Case T-43/02: Action brought on 25 February 2002 by Jungbunzlauer AG against the Commission of the European Communities
Date: 2002-04-20
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, fine, restrictive trade practice

C 97/16

EN

Official Journal of the European Communities

20.4.2002

The defendant has also established the existence of a second
agreement, concerning beers sold under distributors’ brand
names, concluded between Interbrew, Alken-Maes, Haacht and
Martens, involving market-sharing and collusion in respect of
price-fixing. As regards that second agreement, the contested
decision does not censure the applicant in relation to the acts
of its former subsidiary, since it was not involved therein.

The applicant does not challenge the basic findings underlying
the contested decision. In support of its claims, it puts forward
the following pleas in law and main arguments:

— The Commission has infringed the principles of propor-
treatment by taking the sum of

tionality and equal
25 million EUR as the ‘basic amount’ of the fine.

— The decision is factually unfounded, inasmuch as it finds
that the infringement lasted from 28 January 1993 to
28 January 1998. In so finding, the Commission applied
too high a multiplier to the amount of the fine.

Action brought on 25 February 2002 by Jungbunzlauer
AG against the Commission of the European Communi-
ties

(Case T-43/02)

(2002/C 97/30)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 25 February 2002 by Jungbunzlau-
er AG, of Basle (Switzerland), represented by R. Bechtold,
M. Karl and U. Soltész, lawyers.

The applicant claims that the Court should:

— The decision is factually unfounded in so far as it finds
that the applicant forced Interbrew to participate in the
agreement.

— annul the Commission’s decision of 5 December 2001

(Case COMP/E-1/36.604 — Citric acid);

— The decision is unfounded in law and in fact, in that there
was no justification for increasing the fine on account of
the fact that the applicant had already been found on two
earlier occasions to have acted unlawfully. In that regard,
the Commission has infringed the principles of ‘nulla
poena sine lege’, ‘ne bis in idem’ and legal certainty.

— The decision is unfounded in law and in fact, inasmuch
as it reduces the fine by only 10 % on account of
mitigating circumstances. It omitted to take into account
the influence of the price control system and the tradition
of concerted practices in the brewing sector, the fact that
the agreement had no effect on the market, the dependent
situation of Alken-Maes by comparison with the domi-
nant position occupied by Interbrew, the financial difficul-
ties facing Alken-Maes and the crisis situation prevailing
during the period in question.

— The decision is unfounded in law and in fact, inasmuch
as it finds that the applicant contested the facts alleged
against it. In that respect, the applicant should have been
entitled to a substantial reduction in the fine.

The applicant company also pleads violation of its rights of
defence and failure on the part of the Commission to comply
with its obligation to provide a statement of reasons.

— alternatively, reduce the fine imposed in Article 3 of the

decision;

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

Pleas in law and main arguments

The subject-matter of the dispute is the Commission’s decision
of 5 December 2001 (Case COMP/E-1/36.604 — Citric acid)
in which the Commission found that
the applicant and
four other undertakings had infringed Article 81(1) EC and
Article 53 of the EEA Agreement, in that they had participated
in a continuing agreement and/or a concerted practice in the
citric acid sector. A fine of EUR 17,64 million was imposed on
the applicant.

First, the applicant claims that the decision was directed to the
wrong addressee. The decision should,
in fact, have been
directed to Jungbunzlauer Ladenburg GesmbH, an associate
company of the applicant.

The applicant claims that the Commission did not adequately
establish the actual effects on the market and that it refused to
take into account,
in the applicant’s favour, the fact that
Jungbunzlauer Gesmbh played a special role in the cartel.

20.4.2002

EN

Official Journal of the European Communities

C 97/17

In addition, the applicant claims that the Commission, when
fixing the amount of the fine, failed to take account of the size
of the undertakings concerned, and that it imposed two
separate fines on the applicant in the ‘citric acid’ and ‘sodium
gluconate’ cases (1), although both products belong to the same
family of products and it would have been proper to deal with
them together. The applicant submits that the fine imposed on
the applicant is highly excessive and that the Commission
applied the 10 % maximum prescribed by Article 15(2) of
Regulation 17/62 in different ways in cases based on similar
facts, which severely prejudiced the applicant’s position. That
course of action violated the principle of proportionality, the
Commission’s guidelines, and its own practice. Moreover, that
method results in discrimination against small and medium-
sized undertakings, and therefore violates the general principle
of equal treatment and the principle of the individual assess-
ment of fines.

The applicant further claims that, when calculating the fine,
the Commission refused to take into account the fact that fines
had already been imposed in the USA and Canada in respect
of the same state of affairs, which amounts to an error of
assessment.

Finally, the applicant submits that its right to be heard in
accordance with the law has been violated, since the Com-
mission did not give it access to the entire investigation file. In
addition, due to the protracted length of the procedure, the
lawful growth of the undertaking had a detrimental effect on
the applicant by increasing the potential range of the fine.
Moreover, as a result of the slow conduct of the procedure, the
applicant was subject to the new, significantly harsher, practice
of the Commission in the imposition of fines.

(1) See Commission Decision C(2001) 2931 final of 2 October 2001
which is being contested by the applicant in Case T-312/01
Jungbunzlauer v Commission (not yet published).

The applicant claims that the Court should:

— annul the contested decision C(2001) 3693 final of the
Commission of the European Communities of 11 Decem-
ber 2001 in Case COMP/E-1/37.919 (ex 37.391) — Bank
charges for currency exchange within the Euro zone —
Germany, in so far as it imposes a fine on the applicant;

— alternatively, cancel or, in the further alternative, reduce

the fine imposed on the applicant;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant is contesting the defendant’s decision C(2001)
3693 of 11 December 2001, adopted in a procedure under
Article 81 of the EC Treaty concerning Case COMP/E-1/37.919
(ex 37.391) — Bank charges for currency exchange within the
Euro zone — Germany.

The contested decision of the defendant of 11 December 2001,
which was notified in Hamburg, Germany, on 19 December
2001, is unlawful.

It constitutes an infringement of the EC Treaty and of the
rules of law relating to its application (second paragraph of
Article 230 of the EC Treaty), and should therefore be annulled.
The defendant bases its decision on an incorrect view of the
facts. The applicant participated only by chance in the
decisive foreign exchange dealers’ meeting which took place
on 15 October 1997. That meeting did not fulfil the criteria
for an agreement
in restraint of competition within the
meaning of Article 81 of the EC Treaty.

Action brought on 28 February 2002 by Vereins- und
Westbank AG against the Commission of the European
Communities

The defendant’s contrary findings were based on an insufficient
and prejudiced ascertainment of the facts, and on a grossly
erroneous assessment of the evidence.

(Case T-54/02)

(2002/C 97/31)

(Language of the case: German)

The administrative procedure did not correspond to the
requirements of Community law, inasmuch as the applicant’s
rights of defence, its right to a fair hearing and its right to
inspect the file were consistently infringed.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 February 2002 by Vereins- und
Westbank AG, of Hamburg, represented by Josef Lothar
Schulte, Michael Ewen and Alexandra Neus, lawyers.

Moreover,
the decision was reached in a manner which
infringed essential procedural requirements within the mea-
ning of the second paragraph of Article 230 of the EC Treaty;
in particular, the defendant failed to give a sufficient statement
of reasons for the decision.