Case C-133/07 P: Appeal brought on 6 March 2007 by Raiffeisen Zentralbank Österreich 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-259/02
Date: 2007-05-26
Institutions: Court of Justice
Subjects: appeal, bank, competition law, control of restrictive practices, infringement of EU law, restriction on competition

26.5.2007

EN

Official Journal of the European Union

C 117/11

Questions referred

1. Must the first paragraph of Article 9 of Regulation (EC)
No 1891/04 (1) be construed as prohibiting the competent
customs service or
the competent customs office from
providing, or causing to be provided, information within the
terms of Article 9(2) of Regulation (EC) No 1383/03 (2), or
arranging, or causing to be arranged, an inspection within
the terms of the second subparagraph of Article 9(3) of
Regulation (EC) No 1383/03, so long as the application for
action made prior to 1 July 2004 has not been supple-
mented by the declaration referred to in Article 6 of Regu-
lation (EC) No 1383/03? In other words, is the declaration in
question a formal condition governing the continued effec-
tiveness of the application for action?

2. Is Article 4(2) of Regulation (EC) No 1383/03 to be
construed as allowing the Antwerp customs authorities to
grant the trade mark proprietor access to six samples of the
goods in order to be able to determine whether or not the
goods in question were counterfeit, it being understood that
such notification of a sample is not to be treated as equiva-
lent
the
to a thorough inspection within the terms of
second subparagraph of Article 9(3) of Regulation (EC)
No 1383/03? If so, ought this granting of access to have
occurred within the period of three working days laid down
in Article 4(1) of that regulation?

3. Does Regulation (EC) No 1383/03 preclude Belgian customs
officials from providing information, acquired in the context
of implementation of that regulation, outside the channels
inter alia,
envisaged thereby — reference being made to,
Article 9(2) and the first subparagraph of Article 9(3) of
Regulation (EC) No 1383/03 — for example, within the
context of the questioning of witnesses or submission of
documents ordered by Belgian courts?

4. Does Regulation (EC) No 1383/03 preclude information
obtained as a result of the application of Articles 4(2) (see
Question 2) and 9(2) and (3) thereof, other than that referred
to in the first subparagraph of Article 9(3), or information
obtained pursuant to the questioning of witnesses or submis-
sion of documents ordered by Belgian courts (see Ques-
tion 3), from being used in the context of proceedings not
designed to secure a declaration that goods are counterfeit,
for example in connection with proceedings to counter
parallel imports?

(1) Commission Regulation (EC) No 1891/2004 of 21 October 2004
laying down provisions for the implementation of Council Regu-
lation (EC) No 1383/2003 concerning customs action against goods
suspected of infringing certain intellectual property rights and the
measures to be taken against goods found to have infringed such
rights (OJ 2004 L 328, p. 16).

(2) OJ L 196, 2.8.2003, p. 7.

Appeal brought on 6 March 2007 by Raiffeisen
Zentralbank Österreich 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-259/02

(Case C-133/07 P)

(2007/C 117/18)

Language of the case: German

Parties

Appellant: Raiffeisen Zentralbank Österreich AG (represented by:
S. Völcker and G. Terhorst, Rechtsanwälte)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Annulment of the judgment of the Court of First Instance of
the European Communities of 14 December 2006 in Joined
Cases T 259/02 to T-264/02 and T-271/02 (1) in so far as it
dismisses RZB's action;

— Annulment of Article 3 of

the Commission decision of
11 June 2002 (C (2002) 2091 final) in so far as it concerns
RZB;

— In the alternative, a reduction at the discretion of the Court
in the fine imposed on RZB in Article 3 of the contested
decision;

— The Commission to pay the costs.

Pleas in law and main arguments

infringed Article 81 EC by accepting that

the
The Court
Commission can conclude merely from the fact
that bank
committees covered the territory of one Member State that trade
between Member States may be affected.

