CELEX: C2002/031/26
Language: en
Date: 2002-02-02 00:00:00
Title: Case T-252/01: Action brought on 4 October 2001 by The Carbide/Graphite Group, Inc. against the Commission of the European Communities

C 31/12                 EN                     Official Journal of the European Communities                                      2.2.2002
(Agents: J.-M. Stenier, P. Giusta and B. Schäfer) — application           The applicant does not substantially contest the facts men-
for suspension of operation of the decision of 4 December                 tioned by the Commission in the contested decision, and the
2000 of the appointing authority concerning the reassignment              pleas in its application relate to the amount of the fine
of the applicant to the translation service — the President of            imposed.
the Court of First Instance, has made an order on 21 September
2001, in which he:
                                                                          The applicant submits that the fine is unlawful, essentially
1.    Dismissed the application for interim measures;                     since it violates the duty of proportionality and of equal
                                                                          treatment. It alleges that the Commission has acted unlawfully
                                                                          and in violation of Articles 3(g), 5, 81 and 253 of the EC
2.    Reserved the costs.
                                                                          Treaty by merely determining the basic amount of the fine on
                                                                          the basis of the applicant’s world-wide turnover and not taking
                                                                          into account the scope of its activities in the EEA. The
                                                                          categorisation used by the Commission for the establishment
                                                                          of the basic amount of fine and the setting of this amount
                                                                          violate the principles of proportionality and equal treatment.
Action brought on 9 October 2001 by SEC Corporation                       Furthermore, the applicant submits that the Commission has
  against the Commission of the European Communities                      violated the general principles of fairness and ‘non bis in idem’
                                                                          by not taking into account the sanctions previously imposed
                          (Case T-251/01)                                 on the applicant by the US competition authorities.
                           (2002/C 31/25)
                                                                          Finally, it alleges that, when examining possible mitigating
                                                                          circumstances, the Commission violated the principles of equal
                   (Language of the case: English)                        treatment and of proportionality by not making sufficient
                                                                          distinction between the Japanese producers, all being regarded
                                                                          as active members of the cartel. By disregarding the applicant’s
                                                                          passive role and ‘follow my leader’ approach, the Commission
                                                                          has disregarded its own Guidelines as well as the case law of
An action against the Commission of the European Communi-
                                                                          the Court of First Instance and the Court of Justice.
ties was brought before the Court of First Instance of the
European Communities on 9 October 2001 by SEC Corpor-
ation, represented by Mr Koen Platteau of Linklaters & Alliance,
Brussels (Belgium).
The applicant claims that the Court should:
—     annul Article 3 of the Commission decision of 18 July
      2001 in Case COMP/E-1/36.490 — Graphite electrodes,                 Action brought on 4 October 2001 by The Carbide/Graph-
      in so far as it imposes a fine of EUR 12,2 million on the           ite Group, Inc. against the Commission of the European
      applicant, or, at the least, substantially reduce this fine;                                  Communities
—     order the Commission to pay the costs.
                                                                                                  (Case T-252/01)
                                                                                                   (2002/C 31/26)
Pleas in law and main arguments
                                                                                             (Language of the case: English)
The applicant is a Japanese manufacturer of graphite electrodes
and other graphite products. By the contested decision, fines
were imposed on the applicant and seven other companies for
having infringed the provisions of Article 81(1) of the EC
Treaty and Article 53(1) of the EEA Agreement by participating            An action against the Commission of the European Communi-
in a complex of agreements and concerted practices in the                 ties was brought before the Court of First Instance of the
graphite electrodes sector. The fine imposed on the applicant             European Communities on 4 October 2001 by The Carbide/
was of EUR 12,2 million. Parallel proceedings relating to these           Graphite Group, Inc., represented by Mr Marc Seimetz and
agreements and practices have been undertaken in other                    Mr Jean Brücher of Brücher & Seimetz in association with
jurisdictions, e.g. in the United States.                                 Dechert, Luxembourg (Luxembourg).
