CELEX: C2002/017/27
Language: en
Date: 2002-01-19 00:00:00
Title: Case T-245/01: Action brought on 4 October 2001 by Showa Denko K.K. against the Commission of the European Communities

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.
 ---pagebreak--- C 17/16                EN                     Official Journal of the European Communities                                      19.1.2002
Pleas in law and main arguments                                          European Communities on 6 October 2001 by UCAR Inter-
                                                                         national Inc., represented by Mr K.P.E. Lasok QC of Monckton
                                                                         Chambers, London (United Kingdom) and Mr B. Hartnett of
                                                                         Squire Saunders Dempsey LLP, Brussels (Belgium).
The action concerns Commission Decision C(2001)1986 of
18 July 2001 in which the Commission found that the
applicant, a Japanese firm, together with seven other undertak-
ings, had infringed Article 81(1) EC and Article 53(1) of the
EEA Agreement by participating in a complex system of                    The applicant claims that the Court should:
agreements and concerted practices in the graphite electrodes
sector. It imposed a fine of EUR 17.4 million on the applicant.
In parallel proceedings in the United States, a fine was imposed         —     annul Article 3 of the Commission Decision made on
upon a subsidiary company of the applicant.                                    18 July 2001 in Case No. COMP/E-1/36.490 — Graphite
                                                                               Electrodes, in so far as it imposes a fine on UCAR;
                                                                               alternatively, reduce the level of that fine;
The applicant contests the calculation of the fine and submits
that the fine is unwarranted, discriminatory and dispro-                 —     annul Article 4 of the Commission Decision made on
portionate. It submits that the Commission violated the                        18 July 2001 in Case No. COMP/E-1/36.490 — Graphite
principles of non-discrimination and proportionality in using                  Electrodes, in so far as it applies to UCAR; alternatively,
a 250 % ‘deterrence factor’ only for the applicant, the resulting              modify the terms of payment applicable to the fine
mark-up effectively eliminating the leniency reduction. Such a                 payable by UCAR in accordance with the terms and
‘deterrence factor’ is not objectively justified, and the Com-                 conditions set forth in Annex 50;
mission erred in law by referring to total group-wide turnover
as a justification, even though the ‘deterrence factor’ is not
rationally related to, or necessary for, effective deterrence.           —     annul the decision contained in the Commission’s letter
                                                                               dated 23 July 2001, in so far as it provides that the
                                                                               Commission will undertake collection of the fine on
                                                                               expiry of the period for its payment unless UCAR has not
Furthermore, the applicant alleges that the Commission erred
                                                                               only instituted proceedings for the annulment of the
in law in basing the basic fine on the worldwide market share
                                                                               Decision made on 18 July 2001 but also satisfies the two
instead of EEA-wide turnover, and at the same time ignoring
                                                                               conditions referred to in the letter; alternatively, modify
fines imposed in other jurisdictions. Finally, the Commission
                                                                               those terms in accordance with the terms and conditions
violated the principles of non-discrimination and pro-
                                                                               set forth in Annex 50;
portionality in reducing the fine imposed on UCAR Inter-
national Inc. by 15.2 % without proportionally reducing the
applicant’s fine.
                                                                         —     annul the decision contained in the Commission’s letter
                                                                               dated 9 August 2001, in so far as the Commission has
                                                                               rejected any and all proposals that do not involve
                                                                               payment of the fine in full, payment of interest, and/or
                                                                               provision of a bank guarantee ensuring payment of the
                                                                               fine plus accrued interest, and has in particular rejected a
                                                                               lien on the assets of UCAR; alternatively, modify those
                                                                               terms in accordance with the terms and conditions set
                                                                               forth in Annex 50;
Action brought on 6 October 2001 by UCAR Inter-
national Inc. against the Commission of the European                     —     order the Commission to pay its own costs and those
                           Communities                                         incurred by UCAR International Inc.
                         (Case T-246/01)
                          (2002/C 17/28)                                 Pleas in law and main arguments
                  (Language of the case: English)
                                                                         By a decision of 18 July 2001, the European Commission
                                                                         found that eight undertakings had infringed Article 81(1) of
                                                                         the EC Treaty and Article 53(11) of the EEA Agreement by
                                                                         participating in a complex of agreements and concerted
An action against the Commission of the European Communi-                practices in the graphite electrodes sector. A fine of
ties was brought before the Court of First Instance of the               EUR 50.4 million was imposed on the applicant and the terms