Action brought on 7 May 2007 - United Technologies v Commission

(Case T-146/07)

Language of the case: English

Parties

Applicant: United Technologies Corp. (Hartford, 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 UTC pursuant to the decision;

order the Commission to pay UTC's 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 its application, the applicant seeks 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 applicant, 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 its application, the applicant first of all submits that the Commission wrongly held that mere legal ownership of a wholly owned subsidiary justifies a finding of parental liability. The applicant alleges in this connection that i) Article 23(2) of Regulation No 1/2003¹ requires evidence of intention or negligence, ii) that the parent company has to exercise actual control over the subsidiary's commercial policy during the infringement period or be aware of the conduct and do nothing to terminate it, and iii) that the parent company's liability for its subsidiaries' antitrust infringements must be based on its actual behaviour and not the ability to influence.

The applicant thereafter contends that it has rebutted any presumption of liability as its subsidiaries autonomously determined their day-to-day commercial conduct and the relevant employees disobeyed instructions after the applicant had taken every reasonable step to ensure compliance with the competition rules. Furthermore the Commission failed, according to the applicant, to state reasons for its finding that the applicant did not rebut the presumption of liability.

The applicant moreover alleges that the 70% increase of the fine imposed on the applicant for size and deterrence is unjustified and disproportionate.

Finally, the applicant submits that the Commission violated the principle of equal treatment in holding the applicant responsible for the illegal conduct of its subsidiaries whereas the Commission applied a different legal test to find that Mitsubishi Electric Corporation Japan was not responsible for the conduct of its subsidiary.

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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).