CELEX: C2002/274/52
Language: en
Date: 2002-11-09 00:00:00
Title: Case T-261/02: Action brought on 30 August 2002 by Bank für Arbeit und Wirtschaft Aktiengesellschaft against the Commission of the European Communities

9.11.2002              EN                     Official Journal of the European Communities                                      C 274/29
The applicant claims that the Court should:                              Finally, the applicant submits that the Commission has
                                                                         infringed essential procedural rights held by the applicant and
                                                                         that it unlawfully passed the statement of objections to the
—     annul the Commission decision of 11 June 2002 (COMP/               FPÖ (Austrian Freedom Party).
      36.571 — Austrian Banks) in so far as it relates to the
      applicant;
—     in     the    alternative,    reduce      the      fine    of
      EUR 30 380 000 imposed on the applicant in the
      defendant’s decision;
                                                                         Action brought on 30 August 2002 by Bank für Arbeit
                                                                         und Wirtschaft Aktiengesellschaft against the Com-
—     order the defendant to pay the costs.                                          mission of the European Communities
                                                                                                 (Case T-261/02)
                                                                                                 (2002/C 274/52)
Pleas in law and main arguments
                                                                                          (Language of the Case: German)
The proceeding conducted by the defendant was directed
against regular meetings of banks in Austria (‘Bankenrunden’).           An action against the Commission of the European Communi-
By the contested decision the Commission found that the                  ties was brought before the Court of First Instance of the
applicant — together with seven other Austrian banking                   European Communities on 30 August 2002 by Bank für
institutions — had infringed Article 81 EC by participating in           Arbeit und Wirtschaft Aktiengesellschaft, established in Vien-
agreements and concerted practices concerning prices, charges            na, represented by H.-J. Niemeyer and M. von Hinden, Lawyers,
and advertising measures, designed to restrict competition on            with an address for service in Luxembourg.
the Austrian banking market from 1 January 1995 until
24 June 1998. The Commission imposed fines on the banks
concerned.                                                               The applicant claims that the Court should:
                                                                         —     annul Articles 1 and 2 of the Commission decision of
                                                                               11 June 2002 in Case COMP/36.571 — Austrian banks,
The applicant submits first of all that Article 81 EC cannot be                in so far as it is found therein that the applicant has
applicable since the banks’ meetings, which the applicant                      infringed Article 81 EC and must cease that infringement;
admits, could not affect trade between Member States because
of their regional and local focus.                                       —     annul Article 3 of the decision in so far as it imposes a
                                                                               fine of EUR 7 590 000 upon the applicant;
                                                                         —     in the alternative, reduce the fine imposed on the
The applicant further contends that the defendant, when                        applicant in Article 3 of the decision to an appropriate
setting the basic amount, assumed that those meetings had                      amount;
adverse economic effects although the applicant, together with
the other banks concerned, had proved by means of an                     —     order the defendant to pay the costs.
economist’s expert report that there were no such effects. In
addition, the defendant exercised its discretion improperly
when setting the basic amount because it failed to take account
of the transitional situation pertaining in legal terms in Austria       Pleas in law and main arguments
after entry into the European Economic Area, the statutorily
privileged status of the Bankenrunden under Austrian cartel
law, the participation of State authorities and the fact that the        The proceeding conducted by the defendant was directed
Bankenrunden were public knowledge.                                      against regular meetings of banks in Austria (‘Bankenrunden’).
                                                                         By the contested decision the Commission found that the
                                                                         applicant — together with seven other Austrian banking
                                                                         institutions — had infringed Article 81 EC by participating in
Furthermore, the applicant worked with the defendant in                  agreements and concerted practices concerning prices, charges
establishing the facts. The defendant granted no reduction for           and advertising measures, designed to restrict competition on
that wide-ranging cooperation and therefore exercised its                the Austrian banking market from 1 January 1995 until
discretion incorrectly and to the applicant’s detriment when             24 June 1998. The Commission imposed fines on the banks
applying the Leniency Notice.                                            concerned.
