Case T-71/03: Action brought on 3 March 2003 by Tokai Carbon Co., Ltd. against the Commission of the European Communities
Date: 2003-05-10
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), carbon, chemical industry, fine, restriction on competition

10.5.2003

EN

Official Journal of the European Union

C 112/33

The applicant claims that the Court should:

— annul in whole or in part, under Articles 230 EC and
231 EC, the Commission decision of 11 December 2002
(C(2002) 4831 final) on State aid granted by Greece to
the applicant;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant is an air transport company whose head office
is in Athens. By the contested decision, the Commission
declared certain restructuring aid which had been granted by
Greece to the applicant to be incompatible with the common
market within the meaning of Article 87(1) EC, on the ground
that the conditions subject to which the aid had initially been
authorised by Commission Decision 1999/332/EC were no
longer met. In the decision, the Commission also declared
incompatible with the common market new State aid
implemented by Greece in favour of the applicant in the form
of tolerance of its prolonged non-payment of social security
contributions, value added tax, the airport passenger tax
known as ‘Spatosimo’ and charges and rent which were
payable by it to airports. The Commission required Greece to
take all the necessary measures to recover from the applicant
the abovementioned aid.

In support of its action, the applicant pleads:

— that

the Commission committed manifest errors of
assessment and appraisal, infringed the obligation to state
reasons, erred in law, infringed the rules concerning the
burden of proof and infringed the right to a fair hearing
so far as concerns its conclusions that Greece failed to
comply with certain of the undertakings entered into by
it and referred to in Decisions 1999/332/EC and 94/696/
EC. The applicant also pleads that Article 87(3)(c) EC was
infringed or misapplied in that the Commission failed
to examine sufficiently or correctly whether the aid
authorised in 1998 could be considered compatible with
that article.

— that

the Commission committed manifest errors of
assessment and appraisal, infringed the obligation to state
reasons, erred in law, infringed the rules concerning the
burden of proof, infringed the right to a fair hearing and
offended against the principle of legal certainty so far as
concerns its findings relating to the new aid purportedly
granted by Greece to the applicant
in the form of
tolerance of non-payment of charges, tax and rent, as
referred to above.

— that the Commission misused its powers since, in the
applicant’s submission,
the motive for the contested
decision is the desire that the ‘coup de grâce’ be adminis-
tered to the applicant or at least that the applicant be
weakened.

been

State

authorised

aid which had

— The applicant further submits that the final instalment of
the
by
Decision 1999/332/EC was never paid to it, an omission
known to, and approved by, the Commission and consti-
tuting an amendment of the restructuring programme to
which the Commission had likewise agreed. On the basis
of that submission, the applicant contends that the
principle of the protection of legitimate expectations and
an essential procedural requirement have been breached
by the Commission which now pleads breach of the
original programme, when that programme, with the
agreement of the Commission itself, was never completed.
The applicant also pleads breach of the non bis in idem
rule, arguing that the non-payment of the final instalment
of the State aid constitutes a penalty imposed by the
Commission, which has thus exhausted its right
to
impose penalties and is unable to go back.

Action brought on 3 March 2003 by Tokai Carbon Co.,
Ltd. against the Commission of the European Communi-
ties

(Case T-71/03)

(2003/C 112/65)

(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 3 March 2003 by Tokai Carbon
Co., Ltd., Tokyo, Japan, represented by Mr Gerwin Van Gerven
and Mr Thomas Franchoo, Lawyers, with an address for service
in Luxembourg.

The applicant claims that the Court should:

— annul Article 3 of the Commission decision C(2002)
5083 final of 17 December 2002 in Case COMP/E-2/
37.667 — Speciality Graphite, insofar as it imposes a fine
of — 6,97 million on the applicant, or alternatively, to
substantially reduce that fine; and

— order the Commission to pay the costs.

C 112/34

EN

Official Journal of the European Union

10.5.2003

Pleas in law and main arguments

Action brought on 3 March 2003 by Toyo Tanso Co., Ltd.
against the Commission of the European Communities

The current application is brought against the Commission’s
Decision, of 17 December 2002, relating to proceedings under
Article 81 of the EC Treaty and Article 53 of the EEA
Agreement in Case COMP/E-2/37.667 — Specialty Graphite,
in which it was found that certain undertakings, including
Tokai, had infringed EC/EEA competition law by fixing prices,
exchanging commercial information, fixing trading conditions
and dividing customers for isostatic graphite.

The applicant, a Japanese company producing carbon prod-
ucts, does not contest the facts concerning its participation in
the infringement. Its purpose is the annulment, or at least the
substantial reduction of the fine imposed.

(Case T-72/03)

(2003/C 112/66)

(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 3 March 2003 by Toyo Tanso Co.,
Ltd., Osaka, Japan, represented by Mr Jean-François Bellis an
Ms Stephanie Reinart, Lawyers, with an address for service in
Luxembourg.

The applicant claims that the Court should:

— substantially reduce the amount of the fine imposed on

the applicant

In support of its conclusions, the applicant submits that:

— order the Commission to bear the costs.

— the Commission infringed Article 253 EC, the principles
of proportionality and equal treatment, and the principles
of non bis in idem and the limits of its jurisdiction
because it completely disregarded EEA sales and market
share in determining the impact of competition of each
undertaking’s conduct and the level of the fine.
It is
stressed on this point that, as a japanese producer, the
applicant has always been much less active in the EEA
market because its natural market is Asia and the Far
East.

— The Commission made a manifest error of assessment,
by wrongly estimating the size of the relevant market, in
as much as the data on which it relied in the contested
Decision suggest themselves that the applicant’s relevant
market share is below 10 %, although Tokai Carbon Co.,
Ltd. is put in the category of firms who have a market
share between 10 %-20 %.

— The Commission misapplied the Leniency Notice by not
granting Tokai a fine reduction account of leniency under
Section C, as the applicant was the first to submit decisive
evidence with regard to the time periods during which
Inc.was not a participant in the
UCAR International
cartel.

Pleas in law and main arguments

The applicant is a small company in Japan specialising in the
production of specialty graphite.
In the Decision of the
Commission of 17 December 2002 in Case COMP/E-2/
37.667 — Specialty Graphite, the Commission found that
the applicant had participated together with seven other
companies in an infringement of Article 81(1) EC Treaty and
Article 53(1) EEA Agreement relating to isostatic specialty
graphite. The applicant seeks the reduction of the fine imposed
on it in Article 3 of the Decision.

The applicant submits that the Commission has violated the
rights of defence of
the applicant and infringed several
principles of Community law, such as the principle of pro-
portionality, equal treatment and legal certainty.

According to the applicant, the Commission was wrong to set
the starting point for the calculation of the applicant’s fine
solely by reference to its world-wide turnover and market
share. The applicant claims that the Commission has violated
the rights of defence as the statement of objections indicated
that the cartel outside the EEA was outside of its scope and
failed to highlight the significance which the Commission
would attribute to the world-wide product
turnover and
market share in determining the starting point for the fine.
According to the applicant, the infringement had no world-
wide scope and the Commission exceeded its jurisdiction in
relying on this factor to determine the starting point of the
calculation of the fine.