# Arrêt du Tribunal

**Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T‐252/01**

**Tokai Carbon Co. Ltd and Others**

**v**

**Commission of the European Communities**

(Competition – Cartel – Graphite electrodes market – Price-fixing and market-sharing – Calculation of fines – Concurrent sanctions – Guidelines on the method of setting fines – Applicability – Gravity and duration of the infringement – Aggravating circumstances – Attenuating circumstances – Ability to pay – Cooperation during the administrative procedure – Arrangements for payment)

Judgment of the Court of First Instance (Second Chamber), 29 April 2004

Summary of the Judgment

1.     *Competition – Administrative procedure – Respect for the rights of the defence – Access to the file – Obligation to make the
entire file available – Limits – Documents containing business secrets and internal documents – Exception – Communication
of internal documents in exceptional circumstances*

*(Arts 81(1) EC and 82 EC; Council Regulation No 17)*

2.     *Competition – Administrative procedure – Respect for the rights of the defence – Statement of objections – Production of further
evidence after the statement of objections has been sent – Admissibility – Conditions*

*(Council Regulation No 17, Art. 19(1))*

3.     *Competition – Administrative procedure – Hearings – Obligation for the hearing officer to draw up a final report on respect
for the right to be heard – Scope*

*(Commission Decision 2001/462, Arts 15 and 16)*

4.     *Actions for annulment – Pleas – Challenge to the facts held by a decision penalising infringement of the competition rules
– Admissibility – Condition – No admission of those facts during the administrative procedure*

*(Art. 230 EC)*

5.     *Competition – Fines – Amount – Reduction in return for cooperation consisting in not contesting the reality of certain facts
– Challenge to those facts before the Court of First Instance – Possibility that the Court, in the exercise of its unlimited
jurisdiction, may increase the amount of the fine*

*(Council Regulation No 17, Art. 15)*

6.     *Competition – Fines – Community penalties and penalties imposed by the authorities of a Member State or a non-member State
for infringement of national competition law – Infringement of the principle ‘non bis in idem’ – None – Concurrent sanctions
– Admissible – Obligation on the Commission to take account, when determining the amount of the fine, of the penalty imposed
in a Member State on the basis of the same facts – Obligation not transposable to the case of a penalty imposed in a non-member
State*

*(Charter of Fundamental Rights of the European Union, Art. 50; Protocol No 7 to the European Convention on Human Rights, Art.
4; Council Regulation No 17, Art. 15)*

7.     *Competition – Fines – Amount – Determination – Possibility of increasing the fines in order to strengthen their deterrent
effect – Obligation to take into account, in that regard, the fines already imposed in a non-member State – None*

*(Arts 81(1) EC and 82 EC; EEA Agreement, Art. 53(1); Council Regulation No 17, Art. 15(2))*

8.     *Community law – Principles – Protection of legitimate expectations – Conditions – Assurances given by the Director-General
responsible for competition matters concerning the setting of the amount of the fine – Excluded owing to the exclusive competence
of the College of Commissioners*

*(Internal rules of the Commission, Art. 1)*

9.     *Competition – Fines – Amount – Commission’s discretion – Unlimited jurisdiction of the Court of First Instance – Possibility,
in that context, to take into consideration additional information which is not mentioned in the decision imposing the fine*

*(Art. 229 EC; Council Regulation No 17, Art. 17)*

10.   *Competition – Fines – Amount – Determination – Legal framework – Article 15(2) of Regulation No 17 – Introduction by the Commission
of guidelines which are innovative by reference to its previous practice in taking decisions – Breach of the principles of
non-retroactivity and legal certainty – None*

*(Council Regulation No 17, Art. 15(2); Commission Communication 98/C 9/03)*

11.   *Competition – Community rules – Infringements – Fines – Amount – Determination – Criteria – Increase in the general level
of fines – Admissibility – Conditions*

*(Council Regulation No 17, Art. 15(1) and (2))*

12.   *Competition – Fines – Amount – Determination – Turnover to be taken into consideration in calculating the fine – Commission’s
discretion while respecting the limit set down in Article 15(2) of Regulation No 17*

*(Council Regulation No 17, Art. 15(2); Commission Communication 98/C 9/03)*

13.   *Competition – Fines – Amount – Determination – Criteria – Taking into account of worldwide turnover from the goods forming
the subject-matter of the infringement – Admissibility – Limits*

*(Council Regulation No 17, Art. 15)*

14.   *Competition – Fines – Amount – Determination – Criteria – Assessment of the gravity of an infringement by reference to its
impact – Account to be taken of the effects of the whole of the infringement and not of the individual conduct of the undertakings
participating in the cartel*

*(Council Regulation No 17, Art. 15; Commission Communication 98/C 9/03, point 1.A)*

15.   *Competition – Fines – Amount – Determination – Division of an overall amount between different groups of undertakings – Admissibility
– Conditions*

*(Council Regulation No 17, Art. 15(2))*

16.   *Competition – Fines – Amount – Determination – Calculation method set out in the Commission’s guidelines – Commission decision
to apply that method in a particular case – Consequences – Obligation to state reasons for any departure*

*(Council Regulation No 17, Art. 15(2); Commission Communication 98/C 9/03)*

17.   *Competition – Fines – Decision imposing fines – Obligation to state reasons – Scope – Statement of the factors by which the
Commission assessed the gravity and duration of the infringement – Sufficient statement*

