Case T-25/05: Action brought on 21 January 2005 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities
Date: 2005-04-02
Institutions: Court of First Instance
Subjects: European Commission, action brought before an administrative court, copper, fine, metallurgical industry, restrictive trade practice, sanction (EU), tube

2.4.2005

EN

Official Journal of the European Union

C 82/39

Action brought on 21 January 2005 by KM Europa Metal
AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the
Commission of the European Communities

the added value. The applicants claim also that tube producers
not only do not have any degree of control over the cost of the
metal, but also are bound to source copper in the strict obser-
vance of the purchasing instructions that they receive from
their customers.

(Case T-25/05)

(2005/C 82/70)

(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 21 January 2005 by KM Europa
Metal AG, established in Osnabruck (Germany), Tréfimétaux
S.A., established in Courbevoie Cedex (France) and Europa
Metalli S.p.A., established in Florence (Italy), represented by R.
Elderkin, Barrister and M. Siragusa, A. Winckler, G. Cesare
Rizza, T. Graf and M. Piergiovanni, lawyers.

The applicants claim that the Court should:

— to reduce substantially KME's Fine;

— to order the Commission to pay the applicants' legal fees

and expenses;

— to take any other measures that this Honourable Court

considers appropriate.

Pleas in law and main arguments

The applicants contest
the fine imposed on them by the
Commission Decision of 3 September 2004 relating to a
proceeding pursuant to Article 81(1) EC in Case Comp/E-1/38-
069 finding three separate infringements
in the copper
plumbing tube sector.

By their first plea, the applicants submit that the Commission,
in establishing the basic amount of their fines, failed to assess
the actual market impact of the infringement, in contrast with
the principles of proportionality and equal
treatment. The
impact of the cartel on customers and final consumers was
very limited due to the frequent deviation and continued
competition by producers, the absence of any monitoring and
sanctioning mechanism, and the strong purchasing power of
customers.

By their second plea, the applicants claim that the Commis-
sion's assessment of the gravity of the infringement was vitiated
by an overstatement of the infringement's economic impact.
According to the applicants, the price of the raw material, i.e.
copper, should not have been included in the calculation of the
relevant market value because the infringement concerned only

By their third plea, the applicants submit that the Commission
grossly overstated the importance of
the applicants in the
copper plumbing tube market, compared to other players, and
thus set the starting amount of the fine too high. In particular,
the Commission ignored that, during a significant period of
time, the applicants acted as competitors in the market.

the duration element of

By their fourth plea, the applicants submit that the Commis-
sion's calculation of
the starting
amount was contrary to the principles of proportionality and
equal treatment. In particular, the Commission, when deter-
mining the increase of the fine on account of duration, should
not have taken into account the year during which the Euro-
pean meetings were interrupted and the years during which the
arrangements were particularly loose and ineffective.

By their fifth plea, the applicants contend that the Commission
failed to take into account several attenuating circumstances,
namely the non-implementation of the arrangements and the
crisis in the copper plumbing tube industry. Moreover, the
applicants claim that
the decision violated the principle of
equal treatment in that it unlawfully discriminated between
KME and Outokumpu by applying to the latter company a
greater fine reduction than that granted to KME on account of
cooperation outside the 1996 Leniency Notice.

By their sixth plea, the applicants submit that the reduction
they were granted under the 1996 Leniency Notice was inade-
quate. The Commission based its conclusion in this matter on
erroneous factual premises, departed from its own practice and
the case law, and violated the principle of equal treatment.

By their seventh plea, the applicants submit that the Commis-
sion should have taken into account the applicants' precarious
financial situation and resulting inability to pay a high fine, in
particular as a result of the onerous penalty already imposed
on it in the parallel Industrial Tubes case (1).

(1) Case COMP/E-1/38.240 Industrial Tubes