Case T-54/02: Action brought on 28 February 2002 by Vereins- und Westbank AG against the Commission of the European Communities
Date: 2002-04-20
Institutions: Court of First Instance
Subjects: European Commission, Germany, action for annulment (EU), bank, bank charges, euro, exchange transaction

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.

C 97/18

EN

Official Journal of the European Communities

20.4.2002

The defendant misused its powers within the meaning of the
second paragraph of Article 230 of the EC Treaty. In carrying
it was not seeking to put an end to
out
infringements of the competition rules but to lower the charges
for the conversion of foreign currencies.

its procedure,

The amount of the fine was also such as to render it unlawful.
The defendant did not correctly apply the relevant principles
for the calculation of fines.

In support of his claims, the applicant pleads:

— infringement of Article 11(2) of Annex VIII to the Staff

Regulations;

— infringement of the general provisions for the implemen-
tation of Article 11(2) of Annex VIII to the Staff Regula-
tions;

— infringement of the principles of equal treatment and

non-discrimination.

Action brought on 25 February 2002 by Peter Finch
against the Commission of the European Communities

Action brought on 1 March 2002 by Léopold Radauer
against the Council of the European Union

(Case T-55/02)

(2002/C 97/32)

(Language of the case: French)

(Case T-67/02)

(2002/C 97/33)

(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 25 February 2002 by Peter Finch,
residing in Luxembourg, represented by Jean-Noël Louis,
lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the Commission’s decision concerning the crediting
of years of pensionable service under the Staff Regulations
to be taken into account pursuant to Article 11(2) of
Annex VIII to the Staff Regulations in consequence of the
the
transfer to the Community pension scheme of
pension rights acquired by the applicant prior to his entry
into service;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official of the defendant institution who,
prior to his entry into service, had worked in France, Belgium
and the Netherlands and acquired pension rights under
various pension schemes in those countries, is contesting the
calculation contained in the contested decision, which relates
to the crediting of all of the transferred rights. More specifically,
the applicant
the appointing
authority took the date of his establishment as the reference
date and not the date of his entry into service.

is contesting the fact

that

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 1 March 2002 by Léopold Radauer, residing
in Brussels, represented by Georges Vandersanden and Laure
Levi, avocats.

The applicant claims that the Court should:

— annul the defendant’s decision of 17 April 2001 fixing at
3 years, 10 months and 10 days the number of years of
pensionable service to be taken into account for the
applicant’s Community pension following the transfer of
his pension rights acquired in Austria prior to his entry
into the service of the European Communities and, in so
far as necessary, annul
the Council decision, dated
15 November 2001, to reject the applicant’s complaint
of 17 July 2001;

— order the defendant to fix again, on an amended legal
basis and in a manner devoid of any illegality, the years
of pensionable service to be taken into account for the
applicant’s Community pension following the transfer of
his pension rights acquired in Austria;

— order the defendant to pay all of the costs.

Pleas in law and main arguments

The single plea in law raised is the same as that in Case
T-204/01 Maria-Luise Lindorfer v Council of the European
Union (OJ C 317, 10.11.2001, p. 32).