Le Carbone-Lorraine v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 62004TJ0073
• ECLI: ECLI:EU:T:2008:416
• Court: General Court (European Union)
• Date: 08 October 2008
• Procedure Type: Recours en annulation - irrecevable
• Docket Number: T-73/04

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

8 October 2008 (*)

(Competition − Agreements, decisions and concerted practices − Market for electrical and mechanical carbon and graphite products − Guidelines on the method of setting fines − Gravity and duration of the infringement − Mitigating circumstances − Cooperation during the administrative procedure − Principle of proportionality − Principle of equal treatment)

In Case T‑73/04,

Le Carbone-Lorraine, established in Courbevoie (France), represented initially by A. Winckler and I. Simic, and subsequently by A. Winckler and H. Kanellopoulos, lawyers,

applicant,

v

Commission of the European Communities, represented by F. Castillo de la Torre and É. Gippini Fournier, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision 2004/420/EC of 3 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case No C.38.359 − Electrical and mechanical carbon and graphite products), and, in the alternative, annulment or reduction of the fine imposed on the applicant by that decision,

THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras (Rapporteur), President, M. Prek and V. Ciucă, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 28 February 2008,

gives the following

Judgment

Facts

1 Le Carbone-Lorraine (‘LCL’ or ‘the applicant’) is a French undertaking which manufactures carbon and graphite products for use in the electrical and mechanical sectors.

2 On 18 September 2001 the representatives of Morgan Crucible Company plc (‘Morgan’) met with Commission officials in order to propose their cooperation in establishing the existence of a cartel on the European market for electrical and mechanical carbon and graphite products and to apply for leniency as provided for in Commission Notice 96/C 207/04 on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’).

3 On 2 August 2002 the Commission, pursuant to Article 11 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), sent requests for information concerning their conduct on the relevant market to C. Conradty Nürnberg GmbH (‘Conradty’), SGL Carbon AG (‘SGL’), Schunk GmbH and its subsidiary Schunk Kohlenstoff-Technik GmbH (together referred to as ‘Schunk’), Eurocarbo SpA, Luckerath BV, Gerken Europe SA (‘Gerken’) and the applicant. The letter which was sent to Schunk also concerned the activities of Hoffmann & Co. Elektrokohle AG (‘Hoffmann’), taken over by Schunk on 28 October 1999.

4 By fax sent to the Commission on 16 August 2002, the applicant requested that the Leniency Notice be applied.

5 On 22 August and 23 September 2002 the applicant sent evidence regarding the cartel to the Commission.

6 On 30 September 2002 the Commission received the applicant’s response to the request for information based on Article 11 of Regulation No 17.

7 On 23 May 2003, on the basis of the information which had been sent to it, the Commission sent a statement of objections to the applicant and the other undertakings concerned, namely Morgan, Conradty, SGL, Schunk and Hoffmann. In its response, the applicant stated that it did not substantially contest the facts set out in the statement of objections.

8 After hearing the undertakings concerned, with the exception of Morgan and Conradty, the Commission adopted Decision 2004/420/EC of 3 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case No C.38.359 – Electrical and mechanical carbon and graphite products) (‘the Decision’), of which the applicant was notified by letter of 11 December 2003. A summary of the Decision was published in the Official Journal of the European Union on 28 April 2004 (OJ 2004 L 125, p. 45).

9 The Commission stated in the Decision that the undertakings to which the Decision was addressed participated in a single and continuous infringement of Article 81(1) EC and, from 1 January 1994, Article 53(1) of the Agreement on the European Economic Area (EEA), consisting of fixing, directly or indirectly, sales prices and other trading conditions applicable to customers, sharing markets, in particular by allocating customers, and engaged in coordinated actions (quantity restrictions, price increases and boycotts) against those competitors which were not members of the cartel (recital 2 in the preamble to the Decision).

10 The Decision contains the following provisions:

‘Article 1

The following undertakings have infringed Article 81(1) [EC] and – from 1 January 1994 – Article 53(1) of the EEA Agreement by participating, for the periods indicated, in a complex of agreements and concerted practices in the sector of electrical and mechanical carbon and graphite products:

– [Conradty], from October 1988 to December 1999;

– [Hoffmann], from September 1994 to October 1999;

– [LCL], from October 1988 to June 1999;

– [Morgan], from October 1988 to December 1999;

– [Schunk], from October 1988 to December 1999;

– [SGL], from October 1988 to December 1999.

