Notice for the OJ
Action brought on 1 April 2004 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities
(Case T-127/04)
Language of the case: English
An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 April 2004 by KM Europa Metal AG, Osnabruck (Germany), Tréfimétaux S.A., Courbevoie Cedex (France), and Europa Metalli S.p.A., Florence (Italy), represented by M. Siragusa, A. Winckler, G. Cesare Rizza, T. Graf and M. Piergiovanni, lawyers.
The applicants claim that the Court should:
- substantially reduce the fine imposed on the applicants by the decision of the Commission of the European Communities adopted on 16 December 2003 in Case COMP/E-l/38.240
- order the Commission to pay the Applicants' legal fees and expenses as well as the costs incurred by the Applicants in providing a bank guarantee in lieu of payment of KME's Fine pending judgment
Pleas in law and main arguments:
By the contested decision the Commission found that the applicants, among others, infringed Articles 81 EC and 53(1) EEA by participating in a complex of agreements and concerted practices which affected the EEA market for industrial copper tubes supplied in level wound coils. On these grounds, the Commission imposed a fine of 18.990.000 Euros on the applicants, jointly and severally.
The applicants do not contest the Decision's findings with respect to their infringement of the EC and EEA competition rules, but contend that the Commission committed a number of factual and legal errors in calculating the amount of the fine. Firstly, they submit that in establishing the basic amount of the fine and in its calculation of the duration element, the Commission violated the principles of proportionality and equal treatment by not taking the statistically insignificant market impact of the agreements in question and the variations in the cartel's activities into account.
The applicants further claim that in the context of its assessment of the gravity of the infringement, the Commission grossly overstated the economic impact of the agreements in question, by taking the size of the market for the semi-finished products (copper industrial tubes) into account rather than the market for conversion services.
The applicants also contend that the Commission wrongly failed to take several attenuating circumstances into account, namely: the limited implementation of the agreements in question by the applicants, their immediate and voluntary termination of the infringement; the structural crisis of the industrial tube industry; and the applicants' cooperation with the Commission. They claim that the 30% fine reduction they were granted was based on erroneous factual premises, and was inconsistent with the Commission's practice and the case law. They further submit that the Commission unlawfully discriminated between them and another company, by applying certain attenuating circumstance only to the latter and by according a much more lenient treatment to it without any objective reason.
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