 ---pagebreak--- 2.2.2002              EN                     Official Journal of the European Communities                                             C 31/13
The applicant claims that the Court should:                             Commission’s approach was unfair to the applicant in several
                                                                        ways and, given the nature of the applicant’s infringement and
                                                                        the negligible impact it had on the market, a significantly
—     annul the Decision of the Commission of the European              lower starting figure should have been assigned to the applicant
      Communities of 18 July 2001 relating to a proceeding              than to some of the other undertakings.
      under Article 81 of the EC Treaty and Article 53 of
      the EEA Agreement in Case No COMP/E-1/36.490 —
      Graphite electrodes, in so far as it imposes a fine on the        Furthermore, the applicant submits that the Commission erred
      applicant;                                                        in finding that the applicant should be given only a 40 %
                                                                        reduction for mitigating circumstances. The Commission failed
—     in the alternative, reduce the fine imposed on the                to take into account the ways in which the applicant acted
      applicant in the Decision of the Commission of the                directly contrary to the fundamental principles and purposes
      European Communities of 18 July 2001 relating to a                of the cartel, and the Commission should have given the
      proceeding under Article 81 of the EC Treaty and                  applicant an additional reduction based on its early cessation
      Article 53 of the EEA Agreement in Case No COMP/                  of the illegal practices. The Commission should also have
      E-1/36.490 — Graphite electrodes; and                             considered the applicant’s disadvantages relative to its competi-
                                                                        tors and the applicant’s precarious financial position. Finally,
                                                                        the applicant should have been given a much more significant
—     order the defendant to pay the costs of the proceedings.          reduction than the 20 % reduction granted to it under the
                                                                        Leniency Notice (1).
                                                                        (1) Commission Notice of 18 July 1996 on the non-imposition or
                                                                            reduction of fines in cartel cases (OJ [1996] C 207, p. 4).
Pleas in law and main arguments
The applicant is an American company which historically has
been a small participant in the electrode business. The decision
which forms the subject matter of its action found that
the applicant, together with seven other undertakings, had
infringed Article 81(1) of the EC Treaty by participating in a
complex of agreements and concerted practices in the graphite           Action brought on 11 October 2001 by UPS Europe
sector. The decision imposed a fine of EUR 10,3 million on              NV/SA against the Commission of the European Com-
the applicant. Proceedings relating to these agreements and                                            munities
practices were also undertaken in other jurisdictions, e.g. in
the United States, where the applicant was not charged with                                        (Case T-253/01)
any criminal violation. After receipt of the contested decision,
the applicant filed for bankruptcy.
                                                                                                    (2002/C 31/27)
The purpose of the applicant’s action is not to contest the                                 (Language of the case: English)
finding of the cartel or the applicant’s involvement, but rather
to obtain a reduction in the fine imposed by the Commission.
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
The applicant submits that the Commission, in fixing the                European Communities on 11 October 2001 by UPS Europe
amount of the fine imposed on the applicant, has infringed the          NV/SA, represented by Mr T.R. Ottervanger of Allen & Overy,
general principles of the Treaty and incorrectly appreciated the        Brussels (Belgium).
factors that should determine the level of such a fine. The fine
of EUR 10,3 million is wholly unjustified and excessive in all
the circumstances.
                                                                        The applicant claims that the Court should:
                                                                        —     declare in accordance with Article 232 of the EC Treaty
The applicant alleges that the Commission erred in finding                    that the Commission has failed to act by not having
that the appropriate starting point for the applicant’s fine was              rendered a definitive decision within a reasonable period
EUR 16 million and that it failed to distinguish the gravity of               of time upon the Applicant’s complaints lodged with the
the applicant’s infringement from that of the other producers’                Commission on 7 July 1994 and on 8 June 1998 and
infringements. The Commission ignored the fact that the                       upon the opening of the procedure under Article 88(2)
applicant was a price follower before, during and after the                   of the EC Treaty on 17 August 1999 (published in the
cartel and that its conduct had no impact on competition. The                 Official Journal of 23 October 1999, C 306/25);