Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 18 April 2013 (1)

Case C-501/11 P

Schindler Holding Ltd and Others

v

European Commission and Others

(Appeal - Competition - Agreements, decisions and concerted practices - Article 81 EC - Market for the installation and maintenance of elevators and escalators - Liability of the parent company for the cartel offences of its subsidiary - Holding company - Internal compliance programme - Fundamental rights - Principles based on the rule of law in connection with the imposition of fines - Principle of separation of powers, principle that penalties must be clearly defined by law, non-retroactivity, protection of legitimate expectations and principle of fault - Validity of Article 23(2) of Regulation (EC) No 1/2003 - Lawfulness of the 1998 Commission Guidelines)

Table of contents

I - Introduction

II - Background to the dispute

III - Procedure before the Court

IV - Assessment of the appeal

A - The principles of separation of powers, the rule of law and the direct adduction of evidence (first and second pleas in law)

1. The imposition of fines by the Commission in cartel proceedings (first plea in law)

(a)   Preliminary remark

(b)   No fundamental reservations to the imposition of fines by the Commission

(c)   Rebuttal of certain further arguments raised by the appellants

2. The requirements governing the taking of evidence by the General Court in reviewing the Commission’s decisions to impose fines (second plea in law)

(a)   Admissibility

(b)   Merits

3. Interim conclusion

B - The liability of an undertaking for cartel offences committed within its area of responsibility

1. The joint liability of the holding company (seventh plea in law)

(a)   Schindler’s fundamental criticism of the 100% presumption (first part of the seventh plea in law)

(i)   The company-law principle of separation of liability

(ii) The alleged encroachment on the Member States’ competences

(iii) The alleged infringement of the reservation of materiality

(iv) Interim conclusion

(b)   Schindler’s criticism of the specific application of the 100% presumption (second part of the seventh plea in law)

(i)   The importance of Schindler Holding’s ‘compliance programme’

(ii) The need for ‘clarification of corporate relations’

(iii) The notion of ‘commercial policy’ in the context of the 100% presumption

2. The principle of fault (sixth plea in law and parts of the seventh)

(a)   The allegation that the 100% presumption results in strict liability

(b)   The allegation that it is not sufficient that some employees infringed the prohibition on cartels

3. Interim conclusion

C - A few other legal questions in connection with the imposition and calculation of fines for cartel offences

1. Validity of Article 23(2) of Regulation No 1/2003 having regard to the principle that penalties must be clearly defined by law (third plea in law)

(a)   The alleged imprecision of the notion of undertaking (first part of the third plea in law)

(b)   The alleged imprecision in the range of fines (second part of the third plea in law)

(c)   Interim conclusion

2. Lawfulness of the 1998 Guidelines (fourth and fifth pleas in law)

(a)   Competence of the Commission to adopt the Guidelines (fourth plea in law)

(b)   The principles of non-retroactivity and protection of legitimate expectations (fifth plea in law)

3. The basic amount of the fine and the alleged grounds for reducing the fine (tenth, eleventh and twelfth pleas in law)

(a)   The classification of the infringements as ‘very serious’ (tenth plea in law)

(b)   Mitigating circumstances (eleventh plea in law)

(c)   Reductions in the fines for cooperation with the Commission (twelfth plea in law)

(i)   Cooperation in connection with the 2002 Leniency Notice (first part of the twelfth plea in law)

(ii) The cooperation outside the 2002 Leniency Notice (second part of the twelfth plea in law)

(iii) Summary

4. The 10% ceiling for the amount of the fine (eighth plea in law)

5. The right to property (ninth plea in law)

(a)   Preliminary remark

(b)   The alleged infringement of the right to property as a European Union fundamental right

6. The principle of proportionality (thirteenth plea in law)

D - Summary

V - Costs

VI - Conclusion

I -    Introduction

1.        The present case raises a number of fundamental legal questions in connection with the penalisation of cartel offences. Schindler Holding Ltd and several of its subsidiaries (hereinafter also referred to jointly as ‘Schindler’) call into question generally the European Union’s system of antitrust law enforcement, including the institutional role of the Commission as competition authority.

2.        In particular, Schindler has doubts as to the lawfulness of Article 23(2) of Regulation (EC) No 1/2003 and the 1998 Commission Guidelines (2) as bases for the imposition of fines. Furthermore, Schindler refuses to accept the principles, recognised by the European Union courts, relating to the joint liability of parent companies and subsidiaries for cartel offences committed within their area of responsibility.

3.        The abovementioned legal problems arise in connection with the ‘elevator cartel’ which operated in several European Union Member States, which was uncovered by the Commission a few years ago and which was the subject of a decision to impose a fine on 21 February 2007 (also ‘the contested decision’). (3) The Commission alleged that, together with four other undertakings, several companies in the Schindler Group, right up to the holding company at the head of the group, participated in the elevator cartel and imposed fines on them, calculated on the basis of the group’s turnover.

4.        Schindler was unsuccessful in its pleas against the contested decision at first instance; the General Court dismissed its action for annulment by judgment of 13 July 2011 (also ‘the judgment under appeal’ or ‘the judgment of the General Court’). (4) Schindler is now pursuing its claims in appeal proceedings before the Court of Justice and is relying inter alia on its fundamental rights and on principles based on the rule of law, such as the separation of powers, the principle that penalties must be clearly defined by law, non-retroactivity, protection of legitimate expectations and the principle of fault.

II - Background to the dispute

5.        Schindler is one of the largest groups in the world supplying elevators and escalators. Its parent company is Schindler Holding Ltd (‘Schindler Holding’) established in Switzerland. Schindler operates in the elevator and escalator sectors through its national subsidiaries. (5)

6.        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. (6)

7.        The Commission’s extensive investigations eventually led to the conclusion that those manufacturers of elevators and escalators ‘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’. (7) Specifically, this involved the Belgian, the German, the Luxembourg and the Netherlands elevator cartel. The duration of Schindler’s participation in those cartels varied according to the Member State, but was several years in each case. (8)

8.        For each of the four cartel offences, in the contested decision the Commission imposed fines on the undertakings participating in the cartel, the calculation of which was based on its 1998 Guidelines.

9.        In the case of Schindler, Schindler Holding was held jointly and severally liable in each instance together with its national subsidiary. (9) In total, these fines imposed on Schindler for all four infringements amounted to some EUR 143 million.

10.      Several of the addressees of the contested decision sought redress at first instance by way of actions for annulment before the General Court. (10)

11.      As far as the Schindler Group is concerned, Schindler Holding, Schindler Management AG, Schindler SA (Belgium), Schindler Deutschland Holding GmbH (Germany), Schindler Sàrl (Luxembourg) and Schindler Liften BV (Netherlands) jointly brought an action at first instance before the General Court by a written pleading of 4 May 2007.

12.      In its judgment of 13 July 2011, the General Court declared that there was no need to adjudicate on the action in so far as it had been brought by Schindler Management AG. (11) It dismissed the action as to the remainder with an order as to costs.

III - Procedure before the Court

13.      Schindler Holding and all its co-applicants at first instance (also ‘the appellants’) jointly brought the present appeal against the judgment of the General Court by a written pleading of 27 September 2011. They claim that the Court should:

1.      set aside the judgment of the General Court;

2.      annul the Commission Decision;

in the alternative, annul or reduce the fines imposed on the appellants in that decision;

3.      in the alternative to point 1 and point 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; and

4.      in any event, order the Commission to pay the appellants’ costs of the proceedings before the General Court and the Court of Justice.

14.      The Commission contends that the Court should

1.      dismiss the appeal in its entirety, and

2.      order the appellants to pay the costs.

15.      Lastly, the Council, which had intervened in the proceedings at first instance in support of the Commission, claims that the Court should:

1.      dismiss the appeal regarding the plea of unlawfulness in respect of Regulation No 1/2003 and

2.      make an appropriate order as to costs.

16.      The appeal was examined before the Court on the basis of the written documents and at the hearing on 17 January 2013. The Council restricted its observations to the question of the validity of Regulation No 1/2003, which is raised by Schindler above all in the first and third pleas in law.

IV - Assessment of the appeal

17.      The appellants put forward a total of 13 pleas in law, some of which raise very fundamental legal questions in connection with the imposition of fines for cartel offences by the European Commission. These pleas in law should be grouped thematically and, accordingly, examined in a slightly modified order.

A -    The principles of separation of powers, the rule of law and the direct adduction of evidence (first and second pleas in law)

18.      By its first and second pleas in law, Schindler essentially questions the compatibility of the European Union’s system for the penalisation of cartel offences with elementary principles based on the rule of law.

19.      First of all, Schindler takes the view that fines may not be imposed in cartel proceedings by the Commission as an administrative authority, but must be imposed by an independent tribunal (first plea in law, see below, section 1). Second, Schindler criticises the manner in which the Commission and the General Court ascertained the facts, which, in its view, breaches the principle of the direct adduction of evidence (second plea in law, see below, section 2).

1.      The imposition of fines by the Commission in cartel proceedings (first plea in law)

20.      First, in Schindler’s view, it is contrary to the principles of separation of powers and the rule of law if fines are imposed in cartel proceedings at EU level by the Commission as competition authority for the European internal market, and not by an independent tribunal.

(a)    Preliminary remark

21.      Although Schindler refers generally to the principles of separation of powers and the rule of law, its written and oral observations in connection with the first plea in law show that its complaint essentially relates to an infringement of Article 6 ECHR, (12) i.e. an infringement of the right to a fair hearing by an independent and impartial tribunal established by law.

22.      It should be noted in this regard that - contrary to Schindler’s claim to the opposite - Article 6 ECHR does not have direct validity at EU level at present. The Union has not thus far acceded to the ECHR and Article 6(2) TEU still needs to be implemented. (13)

23.      Nevertheless, the fundamental rights enshrined in Article 6 ECHR have considerable practical importance at EU level even now. First of all, they reflect general legal principles which are also recognised in EU law (Article 6(3) TEU) (14) and, second, they constitute a criterion for the interpretation of the provisions of the Charter of Fundamental Rights of the European Union which correspond to them substantively (third subparagraph of Article 6(1) TEU in conjunction with the first sentence of Article 52(3) of the Charter). (15)

24.      Against this background, in responding to the complaints raised by Schindler the importance of Article 6 ECHR and the relevant case-law of the European Court of Human Rights (16) should not be underestimated and I will therefore concentrate my analysis on them. From a formal perspective, however, it is not Article 6 ECHR, as such, that forms the starting point for the examination of the breaches of the principles of separation of powers and the rule of law alleged by Schindler, but Article 47 of the Charter of Fundamental Rights, in particular the second paragraph, and the general principles of Union law within the meaning of Article 6(3) TEU. (17)

(b)    No fundamental reservations to the imposition of fines by the Commission

25.      It is recognised that competition law is similar to criminal law, (18) but is not part of the core area of criminal law. (19)

26.      According to the case-law of the European Court of Human Rights, outside the ‘hard core’ of criminal law the criminal-head guarantees under Article 6 ECHR will not necessarily apply with their full stringency. (20)

27.      With regard to competition law, this means that fines to penalise cartel offences do not necessarily have to be imposed by an independent tribunal, but the relevant power may in principle also be transferred to an administrative authority. The requirements laid down in Article 6 ECHR are satisfied if the undertaking concerned is able to refer any decision on the imposition of a fine in cartel proceedings adopted against it to a judicial body that has full jurisdiction (French: ‘pleine juridiction’). (21)

28.      According to the case-law of the European Court of Human Rights, (22) the court charged with review of decisions to impose fines in cartel proceedings must have the power to ‘quash’ in all respects, on questions of fact and law, the decision by the administrative authority. (23) Contrary to initial impressions, this does not necessarily mean that the court itself must be able to alter (French: ‘réformer’) substantively the decision to impose a fine in every respect. Rather, it is sufficient that the court has jurisdiction to examine all questions of fact and law relevant to the dispute (24) and to annul in all respects the challenged decision. (25)

29.      These requirements are satisfied by the system of legal protection established by the European Union under which the Commission’s decisions to impose fines in competition cases may be challenged by the undertaking concerned. It is the Court’s settled case-law that the European Union courts have two kinds of powers in respect of such decisions: (26)

-        First, the European Union courts conduct a review of legality (first paragraph of Article 263 TFEU). Contrary to first impressions, they are not restricted in this context merely to points of law, but can also establish whether the evidence relied on is factually accurate, reliable and consistent; they are also required to examine whether the evidence relied on by the Commission contains all the information which must be taken into account in order to assess a complex situation, whether it is capable of substantiating the conclusions drawn from it and whether the Commission has stated sufficient reasons for its decision in this regard. The Commission does not have a margin of discretion in this context which is exempt from judicial review. (27)

-        Second, the European Union courts have unlimited jurisdiction with regard to financial penalties (Article 261 TFEU in conjunction with Article 31 of Regulation No 1/2003), which, in order to avoid confusion, should be referred to as ‘pleine juridiction’ (French) or ‘full jurisdiction’ (English) in the strict sense. That jurisdiction empowers the courts, in addition to carrying out a mere review of lawfulness, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. (28)

30.      With regard to decisions to impose fines in cartel proceedings, the European Union courts thus have, both in fact and in law, ‘full jurisdiction’ in the broader sense, as required by the second paragraph of Article 47 of the Charter of Fundamental Rights, interpreted and applied in the light of Article 6 ECHR and the case-law of the European Court of Human Rights. (29)

31.      The objection raised by Schindler that ‘according to current practice’ the Commission’s decisions in cartel proceedings are not subject to full judicial review is no more than a mere assertion, which was not substantiated at all with regard to the present case. (30) In reality, the General Court followed up all the factual aspects raised by Schindler in the proceedings at first instance and examined them in detail.

