CELEX: 62010CJ0389
Appeal
Competition
Agreements, decisions and concerted practices
Market for copper plumbing tubes
Fines
Size of the market, duration of the infringement and cooperation capable of being taken into consideration
Effective judicial remedy

By their appeal, KME Germany AG, formerly KM Europa Metal AG (‘KME Germany’), KME France SAS, formerly Tréfimétaux SA (‘KME
France’), and KME Italy SpA, formerly Europa Metalli SpA (‘KME Italy’) (collectively ‘the KME group’) seek to have set aside
the judgment delivered by the General Court of the European Union on 19 May 2010 in Case T‑25/05
KME Germany and Others
v
Commission
(‘the judgment under appeal’) by which the General Court dismissed their application for a reduction of the fines which were
imposed on them under Article 2(g) to (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) (‘the decision
at issue’).

Legal context
Article 15(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the
Treaty (OJ, English Special Edition 1959-1962, p. 87) provided:
‘The Commission may by decision impose on undertakings or associations of undertakings fines of from 1 000 to 1 000 000 units
of account, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the
undertakings participating in the infringement where, either intentionally or negligently:
(a)      they infringe Article [81](1) [EC] or Article [82 EC]; or
(b)      they commit a breach of any obligation imposed pursuant to Article 8(1).
In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
Regulation No 17 was repealed and replaced by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation
of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), applicable as from 1 May 2004.
Article 23(2) and (3) of Regulation No 1/2003 is worded as follows:
‘2.       The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or
negligently:
(a)       they infringe Article 81 or Article 82 of the Treaty; …
...
For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its
total turnover in the preceding business year.
...
3.       In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
Article 31 of Regulation No 1/2003 is worded as follows:
‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic
penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’
The Commission notice entitled ‘Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation
No 17 and Article 65(5) of the ECSC Treaty’ (OJ 1998 C 9, p. 3) (‘the Guidelines’), applicable at the time the decision at
issue was adopted, states, in its preamble:
‘The principles outlined … should ensure the transparency and impartiality of the Commission’s decisions, in the eyes of the
undertakings and of the Court of Justice alike, while upholding the discretion which the Commission is granted under the relevant
legislation to set fines within the limit of 10% of overall turnover. This discretion must, however, follow a coherent and
non-discriminatory policy which is consistent with the objectives pursued in penalising infringements of the competition rules.
The new method of determining the amount of a fine will adhere to the following rules, which start from a basic amount that
will be increased to take account of aggravating circumstances or reduced to take account of attenuating circumstances.’
According to Section 1 of the Guidelines, ‘[that] basic amount will be determined according to the gravity and duration of
the infringement, which are the only criteria referred to in Article 15(2) of Regulation No 17’.
With regard to gravity, Section 1 A of the Guidelines provides that in assessing the criterion of the gravity of the infringement,
account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant
geographic market. Infringements are put into one of three categories: minor infringements, serious infringements and very
serious infringements.
According to the Guidelines, very serious infringements are, in particular, horizontal restrictions such as price cartels
and market-sharing quotas. The basic amount of the likely fine is ‘above [EUR] 20 million’. The Guidelines refer to the need
to vary basic amounts according to the nature of the infringement committed; the effective economic capacity of offenders
to cause significant damage to other operators, in particular consumers; the deterrent effect of the fine; and the undertakings’
legal and economic knowledge and infrastructures which enable them to recognise that their conduct constitutes an infringement.
It is also stated that where infringements involve several undertakings, it might be necessary to take account of the specific
weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there
is considerable disparity between the sizes of the undertakings committing infringements of the same type.
As regards the duration of infringements, the Guidelines make a distinction between infringements of short duration (in general,
less than one year), infringements of medium duration (in general, one to five years) and infringements of long duration (in
general, more than five years). With regard to the latter, provision is made for an increase in the amount of the fine of
up to 10% per year in the amount determined for gravity. The Guidelines also strengthen the position regarding increases in
fines for long-term infringements with a view to imposing effective sanctions on restrictions which have had a harmful impact
on consumers over a long period and increasing the incentive to denounce the infringement or to cooperate with the Commission.
Under Section 2 of the Guidelines the basic amount may be increased where there are aggravating circumstances such as, inter
alia, repeated infringements of the same type by the same undertaking or undertakings. According to Section 3 of the Guidelines,
that basic amount may be reduced where there are attenuating circumstances such as the exclusively passive or ‘follow-my-leader’
role of an undertaking in the infringement, non-implementation in practice of the agreements or the effective cooperation
by the undertaking in the proceedings, outside the scope of the Commission notice on the non-imposition or reduction of fines
in cartel cases (OJ 1996 C 207, p. 4) (‘the Leniency Notice’).
The Guidelines were replaced as from 1 September 2006 by the Guidelines on the method of setting fines imposed pursuant to
Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).
The Leniency Notice sets out the conditions under which undertakings cooperating with the Commission during an investigation
which it carries out into a cartel may be exempted from fines, or may be granted reductions in the fine which would otherwise
have been imposed upon them. According to Section B of that notice, an undertaking which informs the Commission about a cartel
before the Commission has undertaken an investigation, provided that it does not have sufficient information to establish
the existence of the alleged cartel, or which is the first to adduce decisive evidence of the cartel’s existence, will benefit
from a reduction of at least 75% of the fine or from total exemption from the fine. According to Section D of the notice,
an undertaking will benefit from a reduction of 10% to 50% of the fine if, inter alia, before the statement of objections
is sent, it has provided the Commission with information, documents or other evidence which materially contribute to establishing
the existence of the infringement.
The Leniency Notice was replaced as from 14 February 2002 by the Commission notice on immunity from fines and reduction of
fines in cartel cases (OJ 2002 C 45, p. 3). The Commission nevertheless applied it in the present case, since that is the
notice which the undertakings took into consideration when cooperating with the Commission.

