Case T-91/03: Action brought on 10 March 2003 by SGL Carbon AG 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

10.5.2003

EN

Official Journal of the European Union

C 112/41

— the adoption of its decision of 9 July 2002. In that
respect, the applicants refer to the pleas in law and
arguments put forward in Case T-317/02, cited above.1

( 1) See, in particular, Council Directive 96/22/EC of 29 April 1996
concerning the prohibition on the use in stockfarming of certain
substances having a hormonal or thyrostatic action and of ß-
agonists, and repealing Directives 81/602/EEC, 88/146/EEC and
88/299/EEC (OJ 1996 L 125, p. 3).

( 2) OJ 2002 L 195, p. 72.
( 3) Case T-317/02 (OJ 2002 C 323, p. 37).

Action brought on 10 March 2003 by SGL Carbon AG
against the Commission of the European Communities

(Case T-91/03)

(2003/C 112/77)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 10 March 2003 by SGL Carbon
AG, Wiesbaden (Germany), represented by M. Klusmann and
P. Niggemann, Rechtsanwälte.

The applicant claims that the Court should:

— annul the contested decision in so far as the applicant is

concerned;

— in the alternative, reduce appropriately the amount of the
fine imposed on the applicant in the contested decision;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant manufactures various graphite products, includ-
ing ‘specialty graphite’. The defendant complained that the
applicant and other manufacturers and distributors of isostatic
specialty graphite had participated in a continuing agreement
and/or concerted practices which affected the market for
isostatic specialty graphite in the European Community and
the European Economic Area. The alleged infringements relate
primarily to the period from July 1993 to February 1998. In
addition, the defendant also alleged that the applicant and
UCAR, another manufacturer of specialty graphite, had com-

mitted a further infringement of Article&nbsp:81(1) EC inas-
much as they had participated, in the period from February
in agreements and concerted
1993 to November 1996,
practices in the extruded specialty graphite sector. By the
contested decision, the defendant imposed on the applicant a
fine of EUR 18.94 million for the isostatically pressed specialty
graphite sector and a fine of EUR 8.81 million for the extruded
specialty graphite sector.

The applicant relies on five pleas in law:

— Breach of the principle of non bis in idem and the
principle of proportionality. The applicant argues that the
defendant infringed the prohibition of double jeopardy
inasmuch as it failed to take into consideration in its
decision the fines already imposed in North America on
the international part of the cartel, and inasmuch as it
carried out a second administrative-fine proceeding
in the graphite
against, among others, the applicant
electrode sector. In the alternative, the applicant argues
that, even if a second proceeding might have been
lawful, the defendant should nevertheless have taken into
account the fines already imposed when determining the
amount of the fine.

— Breach of the principle of the right to a fair hearing and
of the applicant’s rights of defence. The applicant argues
that, in its decision, the defendant surprisingly re-evalu-
ated the contributions of LCL and the applicant to the
infringement and therefore deprived the applicant of the
opportunity to state its views on this matter adequately
during the administrative proceeding. The defendant also
appointed case handlers who did not have a sufficient
command of the German language, with the result that
the defendant failed to give full consideration to the
applicant’s submissions.

— Infringement of essential procedural requirements and of
the obligation to state reasons under Article 253 EC
inasmuch as the defendant took as the basis for its
decision incorrect and defective market data.

— Infringement of Article 15(2) of Regulation No 17/62/
EEC on account of allegedly erroneous determination of
the fines. The applicant argues that, in determining the
fines, the defendant took account of the gravity of the
offence in an inadmissible way, wrongly imputed to the
applicant the role of a cartel leader, disregarded the upper
limit of penalties, failed to take into consideration the
applicant’s ability to pay and the supposed absence of
any requirement of a deterrent effect, and failed to give
due recognition to the applicant’s contributions by way
of cooperation.

The applicant further claims that the interest imposed on the
fine is unlawful.