Kone Oyj and Others v European Commission.
Date: 2013-10-24
20. The principle of effective judicial protection is a general principle of European Union (EU) law to which expression is now given by Article 47 of the Charter and which corresponds, in EU law, to Article 6(1) of the ECHR (see, inter alia, Case C‑501/11 P Schindler Holding and Others  v Commission  [2013] ECR I‑0000, paragraph 36 and the case-law cited).
23. The Commission will determine in any final decision adopted at the end of the administrative procedure:
(a) whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s possession at that same time;
(b) the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as follows. For the:
– 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%.
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.
In addition, if 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.’
7. Point 29 of the 2002 Leniency Notice provides:
‘The Commission is aware that this notice will create legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to the Commission.’
Background to the dispute and the decision at issue
8. Kone Oyj is a global service and engineering undertaking, established in Finland, which sells, manufactures, installs, maintains and modernises elevators and escalators and services automatic building doors. Kone Oyj operates through its national subsidiaries, such as Kone GmbH in Germany and Kone BV in the Netherlands.
9. In the summer of 2003, the Commission received information concerning the possible existence of a cartel among the principal European manufacturers of elevators and escalators engaged in business activities in the European Union, namely Kone Belgium SA, Kone GmbH, Kone Luxembourg Sàrl, Kone BV Liften en Roltrappen, Kone Oyj, Otis SA, Otis GmbH & Co. OHG, General Technic-Otis Sàrl, General Technic Sàrl, Otis BV, Otis Elevator Company, United Technologies Corporation, Schindler SA, Schindler Deutschland Holding GmbH, Schindler Sàrl, Schindler Liften BV, Schindler Holding Ltd as well as ThyssenKrupp Liften Ascenseurs NV, ThyssenKrupp Aufzüge GmbH, ThyssenKrupp Fahrtreppen GmbH, ThyssenKrupp Elevator AG, ThyssenKrupp AG, ThyssenKrupp Ascenseurs Luxembourg Sàrl and ThyssenKrupp Liften BV (together referred to as ‘the ThyssenKrupp group’). Early in 2004, the Commission carried out inspections at the premises of those undertakings in Belgium, Germany, Luxembourg and the Netherlands.
10. Leniency applications were made by those undertakings. On 2 February 2004 the Kone group submitted such an application under point 8(b) of the 2002 Leniency Notice, which included information concerning Belgium and which it subsequently supplemented with, inter alia, information concerning Germany (on 12 and 14 February 2004) and information concerning the Netherlands (on 19 July 2004).
11. In the decision at issue, the Commission found that the undertakings mentioned in paragraph 9 of the present judgment together with Mitsubishi Elevator Europe BV had participated in four single, complex and continuous infringements of Article 81 EC in four Member States, sharing markets by agreeing or concerting to allocate tenders and contracts for the sale, installation, service and modernisation of elevators and escalators.
12. The Kone group was granted immunity from fines in respect of the infringements in Belgium and Luxembourg. However, under Article 2(2) and (4) of the decision at issue, so far as the infringements in Germany and the Netherlands were concerned, fines of EUR 62 370 000 and EUR 79 750 000 respectively were imposed jointly and severally on Kone Oyj and its national subsidiaries.
Proceedings before the General Court and the judgment under appeal
13. By application lodged at the Registry of the General Court on 8 May 2007, the Kone group brought an action challenging (i) the legality of Article 2(2) of the decision at issue, which imposed fines on the undertakings concerned for the infringements in Germany, and (ii) the legality of Article 2(4) of that decision, which imposed fines on the undertakings concerned for the infringements in the Netherlands.
14. In support of the action, the Kone group put forward three pleas in law. Those pleas alleged (i) infringement of the Commission Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [ECSC] (OJ 1998 C 9, p. 3) and breach of the principle of proportionality in the setting of the starting amounts of the fines, (ii) infringement of the 2002 Leniency Notice and of the principles of the protection of legitimate expectations, equal treatment and the rights of the defence and (iii) infringement of the principles of the protection of legitimate expectations and equal treatment on the occasion of the calculation of the reduction of the fines granted for cooperation outside the framework of the 2002 Leniency Notice.
