27) The Commission and the Council contend that the review of Commission decisions carried out by the European Union judicature ensures compliance with the requirements of a fair process as enshrined in Article 6(1) of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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32) Furthermore, whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law (see Case C-571/10 Kamberaj [2012] ECR, paragraph 62, and Case C-617/10 Åkerberg Fransson [2013] ECR, paragraph 44).

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36) Ruling on the principle of effective judicial protection, a general principle of European Union law to which expression is now given by Article 47 of the Charter and which corresponds, in European Union law, to Article 6(1) of the ECHR, the Court of Justice has held that, in addition to the review of legality provided for by the FEU Treaty, the European Union judicature has the unlimited jurisdiction which it is afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU, and which empowers it to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (Chalkor v Commission, paragraph 63).

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38) As the review provided for by the Treaties involves review by the European Union judicature of both the law and the facts, and means that it has the power to assess the evidence, to annul the contested decision and to alter the amount of a fine, the Court has concluded that the review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not contrary to the requirements of the principle of effective judicial protection which is currently set out in Article 47 of the Charter (Chalkor v Commission, paragraph 67).

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48) By their third plea, the appellants recall the first plea put forward in support of their action at first instance, that Article 23(2) of Regulation No 1/2003 is incompatible with the principle of the rule of law and precise definition of the applicable law (nulla poena sine lege certa) which results from Article 7 of the ECHR and Article 49 of the Charter.

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78) Such an approach is contrary to Article 23(2) of Regulation No 1/2003, which requires the undertaking to have acted ‘intentionally or negligently’, and to the principle of the presumption of innocence laid down in Article 48(1) of the Charter and Article 6(2) of the ECHR.

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121) By their ninth plea, the appellants contest paragraphs 185 to 196 of the judgment under appeal, by which the General Court dismissed the sixth plea advanced in the action at first instance. They submit that the setting of the fines produces, in breach of international law, the same effects as an expropriation. In ruling as it did, the General Court infringed Article 17(1) of the Charter and Article 1 of Protocol No 1 to the ECHR. It wrongly failed to verify whether the fine in question could be regarded as proportionate in the light of the case-law of the European Court of Human Rights, in particular its judgment in Mamidakis v. Greece, no. 35533/04, 11 January 2007, and referred solely to its own case-law and that of the Court of Justice although, because of the entry into force of the Treaty of Lisbon, it was obliged to subject its previous case-law to critical examination in the light of the case-law of the European Court of Human Rights.

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123) The Commission submits that, in the action at first instance, the appellants did not rely on the right to property as a fundamental right. That explains the fact that the General Court did not rule on the Charter or the judgment of the European Court of Human Rights in Mamidakis v. Greece. In any event, the review of proportionality carried out by the General Court in paragraphs 191 to 195 of the judgment under appeal is the same as that carried out by the European Court of Human Rights in Mamidakis v. Greece.

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124) As the Court has recalled in paragraph 32 of the present judgment, as long as the European Union has not acceded to the ECHR, it does not constitute a legal instrument which has been formally incorporated into European Union law. However, in accordance with settled case-law, fundamental rights, which include the right to property, form an integral part of the general principles of law the observance of which the Court ensures (see, to this effect, Case 44/79 Hauer [1979] ECR 3727, paragraphs 15 and 17). Protection of the right to property is, moreover, provided for in Article 17 of the Charter.

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128) In any event, in so far as the appellants plead infringement of the Charter, they can establish an error of law in the review carried out by the General Court only by demonstrating that it did not give the right to property the same meaning and scope as those laid down by the ECHR.

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162) By their thirteenth plea, the appellants contest paragraphs 365 to 372 of the judgment under appeal, by which the General Court rejected the tenth plea advanced in the action at first instance. They consider that the premiss of the General Court’s reasoning is incorrect, as the infringements cannot be attributed to Schindler Holding. Furthermore, a fine is not to be considered proportionate merely because it does not exceed the ceiling of 10% of turnover. It follows from Article 49 of the Charter that examination of the fine’s proportionality constitutes a separate aspect that is additional to verification of whether the ceiling of 10% of turnover has been observed. They cite in this regard the judgment of the European Court of Human Rights in Mamidakis v. Greece, in which a fine totalling roughly EUR 8 million was considered disproportionate.