*(Art. 253 EC; Council Regulation No 17, Art. 15(2))*

18.   *Competition – Community rules – Infringements – Attribution – Legal person responsible for the operation of the undertaking
at the time of the infringement*

*(Art. 81(1) EC)*

19.   *Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Respective roles of the undertakings
involved*

*(Council Regulation No 17, Art. 15)*

20.   *Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Attenuating circumstances – Passive
or ‘follow-my-leader’ role of the undertaking*

*(Council Regulation No 17, Art. 15; Commission Communication 98/C 9/03)*

21.   *Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Attenuating circumstances – Whether
Commission obliged to adhere to its previous decision-making practice – No such obligation – Setting-up by an undertaking
of a competition compliance programme – Poor financial situation of the sector in which an undertaking operates*

*(Art. 81(1) EC; Council Regulation No 17, Art. 15)*

22.   *Competition – Fines – Amount – Limit fixed by Article 15(2) of Regulation No 17 – Implementing procedures*

*(Council Regulation No 17, Art. 15(2))*

23.   *Competition – Fines – Amount – Determination – Criteria – Financial situation of the undertaking concerned – May be taken
into consideration – Whether the Commission is obliged to adhere to its previous decision-making practice – No such obligation*

*(Council Regulation No 17, Art. 15)*

24.   *Competition – Administrative procedure – Request for information – Rights of the defence – Absolute right of silence – None
– Right to refuse to provide answers that imply admission of an infringement*

*(Council Regulation No 17, Art. 11(5))*

25.   *Competition – Fines – Amount – Determination – Criteria – Reduction of the fine in return for cooperation by the undertaking
involved – Cooperation in the context of the reply to a request for information – Taken into account*

*(Council Regulation No 17, Art. 15(2); Commission Communication 96/C 207/04)*

26.   *Competition – Fines – Amount – Determination – Criteria – Reduction of the fine in return for cooperation by the undertaking
involved – Concept of ‘evidence’*

*(Council Regulation No 17, Art. 15(2); Commission Communication 96/C 207/04)*

27.   *Competition – Fines – Amount – Determination – Criteria – Reduction of the fine in return for cooperation by the undertaking
involved – Information on the existence of a disloyal Commission official – Taken into account*

*(Council Regulation No 17, Art. 15(2); Commission Communication 96/C 207/04)*

28.   *Competition – Fines – Commission’s discretion – Scope – Power to determine the arrangements for payment of the fines – Imposition
of default interest*

*(Council Regulation No 17, Art. 15(2))*

1.     In order to allow the undertakings concerned to defend themselves effectively against the objections raised against them in
the statement of objections, the Commission is required to make available to them the entire investigation file, except for
documents containing business secrets of other undertakings, other confidential information and internal documents of the
Commission.

As regards the latter, a restriction on access to them is justified by the need to ensure the proper functioning of the Commission
when it deals with infringements of the Treaty competition rules; internal documents can be made available only if the exceptional
circumstances of the case so require, on the basis of serious evidence which it is for the party concerned to provide, both
before the Community Court and in the administrative procedure conducted by the Commission.

(see paras 38, 40)

2.     The statement of objections must allow those concerned to have effective knowledge of the conduct in respect of which they
are accused by the Commission, that requirement being met when the final decision does not find that the undertakings concerned
have committed infringements different from those referred to in the statement of objections and establishes only facts on
which the persons concerned have had the opportunity to explain themselves.

However, there is no provision that prevents the Commission from sending to the parties concerned after the statement of objections
fresh documents which it considers support its argument, subject to giving the undertakings the necessary time to submit their
views on the subject.

(see paras 45, 47)

3.     Under Articles 15 and 16(1) of Decision 2001/462 on the terms of reference of hearing officers in certain competition proceedings,
the hearing officer is to prepare a final report on the respect of the right to be heard, which also considers whether the
draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known
their views and which is to be attached to the draft decision submitted to the Commission, in order to ensure that, when it
reaches a decision, the Commission is fully apprised of ‘all relevant information’ as regards the course of the procedure
and respect of the right to be heard.

It follows that the hearing officer is not responsible for collecting all the objections of a procedural nature put forward
by the parties concerned during the administrative procedure. He is required to communicate to the College of Commissioners
only the objections relevant to the assessment of the lawfulness of the conduct of the administrative procedure.

(see paras 52-53)

4.     Where an undertaking involved in an infringement of the competition rules does not expressly acknowledge the facts, the Commission
must prove the facts and the undertaking is free to put forward, in the procedure before the Court, any plea in its defence
which it deems appropriate. On the other hand, that is not the case where the undertaking expressly, clearly and specifically
acknowledges the facts: where it explicitly admits during the administrative procedure the substantive truth of the facts
which the Commission alleges against it in the statement of objections, those facts must thereafter be regarded as established
and the undertaking estopped in principle from disputing them during the procedure before the Court.

(see para. 108)

5.     The Court of First Instance cannot be prohibited, in any circumstances, in the exercise of its unlimited jurisdiction, from
increasing the amount of the fine imposed on an undertaking which, after having the benefit of a reduction in its fine in
return for not having disputed the substantive truth of the facts established by the Commission during the administrative
procedure, calls in question the veracity of those facts for the first time before the Court of First Instance.