32.      All in all, the complaint, based on Article 6 ECHR, of a breach of the principle of separation of powers and the rule of law on account of the imposition of fines in cartel proceedings by the Commission is therefore unfounded.

(c)    Rebuttal of certain further arguments raised by the appellants

33.      The appellants claim that, in view of the sheer size of the fines imposed in cartel proceedings at EU level, the Commission is encroaching on the ‘hard core’ of criminal law in which the imposition of penalties is reserved for independent tribunals under Article 6 ECHR.

34.      That argument cannot be upheld. The question whether a subject is part of the ‘hard core’ of criminal law within the meaning of Article 6 ECHR cannot be assessed solely on the basis of the level of the penalties imposed, especially if the size and capacity of the undertakings concerned is ignored and only the nominal financial amounts are discussed.

35.      It is important to adopt not only a quantitative approach, but also, crucially, a qualitative approach to the penalties imposed. Schindler also fails to recognise that penalties imposed in cartel proceedings at EU level - regardless of their nominal amount - always apply to undertakings. Regulation No 1/2003 does not provide for criminal or quasi-criminal penalties against natural persons, and in particular penalties involving detention. All these factors represent a considerable qualitative difference to the ‘hard core’ of criminal law, to which the European Court of Human Rights appears to allude in its case-law. (31)

36.      Furthermore, the appellants consider that it can be inferred from the case-law of the European Court of Human Rights that outside the sphere of ‘minor offences’ and ‘mass actions’ transferring the power to impose penalties to an administrative authority is not consistent with the requirements laid down in Article 6 ECHR. (32)

37.      In this regard it is sufficient to observe that, according to the most recent case-law of the European Court of Human Rights, the imposition of a fine at a high level by a competition authority in cartel proceedings does not constitute an infringement of Article 6 ECHR. (33) Schindler’s representatives also had to concede this at the hearing before the Court.

38.      I would add that the imposition of fines for cartel offences by competition authorities is a perfectly common tradition, in continental Europe at least.

39.      Lastly, the appellants take the view that the Treaty of Lisbon requires a reassessment of the question whether fines may be imposed in cartel proceedings by the Commission as competition authority.

40.      This argument is also untenable, however. First of all, the lawfulness of the contested decision, which was adopted before the entry into force of the Treaty of Lisbon, must be assessed with reference to the prevailing legal situation at that time. Second, with the entry into force of the Treaty of Lisbon on 1 December 2009 the applicable requirements as regards fundamental rights have not changed substantially. It is true that that Treaty has now elevated the Charter of Fundamental Rights to the status of binding EU primary law and prescribed that the Charter and the Treaties have the same legal value (first subparagraph of Article 6(1) TEU). However, the substance of the fundamental right to an effective remedy and an impartial tribunal, which is recognised at EU level, is influenced strongly by Article 6(1) ECHR and by the case-law of the European Court of Human Rights and the European Union courts on this subject. The Treaty of Lisbon has not significantly changed the substance of that fundamental right. (34)

41.      Certainly, under the second sentence of Article 52(3) of the Charter of Fundamental Rights it is possible for EU law to go beyond the standard set in the ECHR. However, the authors of the Treaty made clear that the provisions of the Charter must not modify in any way the competences and duties as defined in the Treaties (second subparagraph of Article 6(1) TEU in conjunction with Article 51(2) of the Charter). Accordingly, fundamental rights contained in the Charter, including the right to an effective remedy and an impartial tribunal under Article 47 of the Charter, cannot be invoked in support of a fundamental modification of the distribution of competences between the European Commission as the competition authority for the European internal market and the Court of Justice of the European Union as the judicial review body.

2.      The requirements governing the taking of evidence by the General Court in reviewing the Commission’s decisions to impose fines (second plea in law)

42.      In addition to their fundamental criticism of the institutional role played by the Commission in the imposition of fines for cartel offences, the appellants allege a breach of the principle of the direct adduction of evidence. They allege that neither the Commission nor the General Court ascertained the facts in the present case through a ‘direct adduction of evidence’. In particular, the Commission relied only on written evidence, but not on witness statements given by natural persons. Furthermore, cooperative witnesses were not examined under an obligation to tell the truth and in the presence of all parties. This, in their view constitutes an infringement of Article 6(1) and (3)(d) ECHR. (35) The General Court has the duty, as required by the rule of law, to make its own findings of fact in cases like the present one.

(a)    Admissibility

43.      The Commission questions whether this plea in law is admissible. A distinction must be drawn in analysing this objection.

44.      In so far as Schindler alleges that the Commission based its reasoning on the written statements by cooperative witnesses, which were not further verified, its claim is inadmissible. As the Commission rightly observes, this is a new plea which had not been put forward in this form before the General Court. At first instance, Schindler had highlighted other legal aspects of the evidence from cooperative witnesses, (36) but not the failure to verify the statements given by cooperative witnesses on which it is now concentrating its arguments. Schindler thus extends the subject-matter of the present case compared with the proceedings at first instance in an inadmissible way. (37)

45.      The situation is different as regards Schindler’s further claim that the General Court also breached the principle of the direct adduction of evidence in its review of the contested decision. With this complaint, Schindler specifically criticises the judgment under appeal, which it is naturally not able to do until the appeal stage. In so far as it concerns the approach taken by the General Court with regard to questions of evidence, the second plea in law is thus admissible.

(b)    Merits

46.      In substance, however, Schindler’s arguments are not convincing.

47.      Direct actions before the European Union courts are shaped by the principle that the subject-matter of a case is delimited by the parties and the principle that the parties determine the facts and evidence forming the basis for a decision. What the applicant may be required to do 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. (38)

48.      As the appellants had to concede at the hearing before the Court, at no point in the proceedings at first instance did Schindler challenge the accuracy of the facts established by the Commission or make any applications to hear witnesses, even though there was undeniably sufficient opportunity to do so before the General Court. On the contrary, according to the undisputed findings of the General Court, Schindler expressly admitted the facts set out in the statement of objections. (39)

49.      Under these circumstances, Schindler can hardly now, at the appeal stage, make the allegation that the General Court failed to fulfil its duties as regards the appraisal of the facts.

50.      In any case, according to well-established case-law, the General Court is the sole judge of any need to supplement the information available to it. (40) This depends not least on whether the General Court actually considers it necessary to clarify certain factual aspects for its decision.

51.      Only in very exceptional cases can it be assumed that the broad discretion enjoyed by the General Court in assessing which evidence is appropriate and necessary in order to prove a certain fact hardens into a duty to adduce further evidence on its own initiative, even if none of the parties have made a request to this effect, especially where, as is the case here, the parties are large undertakings with some experience in competition matters and are represented by specialist lawyers.

52.      In any case, the simple fact that in a decision to impose a fine in cartel proceedings the Commission relied significantly on the statement from a cooperative witness cannot in itself require the General Court to take further evidence on its own initiative.

53.      I would add that written statements given by undertakings in cartel proceedings cannot a priori be attributed lower probative value than oral statements made by natural persons. On the contrary, in view of the complexity of many cartel proceedings recourse to written documents, including documents voluntarily submitted by the undertakings involved in the cartel, is almost inevitable and in any case extremely useful for clarifying and establishing the facts.

54.      Of course, it must be carefully examined in each individual case whether a statement made by an undertaking, especially a statement made by an undertaking which participated in the cartel and is acting as a cooperative witness, gives a biased, incomplete or inaccurate description of events or seeks to incriminate the other participants in the cartel. Nevertheless, it is not acceptable generally to call into question a priori the truthfulness and the probative value of written statements given by cooperative witnesses in cartel proceedings or to consider them less significant than other evidence.

55.      This applies all the more since the other participants in the cartel are given the opportunity, in the administrative procedure, to inspect the evidence on which the Commission relies and to present to the Commission any different assessment of the facts (Article 27(1) and (2) of Regulation No 1/2003) and if necessary to refute, or at least cast in a different light, the factual findings based on the statement given by a cooperative witness.

56.      If, however, none of the parties refute the substance of the factual findings made by the Commission on the basis of the statement made by a cooperative witness and if there is nothing else to suggest that the statement is biased, inaccurate or incomplete, there is no reason for the General Court to make additional checks or to take further evidence on its own initiative.

57.      In general terms, the General Court cannot be required to take evidence on all possible points of detail surrounding an essentially undisputed situation investigated by the Commission - for example, the details referred to by Schindler in its reply in the appeal proceedings (41) - if, as in the present case, they have no importance or at best marginal importance for the decision in the case. To mention just one example, if it makes no difference to the de jure classification of the gravity of the infringement whether a cartel had significant or only minor effects on the market, there is no need to take evidence of those effects. (42)

3.      Interim conclusion

58.      All in all, Schindler’s claims alleging a breach of elementary principles based on the rule of law are unfounded. Consequently, the first and second pleas in law must be rejected.

B -    The liability of an undertaking for cartel offences committed within its area of responsibility

59.      The sixth and seventh pleas in law focus on the Union-law principles, which are recognised in settled case-law, relating to the liability of an undertaking for cartel offences committed within its area of responsibility. First, the appellants complain that the General Court wrongly found that Schindler Holding was jointly liable for the cartel offences committed by its four national subsidiaries (seventh plea in law, see below, section 1). Second, they claim in general a breach of the principle of fault (sixth and, to some extent, also seventh pleas in law, see below, section 2).

1.      The joint liability of the holding company (seventh plea in law)

60.      The seventh plea in law concerns the principles under which in EU law parent companies are held jointly liable for cartel offences committed by their wholly-owned subsidiaries. In this regard, interest is focused on the so-called ‘100% presumption’. It says that if a parent company holds 100% (or nearly 100%) of the shares in its subsidiary, there is a rebuttable presumption that the parent company exercises decisive influence over the conduct in the market of that subsidiary. That also applies where a parent company controls its subsidiary indirectly via an interposed company, with the parent company holding 100% (or nearly 100%) of the shares in the intermediate company and the intermediate company in turn holding 100% (or nearly 100%) of the shares in the subsidiary. The 100% or almost 100% holding then suffices, according to the case-law, for the parent company and the subsidiary to be regarded as a single undertaking, which means that the parent company is held jointly and severally liable for the cartel offences of its subsidiary.

61.      This 100% presumption is applied without any dispute in the settled case-law of the European Union courts - the so-called Akzo Nobel case-law (43) - and has been confirmed twice only recently in judgments of the Grand Chamber of the Court of Justice. (44)

62.      Nevertheless, the appellants take the view that the General Court wrongly found, having recourse to the 100% presumption, that Schindler Holding, as the parent company in the Schindler Group, was jointly liable for the cartel offences committed by its four national subsidiaries in Germany, Belgium, the Netherlands and Luxembourg as part of the elevator cartel. First, they call into question the lawfulness of the 100% presumption per se (see immediately below, section a) and, second, they criticise the specific application of the 100% presumption by the General Court in the present case (see below, section b).

(a)    Schindler’s fundamental criticism of the 100% presumption (first part of the seventh plea in law)

63.      In the first part of the seventh plea in law, Schindler raises fundamental criticism of the 100% presumption per se. That criticism is essentially based on three complaints which I will address in turn below.

(i)    The company-law principle of separation of liability

64.      First, Schindler claims, as in the proceedings at first instance, that the 100% presumption breaches the company-law principle of separation, according to which legal persons are essentially distinct and subject to separate liability, whilst recourse to their shareholders is not permissible. There is a possible exception to this ‘principle of separation of liability’ only in exceptional cases and under strict conditions, namely where a parent company has intentionally assumed liability for its subsidiary’s debts or it can be held responsible for misconduct of its own.

65.      Admittedly, the principle of separation is a common principle in the company law of the Member States, whose practical importance should not be underestimated, above all in matters of civil liability in connection with trading companies, such as companies with limited liability or joint stock companies.

66.      In assessing an undertaking’s responsibility under antitrust law, however, the crucial factor cannot be whether there is a ‘corporate veil’ between the parent company and the subsidiary. What is important is economic reality, since competition law is guided not by technicalities, but by the actual conduct of undertakings (45) on the market. In assessing, for the purposes of antitrust law, the effect on competition of an undertaking’s conduct on the market it is irrelevant what legal constructs the natural or legal persons behind the undertaking have chosen to regulate their legal relationships.

67.      The question whether a parent company and its subsidiary/subsidiaries appear on the market as a single undertaking cannot therefore be assessed on the basis of a purely formal legal analysis. It likewise cannot be assessed solely on the basis of company law whether a subsidiary can determine its conduct on the market autonomously or is exposed to the decisive influence of its parent company. Otherwise, it would be easy for the parent companies concerned to evade responsibility for infringements of the antitrust rules committed by their wholly-owned subsidiaries by relying on events falling entirely under company law. (46)

68.      Against this background, the General Court was right to reject Schindler’s objection, which was based solely on grounds of company law, to the 100% presumption and - more generally - to the Union-law principles relating to the joint liability of parent companies for the cartel offences of their subsidiaries. (47)

(ii) The alleged encroachment on the Member States’ competences

69.      Furthermore, Schindler claims that the case-law of the European Union courts on the joint liability of parent companies for the cartel offences of their subsidiaries encroaches on the Member States’ competences. In Schindler’s view, it is solely for the Member States to determine when the separation of liability between a parent company and its subsidiary, which exists in principle, may be waived.

