Case T-336/01: Action brought on 27 December 2001 by EuroCommerce A.I.S.B.L. against the Commission of the European Communities
Date: 2002-04-06
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), complaint to the Commission, electronic money, international organisation, trade regulations

6.4.2002

EN

Official Journal of the European Communities

C 84/63

The applicant claims that the Court should:

— order that the Commission pay the costs of the proceed-

ings;

— annul Article 1 of the Commission Decision of 2 October
2001 relating to a proceeding under Article 81 of the EC
Treaty and Article 53 of the EEA Agreement
(Case
COMP/36.756 — Sodium Gluconate) insofar as it per-
tains to ADM at least to the extent that it finds ADM was
party to an infringement after 4 October 1994;

— annul Article 3 of the Commission Decision of 2 October
2001 relating to a proceeding under Article 81 of the EC
(Case
Treaty and Article 53 of the EEA Agreement
COMP/36.756 — Sodium Gluconate) insofar as it per-
tains to ADM;

— in the alternative, modify Article 3 of the Decision as it
pertains to ADM, so as to annul or substantially reduce
the fine imposed on ADM therein;

— order the Commission to pay all of the costs of the

proceedings.

Pleas in law and main arguments

The grounds and main arguments are similar to those raised
in case T-322/01 Roquette Frères/Commission

Action brought on 27 December 2001 by EuroCommerce
A.I.S.B.L. against the Commission of the European Com-
munities

(Case T-336/01)

(2002/C 84/116)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 December 2001 by EuroCom-
merce A.I.S.B.L., represented by Mr Pierre V. F. Bos and Mr
Morten Nissen of Dorsey & Whitney LLP, Brussels (Belgium).

The applicant claims that the Court should:

— annul the Commission’s Decision dated 9 August 2001
the EC
(Case

relating to proceedings under Article 81 of
Treaty and Article 53 of the EEA Agreement
No COMP/29.373 — Visa International);

— order that the Commission pay the costs incurred by

EuroCommerce in the present proceedings.

Pleas in law and main arguments

The applicant is an international association with as its aim
the research into and solution of problems concerning trade.
The applicant has lodged in this respect several complaints
with the Commission regarding the non-tariff rules and the
multilateral interchange fees used by payment card organis-
ations. The multilateral interchange fee is paid by the acquiring
bank (the merchant’s bank) to the issuing bank (the customer’s
bank). This fee has, according to the applicant, a direct
influence on the fee that a merchant has to pay to his acquiring
bank for the use of payment cards for payment by his
customers. The non-tariff rules are a set of rules concerning
the issuing and acquiring of payment cards.

The Commission decided, in the contested decision, that there
was no need for any action under Article 81 EC Treaty with
regard to the non-tariff rules. According to the applicant, this
decision violates both the EC Treaty and the EEA agreement.

The applicant claims that the Commission did not respect its
right to be heard. In its comments on the second letter sent
under Article 6 of Commission Regulation 2842/98, the
applicant made a conditional withdrawal of its complaints, in
the belief that the Commission would prohibit the multilateral
interchange fee. This fee, according to the applicant, is closely
intertwined with the non-tariff rules. Later, the Commission
changed its opinion on this point. According to the applicant,
however, it had then no opportunity to give its comments.

in that

the applicant claims that

there has been a
Furthermore,
violation of Article 81 of the EC Treaty and the principle of
sound administration,
the Commission failed to
consider the non-tariff rules and the multilateral interchange
fees together. According to the applicant, they should have
been considered together in order to establish whether or not
they have a detrimental effect on competition. The Com-
mission has cleared the non-tariff rules in the contested
decision and has the intention of clearing the multilateral
interchange fee. The applicant, however, states that these
aspects are closely intertwined and that their joint effect on
competition should have been investigated.

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.