Action brought on 19 April 2007 - Fuji Electric Holdings and Fuji Electric Systems v Commission

(Case T-132/07)

Language of the case: English

Parties

Applicants: Fuji Electric Holdings Co., Ltd (Kawasaki, Japan) and Fuji Electric Systems Co., Ltd. (Tokyo, Japan) (represented by: P. Chapatte, P. Walter, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

The applicants respectfully request the Court to:

annul Article 1(g) of the decision in so far as it finds that the infringement imputed to FEH by that provision existed after September 2000;

annul Article 1(h) of the decision in its entirety;

annul Article 2(d) of the decision in so far as it imputes joint and several liability upon FES for the fine imposed pursuant to that provision;

annul Article 2(f) of the decision in so far as it imputes joint and several liability upon Fuji for the fine imposed pursuant to that provision;

reduce the fine imposed on Fuji; and

order the Commission to bear its own costs and those incurred by Fuji.

Pleas in law and main arguments

The applicants lodged an action for annulment, under Article 230 EC against Commission decision of 24 January 2007 (Case COMP/F/38.899 - Gas insulated switchgear - C(2006) 6762 final), on the basis of which the Commission found the applicants, among other undertakings, liable to have infringed Article 81(1) EC and from 1 January 1994 also Article 53 EEA in the gas insulated switchgear sector (hereinafter "GIS"), through a set of agreements and concerted practices consisting of (a) market sharing, (b) the allocation of quotas and maintenance of the respective market shares, (c) the allocation of individual GIS projects (bid-rigging) to designated producers and the manipulation of the bidding procedure for those projects, (d) price fixing, (e) agreements to cease licence agreements with non-cartel members and (f) exchanges of sensitive market information. In the alternative, the applicants apply for a substantial reduction of the fines imposed.

The decision holds Fuji Electric Systems (hereinafter "FES") liable for participating in the infringement from 15 April 1988 to 30 September 2002. However, FES disputes that it participated in the GQ agreement and claims that it was not involved in the GIS sales up until 1 July 2001, around nine months after Fuji Electric Holdings ("FEH") had ceased participating in the cartel. In finding that FEH continued its participation in the GQ agreement after the Japanese members' meeting which took place around September 2000, it is submitted that the Commission committed a manifest error of assessment, an error of law with regards to the burden of proof as well as an error of law in relation to equal treatment.

Moreover, Fuji maintains that it should not be held jointly and severally liable for the involvement of Japan AE Power Systems Corporation (hereinafter "JAEPS") in the cartel since it neither had the ability to exercise decisive influence over JAEPS nor did it have any knowledge of its alleged participation in the cartel. Hence, the applicant submits that the Commission committed a manifest error of assessment with regards to the infringement of FES.

Finally, Fuji sustains that the decision is vitiated by manifest errors of assessment with regards to the duration of the infringement as well as the liability for the alleged infringement of JAEPS. In addition, the Commission has incorrectly determined the value of the information provided by the applicants, in holding that it did not warrant a reduction of the fine imposed upon the applicants pursuant to the Leniency Notice. In this respect, Fuji claims that the fines imposed should be substantially reduced.

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