The Commission also drew attention to the fact that there were regular meetings (recitals
         217 and 218 of the contested decision) and to the measures taken by the participants to conceal their meetings (recitals 219
         to 221 of the contested decision).
      
      229    As regards the Luxembourg infringement, the Commission found that the undertakings concerned by the agreements had accounted
         for nearly 100% of combined sales of elevators and escalators in 2003, noting that the local subsidiaries of Kone, Otis, Schindler
         and ThyssenKrupp were the only suppliers established in Luxembourg which supplied escalators (recital 52 of the contested
         decision). It also drew attention to the fact that there were regular meetings (recital 302 of the contested decision), to
         the measures taken to conceal meetings and contacts (recitals 304 to 307 of the contested decision) and to the existence of
         an adjustment mechanism (recitals 317 and 336 of the contested decision).
      
      230    Finally, as regards the infringement in the Netherlands, the Commission noted the significant aggregated market shares of
         the members of the cartel (recital 53 of the contested decision). It also drew attention to the fact that the participants
         met frequently (recitals 383 and 397 to 401 of the contested decision), to the allocation process drawn up by the participants
         (recital 411 et seq. of the contested decision), to the measures taken to conceal contacts between the participants (recital
         391 of the contested decision) and to the existence of a de facto compensation mechanism (recital 434 of the contested decision).
      
      231    Thus, the Commission concluded, in recital 660 of the contested decision, that the fact that the various anti-competitive
         arrangements had been implemented in itself suggested that there was an impact on the market, even if the actual effect was
         difficult to measure because it was, in particular, not known if and how many other projects had been subject to bid-rigging,
         nor how many projects might have been subject to allocation between cartel members without there being a need for contacts
         between them. It added that the high aggregate market shares of the cartel participants made anti-competitive effects appear
         likely and that the relative stability of those market shares throughout the duration of the infringements would confirm those
         effects.
      
      232    It follows from all the foregoing that the applicants’ arguments summarised in paragraphs 211 and 212 above are not capable
         of affecting the legality of the classification of the infringements found in Article 1 of the contested decision as ‘very
         serious’. They must therefore be rejected.
      
      233    Second, the applicants submit that the Commission failed to have regard to the principle of the presumption of innocence by
         placing on them the burden of proving that the cartel had no impact.
      
      234    It must be observed that, in accordance with Section 1.A the 1998 Guidelines, it is for the Commission to prove the actual
         impact of a cartel, where this can be measured. Nevertheless, in this case, the Commission stated its view, in recital 660
         of the contested decision, that the actual impact of the cartel could not be measured, and the applicants have not successfully
         called that finding into question (see paragraphs 211 to 232 above).
      
      235    That being so, the fact that the actual impact of the infringements was not taken into account cannot be the source of any
         breach of the principle of the presumption of innocence, since, in this case, the gravity of the infringements could, in accordance
         with Section 1.A the 1998 Guidelines, be determined without their impact having to be established.
      
      236    The argument alleging breach of the principle of the presumption of innocence cannot therefore be upheld.
      
      237    Therefore, the whole of the present complaint regarding the classification of the infringements as ‘very serious’ must be
         dismissed.
      
       The alleged unlawfulness of the starting amounts of the fines
      238    The applicants argue that the Commission has infringed Section 1.A of the 1998 Guidelines in that it failed to take account,
         in the contested decision, of the size of the market controlled by the undertakings concerned and the subject of the agreements
         when setting the basic amounts of the fines. The applicants also argue that the basic amounts of the fines were disproportionate,
         bearing no coherent relationship to the size of the market concerned or the turnover of Schindler’s subsidiaries. In the reply,
         the applicants also put forward the view that, irrespective of the classification of the infringements as ‘very serious’,
         the arguments set out in paragraphs 211 and 212 above justified a reduction in the starting amounts of the fines. They also
         submit that the Commission did not distinguish sufficiently between the undertakings concerned. When questioned at the hearing
         about the precise scope of their plea, the applicants stated that, contrary to what they had indicated in their pleadings,
         their complaint related not to the basic amounts of the fines, but to the starting amounts of the fines.
      
      239    In particular, in the case of the infringement in Luxembourg, the applicants submit that the EUR 10 million starting amount
         of the fine is disproportionate, representing almost one third of the Luxembourg market concerned by the cartel. They add
         that that amount, [confidential] (1). As regards the cartel in Germany, the specific starting amount corresponds to [confidential]. Lastly, in so far as concerns the Netherlands cartel, the applicants point out that the specific starting amount of the
         fine is excessive, in that it represents [confidential], even though Schindler has only a small share of the market there.
      
      240    As was pointed out in paragraph 203 above, the 1998 Guidelines provide, first, for the assessment of the gravity of the infringement
         as such, on the basis of which a general starting amount can be set (Section 1.A, second paragraph). Second, the gravity is
         assessed in relation to the characteristics of the undertaking involved, in particular its size and its position on the relevant
         market, which can give rise to the weighting of the starting amount, to grouping the undertakings into categories and to setting
         a specific starting amount (Section 1.A, third to seventh paragraphs) (Carbone‑Lorraine v Commission, paragraph 200 above, paragraph 73).
      
      241    It is necessary to observe in this connection, first of all, that the applicants’ allegations of infringement of the 1998
         Guidelines and of the principle of proportionality, in that they relate to the failure to take account of the size of the
         markets concerned by the agreements, and to the absence of any coherent relationship between the starting amounts of the fines
         and the size of those markets, concern the general starting amounts of the fines since they relate to the intrinsic gravity
         of the infringements. The same applies to the complaints relating to the structure of the agreements and their limited impact,
         which, although raised in order to dispute the classification of the infringements as ‘very serious’, would also, the applicants
         say, justify a reduction in the starting amounts of the fines. Next, the applicants’ allegations regarding the lack of proportion
         of the starting amounts of the fines, the lack of any proper relationship between those amounts and the turnover figures of
         Schindler’s subsidiaries, and inadequate differentiation between the undertakings concerned, relate to the determination of
         the specific starting amounts of the fines, in that they concern the grouping of the undertakings into categories. Lastly,
         the applicants put forward a plea alleging that insufficient reasoning was given in the contested decision for the Commission’s
         determination of the various starting amounts of the fines.
      
      –       The allegation of an insufficient statement of reasons
      242    The applicants maintained in their pleadings that insufficient reasons were given for the basic amounts of the fines determined
         in the contested decision. As was mentioned in paragraph 238 above, the applicants’ explanations at the hearing have made
         it clear that their complaint concerns the inadequacy of the reasons given for the starting amounts of the fines. The applicants
         had been unable to determine what principles and material factors had provided the basis for determining the starting amounts.
         Since those starting amounts provide the basis for subsequent calculations, the Commission’s meticulous care in calculating
         any increases or reductions in them would be utterly pointless if the starting amounts were fixed purely arbitrarily.
      
      243    It is settled case-law that the essential procedural requirement to state reasons is satisfied where the Commission indicates
         in its decision 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
         (Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 44, and Limburgse Vinyl Maatschappij and Others v Commission, paragraph 149 above, paragraphs 463 and 464; Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 131).
      
      244    The Commission began by explaining, in recitals 657 to 671 of the contested decision, that the starting amounts of the fines
         had been determined taking into account the nature of the infringements and the size of the relevant geographic markets. It
         can also be seen from recitals 672 to 685 of the contested decision that the Commission 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.
      
      245    The factors which enabled the Commission to measure the gravity of the established infringements were therefore sufficiently
         explained in the contested decision. In those circumstances, the complaint alleging breach of Article 253 EC must be rejected.
      
      –       The general starting amounts of the fines
      246    First of all, it is to be noted that the applicants do not dispute the legality of the method set out in Section 1.A of the
         1998 Guidelines for determining the general starting amount of the fines. That method entails a fixed-band approach, whereby
         the general starting amount of the fine, determined according to the gravity of the infringement, is calculated by reference
         to the nature and geographical extent of the infringement and by reference to the actual impact of the infringement on the
         market, where that can be measured (BASF v Commission, paragraph 243 above, paragraph 134, Case T‑116/04 Wieland-Werke v Commission [2009] ECR II‑1087, paragraph 62).
      
