CELEX: C2002/017/26
Language: en
Date: 2002-01-19 00:00:00
Title: Case T-244/01: Action brought on 3 October 2001 by Nippon Carbon Co., Ltd. against the Commission of the European Communities

C 17/14                EN                     Official Journal of the European Communities                                      19.1.2002
Action brought on 1 October 2001 by Tokai Carbon Co.,                    By its action, the applicant does not seek the annulment of the
Ltd. against the Commission of the European Communi-                     decision, but the annulment, or at least the substantial
                               ties                                      reduction, of the fine imposed. The applicant submits that the
                                                                         Commission should not have relied on worldwide turnover or
                                                                         worldwide market share in order to determine the starting
                                                                         level of the fine to be imposed on each of the firms participating
                        (Case T-236/01)                                  in the collusion, but should instead have considered their
                                                                         sales/market share in the EEA for this purpose.
                         (2002/C 17/25)
                                                                         The applicant alleges that, in an attempt to punish the
                                                                         applicant for its participation in the global cartel, but without
                   (Language of the case: English)                       any focus on the limited role it played in Europe, the
                                                                         Commission exceeded its jurisdiction. By relying exclusively
                                                                         on worldwide sales as a measure of each defendant’s capacity
                                                                         to cause harm to competition, the Commission has infringed
                                                                         the EC Treaty by violating the principle ‘ne bis in idem’.
                                                                         Furthermore, by dividing the undertakings concerned into
An action against the Commission of the European Communi-                three categories on the basis of arbitrarily chosen criteria and
ties was brought before the Court of First Instance of the               by punishing the applicant much more harshly than several
European Communities on 1 October 2001 by Tokai Car-                     of the other undertakings, the Commission has infringed
bon Co., Ltd, represented by Mr Gerwin Van Gerven, Mr Tho-               Article 253 EC and the principles of equal treatment and
mas Franchoo and Mr Martijn De Grave of Linklat-                         proportionality.
ers & Alliance, Brussels (Belgium).
                                                                         Finally, the applicant states that the Commission has commit-
The applicant claims that the Court should:                              ted a manifest error of assessment e.g. by attributing an
                                                                         incorrect market share to the applicant and by denying the
                                                                         applicant the benefit of attenuating circumstances, while at the
—     annul Article 3 (and in so far as necessary Article 4) of          same time permitting another firm to benefit from them.
      the Commission decision of 18 July 2001 in Case
      COMP/E-1/36.490 — Graphite electrodes, in so far as it
      imposes a fine of EUR 24.5 million on Tokai, or, at least,
      substantially reduce that fine; and
—     order the Commission to pay the costs.
                                                                         Action brought on 3 October 2001 by Nippon Carbon
                                                                         Co., Ltd. against the Commission of the European Com-
Pleas in law and main arguments                                                                        munities
                                                                                                   (Case T-244/01)
The applicant is a Japanese company, active in the carbon
industry. In its reply to the Commission’s statement of
objections concerning a cartel in the graphic electrode sector,                                     (2002/C 17/26)
which has also been the subject of parallel investigations in
other states, e.g. in the United States, the applicant acknowl-
edged that its participation in the collusive arrangements
concerned constituted a violation of the EC competition rules.                               (Language of the case: English)
In the contested decision, the Commission found that eight
undertakings, including the applicant, had participated in a             An action against the Commission of the European Communi-
global cartel, the object of which was inter alia to allocate            ties was brought before the Court of First Instance of the
markets on a worldwide level, and thus to withhold competi-              European Communities on 3 October 2001 by Nippon Carbon
tive reserves from the EEA market. The decision imposed fines            Co., Ltd., represented by Mr H. Gilliams of Eubelius Advocaten,
on the companies involved.                                               Brussels (Belgium).
 ---pagebreak--- 19.1.2002               EN                    Official Journal of the European Communities                                         C 17/15
The applicant claims that the Court should:                              The Applicant alleges that the Commission has inappropriately
                                                                         refused to take account of attenuating circumstances as set out
                                                                         in the Commission’s Guidelines on the method of setting fines
—     annul Article 1 of the Commission Decision of 18 July              and thereby violated the principle ‘patere legem quam ipse
      2001 in Case COMP/E-1/36.490 — Graphite electrodes,                fecisti’ and the protection of legitimate interests. It also acted
      in so far as it declares that the Applicant has participated       ultra vires and in violation of Articles 3(g), 5 and 81 EC by
      in an infringement of Article 81 EC and Article 53(1)              imposing a fine calculated on the basis of the Applicant’s
      EEA for the period May 1992-March 1993;                            worldwide turnover, even though the fine relates to an
                                                                         infringement that was implemented by the Applicant almost
                                                                         exclusively outside the European Union.
—     annul Article 3 of the Commission Decision of 18 July
      2001 in Case COMP/E-1/36.490 — Graphite electrodes,
      in so far as it imposes on the Applicant a fine of EUR
                                                                         Finally, the Applicant submits that the Commission has
      12.2 million;
                                                                         violated the principle of fairness and the principle ‘non bis in
                                                                         idem’, by failing to take into consideration the fine already
                                                                         imposed by a third State when determining the level of the
—     in the alternative, substantially reduce the above-men-            fine to be imposed on the Applicant.
      tioned fine;
—     in any event, order that the costs of the proceedings be
      borne by the Commission.
                                                                         Action brought on 4 October 2001 by Showa Denko K.K.
Pleas in law and main arguments                                            against the Commission of the European Communities
                                                                                                 (Case T-245/01)
The Applicant is a small Japanese producer of graphite
electrodes. According to the contested decision, the Applicant                                    (2002/C 17/27)
and seven other undertakings had infringed Article 81(1) of
the EC Treaty and Article 53(1) of the EEA Agreement by
participating in a complex of agreements and concerted                                      (Language of the case: English)
practices in the graphite sector. In the decision, the Com-
mission labelled the Japanese producers ‘active members’
participating in the illicit arrangement and inflicted a fine on
the Applicant of EUR 12.2 million. The infringement also
resulted in parallel proceedings in other states, e.g. in the            An action against the Commission of the European Communi-
United States.                                                           ties was brought before the Court of First Instance of the
                                                                         European Communities on 4 October 2001 by Showa Denko
                                                                         K.K., represented by Mr Maurits Dolmans and Mr Peter
                                                                         Werdmuller of Cleary Gottlieb Steen & Hamilton, Brussels
The Applicant denies neither the existence of an infringement            (Belgium).
nor its participation in that infringement. It submits, however,
that the Commission has infringed essential procedural
requirements and rights, including the right to a defence, the           The applicant claims that the Court should:
duty to state reasons, and the principle of equal treatment, by
declaring, despite the absence of sufficient and/or admissible
evidence, that the Applicant participated in the infringement            —     annul Article 3(d) of the Commission’s Decision in Case
between May 1992 and March 1993.                                               No. COMP/E-1/36.490 — Graphite electrodes, or
                                                                         —     alternatively, reduce the fine imposed on Showa Denko
                                                                               K.K. to EUR 2.95 million or such other amount as
Furthermore, by its unlawful determination of the base amount                  the Court deems proportional, reasonable and non-
of the Applicant’s fine and by its imposition of a fine out of                 discriminatory;
proportion to the volume and the value of the products
concerned realised by the Applicant, the Commission has
violated the principles of proportionality and equal treatment           —     order the Commission to pay the applicant’s legal fees
as well as the duty to state reasons.                                          and expenses.