CELEX: C2002/084/118
Language: en
Date: 2002-04-06 00:00:00
Title: Case T-3/02: Action brought on 10 January 2002 by Schlüsselverlag J.S. Moser Gesellschaft m.b.H. and Others against the Commission of the European Communities

C 84/64                EN                     Official Journal of the European Communities                                      6.4.2002
The applicant also states that the Commission has erred in law           —      order the defendant to pay to the applicant, by way of
and in fact by clearing the ‘no-discrimination rule’, according                 compensation for the damage suffered and to be suffered,
to which merchants are prohibited from charging their costs                     EUR 350 000, fixed with all manner of reservations,
for the use of debit card by a customer to that customer.                       together with default interest at the rate of 10 % per
According to the applicant, this rule constitutes a restriction                 annum as from 7 October 1999 until the date on which
on competition, since it prevents the merchants from using                      it is actually paid;
the threat of such discrimination as pressure in order to
bargain for lower merchant’s fees. The applicant states that the         —      order the defendant to pay the costs.
Commission has made an incomplete market investigation on
this point.
                                                                         Pleas in law and main arguments
Likewise, the applicant claims that the Commission has erred
in clearing several other rules with the contested decision.             The applicant is suffering from an occupational disease
Thus the Commission clears the ‘cross-border issuing rules’              contracted after working in the Court of Justice building which
that require that a bank wishing to start issuing cards in               contained asbestos.
another state must comply with the rules applicable in that
state. According to the applicant, this partitions the market de         According to the applicant, the Court of Justice confuses two
facto and prevents less restrictive rules in one state from being        categories of damage: that covered by Article 288 of the EC
used by issuing banks as a competitive advantage in another              Treaty and that covered by Article 73 of the Staff Regulations.
state. Furthermore, the Commission erred in clearing the                 The applicant is not seeking a finding under Article 73 of
‘cross-border acquiring rule’, which prevents, according to the          the Staff Regulations that his health has deteriorated but
applicant, merchants in one state from seeking an acquiring              compensation, under Article 288 of the EC Treaty, for non-
bank in another state where the multilateral interchange fee is          material damage as a result of his illness, damage which is
lower.                                                                   non-medical and non-economic.
Finally, the Commission gives insufficient reasoning for its             The applicant claims that all the conditions for the granting of
clearance of the ‘No acquiring without issuing rule’. This rule          such compensation are met in his case. In particular, he has
requires that a bank, wishing to acquire merchants, must issue           suffered actual damage in that his family and social lives have
a certain number of cards to customers before it may begin its           been disrupted as a result of his illness. Secondly, there is, in
acquiring activities. This amounts, according to the applicant,          the applicant’s view, a causal link between the damage suffered
to a market sharing agreement between the current issuers.               and the act complained of in that the Court of Justice did not
                                                                         take appropriate protective measures. Thirdly, the damage is
                                                                         unusual and special in nature.
                                                                         Action brought on 10 January 2002 by Schlüsselverlag
Action brought on 3 January 2002 by Robert Polinsky
                                                                         J.S. Moser Gesellschaft m.b.H. and Others against the
  against Court of Justice of the European Communities
                                                                                    Commission of the European Communities
                          (Case T-1/02)                                                               (Case T-3/02)
                        (2002/C 84/117)                                                             (2002/C 84/118)
                                                                                              (Language of the case: German)
                   (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
An action against the Court of Justice was brought before the            European Communities on 10 January 2002 by Schlüsselverlag
Court of First Instance of the European Communities on
                                                                         J.S. Moser Gesellschaft m.b.H., established in Innsbruck (Aus-
3 January 2002 by Robert Polinsky, residing in Thionville
                                                                         tria), J. Wimmer GmbH, established in Linz (Austria), Zeitungs-
(France), represented by Juan-Ramón Iturriagagoitia, lawyer.            und Verlags-Gesellschaft m.b.H., established in Bregenz (Aus-
                                                                         tria), Eugen Russ Vorarlberger Zeitungsverlag und Druckerei
                                                                         Gesellschaft mbH, established in Schwarzach (Austria), ‘Die
The applicant claims that the Court should:                              Presse’ Verlagsgesellschaft m.b.H., established in Vienna (Aus-
                                                                         tria), and ‘Salzburger Nachrichten’ Verlags-Gesellschaft m.b.H.
