# C_2004251EN.01001301.xml

| 9.10.2004 | EN | Official Journal of the European Union | C 251/13 |
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JUDGMENT OF THE COURT OF FIRST INSTANCE

of 29 April 2004

in 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( 1 )

(Competition - Appeal - 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)

(2004/C 251/24)

Language of the case: German and English

In 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, established in Tokyo (Japan), represented initially by G. Van Gerven, T. Franchoo and M. De Grave and, subsequently, by G. Van Gerven and T. Franchoo, lawyers, with an address for service in Luxembourg, SGL Carbon AG, established in Wiesbaden (Germany), represented by M. Klusmann, F. Wiemer and C. Canenbley, lawyers, Nippon Carbon Co. Ltd, established in Tokyo (Japan), represented by H. Gilliams, lawyer, Showa Denko KK, established in Tokyo (Japan), represented by M. Dolmans and P. Werdmuller, lawyers, and J. Temple Lang, Solicitor, GrafTech International Ltd, formerly UCAR International Inc., established in Wilmington, Delaware (United States), represented by K. Lasok QC and B. Hartnett, Barrister, BL, with an address for service in Luxembourg, SEC Corp., established in Amagasaki, Hyogo (Japan), represented by K. Platteau, lawyer, The Carbide/Graphite Group, Inc., established in Pittsburgh (United States), represented initially by M. Seimetz and J. Brücher and, subsequently, by P. Grund, lawyers, with an address for service in Luxembourg, against Commission of the European Communities, represented by W. Mölls and P. Hellström, and, in Case T-246/01, by W. Wils, acting as Agents, with, in Case T-239/01, H.-J. Freund, lawyer, and, in Cases T-244/01, T-246/01, T-251/01 and T-252/01, J. Flynn and C. Kilroy, Barristers, with an address for service in Luxembourg — applications for annulment, in whole or in part, of Commission 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) — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it:

| 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; —
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. | — | 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; | — | orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party. |
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| — | 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; | | | | | | |
| — | 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; —
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. | — | 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; | — | 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. |
| -- | ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | - | --------------------------------------------------------------------------------------------------------- | - | ------------------------------------------- | - | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| — | 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; | | | | | | |
| — | 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; —
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. | — | 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; | — | orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party. |
| -- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | - | -------------------------------------------------------------------------------------------------------- | - | ------------------------------------------- | - | -------------------------------------------------------------------------------------------------------------------- |
| — | 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; | | | | | | |
| — | 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; —
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. | — | 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; | — | 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. |
| -- | ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | - | --------------------------------------------------------------------------------------------------------- | - | ------------------------------------------- | - | ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| — | 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; | | | | | | |
| — | 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; —
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. | — | 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; | — | 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. |
| -- | ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | - | --------------------------------------------------------------------------------------------------------- | - | ------------------------------------------- | - | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| — | 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; | | | | | | |
| — | 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; —
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. | — | 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; | — | orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party. |
| -- | ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | - | -------------------------------------------------------------------------------------------------------- | - | ------------------------------------------- | - | -------------------------------------------------------------------------------------------------------------------- |
| — | 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; | | | | | | |
| — | 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; —
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. | — | 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; | — | 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. |
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| — | 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; | | | | | | |
| — | 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. | | | | | | |

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( 1 )  OJ C 17, 19.1.2002.

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