Case T-24/02: Action brought on 7 February 2002 by Maddalena Lebedef-Caponi against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, European official, action for annulment (EU), staff assessment

4.5.2002

EN

Official Journal of the European Communities

C 109/53

entitlement of the defendant to investigate cartel cases and
to adopt prohibition Decisions, the rules on limitation
in Regulation No. 2988/74 (2) should be considered
applicable to declaratory prohibition decisions.

Chemicals Co. Ltd., represented by Mr. Martin Klusmann
and Ms Vanessa Turner of Freshfields Bruckhaus Deringer,
Düsseldorf (Germany).

— The adoption of a prohibition decision is time-barred
under general principles of Community Law. It is stated
in this regard that where there is no doubt that the alleged
conduct was terminated more than five years before an
investigation was opened,
there is no need and no
justification for a declaratory decision, because there is
no place for a cease and desist order, as contained in
Article 2 of the contested Decision, or any other form of
penalty to be imposed on the applicant by the defendant.
Alternatively, the rationale for limitation periods in the
European Union is that after a certain period of time it is
in the interest of the proper functioning of the legal
system that infringements of the law should no longer be
investigated or lead to any form of ‘punishment’ of the
party concerned.

— The defendant was not competent within the meaning of
the second paragraph of Article 230 EC to adopt the
contested Decision, as it thereby exceeded its powers
under the Treaty and Regulation No. 17/62. The defend-
ant is not empowered by Article 3 of Regulation No. 17,
or by any other provision, to adopt a declaratory decision
where the infringement has already been terminated
outside the limitation period provided for in Article 1 of
Regulation No. 2988/74.

(1) Notice not yet published in the OJ.
(2) Council Regulation (EEC) No 2988/74 of 26 November 1974
concerning limitation periods in proceedings and the enforcement
of actions under the rules of the European Economic Community
relating to transport and competition (OJ L 319, 29.11.1974,
p. 1).

Action brought on 7 February 2002 by Sumika Fine
Chemicals Co. Ltd. against the Commission of the Euro-
pean Communities

(Case T-23/02)

(2002/C 109/102)

(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 7 February 2002 by Sumika Fine

The applicant claims that the Court should:

— annul the Defendant’s Decision C(2001)3695 final of
21 November 2001 in Case No. COMP/E-1/37.512 —
Vitamins, so far as Sumika Fine Chemicals Co. Ltd. is
concerned;

— order the Defendant to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied
upon in Case T-22/02 (Sumitomo Chemical/Commission, not
yet published in the OJ).

Action brought on 7 February 2002 by Maddalena Lebe-
def-Caponi against the Commission of the European
Communities

(Case T-24/02)

(2002/C 109/103)

(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 7 February 2002 by Maddalena
Lebedef-Caponi, residing at Senningerberg (Grand Duchy of
Luxembourg), represented by Gilles Bounéou, lawyer, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— annul the express decision No 40263 of 6 November
2001 by which the appointing authority replied to the
applicant’s complaint No 334/01 of 18 July 2001 by
fixing the compensation for the non-material damage
suffered by her in the sum of 1 500 euros;

— award the applicant the sum of BEF 800 000, assessed as
amounting now to the sum of BEF 1 000 000, by way of
compensation for the non-material damage suffered as a
result of the lateness in drawing up her staff report
(placed belatedly in her personal file) for the period 1993-
1995 and the lateness in drawing up her staff reports for
the periods 1995-1997 and 1997-1999;

C 109/54

EN

Official Journal of the European Communities

4.5.2002

— order the defendant to pay the costs, expenses and fees.

Pleas in law and main arguments

The applicant claims that she has suffered non-material
damage on account of a breach of the principle of sound
administration and failure to act in good faith and to fulfil the
duty of cooperation as regards the drawing up of her
consecutive staff reports. In addition, according to the appli-
cant, those faults have been repeated time and again and testify
to a vexatious attitude.

Action brought on 4 February 2002 by First Data Corpor-
ation, FDR Limited and First Data Merchant Services
Corporation against the Commission of the European
Communities

(Case T-28/02)

(2002/C 109/104)

(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 4 February 2002 by First Data
Corporation, FDR Limited and First Data Merchant Services
Corporation, represented by Mr Pierre Bos and Mr Morten
Nissen of Dorsey & Whitney LLP, Brussels (Belgium).

The applicants claim that the Court should:

— annul the Commission’s Decision dated 9 August 2001
the EC
relating to proceedings under Article 81 of
Treaty and Article 53 of the EEA Agreement
(Case
No COMP/29.373 — Visa International) as regards
Article 1, fifth indent;

— order that the Commission pay the costs incurred by the

applicants in the present proceedings.

Pleas in law and main arguments

company that wishes to acquire merchants,
i.e. process
payments made with a credit card by customers at those
merchants’ businesses, must first issue a certain number of
credit cards to customers. The applicants specialise in acquiring
activities.

According to the applicants, the contested decision violates
the EC Treaty and the EEA Agreement.

Firstly, the applicants state that the decision lacks adequate
reasoning on why the rule in question does not constitute a
significant barrier to trade.

The applicants also claim that the Commission erred in law
when substituting reasoning under Article 81(3) EC Treaty for
reasoning under Article 81(1) EC Treaty. According to the
applicants, the pro-competitive and anti-competitive effects of
a restriction on competition can only be assessed under
Article 81(3) EC Treaty. In the contested Decision, however,
the Commission seems to argue that the rule in question falls
outside the scope of Article 81(1) EC Treaty since its benefits
outweigh the restriction on competition. This type of reasoning
can, according to the applicants, only be applied under
Article 81(3) EC Treaty.

Finally, the applicants claim that the rule in question does
restrict competition. The consequence of the rule is that, in
order to start acquiring activities, a company must first build
up banking activities to be able to issue cards to customers.
This is, according to the applicants, a barrier to entry into the
market of acquiring activities. Furthermore, the applicants
point out that the application of this rule is unclear, since the
number of cards to be issued is dependent on undefined
criteria. According to the applicants, the Commission should
have conducted an investigation on whether this rule is applied
in a uniform and non-discriminatory way.

Action brought on 13 February 2002 by Wolfgang
Leonhardt against the European Parliament

(Case T-30/02)

(2002/C 109/105)

(Language of the case: French)

The applicants contest the Decision of the Commission that
the ‘no-acquiring-without-issuing rule’ of the Visa Corporation
is not an appreciable restriction on trade and therefore falls
outside the scope of Article 81(1) of the EC Treaty and
Article 53 of the EEA Agreement. This rule requires that a

An action against the European Parliament was brought before
the Court of First Instance of the European Communities on
13 February 2002 by Wolfgang Leonhardt, residing in La
Hulpe (Belgium), represented by H. Tagaras, avocat.