Case C-202/02 P: Appeal brought on 31 May 2002 by (1) Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH, (2) Isoplus Fernwärmetechnik Gesellschaft mbH and (3) Isoplus Fernwärmetechnik GmbH 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-9/99 between HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG, HFB Holding für Fernwärmtechnik Beteiligungsgesellschaft mbH, Verwaltungsgesellschaft, Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft mbH und Isoplus Fernwärmetechnik GmbH and the Commission of the European Communities
Date: 2002-08-24
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), fine, heating, restriction on competition, type of business

C 202/2

EN

Official Journal of the European Communities

24.8.2002

The appellant claims that the Court should:

— Amend Article 3 of Commission Decision 1999/60/EC
of 21 October 1998 relating to a proceeding under
[former] Article 85 of the EC Treaty (Case No IV/35.691/
E-4: — Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) in
such a way as to reduce the fine of ECU 1 475 000 im-
posed on the appellant;

— In the alternative, in relation to the first head of claim: set
aside the judgment of the Court of First Instance and
remit the case for further consideration of the question
of the level of the fine;

— Order the Commission to pay the costs incurred by
Dansk Rørindustri A/S in the proceedings before the two
Community Courts.

Pleas in law and main arguments

Misconstruction of the law, consisting in an endorsement of
the Commission’s setting of the fine, by which the Court of
First Instance

— set aside Regulation No 17 (2) in conjunction with the
generally applicable principles of proportionality and
equality by imposing on Dansk Rørindustri a fine which,
by virtue of its relative amount, is disproportionate to the
infringement committed;

— set aside Regulation No 17 in conjunction with the
general principle of protection of legitimate expectations
by applying principles governing the imposition of
fines (3) which were substantially altered in relation to the
principles in force at the time of the unlawful conduct
and when the case was brought: it is not in accordance
with the purpose behind the Treaty and Regulation No 17
to apply guidelines on the level of fines that are drafted
in such a way that the intended and mandatory gradation
has no value or meaning whatsoever for small undertak-
ings. This, in the first place, gives rise to blatant and
unreasonable discrimination against smaller undertakings
and, second, has the result that the intended and manda-
tory gradation according to, inter alia, degree of guilt and
passage of time no longer serves any purpose and is
rendered subordinate to a determination calculated in an
entirely automatic manner.

The fact that the Court of First Instance reduced the factor
for the duration of the infringement without that having
any significance whatsoever demonstrates that a gra-
dation of the fine imposed on Dansk Rørindustri in line
with the scope of the infringement did not and cannot
take place if the guidelines are applied schematically
without any account whatever being taken of the size of
the undertaking.

It is grotesque that ABB, as the instigator, had its fine
reduced as a result of cooperation consisting to a large
extent in implicating the other cartel participants and
exaggerating their participation, where several of the
other undertakings involved at ABB’s instigation and
retained in the cartel were forced after the Cartel case to
withdraw from the market.

It is not denied that the wording of Article 15(2) of
Regulation No 17 does not contain an express limit on
turnover within the EU. However, an understanding of
the meaning of that relevant turnover has taken form
over the course of the years to such a degree that this
understanding has assumed the character of a customary
practice which cannot,
in the absence of additional
factors, be amended with retroactive effect.

— Formal error: even though the Court of Justice might
uphold the Court of First Instance’s acceptance of the
manner in which the Commission applied the guidelines,
the Court of First Instance erred in failing to accept that
application of those guidelines with retroactive effect
amounts to an infringement of the audi alteram partem
principle inasmuch as the appellant did not have any
opportunity to state its views on this amended practice.

(1) OJ 1999 C 100, p. 19.
(2) First Council Regulation implementing Articles 85 and 86 of the

Treaty, OJ English Special Edition 1959-1962, p. 87.

(3) Commission Information of January 1998 on 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).

Appeal brought on 31 May 2002 by (1) Isoplus Fernwär-
Isoplus
metechnik Vertriebsgesellschaft mbH,
(2)
Fernwärmetechnik Gesellschaft mbH and (3)
Isoplus
Fernwärmetechnik GmbH 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-9/99 between HFB Holding für Fernwärmetechnik
Beteiligungsgesellschaft mbH & Co. KG, HFB Holding für
Fernwärmtechnik Beteiligungsgesellschaft mbH, Verwal-
tungsgesellschaft, Isoplus Fernwärmetechnik Vertriebs-
gesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft
mbH und Isoplus Fernwärmetechnik GmbH and the
Commission of the European Communities

(Case C-202/02 P)

(2002/C 202/03)

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-9/99 between HFB Holding
für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG,
HFB Holding für Fernwärmtechnik Beteiligungsgesellschaft
mbH, Verwaltungsgesellschaft, Isoplus Fernwärmetechnik Ver-
triebsgesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft
mbH und Isoplus Fernwärmetechnik GmbH and the Com-
mission of the European Communities was brought before the
Court of Justice of the European Communities on 31 May
2002 by Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH,
Isoplus Fernwärmetechnik Gesellschaft mbH and Isoplus
Fernwärmetechnik GmbH, represented by P. Krömer and
F. Nusterer, Rechtsanwälte, with an address for service in
Luxembourg.

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,