Case T-132/07: Action brought on 19 April 2007 — Fuji Electric Holdings and Fuji Electric Systems v Commission
Date: 2007-04-19
Institutions: Court of First Instance
Subjects: European Commission, Japan, action for annulment (EU), award of contract, electrical equipment, electrical industry, fine, restriction on competition, restrictive trade practice

C 140/36

EN

Official Journal of the European Union

23.6.2007

AAL submits that there are eight grounds for annulment in
support of its pleas:

was subject to a number of environmental obligations and to
consider measures which would have had the same incentive
effect as a requirement to pay a significant proportion of the
national tax.

First, the Commission has failed, according to the applicant, to
appreciate that the exemption falls within the nature and logic
of the Irish tax regime and hence does not constitute aid.

the applicant sustains that

Seventh,
the contested decision
violates the principles of protection of legitimate expectations
and of legal certainty.

Second, the applicant claims that the Commission has failed to
analyse properly the relevant markets and their competitive
structure. In circumstances where the Commission had itself
earlier accepted that there was no distortion of competition, and
in the light of the fact that the Council had authorised the
exemptions until 31 December 2006, the applicant contends
that it was incumbent on the Commission to demonstrate that
it had carried out a thorough economic analysis which clearly
demonstrated that there was an actual or threatened distortion
of competition. The applicant
the
Commission failed to establish that the exemption constituted
aid.

therefore submits

that

Third, the applicant advances that should the exemption none-
theless be considered to constitute aid, the Commission has
failed to treat the aid in question as existing aid falling under
Article 88(1) EC. The aid was the subject of a binding commit-
ment given before Ireland's accession to the European Commu-
nities, notified in January 1983. As the Commission did not act
until 17 July 2000, the ten-year limitation period was exceeded
and recovery was, thus, precluded. The applicant claims thus
that the aid cannot be characterised as an aid scheme.

Fourth, the applicant puts forward that the Commission should
have had regard to the overall acquis on excise harmonisation, in
order to determine whether and how to exercise its powers
under the State aid provisions of the EC Treaty. The contested
decision constitutes a serious breach of the principle of legal
certainty since it allegedly undermines authorisations granted by
the Council under Article 93 EC, on the basis of a Commission
proposal. Moreover,
the Commission has allegedly failed to
appreciate that the Council measures taken on the basis of
Article 93 EC constituted lex specialis that should have prevailed
over any inconsistent application of the State aid rules. In addi-
tion, the Commission has failed, according to the applicant's
contentions, to use the procedures available to it under Article 8
of Directive 92/81/EEC to resolve State aid or other concerns,
or indeed to seek the annulment of relevant Council decisions
and has, hence, undermined the effet utile of
the Council
measures.

Fifth, the applicant claims that in adopting the contested deci-
sion, the Commission has failed to take account of the funda-
mental requirements of Articles 3 and 157 EC, to strengthen
competitiveness of Community industry and to ensure that the
conditions necessary for the competitiveness of the Communi-
ty's industry exist.

Eighth, the excessive length of the procedure under Article 88
(2) EC contravenes the principles of good administration and of
legal certainty and is even more serious, according to the appli-
cant, since the Commission had, before initiating the procedure,
already failed to act in relation to the 1983 notification.

Action brought on 19 April 2007 — Fuji Electric Holdings
and Fuji Electric Systems v Commission

(Case T-132/07)

(2007/C 140/61)

Language of the case: English

Parties

Applicants: Fuji Electric Holdings Co., Ltd (Kawasaki, Japan) and
Fuji Electric Systems Co., Ltd. (Tokyo, Japan) (represented by: P.
Chapatte, P. Walter, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

The applicants respectfully request the Court to:

— annul Article 1(g) of the decision in so far as it finds that
the infringement imputed to FEH by that provision existed
after September 2000;

— annul Article 1(h) of the decision in its entirety;

— annul Article 2(d) of the decision in so far as it imputes
liability upon FES for the fine imposed

joint and several
pursuant to that provision;

— annul Article 2(f) of the decision in so far as it imputes joint
and several liability upon Fuji for the fine imposed pursuant
to that provision;

— reduce the fine imposed on Fuji; and

Sixth, in finding that 20 % of the exemption constituted aid, the
Commission has allegedly failed to appreciate that the applicant

— order the Commission to bear its own costs and those

incurred by Fuji.

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.