Case C-308/04 P: 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
Date: 2004-10-23
Institutions: Court of Justice
Subjects: European Commission, Germany, action for annulment (EU), appeal, carbon, fine, restriction on competition, restrictive trade practice

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.

23.10.2004

EN

Official Journal of the European Union

C 262/15

3. In its third ground of appeal the appellant contends that the
specific 25 % increase in the basic amount of the fine in the
light of warning calls made prior to the commencement of
the Commission's inspection was unlawful. Those calls, the
appellant submits, did not form part of the facts constituting
the charge in issue and, contrary to the view taken by the
Court of First Instance, could not have been taken into
account as aggravating grounds in the calculation of the fine
under Article 15(2) of Regulation No 17 without thereby
infringing the principle of nulla poena sine lege. The Sarrió
case-law which the Court of First Instance cites in support
of the opposite contention is, the appellant argues, irrele-
vant inasmuch as in the facts underlying that case aggra-
vating circumstances in the commission of acts were taken
into account for purposes of increasing the fine, whereas
later acts which, in retrospect, could or should have made
detection of those acts more difficult were not. Furthermore,
the Court of First Instance in the present case made assump-
tions in respect of internal matters to the detriment of the
appellant, a course of action at variance with the rules of
evidence.

4. In regard to the calculation of the fine, the appellant also
takes issue with the fact that the upper limit for a fine of
10 % of an undertaking's turnover, as laid down in Article
15(2) of Regulation No 17, was exceeded. Had the Commis-
sion taken as its basis the conclusive turnover figures for
2000 or 1999, it would have been obliged to cap the arith-
metical amount of the fine at 10 % of the undertaking's
turnover before applying the rule under
the leniency
programme. The Court of First Instance erroneously left the
entire question open on the legally incorrect assumption
that it had no bearing on the dismissal of the relevant
complaint.

5. The appellant further takes issue with the insufficient atten-
tion paid to the significance of documents withheld in the
context of the inadequate document access. The appellant
expands on its submission at first instance by contending
that new and incriminating documents, of which the appel-
lant was unaware and on which it had not previously had
an opportunity to set out its views, were even used for the
first time in the decision by the Court of First Instance.

6. The appellant further challenges the categorical decision not
to take account of what all parties accept was its reduced
financial capacity when the fine was being calculated and
claims that such a failure constitutes an infringement of the
principle of proportionality and breaches its freedom to
dispose of its property. Penalties imposed under competition
law may not jeopardise the existence of those on whom the
penalties are imposed; the operational undertaking must be
the standard by which the appropriateness and propriety of
sanctions in individual cases fall
is in
general impermissible to concentrate on those parts of an
undertaking which may still be salvageable after insolvency
brought about by the imposition of a fine. Every fine must
be calculated in such a way that no economic ‘death
sentences’ are passed.

to be judged.

It

7. The appellant concludes by challenging the fact that no
adjudication was made on its multi-limbed head of

interest and
complaint concerning the fixing of default
interest
in respect of pending proceedings, which was
dismissed only in the result and not formally. The Court of
First Instance erred in law in failing to take into account the
fact that there is no legal basis whatever for determining
interest and none for the level of interest established which
was here used as a basis. Even if one were to recognise that
the setting of interest is in principle permissible in order to
the setting of
prevent
interest is at best required to be at a significantly lower level
in order to attain that objective. That must in particular be
the case in view of the drastically increased level of the fine,
which leads to an equally drastic increase in the absolute
level of
imposed. The substantive heads of
complaint raised were not addressed in the judgment under
appeal; instead, there was a ruling on a head of complaint
that the appellant had not raised.

the bringing of abusive actions,

the interest

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

Reference for a preliminary ruling by the Fővárosi Bíróság
(Hungary) by order of that court of 24 June 2004 in the
criminal proceedings against Attila Vajnai

(Case C-328/04)

(2004/C 262/27)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Fővárosi Bíróság, Hungary,
of 24 June 2004, received at the Court Registry on 30 July
2004, for a preliminary ruling in the criminal proceedings
against Attila Vajnai on the following question:

Is Article 269/B, first paragraph, of the Büntető Törvénykönyv
(Hungarian Criminal Code), which provides that a person who
uses or displays,
in public, the symbol consisting of a five-
pointed red star commits — where the conduct does not
amount to a more serious criminal offence — a minor offence,
compatible with the fundamental Community-law principle of
non-discrimination? Do Article 6 TEU, according to which the
Union is founded on the principles of
liberty, democracy,
respect for human rights and fundamental freedoms, Directive
2000/43/EC (1), which also refers to fundamental freedoms, and
Articles 10, 11 and 12 of the Charter of Fundamental Rights,
allow a person who wishes to express his political convictions
through a symbol representing them to do so in any Member
State?

(1) OJ L 180, p. 22.