CELEX: C2002/202/04
Language: en
Date: 2002-08-24 00:00:00
Title: Case C-205/02 P: Appeal brought on 3 June 2002 by KE KELIT Kunststoffwerke Gesellschaft m.b.H 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-17/99 between KE KELIT Kunststoffwerke Gesellschaft m.b.H and the Commission of the European Communities

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,
 ---pagebreak--- C 202/4                 EN                    Official Journal of the European Communities                                       24.8.2002
—     but in any event order the Commission of the European              European Communities in case T-23/99 between LR af 1998
      Communities to pay the costs of the proceedings at first           A/S, formerly Løgstør Rør A/S, and the Commission of the
      instance and on appeal.                                            European Commuinities, was brought before the Court of
                                                                         Justice of the European Communities on 3 June 2002 by LR af
                                                                         1998 A/S, formerly Løgstør Rør A/S, established in Løgstør,
Pleas and main arguments                                                 Denmark, represented by D. Waelbroeck and H. Peytz, lawyers.
—     Infringement of substantive Community law
      —     Infringement of the business principle (equal treat-
            ment and reliance on previous decision-making                The Appellant claims that the Court should:
            practice): the Commission was not entitled to depart
            from its previous decision-making practice and to
            apply the ‘guidelines’ particularly since it promised        —     annul the contested judgment of the Court of First
            the appellant advantages for cooperation (infor-                   Instance of 20 March 2002 in Case T-23/99;
            mation concerning cooperation). By securing coop-
            eration the Commission was bound to existing
            practices in regard to the setting of fines.                 —     annul the Commission’s Decision of 21 October 1998,
                                                                               as modified by a decision of 6 November 1998 in Case
      —     Infringement of the principle of equal treatment and               IV/35.691, District Heating Pipes, fining the Appellant or
            discrimination (in relation to the duration of the                 at the very least substantially reduce the amount of the
            infringement): Whilst, according to the intendment                 fine, or in the alternative refer the case back to the Court
            and wording of the guidelines, fines are to be                     of First Instance for judgment;
            graduated in line with the duration of an infringe-
            ment, the judgment appealed against admits, in the
            appellant’s case, of a clearly greater than linear
            increase even where the reference period of one year         —     declare the Guidelines on the method of setting fines
            has been exceeded only by three months.                            pursuant to Article 15(2) of Regulation 17/62 (2) and
                                                                               Article 65(5) of the ECSC Treaty, (OJ 1998 C 9/3) illegal
      —     Infringement of the prohibition of retroactive effect              pursuant to Article 241 of the EC Treaty; and
            owing to application of the ‘guidelines’ inasmuch as,
            for the purpose of determining the fine, those
            guidelines have regard to overall turnover instead of        —     order the Commission to pay the costs.
            product turnover, as before.
—     Infringement of essential procedural requirements
      —     Infringement of the right to be heard;
      —     Infringement of the duty to provide a statement of           Pleas in law and main arguments
            reasons.
(1) KE KELIT Kunststoffwerke Gesellschaft m.b.H v Commission of
    the European Communities [2002] ECR II-0000.
                                                                         Erroneous appreciation of the criteria for setting the fine
                                                                         (infringement of Article 15(2) of Regulation 17/62 and the
                                                                         principles of proportionality and equal treatment; misapplica-
                                                                         tion or — in the alternative — illegality of the 1998
                                                                         Guidelines): the Court of First Instance cannot claim to have
                                                                         taken sufficiently account of all factors relevant to the fine in
Appeal brought on 3 June 2002 by LR af 1998 A/S,                         upholding the Commission’s calculation of the fine starting
formerly Løgstør Rør A/S, against the judgment delivered                 from a basic amount which, in the case of the Appellant, was
on 20 March 2002 by the Fourth Chamber of the Court                      set so high that adjustments for duration, aggravating, and
of First Instance of the European Communities in case                    mitigating factors, all took place or would have taken place at
T-23/99 (1) between LR af 1998 A/S, formerly Løgstør Rør                 a level high above the maximum limit of the fine (10 % of
 A/S, and the Commission of the European Communities                     world wide turnover) set out in Regulation 17/62. The entire
                                                                         method for calculation of the fine is flawed and represents a
                                                                         wrong interpretation and application of Regulation 17/62.
                         (Case C-206/02 P)
                                                                         The method results in final fines which do not reflect properly
                                                                         the relevant individual factors, and do not even reflect the
                          (2002/C 202/05)                                relative size of the basic amounts chosen by the Commission
                                                                         as adjusted for relevant factors, but instead — in the case of all
                                                                         undertakings in categories 2 and 3 — solely reflect the size
An appeal against the judgment delivered on 20 March 2002                of the undertakings’ world wide group turnover, thereby
by the Fourth Chamber of the Court of First Instance of the              attributing a disproportionate importance to this figure.