On 16 December 2003, the European Commission fined Outokumpu, the KME Group and Wieland-Werke (Wieland) a total of EUR 78.73 million for participating in a cartel on the copper industrial tubes market. Each business brought an action before the Court of First Instance (CFI) to have their fine annulled or reduced. The CFI rejected each application in three separate judgments issued on 6 May 2009.
Wieland argued that the Commission should have excluded the cost of raw materials when calculating the size of the market for copper industrial tubes since Wieland has no control over this cost. Because it was included, Wieland argued that the Commission exaggerated the size of this market, which led it to set a higher starting amount for calculating the fine. The CFI rejected Wieland’s argument stating that all manufacturers face certain costs that they have no control over but which constitute an essential element of their business and therefore must be included in the calculation of turnover.
Outokumpu appealed the Commission’s decision to increase its fine for recidivism. It argued that the Commission was not entitled to base its finding on a previous decision in which it was found that Outokumpu had violated Article 65 of the European Coal and Steel Community Treaty (ECSC). The CFI rejected this argument, stating that Article 65 ECSC and Article 81 of the Treaty are inspired by identical legal concepts. Once the Commission has adopted a decision finding that an undertaking has participated in a cartel, that decision may serve as the basis for assessing the propensity of that undertaking to infringe Community rules on cartels.
KME argued that the Commission failed to give proper consideration to the poor financial health of the copper industrial tubes sector as a mitigating circumstance and should have reduced KME’s fine by a greater amount. The CFI rejected this argument stating that although the Commission may take into account the economic situation of a given sector as a mitigating circumstance, it is not required to do so.