Case T-56/02: Action brought on 28 February 2002 by Bayerische Hypo- und Vereinsbank AG against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), bank, bank charges, company law, euro, exchange transaction

C 109/64

EN

Official Journal of the European Communities

4.5.2002

Pleas in law and main arguments

The pleas in law and main arguments are similar to those put
forward in Case T-49/02.

the decision forming the subject-matter of the dispute disre-
gards the principle of proportionality, given the allegedly
totally disproportionate nature of the fine at issue, especially
in relation to that imposed on other undertakings in this and
other recent cases, and as regards the taking into account of
the legal maximum applicable to the fine itself.

Lastly, the applicant pleads infringement of the principle of
non-discrimination.

Action brought on 27 February 2002 by Société Nouvelle
des Couleurs Zinciques S.A. against the Commission of
the European Communities

(Case T-52/02)

(2002/C 109/121)

(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 27 February 2002 by Société
Nouvelle des Couleurs Zinciques S.A., established at Bouchain
(France), represented by Robert Saint-Esteben and Hugues
Calvet, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

— principally, annul Article 3 of the Commission’s decision
of 11 December 2001, in so far as that article imposes a
fine of 1,53 million euros on the applicant;

— alternatively, reduce the amount of that fine very substan-

tially;

— order the Commission to pay the costs.

Pleas in law and main arguments

Action brought on 28 February 2002 by Bayerische Hypo-
und Vereinsbank AG against the Commission of the
European Communities

(Case T-56/02)

(2002/C 109/122)

(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 28 February 2002 by Bayerische
Hypo- und Vereinsbank AG, of Munich (Germany), represented
by W. Knapp, T. Müller-Ibold and B. Bergmann, lawyers.

The applicant claims that the Court should:

— annul the Commission’s decision C(2001) 3693 final of
11 December 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 concerns
the applicant;

— alternatively, cancel or, in the further alternative, reduce
the fine of 28 000 000 euros imposed on the applicant;

— order the Commission to pay the costs.

The decision contested in the present case is the same as that
in Case T-33/02 Britannia Alloys & Chemicals v Commission.
The pleas in law and main arguments put forward by the
applicant are similar to those advanced in Case T-33/02.

According to the applicant, the arbitrary fixing of a basic
amount far in excess of the legal maximum is contrary to
Article 15(2) of Regulation No 17/62, inasmuch as it prevents
the duration of the infringement and the aggravating and
mitigating factors from being taken into account. In addition,

Pleas in law and main arguments

The alleged cartel never existed.
It is apparent from the
information provided by those who attended the meeting of
foreign exchange dealers on 15 October 1997 that, during the
course of that meeting, the discussions concerned technical
aspects of inter-bank trading in foreign currencies and structur-
ing possibilities regarding pricing in retail foreign exchange
trading. The meeting did not involve the conclusion of any
anti-competitive agreement.

4.5.2002

EN

Official Journal of the European Communities

C 109/65

The applicant did not take part in the meeting on 15 October
1997. The employee of the applicant who was sent an
invitation to attend that meeting was not granted permission
by his superior to take part in it. An employee of the
Vereins- und Westbank, in which the applicant has a majority
shareholding, had been the only person attending on the
applicant’s behalf. The Vereins- und Westbank conducts itself
in the market quite independently of the applicant, and the
links between the two banks from the standpoint of company
law cannot therefore constitute the basis for any presumption
concerning the attendance by an employee of that bank at the
meeting complained of.

In assessing the amount of the fine, the Commission manifestly
departed from its own guidelines and infringed the requirement
of equal treatment.

Neither in the communication concerning the heads of
complaint nor in the context of the hearing before the official
nominated to conduct the same was there any suggestion that
the applicant itself had taken part in the alleged agreements.
The Commission should have indicated the change in its point
of view to the applicant prior to adopting its decision.

The applicant’s rights of defence were infringed, since the
applicant was not given full access to the file. In particular, it
was not able to inspect the comments made by the other
parties involved or the files in the parallel procedures, despite
the fact that the applicant had well-founded reasons to suspect
that those files contained material which would have been
material to its defence.

The decision is lacking in an adequate statement of reasons,
since, in respect of a series of points, it does not contain any
considerations capable of being verified.
In particular, no
reasons were given for the attribution to the conduct of the
representative of the Vereins- und Westbank of the failure to
apply the rules concerning mitigating factors or for the
deviation from the principle that the initiators of a cartel
should not enjoy the benefit of the non-imposition of a fine.

The conduct of the Commission in the course of the procedure
shows that
it did not act with a view to punishing an
infringement of the rules on cartels but rather with a view to
lowering, for political reasons, the charges for exchanging
currencies, which it regarded as too high. Those banks which,
faced with that pressure, declared themselves willing to lower
the charges had been removed from the procedure, regardless
of their role in the alleged infringement of the rules on cartels.
The Commission thus misused the provisions of competition
law in order to regulate prices, which it was not in its power
to do. This constitutes a misuse of discretionary powers.

Action brought on 1 March 2002 by Deutsche Ver-
kehrsbank AG against the Commission of the European
Communities

(Case T-60/02)

(2002/C 109/123)

(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 1 March 2002 by Deutsche
Verkehrsbank AG, of Frankfurt am Main (Germany), represent-
ed by M. Klusmann and F. Wiemer, lawyers.

The applicant claims that the Court should:

— annul the contested decision in so far as it concerns the

applicant;

— alternatively, reduce the fine imposed on the applicant by

the contested decision to a reasonable amount;

— order the defendant to pay the costs.

Pleas in law and main arguments

The claim is directed against Decision C(2001) 3693 of
11 December 2001, adopted in Case COMP/E-1/37.919
(ex 37 391) — Bank charges for currency exchange within the
Euro zone, by which the Commission found that the applicant
had participated in an agreement during the period from
1 January 1999 to 31 December 2001 (the period leading up
to the change-over to the euro) concerning the charging of a
percentage commission targeted at around 3 % as a fee for
exchanging bank-notes in the participant currencies, and
imposed on the applicant a fine of 14 million euros.

The applicant pleads as follows:

It does not carry on foreign-exchange end transactions of the
type concerned in this case; instead, it engages exclusively in
inter-bank trading, i.e. wholesale trading in currencies and
foreign exchange, and therefore in cashless trading in foreign
currencies.

The Commission used evidence on which the applicant was
not given a chance to comment at a hearing conducted in
accordance with the law. The Commission refused to allow
access to exonerating documents. It arbitrarily discriminated
against the applicant in the context of the decision concerning
an informal cessation of the procedure.