ORDER OF THE COURT (Sixth Chamber)
15 June 2012 (*)
(Appeals – Competition – Agreements, decisions and concerted practices – Market for the installation and maintenance of elevators and escalators – Fines – Parent company and subsidiaries – Imputability of the unlawful conduct)
In Case C‑494/11 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 September 2011,
Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, established in Howald (Luxembourg),
Otis SA, established in Dilbeek (Belgium),
Otis GmbH & Co. OHG, established in Berlin (Germany),
Otis BV, established in Amersfoort (Netherlands),
Otis Elevator Company, established in Farmington (United States),
represented by A. Winckler and D. Gerard, lawyers, and by J. Temple Lang and C. Cook, Solicitors,
appellants,
the other party to the proceedings being:
European Commission, represented by A. Bouquet, R. Sauer and J. Bourke, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of U. Lõhmus, President of the Chamber, A. Rosas (Rapporteur) and C.G. Fernlund, Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following
Order
1 By their appeal, Otis Luxembourg Sàrl (‘Otis Luxembourg’), formerly General Technic-Otis Sàrl (‘GTO’), Otis SA (‘Otis Belgium’), Otis GmbH & Co. OHG (‘Otis Germany’), Otis BV (‘Otis Netherlands’) and Otis Elevator Company (‘OEC’) request the Court of Justice to set aside the judgment of the General Court of the European Union of 13 July 2011 in Cases T‑141/07, T‑142/07, T‑145/07 and T‑146/07 General Technic‑Otis and Others v Commission [2011] ECR II‑0000 (‘the judgment under appeal’), by which the General Court dismissed their respective actions seeking 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 amounts of the fines imposed on them by that decision.
Legal context
2 The Commission Notice entitled ‘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’ (OJ 1998 C 9, p. 3) (‘the 1998 Guidelines’) was applicable at the time the contested decision was adopted.
3 Under point 1 of the 1998 Guidelines, ‘[t]he basic amount [of the fine] will be determined according to the gravity and duration of the infringement, which are the only criteria referred to in Article 15(2) of [Council] Regulation No 17 [of 6 February 1992: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87)]’.
4 With regard to gravity, Section 1.A of the 1998 Guidelines provides that in assessing the criterion of 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.
5 Infringements are put into one of three categories: minor infringements, serious infringements and very serious infringements.
6 In relation to minor infringements, the 1998 Guidelines provide that ‘[t]hese might be trade restrictions, usually of a vertical nature, but with a limited market impact and affecting only a substantial but relatively limited part of the Community market’.
7 In relation to serious infringements, the 1998 Guidelines provide that ‘these will more often than not be horizontal or vertical restrictions of the same type as above, but more rigorously applied, with a wider market impact, and with effects in extensive areas of the common market’.
8 In relation to very serious infringements, the 1998 Guidelines provide that ‘these will generally be horizontal restrictions such as price cartels and market-sharing quotas, or other practices which jeopardise the proper functioning of the single market, such as the partitioning of national markets and clear-cut abuse of a dominant position by undertakings holding a virtual monopoly’.
9 The third and fourth paragraphs of Section 1.A of the 1998 Guidelines also provide:
‘Within each of these categories, and in particular as far as serious and very serious infringements are concerned, the proposed scale of fines will make it possible to apply differential treatment to undertakings according to the nature of the infringement committed.
It will also be necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect.’
10 The Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) provides in particular that the Commission of the European Communities may grant an undertaking immunity from any fine when the undertaking is the first to submit evidence enabling investigations to be carried out or an infringement of Article 81 EC to be found. The Notice also states that undertakings that do not meet the conditions for immunity from any fine may be eligible to benefit from a reduction of the fine in certain circumstances.
11 Under point 21 of the 2002 Leniency Notice, in order to qualify for such a reduction, an undertaking must in particular provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in its possession.
12 Point 22 of the notice states that ‘[t]he 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’.
13 Point 23(b) of the notice provides for the various reductions from which the undertakings may benefit on the basis of the order in which they provided information. The last paragraph of point 23 is worded as follows:
‘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.’
