Case T-113/07: Action brought on 18 April 2007 — Toshiba v Commission
Date: 2007-04-18
Institutions: Court of First Instance
Subjects: European Commission, Japan, action for annulment (EU), electrical equipment, restriction on competition, restrictive trade practice

C 140/26

EN

Official Journal of the European Union

23.6.2007

Action brought on 16 April 2007 — Siemens v Commis-
sion

(Case T-110/07)

(2007/C 140/46)

Language of the case: German

Parties

Article 25 of Regulation (EC) No 1/2003 (1), since, in the appli-
cant's view, the limitation period had expired with respect to its
participation in the alleged infringement during the first phase
up to 1999.

Finally, the applicant complains of serious errors of law of the
Commission in assessing the fine. It is submitted, for instance,
in this respect that the Commission misassessed the seriousness
and duration of the infringement and manifestly applied an
excessive ‘deterrent multiplier’ to the applicant. In addition, the
Commission wrongly found that the applicant had played a
leading part and wrongly failed to take into account the appli-
cant's cooperation with the Commission.

Applicant: Siemens AG (Berlin and Munich, Germany) (repre-
sented by I. Brinker, T. Loest and C. Steinle, lawyers)

(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 L 1, 4.1.2003, p. 1).

Defendant: Commission of the European Communities

Form of order sought

— in accordance with the first paragraph of Article 231 EC,
annul the Commission's decision of 24 January 2007 (Case
COMP/F/38.899 — Gas-isolated switchgear) in so far as it
affects the applicant;

— in the alternative, reduce the fine imposed in Article 2(m) of

the decision;

— in accordance with Article 87(2) of the Rules of Procedure
of the Court of First Instance, order the Commission to pay
the costs.

Action brought on 18 April 2007 — Toshiba v Commis-
sion

(Case T-113/07)

(2007/C 140/47)

Language of the case: English

Pleas in law and main arguments

Parties

The applicant contests Commission Decision C(2006) 6762
final of 24 January 2007 in Case COMP/F/38.899 — Gas-
isolated switchgear.
In the contested decision fines were
imposed on the applicant and other undertakings for infringe-
ment of Article 81 EC and Article 53 of the EEA Agreement.
According to the Commission, the applicant took part in a set
of agreements and concerted practices concerning the gas-
isolated switchgear sector.

Applicant: Toshiba Corp.
MacLennan, Solicitor, A. Schulz and J. Borum, laywers)

(Tokyo,

Japan)

(represented by:

J.

Defendant: Commission of the European Communities

The applicant puts forward three pleas in law in support of its
application.

Form of order sought

First, the Commission is criticised for failing to demonstrate and
prove the alleged infringements specifically and in detail. In par-
ticular, the Commission did not demonstrate and prove the
effects of the alleged infringement on the common market and
the EEA during the first phase of the alleged infringement up to
1999.

Second, the applicant submits that the Commission wrongly
assumed that there was a single continuous infringement and
infringement.
wrongly
According to the applicant, the Commission was unable to
prove that the applicant had been involved in the alleged infrin-
gement after 22 April 1999. Furthermore, there was a breach of

duration of

determined

the

the

The applicant requests the Court to:

— annul Commission's decision of 24 January 2007 — Case

COMP/F/38.899 — Gas Insulated Switchgear; or

— annul

the Commission's decision as far as it relates to

Toshiba; or

— amend Articles 1 and 2 of the decision to annul or substan-

tially reduce the fine imposed on Toshiba; and

— order the Commission to pay the costs of the proceedings,
including the costs incurred in connection with the bank
guarantee.

23.6.2007

EN

Official Journal of the European Union

C 140/27

Pleas in law and main arguments

The applicant 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-
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 fines imposed.

According to the applicant, the Commission appears to have
based its findings on three arrangements concluding on the exis-
tence of a world-wide cartel. Even if that were the case, the
applicant submits that the Commission has no jurisdiction over
behaviour which might restrict competition outside the EEA.

The applicant claims that the Commission has failed to prove to
the requisite legal standard that the applicant took part in any
agreement or concerted practice not to sell in Europe, or that
European GIS suppliers compensated the Japanese companies
for not entering Europe by way of ‘loading’ European projects
into the European ‘GQ’ (1) quota. The applicant further submits
that the Commission has relied for corroboration on equally
indirect, vague, unsubstantiated evidence consisting mainly of
oral statements made by the leniency applicant and, in addition,
has allegedly ignored evidence provided to contradict the incri-
minating statements.

Moreover, whereas the applicant does not deny that it was part
of the ‘GQ agreement’ it contends that the agreement at stake
was a world-wide agreement not covering Europe and over
which the Commission lacked jurisdiction. The applicant claims
that the Commission,
in its attempt the bring the applicant
under its jurisdiction, shifted the focus of its legal assessment
entirely on whether there had been a ‘common understanding’
(that the Japanese would refrain form entering the European
market that the European companies would equally refrain from
competing in Japan) and whether certain European projects
were systematically reported to the Japanese companies or
‘loaded’ into the European ‘GQ’ as part of this ‘common under-
standing’. Hence,
it is claimed that the Commission has not
established that the applicant should be held responsible for the
series of
infringements at European level and has allegedly
committed a manifest error of appraisal.

It is further submitted that the contested decision is vitiated by
procedural irregularities. To this extent, the applicant suggests
that its rights of defence have been compromised through the
Commission's failure to provide adequate reasoning, to grant
access to evidence and distortion of evidence.

In the alternative, the applicant submits that the Commission's
failure to properly apportion responsibility between the Euro-
pean and Japanese companies vitiated the method used for
assessing the fines for the addressees of the decision. On this
account, the applicant sustains that the Commission did not
properly assess either the gravity or the duration of the infringe-
ment and thus, has unfairly discriminated against the applicant.

(1) ‘G’ stands for ‘gear’ and ‘Q’ for ‘quota’.

Action brought on 17 April 2007 — France v Commission

(Case T-116/07)

(2007/C 140/48)

Language of the case: French

Parties

Applicant: French Republic (represented by: G. de Bergues and S.
Ramet, Agents)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision in its entirety;

— order the Commission to pay the costs.

Pleas in law and main arguments

By decision of 30 June 1997, adopted following a proposal
from the Commission and in accordance with the procedure
laid down in Council Directive 92/81/EEC (1),
the Council
authorised the Member States to apply or to continue to apply
the existing reduced rates of excise duty or exemptions from
excise duty to certain mineral oils when used for specific
purposes. By four subsequent decisions, the Council extended
that authorisation, the final authorisation period expiring on 31
December 2006. France is authorised to apply these reduced
rates or exemptions to heavy fuel oil used as fuel
for the
production of alumina in the Gardanne region.

In a letter of 30 December 2001, the Commission notified
France of its decision to initiate proceedings under Article 88(2)
of the EC Treaty relating to the exemption from excise duty on
mineral oils used as
for alumina production in the
Gardanne regio (2). On 7 December 2005, in consequence of
this procedure, the Commission adopted Decision 2006/323/EC

fuel