2006/485/EC: Commission Decision of  3 September 2004  relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement against Boliden AB, Boliden Fabrication AB and Boliden Cuivre  -  Zinc SA, Austria Buntmetall AG and Buntmetall Amstetten Ges.m.b.H., Halcor SA, HME Nederland BV, IMI plc, IMI Kynoch Ltd and IMI Yorkshire Copper Tube Ltd, KM Europa Metal AG, Tréfimétaux SA and Europa Metalli SpA, Mueller Industries, Inc., WTC Holding Company, Inc., Mueller Europe Ltd, DENO Holding Company, Inc. and DENO Acquisition EURL, Outokumpu Oyj and Outokumpu Copper Products OY and Wieland Werke AG (Case C.38.069 — Copper Plumbing tubes)  (notified under document number C(2004) 2826)
Date: 2004-09-03
Institutions: European Commission
Subjects: control of restrictive practices, copper, fine, infringement procedure (EU), restriction on competition, tube, unlawful agreement

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 3 September 2004

relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA
Agreement against Boliden AB, Boliden Fabrication AB and Boliden Cuivre & Zinc SA, Austria
Buntmetall AG and Buntmetall Amstetten Ges.m.b.H., Halcor SA, HME Nederland BV, IMI plc, IMI
Kynoch Ltd and IMI Yorkshire Copper Tube Ltd, KM Europa Metal AG, Tréfimétaux SA and Europa
Metalli SpA, Mueller Industries, Inc., WTC Holding Company, Inc., Mueller Europe Ltd, DENO
Holding Company, Inc. and DENO Acquisition EURL, Outokumpu Oyj and Outokumpu Copper
Products OY and Wieland Werke AG
(Case C.38.069 — Copper Plumbing tubes)

(notified under document number C(2004) 2826)

(Only the Dutch, English, Finnish, French, German, Greek, Italian and Swedish texts are authentic)

(2006/485/EC)

On 3 September 2004, the Commission adopted a decision relating to a proceeding under Article 81 of
the EC Treaty and Article 53 of the EEA Agreement. In accordance with the provisions of Article 30 of
Council Regulation (EC) No 1/2003 (1), the Commission herewith publishes the names of the parties
and the main content of the decision, having regard to the legitimate interest of undertakings in the
protection of their business interests. A non-confidential version of the full text of the decision can be
found in the authentic languages of the case and in the Commission’s working languages at DG
COMP’s website at http://europa.eu.int/comm/competition/index_en.html

I. SUMMARY OF THE INFRINGEMENT

— HME Nederland BV (HME),

Addressees and nature of the infringement

(1)

The Decision is addressed to:

— Boliden AB, Boliden Fabrication AB and Boliden

Cuivre & Zinc SA,

— Austria Buntmetall AG and Buntmetall Amstetten

Ges.m.b.H. (Buntmetall or BMA),

— Halcor SA (Halcor),

(1) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC)

No 411/2004 (OJ L 68, 6.3.2004, p. 1).

— IMI plc, IMI Kynoch Ltd and IMI Yorkshire Copper
Tube Ltd (YCT), collectively referred to as ‘MI group’
or ‘IMI’,

— KM Europa Metal AG (KME or KM Europa Metal),
Tréfimétaux SA (TMX or Tréfimétaux) and Europa
Metalli SpA (EM or Europa Metalli), collectively
referred to as the KME-group,

— Mueller

Industries,

(Mueller), WTC Holding
Company, Inc., Mueller Europe Ltd, DENO Holding
Company, Inc., and DENO Acquisition EURL,

Inc.,

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— Outokumpu Oyj and Outokumpu Copper Products

OY, collectively referred to as ‘Outokumpu’,

liability of its own conduct and is jointly and severally
liable with TMX for the illicit behaviour of the latter.

— Wieland Werke AG (Wieland or Wieland Werke).

