Appeal brought on 14 July 2004 by the Commission of the European Communities against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01

(Case C-301/04 P)

(2004/C 262/25)

An appeal was brought before the Court of Justice of the European Communities on 14 July 2004 by the Commission of the European Communities, represented by Walter Mölls, Wouter Wils and Heike Gading, with an address for service in Luxembourg, against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01.

The appellant claims that the Court should:

Pleas in law and main arguments:

The judgment of the Court of First Instance of 29 April 2004 concerns Commission Decision 2002/271/EC relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement — Case COMP/E-1/36.490 — Graphite electrodes (OJ 2002 L 100, p. 1) (‘the Decision’).

The judgment confirmed that the seven applicants, which were members of the graphite electrode cartel between 1992 and 1998 and to which the Decision was addressed, breached Article 81 EC and Article 53 of the EEA Agreement, and also confirmed the scope of the infringement. The judgment did, however, reduce to varying degrees the fines imposed.

The appeal relates to the reduction explained in paragraphs 401 to 412 of the judgment and accorded to the company SGL (Case T-239/01, paragraph 2 of the operative part of the judgment). It concerns in particular the findings of the Court of First Instance regarding the extent of the right of the undertakings not to incriminate themselves, findings which also indirectly impinge on the limits of the Commission's powers to conduct investigations.

The Court of First Instance found in paragraphs 407 to 409 and in paragraph 412 of the judgment that SGL's responses to the request for information addressed to it pursuant to Article 11(2) of Regulation No 17 entitled that company — contrary to the view expressed by the Commission in the Decision — to a reduction in its fine, in accordance with the Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the Leniency Notice’). Furthermore, the Court of First Instance rejected the Commission's argument that any reduction because of SGL's replies would in any event have to be smaller than would have been the case had the undertaking itself made a voluntary disclosure (paragraph 410 of the judgment).

In the Commission's view, the passages in the judgment just cited are defective in law and the judgment is to that extent at variance with Articles 15 and 11 of Regulation No 17 in conjunction with the Leniency Notice.

The question as to whether specific answers to requests by the Commission for information in principle provided grounds for a reduction in the fine

According to settled case-law, replies to requests for information under Article 11(2) of Regulation No 17 (now Article 18(2) of Regulation No 1/2003) need not in principle be regarded as constituting cooperation in respect of which a reduction must be granted. If undertakings do not comply with such a request, the Commission may, in accordance with Article 11(5) of Regulation No 17 (Article 18(3) of Regulation No 1/2003), require them by way of a decision to provide the information sought. Certain answers, however, may provide grounds for a reduction by reason of cooperation in the investigations, that is to say, if the question put could not have been included in a decision under Article 11(5) of Regulation No 17 on the ground that it interfered in an inadmissible manner with the rights of defence of the undertakings involved.

The criteria governing the demarcation between questions that are admissible in this regard and those that are not were elaborated by the Court in its judgment in Case 374/87 Orkem [1989] ECR 3283. According to those criteria, the Commission can without restriction insist that documents that already exist and relate to the subject-matter of the investigations be handed over. It can also demand ‘information concerning such facts as may be known to [the undertaking]’ (Orkem judgment, paragraph 34). However, ‘the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove’ (Orkem judgment, paragraph 35).

The Court of First Instance failed to draw that distinction in paragraph 408 of the present judgment. Paragraph 408 concerns solely the handing over of already existing documents which it was possible to request without infringing SGL's rights of defence.

Similar arguments hold true in regard to the other request for information, which is dealt with in paragraph 412 of the judgment. As the Commission knew that SGL had warned a separate undertaking that an investigation was imminent, the Commission had, inter alia, asked SGL to which other undertaking it had provided that information. SGL named another undertaking but failed to disclose that it had also warned a third undertaking, as the Commission learned subsequently. By that question the Commission requested information ‘concerning … facts’ and did not compel the undertaking to provide ‘an admission on its part of the existence of an infringement’. In order to classify the information provided by SGL in its reply as constituting an aggravating circumstance, which is the point on which the Court of First Instance focuses, the Commission first of all had to prove that there had been an infringement.

Concerning the extent of the reduction in the case of contributions that have been preceded by a request for information

In so far as part of the cooperation provided by SGL could be deemed to constitute an answer to a question which, in the context of a binding request for information, that is to say, a request for information in the form of a decision, might be regarded as inadmissible, the Court of First Instance failed, in paragraph 410 of the judgment, to take account of the fact that any reduction can be granted only in proportion to the additional value by which the Commission is aided in its investigations. This additional value will be comparatively greater if it is derived from a voluntary contribution which, having been made at an early stage, saves the Commission in advance from being required to take specific investigative measures, such as the planning and drafting of a request for information (even if it is not binding).

(1)  Not yet published in the European Court Reports.