Background to the dispute
Together with other undertakings producing semi-finished products in copper and copper alloys, the appellants took part in
a set of agreements and practices designed to agree prices, share markets and exchange confidential information on the market
for copper plumbing tubes.
Following inspections and investigations, on 3 September 2004 the Commission adopted the decision at issue, a summary of which
was published in the
Official Journal of the European Union
of 13 July 2006 (OJ 2006 L 192, p. 21).
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. 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 European Economic Area (EEA). The Commission
also took account of the fact that the copper plumbing tubes market was a very important industrial sector. 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. The Commission concluded from this that the undertakings concerned had committed a very serious infringement.
In the decision at issue 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 KME group was regarded as the main player in the relevant market
and was placed in the first category.
Market shares were determined on the basis of the turnover achieved by each offending undertaking from sales of copper plumbing
tubes in the combined market for plain and plastic-coated copper plumbing tubes. The Commission therefore set the starting
amount of the fines at EUR 70 million for the KME group.
In view of the fact that, until June 1995, KME France and KME Italy jointly formed an undertaking separate from KME Germany,
the starting amount of the fines set at a total of EUR 70 million for the KME group was distributed 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.
It is apparent from the decision at issue 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. It was therefore concluded
that:
–        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%; and
–        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%.
As is apparent from recital 719 of the decision at issue, after calculating the increase on account of the duration of participation
in the infringement, the basic amounts of the fines imposed on the appellants are as follows:
–        the KME group: EUR 54.25 million;
–        KME Germany: EUR 29.75 million; and
–        KME France and KME Italy (jointly and severally): EUR 27.13 million.
In respect of attenuating circumstances, the Commission took into account, as is apparent from recitals 758 and 759 of the
decision at issue, the fact that the KME group and the group consisting of Outokumpu Oyj and Outokumpu Copper Products Oy
(collectively ‘the Outokumpu group’) had provided it with information when each cooperated to an extent not covered by the
Leniency Notice. The Commission therefore 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 that period having been made possible by the information which it had provided to
the Commission. As regards the KME group, it is apparent from recitals 760 and 761 of the decision at issue that the basic
amount of the fine 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.
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 decision at issue as follows:
–        the KME group: EUR 32.75 million;
–        KME Germany: EUR 17.96 million; and
–        KME France and KME Italy (jointly and severally): EUR 16.37 million.

The proceedings in the General Court and the judgment under appeal
The appellants put forward seven pleas in law, all concerning the determination of the amount of the fine imposed upon them.
Those pleas alleged, respectively: failure to take sufficient account of the actual impact of the cartel on the market for
the purpose of calculating the starting amount of the fine; incorrect assessment of the size of the sector affected by the
cartel; incorrect assessment 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; failure to take account of certain attenuating
circumstances; erroneous application of the Leniency Notice; and failure to take account of the precarious financial situation
of the KME group.
The General Court rejected each of those pleas and dismissed the action in its entirety.
It also rejected the Commission’s counterclaim for the fines to be increased.

Forms of order sought by the parties and the procedure before the Court of Justice
The KME group asks the Court to:
–        set aside the judgment under appeal;
–        to the extent that it is possible, based on the facts before the Court of Justice, annul in part the decision at issue and
reduce the amount of the fine imposed on the KME group;
–        order the Commission to pay the costs of these proceedings and of the proceedings before the General Court; or
–        in the alternative, set aside the judgment under appeal and refer the case back to the General Court.
The Commission contends that the Court should:
–        dismiss the appeal; and
–        order the KME group to pay the costs.
The Court of Justice decided in its general meeting that the present case would be determined without an Opinion and pleaded
on the same day as Case C‑386/10 P
Chalkor
v
Commission
, which concerns the same cartel. However, since the appellants had put forward various grounds of appeal similar to those
which they had raised in the context of Case C‑272/09 P
KME Germany and Others
v
Commission
, pleaded previously, in an action also brought against the Commission concerning an earlier decision imposing fines in respect
of a parallel cartel on the market for copper industrial tubes, the parties were invited to take into account at the hearing
the Opinion delivered in that case by Advocate General Sharpston on 10 February 2011.

The appeal
The KME group puts forward six grounds of appeal alleging, respectively, various errors of law relating to the impact of the
infringement on the market, the account taken of turnover and of the duration of the infringement, infringement of the Guidelines
and of the principles of fairness and equal treatment in the failure to take account of certain attenuating circumstances,
infringement of the Guidelines and an incorrect statement of reasons and, lastly, infringement of the right to an effective
judicial review.

First ground of appeal: various errors of law relating to the impact of the infringement on the market
Arguments of the parties
The appellants state that their first ground of appeal relates to paragraphs 81 to 92 of the judgment under appeal. Those
paragraphs are preceded by a summary of the parties’ arguments and the General Court’s view on the admissibility of certain
arguments and of two new economic reports produced by the appellants to demonstrate the lack of real impact of the infringement
on the market; the General Court concluded in paragraph 77 of the judgment under appeal that those arguments and reports were
admissible.
Paragraphs 81 to 92 of the judgment under appeal are worded as follows:
‘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 ([Case T‑241/01]
Scandinavian Airlines System
v
Commission
[[2005] ECR II‑2917], 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 ...
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
, … paragraph 159;
Roquette Frères
v
Commission
, … paragraph 78; Case T‑59/02
Archer Daniels Midland
v
Commission
, … paragraph 165; Case T‑329/01
Archer Daniels Midland
v
Commission
, … 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 [decision at issue] 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 [decision at issue].’