(6)

(2)

(3)

(4)

(5)

The addressees of the Decision participated in a single,
complex and continuous infringement contrary to Article
81 of the Treaty establishing the European Community
(hereinafter ‘the EC Treaty’ or ‘the Treaty’) and,
from
1 January 1994, Article 53 of the Agreement on the
European Economic Area (hereinafter EEA Agreement),
covering the whole of
the EEA territory by fixing
prices, allocating markets and exchanging confidential
information in the copper plumbing tube market from
at least 3 June 1988 to 22 March 2001.

Imputation of liabilities

SMI and KME

Societa Metallurgica Italiana SpA (SMI)
is the Italian
holding company of the KME-group, to which Europa
Metalli SpA (EM or EM/LMI or Europa Metalli) and Tréfi-
métaux SA (Tréfimétaux or TMX) belong. After having
examined the views expressed by SMI and KME with
regard to SMI's position in these proceedings,
the
Commission concluded that
this Decision should not
be addressed to SMI.

Based on the evidence adduced by KME,
it appeared
appropriate to distinguish two separate periods for the
purposes of imputation of liability within the SMI-group.
During the first period including the years 1988 to 1995,
KME must be considered a separate undertaking from EM
and TMX, regardless of the fact that SMI acquired 76,9 %
of it in 1990. KME’s management board was different
from that of its sister companies and KME’s operational
management appears to have been coordinated with
those of EM and TMX only after the restructuring of
the group in 1995, when KME obtained 100 % of the
shares in EM and TMX. It may therefore be concluded
that during the period from 1988 to 1995, KME is liable
only for its own conduct but not for that of its sister
companies.

On the other hand, EM and its wholly-owned subsidiary
until 1995, TMX, must be regarded as one economic unit
and thus a single undertaking distinguished from KME
until the restructuring of the group. Further to 100 %
control of EM over TMX, a number of other elements
supported the presumption that the subsidiary did not
follow an autonomous commercial policy (e.g. EM’s
managers were introduced to the TMX board;
their
commercial
strategies were aligned; and a common
sales organisation was formed in 1993; participation in
the same cartel in the same product market since 1989).
Accordingly, in the period from 1989 to 1995, EM bears

As to the period from 1995 to 2001, when KME
controlled 100 % of the capital of both EM and TMX,
the entities of the KME-group must be considered to
have acted as a single undertaking on the market. The
presumption of control based on KME’s 100 % share-
holding in EM and TMX, which is further supported by
significant management links and economic reality, has
not been rebutted by sufficient evidence. Accordingly,
liability of
KME, EM and TMX bear joint and several
their illegal conduct during the period from 1995 to
2001.

Outokumpu

of

the
the

duration
parent

the
company,

(7) With regard to Outokumpu (Finland), the Commission
jointly and
held the parent company Outokumpu Oyj
severally liable for
its wholly-owned
the conduct of
subsidiary Outokumpu Copper Products Oy (OCP).
Outokumpu Oyj controlled the entire capital of OCP
infringement.
throughout
to
according
Furthermore,
Outokumpu, was involved in the infringement through
its Copper Products Division before May 1988 and was
therefore aware of it also after the subsidiary was created
and took its functions between May and December 1988.
its
The parent company did not, however,
subsidiary to end the infringement. Accordingly, a full
and effective control of Outokumpu Oyj over its subsi-
diary's commercial policy can be presumed, which
Outokumpu has been unable to rebut. The Commission
limited its assessment with respect to Outokumpu to the
period after September 1989 because of limited evidence
for the years 1987 and 1988.

instruct

Other Participants

(8)

Mueller, IMI, Wieland and Boliden did not contest the
liability of their respective holding and parent companies
for the conduct of the subsidiaries involved in the copper
plumbing tube business.

