JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

19 May 2010 (*)

(Competition – Agreements, decisions and concerted practices – Copper plumbing tube industry – Decision finding an infringement of Article 81 EC – Fines – Actual impact on the market – Size of the relevant market – Duration of the infringement – Ability to pay – Cooperation)

In Case T‑25/05,

KME Germany AG, formerly KM Europa Metal AG, established in Osnabrück (Germany),

KME France SAS, formerly Tréfimétaux SA, established in Courbevoie (France),

KME Italy SpA, formerly Europa Metalli SpA, established in Florence (Italy),

represented by M. Siragusa, A. Winckler, G.C. Rizza, T. Graf, M. Piergiovanni, lawyers, and R. Elderkin, Barrister,

applicants,

v

European Commission, represented by É. Gippini Fournier, S. Noë and C. Thomas, acting as Agents,

APPLICATION, first, for reduction of the fines imposed on the applicants under Article 2(g), (h) and (i) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 – Copper plumbing tubes) and, second, by way of counterclaim by the Commission, for those fines to be increased,

THE GENERAL COURT (Eighth Chamber),

composed of M.E. Martins Ribeiro, President, S. Papasavvas and N. Wahl (Rapporteur), Judges,

Registrar: C. Kantza, Administrator,

having regard to the written procedure and further to the hearing on 6 November 2008,

gives the following

Judgment

 Background

1        KME Germany AG (formerly KM Europa Metal AG), KME France SAS (formerly Tréfimétaux SA) and KME Italy SpA (formerly Europa Metalli SpA) are part of a European industrial group which is quoted on the stock exchange and has a worldwide presence. The group is one of the world’s largest producers of copper and copper alloy semi-finished products. Until June 1995, KME France and KME Italy together formed an undertaking that was separate from KME Germany. It was only after June 1995 that KME Germany, KME Italy and KME France formed a single group (KME Germany, KME Italy and KME France are hereinafter referred to either as ‘the applicants’ or as ‘the KME group’).

1.     Administrative procedure

2        Following the communication of information by Mueller Industries Inc. (‘Mueller’) in January 2001, the Commission of the European Communities carried out unannounced inspections at the premises of several undertakings in the copper tubes industry in March 2001, pursuant to Article 14 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87).

3        On 9 and 10 April 2001, further inspections were carried out at the premises of KME Germany AG and those of Outokumpu Oyj and Luvata Oy (formerly Outokumpu Copper Products Oy) (together ‘the Outokumpu group’). On 9 April 2001, Outokumpu offered to cooperate with the Commission under the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the 1996 Leniency Notice’) with regard both to industrial tubes and to plumbing tubes. Following further investigations, the Commission divided its inquiry in relation to copper tubes into three separate proceedings, namely Case COMP/E‑1/38.069 (Copper plumbing tubes), Case COMP/E‑1/38.121 (Fittings) and Case COMP/E‑1/38.240 (Industrial tubes).

4        By letter of 30 May 2001, the Outokumpu group sent the Commission a memorandum together with a number of annexes describing the copper tube industry and the collusive agreements relating to it.

5        On 5 June 2002, in Case COMP/E‑1/38.240 (Industrial tubes), interviews concerning the Outokumpu group’s offer of cooperation took place, at the Commission’s initiative, with representatives of the group. The Outokumpu group also indicated its willingness for the Commission to conduct interviews with employees who were involved in the arrangements in Case COMP/E‑1/38.069 (Copper plumbing tubes).

6        In July 2002, in Case COMP/E‑1/38.240 (Industrial tubes), the Commission sent requests for information under Article 11 of Regulation No 17 to Wieland-Werke AG (‘Wieland’) and to the KME group, and also invited the Outokumpu group to disclose further information. On 15 October 2002, the KME group replied to the request for information. Its reply included a statement and a request for application of the 1996 Leniency Notice in Case COMP/E‑1/38.069 (Copper plumbing tubes). In addition, the KME group gave the Commission permission to use all the information provided in the context of Case COMP/E‑1/38.240 (Industrial tubes) in Case COMP/E‑1/38.069 (Copper plumbing tubes).

7        On 23 January 2003, Wieland submitted to the Commission a statement including a request for application of the 1996 Leniency Notice in Case COMP/E‑1/38.069 (Copper plumbing tubes).

8        On 3 March 2003, the Commission sent requests for information in relation to Case COMP/E‑1/38.069 (Copper plumbing tubes) to the Boliden group (comprising Boliden AB, Outokumpu Copper Fabrication AB (formerly Boliden Fabrication AB) and Outokumpu Copper BCZ SA (formerly Boliden Cuivre & Zinc SA)), to HME Nederland BV (‘HME’) and to Chalkor AE Epexergasias Metallon (‘Chalkor’), as well as, on 20 March 2003, to the IMI group (comprising IMI plc, IMI Kynoch Ltd and Yorkshire Copper Tube).

9        On 9 April 2003, Chalkor’s representatives met Commission staff and requested application of the 1996 Leniency Notice in Case COMP/E‑1/38.069 (Copper plumbing tubes).

10      On 29 August 2003, the Commission adopted a statement of objections in Case COMP/E‑1/38.069 (Copper plumbing tubes) against the companies concerned. After those companies had been given access to the file electronically and had submitted written observations, they took part – with the exception of HME – in a hearing on 28 November 2003.

11      On 16 December 2003, the Commission adopted Decision C(2003) 4820 final relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E‑1/38.240 – Industrial tubes), a summary of which was published in the Official Journal of the European Union on 28 April 2004 (OJ 2004 L 125, p. 50). That decision was the subject of an action brought by the applicants which was dismissed by the Court by its judgment of 6 May 2009 in Case T‑127/04 KME Germany and Others v Commission [2009] ECR II‑0000.

2.     The contested decision

12      On 3 September 2004, the Commission adopted Decision C(2004) 2826 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 – Copper plumbing tubes) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union on 13 July 2006 (OJ 2006 L 192, p. 21).

13      The contested decision includes, in particular, the following provisions:

‘Article 1

The following undertakings infringed Article 81(1) [EC] and – from 1 January 1994 – Article 53(1) of the EEA Agreement by participating, for the periods indicated, in a complex of agreements and concerted practices consisting of price fixing and market sharing in the copper plumbing tubes sector:

(a)      Boliden …, together with [Outokumpu Copper Fabrication] and [Outokumpu Copper BCZ], from 3 June 1988 until 22 March 2001;

(b)      [Outokumpu Copper Fabrication], together with Boliden … and [Outokumpu Copper BCZ], from 3 June 1988 until 22 March 2001;

(c)      [Outokumpu Copper BCZ], together with Boliden … and [Outokumpu Copper Fabrication], from 3 June 1988 until 22 March 2001;

(d)      Austria Buntmetall AG:

(i)      together with Buntmetall Amstetten [GmbH], from 29 August 1998 at the latest until 8 July 1999, and

(ii)      together with [Wieland] and Buntmetall Amstetten …, from 9 July 1999 until 22 March 2001;

(e)      Buntmetall Amstetten …:

(i)      together with Austria Buntmetall …, from 29 August 1998 at the latest, until 8 July 1999, and

(ii)      together with [Wieland] and Austria Buntmetall …, from 9 July 1999 until 22 March 2001;

(f)      [Chalkor] from 29 August 1998 at the latest, until at least beginning of September 1999;

(g)      [HME] from 29 August 1998 at the latest, until 22 March 2001;

(h)      IMI … together with IMI Kynoch … and Yorkshire Copper Tube …, from 29 September 1989 until 22 March 2001;

(i)      IMI Kynoch … together with IMI … and Yorkshire Copper Tube …, from 29 September 1989 until 22 March 2001;

(j)      Yorkshire Copper Tube … together with IMI … and IMI Kynoch …, from 29 September 1989 until 22 March 2001;

(k)      [KME Germany]:

(i)      individually, from 3 June 1988 until 19 June 1995, and

(ii)      together with [KME France] and [KME Italy], from 20 June 1995 to 22 March 2001;

(l)      [KME Italy]:

(i)      together with [KME France], from 29 September 1989 to 19 June 1995, and

(ii)      together with [KME Germany] and [KME France], from 20 June 1995 to 22 March 2001;

(m)      [KME France]:

(i)      together with [KME Italy], from 29 September 1989 to 19 June 1995, and

(ii)      together with [KME Germany] and [KME Italy], from 20 June 1995 to 22 March 2001;

…

(s)      Outokumpu … together with [Luvata], from 29 September 1989 until 22 March 2001;

(t)      [Luvata], together with Outokumpu …, from 29 September 1989 until 22 March 2001;

(u)      [Wieland]:

(i)      individually from 29 September 1989 until 8 July 1999, and

(ii)      together with Austria Buntmetall … and Buntmetall Amstetten …, from 9 July 1999 until 22 March 2001.

Article 2

For the infringements referred to in Article 1, the following fines are imposed:

(a)      Boliden …, [Outokumpu Copper Fabrication] and [Outokumpu Copper BCZ] jointly and severally: EUR 32.6 million;

(b)      Austria Buntmetall … and Buntmetall Amstetten … jointly and severally: EUR 0.6695 million;

(c)      Austria Buntmetall …, Buntmetall Amstetten … and [Wieland] jointly and severally: EUR 2.43 million;

(d)      [Chalkor]: EUR 9.16 million;

(e)      [HME]: EUR 4.49 million;

(f)      IMI …, IMI Kynoch … and Yorkshire Copper Tube … jointly and severally: EUR 44.98 million;

(g)      [KME Germany]: EUR 17.96 million;

(h)      [KME Germany], [KME France] and [KME Italy] jointly and severally: EUR 32.75 million;

(i)      [KME Italy] and [KME France] jointly and severally: EUR 16.37 million;

(j)      Outokumpu … and [Luvata] jointly and severally: EUR 36.14 million;

(k)      [Wieland] individually: EUR 24.7416 million.

