Final report of the Hearing Officer on the procedure in the Case COMP/E-1/38.823 — Elevators and Escalators

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2008/C 75/08)

The draft decision gives rise to the following observations:

Summary of the case

The present case was initiated following information provided in the summer of 2003 by an informant who approached the Commission with information concerning the existence of cartel activities among the four major manufacturers of elevators and escalators in the European Union.

Starting in January 2004, a series of inspections under Article 14(3) of Regulation No 17 took place in a number of countries including initially Belgium and Germany, and subsequently Luxembourg and the Netherlands. These inspections and a large number of applications under the Commission's Notice on Immunity from fines and reduction of fines in cartel cases provided the Commission with evidence of infringements of Article 81(1) of the EC Treaty through agreements and concerted practices, the facts of which as set out in the Statement of Objections ("SO") are not contested as such by the addressees of the draft Decision.

The initiation of proceedings, access to file, waiver of the right to an oral hearing

On 7 October 2005, the Commission addressed a Statement of Objections ("SO") to the following undertakings: KONE Belgium SA, KONE GmbH, KONE Luxembourg SARL, KONE BV Liften en Roltrappen, KONE Corporation (hereinafter jointly "KONE"), NV OTIS SA, Otis GmbH & Co. OHG, General Technic-Otis SARL, General Technic SARL, Otis BV, Otis Elevator Company (hereinafter jointly "OTIS"), Schindler SA/NV, Schindler Deutschland Holding GmbH, Schindler SARL, Schindler Liften BV, Schindler Holding Ltd (hereinafter jointly "Schindler"), ThyssenKrupp Liften Ascenseurs NV/SA, ThyssenKrupp Aufzüge GmbH, ThyssenKrupp Fahrtreppen GmbH, ThyssenKrupp Ascenseurs Luxembourg SARL, ThyssenKrupp Liften BV, ThyssenKrupp Elevator AG and ThyssenKrupp AG (hereinafter jointly "ThyssenKrupp"), Mitsubishi Elevator Europe BV, United Technologies Corporation and two other undertakings.

The undertakings were given access to the Commission's investigation file in the form of (a) copy(ies) on DVD. Access to documents relating to oral statements submitted by Leniency applicants was given at the Commission premises.

All the companies to which the SO had been addressed submitted written comments in response to the objections raised by the Commission.

None of the addressees to the SO chose to request an oral hearing and therefore no oral hearing took place in the present case.

The main procedural issues raised by the parties

In the course of the proceedings leading to the present draft decision, a series of procedural issues was raised, in particular the following:

- The deadline for replying to the SO

Most of the addressees of the SO requested an extension of the deadline (two months from the date of receipt of the access to file DVD) to reply to the SO. I fixed new deadlines for the companies in question between 21 and 27 February 2006 in accordance with the pertinence of the reasons given to support their individual requests.

- The preparation of a single SO and the organisation of the Commission's file

The relevant Commission service decided to send all companies implicated in the case a single SO that contained sections for all countries covered by the investigation regardless of whether the company in question was involved in the entirety of the respective countries or practices described. Furthermore, the Commission decided to grant all addressees of the SO access to the file concerning the entirety of these countries or practices (except for business secrets and other confidential information). The parties were given the opportunity to express their views to the Hearing Officer before access was given on this basis.

United Technologies Corporation, Schindler, OTIS and ThyssenKrupp claimed that the Commission should have sent distinct and separate SOs to the addressees in accordance with their involvement in the different national cartels and should have organised the file differently, given that the Commission had alleged the existence of separate national infringements rather than the existence of a pan European cartel. They considered that companies which were only accused of having participated in the infringement in one country should only have access to the documents in the file relating to the country in question. Furthermore, they took the view that the addressees of the SO involved in a cartel in a different country had no legitimate interest in seeing all documents in the Commission's file. Other parties took a contrary view.

In response, I considered that the relevant Commission service enjoys a certain margin of discretion in its decision jointly to investigate infringements that it considers to be related. I informed the parties that if there were objective reasons that had led the relevant Commission service to believe that a comprehensive and thorough analysis of the anticompetitive behaviour under investigation requires an exploration into different geographical markets at the same time, I was willing to accept this finding. Having examined carefully the manner in which the investigation had been carried out, the nature of the alleged infringements and the companies involved, it appeared to me that there were sufficient reasons to assume that the alleged infringements in the different markets in question were sufficiently linked to be subject of a common investigation. In particular, in the light of the specific factors involved, I considered the relevant Commission service had acted in an appropriate manner in maintaining a common investigation after reaching the provisional conclusion that the infringements at issue were four separate national cartels.

Concerning access to file, I consider that EC Competition Law and the jurisprudence of the Community Courts ensure sufficiently the protection of the companies' sensitive information and assured the companies that any piece of information for which they could put forward that the disclosure would cause significant and serious harm would be afforded special protection throughout the administrative proceedings. This principle was respected in the present case.

- Access to additional documents

KONE requested access to additional documents, including, inter alia, a more comprehensive summary of the informant's submission to the Commission that had initiated the first inspections, and also an internal document of the Commission relating to the preparation of inspections in Germany. These documents were requested in order to prove that they should be granted full immunity under the Commission's Leniency Notice.

With regard to the informant's submission, the Commission is under a strict obligation to protect the identity of its informers against the danger of retaliation [1]. In particular, where powerful companies are investigated for alleged infringements of competition law, the Commission has the duty to protect whistleblowers from the harsh reactions they might have to face should their identity be revealed. Accordingly, whilst I was able to single out a few further passages that in my view could be disclosed to KONE without risk of endangering the informant's anonymity, and which were subsequently made available, I otherwise endorsed the decision taken by the relevant Commission service not to grant access to the whistleblower's submission in this case.

With regard to the request for internal documents, according to the case law and the Commission's Notice on access to file, the Commission's internal documents are in principle inaccessible. I took the view that the mere allegation by a company that internal documents could be useful in the preparation of its defence cannot be sufficient to create an obligation on the part of the Commission to render these documents accessible. Otherwise, the rule of inaccessibility of such internal information would be reversed and the legitimate interest in keeping the Commission's internal deliberations secret seriously undermined. I consider that it is rather for the Commission services to verify themselves and, upon substantiated request, for the Hearing Officer to crosscheck, whether the Commission's internal documents contain factual evidence which could be indispensable for a party's defence. Upon verification, my view was that this was not the case in this particular instance. Accordingly, access was not granted.

The draft Decision

In the draft Decision the objections against two undertakings have been dropped. With regard to the other addressees of the SO, some minor calculation errors have been rectified without, however, modifying the start and end dates of the infringement (except for the case of OTIS in the Netherlands cartel where a later starting date was set).

The draft Decision submitted to the Commission only contains objections about which the parties have had the opportunity to state their views.

In the light of the above, I consider that the right of the parties to be heard has been fully respected in this case.

Brussels, 12 February 2007.

Karen Williams

[1] Judgement of the Court of 7 November 1985 in Case 145/83, Stanley George Adams v Commission (ECR) 1985, p. 3539 and paragraph 19 of the Commission Notice of 13 December 2005 on the rules for access to the Commission file.

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