      247    Furthermore, the size of the relevant market is not as a rule a factor which must be taken into account, but just one among
         a number of other factors for evaluating the gravity of the infringement, since the Commission – as stated in the case-law
         moreover – is not obliged to define the market concerned or to assess its size where the infringement in question has an anti-competitive
         object (see, to that effect, Prym and Prym Consumer v Commission, paragraph 198 above, paragraphs 55 and 64). Thus, for the purpose of determining the general starting amount of the fine,
         the Commission may have regard to the value of the market on which the infringement has taken place but is not obliged to
         do so (see, to that effect, BASF v Commission, paragraph 243 above, paragraph 134, and Wieland-Werke v Commission, paragraph 246 above, paragraph 63). The 1998 Guidelines do not provide that fines are to be calculated according to the
         overall turnover of undertakings or their turnover in the market affected. However, nor do they preclude the Commission from
         taking either figure into account in determining the amount of the fine in order to ensure compliance with general principles
         of EU law and where circumstances demand it (Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 118 above, paragraph 187). 
      
      248    In light of that, the applicants’ arguments must be rejected in so far as they rely on the allegedly disproportionate nature
         of the general starting amounts of the fines set for the Luxembourg infringement. The turnover achieved in that Member State
         was taken into account for the purposes of grouping the undertakings into categories and thereby fixing the specific starting
         amounts for those undertakings (recitals 680 and 684 of the contested decision). In any event, as stated in paragraph 225
         above, it was precisely the Commission’s consideration of ‘[t]he size of the Luxembourg market in relation to other Member
         States’ (recital 666 of the contested decision) that led it to set a general starting amount for this infringement at half
         the minimum level of EUR 20 million normally envisaged by the Guidelines for this type of very serious infringement (see Section
         1.A, second paragraph, third indent, of the 1998 Guidelines).
      
      249    Second, the applicants submit that there is no coherence between the general starting amounts fixed for the various cartels.
         They maintain that the starting amount is disproportionate to the size of the market in Luxembourg. 
      
      250    Contrary to the Commission’s submission, that argument satisfies the requirements of Article 44(1)(c) of the Rules of Procedure.
         What the applicants are drawing attention to by this argument is that, assuming it is necessary to regard the various infringements
         as similar, the Commission ought, in the case of the Luxembourg infringement in particular, to have applied a starting amount
         that was similar, as a percentage of the size of the market, to the starting amounts decided upon for the other infringements.
      
      251    It must be borne in mind that, having regard to the fixed-band approach implicit in the method set out in Section 1.A of the
         1998 Guidelines, the Commission is not obliged, when it sets the general starting amount of the fine, to take into account
         the size of the market affected (see paragraphs 246 and 247 above).
      
      252    Even assuming that the Commission, when it finds in one and the same decision that a number of very serious infringements
         have been committed, were required to maintain a certain relationship between the general starting amounts and the sizes of
         the various markets affected, there is nothing in this case to show that the general starting amounts set for the Belgian,
         German, Luxembourg and Netherlands cartels lack coherence.
      
      253    Thus, the Commission set general starting amounts that were higher where the size of the market was larger, although it did
         not use a precise mathematical formula – and was not in any event required to do. For the largest market, Germany, valued
         at EUR 576 million, the general starting amount was set out EUR 70 million. For the two next largest markets, the Netherlands
         and Belgium, estimated at EUR 363 million and EUR 254 million respectively, the general starting amounts were set at EUR 55
         million and EUR 40 million respectively. Finally, for the very much smaller Luxembourg market, worth EUR 32 million, even
         though the 1998 Guidelines provide, in the case of very serious infringements, for an amount to be set on account of gravity
         ‘above [EUR] 20 million’, the Commission considered it appropriate to limit that sum to EUR 10 million.
      
      254    Third, the applicants put forward the argument that the fact that the cartels had minimal impact justified a lower starting
         amount. That argument must also be rejected. As was pointed out in paragraphs 213 to 219 above, 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, which was not so in the present case. Moreover, as was pointed out in paragraphs 220 to
         224 above, even supposing that the actual impact of the infringements could have been measured here, the fact remains that
         the classification of these infringements as ‘very serious’ none the less remains appropriate. The applicants have advanced
         no other arguments justifying, despite the classification of the infringements as ‘very serious’, a reduction in the general
         starting amounts of the fines imposed by the Commission.
      
      –       The specific starting amounts of the fines
      255    The Court recalls that, 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 (see, to that effect,
         Musique Diffusion française and Others v Commission, paragraph 54 above, paragraph 109, and Britannia Alloys & Chemicals v Commission, paragraph 225 above, paragraph 44).
      
      256    Thus the 1998 Guidelines provide 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 (Section 1.A, sixth paragraph). 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 (Section 1.A, fourth paragraph).
      
      257    The 1998 Guidelines also state that the principle of equal punishment for the same conduct may, if the circumstances so warrant,
         lead to different fines being imposed on the undertakings concerned without that differentiation being governed by arithmetical
         calculation (Section 1.A, seventh paragraph).
      
      258    It is evident from the case-law that the 1998 Guidelines do not provide that fines are to be calculated according to the turnover
         of the undertakings on the market concerned. However, nor do they preclude the Commission from taking such turnover figures
         into account in determining the amount of the fine in order to ensure compliance with general principles of EU law and where
         circumstances demand it (LR AF 1998 v Commission, paragraph 112 above, paragraph 283, Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 82, and Groupe Danone v Commission, paragraph 57 above, paragraph 157). The General Court has already held, moreover, that there is no need for a strictly proportional
         relationship between the size of each undertaking and the fine imposed on it (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00
         JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 534).
      
      259    In the present case, it is clear from recitals 672 to 685 of the contested decision that the Commission applied, for each
         infringement identified in Article 1 of the contested decision, ‘differential treatment to [the] undertakings in order to
         take account of the effective economic capacity of the offenders to cause significant damage to competition’ (recital 672
         of the contested decision). For each infringement, it placed the undertakings in categories for the purpose of setting the
         specific starting amounts of the fines, according to their turnover on each national market for the goods concerned (recitals
         673 to 685 of the contested decision). Except when it determined the specific starting amount for Schindler in respect of
         its participation in the German cartel, the Commission took as its basis, when determining the specific starting amounts of
         the other undertakings, for each infringement, the 2003 turnover, which in its view was the most recent full year in which
         those undertakings were active in the cartels concerned (recitals 674, 676, 680 and 684 of the contested decision).
      
      260    However, the applicants argue that the specific starting amounts of their fines for their part in the infringements in Germany,
         Luxembourg and the Netherlands were determined in a way that misapplied the 1998 Guidelines and was disproportionate. They
         also argue that there was insufficient differentiation between the undertakings concerned.
      
      261    First, as regards the infringements in Germany, Luxembourg and the Netherlands, the applicants allege breach of the 1998 Guidelines
         and of the principle of proportionality [confidential].
      
      262    However, as is clear from paragraph 244 above, first, the general starting amounts of the fines were determined taking into
         account the nature of the infringements and the size of the relevant geographic markets. Second, the Commission took into
         account the turnover achieved in the German market by each of the undertakings concerned solely in the context of applying
         differential treatment to the undertakings, so as to reflect their relative weight on the relevant market and their effective
         economic capacity to cause significant damage to competition (recital 672 of the contested decision), something which is quite
         consistent with the case-law cited in paragraphs 255 and 258 above. The comparison which the applicants make between the turnover
         figures which they claim to have achieved on the markets in question and the starting amounts of the fines cannot therefore
         be accepted.
      
      263    Thus, given that EU law in any event 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 (Archer Daniels Midland v Commission, paragraph 106 above, paragraph 75), the argument alleging the excessive nature of the specific starting amounts of the fines
         imposed on Schindler for the infringements in Germany, Luxembourg and the Netherlands must be rejected.
      
      264    Second, as regards the infringement in Luxembourg, the applicants draw attention to the fact that Schindler was placed in
         the same category as Otis, even though, with turnover in Luxembourg of between EUR 9 million and 13 million and a market share
         of between 40% and 50%, the latter company’s economic strength is considerably greater.
      
      265    In this connection, it must be borne in mind that, in order to ascertain whether the division of the members of a cartel into
         categories is in keeping with the principles of equal treatment and proportionality, the Court, 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 (see, to that effect, Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraphs 406 and 416, BASF v Commission, paragraph 243 above, paragraph 157, and Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 83 above, paragraph 184). Furthermore, as was pointed out in paragraph 257 above, the 1998 Guidelines 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 (seventh paragraph of Section 1.A). As the Court stated
         in paragraph 258 above, there is no need for a strictly proportional relationship between the size of each undertaking and
         the fine imposed on it.
      
      266    In the present case it must be observed that, as is clear from recital 680 of the contested decision, in 2003, the turnover
         figures for Schindler and Otis on the Luxembourg market were relatively similar and were in either case between three and
         four times higher than those of Kone and ThyssenKrupp on that market. The Commission did not, therefore, manifestly go beyond
         the bounds of its margin of assessment in placing Schindler and Otis in the first category and Kone and ThyssenKrupp in the
         second category. Indeed, that classification appears to be coherent and objectively justified.
      