(see para. 113)

6.     The principle ne bis in idem, also enshrined in Article 4 of Protocol No 7 to the European Convention on Human Rights, is
a general principle of Community law upheld by the Community judicature. In the field of Community competition law, the principle
precludes an undertaking from being sanctioned by the Commission or made the defendant to proceedings brought by the Commission
a second time in respect of anti-competitive conduct for which it has already been penalised or of which it has been exonerated
by a previous decision of the Commission that is no longer amenable to challenge.

None the less, the possibility of concurrent sanctions, one a Community sanction, the other a national one, resulting from
two sets of parallel proceedings, each pursuing distinct ends, is acceptable because of the special system of sharing jurisdiction
between the Community and the Member States with regard to cartels. However, a general requirement of natural justice demands
that, in determining the amount of a fine, the Commission must take account of any penalties that have already been borne
by the undertaking in question in respect of the same conduct where these were imposed for infringement of the law relating
to cartels of a Member State and where, consequently, the infringement was committed within the Community.

That possibility of concurrent sanctions is justified where the national and Community proceedings pursue different ends.
In those circumstances, the principle ne bis in idem cannot, a fortiori, apply in the case of procedures conducted and penalties
imposed by the Commission on the one hand and the authorities of non-member States on the other which clearly did not pursue
the same ends. The aim of the first was to preserve undistorted competition within the European Union or the European Economic
Area, whereas the aim of the second was to protect the market of a non-member State. The application of the principle ne bis
in idem is subject not only to the infringements and the persons sanctioned being the same, but also to the unity of the legal
right being protected.

That conclusion is supported by the scope of the principle that a second penalty may not be imposed for the same offence,
as laid down in Article 4 of Protocol No 7 to the European Convention on Human Rights. It is clear from the wording of Article
4 that the intended effect of the principle is solely to prevent the courts of any given State from trying or punishing an
offence for which the person concerned has already been acquitted or convicted in that same State. On the other hand, the
principle ne bis in idem does not preclude a person from being tried or punished more than once in two or more different States
for the same conduct.

It is true that Article 50 of the Charter of Fundamental Rights of the European Union provides that no one may be tried or
punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted within the
Union in accordance with the law. However, that charter is clearly intended to apply only within the territory of the Union
and the scope of the right laid down in Article 50 is expressly limited to cases where the first acquittal or conviction was
handed down within the Union.

(see paras 130-135, 137)

7.     The Commission’s power to impose fines on undertakings which, intentionally or negligently, infringe the provisions of Article
81(1) EC or Article 82 EC is one of the means conferred on the Commission to enable it to carry out the task of supervision
entrusted to it by Community law. That task includes the duty to pursue a general policy designed to apply, in competition
matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles.

It follows that the Commission has power to decide the level of fines so as to reinforce their deterrent effect where infringements
of a given type, although established as being unlawful at the outset of Community competition policy, are still relatively
frequent on account of the profit that certain of the undertakings concerned are able to derive from them.

The objective of deterrence which the Commission is entitled to pursue when setting fines is intended to ensure that undertakings
comply with the competition rules laid down in the Treaty when conducting their activities within the Community or the European
Economic Area (EEA). Consequently, the deterrent effect of a fine imposed for infringement of the Community competition rules
cannot be assessed by reference solely to the particular situation of the undertaking sanctioned or by reference to whether
it has complied with the competition rules in non-member States outside the EEA.

It is therefore permissible for the Commission to impose on an undertaking a fine of a sufficiently deterrent level within
the limits laid down in Article 15(2) of Regulation No 17, without being required to take account for the purpose of determining
those limits of the sanction imposed on that undertaking in non-member States.

(see paras 144-145, 147-148)

8.     The principle of protection of its legitimate expectations extends to any individual in a situation where the Community authorities
have caused him to entertain legitimate expectations, it being understood that no one may plead infringement of that principle
unless he has been given precise, unconditional and consistent assurances, from authorised, reliable sources, by the administration.

In that regard, an undertaking cannot reasonably expect that a decision adopted by the College of Commissioners, in accordance
with the principle of collegiality established in Article 1 of the Rules of Procedure of the Commission of 29 November 2000,
imposing a fine on it in order to sanction its participation in a cartel active on a worldwide scale would be delegated, as
a ‘management or administrative measure’ within the meaning of Article 14 of those Rules of Procedure, to the Director-General
competent for competition matters. It follows that a Director-General cannot have provided an undertaking with ‘precise assurances
from [an] authorised, reliable source’ as regards the imputation of the sanctions imposed on it in a non-member State, as
his powers are limited to submitting proposals to the College which the College is at liberty to accept or reject.

(see paras 152-153)

9.     Although the Commission has a discretion when determining the amount of each fine, and is not required to apply a precise
mathematical formula, the Court none the less has, pursuant to Article 17 of Regulation No 17, unlimited jurisdiction within
the meaning of Article 229 EC in actions brought against the decisions whereby the Commission has fixed a fine and may therefore
cancel, reduce or increase the fine imposed. In that context, its assessment of the appropriateness of the fine may, independently
of any manifest errors of assessment made by the Commission, justify the production and taking into account of additional
information which is not mentioned in the Commission decision.

