Action brought on 18 April 2007 - Toshiba v Commission

(Case T-113/07)

Language of the case: English

Parties

Applicant: Toshiba Corp. (Tokyo, Japan) (represented by: J. MacLennan, Solicitor, A. Schulz and J. Borum, laywers)

Defendant: Commission of the European Communities

Form of order sought

The applicant requests the Court to:

annul Commission's decision of 24 January 2007 - Case COMP/F/38.899 - Gas Insulated Switchgear; or

annul the Commission's decision as far as it relates to Toshiba; or

amend Articles 1 and 2 of the decision to annul or substantially reduce the fine imposed on Toshiba; and

order the Commission to pay the costs of the proceedings, including the costs incurred in connection with the bank guarantee.

Pleas in law and main arguments

The applicant 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 applicant, 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 applicant applies for a cancellation or reduction of the fines imposed.

According to the applicant, the Commission appears to have based its findings on three arrangements concluding on the existence of a world-wide cartel. Even if that were the case, the applicant submits that the Commission has no jurisdiction over behaviour which might restrict competition outside the EEA.

The applicant claims that the Commission has failed to prove to the requisite legal standard that the applicant took part in any agreement or concerted practice not to sell in Europe, or that European GIS suppliers compensated the Japanese companies for not entering Europe by way of "loading" European projects into the European "GQ¹" quota. The applicant further submits that the Commission has relied for corroboration on equally indirect, vague, unsubstantiated evidence consisting mainly of oral statements made by the leniency applicant and, in addition, has allegedly ignored evidence provided to contradict the incriminating statements.

Moreover, whereas the applicant does not deny that it was part of the "GQ agreement" it contends that the agreement at stake was a world-wide agreement not covering Europe and over which the Commission lacked jurisdiction. The applicant claims that the Commission, in its attempt the bring the applicant under its jurisdiction, shifted the focus of its legal assessment entirely on whether there had been a "common understanding" (that the Japanese would refrain form entering the European market that the European companies would equally refrain from competing in Japan) and whether certain European projects were systematically reported to the Japanese companies or "loaded" into the European "GQ" as part of this "common understanding". Hence, it is claimed that the Commission has not established that the applicant should be held responsible for the series of infringements at European level and has allegedly committed a manifest error of appraisal.

It is further submitted that the contested decision is vitiated by procedural irregularities. To this extent, the applicant suggests that its rights of defence have been compromised through the Commission's failure to provide adequate reasoning, to grant access to evidence and distortion of evidence.

In the alternative, the applicant submits that the Commission's failure to properly apportion responsibility between the European and Japanese companies vitiated the method used for assessing the fines for the addressees of the decision. On this account, the applicant sustains that the Commission did not properly assess either the gravity or the duration of the infringement and thus, has unfairly discriminated against the applicant.

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¹ - "G" stands for "gear" and "Q" for "quota".