      267    Third, as regards the infringement in the Netherlands, the applicants assert that their small market share in that Member
         State ‘was not obviously taken into account’. The starting amount represents [confidential], despite a market share of [confidential].
      
      268    It must be held that, given the considerable differences in turnover achieved by the cartel members in the Netherlands, the
         Commission did not manifestly go beyond the bounds of its margin of assessment in dividing them into four categories for the
         purpose of determining the specific starting amounts of the fines or by placing Schindler, the third largest operator on the
         Netherlands market for the goods in question, in the third category. 
      
      269    It is clear from all the foregoing that all the complaints concerning the determination of the specific starting amounts of
         the fines imposed upon the applicants must be rejected.
      
      270    The present plea must therefore be rejected in its entirety.
      
       The plea alleging infringement of the 1998 Guidelines, breach of the principle that the penalty must fit the offence, and
            breach of the duty to state reasons in connection with the taking into account of mitigating circumstances
      271    The applicants contend that the Commission infringed the 1998 Guidelines, the principle that the penalty must fit the offence
         and the principle of proportionality, and failed in its duty to state reasons by wrongly refusing to take into account as
         mitigating circumstances, first, the fact the infringement in Germany was voluntarily brought to an end as early as 2000 and,
         second, that Schindler made intensive efforts to prevent any infringement of Article 81 EC.
      
      272    First of all, as regard the early voluntary cessation of the infringement, the Commission noted in the contested decision
         that ‘Schindler left the German cartel in 2000’, but held that ‘[t]he fact that an undertaking voluntarily puts an end to
         the infringement before the Commission has opened its investigation is sufficiently taken into account in the calculation
         of the duration of the infringement period and does not constitute an attenuating circumstance’ (recital 742 of the contested
         decision). 
      
      273    The applicants point out that the 1998 Guidelines provide, in Section 3, for a reduction in the starting amount of a fine
         where there are specific attenuating circumstances such as, inter alia, termination of the infringement as soon as the Commission
         intervenes. That mitigating circumstance should, a fortiori, apply, according to the applicants, where the termination of the offending behaviour occurs before that intervention, as
         in the present case.
      
      274    That argument cannot be upheld. Indeed, the Court of Justice has recently confirmed, in this connection, that the benefit
         of a mitigating circumstance cannot be granted under the third indent of Section 3 of the 1998 Guidelines where the infringement
         has already come to an end before the date on which the Commission first intervenes (Prym and Prym Consumer v Commission, paragraph 198 above, paragraph 150). Logically, there can be a mitigating circumstance within the meaning of Section 3 of
         the 1998 Guidelines 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. (Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraphs 328 to 330, Carbone‑Lorraine v Commission, paragraph 200 above, paragraph 227).
      
      275    It must also be borne in mind that the grant of such a reduction in the basic amount of the fine is necessarily linked to
         the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which
         is party to an unlawful agreement (Case C‑511/06 P Archer Daniels Midland v Commission [2009] ECR I‑5843, paragraph 104). In that regard, the application of that provision of the Guidelines in favour of an undertaking
         will be particularly appropriate where the conduct in question is not manifestly anti-competitive. Conversely, its application
         will be less appropriate, as a general rule, where the conduct is clearly anti-competitive, on the assumption that it is proven
         (Case T‑44/00 Mannesmannröhren‑Werke v Commission [2004] ECR II‑2223, paragraph 281, Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 497, and Carbone-Lorraine v Commission, paragraph 200 above, paragraph 228). To recognise a mitigating circumstance in situations where an undertaking is party
         to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement could encourage undertakings
         to continue a secret agreement as long as possible, in the hope that their conduct will never be discovered, while knowing
         that, if it is discovered, they could, by then curtailing the infringement, expect their fine to be reduced. Such recognition
         would deprive the fine imposed of any deterrent effect and would undermine the effectiveness of Article 81(1) EC (Archer Daniels Midland v Commission, paragraph 105 and the case-law cited). In the present case, in the contested decision, even the immediate termination of
         the illegal behaviour by another undertaking, namely Kone, upon the Commission’s intervention was not regarded as a mitigating
         circumstance in view of the manifest and deliberate nature of the infringement of Article 81 EC (recital 744 of the contested
         decision).
      
      276    Thus, even if the 1998 Guidelines recognised the voluntary termination of the infringement prior to the Commission’s intervention
         as a mitigating circumstance, it would have been quite proper to treat the manifest and deliberate nature of the infringement,
         which is not disputed by the applicants, and the fact that, according to the file, Schindler left the cartel solely because
         of a disagreement with the other members over their refusal to allow it a larger share of the market, as further reason not
         to reduce the basic amount on this ground. Contrary to the applicants’ submission, therefore, there is, in any event, no reason
         to call into question the case-law cited in paragraph 274 above.
      
      277    Lastly, the applicants refer to the Commission’s practice in previous decisions, in accordance with which it would have treated
         the voluntary termination of an infringement prior to any intervention on its part as a mitigating circumstance.
      
      278    As was pointed out in paragraph 225 above, the previous Commission decisions referred to by the applicants are not relevant,
         since the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition
         matters.
      
      279    The first complaint raised in the context of the present plea must therefore be rejected.
      
      280    Second, the applicants maintain that the Commission did not take into account, or even consider, Schindler’s competition law
         compliance programme as a mitigating circumstance. That constitutes a failure to state reasons. The applicants also submit
         that compliance measures should have been taken into account in the calculation of the fines since, by adopting internal measures,
         the applicants were doing their utmost to avoid infringements, and also such measures would have had the secondary effect
         of making it more difficult to discover infringements internally, since employees would be at risk of sanctions. The applicants
         once again refer to certain earlier decisions of the Commission in which the existence of a competition law compliance programme
         was taken into consideration as a mitigating circumstance.
      
      281    As regards the alleged failure to state reasons, the Court would observe that recital 754 of the contested decision states
         that ‘[w]hile the Commission welcomes measures taken by undertakings to avoid cartel infringements in the future, such measures
         cannot change the reality of the infringements and the need to sanction them in this decision’, and that ‘[t]he mere fact
         that in certain of its previous decisions, the Commission took such measures into consideration as attenuating circumstances
         does not mean that it is obliged to act in the same manner in every case’. Even though recital 754 of the contested decision
         is a response to the argument raised by Otis and set out in recital 753, it also enables the applicants to ascertain the reasons
         for which Schindler’s compliance programme, like that of Otis, could not be regarded as a mitigating circumstance and enables
         the Court to exercise its power of review of the lawfulness of the fines imposed upon the companies within the Schindler group.
         The argument alleging a failure to state reasons must therefore be dismissed (see, to that effect, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63).
      
      282    As regards the merits of the Commission’s approach, it has already been held that the adoption of a compliance programme by
         the undertaking concerned does not oblige the Commission to grant a reduction in the fine on that account (BASF and UCB v Commission, paragraph 143 above, paragraph 52). 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, as in the present case, a clear
         infringement of Article 81 EC (Dansk Rørindustri and Others v Commission, paragraph 88 above, paragraph 373, Carbon-Lorraine v Commission, paragraph 200 above, paragraph 231). It follows that the applicants’ argument by which they allege that the Commission disregarded
         the need to determine the amounts of the fines individually by failing to grant Schindler any reduction in the fines on account
         of its compliance programme cannot be upheld.
      
      283    Lastly, the argument based upon the Commission’s practice in previous decisions must be dismissed for the reasons set out
         in paragraph 278 above.
      
      284    The second complaint raised in the context of the present plea therefore cannot be upheld either.
      
      285    Since the applicants’ complaints alleging that the penalty does not fit the offence and breach of the principle of proportionality
         rest entirely on the fact that not all the mitigating circumstances were taken into account, those complaints must, having
         regard to the findings in paragraphs 272 to 284 above, be rejected.
      
      286    Accordingly, this plea must be rejected in its entirety.
      
       The plea alleging breach of the 2002 Leniency Notice, the principle of equal treatment and the duty to state reasons for the
            grant of reductions in the fines
      287    The applicants recall that they made applications for immunity or for a reduction in the fines under the 2002 Leniency Notice,
         in connection with Belgium, Germany and Luxembourg. However, the Commission misapplied the provisions of that notice when
         assessing the quality and usefulness of their cooperation. The applicants also submit that the Commission infringed the principle
         of equal treatment in the assessment of the reduction in the fines applicable under that notice. The applicants also claim
         that the statement of reasons is defective.
      
       The 2002 Leniency Notice
      288    The Court observes that in the 2002 Leniency Notice the Commission defined the conditions under which undertakings which cooperate
         with it for the purpose of establishing there to have been a cartel may be exempted from fines, or may be granted reductions
         in the fine which would otherwise have been imposed upon them.
      