The appellants submit that the General Court gave an illogical and inadequate statement of reasons for the judgment under
appeal and erred in law in holding that the Commission was permitted, in determining the starting amount of the fine imposed
on them, having regard to the gravity of the infringement, to take account of the impact of the cartel on the relevant market
without being required to demonstrate that the arrangements actually had such an impact and, in any event, by inferring such
an impact from mere indicators. Moreover, by holding that the Commission had demonstrated to the requisite legal standard
that the arrangements had an impact on the market, the General Court manifestly distorted the facts and economic evidence
which the KME group put before it.
The Commission maintains first of all that the first ground of appeal is ineffective. That ground of appeal ignored the fact
that, in paragraph 92 of the judgment under appeal, the General Court exercised its unlimited jurisdiction to confirm the
starting amount of the fine imposed on the KME group by reference to the gravity of the infringement as set out in recital
693 of the decision at issue.
The Commission then submits that the General Court was entitled to find that the findings as to market impact of the infringement
were not decisive and that, in any event, the General Court applied the correct legal standards when considering that impact.
Lastly, the Commission states that the first ground of appeal is inadmissible in so far as it relates to the appraisal of
the facts and evidence and that adequate reasons were given for the General Court’s findings, in particular in paragraph 90
of the judgment under appeal, in which it stated that only the effects of the infringement as a whole were to be taken into
account, which explains why it disregarded the econometric reports produced by the appellants and which relate to them.
Findings of the Court
The appellants do not contest the General Court’s findings concerning the classification of the infringement as a ‘very serious
infringement’ within the meaning of the Guidelines; they do however contest those concerning the actual impact of the cartel
on the market as a factor taken into account in determining the basic amount of the fine.
According to Section 1 A of the Guidelines, in assessing the criterion of the gravity of the infringement, account is to be
taken of its actual impact on the market only where this can be measured.
Determination of the actual impact of a cartel on the market requires a comparison of the market situation resulting from
the cartel with that which would have resulted from free competition. Such a comparison necessarily involves recourse to assumptions,
given the multiplicity of variables capable of having an impact on the market.
In recital 629 of the decision at issue, the Commission emphasised the impossibility of determining what the evolution of
prices during the period of the infringement would have been in the absence of the cartel. Having refuted the appellants’
arguments, it provided evidence from which it concluded, in recital 673 of that decision, that the anti-competitive scheme
had overall had an impact on the market, although it was not possible to quantify it precisely.
It thus follows from the decision at issue that, in this instance, the Commission did not consider it possible for the purposes
of calculating the fine to take that optional element – the actual impact of the infringement on the market – into account
since it could not be measured. That conclusion was not challenged in the judgment under appeal.
In paragraphs 86 and 89 of the judgment under appeal, the General Court recalled the case-law relating to the standard of
proof of the actual impact of a cartel on the market. In paragraphs 87 and 90 of its judgment it checked, moreover, that the
Commission had demonstrated to the requisite legal standard the actual impact of the cartel on the relevant market. However,
it did so for the sake of completeness, as indicated in paragraph 84 of that judgment, and after correctly observing, in paragraph
82, that the actual impact of cartels on the market is not a decisive factor for determining the level of fines. It follows
from this that the appellants’ plea countering that part of the General Court’s reasoning is ineffective.
In any event, the General Court’s reasoning in relation to the evidence of the impact of the infringement on the market deals
with the appellants’ argument, summarised in paragraphs 58 to 62 of the judgment under appeal, that such evidence was not
put forward by the Commission in the decision at issue. The General Court found that there was evidence to prove the existence
of such impact, but did not call in question the impossibility of measuring it precisely.
Thus the General Court was not contradicting itself when, on the one hand, it recalled the principle that the actual impact
of the infringement on the market is not a decisive factor for determining the level of fines and, on the other, it reviewed
the evidence of that impact.
Consequently, as is apparent from the wording of their first ground of appeal, the appellants incorrectly infer from the General
Court’s review that the actual impact of the infringement on the market must have been taken into account for the purpose
of calculating the starting amount of the fine that was imposed on them. That argument is based on a false premiss.
With regard to the claim that the General Court distorted the economic evidence adduced by the appellants, it is not alleged
that the General Court construed those economic reports in a manner manifestly at odds with their wording (see, to that effect,
Case C‑260/09 P
Activision Blizzard Germany
v
Commission
[2011] ECR I‑0000, paragraph 57), rather that the General Court erred in its assessment of the content of those reports.
In any event, the appellants do not indicate precisely which parts of those reports the General Court misconstrued as to their
real meaning. Accordingly that argument is inadmissible.
It follows from the foregoing considerations that the first ground of appeal must be rejected.

Second ground of appeal: various errors of law relating to the account taken of turnover
Arguments of the parties
The second ground of appeal relates, in essence, to paragraphs 97 to 101 of the judgment under appeal, which are worded as
follows:
‘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
, … 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.’
In the appellants’ submission, the General Court infringed European Union law and provided an inadequate statement of reasons
for the judgment under appeal by approving the Commission’s reference – in order to assess the size of the market affected
by the infringement for the purpose of establishing the gravity element of the fine imposed on them – to a market value that
wrongly included the revenue from sales made in an upstream market separate from the ‘cartel’ market, despite the fact that
the cartel members were not vertically integrated in that upstream market.
They explain that the copper transformation industry has specific features. In particular, it is the customer who decides
when the metal will be purchased on the London Metal Exchange and hence its price. Even though that price invoiced by the
tube manufacturer to the customer includes the processing margin, to take it into consideration when calculating the undertaking’s
turnover would be to ignore the economic reality of the market, which is characterised in particular by the important part
represented by the raw material in the cost of the product and the very significant fluctuations in the price of that raw
material. Those facts were established by the General Court.
According to the appellants, the General Court infringed the principle of proportionality by failing to hold that the Commission
should have taken account of the case-law of the General Court and the Commission’s previous practice in taking decisions,
whereby, when the Commission calculates the starting amount of the fine and/or applies the 10% turnover cap, it is required
to take into consideration the specific features of the relevant market.
