CELEX: C2002/109/103
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-24/02: Action brought on 7 February 2002 by Maddalena Lebedef-Caponi against the Commission of the European Communities

4.5.2002                EN                     Official Journal of the European Communities                                        C 109/53
      entitlement of the defendant to investigate cartel cases and        Chemicals Co. Ltd., represented by Mr. Martin Klusmann
      to adopt prohibition Decisions, the rules on limitation             and Ms Vanessa Turner of Freshfields Bruckhaus Deringer,
      in Regulation No. 2988/74 (2) should be considered                  Düsseldorf (Germany).
      applicable to declaratory prohibition decisions.
—     The adoption of a prohibition decision is time-barred               The applicant claims that the Court should:
      under general principles of Community Law. It is stated
      in this regard that where there is no doubt that the alleged        —     annul the Defendant’s Decision C(2001)3695 final of
      conduct was terminated more than five years before an                     21 November 2001 in Case No. COMP/E-1/37.512 —
      investigation was opened, there is no need and no                         Vitamins, so far as Sumika Fine Chemicals Co. Ltd. is
      justification for a declaratory decision, because there is                concerned;
      no place for a cease and desist order, as contained in
      Article 2 of the contested Decision, or any other form of           —     order the Defendant to pay the costs.
      penalty to be imposed on the applicant by the defendant.
      Alternatively, the rationale for limitation periods in the
      European Union is that after a certain period of time it is
      in the interest of the proper functioning of the legal              Pleas in law and main arguments
      system that infringements of the law should no longer be
      investigated or lead to any form of ‘punishment’ of the
      party concerned.                                                    The pleas in law and main arguments are similar to those relied
                                                                          upon in Case T-22/02 (Sumitomo Chemical/Commission, not
                                                                          yet published in the OJ).
—     The defendant was not competent within the meaning of
      the second paragraph of Article 230 EC to adopt the
      contested Decision, as it thereby exceeded its powers
      under the Treaty and Regulation No. 17/62. The defend-
      ant is not empowered by Article 3 of Regulation No. 17,
      or by any other provision, to adopt a declaratory decision
      where the infringement has already been terminated
      outside the limitation period provided for in Article 1 of          Action brought on 7 February 2002 by Maddalena Lebe-
      Regulation No. 2988/74.                                             def-Caponi against the Commission of the European
                                                                                                    Communities
                                                                                                   (Case T-24/02)
                                                                                                 (2002/C 109/103)
(1) Notice not yet published in the OJ.
(2) Council Regulation (EEC) No 2988/74 of 26 November 1974
    concerning limitation periods in proceedings and the enforcement                         (Language of the case: French)
    of actions under the rules of the European Economic Community
    relating to transport and competition (OJ L 319, 29.11.1974,
    p. 1).
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 7 February 2002 by Maddalena
                                                                          Lebedef-Caponi, residing at Senningerberg (Grand Duchy of
                                                                          Luxembourg), represented by Gilles Bounéou, lawyer, with an
                                                                          address for service in Luxembourg.
Action brought on 7 February 2002 by Sumika Fine
Chemicals Co. Ltd. against the Commission of the Euro-                    The applicant claims that the Court should:
                        pean Communities
                                                                          —     annul the express decision No 40263 of 6 November
                           (Case T-23/02)                                       2001 by which the appointing authority replied to the
                                                                                applicant’s complaint No 334/01 of 18 July 2001 by
                                                                                fixing the compensation for the non-material damage
                         (2002/C 109/102)                                       suffered by her in the sum of 1 500 euros;
                    (Language of the case: English)                       —     award the applicant the sum of BEF 800 000, assessed as
                                                                                amounting now to the sum of BEF 1 000 000, by way of
                                                                                compensation for the non-material damage suffered as a
                                                                                result of the lateness in drawing up her staff report
An action against the Commission of the European Communi-                       (placed belatedly in her personal file) for the period 1993-
ties was brought before the Court of First Instance of the                      1995 and the lateness in drawing up her staff reports for
European Communities on 7 February 2002 by Sumika Fine                          the periods 1995-1997 and 1997-1999;
 ---pagebreak--- C 109/54                EN                     Official Journal of the European Communities                                       4.5.2002
—     order the defendant to pay the costs, expenses and fees.            company that wishes to acquire merchants, i.e. process
                                                                          payments made with a credit card by customers at those
                                                                          merchants’ businesses, must first issue a certain number of
                                                                          credit cards to customers. The applicants specialise in acquiring
Pleas in law and main arguments                                           activities.
