Action brought on 4 May 2007 - Schindler Holding and Others v Commission

(Case T-138/07)

Language of the case: German

Parties

Applicants: Schindler Holding Ltd (Hergiswil, Switzerland), Schindler Management AG (Ebikon, Switzerland), S.A. Schindler N.V. (Brussels, Belgium), Schindler Sàrl (Luxembourg, Luxembourg), Schindler Liften B.V. (The Hague, Netherlands) and Schindler Deutschland Holding GmbH (Berlin, Germany) (represented by: R. Bechtold, W. Bosch, U. Soltész and S. Hirsbrunner, lawyers)

Defendant: Commission of the European Communities

Form of order sought

annul the decision of 21 February 2007 in Case COMP/E-1/38.823 - PO/Elevators and Escalators, pursuant to the first paragraph of Article 231 EC;

in the alternative, reduce the fines imposed in that decision;

order the Commission to pay the costs of the applicants, in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance.

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. In the contested decision, fines were imposed on the applicants and other undertakings on the ground of their participation in cartels relating to the installation and maintenance of lifts and escalators in Belgium, Germany, Luxembourg and the Netherlands. In the view of the Commission, the undertakings concerned acted in breach of Article 81 EC.

In support of their action, the applicants put forward the following pleas in law:

Infringement of the principle of legal certainty by Article 23(2) of Regulation (EC) No 1/2003 ¹inasmuch as that provision confers on the Commission unlimited discretion in setting fines;

Breach of the prohibition of retroactive effect by the fine imposed by the Commission;

Lack of effectiveness of the Guidelines on the method of setting fines ('the 1998 Guidelines') ² in that they fail adequately to take account of individual circumstances in connecting the basic amounts of fines with the respective infringements and confer too great a discretion on the Commission in determining fines;

Illegality of the evidence adduced by cooperative undertakings on the basis of the Notice on immunity from fines and reduction of fines ³ by reason of the infringement of the nemo tenetur principle, of the right against self-incrimination, of the in dubio pro reo principle and the principle of proportionality, and by reason of the manner in which the Commission exceeded its competence by adopting that rule;

Infringement of the principle of the division of powers and of the requirements of due process;

Illegality of the contested decision under international law by reason of the expropriatory nature of the fines imposed;

Infringement of the 1998 Guidelines on the ground that the basic amounts used to calculate the fines were unduly high in the light of the specific offences;

Infringement of the 1998 Guidelines on the ground that inadequate account/no account was taken of extenuating circumstances;

Infringement of the 2002 rules relating to cooperative undertakings on grounds of unduly low cooperation discounts or unjustified refusal of such discounts;

Disproportionate nature of the level of the fines;

Illegality of the contested decision in so far as it is addressed to Schindler Holding Ltd and Schindler Management AG on the ground that, in the absence of an international-law agreement with Switzerland, it was not effectively notified to those companies;

Absence of conditions for the joint and several liability of Schindler Holding Ltd;

Breach of Article 23(2) of Regulation No 1/2003 on the ground that the maximum limits for fines were exceeded.

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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).

² - 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).

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