Case T-138/07: Action brought on 4 May 2007 — Schindler Holding and Others v Commission
Date: 2007-05-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, lift, restriction on competition, unlawful agreement

7.7.2007

EN

Official Journal of the European Union

C 155/27

By failing to fulfil
its obligations under the abovementioned
provisions of law, the Commission has prevented the applicant
from being compensated for the loss sustained by means of
recourse to the abovementioned compulsory civil liability insur-
ance.

The applicant had expected to sell at least 500 000 thermo-
meters a year.

From the moment the decision was taken to withdraw those
goods from the market, the doors of that market were closed to
the applicant, since its image was irreparably associated with the
non-conformity [with the requirements] of the goods it had
placed on the market.

The damage suffered by the applicant amounts to a total of
EUR 2 419 665,42.

(1) Council Directive 93/42/EEC of 14 June 1993 concerning medical

devices (OJ 1993 L 169, p. 1).

(2) OJ 1993 L 220, p. 23.

Action brought on 4 May 2007 — Schindler Holding and
Others v Commission

(Case T-138/07)

(2007/C 155/52)

Language of the case: German

Parties

(Brussels, Belgium), Schindler Sàrl

Applicants: Schindler Holding Ltd (Hergiswil, Switzerland),
Schindler Management AG (Ebikon, Switzerland), S.A. Schindler
N.V.
(Luxembourg, Luxem-
bourg), Schindler Liften B.V.
(The Hague, Netherlands) and
Schindler Deutschland Holding GmbH (Berlin, Germany) (repre-
sented by: R. Bechtold, W. Bosch, U. Soltész and S. Hirsbrunner,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the decision of 21 February 2007 in Case COMP/E-1/
38.823 — PO/Elevators and Escalators, pursuant to the first
paragraph of Article 231 EC;

Pleas in law and main arguments

In the contested decision,

The applicants are challenging Commission Decision C(2007)
512 final of 21 February 2007 in Case COMP/E-1/38.823 —
PO/Elevators and Escalators.
fines
were imposed on the applicants and other undertakings on the
ground of their participation in cartels relating to the installa-
tion and maintenance of
in Belgium,
Germany, Luxembourg and the Netherlands. In the view of the
Commission, the undertakings concerned acted in breach of
Article 81 EC.

lifts and escalators

In support of
following pleas in law:

their action,

the applicants put

forward the

— Infringement of

the principle of

certainty by
Article 23(2) of Regulation (EC) No 1/2003 (1) inasmuch as
that provision confers on the Commission unlimited discre-
tion in setting fines;

legal

— Breach of the prohibition of retroactive effect by the fine

imposed by the Commission;

— Lack of effectiveness of the Guidelines on the method of
setting fines (‘the 1998 Guidelines’) (2)
they fail
adequately to take account of individual circumstances in
connecting the basic amounts of fines with the respective
infringements and confer too great a discretion on the
Commission in determining fines;

in that

— Illegality of the evidence adduced by cooperative undertak-
ings on the basis of the Notice on immunity from fines and
reduction of fines (3) by reason of the infringement of the
nemo tenetur principle, of the right against self-incrimination,
of the in dubio pro reo principle and the principle of propor-
tionality, and by reason of
in which the
Commission exceeded its competence by adopting that rule;

the manner

— Infringement of the principle of the division of powers and

of the requirements of due process;

— Illegality of the contested decision under international law
by reason of the expropriatory nature of the fines imposed;

— Infringement of the 1998 Guidelines on the ground that the
basic amounts used to calculate the fines were unduly high
in the light of the specific offences;

— Infringement of the 1998 Guidelines on the ground that
inadequate account/no account was taken of extenuating
circumstances;

— Infringement of

the 2002 rules relating to cooperative
undertakings on grounds of unduly low cooperation
discounts or unjustified refusal of such discounts;

— Disproportionate nature of the level of the fines;

— in the alternative, reduce the fines imposed in that decision;

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

— Illegality of the contested decision in so far as it is addressed
to Schindler Holding Ltd and Schindler Management AG on
the ground that,
in the absence of an international-law
agreement with Switzerland, it was not effectively notified to
those companies;

C 155/28

EN

Official Journal of the European Union

7.7.2007

— Absence of conditions for the joint and several liability of

Schindler Holding Ltd;

— Breach of Article 23(2) of Regulation No 1/2003 on the
ground that the maximum limits for fines were exceeded.

(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 2003 L 1, p. 1).

(2) Guidelines on the method of setting fines imposed pursuant to
Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC
Treaty (OJ 1998 C 9, p. 3).

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

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

Action brought on 2 May 2007 — Pioneer Hi-Bred
International v Commission

(Case T-139/07)

(2007/C 155/53)

Language of the case: English

time prescribed in the directive. The applicant
furthermore
submits that by failing to submit to the Regulatory Committee a
draft of the measures to be taken the Commission failed to
ensure that such a decision was adopted even though all require-
ments on the applicant and other parties under the directive
had been completed in accordance with the directive.

The applicant moreover submits that the Commission has been
called upon to define its position within the terms of Article
232 EC which the Commission has failed to do. This has,
according to the applicant, had adverse effects on the applicant's
legal situation.

(1) Directive 2001/18/EC of

the
Council of 12 March 2001 on the deliberate release into the environ-
ment of genetically modified organisms and repealing Council Direc-
tive 90/220/EEC (OJ 2001 L 106, p. 1).

the European Parliament and of

Action brought on 26 April 2007 — Chi Mei Optoelectro-
and Chi Mei Optoelectronics UK v
nics Europe

Commission

(Case T-140/07)

(2007/C 155/54)

Language of the case: English

Parties

Applicant: Pioneer Hi-Bred International
(represented by: J. Temple Lang, Solicitor)

Inc.

(Johnston, USA)

Defendant: Commission of the European Communities

Parties

Form of order sought

— Find that the Commission has failed to act in accordance
with Article 18 of Directive 2001/18 on the deliberate
release into the environment of genetically modified organ-
isms,
to the Regulatory
Committee a draft of the measures to be taken pursuant to
Article 5(2) of the Council decision;

in having failed to submit

— order the Commission to pay the applicant's costs.

Pleas in law and main arguments

to Article 232 EC,

The applicant claims, pursuant
the
Commission has failed to act, in infringement of Article 18 of
Directive 2001/18/EC on the deliberate release into the environ-
ment of genetically modified organisms (1), to ensure the adop-
tion of a decision concerning the applicant's notification for the
placing on the market of insect-resistant genetically modified
maize 1507.

that

The applicant contends that under the procedure set out in the
directive, the Commission is obliged to ensure that a decision
on a notification is adopted and published within the period of

Applicants: Chi Mei Optoelectronics Europe BV (Hoofddorp, The
Netherlands), Chi Mei Optoelectronics UK Ltd (Havant, United
Kingdom)
(represented by: S. Völcker, F. Louis, A. Vallery,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicants respectfully ask the Court to

— annul the contested decision in its entirety; and

— order the Commission to bear the costs.

Pleas in law and main arguments

By means of their application the applicants seek annulment of
Commission Decision C (2007)546 of 15 February 2007 on
the basis of which the Commission, has compelled the appli-
cants, pursuant to Article 18(3) of Council Regulation No 1/
2003 (1), to provide specific information and documents related
to practices under investigation in Case COMP/F/39309 — Thin
Films Transistors Liquid Crystal Displays.