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 – Size of the relevant market – Aggravating circumstance – Repeat infringement)
In Case T‑20/05,
Outokumpu Oyj, established in Espoo (Finland),
Luvata Oy, formerly Outokumpu Copper Products Oy, established in Espoo,
represented by J. Ratliff, Barrister, F. Distefano and J. Luostarinen, lawyers,
applicants,
v
European Commission, represented by É. Gippini Fournier and S. Noë, acting as Agents,
defendant,
APPLICATION for cancellation or reduction of the fine imposed on the applicants under Article 2(j) 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),
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 4 November 2008,
gives the following
Judgment
Background
1 Outokumpu Oyj, a company quoted on the stock exchange with its seat in Espoo (Finland), is the head company in a group present worldwide and engaged mainly in the production of base metals, steel, copper products and the technologies for manufacturing those products. At the material time, Outokumpu wholly owned Luvata Oy (formerly Outokumpu Copper Products Oy) (together, ‘the Outokumpu group’ or ‘the applicants’), which produces mainly copper plumbing tubes.
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 (formerly Kabelmetall AG, then KM Europa Metal AG), Outokumpu and Luvata. 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 (comprising KME Germany, KME France SAS (formerly Tréfimétaux SA) and KME Italy SpA (formerly Europa Metalli SpA)), 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 Outokumpu and Luvata, which was dismissed by the Court by its judgment of 6 May 2009 in Case T‑122/04 Outokumpu and Luvata 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 The Commission took the view that Cases COMP/E-1/38.069 (Copper plumbing tubes) and COMP/E-1/38.240 (Industrial tubes) concerned two separate infringements. It relied in that regard mainly on the fact that ‘the arrangements pertaining to plumbing tubes on the one hand and those relating to industrial tubes on the other hand involved different companies (and employees), and were organised in a different way’. The Commission also took the view that the plumbing tube industry differed from the industrial tube industry as regards end consumers, end use and technical specifications for the products (recitals 4 and 5 of the contested decision).
17 With regard to copper plumbing tubes, the Commission stated in the contested decision that this product group comprised two ‘sub-families’ of products: plain copper plumbing tubes and plastic-insulated copper plumbing tubes. It noted that ‘plain copper plumbing tubes and plastic-insulated copper plumbing tubes are not necessarily substitutable and might constitute distinct product markets when assessed under the Commission Notice on the definition of relevant market for the purposes of Community competition law’ (OJ 1997 C 372, p. 5). However, for the purposes of the contested decision, the Commission took the view that those two ‘sub-families’ of products were to be regarded as ‘one product group … because the arrangements pertaining to both sub-families of products involved essentially the same companies (and employees) and were organised in a similar way’ (recitals 13 and 459 of the contested decision).
18 In the contested decision, the Commission also stated that the relevant geographic market was the European Economic Area (EEA). It took the view that, in 2000, the value of the EEA market in plain copper plumbing tubes was approximately EUR 970.1 million, and that in plastic-coated copper plumbing tubes EUR 180.9 million. The aggregate value of those two markets was therefore assessed as EUR 1 151 million in 2000 in the EEA (recitals 17 and 23 of the contested decision).
Components of the infringement at issue
19 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).
20 The second branch of the infringement at issue, namely 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).
21 The third branch of the cartel, namely 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 19 and 20 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
22 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).
23 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
24 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).
25 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).
26 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
27 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).
28 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).
29 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).
30 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).
31 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).
32 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).
33 The Commission concluded from this that the undertakings concerned had committed a very serious infringement (recital 680 of the contested decision).
– Differential treatment
34 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 in the 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).
35 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).
36 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).
37 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 (KME Germany, KME France and KME Italy jointly and severally); 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).
38 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
39 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).
40 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
41 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).
42 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.
43 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 had been provided to the Commission (recitals 758 and 759 of the contested decision).
44 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
45 Under Section D of the 1996 Leniency Notice, the Commission granted reductions of the 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
46 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
47 By application lodged at the Registry of the Court on 21 January 2005, the applicants brought the present action.
48 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.
49 The applicants claim that the Court should:
– cancel or reduce the fine imposed under Article 2(j) of the contested decision;
– order the Commission to pay the costs.
50 The Commission contends that the Court should:
– dismiss the application;
– order the applicants to pay the costs.
Law
51 The applicants put forward three pleas in law in support of the present action, alleging, respectively, an erroneous increase, for repeat infringement, of the basic amount of the fine imposed; an erroneous 50% increase in the starting amount of the fine for deterrence purposes; and an inadequate assessment of the size of the sector affected by the infringement at issue.
52 By letter of 5 May 2008 to the Registry of the Court, the applicants stated that they were withdrawing the plea alleging an erroneous 50% increase in the starting amount of the fine for deterrence purposes.