They also claim that, by failing to distinguish the appellants from other undertakings whose turnover is not so greatly influenced
by the price of the raw material, the General Court infringed the principle of non-discrimination, which requires that different
situations be treated differently.
Lastly, the appellants challenge the case-law on which the General Court relied, which is based on the Commission’s discretion.
They take the view that the General Court failed to examine whether the criteria used by the Commission to establish the gravity
of the cartel were pertinent and adequate.
The Commission submits that the General Court was entitled to state, in paragraph 97 of the judgment under appeal that 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.
The Commission also contends that, in so far as the appellants invite the Court of Justice to make a different appraisal from
that of the General Court of whether the copper plumbing tubes industry is unique, the ground of appeal is inadmissible.
According to the Commission, the General Court carried out an objective appraisal, taking account of turnover rather than
the disputed data which would have entailed the deduction of costs that cartel members did not ‘control’. In its submission,
this conclusion is consistent with the principle of proportionality.
Finally, the Commission disputes the appellants’ claims concerning the way in which prices are set in the relevant market.
It would be false to distinguish a separate upstream market from the market affected by the cartel. There is only one market
– the market for copper tubes – and copper represents merely one cost.
Findings of the Court
It has consistently been held that, in assessing the gravity of an infringement, regard must be had to a large number of factors,
the nature and importance of which vary according to the type of infringement in question and the particular circumstances
of the case. Those factors may, depending on the circumstances, include the volume and value of the goods in respect of which
the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the
undertaking was able to exert on the market (see, to that effect,
Musique Diffusion française and Others
v
Commission
, paragraph 120).
While the Court of Justice has concluded from this that it is permissible, for the determination of the fine, to take into
account both the undertaking’s overall turnover, which is an indication of the size of the undertaking and its economic strength,
and that part of the turnover which derives from the goods which are the subject of the infringement and which therefore is
capable of giving an indication of the scale of the infringement, it has nevertheless recognised that the overall turnover
of an undertaking gives only an approximate and imperfect indication of the size of that undertaking (
Musique Diffusion française and Others
v
Commission
, paragraph 121; Case C‑185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I‑8417, paragraph 139; 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 243; Case C‑397/03 P
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
[2006] ECR I‑4429, paragraph 100; and Case C‑510/06 P
Archer Daniels Midland
v
Commission
[2009] ECR I‑1843, paragraph 74).
It has also pointed out on a number of occasions that it is important not to confer on one or the other of those figures an
importance which is disproportionate in relation to the other factors to be assessed in relation to the gravity of the infringement
(
Musique Diffusion française and Others
v
Commission
, paragraph 121;
Dansk Rørindustri and Others
v
Commission
, paragraph 243; Case C‑397/03 P
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
, paragraph 100; and Case C‑510/06 P
Archer Daniels Midland
v
Commission
, paragraph 74).
The General Court did not, therefore, err in law or, in particular, infringe either the principle of proportionality or that
of non-discrimination when it observed in paragraph 100 of the judgment under appeal that turnover, although vague and imperfect,
is an adequate criterion for assessing the size and economic power of the undertakings concerned.
Nor, moreover, did the General Court err in law when it held, in paragraph 97 of the judgment under appeal, that there is
no valid reason to require that the turnover of a relevant market be calculated excluding certain production costs. As the
Court of Justice ruled in its judgment of today’s date in proceedings also brought by the appellants against the Commission
(Case C‑272/09 P), to take gross turnover into account in some cases but not in others would require a threshold to be established,
in the form of a ratio between net and gross turnover, which would be difficult to apply and would give scope for endless
and insoluble disputes, including allegations of unequal treatment.
As regards the allegation that the General Court failed to examine whether the criteria used by the Commission to establish
the gravity of the cartel were pertinent and adequate, it should be borne in mind that, in an action on a decision relating
to a competition matter, it is for the applicant to formulate his pleas in law and not for the General Court to review of
its own motion the weighting of the factors taken into account by the Commission in order to determine the amount of the fine.
In the judgment under appeal, the General Court carried out its review in the manner required of it. It responded to the plea
in law put forward by the appellants and did not err in law in concluding, in paragraph 101 of the judgment under appeal,
that the Commission was right to take the copper price into account for the purposes of determining the size of the market
concerned.
The second ground of appeal is therefore unfounded.

Third ground of appeal: various errors of law relating to the account taken of the duration of the infringement
Arguments of the parties
The appellants state that their third ground of appeal relates to paragraphs 111 to 117 of the judgment under appeal. They
claim that the General Court infringed European Union law and provided an obscure, illogical and inadequate statement of reasons
for that judgment by upholding the part of the decision at issue in which the Commission misapplied the Guidelines, and infringed
the principles of proportionality and equal treatment by imposing the maximum percentage increase on the starting amount of
the fine imposed on them on account of the duration of the infringement.
According to the appellants, it is apparent from Section 1 B of the Guidelines that the purpose of a fine increase on account
of duration of an infringement is to ‘[impose] effective sanctions on restrictions which have had a harmful impact on consumers
over a long period’. The requirement of a link between the infringement’s duration and its harmful effect is also clear from
the case-law. The General Court, however, failed to enquire whether the Commission, in its assessment of the infringement’s
gravity, really did give proper weight to the circumstance that the cartel’s intensity and effectiveness varied over time.
The General Court was therefore wrong in holding, in paragraph 116 of the judgment under appeal, that the 125% increase in
the starting amount of the fine is not manifestly disproportionate.
Furthermore, the General Court’s failure to recognise that the KME group was in a very similar situation to that of the applicant
undertakings in Case T‑18/05
IMI and Others
v
Commission
[2010] ECR I‑0000, and its refusal to determine afresh the starting amount of the fine, contrary to the action it took in
that judgment, constituted the unlawful differential treatment of the KME group and those undertakings.
