# C_2005281EN.01000702.xml

| 12.11.2005 | EN | Official Journal of the European Union | C 281/7 |
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12.11.2005

EN

Official Journal of the European Union

C 281/7

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Appeal brought on 30 August 2005 by SGL Carbon AG against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 15 June 2005 in Joined Cases T-71/03,T-74/03, T-87/03 and T-91/03 Tokai and Others v Commission of the European Communities, in respect of Case T-91/03

Tokai and Others

Commission of the European Communities

(Case C-328/05 P)

(2005/C 281/14)

Language of the case: German

On 30 August 2005, SGL Carbon AG, represented by Martin Klusmann and Frederik Wiemer, of Freshfields Bruckhaus Deringer, Feldmühleplatz 1, D-40008 Düsseldorf, brought an appeal before the Court of Justice of the European Communities against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai and Others v Commission of the European Communities, in respect of Case T-91/03.

Tokai and Others

Commission of the European Communities

The appellant claims that the Court should:

| — | whilst upholding the submissions made at first instance, partially set aside the judgment of the Court of First Instance of the European Communities of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03, (1) in so far as it dismissed the action in Case T-91/03 brought against the Commission's decision C(2002) 5083 final, of 17 December 2002 relating to a proceeding under Article 81 EC; |
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whilst upholding the submissions made at first instance, partially set aside the judgment of the Court of First Instance of the European Communities of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03, (1) in so far as it dismissed the action in Case T-91/03 brought against the Commission's decision C(2002) 5083 final, of 17 December 2002 relating to a proceeding under Article 81 EC;

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| — | in the alternative, reduce the fine imposed on the appellant in Article 3 of the decision of 17 December 2002 and further reduce the amount of the interest payable pending judgment and the default interest laid down in the operative part of the judgment under appeal, as appropriate; |
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in the alternative, reduce the fine imposed on the appellant in Article 3 of the decision of 17 December 2002 and further reduce the amount of the interest payable pending judgment and the default interest laid down in the operative part of the judgment under appeal, as appropriate;

| — | order the respondent to pay the entire costs of the proceedings. |
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order the respondent to pay the entire costs of the proceedings.

Grounds of appeal and main arguments

The appellant reasons its appeal against the abovementioned judgment of the Court of First Instance by alleging erroneous application of procedural rules and infringement of Community law:

| 1. | It is claimed that, according to the fundamental principle non bis in idem — generally applicable in the laws of the Member States and the Community and also in relation to non-member countries — in the present case, the earlier fine imposed on the appellant in the United States should have been taken into account. The absolute refusal to take account of the previous fines imposed abroad — in infringement of that principle and thus, also of the principle of material justice — is unlawful and does not fall within the discretion of the authority which made the decision or that of the Court of First Instance. |
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1.

It is claimed that, according to the fundamental principle non bis in idem — generally applicable in the laws of the Member States and the Community and also in relation to non-member countries — in the present case, the earlier fine imposed on the appellant in the United States should have been taken into account. The absolute refusal to take account of the previous fines imposed abroad — in infringement of that principle and thus, also of the principle of material justice — is unlawful and does not fall within the discretion of the authority which made the decision or that of the Court of First Instance.

non bis in idem

| 2. | No justification was given for increasing the amount of the fine by 35 % as a result of the allegation that the appellant was the sole ringleader, since the indisputable facts and the Court of First Instance's own contradictory findings do not provide a basis for so doing. Since it was not apparent from the Commission's points of complaint that it was intending to consider the appellant as the sole ringleader, the right to a fair hearing was also thereby infringed. |
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2.

No justification was given for increasing the amount of the fine by 35 % as a result of the allegation that the appellant was the sole ringleader, since the indisputable facts and the Court of First Instance's own contradictory findings do not provide a basis for so doing. Since it was not apparent from the Commission's points of complaint that it was intending to consider the appellant as the sole ringleader, the right to a fair hearing was also thereby infringed.

| 3. | The Court of First Instance did not clarify the appellant's objection according to which its rights of defence were irreparably infringed by the inadequate language knowledge of the members of the Commission's team working on the case, and this in spite of the appellant's substantiated submissions and offers to produce evidence. |
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3.

The Court of First Instance did not clarify the appellant's objection according to which its rights of defence were irreparably infringed by the inadequate language knowledge of the members of the Commission's team working on the case, and this in spite of the appellant's substantiated submissions and offers to produce evidence.

| 4. | The cooperation provided by the appellant was undervalued. Given that the cooperation which it provided was worth at least as much as that of the other participants it was — by reason of the significantly smaller reduction of its fine in comparison with those of the other participants — the victim of discrimination. |
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4.

The cooperation provided by the appellant was undervalued. Given that the cooperation which it provided was worth at least as much as that of the other participants it was — by reason of the significantly smaller reduction of its fine in comparison with those of the other participants — the victim of discrimination.

| 5. | The fines imposed were disproportionally high since the fact that the appellant was going through a difficult period at the time of the decision was not taken into account. The Commission and the Court of First Instance could not presume that economic efficiency is generally not to be taken into account when determining the amount of a fine: they must both check whether the fine imposed is economically viable. |
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5.

The fines imposed were disproportionally high since the fact that the appellant was going through a difficult period at the time of the decision was not taken into account. The Commission and the Court of First Instance could not presume that economic efficiency is generally not to be taken into account when determining the amount of a fine: they must both check whether the fine imposed is economically viable.

| 6. | Finally, the determination of the interest rate was also erroneous: the particularly high interest during the proceedings amounts specifically to an additional fine, for which there is no legal basis. |
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6.

Finally, the determination of the interest rate was also erroneous: the particularly high interest during the proceedings amounts specifically to an additional fine, for which there is no legal basis.

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(1)  OJ 2005 C 205 of 20 August 2005.

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