CELEX: C2004/007/74
Language: en
Date: 2004-01-10 00:00:00
Title: Case T-359/03: Action brought on 27 October 2003 by GRAFTECH INTERNATIONAL LTD. against the Commission of the European Communities

C 7/40                EN                          Official Journal of the European Union                                          10.1.2004
The applicant claims that the Court should:                               —      annul the contested Commission Decisions specifically to
                                                                                 the extent that they apply interest at a default rate of
—     annul the decision not to reimburse to the applicant his                   8,04 %;
      accommodation expenses of EUR 4 200 per month in
      full;                                                               —      order the Commission to pay its own costs and those
                                                                                 incurred by the applicant.
—     order the defendant to pay the costs.
                                                                          Pleas in law and main arguments
Pleas in law and main arguments
                                                                          By the Decision made on 18 July 2001 the Commission found
                                                                          that the applicant and seven other undertakings had infringed
In support of his application, the applicant submits that the             Article 81 of the EC treaty by participating in a complex of
defendant infringed Articles 5 and 23 of Annex X to the Staff             agreements and concerted practices in the graphite electrodes
Regulations, in so far as it may not refuse to reimburse                  sector. The same Decision imposed a fine on the applicant and
his accommodation expenses when it did not provide any                    required that it be paid within 3 months of notification with
accommodation and offered no alternative.                                 interest of 8,04 % payable if the fine was not paid by the stated
                                                                          date. This Decision was notified to the applicant under cover
                                                                          of a letter dated 23 July 2003 which also indicated that if the
                                                                          applicant brought proceedings before the Court of First
                                                                          Instance against the imposition of the fine, no enforcement
                                                                          proceedings would be taken as long as the case was pending
                                                                          before the court, on condition that the applicant paid interest
                                                                          on the amount of the fine at a rate of 6,04 % and provided a
                                                                          bank guarantee for the amount of the fine. The applicant
Action brought on 27 October 2003 by GRAFTECH                             made representations to the Commission proposing different
INTERNATIONAL LTD. against the Commission of the                          payment terms, which were rejected by a letter of the
                   European Communities                                   Commission dated 9 August 2001. The applicant also intro-
                                                                          duced proceedings against the Decision of 18 July 2001
                                                                          imposing the fine (1). Further proposals by the applicant on
                        (Case T-359/03)                                   payment facilities were rejected by the Commission by letters
                                                                          dated 18 August 2003, 11 September 2003 and 18 September
                         (2004/C 7/74)                                    2003.
                  (Language of the case: English)                         By the present action the applicant attacks all the Decisions
                                                                          concerning payment terms. It submits that it is an error of law,
                                                                          on the part of the Commission, to consider that no security
                                                                          other than a bank guarantee could be accepted by the
                                                                          Commission. It also submits that the Decision of 18 August
An action against the Commission of the European Communi-                 2003 infringes the principle of proportionality by failing to
ties was brought before the Court of First Instance of the                achieve a fair balance between the interest of the parties and
European Communities on 27 October 2003 by GRAFTECH                       in particular the applicant’s interest in granting a lien over its
INTERNATIONAL LTD., Wilmington, Delaware, USA, rep-                       unencumbered assets instead of the bank guarantee requested
resented by K.P.E. Lasok QC and Brian Hartnett, Barristers with           by the Commission . The applicant also invokes alleged
an address for service in Luxembourg.                                     manifest errors of fact relating to the Commission’s finding
                                                                          that the applicant has not shown that it cannot comply with
                                                                          the Commission’s Decision and the Commission’s assessment
The applicant claims that the Court should:                               of its financial position and the value of the lien it had offered.
                                                                          The applicant further submits that the Commission’s Decisions
—     annul the contested Commission Decisions dated 18 July              on the applicable interest rates are manifestly erroneous
      2001, 23 July 2001, 9 August 2001, 18 August 2003,                  and that the Commission has breached essential procedural
      11 September 2003 and 18 September 2003 requiring                   requirements in that it failed to afford the applicant an
      GTI to perform its obligations under the Decision of                opportunity to be heard before adopting a decision to enforce
      18 July 2001 or post a bank guarantee or face imminent              its first Decision of 18 July 2001.
      enforcement of the Decision of 18 July 2001 as of
      September 2003;
                                                                          (1) Case T-246/01 notified in OJ C 17, 19.01.2002, p. 16.
—     annul the contested Commission Decisions specifically to
      the extent that they apply interest at a rate of 6,04 %
      when current market interest rates are significantly lower;