Case T-147/07: Action brought on 7 May 2007 — ThyssenKrupp Aufzüge and ThyssenKrupp Fahrtreppen 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

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;

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).