Background to the dispute
14 In the contested decision, the Commission held that the following companies had infringed Article 81 EC:
– Kone Belgium SA, Kone GmbH, Kone Luxembourg Sàrl, Kone BV Liften en Roltrappen and Kone Oyj;
– Otis Belgium, Otis Germany, GTO, Otis Netherlands and OEC (referred to collectively as the ‘Otis subsidiaries’) as well as General Technic Sàrl (‘GT’) and United Technologies Corporation (‘UTC’), UTC forming a group with the Otis subsidiaries (‘the Otis group’);
– Schindler SA, Schindler Deutschland Holding GmbH, Schindler Sàrl, Schindler Liften BV and Schindler Holding Ltd;
– ThyssenKrupp Liften Ascenseurs NV, ThyssenKrupp Aufzüge GmbH, ThyssenKrupp Fahrtreppen GmbH, ThyssenKrupp Elevator AG, ThyssenKrupp AG, ThyssenKrupp Ascenseurs Luxembourg Sàrl and ThyssenKrupp Liften BV; and
– Mitsubishi Elevator Europe BV (‘MEE’).
15 UTC is a world leader in the building systems and aerospace industries. OEC is a wholly-owned subsidiary of UTC which is based in the United States and carries out its activities in the elevator and escalator sector through national subsidiaries. Those subsidiaries include, in Belgium, Otis Belgium, in Germany, Otis Germany, in Luxembourg, GTO, and, in the Netherlands, Otis Netherlands. At the time of adoption of the contested decision, Otis Belgium had a 75% stake in GTO, the remaining 25% being held by GT (recitals 21 to 26 of the contested decision).
16 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 among themselves 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).
17 As regards the addressees of the contested decision, the Commission considered that, apart from 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 decisive influence on the subsidiaries’ commercial policy during the time 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, however, were not held jointly and severally liable for their subsidiary’s conduct because it could not be established that they had exercised decisive influence over its conduct (recital 643 of the contested decision).
18 In calculating the amount of the fines, the Commission applied, in the contested decision, the method set out in the 1998 Guidelines. It also considered whether, and to what extent, the undertakings concerned satisfied the requirements set by the 2002 Leniency Notice.
19 In Article 1 of the contested decision, the Commission set out the infringements found in respect of each undertaking and the duration of their participation. With regard to the infringements committed by the appellants in Germany and Luxembourg, covered by the appeal, Article 1 of the decision states:
‘…
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:
...
– Otis: [UTC], [OEC] and [Otis Germany]: 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:
...
– Otis: [UTC], [OEC], [Otis Belgium], [GTO] and [GT]: from 7 December 1995 to 9 March 2004;
– ...’
20 With regard to the infringements committed by the appellants in Germany and Luxembourg, covered by the appeal, Article 2 of the contested decision states:
‘…
2. For the infringement in Germany referred to in Article 1(2), the following fines are imposed:
...
– Otis: [UTC], [OEC] and [Otis Germany], jointly and severally: EUR 159 043 500;
– ...
3. For the infringement in Luxembourg referred to in Article 1(3), the following fines are imposed:
– ...
– Otis: [UTC], [OEC], [Otis Belgium], [GTO] and [GT], jointly and severally: EUR 18 176 400;
– ...’
Proceedings before the General Court and the judgment under appeal
21 Four actions were brought before the General Court, the first by GTO (T‑141/07), the second by GT (T‑142/07), the third by Otis Belgium, Otis Germany, Otis Netherlands and OEC (T‑145/07) and the fourth by UTC (T‑146/07). Those cases were the subject of separate written and oral procedures. However, after hearing the parties’ views in that regard, the General Court decided to join those cases for the purposes of the judgment, pursuant to Article 50 of the Rules of Procedure of the General Court.
22 The applicants at first instance put forward, in total, eight pleas in law. The first alleged infringement of the principles governing the attribution of liability for infringements of Article 81 EC, of the presumption of innocence, of the principle that penalties must be specific to the offender, of the principle of equal treatment, of the rights of the defence and of Article 253 EC in relation to the imputation to the parent companies of infringements committed by their various subsidiaries. The second alleged breach of the 1998 Guidelines and infringement of the principles of proportionality and equal treatment, of the rights of the defence and of Article 253 EC in the determination of the starting amounts of the fines according to the gravity of the infringements. The third, advanced solely by Otis Belgium, Otis Germany, Otis Netherlands and OEC, alleged breach of the 1998 Guidelines and infringement of the principle of proportionality in the determination of the starting amount of the fine by reference to the duration of the infringement in Germany. The fourth, put forward by Otis Belgium, Otis Germany, Otis Netherlands, OEC and UTC, alleged breach of the 1998 Guidelines and infringement of the principle of proportionality in the application of a group multiplier for deterrence in the determination of the starting amounts of the fines. The fifth, advanced by GTO, Otis Belgium, Otis Germany, Otis Netherlands and OEC, alleged breach of the 2002 Leniency Notice and infringement of Article 253 EC and of the principles of the protection of legitimate expectations, proportionality, fairness, equal treatment and of the rights of the defence in the assessment of their cooperation. The sixth, also advanced by GTO, Otis Belgium, Otis Germany, Otis Netherlands and OEC, alleged infringement of the principles of the protection of legitimate expectations and proportionality in the determination of the reduction of the fines granted for cooperation outside the 2002 Leniency Notice. The seventh, again put forward by GTO, Otis Belgium, Otis Germany, Otis Netherlands and OEC, alleged infringement of Article 23(2) 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). Finally, the eighth plea, advanced by GTO, alleged infringement of the principle of proportionality in the calculation of the final amount of the fines.
