Judgment of the General Court (Eighth Chamber) of 19 May 2010 – KME Germany and Others v Commission

(Case T-25/05)

Competition – Agreements, decisions and concerted practices – Copper plumbing tube industry – Decision finding an infringement of Article 81 EC – Fines – Actual impact on the market – Size of the relevant market – Duration of the infringement – Ability to pay – Cooperation

1. Competition – Fines – Guidelines on the method of setting fines – Calculation method taking various elements of flexibility into account (Art. 229 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03) (see paras 51-55)

2. Procedure – Time-limit for producing evidence (Rules of Procedure of the General Court, Arts 48(1) and 66(2)) (see paras 73, 76)

3. Competition – Fines – Amount – Determination – Criteria – Possibility of differentiating between the undertakings involved in a single infringement by reference to their market shares in the products in question (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1A) (see paras 79-80, 106)

4. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Actual impact on the market taken into account (Council Regulations No 17, Art. 15, and No 1/2003, Art. 23; Commission Communication 98/C 9/03, Section 1A) (see paras 81-82, 85-86, 89)

5. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Infringements of long duration – Increase of 10% of the starting amount per year (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1B) (see paras 111-112, 114)

6. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 3) (see paras 125-126)

7. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communications 96/C 207/04, Title D, and 98/C 9/03, para. 3, sixth indent) (see paras 133-134)

8. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation with the Commission (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 96/C 207/04) (see paras 137-140)

9. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Conditions (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 96/C 207/04) (see paras 150, 152)

10. Competition – Fines – Amount – Determination – Criteria – Obligation to take account of the financial situation of the undertaking concerned – None – Undertaking’s real ability to pay in a specific social context – To be taken into consideration – Setting the fine at an amount which brings about the insolvency or liquidation of the undertaking concerned as a consequence of the fine – Not prohibited in principle (Council Regulations No 17, Art. 15, and No 1/2003, Art. 23; Commission Communication 98/C 9/03, Section 5b) (see paras 165-167)

Re:

APPLICATION, first, for reduction of the fines imposed on the applicants under Article 2(g), (h) and (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) and, second, by way of counterclaim by the Commission, for those fines to be increased.

Operative part

The Court:

1. Dismisses the action;

2. Dismisses the European Commission’s counterclaim;

3. Orders KME Germany AG, KME France SAS and KME Italy Spa to bear their own costs and to pay 50% of the costs incurred by the Commission;

4. Orders the Commission to bear 50% of its own costs.