Action brought on 7 May 2007 - OTIS and Others v Commission

(Case T-145/07)

Language of the case: English

Parties

Applicants: Otis SA (Dilbeek, Belgium), Otis GmbH & Co. OHG (Berlin, Germany), Otis BV (Amersfoort, The Netherlands) and Otis Elevator Co. (Farmington, United States) (represented by: A. Winckler, lawyer, and J. Temple Lang, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

Annul or substantially reduce the fine imposed on Otis pursuant to the decision;

order the Commission to pay Otis' legal and other costs and expenses in relation to this matter; and

take any other measures that the Court considers appropriate.

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.

In support of their application, the applicants invoke the following nine pleas in law without contesting the factual findings in the contested decision.

The Commission misapplied the relevant legal test when holding Otis Elevator Company liable for the conduct of the local entities as Otis Elevator Company did not exercise decisive influence over the day-to-day commercial conduct of these local affiliates and could not have been aware of their infringing conduct.

The Commission misapplied the fining guidelines¹ and violated the proportionality principle:

when increasing the fine for deterrence based on the entire group's turnover; and

when determining the starting amount relating to Germany, as the Commission failed to take into account that the illegal arrangements only concerned escalators and 'high-value'/high-speed elevators, which only account for a small part of the overall total elevators.

The Commission violated the leniency notice²:

by not granting Otis immunity for the illegal arrangements in Germany, as Otis was the only company to have submitted evidence and information about the full scope and duration of the elevator and escalator arrangements; or

by not granting partial immunity concerning respectively escalators and elevators in certain periods and by failing to state reason therefore.

In the alternative, the Commission should have granted a 50% reduction and, in any event, a reduction significantly greater than 25%. The applicants allege that the Commission failed to appreciate the extent and significant added value of the evidence Otis provided.

Furthermore, the Commission violated Otis' legitimate expectations and the proportionality principle:

by failing to grant the usual reduction of 10 % for not contesting the facts concerning Belgium, Germany and Luxembourg; and

by failing to grant a reduction for providing clarifying and supplementary information.

Finally, the Commission misapplied the leniency notice and the fining guidelines when determining the fine relating to Belgium, Germany and Luxembourg.

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¹ - Commission Notice of 14 January 1998 entitled '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).

² - Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).