Case T-133/07: Action brought on 18 April 2007 — Mitsubishi Electric v Commission
Date: 2007-04-18
Institutions: Court of First Instance
Subjects: European Commission, Japan, action for annulment (EU), electrical equipment, electrical industry, fine, restriction on competition, restrictive trade practice

23.6.2007

EN

Official Journal of the European Union

C 140/37

Pleas in law and main arguments

Action brought on 18 April 2007 — Mitsubishi Electric v
Commission

The applicants lodged an action for annulment, under Article
230 EC against Commission decision of 24 January 2007 (Case
COMP/F/38.899 — Gas insulated switchgear — C(2006) 6762
final), on the basis of which the Commission found the appli-
cants, among other undertakings, liable to have infringed Article
81(1) EC and from 1 January 1994 also Article 53 EEA in the
gas insulated switchgear sector (hereinafter ‘GIS’), through a set
of agreements and concerted practices consisting of (a) market
sharing, (b) the allocation of quotas and maintenance of the
respective market shares,
(c) the allocation of individual GIS
projects (bid-rigging) to designated producers and the manipula-
tion of the bidding procedure for those projects, (d) price fixing,
(e) agreements to cease licence agreements with non-cartel
members and (f) exchanges of sensitive market information. In
the alternative, the applicants apply for a substantial reduction
of the fines imposed.

The decision holds Fuji Electric Systems (hereinafter ‘FES’) liable
for participating in the infringement from 15 April 1988 to 30
September 2002.

However, FES disputes that it participated in the GQ agreement
and claims that it was not involved in the GIS sales up until 1
July 2001, around nine months after Fuji Electric Holdings
(‘FEH’) had ceased participating in the cartel. In finding that FEH
continued its participation in the GQ agreement after the Japa-
nese members' meeting which took place around September
2000, it is submitted that the Commission committed a mani-
fest error of assessment, an error of law with regards to the
burden of proof as well as an error of law in relation to equal
treatment.

Moreover, Fuji maintains that it should not be held jointly and
severally liable for the involvement of Japan AE Power Systems
Corporation (hereinafter ‘JAEPS’) in the cartel since it neither
had the ability to exercise decisive influence over JAEPS nor did
it have any knowledge of its alleged participation in the cartel.
Hence, the applicant submits that the Commission committed a
manifest error of assessment with regards to the infringement of
FES.

Finally, Fuji sustains that the decision is vitiated by manifest
errors of assessment with regards to the duration of the infrin-
gement as well as the liability for the alleged infringement of
JAEPS. In addition, the Commission has incorrectly determined
the value of the information provided by the applicants,
in
holding that it did not warrant a reduction of the fine imposed
upon the applicants pursuant to the Leniency Notice. In this
respect, Fuji claims that the fines imposed should be substan-
tially reduced.

(Case T-133/07)

(2007/C 140/62)

Language of the case: English

Parties

Applicant: Mitsubishi Electric Corp. (Tokyo, Japan) (represented
by: R. Denton, Solicitor and K. Haegeman, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant respectfully requests:

— the annulment of the decision, in particular Articles 1 to 4
thereof, to the extent that it applies to Melco and to TMT&D
for the period which Melco shares joint and several liability
with Toshiba for the activities of TMT&D; or

— the annulment of Article 2(g) of the decision and Article 2

(h) insofar as it pertains to Melco; or

— the modification of Article 2 of the decision as it pertains to
Melco, so as to annul or in the alternative substantially
reduce the fine imposed on Melco therein; and, in any event;

— an order that the Commission pay its own costs and Melco's

costs in connection with these proceedings.

Pleas in law and main arguments

The applicant, Mitsubishi Electric Corporation (hereinafter
‘Melco’) lodged an action for annulment, under Articles 230 and
229 EC against Commission decision of 24 January 2007 (Case
COMP/F/38.899 — Gas insulated switchgear — C(2006) 6762
final), on the basis of which the Commission found the appli-
cant, among other undertakings, liable to have infringed Article
81(1) EC and from 1 January 1994 also Article 53 EEA in the
gas insulated switchgear sector (hereinafter ‘GIS’), through a set
of agreements and concerted practices consisting of (a) market
sharing, (b) the allocation of quotas and maintenance of the
respective market shares,
(c) the allocation of individual GIS
projects (bid-rigging) to designated producers and the manipula-
tion of the bidding procedure for those projects, (d) price fixing,
(e) agreements to cease licence agreements with non-cartel
members and (f) exchanges of sensitive market information. In
the alternative, the applicant applies for a cancellation or reduc-
tion of the fine imposed.

