CELEX: C2002/097/31
Language: en
Date: 2002-04-20 00:00:00
Title: Case T-54/02: Action brought on 28 February 2002 by Vereins- und Westbank AG against the Commission of the European Communities

20.4.2002              EN                    Official Journal of the European Communities                                          C 97/17
In addition, the applicant claims that the Commission, when             The applicant claims that the Court should:
fixing the amount of the fine, failed to take account of the size
of the undertakings concerned, and that it imposed two
separate fines on the applicant in the ‘citric acid’ and ‘sodium        —     annul the contested decision C(2001) 3693 final of the
gluconate’ cases (1), although both products belong to the same               Commission of the European Communities of 11 Decem-
family of products and it would have been proper to deal with                 ber 2001 in Case COMP/E-1/37.919 (ex 37.391) — Bank
them together. The applicant submits that the fine imposed on                 charges for currency exchange within the Euro zone —
the applicant is highly excessive and that the Commission                     Germany, in so far as it imposes a fine on the applicant;
applied the 10 % maximum prescribed by Article 15(2) of
Regulation 17/62 in different ways in cases based on similar
                                                                        —     alternatively, cancel or, in the further alternative, reduce
facts, which severely prejudiced the applicant’s position. That
                                                                              the fine imposed on the applicant;
course of action violated the principle of proportionality, the
Commission’s guidelines, and its own practice. Moreover, that
method results in discrimination against small and medium-              —     order the Commission to pay the costs.
sized undertakings, and therefore violates the general principle
of equal treatment and the principle of the individual assess-
ment of fines.
                                                                        Pleas in law and main arguments
The applicant further claims that, when calculating the fine,
the Commission refused to take into account the fact that fines
had already been imposed in the USA and Canada in respect
of the same state of affairs, which amounts to an error of              The applicant is contesting the defendant’s decision C(2001)
assessment.                                                             3693 of 11 December 2001, adopted in a procedure under
                                                                        Article 81 of the EC Treaty concerning Case COMP/E-1/37.919
                                                                        (ex 37.391) — Bank charges for currency exchange within the
Finally, the applicant submits that its right to be heard in            Euro zone — Germany.
accordance with the law has been violated, since the Com-
mission did not give it access to the entire investigation file. In
addition, due to the protracted length of the procedure, the
lawful growth of the undertaking had a detrimental effect on            The contested decision of the defendant of 11 December 2001,
the applicant by increasing the potential range of the fine.            which was notified in Hamburg, Germany, on 19 December
Moreover, as a result of the slow conduct of the procedure, the         2001, is unlawful.
applicant was subject to the new, significantly harsher, practice
of the Commission in the imposition of fines.
                                                                        It constitutes an infringement of the EC Treaty and of the
(1) See Commission Decision C(2001) 2931 final of 2 October 2001        rules of law relating to its application (second paragraph of
    which is being contested by the applicant in Case T-312/01          Article 230 of the EC Treaty), and should therefore be annulled.
    Jungbunzlauer v Commission (not yet published).                     The defendant bases its decision on an incorrect view of the
                                                                        facts. The applicant participated only by chance in the
                                                                        decisive foreign exchange dealers’ meeting which took place
                                                                        on 15 October 1997. That meeting did not fulfil the criteria
                                                                        for an agreement in restraint of competition within the
                                                                        meaning of Article 81 of the EC Treaty.
Action brought on 28 February 2002 by Vereins- und
Westbank AG against the Commission of the European                      The defendant’s contrary findings were based on an insufficient
                           Communities                                  and prejudiced ascertainment of the facts, and on a grossly
                                                                        erroneous assessment of the evidence.
                          (Case T-54/02)
                          (2002/C 97/31)                                The administrative procedure did not correspond to the
                                                                        requirements of Community law, inasmuch as the applicant’s
                                                                        rights of defence, its right to a fair hearing and its right to
                  (Language of the case: German)                        inspect the file were consistently infringed.
