Case T-3/02: Action brought on 10 January 2002 by Schlüsselverlag J.S. Moser Gesellschaft m.b.H. and Others against the Commission of the European Communities
Date: 2002-04-06
Institutions: Court of First Instance
Subjects: Austria, European Commission, action for failure to act, competition law, economic concentration, press

C 84/64

EN

Official Journal of the European Communities

6.4.2002

The applicant also states that the Commission has erred in law
and in fact by clearing the ‘no-discrimination rule’, according
to which merchants are prohibited from charging their costs
for the use of debit card by a customer to that customer.
According to the applicant, this rule constitutes a restriction
on competition, since it prevents the merchants from using
the threat of such discrimination as pressure in order to
bargain for lower merchant’s fees. The applicant states that the
Commission has made an incomplete market investigation on
this point.

Likewise, the applicant claims that the Commission has erred
in clearing several other rules with the contested decision.
Thus the Commission clears the ‘cross-border issuing rules’
that require that a bank wishing to start issuing cards in
another state must comply with the rules applicable in that
state. According to the applicant, this partitions the market de
facto and prevents less restrictive rules in one state from being
used by issuing banks as a competitive advantage in another
state. Furthermore, the Commission erred in clearing the
‘cross-border acquiring rule’, which prevents, according to the
applicant, merchants in one state from seeking an acquiring
bank in another state where the multilateral interchange fee is
lower.

Finally, the Commission gives insufficient reasoning for its
clearance of the ‘No acquiring without issuing rule’. This rule
requires that a bank, wishing to acquire merchants, must issue
a certain number of cards to customers before it may begin its
acquiring activities. This amounts, according to the applicant,
to a market sharing agreement between the current issuers.

— order the defendant to pay to the applicant, by way of
compensation for the damage suffered and to be suffered,
EUR 350 000, fixed with all manner of reservations,
together with default interest at the rate of 10 % per
annum as from 7 October 1999 until the date on which
it is actually paid;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant
is suffering from an occupational disease
contracted after working in the Court of Justice building which
contained asbestos.

According to the applicant, the Court of Justice confuses two
categories of damage: that covered by Article 288 of the EC
Treaty and that covered by Article 73 of the Staff Regulations.
The applicant is not seeking a finding under Article 73 of
the Staff Regulations that his health has deteriorated but
compensation, under Article 288 of the EC Treaty, for non-
material damage as a result of his illness, damage which is
non-medical and non-economic.

The applicant claims that all the conditions for the granting of
such compensation are met in his case. In particular, he has
suffered actual damage in that his family and social lives have
been disrupted as a result of his illness. Secondly, there is, in
the applicant’s view, a causal link between the damage suffered
and the act complained of in that the Court of Justice did not
take appropriate protective measures. Thirdly, the damage is
unusual and special in nature.

Action brought on 3 January 2002 by Robert Polinsky
against Court of Justice of the European Communities

Action brought on 10 January 2002 by Schlüsselverlag
J.S. Moser Gesellschaft m.b.H. and Others against the
Commission of the European Communities

(Case T-1/02)

(2002/C 84/117)

(Language of the case: French)

(Case T-3/02)

(2002/C 84/118)

(Language of the case: German)

An action against the Court of Justice was brought before the
Court of First Instance of the European Communities on
3 January 2002 by Robert Polinsky, residing in Thionville
(France), represented by Juan-Ramo´ n Iturriagagoitia, lawyer.

The applicant claims that the Court should:

— annul the decision of the Court of Justice of 25 September

2001;

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 10 January 2002 by Schlüsselverlag
J.S. Moser Gesellschaft m.b.H., established in Innsbruck (Aus-
tria), J. Wimmer GmbH, established in Linz (Austria), Zeitungs-
und Verlags-Gesellschaft m.b.H., established in Bregenz (Aus-
tria), Eugen Russ Vorarlberger Zeitungsverlag und Druckerei
Gesellschaft mbH, established in Schwarzach (Austria),
‘Die
Presse’ Verlagsgesellschaft m.b.H., established in Vienna (Aus-
tria), and ‘Salzburger Nachrichten’ Verlags-Gesellschaft m.b.H.
& Co KG, established in Salzburg (Austria), represented by
M. Krüger, lawyer.

6.4.2002

EN

Official Journal of the European Communities

C 84/65

The applicants claim that the Court should:

— declare that, by failing to reach a decision on the
complaint lodged by the applicants against a concen-
tration with a Community dimension, which was notified
and approved at national level by the Vienna Oberlandes-
gericht (Higher Regional Court), in its capacity as Kar-
tellgericht (Restrictive Practices Court) by decision of
26 February 2001, or, in the alternative, by failing to
require the parties to the concentration to notify the
defendant of the concentration, the defendant failed to
fulfil its obligations under the EC Treaty;

— order the defendant to pay the costs.

Pleas in law and main arguments

By letter of 25 May 2001, the applicants, as owners of Austrian
newspapers, lodged with the defendant a complaint regarding
a media concentration which had been approved in Austria, to
which the companies Bertelsmann, Gruner+Jahr, Raffeisen,
KURIER-Magazine and NEWS were parties, and which, accord-
ing to the applicants, had a Community dimension. The
complaint was accompanied by the request that the parties to
the concentration be required to notify the concentration in
accordance with Council Directive (EEC) No 4064/89.

DG Competition took the view, in a number of letters, that
the abovementioned regulation was not applicable to the
concentration in question, as there had only been a partial
transfer, which did not involve at least two undertakings with
turnovers of more than EUR 250 million. DG Competition
pointed out, however, that that view was not binding on the
defendant.

Since the defendant failed to react within two months to the
applicants’ request for a formal decision on the complaint, the
applicants have brought an action under Article 232 EC for a
declaration of failure to act. They submit that in the absence
of a decision attributable to the defendant, it is not possible to
bring an action for annulment before the Court of First
Instance, and that the applicants are directly and individually
concerned by the defendant’s failure to adopt a decision.

one and the same Member State. Finally, this was not a partial
transfer of an undertaking but a merger.

Action brought on 18 January 2002 by Michael Gerhard
Franz Platte against Commission of the European Com-
munities

(Case T-6/02)

(2002/C 84/119)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 18 January 2002 by Michael
Gerhard Franz Platte, residing in Tielt-Winge (Belgium), rep-
resented by Xavier De Kesel, lawyer.

The applicant claims that the Court should:

— annul the decision of 6 September 2001 being appealed
against and make an order emending and implementing
what
to have done,
namely appoint the applicant to Grade C 4.

the appointing authority ought

Pleas in law and main arguments

The applicant was classified, upon taking up his duties, in
Grade C 5. In his application, the applicant contests that
decision. According to the applicant, he should, in view of his
previous experience and of the fact that the requirements of
the service call for the recruitment of a particularly well-
qualified person, have been classified in Grade C 4.

Removal from the register of Case T-315/00 (1)

(2002/C 84/120)

(Language of the case: Italian)

The applicants claim that the national decision is invalid under
Article 81 EC in conjunction with Regulation 4064/89,
because, contrary to Article 21(2) of that regulation, the
Republic of Austria applied its national competition law to a
concentration with a Community dimension. In addition, they
claim that there are two parties to the concentration with
turnovers in excess of EUR 250 million, one of which does
not achieve more than two-thirds of its annual turnover within

By order of 29 November 2001 the President of the Fourth
Chamber of the Court of First Instance of the European
Communities Case T-315/00 Associazione delle Cantine Socia-
li Venete e della Cantina dei Colli Berici against Commission
of the European Communities, was removed from the register.

(1) OJ C 335 of 25 November 2000.