Case C-125/07 P: Appeal brought on 2 March 2007 by Erste Bank der österreichischen Sparkassen AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities concerning Case T-264/02
Date: 2007-05-26
Institutions: Court of Justice
Subjects: appeal, bank, control of restrictive practices, fine, infringement of EU law, restriction on competition, savings bank

26.5.2007

EN

Official Journal of the European Union

C 117/7

Appeal brought on 2 March 2007 by Erste Bank der
österreichischen Sparkassen AG against the judgment of
the Court of First Instance (Second Chamber) delivered on
14 December 2006 in Joined Cases T-259/02 to T-264/02
and T-271/02 Raiffeisen Zentralbank Österreich AG and
the European Communities
Others v Commission of

concerning Case T-264/02

(Case C-125/07 P)

(2007/C 117/10)

Language of the case: German

Parties

Appellant: Erste Bank der österreichischen Sparkassen AG (repre-
sented by: F. Montag, Rechtsanwalt)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Partial annulment of

the

Instance of

judgment of
the European Communities

the Court of
(Second
First
Chamber) of 14 December 2006 in Joined Cases T-259/02
to T-264/02 and T-271/02 (1) in so far as it dismissed the
action
Commission
Decision C (2002) 2091 final of 11 June 2002 relating to a
proceeding under Article 81 of the EC Treaty and annul the
aforementioned Commission Decision in so far as it imposes
a fine on the applicant;

T-264/02

against

Case

in

— In the alternative, an appropriate reduction in the fine
imposed on the applicant in Article 3 of Commission Deci-
sion C (2002) 2091 final of 11 June 2002 relating to a
proceeding under Article 81 of the EC Treaty;

— In the further alternative, annulment of the judgment of the
Court of First Instance mentioned in Point 1 and reference
of the case back to the Court of First Instance;

— The defendant to pay the costs in any event.

Pleas in law and main arguments

1. It is submitted that the contested judgment failed to have
regard to the scope of the right to be heard. The applicant
did not receive a proper hearing with respect to the planned
attribution by the Commission of the market shares for the
Austrian savings bank sector. The Court erred in law in
assuming in its judgment that the defendant's reference in
the statement of objections to the applicant as the lead insti-
tution of the savings bank sector was sufficient to safeguard
the applicant's right to a fair hearing. The defendant should
also have pointed out to the applicant the conclusions it
intended to draw from that factor.

2. As regards the substance of the case, it is contended that the

Court failed to appreciate that the defendant's Decision

a.

b.

c.

d.

e.

in respect of

infringed Article 15(2) of Regulation No 17/1962
because the conduct of GiroCredit
the
period before its takeover by the applicant was attributed
to the applicant. Instead GiroCredit's conduct with regard
to that period should have been attributed to the Bank
Austria group as it (i) controlled GiroCredit and influ-
enced its participation in the Lombard Club, (ii) took part
in the agreements of the Lombard Club through another
group member company and (iii) still legally existed at the
time when the Decision was adopted.

infringed Article 15(2) of Regulation No 17/1962
because the market shares of the savings banks, which
were legally and economically independent during the
period when the infringement occurred (1995 to June
1998), were attributed to the applicant. There was no
legal basis for the attribution of the savings bank sector
to the applicant. Furthermore, there were no precondi-
tions for the legal bases which the Court and the defen-
dant took into consideration.

infringed Article 81(1) EC as the attribution to the appli-
cant of the market shares for the savings bank sector
meant that, in the final analysis, the conduct of the legally
and economically independent savings banks was attrib-
uted to the applicant without regard to the strict precon-
ditions which the Court has set out concerning the attri-
bution of conduct by others.

infringed Article 15(2) of Regulation No 17/1962 as the
fine should not have been imposed on account of the
unlawful attribution to the applicant of GiroCredit and
the savings bank sector and was in any event too high.

infringed Article 15(2) of Regulation No 17/1962 even if
the attribution to the applicant of the savings bank sector
had occurred lawfully, which it did not, as the attribution
to the applicant of the entire savings bank sector was
unlawful because a separate fine was imposed on Bank
Austria and Erste österreichische Sparkasse — Bank AG
respectively with the result
their market shares
should not also have been taken into account again, and
thus twice, in fixing the fine to be paid by the applicant.

that

f.

infringed Article 81(1) EC as the agreements of
the
Lombard Club did not result in any ‘perceptible’ effect on
trade between Member States with the result
that
Article 81(1) EC should not have been applied in the
present case.

(1) OJ C 331, p. 29.