CELEX: C2003/112/65
Language: en
Date: 2003-05-10 00:00:00
Title: Case T-71/03: Action brought on 3 March 2003 by Tokai Carbon Co., Ltd. against the Commission of the European Communities

10.5.2003              EN                        Official Journal of the European Union                                        C 112/33
The applicant claims that the Court should:                              —    The applicant further submits that the final instalment of
                                                                              the State aid which had been authorised by
—     annul in whole or in part, under Articles 230 EC and                    Decision 1999/332/EC was never paid to it, an omission
      231 EC, the Commission decision of 11 December 2002                     known to, and approved by, the Commission and consti-
      (C(2002) 4831 final) on State aid granted by Greece to                  tuting an amendment of the restructuring programme to
      the applicant;                                                          which the Commission had likewise agreed. On the basis
                                                                              of that submission, the applicant contends that the
                                                                              principle of the protection of legitimate expectations and
—     order the defendant to pay the costs.                                   an essential procedural requirement have been breached
                                                                              by the Commission which now pleads breach of the
                                                                              original programme, when that programme, with the
                                                                              agreement of the Commission itself, was never completed.
Pleas in law and main arguments                                               The applicant also pleads breach of the non bis in idem
                                                                              rule, arguing that the non-payment of the final instalment
                                                                              of the State aid constitutes a penalty imposed by the
The applicant is an air transport company whose head office                   Commission, which has thus exhausted its right to
is in Athens. By the contested decision, the Commission                       impose penalties and is unable to go back.
declared certain restructuring aid which had been granted by
Greece to the applicant to be incompatible with the common
market within the meaning of Article 87(1) EC, on the ground
that the conditions subject to which the aid had initially been
authorised by Commission Decision 1999/332/EC were no
longer met. In the decision, the Commission also declared
incompatible with the common market new State aid
implemented by Greece in favour of the applicant in the form
of tolerance of its prolonged non-payment of social security
contributions, value added tax, the airport passenger tax
known as ‘Spatosimo’ and charges and rent which were                     Action brought on 3 March 2003 by Tokai Carbon Co.,
payable by it to airports. The Commission required Greece to             Ltd. against the Commission of the European Communi-
take all the necessary measures to recover from the applicant                                           ties
the abovementioned aid.
                                                                                                  (Case T-71/03)
In support of its action, the applicant pleads:
—     that the Commission committed manifest errors of                                           (2003/C 112/65)
      assessment and appraisal, infringed the obligation to state
      reasons, erred in law, infringed the rules concerning the
      burden of proof and infringed the right to a fair hearing
      so far as concerns its conclusions that Greece failed to                             (Language of the case: English)
      comply with certain of the undertakings entered into by
      it and referred to in Decisions 1999/332/EC and 94/696/
      EC. The applicant also pleads that Article 87(3)(c) EC was
      infringed or misapplied in that the Commission failed
      to examine sufficiently or correctly whether the aid               An action against the Commission of the European Communi-
      authorised in 1998 could be considered compatible with             ties was brought before the Court of First Instance of the
      that article.                                                      European Communities on 3 March 2003 by Tokai Carbon
                                                                         Co., Ltd., Tokyo, Japan, represented by Mr Gerwin Van Gerven
—     that the Commission committed manifest errors of                   and Mr Thomas Franchoo, Lawyers, with an address for service
      assessment and appraisal, infringed the obligation to state        in Luxembourg.
      reasons, erred in law, infringed the rules concerning the
      burden of proof, infringed the right to a fair hearing and
      offended against the principle of legal certainty so far as
      concerns its findings relating to the new aid purportedly          The applicant claims that the Court should:
      granted by Greece to the applicant in the form of
      tolerance of non-payment of charges, tax and rent, as
      referred to above.                                                 —    annul Article 3 of the Commission decision C(2002)
                                                                              5083 final of 17 December 2002 in Case COMP/E-2/
                                                                              37.667 — Speciality Graphite, insofar as it imposes a fine
—     that the Commission misused its powers since, in the                    of — 6,97 million on the applicant, or alternatively, to
      applicant’s submission, the motive for the contested                    substantially reduce that fine; and
      decision is the desire that the ‘coup de grâce’ be adminis-
      tered to the applicant or at least that the applicant be
      weakened.                                                          —    order the Commission to pay the costs.
