CELEX: C2002/109/104
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-28/02: Action brought on 4 February 2002 by First Data Corporation, FDR Limited and First Data Merchant Services Corporation against the Commission of the European Communities

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.