Case T-47/02: Action brought on 27 February 2002 by Manfred Danzer and Hannelore Danzer against the Council of the European Union
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: Austria, Council of the European Union, appeal to the Court (EU), company law, company with share capital, publication of accounts

4.5.2002

EN

Official Journal of the European Communities

C 109/61

Pleas in law and main arguments

The applicants claim that the Court should:

for

By the contested decision, the Commission imposed a fine of
EUR 28 million on the applicant
infringement of
Article 81(1) EC. In that decision, the Commission found that
agreements had been concluded between various German
banks,
including the applicant, concerning the type and
amount of bank charges, the agreements in question having
been aimed, during the transitional period, at fixing the way in
which charges were to be made for exchanging bank notes in
the currencies of the countries taking part in monetary union,
in the form of a percentage, together with a target price of
around 3 %.

The applicant denies that it took part in an agreement contrary
to Article 81(1) EC. It maintains that the evidence produced
by the Commission in that regard is insufficient. In addition,
the Commission failed to show the effects of the alleged
agreement on trade between Member States.

The Commission wrongly assumed that there was an ongoing
infringement. The calculation of the fine is wrong, because the
Commission did not carry out any assessment of the applicant’s
individual conduct.

to have sight of

In the course of the procedure, the Commission infringed the
applicant’s rights of defence, inasmuch as it refused to allow
the applicant
the files relating to the
circumstances resulting in the decision to discontinue the
procedure against other banks and did not, in the contested
decision, examine the statements made by the applicant in its
response to the main points raised in the complaint and in the
oral hearing.

The imposition of a fine on the applicant exceeds the
Commission’s discretionary power and discriminates against
the applicant by comparison with those entities who were the
subject of the complaint and on whom it was decided not to
impose a fine. The Commission should likewise have decided
to discontinue the procedure as against the applicant.

Action brought on 27 February 2002 by Manfred Danzer
and Hannelore Danzer against the Council of the Euro-
pean Union

(Case T-47/02)

(2002/C 109/117)

(Language of the case: German)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 27 February 2002 by Manfred Danzer and
Hannelore Danzer, Linz (Austrian Republic), represented by
J. Hintermayr, M. Krüger, F. Haunschmidt, G. Minichmayr and
P. Burgstaller.

— order the defendant to pay EUR 1852721 to the appli-
cants’ legal representatives within 14 days and declare
Article 2(1)(f) of Council Directive 68/151/EEC of
9 March 1968 (1) and Article 47 of Council Directive
78/660/EEC of 25 July 1978 (2).
to be contrary to
European Community law;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicants are managing directors of various Austrian
companies. They claim that the obligation to disclose the
annual accounts of companies limited by shares and equivalent
partnerships is incompatible with primary Community law,
the fundamental rights guaranteed by the Community and the
case-law of the Court of Justice of the European Communities.
On those grounds the applicants have to date refused to
disclose the annual accounts in the requisite form for the
companies for which they are responsible. By the time this
action was brought fines of EUR 1 852 721 had been imposed
on the applicants.

The applicants submit that the disclosure required by the
directives in question entails the disclosure of confidential
business information which is contrary to EC competition law
and the general principle of the protection of business and
trade secrets. The publication of important and confidential
business data is also disproportionate and inadmissible in the
light of Article 287 EC.

The applicants argue, further, that Article 2(1)(f) of Directive
68/151/EEC and Article 47 of Directive 78/660/EEC have no
basis in Article 44(2)(g) EC nor are they the type of provision
which is properly covered by a ‘directive’ within the meaning
of Article 249 EC. The provisions do not harmonise existing
law but ‘create’ new law. Moreover, they are contrary to the
principle of proportionality and breach the Austrian data
protection law, the fundamental right to property, the funda-
mental right to freedom of economic activity and the protec-
tion of private tax matters.

C 109/62

EN

Official Journal of the European Communities

4.5.2002

Finally, the applicants submit that the objectives of the Council
in the directives cited are not covered by Community law and
are therefore a direct cause of the refusal to disclose the
accounts, and that the causal link between the objectives of
the directive and the damage caused and anticipated is thus
clear.

(1) First Council Directive 68/151/EEC of 9 March 1968 on co-
ordination of safeguards which, for the protection of the interests
of members and others, are required by Member States of
companies within the meaning of
the second paragraph of
Article 58 of the Treaty, with a view to making such safeguards
equivalent throughout the Community (OJ, English Special Edition
1968(I), p. 41).

(2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on
Article 54 (3) (g) of the Treaty on the annual accounts of certain
types of companies (OJ 1978 L 222, p. 11).

Action brought on 27 February 2002 by Brouwerij
Haacht N.V. against the Commission of the European
Communities

(Case T-48/02)

(2002/C 109/118)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 February 2002 by Brouwerij
Haacht N.V., established at Boortmeerbeek (Belgium), rep-
resented by Yves van Gerven, Frédéric Louis and Hendrik
Viane, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul Article 4 of the decision in issue, in so far as it
concerns Brouwerij Haacht N.V. and, in so far as may be
necessary, order that no fine be imposed on Brouwerij
Haacht N.V. or substantially reduce the fine;

— order the Commission to pay the costs in any event.

The applicant claims that the Commission has failed to comply
with the obligation to provide a statement of reasons as
prescribed by Article 253 of the EC Treaty, and with the
guidelines for the calculation of
fines. According to the
applicant, the Commission, in determining the actual econ-
omic power of the parties concerned, failed to define the
relevant market. It maintains that the decision does not make
it clear whether the relevant market is the private label market
or the beer market in general. Moreover, the Commission
over-estimated the economic power of the applicant in the
market for private label beer, if and in so far as it is that market
which is to be regarded as the relevant market. The applicant
further argues that the Commission wrongly characterised the
role played by the applicant in the cartel in question as an
active role. According to the applicant,
its role must be
regarded as having been purely passive, or at least as less
active.

the significance of

Lastly, the applicant pleads infringement of the Notice on
Cooperation and of the principle of equal treatment. According
to the applicant, the Commission failed to take sufficient
the applicant’s statements
account of
proving the infringement of
the rules. The Commission
consequently treated similar situations in a dissimilar way, by
not applying the same reduction in the fine where there was a
comparable level of cooperation. Moreover, the Commission
treated dissimilar situations in a similar way, by applying the
same reduction in the fines imposed on the applicant and on
parties who cooperated less, or not at all, in the Commission’s
investigation.

Action brought on 26 February 2002 by Brasserie Natio-
nale against the Commission of the European Communi-
ties

(Case T-49/02)

(2002/C 109/119)

(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 26 February 2002 by Brasserie
Nationale, established at Bascharage (Luxembourg), represent-
ed by Alexandre Carnelutti and Jean-Louis Schiltz, lawyers,
with an address for service in Luxembourg.

Pleas in law and main arguments

The action is directed against the decision in so far as it
imposes a fine on the applicant in consequence of the private
label cartel on the Belgian beer market.

— annul Article 1 of the Commission’s decision of 5 Decem-
ber 2001 in Case COMP/37800/F3 — Brasseries Luxem-

The applicant claims that the Court should: