Action brought on 7 May 2007 - ThyssenKrupp Liften Ascenseurs v Commission

(Case T-144/07)

Language of the case: Dutch

Parties

Applicant: ThyssenKrupp Liften Ascenseurs NV/SA (Brussels, Belgium) (represented by: V. Turner and D. Mes, 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 amount of the fine for which the applicant is held to be jointly and severally liable;

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 (Case COMP/E-1/38.823 - PO/Elevators and Escalators). It seeks the annulment of the decision to the extent to which the latter concerns it, or alternatively a reduction in the fine imposed on it.

In support of its action the applicant first of all submits that the Commission was not empowered to apply Article 81 EC inasmuch as the infringement did not have any significant effect on inter-State trade within the EU.

In the alternative, the applicant submits that the Commission was not the appropriate competition authority for the application of Article 81 EC within the terms of the Commission Notice on cooperation within the network of competition authorities. ¹ According to the applicant, by initiating yet another set of proceedings, the Commission infringed the legitimate expectations which the applicant was able to derive from the application of that notice.

Third, by instituting proceedings and imposing a fine, the Commission infringed the ne bis in idem principle, the principle of legal certainty, the principle of the protection of legitimate expectations and the principle of sound administration inasmuch as the Belgian competition authority had conferred on the applicant immunity from fines with regard to participation in the cartel-related offence which forms the subject-matter of the contested decision.

Further, it is alleged that the Commission improperly concluded that the applicant, ThyssenKrupp Elevators AG and ThyssenKrupp AG were jointly and severally liable for the infringement which the applicant itself had committed.

The applicant also submits that, in fixing the fine to be imposed, the Commission infringed Article 23 of Regulation No 1/2003, ² the Commission's guidelines on setting fines, ³ the principle of equality and the principle of proportionality. The Commission, it alleges, also failed to comply with the maximum level for fines laid down in Article 23.

The applicant further submits that the Commission breached the leniency notice ⁴ and the principle of equality when determining the amount of the reduction in the fine to be imposed on the applicant by reason of its cooperation within the framework of the leniency notice.

Finally, the applicant alleges that the Commission infringed the principles of equality, proportionality, protection of legitimate expectations and sound administration when determining the amount of the reduction in the fine to be imposed on the applicant by reason of its cooperation outwith the framework of the leniency notice.

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¹ - OJ 2004 C 101, p. 43.

² - 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).

³ - Commission notice: Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3).

⁴ - Commission notice on immunity from fines and reductions of fines in cartel cases (OJ 2002 C 45, p. 3).