1. The first plea, alleging an erroneous increase, for repeat infringement, in the basic amount of the fine imposed on the applicants
Arguments of the parties
53 The applicants claim that, by increasing the basic amount of the fine for repeat infringement, the Commission infringed Article 23 of Regulation No 1/2003, the Guidelines and the principle of equal treatment. They also maintain that the Commission made a manifest error of assessment regarding the relevant facts.
54 In connection with this plea, the applicants initially put forward, in essence, five complaints. First, they maintained that, in so far as the infringement at issue was not covered by the same Treaty as Decision 90/417, there could be no question of a repeat infringement. Second, they claimed that Decision 90/417 could not constitute a basis for a finding of a repeat infringement, since no fine or penalty had been imposed on them by that decision. Third, the applicants took the view that, since the earlier infringement had been committed in special circumstances, which were taken into account in Decision 90/417, that decision could not provide a basis for a finding of a repeat infringement in this instance. Fourth, the applicants claimed to have suffered discriminatory treatment compared with other undertakings against which Decision 90/417 was not held to be an aggravating factor. Fifth, the applicants alleged that, in any event, in view of the special circumstances of the case which gave rise to Decision 90/417, the 50% increase in the basic amount of the fine imposed in the present case was disproportionate.
55 By letter of 5 May 2008 to the Registry of the Court, the applicants stated that they were withdrawing the second complaint in support of this plea in law, concerning the absence of a previous pecuniary penalty.
56 The Commission contends that the present plea should be dismissed, and observes in its rejoinder that the applicants, in their reply, claim that the Commission infringed the principle nulla poena sine lege. According to the Commission, that plea did not appear in the application and is, therefore, a new plea put forward in the course of the proceedings. Consequently, it is inadmissible under Article 48(2) of the Rules of Procedure of the Court.
Findings of the Court
57 With regard to the plea of inadmissibility raised by the Commission, it should be noted that it is clear from the provisions of Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure that the application initiating proceedings must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
58 However, a plea which constitutes an amplification of a plea previously made, either expressly or by implication, in the original application and is closely linked to it must be declared admissible (Case T‑207/95 Ibarra Gil v Commission [1997] ECR-SC I‑A‑13 and II‑31, paragraph 51; see also, to that effect, Case 306/81 Verros v Parliament [1983] ECR 1755, paragraphs 9 and 10). The same applies to a complaint made in support of a plea in law (Case T‑231/99 Joynson v Commission [2002] ECR II‑2085, paragraph 156, and Case T‑345/05 Mote v Parliament [2008] ECR II‑0000, paragraph 85).
59 The Court finds this requirement to be satisfied in the present case, since, both in the application and in the reply, the applicants underline the fact that the Commission had never, prior to the contested decision, sought to establish a repeat infringement in a case covered by the EC Treaty on the basis of an earlier infringement covered by the CS Treaty.
60 Therefore, all the claims made in support of the present plea must be declared admissible.
61 As regards the question whether the plea is well founded, it should be noted that the founding treaties established a single legal order in which the Euratom Treaty constitutes, and the CS Treaty constituted until 23 July 2002, a lex specialis in derogation from the lex generalis represented by the EC Treaty (see Case T‑6/99 ESF Elbe-Stahlwerke Feralpi v Commission [2001] ECR II‑1523, paragraph 102 and the case-law cited). In addition, the case-law shows that the prohibition of cartels is laid down by two similar provisions, namely Article 81 EC and Article 65 CS, which, although emanating from two separate treaties, are inspired by identical legal concepts (see, to that effect, Case T‑141/94 Thyssen Stahl v Commission [1999] ECR II‑347, paragraphs 269, 270 and 277; Case T‑145/94 Unimétal v Commission [1999] ECR II‑585, paragraphs 248 and 252; and Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II‑3757, paragraph 181).
62 It must, therefore, be accepted that, once the Commission has established by way of a decision, in accordance with the competence which is granted to it, that an undertaking participated in a cartel, that decision may serve as the basis for assessing, in the context of a new decision, the propensity of that undertaking to infringe the rules on cartels.
63 Moreover, there is nothing in the Guidelines to indicate that the indication that the repeat infringement in question must be a repeat infringement of the same undertaking(s) in an infringement of the same type must be understood as meaning that the Commission may not take into account, in order to establish repeat infringement under Article 81 EC, infringements found under the CS Treaty. On the contrary, the heading of the Guidelines shows that they apply both to the calculation of fines imposed under Article 15(2) of Regulation No 17 and to those imposed pursuant to Article 65(5) CS.
