Case T-261/02: Action brought on 30 August 2002 by Bank für Arbeit und Wirtschaft Aktiengesellschaft 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

9.11.2002

EN

Official Journal of the European Communities

C 274/29

The applicant claims that the Court should:

— annul the Commission decision of 11 June 2002 (COMP/
36.571 — Austrian Banks) in so far as it relates to the
applicant;

the applicant submits that

Finally,
the Commission has
infringed essential procedural rights held by the applicant and
that it unlawfully passed the statement of objections to the
FPÖ (Austrian Freedom Party).

— in

the

alternative,

reduce

the

EUR 30 380 000 imposed on the applicant
defendant’s decision;

— order the defendant to pay the costs.

fine

of
in the

Pleas in law and main arguments

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 first of all that Article 81 EC cannot be
applicable since the banks’ meetings, which the applicant
admits, could not affect trade between Member States because
of their regional and local focus.

The applicant
further contends that the defendant, when
setting the basic amount, assumed that those meetings had
adverse economic effects although the applicant, together with
the other banks concerned, had proved by means of an
economist’s expert report that there were no such effects. In
addition, the defendant exercised its discretion improperly
when setting the basic amount because it failed to take account
of the transitional situation pertaining in legal terms in Austria
after entry into the European Economic Area, the statutorily
privileged status of the Bankenrunden under Austrian cartel
law, the participation of State authorities and the fact that the
Bankenrunden were public knowledge.

Furthermore,
the applicant worked with the defendant in
establishing the facts. The defendant granted no reduction for
that wide-ranging cooperation and therefore exercised its
discretion incorrectly and to the applicant’s detriment when
applying the Leniency Notice.

Action brought on 30 August 2002 by Bank für Arbeit
the Com-
und Wirtschaft Aktiengesellschaft against

mission of the European Communities

(Case T-261/02)

(2002/C 274/52)

(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 Bank für
Arbeit und Wirtschaft Aktiengesellschaft, established in Vien-
na, represented 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 Commission decision of
11 June 2002 in Case COMP/36.571 — Austrian banks,
in so far as it is found therein that the applicant has
infringed Article 81 EC and must cease that infringement;

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

fine of EUR 7 590 000 upon the applicant;

— 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 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.

C 274/30

EN

Official Journal of the European Communities

9.11.2002

The applicant submits that the decision must be set aside if
only because it
infringes the obligation to state reasons
under Article 253 EC. Furthermore, the defendant infringed
Article 81 EC by assessing incorrectly in law the nature of the
rounds of meetings which were investigated. On an objective
assessment of the facts, the defendant should have recognised
that there was predominantly disagreement between the banks
in question. The incorrect assessment of the facts leaves its
mark on the whole of
the contested decision and must
therefore result in its complete annulment. The decision also
infringes Article 81 EC because the rounds of meetings
investigated were not capable of affecting trade between
Member States.

The applicant claims that the Court should:

— annul the Commission decision of 11 June 2002 in a
proceeding under Article 81 EC (Case COMP/36.571/
D-1 — Austrian Banks);

— in the alternative, annul Articles 3 and 4 of that decision

in so far as they relate to the applicant;

— order the defendant to pay the costs.

The applicant further contends that Article 3 of the contested
decision must be annulled in the absence of fault, a precon-
dition under Article 15(2) of Regulation No 17/62. Given the
purely national nature of the rounds of meetings and the fact
that they were rooted in a specifically Austrian context — with
the participation of Austrian State authorities — the applicant
was unable to discern their unlawful content and their
purported ability to affect trade between Member States.

Furthermore the defendant,
in breach of Article 15(2) of
Regulation No 17/62, infringed essential principles governing
the calculation of fines and in particular misapplied on many
counts its own guidelines on the method for setting fines. First
of all, it is wrong to accept that there was a ‘very serious
infringement’, and the defendant failed to take account of
numerous mitigating circumstances. Finally, the fine must be
substantially reduced for the further reason that the defendant,
by misapplying the notice on the non-imposition of fines in
cartel cases, had no regard at all to the applicant’s extensive
cooperation.

Action brought on 30 August 2002 by Raiffeisenlandes-
bank Niederösterreich-Wien AG against the Commission
of the European Communities

(Case T-262/02)

(2002/C 274/53)

(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 Raiffeisenlan-
desbank Niederösterreich-Wien AG, established in Vienna,
represented by H. Wollmann, Lawyer.

Pleas in law and main arguments

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 rounds of meetings between
the Austrian banks could not appreciably affect trade between
States. The Commission misapplied Article 81(1) EC in the
contested decision. The arrangements in question were limited
to the territory of the Republic of Austria. The Commission
adduced no conclusive evidence as to why the arrangements
were none the less supposed to have been capable of appreci-
ably affecting trade between States. In particular, it was not
demonstrated that they had the effect of partitioning the
market.

The applicant further contends that the Commission did not
prove that the applicant acted with intent or negligently. The
Commission misapplied Article 15(2) of Regulation No 17/
62. It imposed a fine despite an absence of proof that the
applicant’s staff had acted with intent or negligently. The
Commission fails to have regard to the fact that the question
of fault does not turn on knowledge of the prohibition on
cartels but primarily on knowledge of the facts which render
that prohibition applicable in a specific case. Furthermore,
the Commission considers fault only with regard to the
requirement that competition be restricted and does not ask
itself whether the applicant’s staff were in a position to
recognise the alleged effects between Member States. That was
not the case.