CELEX: 62009CC0272
Language: en
Date: 2011-02-10
Title: Opinion of Advocate General Sharpston delivered on 10 February 2011.#KME Germany AG, KME France SAS and KME Italy SpA v European Commission.#Appeal - Competition - Agreements, decisions and concerted practices - Market for copper industrial tubes - Fines - Size of the market, duration of the infringement and cooperation capable of being taken into consideration - Effective judicial remedy.#Case C-272/09 P.

OPINION OF ADVOCATE GENERAL
      Sharpston
      delivered on 10 February 2011 (1)
      
      Case C‑272/09 P
      KME Germany AG, formerly KM Europa Metal AG
      KME France SAS, formerly Tréfimétaux SA
      KME Italy SpA, formerly Europa Metalli SpA
      (Appeal – Competition – Price-fixing and market-sharing cartel – Factors taken into account in fixing fines – Scope of jurisdiction of the General Court – Effective judicial review)1.        Three linked undertakings participated, together with other undertakings, in price-fixing and market-sharing agreements and
         concerted practices on the market for copper industrial tubes, contrary to Article 81 EC (now Article 101 TFEU), and were
         fined by the Commission.
      
      2.        In fixing the fines, the Commission took account of the criteria set out in its own applicable guidelines, together with various
         aggravating and mitigating circumstances.
      
      3.        The three undertakings in question then applied to the General Court (2) for a significant reduction in the fines imposed on them, alleging five specific errors in the determination of the amounts.
      
      4.        Their application was dismissed in its entirety, (3) and they now appeal to the Court of Justice on five grounds, of which the first four correspond to their first four pleas
         in law at first instance. The fifth ground of appeal, however, raises the broader issue of the extent and nature of the review
         which the General Court should carry out when exercising unlimited jurisdiction with regard to financial penalties.
      
       Legal background
       Human and fundamental rights
      5.        Article 6(1) of the European Convention on Human Rights (‘the ECHR’) provides, in particular:
      
      ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a
         fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …’
      
      6.        Article 6(2) and (3) lays down specific additional guarantees for those ‘charged with a criminal offence’, including the presumption
         of innocence and the availability of various resources to ensure their defence.
      
      7.        Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), (4) entitled ‘Right to an effective remedy and to a fair trial’, provides, in particular:
      
      ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before
         a tribunal in compliance with the conditions laid down in this Article.
      
      Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously
         established by law. …’
      
      8.        The explanatory note to that article states, inter alia, that the second paragraph corresponds to Article 6(1) ECHR, subject
         to the proviso:
      
      ‘In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That
         is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Court in Case
         294/83, ‘Les Verts’ v European Parliament (judgment of 23 April 1986, [1986] ECR 1339). Nevertheless, in all respects other than their scope, the guarantees afforded
         by the ECHR apply in a similar way to the Union.’
      
      9.        Article 49 of the Charter is entitled ‘Principles of legality and proportionality of criminal offences and penalties’. With
         regard to penalties, Article 49(3) states: ‘The severity of penalties must not be disproportionate to the criminal offence’.
         According to the explanatory note, that ‘states the general principle of proportionality between penalties and criminal offences
         which is enshrined in the common constitutional traditions of the Member States and in the case-law of the Court of Justice
         …’.
      
      10.      Article 51 of the Charter defines its scope. Article 51(1) provides:
      
      ‘The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle
         of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights,
         observe the principles and promote the application thereof in accordance with their respective powers.’ (5)
      
       Treaty provisions
      11.      Article 81(1) EC (now, after slight amendment, Article 101(1) TFEU), provides:
      
      ‘The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions
         by associations of undertakings and concerted practices which may affect trade between Member States and which have as their
         object or effect the prevention, restriction or distortion of competition within the common market, and in particular those
         which:
      
      (a)      directly or indirectly fix purchase or selling prices or any other trading conditions;
      …
      (c)      share markets or sources of supply;
      …’
      12.      Article 229 EC (now, after slight amendment, Article 261 TFEU), provides:
      
      ‘Regulations adopted jointly by the European Parliament and the Council, and by the Council, pursuant to the provisions of
         this Treaty, may give the Court of Justice unlimited jurisdiction with regard to the penalties provided for in such regulations.’
      
      13.      More generally, Article 230 EC (now, after amendment, Article 263 TFEU) gives the Court of Justice jurisdiction to review
         the legality of acts of the institutions, including the Commission, ‘on grounds of lack of competence, infringement of an
         essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse
         of powers’.
      
      14.      In accordance with Article 225(1) EC (now, after amendment, Article 256(1) TFEU), the General Court has, in principle, jurisdiction
         to hear and determine such proceedings at first instance, subject to a right of appeal to the Court of Justice on points of
         law only.
      
       Competition law enforcement
      15.      Article 15 of Council Regulation No 17, (6) which was applicable at the material time, provided, in particular:
      
      ‘2.      The Commission may by decision impose on undertakings or associations of undertakings fines of from 1 000 to 1 000 000 units
         of account, [(7)] or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings
         participating in the infringement where, either intentionally or negligently: 
      
      (a)       they infringe Article [81(1) EC / 101(1) TFEU]; or
      … 
      In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.
      …
      4.      Decisions taken pursuant to paragraph … 2 shall not be of a criminal law nature.’ (8)
      
      16.      Article 17 of Regulation No 17 provided:
      
      ‘The Court of Justice shall have unlimited jurisdiction within the meaning of Article [229 EC / 261 TFEU] to review decisions
         whereby the Commission has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic
         penalty payment imposed.’ (9)
      
      17.      Also applicable at the material time were the Commission’s 1998 Guidelines on the method of setting fines (‘the Guidelines’). (10) The preamble to those guidelines stated, inter alia:
      
      ‘The principles outlined here should ensure the transparency and impartiality of the Commission’s decisions, in the eyes of
         the undertakings and of the Court of Justice alike, while upholding the discretion which the Commission is granted under the
         relevant legislation to set fines within the limit of 10% of overall turnover. This discretion must, however, follow a coherent
         and non-discriminatory policy which is consistent with the objectives pursued in penalising infringements of the competition
         rules.
      
      The new method of determining the amount of a fine will adhere to the following rules, which start from a basic amount that
         will be increased to take account of aggravating circumstances or reduced to take account of attenuating [(11)] circumstances.’
      
      18.      Section 1 of the Guidelines specified that the basic amount would be determined according to the gravity and duration of the
         infringement, the only criteria referred to in Article 15(2) of Regulation No 17.
      
      19.      As regards gravity, under Section 1 A, account was to be taken of the nature of the infringement, of ‘its actual impact on
         the market, where this can be measured’, and of the size of the relevant geographical market. There were to be three categories:
         minor infringements, serious infringements and very serious infringements, the last including horizontal restrictions such
         as price cartels and market-sharing quotas, attracting ‘likely fines’ of above EUR 20 million. It would also be possible ‘to
         apply differential treatment to undertakings according to the nature of the infringement committed’ and necessary ‘to take
         account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers,
         and to set the fine at a level which ensures that it has a sufficiently deterrent effect’.
      
      20.      As regards duration, under Section 1 B, a distinction was to be drawn between: infringements of short duration (in general,
         less than one year), in which case there would be no increase in the amount of the fine determined for gravity; of medium
         duration (in general, one to five years), involving an increase of up to 50% in that amount; and of long duration (in general,
         more than five years), involving an increase of ‘up to 10% per year’. (12) The amount determined for gravity, plus the amount determined for duration, would together form the basic amount of the fine
         imposed.
      
      21.      Section 2 stated that the basic amount would be increased where there were aggravating circumstances including, inter alia,
         repeated infringements of the same type by the same undertaking or undertakings.
      
      22.      Section 3 stated that the basic amount would be reduced where there were particular attenuating circumstances including, inter
         alia: non-implementation in practice of the offending agreements or practices (second indent); termination of the infringement
         as soon as the Commission intervened (in particular when it carried out checks) (third indent); and effective cooperation
         by the undertaking in the proceedings, outside the scope of the Commission’s 1996 ‘Leniency Notice’ (sixth indent). (13)
      
      23.      The Leniency Notice set out the conditions under which enterprises cooperating with the Commission during its investigation
         into a cartel might be exempted from fines, or might be granted reductions in the fine which would otherwise have been imposed
         upon them.
      
      24.      Point 4 of Section A of the Leniency Notice stated: ‘The Commission considers that it is in the Community interest in granting
         [sic] favourable treatment to enterprises which cooperate with it in the circumstances set out below. The interests of consumers
         and citizens in ensuring that such practices are detected and prohibited outweigh the interest in fining those enterprises
         which cooperate with the Commission, thereby enabling or helping it to detect and prohibit a cartel’. Sections B, C and D
         identify in detail the kind of conduct that will enable an enterprise which has participated in anti-competitive activities
         nevertheless to be treated with leniency. They read as follows:
      
      ‘B.      NON-IMPOSITION OF A FINE OR A VERY SUBSTANTIAL REDUCTION IN ITS AMOUNT
      An enterprise which:
      (a)      informs the Commission about a secret cartel before the Commission has undertaken an investigation, ordered by decision, of
         the enterprises involved, provided that it does not already have sufficient information to establish the existence of the
         alleged cartel;
      
      (b)      is the first to adduce decisive evidence of the cartel’s existence;
      (c)      puts an end to its involvement in the illegal activity no later than the time at which it discloses the cartel;
      (d)      provides the Commission with all the relevant information and all the documents and evidence available to it regarding the
         cartel and maintains continuous and complete cooperation throughout the investigation;
      
      (e)      has not compelled another enterprise to take part in the cartel and has not acted as an instigator or played a determining
         role in the illegal activity,
      
      will benefit from a reduction of at least 75% of the fine or even from total exemption from the fine that would have been
         imposed if they [sic] had not cooperated.
      
      C.      SUBSTANTIAL REDUCTION IN A FINE
      Enterprises which both satisfy the conditions set out in Section B, points (b) to (e), and disclose the secret cartel after
         the Commission has undertaken an investigation ordered by decision on the premises of the parties to the cartel which has
         failed to provide sufficient grounds for initiating the procedure leading to a decision, will benefit from a reduction of
         50% to 75% of the fine.
      
      D.      SIGNIFICANT REDUCTION IN A FINE
      1.      Where an enterprise cooperates without having met all the conditions set out in Sections B or C, it will benefit from a reduction
         of 10% to 50% of the fine that would have been imposed if it had not cooperated.
      
      2.      Such cases may include the following:
      –        before a statement of objections is sent, an enterprise provides the Commission with information, documents or other evidence
         which materially contribute to establishing the existence of the infringement;
      
      –        after receiving a statement of objections, an enterprise informs the Commission that it does not substantially contest the
         facts on which the Commission bases its allegations.’
      
       Imposition and determination of the fines in the present case
      25.      On 16 December 2003, following various investigations, the Commission adopted a decision (14) finding that six undertakings – Wieland Werke AG (‘Wieland’), Outokumpu Oyj, Outokumpu Copper Products OY (collectively,
         ‘Outokumpu’), KM Europa Metal AG (‘KME Germany’), Europa Metalli SpA (‘KME Italy’) and Tréfimétaux SA (‘KME France’) – had
         infringed the provisions of Article 81(1) EC and – from 1 January 1994 – Article 53(1) of the EEA Agreement by participating,
         between 3 May 1988 and 22 March 2001, in a complex of agreements and concerted practices consisting of price fixing and market
         sharing in the industrial tubes sector. KME Germany, KME France and KME Italy (which have since 1995 formed part of the KME
         Group; hereinafter, collectively, ‘KME’) were the applicants at first instance and are the appellants in the present proceedings.
      
      26.      Fines totalling EUR 39.81 million were imposed on KME. (15) The process by which the Commission determined the amounts in question is summarised as follows in paragraphs 11 to 22 of
         the judgment under appeal:
      
      ‘11      Regarding, first, the determination of the starting amount of the fine, the Commission took the view that the infringement,
         which consisted essentially of price fixing and market sharing, was by its very nature a very serious infringement (recital
         294 of the contested decision).
      
      12      In determining the seriousness of the infringement, the Commission also took account of the fact that the cartel had affected
         the whole of the territory of the European Economic Area (EEA) (recital 316 of the contested decision). The Commission further
         examined the actual effects of the infringement, and found that the cartel had “overall had an impact on the market” (recital
         314 of the contested decision). 
      
      13      In reaching that finding, it based its reasoning, inter alia, on the following evidence. First, it looked at the implementation
         of the cartel, with reference to the fact that the participants had communicated sales volumes and price levels (recital 300).
         Secondly, evidence on the file showed that prices fell at times when the collusive agreement was not strictly adhered to,
         and rose sharply in other periods (recital 310). Thirdly, the Commission referred to the collective market share of between
         75 and 85% held by the cartel members (recital 310). Fourthly, the Commission found that the respective market shares of the
         cartel participants remained relatively stable during the whole duration of the infringement, even if the customers of the
         participants had sometimes changed (recital 312).
      
      14      Finally, still in relation to the determination of the seriousness of the infringement, the Commission took into account the
         fact that the market in copper industrial tubes constituted an important industrial sector, with an estimated market value
         in the EEA of EUR 288 million (recital 318). 
      
      15      Having regard to all those circumstances, the Commission concluded that the infringement in question had to be regarded as
         very serious (recital 320).
      
      16      Secondly, the Commission applied differential treatment to the undertakings concerned, in order to take account of the effective
         economic capacity of each of them to cause significant damage to competition. In that regard, the Commission pointed to the
         existence of a difference between the market shares for industrial tubes in the EEA held, on the one hand, by the KME Group,
         market leader in the EEA market with a [confidential]% share, and, on the other, by Outokumpu and Wieland, holding respectively
         a [confidential]% and 13.4% share. Having regard to that difference, the starting amount of the fine imposed on Outokumpu
         and Wieland was fixed at 33% of that for the KME Group, namely EUR 11.55 million for Outokumpu and for Wieland and EUR 35
         million for the KME Group (recitals 327 and 328).
      
      17      Since the KME Group had come into being in 1995, the Commission divided the starting amount of the fine imposed on the group,
         namely EUR 35 million, into two parts[: t]he first for the period from 1988 to 1995 (distinguishing KME Germany from KME France
         and KME Italy) and the second for the period from 1995 to 2001 (regarding the three entities as forming a group). That starting
         amount was therefore allocated as follows: EUR 8.75 million for KME Germany (1988 to 1995); EUR 8.75 million jointly and severally
         for KME Italy and KME France (1988 to 1995) and EUR 17.50 million for the KME Group, namely jointly and severally for KME
         Germany, KME France and KME Italy (1995 to 2001) (recital 329 of the contested decision).
      
      18      Thirdly, in order to take account of the need to fix the fine at a sufficiently deterrent level, the Commission increased
         the starting amount of the fine on Outokumpu by 50%, thereby taking it to EUR 17.33 million, taking the view that the latter’s
         worldwide turnover, of over EUR 5 billion, indicated that it had a size and economic strength warranting that increase (recital
         334).
      
      19      Fourthly, the Commission classified the duration of the infringement, which lasted from 3 May 1988 until 22 March 2001, as
         ‘long’. The Commission therefore considered it appropriate to increase the starting amounts of fines on the undertakings concerned
         by 10% for each year of participation in the cartel. Thus the Commission increased by 55% the starting amount of the fine
         imposed on the KME Group for the period from 1995 to 2001, and by 70% the starting amount of the fines imposed on KME Germany
         of the one part and KME Italy and KME France of the other part for the period from 1988 to 1995. The basic amount of the fines
         was therefore fixed at EUR 56.88 million for the whole of the KME Group (recitals 338, 342 and 347). [(16)]
      
      20      Fifthly, in respect of aggravating circumstances, the basic amount of the fine imposed on Outokumpu was increased by 50% on
         the ground that it was guilty of repeat infringement, having been an addressee of Commission Decision 90/417/ECSC of 18 July
         1990 relating to a proceeding under Article 65 [CS] concerning an agreement and concerted practices engaged in by European
         producers of cold-rolled stainless steel flat products (OJ 1990 L 220, p. 28) (recital 354).
      
