Case C-301/04 P: Appeal brought on 14 July 2004 by the Commission of the European Communities against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01
Date: 2004-10-23
Institutions: Court of Justice
Subjects: European Commission, Germany, appeal, carbon, exchange of information, fine, restriction on competition, restrictive trade practice

23.10.2004

EN

Official Journal of the European Union

C 262/13

Appeal brought on 14 July 2004 by the Commission of
the European Communities against
the judgment of
29 April 2004 by the Court of First Instance (Second
Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-
245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon
and Others v Commission of the European Communities,
in regard to Case T-239/01

(Case C-301/04 P)

(2004/C 262/25)

An appeal was brought before the Court of Justice of the Euro-
pean Communities on 14 July 2004 by the Commission of the
European Communities, represented by Walter Mölls, Wouter
Wils and Heike Gading, with an address for service in Luxem-
bourg, against the judgment of 29 April 2004 by the Court of
First Instance (Second Chamber) in Joined Cases T-236/01, T-
239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/
01 Tokai Carbon and Others v Commission of the European
Communities, in regard to Case T-239/01.

The appellant claims that the Court should:

1. set aside the judgment delivered by the Court of First
Instance of the European Communities on 29 April 2004 in
Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-
246/01, T-251/01 and T-252/01 (1) in regard to paragraph
2 of its operative part;

2. order SGL Carbon AG to pay the costs.

Pleas in law and main arguments:

The judgment of the Court of First Instance of 29 April 2004
concerns Commission Decision 2002/271/EC relating to a
proceeding under Article 81 of the EC Treaty and Article 53 of
the EEA Agreement — Case COMP/E-1/36.490 — Graphite
electrodes (OJ 2002 L 100, p. 1) (‘the Decision’).

The judgment confirmed that the seven applicants, which were
members of the graphite electrode cartel between 1992 and
1998 and to which the Decision was addressed, breached
Article 81 EC and Article 53 of the EEA Agreement, and also
confirmed the scope of the infringement. The judgment did,
however, reduce to varying degrees the fines imposed.

The appeal relates to the reduction explained in paragraphs
401 to 412 of the judgment and accorded to the company SGL
(Case T-239/01, paragraph 2 of the operative part of the judg-
ment). It concerns in particular the findings of the Court of
First Instance regarding the extent of the right of the undertak-
ings not to incriminate themselves, findings which also indir-
ectly impinge on the limits of the Commission's powers to
conduct investigations.

The Court of First Instance found in paragraphs 407 to 409
and in paragraph 412 of the judgment that SGL's responses to

the request for information addressed to it pursuant to Article
11(2) of Regulation No 17 entitled that company — contrary
to the view expressed by the Commission in the Decision — to
a reduction in its fine, in accordance with the Notice on the
non-imposition or reduction of fines in cartel cases (OJ 1996
C 207, p. 4) (‘the Leniency Notice’). Furthermore, the Court of
First Instance rejected the Commission's argument that any
reduction because of SGL's replies would in any event have to
be smaller than would have been the case had the undertaking
itself made a voluntary disclosure (paragraph 410 of the judg-
ment).

In the Commission's view, the passages in the judgment just
cited are defective in law and the judgment is to that extent at
variance with Articles 15 and 11 of Regulation No 17 in
conjunction with the Leniency Notice.

The question as to whether specific answers to requests
by the Commission for information in principle provided
grounds for a reduction in the fine

the Commission may,

According to settled case-law, replies to requests for informa-
tion under Article 11(2) of Regulation No 17 (now Article
18(2) of Regulation No 1/2003) need not
in principle be
regarded as constituting cooperation in respect of which a
reduction must be granted. If undertakings do not comply with
such a request,
in accordance with
Article 11(5) of Regulation No 17 (Article 18(3) of Regulation
No 1/2003), require them by way of a decision to provide the
information sought. Certain answers, however, may provide
grounds for a reduction by reason of cooperation in the investi-
gations, that is to say, if the question put could not have been
included in a decision under Article 11(5) of Regulation No 17
on the ground that it interfered in an inadmissible manner with
the rights of defence of the undertakings involved.

The criteria governing the demarcation between questions that
are admissible in this regard and those that are not were elabo-
rated by the Court in its judgment in Case 374/87 Orkem
[1989] ECR 3283. According to those criteria, the Commission
can without restriction insist that documents that already exist
and relate to the subject-matter of the investigations be handed
over. It can also demand ‘information concerning such facts as
may be known to [the undertaking]’ (Orkem judgment, para-
‘the Commission may not compel an
graph 34). However,
undertaking to provide it with answers which might involve an
admission on its part of the existence of an infringement which
it is incumbent upon the Commission to prove’ (Orkem judg-
ment, paragraph 35).

