Notice for the OJ
Action brought on 21 January 2005 by Outokumpu OYJ and Outokumpu Copper Products OY against the Commission of the European Communities
(Case T-20/05)
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 21 January 2005 by Outokumpu OYJ, established in Espoo (Finland) and Outokumpu Copper Products OY, established in Espoo (Finland), represented by J. Ratliff, Barrister and F. Distefano and J. Luostarinen, lawyers.
The applicants claim that the Court should:
- annul Article 2 of the Commission's Decision of 3 September 2004 (Case COMP/E-1/38.069 - Copper Plumbing Tubes) insofar as it relates to the amount of the fine imposed on the applicants;
- reduce the fine imposed on the applicants in the said decision under the Court's jurisdiction;
- order the Commission to pay the costs of the proceedings including those of the applicants.
Pleas in law and main arguments
In the contested decision the Commission found that the applicants, among other undertakings, infringed Article 81 (1) EC by participating in a complex of agreements and concerted practices consisting of price fixing and market sharing in the copper plumbing tubes sector.
In support of its application the applicants claim first of all that the Commission erred in law when it increased the fine imposed on the applicants by 50% for recidivism, based on the fact that the applicants had already been found to have committed a similar infringement in the case of stainless steel. In this context the applicants claim that the Commission violated Article 23 of Regulation 1/20031 as well its own 1998 Fining Guidelines, violated the general principles of proportionality and equal treatment and committed a manifest error of assessment.
The applicants further claim that the Commission erred both in law and in its assessment of the facts when it increased the fine imposed on the applicants by 50% for deterrence. In this context the applicants submit that the Commission assessed such deterrent effects incorrectly and contrary to Article 23 of Council Regulation 1/2003, its own 1998 Fining Guidelines as well as the general principles of fining, punishment and proportionality, given that the applicants only became larger than the other companies involved in the infringement in question through acquisitions at the very end or even after the infringement. In the same context the applicants submit that the Commission erred by considering only turnover instead of the full circumstances of the applicants.
Finally, the applicants claim that the Commission manifestly erred in law by taking into account, for fining purposes, not only the producers "conversion margin" for processing copper metal into plumbing tubes, but also the underlying copper metal turnover, which was not part of any unlawful co-operation. According to the applicants, this error has resulted in a disproportionately high fine.
____________1 - Council Regulation (EC) No 1/200 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L1, 4/1/200 p. 1