23 After rejecting each of those pleas in law, the General Court dismissed each of the actions and ordered the applicants at first instance to pay the costs.
Forms of order sought
24 The appellants claim that the Court should:
– set aside the judgment under appeal;
– based on the elements available to it, partially annul the contested decision and reduce the amount of the fines set forth therein or, as it finds appropriate, set aside the judgment under appeal and refer the case back to the General Court for reconsideration of the relevant elements of fact; and
– order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.
25 The Commission contends that the Court should:
– dismiss the appeal in its entirety;
– in the alternative, dismiss the application for annulment of the contested decision; and
– order the appellants to pay the costs.
The appeal
26 Under Article 119 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal in whole or in part by reasoned order.
27 The appellants raise three grounds of appeal. By the first ground of appeal, they challenge the conclusion in the judgment under appeal that the Commission was entitled to attribute to Otis Belgium liability for the infringement committed in Luxembourg by GTO. By the second ground of appeal, they maintain that the judgment under appeal contains errors of law in upholding the calculation of the starting amount of the fines imposed for the infringement in Germany. By the third ground of appeal, they maintain that in the judgment under appeal the General Court made errors of law and exceeded its jurisdiction in denying the Otis group the benefit of ‘partial immunity’ under the last paragraph of point 23(b) of the 2002 Leniency Notice.
First ground of appeal: concerning the conclusion in the judgment under appeal that the Commission was entitled to attribute liability to Otis Belgium for the infringement committed in Luxembourg by GTO
28 This ground of appeal concerns in essence paragraphs 49 to 62, 91 to 95, 106 to 120 and 130 to 132 of the judgment under appeal.
29 Paragraphs 49 to 62 of the judgment under appeal comprise the General Court’s preliminary observations on the concept of ‘undertaking’ in competition law, on the treatment of relations between a parent company and its subsidiaries and, more particularly, the possibility of imputing to a parent company the unlawful conduct of its subsidiary.
30 In paragraphs 91 to 95 of the judgment under appeal, the General Court summarised recitals 622 to 626 of the contested decision. In paragraphs 106 to 120 of the judgment, it considered whether the Commission had established that Otis Belgium, OEC and UTC were to be held liable for the infringement committed by GTO. It noted in particular, in paragraph 110 of its judgment, that the Commission did not rely merely on the shareholdings of Otis Belgium and, indirectly, OEC and UTC in their subsidiary for the purpose of finding them liable but [confidential]. In order to answer the applicants’ argument that Otis Belgium, OEC and UTC were merely investors and were not in a position to exercise influence over GTO’s commercial policy, the General Court considered, in paragraphs 112 and 113 of the judgment under appeal, the powers of the board under Article 8 of GTO’s articles of association and under a number of the company’s documents. In paragraphs 116 and 117 of the judgment under appeal, the General Court compared those powers with those of the person responsible for day-to-day management. In paragraph 118 of the judgment under appeal, the General Court concluded that the Commission was fully entitled to hold, in recital 622 of the contested decision, that all major decisions within GTO had to be taken with a majority of 80% of the votes and that accordingly during the period of the Luxembourg infringement, GTO operated under the joint control of Otis Belgium and GT and that GTO’s commercial policy was determined by the common agreement of its two shareholders. Consequently, the Commission was entitled to conclude that Otis Belgium and GT should be held liable for the infringement of GTO in Luxembourg.
31 In response to the applicants’ argument that there had been an infringement of the principle of equal treatment in relation to MEE, the General Court noted, in paragraph 130 of the judgment under appeal, that the applicants were relying on the articles of association of MEE, whilst those articles did not form part of the Commission’s file and were not included with the originating application, and were arguing that the Commission had correctly considered the control exercised over MEE by its parent companies Mitsubishi Electric Corporation and TBI Holding not to be sufficient for the infringement committed by their subsidiary to be imputed to them. In paragraph 131 of the judgment under appeal, the General Court stated that, as it established in paragraphs 106 to 118 of that judgment, the Commission was entitled to hold, in recital 622 of the contested decision, that, during the period of the infringement in Luxembourg, GTO operated under the joint control of Otis Belgium and GT and that the commercial policy of GTO was determined by the common understanding of its two shareholders. In paragraph 132 of the judgment under appeal, the General Court concluded that, since the situations of MEE and GTO were not comparable, the complaint alleging infringement of the principle of equal treatment could not succeed.