(see para. 165)

10.   The change which the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article
65(5) of the ECSC Treaty made by reference to the Commission’s previous administrative practice does not constitute an alteration
of the legal framework determining the level of fines which can be imposed that is contrary to the principles of non-retroactivity
of legislation and legal certainty. First, the Commission’s previous practice does not itself serve as a legal framework for
the fines imposed in competition matters, since that framework is defined solely in Regulation No 17. Second, having regard
to the wide discretion which Regulation No 17 leaves the Commission, the fact that the latter introduces a new method of calculating
fines, which may lead to an increase in the general level of fines but which does not go beyond the legal framework of sanctions
as defined in Article 15(2) of Regulation No 17, cannot be regarded as an aggravation, with retroactive effect, of the fines
as provided for in that provision.

(see paras 190-191)

11.   The fact that in the past the Commission imposed fines of a certain level for certain types of infringement does not mean
that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure
the implementation of Community competition policy and to strengthen the deterrent effect. The proper application of the Community
competition rules requires, on the contrary, that the Commission may at any time adjust the level of fines to the needs of
that policy.

(see paras 192, 216)

12.   As regards the setting of the amount of fines in competition cases, the only express reference to turnover in Article 15(2)
of Regulation No 17 concerns the upper limit that a fine cannot exceed, and that that limit is taken to refer to worldwide
turnover. Provided that it remains within that limit, the Commission may in principle choose which turnover to take in terms
of territory and products in order to determine the fine, without being obliged to adhere precisely to the worldwide turnover
or turnover in the geographic market or the relevant product market. Last, although the Guidelines on the method of setting
fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty do not provide that fines
are to be calculated according to a specific turnover, they do not preclude such a figure from being taken into account, provided
that the choice made by the Commission is not vitiated by a manifest error of assessment.

(see para. 195)

13.   The fact that the Commission has the power to impose sanctions only within the European Economic Area (EEA) does not preclude
it from taking into consideration worldwide turnover derived from sales of the relevant product in order to evaluate the economic
capacity of the members of the cartel to harm competition within the EEA, on the understanding that, whatever turnover is
taken, disproportionate importance must not be ascribed to it by comparison with the other elements of assessment.

(see paras 200-201)

14.   Where the Commission relies on the impact of the infringement in order to assess its gravity, in accordance with point 1.A,
first and second paragraphs, of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation
No 17 and Article 65(5) of the ECSC Treaty, the effects to be taken into account in that regard are those resulting from the
entire infringement in which all the undertakings participated, so that consideration of the individual conduct or figures
particular to each undertaking is not relevant in that regard.

(see para. 203)

15.   As regards the setting of the amount of fines for infringement of the competition rules, the Commission’s approach of dividing
the members of a cartel into several categories, with the consequence that a flat-rate starting amount was fixed for all the
undertakings in the same category, although such an approach ignores the differences in size between undertakings in the same
category, cannot in principle be condemned. The Commission is not required, when determining fines, to ensure, where fines
are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines reflect any
distinction between the undertakings concerned in terms of their overall turnover.

However, such a division by categories must comply with the principle of equal treatment, according to which it is prohibited
to treat similar situations differently and different situations in the same way, unless such treatment is objectively justified.
Furthermore, the amount of the fine must at least be proportionate in relation to the factors taken into account in the assessment
of the gravity of the infringement.

It follows that, where the Commission divides the undertakings concerned into categories for the purpose of setting the amount
of the fines, the thresholds for each of the categories thus identified must be coherent and objectively justified.

(see paras 217, 219-220)

16.   Where the Commission decides, for the purpose of setting the amount of the fines to be imposed on economic operators which
have infringed the competition rules, to apply the differentiation method laid down in the Guidelines on the method of setting
fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, it is required to adhere
to them, and must set out expressly its reasons should it depart from those Guidelines in any particular regard. Accordingly,
while the Commission may take a multitude of factors into consideration in determining the final amount of a fine and is not
required to apply mathematical formulae when doing so, it must, where it deemed it appropriate and equitable to have recourse,
at a certain stage of that exercise, to mathematical calculations, apply its own method in a manner which is correct, coherent
and, in particular, non-discriminatory. Once it has voluntarily chosen to apply such an arithmetical method, it is bound by
the rules inherent therein, unless it provides express reasons for not doing so, in regard to all members of the same cartel.

(see paras 231-232, 352)

17.   The statement of reasons on which an individual decision is based must disclose in a clear and unequivocal fashion the reasoning
followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain
the reasons for the measure and to enable the competent Community Court to exercise its power of review. The assessment of
the requirement to state reasons depends on the circumstances of each case. It is not necessary for the reasoning to go into
all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article
253 EC must be assessed with regard not only to the wording of the measure but also to the context in which the measure was
adopted.

In that regard, the Commission fulfils its obligation to state reasons when it indicates, in a decision imposing sanctions
for infringement of the Community competition rules, the factors which enabled it to measure the gravity of the offence, without
being required to set out a more detailed account or the figures relating to the method of calculating the fine.

(see paras 250, 252)

18.   The rule that it falls, in principle, to the natural or legal person managing the undertaking in question when the infringement
was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person
had assumed responsibility for operating the undertaking, must be interpreted as meaning that an undertaking – that is to
say, an economic unit consisting of personal, tangible and intangible elements – is directed by the organs provided for in
its articles of association and that any decision imposing a fine on it may be addressed to the management as provided for
in the undertaking’s articles of association (management board, management committee, chairman, manager, etc.), even though
the financial consequences of the fine are ultimately borne by its owners. That rule would not be observed if the Commission,
faced with unlawful conduct on the part of an undertaking, were always required to ascertain who is the owner exercising a
decisive influence on the undertaking and were allowed to impose a sanction only on that owner.

