CELEX: C2002/109/120
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-51/02: Action brought on 26 February 2002 by Brasserie Battin against the Commission of the European Communities

4.5.2002               EN                    Official Journal of the European Communities                                       C 109/63
      bourgeoises, in so far as it finds that the applicant has         —     The Commission committed an error of fact in taking the
      infringed Article 81(1) of the Treaty;                                  view that the purpose of the agreement was to prevent
                                                                              penetration of the market by foreign brewers and that it
                                                                              significantly affected competition.
—     in any event, annul Article 2 of the decision in so far as it
      imposes a fine on the applicant, alternatively, reduce that
      fine substantially;
                                                                        The applicant stresses that the agreement was concluded on
                                                                        account of an abnormal risk situation created by a situation
—     order the Commission to pay the costs.                            under national law in which fair competition was directly
                                                                        threatened. Consequently, limited cooperation between brew-
                                                                        ers, proportionate to the objective pursued, became the only
                                                                        way of ensuring that the ‘beer clauses’ were safeguarded.
Pleas in law and main arguments                                         As regards the amount of the fines, the applicant pleads
                                                                        infringement of Article 15(2) of Regulation No 17 and non-
                                                                        compliance with the obligation to provide a statement of
                                                                        reasons.
The present application is directed against the Commission’s
decision establishing the existence of a cartel set up by an
agreement signed on 8 October 1985 between five Luxem-
bourg breweries, including the applicant, with a view to
ensuring observance of exclusivity clauses, known as ‘beer
clauses’, which are characteristic of contracts concluded
between brewers and operators in the hotels/restaurants/cafés
(HORECA) sector, both in Luxembourg and throughout the
Community. The object of that agreement was allegedly to
enable the parties thereto to retain their respective customers         Action brought on 26 February 2002 by Brasserie Battin
in the Luxembourg HORECA sector and to prevent foreign                    against the Commission of the European Communities
brewers from penetrating that sector.
                                                                                                  (Case T-51/02)
In support of its claims, the applicant puts forward the
following pleas in law:                                                                         (2002/C 109/120)
—     The Commission committed an error of law by omitting,                                (Language of the case: French)
      and refusing to consider itself obliged, to take account of
      the economic context of which the agreement formed
      part when carrying out its assessment of all of the clauses
      examined by it, and thus of the purpose of the agreement
      in question.                                                      An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 26 February 2002 by Brasserie
—     The Commission committed an error in its analysis of              Battin, established at Esch sur Alzette (Luxembourg), represent-
      the scope of the said agreement, by finding that it applied       ed by Alexandre Carnelutti and Marie Santini, lawyers, with an
      in the absence of a supply contract or beer clause, and           address for service in Luxembourg.
      thus committed an error of assessment, inasmuch as it
      based its negative assessment of the agreement on that
      presumed scope.                                                   The applicant claims that the Court should:
—     The Commission committed an error of assessment in                —     annul Article 1 of the Commission’s decision of 5 Decem-
      characterising the agreement as an agreement by the                     ber 2001 in Case COMP/37800/F3 — Brasseries Luxem-
      contracting parties to retain their respective customers.               bourgeoises, in so far as it finds that the applicant has
      In actual fact, its central and sole purpose was to                     infringed Article 81(1) of the Treaty;
      ensure observance of the contractual exclusivity agreed
      to between retailers and brewers. The agreement in                —     in any event, annul Article 2 of the decision in so far as it
      question was therefore intended solely to constitute a
                                                                              imposes a fine on the applicant, or alternatively reduce
      legitimate instrument of horizontal cooperation aimed at
                                                                              that fine substantially;
      guaranteeing compliance with a decisive element affecting
      the economy, development and fair competition in that
      sector.                                                           —     order the Commission to pay the costs.
 ---pagebreak--- C 109/64               EN                     Official Journal of the European Communities                                        4.5.2002
Pleas in law and main arguments                                          the decision forming the subject-matter of the dispute disre-
                                                                         gards the principle of proportionality, given the allegedly
                                                                         totally disproportionate nature of the fine at issue, especially
The pleas in law and main arguments are similar to those put             in relation to that imposed on other undertakings in this and
forward in Case T-49/02.                                                 other recent cases, and as regards the taking into account of
                                                                         the legal maximum applicable to the fine itself.
                                                                         Lastly, the applicant pleads infringement of the principle of
                                                                         non-discrimination.
Action brought on 27 February 2002 by Société Nouvelle
des Couleurs Zinciques S.A. against the Commission of
                  the European Communities
                                                                         Action brought on 28 February 2002 by Bayerische Hypo-
                          (Case T-52/02)                                 und Vereinsbank AG against the Commission of the
                                                                                              European Communities
                        (2002/C 109/121)
                                                                                                   (Case T-56/02)
                   (Language of the case: French)
                                                                                                 (2002/C 109/122)
                                                                                            (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 February 2002 by Société
Nouvelle des Couleurs Zinciques S.A., established at Bouchain
(France), represented by Robert Saint-Esteben and Hugues                 An action against the Commission of the European Communi-
Calvet, lawyers, with an address for service in Luxembourg.              ties was brought before the Court of First Instance of the
                                                                         European Communities on 28 February 2002 by Bayerische
                                                                         Hypo- und Vereinsbank AG, of Munich (Germany), represented
                                                                         by W. Knapp, T. Müller-Ibold and B. Bergmann, lawyers.
The applicant claims that the Court should:
—     principally, annul Article 3 of the Commission’s decision          The applicant claims that the Court should:
      of 11 December 2001, in so far as that article imposes a
      fine of 1,53 million euros on the applicant;                       —     annul the Commission’s decision C(2001) 3693 final of
                                                                               11 December 2001 in Case COMP/E-1/37.919
—     alternatively, reduce the amount of that fine very substan-              (ex 37 391) — Bank charges for currency exchange
      tially;                                                                  within the Euro zone — Germany, in so far as it concerns
                                                                               the applicant;
—     order the Commission to pay the costs.
                                                                         —     alternatively, cancel or, in the further alternative, reduce
                                                                               the fine of 28 000 000 euros imposed on the applicant;
                                                                         —     order the Commission to pay the costs.
Pleas in law and main arguments
The decision contested in the present case is the same as that           Pleas in law and main arguments
in Case T-33/02 Britannia Alloys & Chemicals v Commission.
The pleas in law and main arguments put forward by the
applicant are similar to those advanced in Case T-33/02.                 The alleged cartel never existed. It is apparent from the
                                                                         information provided by those who attended the meeting of
                                                                         foreign exchange dealers on 15 October 1997 that, during the
According to the applicant, the arbitrary fixing of a basic              course of that meeting, the discussions concerned technical
amount far in excess of the legal maximum is contrary to                 aspects of inter-bank trading in foreign currencies and structur-
Article 15(2) of Regulation No 17/62, inasmuch as it prevents            ing possibilities regarding pricing in retail foreign exchange
the duration of the infringement and the aggravating and                 trading. The meeting did not involve the conclusion of any
mitigating factors from being taken into account. In addition,           anti-competitive agreement.