32 There are four parts to the first ground of appeal. The Court will consider the first three parts together and then consider the fourth part.
First three parts of the first ground of appeal
– Arguments of the parties
33 By the first part of this ground of appeal, it is claimed that the General Court made an error of law in its application of the conditions set out by the Court of Justice in Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237 (‘Akzo’) concerning the concept of ‘single undertaking’, which a parent company has to meet in order to rebut the presumption that it is liable for the actions of its subsidiaries when it holds 100% of those subsidiaries’ capital. According to the appellants, it follows from Akzo that a parent company can be held jointly and severally liable for the actions of its subsidiary only if it is established that the parent has exercised decisive influence over the conduct of the subsidiary on the market. The appellants assert that there cannot be a system of objective liability in which liability for the conduct of a subsidiary is automatically imputed to its parent company. They submit in that regard that, in accordance with Articles 52 and 53 of the Charter of Fundamental Rights of the European Union, any limitation on fundamental principles, including that of personal responsibility, must be interpreted strictly.
34 In the present case, Otis Belgium held only 75% of GTO, so that the Commission should have established Otis Belgium’s personal involvement in the infringement or, as a minimum, that it exerted decisive influence over GTO’s conduct on the market. In finding that Otis Belgium was, however, to be held liable for GTO’s infringement in Luxembourg without closely examining the extent of Otis Belgium’s decision-making power with regard to GTO, the General Court made an error of law.
35 By the second part of this ground of appeal, the appellants maintain that the General Court exceeded its competence in relying on evidence that was not referred to either in the contested decision or in the Commission’s file. In support of this part of the plea, the appellants thus cite GTO’s articles of association, which were submitted to the General Court as a document in Annex 5 to the originating application, and the minutes of the board meetings, mentioned in paragraph 117 of the judgment under appeal, which were provided to the General Court in annexes to replies to written questions put to GTO on 28 May 2009 by way of measures of organisation of procedure.
36 By the third part of the first ground of appeal, the appellants submit that the General Court, on the one hand, wrongly characterised the nature and scope of the legal links between GTO and Otis Belgium and, on the other, wrongly assessed the facts. They claim, in that regard, that the General Court misinterpreted GTO’s statutes, the 1987 and 1995 management agreements and the minutes of GTO’s board meetings which are referred to in paragraph 117 of the judgment under appeal.
37 In response to the first part of this ground of appeal, the Commission asserts that, in paragraphs 53 to 58 of the judgment under appeal, the General Court correctly stated the legal test for imputing to a parent company the actions of its subsidiary, as that test is set out in Akzo. It submits, in that regard, that the appellants reading of that judgment is incorrect in that they concentrate on the influence which the parent company exercises over the conduct of its subsidiary on the market, while the correct test concerns rather the decisive influence which the parent company exercises over the subsidiary’s commercial policy, which policy is not based solely on conduct on the market and must also depend on all factors relating to economic, organisational and legal links between the legal entities. The Commission submits, moreover, that the appellants are challenging the General Court’s factual assessments.
38 In response to the second part of this ground of appeal, the Commission contends that the evidence whose use by the General Court is challenged was provided by the appellants themselves in order to support their case. It argues that the General Court was entitled and even required to examine that evidence and that it adds no new reasoning to the decision.
39 The Commission considers the third part of this ground of appeal to be inadmissible since the appellants are reopening factual assessments made by the General Court.
– Findings of the Court
40 As the Commission has pointed out, the appellants do not deny that the parent companies of a joint venture can be held responsible for the involvement of the joint venture in a cartel infringement; nor do they dispute that the test set out in Akzo is, in principle, applicable to the parent companies of joint ventures.
41 In paragraphs 52 to 61 of its judgment, the General Court, without making an error of law, recalled the case-law setting out the test for imputing to a parent company the competition infringement committed by its subsidiary, as the Court of Justice has applied it in a number of its recent judgments (Case C‑90/09 P General Química and Others v Commission [2011] ECR I‑0000, paragraphs 37 and 38; Case C‑520/09 P Arkema v Commission [2011] ECR I‑0000, paragraphs 38 and 39; and Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑0000, paragraphs 54 and 55).
