Action brought on 8 May 2007 - KONE and Others v Commission

(Case T-151/07)

Language of the case: English

Parties

Applicants: KONE Corp. (Helsinki, Finland), KONE GmbH (Hannover, Germany) and KONE BV (The Hague, The Netherlands) (represented by: T. Vinje, Solicitor, D. Paemen, J. Schindler, B. Nijs, lawyers, J. Flynn, QC and D. Scannell, Barrister)

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 Commission decision;

order the Commission to pay the costs.

Pleas in law and main arguments

By means of their application, the applicants seek partial annulment, 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 applicants, among other undertakings, were held liable for participating 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 Netherlands.

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 Notice¹ 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 improperly 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 1998² (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 reduction 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 treatment to similarly situated immunity applicants; and in that (iii) it disregarded the applicants' rights of defence by refusing access to documents.

In respect of the infringement which took place in the Netherlands, the applicants submit that 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 legitimate 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 attenuating circumstances in the applicants' favour, and in failing to properly acknowledge the fact that the applicants did not contest the facts.

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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.