…’

14      The Commission took the view that the undertakings concerned had participated in a single, continuous, complex and, in the case of the Boliden group, the KME group and Wieland, multiform infringement (‘the cartel’ or ‘the infringement at issue’). The Commission stated that national arrangements were not, as such, covered by the contested decision (recitals 2 and 106 of the contested decision).

 Relevant products and markets

15      The industry concerned – copper tube manufacturing – encompasses two product groups: (i) industrial tubes, which are divided into various sub-groups based on their end use (air-conditioning and refrigeration, fittings, gas heaters, filter dryers and telecommunications), and (ii) plumbing tubes, also called ‘sanitary tubes’, ‘water tubes’ or ‘installation tubes’, which are used for water, oil, gas and heating installations in the construction industry (recital 3 of the contested decision).

16      In the contested decision, the Commission stated that the relevant industry was the copper plumbing tube industry in the European Economic Area (EEA). It took the view that, in 2000, the value of that industry in the EEA was approximately EUR 1 151 million (recitals 13, 17 and 23 of the contested decision).

 Components of the infringement at issue

17      The Commission observed that the infringement at issue manifested itself in three separate but interconnected forms (recitals 458 and 459 of the contested decision). The first branch of the cartel, namely the SANCO arrangements, consisted in the arrangements entered into between the ‘SANCO producers’, SANCO being the trade mark for plain copper plumbing tubes produced by the KME group, Wieland and the Boliden group (recitals 115 to 118, 125 to 146 and 456 of the contested decision).

18      The second branch of the infringement at issue, the WICU and Cuprotherm arrangements, comprised the arrangements concluded between the ‘WICU and Cuprotherm producers’, WICU and Cuprotherm being trade marks for plastic-coated copper plumbing tubes produced by the KME group and Wieland (recitals 121 and 149 of the contested decision).

19      The third branch of the cartel, the broader European arrangements, involved the arrangements entered into within a wider group of plain copper plumbing tube producers. It involved the undertakings referred to in paragraphs 17 and 18 above, and also the Buntmetall group (comprising Austria Buntmetall and Buntmetall Amstetten), Chalkor, HME, the IMI group, Mueller and the Outokumpu group (recitals 147, 148, 192 and 459 to 462 of the contested decision).

 Duration and continuous nature of the infringement at issue

20      The Commission noted in the contested decision that the infringement at issue had started on 3 June 1988 in the case of the KME group and the Boliden group, on 29 September 1989 in the case of the IMI group, the Outokumpu group and Wieland, on 21 October 1997 in the case of Mueller, and on 29 August 1998 at the latest in the case of Chalkor, the Buntmetall group and HME. As regards the date on which the infringement came to an end, the Commission found that this was 22 March 2001, except in the case of Mueller and Chalkor which, according to the Commission, ceased to participate in the cartel on 8 January 2001 and in September 1999 respectively (recital 597 of the contested decision).

21      As regards the continuous nature of the infringement at issue, in the case of the Boliden group, the IMI group, the KME group, the Outokumpu group and Wieland, the Commission observed in the contested decision that, although there were periods of reduced cartel activity between 1990 and December 1992, and between July 1994 and July 1997, the unlawful activity was never entirely interrupted, so that the infringement at issue effectively constituted a single infringement that was not time-barred (recitals 466, 471, 476, 477 and 592 of the contested decision).

 Determination of the amount of the fines

22      In the contested decision, the Commission imposed fines, pursuant to Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and Article 15(2) of Regulation No 17, on the Boliden group, the Buntmetall group, Chalkor, HME, the IMI group, the KME group, the Outokumpu group and Wieland (recital 842 and Article 2 of the contested decision).

23      The amounts of the fines were fixed by the Commission in accordance with the gravity and duration of the infringement at issue, those being the two criteria explicitly mentioned in Article 23(3) of Regulation No 1/2003 and Article 15(2) of Regulation No 17, which, according to the contested decision, was applicable at the time of the infringement at issue (recitals 601 to 603 of the contested decision).

24      In fixing the amount of the fine imposed on each undertaking, the Commission applied the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’), even if it did not systematically refer to them. In the contested decision, the Commission also assessed whether, and to what extent, the undertakings concerned met the requirements laid down in the 1996 Leniency Notice.

 Starting amount of the fines

–       Gravity

25      In assessing the gravity of the infringement at issue, the Commission took account of the nature of the infringement, its actual impact on the market and the extent and size of the relevant geographic market (recitals 605 and 678 of the contested decision).

26      It stated that, by their nature, market-sharing and price-fixing practices of the kind at issue in the present case constituted a very serious infringement, and found that the geographic market affected by the cartel corresponded to the territory of the EEA. The Commission also took account of the fact that the copper plumbing tubes market was a very important industrial sector, with an estimated market value in the EEA of EUR 1 151 million in 2000, the last full year of the cartel (recitals 606 and 674 to 678 of the contested decision).

27      As regards the actual impact on the market, the Commission observed that there was sufficient proof that the cartel had overall had an impact on the relevant market, particularly on prices, although it was not possible to quantify it precisely (recitals 670 and 673 of the contested decision). It based that finding on a number of factors. First of all, it relied on the implementation of the cartel, referring to the fact that the participants had exchanged information on sales volumes and price levels (recitals 629 and 630 of the contested decision).

28      Second, it took into account the fact that the members of the cartel held a significant share – 84.6% – of the EEA market (recital 635 of the contested decision).

29      Third, the Commission relied on tables, memoranda and notes drawn up by members of the cartel in connection with its meetings. These documents showed that prices had increased during certain periods of the cartel and that its members had achieved additional earnings compared with earlier periods. Some of the documents indicated that the people involved in the cartel took the view that it had enabled the undertakings concerned to achieve their price targets. The Commission also relied on the statements made by Mr M, a former director of one of the companies in the Boliden group, and by Wieland, by the Boliden group and by Mueller in the context of their respective cooperation (recitals 637 to 654 of the contested decision).

30      Finally, the Commission found that the respective market shares of the cartel participants had remained relatively stable throughout the period of the infringement, although customers had fluctuated between the participants (recital 671 of the contested decision).

31      The Commission concluded from this that the undertakings concerned had committed a very serious infringement (recital 680 of the contested decision).

–       Differential treatment

32      In the contested decision the Commission identified four groups which it regarded as being representative of the relative importance of the undertakings involved in the infringement at issue. The Commission’s division of the members of the cartel into several categories was based on the respective market shares of the cartel members for sales of the relevant products in the EEA in 2000. Consequently, the KME group was regarded as being the main player in the relevant market and was placed in the first category. The Wieland group (comprising Wieland and the Buntmetall group, of which Wieland took control in July 1999) and the IMI and Outokumpu groups were regarded as medium-sized operators in that market and were placed in the second category. The Boliden group was placed in the third category. HME and Chalkor were placed in the fourth category (recitals 681 to 692 of the contested decision).

33      Market shares were determined on the basis of the turnover achieved by each offending undertaking from sales of plumbing tubes in the combined market for plain and plastic-coated copper plumbing tubes. Therefore, the market shares of the undertakings which did not sell WICU and Cuprotherm tubes were calculated by dividing their turnover of plain copper plumbing tubes by the overall size of the combined market for plain and plastic-coated copper plumbing tubes (recitals 683 and 692 of the contested decision).

34      The Commission therefore set the starting amount of the fines at EUR 70 million for the KME group, EUR 23.8 million for the Wieland, IMI and Outokumpu groups, EUR 16.1 million for the Boliden group and EUR 9.8 million for Chalkor and for HME (recital 693 of the contested decision).

35      In view of the fact that Wieland and the Buntmetall group formed a single undertaking after July 1999 and that, until June 1995, KME France and KME Italy jointly formed an undertaking separate from KME Germany, the starting amounts of the fines imposed on each of them were fixed as follows: EUR 35 million for the KME group; EUR 17.5 million for KME Germany; EUR 17.5 million for KME Italy and KME France jointly and severally; EUR 3.25 million for the Wieland group; EUR 19.52 million for Wieland and EUR 1.03 million for the Buntmetall group (recitals 694 to 696 of the contested decision).

36      In order to take account of the need to set the fine at a level that would ensure its deterrent effect, the Commission increased the starting amount of the fine imposed on the Outokumpu group by 50%, thus taking it to EUR 35.7 million, on the basis that its worldwide turnover – in excess of EUR 5 billion – indicated that its size and economic power were such as to justify such an increase (recital 703 of the contested decision).