70.      As the Commission rightly states, this complaint is a new plea which is being made for the first time at the appeal stage. This part of the seventh plea in law is thus inadmissible. (48)

71.      Schindler’s arguments are also unconvincing on the merits.

72.      Of course, under the principle of conferral, the European Union is to act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein (first sentence of Article 5(2) in conjunction with the first sentence of Article 5(1) TEU, formerly Article 5(1) EC). Furthermore, each European Union institution must act within the limits of the powers conferred on it in the Treaties (first sentence of Article 13(2) TEU) and all competences not conferred upon the European Union in the Treaties remain with the Member States (Article 4(1) and the second sentence of Article 5(2) TEU).

73.      However, there is no foundation for the claim that the European Union does not have the competence to hold parent companies and their wholly-owned subsidiaries jointly accountable for cartel offences that have been committed.

74.      Under Article 23(2)(a) of Regulation No 1/2003, the Commission’s power to impose penalties is not restricted to measures against specific legal persons - for example companies directly involved in a cartel within a group - but the Commission is permitted to impose fines on the undertaking which has committed a cartel offence. This power to impose penalties is expressly enshrined in primary law in Article 83(1) in conjunction with (2)(a) EC (now Article 103(1) in conjunction with (2)(a) TFEU).

75.      The notion of undertaking as such is likewise enshrined in European Union primary law and therefore enjoys constitutional status in the EU legal order (see in particular Articles 81 EC, 82 EC, 86 EC and 87 EC, now Article 101 TFEU, 102 TFEU, 106 TFEU and 107 TFEU). The determination of its substance and its scope through interpretation is one of the essential tasks of the Court of Justice of the European Union, which has jurisdiction to ensure that in the interpretation and application of the Treaties the law is observed (second sentence of Article 19(1) TEU).

76.      As a central element of the competition rules necessary for the functioning of the internal market, the notion of undertaking must be given a uniform interpretation and application throughout the European Union and cannot depend on the particularities of the Member States’ national company law. Otherwise it would not be possible to ensure a uniform legal framework (‘level playing field’) for undertakings active on the internal market.

77.      Even though, as the law stands at present, the competence to regulate company law largely resides with the Member States, in exercising that competence (49) the Member States must - here as in other areas of law (50) - take into account the relevant provisions of EU law and respect the competences of the European Union.

78.      All in all, the appellants’ line of argument to the effect that the European Union lacks competence must therefore be rejected as inadmissible, but is in any case unfounded.

(iii) The alleged infringement of the reservation of materiality

79.      Lastly, Schindler claims that the definition of the principles governing the joint liability of a parent company for cartel offences of its subsidiary cannot be left to the practice of the Commission and of the European Union courts, but is the preserve of the Union legislature. This follows from the reservation of materiality which has been laid down since the Treaty of Lisbon in Article 290(1) TFEU.

80.      This complaint also represents a new plea in relation to the proceedings at first instance and is thus inadmissible for the same reason as the complaint which was discussed above relating to the encroachment on the Member States’ competences. (51)

81.      From a substantive point of view, it should be pointed out that Article 290(1) TFEU is not actually relevant as such for the question at issue here, since it concerns only the case of delegated legislation by the Commission to supplement or amend legislative acts of the European Union institutions. On the other hand, bringing proceedings in respect of cartel offences at EU level falls within the primary competence of the Commission as competition authority, which was not conferred on it by the European Parliament or by the Council of the European Union, but which it enjoys by virtue of primary law (Article 105 TFEU, formerly Article 85 EC) irrespective of Regulation No 1/2003.

82.      Even if it is assumed, however, that Schindler refers to Article 290(1) TFEU only in so far as it expresses a general constitutional principle according to which the main provisions regulating a subject are to be adopted by the legislature and may not be delegated to the executive, its argument is not pertinent.

83.      The connecting factor for the joint liability of a parent company for cartel offences committed by its wholly-owned or almost wholly-owned subsidiaries is, as has already been mentioned, the notion of undertaking under competition law, which differs from the notion of legal person. The undertaking participates in the cartel and the undertaking is subject to a fine, irrespective of whether one or more legal persons embody that undertaking.

84.      Contrary to the claim made by Schindler, the autonomy of the notion of undertaking is not based merely on the practice of the Commission as the executive organ or of the Court as the judicial organ, but is enshrined in the Treaties themselves. Thus, European Union primary law draws a careful distinction between the notion of legal person (see, for example, Article 15(3) TFEU, second paragraph of Article 54 TFEU, first paragraph of Article 75 TFEU, fourth paragraph of Article 263 TFEU, and third paragraph of Article 265 TFEU), the notion of company or firm (see Article 50(2)(g) TFEU and second paragraph of Article 54 TFEU) and the notion of undertaking, which is encountered above all in competition law (see, for example, Articles 101 TFEU, 102 TFEU, 106 TFEU and 107 TFEU).

85.      In other words, it can be traced back to an original definition by the authors of the Treaty to the effect that it is not necessarily only an individual legal person or trading company that can be held liable for a cartel offence, but an economic entity sui generis, namely the undertaking which participated in the cartel.

86.      Accordingly, Schindler’s arguments based on the reservation of materiality are not valid.

87.      This is not altered by the fact that in Article 23(4) of Regulation No 1/2003 the Union legislature laid down a specific provision under which fines imposed on associations of undertakings may, under certain circumstances, also be enforced against their members. That provision does not have anything to do with the responsibility of undertakings for cartel offences committed by themselves, but the responsibility of undertakings for cartel offences committed by a larger entity that does not constitute an undertaking itself, but is merely composed of several undertakings. If, therefore, any conclusion at all can be drawn from Article 23(4) of Regulation No 1/2003 in connection with the reservation of materiality, it is that a special legal provision is necessary only for cases in which the group of those liable for a cartel offence is extended beyond the limits of the notion of undertaking.

88.      To sum up, Schindler’s claims relating to the reservation of materiality must be rejected as inadmissible, but are in any case unfounded.

(iv) Interim conclusion

89.      All in all, the first part of the seventh plea in law must therefore be rejected.

(b)    Schindler’s criticism of the specific application of the 100% presumption (second part of the seventh plea in law)

90.      In the second part of the seventh plea in law, Schindler criticises the specific application of the 100% presumption by the General Court, in particular having regard to the conditions governing the rebuttal of that presumption. The appellants take the view that in the present case the General Court was wrong to find Schindler Holding as the parent company (52) jointly liable for the cartel offences committed by its four national subsidiaries in Germany, Belgium, the Netherlands and Luxembourg.

91.      On a superficial view, it might be supposed that with this complaint the appellants are merely challenging the General Court’s assessment of the facts and the evidence and asking the Court to substitute its own assessment for that of the General Court. That would be inadmissible in appeal proceedings. (53) In reality, however, the question is whether the General Court applied the correct criteria and standards in its assessment of the facts and the evidence. This is a point of law which is open to review by the Court in its appellate jurisdiction. (54)

92.      It must be ascertained in particular whether the mere existence of a ‘compliance programme’ (55) is enough to exempt the parent company from its joint liability. In addition, the parties are also in dispute as to the extent to which the ‘corporate relations’ between the parent company and its subsidiaries must be clarified in order to rebut the 100% presumption.

(i)    The importance of Schindler Holding’s ‘compliance programme’

93.      First of all, Schindler takes the view that a parent company should be exempted from joint liability for cartel offences committed by its wholly-owned subsidiaries whenever it has complied with its due diligence requirements and in particular put in place a ‘compliance programme’. Schindler considers that nothing more can be expected of a parent company than to prove a ‘functioning’ compliance programme.

94.      That argument is not sufficient. It is evidently based on the misconception that the joint liability of a parent company for the cartel offences of its wholly-owned subsidiary/subsidiaries stems from the allegation of some kind of organisational fault, i.e. from the breach of certain due diligence requirements incumbent on the parent company. However, that is not the case.

95.      The connecting factor for the liability of the parent company is not deficient organisation or monitoring of operations within the group, but rather the fact that at the time of the cartel offence the parent company exercised decisive influence over the commercial policy of its subsidiary. Such decisive influence - and not, for example, some kind of organisational fault - is presumed where the subsidiary in question is wholly-owned or almost wholly-owned by its parent company (100% presumption).

96.      Consequently, it is also irrelevant to a rebuttal of the 100% presumption whether the parent company has a compliance programme. Such a programme may make it possible to demonstrate certain internal efforts to prevent cartel offences (and infringements of the law more generally), efforts whose benefit is beyond doubt. However, a compliance programme certainly cannot prove the absence of the parent company’s decisive influence over the commercial policy of the subsidiary or even begin to show that the parent company and its wholly-owned subsidiary - contrary to initial appearances - do not constitute a joint undertaking for the purposes of competition law.

97.      Even if it were to be assumed, contrary to the above statements, that the joint liability of the parent company for the cartel offences of its wholly-owned subsidiaries stems from the allegation of organisational fault, that allegation could not be dispelled by making a brief reference to a ‘functioning compliance programme’, as Schindler seeks to do in the present case.

98.      A ‘functioning’ compliance programme cannot be assumed to exist a priori if one or more wholly-owned subsidiaries have been guilty, over a period of several years, of serious infringements of the competition rules of the European internal market, such as were found in the case of Schindler’s participation in the elevator cartel in Germany, Belgium, the Netherlands and Luxembourg.

99.      It may be that a compliance programme cannot reasonably prevent every minor infringement of the law. Nevertheless, a compliance programme which ‘functions’ must be capable of effectively preventing serious, long-term cartel offences and of uncovering and promptly rectifying any infringements of the law committed. According to the - essentially undisputed - findings of the General Court regarding the duration and the gravity of Schindler’s participation in the elevator cartel, this cannot be considered to be the case, even taking a benevolent view. It certainly cannot therefore be assumed that Schindler ‘did its utmost’ to prevent the contested cartel offences, and the General Court made no such finding at any point in the judgment under appeal, contrary to the persistent claim made by Schindler. (56)

100. Consequently, the argument based on Schindler’s ‘functioning compliance programme’ must be rejected.

(ii) The need for ‘clarification of corporate relations’

101. Furthermore, the appellants criticise the passage of the judgment (57) in which the General Court described Schindler’s other submissions regarding the rebuttal of the 100% presumption as insufficient.

102. The particular bone of contention for the appellants is paragraph 90 of the judgment under appeal, in which the General Court addresses the quality of Schindler’s submissions on its internal management structure and the reporting requirements (‘reporting lines’ and ‘reporting obligations’) of individual employees in the national subsidiaries. The General Court states that Schindler’s submissions were not sufficient to rebut the 100% presumption because the corporate relations between Schindler Holding and its subsidiaries active in the countries in question would not be clarified to any greater extent. (58)

103. Schindler contends, in order to prove the absence of the parent company’s decisive influence over its wholly-owned subsidiaries, that it ‘certainly could not be required to clarify the corporate relations’.

104. That view is erroneous. Naturally, a parent company wishing to rebut the 100% presumption must be required to provide comprehensive information about its relations with the subsidiaries, especially since the relevant information is all from within the internal sphere of parent and subsidiary.

105. Merely sporadic references to the extent of the reporting requirements for individual employees cannot give a comprehensive, meaningful picture of those corporate relations. It would be necessary for the undertaking concerned to clarify all the relevant factors relating to economic, organisational and legal links which tie the subsidiary in question to the parent company. (59) In particular, recourse to specific pointers from everyday business activities enables it to be explained whether and to what extent the subsidiary itself determined its commercial policy and its conduct on the market and so acted autonomously, that is, independently from its parent company. The mere reference to the scope of the reporting requirements for employees is manifestly incapable of demonstrating conclusively the absence of decisive influence over the commercial policy of subsidiaries.

106. Schindler’s criticism of paragraph 90 of the judgment under appeal is therefore unfounded.

(iii) The notion of ‘commercial policy’ in the context of the 100% presumption

107. Lastly, the appellants complain, above all having regard to paragraph 86 of the judgment under appeal, that the General Court adopts too broad an understanding of the ‘commercial policy’ of the subsidiaries, decisive influence over which by the parent company is presumed in the case of a 100% shareholding.

108. This argument must likewise be rejected.

109. The question whether a subsidiary is under the decisive influence of its parent company as regards its conduct on the market does not depend solely on who determines its commercial policy in the narrow sense, for example pricing policy, production and distribution activities, sales objectives, gross margins, sales costs, cash flow, stocks and marketing. Ultimately, a subsidiary’s conduct on the market can be influenced by all the relevant factors relating to economic, organisational and legal links which tie it to the parent company. Accordingly, the Court has recognised that all these factors are pertinent to the rebuttal of the 100% presumption and evidence of an absence of influence over commercial policy in the broader sense is therefore relevant. (60) The General Court applied that case-law correctly to the present case.

