CELEX: C2002/202/03
Language: en
Date: 2002-08-24 00:00:00
Title: 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

C 202/2                 EN                      Official Journal of the European Communities                                        24.8.2002
The appellant claims that the Court should:                                      It is not denied that the wording of Article 15(2) of
                                                                                 Regulation No 17 does not contain an express limit on
—     Amend Article 3 of Commission Decision 1999/60/EC                          turnover within the EU. However, an understanding of
      of 21 October 1998 relating to a proceeding under                          the meaning of that relevant turnover has taken form
      [former] Article 85 of the EC Treaty (Case No IV/35.691/                   over the course of the years to such a degree that this
      E-4: — Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) in                  understanding has assumed the character of a customary
      such a way as to reduce the fine of ECU 1 475 000 im-                      practice which cannot, in the absence of additional
      posed on the appellant;                                                    factors, be amended with retroactive effect.
—     In the alternative, in relation to the first head of claim: set      —     Formal error: even though the Court of Justice might
      aside the judgment of the Court of First Instance and                      uphold the Court of First Instance’s acceptance of the
      remit the case for further consideration of the question                   manner in which the Commission applied the guidelines,
      of the level of the fine;                                                  the Court of First Instance erred in failing to accept that
                                                                                 application of those guidelines with retroactive effect
—     Order the Commission to pay the costs incurred by                          amounts to an infringement of the audi alteram partem
      Dansk Rørindustri A/S in the proceedings before the two                    principle inasmuch as the appellant did not have any
      Community Courts.                                                          opportunity to state its views on this amended practice.
                                                                           (1) OJ 1999 C 100, p. 19.
Pleas in law and main arguments                                            (2) First Council Regulation implementing Articles 85 and 86 of the
                                                                               Treaty, OJ English Special Edition 1959-1962, p. 87.
Misconstruction of the law, consisting in an endorsement of                (3) Commission Information of January 1998 on Guidelines on the
                                                                               Method of setting Fines imposed pursuant to Article 15(2) of
the Commission’s setting of the fine, by which the Court of                    Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998
First Instance                                                                 C 9, p. 3).
—     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;
                                                                           Appeal brought on 31 May 2002 by (1) Isoplus Fernwär-
—     set aside Regulation No 17 in conjunction with the                   metechnik Vertriebsgesellschaft mbH, (2) Isoplus
      general principle of protection of legitimate expectations           Fernwärmetechnik Gesellschaft mbH and (3) Isoplus
      by applying principles governing the imposition of                   Fernwärmetechnik GmbH against the judgment delivered
      fines (3) which were substantially altered in relation to the        on 20 March 2002 by the Fourth Chamber of the Court
      principles in force at the time of the unlawful conduct              of First Instance of the European Communities in Case
      and when the case was brought: it is not in accordance               T-9/99 between HFB Holding für Fernwärmetechnik
      with the purpose behind the Treaty and Regulation No 17              Beteiligungsgesellschaft mbH & Co. KG, HFB Holding für
      to apply guidelines on the level of fines that are drafted           Fernwärmtechnik Beteiligungsgesellschaft mbH, Verwal-
      in such a way that the intended and mandatory gradation              tungsgesellschaft, Isoplus Fernwärmetechnik Vertriebs-
      has no value or meaning whatsoever for small undertak-               gesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft
      ings. This, in the first place, gives rise to blatant and            mbH und Isoplus Fernwärmetechnik GmbH and the
      unreasonable discrimination against smaller undertakings                       Commission of the European Communities
      and, second, has the result that the intended and manda-
      tory gradation according to, inter alia, degree of guilt and                                 (Case C-202/02 P)
      passage of time no longer serves any purpose and is
      rendered subordinate to a determination calculated in an                                      (2002/C 202/03)
      entirely automatic manner.
      The fact that the Court of First Instance reduced the factor
      for the duration of the infringement without that having             An appeal against the judgment delivered on 20 March 2002
      any significance whatsoever demonstrates that a gra-                 by the Fourth Chamber of the Court of First Instance of the
      dation of the fine imposed on Dansk Rørindustri in line              European Communities in Case T-9/99 between HFB Holding
      with the scope of the infringement did not and cannot                für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG,
      take place if the guidelines are applied schematically               HFB Holding für Fernwärmtechnik Beteiligungsgesellschaft
      without any account whatever being taken of the size of              mbH, Verwaltungsgesellschaft, Isoplus Fernwärmetechnik Ver-
      the undertaking.                                                     triebsgesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft
                                                                           mbH und Isoplus Fernwärmetechnik GmbH and the Com-
      It is grotesque that ABB, as the instigator, had its fine            mission of the European Communities was brought before the
      reduced as a result of cooperation consisting to a large             Court of Justice of the European Communities on 31 May
      extent in implicating the other cartel participants and              2002 by Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH,
      exaggerating their participation, where several of the               Isoplus Fernwärmetechnik Gesellschaft mbH and Isoplus
      other undertakings involved at ABB’s instigation and                 Fernwärmetechnik GmbH, represented by P. Krömer and
      retained in the cartel were forced after the Cartel case to          F. Nusterer, Rechtsanwälte, with an address for service in
      withdraw from the market.                                            Luxembourg.
