CELEX: C2002/109/117
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-47/02: Action brought on 27 February 2002 by Manfred Danzer and Hannelore Danzer against the Council of the European Union

4.5.2002              EN                     Official Journal of the European Communities                                     C 109/61
Pleas in law and main arguments                                         The applicants claim that the Court should:
By the contested decision, the Commission imposed a fine of
EUR 28 million on the applicant for infringement of
                                                                        —     order the defendant to pay EUR 1852721 to the appli-
Article 81(1) EC. In that decision, the Commission found that
                                                                              cants’ legal representatives within 14 days and declare
agreements had been concluded between various German
                                                                              Article 2(1)(f) of Council Directive 68/151/EEC of
banks, including the applicant, concerning the type and
                                                                              9 March 1968 (1) and Article 47 of Council Directive
amount of bank charges, the agreements in question having
                                                                              78/660/EEC of 25 July 1978 (2). to be contrary to
been aimed, during the transitional period, at fixing the way in
                                                                              European Community law;
which charges were to be made for exchanging bank notes in
the currencies of the countries taking part in monetary union,
in the form of a percentage, together with a target price of
around 3 %.                                                             —     order the defendant to pay the costs.
The applicant denies that it took part in an agreement contrary
to Article 81(1) EC. It maintains that the evidence produced
by the Commission in that regard is insufficient. In addition,
the Commission failed to show the effects of the alleged
agreement on trade between Member States.
The Commission wrongly assumed that there was an ongoing                Pleas in law and main arguments
infringement. The calculation of the fine is wrong, because the
Commission did not carry out any assessment of the applicant’s
individual conduct.
In the course of the procedure, the Commission infringed the
                                                                        The applicants are managing directors of various Austrian
applicant’s rights of defence, inasmuch as it refused to allow
                                                                        companies. They claim that the obligation to disclose the
the applicant to have sight of the files relating to the
                                                                        annual accounts of companies limited by shares and equivalent
circumstances resulting in the decision to discontinue the
                                                                        partnerships is incompatible with primary Community law,
procedure against other banks and did not, in the contested
                                                                        the fundamental rights guaranteed by the Community and the
decision, examine the statements made by the applicant in its
                                                                        case-law of the Court of Justice of the European Communities.
response to the main points raised in the complaint and in the
                                                                        On those grounds the applicants have to date refused to
oral hearing.
                                                                        disclose the annual accounts in the requisite form for the
                                                                        companies for which they are responsible. By the time this
The imposition of a fine on the applicant exceeds the                   action was brought fines of EUR 1 852 721 had been imposed
Commission’s discretionary power and discriminates against              on the applicants.
the applicant by comparison with those entities who were the
subject of the complaint and on whom it was decided not to
impose a fine. The Commission should likewise have decided
to discontinue the procedure as against the applicant.
                                                                        The applicants submit that the disclosure required by the
                                                                        directives in question entails the disclosure of confidential
                                                                        business information which is contrary to EC competition law
                                                                        and the general principle of the protection of business and
Action brought on 27 February 2002 by Manfred Danzer                    trade secrets. The publication of important and confidential
and Hannelore Danzer against the Council of the Euro-                   business data is also disproportionate and inadmissible in the
                          pean Union                                    light of Article 287 EC.
                         (Case T-47/02)
                       (2002/C 109/117)
                                                                        The applicants argue, further, that Article 2(1)(f) of Directive
                  (Language of the case: German)                        68/151/EEC and Article 47 of Directive 78/660/EEC have no
                                                                        basis in Article 44(2)(g) EC nor are they the type of provision
                                                                        which is properly covered by a ‘directive’ within the meaning
An action against the Council of the European Union was                 of Article 249 EC. The provisions do not harmonise existing
brought before the Court of First Instance of the European              law but ‘create’ new law. Moreover, they are contrary to the
Communities on 27 February 2002 by Manfred Danzer and                   principle of proportionality and breach the Austrian data
Hannelore Danzer, Linz (Austrian Republic), represented by              protection law, the fundamental right to property, the funda-
J. Hintermayr, M. Krüger, F. Haunschmidt, G. Minichmayr and             mental right to freedom of economic activity and the protec-
