Case T-148/07: Action brought on 7 May 2007 — ThyssenKrupp Ascenseurs Luxembourg 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 155/32

EN

Official Journal of the European Union

7.7.2007

— Breach of Article 23(2) of Regulation (EC) No 1/2003 (1),
inasmuch as, with regard to the upper fine limit of 10 % of
the undertaking's turnover, the Commission based itself on
the turnover of the concern and not on that of the appli-
cants;

— Legally defective application of

the Notice on immunity
from fines and reduction of fines (2) inasmuch as insufficient
account was taken of the added value provided by the coop-
eration of the applicants.

(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) 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 — ThyssenKrupp
Ascenseurs Luxembourg v Commission

(Case T-148/07)

(2007/C 155/59)

Language of the case: German

Parties

Applicant: ThyssenKrupp Ascenseurs Luxembourg Sàrl (Howald,
Luxembourg) (represented by: K. Beckmann, lawyer)

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 as appropriate the amount of the
fine imposed jointly and severally on the applicant in the
contested decision;

— 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 of 21 February 2007 in Case COMP/E-1/38.823 —
PO/Elevators and Escalators.
fines
were imposed on the applicant and other undertakings on the

In the contested decision,

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

In support of
following pleas in law:

its action,

the applicant puts

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 applicant is accused;

— Infringement of the ne bis in idem principle inasmuch as the
Commission failed to take into account the amnesty decision
which the Luxembourg cartel authority adopted in the appli-
cant's favour before the present proceedings were instituted;

— Absence of

the conditions required to establish that the
applicant bears joint and several liability with the companies
hierarchically above it, inasmuch as it is legally and econom-
ically independent;

— Disproportionate nature of the amount of the fine as set
the applicant's de facto

when considered in the light of
market significance;

— Illegality of the deterrent multiplication factor as the appli-
cant's turnover was the only relevant factor for the purpose
of calculating 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 reasons of errors of law in
the inclusion of previous fines and errors of appraisal;

— Breach of Article 23(2) of Regulation (EC) No 1/2003 (1),
inasmuch as, with regard to the upper fine limit of 10 % of
the undertaking's turnover, the Commission based itself on
the turnover of the concern and not on that of the appli-
cant;

— Legally defective application of

the Notice on immunity
from fines and reduction of fines (2) inasmuch as insufficient
account was taken of the added value represented by the
applicant's cooperation;

— Failure to take adequate account of the applicant's coopera-
tion outside the context of the Notice on immunity from
fines and reduction of fines.

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

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