The applicant claims that she has suffered non-material                   According to the applicants, the contested decision violates
damage on account of a breach of the principle of sound                   the EC Treaty and the EEA Agreement.
administration and failure to act in good faith and to fulfil the
duty of cooperation as regards the drawing up of her
consecutive staff reports. In addition, according to the appli-           Firstly, the applicants state that the decision lacks adequate
cant, those faults have been repeated time and again and testify          reasoning on why the rule in question does not constitute a
to a vexatious attitude.                                                  significant barrier to trade.
                                                                          The applicants also claim that the Commission erred in law
                                                                          when substituting reasoning under Article 81(3) EC Treaty for
                                                                          reasoning under Article 81(1) EC Treaty. According to the
                                                                          applicants, the pro-competitive and anti-competitive effects of
                                                                          a restriction on competition can only be assessed under
Action brought on 4 February 2002 by First Data Corpor-                   Article 81(3) EC Treaty. In the contested Decision, however,
ation, FDR Limited and First Data Merchant Services                       the Commission seems to argue that the rule in question falls
Corporation against the Commission of the European                        outside the scope of Article 81(1) EC Treaty since its benefits
                            Communities                                   outweigh the restriction on competition. This type of reasoning
                                                                          can, according to the applicants, only be applied under
                           (Case T-28/02)                                 Article 81(3) EC Treaty.
                         (2002/C 109/104)                                 Finally, the applicants claim that the rule in question does
                                                                          restrict competition. The consequence of the rule is that, in
                    (Language of the case: English)                       order to start acquiring activities, a company must first build
                                                                          up banking activities to be able to issue cards to customers.
                                                                          This is, according to the applicants, a barrier to entry into the
                                                                          market of acquiring activities. Furthermore, the applicants
An action against the Commission of the European Communi-                 point out that the application of this rule is unclear, since the
ties was brought before the Court of First Instance of the                number of cards to be issued is dependent on undefined
European Communities on 4 February 2002 by First Data                     criteria. According to the applicants, the Commission should
Corporation, FDR Limited and First Data Merchant Services                 have conducted an investigation on whether this rule is applied
Corporation, represented by Mr Pierre Bos and Mr Morten                   in a uniform and non-discriminatory way.
Nissen of Dorsey & Whitney LLP, Brussels (Belgium).
The applicants claim that the Court should:
—     annul the Commission’s Decision dated 9 August 2001
      relating to proceedings under Article 81 of the EC
      Treaty and Article 53 of the EEA Agreement (Case                    Action brought on 13 February 2002 by Wolfgang
      No COMP/29.373 — Visa International) as regards                              Leonhardt against the European Parliament
      Article 1, fifth indent;
                                                                                                    (Case T-30/02)
—     order that the Commission pay the costs incurred by the
      applicants in the present proceedings.
                                                                                                  (2002/C 109/105)
Pleas in law and main arguments                                                              (Language of the case: French)
The applicants contest the Decision of the Commission that
the ‘no-acquiring-without-issuing rule’ of the Visa Corporation           An action against the European Parliament was brought before
is not an appreciable restriction on trade and therefore falls            the Court of First Instance of the European Communities on
outside the scope of Article 81(1) of the EC Treaty and                   13 February 2002 by Wolfgang Leonhardt, residing in La
Article 53 of the EEA Agreement. This rule requires that a                Hulpe (Belgium), represented by H. Tagaras, avocat.