 Basic amount of the fines

37      It is apparent from the contested decision that the Commission increased the starting amounts of the fines by 10% per full year of infringement and by 5% for any additional period of six months or more but less than a year. Accordingly, the Commission found that:

–        since the IMI group had participated in the cartel for 11 years and 5 months, the starting amount of the fine of EUR 23.8 million should be increased by 110%;

–        since the Outokumpu group had participated in the cartel for 11 years and 5 months, the starting amount of the fine of EUR 35.7 million fixed following the increase for deterrence purposes should be increased by 110%;

–        since the Boliden group had participated in the cartel for 12 years and 9 months, the starting amount of the fine of EUR 16.1 million should be increased by 125%;

–        since Chalkor had participated in the cartel for 12 months, the starting amount of the fine of EUR 9.8 million should be increased by 10%;

–        since HME had participated in the cartel for 2 years and 6 months, the starting amount of the fine of EUR 9.8 million should be increased by 25%;

–        since the KME group had participated in the cartel for 5 years and 7 months, the starting amount of the fine of EUR 35 million should be increased by 55%;

–        since KME Germany had participated in the cartel for 7 years and 2 months, the starting amount of the fine of EUR 17.5 million should be increased by 70%;

–        since KME France and KME Italy had participated in the cartel for 5 years and 10 months, the starting amount of the fine of EUR 17.5 million should be increased by 55%;

–        since Wieland was held to be individually liable for a period of 9 years and 9 months, and jointly and severally liable with the Buntmetall group for an additional period of 1 year and 8 months, the starting amount of the fine of EUR 19.52 million for which Wieland was solely liable should be increased by 95%, and the starting amount of the fine of EUR 3.25 million for which Wieland and the Buntmetall group were jointly and severally liable should be increased by 15% (recitals 706 to 714 of the contested decision).

38      Therefore, the basic amounts of the fines imposed on the undertakings involved are as follows:

–        the KME group: EUR 54.25 million;

–        KME Germany: EUR 29.75 million;

–        KME France and KME Italy (jointly and severally): EUR 27.13 million;

–        the Buntmetall group: EUR 1.03 million;

–        the Wieland group: EUR 3.74 million;

–        Wieland: EUR 38.06 million;

–        the IMI group: EUR 49.98 million;

–        the Outokumpu group: EUR 74.97 million;

–        Chalkor: EUR 10.78 million;

–        HME: EUR 12.25 million;

–        the Boliden group: EUR 36.225 million (recital 719 of the contested decision).

 Aggravating and attenuating circumstances

39      The basic amount of the fine imposed on the Outokumpu group was increased by 50% on the ground that it was responsible for a repeat infringement, having been the addressee of Commission Decision 90/417/ECSC of 18 July 1990 relating to a proceeding under Article 65 [CS] concerning an agreement and concerted practices engaged in by European producers of cold-rolled stainless steel flat products (OJ 1990 L 220, p. 28) (recitals 720 to 726 of the contested decision).

40      In respect of attenuating circumstances, the Commission took into account the fact that the KME and Outokumpu groups had provided it with information when each cooperated to an extent not covered by the 1996 Leniency Notice.

41      Therefore, the Commission reduced the basic amount of the fine imposed on the Outokumpu group by EUR 40.17 million, corresponding to the fine that would have been imposed on it for the period of the infringement from September 1989 to July 1997, the finding in respect of which had been made possible by the information which it had provided to the Commission (recitals 758 and 759 of the contested decision).

42      As regards the KME group, the basic amount of the fine which was imposed on it was reduced by EUR 7.93 million for its cooperation, which had enabled the Commission to establish that the infringement at issue extended to plastic-coated copper plumbing tubes (recitals 760 and 761 of the contested decision).

 Application of the 1996 Leniency Notice

43      Under Section D of the 1996 Leniency Notice, the Commission granted reductions of fines of 50% to the Outokumpu group, 35% to the Wieland group, 15% to Chalkor, 10% to the Boliden group and to the IMI group and 35% to the KME group. HME was not granted any reduction under that notice (recital 815 of the contested decision).

 Final amount of the fines

44      Under Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, the Commission set the amounts of the fines to be imposed on the addressees of the contested decision as follows:

–        the Boliden group: EUR 32.6 million;

–        the Buntmetall group: EUR 0.6695 million;

–        Chalkor: EUR 9.16 million;

–        HME: EUR 4.49 million;

–        the IMI group: EUR 44.98 million;

–        the KME group: EUR 32.75 million;

–        KME Germany: EUR 17.96 million;

–        KME France and KME Italy (jointly and severally): EUR 16.37 million;

–        the Outokumpu group: EUR 36.14 million;

–        the Wieland group: EUR 2.43 million;

–        Wieland: EUR 24.7416 million (recital 842 of the contested decision).

 Procedure and forms of order sought

45      By application lodged at the Registry of the Court on 21 January 2005, the applicants brought the present action.

46      Owing to a change in the composition of the chambers of the Court, the Judge-Rapporteur was assigned to the Eighth Chamber to which, in consequence, the present case was assigned.

47      The applicants claim that the Court should:

–        substantially reduce the fines imposed;

–        take any other measure which the Court considers appropriate;

–        order the Commission to pay the costs.

48      The Commission contends that the Court should:

–        dismiss the action;

–        increase the fines imposed on the applicants;

–        order the applicants to pay the costs.

 Law

49      The applicants put forward seven pleas in law in support of their action, alleging, respectively, a failure adequately to take account of the actual impact of the cartel on the market in the calculation of the starting amount of the fine; an erroneous assessment of the size of the sector affected by the cartel and of the importance of the KME group in the copper plumbing tube market; an erroneous increase in the starting amount of the fine by reason of the duration of the cartel; a failure to take account of certain attenuating circumstances; the erroneous application of the 1996 Leniency Notice; and a failure to take account of the precarious financial situation of the KME group.

50      Before examining the pleas raised by the applicants, it should be pointed out that it is clear from recitals 601 and 842 of the contested decision that the fines which the Commission imposed for the infringement were imposed by virtue of Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003. Furthermore, the Commission fixed the amount of the fines by applying the method set out in the Guidelines and the 1996 Leniency Notice (see paragraph 24 above).

51      Whilst the Guidelines may not be regarded as rules of law, they nevertheless form rules of practice from which the Commission may not depart in an individual case without giving reasons which are compatible with the principle of equal treatment (see Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I‑4429, paragraph 91 and the case-law cited).

52      It is therefore for the Court to verify, when reviewing the legality of the fines imposed by the contested decision, whether the Commission exercised its discretion in accordance with the method set out in the Guidelines and, should it be found to have departed from that method, to verify whether that departure is justified and supported by sufficient legal reasoning. In that regard, it should be noted that the Court of Justice has confirmed the validity, first, of the very principle of the Guidelines and, second, of the general method which is there indicated (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 252 to 255, 266 and 267, 312 and 313).

53      The self-limitation on the Commission’s discretion arising from the adoption of the Guidelines is not incompatible with the Commission’s maintaining a substantial margin of discretion. The Guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with the provisions of Regulations No 17 and No 1/2003, as interpreted by the Court of Justice (Dansk Rørindustri and Others v Commission, cited in paragraph 52 above, paragraph 267).

54      Therefore, in areas where the Commission has maintained a discretion, for example as regards the uplift for duration, review of the legality of those assessments is limited to determining the absence of manifest error of assessment (see, to that effect, Case T‑241/01 Scandinavian Airlines System v Commission [2005] ECR II‑2917, paragraphs 64 and 79).

55      Nor, in principle, does the discretion enjoyed by the Commission and the limits which it has imposed in that regard prejudge the exercise by the Court of its unlimited jurisdiction (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering andOthers v Commission [2004] ECR II‑2501, paragraph 538), which empowers it to annul, increase or reduce the fine imposed by the Commission (see, to that effect, Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraphs 60 to 62, and Case T‑368/00 General Motors Nederland and Opel Nederland v Commission [2003] ECR II‑4491, paragraph 181).

1.     The first plea, alleging a failure adequately to take account of the actual impact of the cartel on the market

 Arguments of the parties

56      The applicants submit that it follows from the Guidelines, from the case-law, from the Commission’s previous practice and from the principles of equal treatment and proportionality that the Commission is required to adjust the amount of a fine by reference to the real impact of a cartel on the market.

57      In the applicants’ view, the amount of a fine is proportionate to the infringement where there is a meaningful relationship between the infringement and the real impact of that infringement, namely the harm caused to customers and to end consumers. A fine that is adequate for an infringement with significant actual impact would be disproportionate for an infringement that has had no actual impact or only limited actual impact. This is all the more so where, as in this instance, the infringement did not cause any significant harm to customers or to end consumers.

58      The applicants state that, in the present case, the Commission erred in concluding, in the absence of any compelling evidence, that the cartel had an actual impact on the market. That error had had an effect both on the setting of the starting amount of the fine and on the differential treatment applied by the Commission. Accordingly, they submit that the starting amount of the fine imposed on them should have been set at the lower end of the scale of penalties imposed for cartel-related infringements.

59      In reply to the statement of objections, the applicants submitted a report drawn up by a consulting company (‘the initial report’) in which the absence of any actual effect of the cartel on prices was demonstrated. In the course of the present proceedings, the applicants submitted two further reports (‘the first supplementary report’ and ‘the second supplementary report’), annexed to the application and to the reply respectively.

60      According to the applicants, price evolution may be the result of different factors entirely unconnected to an anti-competitive arrangement, such as general market conditions, levels of demand or exchange rates. The applicants take the view that the Commission did not establish the cause of the price fluctuations found in the contested decision, which might have been caused by the natural evolution of the market in response to changes in demand and costs.

61      The applicants claim that the only way to prove to the requisite legal standard that an infringement has had an effect on the market is by means of an econometric study. Since the Commission did not carry out such a study, its findings in relation to the effect of the cartel on the market are not reliable. The evidence on which the Commission relied in the contested decision, namely price increases during the period of the infringement, the stability of market shares throughout the operation of the cartel and the internal statements regarding prices by directors of the companies involved, do not prove that the cartel actually had an impact on prices.

