28. The third plea in law concerns an infringement of Article 101(1) TFEU, Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union, Articles 4, 7 and 23(2) of Regulation No 1/2003, and breach of the principles of personal liability and sound administration, in that Schenker China was held solely liable for the conduct of Bax Global (China).

40. The applicants argue that, by using the information and evidence contained in DP’s application for immunity, the Commission infringed Articles 4, 7 and 27(2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing, recognised by EU law and enshrined in Article 47 and Article 48(2) of the Charter of Fundamental Rights, and in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.

115. By this plea in law, the applicants challenge the Commission’s decision to hold Schenker China solely liable for the participation of Bax Global (China) in the CAF cartel, at least as regards the period before January 2006. The plea has three parts. By the first part, claiming in particular an infringement of Article 101(1) TFEU and the principle of personal liability, the applicants argue that there is no legal basis for holding Schenker China liable for the conduct of Bax Global (China). By the second part of the plea, claiming an infringement of Article 41 of the Charter of Fundamental Rights and the principle of sound administration, the applicants criticise the Commission for having failed to investigate whether Brink’s, the former parent company of Bax Global (China), should either together with Schenker China or alone have been held liable for the conduct of Bax Global (China). By the third part of the plea, claiming an infringement of Article 296 TFEU, the applicants complain that the Commission failed to state in the contested decision sufficient reasons in that regard.

The second part: breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration, and the third part: breach of the duty to state reasons

140. In these parts of this plea, the applicants’ first argument is that, by omitting to examine diligently and sufficiently whether it could hold Brink’s liable for the conduct of Bax Global (China) and to what extent it was necessary and fair to take action against Schenker China in order to ensure the effective enforcement of the European Union competition rules, the Commission was in breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration. The applicants’ second argument is that the Commission did no more than make known that it had chosen not to hold Brink’s to be liable, whereas, under Article 296 TFEU, it ought to have stated reasons for the decision not to hold Brink’s, the former parent company of Bax Global (China), liable either solely or jointly and severally. Consequently, the contested decision should be annulled, or, at the least, there should be imposed on Schenker China only that proportion of the fine which it would have had to pay if it had been able to seek recovery from Brink’s as being jointly and severally liable.
141. The Commission disputes those arguments.

The breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration

158. Consequently, the second part of the plea, claiming a breach of Article 41 of the Charter of Fundamental Rights and of the principle of sound administration, must be rejected.

175. In that regard, it must be observed that, under Article 49(3) of the Charter of Fundamental Rights, the severity of penalties must not be disproportionate to the infringement and, under Article 23(3) of Regulation No 1/2003, in order to determine the amount of the fine, the Commission must have regard to the gravity and duration of the infringement.

The second part: breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration, and the third part: breach of the duty to state reasons

The breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration