CELEX: C2002/017/28
Language: en
Date: 2002-01-19 00:00:00
Title: Case T-246/01: Action brought on 6 October 2001 by UCAR International Inc. against the Commission of the European Communities

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
 ---pagebreak--- 19.1.2002              EN                    Official Journal of the European Communities                                             C 17/17
of payment of this fine were specified in Article 4 of the              under its principal credit facilities, its ability to pay and the
Decision. Fines and sanctions subsequent to these infringe-             effect on competition in the graphite electrodes market if the
ments have been imposed upon the applicant in other states.             applicant were forced into bankruptcy.
                                                                        (1) Commission Notice of 18 July 1996 on the non-imposition or
                                                                            reduction of fines in cartel cases (OJ [1996] C 207, p. 4).
The Decision was sent to the applicant by letter dated 23 July
2001 from the Commissioner responsible for competition
matters, in which further matters regarding payment, including
statements about a possible collection of the fine in case of
non-payment, were mentioned. The applicant submits that
this letter constitutes a separate decision which it contests.          Action brought on 26 September 2001 by eCopy, Inc.
                                                                        against the Office for Harmonisation in the Internal
                                                                                                         Market
                                                                                                   (Case T-247/01)
The applicant made representations to the Commission on the                                         (2002/C 17/29)
subject of payment terms. The Commission replied by letter of
9 August 2001 which, according to the applicant, constitutes
a third distinct decision, of which it seeks the annulment.                                 (Language of the case: English)
                                                                        An action against the Office for Harmonisation in the Internal
                                                                        Market was brought before the Court of First Instance of the
                                                                        European Communities on 26 September 2001 by eCopy,
The applicant does not contest the findings in the first Decision       Inc., represented by Mr Brian C. Read, Barrister, of 19 Old
that it committed an infringement of the EC competition rules,          Buildings, London (United Kingdom)
nor does it contest that a fine should be imposed for this
infringement. It does, however, contest the imposition of a
fine on it in the above-mentioned amount. It alleges that it            The applicant claims that the Court should:
should have been accorded a greater reduction of the fine for
its cooperation with the Commission under the Leniency                  —     annul the Board Decision of 13 July 2001;
Notice (1), and that the level of the fine is unlawfully high,
having regard to the gravity and duration of the infringement,
and to aggravating and attenuating circumstances and other              —     order the Office for Harmonisation in the Internal Market
general factors. The Commission has also breached certain                     to grant Community trade application no. 1718667,
essential procedural requirements in failing properly to investi-             alternatively to continue prosecution of the application
gate and assess the role of the former owners of the applicant                according to the judgment of the Court;
in the cartel.
                                                                        —     order the Office for Harmonisation in the Internal Market
                                                                              to pay the costs of eCopy, Inc.
                                                                        Pleas in law and main arguments
Furthermore, the applicant contests the associated payment
terms and grounds and submits that Article 4 of the Decision
of 18 July 2001 and the alleged third decision of 9 August              Applicant for the Com-            eCopy, Inc.
2001 are void for the lack of reasoning. The applicant disputes         munity trade mark:
the Commission’s position that it will seek to enforce the fine,
even if proceedings for its annulment are pending before the            The Community trade               The verbal mark ECOPY in respect
Court, unless a bank guarantee covering the amount of the               mark concerned:                   of certain goods in class 9.
fine and interest is provided. It is submitted that the Com-
mission erred when it refused to accept a lien on company               Decision of the Exam-             Refusal of the application
assets as security for the fine and when it refused to accept or        iner:
even consider a payment schedule which did not include a
bank guarantee. Finally, the Commission erroneously refused             Decision of the Board of          Rejection of the Appeal
to take account of the restrictions imposed on the applicant            Appeal: