26.3.2008   

EN

Official Journal of the European Union

C 75/19

1.

The decision was addressed to KONE Belgium SA, KONE GmbH, KONE Luxembourg SARL, KONE BV Liften en Roltrappen, KONE Corporation (hereinafter ‘KONE’), Mitsubishi Elevator Europe BV, NV OTIS SA, Otis GmbH & Co. OHG, General Technic-Otis SARL, General Technic SARL, Otis BV, Otis Elevator Company, United Technologies Corporation (hereinafter ‘Otis’), Schindler SA/NV, Schindler Deutschland Holding GmbH, Schindler SARL, Schindler Liften BV, Schindler Holding Ltd (hereinafter ‘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 ‘ThyssenKrupp’).

2.

The addressees participated in four separate but related single and continuous infringements of Article 81 of the Treaty in Belgium, Germany, Luxembourg and the Netherlands regarding elevators and escalators. Each of the four infringements covered the whole territory of one of these Member States.

3.

The Commission initiated the investigation on its own initiative (‘ex-officio’) in early 2004 using information brought to its attention. Three rounds of inspections (Belgium, and Germany: January 2004; Belgium, Germany and Luxembourg: March 2004 and the Netherlands: April 2004) and a large number of leniency applications under the 2002 Leniency Notice confirmed that cartels were run in Belgium, Germany, Luxembourg and the Netherlands. The infringements covered both new installations and services, except in Germany where the evidence would suggest that only new installations were covered.

4.

All four cartels displayed some common elements, such as, for instance:

5.

The Statement of Objections was notified to the parties in October 2005. The addressees of the Statement of Objections did not request an oral hearing.

6.

The periods of infringements retained in the decision are:

7.

In particular, the following infringements were committed in one, several or all of the Member States concerned:

The infringements' main features also included exchange of commercially important and confidential market and company (internal) information including bidding patterns and prices. The participants met regularly to agree to the above restrictions and they monitored their implementation within the national markets. There is evidence that the companies were aware that their behaviour was illegal and they took care to avoid detection; their employees usually met in bars and restaurants, they travelled to the countryside or even abroad, and they used pre-paid mobile phone cards to avoid tracking.

8.

Regarding the gravity of the infringements, impact on the market and their geographic scope, the infringements must be qualified as very serious.

9.

The undertakings were divided into different categories according to their relative importance in the markets to account for the specific weight and therefore the real impact of each undertaking on the market.

10.

As the basis for comparing the relative importance of an undertaking in the market concerned, the Commission considered it appropriate to take the undertakings' Belgium-wide, Germany-wide, Luxembourg-wide and the Netherlands-wide turnovers, respectively. The comparison was made on the basis of these national-wide product turnovers in the last full year of the infringements: 2003 for all the undertakings concerned in respect of each of the four infringements, except for Schindler in Germany, for whom 2000 was the reference year, when it exited the cartel.

11.

As regards the infringement in Belgium, Schindler and KONE were jointly placed in a first, Otis in a second and ThyssenKrupp in a third category. As regards in infringement in Germany, KONE, Otis and ThyssenKrupp were placed in one category. Schindler, whose illegal behaviour was confined to escalators and who exited the cartel in 2000, was placed in a separate category. In respect of the infringement in Luxembourg, Otis and Schindler were jointly placed in a first category and Kone and ThyssenKrupp were jointly placed in a second category. Finally, as regards the infringement in the Netherlands, KONE was placed in a first, Otis in a second and Schindler in a third category. ThyssenKrupp and Mitsubishi were jointly placed in a fourth category.

12.

In order to set the amount of the fine at a level ensuring a sufficiently deterrent effect, the Commission considered it appropriate to apply a multiplication factor to the fines imposed.

13.

With their respective worldwide turnovers, ThyssenKrupp and Otis are much larger players than the other addressees. Accordingly, and in compliance with previous Commission decisions, the Commission considered it appropriate to multiply the respective fines for ThyssenKrupp and Otis.

14.

Individual multiplying factors were also applied according to the duration of the infringements by each legal entity.

15.

ThyssenKrupp was considered to have committed a repeated infringement, since two entities controlled by Krupp and/or Thyssen (before these two undertakings merged in 1999) had already been addressees of a previous Commission decision concerning cartel activities in Alloy Surcharge  (1). The fact that the undertakings have repeated the same type of conduct in the same or in different business fields shows that the initial penalties did not prompt them to change their conduct. This constitutes an aggravating circumstance justifying an increase in the basic amount of the fine to be imposed on ThyssenKrupp.

16.

KONE, Otis, ThyssenKrupp and Schindler submitted applications under the Leniency Notice. They co-operated with the Commission at different stages of the investigation with a view to receiving favourable treatment under the Leniency Notice.

17.

Otis was granted full immunity under point 8(a) of the Leniency Notice concerning a cartel in the Netherlands since it enabled the Commission to carry out inspections in the Netherlands.

18.

In respect of the infringements in Belgium and Luxembourg, KONE's submission enabled the Commission to find an infringement of Article 81 of the Treaty. Hence, KONE qualified for a full immunity from the fine in respect of the infringements in Belgium and Luxembourg.

19.

The evidence submitted by Otis relating to the cartels in Belgium and Luxembourg represented significant added value with respect to the evidence already in the Commission's possession, strengthening the Commission's ability to prove the infringement. Otis was the first undertaking to meet point 21 of the Leniency Notice and was granted a 40 % reduction of the fine for both infringements. Similarly, KONE's submission in relation to the cartel in Germany, as well as ThyssenKrupp's submission in relation to the cartel in the Netherlands, represented significant added value within the meaning of the Leniency Notice. These two undertakings were first to meet point 21 of the Leniency Notice in relation to the respective cartels, and the Commission granted KONE a 50 % reduction of the fine in respect of the infringement in Germany and ThyssenKrupp a 40 % reduction of the fine in respect of the infringement in the Netherlands.

20.

The evidence submitted by Otis relating to the cartel in Germany represented significant added value with respect to the evidence already in the Commission's possession, strengthening the Commission's ability to prove the infringement in Germany. Otis was the second undertaking to meet point 21 of the Leniency Notice and was granted a 25 % reduction of the fine for the infringement in Germany. Similarly, in respect of the infringement in Belgium, ThyssenKrupp's submission represented a significant added value within the meaning of the Leniency Notice. ThyssenKrupp was second to meet point 21 of the Leniency Notice and was granted a 20 % reduction of the fine in respect of the infringement in Belgium.

21.

The evidence submitted by Schindler relating to the cartel in Germany represented significant added value with respect to the evidence already in the Commission's possession, strengthening the Commission's ability to prove the infringement in Germany. Schindler was the third undertaking to meet point 21 of the Leniency Notice and was granted a 15 % reduction of the fine in respect of the infringement in Germany.

22.

The following undertakings infringed Article 81 of the Treaty by allocating tenders and other contracts among them in Belgium, Germany, Luxembourg and the Netherlands, with a view to sharing markets and fixing prices, agreeing on a compensation mechanism in some cases, exchanging information on sales volumes and prices, and, participating in regular meetings and other contacts to agree and implement the above restrictions:

In Belgium:

In Germany:

In Luxembourg:

In the Netherlands:

23.

For the infringements referred to in the previous recital, the following fines were imposed:

In Belgium:

In Germany:

In Luxembourg:

In the Netherlands:

24.

The undertakings listed in the previous recital shall immediately bring their infringement to an end, insofar as they have not already done so. They shall refrain from repeating any act or conduct as the infringement found in this case, and from any act or conduct having the same or similar object or effect.