Case T-72/03: Action brought on 3 March 2003 by Toyo Tanso Co., Ltd. against the Commission of the European Communities
Date: 2003-05-10
Institutions: Court of First Instance
Subjects: European Commission, action for failure to act, carbon, chemical industry, fine

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.

10.5.2003

EN

Official Journal of the European Union

C 112/35

The applicant furthermore submits that the Commission failed
to take into account the applicant’s smaller total size in relation
to that of the other participants in the infringement while
determining the starting point for the calculation of the fine.
According to the applicant, the Commission should have
applied a downward adjustment for the applicant.

The applicant finally claims that its cooperation with the
investigation qualified for a reduction of 50 % rather than
35 %. The applicant states that it voluntarily provided the
Commission with evidence showing that the infringement
started earlier than known to the Commission.

Action brought on 28 February 2003 by Banco Comercial
dos Açores, SA against the Commission of the European
Communities

(Case T-75/03)

(2003/C 112/67)

(Language of the case: Portuguese)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 February 2003 by the Banco
Comercial dos Açores, SA, whose registered office is in Edifício
BCA, Rua Dr. José Bruno Tavares Carreiro, Ponta Delgada,
Azores, represented by Carlos Botelho Moniz and Margarida
Rosado da Fonseca, lawyers.

The applicant claims that the Court should:

— annul the last part of Article 1, together with Articles 2,
3 and 4 of the decision of the Commission of 11 Decem-
ber 2002 ‘on the part of
the scheme adapting the
national tax system to the specific characteristics of the
autonomous region of the Azores with regard to the tax
those provisions refer
reductions’ to the extent that
to undertakings which pursue the financial activities
provided for in Section J (Codes 65, 66 and 67) of the
Statistical Classification of Economic Activities in the
European Community — NACE REV1.1);

— order the Commission of the European Communities to

pay the entire costs.

Pleas in law and main arguments

The contested decision declares compatible with the common
market the aid granted in the form of tax reductions under the
tax system of the Azores, but not as regards the financial
services.

The applicant relies on the following:

— error of law in the application of Article 87 of the EC
Treaty: the measure at issue is of general scope and does
not constitute State aid within the meaning of Article 87
of the EC Treaty. In any event, the Commission has not
demonstrated that the criterion as to effect on trade
between Member States has been met;

— error in the facts set out in the decision: the undertakings
in the financial sector are affected, as are the undertakings
in the remaining business sectors, by the structural
disadvantages acknowledged in the contested decision;

— breach of an essential procedural requirement in that the

statement of reasons is inadequate;

— breach of the principle of equality; and

— breach of the principles of legal certainty and legitimate

expectations.

Action brought on 4 March 2003 by Feralpi Siderurgica
S.p.A. against the Commission of the European Communi-
ties

(Case T-77/03)

(2003/C 112/68)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 4 March 2003 by the above
applicant, represented by Prof. G. M. Roberti, A. Franchi and
I. Perego, lawyers,

The applicant claims that the Court should:

— annul wholly or in part the Commission Decision of
17 December 2002 on a proceeding pursuant to Article 6
of the ECSC Treaty (Case COMP/37.956 — concrete
reinforcing bars);

— cancel or reduce the fine imposed pursuant to Article 2

of that decision;

— order the defendant to pay the costs.