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.