42 In paragraph 56 of the judgment under appeal, the General Court thus observed that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently on 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. As the Commission points out, the expression ‘conduct on the market’ must not be interpreted narrowly but rather as relating to the company’s commercial strategy (Akzo, paragraph 61). Support for that interpretation is drawn from the reference to the economic, organisational and legal links which tie those two legal entities.
43 The fact that a subsidiary is not wholly owned by a parent company does not exclude the possible existence of an economic unit, in the competition law sense (Case C‑407/08 P Knauf Gips v Commission [2010] ECR I‑6375, paragraph 82). However, as the General Court observed in paragraph 58 of the judgment under appeal, it is, as a rule, for the Commission to demonstrate, on the basis of factual evidence, including, in particular, any management power one of the undertakings may have with regard to the other, that the parent company exercises a decisive influence over its subsidiary.
44 Contrary to what is maintained by the appellants, the General Court did consider carefully the decision-making power of Otis Belgium over GTO’s commercial policy, more particularly in paragraphs 106 to 118 of the judgment under appeal. As has been described in paragraph 30 of this order, the General Court reviewed the Commission’s analysis and conclusions and determined whether the documents which had been submitted to it by the appellants refuted or supported the contested decision. It concluded that the Commission had not made an error of law.
45 In that regard, it is to be noted that, by the first part of this ground of appeal, the appellants also complain that the General Court did not undertake a sufficiently precise examination of the documents which they had submitted to it in the annexes to the application or to the replies to the questions asked. The appellants are thus advancing conflicting arguments.
46 In so far as necessary, the point should be made that the General Court is entitled to examine and use evidence which is submitted to it by the parties. The General Court did not therefore exceed its competence in taking into account in the grounds of its judgment GTO’s articles of association and the minutes of the board meetings.
47 The appellants complain that the General Court misinterpreted the articles of association, misconstrued the scope of the 1987 and 1995 management agreements and manifestly distorted the facts underlying three episodes described in the board minutes of 6 February 1996, 27 March 1998 and 5 March 2004.
48 In relation to the complaint alleging distortion of the facts, it is to be noted that the appellants do not maintain that the findings made by the General Court were manifestly incorrect or that the General Court’s reading or interpretation of the evidence submitted to it was manifestly irreconcilable with the clear and precise wording of that evidence. Indeed, it can be seen from paragraphs 27 to 36 of the appeal that in reality the appellants are merely disputing the General Court’s conclusion as to the decisive nature of the influence of Otis Belgium over GTO. However, a factual conclusion of that kind falls within the exclusive jurisdiction of the General Court, whose role cannot be assumed by the Court of Justice in the review it carries out.
49 In the light of those matters, the General Court did not make an error of law in concluding, in paragraph 118 of the judgment under appeal, that the Commission was fully entitled to hold, in recital 622 of the contested decision, that all major decisions within GTO had to be taken with a majority of 80% of the votes and that accordingly during the period of the Luxembourg infringement, GTO operated under the joint control of Otis Belgium and GT and that GTO’s commercial policy was determined by the common agreement of its two shareholders. It follows that the Commission could legitimately consider that Otis Belgium and GT should be held liable for the infringement of GTO in Luxembourg.
50 Consequently, the first three parts of the first ground of appeal must be rejected as, in the case of the first two parts, clearly unfounded and, in the case of the third part, clearly inadmissible.
Fourth part of the first ground of appeal
– Arguments of the parties
51 By the fourth part of their first ground of appeal, the appellants maintain that the General Court did not state the reasons for its rejection of their plea at first instance which alleged that the Commission had failed to comply with its obligation to treat the parent companies of GTO and MEE equally.
52 The Commission explains that it did not impute responsibility for the infringement by MEE in the Netherlands to MEE’s parent companies since it did not have any evidence showing that the parent companies actually exercised decisive influence over MEE. In its view, the General Court stated sufficient reasons for its decision. It also submits that the principle of equal treatment must be reconciled with the principle of legality, which means that a person cannot rely, in support of an argument based on discrimination, on an unlawful act committed in favour of a third party.
– Findings of the Court
53 The principle of equal treatment, which 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, is a general principle of European Union law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (see, to that effect, Akzo Nobel Chemicals and Akcros Chemicals v Commission [2010] ECR I‑8301, paragraphs 54 and 55).
54 In paragraphs 131 and 132 of the judgment under appeal, the General Court explained why it considered the situations of MEE, a subsidiary of MEC and TBI Holding, on the one hand, and GTO, a subsidiary of Otis Belgium and GT, on the other, not to be comparable. The General Court considered, in essence, that, in the first case, it was not established that the parent companies controlled the subsidiaries, whilst, in the other case, that was established.
