EN Official Journal of the European Union C 44/35

Appeal brought on 17 December 2008 by Le Carbone Lorraine against the judgment of the Court of First Instance (Fifth Chamber) delivered on 8 October 2008 in Case T-73/04 Le Carbone Lorraine v Commission

(Case C-554/08 P)

(2009/C 44/59)

Language of the case: French

Parties

Appellant: Le Carbone Lorraine (represented by: A. Winckler and H. Kanellopoulos, avocats)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— set aside, in part, under Article 225(1) EC and Article 61 of the Statute of the Court of Justice, the judgment of the Court of First Instance of 8 October 2008 in Case T-73/04 Le Carbone Lorraine v Commission;

— allow the claims submitted by Le Carbone Lorraine at first instance and, consequently, on the basis of Article 229 EC, Article 61 of the Statute of the Court of Justice and Article 17 of Council Regulation No 17/62 (1), now Article 31 of Council Regulation No 1/2003 (2), reduce the amount of the fine imposed on Le Carbone Lorraine by the Commission in its decision of 3 December 2003 in Case C.38.359 — Electrical and mechanical carbon and graphite products (3);

— order the Commission to pay the costs.

Pleas in law and main arguments

The appellant puts forward four pleas in law in support of its appeal.

By its first plea, the appellant claims that the Court of First Instance infringed the principle that penalties must be specific to the offender in that it held that the Commission was not required to assess individually the various elements of the infringement, since there was a single infringement and an overall strategy shared by all the members of the cartel. In the absence of a definition of the relevant product markets or of the categories of products in question, such an overall assessment of the infringement leads to the amount of the fine being set without regard for the actual infringement specifically committed by each member of the cartel.

By its second plea, the appellant asserts that the Court of First Instance misinterpreted the Commission's decision in that it held that the Commission had taken account of the actual impact of the cartel on the market in question in order to determine the amount of the fine, despite the fact that the Commission itself had stated, both in its decision of 3 December 2003, and at the hearing before the Court of First Instance, that that impact could not be determined with any precision. The infringement was classified as ‘very serious’ on the sole ground of its type and geographical scope.

By its third plea, the appellant claims that the Court of First Instance infringed the principle of equal treatment in that it upheld the Commission's refusal to grant the appellant an additional reduction in the amount of the fine based on the leniency notice, despite the fact that that reduction had been granted additionally to two other companies, which are competitors of the appellant. The close and sustained cooperation of the appellant in the course of the proceedings was, therefore, not sufficiently taken into account and recompensed by the Court of First Instance.

By its fourth and final plea, Carbone Lorraine objects to the breaches, by the Court of First Instance, of the principles of proportionality and equal treatment, in that it held that the appellant could not benefit from a reduction in the amount of the fine on the basis of the serious financial difficulties which it was facing, despite the fact that that same factor was held to be sufficient to reduce the fine imposed on another competing company.

(1) Council Regulation No 17/62 of 7 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (English special edition: Series I Chapter 1959-1962, p. 87).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(3) OJ 2004 L 125, p. 45.