CELEX: C1998/299/30
Language: en
Date: 1998-09-26 00:00:00
Title: Appeal brought on 28 July 1998 by Sarrió SA against the judgment delivered on 14 May 1998 by the Third Chamber, extended composition, of the Court of First Instance of the European Communities in Case T-334/94 between Sarrió SA and the Commission of the European Communities (Case C-291/98 P)

26.9.98              EN                  Official Journal of the European Communities                                  C 299/19
2. order the Republic of Austria to pay the costs.                  transactions) opened or effected before 1 August 1996 if
                                                                    the identity of the customer is established beforehand and
Pleas in law and main arguments adduced in support:                 paragraph 40(2) complied with. However, that provision
                                                                    still infringes paragraphs (5) and (6) of Article 3 of the
                                                                    Directive because it does not cover the eventuality of the
Pursuant to the mandatory requirements of paragraph 3 of            proprietor of such a securities deposit account selling
Article 189 and paragraph 1 of Article 5 of the EC Treaty,          securities held in those accounts, if the securities are
Member States are under an obligation to transpose the              repaid or redeemed.
provisions of a directive addressed to them into national
law so that those provisions become fully effective on the
expiry of the deadline for effecting transposition. That            (1) OJ L 166, 28.6.1991, p. 77.
deadline laid down in Article 16 of the Directive which, in
Austria's case, due to the entry into force of the Treaty on
the European Economic Area, expired on 1 January 1994,
passed without adequate measures to effect transposition
having been taken in respect of the following two areas of
regulation:
                                                                    Appeal brought on 28 July 1998 by Sarrió SA against the
Ð limitation of the scope of the Directive: paragraph 165           judgment delivered on 14 May 1998 by the Third
    of the Strafgesetzbuch makes money laundering a                 Chamber, extended composition, of the Court of First
    criminal offence only where a threshold of ATS                  Instance of the European Communities in Case T-334/94
    100 000 is exceeded. The reference to the anti-money            between Sarrió SA and the Commission of the European
    laundering rules provided for in paragraph 278(a)(2)                                     Communities
    of the Strafgesetzbuch does nothing to allay the                                      (Case C-291/98 P)
    Commission's doubts about the incompatibility of
    paragraph 165 with Community law,                                                       (98/C 299/30)
Ð disclosure of customers' identity: the fact that
    paragraph 40 of the bank law expressly allows                   An appeal against the judgment delivered on 14 May
    anonymous savings account books contradicts                     1998 by the Third Chamber, extended composition, of the
    Article 3(1) of the Directive which requires credit and         Court of First Instance of the European Communities in
    financial institutions to establish the identity of their       Case T-334/94 between Sarrió SA and the Commission of
    customers when entering into business relations,               the European Communities was brought before the Court
    particularly when opening an account or savings                 of Justice of the European Communities on 28 July 1998
    account'.                                                       by Sarrió SA, whose company seat is in Barcelona (Spain),
                                                                    represented by Alberto Mazzoni, of the Milan Bar, Mario
                                                                    Siragusa, of the Rome Bar, and Francesco Maria Moretti,
Paragraph 40(2) of the bank law also infringes Article 3(5)         of the Venice Bar, with an address for service in
of the Directive, which requires credit and financial               Luxembourg at the Chambers of Elvinger, Hoss &
institutions to take reasonable measures in the event of            Prussen, 2, place Winston Churchill.
doubt as to whether their customers are acting on their
own behalf or, where it is certain that they are not acting
on their own behalf, to obtain information as to the real
                                                                    The appellant claims that the Court should:
identity of the person on whose behalf the customers are
acting.
