# C_2007155EN.01003101.xml

| 7.7.2007 | EN | Official Journal of the European Union | C 155/31 |
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7.7.2007

EN

Official Journal of the European Union

C 155/31

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Action brought on 7 May 2007 — ThyssenKrupp Aufzüge and ThyssenKrupp Fahrtreppen v Commission

(Case T-147/07)

(2007/C 155/58)

Language of the case: German

Parties

Applicants: ThyssenKrupp Aufzüge GmbH (Neuhausen auf den Fildern, Germany) and ThyssenKrupp Fahrtreppen GmbH (Hamburg, Germany) (represented by: U. Itzen and K. Blau-Hansen, lawyers)

Applicants:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

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

| — | in the alternative, reduce as appropriate the amount of the fine imposed jointly and severally on the applicants 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 applicants 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 applicants are 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 applicants and other undertakings on the ground of their participation in a cartel relating to the installation and maintenance of lifts and escalators in Germany. In the view of the Commission, the undertakings concerned acted in breach of Article 81 EC.

In support of their action, the applicants put 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 applicants are 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 applicants are accused;

| — | Absence of the conditions required to establish that the applicants bear joint and several liability with the companies hierarchically above them, inasmuch as they are legally and economically independent; |
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Absence of the conditions required to establish that the applicants bear joint and several liability with the companies hierarchically above them, inasmuch as they are legally and economically independent;

| — | Disproportionate nature of the basic amounts taken into consideration in the calculation of the fine in comparison with the de facto market volume concerned; |
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Disproportionate nature of the basic amounts taken into consideration in the calculation of the fine in comparison with the de facto market volume concerned;

de facto

| — | Illegality of the deterrent multiplication factor as the applicants' turnover was the only relevant factor in the calculation of the fine and that turnover did not justify application of that multiplication factor; |
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Illegality of the deterrent multiplication factor as the applicants' turnover was the only relevant factor in the calculation of the fine and that turnover did not justify application of that multiplication factor;

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

| — | 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 Commission based itself on the turnover of the concern and not on that of the applicants; |
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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 Commission based itself on the turnover of the concern and not on that of the applicants;

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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 provided by the cooperation of the applicants. |
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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 provided by the cooperation of the applicants.

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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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