      289    First of all, the 2002 Leniency Notice provides, in Section A, at point 8:
      
      ‘The Commission will grant an undertaking immunity from any fine which would otherwise have been imposed if:
      (a)      the undertaking is the first to submit evidence which in the Commission’s view may enable it to adopt a decision to carry
         out an investigation in the sense of Article 14(3) of Regulation No 17 in connection with an alleged cartel affecting the
         Community; or
      
      (b)      the undertaking is the first to submit evidence which in the Commission's view may enable it to find an infringement of Article
         81 [EC] in connection with an alleged cartel affecting the Community’.
      
      290    The 2002 Leniency Notice goes on to provide, in Section B, at point 20, that ‘[u]ndertakings that do not meet the conditions
         under Section A above may be eligible to benefit from a reduction of any fine that would otherwise have been imposed’ and,
         at point 21, that ‘[i]n order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement
         which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate
         its involvement in the suspected infringement no later than the time at which it submits the evidence’.
      
      291    As regards the concept of added value, the following explanation is given at point 22 of the 2002 Leniency Notice:
      
      ‘The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its
         level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally
         consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence
         subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have
         a greater value than that with only indirect relevance.’
      
      292    The first paragraph of point 23(b) of the 2002 Leniency Notice provides for reductions in fines to be classified in three
         categories:
      
      ‘–       first undertaking to meet point 21: a reduction of 30-50%; 
      –      second undertaking to meet point 21: a reduction of 20-30%; 
      –      subsequent undertakings that meet point 21: a reduction of up to 20%.’
      293    The second paragraph of point 23(b) of the 2002 Leniency Notice provides:
      
      ‘In order to determine the level of reduction within each of these bands, the Commission will take into account the time at
         which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It
         may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of
         its submission.’
      
      294    Finally, the last paragraph of point 23(b) of the 2002 Leniency Notice provides:
      
      ‘[i]f an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing
         on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting
         any fine to be imposed on the undertaking which provided this evidence.’
      
       The Commission’s margin of assessment and review by the Courts of the Union
      295    The Court recalls that Article 23(2) of Regulation No 1/2003, which is the legal basis for imposing fines in the event of
         infringement of the EU competition rules, confers on the Commission a margin of assessment in setting fines (see, to that
         effect, Case T‑229/94 Deutsche Bahn v Commission [1997] ECR II‑1689, paragraph 127), which will depend, in particular, on its general policy in competition matters (Musique Diffusion française and Others v Commission, paragraph 54 above, paragraphs 105 and 109). It was against that background that, in order to ensure the transparency and
         objectivity of its fining decisions, the Commission adopted and published the Leniency Notice in 2002. The notice constitutes
         an instrument intended to define, while complying with higher-ranking law, the criteria which the Commission proposes to apply
         in the exercise of its discretion, which is thus subject to a self-imposed limitation (see, by analogy, Case T‑214/95 Vlaams Gewest v Commission [1998] ECR II‑717, paragraph 89), in so far as the Commission must comply with self-imposed guidelines (see, by analogy, Case
         T‑380/94 AIUFFASS and AKT v Commission [1996] ECR II‑2169, paragraph 57).
      
      296    The limitation which the Commission has imposed on its discretion by adopting the 2002 Leniency Notice is not, however, incompatible
         with the retention of a considerable margin of assessment (see, to that effect, Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 81; see, by analogy, Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 275 above, paragraph 224). 
      
      297    The 2002 Leniency Notice displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance
         with Article 23 of Regulation No 1/2003, as interpreted by the Court of Justice (see, by analogy, Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 275 above, paragraph 224).
      
      298    Thus, the Commission enjoys a broad margin of assessment when it is required to determine whether the evidence provided by
         an undertaking that has stated that it wishes to benefit from the 2002 Leniency Notice represents significant added value
         for the purposes of point 21 of the notice (see, to that effect, SGL Carbon v Commission, paragraph 296 above, paragraph 88). As regards point 8(a) and (b) of the notice, it is clear that that considerable margin
         of assessment results from the actual wording of that provision, which expressly refers to the provision of evidence which,
         ‘in the Commission’s view’ either enables it to adopt a decision to carry out an investigation or enables it to find an infringement.
         The assessment of the quality and usefulness of the cooperation provided by an undertaking involves complex assessments of
         fact (see, to that effect, SGL Carbon v Commission, paragraph 296 above, paragraph 81, and Carbone‑Lorraine v Commission, paragraph 200 above, paragraph 271).
      
      299    Similarly, the Commission, once it has found that the evidence represents significant added value within the meaning of point
         21 of the 2002 Leniency Notice, has a margin of assessment when it is required to determine the exact level of the reduction
         in the fine to be granted to the undertaking concerned. The first paragraph of point 23(b) of the 2002 Leniency Notice provides
         for fine-reduction bands for the various categories of undertakings concerned, whilst the second paragraph of point 23(b)
         sets the criteria to be taken into account by the Commission in order to determine the level of reduction within those bands.
      
      300    In view of the margin of assessment available to the Commission in evaluating the cooperation of an undertaking under the
         2002 Leniency Notice, it is only where it manifestly goes beyond the bounds of that margin that it may be criticised by the
         General Court (see, to that effect, SGL Carbon v Commission, paragraph 296 above, paragraphs 81, 88 and 89).
      
       Schindler’s cooperation in establishing the infringement in Belgium
      301    Schindler, which was the fourth undertaking to make an application under the 2002 Leniency Notice in respect of its participation
         in the infringement in Belgium (recital 775 of the contested decision), was not granted any reduction in its fine for that
         infringement (recital 776 of the contested decision). In recital 776 to the contested decision the Commission gives the following
         explanation:
      
      ‘776      Although Schindler submitted some contemporaneous evidence, in the form of cartel lists from 2000 to 2003, this evidence did
         not strengthen the Commission’s case, as it already had cartel lists from that same period. Schindler submitted its leniency
         application on 21 January 2005, that is, one year after the first inspection had taken place in Belgium, at a time when the
         Commission had already conducted two rounds of inspections in Belgium and had received three corroborating leniency applications.
         Moreover, the nature of the very limited information provided by Schindler (mostly cartel lists for 2000-2003) did not to
         any significant extent strengthen the Commission’s ability to prove the facts in question. Consequently, the requirements
         of point 21 of the Leniency Notice are not satisfied. Subsequent to its leniency application, Schindler has continued to cooperate
         with the Commission; however, without providing any significant added value.’
      
      302    First of all, the applicants claim that, in the contested decision, the Commission failed to have regard to the fact that
         the project lists which Schindler sent to it during the administrative procedure did in fact offer added value within the
         meaning of the 2002 Leniency Notice. First, those lists did not contain the same dates as the lists communicated by Kone and
         Otis. Second, Schindler’s lists mentioned numerous projects that did not appear on the lists communicated by Kone and Otis.
         Third, the Commission expressly referred in recital 164 (footnote 176) of the contested decision, to the project lists communicated
         by Kone, Otis and Schindler. Fourth, the Commission drew conclusions from its comparison of the project lists sent to it by
         the various undertakings, which demonstrates that all the project lists sent to it were important pieces of evidence in establishing
         the infringement and that it was purely thanks to the project lists of Kone, Otis and Schindler that the Commission was able
         to prove the existence of the cartel. In accordance with the first paragraph of point 23(b) of the 2002 Leniency Notice, therefore,
         Schindler was entitled, as the fourth undertaking to cooperate, to a reduction in its fine of up to 20%.
      
      303    It is therefore appropriate to examine, having regard to the case-law mentioned in paragraph 300 above, whether the Commission
         manifestly went beyond the bounds of its margin of assessment in finding that the evidence provided by Schindler did not represent
         significant added value by comparison with the evidence already in its possession at the time Schindler made its application
         under the 2002 Leniency Notice.
      
      304    In this connection, it must be pointed out first of all that the applicants, which do not take issue with the grant to Kone
         of immunity from fines, do not dispute the finding in recital 761 of the contested decision that ‘the information provided
         by Kone already enabled the Commission to find an infringement in Belgium’. The Commission had therefore already received
         sufficient evidence to reach its finding of an infringement in Belgium by the time Schindler made its application under the
         2002 Leniency Notice.
      
      305    Next, it must be observed that, in order to demonstrate the significant added value of Schindler’s cooperation, the applicants
         merely refer to the project lists from 2000 to 2003 which Schindler sent to the Commission in the context of its application
         under the notice.
      