                                                                    1. set aside the judgment of the Court of First Instance of
Paragraph 40(1) (1) of the bank law also infringes                       14 May 1998 in Case T-334/94 Sarrió v. Commission
Article 3(6) of the Directive because in transactions in                 in so far as the Court of First Instance:
connection with an anonymous savings account book,
establishing the identity of the customer carrying out the
transaction is of no practical use and does not in any                   Ð declares that the Commission decision did not
event enable any inferences to be drawn as to the actual                     impute to Sarrió an infringement concerning
economic relations. The duty of identification laid down                     transaction prices and holds that there is no need
in subparagraphs (1), (2) and (3) of paragraph 40 of the                     to evaluate Sarrió's conduct as regards the prices
bank law in relation to specific situations cannot be                        actually applied,
applied meaningfully and in the spirit of the Directive to
transactions connected with anonymous savings account                    Ð declares that the mere fact of having participated
books.                                                                       in the PG Paperboard meetings implicates Sarrió in
                                                                             collusion on market shares and downtime; or, in
Finally, the duty of identification only took effect in                      the alternative, in so far as it does not regard
relation to securities accounts on 1 August 1996, placing                    Sarrió's non-implementation of the agreed
Austria in breach of the Directive up to that point. It is                   strategies as mitigating the seriousness of its
true that under paragraph 40(5) of the bank law, securities                  misconduct      by     comparison     with   other
may only be deposited or purchased for securities accounts                   undertakings and dismisses the evidence adduced
(and, under paragraph 12 of the deposit law, business                        by Sarrió to that effect; or, in the further
 ---pagebreak--- C 299/20               EN                   Official Journal of the European Communities                                    26.9.98
         alternative, in so far as it arrives at an erroneous          Ð failure to appraise the flawed reasoning underlying
         assessment of Sarrió's misconduct regarding                       calculation of the fine and contradictions between the
         market shares and downtime,                                       grounds and the operative part,
     Ð does not consider it necessary to set aside the fine            Ð failure to appraise the error in the method of
         imposed on Sarrió, wholly or in part, by reason of                calculating the fine,
         the inadequate statement of reasons (the Decision
         itself being silent as to the criteria used to calculate
         the level of that fine),                                      Ð contradiction between the grounds and the operative
                                                                           part as regards the granted reduction in the fine.
     Ð approves the method of calculating the fine
         imposed by the Commission, the amount in ecus
         being directly based on the conversion of the
         reference year turnover into ecus at the average
         exchange rate for that year, without appraising the
         legal consequences of such a burden or the damage
         caused to Sarrió by the use of such a method,                 Action brought on 28 July 1998 by the Commission of the
                                                                             European Communities against Italian Republic
     Ð sets a figure of ECU 1,5 million as the amount of                                       (Case C-292/98)
         the reduced fine (granted by reason of Prat                                            (98/C 299/31)
         Carton's reduced role in the infringement);
2. refer the case back to the Court of First Instance if it            An action against the Italian Republic was brought before
     decides that it is unable wholly or in part to give final         the Court of Justice of the European Communities on
     judgment in the matter;                                           28 July 1998 by the Commission of the European
                                                                       Communities, represented by Francesco P. Ruggeri
                                                                       Laderchi, of its Legal Service, acting as Agent, with an
3. annul the Commission's decision to reflect its setting              address for service in Luxembourg at the office of Carlos
     aside of any part of the judgment under appeal;                   Gómez de la Cruz, Wagner Centre, Kirchberg.
4. reduce the fine to a level which it considers                       The applicant claims that the Court should:
     reasonable;
                                                                       1. declare that, by not adopting the laws, regulations and
5. order the Commission to pay all costs and fees                          administrative provisions necessary to comply with:
     incurred in the proceedings at first instance and in this
     appeal.                                                               (a) Council Directive 95/29/EC of 29 June 1995
                                                                                amending Directive 91/628/EEC concerning the
                                                                                protection of animals during transport (1),
Pleas in law and main arguments adduced in support:
                                                                           (b) Commission Directive 96/6/EC of 16 February
The appellant contests certain specific parts of the                            1996 amending Council Directive 74/63/EEC on
judgment under appeal in which, it maintains, the Court                         undesirable substances and products in animal
of First Instance misapplied Community law and breached                         nutrition (2),
its obligation to state proper grounds.
                                                                           or, in any event, by not having communicated such
In particular, the appellant maintains that the Court of                   measures, the Italian Republic has failed to fulfil its
First Instance made the following errors of assessment in                  obligations under the Treaty and under those
appraising the legal position:                                             Directives;
Ð incorrect interpretation of the Decision in relation to              2. order the Italian Republic to pay the costs of the
     the infringement imputed,                                             proceedings.
Ð incorrect interpretation and misapplication of                       Pleas in law and main arguments adduced in support:
     Community law in holding that Sarrió's participation
     in the producers' meetings had by definition an anti-
     competitive effect; in the alternative, failure to                Article 189 of the EC Treaty, in providing that a directive
     evaluate the significance of its non-implementation of            is binding, as to the result to be achieved, on the Member
     the agreement; in the further alternative, incorrect              State to which it is addressed, places Member States under
     characterisation of the infringement committed,                   an obligation to comply with the time limits set by