 ---pagebreak--- 24.8.2002               EN                    Official Journal of the European Communities                                         C 202/3
The appellant claims that the Court should:                              —      Procedural errors:
                                                                                —    In regard to the applications for evidence to be
1.    Set aside the judgment of the Fourth Chamber of the                            taken: the Court of First Instance omitted to hear
      Court of First Instance of the European Communities of                         the evidence of witnesses named by the applicants
      20 March 2002 in Case T-9/99 (application for annul-                           in connection with statements in certain paragraphs
      ment of Commission Decision 1999/60/EC of 21 Octo-                             of the application. In the present case — if the legal
      ber 1998 relating to a proceeding under Article 85 of the                      view is taken that there were no applications in due
      EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated Pipe                         form for the taking of evidence, which is denied, in
      Cartel) (OJ 1999 L 24, p. 1) or, in the alternative,                           the correct exercise of its discretion the Court of
      reduction of the fine imposed on the applicants (appel-                        First Instance was at any rate obliged of its own
      lants) in Articles 2, 3 and 4 of the operative part of the                     motion to hear the witness evidence of the persons
      decision) and annul in its entirety Decision 1999/60/                          named
      EC of 21 October 1998 adopted by the Commission
      (respondent) relating to a proceeding under Article 85 of                 —    The grounds on which the judgment appealed
      the EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated                          against is based contain as to certain points on
      Pipe Cartel) (OJ 1999 L 24, p. 1);                                             findings which conflict with the documents before
                                                                                     the Court.
2.    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               Appeal brought on 3 June 2002 by KE KELIT Kunst-
      Article 85 of the EC Treaty (Case No IV/35.691/E-4: —              stoffwerke Gesellschaft m.b.H against the judgment deliv-
      Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in             ered on 20 March 2002 by the Fourth Chamber of the
      the alternative, reduction of the fine imposed on the              Court of First Instance of the European Communities
      applicants (appellants) in Articles 2, 3 and 4 of the              in Case T-17/99 between KE KELIT Kunststoffwerke
      operative part of the decision) and refer the present case         Gesellschaft m.b.H and the Commission of the European
      back to the Court of First Instance for further proceedings                                   Communities
      and a fresh judgment;                                                                      (Case C-205/02 P)
3.    In the event, set aside the judgment of the Fourth                                          (2002/C 202/04)
      Chamber of the Court of First Instance of the European
      Communities of 20 March 2002 in Case T-9/99 (appli-                An appeal against the judgment delivered on 20 March 2002
      cation for annulment of Commission Decision 1999/60/               by the Fourth Chamber of the Court of First Instance of the
      EC of 21 October 1998 relating to a proceeding under
                                                                         European Communities in Case T-17/99 between KE KELIT
      Article 85 of the EC Treaty (Case No IV/35.691/E-4: —              Kunststoffwerke Gesellschaft m.b.H and the Commission of
      Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in the         the European Communities (1) was brought before the Court
      alternative, for reduction of the fine imposed on the
                                                                         of Justice of the European Communities on 3 June 2002 by
      applicants (appellants) in Article 2 of the operative part         KE KELIT Kunststoffwerke Gesellschaft m.b.H, represented by
      of the decision) and reduce the amount of the fine(s)              Dr Walter Löbl, of Grassner Lenz Thewanger & Partners in
      imposed on the ‘Henss/Isoplus-group’ or the appellants
                                                                         Linz, with an address for service in Luxembourg at the
      in Articles 3(d) and 5(d) of Commission Decision 1999/             Chambers of Linklaters Loesch.
      60/EC of 21 October 1998 relating to a proceeding under
      Article 85 of the EC Treaty (Case No IV/35.691/E-4: —
                                                                         The appellant claims that the Court should:
      Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1);
                                                                         Annul the judgment of the Court of First Instance of the
4.    Order the Commission of the European Communities —                 European Communities of 20 March 2002, served on
      respondent — to pay the costs including the costs of the           26 March 2002, in Case T-17/99 KE KELIT Kunststoffwerke
      appeal proceedings.                                                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,
Pleas and main arguments                                                 reduction of the fine imposed on the applicant in that
                                                                         decision), in so far as it concerns the appellant (applicant);
—     Infringement of Community law: The appellants maintain             in the event,
      their submissions in connection with the objection of
      illegality of the guidelines on the method of setting fines        —      Set aside that judgment and refer the case back to the
      imposed pursuant to Article 15(2) of Regulation No 17,                    Court of First Instance for resumption of proceedings;
      on infringement of the right to be heard in connection             in the event,
      with application of the guidelines, on infringement of
      Article 15(2) of Regulation No 17 and on infringement              —      reduce the fine imposed on KE KELIT Kunststoffwerke
      of Article 81 EC.                                                         Gesellschaft m.b.H,