 ---pagebreak--- C 274/30              EN                    Official Journal of the European Communities                                     9.11.2002
The applicant submits that the decision must be set aside if           The applicant claims that the Court should:
only because it infringes the obligation to state reasons
under Article 253 EC. Furthermore, the defendant infringed
Article 81 EC by assessing incorrectly in law the nature of the        —     annul the Commission decision of 11 June 2002 in a
rounds of meetings which were investigated. On an objective                  proceeding under Article 81 EC (Case COMP/36.571/
assessment of the facts, the defendant should have recognised                D-1 — Austrian Banks);
that there was predominantly disagreement between the banks
in question. The incorrect assessment of the facts leaves its
mark on the whole of the contested decision and must                   —     in the alternative, annul Articles 3 and 4 of that decision
                                                                             in so far as they relate to the applicant;
therefore result in its complete annulment. The decision also
infringes Article 81 EC because the rounds of meetings
investigated were not capable of affecting trade between               —     order the defendant to pay the costs.
Member States.
The applicant further contends that Article 3 of the contested
decision must be annulled in the absence of fault, a precon-
dition under Article 15(2) of Regulation No 17/62. Given the           Pleas in law and main arguments
purely national nature of the rounds of meetings and the fact
that they were rooted in a specifically Austrian context — with
the participation of Austrian State authorities — the applicant
was unable to discern their unlawful content and their                 The proceeding conducted by the defendant was directed
purported ability to affect trade between Member States.               against regular meetings of banks in Austria (‘Bankenrunden’).
                                                                       By the contested decision the Commission found that the
                                                                       applicant — together with seven other Austrian banking
                                                                       institutions — had infringed Article 81 EC by participating in
Furthermore the defendant, in breach of Article 15(2) of
Regulation No 17/62, infringed essential principles governing          agreements and concerted practices concerning prices, charges
                                                                       and advertising measures, designed to restrict competition on
the calculation of fines and in particular misapplied on many
                                                                       the Austrian banking market from 1 January 1995 until
counts its own guidelines on the method for setting fines. First
                                                                       24 June 1998. The Commission imposed fines on the banks
of all, it is wrong to accept that there was a ‘very serious
                                                                       concerned.
infringement’, and the defendant failed to take account of
numerous mitigating circumstances. Finally, the fine must be
substantially reduced for the further reason that the defendant,
by misapplying the notice on the non-imposition of fines in
                                                                       The applicant submits that the rounds of meetings between
cartel cases, had no regard at all to the applicant’s extensive
                                                                       the Austrian banks could not appreciably affect trade between
cooperation.
                                                                       States. The Commission misapplied Article 81(1) EC in the
                                                                       contested decision. The arrangements in question were limited
                                                                       to the territory of the Republic of Austria. The Commission
                                                                       adduced no conclusive evidence as to why the arrangements
                                                                       were none the less supposed to have been capable of appreci-
                                                                       ably affecting trade between States. In particular, it was not
                                                                       demonstrated that they had the effect of partitioning the
                                                                       market.
Action brought on 30 August 2002 by Raiffeisenlandes-
bank Niederösterreich-Wien AG against the Commission
                of the European Communities                            The applicant further contends that the Commission did not
                                                                       prove that the applicant acted with intent or negligently. The
                                                                       Commission misapplied Article 15(2) of Regulation No 17/
                        (Case T-262/02)
                                                                       62. It imposed a fine despite an absence of proof that the
                                                                       applicant’s staff had acted with intent or negligently. The
                        (2002/C 274/53)                                Commission fails to have regard to the fact that the question
                                                                       of fault does not turn on knowledge of the prohibition on
                                                                       cartels but primarily on knowledge of the facts which render
                 (Language of the Case: German)                        that prohibition applicable in a specific case. Furthermore,
                                                                       the Commission considers fault only with regard to the
                                                                       requirement that competition be restricted and does not ask
                                                                       itself whether the applicant’s staff were in a position to
                                                                       recognise the alleged effects between Member States. That was
An action against the Commission of the European Communi-              not the case.
ties was brought before the Court of First Instance of the
European Communities on 30 August 2002 by Raiffeisenlan-
desbank Niederösterreich-Wien AG, established in Vienna,
represented by H. Wollmann, Lawyer.