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Brussels, 13 July 2011

Antitrust: Commission welcomes Court judgment in the Elevators and Escalators cases

The European Commission welcomes the judgments by the General Court (Cases T-138/07, T-141/07, T-142/07, T-144/07, T-145/07, T-146/07, T-147/07, T-148/07, T-149/07, T-150/07, T-151/07, T-154/07), which largely uphold a Commission decision of February 2007 fining Otis, Kone, Mitsubishi, Schindler and ThyssenKrupp for operating a cartel in the market for elevators and escalators (see IP/07/209). The Court dismissed the actions brought by Otis, Kone and Schindler in their entirety, maintaining the fines of € 224 932 950, € 142 120 000 and € 143 748 000 respectively. The Court's judgments confirmed the Commission's position on important principles of EU competition law, such as the applicability of EU competition law to cartels operated on a national basis, the calculation of fines and reduction for leniency cooperation the liability of parent companies and fine reduction for non-contestation of facts. The Commission notes that the fine imposed on ThyssenKrupp has been reduced by approximately € 160 million, as the increase of 50 % of the fine on ThyssenKrupp due to its participation in an earlier infringement was not found to be correct.

The General Court confirmed largely a Commission decision of 21 February 2007 (see IP/07/209) imposing a fine of €992 312 200 on the undertakings Kone, Mitsubishi, Otis, Schindler and Thyssen for a breach of Article 81 EC (now Article 101 of the Treaty on the Functioning of the European Union). The undertakings were found to have participated in four separate single and continuous infringements in each Belgium, Germany, Luxembourg and the Netherlands. In particular, the companies agreed to allocate between them public tenders and other contracts for the sale, installation and servicing of elevators and escalators and not to compete with each other. Moreover, they exchanged commercially sensitive information. In the appeals, none of the undertakings had contested the facts as found in the decision.

The Commission welcomes that the Court upheld its position that the four cartels in Luxemburg, the Netherlands, Germany and Belgium had a significant effect on trade between Member States. Therefore, EU competition law applied to the companies' conduct and the Commission had competence to take a decision. Moreover, the Court upheld the Commission's assessment that all (ultimate) parent companies addressed in the decision were jointly and severally liable for the infringement, in line with previous case law. The Court also confirmed the Commission's margin of appreciation with regard to the value of co-operation under the Leniency Notice. In addition, the Court confirmed the Commission's finding that non-binding statements by National Competition Authorities, which grant provisional immunity at national level, do not prevent the Commission from pursuing a case. Furthermore, the Court upheld that an undertaking which has evidently taken note of a Decision addressed to it cannot claim anymore that this decision has not been notified to it. The Court also agreed with the Commission on the setting of the basic amounts to calculate the fines imposed on the undertakings. The Commission also welcomes that the reduction of a fine on all undertakings concerned for not contesting the facts was upheld at a level of 1 %.

The Commission notes that the General Court reduced the aggregate fine imposed on Thyssen from approximately €480 million to approximately €320 million, given that the Court found that an increase of 50 % of Thyssen's fine for recidivism (imposed with reference to case T-203/01 Michelin) was not justified. The Court held that, as the parent company of the Thyssen group was not an addressee of the previous decision, which had led to the finding of recidivism, a finding of recidivism was not justified.

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