Appeal brought on 28 September 2011 by Schindler Holding Ltd, Schindler Management AG, Schindler SA, Schindler Sàrl, Schindler Liften BV and Schindler Deutschland Holding GmbH against the judgment of the General Court (Eighth Chamber) delivered on 13 July 2011 in Case T-138/07 Schindler Holding Ltd and Others v European Commission, supported by the Council of the European Union
(Case C-501/11 P)
Language of the case: German
Parties
Appellants: Schindler Holding Ltd, Schindler Management AG, Schindler SA, Schindler Sàrl, Schindler Liften BV, Schindler Deutschland Holding GmbH (represented by: R. Bechtold and W. Bosch, Rechtsanwälte, and Professor Dr J. Schwarze)
Other parties to the proceedings: European Commission, Council of the European Union
Form of order sought
1. set aside the judgment of the General Court (Eighth Chamber) of 13 July 2011 in Case T-138/07;
2. annul the decision of the Commission of 21 February 2007 (COMP/E-1/38.823 - lifts and escalators),
in the alternative, annul or reduce the fine imposed on the appellants in that decision;
3. in the alternative to points 1 and 2 above, refer the matter back to the General Court for judgment in accordance with the legal appraisal in the judgment of the Court of Justice;
4. in any event, order the Commission to pay the appellants' costs of the proceedings before the General Court and the Court of Justice.
Pleas in law and main arguments
The appellants raise a total of 13 pleas in law in support of their appeal:
First, the General Court has infringed the principle of separation of powers and the requirement for proceedings governed by the rule of law, in that it takes the view that the Commission has the power to impose fines, without the General Court itself having examined the decision of the Commission in its entirety.
Second, the General Court has infringed the principle of the direct adduction of evidence, in that it regarded evidence from cooperative witnesses as admissible, in accordance with the practice of the Commission at that time.
Third, the General Court has infringed the principle of legality (Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; 'the ECHR'), in that it has regarded Article 23(2) of Regulation No 1/2003
1 as being a sufficiently precise legal basis for the imposition of fines.
Fourth, the General Court has disregarded the fact that the Commission's 1998 Guidelines for fines are ineffective due to the Commission's lack of competence.
Fifth, the General Court has wrongly denied that the Commission's 1998 Guidelines for fines infringe the principles of non-retroactivity and protection of legitimate expectations.
Sixth, the General Court has infringed the principle of fault and the presumption of innocence (Article 27(2) of Regulation No 1/2003; Article 48(1) of the Charter of Fundamental Rights of the European Union ('the Charter'); Article 6(2) of the ECHR), in that it has failed to consider that attribution to the undertakings concerned of the infringement through employees was necessary or did not investigate that issue.
Seventh, the General Court has wrongly found that Schindler Holding was jointly liable. In that connection, the principles on joint liability of the parent company that were applied fall within the powers of the Member States. Furthermore, the General Court has also exceeded the limits laid down in case-law of the Court of Justice and infringed the principle of the presumption of innocence (Article 48(1) of the Charter and Article 6(2) of the ECHR).
Eighth, the General Court has unlawfully regarded the ceilings in Article 23(2) of Regulation No 1/2003 as not having been exceeded.
Ninth, the right to property of Schindler Holding has been infringed, since the fixing of the fine has the effect of an expropriation (Article 17(1) of the Charter; Article 1 of the First Additional Protocol to the ECHR).
Tenth, the General Court has erred in law by regarding the excessive basic amounts adopted by the Commission as justified.
Eleventh, the General Court has wrongly approved the non-acceptance by the Commission of certain circumstances as mitigating factors. In so doing, the General Court disregarded in particular the voluntary termination of the cartel in Germany and the appellants' compliance measures.
Twelfth, the General Court has regarded the discounts for cooperation, applied at too low a rate or wrongly not included by the Commission, as justified. In so doing, it disregards the contributions of the appellants. It also disregards the fact that the Commission unlawfully allowed reductions for cooperation outside the leniency notice which were too low.
Thirteenth, the General Court has infringed the principle of proportionality, in that it has regarded the amount of the fines as acceptable.
____________1 - Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).