The Court erred in law in classifying the bank committees as ‘a
very serious infringement’ within the meaning of the Guidelines
on fines. It misapplied the criteria mentioned in the Guidelines
with regard to gravity (the nature of the infringement, actual
the relevant geographic
impact on the market and size of
the
market),
the selectivity of
the
Commission's action and did not ultimately carry out
overall appraisal of all viewpoints, which it had itself demanded.

failed to take into account

C 117/12

EN

Official Journal of the European Union

26.5.2007

The Court erred in law in attributing to RZB the market shares
for the whole of the agricultural credit cooperative sector. In
doing so it incorrectly confined its basis for review to only
‘manifest’ unequal treatment in respect of other banks. The legal
basis necessary for a complete attribution was lacking.

The Court erred in law in assessing RZB's cooperation.
It
applied the criterion of ‘significant added value’ in contravention
of the principle of non-retroactivity, failed to appreciate the
voluntary nature of RZB's various contributions amounting to
cooperation, erroneously assumed a reversal of the burden of
proof as regards the value of the cooperation,
impermissibly
rejected the Common account of the facts as an inappropriate
form of cooperation and erred in not recognising RZB's admis-
sion in respect of the anti-competitive purpose of the agree-
ments as a contribution amounting to cooperation.

(1) OJ C 331, p. 29.

Appeal brought on 6 March 2007 by Bank Austria
Creditanstalt 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
the European Communities, concerning
Commission of

Case T-260/02

(Case C-135/07 P)

(2007/C 117/19)

Language of the case: German

Parties

Appellant: Bank Austria Creditanstalt AG (‘BA-CA’) (represented
by: C. Zschocke and J. Beninca, Rechtsanwälte)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside in whole or

the
in part
Court of First Instance of 14 December 2006 in Joined
Cases T-259/02 to T-264/02 and T-271/02 (1), in respect of
Case T-260/02;

the judgment of

— order the Commission to pay the costs.

Pleas in law and main arguments

By this appeal, the appellant seeks the setting aside of the judg-
ment of the Court of First Instance of 14 December 2006. The
appellant complains of numerous defects in reasoning and legal
and procedural errors.

the committee meetings of

The appellant contends that
the judgment appealed against
endorsed without evident justification the Commission's view
that
the banks had negative
economic consequences. According to the appellant, the judg-
ment appealed against infringes the principles governing the
procedure for adducing evidence by misunderstanding the
conditions to be satisfied by economic reports submitted in
order to prove the absence of economic effects. On the basis of
the report submitted, economic effects should not have been
taken into account in the fixing of the fine.

The appellant maintains that the judgment appealed against
disregarded the requirements established by the European courts
imposing a need to reduce the fine on the basis of mitigating
factors. Owing to this legal error, the judgment appealed against
failed to correct the Commission's wrongful exercise of discre-
tion which occurred when it took into account neither the parti-
cipation of public bodies in, nor the widespread and proven
public knowledge of, the committee meetings of the banks as
factors mitigating the level of fines.

third plea in law,

the appellant alleges defects

in
By its
reasoning, infringement of the principle of equal treatment and
further errors of law and procedure in the judgment appealed
against in relation to the appraisal of its cooperation by the
Commission.

The appellant maintains that it cooperated with the Commission
from the outset in the reconstruction of the facts of the case. In
particular it submitted at an early stage of the procedure a
comprehensive account of the committee meetings of the banks
and also, on a voluntary basis, an extensive set of documenta-
tion which — as found by the Court — was used by the
Commission for its contested decision. Furthermore, in its reply
to the statement of objections it provided an account of the
facts which — as also confirmed by the judgment appealed
against — the Commission was able to use for its contested
decision.

Like the contested decision, the judgment appealed against failed
to reduce the fine in return for this comprehensive, valuable
the appellant. This
and proven cooperation on the part of
constitutes an incorrect application of
the Leniency Notice,
infringing the principle of equal treatment and the principle of
appealed
legitimate
against also infringed the appellant's right to be heard by inde-
pendently considering factors relating to the level of the fine
imposed on the appellant upon which it had been unable
previously to comment.

expectations. Moreover,

judgment

the

— annul the decision of the Commission of 11 June 2002 in

Case COMP/36.571, in so far as it concerns BA-CA;

— in the alternative, reduce by an appropriate amount the fine
imposed by the Commission upon BA-CA in the contested
decision;

(1) OJ 2006 C 331, p. 29.