On 24 October 2013, the Court of Justice of the European Union ("ECJ") dismissed an appeal brought by Kone Oyj, Kone GmbH and Kone BV against a General Court ("GC") judgment which upheld the European Commission's decision in the elevator cartel case.
In a decision of 21 February 2007, the Commission imposed fines totalling € 992 million on the ThyssenKrupp, Otis, Kone and Schindler groups of companies for having participated in a price-fixing, market-sharing and bid-rigging cartel on the market for elevators and escalators in the Benelux and Germany. The appellants were granted immunity from fines in respect of the infringements in Belgium and Luxembourg, but were fined over € 62 million and € 79 million for their participation in the infringements in Germany and the Netherlands respectively (see VBB on Competition Law, Volume 2007, No. 3, available at www.vbb.com). As the appellants' appeal before the General Court ("GC") in 2011 was unsuccessful (see VBB on Competition Law, Volume 2011, No. 7, available at www.vbb.com), a subsequent appeal was lodged before the ECJ to challenge, in particular, the GC's interpretation of certain provisions of the 2002 Leniency Notice and the standard of review carried out by the GC.
First, the appellants claimed the GC had not exercised its unlimited jurisdiction when reviewing the legality of the decision and had thus infringed their right to a fair trial. The ECJ recalled that, in accordance with the case law, the GC cannot substitute its own view for matters within the Commission's margin of discretion either as regards the choice of factors taken into account in the application of the 2002 Leniency Notice or as regards the assessment of those factors. However, the ECJ dismissed this claim finding that the appellants were merely criticising the GC in abstract terms, and thus upheld the Commission's argument that the appellants had not indicated precisely where the GC had unduly deferred to the Commission's discretion.
Secondly, the ECJ ruled as inadmissible a claim based on a misinterpretation of point 8(b) of the 2002 Leniency Notice, which challenged the assessment made by the GC with regard to the probative value of the evidence provided by the appellants in the framework of the Leniency Notice. The ECJ found that the appellants had not established that the facts or the evidence were distorted.
Thirdly, the ECJ rejected as unfounded the appellants' argument that the GC had erred in law in finding that the Commission had not breached their legitimate expectations by failing to inform them in a timely manner that immunity from fines was not available. The appellants filed their application for leniency on 12 and 18 February 2004 and the Commission informed them of its refusal on 29 June 2004. The ECJ took the view that the Commission cannot, in the phase of the procedure prior to the adoption of the final decision, give any precise assurance as to any reduction of, or immunity from, fines.
Further, the appellants complained that the GC had wrongly assessed the value of the information provided by them to the Commission in the framework of the Leniency Notice, in particular having regard to the concept of the "significant added value" of the information. The ECJ dismissed that claim on the grounds that the GC had sufficiently detailed why the information presented before it did not represent significant added value, taking into account, among other things, that the appellants in fact denied that the discussions had an anti-competitive purpose which reduced the probative value of the evidence already in possession of the Commission.
Finally, the ECJ also rejected a claim of a breach of the principle of equal treatment. The appellants complained that the GC had infringed the principle of equal treatment in failing to conduct an assessment of the relative value added by their leniency application concerning the infringement in the Netherlands, as compared to the value added by their leniency application in Belgium. In other words, the appellants complained that, on these grounds also, the GC had not fulfilled its obligation to exercise its power of review with regard to the added value represented by the information provided by them in their leniency application. The ECJ dismissed the claim on the grounds that the situations in question were not comparable.
For all the above mentioned reasons, the ECJ rejected the appellants' appeal and upheld the fines imposed on them.
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