110. Regardless of the debate over the scope of the notion of commercial policy, it must be pointed out that in paragraphs 84 to 90 of the judgment under appeal the General Court conducted a detailed examination of all Schindler’s arguments regarding the rebuttal of the 100% presumption and criticised the fact that those arguments were mainly based on claims for which no further evidence was given. (61) The General Court was perfectly right to find that such mere claims were not sufficient to rebut the 100% presumption. (62)

2.      The principle of fault (sixth plea in law and parts of the seventh)

111. With their sixth plea in law and individual parts of the seventh plea in law, the appellants also claim that the principles laid down in EU law governing the liability of an undertaking for the cartel offences committed within its area of responsibility breach the principle of fault.

112. The allegation of a breach of the principle of fault is based, on closer inspection, on two separate complaints. First, Schindler criticises the General Court for applying the 100% presumption to the detriment of Schindler Holding in a way that resulted in strict liability (63) (see immediately below, section a). Second, Schindler complains that in the judgment under appeal the General Court ‘did not have regard to elementary principles of attribution’ since it considered it sufficient for the purposes of liability under antitrust law that ‘some employees at the subsidiaries acted in contravention of antitrust law’ (64) (see below, section b).

(a)    The allegation that the 100% presumption results in strict liability

113. The fact that the General Court denied that Schindler’s compliance programme had an exculpatory effect leads the appellants to complain that the 100% presumption results in strict liability for Schindler Holding as the parent company.

114. The general legal principles which must be taken into consideration in cartel proceedings at EU level undoubtedly include the principle of nulla poena sine culpa (no punishment without fault), which can be traced back to the rule of law and the principle of fault. As I have recently explained elsewhere, that principle enjoys the status of a fundamental right which is common to the constitutional traditions of the Member States. (65)

115. Although this principle is not expressly mentioned in the Charter of Fundamental Rights of the European Union or in the ECHR, it is the necessary precondition for the presumption of innocence. The principle of nulla poena sine culpa may therefore be considered to be contained implicitly in both Article 48(1) of the Charter and Article 6(2) ECHR, which, as has been recognised, must be taken into account in cartel proceedings. (66) Ultimately, these two provisions of the Charter and the ECHR can be regarded as the expression in procedural law of the principle of nulla poena sine culpa. (67)

116. In connection with the penalties to be imposed by the Commission in cartel proceedings, the principle of nulla poena sine culpa finds expression in Article 23(2) of Regulation No 1/2003: under that provision, fines may be imposed in cartel proceedings only for intentional or negligent infringements.

117. The appellants in the present case are therefore perfectly correct to point out the validity of the principle of nulla poena sine culpa, which they describe using the notion of the ‘principle of fault’. They are, however, wrong in their view that the 100% presumption results in strict liability for the parent company and runs counter to the principle of nulla poena sine culpa merely because the parent company is denied the possibility of being exculpated by relying on its internal compliance programme.

118. It would seem that the appellants misunderstand the substance of the 100% presumption. That presumption says nothing about whether an undertaking has committed a cartel offence culpably (i.e. intentionally or negligently). It is not a presumption of fault. Rather the 100% presumption merely casts light on the question of the elements which make up an undertaking that participated in a cartel, whether intentionally or negligently, as has been proved. A finding as to the way in which an undertaking is composed does not, as such, imply an allegation of fault in relation to the unlawful activities of the cartel.

119. In accordance with the 100% presumption it can be assumed that a parent company and its wholly-owned subsidiary/subsidiaries are normally part of one and the same undertaking. In the case of shareholdings of this kind, initial appearances suggest that the parent company exercises decisive influence over the commercial policy of its subsidiary/subsidiaries.

120. The parent company is free to rebut this presumption by presenting credible evidence that, contrary to initial appearances, the subsidiary in question determines its commercial policy autonomously, such that its situation is different from the normal case of a wholly-owned or almost wholly-owned subsidiary. However, as has already been mentioned, (68) such evidence to the contrary cannot be provided by merely making a reference to a compliance programme. Such a programme cannot prove the absence of the parent company’s decisive influence over the commercial policy of the subsidiary.

121. If, as is the case here, the parent company is not able to rebut the presumption that it exercised decisive influence over the commercial policy of its subsidiary/subsidiaries, it is one of the principals of the undertaking that participated in the cartel in question. It is - together with the subsidiary/subsidiaries - the legal embodiment of the undertaking which is accused with committing the cartel offence. (69)

122. It is a different matter whether that undertaking, through its employees, committed the cartel offence in question culpably. It is absolutely undisputed that in cases of doubt the fault of the undertaking for its participation in the anti-competitive activities of the cartel must be established separately in accordance with the principle of nulla poena sine culpa. (70) However, the 100% presumption has nothing to do with this question of fault.

123. The allegation that the 100% presumption breaches the principle of fault must therefore be rejected.

124. If the appellants wished to deny that their undertaking participated culpably in the activities of the elevator cartel, they should have put forward complaints to that effect. The complaint raised here against the 100% presumption is not capable of doing this.

(b)    The allegation that it is not sufficient that some employees infringed the prohibition on cartels

125. Furthermore, the appellants criticise the fact that in the judgment under appeal there are no specific findings as to which of their employees had participated in the infringements committed by the elevator cartel. Thus, according to Schindler, the General Court ‘did not have regard to elementary principles of attribution’.

126. As the Commission rightly states, Schindler did not put forward a similar complaint in the proceedings at first instance. Consequently, this is a new plea which is inadmissible in so far as it is made for the first time at the appeal stage. (71)

127. This complaint is also far from sound on the merits.

128. The appellants have not disputed at any point in the proceedings that those who had participated in the anti-competitive activities of the elevator cartel on the part of Schindler were employees of Schindler. Consequently, there was no need a priori in the judgment under appeal for more specific statements on the precise identity of those persons (72) and whether their conduct must be attributed to Schindler.

129. In so far as, with their complaint, the appellants also seek to intimate that Schindler Holding and the four national subsidiaries can be attributed only the unlawful conduct of their respective legal representatives or of employees with particular authority, their arguments are likewise unsound. According to settled case-law, for the prohibition on cartels under EU law to apply, it is not necessary for there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned. Action by a person who is authorised to act on behalf of the undertaking suffices. (73)

130. If in cartel proceedings undertakings were to be attributed only the conduct of those of their employees whose anti-competitive activities were verifiably based on a specific instruction or authorisation from the undertaking’s management or were at least knowingly tolerated by it, the prohibition on cartels under EU law would be deprived of any effectiveness. It would then be easy for undertakings to evade their responsibility for cartel offences on purely formal grounds.

131. It is right that an undertaking should normally be attributed all unlawful activities - including those which occurred without the knowledge and without the express approval of the undertaking’s management - where those activities took place within the undertaking’s area of responsibility. That is the case, as a rule, where the acts in question were perpetrated by its own employees in connection with their work for the undertaking.

132. The mere fact that an undertaking’s employees are generally urged to act lawfully in the context of a compliance programme cannot be sufficient to exempt the undertaking from its responsibility under antitrust law. If, despite such a programme, serious cartel offences are committed over a number of years, it can be assumed that the internal compliance efforts were not sufficient (74) and, in particular, that the undertaking’s employees were not given appropriate incentives to refrain from unlawful activities.

3.      Interim conclusion

133. All in all, Schindler’s arguments regarding the joint liability of Schindler Holding as the parent company and the principle of fault are not therefore valid. The sixth and seventh pleas in law must therefore be rejected.

C -    A few other legal questions in connection with the imposition and calculation of fines for cartel offences

134. With its other pleas in law Schindler raises a number of legal questions in connection with the imposition and calculation of fines for cartel offences.

1.      Validity of Article 23(2) of Regulation No 1/2003 having regard to the principle that penalties must be clearly defined by law (third plea in law)

135. Under the third plea in law, Schindler challenges the validity of Article 23(2) of Regulation No 1/2003 as the legal basis for the imposition of fines in cartel proceedings by the Commission. In Schindler’s view, that provision infringes the requirement under criminal law that penalties must be clearly defined by law.

136. The requirement in criminal law that penalties must be clearly defined by law, whose validity has also been recognised by the Court with regard to penalties imposed in cartel proceedings, (75) is an expression of the principle of the legality of criminal offences and penalties (nullum crimen, nulla poena sine lege). That principle is one of the general legal principles underlying the constitutional traditions common to the Member States (76) and now enjoys the status of a fundamental right of the European Union under Article 49 of the Charter of Fundamental Rights. In accordance with the requirement of homogeneity (first sentence of Article 52(3) of the Charter), in interpreting Article 49 of the Charter regard must be had not least to Article 7 ECHR and the case-law of the European Court of Human Rights on that provision.

137. The principle of the legality of criminal offences and penalties implies that legislation must clearly define offences and the penalties which they attract (77) (nullum crimen, nulla poena sine lege certa).

138. Schindler argues that Article 23(2) of Regulation No 1/2003 is formulated too imprecisely, first as regards the notion of undertaking used in that provision (see immediately below, section a) and second as regards the range of fines provided for therein (see below, section b).

(a)    The alleged imprecision of the notion of undertaking (first part of the third plea in law)

139. As far as the alleged imprecision of the notion of undertaking under Article 23(2) of Regulation No 1/2003 is concerned, it should be noted that Schindler did not put forward any complaint to this effect at first instance. It is therefore a new plea which can no longer be raised at the appeal stage because it would extend the subject-matter of the dispute in an inadmissible way. (78)

140. That complaint is also not valid on the merits.

141. There is no precise definition of the notion of undertaking either in primary law or in secondary law. However, the use of imprecise legal concepts in legislation - including as the basis for criminal liability in rules which form part of traditional criminal law - is not unusual. (79)

142. Regard is had to the principle of nullum crimen, nulla poena sine lege certa 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. (80)

143. This is the case in relation to the notion of undertaking in competition law, as it is used within the framework of the prohibition on cartels under EU law (Article 101 TFEU, formerly Article 81 EC) and the relevant provision laying down penalties (Article 23(2)(a) of Regulation No 1/2003). For decades, this notion has always been interpreted in the same way by the European Union courts (‘any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed’). (81)

144. Furthermore, as has already been explained, (82) there is a clear distinction in primary law between the notions of legal person, company and undertaking. It can therefore be traced back to an original definition by the authors of the Treaty to the effect that it is not necessarily only an individual legal person or trading company that can be held liable for a cartel offence, but an economic entity sui generis, namely the undertaking which participated in the cartel. The distinction between the notion of legal person and the notion of undertaking is reflected in secondary law, as is shown not least by a comparison between Article 7(2) of Regulation No 1/2003 and Article 23 of that regulation.

145. Furthermore, in settled case-law the European Union courts have recognised that an undertaking participating in a cartel may be embodied by more than one legal person, in particular by a parent company and its subsidiary/subsidiaries. (83) Moreover, clear criteria have been developed in case-law, not least the 100% presumption (84) according to which those companies may, if appropriate, be held jointly and severally liable.

146. Under those circumstances, no individual can seriously take the view that the notion of undertaking is not specific enough as the basis for the imposition of penalties in cartel proceedings or that it is always only the legal person that was directly involved in the activities of a cartel that is to be regarded as an undertaking within the meaning of Article 23(2)(a) of Regulation No 1/2003.

147. Consequently, the first part of the third plea in law must be rejected.

(b)    The alleged imprecision in the range of fines (second part of the third plea in law)

148. Furthermore, the appellants raise the criticism that Article 23(2) of Regulation No 1/2003 authorises the Commission to impose fines, without laying down a sufficiently precise legal framework.

149. The European Union courts have already dealt with similar complaints regarding the EU-law framework for the imposition of fines for cartel offences on several occasions and have always dismissed those complaints. (85) Whilst the previous case-law has generally concerned Article 15(2) of Regulation (EEC) No 17, (86) it can also be readily transposed to the successor provision in Article 23(2) of Regulation No 1/2003, whose substance is identical.

150. The General Court correctly reproduced and applied that settled case-law in detail in the judgment under appeal (87) and I will not therefore describe it below. After examining the written and oral arguments put forward by Schindler, I cannot see any reason to suggest that the Court depart from that case-law.

151. In particular, the entry into force of the Treaty of Lisbon which has now taken place does not give any grounds for a fundamental reassessment of the problem. The substance of the requirement in criminal law that penalties must be clearly defined by law, which is recognised at EU level, is influenced strongly by Article 7(1) ECHR and by the case-law of the European Court of Human Rights and the European Union courts on this subject. The Treaty of Lisbon has not significantly changed the substance of this fundamental right. (88) It also does not appear necessary, especially in an area like antitrust law, which is not part of the core area of criminal law, (89) to go beyond the standard set in the ECHR in accordance with the second sentence of Article 52(3) of the Charter of Fundamental Rights. This holds all the more since even in conventional criminal law the ranges of penalties laid down by law are generally very broad and allow the law enforcement bodies a considerable margin of discretion in setting the specific level of the penalty in each individual case.

