# C_2007117EN.01001201.xml

| 26.5.2007 | EN | Official Journal of the European Union | C 117/12 |
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26.5.2007

EN

Official Journal of the European Union

C 117/12

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Appeal brought on 6 March 2007 by Bank Austria Creditanstalt 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-260/02

(Case C-135/07 P)

(2007/C 117/19)

Language of the case: German

Parties

Appellant: Bank Austria Creditanstalt AG (‘BA-CA’) (represented by: C. Zschocke and J. Beninca, Rechtsanwälte)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

| — | set aside in whole or in part the judgment of the Court of First Instance of 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 (1), in respect of Case T-260/02; |
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set aside in whole or in part the judgment of the Court of First Instance of 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 (1), in respect of Case T-260/02;

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| — | annul the decision of the Commission of 11 June 2002 in Case COMP/36.571, in so far as it concerns BA-CA; |
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annul the decision of the Commission of 11 June 2002 in Case COMP/36.571, in so far as it concerns BA-CA;

| — | in the alternative, reduce by an appropriate amount the fine imposed by the Commission upon BA-CA in the contested decision; |
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in the alternative, reduce by an appropriate amount the fine imposed by the Commission upon BA-CA in the contested decision;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

By this appeal, the appellant seeks the setting aside of the judgment of the Court of First Instance of 14 December 2006. The appellant complains of numerous defects in reasoning and legal and procedural errors.

The appellant contends that the judgment appealed against endorsed without evident justification the Commission's view that the committee meetings of the banks had negative economic consequences. According to the appellant, the judgment appealed against infringes the principles governing the procedure for adducing evidence by misunderstanding the conditions to be satisfied by economic reports submitted in order to prove the absence of economic effects. On the basis of the report submitted, economic effects should not have been taken into account in the fixing of the fine.

The appellant maintains that the judgment appealed against disregarded the requirements established by the European courts imposing a need to reduce the fine on the basis of mitigating factors. Owing to this legal error, the judgment appealed against failed to correct the Commission's wrongful exercise of discretion which occurred when it took into account neither the participation of public bodies in, nor the widespread and proven public knowledge of, the committee meetings of the banks as factors mitigating the level of fines.

By its third plea in law, the appellant alleges defects in reasoning, infringement of the principle of equal treatment and further errors of law and procedure in the judgment appealed against in relation to the appraisal of its cooperation by the Commission.

The appellant maintains that it cooperated with the Commission from the outset in the reconstruction of the facts of the case. In particular it submitted at an early stage of the procedure a comprehensive account of the committee meetings of the banks and also, on a voluntary basis, an extensive set of documentation which — as found by the Court — was used by the Commission for its contested decision. Furthermore, in its reply to the statement of objections it provided an account of the facts which — as also confirmed by the judgment appealed against — the Commission was able to use for its contested decision.

Like the contested decision, the judgment appealed against failed to reduce the fine in return for this comprehensive, valuable and proven cooperation on the part of the appellant. This constitutes an incorrect application of the Leniency Notice, infringing the principle of equal treatment and the principle of legitimate expectations. Moreover, the judgment appealed against also infringed the appellant's right to be heard by independently considering factors relating to the level of the fine imposed on the appellant upon which it had been unable previously to comment.

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(1)  OJ 2006 C 331, p. 29.

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