CELEX: C2002/084/116
Language: en
Date: 2002-04-06 00:00:00
Title: Case T-336/01: Action brought on 27 December 2001 by EuroCommerce A.I.S.B.L. against the Commission of the European Communities

6.4.2002               EN                    Official Journal of the European Communities                                        C 84/63
The applicant claims that the Court should:                             —     order that the Commission pay the costs of the proceed-
                                                                              ings;
—     annul Article 1 of the Commission Decision of 2 October
      2001 relating to a proceeding under Article 81 of the EC
      Treaty and Article 53 of the EEA Agreement (Case                  —     order that the Commission pay the costs incurred by
      COMP/36.756 — Sodium Gluconate) insofar as it per-                      EuroCommerce in the present proceedings.
      tains to ADM at least to the extent that it finds ADM was
      party to an infringement after 4 October 1994;
—     annul Article 3 of the Commission Decision of 2 October
      2001 relating to a proceeding under Article 81 of the EC
      Treaty and Article 53 of the EEA Agreement (Case
      COMP/36.756 — Sodium Gluconate) insofar as it per-                Pleas in law and main arguments
      tains to ADM;
—     in the alternative, modify Article 3 of the Decision as it
      pertains to ADM, so as to annul or substantially reduce           The applicant is an international association with as its aim
      the fine imposed on ADM therein;                                  the research into and solution of problems concerning trade.
                                                                        The applicant has lodged in this respect several complaints
—     order the Commission to pay all of the costs of the               with the Commission regarding the non-tariff rules and the
      proceedings.                                                      multilateral interchange fees used by payment card organis-
                                                                        ations. The multilateral interchange fee is paid by the acquiring
                                                                        bank (the merchant’s bank) to the issuing bank (the customer’s
                                                                        bank). This fee has, according to the applicant, a direct
Pleas in law and main arguments                                         influence on the fee that a merchant has to pay to his acquiring
                                                                        bank for the use of payment cards for payment by his
                                                                        customers. The non-tariff rules are a set of rules concerning
The grounds and main arguments are similar to those raised              the issuing and acquiring of payment cards.
in case T-322/01 Roquette Frères/Commission
                                                                        The Commission decided, in the contested decision, that there
                                                                        was no need for any action under Article 81 EC Treaty with
                                                                        regard to the non-tariff rules. According to the applicant, this
                                                                        decision violates both the EC Treaty and the EEA agreement.
Action brought on 27 December 2001 by EuroCommerce
A.I.S.B.L. against the Commission of the European Com-
                            munities
                                                                        The applicant claims that the Commission did not respect its
                                                                        right to be heard. In its comments on the second letter sent
                        (Case T-336/01)                                 under Article 6 of Commission Regulation 2842/98, the
                                                                        applicant made a conditional withdrawal of its complaints, in
                                                                        the belief that the Commission would prohibit the multilateral
                        (2002/C 84/116)                                 interchange fee. This fee, according to the applicant, is closely
                                                                        intertwined with the non-tariff rules. Later, the Commission
                  (Language of the case: English)                       changed its opinion on this point. According to the applicant,
                                                                        however, it had then no opportunity to give its comments.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              Furthermore, the applicant claims that there has been a
European Communities on 27 December 2001 by EuroCom-                    violation of Article 81 of the EC Treaty and the principle of
merce A.I.S.B.L., represented by Mr Pierre V. F. Bos and Mr             sound administration, in that the Commission failed to
Morten Nissen of Dorsey & Whitney LLP, Brussels (Belgium).              consider the non-tariff rules and the multilateral interchange
                                                                        fees together. According to the applicant, they should have
                                                                        been considered together in order to establish whether or not
The applicant claims that the Court should:                             they have a detrimental effect on competition. The Com-
                                                                        mission has cleared the non-tariff rules in the contested
—     annul the Commission’s Decision dated 9 August 2001               decision and has the intention of clearing the multilateral
      relating to proceedings under Article 81 of the EC                interchange fee. The applicant, however, states that these
      Treaty and Article 53 of the EEA Agreement (Case                  aspects are closely intertwined and that their joint effect on
      No COMP/29.373 — Visa International);                             competition should have been investigated.
 ---pagebreak--- 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.