Official Journal of the European Union

C 355/12

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(Case C-519/11 P)

2011/C 355/20

Language of the case: Dutch

Parties

Appellant: ThyssenKrupp Liften BV (represented by: O.W. Brouwer, N. Lorjé, N. Al-Ani, advocaten)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

—set aside the judgment under appeal of the General Court of 13 July 2011 in so far as the General Court rejected the pleas put forward by the appellant at first instance;

—give judgment in this case and annul Commission Decision C(2007) 512 final (1) of 21 February 2007 in Case COMP/E-1/38.823 — Elevators and Escalators on the basis of the relevant pleas put forward at first instance and/or reduce the fine imposed on the appellant;

—in the alternative, reduce the fine imposed on the appellant;

—in the further alternative, refer the case back to the General Court;

—order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant puts forward five grounds in support of its appeal.

1.Infringement of Article 81(1) EC (now Article 101(1) TFEU) since the infringements are not capable of appreciably affecting trade between Member States and the Commission unlawfully initiated the procedure.

2.Breach of the ne bis in idem principle.

3.Breach of the principle of proportionality as a result of the setting of a disproportionate starting amount of the fine.

4.Infringement of the maximum amount of the fine provided for in Article 23 of Regulation 1/2003, (2) the presumption of innocence set out in Article 48(1) of the Charter of Fundamental Rights of the European Union and Article 6(2) of the ECHR, the nulla poena sine lege principle set out in Article 49(1) of the Charter of Fundamental Rights of the European Union, the principle of proportionality in Article 49(3) of the Charter of Fundamental Rights of the European Union, the principle that penalties must fit the offence and the principle of personal liability for penalties on account of the confirmation of the appellant’s joint and several liable for the entire amount of the fine calculated on the basis of the group turnover.

5.Error of assessment and unlawful omission by the General Court, in so far as it failed to make any use of its unlimited jurisdiction in the area of fines, inter alia as regards the starting amount of the fine, the multiplier for deterrence and the cooperation outside the context of the 2002 Leniency Notice.

Summary in OJ 2008 C 75, p. 19.

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).

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