Case T-236/01: Action brought on 1 October 2001 by Tokai 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, restriction on competition

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).