Kone Oyj and Others v European Commission.

• Jurisdiction: European Union
• Celex Number: 62011CJ0510
• ECLI: ECLI:EU:C:2013:696
• Court: Court of Justice (European Union)
• Docket Number: C‑510/11
• Date: 24 October 2013
• Procedure Type: Recurso de casación - infundado

JUDGMENT OF THE COURT (Tenth Chamber)

24 October 2013 (*)

(Appeal – Competition – Agreements, decisions and concerted practices – Market for the installation and maintenance of elevators and escalators – Fines – Notice on immunity from fines and reduction of fines in cartel cases – Effective judicial remedy)

In Case C‑510/11 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 September 2011,

Kone Oyj, established in Helsinki (Finland),

Kone GmbH, established in Hanover (Germany),

Kone BV, established in The Hague (Netherlands),

represented by T. Vinje, Solicitor, D. Paemen, avocat, and A. Tomtsis, dikigoros,

appellants,

the other party to the proceedings being:

European Commission, represented by E. Gippini Fournier and R. Sauer, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Tenth Chamber),

composed of A. Rosas (Rapporteur), acting as President of the Tenth Chamber, D. Šváby and C. Vajda, Judges,

Advocate General: J. Kokott,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 14 March 2013,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By their appeal, Kone Oyj, Kone GmbH and Kone BV (together referred to as ‘the Kone group’ or ‘the appellants’) seek to have set aside the judgment of the General Court of the European Union of 13 July 2011 in Case T‑151/07 Kone and Others v Commission [2011] ECR II‑5313 (‘the judgment under appeal’), by which the General Court dismissed their action 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 decision at issue’), a summary of which was published in the Official Journal of the European Union (OJ 2008 C 75, p. 19), or, in the alternative, for reduction of the fines imposed on them.

Legal framework

Regulation (EC) No 1/2003

2 Under Article 23(2)(a) 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), which replaced Article 15(2) 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), the European Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently, they infringe Article 81 EC or Article 82 EC.

3 In accordance with Article 31 of Regulation No 1/2003, the Court of Justice is to have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.

The 2002 Leniency Notice

4 The Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the 2002 Leniency Notice’) sets out the conditions under which undertakings cooperating with the Commission during an investigation it is carrying out into a cartel may be exempted from fines, or may be granted reductions in any fine which would otherwise have been imposed on them.

5 Points 8 to 12 of the 2002 Leniency Notice, which are in Section A thereof, headed ‘Immunity from Fines’, state:

‘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.

9. Immunity pursuant to point 8(a) will only be granted on the condition that the Commission did not have, at the time of the submission, sufficient evidence to adopt a decision to carry out an investigation in the sense of Article 14(3) of Regulation No 17 in connection with the alleged cartel.

10. Immunity pursuant to point 8(b) will only be granted on the cumulative conditions that the Commission did not have, at the time of the submission, sufficient evidence to find an infringement of Article 81 EC in connection with the alleged cartel and that no undertaking had been granted conditional immunity from fines under point 8(a) in connection with the alleged cartel.

11. In addition to the conditions set out in points 8(a) and 9 or in points 8(b) and 10, as appropriate, the following cumulative conditions must be met in any case to qualify for any immunity from a fine:

(a) the undertaking cooperates fully, on a continuous basis and expeditiously throughout the Commission’s administrative procedure and provides the Commission with all evidence that comes into its possession or is available to it relating to the suspected infringement. In particular, it remains at the Commission’s disposal to answer swiftly any request that may contribute to the establishment of the facts concerned;

(b) the undertaking ends its involvement in the suspected infringement no later than the time at which it submits evidence under points 8(a) or 8(b), as appropriate;

(c) the undertaking did not take steps to coerce other undertakings to participate in the infringement.

…

12. An undertaking wishing to apply for immunity from fines should contact the Commission’s Directorate-General for Competition. Should it become apparent that the requirements set out in points 8 to 10, as appropriate, are not met, the undertaking will immediately be informed that immunity from fines is not available for the suspected infringement.

...

15. Once the Commission has received the evidence submitted by the undertaking under point 13(a) and has verified that it meets the conditions set out in points 8(a) or 8(b), as appropriate, it will grant the undertaking conditional immunity from fines in writing.’

6 Points 20 to 23 of the 2002 Leniency Notice, which are in Section B thereof, headed ‘Reduction of a fine’, provide:

‘20. Undertakings 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.

21. In 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.

22. 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.

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...