      306    However, even though the lists sent by Schindler bore different dates from those provided by Kone and Otis, and even though
         they also referred to a number of projects not included in the lists sent by Kone and Otis, they cannot be regarded as having
         significantly strengthened the Commission’s ability to establish the infringement in Belgium.
      
      307    First of all, it must be emphasised that, in the contested decision, the Commission established that the cartel relating to
         new elevators and escalators in Belgium had been put into effect not only by reference to the project lists communicated by
         Kone, Otis and Schindler, but also on the basis of observations made by the cartel members in Belgium in the context of their
         applications under the 2002 Leniency Notice and the replies furnished by the undertakings to the Commission’s requests for
         information (see the footnotes to recitals 163 to 168 of the contested decision). The project lists are therefore merely one
         of several pieces of evidence used to establish the cartel’s implementation in Belgium.
      
      308    Second, it is not in dispute that, by the time Schindler communicated project lists for 2000 to 2003 to the Commission, the
         institution already had in its possession project lists for the same period, sent to it earlier by Kone and Otis (recitals
         164 and 776 of the contested decision).
      
      309    A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does
         not facilitate the Commission’s task significantly and is therefore insufficient to justify a reduction in the fine for cooperation
         (Groupe Danone v Commission, paragraph 57 supra, paragraph 455).
      
      310    Given the statement in the previous paragraph and the fact that the applicants do not dispute that the cooperation provided
         by Kone had already enabled the Commission to establish the infringement in Belgium, the applicants cannot claim that it was
         only the project lists mentioned in the contested decision taken as a whole, including those sent by Schindler, which enabled
         the Commission to prove the existence of the cartel in Belgium.
      
      311    The Commission did not, therefore, manifestly go beyond the bounds of its margin of assessment in finding that the evidence
         furnished by Schindler did not represent significant added value within the meaning of point 21 of the Leniency Notice. The
         complaint relating to the significant added value of the project lists which Schindler communicated to the Commission in the
         context of its application under that notice must therefore be rejected.
      
      312    Second, the applicants argue that a comparison of its treatment with that of Otis and ThyssenKrupp shows that the Commission
         breached the principle of equal treatment by refusing to grant Schindler a reduction in the amount of its fine under the 2002
         Leniency Notice. They explain, to that end, that Kone provided sufficient evidence to enable the Commission to establish an
         infringement of Article 81 EC. Otis provided evidence that contained only very little new information, and obtained a reduction
         in its fine of 40%. ThyssenKrupp merely provided supplemental information relating to a small number of maintenance projects,
         and the Commission found that none of the evidence provided related to facts of which it had previously been unaware and that
         the information communicated did not relate to the period of the cartel. Yet ThyssenKrupp was allowed a reduction in its fine
         of 20%. For its part, Schindler communicated lists relating to the years 2000 to 2003, of which the Commission had no prior
         knowledge and which did relate to the period of the cartel. It is thus entitled to a reduction in the amount of its fine of
         up to 20%.
      
      313    It should be observed in this connection that, according to settled case-law, the Commission is not entitled, in its appraisal
         of the cooperation provided by members of a cartel, to disregard the principle of equal treatment (Joined Cases T‑236/01,
         T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 394 and the case-law cited).
      
      314    In the present case, it must be observed that the cooperation provided by Otis and ThyssenKrupp was very different from that
         provided by Schindler.
      
      315    First of all, the Court must point out that the assessment of the added value of cooperation is carried out by reference to
         the evidence already in the Commission’s possession. Since the cooperation which Otis and ThyssenKrupp offered preceded that
         of Schindler (recitals 96, 98 and 103 of the contested decision), the Commission was in possession of more evidence by the
         time Schindler made its application under the 2002 Leniency Notice than it had had when Otis and ThyssenKrupp made theirs.
      
      316    Second, it can be seen from the contested decision that the cooperation offered by ThyssenKrupp and Otis did represent significant
         added value within the meaning of point 21 of the 2002 Leniency Notice.
      
      317    In so far as Otis’s cooperation is concerned, that undertaking provided the Commission with ‘contemporaneous documentary evidence’
         (recital 766 of the contested decision) and that evidence provided information, albeit limited information, on ‘facts previously
         unknown to the Commission’ (recital 766 of the contested decision). In so far as concerns the cooperation provided by ThyssenKrupp,
         it too represented significant added value ‘because it provided additional information about some maintenance/modernisation
         projects and detailed explanations about the system used to fix prices of maintenance contracts’ (recital 771 of the contested
         decision).
      
      318    In so far as Schindler’s cooperation is concerned, on the other hand, it is clear from the Court’s analysis in paragraphs
         303 to 311 above that the Commission was entitled to regard it as not meeting the conditions of point 21 of the 2002 Leniency
         Notice.
      
      319    That being so, and since the positions of the various undertakings are not comparable, the Commission did not breach the principle
         of equal treatment by granting reductions in the amounts of their fines to Otis (40%) and ThyssenKrupp (20%) and refusing
         Schindler the benefit of any reduction in the amount of its fine under the 2002 Leniency Notice.
      
      320    It is clear from all the foregoing that all of Schindler’s complaints relating to the way in which the 2002 Leniency Notice
         was applied to its cooperation in establishing the infringement in Belgium must be rejected.
      
       Schindler’s cooperation in establishing the infringement in Germany
      321    In recital 805 of the contested decision, the Commission decided ‘to grant Schindler a reduction of 15% within the band provided
         for in the third indent of [the first paragraph of] point 23(b) of the [2002] Leniency Notice’, on account of its cooperation
         in establishing the infringement in Germany.
      
      322    In recital 803 of the contested decision, the Commission explains that it was impossible to grant immunity from fines under
         point 8(b) of the 2002 Leniency Notice or a 100% reduction in the fine under the last paragraph of point 23(b) of the notice
         because, by the time Schindler made its application under the notice, it ‘was already in possession of a body of evidence
         enabling it to find an infringement of Article 81 [EC], including the period 1995 to 2000’.
      
      323    In recital 804 of the contested decision, the Commission adds:
      
      ‘… Since Schindler completely fulfilled the condition of point 21 only after the 25 November 2004 supplement, that is, eight
         months after the first two … applications [under the 2002 Leniency Notice], this delay is to be considered for the reduction
         within the band. Schindler did provide some added value that strengthened the Commission’s ability to prove the infringement.
         However, the added value of Schindler’s leniency application remained limited given that it consisted mainly in own statements,
         contained no documentary evidence and mainly corroborated evidence already in the Commission’s possession’.
      
      324    As a preliminary point, the applicants draw attention to the fact that Schindler participated only in the cartels relating
         to the installation of escalators between 1995 and 2000, such that only those cartels and only that period should be taken
         into account by the Commission in its assessment of Schindler’s cooperation. That infringement was an isolated infringement
         and should be considered separately from the infringements relating to escalators and elevators committed by other undertakings
         after 2000. Schindler had not participated in those infringements and knew nothing of them.
      
      325    First, Schindler maintains that it ought to be regarded as the first undertaking to submit evidence enabling the Commission
         to find an infringement, for the purposes of point 8(b) of the 2002 Leniency Notice, and should thus benefit from a total
         remission of its fine.
      
      326    The applicants admit that the Commission received applications under the 2002 Leniency Notice in relation to the German cartels
         from Kone and Otis before it received Schindler’s application. Nevertheless, those applications were not such as to prove
         the infringement of Article 81 EC in which Schindler participated, namely the agreements relating to escalators concluded
         between 1995 and 2000. Without the evidence provided by Schindler, the Commission would not have been in a position to establish
         the infringement of Article 81 EC. In its application and supplemental applications, Schindler showed that 33 meetings had
         been held in Germany between 29 April 1994 and 6 December 2000. Otis disclosed only three meetings in 1999 (on 20 January,
         28 October and 22 December 1999) and five meetings in 2000 (on 20 January, 18 February, 3 April, 16 June and 6 December 2000).
         Nor did the statements made by Kone make it possible to establish that regular meetings had been held concerning the escalator
         projects in Germany between 1995 and 2000.
      
      327    Second, and in the alternative, the applicants maintain that, in accordance with the last paragraph of point 23(b) of the
         2002 Leniency Notice, Schindler ought not, in any case, to have received a fine, since it was the only undertaking to provide
         sufficient evidence to establish the infringement in Germany between 1995 and 2000. The evidence provided by Kone and Otis
         related to the period after 2000. Moreover, in so far as the Commission asserts, in recital 803 of the contested decision,
         that it already had sufficient evidence in its possession prior to Schindler’s application, without, however, stating what
         that evidence was, the applicants argue that the statement of reasons for the contested decision is deficient.
      