      21      Sixthly, in respect of attenuating circumstances, the Commission stated that, without the cooperation of Outokumpu, it would
         have been able to establish the existence of the infringing conduct for a period of only four years, and it therefore reduced
         the basic amount of its fine by EUR 22.22 million, in order that the basic amount correspond to the fine which would have
         been imposed for such a period (recital 386).
      
      22      Seventhly and lastly, in accordance with Section D of the 1996 Leniency Notice, the Commission reduced the amount of the fines
         by 50% for Outokumpu, 20% for Wieland, and 30% for the KME Group (recitals 402, 408 and 423).’
      
       Summary of the judgment under appeal
      27.      KME’s application at first instance was headed: ‘Application pursuant to Articles 225 and 230 EC’. In it, KME asked the General
         Court to:
      
      –        substantially reduce the fine;
      –        order the Commission to pay KME’s legal fees and expenses as well as the costs incurred in providing a bank guarantee in lieu
         of payment of the fine pending judgment by the General Court; and
      
      –        take any other measures that the General Court considered appropriate.
      28.      In support of those claims, KME put forward five pleas in law, all concerning the determination of the amount of the fine:
         (a) failure to take sufficient account of the actual impact of the cartel when calculating the starting amount of the fine,
         (b) inadequate assessment of the size of the relevant market, (c) erroneous increase in the fine by reason of the duration
         of the infringement, (d) failure to take account of attenuating circumstances and (e) misapplication of the Leniency Notice.
         The General Court dismissed all five pleas and, consequently, the action in its entirety.
      
      29.      As regards the first plea (failure to take sufficient account of the actual impact of the cartel), the General Court found
         that the Commission was entitled to differentiate between participants by reference to the market share of each; that cartels,
         in particular price-fixing and customer-sharing, were by their very nature so serious as to merit the severest fines, regardless
         of market impact; and that ‘in any event, and for the sake of completeness’, the Commission had demonstrated to a sufficient
         legal standard that the cartel did have an actual impact on the market concerned.
      
      30.      In the second plea, KME argued that the Commission had wrongly evaluated the size of the copper tube manufacturing market
         from turnover including the cost of the raw material (namely, copper), whereas that cost was determined, and sometimes borne
         directly, by the purchaser; a correct evaluation would have been based on the value added by the manufacturers. The General
         Court found that there was no valid reason to require that the turnover of a relevant market be calculated excluding certain
         production costs and that, despite its approximate nature, turnover was regarded by the legislature, the Commission and the
         Court of Justice as an adequate criterion for assessing the size and economic power of undertakings.
      
      31.      With regard to the third plea (erroneous increase in the fine – of 10% per year – by reason of the duration of the infringement),
         the General Court found that, without confusing the gravity and the duration of the infringement, the Commission had exercised
         its permissible discretion within the confines of the rules which it had imposed on itself in the Guidelines and that the
         increase of 125% for a duration of 12 years and 10 months was not disproportionate.
      
      32.      In the fourth plea, KME submitted that, contrary to its own Guidelines, the Commission failed to take account of certain alleged
         attenuating circumstances: (i) the fact that, while not systematically abstaining from implementing the agreements, KME did
         so in a limited manner; (ii) the fact that KME ended the infringement, immediately and voluntarily, after the checks carried
         out by the Commission; (iii) the economically difficult situation of the industrial tubes sector; and (iv) the fact that KME
         provided evidence which was decisive or completed evidence held by the Commission. The General Court found, respectively,
         that: (i) KME had not adopted any actual competitive conduct and that limited implementation was not a sufficient attenuating
         factor; (ii) a reduction of the fine by reason of the termination of – in particular – an intentional infringement as soon
         as the Commission intervenes is a matter for the Commission’s discretion depending on its appraisal of the circumstances;
         (iii) the Commission is not required to treat the poor financial health of a sector as a mitigating circumstance; and (iv)
         the Commission has a discretion as regards the application of attenuating circumstances, and did not exercise it incorrectly
         by considering that it was Outokumpu and not KME which had provided the important information.
      
      33.      In the fifth plea (insufficient reduction of the fine pursuant to the Leniency Notice), KME alleged that: (i) third parties
         in earlier cases had received more favourable treatment; (ii) the information supplied by KME should have led to a reduction
         of more than 30%; and (iii) the Commission had infringed the principle of equal treatment by granting Outokumpu a 50% reduction.
         The General Court found, respectively, that: (i) the fact that the Commission had in the past granted a certain rate of reduction
         for specific conduct did not require it to grant the same rate for similar conduct in a subsequent procedure; (ii) only an
         obvious error of assessment could be censured, since the Commission enjoyed a wide discretion in assessing the quality and
         usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings,
         and in this case there was no such obvious error; and (iii) that there was no discriminatory treatment because KME and Outokumpu
         were not in comparable situations.
      
       Grounds of appeal
      34.      KME puts forward five grounds of appeal, which may be summarised as follows.
      
      35.      First, in holding that the Commission had demonstrated to a sufficient legal standard that the cartel had an impact on the
         relevant market, a factor to be taken into account in determining the basic amount of KME’s fine, the General Court infringed
         European Union (‘EU’) law and gave an illogical and inadequate statement of reasons for dismissing the first plea in law.
         Furthermore, by upholding the Commission’s conclusion that KME’s econometric evidence did not show that the infringement as
         a whole had no market impact, the General Court manifestly distorted the facts and evidence put before it.
      
      36.      Second, in approving the Commission’s determination of the size of the market affected by the cartel (industrial tubes) by
         including turnover on a separate upstream market (copper), even though the cartel members were not vertically integrated in
         that upstream market, the General Court infringed EU law and gave an inadequate statement of reasons for its rejection of
         KME’s second plea in law.
      
      37.      Third, the General Court infringed EU law and gave an obscure, illogical and inadequate statement of reasons in upholding
         the relevant part of the decision at issue and rejecting KME’s third plea in law, namely that the Commission had misapplied
         the Guidelines and infringed the principles of proportionality and equal treatment by imposing the maximum percentage increase
         to the basic amount of KME’s fine on account of duration.
      
      38.      Fourth, the General Court infringed EU law by rejecting the fourth limb of KME’s fourth plea in law and upholding the relevant
         part of the decision at issue, in which the Commission denied KME the benefit of a fine reduction on account of its cooperation
         outside the scope of the Leniency Notice, in violation both of the Guidelines and of the principles of fairness and equal
         treatment.
      
      39.      Fifth, the General Court violated EU law and the fundamental right to full and effective judicial review by failing to examine
         KME’s arguments thoroughly and closely and by showing a biased deference to the Commission’s discretion.
      
      40.      Of those grounds of appeal, it seems to me that the fifth and last must be examined first, since the view which the Court
         takes on the general question of the scope, degree and nature of the review which must be carried out by the General Court
         in cases of this kind will colour the approach to be taken to the first four grounds of appeal, each of which criticises a
         different specific application of that review.
      
       Fifth ground of appeal: effective judicial review
       Relevant passages of the judgment under appeal
      41.      KME cites the following passages of the judgment under appeal in support of its argument that the General Court ‘deferred
         to an excessive and unreasonable extent to the Commission’s discretion’:
      
      ‘92      ... the seriousness of the infringement is determined by reference to several factors, in respect of which the Commission
         has a discretion …’
      
      ‘103      … It is for the Commission to choose, in the context of its discretion …, the uplift which it intends to apply in respect
         of the duration of the infringement.’
      
      ‘115      The adoption of the Guidelines has not rendered irrelevant the previous case-law under which the Commission enjoys a discretion
         as to whether or not to take account of certain matters when setting the amount of the fines it intends imposing, by reference
         in particular to the circumstances of the case. Thus, in the absence of any binding indication in the Guidelines regarding
         the mitigating circumstances that may be taken into account, it must be concluded that the Commission has retained a degree
         of latitude in making an overall assessment of the extent to which a reduction of fines may be made in respect of mitigating
         circumstances.’
      
      ‘129      … the Commission has a discretion as regards the application of attenuating circumstances …’
      42.      Those passages may be read against the background of the ‘preliminary observation’ made by the General Court in paragraphs
         32 to 37 of the judgment under appeal, although these passages are not specifically alluded to by KME:
      
      ‘32      … it should be noted, first, that, as is apparent from recitals 290 to 387 of the contested decision, the fines which the
         Commission imposed for the infringement were imposed by virtue of Article 15(2) of Regulation No 17, and, secondly, that,
         although the Commission does not expressly refer to the [Guidelines], it is undisputed that it determined the amount of the
         fines by applying the methodology defined in those guidelines.
      
      33      Whilst the Guidelines may not be regarded as rules of law, they nevertheless form rules of practice from which the Commission
         may not depart in an individual case without giving reasons which are compatible with the principle of equal treatment (Case
         C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I‑4429, paragraph 91 and case-law cited).
      
      34      It is therefore for the Court to verify, when reviewing the legality of the fines imposed by the contested decision, whether
         the Commission exercised its discretion in accordance with the method set out in the Guidelines and, should it be found to
         have departed from that method, to verify whether that departure is justified and supported by sufficient legal reasoning.
         In that regard, it should be noted that the Court of Justice has confirmed the validity, first, of the very principle of the
         Guidelines, and, secondly, the method which is there indicated (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P
         and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 252 to 255, 266, 267, 312 and 313).
      
      35      The self-limitation on the Commission’s discretion arising from the adoption of the Guidelines is not incompatible with the
         Commission’s maintaining a substantial margin of discretion. The Guidelines display flexibility in a number of ways, enabling
         the Commission to exercise its discretion in accordance with the provisions of Regulation No 17, as interpreted by the Court
         of Justice (Dansk Rørindustri, paragraph 267).
      
      36      Therefore, in areas where the Commission has maintained a discretion, for example as regards the uplift for duration, review
         of the legality of those assessments is limited to determining the absence of manifest error of assessment (see, to that effect,
         Case T‑241/01 Scandinavian Airlines System v Commission [2005] ECR II‑2917, paragraphs 64 and 79).
      
      37      Nor, in principle, does the discretion enjoyed by the Commission and the limits which it has imposed in that regard prejudge
         the exercise by the Community judicature of its unlimited jurisdiction (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00
         JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 538), which empowers it to annul, increase or reduce the fine imposed by the Commission (see,
         to that effect, Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraphs 60 to 62; Case T‑368/00 General Motors Nederland and Opel Nederland v Commission [2003] ECR II‑4491, paragraph 181).’
      
       Summary of the submissions
       KME’s appeal
      43.      KME complains of the General Court’s failure to carry out a thorough and close examination of its arguments at first instance,
         and of that Court’s ‘excessive deference’ to the Commission’s discretion, upholding a disproportionate fine. That failure,
         in KME’s view, violates the fundamental right to a full, effective and fair judicial review of the decision at issue by an
         impartial and independent tribunal.
      
      44.      EU competition law is shaped by the interplay between the Commission, as investigator, prosecutor and decision-maker, and
         the judicature, providing a measure of external control. However, the case-law has never clarified the exact meaning, scope
         or rationale of the margin of discretion accorded to the Commission, having regard to the institutional balance between the
         two. 
      
      45.      The state of that interplay has been influenced by the evolution of the Commission’s role in enforcing competition policy
         since Regulation No 17 was adopted. In 1962 the EEC comprised six Member States and there was little experience or acceptance
         of European competition law. Notifications were a useful source of information enabling the Commission to exercise a priori
         control and shape its enforcement policy; its role was mainly to educate and to provide legal certainty by issuing formal
         exemption decisions, comfort letters or clearance decisions. Although the Commission already combined investigative, prosecutorial
         and decision-making powers, investigations and prosecutions were relatively rare, and fines typically low. In that context,
         it was reasonable, logical and fair for the Court of Justice to hold in Consten and Grundig (17) that, since the exercise of the Commission’s powers necessarily implied complex evaluations of economic matters, judicial
         review of those evaluations had to take account of their nature by confining itself to an examination of the relevance of
         the facts and of the legal consequences which the Commission deduced therefrom. Moreover, the Commission’s self-restraint
         rendered less crucial the issue of defining clear boundaries to the exercise of its fining powers.
      
      46.      However, it is arbitrary, dangerous and unfair to apply the same ‘judicial deference’ to the Commission’s discretion in the
         context of the current EU competition law enforcement regime, characterised by increasingly large fines having inevitable
         economic and financial impact on companies, shareholders and employees, and leading to de facto ‘criminalisation’ of competition
         law. EU competition rules are directly applicable provisions which leave no room for policy-based discretion in their interpretation
         and application, so that there is scope for only a very limited degree of deference by the Courts when reviewing their application
         by the Commission in a specific case.
      
      47.      Under the current regime introduced by Regulation No 1/2003, Article 101 TFEU as a whole is now applied not only by the Commission,
         but also by national competition authorities and courts. It has never been suggested that a national court applying Article
         101 TFEU in individual cases enjoys a broad margin of discretion, to which deference is owed by the higher court on appeal.
      
      48.      The Commission’s expertise in evaluating complex factual and/or economic matters cannot justify according it a broad margin
         of discretion in the application of EU competition law. Rather, a heightened scrutiny in complex cases is part of the mandate
         of the General Court, which was established in reaction to criticism that the intensity of judicial control then being exercised
         was no longer up to the standards required of a legal regime which had started to encroach significantly on individual rights
         by stringently enforcing the competition rules. Moreover, both the General Court and the Court of Justice have often satisfactorily
         engaged in particularly intense judicial scrutiny of complex cases. The intensity of the General Court’s review does not decrease
         with the complexity of the facts at issue, but depends on its assessment of what kind of scrutiny is required and appropriate
         in the circumstances of each case.
      
      49.      Moreover, the General Court has unlimited jurisdiction with respect to penalties imposed in competition cases. In exercising
         that jurisdiction, it should not accord the Commission any margin of discretion as regards the appropriate and proportionate
         character of a fine or the method used in its calculation – a fortiori given the de facto criminal nature of such fines and
         the ECHR requirement of effective judicial review of any administrative decision imposing a criminal penalty. Therefore, the
         General Court must examine how the Commission appraised the gravity and duration of unlawful conduct in each case and may
         substitute its own assessment by cancelling, reducing or increasing the fine. Full exercise of that unlimited jurisdiction
         entails control not only of the formal legality of the fine but also of its appropriateness, through an independent appraisal
         of the seriousness of the conduct to be sanctioned and of the overall fairness of the sanction in view of all the individual
         circumstances of each case.
      
      50.      The scope of the Commission’s margin of discretion (if any) in cases such as the present must be narrowly defined and the
         degree of judicial deference (if any) to that discretionary assessment must be correspondingly limited. The technical nature
         of a case should not cause the Court to forsake its duty to ensure that the law is observed.
      
      51.      Another issue is whether the review provided for in the EU judicial system is broad and intense enough to ensure the degree
         of protection required by Article 6(1) ECHR. Debate on that issue has become more acute in light not only of the Commission’s
         combination of investigative, prosecutorial and decision-making powers, but also of the ongoing ‘criminalisation’ of EU competition
         law. The European Court of Human Rights has long accepted that administrative law enforcement, including the imposition of
         fines, is not incompatible with Article 6(1) ECHR. However, although such enforcement need not be fully ‘judicialised’ in
         order to meet the requirements of that article, there must be sufficiently strong procedural guarantees, and effective judicial
         control with full jurisdiction to review the administrative decision. The requirements a system of judicial review must meet
         to comply with Article 6(1) ECHR have yet to be fully clarified, but it is uncertain whether the existing system of EU competition
         law enforcement, including judicial review, meets those requirements.
      
