Notice for the OJ

 

Action brought on 27 October 2003 by GRAFTECH INTERNATIONAL LTD. against the Commission of the European Communities

    (Case T-359/03)

    Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 October 2003 by GRAFTECH INTERNATIONAL LTD. , Wilmington, Delaware, USA, represented by K.P.E. Lasok QC and Brian Hartnett, Barristers with an address for service in Luxembourg.

The applicant claims that the Court should:

-annul the contested Commission Decisions dated 18 July 2001, 23 July 2001, 9 August 2001, 18 August 2003, 11 September 2003 and 18 September 2003 requiring GTI to perform its obligations under the Decision of 18 July 2001 or post a bank guarantee or face imminent enforcement of the Decision of 18 July 2001 as of September 2003;

- 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

-annul the contested Commission Decisions specifically to the extent that they apply interest at a default rate of 8.04%

listnum "WP List 1" \l 1order the Commission to pay its own costs and those incurred by the applicant

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 Article 81 of the EC treaty by participating in a complex of agreements and concerted practices in the graphite electrodes sector. The same Decision imposed a fine on the applicant and required that it be paid within 3 months of notification with 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 2001 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 made representations to the Commission proposing different payment terms, which were rejected by a letter of the Commission dated 9 August 2001. The applicant also introduced proceedings against the Decision of 18 July 2001 imposing the fine¹. Further proposals by the applicant on payment facilities were rejected by the Commission by letters dated 18 August 2003, 11 September 2003 and 18 September 2003.

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 2003 infringes the principle of proportionality by failing to achieve a fair balance between the interest of the parties and in particular the applicant's interest in granting a lien over its unencumbered assets instead of the bank guarantee requested by the Commission . The applicant also invokes alleged 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 of its financial position and the value of the lien it had offered. The applicant further submits that the Commission's Decisions on the applicable interest rates are manifestly erroneous and that the Commission has breached essential procedural requirements in that it failed to afford the applicant an opportunity to be heard before adopting a decision to enforce its first Decision of 18 July 2001.

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¹ - Case T-246/01 notified in OJ C17 19/01/2002 p. 16