Case T-253/01: Action brought on 11 October 2001 by UPS Europe NV/SA against the Commission of the European Communities
Date: 2002-02-02
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for failure to act, complaint to the Commission, postal service

2.2.2002

EN

Official Journal of the European Communities

C 31/13

The applicant claims that the Court should:

— annul the Decision of the Commission of the European
Communities of 18 July 2001 relating to a proceeding
under Article 81 of the EC Treaty and Article 53 of
the EEA Agreement in Case No COMP/E-1/36.490 —
Graphite electrodes, in so far as it imposes a fine on the
applicant;

— in the alternative, reduce the fine imposed on the
applicant in the Decision of the Commission of the
European Communities of 18 July 2001 relating to a
proceeding under Article 81 of
the EC Treaty and
Article 53 of the EEA Agreement in Case No COMP/
E-1/36.490 — Graphite electrodes; and

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is an American company which historically has
been a small participant in the electrode business. The decision
its action found that
which forms the subject matter of
the applicant, together with seven other undertakings, had
infringed Article 81(1) of the EC Treaty by participating in a
complex of agreements and concerted practices in the graphite
sector. The decision imposed a fine of EUR 10,3 million on
the applicant. Proceedings relating to these agreements and
practices were also undertaken in other jurisdictions, e.g. in
the United States, where the applicant was not charged with
any criminal violation. After receipt of the contested decision,
the applicant filed for bankruptcy.

The purpose of the applicant’s action is not to contest the
finding of the cartel or the applicant’s involvement, but rather
to obtain a reduction in the fine imposed by the Commission.

The applicant submits that the Commission,
in fixing the
amount of the fine imposed on the applicant, has infringed the
general principles of the Treaty and incorrectly appreciated the
factors that should determine the level of such a fine. The fine
of EUR 10,3 million is wholly unjustified and excessive in all
the circumstances.

The applicant alleges that the Commission erred in finding
that the appropriate starting point for the applicant’s fine was
EUR 16 million and that it failed to distinguish the gravity of
the applicant’s infringement from that of the other producers’
infringements. The Commission ignored the fact that the
applicant was a price follower before, during and after the
cartel and that its conduct had no impact on competition. The

Commission’s approach was unfair to the applicant in several
ways and, given the nature of the applicant’s infringement and
the negligible impact it had on the market, a significantly
lower starting figure should have been assigned to the applicant
than to some of the other undertakings.

Furthermore, the applicant submits that the Commission erred
in finding that the applicant should be given only a 40 %
reduction for mitigating circumstances. The Commission failed
to take into account the ways in which the applicant acted
directly contrary to the fundamental principles and purposes
of the cartel, and the Commission should have given the
applicant an additional reduction based on its early cessation
of the illegal practices. The Commission should also have
considered the applicant’s disadvantages relative to its competi-
tors and the applicant’s precarious financial position. Finally,
the applicant should have been given a much more significant
reduction than the 20 % reduction granted to it under the
Leniency Notice (1).

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

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

Action brought on 11 October 2001 by UPS Europe
NV/SA against the Commission of the European Com-
munities

(Case T-253/01)

(2002/C 31/27)

(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 11 October 2001 by UPS Europe
NV/SA, represented by Mr T.R. Ottervanger of Allen & Overy,
Brussels (Belgium).

The applicant claims that the Court should:

— declare in accordance with Article 232 of the EC Treaty
that the Commission has failed to act by not having
rendered a definitive decision within a reasonable period
of time upon the Applicant’s complaints lodged with the
Commission on 7 July 1994 and on 8 June 1998 and
upon the opening of the procedure under Article 88(2)
of the EC Treaty on 17 August 1999 (published in the
Official Journal of 23 October 1999, C 306/25);

C 31/14

EN

Official Journal of the European Communities

2.2.2002

— order the Commission to pay the costs incurred by the

Applicant in the present proceedings;

— take further action as the Court may deem appropriate.

Pleas in law and main arguments

On 7 July 1994, the Applicant, a company in the United Parcel
Services Group (UPS), which distributes parcels throughout
the world, lodged a complaint with the Commission alleging
ongoing state aid arising from, among other things, the
covering of losses and cross-subsidisation of the parcel service
by monopoly revenues from Deutsche Post’s letter post
activities; by the same letter a complaint was also filed under
Article 82 of
the
Commission informed the Applicant that it would examine
the position and the behaviour of Deutsche Post AG under
Article 82 of the Treaty and would not begin, at least for the
time being, a procedure under Article 88. The Applicant
lodged an Application asking the Court of First Instance to
annul this ‘decision’ (Case T-182/98) (1).

the EC Treaty. On 2 October 1998,

On 8 June 1998, the Applicant filed another complaint,
alleging that state aid was involved in the use of monopoly
revenues for the financing of the acquisition of shares of DHL
International. On 21 December 1998 it sent a letter to the
Commission asking it to take a position on its complaint
within two months. The period of two months expired without
the Commission having taken a decision or defined its position
and accordingly the Applicant initiated proceedings under
Article 232 of the Treaty (Case T-98/99) (2).

By letter of 17 August 1999, the Commission notified the
Federal Republic of Germany of its decision to initiate the
procedure laid down in Article 88(2) of the Treaty (3). The
Application in Case T-182/98 was dismissed as inadmissible
(Order of the Fourth Chamber of 30 September 1999) and
Case T-98/99 was removed from the register (Order of the
President of the Fourth Chamber of 29 October 1999).

The Applicant submits that there is no justification for the
failure of the Commission to act within a reasonable time.
The preliminary investigation of the Commission has taken
63 months for the first complaint and 16 months for
the second complaint. Moreover, the formal
investigation
procedure has already taken two years. Consequently, Deutsche
Post has been able to profit from illegal state aid without any
interference from the Commission for an extremely long
period. As a result of this the competitive position of the
Applicant as a competitor of Deutsche Post has been seriously
affected.

(1) OJ C 20, 23.1.1999, p. 30.
(2) OJ C 174, 19.6.1999, p. 14.
(3) Published in the OJ C 306, 23.10.1999, p. 25.

Action brought on 22 November 2001 by Johannes
Priesemann against the European Central Bank

(Case T-286/01)

(2002/C 31/28)

(Language of the case: German)

An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 22 November 2001 by Johannes Priesemann, residing in
Frankfurt am Main, Germany, represented by Norbert Pflüger,
Rechtsanwalt.

The applicant claims that the Court should:

— set aside the decision of the European Central Bank to
refuse the education allowance for the benefit of his three
children, and, if necessary, set aside the decisions of the
defendant in the preliminary proceedings;

— order the European Central Bank to pay the costs.

On 5 June 2001, given that the Commission had not taken a
position as to the compatibility with the Common Market of
the measures that are the subject of the two complaints, the
Applicant asked it to define its position and/or take the
measures requested in each of the complaints. The time period
of two months within the meaning of Article 232 EC Treaty
expired on 5 August 2001 without the Commission having
defined its position with regard to the Applicant’s complaints.
Therefore the Applicant has lodged the present Application.

Pleas in law and main arguments

The applicant, an employee of the European Central Bank,
applied for an education allowance to send his three children
to an international school. The defendant refused the appli-
cation on the ground that the applicant did not fulfil the
conditions for the allowance, not being already entitled to the
expatriation allowance.