----

Action brought on 21 January 2005 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities

(Case T-25/05)

(2005/C 82/70)

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 KM Europa Metal AG, established in Osnabruck (Germany), Tréfimétaux S.A., established in Courbevoie Cedex (France) and Europa Metalli S.p.A., established in Florence (Italy), represented by R. Elderkin, Barrister and M. Siragusa, A. Winckler, G. Cesare Rizza, T. Graf and M. Piergiovanni, lawyers.

The applicants claim that the Court should:

Pleas in law and main arguments

The applicants contest the fine imposed on them by the Commission Decision of 3 September 2004 relating to a proceeding pursuant to Article 81(1) EC in Case Comp/E-1/38-069 finding three separate infringements in the copper plumbing tube sector.

By their first plea, the applicants submit that the Commission, in establishing the basic amount of their fines, failed to assess the actual market impact of the infringement, in contrast with the principles of proportionality and equal treatment. The impact of the cartel on customers and final consumers was very limited due to the frequent deviation and continued competition by producers, the absence of any monitoring and sanctioning mechanism, and the strong purchasing power of customers.

By their second plea, the applicants claim that the Commission's assessment of the gravity of the infringement was vitiated by an overstatement of the infringement's economic impact. According to the applicants, the price of the raw material, i.e. copper, should not have been included in the calculation of the relevant market value because the infringement concerned only the added value. The applicants claim also that tube producers not only do not have any degree of control over the cost of the metal, but also are bound to source copper in the strict observance of the purchasing instructions that they receive from their customers.

By their third plea, the applicants submit that the Commission grossly overstated the importance of the applicants in the copper plumbing tube market, compared to other players, and thus set the starting amount of the fine too high. In particular, the Commission ignored that, during a significant period of time, the applicants acted as competitors in the market.

By their fourth plea, the applicants submit that the Commission's calculation of the duration element of the starting amount was contrary to the principles of proportionality and equal treatment. In particular, the Commission, when determining the increase of the fine on account of duration, should not have taken into account the year during which the European meetings were interrupted and the years during which the arrangements were particularly loose and ineffective.

By their fifth plea, the applicants contend that the Commission failed to take into account several attenuating circumstances, namely the non-implementation of the arrangements and the crisis in the copper plumbing tube industry. Moreover, the applicants claim that the decision violated the principle of equal treatment in that it unlawfully discriminated between KME and Outokumpu by applying to the latter company a greater fine reduction than that granted to KME on account of cooperation outside the 1996 Leniency Notice.

By their sixth plea, the applicants submit that the reduction they were granted under the 1996 Leniency Notice was inadequate. The Commission based its conclusion in this matter on erroneous factual premises, departed from its own practice and the case law, and violated the principle of equal treatment.

By their seventh plea, the applicants submit that the Commission should have taken into account the applicants' precarious financial situation and resulting inability to pay a high fine, in particular as a result of the onerous penalty already imposed on it in the parallel Industrial Tubes case (1).

----

(1)  Case COMP/E-1/38.240 Industrial Tubes

----