EN Official Journal of the European Union C 274/15

Appeal brought on 3 August 2010 by KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA against the judgment of the General Court (Eighth Chamber) delivered on 19 May 2010 in Case T-25/05: KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA v European Commission

(Case C-389/10 P)

()

2010/C 274/22

Language of the case: English

Parties

Appellants: KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA (represented by: M. Siragusa, avvocato, A. Winckler, avocat, G. Rizza, avvocato, T. Graf, Rechtsanwalt, M. Piergiovanni, avvocato, R. Elderkin, Barrister)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the judgment,

— to the extent that it is possible, based on the facts before the Court, partially annul the Decision and reduce the amount of KME's fine, and

— order the Commission to pay the costs of these proceedings and of the proceedings before the General Court (GC);

or, in the alternative, where the state of the proceedings does not so permit,

— set aside the judgment, including with respect to the GC's order to KME to pay the costs, and refer the case back to the GC.

Pleas in law and main arguments

By their first plea, the Appellants contest the GC's conclusion that the Commission did not need to demonstrate that the Arrangements had an impact on the market. Irrespective of whether it may be exempted from positively establishing the existence of market impact for the purposes of classifying the infringement as ‘very serious’, the Commission is certainly under a duty positively to establish and quantify that impact where, as it did in the Decision, it intends to rely on the cartel's actual impact in its determination of the starting amount of a company's fine on account of gravity. The GC erred in holding that the Commission demonstrated to the requisite legal standard that the Arrangements had a market impact, and in stating that the Commission was entitled to establish the existence of market impact by reference to mere indicators. This error was all the more serious since in the present case KME provided evidence, including of economic nature, showing that the infringement as a whole did not have any market impact. In so reasoning and deciding to reject the first plea of KME's Application, the GC distorted the facts and evidence put before it, infringed EU law and provided an illogical and inadequate statement of reasons.

By their second plea, the Appellants criticize the GC for approving the Commission's reference — in order to determine the size of the market affected by the infringement, for the purpose of establishing the gravity element of KME's Fine — to a market value that included the revenues of the market for the semi-finished products (copper plumbing tubes). Only the value of the ‘cartelized’ market, i.e., the market for conversion services (which only represented 30-40 % of the price of the tubes) should have been taken into account. In rejecting the second plea of KME's Application, the GC violated the EU general principles of proportionality and equal treatment, and provided an inadequate statement of reasons.

By the third plea, the Appellants criticize the GC for rejecting the fourth plea of the Application, according to which the Commission misapplied the 1998 Fining Guidelines and infringed the principles of proportionality and equal treatment by imposing the maximum percentage increase in the starting amount of KME's Fine on account of duration, despite its finding that for three years the cartel was dormant and did not have any harmful effect. In the Appellants' view, the GC infringed EU law and provided an obscure, illogical and inadequate statement of reasons for its upholding of the relevant part of the Decision.

By their fourth plea, the Appellants criticize the GC for rejecting the fifth plea of the Application and upholding the relevant parts of the Decision, in which the Commission — in violation of the Fining Guidelines and the principles of fairness and equal treatment — denied KME the benefit of a fine reduction on account of the application of several mitigating factors. The Appellants submit, in particular, that the GC: (1) applied the wrong legal standard when assessing whether KME qualified for a fine reduction on account of its limited implementation of the Arrangements, (2) erred in dismissing KME's claim that KME's Fine should have been reduced because of the crisis in the copper plumbing tube industry; and (3) failed to remedy the Commission's unlawful denial of a fine reduction on account of KME's cooperation outside the Leniency Notice in relation to the broader European arrangements, on the ground that Outokumpu was the first undertaking to provide the Commission with information on the total duration of these arrangements.

By their fifth plea, the Appellants criticize the GC for rejecting the seventh plea of the Application and upholding the Commission's refusal to grant KME a fine reduction on account of its inability to pay. The Applicants submit that the GC erred in law in interpreting the test laid down in Section S(b) of the Fining Guidelines for a fine reduction on account of inability to pay to be granted, as well as in its failure to remedy the unlawful discrimination committed by the Commission against KME compared to SGL Carbon in the Specialty Graphite and Electrical and mechanical carbon and graphite cases. The GC also provided an illogical and inadequate statement of reasons for its dismissal of KME's claims.

By their sixth plea, the Appellants claim that the GC violated EU law and the Appellants' fundamental right to full and effective judicial review by failing to assess thoroughly and closely KME's arguments and showing a biased deference to the Commission's discretion.