(Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03)

Competition – Cartels – Specialty graphite market – Price fixing – Liability – Calculation of fines – Cumulation of penalties – Duty to state reasons – Rights of the defence – Guidelines on the method of setting fines – Applicability – Gravity and duration of the infringement – Attenuating circumstances – Aggravating circumstances – Ability to pay – Cooperation during the administrative procedure – Methods of payment

6. Competition – Fines – Amount – Determination – Turnover to be taken into consideration in calculating the fine – Commission’s discretion while respecting the limit set down in Article 15(2) of Regulation No 17 (Council Regulation No 17, Art. 15(2)) (see para. 180)

10. Competition – Fines – Amount – Determination – Criteria – Taking into account of the cooperation with the Commission of the undertaking charged with an offence – Concept of ‘first undertaking’ which cooperated (Council Regulation No 17, Art. 15(2); Commission Communication No 96/C 207/04) (see para. 362)

11. Competition – Fines – Amount – Limit fixed by Article 15(2) of Regulation No 17 – Implementing procedures (Council Regulation No 17, Art. 15(2)) (see paras 389-390)

12. Competition – Fines – Determined on the basis of an undertaking’s own conduct – Effect of the fact that another trader has not been penalised – None (Council Regulation No 17, Art. 15) (see para. 397)

13. Competition – Fines – Discretion of the Commission – Scope – Power to determine the arrangements for payment of the fines – Imposition of default interest – Margin of discretion in fixing the rate (Council Regulation No 17, Art. 15(2) (see paras 411-412)

Re:

ACTIONS for the annulment in whole or in part of Commission Decision C(2002) 5083 final of 17 December 2002 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/E-2/37.667 – Speciality Graphite)

Operative part

The Court:

– dismisses the action;

– orders the applicant to pay the costs.

– dismisses the action;

– orders the applicant to pay the costs.

– sets the fine imposed on the applicant by Article 3 of Decision COMP/E-2/37.667 at EUR 420 000;

– amends Article 3(h) of Decision COMP/E-2/37.667 so that the joint and several liability of Intech EDM AG is limited to EUR 420 000;

– dismisses the remainder of the action;

– orders the applicant to bear two thirds of its own costs and to pay two thirds of the costs incurred by the Commission, and the Commission to bear one third of its own costs and to pay one third of the costs incurred by the applicant.

– sets the fine imposed on the applicant by Article 3 of Decision COMP/E-2/37.667 at EUR 9 641 970 in respect of the infringement committed in the isostatic graphite sector;

– dismisses the remainder of the action;

– orders the applicant to bear two thirds of its own costs and to pay two thirds of the costs incurred by the Commission, and the Commission to bear one third of its own costs and to pay one third of the costs incurred by the applicant.