CELEX: C2002/274/53
Language: en
Date: 2002-11-09 00:00:00
Title: Case T-262/02: Action brought on 30 August 2002 by Raiffeisenlandesbank Niederösterreich-Wien AG against the Commission of the European Communities

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.