Case T-36/02: Action brought on 21 February 2002 by the Associazione Bancaria Italiana (ABI) against the Commission of the European Communities
Date: 2002-04-20
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), bank, control of State aid

C 97/14

EN

Official Journal of the European Communities

20.4.2002

Pleas in law and main arguments:

Action brought on 21 February 2002 by the Associazione
Bancaria Italiana (ABI) against the Commission of the
European Communities

company manufactured D-pantolactone

The applicant is a Japanese pharmaceutical company whose
subsidiary
and
Pyridoxine
D-Calcium Pantothenate
(Vitamin B6) during the relevant period. In the contested
Decision, the Commission imposed fines upon the applicant
and seven other companies for participating in eight distinct
secret market-sharing and price-fixing cartels affecting vitamin
products.

(Vitamin B5)

and

The applicant does not dispute the Commission’s finding that
the applicant had infringed Article 81(1) of the EC Treaty
and Article 53(1) of the EEA Agreement by participating in
agreements affecting the Community and EEA markets for
Vitamins B5 and B6. Furthermore, the applicant does not
contest the facts found by the Commission. The applicant
seeks, however, the annulment of Article 3(f) of the Decision
imposing a fine of EUR 23.4 million upon the applicant or,
alternatively, a substantial reduction of that fine.

The applicant submits inter alia that the Commission commit-
ted a manifest error of judgement, erroneously applied the law
to the facts and infringed the Fining Guidelines

— by failing to place the applicant in a third category,
behind both Hoffmann-La Roche and BASF, in setting
the starting point for the amount of the fine relating to
the gravity of the infringement, or, alternatively and in
violation of the principle of equal treatment, in failing to
place the applicant in the second category with BASF;

— by failing to treat the applicant’s less-than-full implemen-
tation of the Vitamin B5 cartel as an attenuating circum-
stance warranting a substantial reduction of the basic
amount of the fine;

— by failing to grant to the applicant total immunity or a
very substantial reduction of 75 % to 100 % of the fine
for the Vitamin B5 infringement pursuant to Section B
of the Leniency Note on the basis of the applicant’s
cooperation during the procedure or, alternatively, a
lesser reduction of the fine pursuant to Section C or
Section D of the Leniency Notice.

(Case T-36/02)

(2002/C 97/28)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 21 February 2002 by the Associa-
zione Bancaria Italiana (ABI), represented by Alberto Santa
Maria, Claudio Biscaretti di Ruffia, Giuseppe Pizzonia and
Marcello Valenti, lawyers.

The applicant claims that the Court should:

— annul the contested decision,

issued on 11 December
2001 by the Commission of the European Communities,
on the grounds that it infringes essential procedural
requirements and/or is unfounded, contradictory and/or
lacking in a statement of reasons in accordance with
Article 253 of the EC Treaty in conjunction with Arti-
and with Council Regulation
cles 87
No 659/1999, as expounded in the application;

and

77

— alternatively, annul the decision in question wholly or in
part pursuant to the second paragraph of Article 230 of
the EC Treaty, inasmuch as it infringes or misapplies
Article 87(1) or, in the further alternative, Article 87(3)(b)
or (c) of the EC Treaty, as expounded in the application;

— in the still further alternative, in the inconceivable event
that the Court finds that the articles of Law No 461 of
23 December 1998 and of Legislative Decree No 153 of
17 May 1999, to which the contested decision relates,
constitute a system of State aid which is incompatible
with the common market, rule that the contested decision
of the Commission cannot have any retroactive effect;

subject to the reservation of all rights.

Pleas in law and main arguments

The present action is directed against
the Commission’s
decision of 11 December 2001 concerning the system of State
aid implemented by Italy in favour of banks (C/54/A/2000/EC
[ex NN 70/2000]). That system of aid results from the
application of Law No 461 of 23 December 1998 (the ‘Legge
Ciampi’) and of Legislative Decree No 153 of 17 May 1999,
which lay down certain fiscal measures in relation to mergers
between banking institutions and the transfer of capital goods
and equipment, as part of the composite scheme for the
privatisation of the sector.

20.4.2002

EN

Official Journal of the European Communities

C 97/15

In support of its claims, the applicant association puts forward
the following pleas and arguments:

— The fiscal measures in favour of mergers between banking
institutions are not selective and do not constitute ad hoc
aid. It should be borne in mind in that regard that the
incentives for mergers between
introduction of fiscal
banking institutions, as provided for under the Italian
rules since 1990, the primary aim of which is to facilitate
the privatisation of the sector,
is solely intended to
improve the functioning and flexibility of the tax rules
with specific reference to the reality of the developments
taking place in the Italian banking system.

— The fiscal measures provided for in favour of transfers of
to institutions do not
capital goods and equipment
constitute aid,
inasmuch as they do not involve any
effective waiver by the State of the collection of tax
revenues.

— Neither of those types of fiscal measures distorts or
threatens to distort competition. No preliminary investi-
gation whatever has been carried out by the Commission
in relation to this point. It must be emphasised in that
regard that, compared with their competitors in the
Community, Italian banks are additionally penalised by a
higher tax burden which cannot easily be reconciled with
the tax regimes applying in other Member States.

laws. In that regard, it should be borne in mind that the
‘Legge Amato’ had been expressly considered by the
defendant on various occasions in connection with
Sicilian banks and the Banco di Napoli. In the latter
connection, the applicant pleads infringement of the
principles of the protection of legitimate expectations,
proportionality and legal certainty.

Action brought on 22 February 2002 by Groupe Danone
against the Commission of the European Communities

(Case T-38/02)

(2002/C 97/29)

(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 22 February 2002 by Groupe
Danone, established in Paris, represented by Antoine Winckler
and Marc Waha, lawyers.

— The fiscal measures adopted in relation to mergers
between banking institutions do not affect trade between
Member States.

The applicant claims that the Court should:

— No preliminary investigation has been carried out, and
no statement of reasons has been given as to why this
case does not concern de minimis aid.

— The defendant’s refusal to carry out any specific assess-
ment of the Italian rules in question meant that it was not
able to gain a better understanding of the scope and
content of those rules; this would probably have enabled
it to ascertain that they complied with Article 87(1) and
(3) EC and correctly to assess the appropriateness of
their intended purpose. In actual fact, the Commission
understood neither the content nor the scope of the
Italian rules forming the subject-matter of the case.

— In the contested decision, the Commission, when asses-
sing the possible incompatibility of certain provisions of
the law in question for the purposes of Article 87(1) EC,
wholly failed to take into account the significance, dealt
with at length in the procedure before the Commission,
of the common validity and continuity of the ‘Legge
Amato’ (Law No 218 of 30 July 1990) and the ‘Legge
Ciampi’ in the context of the privatisation of the Italian
banking system, which was initiated by the first of those

— annul the decision in issue, pursuant to Article 230 of

the EC Treaty;

— alternatively, reduce the fine imposed on the applicant by
the decision, pursuant to Article 229 of the EC Treaty;

— order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested in the present case concerns two
agreements relating to the Belgian beer market. The first was
concluded between Interbrew N.V. and Brouwerijen Alken-
Maes N.V. It included, in particular, a general ‘non-aggression
pact’, an agreement regarding retail prices and a market-
sharing arrangement in the hotel/restaurant/café sector. The
Commission has not censured Alken-Maes for having partici-
pated in that agreement, but only its majority shareholder at
its own
the time, namely the applicant, on account of
participation in the agreement and the fact that it formed an
economic entity with Alken-Maes.