152. The simple fact that the fines imposed by the Commission for cartel offences have risen sharply over the years in nominal terms does not, contrary to the view taken by Schindler, indicate an imprecise legal framework. It is settled case-law that the Commission is authorised, within the limits indicated in Regulation No 1/2003 (formerly Regulation No 17), to raise the level of fines in cartel proceedings if that is necessary to ensure the implementation of European Union competition policy. (90)

153. The principle of nulla poena sine lege certa also does not preclude the application of an existing criminal provision being adapted to changing circumstances, in particular the frequency, complexity and severity of infringements. (91) This must hold even more for quasi-criminal provisions such as Article 23(2)(a) of Regulation No 1/2003, (92) to which the guarantees of fundamental rights applying in the core area of criminal law will not necessarily apply with their full stringency, as has already been noted. (93)

154. Schindler’s criticism of the ceiling for fines of 10% of an undertaking’s total turnover, as provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003, is also unfounded. Admittedly, that ceiling is a variable value in so far as it is not linked to an absolute nominal maximum amount, but to a proportion of turnover. However, this does not mean that the provision is not sufficiently precise. Any undertaking knows its own turnover and can therefore easily estimate the maximum amount of any fine for a cartel offence. Such foreseeability in relation to the expected penalty satisfies the requirements of the principle of nulla poena sine lege certa. (94)

155. In any case, as I have recently stated elsewhere, (95) the calculation of fines imposed in cartel proceedings is not a mechanical process by which it is possible to determine in advance and with mathematical precision the amount of the penalty to be imposed for every cartel. Nor would such an ability to predict the fine down to the last decimal point even be appropriate, since that would make it all too simple for the participants in the cartel to determine in advance the ‘cost’ of their unlawful conduct and calculate whether it is more lucrative for them to engage in unlawful or lawful business practices. This would seriously jeopardise one of the basic functions of the system of penalties in antitrust law, the deterrent effect.

156. For all the abovementioned reasons, the appellants’ claim that the range of fines provided for in Article 23(2) of Regulation No 1/2003 is incompatible with higher-ranking law must be rejected.

157. Lastly, no other conclusion can be drawn from the reservation of materiality to which Schindler also refers. As has already been mentioned in a different connection, (96) according to that constitutional principle, the main provisions regulating a subject are to be adopted by the legislature and may not be delegated to the executive. These conditions are satisfied in the case of Article 23(2)(a) of Regulation No 1/2003, since, as has just been stated, the Union legislature itself defined the framework for the imposition of fines for cartel offences with sufficient precision.

(c)    Interim conclusion

158. All in all, the third plea in law must be rejected in its entirety.

2.      Lawfulness of the 1998 Guidelines (fourth and fifth pleas in law)

159. Furthermore, the appellants challenge the 1998 Guidelines, whose lawfulness they call into question because the Commission was allegedly not competent to adopt them (see below, section a) and those Guidelines were applied retroactively here (see below, section b).

(a)    Competence of the Commission to adopt the Guidelines (fourth plea in law)

160. By its fourth plea in law, Schindler alleges that the ‘1998 Guidelines for fines are ineffective due to the Commission’s lack of competence’.

161. I have serious doubts as to the admissibility of this complaint as it does not indicate precisely at any point the element of the judgment under appeal at which it is directed. (97)

162. Even if it is assumed that Schindler objects to paragraph 133 of the judgment under appeal, its claims are clearly based, in substance, on the misconception that the 1998 Guidelines are a legislative act or at least a binding rule of law which determines ‘criminal liability’ for cartel offences or the relevant penalties.

163. That is not the case, however. (98) The sole legal basis for the imposition of fines by the Commission in cartel proceedings is Article 23(2) of Regulation No 1/2003, which, as has already been explained, (99) fully satisfies the requirements of the reservation of materiality and of the principle of nullum crimen, nulla poena sine lege certa. Consequently, the guidelines on setting fines adopted by the Commission, in particular the 1998 Guidelines, do not, a priori, have the function of closing any gaps in Article 23(2) of Regulation No 1/2003.

164. First, the 1998 Guidelines are an explanation of the Commission’s own administrative practice. (100) Second, through those Guidelines, the Commission, in its capacity as competition authority of the European Union, gives a general opinion concerning competition policy in the framework of its responsibility for maintaining and developing a system of undistorted competition in the European internal market. (101) The Commission is empowered for that purpose by Article 85 EC in conjunction with the second indent of Article 211 EC (now Article 105 TFEU in conjunction with the fourth sentence of Article 292 TFEU).

165. The fourth plea in law must therefore be rejected.

(b)    The principles of non-retroactivity and protection of legitimate expectations (fifth plea in law)

166. By its fifth plea in law, which is directed at paragraphs 117 to 130 of the judgment under appeal, Schindler claims that the application of the 1998 Guidelines to the present case breaches the principle of non-retroactivity laid down in Article 7(1) ECHR and the principle of protection of legitimate expectations. The background to this complaint appears to be the fact that the activity of the elevator cartel in which Schindler was involved commenced before 1998.

167. As has already been stated in a different connection, (102) this complaint should not be assessed directly on the basis of the ECHR, but on the basis of the Charter of Fundamental Rights - in this instance Article 49 of the Charter - which must, however, be interpreted and applied in accordance with Article 7(1) ECHR (third subparagraph of Article 6(1) TEU in conjunction with the first sentence of Article 52(3) of the Charter).

168. Schindler’s claims are unfounded on the merits.

169. The European Union courts have already dealt with similar complaints regarding the Commission’s practice in the imposition of fines for cartel offences on several occasions and have always dismissed those complaints. They have rejected both a breach of the principle of non-retroactivity and a breach of the principle of protection of legitimate expectations (103) when the Commission modified its method of calculating fines and applied that modification to cartel offences which had commenced previously.

170. The General Court correctly reproduced and applied that settled case-law in detail in the judgment under appeal (104) and I will not therefore describe it below. After examining the arguments put forward by Schindler, I cannot see any reason to suggest that the Court depart from that case-law.

171. Since the entry into force of Regulation No 17 in 1962, the Commission has been allowed to impose fines of up to 10% of an undertaking’s total turnover for cartel offences.

172. Schindler could not rely on the fact that during the lifetime of the elevator cartel the method originally used by the Commission to calculate fines and the sizes of the fines imposed by the Commission which were originally announced would not change at all. It was sufficiently well known at that time that the Commission is entitled, within the limits indicated in Regulation No 1/2003 (formerly Regulation No 17), to raise the level of fines imposed in cartel proceedings if that is necessary to ensure the implementation of European Union competition policy. (105)

173. In general criminal law too, no one can rely on the fact that an existing criminal rule will always be applied in the same manner and, above all, with the same leniency or severity. In particular, an individual cannot reasonably assume that the practice of the law enforcement bodies in setting the level of penalties for a specific offence within the scope of their existing statutory discretion will never evolve. Rather, that practice may be adapted to changing circumstances such as the frequency, complexity and severity of infringements. (106)

174. A legitimate expectation on the part of Schindler cannot be taken to exist in the present case, all the more so since its alleged infringements as part of the elevator cartel took place largely after the publication of the 1998 Guidelines. This was rightly pointed out by the Commission.

175. All in all, the fifth plea in law must also therefore be rejected.

3.      The basic amount of the fine and the alleged grounds for reducing the fine (tenth, eleventh and twelfth pleas in law)

176. The tenth, eleventh and twelfth pleas in law relate to the details of the calculation of the fines imposed on Schindler.

(a)    The classification of the infringements as ‘very serious’ (tenth plea in law)

177. By the tenth plea in law, Schindler challenges the classification of its infringements as part of the elevator cartel as ‘very serious’. Schindler takes the view that the effects of those infringements on the market were very minor and the General Court did not take sufficient account of this in determining the basic amounts of the fines to be imposed.

178. It is sufficient to note in this regard that it is settled case-law that the effect of an anti-competitive practice is not, in itself, a conclusive criterion for assessing the proper amount of a fine. In particular, 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, a factor which is present in this case. (107)

179. The elevator cartel had as its object precisely such hardcore restrictions seeking to restrict competition. The participants in the cartel aimed to share contracts and markets between themselves in the four Member States concerned. It is correct to classify such infringements as very serious, in determining the basic amounts of fines, without regard to their specific effects on the market situation.

180. Consequently, the tenth plea in law cannot be upheld.

181. In so far as Schindler alleges, in connection with the tenth plea in law, that the General Court failed to take evidence of its own, the statements made above with regard to the second plea in law apply. (108) In any event, the General Court is not required, as a rule, to review of its own motion the weighting of the factors taken into account by the Commission in order to determine the amount of the fine. (109)

(b)    Mitigating circumstances (eleventh plea in law)

182. By the eleventh plea in law, the appellants claim that the General Court should have taken into consideration, first, Schindler’s voluntary termination of the infringement in Germany in 2000 and, second, Schindler’s group-wide compliance programme as mitigating factors in calculating the fine.

183. However, such a legal right to a reduced fine cannot be taken to exist on the basis of either of the considerations put forward by Schindler.

184. As regards the ‘voluntary termination of the infringement’ in Germany, first of all, the General Court rightly did not grant any reduction in the fine in that regard. The voluntary termination of an infringement cannot automatically lead to a reduction of the fine for the cartel offence since the circumstances of the individual case are crucial. In the present case, the General Court stated inter alia ‘that, according to the file, Schindler left the cartel solely because of a disagreement with the other members’. (110) Under those circumstances, the General Court was entitled in law to proceed on the basis that there was certainly no ‘return to legality’, as claimed by Schindler, for which the undertaking might possibly merit a reduction in the fine.

185. As for any corporate compliance programmes, as I have already argued, they may be taken into consideration in cartel proceedings at best if they are capable of effectively preventing serious, long-term cartel offences and uncovering and promptly rectifying any infringements of the law committed. (111) Schindler’s compliance programme evidently did not have this positive effect in the present case, but, according to Schindler’s own statements, even made it more difficult to uncover infringements. (112) It would be absurd to reward an undertaking for such a manifestly ineffective compliance programme with a more lenient fine.

186. The eleventh plea in law must therefore also be rejected.

(c)    Reductions in the fines for cooperation with the Commission (twelfth plea in law)

187. The twelfth plea in law concerns the reduction of the fines imposed on Schindler for its participation in the cartel in Belgium, Germany and Luxembourg by reason of the undertaking’s cooperation with the Commission in the administrative procedure. Schindler takes the view that the General Court failed to give sufficient weight to its contributions to the cooperation in the present case.

(i)    Cooperation in connection with the 2002 Leniency Notice (first part of the twelfth plea in law)

188. In the first part of the twelfth plea in law, Schindler claims that the General Court wrongly allowed the Commission a considerable margin of assessment in connection with the 2002 Leniency Notice (113) and confined itself merely to a review of manifest errors.

189. In actual fact, the General Court stated that the Commission enjoys a ‘broad margin of assessment’ when it determines whether the evidence provided by an undertaking under the 2002 Leniency Notice ‘represents significant added value for the purposes of point 21 of the notice’ and that ‘it is only where it manifestly goes beyond the bounds of that margin that it may be criticised by the General Court’. (114)

190. This legal opinion taken by the General Court is incorrect. The value of evidence provided by undertakings under the 2002 Leniency Notice in order to cooperate the Commission in the administrative procedure is assessed in connection with the calculation of the amount of the fine. This therefore falls within the scope of the unlimited jurisdiction of the General Court (Article 261 TFEU in conjunction with Article 31 of Regulation No 1/2003), under which the General Court is permitted, in addition to carrying out a mere review of lawfulness, to substitute its own appraisal for the Commission’s. (115) If the General Court nevertheless refers in this connection to a ‘broad margin of assessment’ enjoyed by the Commission, it errs in law in describing the extent of its own powers.

191. Nevertheless, such an error in law does not necessarily have to result in the judgment under appeal being set aside. (116) Rather, the question is what criterion the General Court applied in the specific examination of the added value offered by the cooperation of the undertaking in question with the Commission.

192. In the present case, the General Court certainly did not refrain making its own appraisal, but gave detailed consideration to the arguments put forward by Schindler regarding the added value offered by its cooperation with the Commission in the administrative procedure. (117) Thus, even though it erred in law in its introductory remarks, it satisfied the legal requirements.

193. In this connection, in particular the argument that the evidence provided by participants in the cartel in the administrative procedure always has an added value for the Commission’s reasoning and must result in a reduction of the fine should be rejected. The value of evidence is not assessed on a numerical basis (‘iudex non calculat’) or on the basis of how often the Commission referred to it in the contested decision. (118)

194. Moreover, it is not for the Court in an appeal to substitute its own assessment of the added value of the information provided by Schindler for the assessments made by the Commission and by the General Court. (119) Consequently, there is no need at this point to re-examine whether the information provided to the Commission by Schindler had the same value as that provided by ThyssenKrupp, Otis and Kone or even offered significant added value for the Commission’s reasoning.

(ii) The cooperation outside the 2002 Leniency Notice (second part of the twelfth plea in law)

195. In the second part of the twelfth plea in law, Schindler objects to paragraphs 350 to 361 of the judgment under appeal and complains that it was granted too small a reduction in the fine for its cooperation outside the 2002 Leniency Notice, namely just 1% for not contesting the facts. Relying on the sixth indent of Section 3 of the 1998 Guidelines, Schindler considers that it is entitled to a larger reduction of its fines.

196. This argument is unfounded.

197. As the Commission rightly states, the sixth indent of Section 3 of the 1998 Guidelines is not intended to ‘reward unsatisfactory leniency applications none the less’. For cooperation like Schindler’s, which comes under the ‘cooperative witness programme’ (i.e. the 2002 Leniency Notice), but does not satisfy all its conditions, in particular the condition of ‘significant added value’, there is no entitlement to a reduction of the fine, in particular indirectly through the sixth indent of Section 3 of the 1998 Guidelines.

