# C_2004262EN.01003902.xml

| 23.10.2004 | EN | Official Journal of the European Union | C 262/39 |
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23.10.2004

EN

Official Journal of the European Union

C 262/39

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Action brought on 28 July 2004 by Clearstream Banking Aktiengesellschaft and Clearstream International sociéte anonyme Luxembourg against the Commission of the European Communities

(Case T-301/04)

(2004/C 262/75)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 July 2004 by Clearstream Banking Aktiengesellschaft, having its registered office in Frankfurt am Main, and Clearstream International sociéte anonyme Luxembourg, having its registered office in Luxembourg, represented by Horst Satzky and Bernhard M. Maassen, lawyers.

The applicants claim that the Court should:

| — | annul the Commission decision of 2 June 2004 addressed to them in Case COMP/38.096 and which: (i) establishes that there was abuse of a dominant market position; and (ii) imposes an obligation to discontinue such abuse; and |
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annul the Commission decision of 2 June 2004 addressed to them in Case COMP/38.096 and which: (i) establishes that there was abuse of a dominant market position; and (ii) imposes an obligation to discontinue such abuse; and

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

Pleas in law and main arguments:

By the contested decision the Commission accuses the applicants of breaching Article 82 EC. In the Commission's view the applicants abused a dominant market position by ostensibly refusing for almost two years to provide Euroclear Bank S.A. (‘EB’) with so-called primary clearing and settlement services in respect of German registered shares and by applying price discrimination over five years against EB with regard to the provision of primary clearing and settlement services.

The applicants dispute that charge and request that the decision be declared void. The applicants' main head of complaint centres on the Commission's assumption that the applicant Clearstream Banking AG (‘CB’) enjoys a dominant position on the relevant market.

The applicants contend that the negotiations between CB and EB on the processing of securities transactions in respect of German registered shares lasted, not for close on two years, but for nine months at most. The reasons for the length of this period, they argue, lay with EB and not with CB. At no point did CB have an interest in, let alone the intention of, denying to EB services which it provides for other clients.

The applicants submit further that the fact could not be overlooked during negotiations that the processing of securities transactions in respect of German registered shares had no significance whatever for the exchange of services between CB and EB. In their calculation of prices the applicants followed the principle that comparable clients should be given equal treatment. EB, they submit, is not comparable to the group of clients which the Commission has used as the basis for its charge of discrimination.

The applicants also contend that the Commission never claimed that Clearstream International S.A. Luxembourg (‘CL’) was an undertaking with a dominant market position. For that reason alone it could not have abused any dominant market position. Furthermore, the objectively relevant market was inaccurately defined in the decision. The applicants take the view that the distinction drawn by the Commission between ‘primary’ and ‘secondary’ processing services cannot be based on objective grounds and is even contradictory. There is, they argue, only one single objectively relevant market for clearing and settlement. CB does not have a dominant position on this objectively relevant market for all clearing and settlement services. Neither CB nor CI is thus a party to which the rule in Article 82 EC can be addressed. The decision must be quashed in any event on grounds of erroneous market definition and — consequently — of the absence of market domination.

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