Duration of the infringement

(9)

The undertakings participated in the infringement during
at least the following periods:

(a) Boliden AB,

together with Outokumpu Copper
Fabrication AB (formerly: Boliden Fabrication AB)
and Outokumpu Copper BCZ SA (formerly:
Boliden Cuivre & Zinc SA),
from 3 June 1988
until 22 March 2001;

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(b) Outokumpu Copper

Fabrication AB (formerly:
Boliden Fabrication AB), together with Boliden AB
and Outokumpu Copper BCZ SA (formerly: Boliden
Cuivre & Zinc SA),
from 3 June 1988 until
22 March 2001;

(c) Outokumpu Copper BCZ SA (formerly: Boliden
Cuivre & Zinc SA), together with Boliden AB and
Fabrication AB (formerly:
Outokumpu Copper
Boliden Fabrication AB), from 3 June 1988 until
22 March 2001;

(d) Austria Buntmetall AG:

(i) together with Buntmetall Amstetten Ges.m.b.H.,
from 29 August 1998 at the latest until 8 July
1999, and

(k) KM Europa Metal AG:

(i) individually, from 3 June 1988 until 19 June

1995, and

(ii) together with Tréfimétaux SA and Europa Metalli
SpA, from 20 June 1995 to 22 March 2001;

(l)

Europa Metalli SpA:

(i) together with TMX, from 29 September 1989 to

19 June 1995, and

(ii) together with KM Europa Metal AG and Tréfi-
métaux SA, from 20 June 1995 to 22 March
2001.

(ii) together with Wieland Werke AG and Bunt-
metall Amstetten Ges.m.b.H, from 9 July 1999
until 22 March 2001;

(m) Tréfimétaux SA:

(e) Buntmetall Amstetten Ges.m.b.H.:

(i) together with

Europa Metalli

SpA,

from

29 September 1989 to 19 June 1995, and

(i) together with Austria Buntmetall AG,

from
the latest, until 8 July

29 August 1998 at
1999, and

(ii) together with Wieland Werke AG and Austria
from 9 July 1999 until

Buntmetall AG,
22 March 2001;

(f) Halcor SA from 29 August 1998 at the latest, until

at least beginning of September 1999;

(g) HME Nederland BV from 29 August 1998 at the

latest, until 22 March 2001;

(ii) together with KM Europa Metal AG and Europa
Metalli SpA, from 20 June 1995 to 22 March
2001.

(n) Mueller Industries, Inc., together with WTC Holding
Company, Inc., Mueller Europe Ltd, DENO Holding
Company, Inc. and DENO Acquisition EURL, from
21 October 1997 until 8 January 2001;

(o) WTC Holding Company, Inc., together with Mueller
Industries, Inc., Mueller Europe Ltd, DENO Holding
Company, Inc. and DENO Acquisition EURL, from
21 October 1997 until 8 January 2001;

(h)

(i)

IMI plc together with IMI Kynoch Ltd and Yorkshire
Copper Tube Ltd (formerly: IMI Yorkshire Copper
Tube
from 29 September 1989 until
22 March 2001;

Ltd),

(p) Mueller Europe Ltd,

together with WTC Holding
Inc., DENO
Company,
Holding Company,
Inc. and DENO Acquisition
EURL, from 21 October 1997 until 8 January 2001;

Inc., Mueller

Industries,

IMI Kynoch Ltd together with IMI plc and Yorkshire
Copper Tube Ltd (formerly: IMI Yorkshire Copper
Tube
from 29 September 1989 until
22 March 2001;

Ltd),

(q) DENO Holding Company, Inc., together with WTC
Holding Company, Inc., Mueller Europe Ltd, Mueller
Industries, Inc. and DENO Acquisition EURL, from
21 October 1997 until 8 January 2001;

(j) Yorkshire Copper Tube Ltd (formerly: IMI Yorkshire
Copper Tube Ltd) together with IMI plc and IMI
Kynoch Ltd,
from 29 September 1989 until
22 March 2001;

(r) DENO Acquisition EURL,

together with WTC
Holding Company, Inc., Mueller Europe Ltd, DENO
Holding Company, Inc. and Mueller Industries, Inc.,
from 21 October 1997 until 8 January 2001;

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(s) Outokumpu Oyj together with Outokumpu Copper
from 29 September 1989 until

Products Oy,
22 March 2001;

customers, original equipment manufacturers or part
manufacturers.

(t) Outokumpu Copper Products Oy,

together with
from 29 September 1989 until

Outokumpu Oyj,
22 March 2001;

(u) Wieland Werke AG:

(i) individually from 29 September 1989 until

8 July 1999, and

(ii) together with Austria Buntmetall AG and Bunt-
metall Amstetten Ges.m.b.H., from 9 July 1999
until 22 March 2001.

