Competition Agreements, decisions and concerted practices Decision finding an infringement of Article 81 EC Fines Cooperation Duration of the infringement Copper plumbing tube industry Size of the relevant market Actual impact on the market Ability to pay
Sumário
Judgment of the General Court (Eighth Chamber) of 19 May 2010.
KME Germany AG, KME France SAS and KME Italy SpA v European Commission.
Competition - Agreements, decisions and concerted practices - Copper plumbing tube industry - Decision finding an infringement of Article 81 EC - Fines - Actual impact on the market - Size of the relevant market - Duration of the infringement - Ability to pay - Cooperation.
Case T-25/05.
Texto da decisão
Judgment of the General Court (Eighth Chamber) of 19 May 2010 – KME Germany and Others v Commission
(Case T-25/05)
Competition – Agreements, decisions and concerted practices – Copper plumbing tube industry – Decision finding an infringement of Article 81 EC – Fines – Actual impact on the market – Size of the relevant market – Duration of the infringement – Ability to pay – Cooperation
1. Competition – Fines – Guidelines on the method of setting fines – Calculation method taking various elements of flexibility into account (Art. 229 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03) (see paras 51-55)
2. Procedure – Time-limit for producing evidence (Rules of Procedure of the General Court, Arts 48(1) and 66(2)) (see paras 73, 76)
3. Competition – Fines – Amount – Determination – Criteria – Possibility of differentiating between the undertakings involved in a single infringement by reference to their market shares in the products in question (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1A) (see paras 79-80, 106)
4. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Actual impact on the market taken into account (Council Regulations No 17, Art. 15, and No 1/2003, Art. 23; Commission Communication 98/C 9/03, Section 1A) (see paras 81-82, 85-86, 89)
5. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Infringements of long duration – Increase of 10% of the starting amount per year (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1B) (see paras 111-112, 114)
6. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 3) (see paras 125-126)
7. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communications 96/C 207/04, Title D, and 98/C 9/03, para. 3, sixth indent) (see paras 133-134)
8. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation with the Commission (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 96/C 207/04) (see paras 137-140)
9. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Conditions (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 96/C 207/04) (see paras 150, 152)
10. Competition – Fines – Amount – Determination – Criteria – Obligation to take account of the financial situation of the undertaking concerned – None – Undertaking’s real ability to pay in a specific social context – To be taken into consideration – Setting the fine at an amount which brings about the insolvency or liquidation of the undertaking concerned as a consequence of the fine – Not prohibited in principle (Council Regulations No 17, Art. 15, and No 1/2003, Art. 23; Commission Communication 98/C 9/03, Section 5b) (see paras 165-167)
Re:
| APPLICATION, first, for reduction of the fines imposed on the applicants under Article 2(g), (h) and (i) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 – Copper plumbing tubes) and, second, by way of counterclaim by the Commission, for those fines to be increased. |
Operative part
The Court:
1. Dismisses the action;
2. Dismisses the European Commission’s counterclaim;
3. Orders KME Germany AG, KME France SAS and KME Italy Spa to bear their own costs and to pay 50% of the costs incurred by the Commission;
4. Orders the Commission to bear 50% of its own costs.