Case T-246/01: Action brought on 6 October 2001 by UCAR International Inc. against the Commission of the European Communities
Date: 2002-01-19
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), carbon, chemical industry, infringement of EU law, restriction on competition

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

19.1.2002

EN

Official Journal of the European Communities

C 17/17

of payment of this fine were specified in Article 4 of the
Decision. Fines and sanctions subsequent to these infringe-
ments have been imposed upon the applicant in other states.

under its principal credit facilities, its ability to pay and the
effect on competition in the graphite electrodes market if the
applicant were forced into bankruptcy.

(1) Commission Notice of 18 July 1996 on the non-imposition or

reduction of fines in cartel cases (OJ [1996] C 207, p. 4).

The Decision was sent to the applicant by letter dated 23 July
2001 from the Commissioner responsible for competition
matters, in which further matters regarding payment, including
statements about a possible collection of the fine in case of
non-payment, were mentioned. The applicant submits that
this letter constitutes a separate decision which it contests.

Action brought on 26 September 2001 by eCopy, Inc.
against the Office for Harmonisation in the Internal
Market

The applicant made representations to the Commission on the
subject of payment terms. The Commission replied by letter of
9 August 2001 which, according to the applicant, constitutes
a third distinct decision, of which it seeks the annulment.

(Case T-247/01)

(2002/C 17/29)

(Language of the case: English)

The applicant does not contest the findings in the first Decision
that it committed an infringement of the EC competition rules,
nor does it contest that a fine should be imposed for this
infringement. It does, however, contest the imposition of a
fine on it in the above-mentioned amount. It alleges that it
should have been accorded a greater reduction of the fine for
its cooperation with the Commission under the Leniency
Notice (1), and that the level of the fine is unlawfully high,
having regard to the gravity and duration of the infringement,
and to aggravating and attenuating circumstances and other
general factors. The Commission has also breached certain
essential procedural requirements in failing properly to investi-
gate and assess the role of the former owners of the applicant
in the cartel.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 26 September 2001 by eCopy,
Inc., represented by Mr Brian C. Read, Barrister, of 19 Old
Buildings, London (United Kingdom)

The applicant claims that the Court should:

— annul the Board Decision of 13 July 2001;

— order the Office for Harmonisation in the Internal Market
to grant Community trade application no. 1718667,
alternatively to continue prosecution of the application
according to the judgment of the Court;

— order the Office for Harmonisation in the Internal Market

to pay the costs of eCopy, Inc.

Furthermore, the applicant contests the associated payment
terms and grounds and submits that Article 4 of the Decision
of 18 July 2001 and the alleged third decision of 9 August
2001 are void for the lack of reasoning. The applicant disputes
the Commission’s position that it will seek to enforce the fine,
even if proceedings for its annulment are pending before the
Court, unless a bank guarantee covering the amount of the
fine and interest is provided. It is submitted that the Com-
mission erred when it refused to accept a lien on company
assets as security for the fine and when it refused to accept or
even consider a payment schedule which did not include a
bank guarantee. Finally, the Commission erroneously refused
to take account of the restrictions imposed on the applicant

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

eCopy, Inc.

The Community trade
mark concerned:

The verbal mark ECOPY in respect
of certain goods in class 9.

Decision of the Exam-
iner:

Decision of the Board of
Appeal:

Refusal of the application

Rejection of the Appeal