62      In the applicants’ view, the fact that the subjective assessments on which the Commission based its findings are open to criticism is illustrated by the statement by Mueller that prices of copper plumbing tubes increased by 60% in the United Kingdom between April and November 1994. That statement is contradicted by objective data. During the relevant period, the prices which IMI and the KME group actually charged customers increased by only 14% and 25% respectively. Furthermore, account has to be taken, with regard to the relevant period, of the fact that the price of copper increased by 49% and that the KME group’s conversion margin actually fell by 5 to 6%. In other words, the cartel was not in a position to offset the increase in the price of copper.

63      The applicants claim, moreover, that the assertions made in the contested decision with regard to the initial report are incorrect. They refer mainly to the two supplementary reports and state that it was correctly stated in the initial report that, overall, the cartel had not had an appreciable impact on prices actually charged to customers.

64      Finally, the applicants reject the plea of inadmissibility raised by the Commission with regard to the first supplementary report and submit that, in their application, they clearly and unequivocally refuted each of the methodological objections which the Commission raised in that regard in the contested decision. The first supplementary report merely substantiated the evidence already provided.

65      The Commission contends that the present plea should be dismissed. Furthermore, it claims that Section 4 of the first supplementary report is inadmissible and should be disregarded, since, although it is an annex, it contains substantive arguments which do not appear in the application.

66      The Commission also raises a plea of inadmissibility in respect of the applicants’ challenge regarding the effect of the cartel on prices in the United Kingdom in 1994. That challenge constitutes a new plea in law and is, therefore, inadmissible under Article 48(2) of the Rules of Procedure of the Court in so far as the applicants did not expressly raise it in their application. In addition, the Commission maintains that the new econometric evidence adduced in that regard by the applicants is inadmissible in any event. According to the Commission, there was nothing to prevent the applicants from putting it forward at the application stage, but they chose not to object to the finding in respect of the effect on prices in the United Kingdom in 1994 and not to produce evidence on that point.

 Findings of the Court

67      As a preliminary point, the Court must rule on the pleas of inadmissibility put forward by the Commission.

68      With regard, in the first place, to the admissibility of Section 4 of the first supplementary report, it must be borne in mind that, under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure, each application is required to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. According to consistent case-law, for an action to be admissible, it is necessary that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from annexed documents, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (see Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 94 and the case-law cited).

69      Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (Microsoft v Commission, cited in paragraph 68 above, paragraph 94).

70      In the present case it must be noted that the applicants attempt, in the application, to refute in general terms the objections set out by the Commission in the contested decision with regard to the methodology used by the initial report. They maintain (i) that that methodology is correct, and (ii) that, even if the methodology were amended to take account of the Commission’s comments, the results of the initial report would be the same. Section 4 of the first supplementary report does not contain new legal arguments but substantiates the two arguments referred to above by means of a new method of calculation and econometric references. Consequently, the plea of inadmissibility put forward by the Commission in respect of that section should be dismissed.

71      With regard, in the second place, to the applicants’ challenge in the reply regarding price evolution in the United Kingdom in 1994, it must be held that this merely amplifies their plea alleging a failure adequately to take account of the actual impact of the cartel, which had already been put forward in the application. Accordingly, the Commission’s plea of inadmissibility in that regard is manifestly unfounded.

72      With regard, in the third place, to whether the econometric evidence in the second supplementary report relied on in support of the challenge regarding price evolution in the United Kingdom in 1994 is admissible, the Court makes the following observations.

73      Under Article 48(l) of the Rules of Procedure, a party may offer further evidence in reply or rejoinder but must give reasons for the delay in offering it. However, that provision concerns offers of fresh evidence and must be read in the light of Article 66(2) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 72, and judgment of 12 September 2007 in Case T‑448/04 Commission v Trends, not published in the ECR, paragraph 52).

74      In the present case, two economic studies, namely the initial report and the first supplementary report, were appended to the application to support the applicants’ assertion that the cartel had no effect on the market. The applicants appended the second supplementary report to the reply in order to respond to certain observations made by the Commission in its defence. It is common ground that the disputed evidence contained in the second supplementary report is based in part on data which had already been used in the initial report.

75      In its defence, the Commission makes the following assertions:

‘Instead of seeking to challenge the specific findings made in relation to specific countries at specific times, [the KME group] merely offers general remarks about the nature of the evidence relied on by the Commission. In the Commission’s submission, [the KME group’s] assertions are unpersuasive for this reason alone.

…

The “results” of the [initial report] combine together a number of countries identified by [the initial report] as having been affected by the cartel, and similarly combine together all the years between 1990 and 2002.

[The initial report] does not attempt to address the evidence of specific successful price initiatives identified by the Commission in the Decision. For example, [the initial report’s] “everything rolled into one” approach cannot address the evidence from Mueller that the parties’ price-fixing resulted in an overall rise in the price of copper tubes by approximately 60% during the period from April until November 1994 [in the United Kingdom] …

[The initial report] therefore cannot reveal anything about the specific and limited findings actually made in the Decision.’

76      The Court finds that the disputed evidence does not, as the Commission claims, constitute offers of fresh evidence, but amplifies the evidence relating to the absence of any effect of the cartel on the prices charged by the applicants which had already been produced at the application stage. This evidence is intended to be a detailed response to the arguments developed by the Commission in its defence.

77      It follows from this that the Commission’s plea of inadmissibility in that regard is also unfounded and that all the applicants’ objections and evidence in relation to the present plea must be declared admissible.

78      As regards the merits of the plea, it must be noted that the applicants challenge both the Commission’s assessment of the gravity of the infringement (see paragraphs 25 to 31 above) and the Commission’s differential treatment on the basis of the market shares of the undertakings concerned (see paragraphs 32 to 34 above).

79      Concerning, first, the differential treatment of the undertakings in question, the reasoning provided by the Commission in the contested decision on that subject refers in particular to a concern to take account of the ‘specific weight and therefore the real impact of the offending conduct of each undertaking on competition’ (recital 682 of the contested decision). It should, however, be emphasised that, even without proof of actual impact of the infringement at issue on the market, the Commission is entitled to apply differential treatment, by reference to the market shares held in the relevant market, such as that set out in recitals 693 and 696 of the contested decision.

80      The case-law shows that the market share of each of the undertakings concerned in the market which formed the subject-matter of a restrictive practice constitutes an objective factor which gives a fair measure of the responsibility of each undertaking as regards the potential harmfulness of that practice for the normal operation of competition (see, to that effect, Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 197).

81      Next, as regards the assessment of the gravity of the infringement, it should also be noted that, even if the Commission had not proved that the cartel had had an actual effect on the market, that would have been irrelevant to the classification of the infringement as ‘very serious’ and thus to the amount of the fine.

82      In that regard, it should be noted that the system of penalties for infringement of the competition rules, as established by Regulations No 17 and No 1/2003 and interpreted by the case-law, shows that, by reason of their very nature, cartels merit the severest fines. Their possible concrete impact on the market, particularly the question to what extent the restriction of competition resulted in a market price higher than would have obtained without the cartel, is not a decisive factor for determining the level of fines (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 120 and 129; Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraphs 68 to 77; see also the Opinion of Advocate General Mischo in Case C‑283/98 P Mo och Domsjö v Commission [2000] ECR I‑9855, I‑9858, points 95 to 101).

83      Moreover, according to the Guidelines, agreements or concerted practices involving in particular, as in the present case, price-fixing and customer-sharing may be classified as ‘very serious’ on the basis of their nature alone, without it being necessary for such conduct to have a particular impact or cover a particular geographic area. That conclusion is supported by the fact that, whilst the description of ‘serious’ infringements expressly mentions market impact and effects over extensive areas of the common market, the description of ‘very serious’ infringements makes no mention of a requirement that there be an impact or that there be effects in a particular geographic area (Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 150).

84      In any event, and for the sake of completeness, the Court considers that the Commission has demonstrated to the requisite legal standard that the cartel did have an actual impact on the relevant market.

85      In that context, it should be emphasised that the applicants’ premiss, to the effect that, if the Commission relied on actual impact of the cartel in determining the amount of the fine, it was under a duty scientifically to demonstrate the existence of a tangible economic effect on the market and a link of cause and effect between the impact and the infringement, has been rejected by the case-law.

86      This Court has held on numerous occasions that actual impact of a cartel on the market must be regarded as sufficiently demonstrated if the Commission is able to provide specific and credible evidence indicating with reasonable probability that the cartel had an impact on the market (Scandinavian Airlines System v Commission, cited in paragraph 54 above, paragraph 122; Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraphs 159 to 161; Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraphs 153 to 155; Case T‑329/01 Archer Daniels Midland v Commission [2006] ECR II‑3255, paragraphs 176 to 178; and Case T‑322/01 Roquette Frères v Commission [2006] ECR II‑3137, paragraphs 73 to 75).

87      It should be noted in that regard that the facts on which the Commission principally relied in concluding that the cartel had an actual impact on the market are the implementation of an information exchange system in relation to sales volumes and price levels, the existence of documents drawn up in connection with meetings of the cartel showing price increases during certain periods of the cartel and indicating that the cartel had enabled the undertakings concerned to achieve their price targets, the significant market share held by all the participants in the infringement at issue, and the fact that the respective market shares of those participants had remained relatively stable throughout the period of the infringement at issue (see paragraphs 27 to 30 above).

88      The applicants submit that the implementation of the cartel was limited and that the other evidence put forward by the Commission cannot demonstrate that the infringement at issue had an actual impact on the market.