      328    The Court observes, first of all, that, contrary to the Commission’s contention, the fact that the applicants do not call
         into question the classification of the infringement in Germany as a single infringement does not render their arguments inadmissible.
      
      329    Indeed, in the contested decision, the Commission itself identifies two phases in the infringement in Germany, the first lasting
         from August 1995 to December 2000 and relating solely to escalators, the other lasting from December 2000 to December 2003
         and relating to both escalators and elevators (recitals 213, 277 and 278 of the contested decision), without that distinction
         altering its classification of the cartel as a single infringement for the reason that all the arrangements followed pursued
         the same goals and had the same result (recital 568 of the contested decision). Nor is it in dispute that Schindler participated
         only in the escalators phase of the infringement found in Article 1(2) of the contested decision, since Schindler left the
         cartel in 2000 (recital 213 of the contested decision).
      
      330    If, as the applicants claim, Schindler was the first undertaking to provide decisive evidence enabling the Commission to establish
         the existence of the cartel in Germany from August 1995 to December 2000 it would be entitled, in accordance with the last
         paragraph of point 23(b) of the 2002 Leniency Notice, and irrespective of the possible application of point 8(b) of the notice,
         to a 100% reduction in the amount of its fine, since its cooperation would have directly altered the duration of the supposed
         cartel, to the extent of the entire duration of Schindler’s participation in it.
      
      331    However, it is clear from recitals 214 and 803 of the contested decision that, by the time Schindler made its application,
         on 25 November 2004, the Commission had in its possession sufficient evidence to establish the existence of the infringement
         in Germany from 1995 to 2000.
      
      332    Thus, in its application of 12 February 2004 under the 2002 Leniency Notice, Kone provided specific evidence about the cartel
         in Germany relating both to the period before Schindler left the cartel and to the period following its departure. As regards
         the first phase of the infringement, Kone’s statement thus informed the Commission that a cartel to share the escalators market
         had been in existence since at least 1 August 1995, provided it with a list of the cartel members, and informed it of the
         principles governing the allocation of projects and other matters relating to the cartel’s implementation. In its application
         Kone also stated clearly that Schindler had left the cartel ‘[at] the end of 2000’.
      
      333    In its submission of April 2004 supplementing its application of March 2004, Otis confirmed the existence of a cartel in Germany
         to share the market for escalators, the list of cartel members, the principles governing the allocation of projects and other
         information relating to the cartel’s implementation as well as Schindler’s departure from the cartel in 2000. In its supplemental
         submission of April 2004, Otis also indicated that the cartel on the escalators market had been in existence since the 1980s.
      
      334    Therefore, by the time Schindler made its application under the 2002 Leniency Notice, on 25 November 2004, the Commission
         already had in its possession two concurring statements enabling it to establish the phase of the infringement in Germany
         in which Schindler had participated.
      
      335    Admittedly, in its application of 25 November 2004 and in its supplemental statement of 7 December 2004, Schindler provided
         the Commission with information of which it was not yet aware, namely the dates of certain meetings of the cartel members
         which took place between 29 April 1994 and 6 December 2000. However, having regard to the Court’s findings in paragraph 334
         above, the Commission was entitled to take the view that that evidence provided significant added value within the meaning
         of point 21 of the 2002 Leniency Notice and qualified for a reduction in the fine, but did not give rise to complete immunity
         from the fine under point 8(b) or complete remission of the fine under the last paragraph of point 23(b) of the notice. Indeed,
         the evidence in question was not decisive in establishing the existence of the cartel in Germany during the period of Schindler’s
         participation in it, but merely strengthened the Commission’s ability to find the infringement by corroborating the evidence
         already in its possession.
      
      336    Next, as regards the fact that Schindler was the third undertaking to make an application under the 2002 Leniency Notice,
         the applicable reduction in the fine was that provided for in the third indent of the first paragraph of point 23(b) of the
         notice. Given that no evidence of significant added value was sent to the Commission until eight months after the first two
         applications under the notice were made, and that it is not in dispute that Schindler did not communicate any contemporaneous
         documentary evidence, the Commission did not manifestly go beyond the bounds of its margin of assessment by setting the reduction
         in the amount of Schindler’s fine at 15%.
      
      337    Lastly, as regards the complaint alleging infringement of Article 253 EC, it must be held that recital 803 of the contested
         decision sets out, clearly and unequivocally, the reasons for which the Commission considered that the evidence submitted
         by Schindler in its application under the 2002 Leniency Notice did not give rise to immunity from the fine. In this connection,
         the Commission mentions that ‘at the time of Schindler’s submission, [it] was already in possession of a body of evidence
         enabling it to find an infringement of Article 81 [EC]’ (recital 803 of the contested decision). Taken in context, those reasons
         necessarily relate to the body of evidence contained in the applications made by Kone and Otis, which, in recitals 792 and
         799 of the contested decision, was ascribed added value. Those recitals thus enabled the interested parties to ascertain the
         reasons for the Commission’s refusal to grant Schindler immunity from fines in recognition of its cooperation in establishing
         the infringement in Germany and the Court to carry out its review of the legality thereof. The complaint alleging infringement
         of Article 253 EC must therefore be rejected.
      
      338    Accordingly, the Court must reject all of Schindler’s complaints concerning the application of the 2002 Leniency Notice to
         its cooperation in establishing the cartel in Germany.
      
       Schindler’s cooperation in establishing the infringement in Luxembourg 
      339    Schindler, which was the fourth undertaking to make an application under the 2002 Leniency Notice in respect of the Luxembourg
         cartel (recital 830 of the contested decision), was not granted any reduction in its fine under the 2002 Leniency Notice in
         so far as that infringement was concerned (recital 834 of the contested decision).The Commission gives the following explanation
         in that connection in recitals 831 to 833 of the contested decision:
      
      ‘831      Schindler’s … application [under the 2002 Leniency Notice] consists mainly of a written corporate statement and some internal
         documents from 2002 which Schindler claims were created in the context of normal business operations. Schindler’s leniency
         application did not provide the Commission with new evidence of significant added value. The new information consists of descriptions
         of the industry at the time of the infringement and other details of minor importance. Otherwise, Schindler’s leniency application
         mainly confirms information already known to the Commission. 
      
      832      Besides, Schindler claimed that agreements with respect to new installations, modernisation, repair and maintenance of elevators
         and escalators were in place as early as 1993, and that Schindler had left the cartel in 1994 and only returned in 1999. The
         Commission has found no indications supporting this statement. The Commission cannot rely on a party’s unsupported unilateral
         statement on a critical matter that could lead to serious legal consequences for the other participants.
      
      833      The Commission concludes that Schindler’s submission did not contain new evidence of any appreciable value but mainly corroborated
         facts already known to the Commission. The information provided by Schindler, compared to the evidence in the Commission’s
         possession at the time of Schindler’s leniency application did not to any significant extent strengthen the Commission’s ability
         to prove the facts in question. Consequently, the requirements of point 21 of the [2002] Leniency Notice are not satisfied.
         Subsequent to its leniency application, Schindler has not further cooperated other than providing information upon request
         of the Commission.’
      
      340    The applicants maintain that Schindler is entitled to a reduction in its fine of 20% to 30% under points 21 and 23 of the
         2002 Leniency Notice. They maintain that Schindler did provide evidence of considerable added value concerning agreements
         in the maintenance field. Without Schindler’s application of 4 November 2004, the Commission would not have been in a position
         to establish the existence of agreements in that field, in relation to which the applications of Kone and ThyssenKrupp contain
         only very little information. Moreover, Otis did not expressly admit its participation in agreements in this field.
      
      341    The applicants argue that the significance of Schindler’s application under the 2002 Leniency Notice as regards the Commission’s
         taking of evidence is also clear from the number of times it is referred to in the contested decision, by comparison with
         the references to Kone’s and ThyssenKrupp’s applications. The Commission rejected Schindler’s line of argument in recital
         831 of the contested decision, without, however, answering the argument which Schindler set out in its reply to the statement
         of objections. That constitutes a failure to state reasons within the meaning of Article 253 EC.
      
      342    Having regard to the case-law recalled in paragraph 300 above, it is appropriate for the Court to examine whether the Commission
         manifestly went beyond the bounds of its margin of assessment in finding that the evidence provided by Schindler did not represent
         significant added value by comparison with the evidence already in its possession at the time Schindler made its application
         under the 2002 Leniency Notice.
      
