Case T-146/07: Action brought on 7 May 2007 — United Technologies 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

7.7.2007

EN

Official Journal of the European Union

C 155/31

Form of order sought

Action brought on 7 May 2007 — ThyssenKrupp Aufzüge
and ThyssenKrupp Fahrtreppen v Commission

— Annul or substantially reduce the fine imposed on UTC

pursuant to the decision;

— order the Commission to pay UTC's 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 its application, the applicant seeks 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-
cant, 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 its application, the applicant first of all submits
that the Commission wrongly held that mere legal ownership of
a wholly owned subsidiary justifies a finding of parental liability.
The applicant alleges in this connection that i) Article 23(2) of
Regulation No 1/2003 (1) requires evidence of
intention or
negligence, ii) that the parent company has to exercise actual
control over
the subsidiary's commercial policy during the
infringement period or be aware of the conduct and do nothing
to terminate it, and iii) that the parent company's liability for its
subsidiaries' antitrust infringements must be based on its actual
behaviour and not the ability to influence.

thereafter contends that

The applicant
it has rebutted any
presumption of liability as its subsidiaries autonomously deter-
mined their day-to-day commercial conduct and the relevant
employees disobeyed instructions after the applicant had taken
every reasonable step to ensure compliance with the competi-
tion rules. Furthermore the Commission failed, according to the
applicant, to state reasons for its finding that the applicant did
not rebut the presumption of liability.

The applicant moreover alleges that the 70 % increase of the
fine imposed on the applicant for size and deterrence is unjusti-
fied and disproportionate.

Finally, the applicant submits that the Commission violated the
principle of equal treatment in holding the applicant responsible
for the illegal conduct of its subsidiaries whereas the Commis-
sion applied a different legal test to find that Mitsubishi Electric
Corporation Japan was not responsible for the conduct of its
subsidiary.

(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).

(Case T-147/07)

(2007/C 155/58)

Language of the case: German

Parties

Applicants: ThyssenKrupp Aufzüge GmbH (Neuhausen auf den
and ThyssenKrupp Fahrtreppen GmbH
Fildern, Germany)
(Hamburg, Germany)
Itzen and K. Blau-
Hansen, lawyers)

(represented by: U.

Defendant: Commission of the European Communities

Form of order sought

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

applicants;

— in the alternative, reduce as appropriate the amount of the
fine imposed jointly and severally on the applicants in the
contested decision;

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

Pleas in law and main arguments

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 a cartel relating to the installa-
tion and maintenance of lifts and escalators in Germany. In the
view of the Commission, the undertakings concerned acted in
breach of Article 81 EC.

In the contested decision,

In support of
following pleas in law:

their action,

the applicants put

forward the

— Lack of competence on the part of the Commission in the
absence of any significance at inter-State level of the local
infringement of which the applicants are accused;

— Absence of

the conditions required to establish that the
applicants bear joint and several liability with the companies
hierarchically above them, inasmuch as they are legally and
economically independent;

— Disproportionate nature of the basic amounts taken into
consideration in the calculation of the fine in comparison
with the de facto market volume concerned;

— Illegality of the deterrent multiplication factor as the appli-
cants' turnover was the only relevant factor in the calcula-
tion of the fine and that turnover did not justify application
of that multiplication factor;

— Lack of justification for the repeat offender surcharge in the
context of the fine calculation by reason of errors of law in
the inclusion of previous fines and errors of appraisal;