Case T-151/07: Action brought on 8 May 2007 — KONE and Others v Commission
Date: 2007-05-08
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, lift, restriction on competition, unlawful agreement

C 155/34

EN

Official Journal of the European Union

7.7.2007

— Infringement of the ne bis in idem principle inasmuch as the
Commission disregarded the amnesty decisions which the
cartel authorities in Belgium, Luxembourg and the Nether-
lands had adopted in the applicant's favour before the
present proceedings were brought;

— Absence of

the conditions required to establish that the
applicant bears joint and several liability with its subsidiaries,
inasmuch as it was not itself involved in the offences, its
subsidiaries operate on a basis of legal and economic inde-
pendence,
justification for
and there
extending liability to the applicant;

is no objective

— Disproportionate nature of

the basic amounts used for
calculation of the fine when compared with the de facto
market volume in question;

— Disproportionate nature of

the deterrent multiplication
factor inasmuch as this differed significantly from the treat-
ment accorded to other undertakings of comparable scale in
comparable cases decided at the same time;

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

— 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 fine ought to have been
calculated solely on the basis of the turnover posted by the
subsidiaries concerned;

— 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 of the applicant's
cooperation in all four countries concerned.

(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 8 May 2007 — KONE and Others v
Commission

(Case T-151/07)

(2007/C 155/62)

Language of the case: English

Parties

Applicants: KONE Corp.
(Helsinki, Finland), KONE GmbH
(Hannover, Germany) and KONE BV (The Hague, The Nether-
lands)
Paemen,
Solicitor, D.
J. Schindler, B. Nijs,
J. Flynn, QC and D. Scannell,
Barrister)

(represented by: T. Vinje,

lawyers,

Defendant: Commission of the European Communities

Form of order sought

The applicants request the Court to:

— annul Article 2(2) of the decision in so far as it imposes a
fine on KONE Corporation and KONE GmbH, and impose
either no fine or a fine at a lower amount than determined
in the Commission decision;

— annul Article 2(4) of the Commission decision in so far as it
imposes a fine on KONE Corporation and KONE BV, and set
the fine at a lower amount than determined by the Commis-
sion decision;

— order the Commission to pay the costs.

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.

The applicants, KONE Corporation and its subsidiaries, KONE
GmbH and KONE BV, challenge the contested decision only in
respect of its imposition of fines on KONE as a whole for its
participation in infringements in Germany and in the Nether-
lands.

In respect of the infringement which took place in Germany,
the applicants submit that the Commission erred in determining
the amount of the fine. In particular, the applicants claim first,
that the Commission has improperly applied the 2002 Leniency
Notice (1) in that (i) it ought to have granted KONE immunity
under point 8(b) and point 8(a) of the Notice; or alternatively,
(ii) it ought to have reduced the applicants' fine in accordance
with the last paragraph of point 23 of the said Notice.

The applicants claim, secondly, that the Commission has impro-
perly applied the Guidelines on the method of setting fines
imposed pursuant to Article 15(2) of Regulation (EC) No 17
and Article 65(5) of the ECSC Treaty of 1998 (2) (hereinafter,
‘the 1998 Fining Guidelines’) in that (i) it allegedly failed to take
into account the size of the affected market in setting the fine;
and in that (ii) it failed to acknowledge properly the applicants'
non-contestation of the facts, as shown by its grant of a reduc-
tion of only 1 % in respect of this contribution.

Thirdly, the applicants contend that the Commission has failed
to observe basic principles of EC law in that (i) it disregarded
the principle of
legitimate expectations by failing to inform
them in a timely manner of the unavailability of the immunity;
in that (ii) it disregarded the principle of equal treatment by
giving differential
to similarly situated immunity
applicants; and in that (iii) it disregarded the applicants' rights of
defence by refusing access to documents.

treatment

7.7.2007

EN

Official Journal of the European Union

C 155/35

that

the applicants submit

In respect of the infringement which took place in the Nether-
lands,
the Commission erred in
denying them any reduction of the fine and in setting the fine
at EUR 79 750 000. In particular, the applicants suggest, first,
that the Commission misapplied the 2002 Leniency Notice in
that it failed to reduce the applicants' fine in recognition of the
fact that the applicants provided information and cooperated
during the administrative procedure. Secondly, the applicants
allege that the Commission disregarded the principle of legiti-
mate expectations and of equal treatment. Finally, the applicants
put forward that the Commission has improperly applied the
1998 Fining Guidelines both in failing to take into account the
favour, and in
attenuating circumstances in the applicants'
failing to properly acknowledge the fact that the applicants did
not contest the facts.

(1) Commission Notice on immunity from fines and reduction of fines

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

(2) OJ 1998 C 9, p. 3.

Pleas in law and main arguments

Community trade mark concerned: A figurative mark representing a
watch for goods in class 14 (registration No 2542694).

Decision of the Examiner: Application refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law:

— Infringement of Article 7(1)(b) of Regulation No 40/94, as
the mark applied for does not lack the requisite distinctive
character;

— Infringement of Article 7(3) of Regulation No 40/94, as, due
to an error in law, the mark applied for has been held not to
have become distinctive as a result of the use which has
been made of it.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 7 May 2007 — Lange Uhren v OHIM
(Figurative mark representing a watch)

(Case T-152/07)

(2007/C 155/63)

Language of the case: German

Parties

Applicant: Lange Uhren GmbH (Glashütte, Germany)
sented by M. Schaeffer, Rechtsanwalt)

(repre-

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Form of order sought

— annul the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market of 15 February
2007 in Case R 1176/2005-1;

— declare that the provisions of Article 7(1)(b) of Regulation
(EC) No 40/94 (1) do not preclude publication of the Com-
munity trade mark applied for under No 2542694 for
goods in class 14 (‘luxury watches and chronometric instru-
ments; watchfaces for luxury watches’);

— in the alternative, declare that the Community trade mark
applied for under No 2542694 has become distinctive in
respect of the goods applied for in class 14 as a result of the
use which has been made of
in accordance with
it,
Article 7(3) of Regulation No 40/94;

— order the Office for Harmonisation in the Internal Market to

pay the costs.

Action brought on 8 May 2007 — ThyssenKrupp Liften v
Commission

(Case T-154/07)

(2007/C 155/64)

Language of the case: Dutch

Parties

Applicant: ThyssenKrupp Liften BV (Krimpen aan den IJssel,
Netherlands) (represented by: O.W. Brouwer and A.C.E. Stoffer,
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 fine imposed on the applicant;

— order the Commission 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).

In support of its application the applicant invokes the same pleas
in law as those put forward in Case T-144/07 ThyssenKrupp
Liften Ascenseurs v Commission.