55 In describing MEE’s situation, the General Court referred, in paragraphs 130 and 132 of the judgment under appeal, to the arguments which the appellants had put forward in the cases before it, according to which the Commission had, correctly, considered the control exercised over MEE by its parent companies MEC and TBI Holding not to be sufficient for the infringement committed by their subsidiary to be imputed to them.
56 In describing GTO’s situation, the General Court referred, in paragraph 131 of the judgment under appeal, to its own reasoning and to its conclusion that the Commission was entitled to hold, in recital 622 of the contested decision, that, during the period of the infringement in Luxembourg, GTO operated under the joint control of Otis Belgium and GT and that the commercial policy of GTO was determined by the common understanding of its two shareholders.
57 It follows from paragraphs 130 to 132 of the judgment under appeal that the General Court provided reasons that were sufficient in law for holding that the situations of MEE and GTO were different.
58 It follows that the fourth part of the first ground of appeal is clearly unfounded.
Second ground of appeal: concerning the calculation of the starting amount of the fine imposed for the infringement in Germany
59 By the second ground of appeal, the appellants assert that the judgment under appeal contains errors of law in that it upholds the calculation of the starting amount of the fines imposed in respect of the infringements committed in Germany. This ground of appeal is divided into two parts, the first alleging that the 1998 Guidelines were misinterpreted and the second alleging a failure to provide adequate reasoning in the judgment under appeal.
First part of the ground of appeal
– Arguments of the parties
60 By the first part of the second ground of appeal, the appellants maintain that the General Court infringed Section 1.A of the 1998 Guidelines according to which ‘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’. The General Court held, at paragraph 174 of the judgment under appeal, that the Commission is not required, when it sets the general starting amount of the fine, to take into account the size of the market affected. In the appellants’ submission, by definition the relevant market is the market affected by the infringement, which is confirmed by the Commission’s practice of setting the starting amount of the fine to be imposed by reference to the value of the sales related to the infringement. However, the General Court confused the question of the size of the market with that of the actual impact of the infringement on the market and failed to take account of the size of the market affected.
61 The Commission contends that the appellants are distorting the content of the 1998 Guidelines and misrepresent the Commission’s practice in arguing that the Commission relied on sales affected by the infringement in order to determine the starting amount of the fine. As is clear from the 1998 Guidelines and the case-law relating thereto, the size of the relevant market and the actual impact are optional elements, which is explained by the fact that the actual effects of an infringement are often impossible to measure.
– Findings of the Court
62 The appellants complain that the General Court, on the one hand, confused the concept of relevant market and that of impact on the market and, on the other, did not take account of the relevant market.
63 According to the first paragraph of Section 1.A of the 1998 Guidelines, in assessing the gravity of the infringement, account must be taken of its nature, its actual impact in the market, where this can be measured, and the size of the relevant geographic market.
64 According to the 1998 Guidelines, the actual impact of the infringement on the market and the size of the relevant geographic market are two distinct elements which must be taken into account in order to determine the level of gravity of the infringement. Thus, those guidelines regard as minor infringements, by way of example, trade restrictions with a limited market impact, affecting only a substantial but relatively limited part of the Community market. Similarly, the definition of serious infringements refers to those two elements since it is directed at infringements with a wider market impact and with effects in extensive areas of the common market.
65 As the Court of Justice has already held, it is not always possible to determine the actual impact of a cartel on the market since that requires a comparison of the market situation resulting from the cartel with that which would have resulted from free competition. Such a comparison necessarily involves recourse to assumptions, given the multiplicity of variables capable of having an impact on the market (Case C‑272/09 P KME Germany and Others v Commission [2011] ECR I‑0000, paragraph 31).
66 With regard to the goods or services markets covered by the cartel, the General Court did not make an error of law in recalling, in paragraph 168 of the judgment under appeal, the case-law of the Court of Justice according to which 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 and setting the amount of the fine (Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 132, and Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 55).
67 In view of the very serious nature of the infringements complained of, nor did the General Court make an error of law when it recalled, in paragraph 174 of the judgment under appeal, the fixed-band approach implicit in the method set out in Section 1.A of the 1998 Guidelines and concluded that the Commission is not required, when it sets the general starting amount of the fine, to take into account the size of the market affected and still less to set that amount according to a fixed percentage of the total turnover on the market.
68 In their appeal, the appellants maintain that paragraphs 183 to 188 and 192 to 195 of the judgment under appeal show that the General Court confused the size of the market with the actual impact of the infringement.