      343     In this connection, it must be pointed out first of all that the applicants, which do not take issue with the grant to Kone
         of immunity from fines under point 8(b) of the 2002 Leniency Notice, do not dispute that the information provided by Kone
         already enabled the Commission to find an infringement in Luxembourg (recital 816 of the contested decision). The Commission
         thus already had sufficient evidence to make a finding of infringement in Luxembourg at the time Schindler submitted its application
         under that notice. Moreover, prior to Schindler’s application, the Commission had already received an application from Otis
         under the notice, in March 2004, which led to a reduction in its fine of 40% (recitals 118 and 823 of the contested decision).
      
      344    Second, as regards the question whether, in accordance with points 21 and 22 of the 2002 Leniency Notice, the evidence provided
         by Schindler represented significant added value in that it considerably strengthened the Commission’s ability to establish
         the infringement in Luxembourg, it must be observed that the evidence which, according to the applicants, offered significant
         added value related to only one of the two parts of the infringement found in Article 1(3) of the contested decision, namely
         the sharing of the markets for maintenance and modernisation contracts (see also recitals 293 and 830 of the contested decision).
      
      345    However, it can be seen from Kone’s application of 4 February 2004, as supplemented by the information of 19 February 2004,
         that that application already contained a clear description of the part of the cartel which was later the subject of Schindler’s
         cooperation.
      
      346    Third, the applicants cannot base an argument on the number of references which the contested decision makes to their application
         under the 2002 Leniency Notice. The fact that the Commission made use, in the contested decision, of all the evidence available
         to it, and thus also of the information provided by Schindler in its leniency application of 4 November 2004, does not establish
         that Schindler’s information represented significant added value with respect to the evidence already in the Commission’s
         possession at that time.
      
      347    It follows from all the foregoing that the Commission did not manifestly go beyond the bounds of its margin of assessment
         in holding that the evidence provided by Schindler did not represent significant added value for the purposes of point 21
         of the 2002 Leniency Notice.
      
      348    As regards the complaint alleging infringement of Article 253 EC, it must be observed that the Commission is not obliged to
         adopt a position on all the arguments relied on by the parties concerned; rather, it is sufficient if it sets out the facts
         and the legal considerations having decisive importance in the context of the decision (Case T‑349/03 Corsica Ferries France v Commission [2005] ECR II‑2197, paragraph 64 and the case-law cited). It must be observed in this connection that, in recitals 831 to
         833 of the contested decision, the Commission gave an adequate explanation of the reasons why it considered the evidence submitted
         by Schindler in its application of 4 November 2004 not to represent significant added value within the meaning of point 21
         of the 2002 Leniency Notice. Those recitals enable the interested parties to ascertain the reasons for the Commission’s refusal
         to grant Schindler a reduction in its fine in recognition of its cooperation in establishing the infringement in Luxembourg
         and the Court to carry out its review of the legality thereof. The complaint alleging infringement of Article 253 EC must
         therefore be rejected.
      
      349    It is clear from all the foregoing that all of Schindler’s complaints relating to the way in which the 2002 Leniency Notice
         was applied to its cooperation in establishing the infringement in Luxembourg must be rejected.
      
       The plea alleging breach of the 2002 Leniency Notice and the 1998 Guidelines on the ground of the insufficiency of the reduction
            in the fines for not contesting the facts
      350    The Commission stated in point 614 of the statement of objections that ‘it [was considering] whether to grant any reduction
         [in the fines] for cooperation outside the [2002] Leniency Notice, in particular where a company [did] not contest, or where
         it [provided] further assistance in clarifying or supplementing, the facts found by the Commission’.
      
      351    In recital 758 of the contested decision, the Commission explained that, ‘[t]o the extent [that point] 614 of the statement
         of objections created expectations in this case, [it] [had] decided to interpret [that point] in favour of those undertakings
         relying on it and assisting in the establishment of the infringement in [the contested] decision by not contesting the facts
         or by providing additional information or further clarifications’.
      
      352    The Commission thus granted all the participants in the four infringements, with the exception of (i) undertakings granted
         immunity from fines (recitals 762, 817 and 839 of the contested decision) and (ii) Kone in relation to the Netherlands cartel
         (recital 851 of the contested decision), a 1% reduction in the fines for their cooperation outside the 2002 Leniency Notice,
         in recognition of the fact that they had not contested the facts set out in the statement of objections (recitals 768, 774,
         777, 794, 801, 806, 813, 824, 829, 835, 845, 854, 855 and 856 of the contested decision).
      
      353    The applicants submit, first of all, that they can expect a reduction of at least 10%, rather than 1%, in the fine in respect
         of their cooperation outside the 2002 Leniency Notice. That would be consistent with the practice followed by the Commission
         in taking decisions in other cases. Second, despite a request to that effect, the Commission had failed to take account of
         the fact that the applicants had cooperated to an extent far greater than merely not contesting the facts. That entitled them
         to a reduction in the fine of at least 10% under the 2002 Leniency Notice or a reduction under the sixth indent of Section
         3 of the 1998 Guidelines. 
      
      354    It must be recalled at the outset that a reduction in the fine on the ground of cooperation during the administrative procedure
         is justified only if the conduct of the undertaking in question enabled the Commission to establish the infringement more
         easily and, where relevant, to bring it to an end (Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraph 156, Krupp Thyssen Stainless and Acciai speciali Terni v Commission, paragraph 222 above, paragraph 270, and Groupe Danone v Commission, paragraph 57 above, paragraph 449). 
      
      355    Moreover, it is clear from the case-law that an undertaking which expressly states that it is not contesting the allegations
         of fact on which the Commission bases its objections may be regarded as having facilitated the Commission’s task of finding
         infringements of the EU competition rules (Case T‑352/94 Mo och Domsjö v Commission [1998] ECR II‑1989, paragraph 395, and SCA Holding v Commission, paragraph 354 above, paragraph 157).
      
      356    It is true that the 2002 Leniency Notice, unlike the 1996 Leniency Notice, does not provide for any reduction in fines for
         undertakings which do not substantially contest the facts on which the Commission bases its allegations in the statement of
         objections. However, the Commission acknowledges, in recital 758 of the contested decision, that point 614 of the statement
         of objections created for the undertakings a legitimate expectation that if the facts were not contested, that would entail
         a reduction in the fine outside the 2002 Leniency Notice. It also stated in recital 758 that ‘[t]he extent of the reduction
         should take into account that cooperation offered after the statement of objections, after the Commission has established
         all the elements of the infringement, at a time when the undertaking is aware of all the results of the investigation and
         has had access to the investigation file, can only assist the Commission marginally, if at all, in its investigation’. The
         Commission also stated that ‘[i]n general, admission of the facts in these circumstances is at most corroborating evidence
         of facts that the Commission would regularly consider already sufficiently proven by other evidence in the file’.
      
      357    First of all, the Court must reject the applicants’ argument that the Commission departed from its previous practice, whereby
         an undertaking which did not substantially contest the facts complained of in the statement of objections would be granted
         a 10% reduction in the fine which would have been imposed on it, in accordance with the 1996 Leniency Notice.
      
      358    Whilst, admittedly, the 1996 Leniency Notice provided in the second indent of Section D.2 that an undertaking could benefit
         ‘from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated … if … after receiving a
         statement of objections, [it informed] the Commission that it [did] not substantially contest the facts on which the Commission
         [based] its allegations’, the 2002 Leniency Notice no longer provides for a reduction of the amount of the fine on that ground.
         However, as is clear from paragraphs 142 and 143 above, only the 2002 Leniency Notice applies to the applicants’ leniency
         applications, which, moreover, were expressly submitted on the basis of that notice.
      
      359    In any event, as was pointed out in paragraph 225 above, the Commission’s practice in previous decisions does not serve as
         a legal framework for the fines imposed in competition matters.
      
      360    Second, as regards the applicants’ arguments that, throughout the procedure, Schindler provided the Commission with information
         about the infringements which was cited in key passages of the contested decision, suffice it to observe that the applicants
         do not claim that that collaboration went any further than that required in order for the 2002 Leniency Notice to apply. Their
         complaint must therefore be rejected. The same applies to the plea, raised in the reply, that that cooperation justified the
         recognition in Schindler’s favour of a mitigating circumstance, in accordance with the 1998 Guidelines. 
      
      361    It follows that the plea must be dismissed in its entirety.
      
       The plea alleging infringement of Article 23(2) of Regulation No 1/2003
      362    The applicants argue that the fines imposed in Article 2 of the contested decision for each infringement breach Article 23(2)
         of Regulation No 1/2003 in that, in establishing the ceiling of 10% of the turnover of the undertaking concerned, the Commission
         took as reference the turnover figures of the parent companies of the groups of companies concerned, rather than the turnover
         of the subsidiaries which directly participated in the infringements.
      