      52.      The right to an effective remedy before a tribunal is also enshrined in Article 47 of the Charter. The case-law confirms that
         addressees of Commission decisions imposing fines in competition cases have a right to a fair legal process, and that a breach
         of their right to an impartial tribunal arises if there is no appeal to a court with full jurisdiction within the meaning
         of the ECHR.
      
       Commission’s response
      53.      The Commission submits, first, that the ground of appeal is too general and imprecise to be assessed by the Court (thus not
         meeting the requirements of Article 112(1)(c) of the Rules of Procedure), and is therefore inadmissible; second, that the
         General Court’s judgment was based on its own positive findings, and the ground of appeal is thus unfounded.
      
      54.      With regard to lack of precision, KME puts forward a range of arguments in favour of an intense review of Commission decisions
         by the General Court, but accepts that a system of administrative law enforcement coupled with judicial control with full
         jurisdiction is compatible with Article 6(1) ECHR. It also accepts that the General Court and the Court of Justice are in
         principle capable of carrying out adequate review and have done so in practice. It thus does not contest the fundamental structure
         for judicial review of Commission decisions.
      
      55.      Accordingly, KME should have (a) specified the elements of the judgment in which the General Court failed properly to address
         its submissions, (b) specified the standard by which the quality of that Court’s review should be assessed, and (c) demonstrated
         how, by reference to that standard, the Court failed properly to address KME’s submissions. Instead, it has quoted four passages
         from the judgment referring to the Commission’s discretion, without explaining how they demonstrate the General Court’s failure
         adequately to review the Commission’s decision in the light of KME’s submissions.
      
      56.      Indeed, the standard by which the review of the General Court should be assessed in accordance with Article 6(1) ECHR is unclear,
         even accepting KME’s assertion that EU competition law fines are ‘criminal’ for that purpose. KME avoids any discussion of
         what that might imply for the appropriate standard of review.
      
      57.      The European Court of Human Rights has made it clear that the requirements of Article 6(1) ECHR differ even within the overall
         category of ‘criminal charges’. Since EU law explicitly characterises competition law fines as non-criminal, they would fall
         outside the ‘hard core’ of criminal law identified by the European Court of Human Rights, and the guarantees applicable to
         criminal proceedings would not necessarily apply with full stringency.
      
      58.      In any event, the General Court clearly has ‘full jurisdiction’ for the purposes of Article 6(1) ECHR (not to be confused
         with the EU concept of unlimited jurisdiction to review financial penalties). The European Court of Human Rights has condemned
         as inadequate a judicial remedy against administrative acts that is limited to review of errors of law and which thus does
         not allow the court to correct errors of fact. However, while the court may also need to review proportionality, a limited
         review on certain aspects is not in itself incompatible with the concept of ‘full jurisdiction’ under Article 6(1) ECHR.
      
      59.      As regards the second contention, that the General Court’s judgment was based on its own affirmative findings, the Commission
         submits that, notwithstanding the references made to the Commission’s discretion, the General Court carried out a thorough
         and effective review of the calculation of the fine and reached its own affirmative conclusions that KME’s second, third and
         fourth pleas were unfounded. (18) On those points, the General Court considered and rejected KME’s arguments on their merits, agreeing affirmatively with the
         Commission, and not ‘deferring to its discretion’. Whatever the standard of review implied by Article 6(1) ECHR, the General
         Court met that standard.
      
       Assessment
      60.      KME’s argument is essentially that, by accepting that various assessments in the Commission’s determination of the fines fell
         within the Commission’s discretion and by not seeking, therefore, to make its own assessment in those regards, the General
         Court failed to subject the decision at issue to the scrutiny required by the ECHR and the Charter.
      
      61.      It is therefore important to ascertain what scrutiny is required by those instruments, the most relevant guidance being found
         in the case-law of the European Court of Human Rights.
      
      62.      KME contends that competition law enforcement procedures such as the one in issue, involving a finding that an undertaking
         has engaged in prohibited conduct and the imposition of a fine in respect of that conduct, are clearly of a criminal law nature
         for the purposes of the ECHR. The Commission notes that decisions of the kind in issue are expressly stated not to be ‘of a criminal law nature’ but accepts that, according to the case-law of the European Court of Human Rights, that
         is not a conclusive criterion; if they were to be considered of a criminal law nature for the purposes of that case-law, they
         would in any event fall outside the ‘hard core’ of criminal law identified by that Court. The issue is of importance because
         the European Court of Human Rights has required more stringent procedural guarantees and higher standards of review for criminal
         than for civil proceedings and, within the sphere of criminal law, for ‘hard core’ than for other proceedings.
      
      63.      In deciding whether proceedings concerning misconduct are to be categorised as ‘criminal’ or not, the European Court of Human
         Rights has regard to the three ‘Engel criteria’, so named after the judgment in which they were first formulated. (19) First, there is the formal classification in the legal system concerned, but that is regarded explicitly as ‘no more than
         a starting point’. In Engel, as in subsequent judgments, the European Court of Human Rights accorded significantly more importance – to the extent of
         disregarding the national law classification – to its second and third criteria, namely, the nature of the offence and the
         degree of severity of the penalty that the person concerned risks incurring. It has in that regard considered it relevant
         whether the penalty is imposed under a general rule addressed to all citizens rather than to a group possessing special status
         and whether it is intended essentially as a punishment to deter re-offending rather than as pecuniary compensation for damage. (20)
      
      64.      In the light of those criteria, I have little difficulty in concluding that the procedure whereby a fine is imposed for breach
         of the prohibition on price-fixing and market-sharing agreements in Article 81(1) EC falls under the ‘criminal head’ of Article
         6 ECHR as progressively defined by the European Court of Human Rights. (21) The prohibition and the possibility of imposing a fine are enshrined in primary and secondary legislation of general application;
         the offence involves engaging in conduct which is generally regarded as underhand, to the detriment of the public at large,
         a feature which it shares with criminal offences in general and which entails a clear stigma; (22) a fine of up to (23) 10% of annual turnover is undoubtedly severe, and may even put an undertaking out of business; and the intention is explicitly
         to punish and deter, (24) with no element of compensation for damage.
      
      65.      It is true that, as the Commission has pointed out, in Neste, (25) the European Court of Human Rights considered certain aspects of Russian competition law enforcement to fall outside the
         criminal sphere. However, the factors which it took into account there seem to me largely different from those of the situation
         with which we are concerned here. It stressed that the relevant anti-monopoly rules applied only to relations which influenced
         competition in commodity markets and were thus restricted in application; that they were aimed at protecting and restoring
         competition; and that the measures which could be imposed were not ‘sanctions as such’ but injunctions, together with confiscation
         of unlawful profit intended to provide pecuniary compensation for damage rather than punishment intended to deter re-offending.
      
      66.      Admittedly, in that decision the European Court of Human Rights also stressed that certain types of monopolistic behaviour
         may be authorised if proven to serve the common good (a possibility which is available under Article 85(3) EC, at least in
         theory, even for prohibited price-fixing and market-sharing agreements), whereas genuinely criminal behaviour is not usually
         subject to such utilitarian justification; and that freedom of market competition is a relative, situational value, encroachments
         on which are not inherently wrong in themselves. As regards the first of those considerations, however, I would point out
         – with all due respect to the European Court of Human Rights – that it is not difficult to find undeniably criminal conduct
         which can none the less be authorised in appropriate circumstances. The possession of firearms may be a criminal offence in
         general but authorised in certain situations for public protection; the sale of certain drugs may be a criminal offence in
         general but authorised for established medicinal purposes; and so on. And, as regards the second consideration, price-fixing
         and market-sharing have repercussions for the consumer, and thus for the general public, which go well beyond ‘encroachment
         on freedom of competition’ affecting the business community.
      
      67.      If the fining procedure in the present case thus falls within the criminal sphere for the purposes of the ECHR (and the Charter),
         I would none the less agree that, in the words of the judgment in Jussila, (26) it ‘differ[s] from the hard core of criminal law; consequently, the criminal-head guarantees will not necessarily apply with
         their full stringency’. That implies, in particular, that it may be compatible with Article 6(1) ECHR for criminal penalties
         to be imposed, in the first instance, not by an ‘independent and impartial tribunal established by law’ but by an administrative
         or non-judicial body which does not itself comply with the requirements of that provision, provided that the decision of that
         body is subject to subsequent control by a judicial body that has full jurisdiction and does comply with those requirements. (27) Put another way, it must be clear that the available forms of appeal make it possible to remedy any deficiencies in the proceedings
         at first instance. (28)
      
      68.      A good deal of criticism has been levelled at the Commission’s triple role of investigator, prosecutor and decision-maker
         in competition law enforcement procedures, and KME has cited some of that criticism in its appeal. (29) However, while there may be cogent grounds for taking the view that the Commission is not, in that regard, an ‘independent
         and impartial tribunal established by law’, it seems to me that such considerations are, in reality, extraneous to the present
         appeal. KME’s argument is not in fact based on the inadequacy of the procedure before the Commission, but on what it considers
         to be the inadequacy of the General Court’s review of the outcome of that procedure. The fact that the Commission is an administrative
         body, and may not be able to separate entirely its three functions in the procedure, (30) is a given in the context of this appeal. The issue is whether the General Court exercised ‘full jurisdiction’ within the
         meaning of the case-law of the European Court of Human Rights. (31)
      
      69.      That Court has described ‘full jurisdiction’ in that sense as including ‘the power to quash in all respects, on questions
         of fact and law, the decision of the body below’. A judicial body charged with review ‘must in particular have jurisdiction
         to examine all questions of fact and law relevant to the dispute before it.’ (32) The same Court has also held that, in order to determine whether a second-tier tribunal has ‘full jurisdiction’, or provides
         ‘sufficiency of review’ to remedy a lack of independence at first instance, it is necessary to have regard to such factors
         as ‘the subject-matter of the decision appealed against, the manner in which that decision was arrived at and the content
         of the dispute, including the desired and actual grounds of appeal’. (33)
      
      70.      It seems to me that there can be little doubt that the ‘unlimited jurisdiction’ conferred upon the General Court by Article
         229 EC and Article 17 of Regulation No 17 meets those requirements as regards appeals against the amount of the fine imposed,
         even if it is, as the Commission submits, a different concept from the ‘full jurisdiction’ criterion of the European Court
         of Human Rights, which must be taken to cover also appeals against, for example, the actual finding of an infringement (which
         the General Court can and does also consider – albeit in a restricted way – if that is the basis of the case before it). Here,
         however, we are concerned solely with an appeal against the amount of a fine, and I do not propose to extend my analysis any
         further. In that context, unlimited jurisdiction to cancel, reduce or increase the amount, with no restriction as to the type
         of grounds (of fact or law) on which it can be exercised, must necessarily, in my view, provide the guarantee required by
         Article 6 ECHR – at least in theory.
      
      71.      The question may none the less arise whether, in any particular case, the General Court has in fact adequately exercised that
         jurisdiction, and it is just such a question which KME raises here.
      
      72.      It is a legitimate question, but its consideration must, in my view, be subject to a number of caveats, both general and particular,
         and the way in which it has been raised must be scrutinised in the light of certain of the Commission’s criticisms.
      
      73.      First, I consider that what is of greatest importance is the way in which the General Court actually carried out its review,
         the way in which it described that review being less relevant. Thus, it cannot necessarily be concluded from references to
         the degree of discretion, choice or latitude available to the Commission that the General Court failed in its duty to assess,
         in response to KME’s arguments, the way in which the fine was set. Nor, conversely, can it be concluded from the use of the
         words ‘in the exercise of its unlimited jurisdiction’ that that Court did indeed adequately exercise its powers of assessment.
         Each instance must be examined on the basis of its actual content.
      
      74.      A point which follows from that is that, whatever the extent of its jurisdiction, proceedings before the General Court are
         adversarial in nature. Nothing in Article 6 ECHR or the case-law of the European Court of Human Rights requires the ‘independent
         and impartial tribunal’ to investigate, of its own motion, matters which are not raised before it. Of course, this Court’s
         own case-law requires certain matters of public policy (essentially concerned with procedural guarantees) to be raised in
         that way but, in other regards, the General Court’s exercise of its unlimited jurisdiction must be measured against the content
         of the arguments on which it was asked to adjudicate.
      
      75.      None the less, I note that the General Court did request the Commission to produce a number of documents in its administrative
         file, and that the Commission produced well over 500 pages in response. That at least suggests a thoroughness of review sufficient to satisfy the requirements of the ECHR and the Charter. However, it remains to be verified, from the
         judgment itself, whether that review was of the requisite kind. In other words, was it confined to verifying that the Commission had not exceeded the bounds of its discretion, or was there
         also consideration (when called for by KME) of the assessment made within those bounds?
      
      76.      I turn now to two specific criticisms made by the Commission of the arguments advanced by KME.
      
      77.      A formal point which the Commission raised only at the hearing is that KME’s application at first instance was explicitly
         stated to be pursuant to Article 230 EC, and not Article 229 EC. Consequently, the suggestion appeared to be, KME was not
         even asking the General Court to exercise its unlimited jurisdiction and was therefore not in a position to criticise its
         alleged failure to do so.
      
      78.      As such, that would not seem to me to be a serious suggestion. The reference to Article 230 EC is only in the heading to the
         application. The mere fact that KME sought a reduction in its fine is enough to make it clear that it was on the General Court’s
         unlimited jurisdiction with regard to penalties that it relied, rather than on a review of legality alone. Such a review,
         if favourable to the applicant, could have led only to annulment of the fine, leaving the Commission to impose a new fine
         in accordance with the grounds of the judgment. The application, however, insists throughout on a reduction of the fine, which
         the General Court could decide upon only on the basis of Article 229 EC and Article 17 of Regulation No 17.
      
      79.      On the other hand, it must be borne in mind that KME did not ask that Court specifically to reassess the fine a novo, but rather to adjust the amount in the light of alleged defects in the decision at issue.
      
      80.      The Commission’s second criticism appears more serious. It points out, essentially, that, however well KME may have put the
         general case for an assiduous exercise by the General Court of its unlimited jurisdiction in cases such as the present, it
         has failed to identify a specific standard of review which should have been observed, or the passages of the judgment under
         appeal in which that standard was not observed.
      
      81.      Here, I agree with the Commission. KME’s fifth ground of appeal is presented much more as a general critique of the whole
         EU competition law enforcement system and the role of the General Court within that system than as an identification of specific
         failures, in the judgment under appeal, on the part of that Court. It is, however, settled case-law that an appeal must indicate
         precisely the contested elements of the judgment under appeal and the legal arguments specifically advanced. (34)
      
      82.      Normally, a finding of such a defect in a ground of appeal would lead to its simply being dismissed as inadmissible. It seems
         to me, however, that such an approach might not be wholly appropriate in the present case. It is true that, as a self-standing
         submission, KME’s fifth ground of appeal does not provide the Court with sufficiently precise indications to decide whether
         and to what extent the General Court may have specifically failed to perform an adequate review. None the less, it is an argument
         which can provide a further yardstick by which to assess the remaining grounds of appeal – as the Commission has, in fact,
         treated it in its response, examining it in the context of the second, third and fourth grounds of appeal.
      
      83.      I propose, therefore, to disregard the fifth ground of appeal as a separate submission but to bear the arguments put forward
         in mind when examining the first four grounds of appeal. In doing so, I shall none the less limit myself – as I have indicated
         above – to the ways in which the General Court in fact examined the pleas in law raised before it, the language it used in
         describing that examination being only one indication in that regard.
      