(see paras 280-281)

19.   Where an infringement has been committed by a number of undertakings, it is necessary, in determining the amount of the fines,
to establish their respective roles in the infringement throughout the duration of their participation in it. It follows,
in particular, that the role of ‘ringleader’ played by one or more undertakings in a cartel must be taken into account for
the purposes of calculating the amount of the fine, in so far as the undertakings which played such a role must therefore
bear special responsibility in comparison with the other undertakings.

(see para. 301)

20.   According to the third indent of point 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2)
of Regulation No 17 and Article 65(5) of the ECSC Treaty, an ‘exclusively passive or “follow-my-leader” role’ played by an
undertaking in the infringement may, if established, constitute an attenuating circumstance.

In that regard, the factors capable of revealing the passive role of an undertaking within a cartel may include the significantly
more sporadic nature of its participation in the meetings by comparison with the ordinary members of the cartel, and also
the existence of express declarations to that effect made by representatives of other undertakings which participated in the
infringement. In any event, it is necessary to take account of all the relevant circumstances in each particular case.

(see paras 330-331)

21.   Where it is required to set the amount of the fines to be imposed on the members of an anti-competitive cartel, the Commission
is not required, when taking attenuating circumstances into account, to adhere to its previous practice in taking decisions.
It is therefore under no obligation, even if it has done so in the past, to take into account as an attenuating circumstance
the fact that an undertaking has set up a competition compliance programme or the fact that the sector in which an undertaking
operates is in a poor financial situation.

(see paras 343, 345)

22.   The maximum limit of 10% referred to in Article 15(2) of Regulation No 17 which is not to be exceeded by the amount of a fine
imposed on an undertaking for infringement of the competition rules refers to the total turnover of the undertaking concerned,
which alone gives an indication of that undertaking’s size and influence on the market. It is only the fine ultimately imposed
that must be reduced to that limit, in accordance with Article 15 of Regulation No 17; that provision does not prohibit the
Commission from referring, during its calculation, to an intermediate amount higher than that limit, provided that the amount
of the fine eventually imposed does not exceed it.

(see para. 367)

23.   In a competition matter, the Commission is not required when determining the amount of the fine to take account of an undertaking’s
financial losses since recognition of such an obligation would have the effect of conferring an unfair competitive advantage
on the undertakings least well adapted to the conditions of the market. The fact that the Commission has found in previous
decisions that it was appropriate to take account of the financial difficulties of a given undertaking does not mean that
it is obliged to do so in a subsequent decision.

Furthermore, the fact that a measure taken by a Community authority leads to the insolvency or liquidation of a given undertaking
is not prohibited as such by Community law.

(see paras 370, 372, 484)

24.   An absolute right to silence cannot be recognised to an undertaking to which a decision requiring information within the meaning
of Article 11(5) of Regulation No 17 is addressed. To acknowledge the existence of such a right would be to go beyond what
is necessary in order to preserve the rights of defence of undertakings, and would constitute an unjustified hindrance to
the Commission’s performance of its duty to ensure that the rules on competition within the common market are observed. A
right to silence can be recognised only to the extent that the undertaking concerned would be compelled to provide answers
which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission
to establish.

In order to ensure the effectiveness of Article 11 of Regulation No 17, the Commission is therefore entitled to compel the
undertakings to provide all necessary information concerning such facts as may be known to them and to disclose to the Commission,
if necessary, such documents relating thereto as are in their possession, even if the latter may be used to establish the
existence of anti-competitive conduct. This power of the Commission to obtain information does not fall foul of either Article
6(1) and (2) of the European Convention on Human Rights or the case-law of the European Court of Human Rights.

In any event, the mere fact of being obliged to answer purely factual questions put by the Commission and to comply with its
requests for the production of documents already in existence cannot constitute a breach of the fundamental principle of respect
for the rights of defence or impair the right to fair legal process, which offer, in the field of competition law, protection
equivalent to that guaranteed by Article 6 of the European Convention on Human Rights. There is nothing to prevent the addressee
of a request for information from showing, whether later during the administrative procedure or in proceedings before the
Community Courts, that the facts set out in his replies or the documents produced by him have a different meaning from that
ascribed to them by the Commission.

(see paras 402-404, 406)

25.   The fact that a request for information was sent to an undertaking under Article 11(1) of Regulation No 17 cannot minimise
the cooperation provided by that undertaking under point D, paragraph 2, first indent, of the Notice on the non-imposition
or reduction of fines in cartel cases.

(see para. 410)

26.   Oral information provided to the Commission by an undertaking may constitute valid evidence for the purposes of the first
indent of point D(2) of the Notice on the non-imposition or reduction of fines in cartel cases. That provision states that
not only ‘documents’ but also ‘information’ may serve as ‘evidence’ which materially contributes to establishing the existence
of the infringement. It follows that the information need not necessarily be provided in documentary form. Furthermore, the
practical utility of purely oral information is indisputable when it allows the Commission, for example, to find direct evidence
of the infringement or when, owing to its precision, it encourages the Commission to continue an investigation which, not
having sufficient evidence available at that time, it would have abandoned without that information.

