Case T-19/05: Action brought on 20 January 2005 by Boliden AB, Outokumpu Copper Fabrication AB and Outokumpu Copper BCZ S.A. against the Commission of the European Communities
Date: 2005-04-02
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), copper, market prices, metallurgical industry, sanction (EU), tube, unlawful agreement

C 82/34

EN

Official Journal of the European Union

2.4.2005

The applicant further submits that the Commission erred in
law in finding that any element of State aid which might be
linked to recapitalisation would be compatible with the
common market under Article 86(2) EC. In support of its plea
in law, the applicant submits inter alia as follows:

— the scope of Article 86(2) EC is limited to compensation for
the net supplementary costs connected with the provision
of services of general economic interest (public service).
That provision therefore does not cover State investments
in companies which are required to provide those services;

— the Danish State's investment

in TV 2/DANMARK A/S
(recapitalisation) is not compensation for the public-service
related services which it has purchased and is therefore not
compensation for the net supplementary costs arising from
the public-service obligations;

— TV 2/DANMARK A/S is not considered to have net supple-
mentary costs connected with its public-service obligations;

Action brought on 10 January 2005 by France Télécom
against Commission of the European Communities

(Case T-17/05)

(2005/C 82/63)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 10 January 2005 by France
Télécom, having its principal place of business in Paris, repre-
sented by Antoine Gosset-Grainville and Laurent Godfroid,
lawyers.

The applicant claims that the Court should:

1. annul Decision No C(2004)3061 adopted by the Commis-
sion on 2 August 2004 concerning State aid implemented
by France in favour of France Télécom;

2. the Commission to pay all the costs of the proceedings.

— the Commission did not check the definition of public
service and thereby accepted a very wide definition of that
term, under which the entire programme schedule of TV 2/
DANMARK A/S constitutes a public service, with the result
that
the proportionality test under Article 86(2) EC is
voided of substance; and

Pleas in law and main arguments

The pleas in law and main arguments put forward by the appli-
cant in the present case are identical to those which it put
forward in Case T-427/04.

— Article 86(2) EC cannot establish an exemption for State
aid which was granted with a view to making State compa-
nies attractive as a step in the State's sale of those compa-
nies.

The applicant also submits that the Commission was limited to
appraising the planned recapitalisation under Article 87(2) EC
and 87(3) EC, in particular Article 87(3)(c) EC, and the Com-
munity guidelines on State aid for rescuing and restructuring
firms in difficulty, (2) and that the planned recapitalisation does
not meet the conditions for exemption under those provisions.

(1) Commission Decision C(2004)1814 final of 19 May 2004 in Case C
2/2003 (ex NN 22/2002) on Danish measures benefiting TV 2/
DANMARK.

(2) Communication from the Commission, OJ C 244 of 1 October

2004, p. 2.

Action brought on 20 January 2005 by Boliden AB, Outo-
kumpu Copper Fabrication AB and Outokumpu Copper
the European
BCZ S.A. against

the Commission of

Communities

(Case T-19/05)

(2005/C 82/64)

(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 20 January 2005 by Boliden AB,
established in Stockholm (Sweden), Outokumpu Copper Fabri-
cation AB, established in Västerås (Sweden) and Outokumpu
Copper BCZ S.A., established in Liège (Belguim) represented by
C. Wetter and O. Rislund, lawyers.

2.4.2005

EN

Official Journal of the European Union

C 82/35

The applicants claim that the Court should:

Action brought on 21 January 2005 by Outokumpu OYJ
and Outokumpu Copper Products OY against the Commis-
sion of the European Communities

— annul Articles 1(a), 1 (b) and 1 (c) of the Commission's
Decision of 3 September 2004 (Case COMP/E-1/38.069 -
Copper Plumbing Tubes) insofar as these articles relate to
the periods from 1 July 1995 until 27 August 1998 and
from 10 December 1998 until 7 October 1999;

— amend Article 2 of the contested decision, and reduce the

fine imposed on the applicants;

— order the Commission to pay the costs.

Pleas in law and main arguments

In the contested decision the Commission found that the appli-
cants, among other undertakings, infringed Article 81(1) EC by
participating in a complex of agreements and concerted prac-
tices consisting of price fixing and market sharing in the
copper plumbing tubes sector.

In support of their application the applicants claim that the
Commission committed an error of law in the application of
Article 81(1) EC when concluding that the applicants partici-
pated in one single continuous infringement which lasted from
3 June 1998 until 22 March 2001. The applicants further
argue that even if their infringement should be qualified as
single and continuous, the Commission infringed the principle
of proportionality by not taking into account the applicants'
reduced participation during a substantial period of that infrin-
gement. The applicants also claim that the Commission erro-
neously considered as inapplicable to the applicants' case the
rules on limitation periods and that, therefore, no fine should
have been imposed for infringements that ceased prior to 22
March 1996 given that the Commission's investigation started
on 22 March 2001. Finally, they claim that the Commission
did not correctly apply its Leniency Notice and the 1998
Guidelines on the method of setting fines in their regard, since
the reduction of the fine granted by the Commission does not
correctly reflect
In the same
context, the applicants also invoke a violation of the principle
of equal treatment on the grounds that they were granted the
same reduction as another participant to the infringement in
question even though the applicants' cooperation went further
than that of the other company.

the applicants' co-operation.

(Case T-20/05)

(2005/C 82/65)

(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 Outokumpu
OYJ, established in Espoo (Finland) and Outokumpu Copper
Products OY, established in Espoo (Finland), represented by J.
Ratliff, Barrister and F. Distefano and J. Luostarinen, lawyers.

The applicants claim that the Court should:

— annul Article 2 of

the Commission's Decision of 3
(Case COMP/E-1/38.069 - Copper
September
Plumbing Tubes) insofar as it relates to the amount of the
fine imposed on the applicants;

2004

— reduce the fine imposed on the applicants in the said deci-

sion under the Court's jurisdiction;

— order the Commission to pay the costs of the proceedings

including those of the applicants.

Pleas in law and main arguments

In the contested decision the Commission found that the appli-
cants, among other undertakings, infringed Article 81(1) EC by
participating in a complex of agreements and concerted prac-
tices consisting of price fixing and market sharing in the
copper plumbing tubes sector.

that

In support of its application the applicants claim first of all that
increased the fine
the Commission erred in law when it
imposed on the applicants by 50 % for recidivism, based on the
fact
the applicants had already been found to have
committed a similar infringement in the case of stainless steel.
the Commission
In this context
the applicants claim that
violated Article 23 of Regulation 1/2003 (1) as well
its own
1998 Fining Guidelines, violated the general principles of
proportionality and equal treatment and committed a manifest
error of assessment.