C 140/38

EN

Official Journal of the European Union

23.6.2007

The grounds relied upon by Melco in its application are the
following:

Action brought on 19 April 2007 — Italy v Commission

The Commission has allegedly failed to prove to the requisite
standard that the applicant has infringed Article 81 EC by parti-
cipating in a cartel that had as its object or effect the restriction
of competition in the EEA.

The applicant claims that the Commission has failed to establish
the existence of an agreement to which Melco was a party
which infringed Article 81 EC.

(Case T-135/07)

(2007/C 140/63)

Language of the case: Italian

further

The applicant
the Commission has
committed an error of assessment in disregarding the technical
and economic evidence explaining Melco's lack of presence on,
and proving its difficulty entering, the European market.

submits

that

The applicant contends that the Commission has infringed the
rules of evidence in unjustifiably reversing the burden of proof
and has violated the principle of the presumption of innocence.

Moreover, the Commission has breached, according to the appli-
cant, the principles of equal treatment and proportionality on
various accounts:
in calculating the starting point of the fine
imposed on Melco on the basis of its 2001, not 2003, turnover;
in calculating the multiplier applicable to Melco and in erro-
neously defining the worldwide GIS market and Melco's share of
it. Furthermore, the Commission has breached the principle of
proportionality, according to the applicant, in assessing the fine
on Melco for its involvement in the GQ (1) agreement in the
same way as it did for the European producers involved in both
GQ and EQ (2) agreements.

The applicant claims that the Commission has infringed the
duty to state reasons in finding that Melco's fine should be
calculated on the basis of its 2001 turnover and that Melco has
15-20 % of worldwide GIS turnover.

Parties

Applicant: Italian Republic (represented by: G. Aiello, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul, as provided for in Article 230 of the EC Treaty, the
decision in the letter of 7 February 2007, prot. No. 3585, of
the Director General of the Directorate-General for Agri-
culture of the Commission;

— order the Commission to pay the costs.

Moreover, the Commission has allegedly breached the principle
of sound administration in estimating the global GIS market
value.

Pleas in law and main arguments

The applicant claims that the Commission has erred in failing to
take into account economic and technical evidence when asses-
sing the impact of Melco's behaviour and in calculating Melco's
fine. The Commission also erred, according to the applicant, in
determining the duration of the alleged cartel.

Furthermore, the applicant sustains that the Commission has
breached the applicant's rights of defence and right to a fair
hearing in failing to provide Melco with crucial exculpatory and
inculpatory evidence contained in its fine. Finally, the Commis-
sion allegedly failed to put to Melco during the administrative
procedure its conclusions concerning the theory of compensa-
tion, thereby infringing the rights of defence.

(1) ‘G’ stands for ‘gear’ and ‘Q’ stands for ‘quota’.
(2) ‘E’ stands for ‘European’ and ‘Q’ for ‘quota’. The EQ Agreement is
otherwise referred to in the contested decision as ‘E-Group Operation
Agreement for GQ-Agreement’.

The Government of the Italian Republic has brought an action
before the Court of First Instance of the European Communities
to obtain the annulment, as provided for in Article 230 of the
EC Treaty, of the decision in the letter of 7 February 2007, prot.
3585, of the Director General of the Directorate-General for
Agriculture of the Commission, by which the request of the
Italian authorities to adopt exceptional measures to support the
Italian market in poultrymeat within the meaning of Article 14
of Regulation (EEC) No 2777/75 of the Council of 29 October
1975 on the common organisation of the market in poultry-
meat (1) is rejected, so far as concerns the chicks destroyed in
to veterinary
areas affected by avian influenza and subject
measures restricting circulation in the period from December
1999 to September 2003 inclusive.

In support of its action, the Italian Government pleads:

— infringement of the principle of non-discrimination between
Community producers laid down in the second paragraph of
Article 34(2) EC, in so far as the defendant granted excep-
tional market support measures only with regard to the egg-
laying sector, refusing similar measures relating to poultry-
meat by the contested measure;