Appeal brought on 30 September 2011 by ThyssenKrupp Ascenseurs Luxemburg Sàrl against the judgment of the General Court (Eighth Chamber) delivered on 13 July 2011 in Joined Cases T-144/07, T-147/07, T-148/07, T-149/07, T-150/07 and T-154/07 ThyssenKrupp Liften Ascenseurs and Others v European Commission

(Case C-5045/11P)

Language of the case: German

Parties

Appellant: ThyssenKrupp Ascenseurs Luxemburg Sàrl (represented by: T. Schaper, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

Set aside the judgment of the General Court (Eighth Chamber) in Joined Cases T-144/07, T-147/07, T-148/07, T-149/07, T-150/07 and T-154/07 ThyssenKrupp Liften Ascenseurs and Others v European Commission in so far as it dismisses the action and concerns the appellant;

In the alternative, appropriately further reduce the fine imposed on the appellant in Article 2 of the contested decision of the European Commission of 21 February 2007;

In the further alternative, refer the action back to the General Court for a new decision;

Order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

By the present appeal, the appellant challenges the judgment of the General Court (Eighth Chamber) of 13 July 2011 in, inter alia, Case T-148/07 ThyssenKrupp Liften Ascenseurs and Others v European Commission, in so far as it dismisses the action of 7 May 2007 against European Commission Decision C(2007) 512 final of 21 February 2007 (Case COMP/E-1/38.823 - Lifts and escalators) and concerns the appellant.

The appellant alleges the lack of competence of the Commission, infringement of essential procedural requirements, infringement of the EC and FEU Treaties, the legal norms applicable in the implementation of those Treaties and misuse of powers and breach of fundamental rights, in a total of three grounds of appeal:

First, the appellants claim that the General Court has erred in law in holding that the Commission had powers to initiate the proceeding. In their submission, the General Court ought to have declared the Commission's decision null and void on grounds of the inapplicability of Article 101 TFEU (formerly Article 81 EC) in the absence of inter-State effect of the local infringements alleged. Even if the General Court declares Article 101 TFEU applicable, it would have to take account of the fact that the Commission's competence in any event ran counter to the parallel powers under the European Competition Network Notice under Regulation No 1/2003. ¹ Finally, the General Court has disregarded the fact that the subsequent initiation of the proceeding by the Commission constitutes an infringement of the legally protected principle of legal certainty and legality as regards penalties.

Second, the appellants allege that the General Court has erred in law by confirming the Commission Decision which held the appellants to be jointly liable on the basis of the group turnover of ThyssenKrupp AG. Thus the judgment infringes Article 23 of Regulation No 1/2003, the rule of law in the form of the legal principle of nulla poena sine lege, the principle of proportionate penalties, the principle of in dubio pro reo and the fault principle. The judgment is unlawful, in that it rests on the assumption that a subsidiary forms, with its parent company (and other companies in the group), a liability-sharing group in the form of an economic unit. Further and independent thereof, it infringes the principle of fault, since the appellants together with their parent companies were fined as jointly and severally liable participants. In the alternative, the appellants claim that the General Court has confirmed the joint and several liability despite the liability not being allocated within the group.

Third, the appellants claim that, in its judgment, the General Court has infringed its comprehensive and legally imposed duty of investigation, in that it examined only to an insufficient degree the disproportionality of the fixing of the starting amount of the fines, the deterrence multiplier and the Commission's insufficiently high evaluation of the cooperation of the appellants and thus infringed the fundamental right to a fair trial and the guarantee of legal protection included therein.

Fourth, it is alleged that the principle of proportionality and that of equal treatment have been infringed as regards the fixing of the starting amount of the fines for the infringement concerning Germany, because unconnected turnover was included in the starting amount for calculation of the fines, despite the fact that there were compelling grounds against it. The General Court applied an appropriately differentiated basis to Schindler, but erred in law by failing to apply that differentiation to the appellants.

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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).