89      It is apparent from the case-law that the Commission is entitled to infer, on the basis of the evidence referred to in paragraph 87 above, that the infringement at issue had an actual impact on the market (see, to that effect, Jungbunzlauer v Commission, cited in paragraph 86 above, paragraph 159; Roquette Frères v Commission, cited in paragraph 86 above, paragraph 78; Case T‑59/02 Archer Daniels Midland v Commission, cited in paragraph 86 above, paragraph 165; Case T‑329/01 Archer Daniels Midland v Commission, cited in paragraph 86 above, paragraph 181; and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraphs 285 to 287).

90      Furthermore, the Commission cannot be blamed for finding in the contested decision that the initial report was not sufficient to refute the Commission’s conclusions concerning the actual effects of the cartel on the market. The initial report deals solely with detailed figures relating to the applicants. It is apparent from the case-law that the actual conduct which an undertaking claims to have adopted is irrelevant for the purposes of evaluating a cartel’s effect on the market, since account must only be taken of effects resulting from the infringement taken as a whole (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraphs 150 and 152; Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 342; and Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraph 167).

91      Therefore, having regard to all the foregoing considerations, the present plea must be dismissed as unfounded.

92      The Court further considers, in the exercise of its unlimited jurisdiction and in the light of the foregoing considerations, that there is no cause to call into question the starting amount of the fine imposed on the applicants which was fixed by reference to the gravity of the infringement, as determined by the Commission in recital 693 of the contested decision.

2.     The second plea, alleging an erroneous assessment of the size of the sector affected by the cartel

 Arguments of the parties

93      By this second plea, the applicants argue, in essence, that, by holding that the value of the relevant market was EUR 1 151 million, the Commission exaggerated its size and thus also exaggerated the gravity of the infringement, leading to an excessive fine. The Commission erred in including the metal price in market turnover.

94      According to the applicants, the price of metal is outside their control, since it is set by daily listings on the London Metal Exchange. Therefore, the Commission should have confined itself to an examination of the size of the relevant market, that is to say it should have deducted the metal price when assessing the size of the market, which would have led to a lower starting amount for the fine.

95      Furthermore, the Commission’s dogmatic approach would result in economic operators operating downstream of the production chain being treated more severely than undertakings operating in the upstream markets. The same applies to operators engaged in the processing of expensive raw materials, as against those processing cheap raw materials.

96      The Commission contends that the plea should be dismissed.

 Findings of the Court

97      It must be held at the outset that there is no valid reason to require that the turnover of a relevant market be calculated excluding certain production costs. As the Commission has rightly pointed out, there are in all industries costs inherent in the final product which the manufacturer cannot control but which nevertheless constitute an essential element of its business as a whole and which, therefore, cannot be excluded from its turnover when fixing the starting amount of the fine (see, to that effect, Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraphs 5030 and 5031). The fact that the price of copper constitutes an important part of the final price of plumbing tubes or that the risk of fluctuations of copper prices is far higher than for other raw materials does not invalidate that conclusion.

98      Regarding the applicants’ various claims seeking to argue that, instead of using the criterion of the turnover of the relevant market, it would be more appropriate, having regard to the deterrent purpose of fines and the principle of equal treatment, to fix their amount by reference to the profitability of the sector affected or the added value relating thereto, the Court finds that they are irrelevant.

99      First, since the gravity of the infringement is determined by reference to numerous factors, in respect of which the Commission has a margin of discretion (Joined Cases T‑101/05 and T‑111/05 BASF v Commission [2007] ECR II‑4949, paragraph 65), no binding or exhaustive list of criteria to be taken into account in that regard having been drawn up (Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 129), it is not for the Court but for the Commission to choose, within the framework of its discretion and in accordance with the limits which follow from the equal treatment principle and Regulations No 17 and No 1/2003, the factors and the detailed figures which it will take into account in order to implement a policy which ensures compliance with the prohibitions laid down by Article 81 EC.

100    It is undeniable that, as a factor for assessing the gravity of the infringement, the turnover of an undertaking or of a market is necessarily vague and imperfect. It does not make a distinction either between sectors with a high added value and those with a low added value, or between undertakings which are profitable and those which are less so. However, despite its approximate nature, turnover is currently considered, by the legislature, the Commission and the Court, as an adequate criterion, in the context of competition law, for assessing the size and economic power of the undertakings concerned (see, in particular, Musique Diffusion française and Others v Commission, cited in paragraph 82 above, paragraph 121; Article 15(2) of Regulation No 17; recital 10 and Articles 14 and 15 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1)).

101    Having regard to all of the above, the Court finds that the Commission was right to take the copper price into account for the purposes of determining the size of the sector concerned.

3.     The third plea, alleging an erroneous assessment of the importance of the KME group in the copper plumbing tube market

 Arguments of the parties

102    The applicants submit that the fact that the Commission relied on their combined market shares had the effect of considerably exaggerating their importance in the EEA copper plumbing tube market compared with other operators. First of all, competition existed within the group between KME Germany, KME France and KME Italy, which maintained separate sales networks in the various domestic markets until 1999. Second, the applicants’ market position in a number of European countries, such as Spain and the United Kingdom, was extremely modest and, third, if considered individually, KME Germany, KME France and KME Italy held market shares which were not higher than those of the other producers.

103    Consequently, as regards the gravity of the infringement at issue, KME Germany, KME France and KME Italy should have been regarded as three separate local producers in Germany, France and Italy, rather than as one large European manufacturer.

104    The Commission contends that the plea should be dismissed.

 Findings of the Court

105    In essence, the applicants are, again, challenging the differential treatment which the Commission applied in recitals 693 and 696 of the contested decision.

106    In that context, it must be noted, as stated in paragraphs 79 and 80 above, that the market share of each of the undertakings concerned in a market forming the subject-matter of a cartel constitutes an objective factor which gives a fair measure of the responsibility of each undertaking as regards the potential harmfulness of that cartel for the normal operation of competition. Individual capacity to do harm to the normal operation of competition in the relevant market is reflected principally in the proportion of demand which the economic entity in question controls on that market, and does not vary in accordance with any intra-group competition that may exist within that entity.

107    In this instance, the Commission found – and the applicants do not contest – that the relevant market is the copper plumbing tube market in the EEA (see paragraph 16 above).

108    The present plea must, therefore, be dismissed, since the applicants’ starting amount was based on the market share controlled jointly by KME Germany, KME France and KME Italy as parts of the same economic entity.

4.     The fourth plea, alleging an erroneous increase in the starting amount of the fine by reason of the duration of the cartel

 Arguments of the parties

109    The applicants submit, in essence, that, by increasing the starting amount of the fine imposed on them by 10% per year of participation in the cartel, the Commission infringed the Guidelines and the principles of equal treatment and of proportionality in so far as it failed to take account of the variable intensity of the infringement at issue during the period of that infringement.

110    The Commission contends that the plea should be dismissed.

 Findings of the Court

111    It should be noted that an increase in the starting amount of the fine by reference to the duration of the infringement is not limited to a situation in which there is a direct relation between the duration and serious harm caused to the objectives referred to in the competition rules (see, to that effect, Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 278 and the case-law cited).

112    It is, moreover, clear from the Guidelines that the Commission has not established any overlap or interdependence between assessment of the gravity and that of the duration of the infringement.

113    On the contrary, first, it is clear from the general system of the Guidelines that they prescribe assessment of the gravity of the infringement as such for the purposes of fixing a starting amount for the fine. Second, the gravity of the infringement is analysed in relation to the characteristics of the undertaking concerned, notably its size and its position in the relevant market, which may give rise to a weighting of the starting amount, the allocation of the undertakings into categories and the fixing of a specific starting amount. Third, the duration of the infringement is taken into account for fixing the basic amount, and, fourth, the Guidelines require account to be taken of aggravating and attenuating circumstances allowing the amount of the fine to be adjusted, notably by reference to the active or passive role of the undertakings concerned in the implementation of the infringement.

114    It follows that the mere fact that the Commission reserved for itself the possibility of increasing the fine per year of infringement, going in the case of long-lasting infringements up to 10% of the amount adopted for the gravity of the infringement, does not in any way oblige it to fix that uplift by reference to the intensity of the activities of the cartel or its effects, or of the gravity of the infringement. It is for the Commission to choose, in the context of its discretion (see paragraph 54 above), the uplift which it intends to apply in respect of the duration of the infringement.

115    In the present case, it is apparent from the contested decision that the Commission increased the starting amounts of the fines by 10% per full year of infringement and by 5% for any additional period of six months or more but less than a year. In so doing, the Commission did not depart from the rules which it imposed upon itself in the Guidelines.

116    Moreover, the Court considers that the increase for duration which the Commission applied to the starting amount of the fine imposed on the applicants (see paragraph 37 above) is not manifestly disproportionate in this instance.

117    It follows from all of these considerations that the plea relating to the increase for duration in the starting amount of the fines imposed on the applicants must be dismissed as unfounded.

5.     The fifth plea, alleging a failure to take account of certain attenuating circumstances

 Arguments of the parties

118    The applicants make three claims, arguing that the Commission infringed Section 3 of the Guidelines by refusing to take account of certain attenuating circumstances, namely those arising from the limited implementation of the cartel, from the economic crisis existing in the plumbing tube industry, and from the applicants’ effective cooperation, outside the scope of the 1996 Leniency Notice, in the establishment by the Commission of the full duration of the infringement at issue.

119    In the first place, the applicants submit that, although they did not systematically refrain from implementing the collusive agreements, their implementation of those agreements was limited, which should constitute an attenuating circumstance.