(see paras 430-431)

27.   A reduction in the fine may be granted in respect of any cooperation which enabled the Commission to establish the existence
of an infringement more easily and, where relevant, to bring it to an end. While it is true that the Notice on the non-imposition
or reduction of fines in cartel cases provides, in point 3, only for a reduction ‘in the fine which would have been imposed
upon [the undertakings cooperating with the Commission]’, it does not require that each individual item of information must
relate to an infringement of competition law in respect of which a separate sanction may be imposed. In order to be able to
benefit from that notice, it is sufficient that, by revealing its involvement in an infringement, the undertaking minded to
cooperate exposes itself to sanctions, while whether the various items of information may be taken into consideration for
the purposes of a possible reduction in the fine depends on how useful they are to the Commission in its task of establishing
the existence of the infringement and putting an end to it.

In that last regard, where a disloyal Commission official is in a position to sabotage its mission by supporting the members
of an illegal cartel and may thus considerably complicate the investigation carried out by the Commission, for example by
destroying or manipulating evidence, by informing the members of the cartel of a forthcoming unannounced investigation and
by revealing the entire investigation strategy drawn up by the Commission, information about the existence of such an official
must, in principle, be regarded as being capable of making it easier for the Commission to carry out its task of establishing
an infringement and putting an end to it. Such information is particularly useful when it is provided at the beginning of
the investigation opened by the Commission into possible anti-competitive conduct.

(see paras 435-436)

28.   The power conferred on the Commission by Article 15(2) of Regulation No 17 covers the power to determine the date on which
the fines are payable and that on which default interest begins to accrue, the power to set the rate of such interest and
to determine the detailed arrangements for implementing its decision by requiring, where appropriate, the provision of a bank
guarantee covering the principal amount of the fines imposed plus interest. If the Commission had no such power, the advantage
which undertakings might be able to derive from late payment of fines would weaken the effect of penalties imposed by the
Commission when carrying out its task of ensuring that the rules on competition are applied. Thus, the charging of default
interest on fines is justified by the need to ensure that the Treaty is not rendered ineffective by practices applied unilaterally
by undertakings which delay paying fines imposed on them and to ensure that those undertakings do not enjoy an advantage over
those which pay their fines within the period laid down.

(see paras 475-476)

:

: **Facts and procedure**

1
:

2
:

3
:

4
:

5
:

6
:

7
:

8
:

9
:

10
:

11
:

12
:

13
:

:

–
: prices for graphite electrodes should be set on a global basis;

:

–
: decisions on each company’s pricing had to be taken by the Chairman/General Manager only;

:

–
: the ‘home producer’ was to establish the market price in its home area and the other producers would ‘follow’ it;

:

–
: for ‘non-home’ markets, i.e. markets where there was no ‘home’ producer, prices would be decided by consensus;

:

–
: non-home producers should not compete aggressively and would withdraw from the other producers’ home markets;

:

–
: there was to be no expansion of capacity (the Japanese were supposed to reduce their capacity);

:

–
: there should be no transfer of technology outside the circle of producers participating in the cartel.

14
:

15
:

16
:

17
:

18
:

19
:

20
:

21
:

22
:

23
:

24
:

25
:

:

–
: annul Article 3 (and, in so far as necessary, Article 4) of the Decision in so far as it imposes a fine of EUR 24.5 million
on Tokai, or, in the alternative, substantially reduce that fine;

:

–
: order the Commission to pay the costs.

26
:

:

–
: annul the Decision in so far as it concerns SGL;

:

–
: in the alternative, reduce the fine as appropriate;

:

–
: order the Commission to pay the costs.

27
:

:

–
: annul Article 1 of the Decision in so far as it finds that Nippon participated in an infringement of Article 81 EC and Article
53(1) EEA between May 1992 and March 1993;

:

–
: annul Article 3 of the Decision in so far as it imposes a fine of EUR 12.2 million on Nippon;

:

–
: in the alternative, substantially reduce the fine;

:

–
: order the Commission to pay the costs.

28
:

:

–
: annul Article 3(d) of the Decision;

:

–
: in the alternative, reduce the fine to EUR 2.95 million or to such other amount as the Court may deem reasonable;

:

–
: request the Commission, pursuant to Article 65(b) of the Rules of Procedure, to produce all the documents showing how the
fine was calculated;

:

–
: order the Commission to pay the costs.

29
:

:

–
: order such measures of enquiry as appear necessary;

:

–
: annul Article 3 of the Decision in so far as it imposes a fine on the applicant, or, in the alternative, reduce the fine;

:

–
: annul Article 4 of the Decision in so far as it applies to UCAR, or, in the alternative, modify the terms of payment applicable
to the fine payable in accordance with the terms and conditions set out in Annex 50 to the application;

:

–
: annul the July letter, or, in the alternative, modify the conditions set out therein in accordance with the conditions set
out in Annex 50 to the application;

:

–
: annul the August letter, or, in the alternative, modify the conditions set out therein in accordance with the conditions set
out in Annex 50 to the application;

:

–
: order any other measure which justice may require;

:

–
: order the Commission to pay the costs.

30
:

:

–
: annul Article 3 of the Decision in so far as it imposes a fine of EUR 12.2 million on SEC;

:

–
: in the alternative, substantially reduce the fine;

:

–
: order the Commission to pay the costs.

31
:

:

–
: annul the Decision in so far as it imposes a fine on C/G;

:

–
: in the alternative, reduce the fine;

:

–
: order the Commission to pay the costs.

