Case T-144/07: Action brought on 7 May 2007 — ThyssenKrupp Liften Ascenseurs v Commission
Date: 2007-05-07
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, fine, lift, powers of the institutions (EU), restriction on competition

7.7.2007

EN

Official Journal of the European Union

C 155/29

The applicants submit that the contested decision is unlawful in
that the Commission lacks the investigative and enforcement
power to compel EU subsidiaries to produce documents and to
provide information under the sole custody and control of legal
entities located outside the Commission's jurisdiction.
is,
hence, submitted that the Commission erred in law by addres-
sing a formal request for information to the applicants, thereby
compelling them to provide documents and information under
the sole control and possession of their parent company located
outside the EU territory.

It

the applicants claim that

Precisely,
the contested decision
infringes Article 18(1) and (3) of Council Regulation No 1/
2003 because it disregards the document ownership and control
doctrine and thus the inherent limitation of these provisions. In
addition,
the contested decision
violates the general principles of international law of territori-
ality, of sovereignty, of non-intervention and of equality of
States by allegedly asserting enforcement
jurisdiction over a
company located outside the EU.

the applicants contend that

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules in competition laid down in Articles 81
and 82 EC (OJ 2003, L 1, p. 1).

Action brought on 7 May 2007 — ThyssenKrupp Liften
Ascenseurs v Commission

(Case T-144/07)

(2007/C 155/55)

Language of the case: Dutch

Parties

Applicant: ThyssenKrupp Liften Ascenseurs NV/SA (Brussels,
Belgium) (represented by: V. Turner and D. Mes, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision in so far as it relates to the

applicant;

— in the alternative, reduce the amount of the fine for which

the applicant is held to be jointly and severally liable;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is challenging Commission Decision C(2007) 512
final (Case COMP/E-1/38.823 — PO/Elevators and Escalators). It
seeks the annulment of the decision to the extent to which the

latter concerns it, or alternatively a reduction in the fine
imposed on it.

In support of its action the applicant first of all submits that the
Commission was not empowered to apply Article 81 EC inas-
much as the infringement did not have any significant effect on
inter-State trade within the EU.

In the alternative, the applicant submits that the Commission
was not the appropriate competition authority for the applica-
tion of Article 81 EC within the terms of the Commission
Notice on cooperation within the network of competition
authorities (1). According to the applicant, by initiating yet
another set of proceedings, the Commission infringed the legiti-
mate expectations which the applicant was able to derive from
the application of that notice.

Third, by instituting proceedings and imposing a fine,
the
Commission infringed the ne bis in idem principle, the principle
of legal certainty, the principle of the protection of legitimate
expectations and the principle of sound administration inas-
much as the Belgian competition authority had conferred on the
applicant immunity from fines with regard to participation in
the cartel-related offence which forms the subject-matter of the
contested decision.

it

is

alleged that

Further,
the Commission improperly
concluded that the applicant, ThyssenKrupp Elevators AG and
ThyssenKrupp AG were jointly and severally liable for the infrin-
gement which the applicant itself had committed.

The applicant also submits that,
in fixing the fine to be
imposed, the Commission infringed Article 23 of Regulation
No 1/2003 (2), the Commission's guidelines on setting fines (3),
the principle of equality and the principle of proportionality.
The Commission,
it alleges, also failed to comply with the
maximum level for fines laid down in Article 23.

The applicant further submits that the Commission breached
the leniency notice (4) and the principle of equality when deter-
mining the amount of the reduction in the fine to be imposed
on the applicant by reason of its cooperation within the frame-
work of the leniency notice.

Finally, the applicant alleges that the Commission infringed the
principles of equality, proportionality, protection of legitimate
expectations and sound administration when determining the
amount of the reduction in the fine to be imposed on the appli-
cant by reason of its cooperation outwith the framework of the
leniency notice.

(1) OJ 2004 C 101, p. 43.
(2) 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).

(3) Commission notice: 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).

(4) Commission notice on immunity from fines and reductions of fines

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