120    In the second place, the applicants maintain that the Commission was wrong to decline to treat the difficult economic situation in the plumbing tube industry as an attenuating circumstance. It thereby infringed the principle of equal treatment and considerably exceeded its discretionary powers, since it applied stricter criteria in this case than those applied in comparable situations. In that regard, the applicants refer to earlier decisions of the Commission in which the difficult economic conditions prevailing in the industries concerned warranted reductions of 30% and 10% in the basic amounts of fines.

121    In the third place, the applicants submit that the Commission failed, contrary to the sixth indent of Section 3 of the Guidelines and to the ‘principle of fairness’ and the principle of equal treatment, adequately to take account in the contested decision of their contribution to the establishment of the full duration of the infringement. According to the applicants, a company which provides the Commission with decisive information or which supplements the evidence already held in relation to certain periods of an infringement should not be fined for those periods.

122    The applicants note that, in the contested decision (recitals 758 and 759), the Commission granted the Outokumpu group a reduction of the fine equal to a lump sum of EUR 40.17 million for its cooperation outside the scope of the 1996 Leniency Notice, taking the view that, without that cooperation, it would not have been possible to establish the duration and continuity of the cartel from September 1989 until July 1997. The applicants acknowledge that Outokumpu was the first company to disclose certain evidence to the Commission to establish the duration and continuity of the infringement from September 1989 until 1997. Nevertheless, they complain that the Commission failed to take account, in calculating the fine imposed on them, of the fact that they provided it with conclusive evidence strengthening the Commission’s case in relation to the period in question.

123    The applicants challenge the Commission’s interpretation whereby the application of Section 3 of the Guidelines is reserved to the first undertaking to reveal the duration of the infringement, which would mean that there could, in that respect, be only one beneficiary of a reduction of the basic amount. To reward cooperation on the basis of a ranking in time, irrespective of the quality and scope of the information and documents provided by the cooperating undertaking, would be contrary to the Commission’s purpose in that area, which is to ensure that cartels are detected and prohibited by means of full access to documents which have a strong evidential value and to decisive items of information.

124    The Commission contends that all the claims put forward in connection with this plea should be dismissed.

 Findings of the Court

125    As a preliminary observation, it should be noted that the Commission must, in principle, comply with the terms of its own Guidelines when determining the amount of fines (see paragraph 51 above). However, the Guidelines do not state that the Commission must always take account separately of each of the attenuating circumstances listed in Section 3 of the Guidelines and it is not obliged to grant an additional reduction on such grounds automatically; the appropriateness of any reduction of the fine in respect of attenuating circumstances must be examined comprehensively on the basis of all the relevant circumstances.

126    The adoption of the Guidelines has not rendered irrelevant the previous case-law under which the Commission enjoys a discretion as to whether or not to take account of certain matters when setting the amount of the fines it intends imposing, by reference in particular to the circumstances of the case. Thus, in the absence of any binding indication in the Guidelines regarding the attenuating circumstances that may be taken into account, it must be concluded that the Commission has retained a degree of latitude in making an overall assessment of the extent to which a reduction of fines may be made in respect of attenuating circumstances.

127    Concerning the applicants’ first complaint, this cannot succeed because the case-law clearly shows that, in order to benefit from the second indent of Section 3 of the Guidelines, the offenders must show that they adopted competitive conduct or, at the very least, that they clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation and did not give the appearance of complying with the agreement, thereby encouraging other undertakings to implement the cartel in question (Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 292, and Case T‑26/02 Daiichi Pharmaceutical v Commission [2006] ECR II‑713, paragraph 113).

128    In this case, the applicants do not claim to have clearly and substantially opposed the implementation of the cartel to the point of disrupting its very operation. Therefore, the first complaint is unfounded.

129    As for the second complaint, the case-law shows that the Commission is not required to treat the poor financial health of the sector in question as an attenuating circumstance. The fact that in previous cases the Commission took account of the economic situation in the sector as an attenuating circumstance does not mean that it must necessarily continue to follow that practice. Indeed, as a general rule, cartels come into being when a sector is experiencing difficulties (see Tokai Carbon and Others v Commission, cited in paragraph 80 above, paragraph 345 and the case-law cited). Therefore, the second complaint must be dismissed.

130    Concerning the third complaint, it should be noted that, pursuant to the 1996 Leniency Notice, neither the Outokumpu group nor the applicants could benefit from a reduction higher than 50% of the final amount of the fines imposed upon them, since they did not denounce the infringement to the Commission before the latter carried out checks giving it sufficient reason to initiate the infringement proceedings which led to the contested decision.

131    It is also undisputed that it was by a memorandum of the Outokumpu group dated 30 May 2001 that the Commission was informed, for the first time, of the total duration of the cartel. On the strength of information obtained from its inspections and from information previously provided by Mueller, the Commission was able to prove only the existence of an infringement from July 1997 to March 2001. Nevertheless, the applicants maintain that it was thanks to the information which they communicated to the Commission in October 2002 that the latter was definitively able to prove the existence of the cartel for the period before July 1997.

132    It must be noted that, in establishing the additional duration of the cartel, the Commission was in a position to increase the starting amount of the fine imposed on the Outokumpu group by 110% (uplift corresponding to a period of 11 years and 5 months) instead of 35% (uplift corresponding to a period of 3 years and 6 months), pursuant to Section 1 B of the Guidelines. Therefore, the Outokumpu group, which was the first undertaking to supply the Commission with the information on the additional duration of the infringement at issue, ran the risk of seeing the starting amount of its fine increased by 75 additional percentage points (see recital 759 of the contested decision).

133    That is a paradox inherent in the 1996 Leniency Notice, in the sense that an undertaking falling under Section D of that notice which supplies new information to the Commission runs the risk of being fined more severely than in a case where it does not send that information to the Commission. The sixth indent of Section 3 of the Guidelines, according to which ‘effective cooperation by the undertaking in the proceedings, outside the scope of [the 1996 Leniency Notice]’ may constitute an attenuating circumstance, allows a remedy for that paradox.

134    In this case, by applying, without mentioning it, the sixth indent of Section 3 of the Guidelines, the Commission, de facto, granted immunity to the Outokumpu group as regards the additional duration of the cartel, of which it was unaware before receiving its memorandum of 30 May 2001.

135    It is, therefore, necessary to verify whether the Commission was required, either pursuant to the sixth indent of Section 3 of the Guidelines, or in accordance with the principle of equal treatment, also to grant a reduction to the applicants for the information which they supplied to the Commission, more than 16 months after the Outokumpu group, concerning the period from September 1989 to July 1997.

136    In that regard, it should be noted at the outset that the Commission has a discretion as regards the application of attenuating circumstances (Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraph 307).

137    Moreover, it is inherent in the logic of immunity from fines that only one of the cartel members can have the benefit, given that the effect being sought is to create a climate of uncertainty within cartels by encouraging their denunciation to the Commission. That uncertainty results precisely from the fact that the cartel participants know that only one of them can benefit from immunity from being fined by denouncing the other participants in the infringement, thereby exposing them to the risk that they face more severe fines.

138    In a situation such as that in this case, in which the Commission knows that a cartel exists but does not have certain essential information capable of establishing the total duration of that infringement, it is particularly desirable to have recourse to such a mechanism, particularly in order to prevent the offenders from coming to an agreement to hide that information.

139    Such a situation is distinct from that in which the Commission is already aware of evidence, but is seeking to complement it. In that latter case, the granting of a fine reduction to the offenders rather than immunity from a fine to a single undertaking, is justified by the fact that the aim is no longer to reveal a fact likely to lead to an increase in the fine imposed, but to assemble as much evidence as possible in order to reinforce the Commission’s ability to establish the facts in question.

140    As regards the alleged unequal treatment between the Outokumpu group and the applicants, it is sufficient to note that they were not in a comparable position, given that the former supplied to the Commission, more than a year before the applicants, the information relating to the additional duration of the cartel.

141    Having regard to the above, the third complaint must be dismissed.

142    The present plea must therefore be dismissed in its entirety.

6.     The sixth plea, alleging an insufficient reduction of the fine pursuant to the 1996 Leniency Notice

 Arguments of the parties

143    First, the applicants compare their cooperation and the 35% reduction which they were granted with the treatment enjoyed by third parties in earlier cases. They argue in that respect that they have suffered unfavourable treatment.

144    Second, the applicants take the view that, in the light of their contribution to the conduct of the investigation, they should have benefited from a more substantial reduction pursuant to Section D of the 1996 Leniency Notice. In that respect, they argue that their cooperation was entirely voluntary and, moreover, that, although partly confirming information already obtained by the Commission, their cooperation was decisive in establishing both the scope and gravity of the infringement and its duration, particularly with regard to the period from 1992 to 1994 and the year 1996.

145    Third, the applicants claim that the Commission infringed the equal treatment principle by granting them a 35% reduction in the amount of the fine pursuant to Section D of the 1996 Leniency Notice, and granting a 50% fine reduction pursuant to the same section to the Outokumpu group. The Commission also infringed that principle by granting the Outokumpu group a reduction of EUR 40.17 million on account of attenuating circumstances, whereas the applicants obtained a reduction of only EUR 7.93 million.

146    Fourth, the Commission infringed the equal treatment principle by granting the applicants and the Wieland group the same rate of reduction of 35%, although the applicants cooperated with the Commission to a greater extent than Wieland. The applicants maintain, in particular, that the information they supplied to the Commission was considerably more valuable than the evidence provided by Wieland, since it covered the entire duration of the cartel, whereas the evidence provided by Wieland only covered a more limited period. Furthermore, the Commission did not provide a statement of reasons in the contested decision to justify such discrimination.