69 It must, however, be stated that the General Court, in paragraph 180 of the judgment under appeal stated that it was not necessary to take into account the size of the relevant market and, in paragraphs 181 to 183 of that judgment, noted that the Commission had not taken account of the actual impact of the infringement on the market since that could not be measured. Furthermore, as is shown in particular by the expression ‘in any event’ at the end of paragraph 184 of the judgment under appeal, the reasoning of the General Court in paragraphs 184 to 188 of the judgment is included for the sake of completeness and thus an objection to such reasoning cannot be a basis for setting the judgment under appeal aside.
70 The same is true of the reasoning in paragraphs 193 to 195 of the judgment under appeal since it is included for the sake of completeness.
71 It follows from the foregoing that the General Court did not infringe the 1998 Guidelines and that the first part of the second ground of appeal is clearly unfounded.
Second part of the ground of appeal
– Arguments of the parties
72 By the second part of this ground of appeal, the appellants claim that the reasoning in the judgment under appeal is inadequate so far as concerns the determination of the size of the market affected and the division of the undertakings concerned into different categories.
73 The appellants criticise, first of all, paragraphs 176, 204, 207 and 208 of the judgment under appeal. They submit that the General Court failed to provide adequate reasoning for its decision when it takes a position on the size of the market affected by the infringement. They take issue with the General Court for referring to the geographic market.
74 The appellants further maintain that the General Court failed to examine their arguments concerning the share held by Otis Germany of the German escalator market as compared with that held by Schindler.
75 The Commission submits that, as can be seen from the contested decision, it had not been possible to determine the actual volume of sales affected; consequently the General Court reviewed the starting amounts of the fines by assessing the relationship between the starting amount and the overall value of the market for the products to which the respective infringements relate, that is to say, for Germany, both escalators and elevators.
76 As regards the second complaint, the Commission maintains that the General Court responded to the parties’ arguments in paragraphs 220 and 221 of the judgment under appeal.
– Findings of the Court
77 With regard to the first complaint, it must be observed that, as has been pointed out in paragraph 66 of this order, the size of the market to which an infringement relates is not, in principle, a factor which must be taken into account, but just one among a number of other factors for evaluating the gravity of the infringement and setting the amount of the fine.
78 The General Court nevertheless responded to the appellants’ arguments on the basis of the premiss they advanced. Although the cartel concerned both escalator and elevator projects, the General Court reviewed the basic amount of the fine, in paragraphs 205 and 206 of its judgment, taking into account the volume of the market affected by the cartel according to the appellants’ approach, namely high-value elevator projects. In that regard, paragraph 206 of the judgment under appeal is a sufficiently reasoned response by the General Court to the appellants’ argument.
79 It is only in paragraph 207 of the judgment under appeal that the General Court referred to the relevant geographic market. It follows that, contrary to what is maintained by the appellants, the General Court did not, in any event, confuse that element with the volume of the market affected.
80 With regard to the appellants’ argument concerning the share of Otis Germany on the German market for escalators as compared with that of Schindler, it is sufficient to observe that the General Court responded, in paragraphs 220 and 221 of the judgment under appeal, to that argument to the required legal standard, stating clearly and precisely the reason why Schindler and Otis Germany should be treated differently.
81 It follows from the foregoing that the second part of this ground of appeal is clearly unfounded.
Third ground of appeal: concerning errors of law made by the General Court in rejecting the claim for partial immunity in respect of the infringement in Germany
82 By the third ground of appeal, the appellants maintain that the judgment under appeal is vitiated by errors of law and by the fact that the General Court exceeded its jurisdiction in failing to grant them ‘partial immunity’, under the last paragraph of point 23(b) of the 2002 Leniency Notice. This ground of appeal is divided into two parts, the first alleging an incorrect application of the test for granting partial immunity and the second alleging an infringement of the obligation to provide reasons referred to in Article 253 EC.
First part of the ground of appeal
– Arguments of the parties
83 By the first part of this ground of appeal, the appellants maintain that the General Court made errors of law in its application of the test for granting ‘partial immunity’. They criticise paragraphs 310 and 311 of the judgment under appeal and maintain that the legal issue was not to know whether the Commission ‘had already been informed’ of the existence of the ‘cartel’ or the ‘infringement’ but whether the Commission would have been able to establish the whole duration of the suspected cartel on the basis of the elements in its possession prior to the Otis group’s leniency application.
84 They also maintain that by referring to the existence of a single and continuous infringement, the General Court infringed point 23(b) of the 2002 Leniency Notice. They also maintain that the reasoning underlying the General Court’s decision to reject evidence produced by the appellants contains a contradiction. Finally, the General Court is alleged to have substituted its own assessment of the evidence submitted by the Otis group for that of the Commission.
