Case T-163/05: Action brought on 27 April 2005 by Bundesverband deutscher Banken e.V. against the Commission of the European Communities
Date: 2005-06-25
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), bank, capital movement, control of State aid, share capital, tax relief

C 155/28

EN

Official Journal of the European Union

25.6.2005

The applicant claims that the Court should:

ence was made, and argues, in the alternative, that the principle
non bis in idem was infringed.

— set aside Articles 2 and 3 of the Commission's Decision of
17 February 2005, in so far as they concern the applicant;

— or, in the alternative, reduce the fine laid down in Article 2

of the contested decision as appropriate;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In contested Decision No C(2004) 4876 final of 19 January
2005 the Commission asserted that the applicant and other
companies had infringed Article 81(1) EC (and, since 1 January
1994, Article 53(1) of the EEA Agreement as well) by allo-
cating volume quotas and customers, agreeing price increases,
setting up a compensation mechanism, exchanging information
on sales volumes and prices, meeting regularly and being
involved in other forms of contact, in order to agree on and
implement the restrictions described. A fine was imposed on
the applicant as a result of these infringements.

The applicant puts forward seven pleas in law in support of its
claim. First of all, it contends that, as a result of the separation
and subsequent transfer of the business in question, no fine can
be imposed on it for legal reasons.

Secondly, the claimant submits that the imposition of a fine is
inadmissible even if
the applicant's liability for a fine is
accepted, given that exemption was granted to the successor
parent company of the company which made the application
for exemption, but not to the applicant as its former parent
company. In that respect, the applicant complains that there is
no obvious legal ground for such differentiation.

The third plea concerns the calculation of the fine. According
to the applicant, as a result of the 1996 Leniency Notice the
fine should have been reduced by 10 % given that it expressly
accepted the essential facts which form the basis of the points
of the complaint.

For the remainder, the applicant complains that it was given no
access to the files and of the gross illegality of the hearing offi-
cers' report and finally, of the legality of the order to bring the
infringement to an end.

Action brought on 27 April 2005 by Bundesverband
deutscher Banken e.V. against the Commission of the
European Communities

(Case T-163/05)

(2005/C 155/54)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 27 April 2005 by Bundesverband
deutscher Banken e.V. (Federal Association of German Banks)
Berlin, represented by H.-J. Niemeyer and K.-S. Scholz, lawyers,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul Commission Decision C(2004) 3931 fin. COR —
Landesbank Hessen — Thüringen — Girozentrale of 20
October 2004;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant complains further that the calculation of the
basic amount was disproportionate in both absolute and rela-
tive terms and unreasonable, in the light of the Commission's
usual decision-making practice.

Fifthly, the applicant objects to the option to increase fines to
take account of previous procedures, to which specific refer-

The applicant objects to Commission Decision C(2004) 3931
fin. COR of 20 October 2004 concerning an aid measure of
the Federal Republic of Germany in favour of Landesbank
Hessen — Thüringen — Girozentrale (Helaba). In the contested
decision the Commission asserts, inter alia, that the waiver of a
‘reasonable remuneration’ of 0.3 % p.a. in respect of the part
of the capital transferred by Land Hessen to Helaba amounts to
aid incompatible with the common market.

25.6.2005

EN

Official Journal of the European Union

C 155/29

The applicant submits that the contested decision infringes
Article 87(1) EC since:

Pleas in law and main arguments

— the Commission applied the wrong assessment period for
the examination of what remuneration is to be considered
as usual
in the market and thus incorrectly applied the
market-economy capital-investment test;

The applicant contests the decision of the selection board in
Competition EPSO/A/1/03 not
to include his name in the
reserve list for recruitment of assistant administrators for citi-
zens of the Republic of Cyprus.

— the legal and economic classification of the capital invest-

ment was erroneous;

— the determination of the relevant capital base to be remun-

erated was erroneous;

— the Commission incorrectly determined ‘reasonable remu-

neration’ for the Helaba capital investment.

In support of its application, the applicant submits that the
composition of the selection board infringed the principle of
non-discrimination, that the final selection of the candidates
did not comply with the requirements laid down in the notice
of competition and that the selection board exceeded the limit
of its discretionary powers by accepting candidates who held a
degree in law for a competition in the field of public adminis-
tration. The applicant also submits that the rejection of his
complaint is vitiated by a lack of reasoning.

The applicant claims in addition that the contested decision
should be annulled as it
infringes the obligation to state
reasons under Article 253 EC. The applicant contends that
insufficient reasons were given for deducting Helaba's full refi-
nancing costs on the ground that the capital investment was
not liquid. According to the applicant, this deduction of the
refinancing costs also infringes Article 87(1) EC.

Action brought on 29 April 2005 by Borax Europe Ltd.
against the Commission of the European Communities

(Case T-166/05)

(2005/C 155/56)

Action brought on 21 April 2005 by Neophytos
the European
Neophytou against

the Commission of

(Language of the case: English)

Communities

(Case T-165/05)

(2005/C 155/55)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 29 April 2005 by Borax Europe
Ltd., established in Guildford (United Kingdom), represented by
D. Vandermeersch and K. Nordlander, lawyers.

(Language of the case: English)

The applicant claims that the Court should:

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 21 April 2005 by Neophytos
Neophytou, resident in Brussels (Belgium), represented by S.
Pappas, lawyer.

The applicant claims that the Court should:

— cancel the contested decision;

— order the defendant to pay the costs of the proceedings.

— annul

the decision of

the Commission, SG/B/2/IS/md

D(2005) 1644, dated 21 February 2005;

— order the Commission to bear the costs of the procedure.

Pleas in law and main arguments

The pleas in law and main arguments invoked by the applicant
are the same as those invoked in case T-121/05.