Case T-359/03: Action brought on 27 October 2003 by GRAFTECH INTERNATIONAL LTD. against the Commission of the European Communities
Date: 2004-01-10
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), carbon, chemical industry, infringement of EU law, restriction on competition

C 7/40

EN

Official Journal of the European Union

10.1.2004

The applicant claims that the Court should:

— annul the decision not to reimburse to the applicant his
accommodation expenses of EUR 4 200 per month in
full;

— annul the contested Commission Decisions specifically to
the extent that they apply interest at a default rate of
8,04 %;

— order the Commission to pay its own costs and those

incurred by the applicant.

— order the defendant to pay the costs.

Pleas in law and main arguments

In support of his application, the applicant submits that the
defendant infringed Articles 5 and 23 of Annex X to the Staff
Regulations,
in so far as it may not refuse to reimburse
his accommodation expenses when it did not provide any
accommodation and offered no alternative.

Action brought on 27 October 2003 by GRAFTECH
INTERNATIONAL LTD. against the Commission of the
European Communities

(Case T-359/03)

(2004/C 7/74)

(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 27 October 2003 by GRAFTECH
INTERNATIONAL LTD., Wilmington, Delaware, USA, rep-
resented by K.P.E. Lasok QC and Brian Hartnett, Barristers with
an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the contested Commission Decisions dated 18 July
2001, 23 July 2001, 9 August 2001, 18 August 2003,
11 September 2003 and 18 September 2003 requiring
GTI to perform its obligations under the Decision of
18 July 2001 or post a bank guarantee or face imminent
enforcement of the Decision of 18 July 2001 as of
September 2003;

— annul the contested Commission Decisions specifically to
the extent that they apply interest at a rate of 6,04 %
when current market interest rates are significantly lower;

Pleas in law and main arguments

By the Decision made on 18 July 2001 the Commission found
that the applicant and seven other undertakings had infringed
Article 81 of the EC treaty by participating in a complex of
agreements and concerted practices in the graphite electrodes
sector. The same Decision imposed a fine on the applicant and
required that it be paid within 3 months of notification with
interest of 8,04 % payable if the fine was not paid by the stated
date. This Decision was notified to the applicant under cover
of a letter dated 23 July 2003 which also indicated that if the
applicant brought proceedings before the Court of First
Instance against the imposition of the fine, no enforcement
proceedings would be taken as long as the case was pending
before the court, on condition that the applicant paid interest
on the amount of the fine at a rate of 6,04 % and provided a
bank guarantee for the amount of the fine. The applicant
made representations to the Commission proposing different
payment
the
Commission dated 9 August 2001. The applicant also intro-
duced proceedings against the Decision of 18 July 2001
imposing the fine (1). Further proposals by the applicant on
payment facilities were rejected by the Commission by letters
dated 18 August 2003, 11 September 2003 and 18 September
2003.

terms, which were rejected by a letter of

By the present action the applicant attacks all the Decisions
concerning payment terms. It submits that it is an error of law,
on the part of the Commission, to consider that no security
other than a bank guarantee could be accepted by the
Commission. It also submits that the Decision of 18 August
2003 infringes the principle of proportionality by failing to
achieve a fair balance between the interest of the parties and
in particular the applicant’s interest in granting a lien over its
unencumbered assets instead of the bank guarantee requested
by the Commission . The applicant also invokes alleged
manifest errors of fact relating to the Commission’s finding
that the applicant has not shown that it cannot comply with
the Commission’s Decision and the Commission’s assessment
of its financial position and the value of the lien it had offered.
The applicant further submits that the Commission’s Decisions
on the applicable interest rates are manifestly erroneous
and that the Commission has breached essential procedural
failed to afford the applicant an
requirements in that
opportunity to be heard before adopting a decision to enforce
its first Decision of 18 July 2001.

it

(1) Case T-246/01 notified in OJ C 17, 19.01.2002, p. 16.