CELEX: C2002/109/123
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-60/02: Action brought on 1 March 2002 by Deutsche Verkehrsbank AG against the Commission of the European Communities

4.5.2002               EN                    Official Journal of the European Communities                                     C 109/65
The applicant did not take part in the meeting on 15 October            Action brought on 1 March 2002 by Deutsche Ver-
1997. The employee of the applicant who was sent an                     kehrsbank AG against the Commission of the European
invitation to attend that meeting was not granted permission                                       Communities
by his superior to take part in it. An employee of the
Vereins- und Westbank, in which the applicant has a majority
shareholding, had been the only person attending on the                                           (Case T-60/02)
applicant’s behalf. The Vereins- und Westbank conducts itself
in the market quite independently of the applicant, and the                                     (2002/C 109/123)
links between the two banks from the standpoint of company
law cannot therefore constitute the basis for any presumption
concerning the attendance by an employee of that bank at the                              (Language of the case: German)
meeting complained of.
                                                                        An action against the Commission of the European Communi-
In assessing the amount of the fine, the Commission manifestly          ties was brought before the Court of First Instance of the
departed from its own guidelines and infringed the requirement          European Communities on 1 March 2002 by Deutsche
of equal treatment.                                                     Verkehrsbank AG, of Frankfurt am Main (Germany), represent-
                                                                        ed by M. Klusmann and F. Wiemer, lawyers.
Neither in the communication concerning the heads of
complaint nor in the context of the hearing before the official         The applicant claims that the Court should:
nominated to conduct the same was there any suggestion that
the applicant itself had taken part in the alleged agreements.          —     annul the contested decision in so far as it concerns the
The Commission should have indicated the change in its point                  applicant;
of view to the applicant prior to adopting its decision.
                                                                        —     alternatively, reduce the fine imposed on the applicant by
                                                                              the contested decision to a reasonable amount;
The applicant’s rights of defence were infringed, since the
applicant was not given full access to the file. In particular, it      —     order the defendant to pay the costs.
was not able to inspect the comments made by the other
parties involved or the files in the parallel procedures, despite
the fact that the applicant had well-founded reasons to suspect
that those files contained material which would have been               Pleas in law and main arguments
material to its defence.
                                                                        The claim is directed against Decision C(2001) 3693 of
The decision is lacking in an adequate statement of reasons,            11 December 2001, adopted in Case COMP/E-1/37.919
since, in respect of a series of points, it does not contain any        (ex 37 391) — Bank charges for currency exchange within the
considerations capable of being verified. In particular, no             Euro zone, by which the Commission found that the applicant
reasons were given for the attribution to the conduct of the            had participated in an agreement during the period from
representative of the Vereins- und Westbank of the failure to           1 January 1999 to 31 December 2001 (the period leading up
apply the rules concerning mitigating factors or for the                to the change-over to the euro) concerning the charging of a
deviation from the principle that the initiators of a cartel            percentage commission targeted at around 3 % as a fee for
should not enjoy the benefit of the non-imposition of a fine.           exchanging bank-notes in the participant currencies, and
                                                                        imposed on the applicant a fine of 14 million euros.
The conduct of the Commission in the course of the procedure            The applicant pleads as follows:
shows that it did not act with a view to punishing an
infringement of the rules on cartels but rather with a view to          It does not carry on foreign-exchange end transactions of the
lowering, for political reasons, the charges for exchanging             type concerned in this case; instead, it engages exclusively in
currencies, which it regarded as too high. Those banks which,           inter-bank trading, i.e. wholesale trading in currencies and
faced with that pressure, declared themselves willing to lower          foreign exchange, and therefore in cashless trading in foreign
the charges had been removed from the procedure, regardless             currencies.
of their role in the alleged infringement of the rules on cartels.
The Commission thus misused the provisions of competition
law in order to regulate prices, which it was not in its power          The Commission used evidence on which the applicant was
to do. This constitutes a misuse of discretionary powers.               not given a chance to comment at a hearing conducted in
                                                                        accordance with the law. The Commission refused to allow
                                                                        access to exonerating documents. It arbitrarily discriminated
                                                                        against the applicant in the context of the decision concerning
                                                                        an informal cessation of the procedure.