15. By the judgment under appeal, the General Court dismissed that action and ordered the Kone group to pay the costs.
Forms of order sought
16. The appellants claim that the Court should:
– set aside the judgment under appeal;
– annul Article 2(2) of the decision at issue in so far as it imposes a fine on Kone Oyj and Kone GmbH, and impose either no fine or a fine at a lower amount than determined in that decision;
– annul Article 2(4) of the decision at issue in so far as it imposes a fine on Kone Oyj and Kone BV, and set the fine at a lower amount than determined in that decision; and
– order the Commission to pay the costs.
17. The Commission contends that the Court of Justice should:
– dismiss the appeal; and
– order the appellants to pay the costs.
The appeal
18. The appellants raise six grounds of appeal in support of the form of order sought, which allege (i) misinterpretation of point 8(b) of the 2002 Leniency Notice, (ii) misinterpretation of point 8(a) of that notice, (iii) infringement of the principle of the protection of legitimate expectations, (iv) misinterpretation of points 21 to 23 of the 2002 Leniency Notice, (v) infringement of the principle of equal treatment and (vi) infringement of the right to a fair trial, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).
19. The appellants maintain, in several of their grounds of appeal, that the review carried out by the General Court in the judgment under appeal was marginal and cannot be regarded as a ‘full review’. In order to address this criticism, which is made in relation to a number of the grounds of appeal, it is appropriate to recall, before going on to consider those grounds, the underlying principles of both the review of legality carried out by the European Union judicature and the unlimited jurisdiction which the latter is afforded in certain circumstances.
Preliminary considerations
20. The principle of effective judicial protection is a general principle of European Union (EU) law to which expression is now given by Article 47 of the Charter and which corresponds, in EU law, to Article 6(1) of the ECHR (see, inter alia, Case C‑501/11 P Schindler Holding and Others  v Commission  [2013] ECR I‑0000, paragraph 36 and the case-law cited).
21. Whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (see Case C‑571/10 Kamberaj  [2012] ECR I‑0000, paragraph 62, and Case C‑617/10 Åkerberg Fransson  [2013] ECR I‑0000, paragraph 44).
22. As the Court of Justice has already observed in paragraph 35 of Schindler Holding and Others  v Commission , the European Court of Human Rights has held that, in administrative proceedings, the obligation to comply with Article 6 of the ECHR does not preclude a ‘penalty’ from being imposed by an administrative authority in the first instance. According to the European Court of Human Rights, compliance with that provision requires, however, that decisions taken by administrative authorities which do not themselves satisfy the requirements laid down in Article 6(1) of the ECHR be subject to subsequent review by a judicial body that has full jurisdiction. The characteristics of such a body include, according to the same judgment of the European Court of Human Rights, the power to quash in all respects, on questions of fact and law, the decision of the body below. The judicial body must in particular have jurisdiction to examine all questions of fact and law relevant to the dispute before it (judgment of the European Court of Human Rights in A. Menarini Diagnostics S.R.L. v. Italy , no. 43509/08, 27 September 2011, § 59).
23. Ruling on the principle of effective judicial protection, a general principle of EU law to which expression is now given by Article 47 of the Charter, the Court of Justice has held that, in addition to the review of legality provided for by the FEU Treaty, the European Union judicature has the unlimited jurisdiction which it is afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU, and which empowers it to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (Case C‑386/10 P Chalkor  v Commission  [2011] ECR I‑0000, paragraph 63, and Schindler Holding and Others v Commission , paragraph 36).
24. As regards the review of legality, the Court has pointed out that the European Union judicature must carry it out on the basis of the evidence adduced by the applicant in support of the pleas in law put forward and that it cannot use the Commission’s margin of discretion – either as regards the choice of factors taken into account in the application of the 2002 Leniency Notice or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in‑depth review of the law and of the facts (see, to that effect, Schindler Holding and Others v Commission , paragraphs 37 and 155 and the case-law cited).