       First ground of appeal: actual impact on the market
       Relevant passages of the judgment under appeal
      84.      In its assessment of KME’s first plea in law (failure to take proper account of the actual impact of the cartel on the market),
         the General Court first admitted as evidence three econometric studies submitted by KME, then made the following findings:
      
      ‘60      … the applicants challenge both the Commission’s assessment of the seriousness of the infringement (see paragraphs 12 and
         13 above) and the differentiated treatment which it carried out on the basis of the market shares of the undertakings concerned
         (see paragraph 16 above). 
      
      61      Concerning, first, the differentiated treatment of the undertakings in question, the reasoning provided by the Commission
         in the contested decision on that subject refers in particular to a concern to take account of the “specific weight and therefore
         the real impact of the offending conduct of each undertaking on competition” (recital 322 of the contested decision). It should,
         however, be emphasised that, even without proof of actual impact of the infringement on the market, the Commission is entitled
         to carry out differentiated treatment, by reference to the shares held in the market concerned, such as that set out in recitals
         326 to 329 of the contested decision. 
      
      62      The case-law shows that the market share of each of the undertakings concerned in the market which formed the subject-matter
         of a restrictive practice constitutes an objective factor which gives a fair measure of the responsibility of each of them
         as regards the potential harmfulness of that practice for the normal operation of competition (see, to that effect, Joined
         Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 197).
      
      63      Similarly, concerning the assessment of the seriousness of the infringement, it should also be noted that, even if the Commission
         had not proved that the cartel had had an actual effect on the market, that would have been irrelevant to the classification
         of the infringement as “very serious” and thus to the amount of the fine. 
      
      64      In that regard, it should be noted that the Community system of penalties for infringement of the competition rules, as established
         by Regulation No 17 and interpreted by the case-law, shows that, by reason of their very nature, cartels merit the severest
         fines. Their possible concrete impact on the market, particularly the question to what extent the restriction of competition
         resulted in a market price higher than would have obtained without the cartel, is not a decisive factor for determining the
         level of fines (see, to that effect, Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraphs 120 and 129; Case C‑219/95 P Ferriere Nord v Commission [1997] ECR I‑4411, paragraph 33; Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraphs 68 to 77; Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraphs 129 and 130; Tokai Carbon, cited in paragraph 62 above, at paragraph 225; Opinion of Advocate General Mischo in Case C‑283/98 P Mo och Domsjö v Commission [2000] ECR I‑9855, I‑9858, points 95 to 101).
      
      65      Moreover, it follows from the Guidelines that agreements or concerted practices involving in particular, as in the present
         case, price-fixing and customer-sharing may be classified as “very serious” on the basis of their nature alone, without it
         being necessary for such conduct to have a particular impact or cover a particular geographic area. That conclusion is supported
         by the fact that, whilst the description of “serious” infringements expressly mentions market impact and effects over extensive
         areas of the common market, the description of “very serious” infringements makes no mention of a requirement that there be
         an impact or that there be effects in a particular geographic area (Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 150).
      
      66      In any event, and for the sake of completeness, the Court considers that the Commission has demonstrated to a sufficient legal
         standard that the cartel did have an actual impact on the market concerned.
      
      67      In that context, it should be emphasised that the applicants’ premiss, to the effect that, if the Commission relied on concrete
         impact of the cartel in determining the amount of the fine, it was under a duty scientifically to demonstrate the existence
         of a tangible economic effect on the market and a link of cause and effect between the impact and the infringement, has been
         rejected by the case-law.
      
      68      The Court of First Instance has held on numerous occasions that actual impact of a cartel on the market must be regarded as
         sufficiently demonstrated if the Commission is able to provide specific and credible evidence indicating with reasonable probability
         that the cartel had an impact on the market (see, in particular, Scandinavian Airlines System, cited in paragraph 36 above, at paragraph 122; Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraphs 159 to 161; Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraphs 153 to 155; Case T‑329/01 Archer Daniels Midland v Commission [2006] ECR II‑3255, paragraphs 176 to 178; Case T‑322/01 Roquette Frères v Commission [2006] ECR II‑3137, paragraphs 73 to 75).
      
      69      It should be noted in that regard that the applicants have not challenged the accuracy of the facts, set out in paragraph
         13 above, on which the Commission relied in concluding that the cartel had an actual impact on the market, namely the fact
         that prices fell during periods when the collusive agreement was not strictly complied with and rose strongly in other periods,
         the implementation of a system for exchanging information concerning sales volumes and price levels, the major share of the
         market held by the cartel participants as a whole, and the fact that the respective market shares of the cartel participants
         remained relatively stable throughout the duration of the infringement. The applicants have merely argued that those facts
         were not capable of demonstrating that the infringement in question had an actual effect on the market.
      
      70      On that point, however, the case-law shows that it is legitimate for the Commission to deduce, on the basis of the indicators
         referred to in the previous paragraph, that the infringement had an actual effect on the market (see, to that effect, Jungbunzlauer, paragraph 159; Roquette Frères, paragraph 78; T‑59/02 Archer Daniels Midland, paragraph 165; T‑329/01 Archer Daniels Midland, paragraph 181; and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraphs 285 to 287).
      
      71      As for the applicants’ argument that the file contains examples of non-compliance with the collusive agreements, the fact
         that cartel members did not always comply with the agreements is not sufficient to exclude their having had a market impact
         (see, to that effect, Groupe Danone, cited in paragraph 65 above, at paragraph 148).
      
      72      Nor can this Court accept the arguments which the applicants make based on their own conduct. The actual conduct which an
         undertaking claims to have adopted is irrelevant for the purposes of evaluating a cartel’s effect on the market; account must
         be taken only of effects resulting from the infringement taken as a whole (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraph 167). Nor can the Commission be blamed for finding, in recital 303 of the contested decision,
         that the initial report was not sufficient to refute the Commission’s conclusions concerning the actual effects of the cartel
         on the market. The econometric analysis contained therein deals only with detailed figures relating to the applicants.
      
      73      Therefore, having regard to the above considerations as a whole, this plea must be dismissed as unfounded.
      74      The Court further considers, in the context of its unlimited jurisdiction and in the light of the above considerations, that
         there is no cause to call into question the assessment of the starting amount of the fine determined by reference to seriousness,
         as carried out by the Commission.’
      
       Summary of the submissions
       KME’s appeal
      85.      KME contests the General Court’s conclusion that the Commission had demonstrated to the required legal standard that the cartel
         had an impact on the market and could take such impact into account in determining the starting amount of the fine. The Guidelines
         required the Commission to take account of three elements, including the ‘actual impact on the market, where this can be measured’.
         Consequently, it could take account of such actual impact only if, and in so far as, it could establish and quantify that
         impact. It should not have been allowed to have recourse – behind the shield of ‘reasonable probability’ established in Roquette Frères (35) – to assumptions enabling it to take market impact into account even where it could not establish the existence or extent
         of such impact in accordance with the Guidelines. Allowing recourse to such assumptions negates any possibility of differentiating
         between infringements on the basis of market impact. The case-law referred to at paragraphs 68 and 70 of the judgment under
         appeal is plainly wrong.
      
      86.      Moreover, if one cartel participant provides econometric evidence that the cartel as a whole did not have any impact on market
         prices, and the other participants make similar claims, the Commission should not be entitled to disregard that evidence to
         find that the infringement had such an impact – and to take that factor into account when setting the starting amount of a
         fine under the Guidelines – on the sole basis of indirect evidence such as that discussed at paragraph 69 of the judgment
         under appeal. In such a scenario the Commission should put forward direct evidence that the cartel did have a market impact.
      
      87.      The econometric evidence submitted by KME was based on comprehensive data drawn from all of its available invoice and customer
         information for over a decade, showing that (i) the cartel had no statistically significant impact on prices charged by KME
         and (ii) that analysis held good for the cartel as a whole. The lack of impact was confirmed by evidence in the case-file
         of non-compliance by the various participants. Finally, the lack of any harm for end users was confirmed by the fact that
         the tubes in question represented only around 2% of the retail price of the final products in which they were incorporated.
      
      88.      As a matter of law, the Commission should have produced direct counter-evidence, based on objective economic factors pertaining
         to the relevant market and economic context, substantiating the existence and extent of the assumed market impact; it was
         not entitled to find that the cartel had a market impact on the sole basis of the indirect evidence relied upon in the decision
         at issue.
      
      89.      The judgment under appeal is also vitiated by an illogical and inadequate statement of reasons. The General Court, assessing
         the merits of KME’s claim that the econometric evidence it provided demonstrated the absence of any market impact, (i) referred
         only to the initial report, according to which the cartel had no impact on KME’s prices, thus (ii) failed to take account
         of the two subsequent reports, concluding that the cartel as a whole had no market impact; and (iii) ultimately rejected KME’s
         claim on the ground that the econometric evidence did not show that the cartel as a whole had no market impact. In other words,
         the General Court, while admitting evidence showing a lack of market impact, rejected KME’s claim on the ground that it did
         not provide any such evidence – thus manifestly distorting the facts and evidence put before it.
      
      90.      Thus, by failing to recognise the errors in law committed by the Commission, the General Court violated EU law. KME therefore
         submits that the Court of Justice should redetermine the starting amount of the fine by excluding the market impact factor
         from the calculation.
      
       Commission’s response
      91.      The Commission contends, first, that the ground of appeal, being directed against inessential complementary reasoning, is
         inoperative.
      
      92.      The finding that the Commission had demonstrated to a sufficient legal standard that the cartel had an actual impact on the
         market was explicitly made purely for the sake of completeness. It is settled case-law that a judgment cannot be set aside
         on the basis of a challenge directed solely against such findings. The General Court held that each of the two elements of
         the decision at issue for which KME claimed the actual impact on the market was relevant were justified whether such impact
         could be established or not. It held, with respect to the differentiated treatment of the participating undertakings, that,
         even without proof of actual impact on the market, the Commission was entitled to differentiate by reference to market shares;
         and, with respect to the seriousness of the infringement, that, even if the Commission had not proved an actual effect on
         the market, that would have been irrelevant to the classification of the infringement as ‘very serious’ and thus to the amount
         of the fine. KME does not even mention either of those key findings of principle, which thus fall outside the scope of the
         appeal. Its criticisms of the additional finding, made for the sake of completeness, cannot result in the judgment under appeal
         being set aside.
      
      93.      Secondly, the Commission submits that the ground of appeal is inadmissible as contesting factual assessments.
      
      94.      KME merely argues that the General Court (i) wrongly found that the Commission was entitled to deduce an actual market impact
         from the evidence listed at paragraph 69 of its judgment; (ii) should have given greater weight at paragraph 71 to evidence
         which KME views as suggesting a lack of impact and non-compliance by cartel members; (iii) should have given greater weight
         at paragraph 72 to the econometric studies which KME views as suggesting no statistically significant impact; and (iv) should
         have required ‘direct evidence’ of the existence and extent of any impact.
      
      95.      However, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence accepted
         by the General Court. It is for the latter alone to assess the value of the evidence, provided that it has been properly obtained
         and the relevant rules and principles have been observed. Unless the clear sense of the evidence has been distorted, that
         appraisal is not subject to review by the Court of Justice.
      
      96.      The evidence of actual impact relied on in the decision at issue, and the conclusions drawn from it, were debated in detail
         before the General Court, which summarised the evidence at paragraph 69 of its judgment, concluding at paragraph 70 that the
         Commission was entitled to deduce that the cartel had had an actual impact, and going on at paragraphs 71 and 72 to reject
         KME’s arguments that other elements undermined that finding.
      
      97.      In addition, besides the fact that KME’s arguments were based only on its own conduct, the econometric studies it produced
         were fundamentally undermined by a number of issues that were fully debated before the General Court. The General Court did
         not need to rule on those issues because it rejected KME’s arguments in any event, but the Commission summarises them as follows.
      
      98.      The studies sought to draw conclusions about the impact of the cartel by comparing admittedly cartelised prices with prices
         in ‘competitive’ periods and/or countries. However, that included many areas for which there was direct evidence of cartel
         conduct. One price agreement involved specific increases for named countries and 8% for ‘any other not mentioned’, suggesting
         that all KME’s sales were cartelised and there were no ‘competitive countries’ available for comparison.
      
      99.      In any event, examination of the statistical calculations indicated that the claimed results were also consistent with the
         cartel having increased prices. KME’s model could not exclude an average increase of 10.5% per year and showed that KME Germany’s
         prices increased by an average of 29.9% per year throughout the cartel. In other respects, the studies produced unusual results
         which KME could not explain.
      
      100. Thus the General Court properly examined the evidence relied on in the decision at issue to establish an actual impact, and
         all of KME’s arguments challenging that conclusion. On the basis of specific, credible and adequate evidence, going substantially
         beyond the fact that price agreements were implemented, the General Court concluded that an actual impact had been established.
      
      101. Thirdly, the Commission submits that the General Court’s findings were adequately reasoned.
      
      102. KME’s argument – that the General Court’s reasoning was illogical and inadequate in finding that KME’s econometric evidence
         did not show that the infringement as a whole had no market impact, referring to the initial report which related only to
         KME’s prices but not mentioning the two additional reports which concerned the cartel as a whole – is based on a misreading
         of paragraph 72 of the judgment. 
      
      103. Before the General Court, KME argued that the studies carried out on its own prices proved that the cartel had no actual market
         impact. However, both the initial study (considered by the Commission in the decision at issue) and the two additional studies
         (presented before the General Court) related to KME’s sales alone. At paragraph 72 of its judgment, the General Court rejected
         KME’s argument in its sovereign appraisal of the facts and evidence, insisting that the conduct of a single undertaking was
         not relevant to assessing the impact of the cartel as a whole. There is no inconsistency in that logic.
      
      104. The importance of examining the effect of the cartel as a whole is clear in the present case. At first instance, the Commission
         stressed that the cartel included customer allocation and a system under which, before customer visits, participants had to
         contact the market leader in each country to ask what quantity could be sold at what price. Data on KME’s prices thus cannot
         justify conclusions about those of other cartel members – for example, where KME did not try to sell to customers because
         of the allocation arrangement. KME suggested that it cheated on the arrangements, but for its econometric studies to be informative
         in that respect, it would have had to prove cheating in relation to every customer allocated to another participant. KME did
         not even attempt to do so before either the Commission or the General Court.
      
      105. The final sentence of paragraph 72 of the judgment under appeal refers only to the initial report because KME argued that
         the decision at issue was wrong to reject the relevance of that report. The additional reports did not exist at the time of
         the decision at issue, and could not have been taken into account. The General Court clearly examined all three econometric
         studies to reach its findings on KME’s arguments based on analysis of its prices. Those arguments were rejected for a reason
         common to all three studies – that they related to KME’s prices alone.
      
       Assessment
      106. The first issue is whether the General Court’s acceptance both of the Commission’s assessment of the infringement as ‘very
         serious’ and of its consequent fixing of the starting amount of the fine can be justified by the nature of the infringement
         (a price-fixing and market-sharing cartel) alone, regardless of proof of actual market impact.
      
      107.  In the decision at issue, the Commission fixed the starting amount on the basis of its findings (a) that the infringement
         was ‘very serious’ because of (i) its nature, (ii) its impact on the market and (iii) the geographical size of that market
         and (b) that KME’s market share was approximately three times greater than that of Outokumpu or of Wieland. It determined
         an overall starting amount of EUR 58.1 million – EUR 35 million for KME and EUR 11.55 million for each of the others.
      
