21.3.2009

Official Journal of the European Union

C 69/21

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(Case C-564/08 P)

(2009/C 69/38)

Language of the case: German

Parties

Appellant: SGL Carbon AG (represented by: M. Klusmann and K. Beckmann, Rechtsanwälte)

Other party to the proceedings: Commission of the European Communities

Form of order sought

—set aside the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 8 October 2008 in Case T-68/04 SGL Carbon AG v Commission;

—reduce, as appropriate, the amount of the fine imposed on the appellant in Article 2 of the contested Commission decision of 3 December 2003;

—in the alternative, refer the case back to the Court of First Instance for a fresh decision;

—order the respondent to pay the costs.

Grounds of appeal and main arguments

The subject-matter of this appeal is the judgment of the Court of First Instance, which dismissed the appellant's action against Commission Decision 2004/420/EC of 3 December 2003 relating to a cartel on the market for electrical and mechanical carbon and graphite products.

The appellant relies on two grounds in support of its appeal, alleging that the Court of First Instance infringed Community law and made a procedural error.

By its first ground of appeal the appellant submits that the Court of First Instance erred in law by failing to have regard to its submission at first instance that turnover which was internal to the group of affiliated companies had wrongly been included in the market volumes used to establish the amounts on which the fine was based. It also submits that the substantively excessive nature of the amount on which the fine established in respect of the appellant was based is an infringement of the principle of non-discrimination and the principle of proportionality as well as an infringement of Article 253 EC.

By its second ground of appeal, the appellant submits that the Court of First Instance made an error of assessment, and exceeded the scope of its discretion, in establishing the amount on which the appellant's fine was based. The Court of First Instance thus also infringed the principle of non-discrimination and the principle of proportionality. It is submitted that the Court of First Instance departed, without any legal basis, from its own case-law, to the detriment of the appellant, as regards the issue of the permissibility of a flat-rate for fines according to market share categories. Whereas the Court of First Instance had regarded market share categories or ‘portions’ with a margin of fluctuation of 5 % as appropriate in similar earlier judgments, it based its decision in the present case on market share categories of 10 %, to the significant detriment of the appellant as an undertaking which is grouped at the bottom end of its category.

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