The Commission contends that the appellants have failed to rebut the findings of the General Court contained in paragraphs
111 to 115 of the judgment under appeal. It adds that Article 23(3) of Regulation No 1/2003 itself draws a distinction between
the gravity of the infringement and its duration, and that any consideration of equal treatment in relation to the duration
of the infringement should therefore entail examination of that duration and not factors relating to the gravity of the infringement,
such as the intensity of the cartel or its effects.
As regards the applicant undertakings in
IMI and Others
v
Commission
, the Commission points out that the General Court annulled the infringement decision against those undertakings in relation
to a period of 16 months. Those undertakings were therefore in a different position from that of the appellants.
Lastly, the Commission states that, for the purposes of taking account of the harm caused by a cartel, the Guidelines on the
method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 provide for a 100% increase in the fine
for each year of the cartel’s duration. The 10% increase for each additional year, applied in the present case, is actually
very low and clearly not disproportionate.
Findings of the Court
By their third ground of appeal, the appellants challenge both the principle of an increase in the fine to take account of
the duration of the infringement and the result of the application of that principle in their particular case, namely the
increase in the starting amount of the fine, set at EUR 70 million, by 125% to take account of an infringement period of 12
years and 9 months, each year of participation corresponding to a 10% increase. According to the figures in recital 719 of
the decision at issue and restated in paragraph 22 of the present judgment, the basic amount for the KME group was thus increased
to EUR 111.13 million.
However, the objection to the result is based on the erroneous assumption that the rate of increase was 125%, whereas in fact
it was only 58.75% (111.13÷70 = 1.5875).
As regards the principle of an increase in the fine to take account of the duration of the infringement, it is not necessary
to establish in practical terms a direct relation between that duration and increased damage to the European Union objectives
pursued by the competition rules.
For the purpose of applying Article 81(1) EC, there is no need to take account of the concrete effects of an agreement once
it appears that it has as its object the prevention, restriction or distortion of competition (see, to that effect, Joined
Cases 56/64 and 58/64
Consten and Grundig
v
Commission
[1966] ECR 299). That applies in particular in the case, as in this instance, of obvious restrictions of competition such
as price-fixing and market-sharing. If a cartel determines the state of the market at the moment it is agreed, its lengthy
duration can make the structures of that market more rigid, reducing cartel participants’ incentive for innovation and development.
A return to free competition will be all the more difficult and protracted, the longer the cartel continues.
Even if the cartel’s intensity and effectiveness varies over time, the fact remains that that cartel continues to exist and,
therefore, to make the structures of the market all the more rigid.
Where an agreement has not been implemented at all, it must be borne in mind that Section 3 of the Guidelines provides that
non-implementation in practice of the offending agreements or practices may constitute an attenuating circumstance giving
rise to a reduction in the basic amount of the fine. It appears, however, that that has not been the case here, since the
appellants have challenged not the implementation of the cartel in so far as it relates to them, but only the failure to take
into consideration the variable intensity of that implementation and the actual and objective impact of the cartel on consumers.
Furthermore, real damage to the consumer can be difficult to quantify, given the range of variables affecting, in particular,
price-setting in relation to a manufactured product.
In any event, the duration of the infringement is mentioned by the European Union legislature as a factor to be taken into
account as such for the purpose of determining the amount of the fines.
In the light of those points, the General Court was right to reject as unfounded, in paragraph 117 of the judgment under appeal,
the plea relating to the increase in the amount of the fine for the duration of the cartel.
As regards the applicant undertakings in
IMI and Others
v
Commission
, it is clear from paragraph 96 of the judgment in that case that the General Court regarded the infringement as having been
interrupted for a period of a little more than 16 months. The situation of those undertakings was therefore entirely different
from that of the appellants, who have never claimed that there was an interruption of the infringement but have merely relied
on the variation in its intensity. It follows from this that the General Court did not infringe the principle of non-discrimination
by treating the appellants and those undertakings differently.
It follows from all of those considerations that the third ground of appeal is unfounded.

Fourth ground of appeal: infringement of the Guidelines and of the principles of fairness and equal treatment in the failure
to take account of certain attenuating circumstances
Arguments of the parties
The appellants state that their fourth ground of appeal relates to paragraphs 125 to 142 of the judgment under appeal. They
submit that the General Court infringed European Union law in rejecting the fifth plea relied on in the application and upholding
the relevant part of the decision at issue in which the Commission, in breach of the Guidelines and the principles of fairness
and equal treatment, refused to reduce their fine on account of (1) the limited implementation of the arrangements; (2) the
crisis in the copper plumbing tube industry; and (3) the fact that they cooperated to an extent not covered by the Leniency
Notice.
The appellants submit, in the first place, that the General Court erred in law in totally disregarding in the judgment under
appeal the fact that they refrained from implementing the arrangements and adopted competitive conduct. They take issue with
the test referred to in paragraph 127 of that judgment and applied by the General Court in determining whether they qualified
for attenuating circumstances, which requires them to show that they clearly and substantially infringed the obligations relating
to the implementation of the cartel to the point of disrupting its very operation. According to the appellants, such a standard
is stricter than that applied to determine the moment when participation has ceased – namely that an undertaking openly distances
itself from the unlawful collusion – which is illogical.
In the second place, they maintain that the General Court infringed the principle of non-discrimination, since it should have
treated the difficult problems which the plumbing tubes industry was experiencing as an attenuating circumstance.
In the third place, the appellants submit that the General Court infringed European Union law by upholding the part of the
decision at issue in which the Commission refused to reduce their fine on account of the fact that they cooperated to an extent
not covered by the Leniency Notice. In their view, they alone should have been granted a reduction in or partial immunity
from the fine, on the ground that they provided evidence of the duration of the infringement, unlike the Outokumpu group,
which only provided information on the total duration of the cartel.
The Commission takes the view that the General Court correctly applied the case-law that a fine can be reduced on the ground
that the cartel agreements were not implemented.
