Case T-145/07: Action brought on 7 May 2007 — OTIS and Others v Commission
Date: 2007-05-07
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, lift, restriction on competition, unlawful agreement

C 155/30

EN

Official Journal of the European Union

7.7.2007

Action brought on 7 May 2007 — OTIS and Others v
Commission

high-speed elevators, which only account for a small part of
the overall total elevators.

(Case T-145/07)

(2007/C 155/56)

Language of the case: English

Parties

Applicants: Otis SA (Dilbeek, Belgium), Otis GmbH & Co. OHG
(Berlin, Germany), Otis BV (Amersfoort, The Netherlands) and
Otis Elevator Co. (Farmington, United States) (represented by:
A. Winckler, lawyer, and J. Temple Lang, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

— Annul or substantially reduce the fine imposed on Otis

pursuant to the decision;

— order the Commission to pay Otis' legal and other costs and

expenses in relation to this matter; and

— take any other measures that the Court considers appro-

priate.

Pleas in law and main arguments

By means of their application, the applicants seek partial annul-
ment, pursuant to Article 230 EC, of Commission Decision
C(2007)512 final of 21 February 2007 (Case COMP/E-1/38.823
— PO/Elevators and Escalators), on the basis of which the appli-
cants, among other undertakings were held liable for partici-
pating in four single, complex and continuous infringements of
Article 81(1) EC through the sharing of markets by virtue of
agreeing and/or concerting to allocate tenders and contracts for
the sale, installation, service and modernisation of elevators and
escalators.

In support of
the applicants invoke the
following nine pleas in law without contesting the factual find-
ings in the contested decision.

their application,

The Commission misapplied the relevant
test when
holding Otis Elevator Company liable for the conduct of the
local entities as Otis Elevator Company did not exercise decisive
influence over the day-to-day commercial conduct of these local
affiliates and could not have been aware of their infringing
conduct.

legal

The Commission violated the leniency notice (2):

— by not granting Otis immunity for the illegal arrangements
in Germany, as Otis was
the only company to have
submitted evidence and information about the full scope and
duration of the elevator and escalator arrangements; or

— by not granting partial

immunity concerning respectively
escalators and elevators in certain periods and by failing to
state reason therefore.

In the alternative, the Commission should have granted a 50 %
reduction and,
in any event, a reduction significantly greater
than 25 %. The applicants allege that the Commission failed to
appreciate the extent and significant added value of the evidence
Otis provided.

Furthermore, the Commission violated Otis' legitimate expecta-
tions and the proportionality principle:

— by failing to grant the usual reduction of 10 % for not
contesting the facts concerning Belgium, Germany and
Luxembourg; and

— by failing to grant a reduction for providing clarifying and

supplementary information.

Finally, the Commission misapplied the leniency notice and the
fining guidelines when determining the fine relating to Belgium,
Germany and Luxembourg.

(1) Commission Notice of 14 January 1998 entitled ‘Guidelines on the
method of setting fines imposed pursuant to Article 15(2) of Regu-
lation No 17 and Article 65(5) of the ECSC Treaty’ (OJ 1998 C 9,
p. 3).

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

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

Action brought on 7 May 2007 — United Technologies v
Commission

(Case T-146/07)

(2007/C 155/57)

Language of the case: English

The Commission misapplied the
violated the proportionality principle:

fining guidelines (1) and

Parties

— when increasing the fine for deterrence based on the entire

group's turnover; and

— when determining the starting amount relating to Germany,
as the Commission failed to take into account that the illegal
arrangements only concerned escalators and ‘high-value’/

Applicant: United Technologies Corp. (Hartford, United States)
(represented by: A. Winckler, lawyer, and J. Temple Lang, Soli-
citor)

Defendant: Commission of the European Communities