147    The Commission contends that the present plea should be dismissed. It maintains, inter alia, that the factor which reduced the added value of the applicants’ contribution was the fact that it had already received substantial and decisive evidence of the cartel, in particular from the Outokumpu group, long before the applicants’ cooperation.

 Findings of the Court

148    The case-law shows that the mere fact that the Commission has in its previous decisions granted a certain rate of reduction for specific conduct does not imply that it is required to grant the same proportionate reduction when assessing similar conduct in a subsequent administrative procedure (see Case T‑31/99 ABB Asea Brown Boveri v Commission [2002] ECR II‑1881, paragraph 239 and the case-law cited). The applicants cannot therefore plead in aid reductions in the amounts of fines granted in other cases.

149    As regards the nature of the applicants’ cooperation, suffice it to note that the 1996 Leniency Notice relates only to voluntary cooperation. Consequently, the voluntary nature of cooperation does not, in itself, justify a further reduction beyond the reduction appropriate to the usefulness of the information supplied.

150    Regarding the other complaints, it should be noted that, in assessing the cooperation provided by members of a cartel, only an obvious error of assessment by the Commission is capable of being censured, since the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings (Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 88). None the less, in making that assessment, the Commission cannot ignore the equal treatment principle.

151    In that context, the Court finds that, in the contested decision, the Commission acknowledged that the applicants produced new evidence and confirmed evidence in its possession relating to the existence and duration of the infringement at issue. The Commission took account of the fact that the applicants explained the content and duration of the national arrangements. It also took account of the fact that, unlike the Wieland group, the applicants gave a description of the cooperation within the cartel which also extended to the early years of the infringement, that is to say the period from 1988 to 1993, although they claimed that there had been an interruption from 1990 to the end of 1992 and from mid-1994 to mid-1997. The Commission also maintained that the fact that the applicants did not start to cooperate until some time after the Outokumpu group and 18 months after the Commission carried out its investigations had the effect that, at the time of the applicants’ cooperation, the Commission already had substantial and conclusive evidence of the existence and duration of the cartel (recitals 783 to 790 of the contested decision).

152    As regards the gravity of the infringement, the applicants did not contest that the information which they supplied to the Commission largely confirmed information which the latter had already had for over a year. It follows from this that the contested decision cannot be criticised for the view taken by the Commission that the applicants’ cooperation was of limited usefulness, since the case-law shows that the Commission is justified in attributing limited value to cooperation which merely corroborates evidence obtained at an earlier stage of an inquiry (see, to that effect, Mannesmannröhren-Werke v Commission, cited in paragraph 136 above, paragraph 301, and Case T-38/02 Groupe Danone v Commission, cited in paragraph 83 above, paragraph 455).

153    Nor, with regard to the duration of the cartel, can the Commission be blamed for having concluded that the applicants’ cooperation did not provide any added value in respect of the periods from 1990 to 1992 and from mid-1994 to mid-1997, since it is clear from the documents before the Court that the applicants had stated to the Commission that the cartel had been suspended during those periods. Furthermore, it is apparent from the documents before the Court and from recitals 286 to 294 of the contested decision that the applicants’ confirmation that a meeting was organised in May 1996 was of limited or no value for the purposes of establishing the continuity of the infringement at issue.

154    As regards the argument that the applicants suffered discriminatory treatment in comparison with the Outokumpu group, it is sufficient to note that the applicants and the Outokumpu group were not in a comparable situation, the latter having collaborated with the Commission more than a year before the applicants, at an earlier stage of the inquiry.

155    Moreover, the difference between the fine reductions granted to the Outokumpu group and to the applicants on account of attenuating circumstances is due to the fact that the cooperation of the Outokumpu group enabled the Commission to establish that the cartel had existed for an additional period of more than seven years, whereas the applicants’ cooperation enabled the Commission to establish the acute gravity of the infringement by demonstrating the existence of the second branch of the cartel, namely the WICU and Cuprotherm arrangements (recitals 758 to 761 of the contested decision).

156    In view of the fact that only the KME group and Wieland were involved in the WICU and Cuprotherm arrangements (recital 149 of the contested decision) and that turnover in relation to plastic-coated copper plumbing tubes was much less significant than turnover in relation to plain copper plumbing tubes (recital 23 of the contested decision), the Commission cannot be criticised for having taken the view that the applicants’ cooperation in relation to plastic-coated copper plumbing tubes warranted a reduction in the amount of the fine of only EUR 7.93 million in respect of attenuating circumstances.

157    As regards the applicants’ assertion that they cooperated with the Commission to a greater extent than Wieland regarding the establishment of the duration of the cartel, it is sufficient to note that, in recital 797 of the contested decision, the Commission took account of the fact that Wieland had not adduced any evidence in respect of the period before 1993. However, it noted that Wieland had been the first to provide a list of meetings for the period from 1996 to 2001 and stated that, in respect of the year 1996 in particular, Wieland had disclosed a number of meetings, thereby helping to reconstruct the activity of the cartel during the alleged ‘quiet period’. This information complemented information provided by the Outokumpu group (recital 797 of the contested decision).

158    Given that the applicants had stated that the cartel had been suspended on two occasions, namely between 1990 and 1992 and from 1994 to 1997, it cannot reasonably be claimed that the Commission discriminated against the applicants by comparison with Wieland as regards their respective contributions to the establishment of the duration of the cartel. Similarly, it cannot reasonably be claimed that the contested decision does not show why the applicants failed to obtain a more substantial reduction of their fine than that which was granted to Wieland.

159    In view of the foregoing, the present plea must be dismissed.

7.     The seventh plea, alleging a failure to take account of the applicants’ precarious financial situation

 Arguments of the parties

160    In essence, the applicants submit that the Commission made a manifest error of assessment in refusing to reduce the amount of the fines pursuant to Section 5(b) of the Guidelines, according to which account should be taken of the ‘real ability [of the undertakings] to pay in a specific social context’. In that respect, the applicants submit that, during the administrative procedure, they demonstrated to the requisite legal standard that the two conditions laid down by Section 5(b) of the Guidelines were satisfied.

161    They also submit that the Commission should have taken into account the fine which was imposed on them in Case COMP/E‑1/38.240 (Industrial tubes).

162    In addition, the applicants refer to three decisions of the Commission, namely Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/36.490 – Graphite electrodes) (OJ 2002 L 100, p. 1; the ‘Graphite I’ case), Decision 2006/460/EC of 17 December 2002 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.667 – Specialty Graphite) (OJ 2006 L 180, p. 20; the ‘Graphite II’ case), and Decision 2004/420/EC of 3 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case C.38.359 – Electrical and mechanical carbon and graphite products) (OJ 2004 L 125, p. 45; the ‘Graphite III’ case). The Commission infringed the principle of equal treatment by discriminating, without any objective justification, between the applicants and SGL Carbon AG. The latter, which was in a situation comparable to that of the applicants, obtained a reduction of the fines in the ‘Graphite II’ and ‘Graphite III’ cases on account of its difficult financial situation and because it had recently been penalised by the Commission.

163    The Commission contends that this plea should be dismissed.

 Findings of the Court

164    The complaint of discrimination between the applicants and SGL Carbon and the references to the ‘Graphite I’, ‘Graphite II’ and ‘Graphite III’ decisions must be rejected at the outset, since the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters (Michelin v Commission, cited in paragraph 111 above, paragraph 292). The fact that the Commission has found in previous decisions that it was appropriate to take account of the financial difficulties of a given undertaking does not mean that it is obliged to do so in subsequent decisions as well (see Tokai Carbon v Commission, cited in paragraph 80 above, paragraph 370 and the case-law cited).

165    As regards the complaint that Section 5(b) of the Guidelines has been misapplied, it must be pointed out that, according to settled case-law, the Commission is not required when determining the fine to take account of an undertaking’s financial losses since recognition of such an obligation would have the effect of conferring an unfair competitive advantage on the undertakings least well adapted to the conditions of the market (Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 105; see Case T‑62/02 Union Pigments v Commission [2005] ECR II‑5057, paragraph 175 and the case-law cited).

166    That case-law is not called into question by Section 5(b) of the Guidelines, which states that an undertaking’s real ability to pay must be taken into consideration. That ability applies only in a ‘specific social context’ consisting of the consequences which payment of the fine would have, in particular, by leading to an increase in unemployment or deterioration in the economic sectors upstream and downstream of the undertaking concerned (see Union Pigments v Commission, cited in paragraph 165 above, paragraph 176 and the case-law cited, and Case T‑64/02 Heubach v Commission [2005] ECR II‑5137, paragraph 162).

167    Furthermore, the fact that a measure adopted by a Community authority brings about the insolvency or liquidation of a given undertaking is not, as such, prohibited. Although the liquidation of an undertaking in its existing legal form may adversely affect the financial interests of the owners, investors or shareholders, it does not mean that the personal, tangible and intangible elements represented by the undertaking would also lose their value (see Union Pigments v Commission, cited in paragraph 165 above, paragraph 177 and the case-law cited, and Heubach v Commission, cited in paragraph 166 above, paragraph 163).

168    It is in the light of those considerations that the Court must ascertain whether there was a ‘specific social context’ within the meaning of Section 5(b) of the Guidelines that would justify a reduction of the fine imposed on the applicants.

169    In the present case, the applicants claimed during the administrative procedure that the whole or a large proportion of their workforce – approximately 2 000 employees in Italy, 1 800 in France, 3 500 in Germany and 200 in Spain – could become unemployed as a result of the high level of the fine. In their application, the applicants point out that their factories are located in economically depressed areas or in areas in which the applicants represent a basic source of employment.

