Judgment — ECLI:EU:T:2006:271
Date: 2006-09-27
Language of the case: German
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Decision of the Commission;Agreements of undertakings, decisions by associations of undertakings and concerted practices;General;Hearing of persons concerned and of third parties / Access to the file;Presumption of innocence;Opposition
Procedure: Action for annulment;Application to set aside judgment by default - unfounded
Origin: Germany

Notice for the OJ Action brought on 26 February 2002 by Dresdner Bank AG against the Commission of the European Communities (Case T-44/02) 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 26 February 2002 by Dresdner Bank AG, of Frankfurt am Main (Germany), represented by M. Hirsch and W. Bosch, lawyers. The applicant claims that the Court should: (annul the decision of 11 December 2001 in Case COMP/E-1/37.919 ( Bank charges for currency exchange within the Euro zone: Germany (Dresdner Bank AG) pursuant to the first paragraph of Article 231 EC, alternatively cancel the fine imposed on Dresdner Bank AG by Article 3 of that decision; (order the Commission to pay the costs of Dresdner Bank AG pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance. Pleas in law and main arguments: By the contested decision, the Commission imposed a fine of EUR 28 million on the applicant for infringement of Article 81(1) EC. In that decision, the Commission found that agreements had been concluded between various German banks, including the applicant, concerning the type and amount of bank charges, the agreements in question having been aimed, during the transitional period, at fixing the way in which charges were to be made for exchanging bank notes in the currencies of the countries taking part in monetary union, in the form of a percentage, together with a target price of around 3%. The applicant denies that it took part in an agreement contrary to Article 81(1) EC. It maintains that the evidence produced by the Commission in that regard is insufficient. In addition, the Commission failed to show the effects of the alleged agreement on trade between Member States. The Commission wrongly assumed that there was an ongoing infringement. The calculation of the fine is wrong, because the Commission did not carry out any assessment of the applicant's individual conduct. In the course of the procedure, the Commission infringed the applicant's rights of defence, inasmuch as it refused to allow the applicant to have sight of the files relating to the circumstances resulting in the decision to discontinue the procedure against other banks and did not, in the contested decision, examine the statements made by the applicant in its response to the main points raised in the complaint and in the oral hearing. The imposition of a fine on the applicant exceeds the Commission's discretionary power and discriminates against the applicant by comparison with those entities who were the subject of the complaint and on whom it was decided not to impose a fine. The Commission should likewise have decided to discontinue the procedure as against the applicant. ____________