Case C-289/04 P: Appeal brought on 1 July 2004 by Showa Denko K.K. against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities
Date: 2004-09-25
Institutions: Court of Justice
Subjects: European Commission, Germany, Japan, United States, action for annulment (EU), appeal, carbon, chemical industry, electrical equipment, unlawful agreement

25.9.2004

EN

Official Journal of the European Union

C 239/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

Appeal brought on 1 July 2004 by Showa Denko K.K.
against the judgment delivered on 29 April 2004 by the
Second Chamber of the Court of First Instance of the
European Communities in joined cases T-236/01, T-239/01,
T-244/01 to T-246/01, T-251/01 and T-252/01 between
Tokai Carbon Co. Ltd and others and the Commission of
the European Communities

The ‘size’ of the company or group in markets not affected by
the infringement are not relevant to the expected benefits and
incentives that a company might have to infringe the law, nor
do they relate to risk of detection. Economic analysis confirms
this. Conglomerate size and finances are therefore not relevant
for the calculation of any increase which is needed for deter-
rence.

(Case C-289/04 P)

(2004/C 239/01)

An appeal against the judgment delivered on 29 April 2004 by
the Second Chamber of the Court of First Instance of the Euro-
pean Communities in joined cases T-236/01, T-239/01, T-244/
01 to T-246/01, T-251/01 and T-252/01 between Tokai
Carbon Co. Ltd and others and the Commission of the Euro-
pean Communities, was brought before the Court of Justice of
the European Communities on 1 July 2004 by Showa Denko
(case T-245/01 (1)), established in Tokyo (Japan), repre-
K.K.
sented by M. Dolmans, J. Temple Lang and P. Werdmuller,
lawyers.

In other words, conglomerate size and finances cannot be a
reason to single out the Appellant and increase the fine on it.
Doing so is discriminatory, disproportionate, arbitrary, and not
supported by adequate reasoning.

The Appellant therefore maintains that the Commission and
the Court of First Instance were wrong to base the increase in
the Appellant's fine for ‘deterrence’ on the Appellant's group
turnover in products not affected by the infringement, without
any finding that deterrence was necessary or identifying any
rational basis for the amount of the increase.

The Appellant claims that the Court should:

(1) OJ C 17, 19.1.2002, p. 15.

— set aside the judgment in case T-245/01 Showa Denko K.K.

v. Commission of the European Communities in part;

— reduce

the amount of

to EUR
6,960,000 or by an amount considered appropriate by the
Court of Justice in the exercise of its discretion; and

the Appellant's

fine

— take any other measure that the Court of Justice deems

appropriate.

Pleas in law and main arguments:

The Appellant submits that there is no indication that the
Appellant's group or top management was involved in the
cartel, no evidence that the Appellant engaged in the infringe-
ments calculatedly, deliberately and knowingly, and certainly
no evidence that this was more so for the Appellant than for
the other participants. There is therefore no justification for
singling out the Appellant and imposing a special ‘deterrence
factor’ on it.

If a fine otherwise calculated needs to be increased for deter-
rence on this ground, then the amount of the increase must be
rationally based on the benefit which the company expected to
obtain from the infringement. This increase can only be based
on the company's turnover in the market affected by the infrin-
gement, adjusted for the probability or otherwise of detection.

Appeal brought on 15 July 2004 by SEC Corporation
against the judgment delivered on 29 April 2004 by the
Second Chamber of the Court of First Instance of the
European Communities in joined cases T-236/01, T-239/01,
T-244/01 to T-246/01, T-251/01 and T-252/01 between
Tokai Carbon Co. Ltd and others and the Commission of
the European Communities.

(Case C-307/04 P)

(2004/C 239/02)

An appeal against the judgment delivered on 29 April 2004 by
the Second Chamber of the Court of First Instance of the Euro-
pean Communities in joined cases T-236/01, T-239/01, T-244/
01 to T-246/01, T-251/01 and T-252/01 between Tokai
Carbon Co. Ltd and others and the Commission of the Euro-
pean Communities, was brought before the Court of Justice of
the European Communities on 15 July 2004 by SEC Corpora-
tion (case T-251/01 (1)), established in Amagasaki, Hyogo
(Japan), represented by K. Platteau, lawyer.