Case T-271/02: Action brought on 2 September 2002 by Österreichische Volksbanken-Aktiengesellschaft and Niederösterreichische Landesbank-Hypothekenbank 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, equal treatment, infringement of EU law, restriction on competition

9.11.2002

EN

Official Journal of the European Communities

C 274/33

The applicant also argues that the Commission’s assertion that
the below-cost selling complained of arose as a result of an
aggressive rebate policy and that there is thus no causal link
between it and the applicant’s public service obligations is not
based on any evidence and is clearly inaccurate. Further, the
Commission has exceeded its powers in the area of services in
the general economic interest, as, according to the case-law, it
has no authority to decide on the level of costs or the efficiency
of the postal service provider.

The applicant submits that the Commission has misapplied
Article 87 and infringed the case-law on findings regarding aid
to undertakings providing services in the general economic
interest. The Commission has furnished no evidence that the
decision on cross-subsidisation in favour of the business client
parcel service can be attributed to State-run bodies of the
Federal Republic of Germany. Moreover the Commission has
disregarded the fact that a purely internal offsetting of losses
within an undertaking does not constitute aid, but is merely
covered by Article 82. It has also disregarded the fact that the
financing of temporary below-cost selling was an economically
sound decision.

Finally,
infringed the principle of the right to a fair hearing.

the applicant submits that

the Commission has

( 1) Commission Decision 2001/354/EC of 20 March 2001 relating
to a proceeding under Article 82 of the EC Treaty (Case COMP/
35.141 Deutsche Post AG) (OJ 2001 L 125, p. 27).

The applicant claims that the Court should:

— annul the decision of the Third Board of Appeal of
26 June 2002 in the appeal procedure R 206/2002-3;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark Word mark ‘bestpartner’ — appli-
applied for:

cation No 2 268 134

Goods or services:

Services in Classes 36, 38 and
42 (inter alia, insurance, Internet
services and data processing for
others)

Decision
Board of Appeal:

before

the

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Dismissal of appeal

Pleas in law:

— No grounds for refusal under
Article 7(1)(b) and (c) of
Regulation (EC) No 40/
94 (1);

— No need to keep free.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 28 August 2002 by MLP Finanz-
dienstleistungen AG against the Office for Harmonisation
in the Internal Market (Trade Marks and Designs)

Action brought on 2 September 2002 by Österreichische
Volksbanken-Aktiengesellschaft and Niederösterreichi-
sche Landesbank-Hypothekenbank AG against the Com-
mission of the European Communities

(Case T-270/02)

(2002/C 274/58)

(Language of the case: German)

(Case T-271/02)

(2002/C 274/59)

(Language of the Case: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
28 August 2002 by MLP Finanzdienstleistungen AG, Heidel-
berg (Germany), represented by W. Göpfert, lawyer.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 September 2002 by Österreichi-
sche Volksbanken-Aktiengesellschaft and Niederösterreichi-
sche Landesbank-Hypothekenbank AG, established in Vienna
and St. Pölten (Austria), represented by A. Ablasser, R. Roniger
and R. Bierwagen, Lawyers.

C 274/34

EN

Official Journal of the European Communities

9.11.2002

The applicants claim that the Court should:

— annul Article 1 of 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 applicants;

— annul the first sentence of Article 2 of the decision in so

far as it relates to the applicants;

— annul Article 3 of the decision in so far as it relates to the
applicants or, in the alternative, reduce the fine imposed
on the applicants in Article 3;

— in the alternative to the first claim, annul the decision
allowing the FPÖ (Austrian Freedom Party) as a complain-
ant and the transmission of the statement of objections;

— 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
applicants — together with six other Austrian banking insti-
tutions — 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 applicants contend that the contested decision is unlawful
first of all because the finding of the facts is partly incorrect,
partly incomplete and therefore defective. The decision thus
infringes essential procedural requirements within the meaning
of the second paragraph of Article 230 EC. In addition, the
decision displays numerous defects in its reasoning and
contradictions. This concerns the choice of the persons to
whom the decision was addressed, as a whole, and the question
why the applicants were chosen on the basis of the criterion
of the size of the institutions.

In addition, the requirement under Article 81(1) EC that trade
between States be affected is not met. The arrangements on
the Austrian banking market were not capable of affecting
trade between States, and no fault can be attributed to the
applicants with regard to that requirement since they could
assume, in particular on the basis of the legal position in
Austria at that time and the participation of State authorities,
that their conduct was lawful under European cartel law too.
In determining the gravity of the infringement, the decision
fails to have regard to the fact that no binding arrangements
in the sense of a price cartel were entered into, and not a single
attenuating circumstance was taken into account.

The applicants plead that a further procedural error is consti-
tuted by the decisions and measures of the Commission
allowing the FPÖ (Austrian Freedom Party) as a complainant
and transmitting the statement of objections to it.

Action brought on 6 September 2002 by Krüger GmbH
& Co KG against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case T-273/02)

(2002/C 274/60)

(Language of the case to be determined pursuant to Article 131(2)
of the Rules of Procedure — language in which the application was
submitted: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
6 September 2002 by Krüger GmbH & Co KG, Bergisch
Gladbach (Germany), represented by S. v. Petersdorff-Campen,
lawyer. Calpis Co Ltd, Tokyo, Japan was an additional party to
the proceedings before the Board of Appeal.

The applicants further contend that the decision infringes the
principle of equal treatment since they were discriminated
against when the persons to whom the decision was to be
addressed were decided upon. They took part in the various
rounds of meetings far less frequently than other banks or not
at all, nor are they comparable with other banks as regards
size. The Commission also infringed the principle of due
process and the applicants’ rights of defence.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of 25 June

2002, reference No R 484/2000-1;

— order the Office to pay the applicant’s costs.