The market for Copper Plumbing tubes

Copper tubes are generally divided into two product
groups: (i) industrial tubes which are segregated in sub-
groups based on the end use (air-conditioning and refrig-
eration, fittings, gas heater, filter dryer and telecommu-
nications), and (ii) plumbing tubes (also called sanitary
tubes, water tubes or installation tubes). Plumbing tubes
are used for water, oil, gas and heating installations in
the construction industry (1).

i.e.

Traditionally, plumbing tubes were mainly made of
copper,
recycled copper, newly refined copper
(cathode copper) or copper ingots, and to some extent
steel. Since the early 1990s, plumbing tubes have
increasingly been produced of plastic or compounds
(plastic with layers of aluminium). The substitution
process was enhanced by public discussion on quality
subsequent
standards
adoption of the European Drinking Water Directive in
1998.

for drinking water

and the

(10)

(11)

(12) Main customers for plumbing tubes are distributors,
wholesalers and retailers that sell the plumbing tubes
to installers and other end consumers, whereas industrial
tubes are usually used by and directly sold to industrial

(13)

(14)

(15)

(16)

EUR

200 million (2).

The estimated EEA market value for plain copper
plumbing tubes was approximately EUR 1 billion in
2000 and for plastic-insulated copper plumbing tubes
approximately
The major
producers of copper plumbing tubes in Europe are the
addressees of the Decision. Their estimated EEA market
shares (plain tubes)
in 2000, the last full year of the
implementation of the cartel agreement, were roughly
[…] %, Outokumpu
as follows: KME […] (*) %,
[…] %, Wieland Werke […] %, Mueller […] %, Boliden
[…] %, Buntmetall […] % (1998), HME […] %, Halcor
[…] %. The estimated aggregated EEA market share (plain
and plastic-insulated plumbing tubes) in 2000, the last
full year of the implementation of the cartel agreement,
was roughly as follows: KME […] % and Wieland […] %.
Of the total EEA plain copper plumbing tube market
these undertakings together accounted for about 80 to
it has to be noted that not all parties
90 %. However,
participated for the entire period.

IMI

Functioning of the cartel

the EEA Agreement, covering most of

The addressees of the present decision participated in a
single, continuous, complex and, as far as Boliden, the
concerned, multiform
KME-group and Wieland are
infringement of Article 81 of the Treaty and Article 53
of
the EEA
territory by which they allocated volumes and market
shares, agreed in certain cases on price targets, price
increases or other commercial terms for plain copper
plumbing tubes (and, as far as KME and Wieland are
concerned, plastic-coated copper plumbing tubes), and
monitored the implementation of their anti-competitive
arrangements by exchanging information on sales,
orders, market shares and pricing, and by a market
leader arrangement. The infringement started in June
1988 and finished in March 2001. Different companies
were involved during different time periods.

single because

infringement was

The
there was a
continuous aim and continuous actions and measures
to allocate volumes and coordinate prices.
It was
complex because it was composed of both agreements
and concerted practices.

anti-competitive

The
a
behavior
multiform infringement because it was organised on
three levels with the object to avoid competition in the
copper plumbing tube industry.

constituted

also

(1) See 32123. According to a study of Boliden, 45 % are used for
water tubes/plumbing, 52 % for heating systems and 3 % for gas
pipes.

(2) These figures are currently being verified.
(*) Parts of this text have been edited to ensure that confidential infor-
mation is not disclosed; those parts are enclosed in square brackets.