64 As regards the argument that the special circumstances surrounding the earlier infringement prevented the Commission from finding the applicants guilty of repeat infringement, this must be rejected since the case-law shows that the concept of repeat infringement implies only a previous finding of infringement of competition law (Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraph 41).
65 In this case, it is clear from Articles 1 and 4 of Decision 90/417 that Outokumpu had been warned that, in concluding price agreements and sharing markets and customers with its competitors, it had infringed competition law and had to abstain from repetition of such conduct. Nevertheless, it is clear from Article 1 of the contested decision that the applicants subsequently participated in an almost identical infringement.
66 As regards the argument that the applicants suffered discriminatory treatment compared with other undertakings against which Decision 90/417 was not held to be an aggravating factor, it is important to emphasise that the fact that, in its earlier decision-making practice, the Commission held that certain factors did not constitute an aggravating factor for the purposes of determining the amount of the fine does not imply that it must make the same assessment in a subsequent decision (see, by analogy, Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 57).
67 It follows from the above that the Commission did not make any error in holding the applicants guilty of repeat infringement.
68 As regards the claims made against the 50% increase applied in the contested decision, it should be noted that the Commission may, in determining the amount of the increase for repeat infringement, take account of evidence tending to confirm the propensity of the undertaking concerned to ignore the competition rules, including the time which has elapsed between the infringements in question.
69 In this case, it should be noted that, on the date on which Decision 90/417 was adopted, namely 18 July 1990, the infringement forming the subject-matter of the contested decision had already commenced. Despite the finding in Decision 90/417 of an almost identical infringement of the competition rules on the part of the applicants, the latter decided to continue their participation in the new cartel. That fact as such justifies the amount of the increase determined in the contested decision.
70 It is true that the applicants refer to a series of circumstances which surrounded the infringement found in Decision 90/417 and which are set out in detail in Title X, paragraph 12 of the said decision. However, those circumstances, which indeed justified a fine not being imposed on the applicants in that decision, are necessarily proper to the latter and have no connection with the propensity of the applicants to ignore the competition rules from 18 July 1990 onwards. They cannot therefore be taken into account for the purposes of determining the amount of increase of the fine for repeat infringement.
71 As regards the argument that the applicants suffered discriminatory treatment in comparison with other undertakings in respect of which the finding of repeat infringement entailed a less severe increase than that in respect of the applicants, it should be noted that the Commission’s earlier decision-making practice does not serve as a legal framework for the fines imposed in competition matters (Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 292) and, moreover, that, in the context of Regulation No 17 and of Regulation No 1/2003, the Commission has a margin of discretion when fixing fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules (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 216) and the power at any time to adapt the level of fines to the needs of that policy (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, paragraph 169).
72 Having regard to the above, the Commission did not make any manifest error of assessment by applying to the applicants, for repeat infringement, a 50% increase in the amount of the fine imposed. Nor does the Court consider it necessary, in the exercise of its unlimited jurisdiction, to alter the amount of that increase.
2. The second plea, alleging an erroneous assessment of the size of the sector affected by the cartel
Arguments of the parties
73 By this 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. However, 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 market in question, 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.
74 The Commission contends that this plea should be dismissed. It further alleges that the position taken by the applicants in their pleadings was ambiguous as regards their participation in an infringement which related to the plumbing tubes sector as a whole and which consisted in the exchange of information, sharing of markets and customers, a ‘market leader’ arrangement and collusion on payment terms and on terms of business. Thus, the Commission invites the Court to assess the applicants’ position on the basis of those facts and, if the applicants challenge them, to exercise its unlimited jurisdiction by increasing the fine imposed on the applicants on the ground that they were granted a 50% reduction of the fine because, inter alia, they had declared that they were not challenging the truth of those facts.
Findings of the Court
75 As a preliminary point, it must be held that there is no need to rule on the Commission’s counterclaim. It must be noted in that regard that the applicants clearly stated in their reply that they did not challenge the facts alleged by the Commission.
76 The applicants expressly admit that the infringement at issue related to the plumbing tube sector as a whole. They also admit that the volume allocation, market sharing and information exchanges, ‘market leader’ system and collusion on payment and delivery terms related to the supply of plumbing tubes. They also acknowledge that, irrespective of the conversion margin, an adjustment of ‘price lines’ and rebates/discounts was made.
77 As regards the question whether this plea is well founded, it must be stated 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.
78 This Court therefore finds that the Commission was right to take account of the copper price for the purposes of determining the size of the market concerned. The present plea is thus also unfounded.
79 The action must therefore be dismissed.
Costs
80 Under Article 87(2) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the Commission’s application.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Outokumpu Oyj and Luvata Oy to pay the 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 an erroneous increase, for repeat infringement, in the basic amount of the fine imposed on the applicants
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
Costs