      108. KME argued at first instance that, both in assessing the seriousness of the infringement and in allocating the starting amount
         of the fine among the cartel participants, the Commission had failed to take actual market impact into account; it had reasoned
         simply that the existence of a market impact was established but could not be quantified and that the starting amount could
         validly be allocated on the basis of market share. KME contended, essentially, that the Commission was legally required to
         take actual market impact into account when it could be measured, that in this case it could be measured and that the econometric
         study submitted by KME showed that it was statistically insignificant; the overall starting amount should therefore have been
         set towards the lower end of the appropriate scale (beginning at EUR 20 million for ‘very serious’ infringements).
      
      109. The General Court took the view, at paragraph 63 of its judgment, that, ‘even if the Commission had not proved that the cartel
         had had an actual effect on the market, that would have been irrelevant to the classification of the infringement as “very
         serious” and thus to the amount of the fine’, with additional reasoning to similar effect in paragraphs 64 and 65.
      
      110. Before this Court, KME’s arguments are directed principally at the subsequent findings in paragraphs 66 to 72 of the judgment
         under appeal, in which the General Court found, ‘[i]n any event, and for the sake of completeness,’ that the Commission had
         sufficiently demonstrated the cartel’s actual impact on the market.
      
      111. The Commission submits, therefore, that the ground of appeal is inoperative because KME has not challenged the key finding
         in paragraph 63; even if its arguments concerning actual market impact were upheld, the finding on the ‘very serious’ nature
         of the cartel would stand and the judgment could not be set aside in so far as it dismissed the first plea in law.
      
      112. I can find no fault with that reasoning, but I do not think that the premiss, that KME has not challenged the key finding
         in paragraph 63, can necessarily be accepted.
      
      113. It is certainly true that KME has not challenged the finding that the Commission was entitled to consider the infringement
         to be ‘very serious’ on the basis of its nature alone. Indeed, it points out (albeit in a footnote) that it had not taken
         issue with that point at first instance; it had argued rather that, in the light of the limited actual market impact of the
         cartel, the starting amount of the fine should have been set, overall, at the lower end of the scale for ‘very serious’ infringements
         – namely, according to the Guidelines, EUR 20 million – rather than at EUR 58.1 million. Viewed in that context, it seems
         to me, KME’s first ground of appeal must be seen as necessarily (though not, admittedly, as explicitly as would have been
         desirable) calling into question the General Court’s finding that, because the actual market impact was irrelevant for classifying
         the infringement as ‘very serious’, it was also irrelevant for determining the starting amount of the fine. 
      
      114. I agree, however, that if the findings in paragraphs 63 to 65 of the judgment under appeal are upheld, a challenge to the
         further findings in paragraphs 66 to 72, even if successful, would be to no avail. It is clear from the introductory words
         to paragraph 66 (36) that what followed was over and above what the General Court considered to be sufficient reasoning. Moreover, it is a matter
         of logic that if, ‘by reason of their very nature, cartels merit the severest fines’, regardless of their actual effect on
         market prices, and if the Commission relied on the existence rather than the precise degree of that effect when fixing the
         starting amount of the fine, then that amount cannot be called in question by seeking to prove that the effect was limited.
      
      115. The Commission also argues that this ground of appeal is inadmissible because it challenges only assessments of fact by the
         General Court.
      
      116. Here again, I am not entirely convinced. Several aspects of KME’s argument do appear to be concerned with assessments of fact
         – in particular those set out in paragraphs 18 to 20 and 22 of the appeal, and points 87 and 89 above – but others are legal
         arguments directed at alleged inadequacies in the judgment under appeal (although, again, they could have been more adequately
         formulated). Essentially, KME argues that, faced with disagreement over the conclusions to be drawn from the available evidence,
         the General Court should not simply have allowed the Commission to rely on presumptions derived from ‘evidence indicating
         with reasonable probability that the cartel had an impact on the market’ but should have required it at least to satisfactorily
         rebut KME’s counter-evidence. That argument must be seen, as I have explained at point 113 above, in the context of a challenge
         to the General Court’s finding, not that the actual market impact was irrelevant for classifying the infringement as ‘very
         serious’, but that it was also irrelevant for determining the starting amount of the fine.
      
      117. I would not, therefore, dismiss the first ground of appeal as inoperative, or as inadmissible in that it challenges only findings
         of fact.
      
      118. On the other hand, in so far as it does raise issues of law, I do not propose that it should be upheld. The General Court’s
         statement at paragraph 64 of its judgment, that the possible concrete impact of a cartel on the market is not a decisive factor
         for determining the level of fines, is amply supported by the case-law which it cites. (37) Such impact is merely one of numerous factors – not confined to the three enumerated in the Guidelines – which must be taken
         into account. To the extent that the Commission did, in the decision at issue, establish that there was some impact (a point
         which is not denied by KME), it could use that finding as one of the factors on which to base the calculation of the starting
         amount of the fine. And in so far as, in doing so, the Commission did not presume the degree of impact to be at any specific
         level – on the contrary, it proceeded on the explicit basis that the impact could not be quantified precisely (38) – it cannot be criticised for not having accurately identified that level, nor can the General Court be criticised for having
         accepted the Commission’s approach.
      
      119. I should like to add that, if undertakings choose to submit econometric studies to support their arguments, the Commission
         is of course required to have due regard to that evidence in its overall assessment. If, however, it does not accept the evidence
         in its entirety, it is not required to produce an econometric counter-study to prove the opposite.
      
      120. It remains to be considered, as I indicated at point 83 above, whether the General Court’s scrutiny of the plea in law may
         have failed to meet the standard required by the ECHR and the Charter.
      
      121. In that regard, I note that KME does not appear to allege any such failure. None of the passages cited in the context of its
         fifth ground of appeal is taken from the relevant part of the General Court’s judgment. Nor, indeed, does that part of the
         judgment use the type of wording to which KME particularly objects, namely a reference to the Commission’s discretion.
      
      122. It seems to me, moreover, that the General Court dealt with the first plea in law in accordance with the manner in which it
         was raised by KME.
      
      123. KME’s argument was based essentially on the contention that the Commission was bound, by the terms of its own Guidelines,
         either to measure the cartel’s actual impact on the market and rely on that measurement or to refrain from relying on market
         impact at all. The General Court dealt with that argument, and also – although it considered it superfluous to do so – examined
         both the evidence available to the Commission and the subsequent econometric reports submitted by KME, concluding that the
         Commission’s reference to and use of market impact when fixing the starting amount of the fine could not be criticised. Thus,
         even if other matters could have been raised – concerning, for example, the possible need to explain why the overall starting
         amount was EUR 58.1 million, rather than EUR 20 million or EUR 100 million – they were not, and the General Court addressed
         the matters which were raised in a manner which in no way suggests that it was not exercising its full jurisdiction as required
         by the ECHR.
      
       Second ground of appeal: size of the market
       Relevant passages of the judgment under appeal
      124. In the decision at issue, the Commission had calculated the size of the relevant market by including the cost of the copper
         used in manufacturing the tubes. KME argued at first instance that such a calculation ignored the reality of the market. In
         fact, the purchasers of the tubes themselves determine the price of the copper to be used and that price, accounting for about
         two thirds of the final price of the tubes, is merely passed on to them. The real economic weight of the market was confined
         to the processing margin, about one third of the value of EUR 288 million used in the decision at issue.
      
      125. At paragraphs 86 to 89 of its judgment, the General Court noted that the Commission was entitled, but not required, to refer
         to the size of the market when determining the gravity of the infringement for the purpose of fixing the starting amount of
         the fine; that in this case it had done so, albeit as only one of the factors taken into account; and that it was therefore
         necessary to consider whether the Commission was wrong to take account of the copper price in that regard. The General Court’s
         conclusion is in paragraphs 91 to 94:
      
      ‘91      … there is no valid reason to require that the turnover of a relevant market be calculated excluding certain production costs.
         As the Commission has rightly pointed out, there are in all industries costs inherent in the final product which the manufacturer
         cannot control but which nevertheless constitute an essential element of its business as a whole and which, therefore, cannot
         be excluded from its turnover when fixing the starting amount of the fine (see, to that effect, Joined Cases T‑25/95, T‑26/95,
         T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95,
         T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraphs 5030 and 5031). The fact that the price of copper constitutes an important part of the final
         price of industrial tubes or that the risk of fluctuations of copper prices is far higher than for other raw materials does
         not invalidate that conclusion.
      
      92      … regarding the applicants’ various claims seeking to argue that, instead of using the criterion of the turnover of the relevant
         market, it would be more appropriate, having regard to the deterrent purpose of fines and the principle of equal treatment,
         to fix their amount by reference to the profitability of the sector affected or the added value relating thereto, the Court
         finds that they are irrelevant. First, the seriousness of the infringement is determined by reference to several factors,
         in respect of which the Commission has a discretion (Joined Cases T‑101/05 and T‑111/05 BASF v Commission [2007] ECR II‑4949, paragraph 65), no binding or exhaustive list of criteria having to be taken into account in that regard
         having been drawn up (Dalmine, cited in paragraph 64 above, at paragraph 129), it is not for the Community Court but for the Commission to choose, within
         the framework of its discretion and in accordance with the limits which follow from the equal treatment principle and Regulation
         No 17, the factors and the detailed figures which it will take into account in order to implement a policy which ensures compliance
         with the prohibitions laid down by Article 81 EC.
      
      93      It is undeniable that, as a factor for assessing the seriousness of the infringement, the turnover of an undertaking [or]
         of a market is necessarily vague and imperfect. It does not make a distinction either between sectors with a high added value
         and those with a low added value, or between undertakings which are profitable and those which are less so. However, despite
         its approximate nature, turnover is currently considered, by the Community legislature, the Commission and the Court, as an
         adequate criterion, in the context of competition law, for assessing the size and economic power of the undertakings concerned
         (see, in particular, Musique diffusion française, cited in paragraph 64 above, at paragraph 121; Article 15(2) of Regulation No 17; recital 10 and Articles 14 and 15 of Council
         Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1)).
      
      94      Having regard to all of the above, the Court finds that the Commission was right to take the copper price into account for
         the purposes of determining the size of the market concerned.’
      
       Summary of the submissions
       KME’s appeal
      126. KME considers that its account of the characteristics of the relevant market, not having been contested in the judgment under
         appeal, must be regarded as established facts for the purposes of the appeal. It submits however that the General Court erred
         in law and gave an inadequate statement of reasons by not acknowledging that the Commission is entitled to interpret ‘turnover’
         as net turnover when calculating market value.
      
      127. First, the case-law and the Commission’s practice show that, in calculating the starting amount of a fine, the Commission
         must take account of the specific features of the market or undertaking concerned. The Courts have held that it may depart
         from its general practice of basing its calculation on turnover during the last full year of the infringement, if that year
         is not representative of the undertaking’s true size and economic power and of the scale of the infringement. With respect
         to the calculation of the maximum fine, the Court of Justice has held that, in each specific case, and having regard both
         to the context and to the objectives of the scheme of fines, the Commission must assess the intended impact on the undertaking
         in question, taking account in particular of a turnover which reflects the undertaking’s real economic situation during the
         infringement. In recent practice, the Commission has often relied on the possibility in the Guidelines of departing from the
         rule of using sales during the last full business year of participation in the infringement where such departure is warranted
         by the specific facts of the case or other external factors. And the General Court has held that the Commission may base its
         assessment of effective economic capacity to cause significant damage on data relating to turnover and market share, unless
         particular circumstances, such as the characteristics of the market, appreciably diminish the significance of such data and
         require other factors to be taken into account.
      
      128. Secondly, the fact that the copper price depends solely on the customer’s decision to buy on a certain day makes the copper
         tube industry unique and unsuitable for comparison with other industries, just as copper cannot be compared with other inputs
         – such as energy, water and equipment – whose prices are contractually determined between the manufacturer and the relevant
         provider. Yet the General Court wrongly concluded that there was no valid reason to exclude copper price from the size of
         the market affected by a cartel for fine calculation purposes. In doing so, it also infringed the principles of non-discrimination
         – under which different situations must be treated differently – and proportionality. In the latter regard, KME’s fine represented
         approximately 2% of its total worldwide turnover in 2002, 40% of its EEA turnover in the industrial tube market on the basis
         of the full price including copper, 80% of its conversion turnover in that market, 42% of its consolidated gross operating
         profit in 2003 and 16% of its consolidated net worth in June 2003.
      
      129. Thirdly, if the Commission had fined KME for a cartel in the same market, ceasing in 2007, and had calculated the market value
         on the basis of full turnover for that year, the starting amount of the fine would have been much higher simply because of
         the enormous increase in copper prices between 2003 and 2007.
      
      130. Fourthly, the General Court wrongly relied upon its Cimenteries CBR judgment: (39) in that case, the relevant input costs, such as costs for transport and the supply of bags, were under the cartel members’
         control, whereas here the copper price was not under the tube manufacturers’ control. It further wrongly relied on the case-law
         according the Commission discretion in choosing the factors it uses to establish the gravity of an infringement including,
         as a general rule, turnover, since full-price turnover is not a meaningful indicator of the gravity of an infringement in
         the industrial tube market. The Commission’s discretion in choosing those factors cannot extend to relying on elements that,
         in the light of the special features of the economic context, have no bearing on the gravity of the infringement. In its judgment
         the General Court failed to scrutinise whether the criteria used by the Commission were pertinent and adequate.
      
       Commission’s response
      131. The Commission submits that KME’s assertions about how copper prices are determined and the way in which industrial tubes
         are sold are not established facts for the purpose of the appeal. The General Court did not need to rule on those details.
         Its findings do not support KME’s characterisation of the cartel members as purchasing agents of the metal and the Commission
         specifically argued at first instance that, for the reasons ultimately adopted in the judgment under appeal, KME’s assertions
         that it often acted as agent for its customers were irrelevant. As the Commission explained, wherever the customer actually
         bought the copper and asked KME to convert it, the metal price would not be included in KME’s turnover. In any event, the
         General Court’s findings on the size of the industrial tubes market are incompatible with the suggestion that industrial tube
         manufacturers simultaneously made sales on a competitive copper market and a cartelised conversion market; there is only one
         market – for industrial tubes.
      
      132. The General Court rejected KME’s claim that the industrial tubes market is unique by reason of a lack of control over input
         prices, without needing to make findings on KME’s detailed allegations. It held at paragraph 91 of its judgment that there
         was no valid reason to require market turnover to exclude certain production costs, and found as a fact that all industries
         have costs inherent in the final product which the manufacturer cannot control but which are nevertheless an essential element
         of its business as a whole. Those costs cannot be excluded from turnover when fixing the starting amount of a fine. The fact
         that the price of copper forms an important part of the final price of industrial tubes or that the risk of fluctuation in
         copper prices is higher than for other raw materials does not invalidate that conclusion.
      
      133. This ground of appeal merely asks the Court of Justice to make a different appraisal of whether the industrial tubes industry
         is unique. KME repeats its allegations at first instance about the contractual rights of customers in relation to the copper
         price, the size of the copper price relative to the overall price of the tube, and the volatility of copper prices. Not only
         is such an argument inadmissible, but nothing in fact distinguishes industrial tube manufacturers from other manufacturers
         buying raw materials, utilities or equipment. No non-dominant undertaking can control the price of input products. Any contracts
         are the result of the manufacturers’ own choice – with here the benefit of passing the risk of copper price fluctuations on
         to the customer.
      
      134. At paragraph 93, the General Court recognised that, as a factor for assessing the seriousness of the infringement, the turnover
         of an undertaking on a market is necessarily vague and imperfect. It accepted that turnover does not distinguish between sectors
         with high or low added value or between undertakings which are more or less profitable. Its appraisal was none the less that
         turnover is an adequate criterion, in the context of competition law, for assessing the size and economic power of the undertakings
         concerned. KME’s arguments, by contrast, merely invite the Court of Justice to disagree with the General Court’s appraisal
         in this respect. That appraisal was balanced, after much debate in the written pleadings and at the hearing, and preferred
         the objectivity of turnover to the potential for endless controversy, subjectivity and unpredictability that would be implied
         by KME’s proposal for the deduction of costs that cartelists do not control.
      
