# C_2004239EN.01000101.xml

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

EN

Official Journal of the European Union

C 239/1

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Appeal brought on 1 July 2004 by Showa Denko K.K. 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-289/04 P)

(2004/C 239/01)

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 1 July 2004 by Showa Denko K.K. (case T-245/01 (1)), established in Tokyo (Japan), represented by M. Dolmans, J. Temple Lang and P. Werdmuller, lawyers.

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The Appellant claims that the Court should:

| — | set aside the judgment in case T-245/01 Showa Denko K.K. v. Commission of the European Communities in part; |
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set aside the judgment in case T-245/01 Showa Denko K.K. v. Commission of the European Communities in part;

| — | reduce the amount of the Appellant's fine to EUR 6,960,000 or by an amount considered appropriate by the Court of Justice in the exercise of its discretion; and |
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reduce the amount of the Appellant's fine to EUR 6,960,000 or by an amount considered appropriate by the Court of Justice in the exercise of its discretion; and

| — | take any other measure that the Court of Justice deems appropriate. |
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take any other measure that the Court of Justice deems appropriate.

Pleas in law and main arguments:

The Appellant submits that there is no indication that the Appellant's group or top management was involved in the cartel, no evidence that the Appellant engaged in the infringements calculatedly, deliberately and knowingly, and certainly no evidence that this was more so for the Appellant than for the other participants. There is therefore no justification for singling out the Appellant and imposing a special ‘deterrence factor’ on it.

If a fine otherwise calculated needs to be increased for deterrence on this ground, then the amount of the increase must be rationally based on the benefit which the company expected to obtain from the infringement. This increase can only be based on the company's turnover in the market affected by the infringement, adjusted for the probability or otherwise of detection.

The ‘size’ of the company or group in markets not affected by the infringement are not relevant to the expected benefits and incentives that a company might have to infringe the law, nor do they relate to risk of detection. Economic analysis confirms this. Conglomerate size and finances are therefore not relevant for the calculation of any increase which is needed for deterrence.

In other words, conglomerate size and finances cannot be a reason to single out the Appellant and increase the fine on it. Doing so is discriminatory, disproportionate, arbitrary, and not supported by adequate reasoning.

The Appellant therefore maintains that the Commission and the Court of First Instance were wrong to base the increase in the Appellant's fine for ‘deterrence’ on the Appellant's group turnover in products not affected by the infringement, without any finding that deterrence was necessary or identifying any rational basis for the amount of the increase.

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(1)  OJ C 17, 19.1.2002, p. 15.

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