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(17)

(18)

Cooperation on the first level started at least in June
1988 (lasting until March 2001) and involved the so-
called ‘SANCO®’ producers (‘SANCO’ club): KME, Tréfi-
métaux, Europa Metalli, Boliden and Wieland. Boliden
reduced its SANCO cooperation in July 1995 and
continued in the information exchange system until
March 2001. SANCO® producers allocated market
shares of SANCO® tubes, exchanged confidential infor-
mation,
It
appeared to have been the tightest cooperation and
served as a preparation for meetings with non-SANCO
producers. KME and Wieland also cooperated with
respect
to WICU® and Cuprotherm plastic-insulated
copper plumbing tubes starting from at least beginning
of 1991 until March 2001.

fixed and coordinated prices and rebates.

least

Cooperation on the second level started at
in
September 1989 and involved the largest European
producers (the ‘group of the five’)
(including SANCO-
and non-SANCO-producers): KME (including Tréfimétaux
and Europa Metalli), Wieland, Outokumpu, IMI and, as of
October 1997, Mueller. The main object was to stabilise
and allocate market shares, and to coordinate prices and
rebates. Meetings were either held on the occasion of
International
industry
Wrought Copper Council (IWCC) meetings), or separately
in
top-level
cooperation
management meetings and meetings at the operational
level. These contacts developed in three stages:
from
June/July 1994 (establishing of
September 1989 until
the information exchange and coordination); from July
1994 until June 1997 (less intensive contacts); from June
1997 until March 2001 (effective and efficient
re-
establishment of the coordination).

association meetings

included

Zurich.

(e.g.

The

(19)

Cooperation on the third level started in August 1998
and lasted between August 1999 and March 2001. It
involved the above mentioned group of the five and
four smaller producers (together ‘the group of nine’):
Halcor until August 1999, and HME Nederland BV,
Boliden (which did not steadily participate) and Bunt-
metall until March 2001. The group of nine discussed
market shares and price or margin targets.

II. FINES

Basic amount

(20)

The present infringement consisted mainly of price-fixing
and market allocation practices, which are by their nature
very serious violations of Articles 81(1) EC and 53(1)
EEA. It has been established that the cartel agreements
were also implemented in practice and, at
for
certain periods,
they increased prices on the
market. The cartel covered the entire common market
and, following its creation, most of the EEA.

least

that

(21)

Taking into account the very nature of the conduct under
scrutiny, the actual impact on the copper plumbing tubes
the cooperation covered a
market, and the fact
that
geographic market of a significant size (most of
the
EEA), the addressees of the present Decision committed
a very serious infringement of Article 81(1) EC and 53(1)
EEA.

Differential treatment

(22)

In the circumstances of this case, which involved several
undertakings, when the basic amounts of the fine were
set the specific weight of each undertaking on the market
was considered, to account for the real
impact of the
offending conduct of each undertaking on competition.

(23)

full year of

For the purposes of calculating the fine, the companies
were divided into four categories on the basis of their
EEA-wide market share for the product concerned in the
last
(2000). The first
the infringement
category included KME; the second category consisted
of Outokumpu, IMI, Mueller and Wieland Werke group
including BMA (roughly a half of KME's market share);
the third category consisted of Boliden (roughly two
thirds of the market share of the second group); and
fourth group consisted of HME and Halcor
the
(roughly a half of the market share of the second group).

(24) As EM and TMX formed a single undertaking in the
they are jointly and
period from 1988 to 1995,
the
respective part of
their
severally responsible for
infringement. Similarly, KME, EM and TMX formed a
single undertaking (the KME-group) in the period from
1995 to 2001, and they are jointly and severally
responsible for that part of the infringement. The basic
amount of the fine was therefore divided in two parts,
one for the period from 1988 to 1995 and one for the
period from1995 to 2001. The result of this was that
KME has been individually fined EUR 17,96 million; EM
and TMX are jointly and severally liable for the payment
of a fine of EUR 16,37 million; and KME, EM and TMX
(or the KME-group) are jointly and severally liable to pay
a fine of EUR 32,75 million.

(25)

In a similar way, two different periods were distinguished
for the purposes of the allocation of liability within the
Wieland-group. Wieland Werke AG acquired sole control
over
the Buntmetall group in 1999. Accordingly,
Wieland Werke AG and the Buntmetall group were
treated as a single undertaking with joint and several
liabilities for the infringement only as of 1999.

