Case T-142/07: Action brought on 4 May 2007 — General Technic v Commission
Date: 2007-05-04
Institutions: Court of First Instance
Subjects: European Commission, Luxembourg, action for annulment (EU), fine, invitation to tender, lift, restrictive trade practice

C 140/40

EN

Official Journal of the European Union

23.6.2007

Form of order sought

The applicant claims that the Court should:

— annul on the basis of Article 230 EC the decision adopted
by the Commission on 21 February 2007 relating to a
proceeding under Article 81 EC and Article 53 EEA in Case
COMP/E-1/38.823 — Elevators and Escalators, in so far as it
concerns GTO;

— in the alternative, annul or reduce, on the basis of Article

229 EC, the fine imposed on it by that decision;

— order the Commission to pay all the costs.

Pleas in law and main arguments

By this action, the applicant is seeking the partial annulment of
Commission decision C(2007)512 final of 21 February 2007
relating to a proceeding under Article 81 EC and Article 53
EEA (Case COMP/E-1/38.823 — PO/Elevators and Escalators),
concerning a cartel on the market for the installation and main-
tenance of
lifts and escalators in Belgium, Germany, Luxem-
bourg and the Netherlands, and relating to the manipulation of
calls for
the award of
projects and sales contracts, the installation, maintenance and
modernisation of machinery and the exchange of information,
in so far as it concerns the applicant. In the alternative, the
applicant seeks annulment or reduction of the fine imposed on
it by the contested decision.

tenders, market-sharing, price-fixing,

In support of its claims, the applicant raises seven pleas.

In the first plea, the applicant submits that the Commission
erred in fact and in law in application of the rules on the calcu-
lation of fines in so far as it held that the incriminating practices
constituted a ‘very serious’ infringement. The applicant alleges
that the starting amount of the fine should consequently be
reduced owing to the limited geographical scope of the market
in question and the limited impact of the offending practices on
the market in question.

In its second plea, the applicant claims that the Commission
erred in law and in fact in so far as it did not take into account
the applicant's actual economic capacity to cause damage. It also
maintains that the Commission should have taken into account,
when fixing the amount of the fine, the applicant's status as a
small or medium-sized undertaking, managed entirely indepen-
dently and which, consequently, is incapable of causing signifi-
cant damage on the market.

In the third plea, the applicant submits that the Commission
erred in law and in fact in so far as it did not limit the amount
of the fine to 10 % of its turnover and that it was wrong to
take into account the turnover of the parent companies for the
purpose of calculating the maximum fine to impose on the
applicant.

The fourth plea alleges infringement by the Commission of the
principle of equal treatment in so far as it did not apply the
principles on liability consistently to all the members of the
cartel in question. The applicant maintains that the Commission
attributed the offending practices to its parent companies while
it did not do so in respect of another company against which a
infringement was made in the same decision,
finding of

although that company was in a comparable situation to the
applicant's as regards the control exercised by the parent compa-
nies.

By its fifth plea, the applicant submits that the Commission
erred in fact in so far as it did not grant it a reduction of 50 %
of the fine under the Leniency Notice (1). The applicant main-
its cooperation with the Commission was close,
tains that
consistent and particularly wide in its scope and that it warrants
the maximum reduction in the fine provided for by the Leniency
Notice, that is, 50 %.

the principle of

The sixth plea put forward by the applicant alleges infringement
legitimate expectations in so far as the
of
Commission did not grant
it a supplementary reduction of
10 % of the fine in return for not contesting the facts. The
applicant claims that the notification of the statement of objec-
tions and the Commission's practice in taking decisions gave
rise to the justified expectation on its part that it would obtain
on that basis a reduction of 10 %, and not merely 1 % as
granted in the contested decision.

The seventh plea alleges infringement of the principle of propor-
tionality of penalties, in so far as the fine imposed on the appli-
cant is not justified in the light of the infringement in question,
and above all having regard to what is alleged to be its limited
impact on the market and the fact it was committed by a
company of limited size.

(1) Commission notice on immunity from fines and reduction of fines

in cartel cases, OJ 2002 C 45, p. 3.

