Action brought on 4 May 2007 - General Technic-Otis v Commission

(Case T-141/07)

Language of the case: French

Parties

Applicant: General Technic-Otis Sàrl (Howald, Grand Duchy of Luxembourg) (represented by: M. Nobusch, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

annul on the basis of Article 230 EC the decision adopted by the Commission on 21 February 2007 relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/E-1/38.823 - Elevators and Escalators, in so far as it concerns GTO;

in the alternative, annul or reduce, on the basis of Article 229 EC, the fine imposed on it by that decision;

order the Commission to pay all the costs.

Pleas in law and main arguments

By this action, the applicant is seeking the partial annulment of Commission decision C(2007)512 final of 21 February 2007 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/E-1/38.823 - PO/Elevators and Escalators), concerning a cartel on the market for the installation and maintenance of lifts and escalators in Belgium, Germany, Luxembourg and the Netherlands, and relating to the manipulation of calls for tenders, market-sharing, price-fixing, the award of projects and sales contracts, the installation, maintenance and modernisation of machinery and the exchange of information, in so far as it concerns the applicant. In the alternative, the applicant seeks annulment or reduction of the fine imposed on it by the contested decision.

In support of its claims, the applicant raises seven pleas.

In the first plea, the applicant submits that the Commission erred in fact and in law in application of the rules on the calculation of fines in so far as it held that the incriminating practices constituted a "very serious" infringement. The applicant alleges that the starting amount of the fine should consequently be reduced owing to the limited geographical scope of the market in question and the limited impact of the offending practices on the market in question.

In its second plea, the applicant claims that the Commission erred in law and in fact in so far as it did not take into account the applicant's actual economic capacity to cause damage. It also maintains that the Commission should have taken into account, when fixing the amount of the fine, the applicant's status as a small or medium-sized undertaking, managed entirely independently and which, consequently, is incapable of causing significant damage on the market.

In the third plea, the applicant submits that the Commission erred in law and in fact in so far as it did not limit the amount of the fine to 10% of its turnover and that it was wrong to take into account the turnover of the parent companies for the purpose of calculating the maximum fine to impose on the applicant.

The fourth plea alleges infringement by the Commission of the principle of equal treatment in so far as it did not apply the principles on liability consistently to all the members of the cartel in question. The applicant maintains that the Commission attributed the offending practices to its parent companies while it did not do so in respect of another company against which a finding of infringement was made in the same decision, although that company was in a comparable situation to the applicant's as regards the control exercised by the parent companies.

By its fifth plea, the applicant submits that the Commission erred in fact in so far as it did not grant it a reduction of 50% of the fine under the Leniency Notice. ¹ The applicant maintains that its cooperation with the Commission was close, consistent and particularly wide in its scope and that it warrants the maximum reduction in the fine provided for by the Leniency Notice, that is, 50%.

The sixth plea put forward by the applicant alleges infringement of the principle of legitimate expectations in so far as the Commission did not grant it a supplementary reduction of 10% of the fine in return for not contesting the facts. The applicant claims that the notification of the statement of objections and the Commission's practice in taking decisions gave rise to the justified expectation on its part that it would obtain on that basis a reduction of 10%, and not merely 1% as granted in the contested decision.

The seventh plea alleges infringement of the principle of proportionality of penalties, in so far as the fine imposed on the applicant is not justified in the light of the infringement in question, and above all having regard to what is alleged to be its limited impact on the market and the fact it was committed by a company of limited size.

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¹ - Commission notice on immunity from fines and reduction of fines in cartel cases, OJ 2002 C 45, p. 3.