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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.
10.5.2003 EN Official Journal of the European Union C 112/35

The applicant furthermore submits that the Commission failed The applicant relies on the following:
to take into account the applicant’s smaller total size in relation
to that of the other participants in the infringement while — error of law in the application of Article 87 of the EC
determining the starting point for the calculation of the fine. Treaty: the measure at issue is of general scope and does
According to the applicant, the Commission should have not constitute State aid within the meaning of Article 87
applied a downward adjustment for the applicant. of the EC Treaty. In any event, the Commission has not
demonstrated that the criterion as to effect on trade
The applicant finally claims that its cooperation with the between Member States has been met;
investigation qualified for a reduction of 50 % rather than
35 %. The applicant states that it voluntarily provided the — error in the facts set out in the decision: the undertakings
Commission with evidence showing that the infringement in the financial sector are affected, as are the undertakings
started earlier than known to the Commission. in the remaining business sectors, by the structural
disadvantages acknowledged in the contested decision;

— breach of an essential procedural requirement in that the


statement of reasons is inadequate;

— breach of the principle of equality; and


Action brought on 28 February 2003 by Banco Comercial
dos Açores, SA against the Commission of the European
Communities — breach of the principles of legal certainty and legitimate
expectations.
(Case T-75/03)

(2003/C 112/67)

(Language of the case: Portuguese)

Action brought on 4 March 2003 by Feralpi Siderurgica


An action against the Commission of the European Communi- S.p.A. against the Commission of the European Communi-
ties was brought before the Court of First Instance of the ties
European Communities on 28 February 2003 by the Banco
Comercial dos Açores, SA, whose registered office is in Edifício
BCA, Rua Dr. José Bruno Tavares Carreiro, Ponta Delgada, (Case T-77/03)
Azores, represented by Carlos Botelho Moniz and Margarida
Rosado da Fonseca, lawyers.
(2003/C 112/68)

The applicant claims that the Court should:


(Language of the case: Italian)
— annul the last part of Article 1, together with Articles 2,
3 and 4 of the decision of the Commission of 11 Decem-
ber 2002 ‘on the part of the scheme adapting the
national tax system to the specific characteristics of the An action against the Commission of the European Communi-
autonomous region of the Azores with regard to the tax ties was brought before the Court of First Instance of the
reductions’ to the extent that those provisions refer European Communities on 4 March 2003 by the above
to undertakings which pursue the financial activities applicant, represented by Prof. G. M. Roberti, A. Franchi and
provided for in Section J (Codes 65, 66 and 67) of the I. Perego, lawyers,
Statistical Classification of Economic Activities in the
European Community — NACE REV1.1);
The applicant claims that the Court should:
— order the Commission of the European Communities to
pay the entire costs.
— annul wholly or in part the Commission Decision of
17 December 2002 on a proceeding pursuant to Article 6
of the ECSC Treaty (Case COMP/37.956 — concrete
Pleas in law and main arguments reinforcing bars);

The contested decision declares compatible with the common — cancel or reduce the fine imposed pursuant to Article 2
market the aid granted in the form of tax reductions under the of that decision;
tax system of the Azores, but not as regards the financial
services. — order the defendant to pay the costs.