CELEX: C2002/031/27
Language: en
Date: 2002-02-02 00:00:00
Title: Case T-253/01: Action brought on 11 October 2001 by UPS Europe NV/SA against the Commission of the European Communities

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);
 ---pagebreak--- C 31/14                EN                  Official Journal of the European Communities                                       2.2.2002
—     order the Commission to pay the costs incurred by the           The Applicant submits that there is no justification for the
      Applicant in the present proceedings;                           failure of the Commission to act within a reasonable time.
                                                                      The preliminary investigation of the Commission has taken
                                                                      63 months for the first complaint and 16 months for
—     take further action as the Court may deem appropriate.          the second complaint. Moreover, the formal investigation
                                                                      procedure has already taken two years. Consequently, Deutsche
                                                                      Post has been able to profit from illegal state aid without any
                                                                      interference from the Commission for an extremely long
                                                                      period. As a result of this the competitive position of the
                                                                      Applicant as a competitor of Deutsche Post has been seriously
                                                                      affected.
Pleas in law and main arguments
                                                                      (1) OJ C 20, 23.1.1999, p. 30.
                                                                      (2) OJ C 174, 19.6.1999, p. 14.
On 7 July 1994, the Applicant, a company in the United Parcel         (3) Published in the OJ C 306, 23.10.1999, p. 25.
Services Group (UPS), which distributes parcels throughout
the world, lodged a complaint with the Commission alleging
ongoing state aid arising from, among other things, the
covering of losses and cross-subsidisation of the parcel service
by monopoly revenues from Deutsche Post’s letter post
activities; by the same letter a complaint was also filed under
Article 82 of the EC Treaty. On 2 October 1998, the
Commission informed the Applicant that it would examine               Action brought on 22 November 2001 by Johannes
the position and the behaviour of Deutsche Post AG under                     Priesemann against the European Central Bank
Article 82 of the Treaty and would not begin, at least for the
time being, a procedure under Article 88. The Applicant
lodged an Application asking the Court of First Instance to                                    (Case T-286/01)
annul this ‘decision’ (Case T-182/98) (1).
                                                                                                (2002/C 31/28)
On 8 June 1998, the Applicant filed another complaint,                                   (Language of the case: German)
alleging that state aid was involved in the use of monopoly
revenues for the financing of the acquisition of shares of DHL
International. On 21 December 1998 it sent a letter to the
Commission asking it to take a position on its complaint              An action against the European Central Bank was brought
within two months. The period of two months expired without           before the Court of First Instance of the European Communities
the Commission having taken a decision or defined its position        on 22 November 2001 by Johannes Priesemann, residing in
and accordingly the Applicant initiated proceedings under             Frankfurt am Main, Germany, represented by Norbert Pflüger,
Article 232 of the Treaty (Case T-98/99) (2).                         Rechtsanwalt.
                                                                      The applicant claims that the Court should:
By letter of 17 August 1999, the Commission notified the
Federal Republic of Germany of its decision to initiate the           —     set aside the decision of the European Central Bank to
procedure laid down in Article 88(2) of the Treaty (3). The                 refuse the education allowance for the benefit of his three
Application in Case T-182/98 was dismissed as inadmissible                  children, and, if necessary, set aside the decisions of the
(Order of the Fourth Chamber of 30 September 1999) and                      defendant in the preliminary proceedings;
Case T-98/99 was removed from the register (Order of the
President of the Fourth Chamber of 29 October 1999).                  —     order the European Central Bank to pay the costs.
On 5 June 2001, given that the Commission had not taken a             Pleas in law and main arguments
position as to the compatibility with the Common Market of
the measures that are the subject of the two complaints, the
Applicant asked it to define its position and/or take the             The applicant, an employee of the European Central Bank,
measures requested in each of the complaints. The time period         applied for an education allowance to send his three children
of two months within the meaning of Article 232 EC Treaty             to an international school. The defendant refused the appli-
expired on 5 August 2001 without the Commission having                cation on the ground that the applicant did not fulfil the
defined its position with regard to the Applicant’s complaints.       conditions for the allowance, not being already entitled to the
Therefore the Applicant has lodged the present Application.           expatriation allowance.