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(26)

In order to ensure that the fines imposed had a sufficient
deterrent effect, a multiplying factor of 1,5 was applied
to the starting amount of the fine set for Outokumpu. In
this assessment, it was appropriate to take into account
the overall worldwide turnover of the group (approxi-
mately EUR 5 billion),
company
(Outokumpu Oyj) was involved in the infringement in
1988 through its Copper
Products Division and
thereafter did not instruct its wholly-owned subsidiary
OCP to end it. With regard to the other parties,
Outokumpu is more than twice the size of each of
them in terms of the total worldwide turnover.

since the parent

(28)

There were periods of different intensity in the cartel
discipline. The period from mid-1994 until mid-1997
was identified as a ‘quiet period’ by Outokumpu. KME
and Wieland continued their WICU, Cuprotherm and
IMI, Wieland, Outokumpu and
SANCO cooperation.
KME met a number of times in 1996. Although the
cartel clearly functioned in a less efficient way,
the
exchange of confidential information continued at least
occasionally. Outokumpu confirmed a period of
less
this period was
intensive contacts. For these reasons,
characterised as one of reduced cartel activity rather
than of complete interruption. The duration of the infrin-
gement (12 years and 9 months) as such was therefore
not affected by the periods of reduced cartel activity.

Duration

(27) Different companies were involved for different periods.
The infringement started at the latest on 3 June 1988
least until 22 March 2001. The
and continued at
following companies committed a continuous infrin-
gement for the respective duration indicated:

(29)

— Boliden-group:

12 years 9 months,

— Buntmetall-group:

2 years 6 months,

— Halcor:

12 months,

— HME:

2 years 6 months,

— IMI-group:

11 years 5 months,

Aggravating circumstances

In Outokumpu's case, the gravity of the infringement was
increased by the fact that it had been addressee of a
previous Decision finding an infringement of the same
type, i.e. Commission Decision 90/417/ECSC (1) relating
flat
to a cartel
products. However,
on
Outokumpu in that decision.

in the sector of rolled stainless steel
imposed

fine was

no

that

(30) Outokumpu has contested this finding on the grounds
that the case involved a very different situation, since (i)
Outokumpu was acting under government influence and
in the belief
the arrangements were publicly
endorsed;
(ii) the Commission itself accepted that this
was not a straightforward infringement and imposed
concerned,
no fine;
(iii) different businesses were
involving different units and employees
in different
locations, as well as (iv) a different
treaty provision
(Article 65 of the ECSC Treaty).

— KME-group:

12 years 9 months (in total, split
according to the participation of
each member company)

(KME 12 years 9 months;
EM/TMX: 11 years 5 months),

— Mueller-group:

3 years 2 months,

— Outokumpu-group: 11 years 5 months,

(31) Outokumpu's claim was not acceptable, since one of the
functions of Commission decisions addressed to under-
takings is to warn and deter them from committing
similar infringements in future, even if for some reason
no fine is imposed. That Outokumpu continued its
infringement in the copper plumbing tubes sector after
being ordered to end its infringement in the stainless
steel sector by a Commission Decision clearly shows
that the previous Decision did not have a sufficiently
deterrent effect on Outokumpu's market behaviour.
Hence, future deterrence had to be ensured by increasing
the amount of the fine in the present case. Furthermore,
the same type of
infringement in this context meant
infringement of the same article in the Treaty. In this
regard, Article 65 of the ECSC Treaty is equivalent to
Article 81(1) of the EC Treaty. This position has been
already taken by the Commission in the Industrial Tubes
Decision of 16 December 2003.

— Wieland Werke:

11 years 5 months.

(1) OJ L 220, 15.8.1990, p. 28.

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(32)

The claim of coercion made by Halcor against KME,
Outokumpu, Wieland and Mueller could not be demon-
strated. Also Boliden’s claim of coercion against KME was
not proven.

Attenuating circumstances

(33)

considered attenuating

The parties have claimed that a number of factors should
including,
be
among others, non-implementation in practice of
the
limited benefit derived from the infrin-
arrangements,
gement
copper
economic
and
plumbing tube sector.

circumstances,

difficulties

in the

(34)

The Commission has rebutted each of these arguments in
the Decision and found evidence that the arrangements
had effects on prices. Hence, no mitigating circumstances
apply to any of the undertakings in this case.

