# C_2004239EN.01000102.xml

| 25.9.2004 | EN | Official Journal of the European Union | C 239/1 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/1

---

Appeal brought on 15 July 2004 by SEC Corporation against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities.

(Case C-307/04 P)

(2004/C 239/02)

An appeal against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 15 July 2004 by SEC Corporation (case T-251/01 (1)), established in Amagasaki, Hyogo (Japan), represented by K. Platteau, lawyer.

1

The Appellant claims that the Court should:

| (a) | set aside in part the judgment under appeal in so far as it determines that the Commission was entitled to use worldwide product turnover as the differentiating factor when setting the basic amount of the fine imposed on the Appellant; |
| --- | --- |

(a)

set aside in part the judgment under appeal in so far as it determines that the Commission was entitled to use worldwide product turnover as the differentiating factor when setting the basic amount of the fine imposed on the Appellant;

| (b) | annul Article 3 of the Decision (2), as modified by the Court of First Instance, in so far as it imposes a fine of EUR 6.138 million on the Appellant, or, at least, substantially reduce this fine further to such amount the Court deems appropriate; and |
| --- | --- |

(b)

annul Article 3 of the Decision (2), as modified by the Court of First Instance, in so far as it imposes a fine of EUR 6.138 million on the Appellant, or, at least, substantially reduce this fine further to such amount the Court deems appropriate; and

2

| (c) | order the Commission to pay the costs incurred before the Court of First Instance and the Court of Justice. |
| --- | --- |

(c)

order the Commission to pay the costs incurred before the Court of First Instance and the Court of Justice.

Pleas in law and main arguments:

The Appellant submits that the judgment of the Court of First Instance should be set aside on the following grounds:

| 1) | Violation of Article 253 of the EC Treaty and the principles of non bis in idem and of fairness by holding that the Commission, in setting the fine imposed on SEC and in the context of the particular features of this case, is not obliged to take account of the sanctions previously imposed on SEC by the US competition authorities based on the same facts. |
| --- | --- |

1)

Violation of Article 253 of the EC Treaty and the principles of non bis in idem and of fairness by holding that the Commission, in setting the fine imposed on SEC and in the context of the particular features of this case, is not obliged to take account of the sanctions previously imposed on SEC by the US competition authorities based on the same facts.

| 2) | Violation of Article 253 of the EC Treaty and the principles of fairness and proportionality, by holding that the Commission is entitled to differentiate the basic amount of the fine of the parties involved on the basis of the worldwide product turnover only, with disregard to the scope of SEC's activities in the EEA. |
| --- | --- |

2)

Violation of Article 253 of the EC Treaty and the principles of fairness and proportionality, by holding that the Commission is entitled to differentiate the basic amount of the fine of the parties involved on the basis of the worldwide product turnover only, with disregard to the scope of SEC's activities in the EEA.

---

(1)  OJ C 31, 2.2.2002, p. 12.

1

(2)  Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement — Case COMP/E-1/36.490 — Graphite electrodes (OJ 2002, L 100, p. 1).

2

---