      363    The applicants argue that the infringements committed by the respective subsidiaries cannot be attributed to their parent
         companies and that, consequently, the ceiling of 10% of turnover referred to in Article 23(2) of Regulation No 1/2003 ought
         to be calculated by reference to the turnover figures of the subsidiaries.
      
      364    However, given that the applicants do not complain that the fines imposed in the contested decision exceed the ceiling of
         10% of the turnover achieved by Schindler Holding during the previous financial year, the Court must observe that this complaint
         is confused with the complaints examined in paragraphs 63 to 91 above, relating to the imputation to Schindler Holding of
         the conduct of its subsidiaries. It is clear from the reasoning relating thereto that the Commission was entitled to impute
         to Schindler Holding the conduct of its subsidiaries, with which it forms an economic unit. This plea must therefore be dismissed.
      
       The plea alleging breach of the principle of proportionality in the calculation of the final amounts of the fines
      365    The applicants argue that the final amounts of the fines imposed on them are disproportionate, in that they were neither necessary
         nor appropriate in order to attain the objective pursued, namely the discouragement of unlawful conduct and the prevention
         of repeat infringements. The present case involves four isolated infringements committed by four different companies, such
         that the fines imposed ought not to exceed 10% of the turnover figures of each company. The applicants also submit that, if
         the Commission’s argument that a fine is not disproportionate where it does not exceed the ceiling of 10% of the turnover
         of the undertaking concerned were accepted, it would be practically impossible to apply the principle of proportionality.
         In the present case, Schindler Belgium and Schindler Luxembourg received fines equating to [confidential]% of the average aggregated turnover of Schindler Belgium and Schindler Luxembourg [confidential]. In so far as Schindler Netherlands is concerned, the fine equates to [confidential]. 
      
      366    It should be recalled at the outset that the principle of proportionality requires that measures adopted by EU institutions
         do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the
         legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous,
         and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑180/96 United Kingdom v Commission [1998] ECR I‑2265, paragraph 96, and judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer v Commission, not published in the ECR, paragraph 223). 
      
      367    It follows that fines must not be disproportionate to the aims pursued, that is to say, to compliance with the competition
         rules, and that the amount of the fine imposed on an undertaking for an infringement of competition law must be proportionate
         to the infringement, viewed as a whole, account being taken, in particular, of the gravity of the infringement (Prym and Prym Consumer v Commission, paragraph 366 above, paragraph 224). 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 (see, to that effect, Musique Diffusion française and Others v Commission, paragraph 54 above, paragraph 108, Europa Carton v Commission, paragraph 125 above, paragraph 89).
      
      368    It must be observed, first of all, that the infringements consisted in this case 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
         (except in Germany where the maintenance and modernisation business was not the subject of discussions between the cartel
         members). Such infringements are, by their very nature, among the most serious infringements of Article 81 EC (recital 658
         of the contested decision).
      
      369    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, contrary to the applicants’ submission,
         the relevant undertaking to which the Commission must, in the present case, have regard is not each of the subsidiaries involved
         in the infringements found in Article 1(1), (3) and (4) of the contested decision. On the contrary, it is clear from the foregoing
         analysis that the infringements with which Schindler is charged were committed by Schindler Holding and its subsidiaries.
         That being so, the arguments by which applicants merely seek to establish that the amounts of the fines imposed by the Commission
         are disproportionate to the turnover achieved by each of the subsidiaries, with the exclusion of their parent company, must
         be rejected.
      
      370    Third, as regards the proportionality of the fines by comparison with the size and economic strength of the economic units
         concerned, it must be observed that it follows from the foregoing explanations that those fines do not exceed 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 (see to that effect, Musique Diffusion française and Others v Commission, paragraph 54 above, paragraph 119, Prym and Prym Consumer v Commission, paragraph 366 above, paragraph 229). In this connection, it is also clear from the file that the total amount of the fines
         imposed on Schindler in the contested decision represents approximately 2% of the aggregated turnover of Schindler Holding
         in the financial year preceding the adoption of the contested decision. That cannot be regarded as disproportionate in relation
         to the size of the undertaking.
      
      371    Having regard to the foregoing considerations, the plea alleging breach of the principle of proportionality in the calculation
         of the final amounts of the fines must be dismissed.
      
      372    It follows that the action must be dismissed in its entirety.
      
       Costs
      373    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the other party’s pleadings. In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure,
         the institutions which have intervened in the proceedings are to bear their own costs. Under Article 87(6) of the Rules of
         Procedure, where a case does not proceed to judgment, the costs shall be in the discretion of the General Court.
      
      374    It must be observed that the present action, in so far as it was brought by Schindler Management, became devoid of purpose
         following the Commission’s correction of the contested decision. Since all the pleas in the action have been raised by all
         the applicants without distinction and since Schindler Holding, Schindler Belgium, Schindler Germany and Schindler Luxembourg
         have been unsuccessful, they must be ordered to pay the Commission’s costs. The Council must bear its own costs.
      
      On those grounds,
      THE GENERAL COURT (Eighth Chamber)
      hereby:
      1.      Declares that there is no need to adjudicate on the action in so far as it has been brought by Schindler Management AG;
      2.      Dismisses the action as to the remainder;
      3.      Orders Schindler Holding Ltd, Schindler SA, Schindler Deutschland Holding GmbH, Schindler Sàrl and Schindler Liften BV to
            pay the costs;
      4.      Orders Schindler Management to bear its own costs;
      5.      Orders the Council of the European Union to bear its own costs.
      
               Martins Ribeiro
            
            
               Wahl
            
            
               Dittrich
            
         Delivered in open court in Luxembourg on 13 July 2011.
      [Signatures]
      Table of contents
      
      The administrative procedure
      1.  The Commission investigation
      Belgium
      Germany
      Luxembourg
      The Netherlands
      2.  The statement of objections
      3.  The contested decision
      Proceedings and forms of order sought
      The application for a finding that there is no need to adjudicate on the action in so far as Schindler Management is concerned
      Substance
      1.  Preliminary observations
      2.  The application for the annulment of the contested decision in its entirety
      The plea alleging infringement of Article 6(1) of the ECHR
      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
      
      The plea alleging that the contested decision is unlawful in so far as it held Schindler Holding jointly and severally liable
      3.  The application for annulment of Article 2 of the contested decision
      The objection of illegality relating to Article 23(2) of Regulation No 1/2003, alleging breach of the principle that penalties
         must have a proper legal basis
      
      The objection of illegality in respect of the 1998 Guidelines, alleging breach of the principle of non-retroactivity
      The objection that the 1998 Guidelines are unlawful in that the Commission lacked jurisdiction and, in the alternative, in
         that the Guidelines lack transparency and were not predictable
      
      The objection of illegality in relation to the 2002 Leniency Notice, alleging breach of the principle of non-retroactivity
         and of the principle of the protection of legitimate expectations
      
      The objection of illegality relating to the 2002 Leniency Notice, alleging that it breaches the general principles of law
         nemo tenetur and in dubio pro reo and the principle of proportionality, and constitutes an abuse of discretion
      
      The first complaint, alleging breach of the principle nemo tenetur
      The second complaint, alleging breach of the principle in dubio pro reo
      The third complaint, alleging breach of the principle of proportionality
      The fourth complaint, alleging an abuse of discretion
      The plea alleging the confiscatory nature of the contested decision, in breach of international law
      Admissibility
      Substance
      The plea alleging breach of the 1998 Guidelines and of the duty to state reasons as regards the determination of the starting
         amounts of the fines
      
      Preliminary observations
      The contested decision
      The classification of the infringements as ‘very serious’
      The alleged unlawfulness of the starting amounts of the fines
      –  The allegation of an insufficient statement of reasons
      –  The general starting amounts of the fines
      –  The specific starting amounts of the fines
      The plea alleging infringement of the 1998 Guidelines, breach of the principle that the penalty must fit the offence, and
         breach of the duty to state reasons in connection with the taking into account of mitigating circumstances
      
      The plea alleging breach of the 2002 Leniency Notice, the principle of equal treatment and the duty to state reasons for the
         grant of reductions in the fines
      
      The 2002 Leniency Notice
      The Commission’s margin of assessment and review by the Courts of the Union
      Schindler’s cooperation in establishing the infringement in Belgium
      Schindler’s cooperation in establishing the infringement in Germany
      Schindler’s cooperation in establishing the infringement in Luxembourg
      The plea alleging breach of the 2002 Leniency Notice and the 1998 Guidelines on the ground of the insufficiency of the reduction
         in the fines for not contesting the facts
      
      The plea alleging infringement of Article 23(2) of Regulation No 1/2003
      The plea alleging breach of the principle of proportionality in the calculation of the final amounts of the fines
      Costs
      * Language of the case: German.
      
      1 – Confidential information omitted.