25. As the review provided for by the Treaties involves review by the European Union judicature of both the law and the facts, and means that it has the power to assess the evidence, to annul the decision at issue and to alter the amount of a fine, the Court has concluded that the review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not contrary to the requirements of the principle of effective judicial protection which is currently set out in Article 47 of the Charter ( Schindler Holding and Others v Commission , paragraph 38, and, to that effect, Case C‑272/09 P KME Germany and Others  v Commission  [2011] ECR I‑0000, paragraph 106; Chalkor  v Commission , paragraph 67, and Case C‑199/11 Otis and Others [2012] ECR I‑0000, paragraph 63).
26. It should also be recalled that the analysis by the European Union judicature of the pleas in law raised in an action for annulment has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure. As such a limitation of judicial review is, however, inherent in the notion of the review of legality, it cannot be understood as unduly limiting the review of legality which the European Union judicature is authorised to carry out (see, to that effect, Case C‑399/08 P Commission  v Deutsche Post  [2010] ECR I‑7831, paragraph 84 and the case-law cited).
27. Indeed, when it falls to the European Union judicature to review the legality of Commission decisions imposing fines for infringements of the EU competition rules, it cannot encroach upon the discretion available to the Commission in the administrative proceedings by substituting its own assessment of complex economic circumstances for that of the Commission, but, where relevant, must demonstrate that the way in which the Commission reached its conclusions was not justified in law (see, to that effect, Case C‑441/07 P Commission  v Alrosa  [2010] ECR I‑5949, paragraph 67).
28. In that regard, whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the Courts of the European Union must refrain from reviewing the Commission’s interpretation of information of an economic nature. Those Courts must, among other things, not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see Case C‑12/03 P Commission  v Tetra Laval  [2005] ECR I‑987, paragraph 39; Case C‑525/04 P Spain  v Lenzing  [2007] ECR I‑9947, paragraphs 56 and 57; Chalkor  v Commission , paragraph 54, and Otis and Others , paragraph 59).
29. Moreover, although the 2002 Leniency Notice sets out rules of practice from which the administration may not depart in an individual case without giving reasons compatible with the principle of equal treatment (see, by analogy, Schindler Holding and Others  v Commission , paragraph 67 and the case-law cited), the fact remains that that notice does not affect the intensity of the review which the Courts of the European Union must carry out in accordance with paragraph 28 of the present judgment.
30. It should, however, be borne in mind that proceedings before the Courts of the European Union are inter partes . With the exception of grounds involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas (see, to that effect, KME Germany and Others v Commission , paragraph 104, and Chalkor  v Commission , paragraph 64).
31. That requirement, which is procedural in nature, does not conflict with the rule that, in the case of infringements of the competition rules, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. What the applicant is required to do in the context of a legal challenge is to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence – direct or circumstantial – to demonstrate that its objections are well founded ( KME Germany and Others v Commission , paragraph 105, and Chalkor  v Commission , paragraph 65).
32. Moreover, the failure to review the whole of the contested decision of the court’s own motion does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court – which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts – should be obliged to undertake of its own motion a new and comprehensive investigation of the file ( KME Germany and Others v Commission , paragraph 106, and Chalkor  v Commission , paragraph 66).
37. In order for such an argument to be admissible at the stage of the reply, the appellants should have established in what respect it was based on matters of fact which have come to light in the course of these proceedings (see, to that effect, Case C‑219/95 P Ferriere Nord v Commission  [1997] ECR I‑4411, paragraph 56). Since the appellants have adduced no evidence of this, the argument must be regarded as inadmissible.
43. However, for the purposes of determining whether the General Court failed to comply with the requirements stemming from that line of case-law, account is not to be taken of the abstract and declaratory descriptions of judicial review in paragraphs 85 and 95 of the judgment under appeal, given that what matters is the criterion that the General Court in fact applied in the specific examination of the added value represented by the cooperation of the undertakings in question with the Commission (see, to that effect, Schindler Holding and Others v Commission , paragraph 156).
56. Even though the General Court referred on a number of occasions, in particular in paragraphs 95 and 103 of the judgment under appeal, to whether the Commission had ‘manifestly’ gone beyond the bounds of its margin of assessment, such references did not prevent the General Court from carrying out the full and unrestricted review, in law and in fact, required of it (see, to that effect, inter alia, Chalkor  v Commission , paragraph 82).
