Judgment of the General Court (Eighth Chamber) of 19 May 2010 -
   Wieland-Werke and Others v Commission

   (Case T-11/05)

   Competition - Agreements, decisions and concerted practices - Copper
   plumbing tube industry - Decision finding an infringement of Article 81
   EC - Continuous and multiform infringement - Principle that penalties
   must have a proper legal basis - Ne bis in idem principle - Fines -
   Actual impact on the market - Size of the relevant market - Duration of
   the infringement - Attenuating circumstances

   1.                     Community law - General principles of Community
   law - Legal certainty - Principle that penalties must have a proper
   legal basis (see paras 58-63)

   2.                     Competition - Fines - Amount - Determination -
   Discretion conferred on the Commission by Article 23(2) of Regulation
   No 1/2003 - Infringement of the principle that penalties must have a
   proper legal basis - None (Council Regulation No 1/2003, Art. 23(2) and
   (3)) (see paras 64-72)

   3.                     Competition - Administrative procedure -
   Commission decision finding an infringement - Previous decision finding
   an infringement committed by the same undertaking - Infringements
   concerning markets for different though related products - No links of
   conditionality or coordination between the two infringements - No
   overall plan designed to distort competition - No identity of the
   infringements forming the subject-matter of the two decisions - Breach
   of the ne bis in idem principle - None (Art. 81 EC) (see paras 81-83,
   87)

   4.                     Competition - Administrative procedure - Powers
   of the Commission - Power to split a procedure (Art. 81 EC) (see para.
   101)

   5.                     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 108-112)

   6.                     Competition - Fines - Amount - Determination -
   Deterrent effect - Assessment - Obligation to penalise more lightly an
   undertaking which simultaneously participated in several infringements
   - None (Council Regulations No 17, Art. 15, and No 1/2003, Art. 23)
   (see paras 114-115)

   7.                     Competition - Administrative procedure -
   Statement of objections - Necessary content (Council Regulations No 17
   and No 1/2003) (see paras 129-131)

   8.                     Competition - Fines - Amount - Determination -
   Criteria - Gravity of the infringement - Horizontal cartel concerning
   prices - Market-sharing arrangement - Very serious infringement (Art.
   81(1) EC; Council Regulations No 17, Art. 15, and No 1/2003, Art. 23)
   (see paras 138-140)

   9.                     Competition - Fines - Amount - Determination -
   Criteria - Gravity of the infringement - Actual impact on the market to
   be 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 143-149)

   10.                     Competition - Fines - Amount - Determination -
   Criteria - Gravity of the infringement - Size of the market for the
   products in question - To be taken into consideration (Council
   Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission
   Communication 98/C 9/03, Section 1A) (see paras 160-163)

   11.                     Competition - Fines - Amount - Determination -
   Criteria - Gravity of the infringement - Observance of the principle of
   proportionality (Council Regulations No 17, Art. 15(2), and No 1/2003,
   Art. 23(2)) (see para. 166)

   12.                     Competition - Fines - Decision imposing fines -
   Duty to state reasons - Scope (Art. 253 EC; Council Regulations No 17,
   Art. 15(2), and No 1/2003, Art. 23(2)) (see paras 177, 179)

   13.                     Competition - Fines - Amount - Determination -
   Deterrent effect - Account taken of the size and global resources of
   the fined undertaking (Council Regulations No 17, Art. 15(2), and No
   1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1A)
   (see paras 189-190, 192)

   14.                     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 203, 205-206)

   15.                     Competition - Fines - Amount - Determination -
   Criteria - Gravity of the infringement - Mitigating circumstances
   (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2);
   Commission Communication 98/C 9/03) (see para. 227)

   Re:

   APPLICATION, first, for annulment 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); second, in the alternative, for reduction of
   the fines imposed on the applicants by that decision; and third, 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 Wieland-Werke AG, Buntmetall Amstetten GmbH and
   Austria Buntmetall AG to bear their own costs and to pay 90% of the
   costs incurred by the Commission;

   4.         Orders the Commission to bear 10% of its own costs;

   5.         Orders the Council of the European Union to bear its own
   costs.