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Brussels, 8 December 2011
Antitrust: Commission welcomes European Court of Justice judgements in copper tubes cartels
The European Commission welcomes the judgements by the European Court of Justice dismissing the appeals brought by KME and Chalkor against the General Court's judgments in the copper plumbing tubes and industrial copper tubes cartels cases (T-127/04, T-25/05 and T-21/05). The ECJ confirms in full the General Court's judgements of 2009 which, themselves, had confirmed by large the Commission's decisions. Importantly, the ECJ also holds that the judicial review carried out by the European Union courts when ruling on appeals of Commission competition decisions is in line with the principle of an effective judicial protection set out in the Charter of Fundamental Rights of the EU.
"I welcome this important judgement which confirms what the Commission has always defended, which is that the European Courts provide a thorough and effective review of our decisions in the competition policy area, including as regards the amount of the fines imposed, in accordance with the companies' fundamental right to an effective judicial protection" said Joaquín Almunia, Commission Vice-President and Competition Commissioner.
The judgments mainly concern the legal question of appropriateness of judicial review carried out by the General Court in the light of the ECHR (European Convention of Human Rights) which sets the fundamental right to an effective judicial review.
In today's judgments the Court holds that the Courts of the European Union must carry out a review of both the law and the facts, that they have the power to assess the evidence, to annul the Commission's decision and to alter the amount of a fine. Therefore, the judicial review provided for by EU law is not contrary to the requirements of the principle of effective judicial protection set out in the Charter.
At the origin of the appeal, were two cartel decisions regarding copper plumbing tubes and industrial copper tubes.
Background on the copper tubes cartel decisions and appeals
On 3 September 2004, the Commission imposed a total of € 222,3 million in fines on Boliden, Halcor (Chalkor), HME, IMI, KME-group, Outokumpu, and Wieland Werke, the main copper plumbing tube producers in Europe. (see IP/04/1065). Boliden, Halcor, IMI, the KME-group, Outokumpu and Wieland Werke brought an action against the Commission decision. HME did not appeal the decision.
The General Court rejected most of the claims of the applicants and confirmed the existence and duration of the cartel and the fines imposed on four of the undertakings that brought the appeal. It reduced the fine for Halcor (Chalkor) by 10% having concluded that it did not participate in certain meetings forming part of the infringement. It also reduced the fine on IMI by 10% for similar reasons. The overall amount of the fine was reduced to €214.9 million from €223.3 million.
In particular, the Court confirmed that the Commission, in determining the product turnover for calculating the fine, was not required to deduct the cost for raw materials used as input for the cartelised product. It equally held that the decision correctly found the cartel to be of a continuous nature, despite certain periods of reduced cartel activity.
KME and Halcor (Chalkor) were the only two members of the cartel to challenge the General Court's ruling.
On 16 December 2003 the Commission imposed a total of € 78.73 million in fines on Outokumpu, KME-group and Wieland Werke, the main copper tube producers in Europe. The tubes in question are used mainly in the air-conditioning and refrigeration (ACR) industries (see IP/03/1746).
In its judgments of 6 May 2009 the General Court dismissed the actions brought by all three undertakings. KME was the only member of the cartel to challenge the General Court's ruling.