Article 2

For the infringements referred to in Article 1, the following fines are imposed:

– [Conradty]: EUR 1 060 000;

– [Hoffmann]: EUR 2 820 000;

– [LCL]: EUR 43 050 000;

– [Morgan]: EUR 0;

– [Schunk]: EUR 30 870 000;

– [SGL]: EUR 23 640 000.

The fines shall be paid, within three months of the date of the notification of this Decision ...

After the expiry of that period, interest shall automatically be payable at the interest rate applied by the European Central Bank to its main refinancing operations on the first day of the month in which this Decision was adopted, plus 3.5 percentage points.’

11 As regards the method of setting fines, the Commission categorised the infringement as very serious, in the light of its nature, its impact on the EEA market for the relevant products, even though that could not be precisely measured, and the scope of the relevant geographic market (recital 288 of the Decision).

12 In order to take account of the specific weight of the unlawful conduct of each undertaking involved in the cartel, and therefore of its real impact on competition, the Commission grouped the undertakings concerned in three categories according to their relative importance on the relevant market, determined by their market share (recitals 289 to 297 of the Decision).

13 As a result, the applicant and Morgan, considered to be the two largest operators with market shares of more than 20%, were placed in the first category. Schunk and SGL, which are medium-sized operators with market shares between 10% and 20%, were placed in the second category. Hoffmann and Conradty, considered to be the smallest operators by reason of their market shares of less than 10%, were placed in the third category (recitals 37 and 297 of the Decision).

14 On the basis of the foregoing considerations, the Commission set starting amounts, according to the gravity of the infringement, of EUR 35 million for the applicant and Morgan, EUR 21 million for Schunk and SGL, and EUR 6 million for Hoffmann and Conradty (recital 298 of the Decision).

15 In respect of the length of the infringement, the Commission held that all the undertakings concerned committed an infringement of long duration. On account of an infringement lasting 11 years and 2 months, the Commission increased the starting amount for SGL, Morgan, Schunk and Conradty by 110%. As regards the applicant, the Commission found an infringement lasting for 10 years and 8 months and increased the starting amount by 105%. In relation to Hoffmann, the starting amount was increased by 50% on account of an infringement lasting for five years and one month (recitals 299 and 300 of the Decision).

16 The basic amount of the fine, calculated according to the gravity and the duration of the infringement, was therefore set at EUR 73.5 million for Morgan, EUR 71.75 million for the applicant, EUR 44.1 million for Schunk and SGL, EUR 12.6 million for Conradty, and EUR 9 million for Hoffmann (recital 301 of the Decision).

17 The Commission found no aggravating or mitigating circumstances against or in favour of the undertakings concerned (recital 316 of the Decision).

18 As regards the application of the Leniency Notice, Morgan benefited from immunity from the fine as it was the first undertaking to draw the Commission’s attention to the existence of a cartel (recitals 319 to 321 of the Decision).

19 In accordance with Section D of that notice, the Commission granted to the applicant a reduction of 40% of the amount of the fine which would have been imposed had it not cooperated, to Schunk and Hoffmann a reduction of 30% and to SGL, which was the last undertaking to cooperate, a reduction of 20% (recitals 322 to 338 of the Decision).

20 In the Decision, under the title ‘Ability to pay and other factors’, the Commission, after having rejected the arguments of SGL and the applicant seeking to establish that they were unable to pay the fines, recalled that it had already recently imposed on SGL two significant fines for its participation in other cartel activities.

21 The Commission indicated that by Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/36.490 – Graphite electrodes) (OJ 2002 L 100, p. 1) in the ‘graphite electrodes’ case, and by Decision 2006/460/EC of 17 December 2002 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case C.37.667 – Speciality graphite) (OJ 2006 L 180, p. 20), in the ‘speciality graphite’ case, SGL received a fine of EUR 80.2 million for its participation in the graphite electrodes cartel and two fines amounting...