Brussels, 09/12/2011 (Agence Europe) - In three rulings handed down on Thursday 8 December, the Court of Justice of the European Union upheld Commission decisions imposing fines on two cartels operating in the copper industrial and copper plumbing tubes sectors which involved the German KME group and the Greek company Chalkor. The Court rejected the appeals lodged by these firms, taking the view that the review by the General Court of European Commission decisions imposing fines in competition matters is not contrary to the principle of effective judicial protection laid down by the Charter of Fundamental Rights.
In December 2003, the Commission imposed fines totalling €78.73 million on six companies, including three which belonging to the KME group (their total fine was €39.81 million) for taking part in a cartel in the copper industrial tubes sector (these tubes are used mainly in the air-conditioning and refrigeration industry) between May 1988 and March 2001. In September 2004, the Commission fined the KME group companies and Chalkor for taking part in a second cartel, this time in the market for copper plumbing tubes (used for water, gas and oil installations). All the companies involved lodged appeals with the General Court to have their fines reduced or annulled. The General Court dismissed the KME appeals in both cases (rulings T-127/04 and T-25/05 in 2009 and 2010) and reduced the fine on Chalkor by 10% (ruling T-21/05). KME and Chalkor then lodged separate appeals before the Court of Justice to have the General Court rulings and the Commission decisions annulled. They argued that the General Court had infringed their fundamental right to an effective judicial remedy as laid down in the Charter of Fundamental Rights of the EU “by failing to carry out an adequate review of the Commission's decision and deferring, to an excessive and unreasonable extent, to the Commission's discretion”. Chalkor, specifically, maintained that the General Court is required to carry out a review of the Commission decisions in competition matters as regards both matters of fact and law since the Commission is not an independent and impartial tribunal within the meaning of the European Convention on Human Rights.
The Court dealt with each of the objections in turn. It held, firstly, that although the Commission has a margin of discretion in cases such as those at issue, the Courts of the European Union cannot use the Commission's margin of discretion. They must, indeed, conduct an in-depth review of the law and of the facts of the points on which the decision was based. Further, the Court stated that their unlimited jurisdiction empowers the Courts to substitute their own appraisal for the Commission's and, consequently, to cancel, reduce or increase the pecuniary penalty imposed. This does not mean, however, that the Courts are obliged to carry out a review of the whole of the contested decision of their own motion, which would involve a new and comprehensive investigation of the matter.
Thus, the Court rejected all of the arguments put forward by the companies and concluded that 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 of Fundamental Rights. It found that the General Court, in this instance, carried out the full and unrestricted review, in law and in fact, required of it. (FG/transl.rt)