EN Official Journal of the European Union C 347/18

Appeal brought on 23 September 2011 by Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, Otis SA, Otis BV, Otis Elevator Company, Otis GmbH & Co. OHG against the judgment of the General Court (Eighth Chamber) delivered on 13 July 2011 in Case T-141/07: Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, Otis SA, Otis BV, Otis Elevator Company, Otis GmbH & Co. OHG v European Commission

(Case C-494/11 P)

2011/C 347/27

Language of the case: English

Parties

Appellants: Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, Otis SA, Otis BV, Otis Elevator Company, Otis GmbH & Co. OHG (represented by: A. Winckler, avocat, J. Temple Lang, solicitor, C.J. Cook, advocate, D. Gerard, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the Judgment,

— based on the elements available to it, partially annul the Decision and reduce the amount of the fines set forth therein or, as it finds it appropriate, set aside the Judgment and remand the case to the General Court for reconsideration of the relevant elements of facts;

— order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

Pleas in law and main arguments

By their first plea, the Appellants dispute the General Court's conclusion that the Commission was entitled to impute liability for GTO's infringement in Luxembourg to Otis SA. This plea is divided into four limbs. First, the General Court committed an error of substantive law by misapplying the legal standard set forth by this Court in C-97/08 P, Akzo Nobel/Commission and the notion of single undertaking. Second, the General Court exceeded its competence by relying on factual elements that were not referred to by the Commission in the Decision and not included in the Commission's case file. Third, the General Court mischaracterized the nature and scope of the legal relationship between GTO and Otis SA, and distorted the facts. Fourth, the General Court failed to provide adequate reasoning in dismissing the breach by the Commission of its duty to treat equally the parent companies of GTO and MEE.

By their second plea, the Appellants claim that the General Court committed various errors of law in upholding the calculation of the starting amount of the fine for the German infringement. This plea is divided into two limbs. First, the General Court misinterpreted the 1998 Fining Guidelines by considering that the Commission was not required to take into account the size of the affected market when setting the starting amount of the fine. Second, the General Court failed to provide adequate reasoning in relation to the determination of the size of the affected market and the division of the participants into categories.

By their third plea, the Appellants assert that the General Court made various errors of law and exceeded its competence in denying to Otis the benefit of ‘partial immunity’ pursuant to the last paragraph of point 23(b) of the 2002 Leniency Notice. This plea is divided into two limbs. First, the General Court failed to apply the correct legal test for granting ‘partial immunity’, exceeded its competence by substituting its own assessment of the evidence submitted by Otis to that of the Commission and disregarded settled rules of evidence. Second, the General Court misinterpreted the Commission's duty to state reasons.