—     annul the decision of the Court of Justice of 25 September         & Co KG, established in Salzburg (Austria), represented by
      2001;                                                              M. Krüger, lawyer.
 ---pagebreak--- 6.4.2002                 EN                  Official Journal of the European Communities                                      C 84/65
The applicants claim that the Court should:                             one and the same Member State. Finally, this was not a partial
                                                                        transfer of an undertaking but a merger.
—     declare that, by failing to reach a decision on the
      complaint lodged by the applicants against a concen-
      tration with a Community dimension, which was notified
      and approved at national level by the Vienna Oberlandes-
      gericht (Higher Regional Court), in its capacity as Kar-          Action brought on 18 January 2002 by Michael Gerhard
      tellgericht (Restrictive Practices Court) by decision of          Franz Platte against Commission of the European Com-
      26 February 2001, or, in the alternative, by failing to                                       munities
      require the parties to the concentration to notify the
      defendant of the concentration, the defendant failed to                                     (Case T-6/02)
      fulfil its obligations under the EC Treaty;
                                                                                                (2002/C 84/119)
—     order the defendant to pay the costs.
                                                                                          (Language of the case: French)
Pleas in law and main arguments                                         An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 18 January 2002 by Michael
By letter of 25 May 2001, the applicants, as owners of Austrian         Gerhard Franz Platte, residing in Tielt-Winge (Belgium), rep-
newspapers, lodged with the defendant a complaint regarding             resented by Xavier De Kesel, lawyer.
a media concentration which had been approved in Austria, to
which the companies Bertelsmann, Gruner+Jahr, Raffeisen,                The applicant claims that the Court should:
KURIER-Magazine and NEWS were parties, and which, accord-
ing to the applicants, had a Community dimension. The                   —     annul the decision of 6 September 2001 being appealed
complaint was accompanied by the request that the parties to                  against and make an order emending and implementing
the concentration be required to notify the concentration in                  what the appointing authority ought to have done,
accordance with Council Directive (EEC) No 4064/89.                           namely appoint the applicant to Grade C 4.
DG Competition took the view, in a number of letters, that              Pleas in law and main arguments
the abovementioned regulation was not applicable to the
concentration in question, as there had only been a partial             The applicant was classified, upon taking up his duties, in
transfer, which did not involve at least two undertakings with          Grade C 5. In his application, the applicant contests that
turnovers of more than EUR 250 million. DG Competition                  decision. According to the applicant, he should, in view of his
pointed out, however, that that view was not binding on the             previous experience and of the fact that the requirements of
defendant.                                                              the service call for the recruitment of a particularly well-
                                                                        qualified person, have been classified in Grade C 4.
Since the defendant failed to react within two months to the
applicants’ request for a formal decision on the complaint, the
applicants have brought an action under Article 232 EC for a
declaration of failure to act. They submit that in the absence
of a decision attributable to the defendant, it is not possible to             Removal from the register of Case T-315/00 (1)
bring an action for annulment before the Court of First
Instance, and that the applicants are directly and individually                                 (2002/C 84/120)
concerned by the defendant’s failure to adopt a decision.
                                                                                          (Language of the case: Italian)
The applicants claim that the national decision is invalid under
Article 81 EC in conjunction with Regulation 4064/89,                   By order of 29 November 2001 the President of the Fourth
because, contrary to Article 21(2) of that regulation, the              Chamber of the Court of First Instance of the European
Republic of Austria applied its national competition law to a           Communities Case T-315/00 Associazione delle Cantine Socia-
concentration with a Community dimension. In addition, they             li Venete e della Cantina dei Colli Berici against Commission
claim that there are two parties to the concentration with              of the European Communities, was removed from the register.
turnovers in excess of EUR 250 million, one of which does
not achieve more than two-thirds of its annual turnover within          (1) OJ C 335 of 25 November 2000.