(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

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)

6. 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)

7. 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)

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 – 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:

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;