Case C-135/07 P: 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 Commission of the European Communities, concerning Case T-260/02
Date: 2007-05-26
Institutions: Court of Justice
Subjects: appeal, bank, competition law, control of restrictive practices, infringement of EU law, restriction on competition

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.