CELEX: C2003/112/77
Language: en
Date: 2003-05-10 00:00:00
Title: Case T-91/03: Action brought on 10 March 2003 by SGL Carbon AG against the Commission of the European Communities

10.5.2003                 EN                        Official Journal of the European Union                                           C 112/41
—      the adoption of its decision of 9 July 2002. In that                 mitted a further infringement of Article&nbsp:81(1) EC inas-
       respect, the applicants refer to the pleas in law and                much as they had participated, in the period from February
       arguments put forward in Case T-317/02, cited above.1                1993 to November 1996, in agreements and concerted
                                                                            practices in the extruded specialty graphite sector. By the
                                                                            contested decision, the defendant imposed on the applicant a
( 1) See, in particular, Council Directive 96/22/EC of 29 April 1996        fine of EUR 18.94 million for the isostatically pressed specialty
     concerning the prohibition on the use in stockfarming of certain       graphite sector and a fine of EUR 8.81 million for the extruded
     substances having a hormonal or thyrostatic action and of ß-           specialty graphite sector.
     agonists, and repealing Directives 81/602/EEC, 88/146/EEC and
     88/299/EEC (OJ 1996 L 125, p. 3).
( 2) OJ 2002 L 195, p. 72.
( 3) Case T-317/02 (OJ 2002 C 323, p. 37).                                  The applicant relies on five pleas in law:
                                                                            —     Breach of the principle of non bis in idem and the
                                                                                  principle of proportionality. The applicant argues that the
                                                                                  defendant infringed the prohibition of double jeopardy
                                                                                  inasmuch as it failed to take into consideration in its
                                                                                  decision the fines already imposed in North America on
                                                                                  the international part of the cartel, and inasmuch as it
Action brought on 10 March 2003 by SGL Carbon AG                                  carried out a second administrative-fine proceeding
   against the Commission of the European Communities                             against, among others, the applicant in the graphite
                                                                                  electrode sector. In the alternative, the applicant argues
                            (Case T-91/03)                                        that, even if a second proceeding might have been
                                                                                  lawful, the defendant should nevertheless have taken into
                                                                                  account the fines already imposed when determining the
                           (2003/C 112/77)                                        amount of the fine.
                     (Language of the case: German)                         —     Breach of the principle of the right to a fair hearing and
                                                                                  of the applicant’s rights of defence. The applicant argues
                                                                                  that, in its decision, the defendant surprisingly re-evalu-
                                                                                  ated the contributions of LCL and the applicant to the
An action against the Commission of the European Communi-                         infringement and therefore deprived the applicant of the
ties was brought before the Court of First Instance of the                        opportunity to state its views on this matter adequately
European Communities on 10 March 2003 by SGL Carbon                               during the administrative proceeding. The defendant also
AG, Wiesbaden (Germany), represented by M. Klusmann and                           appointed case handlers who did not have a sufficient
P. Niggemann, Rechtsanwälte.                                                      command of the German language, with the result that
                                                                                  the defendant failed to give full consideration to the
                                                                                  applicant’s submissions.
The applicant claims that the Court should:
                                                                            —     Infringement of essential procedural requirements and of
—      annul the contested decision in so far as the applicant is                 the obligation to state reasons under Article 253 EC
       concerned;                                                                 inasmuch as the defendant took as the basis for its
                                                                                  decision incorrect and defective market data.
—      in the alternative, reduce appropriately the amount of the
       fine imposed on the applicant in the contested decision;
                                                                            —     Infringement of Article 15(2) of Regulation No 17/62/
                                                                                  EEC on account of allegedly erroneous determination of
—      order the defendant to pay the costs.
                                                                                  the fines. The applicant argues that, in determining the
                                                                                  fines, the defendant took account of the gravity of the
                                                                                  offence in an inadmissible way, wrongly imputed to the
                                                                                  applicant the role of a cartel leader, disregarded the upper
Pleas in law and main arguments                                                   limit of penalties, failed to take into consideration the
                                                                                  applicant’s ability to pay and the supposed absence of
                                                                                  any requirement of a deterrent effect, and failed to give
The applicant manufactures various graphite products, includ-                     due recognition to the applicant’s contributions by way
ing ‘specialty graphite’. The defendant complained that the                       of cooperation.
applicant and other manufacturers and distributors of isostatic
specialty graphite had participated in a continuing agreement
and/or concerted practices which affected the market for
isostatic specialty graphite in the European Community and                  The applicant further claims that the interest imposed on the
the European Economic Area. The alleged infringements relate                fine is unlawful.
primarily to the period from July 1993 to February 1998. In
addition, the defendant also alleged that the applicant and
UCAR, another manufacturer of specialty graphite, had com-