# C_2007155EN.01003301.xml

| 7.7.2007 | EN | Official Journal of the European Union | C 155/33 |
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7.7.2007

EN

Official Journal of the European Union

C 155/33

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Action brought on 7 May 2007 — ThyssenKrupp Elevator v Commission

(Case T-149/07)

(2007/C 155/60)

Language of the case: German

Parties

Applicant: ThyssenKrupp Elevator AG (Düsseldorf, Germany) (represented by: T. Klose and J. Ziebarth, lawyers)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | annul the contested decision in so far as it relates to the applicant; |
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annul the contested decision in so far as it relates to the applicant;

| — | in the alternative, reduce as appropriate the amount of the fine imposed jointly and severally on the applicant in the contested decision; |
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in the alternative, reduce as appropriate the amount of the fine imposed jointly and severally on the applicant in the contested decision;

| — | order the defendant to pay the costs of the proceedings. |
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order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is challenging Commission Decision C(2007) 512 final of 21 February 2007 in Case COMP/E-1/38.823 — PO/Elevators and Escalators. In the contested decision, fines were imposed on the applicant and other undertakings on the ground of their participation in cartels relating to the installation and maintenance of lifts and escalators in Belgium, Germany and Luxembourg. In the view of the Commission, the undertakings concerned acted in breach of Article 81 EC.

In support of its action, the applicant puts forward the following pleas in law:

| — | Lack of competence on the part of the Commission in the absence of any significance at inter-State level of the local infringement of which the applicant is accused; |
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Lack of competence on the part of the Commission in the absence of any significance at inter-State level of the local infringement of which the applicant is accused;

| — | Infringement of the ne bis in idem principle inasmuch as the Commission failed to take account of the amnesty decisions which the national cartel authorities in Belgium and Luxembourg adopted in the applicant's favour before the present proceedings were instituted; |
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Infringement of the ne bis in idem principle inasmuch as the Commission failed to take account of the amnesty decisions which the national cartel authorities in Belgium and Luxembourg adopted in the applicant's favour before the present proceedings were instituted;

ne bis in idem

| — | Absence of the conditions required to establish that the applicant bears joint and several liability with its subsidiaries, inasmuch as it was not itself involved in the offences, its subsidiaries operate on a legally and economically independent basis and there is no objective justification for extending liability to the applicant; |
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Absence of the conditions required to establish that the applicant bears joint and several liability with its subsidiaries, inasmuch as it was not itself involved in the offences, its subsidiaries operate on a legally and economically independent basis and there is no objective justification for extending liability to the applicant;

| — | Disproportionate nature of the basic amounts used for the calculation of the fine when compared with the de facto market volume concerned; |
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Disproportionate nature of the basic amounts used for the calculation of the fine when compared with the de facto market volume concerned;

de facto

| — | Disproportionate nature of the deterrent multiplication factor, inasmuch as this differs significantly from the treatment accorded to other undertakings of comparable scale in comparable cases decided at the same time; |
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Disproportionate nature of the deterrent multiplication factor, inasmuch as this differs significantly from the treatment accorded to other undertakings of comparable scale in comparable cases decided at the same time;

| — | Lack of justification for the repeat offender surcharge in the context of the fine calculation by reason of errors of law in regard to the inclusion of previous fines; |
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Lack of justification for the repeat offender surcharge in the context of the fine calculation by reason of errors of law in regard to the inclusion of previous fines;

| — | Breach of Article 23(2) of Regulation (EC) No 1/2003 (1), inasmuch as, with regard to the upper fine limit of 10 % of the undertaking's turnover, the fine ought to have been calculated solely on the basis of the turnover of the subsidiaries concerned; |
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Breach of Article 23(2) of Regulation (EC) No 1/2003 (1), inasmuch as, with regard to the upper fine limit of 10 % of the undertaking's turnover, the fine ought to have been calculated solely on the basis of the turnover of the subsidiaries concerned;

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| — | Legally defective application of the Notice on immunity from fines and reduction of fines (2) inasmuch as insufficient account was taken of the added value represented by the applicant's cooperation. |
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Legally defective application of the Notice on immunity from fines and reduction of fines (2) inasmuch as insufficient account was taken of the added value represented by the applicant's cooperation.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

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(2)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

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