      135. The General Court’s appraisal was correct. In particular, the Court of Justice should resist KME’s suggestion that it should
         reassess the fine on the basis of figures relating to either 2002 or 2003. Such arguments have their place only before the
         General Court.
      
      136. As regards the adequacy of the General Court’s scrutiny, the Commission notes that (in the context of its fifth ground of
         appeal, but with reference to the treatment of its second plea in law at first instance) KME cites paragraph 92 of the judgment
         under appeal, in which the General Court referred to the Commission’s discretion. However, at paragraph 91, that Court found
         affirmatively that ‘there is no valid reason to require that the turnover of a relevant market be calculated excluding production
         costs’, that ‘there are in all industries costs inherent in the final product which the manufacturer cannot control but which
         nevertheless constitute an essential element of its business as a whole and which therefore, cannot be excluded from its turnover
         when fixing the starting amount of the fine’, and that ‘[t]he fact that the price of copper constitutes an important part
         of the final price of industrial tubes or that the risk of fluctuations of copper prices is far higher than for other raw
         materials does not invalidate that conclusion’. At paragraph 93, it affirmatively concluded that ‘despite its approximate
         nature, turnover is currently considered, by the Community legislature, the Commission and the Court [of Justice], as an adequate
         criterion, in the context of competition law, for assessing the size and economic power of the undertakings concerned’. Finally,
         at paragraph 94, the General Court stated: ‘Having regard to all of the above, the Court finds that the Commission was right
         ...’.
      
       Assessment
      137. The underlying issue here is whether, when using market size (that is to say, volume of sales rather than geographical extent)
         as one of the criteria by which it assesses the gravity of an infringement, the Commission should refer in every case to full
         prices or whether it may refer only to that part of the price on which the offenders could exercise an influence.
      
      138. KME’s submission is not that market size should never be taken into account, nor that it is always wrong to refer to full
         prices, but that the copper tubes market has specific features which make it wrong to do so in this case. It therefore considers
         that the General Court erred in law and gave an inadequate statement of reasons in finding that gross turnover was a valid
         yardstick of market size.
      
      139. The Commission is in my view right to argue that KME is to a considerable extent asking this Court to make findings of fact
         as to the characteristics of the market, which it is not competent to do in an appeal. The General Court found as facts only
         that ‘the price of copper constitutes an important part of the final price of industrial tubes’ and ‘the risk of fluctuations
         of copper prices is far higher than for other raw materials’. KME has not alleged that, in so finding, that Court distorted
         the clear sense of the evidence. It is therefore on that factual basis that it must be assessed whether the General Court
         erred in law or gave inadequate reasoning.
      
      140. The General Court made, essentially, four findings to underpin its conclusion in law: the size of any market, measured in
         terms of volume of sales, will include some costs which manufacturers cannot control; the features of the industrial copper
         tubes market are not exceptional in that regard; the Commission has a certain freedom to choose the factors which it takes
         into account; and gross turnover is an accepted, albeit imperfect, guide to the size and economic power of undertakings.
      
      141. I can find no shortcomings in that reasoning. It is true that the Cimenteries CBR case, to which the General Court referred, involved ancillary costs which were no doubt less significant than the price of
         copper in the present case, but the difference in degree does not preclude a development of the existing case-law to cover
         more significant costs. It seems, moreover, inevitable that the proportion of turnover accounted for by raw materials will
         vary significantly from one sector to another. If it were permissible to take gross turnover into account in some cases but
         not permissible to do so in others, it would be necessary to establish some threshold, probably in the form of a ratio between
         net and gross turnover, which would trigger the difference in treatment. Yet such a threshold would be very difficult to apply
         and would give scope for endless and insoluble disputes, including allegations of unequal treatment. It must be remembered,
         moreover, that no direct, mathematical link between the size of the market and the overall starting amount of the fines is
         apparent from the decision at issue, and the General Court itself found that market size was only one of the factors used
         by the Commission. In those circumstances, it does not seem unreasonable to accept that the Commission can rely on an ‘approximate’
         – but readily usable – yardstick to measure market size, as one of a combination of criteria used to determine the gravity
         of an infringement. In any event, KME has put forward no adequate reason for concluding that the General Court erred in law in reaching the view that the Commission could do so.
      
      142. I turn now to the question whether the General Court’s scrutiny of the second plea at first instance was adequate in the light
         of the case-law of the European Court of Human Rights.
      
      143. First of all, it is true that the General Court stated, in its reasoning, that ‘the seriousness of the infringement is determined
         by reference to several factors, in respect of which the Commission has a discretion’ and that ‘it is not for the Community
         Court but for the Commission to choose, within the framework of its discretion … the factors and the detailed figures which
         it will take into account’. KME has relied on at least the first of those passages to allege, in the context of its fifth
         ground of appeal, that the General Court showed ‘excessive deference’ to the Commission’s discretion.
      
      144. However, it is clear from the second ground of appeal, in which KME asserts that ‘the Commission’s discretion in choosing
         the factors to use to determine the gravity of a cartel cannot extend to the point of relying on elements that, in light of
         the special features of the economic context, do not have any bearing on the gravity of the infringement’, that KME in fact
         accepts the existence of that discretion, merely disagreeing with the General Court as to its extent. That, it seems to me,
         cannot form an adequate basis on which to claim that the General Court failed to exercise full jurisdiction in reviewing the
         decision at issue.
      
      145. It is also true that the General Court’s relevant findings, in paragraphs 91 to 93 of its judgment, are brief. That does not
         necessarily imply, however, that they reflect a failure to examine the arguments carefully. On the contrary, it is clear from
         the lengthy exposition of KME’s arguments (paragraphs 75 to 82), and from the dismissal (at paragraph 88) of the Commission’s
         argument that the size of the market was of no relevance to the amount of the fine, that the second plea in law was carefully
         scrutinised. The General Court’s findings are fully consistent with the conclusion that it reached its own view on the appropriateness
         of including copper prices when assessing market size for the purpose of determining the gravity of the infringement, and
         KME has not, in my view, put forward any convincing argument to call such a conclusion into question.
      
       Third ground of appeal: percentage increase on account of duration
       Relevant passages of the judgment under appeal
      146. At first instance, KME argued in its third plea that, if the Guidelines allow an increase of up to 10% per year (thus, between 0% and 10%) on account of the duration of the infringement, the Commission should have adjusted
         that increase to take account of the variable intensity of the cartel throughout its duration and its lack of impact on prices,
         rather than applying a flat-rate increase of the maximum of ‘10% for every year of the duration, i.e. by a total of 125%’.
         The General Court dismissed that plea as unfounded. It found, at paragraphs 100 to 104 of the judgment under appeal, that:
      
      ‘100      … an increase in the amount of the fine by reference to duration is not limited to the hypothesis in which there is a direct
         relation between the duration and [increased (40)] damage to the Community objectives pursued by the competition rules (see, to that effect, Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 278 and case-law cited).
      
      101      It is, moreover, clear from the Guidelines that the Commission has not established any overlap or interdependence between
         assessment of the gravity and that of the duration of the infringement.
      
      102      On the contrary, first, it is clear from the general system of the Guidelines that they prescribe assessment of the seriousness
         of the infringement as such for the purposes of fixing a general starting amount for the fine. Secondly, the seriousness of
         the infringement is analysed in relation to the characteristics of the undertaking concerned, notably its size and its position
         in the relevant market, which may give rise to a weighting of the starting amount, the allocation of the undertakings into
         categories and the fixing of a specific starting amount. Thirdly, the duration of the infringement is taken into account for
         fixing the basic amount, and, fourthly, the Guidelines require consideration to be taken of aggravating and attenuating circumstances
         allowing the amount of the fine to be adjusted, notably by reference to the active or passive role of the undertakings concerned
         in the implementation of the infringement.
      
      103      It follows that the mere fact that the Commission reserved for itself the possibility of increasing the fine per year of infringement,
         going in the case of long-lasting infringements up to 10% of the amount adopted for the seriousness of the infringement, does
         not in any way oblige it to fix that uplift by reference to the intensity of the activities of the cartel or its effects,
         or of the seriousness of the infringement. It is for the Commission to choose, in the context of its discretion (see paragraph
         36 above), the uplift which it intends to apply in respect of the duration of the infringement.
      
      104      In this case the Commission stated, notably in recitals 335 and 340 of the contested decision, that the KME Group had participated
         in the infringement for a period of 12 years and 10 months, namely a long duration for the purposes of the Guidelines, and
         therefore increased the fine by 125%. In so doing, the Commission did not depart from the rules which it imposed upon itself
         in the Guidelines. Moreover, the Court considers that, in the present case, that increase of 125% is not obviously disproportionate.’
      
       Summary of the submissions
       KME’s appeal
      147. KME submits that the General Court’s reasoning is obscure, illogical and inadequate, as it lays down no clear rule.
      
      148. The interpretation and application of Section 1 B of the Guidelines have often been discussed in the case-law – which, however,
         fails to articulate the criteria on the basis of which, for an infringement of over 5 years, the Commission must adjust the
         starting amount of the fine within a range of 0% to 10% per year of infringement. It seems merely to say that an increase
         on account of duration is not limited to cases showing a direct relationship between the duration and more serious damage
         to the Community objectives pursued by the competition rules – in other words, the starting amount can be increased on account
         of duration even where damage to the objectives pursued by the competition rules, is not aggravated as a direct effect of
         this factor, or is missing altogether. That approach must be wrong.
      
      149. First, it contradicts the clear language of Section 1 B, which speaks of imposing effective sanctions on restrictions ‘which
         have had a harmful impact on consumers over a long period’. The Commission itself thus established the requirement of a direct
         link between duration and harmful effect, the existence of which has long been recognised in the case-law. The General Court
         has held that, where the Commission determines the starting amount according to gravity having regard to actual market impact,
         that impact must be ‘fully demonstrated throughout the period of the cartel’, failing which the starting amount must be reduced. (41)
      
      150. Secondly, by stating that the Commission has not established any overlap or interdependence between assessment of the gravity
         and that of the duration of the infringement in the Guidelines, the General Court accepted the Commission’s argument that
         the amount of the increase on account of duration reflects only the duration of the infringement, not its gravity, so that
         any relevant factors concerning the intensity of the infringement are already taken into account when its gravity is assessed.
         However, the General Court failed to enquire whether the Commission, in assessing gravity, did give proper weight to the fact
         that the cartel varied in intensity and effectiveness over time and that there were significant periods of tension and deviation.
         Instead of accepting the Commission’s statement that it wished to avoid counting the same factors twice to the cartel members’
         benefit, the General Court should have scrutinised whether that was really the case in the decision at issue. In fact the
         Commission twice failed to take account of the variations in intensity, including two periods of dormancy: once when determining
         the starting amount on account of gravity and again when determining the increase on account of duration. 
      
      151. Thirdly, the General Court was logically wrong in concluding that the 10% per year increase was consistent with the principles
         set out in the Guidelines, simply because the Guidelines provide for an increase of up to 10% per year. That would have been
         correct if they had envisaged an increase of (rather than up to) 10%. However, the Commission’s discretion to fix sanctions between a maximum and a minimum value is not unfettered, so that
         it must explain its choice by reference to the features of each case, subject to review by the Courts. Application of the
         maximum increase should not have been approved by the General Court without assessing first how the Commission exercised its
         discretion.
      
      152. Finally, the General Court was also wrong in finding the increase of 125% in the starting amount not to be manifestly disproportionate.
         The Commission admitted in the decision at issue that the cartel varied in intensity and effectiveness and that there were
         significant periods of tension and deviation, yet applied the maximum increase on account of duration. KME would thus have
         been treated in the same way even if the cartel had maintained full intensity and effectiveness throughout. By failing to
         recognise and give weight to that reality, and to correct the Commission’s determination of the increase, the General Court
         violated the principles of proportionality and equal treatment.
      
      153. KME therefore considers that the judgment under appeal should be set aside in that regard and that the Court of Justice should
         exercise its unlimited jurisdiction to fix an appropriate lower percentage increase on account of duration, redetermining
         the starting amount, and thus the total amount, of the fine.
      
       Commission’s response
      154. The Commission contends that the General Court determined that it was not obliged to fix the increase on account of duration
         by reference to the intensity or effects of the cartel, or the seriousness of the infringement. KME’s ground of appeal merely
         disagrees with that appraisal and asks the Court of Justice to substitute its own appraisal; it is thus inadmissible.
      
      155. The General Court provided a clear and logical explanation for its appraisal, which responded to all KME’s legal arguments.
         It held that an increase on account of duration is not limited to cases in which there is a direct relation between the duration
         and increased damage to the Community objectives pursued by the competition rules. It then explained that the Guidelines do
         not establish any overlap or interdependence between the assessments of gravity and of duration. Rather, they establish four
         distinct steps. The Commission must:
      
      (a)      assess the seriousness of the infringement as such in order to fix the starting amount;
      (b)      analyse the seriousness of the infringement in relation to the characteristics of each undertaking, which may give rise to
         a weighting of the starting amount;
      
      (c)      take account of the duration of the infringement for fixing the basic amount; and
      (d)      consider aggravating and attenuating circumstances allowing the fine to be adjusted.
      156. Thus the seriousness of the infringement or the intensity or effects of the cartel are not necessarily part of the uplift
         for duration in the third step. Since KME’s arguments that the uplift should have been lower than 10% per year were based
         entirely on those elements, they were unfounded. None the less, the General Court judged that the resulting 125% increase
         was not obviously disproportionate.
      
      157. KME now argues that that appraisal was unfair and that the Court of Justice should substitute its own appraisal. However,
         ‘... in an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the [General Court]
         took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct
         ... and, second, to consider whether the [General Court] responded to a sufficient legal standard to all the arguments raised
         by the appellant with a view to having the fine cancelled or reduced ... Concerning the allegedly disproportionate nature
         of the fine, … it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute,
         on grounds of fairness, its own assessment for that of the [General Court] exercising its unlimited jurisdiction to rule on
         the amount of fines imposed on undertakings for infringements of [EU] law’. (42)
      
      158. KME’s third ground of appeal is therefore inadmissible. Moreover, for the reasons given by the General Court, it is unfounded.
         
      
      159. As regards the adequacy of the General Court’s scrutiny, the Commission notes that (in the context of its fifth ground of
         appeal, but with reference to the treatment of its third plea in law at first instance) KME cites paragraph 103 of the judgment,
         in which the General Court refers, in the context of the Guidelines, to the Commission’s discretion regarding the uplift to
         apply in respect of the duration of an infringement. However, at paragraph 100, the General Court had already made the affirmative
         finding of principle that ‘an increase in the amount of the fine by reference to duration is not limited to the hypothesis
         in which there is a direct relation between the duration and [increased (43)] damage to the Community objectives pursued by the competition rules’. With respect to KME’s argument that the Commission
         had limited itself in this respect by adopting the Guidelines, in paragraph 102 the General Court explained the system of
         those Guidelines and, in paragraph 103, it made the affirmative conclusion that ‘[i]t follows that the mere fact that the
         Commission reserved for itself the possibility of increasing the fine per year of infringement, going in the case of long-lasting
         infringements up to 10% of the amount adopted for the seriousness of the infringement, does not in any way oblige it to fix
         that uplift by reference to the intensity of the activities of the cartel or its effects, or of the seriousness of the infringement.
         It is for the Commission to choose, in the context of its discretion … the uplift which it intends to apply in respect of
         the duration of the infringement’. Thus the General Court considered KME’s argument that the Commission had bound itself in
         a particular way by adopting the Guidelines and affirmatively concluded that it had not.
      
