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C 140/40 EN Official Journal of the European Union 23.6.

2007

Form of order sought although that company was in a comparable situation to the
applicant's as regards the control exercised by the parent compa-
The applicant claims that the Court should: nies.

— annul on the basis of Article 230 EC the decision adopted By its fifth plea, the applicant submits that the Commission
by the Commission on 21 February 2007 relating to a erred in fact in so far as it did not grant it a reduction of 50 %
proceeding under Article 81 EC and Article 53 EEA in Case of the fine under the Leniency Notice (1). The applicant main-
COMP/E-1/38.823 — Elevators and Escalators, in so far as it tains that its cooperation with the Commission was close,
concerns GTO; consistent and particularly wide in its scope and that it warrants
the maximum reduction in the fine provided for by the Leniency
— in the alternative, annul or reduce, on the basis of Article Notice, that is, 50 %.
229 EC, the fine imposed on it by that decision;
The sixth plea put forward by the applicant alleges infringement
— order the Commission to pay all the costs. 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
Pleas in law and main arguments applicant claims that the notification of the statement of objec-
tions and the Commission's practice in taking decisions gave
By this action, the applicant is seeking the partial annulment of rise to the justified expectation on its part that it would obtain
Commission decision C(2007)512 final of 21 February 2007 on that basis a reduction of 10 %, and not merely 1 % as
relating to a proceeding under Article 81 EC and Article 53 granted in the contested decision.
EEA (Case COMP/E-1/38.823 — PO/Elevators and Escalators),
concerning a cartel on the market for the installation and main- The seventh plea alleges infringement of the principle of propor-
tenance of lifts and escalators in Belgium, Germany, Luxem- tionality of penalties, in so far as the fine imposed on the appli-
bourg and the Netherlands, and relating to the manipulation of cant is not justified in the light of the infringement in question,
calls for tenders, market-sharing, price-fixing, the award of and above all having regard to what is alleged to be its limited
projects and sales contracts, the installation, maintenance and impact on the market and the fact it was committed by a
modernisation of machinery and the exchange of information, company of limited size.
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. (1) Commission notice on immunity from fines and reduction of fines
in cartel cases, OJ 2002 C 45, p. 3.
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 calcu-
lation 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 Action brought on 4 May 2007 — General Technic v
reduced owing to the limited geographical scope of the market Commission
in question and the limited impact of the offending practices on
the market in question. (Case T-142/07)

In its second plea, the applicant claims that the Commission (2007/C 140/66)
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 Language of the case: French
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 indepen-
dently and which, consequently, is incapable of causing signifi- Parties
cant damage on the market.
Applicant: General Technic Sàrl (Luxembourg, Grand Duchy of
In the third plea, the applicant submits that the Commission Luxembourg) (represented by: M. Nosbusch, lawyer)
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 Defendant: Commission of the European Communities
take into account the turnover of the parent companies for the
purpose of calculating the maximum fine to impose on the
applicant. Form of order sought

The fourth plea alleges infringement by the Commission of the The applicant claims that the Court should:
principle of equal treatment in so far as it did not apply the
principles on liability consistently to all the members of the — annul on the basis of Article 230 EC the decision adopted
cartel in question. The applicant maintains that the Commission by the Commission on 21 February 2007 relating to a
attributed the offending practices to its parent companies while proceeding under Article 81 EC and Article 53 EEA in Case
it did not do so in respect of another company against which a COMP/E-1/38.823 — Elevators and Escalators, in so far as it
finding of infringement was made in the same decision, concerns GT;
23.6.2007 EN Official Journal of the European Union C 140/41

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

— order the Commission to pay all the costs. The applicant petitions the Court:

— to admit its brief and documents appended thereto and


Pleas in law and main arguments consider an appeal to have been filed in good time and due
order against the decision issued by OHIM's Second Board
of Appeal on 15 February 2007 in Case R-523/2006-2 and
By this action, the applicant is seeking the partial annulment of following completion of appropriate procedural steps, to
Commission decision C(2007)512 final of 21 February 2007 render judgment in due course overturning that decision
relating to a proceeding under Article 81 EC and Article 53 and expressly ordering OHIM to pay the costs of the
EEA (Case COMP/E-1/38.823 — PO/Elevators and Escalators), proceedings.
concerning a cartel on the market for the installation and main-
tenance of lifts and escalators in Belgium, Germany, Luxem-
bourg and the Netherlands, and relating to the manipulation of
calls for tenders, market-sharing, price-fixing, the award of Pleas in law and main arguments
projects and sales contracts, the installation, maintenance and
modernisation of machinery and the exchange of information,
Registered Community trade mark subject of the application for revoca-
in so far as it concerns the applicant. In the alternative, the
tion: the word Community trade mark ‘MOTOWN’ for goods
applicant seeks the annulment or reduction of the fine imposed
and services in Classes 9, 25, 41 and 42 — application No 206
on it by the contested decision.
243

In support of its action, the applicant submits that the Commis-


sion was wrong to find it jointly and severally liable for Proprietor of the Community trade mark: UMG Recordings
payment of the fine imposed on its subsidiary, a member of the
cartel. It claims that the Commission was mistaken about the Party requesting the revocation of the Community trade mark: Jimmy
nature and extent of its shareholding in the share capital of its Osman
subsidiary in so far as the applicant is a purely financial
company which does not carry out any trade of its own and
that its shareholding in the subsidiary is a minority shareholding Decision of the Cancellation Division: Upheld the revocation
which does not exceed what is necessary for the protection of request for all contested services in Class 42 and rejected it
its financial interests. The applicant maintains also that the insofar as it was directed against services in Class 41
Commission has not stated to the requisite legal standard its
reasons for finding that the applicant was involved in the cartel Decision of the Board of Appeal: Upheld the appeal lodged by
in question, in contrast to the personal role played by its share- Jimmy Osman
holder, in his capacity as managing associate of the subsidiary.

Pleas in law: Infringement of Articles 15(1) and 50(1) of Council


Regulation (EC) No 40/94.

The applicant claims that the Board allegedly erred in its assess-
ment of evidence submitted to prove the use of its mark with
regards to the contested services in Class 41.

Action brought on 30 April 2007 — UMG Recordings/ First, the applicant submits that the Board failed to consider that
OHMI — Osman (MOTOWN) the contested mark was the subject of acts of use for the
contested services by both the registered proprietor and third
(Case T-143/07) parties with the proprietor's consent.

(2007/C 140/67) Secondly, according to the applicant the Board confused


‘discotheques services’ with ‘the organisation of musical events’
Language in which the application was lodged: English while it did not take into account that they fell into different
categories of services.

Thirdly, the applicant contends that, even assuming that it did


Parties not participate either directly or indirectly in the provision of
‘discotheques services’ and/or the ‘organisation of musical
Applicant: UMG Recordings, Inc. (Santa Monica, USA) (repre- events’ it should have been held that it did render specific
sented by: E. Armijo Chávarri, A. Castán Pérez-Gómez, lawyers) services falling within the aforementioned categories and that
the provision of those ‘sub-services’ served to overcome the
Defendant: Office for Harmonisation in the Internal Market obligation to use its mark for so-called general categories of
(Trade Marks and Designs) services (namely, the contested services).

Other party/parties to the proceedings before the Board of Appeal:


Jimmy Osman (London, United Kingdom)