 ---pagebreak--- C 109/66               EN                    Official Journal of the European Communities                                         4.5.2002
The decision constitutes a misuse of discretionary powers,              The applicant claims that the Court should:
inasmuch as the Commission pursued extra-legal political
objectives, namely the making of a gesture to the public in
connection with the introduction of the euro. For as long as            —     annul the Commission’s decision of 11 December 2001,
applications made in the current administrative proceedings in                addressed to the applicant and received by it on
Case T-216/01 R had not been determined and remained                          20 December 2001, in Case COMP/E-1/37.919
pending, the adoption of a definitive decision was not permiss-               (ex 37.391), concerning the imposition of a fine;
ible.
It has not been shown that there has been any tangible adverse          —     order the Commission to pay the costs.
effect on trade between Member States.
The applicant participated neither in an agreement on the type
of charges to be made nor in any agreement on the amount of
a target price. The commission system could not have been               Pleas in law and main arguments
the subject of any concerted agreement, if only because, prior
to the entry into force of Regulation No 1103/97, there had
been no legally permissible alternative to it. The evidence relied
on by the defendant is unproductive and self-contradictory.             The Commission infringed the applicant’s rights of defence. It
The last piece of evidence produced by the defendant dates              afforded the applicant no opportunity to learn of the criteria
from 15 October 1997, i.e. some four and a half years before            according to which it discontinued certain parallel procedures.
the conclusion of the alleged agreement. Since then, there has          The Commission did not insist on reductions in charges in
been no contact between the banks concerned. A representa-              every case, and treated various banks differently as regards the
tive of the German Bundesbank had taken part in the                     amount of the reductions in charges. It should have told the
alleged cartel meeting, and the Bundesbank had been officially          applicant which non-discriminatory criteria it was applying in
informed of the results of that meeting.                                deciding whether to continue or to discontinue the procedure.
                                                                        Moreover, the Commission’s decision contained new incrimin-
As to the duration of the alleged agreement, the decision is in         ating evidence compared to the points raised in the heads of
itself contradictory, since the operative part of the decision is       claim served, and the applicant was not given a chance to
based on a different duration from that on which the                    comment on that new evidence. Lastly, the applicant was
calculation of the fine is based.                                       refused access to the files in the parallel procedures. The
                                                                        Commission attached greater importance to the rapid impo-
                                                                        sition of a fine for political reasons than to a fair hearing.
The basic amounts used for the calculation of the fine are
arbitrary and disproportionate.
                                                                        The applicant denies that any anti-competitive agreements
                                                                        were concluded at a meeting held on 15 October 1997
                                                                        between foreign exchange dealers. The subject-matter of that
                                                                        meeting was market trends and a discussion of matters which
                                                                        were generally known. That discussion formed part of a series
                                                                        of conferences held during the period from 1996 to 1998 for
                                                                        the purposes of preparing for the introduction of the euro,
                                                                        which were also frequently attended by representatives of
Action brought on 1 March 2002 by Commerzbank AG                        the central banks and sometimes by representatives of the
  against the Commission of the European Communities                    Commission. As is apparent from internal documents, the
                                                                        applicant had adopted an autonomous decision to charge a
                                                                        percentage fee even before the meeting of 15 October 1997
                          (Case T-61/02)                                took place. The Commission’s complaint is inconclusive, and
                                                                        the Commission does not describe the content of the alleged
                                                                        agreement. The evidence produced in that regard by the
                        (2002/C 109/124)
                                                                        Commission, especially the internal memorandum of an
                                                                        employee of the Netherlands GWK Bank N.V., is inappropriate.
                  (Language of the case: German)                        The Commission’s decision shows a lack of technical know-
                                                                        ledge and objectivity. The Commission failed to recognise the
                                                                        difference between dealing in foreign notes and coins and
                                                                        foreign exchange dealing, and did not take account of the legal
                                                                        situation prevailing at the time; moreover, it represents the
An action against the Commission of the European Communi-               facts in a one-sided way which is detrimental to the applicant.
ties was brought before the Court of First Instance of the
European Communities on 1 March 2002 by Commerzbank
AG, of Frankfurt am Main (Germany), represented by H. Satzky
and B. Maassen, lawyers.