Case T-51/02: Action brought on 26 February 2002 by Brasserie Battin against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, Luxembourg, action for annulment (EU), beverage industry, exclusive distribution agreement, fine, restrictive trade practice

4.5.2002

EN

Official Journal of the European Communities

C 109/63

bourgeoises, in so far as it finds that the applicant has
infringed Article 81(1) of the Treaty;

— in any event, annul Article 2 of the decision in so far as it
imposes a fine on the applicant, alternatively, reduce that
fine substantially;

— order the Commission to pay the costs.

Pleas in law and main arguments

The present application is directed against the Commission’s
decision establishing the existence of a cartel set up by an
agreement signed on 8 October 1985 between five Luxem-
bourg breweries,
including the applicant, with a view to
ensuring observance of exclusivity clauses, known as ‘beer
clauses’, which are characteristic of contracts concluded
between brewers and operators in the hotels/restaurants/cafés
(HORECA) sector, both in Luxembourg and throughout the
Community. The object of that agreement was allegedly to
enable the parties thereto to retain their respective customers
in the Luxembourg HORECA sector and to prevent foreign
brewers from penetrating that sector.

In support of
following pleas in law:

its claims, the applicant puts forward the

— The Commission committed an error of law by omitting,
and refusing to consider itself obliged, to take account of
the economic context of which the agreement formed
part when carrying out its assessment of all of the clauses
examined by it, and thus of the purpose of the agreement
in question.

— The Commission committed an error in its analysis of
the scope of the said agreement, by finding that it applied
in the absence of a supply contract or beer clause, and
thus committed an error of assessment, inasmuch as it
based its negative assessment of the agreement on that
presumed scope.

— The Commission committed an error of fact in taking the
view that the purpose of the agreement was to prevent
penetration of the market by foreign brewers and that it
significantly affected competition.

The applicant stresses that the agreement was concluded on
account of an abnormal risk situation created by a situation
under national law in which fair competition was directly
threatened. Consequently, limited cooperation between brew-
ers, proportionate to the objective pursued, became the only
way of ensuring that the ‘beer clauses’ were safeguarded.

As regards the amount of the fines, the applicant pleads
infringement of Article 15(2) of Regulation No 17 and non-
compliance with the obligation to provide a statement of
reasons.

Action brought on 26 February 2002 by Brasserie Battin
against the Commission of the European Communities

(Case T-51/02)

(2002/C 109/120)

(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
Battin, established at Esch sur Alzette (Luxembourg), represent-
ed by Alexandre Carnelutti and Marie Santini, lawyers, with an
address for service in Luxembourg.

The applicant claims that the Court should:

fact,

— The Commission committed an error of assessment in
characterising the agreement as an agreement by the
contracting parties to retain their respective customers.
In actual
its central and sole purpose was to
ensure observance of the contractual exclusivity agreed
to between retailers and brewers. The agreement
in
question was therefore intended solely to constitute a
legitimate instrument of horizontal cooperation aimed at
guaranteeing compliance with a decisive element affecting
the economy, development and fair competition in that
sector.

— annul Article 1 of the Commission’s decision of 5 Decem-
ber 2001 in Case COMP/37800/F3 — Brasseries Luxem-
bourgeoises, in so far as it finds that the applicant has
infringed Article 81(1) of the Treaty;

— in any event, annul Article 2 of the decision in so far as it
imposes a fine on the applicant, or alternatively reduce
that fine substantially;

— order the Commission to pay the costs.

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.