32
:

:

–
: dismiss the actions as unfounded;

:

–
: order the applicants to pay the costs.

33
:

:

–
: dismiss the actions as unfounded;

:

–
: increase the fines;

:

–
: order the applicants to pay the costs.

34
:

35
:

36
:

37
:

38
:

39
:

40
:

41
:

42
:

43
:

44
:

45
:

46
:

47
:

48
:

49
:

50
:

51
:

52
:

53
:

54
:

55
:

56
:

57
:

58
:

59
:

60
:

61
:

62
:

63
:

64
:

65
:

66
:

67
:

68
:

69
:

70
:

71
:

72
:

73
:

74
:

75
:

76
:

77
:

78
:

79
:

80
:

81
:

82
:

83
:

84
:

85
:

86
:

87
:

88
:

89
:

90
:

91
:

92
:

93
:

94
:

95
:

96
:

97
:

98
:

99
:

100
:

101
:

102
:

:

–
: that the participants in the first ‘Top Guy’ meeting held in London on 21 May 1992 were SGL, UCAR, Mitsubishi, SDK and Tokai,
‘the latter also representing the interests of Nippon and SEC’, and that the basic principles of the cartel were fixed at
that meeting;

:

–
: that that meeting was followed almost immediately by a ‘Working Level’ meeting in Zurich on 25 May 1992, attended by all the
addressees of the statement of objections, including Nippon, and at which the world graphite electrodes market was reviewed
region by region (Far East; Middle East and Africa; Western Europe; Eastern Europe; Latin America and North America) and market
shares were allocated;

:

–
: that Nippon and SEC cannot claim that they did not attend the meeting of 21 May 1992, since they were both represented by
Tokai and were themselves present at the first ‘Working Level’ meeting only four days later;

:

–
: that a second ‘Working Level’ meeting took place in Lugano on 19 September 1992 ‘with the Japanese producers’ at which the
minimum prices for the European market were communicated to those producers and volumes and quotas were set for each region.

103
:

104
:

105
:

106
:

107
:

108
:

109
:

110
:

111
:

112
:

113
:

114
:

115
:

116
:

117
:

118
:

119
:

120
:

121
:

122
:

123
:

124
:

125
:

126
:

127
:

128
:

129
:

130
:

131
:

132
:

133
:

134
:

135
:

136
:

137
:

138
:

139
:

140
:

141
:

142
:

143
:

144
:

145
:

146
:

147
:

148
:

149
:

150
:

151
:

152
:

153
:

154
:

155
:

156
:

157
:

158
:

159
:

160
:

161
:

162
:

163
:

164
:

165
:

166
:

:

–
: the nature of the infringement (market-sharing and price-fixing in a significant sector of the industry), taking the view
that this was a very serious infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement;

:

–
: the actual impact of the infringement on the graphite electrodes market in the EEA, taking the view that prices were not only
agreed but also announced and implemented and observing that prices applied (in particular price increases) largely followed
those agreed by the cartel over a period of six years;

:

–
: the size of the relevant geographic market, taking the view that the cartel covered the whole of the common market and, following
its creation, the whole of the EEA.

167
:

168
:

169
:

170
:

171
:

172
:

173
:

174
:

175
:

176
:

177
:

178
:

179
:

180
:

181
:

182
:

183
:

184
:

185
:

186
:

187
:

188
:

189
:

190
:

191
:

192
:

193
:

194
:

195
:

196
:

197
:

198
:

199
:

200
:

201
:

202
:

203
:

204
:

205
:

206
:

207
:

208
:

209
:

210
:

211
:

212
:

213
:

214
:

215
:

216
:

217
:

218
:

219
:

220
:

221
:

222
:

223
:

224
:

225
:

226
:

227
:

228
:

229
:

230
:

231
:

232
:

233
:

234
:

235
:

236
:

237
:

238
:

239
:

240
:

241
:

242
:

243
:

244
:

245
:

246
:

247
:

248
:

249
:

250
:

251
:

252
:

253
:

254
:

255
:

256
:

257
:

258
:

259
:

260
:

261
:

262
:

263
:

264
:

265
:

266
:

267
:

268
:

269
:

270
:

271
:

272
:

273
:

274
:

275
:

276
:

277
:

278
:

279
:

280
:

281
:

282
:

283
:

284
:

285
:

286
:

287
:

288
:

289
:

290
:

291
:

292
:

293
:

294
:

295
:

296
:

297
:

298
:

299
:

300
:

301
:

302
:

303
:

304
:

305
:

306
:

307
:

308
:

309
:

310
:

311
:

312
:

313
:

314
:

315
:

316
:

317
:

318
:

319
:

320
:

321
:

322
:

323
:

324
:

325
:

326
:

327
:

328
:

329
:

330
:

331
:

332
:

333
:

334
:

335
:

336
:

337
:

338
:

339
:

340
:

341
:

342
:

343
:

344
:

345
:

346
:

347
:

348
:

349
:

350
:

351
:

352
:

353
:

354
:

355
:

356
:

357
:

358
:

359
:

360
:

361
:

362
:

363
:

364
:

365
:

366
:

367
:

368
:

369
:

370
:

371
:

372
:

373
:

374
:

375
:

376
:

377
:

378
:

379
:

:

–
: before a statement of objections is sent, an enterprise provides the Commission with information, documents or other evidence
which materially contribute to establishing the existence of the infringements;

:

–
: after receiving a statement of objections, an enterprise informs the Commission that it does not substantially contest the
facts on which the Commission bases its allegations’ (paragraph 2).

