Case T-61/02: Action brought on 1 March 2002 by Commerzbank 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, competition law, fine

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.