Case T-60/02: Action brought on 1 March 2002 by Deutsche Verkehrsbank AG against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, Germany, action for annulment (EU), bank, bank charges, euro, exchange transaction, fine

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.

C 109/66

EN

Official Journal of the European Communities

4.5.2002

The decision constitutes a misuse of discretionary powers,
inasmuch as the Commission pursued extra-legal political
objectives, namely the making of a gesture to the public in
connection with the introduction of the euro. For as long as
applications made in the current administrative proceedings in
Case T-216/01 R had not been determined and remained
pending, the adoption of a definitive decision was not permiss-
ible.

The applicant claims that the Court should:

— annul the Commission’s decision of 11 December 2001,
addressed to the applicant and received by it on
20 December 2001,
in Case COMP/E-1/37.919
(ex 37.391), concerning the imposition of a fine;

It has not been shown that there has been any tangible adverse
effect on trade between Member States.

— order the Commission to pay the costs.

The applicant participated neither in an agreement on the type
of charges to be made nor in any agreement on the amount of
a target price. The commission system could not have been
the subject of any concerted agreement, if only because, prior
to the entry into force of Regulation No 1103/97, there had
been no legally permissible alternative to it. The evidence relied
on by the defendant is unproductive and self-contradictory.
The last piece of evidence produced by the defendant dates
from 15 October 1997, i.e. some four and a half years before
the conclusion of the alleged agreement. Since then, there has
been no contact between the banks concerned. A representa-
tive of
in the
the German Bundesbank had taken part
alleged cartel meeting, and the Bundesbank had been officially
informed of the results of that meeting.

As to the duration of the alleged agreement, the decision is in
itself contradictory, since the operative part of the decision is
based on a different duration from that on which the
calculation of the fine is based.

The basic amounts used for the calculation of the fine are
arbitrary and disproportionate.

Action brought on 1 March 2002 by Commerzbank AG
against the Commission of the European Communities

(Case T-61/02)

(2002/C 109/124)

(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 Commerzbank
AG, of Frankfurt am Main (Germany), represented by H. Satzky
and B. Maassen, lawyers.

Pleas in law and main arguments

The Commission infringed the applicant’s rights of defence. It
afforded the applicant no opportunity to learn of the criteria
according to which it discontinued certain parallel procedures.
The Commission did not insist on reductions in charges in
every case, and treated various banks differently as regards the
amount of the reductions in charges. It should have told the
applicant which non-discriminatory criteria it was applying in
deciding whether to continue or to discontinue the procedure.
Moreover, the Commission’s decision contained new incrimin-
ating evidence compared to the points raised in the heads of
claim served, and the applicant was not given a chance to
comment on that new evidence. Lastly, the applicant was
refused access to the files in the parallel procedures. The
Commission attached greater importance to the rapid impo-
sition of a fine for political reasons than to a fair hearing.

The applicant denies that any anti-competitive agreements
were concluded at a meeting held on 15 October 1997
between foreign exchange dealers. The subject-matter of that
meeting was market trends and a discussion of matters which
were generally known. That discussion formed part of a series
of conferences held during the period from 1996 to 1998 for
the purposes of preparing for the introduction of the euro,
which were also frequently attended by representatives of
the central banks and sometimes by representatives of the
Commission. As is apparent from internal documents, the
applicant had adopted an autonomous decision to charge a
percentage fee even before the meeting of 15 October 1997
took place. The Commission’s complaint is inconclusive, and
the Commission does not describe the content of the alleged
agreement. The evidence produced in that regard by the
Commission, especially the internal memorandum of an
employee of the Netherlands GWK Bank N.V., is inappropriate.
The Commission’s decision shows a lack of technical know-
ledge and objectivity. The Commission failed to recognise the
difference between dealing in foreign notes and coins and
foreign exchange dealing, and did not take account of the legal
situation prevailing at the time; moreover, it represents the
facts in a one-sided way which is detrimental to the applicant.