Case T-264/02: Action brought on 2 September 2002 by Erste Bank der österreichischen Sparkassen AG against the Commission of the European Communities
Date: 2002-11-09
Institutions: Court of First Instance
Subjects: action for annulment (EU), bank, control of restrictive practices, fine, infringement of EU law, restriction on competition, savings bank

9.11.2002

EN

Official Journal of the European Communities

C 274/31

Action brought on 30 August 2002 by Österreichische
Postsparkasse Aktiengesellschaft against the Commission
of the European Communities

European Communities on 2 September 2002 by Erste Bank
der österreichischen Sparkassen AG, established in Vienna,
represented by W. Kirchhoff, F. Montag and G. Bauer, Lawyers.

(Case T-263/02)

(2002/C 274/54)

(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 30 August 2002 by Österreichische
Postsparkasse Aktiengesellschaft, established in Vienna, rep-
resented by H.-J. Niemeyer and M. von Hinden, Lawyers, with
an address for service in Luxembourg.

The applicant claims that the Court should:

— annul Articles 1 and 2 of the defendant’s decision of
11 June 2002 in Case COMP/36.571/D-1 — Austrian
banks, in so far as it is found therein that the applicant has
infringed Article 81 EC and must cease that infringement;

The applicant claims that the Court should:

— annul Commission Decision C(2002)2091 final of
11 June 2002 in Case COMP/36.571/D-1 — Austrian
Banks, in so far as it relates to the applicant;

— in the alternative, set aside the fine imposed on the

applicant;

— in the alternative, reduce the amount of the fine imposed
on the applicant in the contested decision to an appropri-
ate sum;

— in any event order the defendant to pay the costs.

— annul Article 3 of the decision in so far as it imposes a

fine of EUR 7 590 000 upon the applicant;

Pleas in law and main arguments

— in the alternative,

reduce the fine imposed on the
applicant in Article 3 of the decision to an appropriate
amount;

— order the defendant to pay the costs.

Pleas in law and main arguments

The pleas in law and arguments correspond to those put
forward in Case T-261/02 Bank für Arbeit und Wirtschaft AG
v Commission.

Action brought on 2 September 2002 by Erste Bank der
österreichischen Sparkassen AG against the Commission
of the European Communities

(Case T-264/02)

(2002/C 274/55)

(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

The proceeding conducted by the defendant was directed
against regular meetings of banks in Austria (‘Bankenrunden’).
By the contested decision the Commission found that the
applicant — together with seven other Austrian banking
institutions — had infringed Article 81 EC by participating in
agreements and concerted practices concerning prices, charges
and advertising measures, designed to restrict competition on
the Austrian banking market from 1 January 1995 until
24 June 1998. The Commission imposed fines on the banks
concerned.

The applicant submits that the decision has numerous defects.
First, it infringes in many respects the right to a fair hearing.
The applicant was not given the opportunity before the
decision was adopted to state its views on the allegation that
all independent savings banks were to be attributed to it as the
leading institution. Nor is the statement of reasons for the
decision adequate. In particular, the reasons for attributing the
savings banks to the applicant, and those for the calculation of
the applicant’s market share, on the basis of which the amount
of the fine was determined, do not satisfy the requirements of
the case-law on the duty to state reasons.

The applicant further submits that the decision infringes the
principle of good administration. The unlawful attribution of
the conduct of all independent savings banks to the applicant/
GiroCredit as the leading institution in the savings bank sector
is a particularly serious breach. The legal preconditions for
such attribution are manifestly not present.

C 274/32

EN

Official Journal of the European Communities

9.11.2002

The applicant contends in addition that the infringement in
the present case did not appreciably affect trade between
Member States. Many of the Bankenrunden had no international
connection. Others could at any rate have no appreciable effect
on trade between States. Even if the infringement were to have
affected trade between States appreciably, there is in any
event no fault on the applicant’s part. In accordance with
Article 15(2) of Regulation No 17/62 it was therefore not
possible to fine the applicant.

Furthermore, in determining the applicant’s fine the defendant
made two errors of calculation with serious consequences.
Also, the seriousness of the infringement and the existence of
mitigating grounds are misappraised in the decision and no
regard was had to the applicant’s extensive cooperation.
Finally, the decision violates the prohibition on retroactivity in
Article 7 of the European Convention on Human Rights,
because the fine was determined on the basis of a framework
for fines which, as a result of two amendments to the
defendant’s decision-making practice, was not introduced until
the infringement had come to an end.

Action brought on 3 September 2002 by Mr Jan Pflugradt
against the European Central Bank

(Case T-265/02)

(2002/C 274/56)

(Language of the case: German)

An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 3 September 2002 by Mr Jan Pflugradt, Frankfurt am Main
(Germany), represented by N. Pflüger, lawyer.

The applicant claims that the Court should:

— annul the formal warning given by the letter of 28 Febru-

ary 2002;

— order the defendant to pay the costs.

Pleas in law and main arguments

The case has the same basis as Case T-83/02 (Pflugradt v
ECB) (1), and the pleas in law and arguments correspond to
those which were put forward in that case.

( 1) OJ C 118, 18.5.2002, p. 30.

Action brought on 4 September 2002 by Deutsche Post
AG against the Commission of the European Communi-
ties

(Case T-266/02)

(2002/C 274/57)

(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 4 September 2002 by Deutsche
Post AG, Bonn (Germany), represented by J. Sedemund and
T. Lübbig, with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare the Commission Decision of 19 June 2002 on

State aid No 61/99 (ex No 153/96) void;

— order the Commission to pay the costs.

Pleas in law and main arguments

The subject of the contested decision is the below-cost selling
of parcel services for business clients, compensating for which
gives rise to cross-subsidisation which is contrary to the law
on aid. In its decision the Commission found that the State aid
of EUR 572 million, which Germany granted to the applicant,
was incompatible with the common market. It found that
State compensation for the net additional costs of a rebate
policy which reduces the costs normally incurred in providing
door to door parcel services which are open to competition
favoured the undertaking within the meaning of Article 87(1)
EC.

The applicant contests that decision and points out that the
same below-cost selling was the subject of the Commission
Decision of 20 March 2000 (1) adopted on the basis of
Article 82 EC and that the two decisions came to very different
conclusions regarding the duration, the amount and the source
of financing of the alleged below-cost selling. The applicant
submits that the below-cost selling alleged in the Decision is
based on a miscalculation.