It also observes that decisions concerning other cartels cannot form the basis of a plea alleging disregard of the principle
of non-discrimination. In any event, the difficult period experienced by the sector occurred after the cartel.
Lastly, as regards cooperation, the Commission contends that, since the KME group is inviting the Court to substitute its
own appraisal for that of the General Court, the fourth ground of appeal is inadmissible.
That submission is, according to the Commission, moreover unfounded. The Commission maintains that the General Court provided
a clear and logical explanation for its appraisal of when partial immunity should be available, which responded to all the
legal arguments put forward by the KME group.
While the Outokumpu group’s fine was reduced, this was on the ground that the information which it provided enabled the Commission
to investigate and seek evidence. The appellants facilitated that task by providing evidence, but nothing more. Contrary to
what the appellants imply in their appeal, they could not have been granted partial immunity under the Commission notice on
immunity from fines and reduction of fines in cartel cases, since such immunity is granted in respect of evidence relating
to ‘facts previously unknown to the Commission’, which was not the case as regards the full duration of the cartel.
The Commission contends, lastly, that the award of partial immunity in the situation described by the appellants would run
counter to Section D of the Leniency Notice, which already provides for a reduction in the fine where an undertaking supplies
the Commission with information, documents or other evidence which contributes to establishing the existence of the infringement.
Findings of the Court
The first argument relates to paragraph 127 of the judgment under appeal, in which the General Court referred to the case-law
under which, in order to benefit from the attenuating circumstance set out in 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).
In paragraph 491 of the judgment in
Raiffeisen Zentralbank Österreich and Others
v
Commission
, in particular, the General Court clarified that case-law, observing that an undertaking which, despite colluding with its
competitors, follows a more or less independent policy in the market may simply be trying to exploit the cartel for its own
benefit. If attenuating circumstances were recognised in such circumstances, it would be too easy for undertakings to reduce
the risk of being required to pay a heavy fine, since they would be able to take advantage of an unlawful agreement and then
benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement,
whereas their attitude encouraged other undertakings to act in a way that was more harmful to competition (see also Case T‑44/00
Mannesmannröhren-Werke
v
Commission
[2004] ECR II‑2223, paragraphs 277 and 278).
Contrary to the appellants’ submission, an undertaking which ceases to participate in a cartel is not in the same position
as an undertaking which is a member of that cartel but does not implement it or ceases to do so. In the latter case, the undertaking
continues to harm competition by its participation in any discussions and by the fact, noted by the General Court, that its
participation in the cartel is likely to encourage other undertakings to act in a way that is harmful to competition.
The General Court did not therefore err in law by interpreting strictly the conditions that must be fulfilled if an undertaking
is to benefit from the attenuating circumstance referred to in the second indent of Section 3 of the Guidelines. As the General
Court noted in paragraph 128 of the judgment under appeal, the appellants did not claim to have fulfilled those conditions.
The first argument is therefore unfounded.
As regards the second argument, it is sufficient to note that, as a general rule, cartels come into being when an economic
sector is experiencing difficulties and that such difficulties cannot, in principle, constitute an attenuating circumstance.
Furthermore, difficulties in comparing the level of fines imposed on undertakings which have participated in different agreements
on different markets at times which, in some cases, are separated by long intervals may also arise from the conditions necessary
for implementing an effective competition policy (Case C‑196/99 P
Aristrain
v
Commission
[2003] ECR I‑11005, paragraph 81). The General Court did not, therefore, infringe the principle of non-discrimination by
concluding, in paragraph 129 of the judgment under appeal, that 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.
As regards the third argument, the appellants object to the judgment under appeal but do not explain, with reasons, in what
respect the General Court erred in law in the reasoning set out in paragraphs 136 to 140 of that judgment, or explain how
the production of evidence of facts already known to the Commission would justify the granting of attenuating circumstances
any more than the earlier provision of new information to the Commission. It follows that that argument is inadmissible as
it is too vague.
It follows from all of those considerations that the fourth ground of appeal is, in part, inadmissible and, in part, unfounded.

Fifth ground of appeal: infringement of the Guidelines and an incorrect statement of reasons
Arguments of the parties
The appellants state that their fifth ground of appeal relates to paragraphs 163 to 174 of the judgment under appeal. They
submit that the General Court made an error of law and provided illogical and insufficient reasons for its rejection of the
seventh plea relied on in the application and for upholding the Commission’s refusal to reduce their fine on account of their
inability to pay, especially following the onerous penalty already imposed on them in the copper industrial tubes case. According
to them, the General Court did not apply the appropriate test, since the undertaking concerned is simply required to show
that the imposition of a heavy penalty would cause it very serious economic and financial harm. The appellants also maintain
that the General Court misinterpreted the second limb of the test laid down in Section 5(b) of the Guidelines, thereby concluding
that no ‘specific social context’ within the meaning of Section 5 justified a reduction of the fine. Finally, they argue that
the judgment under appeal failed to remedy the unlawful discrimination committed by the Commission against them as compared
with SGL Carbon AG in Case C‑308/04 P
SGL Carbon
v
Commission
[2006] ECR I‑5977 and Case C‑328/05 P
SGL Carbon
v
Commission
[2007] ECR I‑3921.
The Commission contends, first of all, that the appellants’ first argument is not directed against an error of law identified
in the judgment under appeal and that the General Court did not rule on the meaning of ‘inability to pay’. It also states
that the issue concerning ‘specific social context’ was not put before the General Court. In any event, the appellants’ claims
are vague and relate to that court’s appraisal of the facts and evidence, which is inadmissible in an appeal. Lastly, the
General Court was correct in rejecting the appellants’ argument alleging discrimination, because the Commission’s practice
in previous decisions does not serve as a legal framework for fines. In any event, the situation of SGL Carbon AG was different.