(iii) Summary

198. The twelfth plea in law must therefore be rejected in its entirety.

4.      The 10% ceiling for the amount of the fine (eighth plea in law)

199. By its eighth plea in law, Schindler claims that in applying the 10% ceiling for fines under the second subparagraph of Article 23(2) of Regulation No 1/2003 regard must be had only to the turnover of Schindler’s respective national subsidiaries, but not to the turnover of the entire Schindler Holding group.

200. This argument is absurd. The notion of undertaking in Article 81 EC (now Article 101 TFEU) on the one hand and in Article 23 of Regulation No 1/2003 on the other is always the same. Both provisions must be applied consistently. For the 10% ceiling regard must therefore be had to the turnover of the undertaking, whose joint principals are the parent company - here Schindler Holding - and its wholly-owned subsidiaries - here the national subsidiaries in Germany, Belgium, the Netherlands and Luxembourg.

201. Only if Schindler’s complaints regarding the application of the 100% presumption in the present case were upheld, contrary to the statements made above, (120) could the eighth plea in law be successful. Since that is not the case, that plea in law must be rejected.

5.      The right to property (ninth plea in law)

202. The ninth plea in law concerns the right to property. Schindler takes the view that, ‘because of their exorbitant level’, the imposition of the fines on Schindler Holding and its subsidiaries in Belgium, the Netherlands and Luxembourg (121) infringes ‘elementary guarantees, as enshrined in international law, provided by the European Union to Schindler as a Swiss undertaking in relation to investment protection and the right to property’. In this connection, Schindler alleges in particular that the General Court failed to have regard to the relevant case-law of the European Court of Human Rights on the right to property.

(a)    Preliminary remark

203. The right to property is a fundamental right which is protected at EU level under Article 17 of the Charter of Fundamental Rights and within the framework of the general principles of Union law (122) (Article 6(3) TEU). Private individuals who are not nationals of a Member State of the European Union may also rely on that right. (123)

204. Because the European Union has not yet acceded to the ECHR, Article 1 of the First Protocol to the ECHR (124) - contrary to the view taken by Schindler - cannot directly form the basis for the right to property; (125) that provision is relevant, however, together with the relevant case-law of the European Court of Human Rights, as a criterion for interpreting and applying Article 17 of the Charter of Fundamental Rights (third subparagraph of Article 6(1) TEU in conjunction with the first sentence of Article 52(3) of the Charter). (126)

205. Furthermore, in so far as, in its appeal, Schindler refers to unspecified guarantees under international law, its argument in the present appeal proceedings is not sufficiently specific to be able to be examined by the Court and is therefore inadmissible. (127)

(b)    The alleged infringement of the right to property as a European Union fundamental right

206. With regard to the infringement of this fundamental right alleged by Schindler, it should be observed that it does not appear absolutely necessary to regard the imposition of a fine for a cartel offence as an encroachment on the right to property. The European Union organs do not deprive the undertaking concerned of any specific property right, but merely impose, in general, a duty to pay a sum of money from its assets. The General Court also stated, along similar lines, in the judgment under appeal that the contested decision does not affect Schindler’s ownership structure. (128)

207. According to the case-law of the European Court of Human Rights regarding Article 1 of the First Protocol to the ECHR, however, fines are to be regarded as encroachments on the right to property because they deprive the person concerned of some of his property, i.e. the sum of money that he is required to pay. (129) According to the requirement of homogeneity, Article 17 of the Charter of Fundamental Rights must be interpreted in such a way that the meaning and scope of the right to property at EU level is the same as that laid down by the ECHR (first sentence of Article 52(3) of the Charter).

208. It is settled case-law, however, that the right to property is not an absolute right but must be considered in relation to its social function. (130)

209. Moreover, Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights enshrined by it as long as the limitations are provided for by law, respect the essence of those rights and freedoms, and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. (131)

210. With Article 23(2)(a) of Regulation No 1/2003, the imposition of fines in cartel proceedings has a basis provided for by law. (132) It pursues an aim in the public interest: such fines help to maintain effective competition on the internal market, (133) in particular by acting as a deterrent against committing cartel offences and boosting the confidence of all market operators in the power of the competition rules in the European internal market. (134)

211. It is also expressly recognised in Article 1(2) of the First Protocol to the ECHR that the imposition of financial penalties is essentially legitimate. Under that provision, the right of a State to enforce such laws as it deems necessary, inter alia, to secure the payment of penalties is not impaired, in which connection it enjoys a margin of discretion in accordance with the case-law of the European Court of Human Rights. (135)

212. An infringement of the right to property may ultimately result from fines only if they impose an excessive burden on the person concerned or fundamentally impair his financial situation; in other words, fines may not be disproportionate. (136) Fines are not proportionate, in accordance with the case-law of the European Court of Human Rights, in the case of extremely high sums which impose such an excessive burden that they have de facto expropriatory character. (137)

213. The General Court complied fully with this standard in the present case when it examined whether the fines imposed constitute a disproportionate and intolerable interference, impairing the very substance of the fundamental right to respect for property. (138)

214. It is not possible to assess whether a fine imposes such a disproportionate burden solely on the basis of its nominal amount, as this is contingent on the capacity of the person on which the fine is imposed. The fact that the European Court of Human Rights regarded fines for various customs offences of just under EUR 8 million in the case of a natural person as an infringement of his right to property (139) does not, in itself, allow any inferences to be drawn for the present case, which concerns serious, long-term cartel offences committed by a large, internationally active undertaking with subsidiaries in several Member States.

215. Of course, the fines imposed by the Commission pursuant to Article 23(2)(a) of Regulation No 1/2003 may be onerous, even for large undertakings like Schindler. However, this is commensurate with their function and is certainly not unfair, in particular in the case of serious, long-term cartel offences like that at issue in the present case. Furthermore, a disproportionate burden on undertakings with de facto expropriatory character cannot normally arise in view of the ceiling, prescribed by law, of 10% of the total turnover in the preceding year. (140)

216. The complaint of expropriation raised by the appellants is based less on the burden on Schindler as an undertaking or on Schindler Holding as a legal person than on an individualised analysis of the burdens apparently created by the fines imposed for Schindler’s three national subsidiaries in Belgium, the Netherlands and Luxembourg. However, such an individualised analysis of the situation of single legal persons is not permissible a priori if the fines are imposed on undertakings which constitute an economic entity and are composed only formally of several legal persons. (141)

217. The devaluation of the investments in its three national subsidiaries claimed by Schindler Holding in this connection is also an unconvincing argument. Internally, it is for Schindler Holding itself to decide whether the fines imposed on the undertaking will be settled from the assets of the respective subsidiaries or whether it wishes to have recourse to its own assets as the parent company. As the General Court rightly stated, 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. (142)

218. Lastly, it should be borne in mind that the parent company of a group which exercises decisive influence over the commercial policy of its subsidiaries and thus ‘pulls the strings’ within that group cannot evade its personal responsibility for cartel offences, even though only the involvement of the subsidiaries as participants in the cartel is directly apparent outwardly. (143) Regard must therefore be had to the financial capacity of the parent company in calculating fines and assessing the undertaking’s ability to pay.

219. The effectiveness of fines imposed on undertakings in cartel proceedings would be seriously undermined if regard were had, in the calculation of the respective penalty, to the internal organisation of groups and the financially strong parent company were permitted, in its capacity as the holding company, to complain at the depreciation of its investments, but otherwise ‘wash its hands of the matter’ and attempt to pass on responsibility for any cartel offences to its less financially strong subsidiaries, even though it exercised decisive influence over their commercial policy.

220. All in all, in examining the right to property, the General Court therefore applied the correct legal criteria and, on that basis, was entirely right to reject the existence of an infringement of Schindler’s right to property. (144) Consequently, the ninth plea in law must be rejected.

6.      The principle of proportionality (thirteenth plea in law)

221. Lastly, in the thirteenth plea in law Schindler focuses on the principle of proportionality. In Schindler’s view, the General Court did not pay the necessary attention to that principle in paragraphs 365 to 372 of the judgment under appeal.

222. It is settled case-law that regard must be had to the principle of proportionality in connection with the imposition of fines for cartel offences. (145) Under Article 49(3) of the Charter of Fundamental Rights, that principle, according to which the severity of penalties must not be disproportionate to the criminal offence, now has the status of a fundamental right.

223. At the appeal stage, however, the Court does not substitute, on grounds of fairness, its own assessment of the question of the proportionality of a fine for that of the General Court, but simply examines whether in exercising its unlimited jurisdiction the General Court made a manifest error, for example because it failed to take into consideration all the relevant aspects. (146) Only exceptionally could it be found in appeal proceedings that the General Court erred in law, due to the inappropriateness of the amount of a fine, i.e. where ‘the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate’. (147)

224. No such errors in law are evident in the present case.

225. First, Schindler’s allegation that the General Court did not examine the specific case but was satisfied with the mere finding that the 10% ceiling for fines under the second subparagraph of Article 23(2) of Regulation No 1/2003 was not exceeded is also untenable. In actual fact, the General Court dealt with the proportionality of the fines imposed on Schindler by the Commission in great detail, considering inter alia aspects such as the very serious nature of the infringements, the need for a deterrent effect of penalties and the size and economic strength of the economic unit represented by Schindler as an undertaking. (148)

226. Second, Schindler’s claim that in analysing the size and economic strength of the undertaking, Schindler Holding should not have been taken into consideration is equally unconvincing. On the contrary, as has already been explained, (149) it was a legal requirement to take into consideration the capacity of the entire Schindler undertaking, including Schindler Holding as the parent company.

227. Lastly, in so far as Schindler attempts to question the proportionality of the fines in view of their purely nominal amount and, in this regard, relies on the case-law of the European Court of Human Rights, (150) its arguments must be rejected for the same reasons as I have already set out above in connection with the right to property. (151)

228. All in all, the thirteenth plea in law must also therefore be rejected.

D -    Summary

229. Because none of the pleas put forward by the appellants is successful, the appeal must be dismissed in its entirety.

V -    Costs

230. If, as I propose in this case, the appeal is dismissed, the Court will make a decision as to costs pursuant to Article 184(2) of the Rules of Procedure, the details of which are set out in Articles 137 to 146 in conjunction with Article 184(1) of those Rules of Procedure. (152)

231. It follows from Article 138(1) and (2) in conjunction with Article 184(1) of the Rules of Procedure that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings; where there is more than one unsuccessful party, the Court decides how costs are to be shared. Since the Commission has applied for costs and the appellants have been unsuccessful, they must be ordered to pay the costs. They must pay these costs jointly and severally since they brought the appeal jointly. (153)

232. It would certainly be conceivable to order the Council, as the intervener at first instance in support of the Commission which has also taken part in the appeal proceedings, to bear its own costs pursuant to the second sentence of Article 184(4) of the Rules of Procedure. (154) This is not mandatory, however, as is clear from the wording of that provision (‘may’). In the present case, there are, in my view, no compelling reasons to order the Council to bear its own costs. Even if it is assumed that the Council has a considerable institutional interest in defending the validity of Regulation No 1/2003, it must nevertheless be borne in mind that, in challenging that regulation, the appellants have not raised any genuinely new, previously unclarified legal questions. (155) Rather, in this respect the appellants have merely attempted to bring the Court to modify its previous case-law. It is fair that they bear the cost risk for this. The Court should therefore order them - in addition to their own costs - to pay the Council’s costs, just as it ordered the unsuccessful appellants in other cases to pay the costs incurred by the opposing intervener at first instance if the latter, like the Council in the present case, had been successful in their pleas in the appeal proceedings. (156)

VI - Conclusion

233. In the light of the foregoing, I propose that the Court:

(1)      dismisses the appeal;

(2)      orders the appellants jointly and severally to pay all the costs.

1 - Original language: German.

2 - Information from the Commission - 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’.

3 - Commission Decision of 21 February 2007 relating to a proceeding under Article 81 of the Treaty establishing the European Community (Case COMP/E-1/38.823 - Elevators and Escalators), notified under document number C(2007) 512 final, corrected by decision of 4 September 2007 and summarised in OJ 2008 C 75, p. 19.

4 - Case T-138/07 Schindler Holding and Others v Commission [2011] ECR I-4819.

5 - Recitals 27 to 32 of the contested decision and paragraph 3 of the judgment under appeal.

6 - Recitals 3 and 91 of the contested decision and paragraph 4 of the judgment under appeal.

7 - Recitals 3 and 91 of the contested decision and paragraph 22 of the judgment under appeal.

8 - Article 1 of the contested decision and paragraph 31 of the judgment under appeal.

9 - Article 2 of the contested decision and paragraph 31 of the judgment under appeal.

10 - See, in addition to the judgment under appeal, three other judgments in Joined Cases T-141/07, T-142/07, T-145/07 and T-146/07 General Technic-Otis and Others v Commission [2011] ECR II-4977; Joined Cases T-144/07, T-147/07 to T-150/07 and T-154/07 ThyssenKrupp Liften Ascenseurs v Commission [2011] ECR I-5129; and Case T-151/07 Kone and Others v Commission [2011] ECR I-5313. The judgment in ThyssenKrupp Liften Ascenseurs v Commission became final after six appeals lodged with the Court by various companies in the ThyssenKrupp Group were withdrawn (Cases C-503/11 P, C-504/11 P, C-505/11 P, C-506/11 P, C-516/11 P and C-519/11 P). An appeal is currently still pending before the Court against the judgment in Case C-510/11 P Kone and Others v Commission. The Court dismissed two further appeals against the judgment in General Technic-Otis and Others v Commission by orders of 15 June 2012 in Case C-493/11 P United Technologies v Commission and in Case C-494/11 P Otis Luxembourg (formerly General Technic-Otis) v Commission.

