Case T-28/02: Action brought on 4 February 2002 by First Data Corporation, FDR Limited and First Data Merchant Services Corporation against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, electronic money, firm governed by commercial law, restriction on competition

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.