Findings of the Court
The General Court did not err in law in observing, in paragraph 165 of the judgment under appeal that the Commission is not
required to take account of the 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 (see
Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82
IAZ International Belgium and Others
v
Commission
[1983] ECR 3369, paragraphs 54 and 55;
Dansk Rørindustri and Others
v
Commission
, paragraph 327; Case C‑308/04 P
SGL Carbon
v
Commission
, paragraph 105; and Case C‑328/05 P
SGL Carbon
v
Commission
, paragraph 100).
Nor is the Commission required to take account of a presumed inability to pay caused by a financial penalty imposed as a result
of another infringement of competition law, since it is the undertaking that is primarily responsible for that situation which
has arisen as a result of its unlawful conduct.
Furthermore, as has been pointed out in paragraph 98 of the present judgment, difficulties in comparing the level of fines
imposed on undertakings which have participated in different agreements on different markets at times which, in some cases,
are separated by long intervals may also arise from the conditions necessary for implementing an effective competition policy.
The General Court did not therefore infringe the principle of non-discrimination by finding, in paragraph 164 of the judgment
under appeal, that the fact that, in previous cases, the Commission took account of the financial difficulties of an undertaking
does not mean that it is obliged to make the same assessment in a later case.
Lastly, the remainder of the fifth ground of appeal is in particularly general terms; the appellants merely allege that the
General Court erred in law, but do not specify precisely in what respect it did so. In any event, this Court does not have
jurisdiction to review the General Court’s findings of fact as set out in paragraphs 169 and 170 of the judgment under appeal.
It follows that the fifth ground of appeal must be rejected, in part, as inadmissible and, in part, as unfounded.

Sixth ground of appeal: infringement of the right to an effective judicial review
Arguments of the parties
The appellants submit that the General Court infringed European Union law and their fundamental right to a full and effective
judicial review by failing to examine their arguments closely and thoroughly and deferred, to an excessive and unreasonable
extent, to the Commission’s discretion. In particular, they challenge the manner in which the General Court examined the second
plea relied on in the application, relating to the size of the market, the fourth plea, relating to the duration of the infringement,
and the fifth plea, relating to attenuating circumstances. According to the appellants, the General Court’s refusal to examine
thoroughly and closely the pleas and arguments developed in their application amounts to an infringement of their fundamental
right to a full, effective and fair judicial review of the decision at issue by an impartial and independent tribunal.
The appellants explain that the doctrine of ‘margin of appreciation’ and ‘judicial deference’ should now no longer be applied,
since European Union law is now characterised by the huge fines imposed by the Commission, a development which is frequently
described as the de facto ‘criminalisation’ of European Union competition law.
Furthermore, the direct applicability of the exception provided for in Article 81(3) EC, introduced by Regulation No 1/2003
– replacing the earlier authorisation scheme – excludes, by definition, any margin of appreciation on the part of the Commission
in the application of the competition rules and thus mandates only a very limited degree of judicial deference by the Courts
when reviewing their application by the Commission in a specific case.
The appellants also submit that a justification for the proposition that the Commission enjoys a margin of appreciation should
not be sought in the Commission’s alleged superior expertise in evaluating complex factual or economic matters. The appellants
state in that regard that both the Court of Justice and the General Court have satisfactorily engaged in particularly intense
judicial scrutiny of complex cases.
Likewise, in view of the unlimited jurisdiction conferred on it under Article 261 TFEU and Article 31 of Regulation No 1/2003,
the General Court should not admit of any margin of appreciation on the part of the Commission, not only as far as the appropriate
and proportionate character of the amount of a fine is concerned, but also with regard to the working method followed by the
Commission in its calculation. In the appellants’ view, the General Court must examine how in each particular case the Commission
assessed the gravity and duration of unlawful conduct and is then entitled to substitute its own assessment for that of the
Commission by cancelling, reducing or increasing the fine.
According to the appellants, the Commission must follow a coherent and non-discriminatory policy in all cases in which it
fixes the amount of the penalty for breach of competition rules. This means that it should treat in the same manner undertakings
in equivalent situations in the context of separate infringements established by way of separate decisions. Otherwise, the
margin of discretion enjoyed by the Commission would become a purely arbitrary exercise of power, since it would be acknowledged
that the Commission can change at will its policy stance as to fines in individual cases.
The appellants also observe that the European Court of Human Rights has accepted that the enforcement of administrative law
via administrative decision‑making and fines is not as such contrary to Article 6(1) of the European Convention for the Protection
of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). It must, however, be governed by
sufficiently strong procedural guarantees, combined with an effective regime of judicial control with full jurisdiction to
review administrative decisions. The right to ‘an effective remedy before a tribunal’ has also been enshrined in Article 47
of the Charter of Fundamental Rights of the European Union (‘the Charter’).
As a preliminary point, the Commission observes that the appellants’ application for a reduction of their fine is based on
Article 230 EC, not on the unlimited jurisdiction provided for in Article 31 of Regulation No 1/2003.
As regards the response to the second, fourth and fifth pleas relied on in the application, the Commission takes the view
that, notwithstanding the references made to the discretion exercised by the Commission, the General Court carried out a thorough
and effective review of the calculation of the fine imposed on the KME group and reached its own affirmative conclusions that
those pleas were unfounded.
Lastly, according to the Commission, the KME group merely alludes to ‘criminal charges’ and to Article 6(1) of the ECHR, but
avoids any discussion of what this might imply.
Findings of the Court
The appellants challenge both the manner in which the General Court stated that it was obliged to take account of the Commission’s
broad margin of appreciation and the manner in which it actually reviewed the decision at issue. They rely in that regard
on Article 6 of the ECHR and on the Charter.
The principle of effective judicial protection is a general principle of European Union law to which expression is now given
by Article 47 of the Charter (see Case C‑279/09
DEB
[2010] ECR I‑0000, paragraphs 30 and 31; order in Case C‑457/09
Chartry
[2011] ECR I‑0000, paragraph 25; and Case C‑69/10
Samba Diouf
[2011] ECR I‑0000, paragraph 49).
