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.
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.
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.
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.
Results (sanctions) and key consequences of the case:
Dismisses the appeal.
Orders the appellants jointly and severally to pay all the costs.