Case T-122/04: Action brought on 29 March 2004 by Outokumpu OYJ and Outokumpu Copper Products OY against the Commission of the European Communities
Date: 2004-04-30
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, flat product, inter-company cooperation, iron and steel industry, restriction on competition, steel, tube

C 118/48

EN

Official Journal of the European Union

30.4.2004

Action brought on 26 March 2004 by Henri Boquien and
12 other applicants against the Council of the European
Union and the Commission of the European Communities

(Case T-121/04)

(2004/C 118/103)

(Language of the Case: French)

An action against the Council of the European Union and the
Commission of the European Communities was brought before
the Court of First Instance of the European Communities on 26
March 2004 by Henri Boquien and 12 other applicants, all resi-
dent in France, represented by Jean-François Péricaud, lawyer.

The applicants claim that the Court should:

— order the Council of the European Union and the Commis-
sion of the European Communities jointly to pay to each
applicant damages corresponding to the harm suffered plus
interest at the legal rate from the date on which this appli-
cation was filed;

— order the Council of the European Union and the Commis-

sion of the European Communities to pay the costs

Pleas in law and main arguments:

The pleas in law and main arguments are those advanced in
Case T-440/03 Arizmendi and Others v Council and Commis-
sion (1).

(1) OJ C 59 of 6.3.2004, p. 31.

Action brought on 29 March 2004 by Outokumpu OYJ
and Outokumpu Copper Products OY against the Commis-
sion of the European Communities

(Case T-122/04)

(2004/C 118/104)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 29 March 2004 by Outokumpu
OYJ and Outokumpu Copper Products OY, Espoo (Finland),
represented by J. Ratliff, Barrister, and F. Distefano and J.
Louostarinen, lawyers.

The applicant claims that the Court should:

— annul Article 2 of the Commission's Decision dated 16
December 2003 relating to a proceeding under Article 81
of the EC Treaty (Case COMP/E-1/38.240-Industrial tubes),
insofar as it imposes a fine of 18.13 million euros on the
applicant.

— reduce the fine imposed on the applicant in the said Deci-
sion under the Court's jurisdiction provided for in Article
17 of Council Regulation 17/62 and Article 230 of the EC
Treaty.

— require the Commission to pay the costs of the proceedings,

including those of the applicant.

Pleas in law and main arguments:

In support of its application, the applicant claims that the
Commission erred in law when it increased the fine imposed
on the applicant for recidivism, based on the decision of the
Commission of 18 July 1990 in cold-rolled stainless steel flat
products (1). The applicant invokes a violation of Article 15(2)
of Regulation 17/62 (2),
the
principles of proportionality and equal treatment and of the
obligation to state reasons. It also claims that the Commission
made a manifest error of assessment.

the 1998 Fining Guidelines (3),

Furthermore, the applicant claims that the Commission erred in
law by increasing the fine for deterrence. According to the
applicant, it has only become larger than the other companies
involved at the very end or after the infringement and therefore
did not have, at that time, the increased resources or greater
economic power the Commission claims the applicant had. The
applicant also invokes an infringement of fundamental princi-
ples limiting the Commission's discretion by considering only
the turnover when assessing deterrent effect.

Finally, the applicant claims that the Commission erred in law
by taking into account the full price including the price for the
metal, namely, not only the producers' conversion margin for
processing copper metal
into industrial tubes, but also the
underlying copper metal turnover which was not part of any
unlawful cooperation.

(1) 90/417/ECSC: Commission Decision of 18 July 1990 relating to a
proceeding under Article 65 of the ECSC Treaty concerning an
agreement and concerted practices engaged in by European produ-
cers of cold-rolled stainless steel flat products (OJ L 220, p. 28)
(2) EEC Council: Regulation No 17: First Regulation implementing Arti-
cles 85 and 86 of the Treaty (OJ English special edition: Series I
Chapter 1959-1962, p. 87)

(3) 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 C 9, p. 3)