The judicial review of the decisions of the institutions was arranged by the founding Treaties. In addition to the review
of legality, now provided for under Article 263 TFEU, a review with unlimited jurisdiction was envisaged in regard to the
penalties laid down by regulations.
As regards the review of legality, the Court of Justice has held that whilst, in areas giving rise to complex economic assessments,
the Commission has a margin of discretion with regard to economic matters, that does not mean that the Courts of the European
Union must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must those
Courts establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also
whether that evidence contains all the information which must be taken into account in order to assess a complex situation
and whether it is capable of substantiating the conclusions drawn from it (see Case C‑12/03 P
Commission
v
Tetra Laval
[2005] ECR I‑987, paragraph 39, and Case C‑525/04 P
Spain
v
Lenzing
[2007] ECR I‑9947, paragraphs 56 and 57).
With regard to the penalties for infringements of competition law, the second subparagraph of Article 15(2) of Regulation
No 17 provides that in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement.
The same wording appears in Article 23(3) of Regulation No 1/2003.
The Court of Justice has held that, in order to determine the amount of a fine, it is necessary to take account of the duration
of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each
of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they
were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of
that type pose to the European Community (
Musique Diffusion française and Others
v
Commission
, paragraph 129;
Dansk Rørindustri and Others
v
Commission
, paragraph 242; and Case C‑534/07 P
Prym and Prym Consumer
v
Commission
[2009] ECR I‑7415, paragraph 96).
The Court has also stated that objective factors such as the content and duration of the anti-competitive conduct, the number
of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken
into account. The analysis must also take into consideration the relative importance and market share of the undertakings
responsible and also any repeated infringements (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and
C‑219/00 P
Aalborg Portland and Others
v
Commission
[2004] ECR I‑123, paragraph 91).
This large number of factors requires that the Commission carry out a thorough examination of the circumstances of the infringement.
In the interests of transparency the Commission adopted the Guidelines, in which it indicates the basis on which it will take
account of one or other aspect of the infringement and what this will imply as regards the amount of the fine.
The Guidelines, which, the Court has held, form rules of practice from which the administration may not depart in an individual
case without giving reasons compatible with the principle of equal treatment (Case C‑397/03 P
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
, paragraph 91), merely describe the method used by the Commission to examine infringements and the criteria that the Commission
requires to be taken into account in setting the amount of a fine.
It is important to bear in mind the obligation to state reasons for acts of the European Union. That is a particularly important
obligation in the present case. It is for the Commission to state the reasons for its decision and, in particular, to explain
the weighting and assessment of the factors taken into account (see, to that effect,
Prym and Prym Consumer
v
Commission
, paragraph 87). The Courts must establish of their own motion that there is a statement of reasons.
Furthermore, the Courts must carry out the review of legality incumbent upon them on the basis of the evidence adduced by
the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s
margin of discretion – either as regards the choice of factors taken into account in the application of the criteria mentioned
in the Guidelines or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth
review of the law and of the facts.
The review of legality is supplemented by the unlimited jurisdiction which the Courts of the European Union were afforded
by Article 17 of Regulation No 17 and which is now recognised by Article 31 of Regulation No 1/2003, in accordance with Article
261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty,
to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty
payment imposed (see, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P
and C‑254/99 P
Limburgse Vinyl Maatschappij and Others
v
Commission
[2002] ECR I‑8375, paragraph 692).
It must, however, be pointed out that the exercise of unlimited jurisdiction does not amount to a review of the Court’s own
motion, and that proceedings before the Courts of the European Union are
inter partes
. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion,
such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that
decision and to adduce evidence in support of those pleas.
That requirement, which is procedural in nature, does not conflict with the rule that, in regard to infringements of the competition
rules, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to
the requisite legal standard the existence of the circumstances constituting an infringement. What the applicant is required
to do in the context of a legal challenge is to identify the impugned elements of the contested decision, to formulate grounds
of challenge in that regard and to adduce evidence – direct or circumstantial – to demonstrate that its objections are well
founded.
The review provided for by the Treaties thus involves review by the Courts of the European Union of both the law and the facts,
and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of a fine.
The review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount
of the fine, provided for under Article 31 of Regulation No 1/2003, is not therefore contrary to the requirements of the principle
of effective judicial protection in Article 47 of the Charter.
It follows from this that, in so far as it relates to the rules of judicial review in the light of the principle of effective
judicial protection, the sixth ground of appeal is unfounded.
In so far as it relates to the manner in which the General Court carried out its review of the decision at issue in connection
with the second, fourth and fifth pleas relied on in the application, the present ground of appeal is indissociable from the
second, third and fourth grounds of the appeal and has thus already been examined by the Court of Justice.
It must be noted in that regard that although the General Court repeatedly referred to the ‘discretion’, the ‘substantial
margin of discretion’ or the ‘wide discretion’ of the Commission, including in paragraphs 52 to 54, 99, 114, 136 and 150 of
the judgment under appeal, such references did not prevent the General Court from carrying out the full and unrestricted review,
in law and in fact, required of it.
It follows from all of those considerations that the sixth ground of appeal is unfounded.
Consequently, none of the grounds that the KME group has put forward in support of its appeal can be accepted, and the appeal
must therefore be dismissed.

Costs
Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 118 of those Rules,
the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the Commission has applied for the KME group to be ordered to pay the costs and the KME group has been unsuccessful,
the latter must be ordered to pay the costs of the present proceedings.
On those grounds, the Court (Second Chamber) hereby:
1.
Dismisses the appeal;
2.
Orders KME Germany AG, KME France SAS and KME Italy SpA to pay the costs.
[Signatures]
*
Language of the case: English.