(35)

(36)

The 1996 Leniency Notice does not provide for any
specific reward to a leniency applicant
that discloses
facts previously unknown to the Commission and
affecting the gravity or duration of the cartel. Such coop-
eration has already been recognised as attenuating factors
in the Industrial Tubes case.

therefore

considered that Outokumpu’s

co-
It was
operation qualified for an attenuating factor
in this
regard. Outokumpu was the first to disclose the whole
duration of the European cartel in the copper plumbing
tubes sector, and,
in particular, was first in providing
decisive evidence and explanations to prove continuity
of the infringement during the period from July 1994
until July 1997 (and the period from 1990 until end of
1992). Based on the
evidence obtained from the
immunity applicant and from the inspections prior to
Outokumpu’s
the Commission
could have not established the duration and continuity
of the infringement from September 1989. Outokumpu
should not be penalised for its cooperation by being
imposed a higher fine than the one that it would have
had to pay without its cooperation. In the light of the
above, the basic amount of the fine to be imposed on
Outokumpu was
lump sum of
EUR 40,17 million for effective cooperation outside the
scope of the 1996 Leniency Notice.

leniency application,

reduced by

the

(37)

The Commission also considered that KME’s cooperation
regard.
an attenuating factor
qualified for

in this

Although the Commission had certain isolated indi-
cations that the illegal behaviour also concerned plastic-
coated tubes and more solid evidence with respect to
information exchange concerning plastic-coated tubes at
the stage of the Statement of Objections, it was only with
KME’s contribution that
it was able to establish the
existence of a single, continuous and complex infrin-
to WICU/Cuprotherm tubes
gement with respect
starting
beginning of 1991. The
Commission considers that the KME group should not
be penalised for its cooperation. The appropriate point of
reference for the reduction of the basic amount of the
fine to be imposed on the KME is the relative importance
of the plastic-coated tubes sector compared to the plain
copper plumbing tubes. Based on this criterion, the basic
amount for the fine was reduced by a lump sum of EUR
7,93 million.

from at

least

Application of the 1996 Leniency Notice

(38) All of the addressees of this Decision cooperated with the
Commission at different stages of the investigation for
the purpose of receiving the favourable treatment set out
in the Commission’s Leniency Notice. The 1996 Leniency
Notice was applied as follows:

Section B of the Leniency Notice: reduction between 75 % and
100 %

(39) Mueller Industries Inc., (Mueller) was the first undertaking
that informed the Commission (in January 2001) about
in the European Copper
the existence of a cartel
Plumbing Tube sector
in the 1990s. The evidence
Mueller provided, prior to the Commission's investi-
enabled the Commission to establish the
gation,
existence, content and the participants of a number of
cartel meetings held in 1989, 1994, and from 1997 until
2001, as well as to undertake inspections on 22 March
2001 and thereafter. Mueller immediately ended its invol-
vement and cooperated fully throughout the whole inves-
tigation by providing the Commission with numerous
submissions
further describing the
arrangements. Mueller therefore benefited from a total
exemption from any fine.

and documents

Section C: reduction between 50 % and 75 %

(40) Mueller provided occasional evidence for the time before
1997 and disclosed the existence of the cartel for 1997
until 2001. Together with the documents collected
during the inspections, the Commission had sufficient
evidence to initiate the procedure leading to a decision
against all parties involved. Therefore none of the other
parties qualified for a reduction under Section C of the
1996 Leniency Notice.

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Official Journal of the European Union

13.7.2006

(41)

Section D: reduction between 10 % and 50 %

(SO), Outokumpu

the Commission adopted its Statement of
Before
Objections
(April 2001), KME
(October 2002), Wieland (January 2003) and Halcor
(April 2003) provided the Commission with information
and documents which contributed to establishing the
existence of the infringements. None of them contested
substantially the facts on which the Commission based
its SO, with the exception of those not upheld in the
Decision. These companies
therefore qualified for a
reduction between 10 % and 50 % under Section D of
the Leniency Notice.