11 - The General Court accepted that there was, in some respects, no need to adjudicate because the Commission had corrected the contested decision on 4 September 2007 such that Schindler Management AG was no longer one of its addressees (see paragraphs 40 to 44 of the judgment under appeal).

12 - European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’, signed in Rome on 4 November 1950).

13 - See also judgment of 26 February 2013 in Case C-617/10 Åkerberg Fransson, paragraph 44, first sentence.

14 - Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 21; Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 39; and Case C-432/05 Unibet [2007] ECR I-2271, paragraph 37.

15 - To the same effect, Åkerberg Fransson, cited in footnote 13, paragraph 44, first sentence.

16 - Footnote does not apply to the English version.

17 - To the same effect, Case C-279/09 DEB [2010] ECR I-13849, paragraphs 30 to 33; Case C-386/10 P Chalkor v Commission [2011] ECR I-13085, paragraph 51; judgment of 6 November 2012 in Case C-199/11 Otis and Others, paragraph 47; and judgment of 29 January 2013 in Case C-396/11 Radu, paragraph 32.

18 - See my Opinions in Case C-280/06 ETI and Others [2007] ECR I-10893, point 71, and in Case C-17/10 Toshiba Corporation and Others [2012] ECR, point 48, each with further references. In its judgment in A. Menarini Diagnostics S.R.L. v. Italy, no. 43509/08, §§ 38 to 45, 27 September 2011, the European Court of Human Rights found that a fine imposed by the Italian competition authority in cartel proceedings could be regarded as criminal within the meaning of Article 6(1) ECHR. The EFTA Court took a similar approach in its judgment in E-15/10 Posten Norge v EFTA Surveillance Authority (‘Posten Norge’), 18 April 2012, not yet reported, paragraphs 87 and 88 with regard of a fine imposed in cartel proceedings by the EFTA Surveillance Authority.

19 - European Court of Human Rights, judgment in Jussila v. Finland, no. 73053/01, § 43, 23 November 2006, Reports of Judgments and Decisions 2006-XIV.

20 - European Court of Human Rights, Jussila v. Finland, cited in footnote 19, paragraph 43; to the same effect, European Court of Human Rights, A. Menarini Diagnostics S.R.L. v. Italy, cited in footnote 18, paragraph 62; see also EFTA Court, Posten Norge, cited in footnote 18, paragraph 89.

21 - European Court of Human Rights, A. Menarini Diagnostics S.R.L. v. Italy, cited in footnote 18, paragraph 59.

22 - Ibid.

23 - French: ‘le pouvoir de réformer en tous points, en fait comme en droit, la décision entreprise, rendue par l’organe inférieur’ (European Court of Human Rights, A. Menarini Diagnostics S.R.L. v. Italy, cited in footnote 18, paragraph 59).

24 - French: ‘compétence pour se pencher sur toutes les questions de fait et de droit pertinentes pour le litige’ (European Court of Human Rights, A. Menarini Diagnostics S.R.L. v. Italy, cited in footnote 18, paragraph 59); English: ‘jurisdiction to examine all questions of fact and law relevant to the dispute’ (European Court of Human Rights, decision in Valico S.r.l. v. Italy, no. 70074/01, p. 20 with further references, 21 March 2006, Reports of Judgments and Decisions 2006-III.

25 - English: ‘the power to quash in all respects, on questions of fact and law, the challenged decision’ (European Court of Human Rights, Janosevic v. Sweden, no. 34619/97, § 81, 23 July 2002, Reports of Judgments and Decisions 2002-VII, and decision in Valico v. Italy, cited in footnote 24, p. 20).

26 - Chalkor v Commission, cited in footnote 17, paragraph 53; Case C-272/09 P KME Germany and Others v Commission [2011] ECR I-12789, paragraph 93; and Case C-389/10 P KME Germany and Others v Commission [2011] ECR I-13125, paragraph 120.

27 - Case C-12/03 P Commission v Tetra Laval [2005] ECR I-987, paragraph 39; Chalkor v Commission, cited in footnote 17, paragraphs 54, 61 and 62; and Otis and Others, cited in footnote 17, paragraphs 59 to 61.

28 - Chalkor v Commission, paragraph 63, and Otis and Others, paragraph 62, cited in footnote 17.

29 - See also Chalkor v Commission, paragraph 67, and Otis and Others, paragraph 63, cited in footnote 17.

30 - Schindler’s claim that the General Court did not make its own findings of fact overlaps with the second plea in law and will be examined in that context (see below, points 42 to 57 of this Opinion).

31 - European Court of Human Rights, Jussila v. Finland, cited in footnote 19, paragraph 43; see also European Court of Human Rights, A. Menarini Diagnostics S.R.L. v. Italy, cited in footnote 18, paragraph 62.

32 - The appellants refer to the judgments of the European Court of Human Rights in Öztürk v. Germany, no. 8544/79, § 56, 21, February 1984, Series A no. 73, and Bendenoun v. France, no. 12547/86, § 46, 24 February 1994, Series A no. 284.

33 - European Court of Human Rights, A. Menarini Diagnostics S.R.L. v. Italy, cited in footnote 18; that case concerned a fine of EUR 6 million imposed in cartel proceedings by the Italian competition authority (see paragraphs 41 and 42 of that judgment).

34 - The close relationship between Article 47 of the Charter on the one hand and Articles 6 and 13 ECHR on the other is clearly expressed in the Explanations relating to the Charter (OJ 2007 C 303, p. 17 [29 et seq.]). The Court’s case-law in which the right to an effective remedy was recognised as a general legal principle is also largely based on the two provisions of the ECHR (see the judgments cited above in footnote 14).

35 - In so far as similar allegations have already been raised in passing in connection with the first plea in law, they will also be discussed below.

36 - At first instance Schindler alleged only the incompatibility of evidence furnished by cooperative witnesses with the principles of nemo tenetur se ipsum accusare, nemo tenetur se ipsum prodere and in dubio pro reo, with the principle of proportionality and with the limits of the discretion accorded to the Commission (see the fourth plea in law at first instance in paragraphs 68 to 89 of the application).

37 - Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59; Case C-97/08 P Akzo Nobel and Others v Commission [2009] ECR I-8237, paragraph 38; and Joined Cases C-628/10 P and C-14/11 P Alliance One International and Standard Commercial Tobacco v Commission (‘AOI’) [2012] ECR, paragraph 111.

38 - Chalkor v Commission, paragraphs 64 and 65, and Otis and Others, paragraph 61, first sentence, cited in footnote 17.

39 - Judgment under appeal, end of paragraph 57.

40 - Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 19; Case C-385/07 P Der Grüne Punkt - Duales System Deutschland v Commission [2009] ECR I-6155, paragraph 163; and Case C-89/11 P E.ON Energie v Commission [2012] ECR, paragraph 115.

41 - See paragraph 17 of Schindler’s reply in the appeal proceedings.

42 - See also my statements on the tenth plea in law (below, points 177 to 180 of this Opinion).

43 - Akzo Nobel and Others v Commission, cited in footnote 37, paragraphs 58 to 61; see also Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraph 29; Case C-90/09 P General Química and Others v Commission [2011] ECR I-1, paragraphs 39 and 40 and 85 to 90; and Case C-521/09 P Elf Aquitaine v Commission [2011] ECR I-8947, paragraphs 54 to 60.

44 - Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg and Others v Commission and Others [2011] ECR I-2239, paragraphs 96 to 98, and AOI, cited in footnote 37, paragraphs 46 and 47.

45 - See my Opinion of 29 November 2012 in Case C-440/11 P Commission v Stichting Administratiekantoor Portielje (‘Portielje’), pending before the Court, point 72.

46 - See again my Opinion in Portielje, cited in footnote 45, point 71.

47 - Paragraphs 81 to 83 of the judgment under appeal.

48 - See the case-law cited above in footnote 37.

49 - With regard to the European Union’s competences in this field, see in particular Article 50(2)(g) TFEU.

50 - See, inter alia, Case C-279/93 Schumacker [1995] ECR I-225, paragraph 21, with regard to direct taxation; Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161, paragraph 24, with regard to the organisation of education systems and the definition of the content of teaching, and Case C-169/07 Hartlauer [2009] ECR I-1721, paragraph 29, with regard to the organisation of social security systems.

51 - See above, point 70 of this Opinion and the case-law cited above in footnote 37.

52 - The parent company is also described by Schindler as the ‘ultimate group holding company’. However, for the sake of simplicity, I will adhere hereinafter to the term ‘parent company’ within the meaning of the Akzo Nobel case-law.

53 - Case C-95/04 P British Airways v Commission [2007] ECR I-2331, paragraph 137; see also Case C-413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I-4951, paragraph 29; Case C-352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I-2359, paragraph 180; and Elf Aquitaine v Commission, cited in footnote 43, paragraph 68.

54 - Case C-109/10 P Solvay v Commission [2011] ECR I-10329, paragraph 51; and Case C-110/10 P Solvay v Commission [2011] ECR I-10439, paragraph 46.

55 - The term ‘compliance’ generally encompasses an undertaking’s internal efforts to ensure observance of the rules in daily business. In their written pleadings in the appeal proceedings as at first instance, the appellants refer to the Code of conduct which has applied within the Schindler group since 1996 and the related Guidelines, in which the undertaking’s staff are encouraged, among other things, to comply with all applicable laws and regulations and to report all infringements. They stress the provision of regular information and training for staff and state that observance of the abovementioned internal rules is continually monitored, with infringements being penalised accordingly. The appellants take the view that Schindler’s compliance programme is ‘exemplary’.

56 - In paragraph 88 of the judgment under appeal, to which Schindler refers on several occasions, the General Court certainly did not make a factual finding, but merely discussed the hypothesis ‘that Schindler did its utmost’, however clearly without making that statement its own.

57 - Paragraphs 84 to 90 of the judgment under appeal.

58 - Judgment under appeal, end of paragraph 90.

59 - Akzo Nobel and Others v Commission, cited in footnote 37, paragraphs 65 and 74, and General Química and Others v Commission, cited in footnote 43, paragraph 51; see also Elf Aquitaine v Commission, cited in footnote 43, paragraph 54, and AOI, cited in footnote 37, paragraph 43.

60 - Ibid.

61 - Paragraphs 86, 87 and 90 of the judgment under appeal.

62 - Elf Aquitaine v Commission, cited in footnote 43, paragraphs 57 and 61, and order of 13 September 2012 in Case C-495/11 P Total and Others v Commission, paragraph 57.

63 - This complaint is raised in particular in connection with the second part of the seventh plea in law.

64 - This complaint is the subject of the sixth plea in law.

65 - See my Opinion of 28 February 2013 in Case C-681/11 Schenker and Others, pending before the Court, points 40 and 41.

66 - Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraphs 149 and 150, with regard to Article 6(2) ECHR, and E.ON Energie v Commission, cited in footnote 40, paragraphs 72 and 73, with regard to Article 48(1) of the Charter of Fundamental Rights; see also Case 27/76 United Brands and United Brands Continentaal v Commission [1978] ECR 207, paragraph 265.

67 - See again my Opinion in Schenker and Others, cited in footnote 65, point 41.

68 - See above, points 93 to 100 of this Opinion.

69 - See my Opinion in Akzo Nobel and Others v Commission, cited in footnote 37, point 98.

70 - For example, I explained in my Opinion in Schenker and Others, cited in footnote 65, in particular points 38 to 48, that a fine may not be imposed on an undertaking for an infringement of the prohibition of cartels under EU law committed by it in the case where the undertaking erred with regard to the lawfulness of its conduct (error of law) and it cannot be held responsible for that error.

71 - See the case-law cited above in footnote 37.

72 - The Commission rightly points out that all the necessary information is contained in the contested decision (see recitals 157, 224, 311, 347 and 387 of that decision).

73 - Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 97, and Case C-68/12 Slovenská sporiteľňa [2013] ECR, paragraph 25.

74 - See above, points 97 to 99 of this Opinion.

75 - 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, paragraphs 215 to 223; Case C-266/06 P Evonik Degussa v Commission, not published in the ECR, in particular paragraphs 38 to 40; and Case C-413/08 P Lafarge v Commission [2010] ECR I-5361, paragraphs 94 and 95.

76 - Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, paragraph 49, and Case C-308/06 Intertanko and Others [2008] ECR I-4057, paragraph 70.

77 - Advocaten voor de Wereld, cited in footnote 76, paragraph 50; Evonik Degussa v Commission, cited in footnote 75, paragraph 39; Intertanko, cited in footnote 76, paragraph 71; and Lafarge v Commission, cited in footnote 75, paragraph 94; see also Joined Cases C-74/95 and C-129/95 X [1996] ECR I-6609, paragraph 25, and ThyssenKrupp Nirosta v Commission, cited in footnote 53, paragraph 80.

78 - See the case-law cited in footnote 37.

79 - That is the situation, for example, in the German Strafgesetzbuch (Criminal Code, StGB) with ‘causing or maintaining an error’ in connection with fraud (paragraph 263 of the StGB), the ‘fiduciary relationship’ in connection with abuse of trust (paragraph 266, second variant of the StGB), ‘exploitation of the substantial weakness of will of another’ and the ‘clear disproportion between performance and consideration’ in connection with usury (paragraph 291 of the StGB) or with the criminal offence of ‘compulsion’ (paragraph 240 of the StGB).