 ---pagebreak--- C 112/34              EN                          Official Journal of the European Union                                        10.5.2003
Pleas in law and main arguments                                           Action brought on 3 March 2003 by Toyo Tanso Co., Ltd.
                                                                            against the Commission of the European Communities
                                                                                                    (Case T-72/03)
The current application is brought against the Commission’s
Decision, of 17 December 2002, relating to proceedings under                                       (2003/C 112/66)
Article 81 of the EC Treaty and Article 53 of the EEA
Agreement in Case COMP/E-2/37.667 — Specialty Graphite,                                     (Language of the case: English)
in which it was found that certain undertakings, including
Tokai, had infringed EC/EEA competition law by fixing prices,
exchanging commercial information, fixing trading conditions
and dividing customers for isostatic graphite.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 3 March 2003 by Toyo Tanso Co.,
                                                                          Ltd., Osaka, Japan, represented by Mr Jean-François Bellis an
                                                                          Ms Stephanie Reinart, Lawyers, with an address for service in
The applicant, a Japanese company producing carbon prod-                  Luxembourg.
ucts, does not contest the facts concerning its participation in
the infringement. Its purpose is the annulment, or at least the
substantial reduction of the fine imposed.                                The applicant claims that the Court should:
                                                                          —     substantially reduce the amount of the fine imposed on
                                                                                the applicant
In support of its conclusions, the applicant submits that:                —     order the Commission to bear the costs.
—     the Commission infringed Article 253 EC, the principles
      of proportionality and equal treatment, and the principles          Pleas in law and main arguments
      of non bis in idem and the limits of its jurisdiction
      because it completely disregarded EEA sales and market
      share in determining the impact of competition of each              The applicant is a small company in Japan specialising in the
      undertaking’s conduct and the level of the fine. It is              production of specialty graphite. In the Decision of the
      stressed on this point that, as a japanese producer, the            Commission of 17 December 2002 in Case COMP/E-2/
      applicant has always been much less active in the EEA               37.667 — Specialty Graphite, the Commission found that
      market because its natural market is Asia and the Far               the applicant had participated together with seven other
      East.                                                               companies in an infringement of Article 81(1) EC Treaty and
                                                                          Article 53(1) EEA Agreement relating to isostatic specialty
                                                                          graphite. The applicant seeks the reduction of the fine imposed
                                                                          on it in Article 3 of the Decision.
—     The Commission made a manifest error of assessment,
      by wrongly estimating the size of the relevant market, in
      as much as the data on which it relied in the contested             The applicant submits that the Commission has violated the
      Decision suggest themselves that the applicant’s relevant           rights of defence of the applicant and infringed several
      market share is below 10 %, although Tokai Carbon Co.,              principles of Community law, such as the principle of pro-
      Ltd. is put in the category of firms who have a market              portionality, equal treatment and legal certainty.
      share between 10 %-20 %.
                                                                          According to the applicant, the Commission was wrong to set
—     The Commission misapplied the Leniency Notice by not                the starting point for the calculation of the applicant’s fine
      granting Tokai a fine reduction account of leniency under           solely by reference to its world-wide turnover and market
      Section C, as the applicant was the first to submit decisive        share. The applicant claims that the Commission has violated
      evidence with regard to the time periods during which               the rights of defence as the statement of objections indicated
      UCAR International Inc.was not a participant in the                 that the cartel outside the EEA was outside of its scope and
      cartel.                                                             failed to highlight the significance which the Commission
                                                                          would attribute to the world-wide product turnover and
                                                                          market share in determining the starting point for the fine.
                                                                          According to the applicant, the infringement had no world-
                                                                          wide scope and the Commission exceeded its jurisdiction in
                                                                          relying on this factor to determine the starting point of the
                                                                          calculation of the fine.