# C_2007117EN.01001302.xml

| 26.5.2007 | EN | Official Journal of the European Union | C 117/13 |
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26.5.2007

EN

Official Journal of the European Union

C 117/13

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Appeal brought on 8 March 2007 by Österreichische Volksbanken-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-271/02

(Case C-137/07 P)

(2007/C 117/21)

Language of the case: German

Parties

Appellant: Österreichische Volksbanken-AG (represented by: A. Ablasser-Neuhuber, R. Bierwagen and F. Neumayr, lawyers)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

| 1. | Set aside paragraphs 2 and 4 of the operative part of the judgment at first instance of 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 (1) and






  a. | annul the decision forming the subject-matter of the dispute — Commission Decision 2004/138/EC of 11 June 2002 in cartel case COMP/36.571/D-1 — in accordance with the first and third claims in so far as the decision relates to the appellant or, in the alternative, reduce the fine imposed on the appellant in accordance with the third claim; or |
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1.

Set aside paragraphs 2 and 4 of the operative part of the judgment at first instance of 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 (1) and

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a.

annul the decision forming the subject-matter of the dispute — Commission Decision 2004/138/EC of 11 June 2002 in cartel case COMP/36.571/D-1 — in accordance with the first and third claims in so far as the decision relates to the appellant or, in the alternative, reduce the fine imposed on the appellant in accordance with the third claim; or

| b. | in the further alternative, if the state of the proceedings does not permit final judgment to be given, refer the matter back to the Court of First Instance for renewed consideration and final judgment; |
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b.

in the further alternative, if the state of the proceedings does not permit final judgment to be given, refer the matter back to the Court of First Instance for renewed consideration and final judgment;

| 2. | order the Commission to pay the costs of the proceedings or, if the matter is referred back to the Court of First Instance, reserve the costs for a decision by that court. |
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2.

order the Commission to pay the costs of the proceedings or, if the matter is referred back to the Court of First Instance, reserve the costs for a decision by that court.

Pleas in law and main arguments

The appellant's grounds for appeal against the judgment of the Court of First Instance are as follows:

| | The Court erred in law in its interpretation of the liability of the agreements or conduct of the undertakings to affect trade between Member States, and in its application of that criterion to the present case. It erred in law in its judgment regarding the relative importance of the criterion as to the partitioning of the market; it is not clear on what grounds the Court declined to allow that the criterion of the partitioning of the market has, at the very least, a strong evidential value as to the existence of an effect on inter-State trade. Further, the appellant complains that the Court assessed the cross-border effect of the meetings overall, instead of examining the individual meetings of the Lombard network separately in relation to their possible effects on trade between the Member States. The over-extension of Article 81(1) EC, whereby a cartel which covers the whole territory of a Member State is deemed, by its very nature, liable to partition the markets and affect intra-Community trade, or that there is in any event a strong presumption to that effect, is inconsistent with the rationale of that Community law provision. |
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The Court erred in law in its interpretation of the liability of the agreements or conduct of the undertakings to affect trade between Member States, and in its application of that criterion to the present case. It erred in law in its judgment regarding the relative importance of the criterion as to the partitioning of the market; it is not clear on what grounds the Court declined to allow that the criterion of the partitioning of the market has, at the very least, a strong evidential value as to the existence of an effect on inter-State trade. Further, the appellant complains that the Court assessed the cross-border effect of the meetings overall, instead of examining the individual meetings of the Lombard network separately in relation to their possible effects on trade between the Member States. The over-extension of Article 81(1) EC, whereby a cartel which covers the whole territory of a Member State is deemed, by its very nature, liable to partition the markets and affect intra-Community trade, or that there is in any event a strong presumption to that effect, is inconsistent with the rationale of that Community law provision.

| | The Court erred in law by failing to apply the conditions for the attribution of turnover — which have been developed by the Commission and in case-law — to the attribution to the lead institution of the decentralised banks' market shares. It thus disregarded the fact that both the attribution of turnover and the attribution of market shares relate to the same substantive issue in the present case, the determination of the permissible fine. There appears to be no reason why the comparable issues of turnover attribution and market share attribution should be judged by different criteria. However, even if it were assumed that the decentralised banks' market shares could be attributed to the lead institution on some basis other than that which applies to the attribution of turnover, the basis specifically chosen by the Court is incorrect and unlawful. |
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The Court erred in law by failing to apply the conditions for the attribution of turnover — which have been developed by the Commission and in case-law — to the attribution to the lead institution of the decentralised banks' market shares. It thus disregarded the fact that both the attribution of turnover and the attribution of market shares relate to the same substantive issue in the present case, the determination of the permissible fine. There appears to be no reason why the comparable issues of turnover attribution and market share attribution should be judged by different criteria. However, even if it were assumed that the decentralised banks' market shares could be attributed to the lead institution on some basis other than that which applies to the attribution of turnover, the basis specifically chosen by the Court is incorrect and unlawful.

| | The Court was wrong to dismiss the appellant's complaints concerning the failure to take attenuating circumstances into account. It failed, in its legal assessment, in particular to take sufficient account of the fact that the appellant had a minor role in relation to the cartel as a whole and that there was no need for compulsion in the course of the investigation, as the appellant had cooperated voluntarily with the Commission. The appellant has a very small market share, was not invited into the inner circle by the other banks and participated in significantly fewer meetings. Those factors, which were put forward by the appellant and from which the existence of attenuating circumstances may be inferred, were to some extent not addressed at all. Neither the Commission nor the Court fulfilled the obligation to address the facts put forward and to assess them without any error in law. |
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The Court was wrong to dismiss the appellant's complaints concerning the failure to take attenuating circumstances into account. It failed, in its legal assessment, in particular to take sufficient account of the fact that the appellant had a minor role in relation to the cartel as a whole and that there was no need for compulsion in the course of the investigation, as the appellant had cooperated voluntarily with the Commission. The appellant has a very small market share, was not invited into the inner circle by the other banks and participated in significantly fewer meetings. Those factors, which were put forward by the appellant and from which the existence of attenuating circumstances may be inferred, were to some extent not addressed at all. Neither the Commission nor the Court fulfilled the obligation to address the facts put forward and to assess them without any error in law.

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(1)  OJ C 331, p. 29.

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