Case C-205/02 P: Appeal brought on 3 June 2002 by KE KELIT Kunststoffwerke Gesellschaft m.b.H against the judgment delivered on 20 March 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-17/99 between KE KELIT Kunststoffwerke Gesellschaft m.b.H and the Commission of the European Communities
Date: 2002-08-24
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), fine, heating, restrictive trade practice, type of business

24.8.2002

EN

Official Journal of the European Communities

C 202/3

The appellant claims that the Court should:

— Procedural errors:

1.

2.

3.

(OJ 1999 L 24, p. 1) or,

Set aside the judgment of the Fourth Chamber of the
Court of First Instance of the European Communities of
20 March 2002 in Case T-9/99 (application for annul-
ment of Commission Decision 1999/60/EC of 21 Octo-
ber 1998 relating to a proceeding under Article 85 of the
EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated Pipe
Cartel)
in the alternative,
reduction of the fine imposed on the applicants (appel-
lants) in Articles 2, 3 and 4 of the operative part of the
decision) and annul in its entirety Decision 1999/60/
EC of 21 October 1998 adopted by the Commission
(respondent) relating to a proceeding under Article 85 of
the EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated
Pipe Cartel) (OJ 1999 L 24, p. 1);

In the event, set aside the judgment of the Fourth
Chamber of the Court of First Instance of the European
Communities of 20 March 2002 in Case T-9/99 (appli-
cation for annulment of Commission Decision 1999/60/
EC of 21 October 1998 relating to a proceeding under
Article 85 of the EC Treaty (Case No IV/35.691/E-4: —
Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in
the alternative, reduction of the fine imposed on the
in Articles 2, 3 and 4 of the
applicants (appellants)
operative part of the decision) and refer the present case
back to the Court of First Instance for further proceedings
and a fresh judgment;

In the event, set aside the judgment of the Fourth
Chamber of the Court of First Instance of the European
Communities of 20 March 2002 in Case T-9/99 (appli-
cation for annulment of Commission Decision 1999/60/
EC of 21 October 1998 relating to a proceeding under
Article 85 of the EC Treaty (Case No IV/35.691/E-4: —
Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in the
alternative, for reduction of the fine imposed on the
applicants (appellants) in Article 2 of the operative part
of the decision) and reduce the amount of the fine(s)
imposed on the ‘Henss/Isoplus-group’ or the appellants
in Articles 3(d) and 5(d) of Commission Decision 1999/
60/EC of 21 October 1998 relating to a proceeding under
Article 85 of the EC Treaty (Case No IV/35.691/E-4: —
Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1);

4. Order the Commission of the European Communities —
respondent — to pay the costs including the costs of the
appeal proceedings.

Pleas and main arguments

— Infringement of Community law: The appellants maintain
their submissions in connection with the objection of
illegality of the guidelines on the method of setting fines
imposed pursuant to Article 15(2) of Regulation No 17,
on infringement of the right to be heard in connection
with application of the guidelines, on infringement of
Article 15(2) of Regulation No 17 and on infringement
of Article 81 EC.

— In regard to the applications for evidence to be
taken: the Court of First Instance omitted to hear
the evidence of witnesses named by the applicants
in connection with statements in certain paragraphs
of the application. In the present case — if the legal
view is taken that there were no applications in due
form for the taking of evidence, which is denied, in
the correct exercise of its discretion the Court of
First Instance was at any rate obliged of its own
motion to hear the witness evidence of the persons
named

— The grounds on which the judgment appealed
against is based contain as to certain points on
findings which conflict with the documents before
the Court.

Appeal brought on 3 June 2002 by KE KELIT Kunst-
stoffwerke Gesellschaft m.b.H against the judgment deliv-
ered on 20 March 2002 by the Fourth Chamber of the
Court of First Instance of the European Communities
in Case T-17/99 between KE KELIT Kunststoffwerke
Gesellschaft m.b.H and the Commission of the European
Communities

(Case C-205/02 P)

(2002/C 202/04)

An appeal against the judgment delivered on 20 March 2002
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-17/99 between KE KELIT
Kunststoffwerke Gesellschaft m.b.H and the Commission of
the European Communities (1) was brought before the Court
of Justice of the European Communities on 3 June 2002 by
KE KELIT Kunststoffwerke Gesellschaft m.b.H, represented by
Dr Walter Löbl, of Grassner Lenz Thewanger & Partners in
Linz, with an address for service in Luxembourg at the
Chambers of Linklaters Loesch.