380
:

381
:

382
:

383
:

384
:

385
:

386
:

387
:

388
:

389
:

390
:

391
:

392
:

393
:

394
:

395
:

396
:

397
:

398
:

399
:

400
:

401
:

402
:

403
:

404
:

405
:

406
:

407
:

408
:

409
:

410
:

411
:

412
:

413
:

414
:

415
:

416
:

417
:

418
:

419
:

420
:

421
:

422
:

423
:

424
:

425
:

426
:

427
:

428
:

429
:

430
:

431
:

432
:

433
:

434
:

435
:

436
:

437
:

438
:

439
:

440
:

441
:

442
:

443
:

444
:

445
:

446
:

447
:

448
:

449
:

450
:

451
:

452
:

453
:

454
:

455
:

456
:

457
:

458
:

:

–
: the fine imposed on SGL is reduced to EUR 69.114 million;

:

–
: the fine imposed on UCAR is reduced to EUR 42.05 million;

:

–
: the fine imposed on Tokai is reduced to EUR 12.276 million;

:

–
: the fine imposed on SDK is reduced to EUR 10.44 million;

:

–
: the fine imposed on C/G is reduced to EUR 6.48 million;

:

–
: the fine imposed on Nippon is reduced to EUR 6.2744 million;

:

–
: the fine imposed on SEC is reduced to EUR 6.138 million.

459
:

460
:

461
:

462
:

463
:

464
:

465
:

466
:

467
:

468
:

469
:

470
:

471
:

472
:

473
:

474
:

475
:

476
:

477
:

478
:

479
:

480
:

481
:

482
:

483
:

484
:

485
:

486
:

487
:

488
:

489
:

:

:

1.
: In Case T-236/01 *Tokai Carbon* v *Commission*:

:

: –
sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 12 276 000;

–
: sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 12 276 000;

:

: –
dismisses the remainder of the application;

–
: dismisses the remainder of the application;

:

: –
orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

–
: orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

:

2.
: In Case T-239/01 *SGL Carbon* v *Commission*:

:

: –
sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 69 114 000;

–
: sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 69 114 000;

:

: –
dismisses the remainder of the application;

–
: dismisses the remainder of the application;

:

: –
orders the applicant to bear seven eighths of its own costs and to pay seven eighths of the costs incurred by the Commission
and the Commission to bear one eighth of its own costs and to pay one eighth of the costs incurred by the applicant.

–
: orders the applicant to bear seven eighths of its own costs and to pay seven eighths of the costs incurred by the Commission
and the Commission to bear one eighth of its own costs and to pay one eighth of the costs incurred by the applicant.

:

3.
: In Case T-244/01 *Nippon* *Carbon* v *Commission*:

:

: –
sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 274 400;

–
: sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 274 400;

:

: –
dismisses the remainder of the application;

–
: dismisses the remainder of the application;

:

: –
orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

–
: orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

:

4.
: In Case T-245/01 *Showa Denko* v *Commission*:

:

: –
sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 10 440 000;

–
: sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 10 440 000;

:

: –
dismisses the remainder of the application;

–
: dismisses the remainder of the application;

:

: –
orders the applicant to bear three fifths of its own costs and to pay three fifths of the costs incurred by the Commission
and the Commission to bear two fifths of its own costs and to pay two fifths of the costs incurred by the applicant.

–
: orders the applicant to bear three fifths of its own costs and to pay three fifths of the costs incurred by the Commission
and the Commission to bear two fifths of its own costs and to pay two fifths of the costs incurred by the applicant.

:

5.
: In Case T-246/01 *GrafTech International*, formerly UCAR International v *Commission*:

:

: –
sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 42 050 000;

–
: sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 42 050 000;

:

: –
dismisses the remainder of the application;

–
: dismisses the remainder of the application;

:

: –
orders the applicant to bear four fifths of its own costs and to pay four fifths of the costs incurred by the Commission and
the Commission to bear one fifth of its own costs and to pay one fifth of the costs incurred by the applicant.

–
: orders the applicant to bear four fifths of its own costs and to pay four fifths of the costs incurred by the Commission and
the Commission to bear one fifth of its own costs and to pay one fifth of the costs incurred by the applicant.

:

6.
: In Case T-251/01 *SEC* *Corporation* v *Commission*:

:

: –
sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 138 000;

–
: sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 138 000;

:

: –
dismisses the remainder of the application;

–
: dismisses the remainder of the application;

:

: –
orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

–
: orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

:

7.
: In Case T-252/01 *The* *Carbide*/*Graphite* *Group* v *Commission*:

:

: –
sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 480 000;

–
: sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 480 000;

:

: –
dismisses the remainder of the application;

–
: dismisses the remainder of the application;

:

: –
orders the applicant to bear three fifths of its own costs and to pay three fifths of the costs incurred by the Commission
and the Commission to bear two fifths of its own costs and to pay two fifths of the costs incurred by the applicant.

–
: orders the applicant to bear three fifths of its own costs and to pay three fifths of the costs incurred by the Commission
and the Commission to bear two fifths of its own costs and to pay two fifths of the costs incurred by the applicant.

---

1 –
: Languages of the case: German and English.

---

2 –
: Confidential information omitted.