(42) Outokumpu was the first to submit decisive evidence for
the period from 1989 to mid-1997. The period from
mid-1997 until March 2001 had already been covered
by Mueller and material collected during the inspections.
In particular, Outokumpu’s contribution was crucial for
establishing
infringement.
Outokumpu was therefore rewarded with the biggest
possible reduction, a 50 % reduction of the fine that
would otherwise have been imposed had it not coop-
erated with the Commission.

continuity

the

the

of

(43)

to KME

It was considered appropriate to grant a lower reduction
reduction
compared to Outokumpu, but a similar
compared to each other,
and Wieland
(including Buntmetall). While Wieland was the first to
disclose a detailed list of meetings for the period of
1993 until 2001 and provided explanations
that
allowed the Commission to use as proof a large
number of contemporaneous documents, KME was the
first to provide complete explanations with respect to all
aspects of the infringement (SANCO meetings, European-
wide meetings). Accordingly, KME benefited from a 35 %
reduction of the fine that would have been imposed if it
had not
the Commission. The
Commission granted Wieland (including Buntmetall) a

cooperated with

35 % reduction of the fine that would otherwise have
been imposed.

(44) Halcor

a

of

number

provided

contemporaneous
its participation (August
documents for the period of
1998 until August 1999). However,
the period for
which Halcor provided documents was already well
documented. In addition, Halcor did not clarify its co-
operation in cartel arrangements before August 1998. It
therefore qualifies only for
substantially smaller
reduction than Outokumpu, KME or Wieland. At the
same time, the Commission has had to take into consid-
eration that Halcor offered its cooperation immediately
after having received an information request and that no
investigations were carried out at the premises of Halcor.
Therefore Halcor qualified for a 15 % reduction of the
fine that would otherwise have been imposed.

a

(45) After having received the SO, the Boliden group applied
for leniency. Boliden admitted the infringement and did
not contest the facts. In addition, Boliden clarified certain
factual details. However, given the prior cooperation of
Mueller, Outokumpu,
the KME-group, Wieland and
Halcor, as well as the inspections, the infringement had
already been established in its entirety. The Commission
consequently granted Boliden a 10 % reduction of the
fine that would otherwise have been imposed if it had
not cooperated with the Commission.

(46) After having received the SO, the IMI group applied for
IMI admitted the infringement and did not
leniency.
the facts. Given the cooperation of Mueller,
contest
the KME-group, Wieland and Halcor, as
Outokumpu,
well as the inspections,
the infringement had already
been established in its entirety. The Commission as a
result granted the IMI group a 10 % reduction of the
fine that would otherwise have been imposed.

1.

The following fines were imposed:

Decision

(a) Boliden AB, Outokumpu Copper Fabrication AB (formerly: Boliden Fabrication
AB) and Outokumpu Copper BCZ SA (formerly: Boliden Cuivre & Zinc SA)
jointly and severally:

EUR 32,6 million;

(b) Austria Buntmetall AG and Buntmetall Amstetten Ges.m.b.H.

jointly and

severally:

EUR 0,6695 million;

(c) Austria Buntmetall AG, Buntmetall Amstetten Ges.m.b.H. and Wieland Werke

AG jointly and severally:

(d) Halcor SA individually:

(e) HME Nederland BV individually:

EUR 2,43 million;

EUR 9,16 million;

EUR 4,49 million;

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Official Journal of the European Union

L 192/29

(f)

IMI plc,
Yorkshire Copper Tube Ltd) jointly and severally:

IMI Kynoch Ltd and Yorkshire Copper Tube Ltd (formerly:

IMI

EUR 44,98 million;

(g) KM Europa Metal AG individually:

EUR 17,96 million;

(h) KM Europa Metal AG, Tréfimétaux SA and Europa Metalli SpA jointly and

severally:

EUR 32,75 million;

(i) Europa Metalli SpA and Tréfimétaux SA jointly and severally:

EUR 16,37 million;

(j) Outokumpu Oyj and Outokumpu Copper Products Oy jointly and severally:

EUR 36,14 million;

(k) Wieland Werke AG individually:

EUR 24,7416 million.

2.
The undertakings listed above shall immediately bring the infringements to an end, in so far as they
have not already done so. They shall refrain from repeating any act or conduct as the infringement found in
this case and from adopting any measure having equivalent object or effect.