Case T-252/01: Action brought on 4 October 2001 by The Carbide/Graphite Group, Inc. against the Commission of the European Communities
Date: 2002-02-02
Institutions: Court of First Instance
Subjects: European Commission, United States, action for annulment (EU), electrical equipment, equal treatment, fine

C 31/12

EN

Official Journal of the European Communities

2.2.2002

(Agents: J.-M. Stenier, P. Giusta and B. Schäfer) — application
for suspension of operation of the decision of 4 December
2000 of the appointing authority concerning the reassignment
of the applicant to the translation service — the President of
the Court of First Instance, has made an order on 21 September
2001, in which he:

1. Dismissed the application for interim measures;

2.

Reserved the costs.

Action brought on 9 October 2001 by SEC Corporation
against the Commission of the European Communities

(Case T-251/01)

(2002/C 31/25)

(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 9 October 2001 by SEC Corpor-
ation, represented by Mr Koen Platteau of Linklaters & Alliance,
Brussels (Belgium).

The applicant claims that the Court should:

— 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 a fine of EUR 12,2 million on the
applicant, or, at the least, substantially reduce this fine;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant is a Japanese manufacturer of graphite electrodes
and other graphite products. By the contested decision, fines
were imposed on the applicant and seven other companies for
having infringed the provisions of 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 electrodes sector. The fine imposed on the applicant
was of EUR 12,2 million. Parallel proceedings relating to these
agreements and practices have been undertaken in other
jurisdictions, e.g. in the United States.

The applicant does not substantially contest the facts men-
tioned by the Commission in the contested decision, and the
pleas in its application relate to the amount of the fine
imposed.

The applicant submits that the fine is unlawful, essentially
since it violates the duty of proportionality and of equal
treatment. It alleges that the Commission has acted unlawfully
and in violation of Articles 3(g), 5, 81 and 253 of the EC
Treaty by merely determining the basic amount of the fine on
the basis of the applicant’s world-wide turnover and not taking
into account the scope of
its activities in the EEA. The
categorisation used by the Commission for the establishment
of the basic amount of fine and the setting of this amount
violate the principles of proportionality and equal treatment.

Furthermore, the applicant submits that the Commission has
violated the general principles of fairness and ‘non bis in idem’
by not taking into account the sanctions previously imposed
on the applicant by the US competition authorities.

Finally, it alleges that, when examining possible mitigating
circumstances, the Commission violated the principles of equal
treatment and of proportionality by not making sufficient
distinction between the Japanese producers, all being regarded
as active members of the cartel. By disregarding the applicant’s
passive role and ‘follow my leader’ approach, the Commission
has disregarded its own Guidelines as well as the case law of
the Court of First Instance and the Court of Justice.

Action brought on 4 October 2001 by The Carbide/Graph-
ite Group, Inc. against the Commission of the European
Communities

(Case T-252/01)

(2002/C 31/26)

(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 The Carbide/
Graphite Group, Inc., represented by Mr Marc Seimetz and
Mr Jean Brücher of Brücher & Seimetz in association with
Dechert, Luxembourg (Luxembourg).

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);