Case T-245/01: Action brought on 4 October 2001 by Showa Denko K.K. against the Commission of the European Communities
Date: 2002-01-19
Institutions: Court of First Instance
Subjects: European Commission, Japan, action for annulment (EU), carbon, chemical industry, restriction on competition

19.1.2002

EN

Official Journal of the European Communities

C 17/15

The applicant claims that the Court should:

— annul Article 1 of the Commission Decision of 18 July
2001 in Case COMP/E-1/36.490 — Graphite electrodes,
in so far as it declares that the Applicant has participated
in an infringement of Article 81 EC and Article 53(1)
EEA for the period May 1992-March 1993;

— annul Article 3 of the Commission Decision of 18 July
2001 in Case COMP/E-1/36.490 — Graphite electrodes,
in so far as it imposes on the Applicant a fine of EUR
12.2 million;

— in the alternative, substantially reduce the above-men-

tioned fine;

— in any event, order that the costs of the proceedings be

borne by the Commission.

The Applicant alleges that the Commission has inappropriately
refused to take account of attenuating circumstances as set out
in the Commission’s Guidelines on the method of setting fines
and thereby violated the principle ‘patere legem quam ipse
fecisti’ and the protection of legitimate interests. It also acted
ultra vires and in violation of Articles 3(g), 5 and 81 EC by
imposing a fine calculated on the basis of the Applicant’s
worldwide turnover, even though the fine relates to an
infringement that was implemented by the Applicant almost
exclusively outside the European Union.

the Applicant submits that

Finally,
the Commission has
violated the principle of fairness and the principle ‘non bis in
idem’, by failing to take into consideration the fine already
imposed by a third State when determining the level of the
fine to be imposed on the Applicant.

Pleas in law and main arguments

Action brought on 4 October 2001 by Showa Denko K.K.
against the Commission of the European Communities

is a small

The Applicant
Japanese producer of graphite
electrodes. According to the contested decision, the Applicant
and seven other undertakings had infringed Article 81(1) of
the EC Treaty and Article 53(1) of the EEA Agreement by
participating in a complex of agreements and concerted
practices in the graphite sector. In the decision, the Com-
mission labelled the Japanese producers ‘active members’
participating in the illicit arrangement and inflicted a fine on
the Applicant of EUR 12.2 million. The infringement also
resulted in parallel proceedings in other states, e.g. in the
United States.

The Applicant denies neither the existence of an infringement
nor its participation in that infringement. It submits, however,
that
the Commission has infringed essential procedural
requirements and rights, including the right to a defence, the
duty to state reasons, and the principle of equal treatment, by
declaring, despite the absence of sufficient and/or admissible
evidence, that the Applicant participated in the infringement
between May 1992 and March 1993.

Furthermore, by its unlawful determination of the base amount
of the Applicant’s fine and by its imposition of a fine out of
proportion to the volume and the value of the products
concerned realised by the Applicant, the Commission has
violated the principles of proportionality and equal treatment
as well as the duty to state reasons.

(Case T-245/01)

(2002/C 17/27)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 4 October 2001 by Showa Denko
K.K., represented by Mr Maurits Dolmans and Mr Peter
Werdmuller of Cleary Gottlieb Steen & Hamilton, Brussels
(Belgium).

The applicant claims that the Court should:

— annul Article 3(d) of the Commission’s Decision in Case
No. COMP/E-1/36.490 — Graphite electrodes, or

— alternatively, reduce the fine imposed on Showa Denko
K.K. to EUR 2.95 million or such other amount as
the Court deems proportional, reasonable and non-
discriminatory;

— order the Commission to pay the applicant’s legal fees

and expenses.

C 17/16

EN

Official Journal of the European Communities

19.1.2002

Pleas in law and main arguments

The action concerns Commission Decision C(2001)1986 of
18 July 2001 in which the Commission found that the
applicant, a Japanese firm, together with seven other undertak-
ings, had infringed Article 81(1) EC and Article 53(1) of the
EEA Agreement by participating in a complex system of
agreements and concerted practices in the graphite electrodes
sector. It imposed a fine of EUR 17.4 million on the applicant.
In parallel proceedings in the United States, a fine was imposed
upon a subsidiary company of the applicant.

It submits that

The applicant contests the calculation of the fine and submits
the fine is unwarranted, discriminatory and dispro-
that
portionate.
the Commission violated the
principles of non-discrimination and proportionality in using
a 250 % ‘deterrence factor’ only for the applicant, the resulting
mark-up effectively eliminating the leniency reduction. Such a
‘deterrence factor’ is not objectively justified, and the Com-
mission erred in law by referring to total group-wide turnover
as a justification, even though the ‘deterrence factor’ is not
rationally related to, or necessary for, effective deterrence.

Furthermore, the applicant alleges that the Commission erred
in law in basing the basic fine on the worldwide market share
instead of EEA-wide turnover, and at the same time ignoring
fines imposed in other jurisdictions. Finally, the Commission
violated the principles of non-discrimination and pro-
portionality in reducing the fine imposed on UCAR Inter-
national Inc. by 15.2 % without proportionally reducing the
applicant’s fine.

European Communities on 6 October 2001 by UCAR Inter-
national Inc., represented by Mr K.P.E. Lasok QC of Monckton
Chambers, London (United Kingdom) and Mr B. Hartnett of
Squire Saunders Dempsey LLP, Brussels (Belgium).

The applicant claims that the Court should:

— annul Article 3 of the Commission Decision made on
18 July 2001 in Case No. COMP/E-1/36.490 — Graphite
Electrodes,
in so far as it imposes a fine on UCAR;
alternatively, reduce the level of that fine;

— annul Article 4 of the Commission Decision made on
18 July 2001 in Case No. COMP/E-1/36.490 — Graphite
Electrodes, in so far as it applies to UCAR; alternatively,
modify the terms of payment applicable to the fine
payable by UCAR in accordance with the terms and
conditions set forth in Annex 50;

— annul the decision contained in the Commission’s letter
dated 23 July 2001, in so far as it provides that the
Commission will undertake collection of the fine on
expiry of the period for its payment unless UCAR has not
only instituted proceedings for the annulment of the
Decision made on 18 July 2001 but also satisfies the two
conditions referred to in the letter; alternatively, modify
those terms in accordance with the terms and conditions
set forth in Annex 50;

— annul the decision contained in the Commission’s letter
dated 9 August 2001, in so far as the Commission has
rejected any and all proposals that do not
involve
payment of the fine in full, payment of interest, and/or
provision of a bank guarantee ensuring payment of the
fine plus accrued interest, and has in particular rejected a
lien on the assets of UCAR; alternatively, modify those
terms in accordance with the terms and conditions set
forth in Annex 50;

Action brought on 6 October 2001 by UCAR Inter-
national Inc. against the Commission of the European
Communities

— order the Commission to pay its own costs and those

incurred by UCAR International Inc.

(Case T-246/01)

(2002/C 17/28)

Pleas in law and main arguments

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the

By a decision of 18 July 2001, the European Commission
found that eight undertakings had infringed Article 81(1) of
the EC Treaty and Article 53(11) of the EEA Agreement by
participating in a complex of agreements and concerted
practices
sector. A fine of
EUR 50.4 million was imposed on the applicant and the terms

in the graphite electrodes