Case T-244/01: Action brought on 3 October 2001 by Nippon Carbon Co., Ltd. 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, unlawful agreement

C 17/14

EN

Official Journal of the European Communities

19.1.2002

Action brought on 1 October 2001 by Tokai Carbon Co.,
Ltd. against the Commission of the European Communi-
ties

(Case T-236/01)

(2002/C 17/25)

(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 1 October 2001 by Tokai Car-
bon Co., Ltd, represented by Mr Gerwin Van Gerven, Mr Tho-
mas Franchoo and Mr Martijn De Grave of Linklat-
ers & Alliance, Brussels (Belgium).

The applicant claims that the Court should:

— annul Article 3 (and in so far as necessary Article 4) of
the Commission decision of 18 July 2001 in Case
COMP/E-1/36.490 — Graphite electrodes, in so far as it
imposes a fine of EUR 24.5 million on Tokai, or, at least,
substantially reduce that fine; and

— order the Commission to pay the costs.

least

the annulment, or at

By its action, the applicant does not seek the annulment of the
decision, but
the substantial
reduction, of the fine imposed. The applicant submits that the
Commission should not have relied on worldwide turnover or
worldwide market share in order to determine the starting
level of the fine to be imposed on each of the firms participating
in the collusion, but should instead have considered their
sales/market share in the EEA for this purpose.

in an attempt

The applicant alleges that,
to punish the
applicant for its participation in the global cartel, but without
any focus on the limited role it played in Europe,
the
Commission exceeded its jurisdiction. By relying exclusively
on worldwide sales as a measure of each defendant’s capacity
to cause harm to competition, the Commission has infringed
the EC Treaty by violating the principle ‘ne bis in idem’.
Furthermore, by dividing the undertakings concerned into
three categories on the basis of arbitrarily chosen criteria and
by punishing the applicant much more harshly than several
of the other undertakings, the Commission has infringed
Article 253 EC and the principles of equal treatment and
proportionality.

Finally, the applicant states that the Commission has commit-
ted a manifest error of assessment e.g. by attributing an
incorrect market share to the applicant and by denying the
applicant the benefit of attenuating circumstances, while at the
same time permitting another firm to benefit from them.

Pleas in law and main arguments

Action brought on 3 October 2001 by Nippon Carbon
Co., Ltd. against the Commission of the European Com-
munities

The applicant is a Japanese company, active in the carbon
industry.
In its reply to the Commission’s statement of
objections concerning a cartel in the graphic electrode sector,
which has also been the subject of parallel investigations in
other states, e.g. in the United States, the applicant acknowl-
edged that its participation in the collusive arrangements
concerned constituted a violation of the EC competition rules.

(Case T-244/01)

(2002/C 17/26)

(Language of the case: English)

In the contested decision, the Commission found that eight
undertakings, including the applicant, had participated in a
global cartel, the object of which was inter alia to allocate
markets on a worldwide level, and thus to withhold competi-
tive reserves from the EEA market. The decision imposed fines
on the companies involved.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 3 October 2001 by Nippon Carbon
Co., Ltd., represented by Mr H. Gilliams of Eubelius Advocaten,
Brussels (Belgium).

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.