The Court of First Instance failed to draw that distinction in
judgment. Paragraph 408
paragraph 408 of
concerns solely the handing over of already existing documents
which it was possible to request without infringing SGL's rights
of defence.

the present

C 262/14

EN

Official Journal of the European Union

23.10.2004

Similar arguments hold true in regard to the other request for
information, which is dealt with in paragraph 412 of the judg-
ment. As the Commission knew that SGL had warned a sepa-
the
rate undertaking that an investigation was imminent,
Commission had, inter alia, asked SGL to which other under-
taking it had provided that information. SGL named another
undertaking but failed to disclose that it had also warned a
third undertaking, as the Commission learned subsequently. By
information
that
‘concerning … facts’ and did not compel the undertaking to
provide ‘an admission on its part of the existence of an infrin-
gement’. In order to classify the information provided by SGL
in its reply as constituting an aggravating circumstance, which
is the point on which the Court of First Instance focuses, the
Commission first of all had to prove that there had been an
infringement.

Commission

requested

question

the

Concerning the extent of the reduction in the case of
contributions that have been preceded by a request for
information

In so far as part of the cooperation provided by SGL could be
deemed to constitute an answer to a question which,
in the
context of a binding request for information, that is to say, a
request for information in the form of a decision, might be
regarded as inadmissible, the Court of First Instance failed, in
paragraph 410 of the judgment, to take account of the fact
that any reduction can be granted only in proportion to the
additional value by which the Commission is aided in its inves-
tigations. This additional value will be comparatively greater if
it is derived from a voluntary contribution which, having been
made at an early stage, saves the Commission in advance from
being required to take specific investigative measures, such as
the planning and drafting of a request for information (even if
it is not binding).

(1) Not yet published in the European Court Reports.

Appeal brought on 19 July 2004 by SGL Carbon AG
against the judgment of 29 April 2004 by the Court of
First Instance (Second Chamber) in Joined Cases T-236/01,
T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-
252/01 Tokai Carbon and Others v Commission of the
European Communities, in regard to Case T-239/01

(Case C-308/04 P)

(2004/C 262/26)

An appeal was brought before the Court of Justice of the Euro-
pean Communities on 19 July 2004 by SGL Carbon AG, repre-
sented by Martin Klusmann and Kirsten Beckmann, Rechtsan-
wälte, of Freshfields Bruckhaus Deringer, Freiligrathstrasse 1, D-
40479 Düsseldorf, against the judgment of 29 April 2004 by
the Court of First Instance (Second Chamber) in Joined Cases T-

236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01
and T-252/01 Tokai Carbon and Others v Commission of the
European Communities, in regard to Case T-239/01.

The appellant claims that the Court should:

1. uphold the pleas in law submitted at first instance and set
aside in part the judgment delivered by the Court of First
Instance of the European Communities on 29 April 2004 in
Case T-239/01 (1) to the extent to which it dismisses the
action in as far as that action is directed against Articles 3
and 4 of the respondent's decision of 18 July 2001;

2.

in the alternative, reduce as appropriate the fine imposed on
the appellant in Article 3 of Decision COMP/E-1/36.490
in respect of pending proceedings and
and the interest
default interest fixed in Article 4 of the decision in conjunc-
tion with the letter of 23 July 2001 from the respondent
(SG 2001 D/290091);

3.

in the further alternative, refer the case back to the Court of
First Instance for reconsideration in the light of the legal
views expressed by the Court of Justice;

4. order

the respondent

to pay all of

the costs of

the

proceedings.

Pleas in law and main arguments:

The appellant seeks, by a total of seven grounds of appeal, to
have Articles 3 and 4 of the Commission decision set aside to a
greater degree than that to which they were set aside in the
judgment of the Court of First Instance:

1. The appellant first submits that there has been an infringe-
ment of the principle of ne bis in idem by reason of the fact
that no account was taken of the sanction which, prior to
the adoption of the contested Commission decision, had
already been imposed in North America in respect of the
same acts. The appellant argues that, in view of the identical
substantive objectives pursued by the prohibitory rules
serving to protect competition in Europe and North
America, some account at least ought to be taken of penal-
ties previously imposed in respect of the same facts. This
follows either directly from the ne bis in idem principle, as
broadly understood, which applies in the relationship of
Community law to the law of non-member countries, or
from the principle of natural justice, which is even broader
in scope and has been applicable since the Walt Wilhelm
case-law. Furthermore, the Court has,
in its judgment in
Boehringer, already confirmed that there is in principle a
duty to take into account sanctions imposed in the U.S.
when a case before it relates to the same facts. That is some-
thing which the Court of First Instance failed to do.

Instance's

2. With regard to the Court of First

findings
concerning the establishment of the basic amounts of the
fine, the appellant submits that the Court of First Instance
erred in failing to make a downward adjustment of the basic
amount in relation to the appellant, even though this ought
to have occurred had the definitive calculation criteria estab-
lished by that Court been applied in a non-discriminatory
manner.