170    It must be observed that these matters do not demonstrate to the requisite legal standard that a ‘specific social context’ existed. The applicants merely refer to possible redundancies without really establishing a link of cause and effect between the imposition of a fine and those redundancies. Furthermore, the applicants do not provide any evidence to substantiate their claims to represent a basic source of employment in areas that are in economic difficulty.

171    The existence of a specific social context within the meaning of Section 5(b) of the Guidelines has not, therefore, been established.

172    Finally, it must be pointed out that it is clear from the case-law that, once it has been established that the infringements are separate, the Commission is entitled to impose on the undertakings concerned separate fines for each infringement, each within the limits imposed by the regulation applicable (judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraphs 117 and 118).

173    It follows that the present plea is unfounded.

8.     The counterclaim

174    In its defence, the Commission repeatedly asks the Court to increase the fines imposed on the applicants. The applicants reproach the Commission for having invited the Court to increase the amount of their fine. They submit in that regard that the Commission’s claim is part of a ‘vexatious strategy’ aimed at preventing them from fully exercising their right of independent judicial review.

 The counterclaim based on the fact that the applicants dispute the size of the relevant market

 Arguments of the parties

175    The Commission takes the view that, given that the applicants did not clearly state in their leniency statements or in their reply to the statement of objections that they considered the cartel to have been limited to the conversion margin, part of the fine reductions agreed by the Commission in respect of the cooperation covered by the 1996 Leniency Notice and the cooperation outside the scope of that notice should be withdrawn. The Commission argues that if, in the context of their cooperation, the applicants had declared that the cartel was limited to the conversion margin, they would probably have been granted a lesser reduction in the amount of the fines.

176    Moreover, the Commission states that, in their application, the applicants emphasise that sales of WICU and Cuprotherm tubes accounted for only a small fraction of total copper plumbing tube sales. According to the Commission, that statement might suggest that the reduction granted to the applicants for cooperation outside the 1996 Leniency Notice was too generous.

177    The applicants contend that this claim should be dismissed.

 Findings of the Court

178    The applicants’ reply to the statement of objections shows that they had already taken the view during the administrative procedure that the discussions within the cartel related only to the conversion margin. It is on that basis that the applicants stated, both during the administrative procedure and before this Court, that, when determining market turnover, the Commission should have deducted the value corresponding to the metal price.

179    With regard to the reduction of the fine granted to the applicants for cooperation outside the 1996 Leniency Notice, it must be observed that the Commission does not put forward any evidence demonstrating that the applicants stated during the administrative procedure that sales of WICU and Cuprotherm tubes accounted for a significant proportion of total copper plumbing tube sales.

180    It follows from this that the counterclaim based on the fact that the applicants dispute the size of the relevant market is unfounded.

 The counterclaim based on the dispute concerning the applicants’ importance in the relevant market

 Arguments of the parties

181    In connection with the third plea in law, the Commission invites the Court to review whether, in fixing the basic amount of the fine imposed on the applicants, the Commission gave them inappropriately favourable treatment as compared with other addressees of the contested decision and, if it finds that to be the case, to increase the fine.

182    This claim should be considered in the event that the Court accepts the applicants’ argument that they should have been regarded as three separate local producers rather than as one large European manufacturer. The Commission refers in that regard to recitals 692 to 694 and 696 and 697 of the contested decision and recalls that it was by taking the intra-group competition between the applicants into account that it divided the starting amount of the fine imposed on the applicants on the basis of the length of the period for which they had formed a single economic entity. That process resulted in a smaller basic amount of the fine being set for the KME group than would have been the case if the Commission had treated the subsidiaries as separate economic entities.

183    The applicants contend that this claim should be dismissed.

 Findings of the Court

184    Given that the Commission made this claim in the event that the third plea in law is upheld, the claim has become devoid of purpose as a result of the Court’s dismissal of that plea (see paragraphs 102 to 108 above). There is, therefore, no need to rule on the counterclaim based on the dispute concerning the applicants’ importance in the relevant market.

 The counterclaim based on the dispute concerning the value of the applicants’ contribution

 Arguments of the parties

185    With regard to the plea to the effect that the applicants’ cooperation pursuant to the 1996 Leniency Notice was not sufficiently rewarded, the Commission invites the Court to review whether the 35% reduction awarded to the applicants was too large by reference to the real added value of their contribution or by reference to the reductions granted to the Outokumpu group and the Wieland group and, if appropriate, to determine a lower percentage reduction of the fine imposed on the applicants.

186    The applicants contend that this claim should be dismissed.

 Findings of the Court

187    It must be noted that the Commission did not refer to anything specific in the documents before the Court or develop an argument in support of its claim. It follows that, in respect of the present application, the defence does not satisfy the requirements laid down under Article 46(1)(b) of the Rules of Procedure. Therefore, the counterclaim based on the dispute concerning the value of the applicants’ contribution must be dismissed as inadmissible.

 The counterclaim based on the potentially favourable treatment of the applicants in comparison with Chalkor and the IMI group

 Arguments of the parties

188    The Commission observes that the IMI group and Chalkor submitted in their respective applications in Cases T‑18/05 and T‑21/05 that, in determining the amount of the fines, the Commission failed to take into consideration the fact that they had not been involved in the SANCO arrangements and the WICU and Cuprotherm arrangements and that they had therefore committed a less serious infringement than that committed by the applicants, Wieland and the KME group. The submissions of the IMI group and Chalkor raise the issue of alleged discrimination between the participants of the cartel in relation to what has been deemed to be a single infringement.

189    The Commission maintains that, if the Court were to accept the submissions of the IMI group and of Chalkor on that point, it should, in the exercise of its unlimited jurisdiction, raise the amount of the fines imposed on the Boliden group, the applicants and Wieland, rather than reduce the fines imposed on the IMI group and Chalkor.

190    The applicants contend that this claim should be dismissed.

 Findings of the Court

191    It must be noted that, in its judgments of today’s date in Case T‑18/05 IMI and Others v Commission [2010] ECR II‑0000 and Case T‑21/05 Chalkor v Commission [2010] ECR II‑0000, the Court held that the IMI group and Chalkor committed a less serious infringement than that committed by the Boliden group, the KME group and Wieland, and that the Commission erred in failing to take that aspect into consideration when calculating the amounts of the fines.

192    The Court, exercising its unlimited jurisdiction, also ruled that the starting amount of the fines set by the Commission was appropriate to the gravity represented by the three branches of the cartel as a whole, and that it was necessary to reduce the starting amounts of the fines imposed on the IMI group and on Chalkor in order to take account of the fact that the Commission did not hold them liable with regard to the SANCO arrangements (IMI and Others v Commission, cited in paragraph 191 above, paragraphs 166, 167 and 189, and Chalkor v Commission, cited in paragraph 191 above, paragraphs 104, 105 and 185).

193    It follows that the Commission’s claim must be dismissed.

 Costs

194    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, pursuant to the first subparagraph of Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads or where the circumstances are exceptional.

195    In the present case, the applicant’s application has been unsuccessful, and the Commission has not succeeded in its counterclaim. Since, by that counterclaim, increases in the fines imposed on the applicants were sought on a number of grounds, the applicants should bear their own costs and pay 50% of the costs incurred by the Commission.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Dismisses the European Commission’s counterclaim;

3.      Orders KME Germany AG, KME France SAS and KME Italy Spa to bear their own costs and to pay 50% of the costs incurred by the Commission;

4.      Orders the Commission to bear 50% of its own costs.

Martins Ribeiro Papasavvas Wahl

Delivered in open court in Luxembourg on 19 May 2010.

[Signatures]

Table of contents

Background

1.  Administrative procedure

2.  The contested decision

Relevant products and markets

Components of the infringement at issue

Duration and continuous nature of the infringement at issue

Determination of the amount of the fines

Starting amount of the fines

–  Gravity

–  Differential treatment

Basic amount of the fines

Aggravating and attenuating circumstances

Application of the 1996 Leniency Notice

Final amount of the fines

Procedure and forms of order sought

Law

1.  The first plea, alleging a failure adequately to take account of the actual impact of the cartel on the market

Arguments of the parties

Findings of the Court

2.  The second plea, alleging an erroneous assessment of the size of the sector affected by the cartel

Arguments of the parties

Findings of the Court

3.  The third plea, alleging an erroneous assessment of the importance of the KME group in the copper plumbing tube market

Arguments of the parties

Findings of the Court

4.  The fourth plea, alleging an erroneous increase in the starting amount of the fine by reason of the duration of the cartel

Arguments of the parties

Findings of the Court

5.  The fifth plea, alleging a failure to take account of certain attenuating circumstances

Arguments of the parties

Findings of the Court

6.  The sixth plea, alleging an insufficient reduction of the fine pursuant to the 1996 Leniency Notice

Arguments of the parties

Findings of the Court

7.  The seventh plea, alleging a failure to take account of the applicants’ precarious financial situation

Arguments of the parties

Findings of the Court

8.  The counterclaim

The counterclaim based on the fact that the applicants dispute the size of the relevant market

Arguments of the parties

Findings of the Court

The counterclaim based on the dispute concerning the applicants’ importance in the relevant market

Arguments of the parties

Findings of the Court

The counterclaim based on the dispute concerning the value of the applicants’ contribution

Arguments of the parties

Findings of the Court

The counterclaim based on the potentially favourable treatment of the applicants in comparison with Chalkor and the IMI group

Arguments of the parties

Findings of the Court

Costs

* Language of the case: English.