Article 51 - Field of application
Article 48 - Presumption of innocence and right of defence
Article 47 - Right to an effective remedy and to a fair trial
Article 49 - Principles of legality and proportionality of criminal offences and penalties
Article 17 - Right to property
Article 52 - Scope and interpretation
Schindler Holding Ltd and Others v European Commission. Appeal — Agreements, decisions and concerted practices — Market for the installation and maintenance of elevators and escalators — Liability of the parent company for infringements of the law on cartels committed by its subsidiary — Holding company — Internal compliance programme — Fundamental rights — Principles of the rule of law in the context of determination of the fines imposed — Separation of powers, and principles of legality, of non-retroactivity, of the protection of legitimate expectations and of fault — Regulation (EC) No 1/2003 — Article 23(2) — Validity — Legality of the 1998 Commission guidelines.
Outcome of the case:
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.
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 )
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 )
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.
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 )
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.
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.
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).
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 )
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 )
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.