85 The Commission recalls the conditions under which the last paragraph of point 23(b) of the 2002 Leniency Notice applies and maintains that those conditions were not met in the present case.
– Findings of the Court
86 The last paragraph of point 23(b) of the 2002 Leniency Notice provides that, ‘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’.
87 In order to determine whether the Commission was justified in holding that the Otis group was not eligible for a reduction in the amount of the fine under that provision, the General Court considered, in paragraph 310 of the judgment under appeal, the evidence which the Commission already had in its possession when the Otis group provided its information.
88 The General Court’s conclusion, at the end of paragraph 311 of the judgment under appeal, that the Commission had already been informed that the cartel had existed since August 1995 is a finding of fact falling within the powers of appraisal of the General Court, whose role is not to be assumed by the Court of Justice.
89 Moreover, the General Court, in paragraph 312 of the judgment, correctly applied the rule that unilateral statements which are not supported by precise and consistent documentary evidence of the infringement are not evidence having a direct bearing on the gravity or duration of the infringement for the purposes of point 23(b) of the 2002 Leniency Notice. Indeed, the evidence provided by an undertaking under point 23(b) of that notice must be sufficiently precise and substantiated to enable the Commission to use it, after verification, in its final decision.
90 Furthermore, the appellants do not establish that the General Court was incorrect in stating that they were not challenging the Commission’s finding of a single and continuous infringement in the elevator and escalator sector. In any event, it is clear from paragraphs 310 to 312 of the judgment under appeal that the Commission had already, prior to the appellants’ leniency application, been informed of the existence of that infringement and of its duration, both as regards the elevator sector and as regards the escalator sector. It follows that the complaint concerning the finding of a single and continuous infringement is ineffective.
91 Finally, having regard to the matters of fact described in paragraphs 311 and 312 of the judgment under appeal, the General Court did not make an error of law in holding, in paragraph 312, that the Otis group’s application in respect of Germany did not contain any evidence having a direct bearing on one of the identifiable elements of the gravity or duration of the infringement. Consequently, nor did it make an error of law in holding, in paragraph 313 of the judgment under appeal, that the last paragraph of point 23(b) of the 2002 Leniency Notice was not applicable.
Second part of the ground of appeal
– Arguments of the parties
92 By the second part of this ground of appeal, the appellants maintain that the General Court wrongly held that the contested decision provided sufficient reasons in so far as it refused to grant the Otis group partial immunity. They criticise in that regard paragraphs 314 to 317 of the judgment under appeal. They maintain that the fact that the Otis group was granted a 25% reduction on account of its overall cooperation with the Commission’s investigation is completely independent of any reduction of the basic amount of the fine based on evidence previously unknown to the Commission.
93 The Commission argues that the test for assessing the reasoning, set out in paragraph 317 of the judgment under appeal, is correct and that the General Court did not make an error of law in considering that the Commission had stated sufficient reasons for its decision.
– Findings of the Court
94 It is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63, and Case C‑403/10 P Mediaset v Commission [2011], paragraph 113).
95 It should be observed that point 23(b), first paragraph, second indent, of the 2002 Leniency Notice concerns evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and which is produced by the second undertaking to provide such evidence, whilst the last paragraph of point 23(b) of the notice concerns evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel.
96 As the General Court stated in paragraph 316 of the judgment under appeal, the Commission concluded, in recitals 795 to 800 of the contested decision, that the Otis group was entitled only to a reduction of 25% of the fine imposed on it.
97 In view of the circumstances of the present case and the explanations in the contested decision, which were reviewed by the General Court in the context of the plea alleging infringement of the 2002 Leniency Notice, the General Court was correct in concluding, in paragraph 316 of the judgment under appeal, that the Otis group’s request that the last paragraph of point 23(b) of the notice be applied was necessarily rejected on the ground that the conditions of that provision were not met or, in other words, that the evidence which had been submitted concerning facts that were previously unknown to the Commission did not have a direct bearing on the gravity or duration of the suspected cartel.
98 It follows that the second part of the ground of appeal is clearly unfounded.
99 Since the three grounds of appeal are clearly unfounded or, in part, clearly inadmissible, the appeal must be dismissed.
Costs
100 Under Article 69(2) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs against the appellants and the latter have been unsuccessful in their pleas, they must be ordered to pay the costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1. The appeal is dismissed.
2. Otis Luxembourg Sàrl, Otis SA, Otis GmbH & Co. OHG, Otis BV and Otis Elevator Company shall pay the costs.
[Signatures]