An action against the Commission of the European Communi-               Moreover, the decision was reached in a manner which
ties was brought before the Court of First Instance of the              infringed essential procedural requirements within the mea-
European Communities on 28 February 2002 by Vereins- und                ning of the second paragraph of Article 230 of the EC Treaty;
Westbank AG, of Hamburg, represented by Josef Lothar                    in particular, the defendant failed to give a sufficient statement
Schulte, Michael Ewen and Alexandra Neus, lawyers.                      of reasons for the decision.
 ---pagebreak--- C 97/18                 EN                     Official Journal of the European Communities                                    20.4.2002
The defendant misused its powers within the meaning of the                In support of his claims, the applicant pleads:
second paragraph of Article 230 of the EC Treaty. In carrying
out its procedure, it was not seeking to put an end to                    —     infringement of Article 11(2) of Annex VIII to the Staff
infringements of the competition rules but to lower the charges                 Regulations;
for the conversion of foreign currencies.
                                                                          —     infringement of the general provisions for the implemen-
                                                                                tation of Article 11(2) of Annex VIII to the Staff Regula-
The amount of the fine was also such as to render it unlawful.                  tions;
The defendant did not correctly apply the relevant principles
for the calculation of fines.                                             —     infringement of the principles of equal treatment and
                                                                                non-discrimination.
Action brought on 25 February 2002 by Peter Finch                         Action brought on 1 March 2002 by Léopold Radauer
  against the Commission of the European Communities                                against the Council of the European Union
                           (Case T-55/02)                                                          (Case T-67/02)
                           (2002/C 97/32)                                                          (2002/C 97/33)
                    (Language of the case: French)                                           (Language of the case: French)
                                                                          An action against the Council of the European Union was
An action against the Commission of the European Communi-                 brought before the Court of First Instance of the European
ties was brought before the Court of First Instance of the                Communities on 1 March 2002 by Léopold Radauer, residing
European Communities on 25 February 2002 by Peter Finch,                  in Brussels, represented by Georges Vandersanden and Laure
residing in Luxembourg, represented by Jean-Noël Louis,                   Levi, avocats.
lawyer, with an address for service in Luxembourg.
                                                                          The applicant claims that the Court should:
The applicant claims that the Court should:
                                                                          —     annul the defendant’s decision of 17 April 2001 fixing at
—     annul the Commission’s decision concerning the crediting                  3 years, 10 months and 10 days the number of years of
      of years of pensionable service under the Staff Regulations               pensionable service to be taken into account for the
      to be taken into account pursuant to Article 11(2) of                     applicant’s Community pension following the transfer of
      Annex VIII to the Staff Regulations in consequence of the                 his pension rights acquired in Austria prior to his entry
      transfer to the Community pension scheme of the                           into the service of the European Communities and, in so
      pension rights acquired by the applicant prior to his entry               far as necessary, annul the Council decision, dated
      into service;                                                             15 November 2001, to reject the applicant’s complaint
                                                                                of 17 July 2001;
—     order the defendant to pay the costs.
                                                                          —     order the defendant to fix again, on an amended legal
                                                                                basis and in a manner devoid of any illegality, the years
                                                                                of pensionable service to be taken into account for the
Pleas in law and main arguments                                                 applicant’s Community pension following the transfer of
                                                                                his pension rights acquired in Austria;
The applicant, an official of the defendant institution who,
prior to his entry into service, had worked in France, Belgium            —     order the defendant to pay all of the costs.
and the Netherlands and acquired pension rights under
various pension schemes in those countries, is contesting the
calculation contained in the contested decision, which relates            Pleas in law and main arguments
to the crediting of all of the transferred rights. More specifically,
the applicant is contesting the fact that the appointing                  The single plea in law raised is the same as that in Case
authority took the date of his establishment as the reference             T-204/01 Maria-Luise Lindorfer v Council of the European
date and not the date of his entry into service.                          Union (OJ C 317, 10.11.2001, p. 32).