23.6.2007

Official Journal of the European Union

C 140/31

(Case T-122/07)

(2007/C 140/52)

Language of the case: German

Parties

Applicants: Siemens Aktiengesellschaft Österreich (Vienna, Austria) and VA TECH Transmission & Distribution GmbH & Co. KEG (Vienna, Austria) (represented by H. Wollmann and F. Urlesberger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—annul Article 1 of the contested decision in so far as it finds that the applicants infringed Article 81 EC and/or Article 53 of the EEA Agreement during the period from 20 September 1998 to 13 December 2000, 1 April 2002 to 9 October 2002, and 21 January 2004 to 11 May 2004;

—annul Article 2 of the contested decision in so far as the applicants are affected;

—in the alternative, reduce the fines imposed on the applicants in Article 2(l) of the decision to an amount not exceeding EUR 1 980 000;

—order the defendant to pay the costs.

Pleas in law and main arguments

The applicants contest Commission Decision C(2006) 6762 final of 24 January 2007 in Case COMP/F/38.899 — Gas-isolated switchgear. In the contested decision fines were imposed on the applicants and other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicants took part in a set of agreements and concerted practices concerning the gas-isolated switchgear sector.

The applicants base their application primarily on breach of Article 81(1) EC and Article 23 of Regulation (EC) No 1/2003 (1). In this connection they complain that the fine imposed on VA TECH Transmission & Distribution GmbH & Co. KEG is disproportionately high in relation to the fines imposed on other undertakings. Furthermore, the way in which the Commission attempted to divide a total amount of fines up among various companies breached the ne bis in idem principle. In addition, the applicants assert that the Commission incorrectly assessed the duration of the infringement. Further, the Commission found without cogent proof that until 13 December 2000 the alleged infringement had as its purpose or effect a restriction of competition within the Community. Finally, it is submitted in connection with the first plea in law that when the fines were assessed mitigating circumstances and the leniency notice were wrongly left out of account.

Second, the applicants submit that the Commission breached essential procedural requirements. In this connection they complain of a breach of the right to be heard.

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 L 1, 4.1.2003, p. 1).

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