60. As regards proceedings before the European Union judicature, it should be recalled, as a preliminary point, that the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence which it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, inter alia, Case C‑551/03 P General Motors  v Commission  [2006] ECR I‑3173, paragraph 52, and Case C‑535/06 P Moser Baer India  v Council  [2009] ECR I‑7051, paragraph 32 and the case-law cited).
61. It is also important to point out that an appeal is inadmissible in so far as it simply repeats the pleas in law and arguments already put forward before the General Court, including those based on facts expressly rejected by the latter, without even including an argument specifically identifying the error of law allegedly vitiating the judgment of the General Court. Such an appeal amounts in reality to no more than a request for re‑examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 51 and the case-law cited).
62. By contrast, provided that an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (Case C‑229/05 P PKK and KNK  v Council  [2007] ECR I‑439, paragraph 32 and the case-law cited, and judgment of 30 May 2013 in Case C‑70/12 Quinn Barlo and Others v Commission , paragraph 27).
65. Such an assessment, based on facts, is not open to challenge in an appeal (see, inter alia, Case C‑328/05 P SGL Carbon  v Commission  [2007] ECR I‑3921, paragraph 86). The appellants’ argument must therefore be rejected as inadmissible.
69. That is therefore an argument directed against a ground included in the judgment under appeal purely for the sake of completeness which cannot lead to the judgment being set aside and is thus ineffective (see, in particular, 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 148).
72. In that regard, according to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea and arguments which it did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to examining the assessment by the General Court of the pleas argued before it (see, to that effect, Dansk Rørindustri and Others v Commission , paragraph 165, and Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others  v API and Commission  [2010] ECR I‑8533, paragraph 126). That argument must therefore be rejected as inadmissible.
76. According to the Court’s settled case-law, the principle of the protection of legitimate expectations is among the fundamental principles of EU law and any economic operator whom an institution has, by giving him precise insurances, caused to entertain justified expectations may rely on that principle (see, to that effect, Case C‑369/09 P ISD Polska and Others v Commission [2011] ECR I‑2011, paragraphs 122 and 123, and Case C‑335/09 P Poland  v Commission [2012] ECR I‑0000, paragraph 180).
78. Furthermore, the Court has already had occasion to explain that the Commission cannot, in the phase of the procedure prior to the adoption of the final decision, give any precise assurance as to any reduction of, or immunity from, fines (see, to that effect, Case C‑511/06 P Archer Daniels Midland  v Commission [2009] ECR I‑5843, paragraph 118). Thus, the General Court was correct in concluding that the appellants could not entertain a legitimate expectation in that regard.
83. In that regard, it should first be observed that, although a contention such as that contained in the fourth ground of appeal – according to which the General Court misinterpreted the wording of the 2002 Leniency Notice – may have an impact on the findings of fact made by the General Court, it is, contrary to what is maintained by the Commission, a point of law amenable, as such, to review by the Court of Justice (see, to that effect, Quinn Barlo and Others v Commission , paragraph 37).
85. In so far as the 2002 Leniency Notice describes the criteria that the Commission requires to be taken into account in assessing an undertaking’s cooperation, the notice sets out rules of practice from which the administration may not depart in an individual case without giving reasons compatible with the principle of equal treatment (see, by analogy, Schindler Holding and Others  v Commission , paragraph 67 and the case-law cited).
93. In any event, even though the General Court referred, in paragraph 179 of the judgment under appeal, to the question whether the Commission ‘manifestly’ went beyond the bounds of its margin of assessment, the reference to such a question did not prevent the General Court, as can be seen in particular from paragraph 88 of the present judgment, from carrying out the full and unrestricted review, in law and in fact, required of it (see, to that effect, inter alia, Chalkor  v Commission , paragraph 82).
97. The principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified (see, to that effect, inter alia, Case C‑127/07 Arcelor Atlantique and Lorraine and Others  [2008] ECR I‑9895, paragraph 23 and the case-law cited).