Case T-260/02: Action brought on 2 September 2002 by Bank Austria Creditanstalt AG against the Commission of the European Communities
Date: 2002-11-09
Institutions: Court of First Instance
Subjects: abuse of power, action for annulment (EU), bank, control of restrictive practices, fine, restriction on competition

C 274/28

EN

Official Journal of the European Communities

9.11.2002

— breach of Articles 8, 12 and 14 of

the European
Convention for the Protection of Human Rights and
Fundamental Freedoms;

— Disregard of general principles of law, such as non-
discrimination and equal treatment, equal pay for men
and women, respect for private and family life, the
principle that the civil status of Community nationals is
to be governed by the legislation of
their Member
State, proper administration, the protection of legitimate
expectations.

The applicant submits first of all that the defendant wrongly
assumed that the arrangements in the present case could affect
trade between States. The Austrian banks’ arrangements were
restricted exclusively to Austria. Nor were they liable, given
the nature of the service in question, to partition the Austrian
market. There is therefore no infringement of Article 81
EC. Furthermore, there is no basis for the Commission’s
in the future. The
requirement to cease the infringement
Commission itself found that the applicant had brought the
arrangements to an end on 24 June 1998.

Action brought on 30 August 2002 by Raiffeisen Zentral-
the Com-
bank Österreich Aktiengesellschaft against

mission of the European Communities

(Case T-259/02)

(2002/C 274/50)

(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 Raiffeisen
Zentralbank Österreich Aktiengesellschaft, established in Vien-
na, represented by S. Völcker, Lawyer.

The applicant claims that the Court should:

— annul

the Commission decision of 11 June 2002
(C(2002)2091 final) in so far as it relates to the applicant;

— 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 also contests the classification of the infringe-
ment as ‘very serious’ for the purposes of the guidelines on
the calculation of fines. When assessing the gravity of the
infringement, the Commission disregarded in particular the
fact that the Bankenrunden were not established by the banks
expressly to interfere with competition but, on the contrary,
took place over 50 years in accordance with Austrian law and
— to the end — with the cooperation of State authorities.

Furthermore, the applicant contests the calculation of the fine
imposed on it. In disregard of the links in the rural cooperative
sector and inconsistently with settled case-law, the Com-
mission attributed to the applicant market shares of undertak-
ings in which it had no stake and whose market conduct it
could not determine. In addition, the Commission rejected all
mitigating grounds put forward without considering them
sufficiently. Finally, the Commission misapplied the Leniency
Notice (1).

(1) Commission Notice on the non-imposition or reduction of fines

in cartel cases (OJ C 207 of 18.7.1996, p. 4).

Action brought on 2 September 2002 by Bank Austria
Creditanstalt AG against the Commission of the European
Communities

(Case T-260/02)

(2002/C 274/51)

(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 2 September 2002 by Bank
Austria Creditanstalt AG, established in Vienna, represented
by C. Zschocke and J. Beninca, Lawyers.

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.