Action brought on 4 May 2007 — General Technic v
Commission

(Case T-142/07)

(2007/C 140/66)

Language of the case: French

Parties

Applicant: General Technic Sàrl (Luxembourg, Grand Duchy of
Luxembourg) (represented by: M. Nosbusch, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul on the basis of Article 230 EC the decision adopted
by the Commission on 21 February 2007 relating to a
proceeding under Article 81 EC and Article 53 EEA in Case
COMP/E-1/38.823 — Elevators and Escalators, in so far as it
concerns GT;

23.6.2007

EN

Official Journal of the European Union

C 140/41

— in the alternative, annul or reduce, on the basis of Article

Form of order sought

229 EC, the fine imposed on it by that decision;

— order the Commission to pay all the costs.

The applicant petitions the Court:

Pleas in law and main arguments

By this action, the applicant is seeking the partial annulment of
Commission decision C(2007)512 final of 21 February 2007
relating to a proceeding under Article 81 EC and Article 53
EEA (Case COMP/E-1/38.823 — PO/Elevators and Escalators),
concerning a cartel on the market for the installation and main-
tenance of
lifts and escalators in Belgium, Germany, Luxem-
bourg and the Netherlands, and relating to the manipulation of
calls for
the award of
projects and sales contracts, the installation, maintenance and
modernisation of machinery and the exchange of information,
in so far as it concerns the applicant. In the alternative, the
applicant seeks the annulment or reduction of the fine imposed
on it by the contested decision.

tenders, market-sharing, price-fixing,

In support of its action, the applicant submits that the Commis-
sion was wrong to find it
jointly and severally liable for
payment of the fine imposed on its subsidiary, a member of the
cartel. It claims that the Commission was mistaken about the
nature and extent of its shareholding in the share capital of its
subsidiary in so far as the applicant
is a purely financial
company which does not carry out any trade of its own and
that its shareholding in the subsidiary is a minority shareholding
which does not exceed what is necessary for the protection of
the
its financial
Commission has not stated to the requisite legal standard its
reasons for finding that the applicant was involved in the cartel
in question, in contrast to the personal role played by its share-
holder, in his capacity as managing associate of the subsidiary.

interests. The applicant maintains also that

Action brought on 30 April 2007 — UMG Recordings/
OHMI — Osman (MOTOWN)

(Case T-143/07)

(2007/C 140/67)

Language in which the application was lodged: English

Parties

Applicant: UMG Recordings, Inc. (Santa Monica, USA) (repre-
sented by: E. Armijo Chávarri, A. Castán Pérez-Gómez, lawyers)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party/parties to the proceedings before the Board of Appeal:
Jimmy Osman (London, United Kingdom)

— to admit its brief and documents appended thereto and
consider an appeal to have been filed in good time and due
order against the decision issued by OHIM's Second Board
of Appeal on 15 February 2007 in Case R-523/2006-2 and
following completion of appropriate procedural steps, to
render judgment in due course overturning that decision
and expressly ordering OHIM to pay the costs of
the
proceedings.

Pleas in law and main arguments

Registered Community trade mark subject of the application for revoca-
tion: the word Community trade mark ‘MOTOWN’ for goods
and services in Classes 9, 25, 41 and 42 — application No 206
243

Proprietor of the Community trade mark: UMG Recordings

Party requesting the revocation of the Community trade mark: Jimmy
Osman

Decision of
the Cancellation Division: Upheld the revocation
request for all contested services in Class 42 and rejected it
insofar as it was directed against services in Class 41

Decision of the Board of Appeal: Upheld the appeal
Jimmy Osman

lodged by

Pleas in law: Infringement of Articles 15(1) and 50(1) of Council
Regulation (EC) No 40/94.

The applicant claims that the Board allegedly erred in its assess-
ment of evidence submitted to prove the use of its mark with
regards to the contested services in Class 41.

First, the applicant submits that the Board failed to consider that
the contested mark was the subject of acts of use for the
contested services by both the registered proprietor and third
parties with the proprietor's consent.

Secondly, according to the applicant
the Board confused
‘discotheques services’ with ‘the organisation of musical events’
while it did not take into account that they fell into different
categories of services.

services’ and/or

Thirdly, the applicant contends that, even assuming that it did
not participate either directly or indirectly in the provision of
‘discotheques
the ‘organisation of musical
it should have been held that it did render specific
events’
services falling within the aforementioned categories and that
the provision of those ‘sub-services’ served to overcome the
obligation to use its mark for so-called general categories of
services (namely, the contested services).