Case T-69/04: Actionbrought on 20 February 2004 by Schunk GmbH andSchunk Kohlenstofftechnik GmbH against the Commission of the European Communities
Date: 2004-04-30
Institutions: Court of First Instance
Subjects: European Commission, Germany, action for annulment (EU), electrical process, fine, judgment of the Court (EU)

30.4.2004

EN

Official Journal of the European Union

C 106/71

The applicant pleads:

— the Commission did not give an adequate statement of
reasons for the decisions reducing the financing, or for
Decision (ESA) 1999/1316 of 9.9.1999;

— the Commission was in breach of the principle of due
process because it refused to take action in relation to the
applicant's request to be heard, and of the principles of
legitimate expectations, proportionality and legal certainty
concerning that reduction, and finally of essential proce-
dural requirements in relation to the presentation of Deci-
sion (ESA) 1999/1316 of 9/9/1999;

— unlawfulness of

the method of calculation used by the

Commission for the closure of the final balance;

— the non-contractual liability of the Commission by reason
of infringement of the principle of legitimate expectations,
good administrative practice and the rules governing the
management of the financing of the structural funds;

— the contractual liability of the Commission in relation to
the agreement signed by the Commission, Gela Sviluppo
and the Region of Sicily, in breach of Articles 1453,1175
and 1375 of the Italian Civil Code.

in a series of agreements and concerted practices on the market
in carbon and graphite-based products
for electrical and
mechanical applications.

In support of its action, the applicant claims, first, that the
basic amount of the fine was incorrectly determined to its detri-
ment. In addition, the applicant pleads that the Commission
failed to have regard to the upper limit of 10 % for the fine laid
down in Article 15(2) of Regulation 17/62 (1)
through the
imposition of several separate fines of an amount exceeding
10 % of the group turnover. The applicant was also adversely
affected by the unjustified application of the 10 % upper limit
in favour of another undertaking which has a group relation-
ship with a third undertaking. According to the applicant, the
Commission also incorrectly assessed the cooperation of the
applicant and in this respect reduced the fine by too little, and
incorrectly took into consideration the actual deterrent effect in
fixing the amount of the fine. The applicant also claims that
the Commission wrongfully refused to take into account the
applicant's inability to pay when calculating the fine. Finally,
the applicant contests the assessment of the amount of interest
in respect of pending proceedings and default interest in the
contested decision.

(1) EEC Council: Regulation No 17: First Regulation implementing Arti-
the Treaty (OJ, English Special Edition

cles [81] and [82] of
1959—1962, p. 87).

Action brought on 20 February 2004 by SGL Carbon AG
against the Commission of the European Communities

(Case T-68/04)

(2004/C 106/142)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 February 2004 by SGL Carbon
AG, Wiesbaden (Germany), represented by Martin Klusmann
and Andreas von Bonin, lawyers.

The applicant claims that the Court should:

— annul Commission Decision C(2003) 4457 final of 3

December 2003 in so far as it concerns the applicant;

— 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:

In the contested decision the Commission imposed on the
applicant a fine in the sum of EUR 23 640 000 for infringe-
ment of Article 81(1) EC and Article 53(1) EEA by taking part

Action brought on 20 February 2004 by Schunk GmbH
the
and Schunk Kohlenstofftechnik GmbH against

Commission of the European Communities

(Case T-69/04)

(2004/C 106/143)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 February 2004 by Schunk
GmbH, Thale
(Germany), and Schunk Kohlenstofftechnik
GmbH, Heuchelheim (Germany), represented by Rainer Bech-
told and Simon Hirsbrunner, lawyers.

The applicants claim that the Court should:

— annul

the contested decision of

the Commission of 3
December 2003 (Case COMP/E-2/38.359 — carbon and
graphite-based products for electrical and mechanical appli-
cations);

C 106/72

EN

Official Journal of the European Union

30.4.2004

— in the alternative, reduce the amount of the fine imposed

on the applicants by that decision;

— annul

the decision adopted by the Commission on 3
December 2003 in Case COMP/38.359 in so far as it
concerns Le Carbone Lorraine S.A;

— order the Commission to pay the costs.

— in the alternative, annul or reduce the amount of the fine

imposed on it by that decision;

Pleas in law and main arguments:

— order the Commission to pay all the costs.

In the contested decision the Commission imposed on the
applicants a fine in the sum of EUR 30 870 000 for infringe-
ment of Article 81(1) EC and Article 53(1) EEA by taking part
in a series of agreements and concerted practices on the market
for electrical and
in carbon and graphite-based products
mechanical applications.

In support of their action, the applicants claim, first, that the
Commission erred in law by assuming that the first applicant,
Schunk GmbH, which is a finance holding company, is jointly
and severally liable for the fine imposed on its subsidiary, the
second applicant, Schunk Kohlenstofftechnik GmbH (‘SKT’).
Further, they plead that the contested decision has an unlawful
legal basis, since Article 15 of Regulation 17/62 (1) gives the
Commission a margin of discretion in relation to the amount
of fines and is therefore incompatible with the principle of
legal certainty and with higher ranking Community law. In
addition, the Commission discriminated against the applicants
relative to other undertakings in fixing the amount of the
imposed fines, incorrectly assessed the deterrent effect of the
fines and the cooperation of the applicants, and failed to have
regard to material circumstances.

(1) EEC Council: Regulation No 17: First Regulation implementing Arti-
the Treaty (OJ, English Special Edition

cles [81] and [82] of
1959—1962, p. 87).

Pleas in law and main arguments:

In the contested decision, the Commission imposed on the
applicant a fine of 43 050 000 euros for taking part, with five
other undertakings, in a cartel on the market in carbon and
graphite-based products for electrical and mechanical applica-
tions.

In support of its action, the applicant claims first that the
Commission erred in law by not defining the relevant markets
for the products at issue. The applicant also pleads breach of
the principles of proportionality and legitimate expectations
concerning the setting of the ‘starting amount’ of the fine in
question. The Commission was also in breach of the principle
of legal certainty by increasing the ‘starting amount’ of 105 %
in relation to the duration of the breach. In addition, the appli-
cant complains that the Commission did not take account of
mitigating circumstances in its favour and did not allow it the
maximal reduction provided for its alleged cooperation in the
enquiry. The Commission was in breach of the principle of
equal treatment by not allowing the applicant a reduction in
respect of the impact on it of a series of crushing fines in the
same field of activity, whereas it allowed another undertaking
concerned such a reduction on those grounds.

Action brought on 20 February 2004 by Le Carbone
Lorraine S.A. against the Commission of the European
Communities

Action brought on 17 February 2004 by Arch Chemicals,
Inc., and Arch Timber Protection Limited against the
Commission of the European Communities

(Case T-73/04)

(2004/C 106/144)

(Language of the case: French)

(Case T-75/04)

(2004/C 106/145)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 February 2004 by Le Carbone
Lorraine S.A, having its registered office in Paris, represented
by Antoine Winckler and Me Igor Simic, lawyers.

The applicant claims that the Court should:

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 17 February 2004 by Arch Chemi-
cals, Inc., Norwalk, Connecticut, USA and Arch Timber Protec-
tion Limited, Castleford, United Kingdom, represented by Mr K.
Van Maldegem and Mr C. Mereu, lawyers.