# C_2007117EN.01001101.xml

| 26.5.2007 | EN | Official Journal of the European Union | C 117/11 |
| --- | --- | --- | --- |

26.5.2007

EN

Official Journal of the European Union

C 117/11

---

Appeal brought on 6 March 2007 by Raiffeisen Zentralbank Österreich AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities concerning Case T-259/02

(Case C-133/07 P)

(2007/C 117/18)

Language of the case: German

Parties

Appellant: Raiffeisen Zentralbank Österreich AG (represented by: S. Völcker and G. Terhorst, Rechtsanwälte)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

| — | Annulment of the judgment of the Court of First Instance of the European Communities of 14 December 2006 in Joined Cases T 259/02 to T-264/02 and T-271/02 (1) in so far as it dismisses RZB's action; |
| --- | --- |

—

Annulment of the judgment of the Court of First Instance of the European Communities of 14 December 2006 in Joined Cases T 259/02 to T-264/02 and T-271/02 (1) in so far as it dismisses RZB's action;

1

| — | Annulment of Article 3 of the Commission decision of 11 June 2002 (C (2002) 2091 final) in so far as it concerns RZB; |
| --- | --- |

—

Annulment of Article 3 of the Commission decision of 11 June 2002 (C (2002) 2091 final) in so far as it concerns RZB;

| — | In the alternative, a reduction at the discretion of the Court in the fine imposed on RZB in Article 3 of the contested decision; |
| --- | --- |

—

In the alternative, a reduction at the discretion of the Court in the fine imposed on RZB in Article 3 of the contested decision;

| — | The Commission to pay the costs. |
| --- | --- |

—

The Commission to pay the costs.

Pleas in law and main arguments

The Court infringed Article 81 EC by accepting that the Commission can conclude merely from the fact that bank committees covered the territory of one Member State that trade between Member States may be affected.

The Court erred in law in classifying the bank committees as ‘a very serious infringement ’within the meaning of the Guidelines on fines. It misapplied the criteria mentioned in the Guidelines with regard to gravity (the nature of the infringement, actual impact on the market and size of the relevant geographic market), failed to take into account the selectivity of the Commission's action and did not ultimately carry out the overall appraisal of all viewpoints, which it had itself demanded.

The Court erred in law in attributing to RZB the market shares for the whole of the agricultural credit cooperative sector. In doing so it incorrectly confined its basis for review to only ‘manifest ’unequal treatment in respect of other banks. The legal basis necessary for a complete attribution was lacking.

The Court erred in law in assessing RZB's cooperation. It applied the criterion of ‘significant added value ’in contravention of the principle of non-retroactivity, failed to appreciate the voluntary nature of RZB's various contributions amounting to cooperation, erroneously assumed a reversal of the burden of proof as regards the value of the cooperation, impermissibly rejected the Common account of the facts as an inappropriate form of cooperation and erred in not recognising RZB's admission in respect of the anti-competitive purpose of the agreements as a contribution amounting to cooperation.

---

(1)  OJ C 331, p. 29.

1

---