The appellant claims that the Court should:

Annul the judgment of the Court of First Instance of the
European Communities of 20 March 2002,
served on
26 March 2002, in Case T-17/99 KE KELIT Kunststoffwerke
Gesellschaft m.b.H v Commission of the European Communi-
ties (application for annulment of Commission Decision 1999/
60/EC of 21 October 1998 relating to a proceeding under
Article 85 of the EC Treaty (Case No IV/35.691/E-4: — Pre-
Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in the alternative,
reduction of
in that
decision), in so far as it concerns the appellant (applicant);

the fine imposed on the applicant

in the event,

— Set aside that judgment and refer the case back to the
Court of First Instance for resumption of proceedings;

in the event,

— reduce the fine imposed on KE KELIT Kunststoffwerke

Gesellschaft m.b.H,

C 202/4

EN

Official Journal of the European Communities

24.8.2002

— but in any event order the Commission of the European
Communities to pay the costs of the proceedings at first
instance and on appeal.

Pleas and main arguments

— Infringement of substantive Community law

— Infringement of the business principle (equal treat-
ment and reliance on previous decision-making
practice): the Commission was not entitled to depart
from its previous decision-making practice and to
apply the ‘guidelines’ particularly since it promised
the appellant advantages for cooperation (infor-
mation concerning cooperation). By securing coop-
eration the Commission was bound to existing
practices in regard to the setting of fines.

— Infringement of the principle of equal treatment and
discrimination (in relation to the duration of the
infringement): Whilst, according to the intendment
and wording of the guidelines,
fines are to be
graduated in line with the duration of an infringe-
ment, the judgment appealed against admits, in the
appellant’s case, of a clearly greater than linear
increase even where the reference period of one year
has been exceeded only by three months.

— Infringement of the prohibition of retroactive effect
owing to application of the ‘guidelines’ inasmuch as,
for the purpose of determining the fine,
those
guidelines have regard to overall turnover instead of
product turnover, as before.

— Infringement of essential procedural requirements

— Infringement of the right to be heard;

European Communities in case T-23/99 between LR af 1998
A/S, formerly Løgstør Rør A/S, and the Commission of the
European Commuinities, was brought before the Court of
Justice of the European Communities on 3 June 2002 by LR af
1998 A/S, formerly Løgstør Rør A/S, established in Løgstør,
Denmark, represented by D. Waelbroeck and H. Peytz, lawyers.

The Appellant claims that the Court should:

— annul the contested judgment of

the Court of First

Instance of 20 March 2002 in Case T-23/99;

— annul the Commission’s Decision of 21 October 1998,
as modified by a decision of 6 November 1998 in Case
IV/35.691, District Heating Pipes, fining the Appellant or
at the very least substantially reduce the amount of the
fine, or in the alternative refer the case back to the Court
of First Instance for judgment;

— declare the Guidelines on the method of setting fines
pursuant to Article 15(2) of Regulation 17/62 (2) and
Article 65(5) of the ECSC Treaty, (OJ 1998 C 9/3) illegal
pursuant to Article 241 of the EC Treaty; and

— order the Commission to pay the costs.

— Infringement of the duty to provide a statement of

reasons.

Pleas in law and main arguments

(1) KE KELIT Kunststoffwerke Gesellschaft m.b.H v Commission of

the European Communities [2002] ECR II-0000.

Appeal brought on 3 June 2002 by LR af 1998 A/S,
formerly Løgstør Rør A/S, against the judgment delivered
on 20 March 2002 by the Fourth Chamber of the Court
of First Instance of the European Communities in case
T-23/99 (1) between LR af 1998 A/S, formerly Løgstør Rør
A/S, and the Commission of the European Communities

(Case C-206/02 P)

(2002/C 202/05)

An appeal against the judgment delivered on 20 March 2002
by the Fourth Chamber of the Court of First Instance of the

Erroneous appreciation of the criteria for setting the fine
(infringement of Article 15(2) of Regulation 17/62 and the
principles of proportionality and equal treatment; misapplica-
tion or — in the alternative — illegality of
the 1998
Guidelines): the Court of First Instance cannot claim to have
taken sufficiently account of all factors relevant to the fine in
upholding the Commission’s calculation of the fine starting
from a basic amount which, in the case of the Appellant, was
set so high that adjustments for duration, aggravating, and
mitigating factors, all took place or would have taken place at
a level high above the maximum limit of the fine (10 % of
world wide turnover) set out in Regulation 17/62. The entire
method for calculation of the fine is flawed and represents a
wrong interpretation and application of Regulation 17/62.
The method results in final fines which do not reflect properly
the relevant individual factors, and do not even reflect the
relative size of the basic amounts chosen by the Commission
as adjusted for relevant factors, but instead — in the case of all
undertakings in categories 2 and 3 — solely reflect the size
of the undertakings’ world wide group turnover, thereby
attributing a disproportionate importance to this figure.