80 - Advocaten voor de Wereld, cited in footnote 76, paragraph 50; Evonik Degussa v Commission, cited in footnote 75, paragraph 40; Intertanko, cited in footnote 76, paragraph 71; and Lafarge v Commission, cited in footnote 75, paragraph 94. To the same effect, with regard to Article 7 ECHR, see European Court of Human Rights, G. v. France, no. 15312/89, § 25, 27 September 1995, Series A no. 325-B, and Coëme and Others v. Belgium, no. 32492/96 and Others, § 145, 22 June 2005, Reports of Judgments and Decisions 2000-VII.

81 - Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Akzo Nobel and Others v Commission, cited in footnote 37, paragraph 54; General Química and Others v Commission, cited in footnote 43, paragraph 34; ArcelorMittal Luxemburg and Others v Commission and Others, cited in footnote 44, paragraph 95; and AOI, cited in footnote 37, paragraph 42; see also Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11.

82 - See above, points 84 and 85 of this Opinion.

83 - Hydrotherm Gerätebau, cited in footnote 81, paragraph 11; Akzo Nobel and Others v Commission, cited in footnote 37, paragraph 55; and AOI, cited in footnote 37, paragraph 42.

84 - See above, point 60 of this Opinion.

85 -      Evonik Degussa v Commission, paragraphs 36 to 63, and Lafarge v Commission, paragraph 94 and 95, cited in footnote 75; Case T-11/05 Wieland-Werke and Others v Commission, not published in the ECR, paragraphs 58 to 73; and Case T-446/05 Amann & Söhne and Cousin Filterie v Commission [2010] ECR II-1255, paragraphs 123 to 152.

86 - Council Regulation (EEC) No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962(I), p. 87).

87 - See in particular paragraphs 97 to 109 of the judgment under appeal.

88 - The close relationship between Article 49 of the Charter on the one hand and Article 7(1) ECHR on the other is clearly expressed in the Explanations relating to the Charter (OJ 2007 C 303, p. 17 [30 et seq.]). The Court’s case-law in which the principle of nullum crimen, nulla poena sine lege was recognised as a general legal principle is also largely based on Article 7(1) ECHR.

89 - See above, point 25 of this Opinion.

90 - Musique Diffusion française and Others v Commission, cited in footnote 73, paragraph 109; Dansk Rørindustri and Others v Commission, cited in footnote 75, paragraph 169; and Case C-280/08 P Deutsche Telekom v Commission [2010] ECR I-9555, paragraph 294.

91 - European Court of Human Rights, SW v United Kingdom, 22 November 1995 (Application No 20166/92, Series A, No 335-B, paragraph 36), concerning the application of Article 7(1) ECHR in respect of a penalty for rape within marriage, which was not expressly laid down by law.

92 - To the same effect, Case T-99/04 AC-Treuhand v Commission [2008] ECR II-1501, paragraph 113.

93 - See above, point 26 of this Opinion.

94 - Evonik Degussa v Commission, paragraphs 44 and 50, and Lafarge v Commission, paragraph 95, cited in footnote 75; with regard to the need for foreseeability of the consequences in criminal law of certain conduct under Article 7(1) ECHR, see European Court of Human Rights, M. v. Germany, no. 19359/04, § 90, 17 December 2009.

95 - See my Opinion of 13 December 2012 in Case C-439/11 P Ziegler v Commission, pending before the Court, point 120.

96 - See above, point 82 of this Opinion.

97 - Case C-369/09 P ISD Polska and Others v Commission [2011] ECR I-2011, paragraph 66; see also the order of 14 December 1995 in Case C-173/95 P Hogan v Court of Justice [1995] ECR I-4905, paragraph 20; and Baustahlgewebe v Commission, cited in footnote 14, paragraph 113.

98 - See my Opinion of 6 September 2012 in Case C-226/11 Expedia, points 26 and 30; see also Dansk Rørindustri and Others v Commission, cited in footnote 75, paragraphs 209 and 210; Case C-360/09 Pfleiderer [2011] ECR I-5161, paragraphs 21 and 23; Case C-520/09 P Arkema v Commission [2011] ECR I-8901, paragraph 88.

99 - See my above statements on the third plea in law, in particular points 148 to 157 of this Opinion.

100 - Arkema v Commission, cited in footnote 98, paragraph 88; see also Chalkor v Commission, cited in footnote 17, paragraph 60.

101 - See my Opinion in Expedia, cited in footnote 98, point 29. With regard to the Commission’s role in defining the European Union’s competition policy, see also Case C-344/98 Masterfoods [2000] ECR I-11369, paragraph 46, first sentence.

102 - See above, in particular points 22 to 24 and 136 of this Opinion.

103 - Dansk Rørindustri and Others v Commission, cited in footnote 75, paragraphs 217, 218 and 227 to 231, and Case C-3/06 P Groupe Danone v Commission [2007] ECR I-1331, paragraphs 87 to 94.

104 - See in particular paragraphs 118 to 128 of the judgment under appeal.

105 - See the case-law cited in footnote 90.

106 - See also above, point 153 of this Opinion.

107 - Case C-194/99 P Thyssen Stahl v Commission [2003] ECR I-10821, paragraph 118; Case C-534/07 P Prym and Prym Consumer v Commission [2009] ECR I-7415, paragraph 96; and Case C-554/08 P Carbone-Lorraine v Commission, not published in the ECR, paragraph 84.

108 - See above, in particular points 47 to 50 and 57 of this Opinion.

109 - KME and Others v Commission, cited in footnote 26, paragraph 56.

110 - Paragraph 276 of the judgment under appeal.

111 - See above, points 99 and 132 of this Opinion.

112 - It is stated in the appeal that ‘as a side-effect, Schindler’s compliance system made the internal discovery of infringements which had occurred more difficult, since the employees who had committed the infringements were under threat of serious penalties’ (sic!).

113 - Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3), also ‘the 2002 Leniency Notice’.

114 - Paragraphs 295 to 300 of the judgment under appeal, in particular paragraphs 298 and 300.

115 - Chalkor v Commission, paragraph 63, and Otis and Others, paragraph 62, cited in footnote 17.

116 - KME and Others v Commission, cited in footnote 26, paragraph 109; KME Germany and Others v Commission, cited in footnote 26, paragraph 136; and Chalkor v Commission, cited in footnote 17, paragraph 82.

117 - Paragraphs 301 to 349 of the judgment under appeal.

118 - As the General Court also correctly states in paragraph 346 of the judgment under appeal.

119 - Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P Erste Group Bank and Others v Commission [2009] ECR I-8681, paragraph 256, and KME and Others v Commission, cited in footnote 26, paragraph 79.

120 - See my statements on the seventh plea in law.

121 - The fine imposed on Schindler’s German subsidiary is not the subject of this plea in law.

122 - See, inter alia, Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14; Case 44/79 Hauer [1979] ECR 3727, paragraph 17; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission (‘Kadi’) [2008] ECR I-6351, paragraph 355.

123 - In Kadi, cited in footnote 122, paragraphs 354 to 371, for example, the Court acknowledged that private individuals from non-member countries may invoke the right to property protected as a fundamental right in EU law.

124 - Protocol of 20 March 1952 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No 9).

125 - See above, point 22 of this Opinion.

126 - The close relationship between Article 17 of the Charter on the one hand and Article 1 of the First Protocol on the other is clearly expressed in the Explanations relating to the Charter (OJ 2007 C 303, p. 17 [23]). The Court’s case-law in which the right to property was recognised as a general legal principle is largely based on that Protocol (see, for example, Kadi, cited in footnote 122, paragraph 356).

127 - Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I-4235, paragraph 113; and Case C-227/04 P Lindorfer v Council [2007] ECR I-6767, paragraph 83.

128 - Paragraph 192 of the judgment under appeal.

129 - European Court of Human Rights, Mamidakis v. Greece, no. 35533/04, § 44, 11 January 2007; see also, with regard to taxes, European Court of Human Rights, Buffalo S.r.l. en liquidation v. Italy, no. 38746/97, § 32, 3 July 2003.

130 - See, most recently, Case C-544/10 Deutsches Weintor [2012] ECR, paragraph 54; Case C-416/10 Križan and Others [2013] ECR, paragraph 113; and Case C-12/11 McDonagh [2013] ECR, paragraph 60.

131 - See also McDonagh, cited in footnote 130, paragraph 61.

132 - The Court recognised in Joined Cases C-92/09 and C-93/09 Schecke and Eifert [2010] ECR I-11063, paragraph 66, that a regulation must be regarded as a basis provided for by law.

133 - With regard to the enshrinement of that aim in primary law at the time when the contested decision was adopted, see Article 3(1)(g) EC. This can also be seen today from Protocol No 27 on the internal market and competition, annexed to the Treaties (OJ 2008 C 115, p. 309; OJ 2010 C 83, p. 309), as the Court has confirmed in connection with Article 102 TFEU (Case C-52/09 TeliaSonera Sverige [2011] ECR I-527, paragraphs 20 to 22). See also Article 119(1) TFEU (formerly Article 4 EC), under which the Member States and the Union are required to comply with the principle of an open market economy with free competition.

134 - See my Opinion in Schenker and Others, cited in footnote 65, point 114.

135 - European Court of Human Rights, Mamidakis v. Greece, cited in footnote 129, paragraph 48.

136 - European Court of Human Rights, Mamidakis v. Greece, cited in footnote 129, paragraphs 44 (end), 45 and 47; see also Phillips v. United Kingdom, no. 41087/98, § 51, 5 July 2001, Reports of Judgments and Decisions 2001-VII, and decision in Orion Břeclav v. Czech Republic (dec.), no. 43783/98, 13 January 2004.

137 - European Court of Human Rights, Mamidakis v. Greece, cited in footnote 129, paragraphs 47 and 48, and Buffalo v Italy, cited in footnote 129, paragraph 32, and decision in Orion Břeclav v. Czech Republic (dec.), cited in footnote 136.

138 - See in particular paragraphs 190 and 191 of the judgment under appeal.

139 - European Court of Human Rights, Mamidakis v. Greece, cited in footnote 129, paragraphs 47 and 48.

140 - The situation may be different if extraordinary circumstances seriously affect the undertaking’s financial capacity when the fine is imposed. However, there is no evidence of this in the present case and Schindler has not relied on any such extraordinary circumstances.

141 - See my statements with regard to the sixth and seventh pleas in law (above, points 60 to 133 of this Opinion).

142 - Paragraph 194 of the judgment under appeal.

143 - See my Opinion in Akzo Nobel and Others v Commission, cited in footnote 37, point 99.

144 - Paragraphs 185 to 196 of the judgment under appeal.

145 - See Dansk Rørindustri and Others v Commission, cited in footnote 75, paragraph 319, and 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 365.

146 - See Aalborg Portland and Others v Commission, cited in footnote 145, paragraph 365, Dansk Rørindustri and Others v Commission, cited in footnote 75, paragraphs 244 and 303, and Baustahlgewebe v Commission, cited in footnote 14, paragraph 128.

147 - E.ON Energie v Commission, cited in footnote 40, paragraphs 125 and 126.

148 - See paragraphs 367 to 370 of the judgment under appeal.

149 - See above, points 199 to 201 and 218 and 219 of this Opinion.

150 - Schindler cited European Court of Human Rights, Mamidakis v. Greece (footnote 129 above, paragraphs 44).

151 - See above, in particular points 214 to 219 of this Opinion.

152 - Pursuant to the general principle that new procedural rules apply to all proceedings pending at the time when they enter into force (settled case-law; see, for example, Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, paragraph 9), the decision on costs in the present case is based on the Rules of Procedure of the Court of Justice of 25 September 2012, which entered into force on 1 November 2012 (see Case C-441/11 P Commission v Verhuizingen Coppens [2012] ECR, paragraphs 83 to 85). There is, however, no substantive difference from Article 69(2), in conjunction with Article 118 and Article 122(1), of the Rules of Procedure of the Court of Justice of 19 June 1991.

153 - Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission [2010] ECR I-8301, paragraph 123; see also Joined Cases C-122/99 P and C-125/99 P D and Sweden v Council [2001] ECR I-4319, paragraph 65; in the latter case, D and the Kingdom of Sweden had even lodged two separate appeals and were nevertheless ordered jointly and severally to pay the costs.

154 - As happened in Evonik Degussa v Commission, cited in footnote 75, point 3 of the operative part.

155 - In this respect the present case differs fundamentally from Evonik Degussa v Commission, cited in footnote 75, in which the validity of Regulation No 17 could still be regarded as a fundamentally new legal question. In Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council, it was also necessary to clarify a still unresolved legal question of fundamental importance and for that reason I proposed that the Court apply the second sentence of Article 184(4) of the Rules of Procedure and order the Commission, as the intervener at first instance, to bear its own costs (see points 151 and 152 of my Opinion of 17 January 2013 in that case).

156 - See, for example, judgment of 19 July 2012 in Case C-337/09 P Council v Zhejiang Xinan Chemical Industrial Group, paragraph 112; in that case, the Council, as the unsuccessful appellant, was ordered to pay the costs including those incurred by Audace as the opposing intervener at first instance, which had been successful in its pleas in the appeal proceedings.