       Assessment
      160. An unexpected feature of the present ground of appeal (and of the corresponding plea at first instance, and even of the relevant
         part of the decision at issue) is that the whole issue turns out to be based entirely on an elementary arithmetical error
         which is apparent from the judgment under appeal, even though it appears to have escaped the attention of all concerned.
      
      161. KME’s complaint from the outset has been that its fine was increased by 125%, a proportion which it considers excessive, on
         account of the duration of the infringement. The Commission has not challenged that premiss in any way (which is no doubt
         why it was accepted without question by the General Court) and seems even to have been under the impression that it did increase
         KME’s fine by 125% in the decision at issue. Yet it did not.
      
      162. The fact that the increase was considerably less is apparent without recourse to complex calculation. If a sum is increased
         by 100%, it is doubled; therefore, if it is increased by 125%, it is more than doubled. However, if we compare the overall
         figures given for the whole KME group in paragraphs 17 and 19 of the judgment under appeal (EUR 35 million and EUR 56.88 million
         respectively), (44) we can see that the increase detailed in paragraph 19 led to the starting amount being less than doubled. In fact, the true
         increase was 62.5%, (45) just half that which has been asserted, assumed or accepted throughout the proceedings. In effect, the Commission treated
         KME’s conduct as participation in two separate infringements, one of seven years and one of five and a half years, leading
         to a lower overall increase for duration than in the case of Outokumpu and Wieland, even though the conduct lasted for at
         least 12 years and 10 months for all the participants. (46)
      
      163. It is a matter for concern that such a discrepancy of nearly EUR 22 million (47) should go unnoticed. Perhaps KME’s accountants did not check the calculations in the decision at issue, or saw no occasion
         to draw attention to the matter, and its lawyers may have lacked the relevant numeracy skills or have omitted to check the
         orders of magnitude involved in the way that I have described in the preceding point. Perhaps also the figures were never
         checked by the Commission, whether at the stage of calculating the fine or during the Court proceedings. If (as seems unlikely)
         the intention was indeed to apply an overall increase of 62.5%, it would seem at least that there was no communication within
         the Commission between those responsible for setting the fine and those responsible for defending the case brought by KME.
      
      164. In any event, the net result seems to be that, while the fines for Outokumpu and Wieland were indeed increased by 125% (a
         cumulative total of slightly under 10% per year of infringement) at that stage of the calculation, the fines for KME were
         increased only by 62.5% (slightly under 5% per year), even though it had participated in the cartel, either as a group or
         as different companies, for the same length of time. (48) That exposes what appears to be a defect in the decision at issue which, if it had been noticed, could have been challenged
         by Outokumpu or Wieland or might have led the General Court to increase the fine on KME.
      
      165. The question is, however: how does this affect the present ground of appeal?
      
      166. It appears, in my view, to render the ground inoperative. Indeed, it seems to render the original plea at first instance inoperative,
         and the Commission’s arguments, together with the findings of the General Court, irrelevant. KME’s argument is that the Commission
         should not have applied the maximum increase of 10% per year of infringement in respect of a presumed duration of (rather
         over) 12 and a half years, resulting in an overall increase of 125%. The Commission did not do so, and there the matter should
         rest.
      
      167. In theory, it is true, it would be possible to address separately the question whether the Commission should have applied
         the maximum increase of 10% per year in the way that it did, resulting in an overall increase of 62.5%. However, both the
         General Court’s reasoning and KME’s argument on appeal are predicated on the assumption that the overall increase was 125%.
         It would be pure speculation to address the issue in the light of what that reasoning and that argument might have been if
         the true increase had been considered.
      
      168. It might be said that the General Court’s failure to notice the discrepancy supported KME’s contention that the level of judicial
         review was inadequate. However, the General Court did no more than base its judgment on a premiss which was accepted by both
         parties. If, moreover, that Court had ascertained that the premiss was erroneous, the result could not have been favourable
         to KME – which cannot, therefore, claim that its rights were in any way adversely affected.
      
       Fourth ground of appeal: reduction of the fine on account of cooperation
       Relevant passages of the judgment under appeal
      169. In the decision at issue, the Commission reduced Outokumpu’s fine to take account of the fact that it had provided evidence
         enabling the duration of the infringement to be established as 12 years and 10 months, rather than just four years. The reduction
         put Outokumpu in the same position as if the increase for duration had been only 40% rather than 125%.
      
      170. In the fourth limb of its fourth plea in law at first instance, KME argued that, contrary to the Guidelines and the principles
         of fairness and equal treatment, the Commission did not take adequate account of its contribution to establishing the overall
         duration of the infringement. Having been the first to provide the Commission with decisive evidence (as opposed to mere information)
         for two periods of the infringement (May 1988 to November 1992 and May 1998 to the end of 1999), KME should have benefited
         from a reduction in its fine for those periods, in the same way as Outokumpu’s fine was reduced.
      
      171. The General Court dismissed that argument at paragraphs 123 to 133 of its judgment:
      
      ‘123      … it should first be noted that, pursuant to the 1996 Leniency Notice, neither Outokumpu nor the applicants could benefit
         from a reduction higher than 50% of the final amount of the fines imposed upon them, since they did not denounce the infringement
         to the Commission before the latter carried out checks giving it sufficient reason to initiate the infringement proceedings
         which led to the contested decision.
      
      124      It is also undisputed that it was by a memorandum of Outokumpu dated 30 May 2001 that the Commission was informed, for the
         first time, of the total duration of the cartel. On the strength of information previously provided by Mueller Industries,
         the Commission was able to prove only the existence of an infringement from May 1994 to May 1998. Nevertheless, the applicants
         maintain that it was thanks to the information which they communicated to the Commission in October 2002 that the latter was
         definitively able to prove the existence of the cartel for the periods from May 1988 to November 1992 and from May 1998 until
         the end of 1999.
      
      125      In establishing the additional duration of the infringement, the Commission was able to increase the starting amounts of the
         fines imposed on the offenders by 125% instead of 40%, pursuant to Section 1 B of the Guidelines. Therefore, the undertakings
         which supplied the Commission with the information on the additional duration of the cartel ran the risk of seeing the starting
         amount of their fines increased by 85 additional percentage points.
      
      126      That is a paradox inherent in the 1996 Leniency Notice, in the sense that an undertaking falling under Section D of that notice
         which supplies new information to the Commission runs the risk of being fined more severely than in a case where it does not
         send that information to the Commission. The sixth indent of Section 3 of the Guidelines, according to which “effective cooperation
         by the undertaking in the proceedings, outside the scope of [the 1996 Leniency Notice]” may constitute an attenuating circumstance,
         allows a remedy for that paradox. 
      
      127      In this case, by applying, without mentioning it, the sixth indent of Section 3 of the Guidelines, the Commission, de facto,
         granted immunity to Outokumpu as regards the additional duration of the cartel, of which it was unaware before receiving its
         memorandum of 30 May 2001 (recital 386 of the contested decision).
      
      128      It therefore needs to be verified whether the Commission was required, either pursuant to the sixth indent of Section 3 of
         the Guidelines, or in accordance with the principle of equal treatment, also to grant a reduction to the applicants for the
         information which they supplied to the Commission, more than 16 months after Outokumpu, concerning the periods from 1988 to
         1992 and from 1998 to 1999.
      
      129      In that regard, it should be noted at the outset that the Commission has a discretion as regards the application of attenuating
         circumstances (Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraph 307).
      
      130      Moreover, it is inherent in the logic of immunity from fines that only one of the cartel members can have the benefit, given
         that the effect being sought is to create a climate of uncertainty within cartels by encouraging their denunciation to the
         Commission. That uncertainty results precisely from the fact that the cartel participants know that only one of them can benefit
         from immunity from being fined by denouncing the other participants in the infringement, thereby exposing them to the risk
         that they face more severe fines.
      
      131      In a situation such as that in this case, in which the Commission knows that a cartel exists but does not have certain essential
         information capable of establishing the total duration of that infringement, it is particularly desirable to have recourse
         to such a mechanism, particularly in order to prevent the offenders from coming to an agreement to hide that information.
      
      132      Such a situation is distinct from that in which the Commission is already aware of evidence, but is seeking to complete it.
         In that latter case, the granting of a fine reduction to the offenders rather than immunity from fining to a single undertaking,
         is justified by the fact that the aim is no longer to reveal a fact likely to lead to an increase in the fine imposed, but
         to assemble as much evidence as possible in order to reinforce the Commission’s ability to establish the facts in question.
      
      133      As regards the alleged unequal treatment between Outokumpu and the applicants, it is sufficient to note that they were not
         in a comparable position, given that the former supplied to the Commission, more than a year before the applicants, the information
         relating to the additional eight and a half years’ duration of the cartel.’
      
       Summary of the submissions
       KME’s appeal
      172. KME remarks that the attenuating circumstance of ‘cooperation outside the Leniency Notice’ fills a gap in the 1996 Leniency
         Notice – remedied in 2002 – by ensuring that a company which provides the Commission with evidence of facts previously unknown
         to it, relating to the gravity and/or duration of the infringement, is not fined more severely than if it had not done so.
         Such a company is granted partial immunity in relation to aspects of the infringement previously unknown to the Commission,
         which it allowed the Commission to establish. By definition, only one company can benefit. Since KME did not call that principle
         into question, it was on the basis of a misinterpretation of its claim that the General Court verified whether the Commission
         was required ‘also to grant a reduction to the applicants for the information which they supplied to the Commission, more
         than 16 months after Outokumpu, concerning the periods from 1988 to 1992 and from 1998 to 1999’.
      
      173. KME submits that there are two possible alternative tests for the application of this attenuating circumstance: it applies
         to the first company which provides the Commission (a) with information or (b) with evidence previously unknown to it having a bearing on the gravity or duration of an infringement. It considers that the second test
         is the correct one, and that the General Court wrongly applied the first test in assessing which of the two cooperating cartel
         members – KME or Outokumpu – qualified to benefit. It bases its view on the following considerations:
      
      (i)      the corresponding provisions of the 2002 and 2006 Leniency Notices (49) both clearly indicate that only an undertaking which submits evidence (and not merely information) to the Commission can
         benefit from partial immunity;
      
      (ii)      the Commission did not innovate in its fining policy following the 2002 and 2006 Leniency Notices, and should thus not interpret
         ‘cooperation outside the Leniency Notice’ in the 1996 Notice in a manner inconsistent with the 2006 Notice;
      
      (iii)      according to the 2002 and 2006 Leniency Notices, the fact that the Commission may have some knowledge of cartel activity does
         not prevent a leniency applicant from being granted full immunity from fines even where such knowledge is sufficient to carry
         out an on-site inspection (but insufficient to establish an infringement); similarly, the fact that the Commission may have
         some knowledge of anticompetitive conduct over a certain period – including as a result of unsubstantiated information provided by a cartel participant – should not prevent a leniency applicant from being granted partial immunity if it subsequently
         provides adequate evidence of such conduct allowing the Commission to establish the cartel for that period;
      
      (iv)      finally, undertakings would be much more reluctant to cooperate with the Commission if they feared being fined for periods
         in relation to which they were the only ones to provide the necessary evidence; without KME’s cooperation, the Commission
         could not have established the continuous infringement from 1988 to 2001; the rationale that warranted the application of
         the relevant attenuating circumstance to Outokumpu for the periods 1988 to 1993 and 1999 to 2001 also applied to KME for those
         periods; it was thus unfair for KME, having provided the Commission with previously unknown evidence relating to both the
         duration and the gravity of the infringement, to be sanctioned for a longer infringement, which the Commission could establish
         (and not merely suspect) only because of KME’s cooperation.
      
      174. KME therefore asks the Court to set aside the judgment under appeal to the extent that the General Court failed to hold that
         KME should benefit from a reduction of the duration multiplier applied to the starting amount of the fine for the periods
         from May 1988 to November 1992 and from May 1998 to the end of 1999, should annul the relevant part of the decision at issue
         and should recalculate the fine accordingly in the exercise of its unlimited jurisdiction.
      
       Commission’s response
      175. The Commission submits that, for its appraisal of when partial immunity – as opposed to a reduction in the fine for cooperation
         – should be available, the General Court provided a clear and logical explanation answering all of KME’s legal arguments.
         At paragraphs 123 to 127 of its judgment, it explained that, by revealing the full duration of the cartel to the Commission,
         Outokumpu enabled the Commission to raise the starting amount on its fine by 85%, while the maximum fine reduction for cooperation
         was 50%. The Commission addressed that paradox by granting Outokumpu a fine reduction equivalent to partial immunity for the
         additional duration that it revealed. At paragraphs 131 and 132, the General Court explained how such a situation differs
         from that of undertakings merely providing evidence in relation to a period of the cartel already known to the Commission.
      
      176. KME asks the Court of Justice to replace the General Court’s appraisal by KME’s preferred test. Not only is that inadmissible
         but the General Court’s appraisal is obviously correct and KME obviously wrong. When Outokumpu provided information unknown
         to the Commission, it disclosed the full duration of the cartel and the Commission was for the first time able to investigate
         and seek evidence that would prove that full duration. Without that disclosure, there would have been no possibility of an
         infringement decision in relation to the unknown years. KME merely provided evidence which, while not itself already in the
         Commission’s possession, related to elements of the infringement that were already known (within the duration already revealed
         by Outokumpu) and therefore did not have such a fundamental impact on the investigation. The Commission was already investigating
         and seeking evidence to prove the duration of the cartel, and might have obtained it even without KME’s assistance. KME made
         the Commission’s task easier, but that is all.
      
      177. KME’s distinction between information and evidence is not decisive. In reality, the ‘information’ provided by Outokumpu was
         also evidence. Outokumpu’s memorandum of 30 May 2001, referred to at paragraph 124 of the judgment under appeal, was used
         as evidence in the decision at issue. Conversely, the ‘evidence’ provided by KME clearly gave the Commission information about
         certain details of the cartel. The decisive factor is whether any ‘information’ or ‘evidence’ reveals for the first time an
         element of the cartel affecting its gravity or duration that could not have been investigated without the contribution of
         the undertaking concerned.
      
      178. Moreover, KME would not have been granted partial immunity under the 2002 Leniency Notice, which it cites. That notice offers
         partial immunity to an undertaking that ‘provides evidence relating to facts previously unknown to the Commission which have
         a direct bearing on the gravity or duration of the suspected cartel’. The evidence provided by KME related to facts previously
         known to the Commission, namely the full duration of the cartel.
      
      179. KME’s alternative test would duplicate – and render unworkable – the test for granting a reduction for cooperation in Section
         D of the 1996 Leniency Notice, under which a company supplying ‘information, documents or other evidence which materially
         contributes to establishing the existence of the infringement’ will benefit from a reduction of 10% to 50%. KME’s test would
         grant immunity when the Leniency Notice explicitly provides for a maximum 50% reduction, and would thus destroy the system
         created by the Leniency Notice. KME was adequately rewarded for its cooperation with a 30% reduction of the fine, which was
         upheld by the General Court and has not been challenged on appeal. 
      