P. Burgstaller.                                                         tion of private tax matters.
 ---pagebreak--- C 109/62                 EN                     Official Journal of the European Communities                                          4.5.2002
Finally, the applicants submit that the objectives of the Council          The applicant claims that the Commission has failed to comply
in the directives cited are not covered by Community law and               with the obligation to provide a statement of reasons as
are therefore a direct cause of the refusal to disclose the                prescribed by Article 253 of the EC Treaty, and with the
accounts, and that the causal link between the objectives of               guidelines for the calculation of fines. According to the
the directive and the damage caused and anticipated is thus                applicant, the Commission, in determining the actual econ-
clear.                                                                     omic power of the parties concerned, failed to define the
                                                                           relevant market. It maintains that the decision does not make
                                                                           it clear whether the relevant market is the private label market
(1) First Council Directive 68/151/EEC of 9 March 1968 on co-              or the beer market in general. Moreover, the Commission
    ordination of safeguards which, for the protection of the interests    over-estimated the economic power of the applicant in the
    of members and others, are required by Member States of                market for private label beer, if and in so far as it is that market
    companies within the meaning of the second paragraph of                which is to be regarded as the relevant market. The applicant
    Article 58 of the Treaty, with a view to making such safeguards        further argues that the Commission wrongly characterised the
    equivalent throughout the Community (OJ, English Special Edition
    1968(I), p. 41).
                                                                           role played by the applicant in the cartel in question as an
(2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on           active role. According to the applicant, its role must be
    Article 54 (3) (g) of the Treaty on the annual accounts of certain     regarded as having been purely passive, or at least as less
    types of companies (OJ 1978 L 222, p. 11).                             active.
                                                                           Lastly, the applicant pleads infringement of the Notice on
                                                                           Cooperation and of the principle of equal treatment. According
                                                                           to the applicant, the Commission failed to take sufficient
                                                                           account of the significance of the applicant’s statements
                                                                           proving the infringement of the rules. The Commission
                                                                           consequently treated similar situations in a dissimilar way, by
Action brought on 27 February 2002 by Brouwerij                            not applying the same reduction in the fine where there was a
Haacht N.V. against the Commission of the European                         comparable level of cooperation. Moreover, the Commission
                             Communities                                   treated dissimilar situations in a similar way, by applying the
                                                                           same reduction in the fines imposed on the applicant and on
                            (Case T-48/02)                                 parties who cooperated less, or not at all, in the Commission’s
                                                                           investigation.
                          (2002/C 109/118)
                     (Language of the case: Dutch)
An action against the Commission of the European Communi-                  Action brought on 26 February 2002 by Brasserie Natio-
ties was brought before the Court of First Instance of the                 nale against the Commission of the European Communi-
European Communities on 27 February 2002 by Brouwerij                                                     ties
Haacht N.V., established at Boortmeerbeek (Belgium), rep-
resented by Yves van Gerven, Frédéric Louis and Hendrik                                             (Case T-49/02)
Viane, lawyers, with an address for service in Luxembourg.
                                                                                                  (2002/C 109/119)
The applicant claims that the Court should:
                                                                                             (Language of the case: French)
—     annul Article 4 of the decision in issue, in so far as it
      concerns Brouwerij Haacht N.V. and, in so far as may be
      necessary, order that no fine be imposed on Brouwerij
      Haacht N.V. or substantially reduce the fine;                        An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
—     order the Commission to pay the costs in any event.                  European Communities on 26 February 2002 by Brasserie
                                                                           Nationale, established at Bascharage (Luxembourg), represent-
                                                                           ed by Alexandre Carnelutti and Jean-Louis Schiltz, lawyers,
                                                                           with an address for service in Luxembourg.
Pleas in law and main arguments
                                                                           The applicant claims that the Court should:
The action is directed against the decision in so far as it
imposes a fine on the applicant in consequence of the private              —     annul Article 1 of the Commission’s decision of 5 Decem-
label cartel on the Belgian beer market.                                         ber 2001 in Case COMP/37800/F3 — Brasseries Luxem-