      180. As regards the adequacy of the General Court’s scrutiny, the Commission notes that (in the context of its fifth ground of
         appeal, but with reference to the treatment of its fourth plea in law at first instance), KME cites paragraph 115 of the judgment
         under appeal, in which the General Court stated that, in the absence of any binding indication in the Guidelines, the Commission
         had retained a degree of latitude as to mitigating circumstances, and paragraph 129, where it again noted that the Commission
         had a discretion in that regard. However, those remarks were made in the context of arguments by KME that the Commission had
         infringed Section 3 of the Guidelines by refusing to take account of certain attenuating circumstances. The issue for the
         General Court was whether those arguments concerned matters in which the Commission had bound itself in the Guidelines or
         in which it retained its discretion. That does not indicate a failure to provide adequate judicial review, but simply reflects
         the nature of the arguments that KME presented at first instance. In relation to the complaint that KME should have received
         partial immunity rather than ‘merely’ a reduction in the fine for cooperation, the General Court in any event found affirmatively
         that that would have been wrong, stating, for example, at paragraph 132, that ‘the granting of a fine reduction to the offenders
         rather than immunity from fining to a single undertaking, is justified by the fact that the aim is no longer to reveal a fact
         likely to lead to an increase in the fine imposed’.
      
       Assessment
      181. I note that, if KME’s fine had been reduced in the decision at issue so as, in effect, to negate the increase on account of
         duration for the periods totalling six years and one month in respect of which it claims to have provided the Commission with
         ‘decisive evidence’, the result should have been equivalent to applying an increase in respect of the remaining six years
         and nine months of the infringement only. If the yearly rate had been maintained at 10%, as for the other participants, that
         would have implied an increase of 67.5% – that is to say, 5% higher than the overall increase actually (and perhaps inadvertently)
         applied. (50) Thus, again, it would seem plausible that, if the General Court had taken full cognisance of the situation, the result might
         not have been beneficial to KME even if it had succeeded in this particular argument.
      
      182. That being so, it might be thought possible to take the same approach as I have suggested for the third ground of appeal,
         and find this ground (together with the argument at first instance) inoperative. Here, however, it seems to me that the question
         whether KME should have been treated as if it had not participated in the cartel during periods in respect of which it had
         provided the Commission with evidence is not inseparably intertwined with the question of the percentage of increase, and
         can thus be addressed separately.
      
      183. KME’s argument rests, essentially, on three propositions, all of which must in principle be established for the argument to
         succeed: (a) information which discloses a period of infringement should be distinguished from evidence which proves that
         the infringement took place during that period; (b) where information is provided by one party first and evidence by another
         party later, it is the latter alone who should benefit from any immunity in respect of the period concerned; and (c) in respect
         of the periods from May 1988 to November 1992 and from May 1998 to the end of 1999, KME provided evidence while Outokumpu
         had previously provided only information.
      
      184. As regards (a), I agree with the Commission that no valid distinction can be drawn between information (by which KME appears
         to mean statements based on recollection) and evidence (by which it appears to mean documentary or other tangible items from
         which conclusions can be drawn). In fact, information provides evidence (or there would never be any scope for hearing witnesses
         in legal proceedings) and evidence provides information (without which it would have no value). The General Court was therefore
         not wrong to treat Outokumpu’s and KME’s contributions on the same level as regards the nature of their usefulness to the
         Commission’s investigation.
      
      185. As regards (b), even if, in general, information and evidence cannot be distinguished by their nature in terms of their usefulness
         to an investigation, it is quite possible for different contributions, whether of ‘information’ or of ‘evidence’, to differ
         greatly in usefulness in the context of a specific investigation. It is thus possible for one cartel participant to provide
         information or evidence of a period of infringement which is so vague and inconclusive as to be of no practical use to the
         Commission, and for another subsequently to provide detailed information or evidence which is of decisive importance in establishing
         that the infringement took place during the period in question. In such a case, it would not seem inappropriate for the Commission,
         if it granted any reduction in the fine in that respect, to favour the latter; and if it were instead to favour the former,
         the latter could quite justifiably ask the General Court to review the approach in the context of its unlimited jurisdiction,
         although the outcome would be dependent on that Court’s assessment of the facts. In any event, it is undisputed that the ‘logic
         of immunity from fines’ to which the General Court refers in paragraph 130 of its judgment militates in favour of rewarding
         only the first participant who provides adequate information or evidence.
      
      186. As regards (c), the question whether KME’s ‘evidence’ was of decisive importance in enabling the Commission to conclude that
         the cartel was functioning during the periods in question, whereas Outokumpu’s earlier ‘information’ had not been such as
         to enable any conclusion to be drawn, is an issue of fact which cannot be the subject-matter of an appeal. It is clear, moreover,
         from paragraphs 128 and 131 to 133 of the judgment under appeal, that the General Court found in that regard that Outokumpu
         provided essential information capable of establishing the total duration of the infringement, which KME completed, more than
         16 months later, with evidence reinforcing the Commission’s ability to establish the facts. On the basis of such a factual
         assessment, there can be no doubt that the General Court did not err in law in dismissing the fourth limb of KME’s fourth
         plea in law.
      
      187. Finally, with regard to the question of the adequacy of the review carried out by the General Court, it is clear that the
         statements which that Court made as regards the Commission’s discretion when deciding to take account of mitigating factors
         in no way prevented it from correctly examining and responding to KME’s arguments, and that its conclusion was reached on
         the basis of a real appraisal of the facts and arguments before it.
      
       Costs
      188. Under Article 122 of the Rules of Procedure of the Court of Justice, where an appeal is unfounded, the Court is to make a
         decision as to costs. Under Article 69(2), the unsuccessful party is to be ordered to pay the costs if they have been applied
         for in the successful party’s pleadings. In the present case, I consider that the appeal should be dismissed. The Commission
         has applied for costs. KME should therefore be ordered to pay the Commission’s costs.
      
       Conclusion
      189. Having regard to all the foregoing considerations, I am of the opinion that the Court should:
      
      –        dismiss the appeal; and
      –        order KME Germany AG, KME France SAS and KME Italy SpA to pay the costs of the Commission.
      1 –	Original language: English.
      
      2 –	The General Court was, at that time, before the Lisbon Treaty came into effect, designated ‘Court of First Instance’. For
         the sake of simplicity and because the change was purely formal, I shall use its current name throughout this Opinion.
      
      3 –	Case T‑127/04 KME Germany and Others v Commission [2009] ECR II‑1167 (‘the judgment under appeal’). The other participants in the cartel, fined in the same decision, had also
         contested that decision, and their applications were also dismissed on the same day: see Case T‑116/04 Wieland-Werke v Commission [2009] ECR II‑1087 and Case T‑122/04 Outokumpu and Luvata v Commission [2009] ECR II‑1135.
      
      4 –	Proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1). An updated version was approved by the European Parliament
         on 29 November 2007, after removal of references to the European Constitution (OJ 2007 C 303, p. 1); the most recent – post-Lisbon
         – consolidated version is published in OJ 2010 C 83, p. 389.
      
      5 –      Original (2000) version. The second sentence now reads: ‘They shall therefore respect the rights, observe the principles and
         promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the
         Union as conferred on it in the Treaties’.
      
      6 –	Of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962,
         p. 87).	With effect from 1 May 2004, Regulation No 17 was repealed and replaced by Council Regulation (EC) No 1/2003 of 16
         December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1,
         p. 1), which shifted much of the responsibility for applying EU competition law to the courts and authorities of the Member
         States.
      
      7 –      The unit of account being the ancestor of the euro.
      
      8 –      Substantially the same provisions are now contained in Article 23(2), (3) and (5) of Regulation No 1/2003.
      
      9 –      Substantially the same provision is now contained in Article 31 of Regulation No  1/2003.
      
      10 –	Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the
         ECSC Treaty (OJ 1998 C 9, p. 3). The 1998 Guidelines were replaced as from 1 September 2006 by the Guidelines on the method
         of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2). The 2006 Guidelines adopt
         a rather different approach, essentially setting a basic amount calculated generally as 30% of the yearly value of the sales
         to which the infringement relates (adjusted where appropriate according to all the relevant circumstances), multiplied by
         the number of years of participation and then further adjusted in the light of aggravating circumstances, mitigating circumstances
         and an element of deterrence, all within the legal maximum of 10% of annual turnover and subject to application of the leniency
         rules (see point 22 and footnote 13 below), with an exceptional possibility of reducing a fine which would otherwise be fatal
         to an undertaking.
      
      11 –      Also referred to as ‘mitigating’.
      
      12 –      As will become apparent in the context of the third and fourth grounds of appeal, it may be useful to specify that this means
         (and it is an interpretation which has never, to my knowledge, been questioned) an increase of the whole amount by (≤10 x n)%,
         where n = number of years of the duration of the infringement. See also paragraph 19 of the judgment under appeal, in point
         26 below, and footnote 16 below.
      
      13 –	Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4), applicable at the material time.
         That notice was replaced as from 14 February 2002 by the Notice on immunity from fines and reduction of fines in cartel cases
         (OJ 2002 C 45, p. 3), itself replaced in 2006 by the Commission Notice on Immunity from fines and reduction of fines in cartel
         cases (OJ 2006 C 298, p. 17).
      
      14 –	C(2003) 4820 final (Case COMP/E-1/38.240 – Industrial tubes) (‘the contested decision’ or ‘the decision at issue’). A summary
         is published in OJ 2004 L 125, p. 50.
      
      15 –	Composed of EUR 10.41 million for KME Germany, EUR 10.41 million jointly and severally for KME France and KME Italy, both
         sums in respect of the period from 3 May 1988 to 19 June 1995, and EUR 18.99 million for all three companies jointly and severally
         in respect of the period from 20 June 1995 to 22 March 2001.
      
      16 –      Although not stated in the judgment under appeal, the decision at issue increased the starting amount by 125% for both Outokumpu
         and Wieland, respectively from EUR 17.33 million to EUR 38.98 million and from EUR 11.55 million to EUR 25.99 million (recitals
         328, 334 and 347 of the decision at issue).
      
      17 –	Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, at p. 347.
      
      18 –	The Commission appears to refer here only to the second, third and fourth pleas in law because the passages of the judgment
         cited by KME (see point 41 above) relate only to those pleas.
      
      19 –      Engel and Othersv.the Netherlands, 8 June 1976, § 82, Series A no. 22.
      
      20 –      See, for example, Jussila v. Finland [GC], no. 73053/01, ECHR 2006-XIII.
      
      21 –	See also points 48 to 52 of Advocate General Bot’s Opinion of 26 October 2010 in Case C‑352/09 P ThyssenKrupp Nirosta v Commission, which I fully endorse, together with the case-law cited there.
      
      22 –      It is not necessary to decide whether – as was queried at the hearing – that stigma is greater than the stigma attaching to
         tax evasion, although the mere fact that the point has been raised is not a flattering reflection of perceived business morality.
      
      23 –      I do not think it necessary to consider KME’s submissions concerning the appreciable rise in the level of fines imposed by
         the Commission in recent years; it is not the severity of the penalty actually imposed which defines the nature of the offence but the range of penalties which may be imposed.
      
      24 –      The Guidelines speak of ‘the objectives pursued in penalising infringements’ and refer to setting the fine ‘at a level which
         ensures that it has a sufficiently deterrent effect’.
      
      25 –      Decision of the Third Section of 3 June 2004 as to the admissibility of applications 69042/01, 69050/01, 69054/01, 69055/01,
         69056/01 and 69058/01, OOO Neste St Petersburg and Othersv.Russia.
      
      26 –      Cited in footnote 20 above, paragraph 43 of the judgment, citing Société Stenuit v.France, judgment of 27 February 1992, Series A no. 232-A, with particular regard to competition law.
      
      27 –      See also Albert and Le Compte v. Belgium, 10 February 1983, § 29, Series A no. 58.
      
      28 –	See Belilos v. Switzerland, 29 April 1988, § 68, Series A no. 132.
      
      29 –      KME cites, for example, D. Slater et al., Competition law proceedings before the European Commission and the right to a fair trial: no need for reform?, GCLC Working Paper 04/08; and S. Wisking, Does the European Commission Provide Parties with a Proper Opportunity to be Heard on the Level of Fines?, GCP – The Online Magazine for Global Competition Policy (release June 2009(2)).
      
      30 –	Although it must be acknowledged that steps have been taken at various points in time to provide enhanced separation of
         the functions, perhaps the most notable example being the decision to appoint an independent hearing officer to preside over
         the hearing, rather than the director of the directorate leading the investigation, as had previously been the case (see the
         Commission’s 11th Report on Competition Policy (1981), point 26).
      
      31 –      The same would be true even if the proceedings concerned a purely ‘civil’ dispute (see, for example, Obermeier v. Austria, 28 June 1990, §§ 67 and 70, Series A no. 179), which would include administrative law disputes.
      
      32 –	See Valico S.r.l. v. Italy (dec.), no. 70074/01, p. 20, ECHR 2006-III, and the case-law cited there.
      
      33 –      See Crompton v. the United Kingdom, no. 42509/05, § 71, 27 October 2009, and the case-law cited there.
      
      34 –	See, for a recent example, Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I‑0000, paragraph 24.
      
      35 –	Case T‑322/01, cited in paragraph 68 of the judgment under appeal, paragraph 73.
      
      36 –	Which, even if they might give rise to some hesitation in English, are the equivalent of the unequivocal ‘[à] titre surabondant’
         in the French version in which the General Court drafted its judgment.
      
      37 –      I would refer in particular to the summaries at point 95 et seq. of Advocate General Mischo’s Opinion in Mo och Domsjö v Commission, and paragraphs 129 and 130 of the judgment in Dalmine v Commission, both cited at paragraph 64 of the judgment under appeal, quoted in point 84 above.
      
      38 –      See, in particular, points 299 to 301 and 314 of the decision at issue.
      
      39 –	Cited in paragraph 91 of the judgment under appeal.
      
      40 –      See footnote 43 below.
      
      41 –	Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraphs 247 and 254.
      
      42 –	Case C‑359/01 P British Sugar v Commission [2004] ECR 1‑4933, paragraphs 47 and 48.
      
      43 –	The English version of the judgment under appeal reads ‘acute’ here, but the French version (in which the judgment was
         originally drafted) reads ‘accru’ – that is to say, ‘increased’. In previous case-law, ‘accru’ has been translated as ‘serious’.
         Perhaps ‘aggravated’ would be a better translation.
      
      44 –	See point 26 above.
      
      45 –	More accurately, it was very slightly over 62.5% because, after performing its calculations, the Commission rounded the
         resulting figure up from EUR 56.875 million to EUR 56.88 million; however, there was a compensatory rounding down at a later
         stage when a 30% reduction was applied. The amounts with which the Commission worked in the decision at issue appear to be
         all rounded to the nearest EUR 10 000.
      
      46 –      Because the KME Group was formed as such only in 1995 (although its constituent entities participated in the cartel throughout
         the whole period), the Commission divided the overall fine into two equal parts: one, for the period from 1988 to 1995, further
         subdivided among the various entities; the other, for the period from 1995 to 2001, for the group as a whole. To the first
         part the Commission applied an increase of 70% and to the second part an increase of 55% – making, it appears to have believed,
         a total of 125%, which was the increase it did apply to the starting amounts for Outokumpu and Wieland (see footnote 16 above).
         In fact, however, when half of an amount is increased by one percentage and the other half by a different percentage, the
         total amount is increased not by the sum, but by the average, of the two percentages. This becomes more clearly apparent if
         we imagine each half being increased by the same percentage – say 55% in each case; the overall increase clearly remains 55%,
         not 110%.
      
      47 –	If the starting amount of EUR 35 million had been increased by 125%, the result would have been EUR 78.75 million, EUR
         21.87 million more than the actual total of EUR 56.88 million.
      
      48 –      By my calculation, if KME’s fine had undergone the same increase, its total fine after the subsequent reduction of 30% would
         have amounted to EUR 55.125 million (35 + 125% = 78.75; 78.75 – 30% = 55.125) rather than EUR 39.81 million. That total could
         then have been apportioned, to the extent necessary, according to the ratio 7:5.5, representing the two periods from 1988
         to 1995 and 1995 to 2001.
      
      49 –      See footnote 13 above.
      
      50 –      See point 161 et seq. above.