CELEX: C2002/274/55
Language: en
Date: 2002-11-09 00:00:00
Title: Case T-264/02: Action brought on 2 September 2002 by Erste Bank der österreichischen Sparkassen AG against the Commission of the European Communities

9.11.2002              EN                       Official Journal of the European Communities                                      C 274/31
Action brought on 30 August 2002 by Österreichische                        European Communities on 2 September 2002 by Erste Bank
Postsparkasse Aktiengesellschaft against the Commission                    der österreichischen Sparkassen AG, established in Vienna,
                of the European Communities                                represented by W. Kirchhoff, F. Montag and G. Bauer, Lawyers.
                         (Case T-263/02)
                                                                           The applicant claims that the Court should:
                         (2002/C 274/54)
                  (Language of the Case: German)                           —     annul Commission Decision C(2002)2091 final of
                                                                                 11 June 2002 in Case COMP/36.571/D-1 — Austrian
                                                                                 Banks, in so far as it relates to the applicant;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                 —     in the alternative, set aside the fine imposed on the
European Communities on 30 August 2002 by Österreichische                        applicant;
Postsparkasse Aktiengesellschaft, established in Vienna, rep-
resented by H.-J. Niemeyer and M. von Hinden, Lawyers, with
                                                                           —     in the alternative, reduce the amount of the fine imposed
an address for service in Luxembourg.
                                                                                 on the applicant in the contested decision to an appropri-
                                                                                 ate sum;
The applicant claims that the Court should:
—     annul Articles 1 and 2 of the defendant’s decision of                —     in any event order the defendant to pay the costs.
      11 June 2002 in Case COMP/36.571/D-1 — Austrian
      banks, in so far as it is found therein that the applicant has
      infringed Article 81 EC and must cease that infringement;
—     annul Article 3 of the decision in so far as it imposes a            Pleas in law and main arguments
      fine of EUR 7 590 000 upon the applicant;
—     in the alternative, reduce the fine imposed on the
      applicant in Article 3 of the decision to an appropriate             The proceeding conducted by the defendant was directed
      amount;                                                              against regular meetings of banks in Austria (‘Bankenrunden’).
                                                                           By the contested decision the Commission found that the
—     order the defendant to pay the costs.                                applicant — together with seven other Austrian banking
                                                                           institutions — had infringed Article 81 EC by participating in
                                                                           agreements and concerted practices concerning prices, charges
Pleas in law and main arguments                                            and advertising measures, designed to restrict competition on
                                                                           the Austrian banking market from 1 January 1995 until
                                                                           24 June 1998. The Commission imposed fines on the banks
The pleas in law and arguments correspond to those put                     concerned.
forward in Case T-261/02 Bank für Arbeit und Wirtschaft AG
v Commission.
                                                                           The applicant submits that the decision has numerous defects.
                                                                           First, it infringes in many respects the right to a fair hearing.
                                                                           The applicant was not given the opportunity before the
                                                                           decision was adopted to state its views on the allegation that
                                                                           all independent savings banks were to be attributed to it as the
Action brought on 2 September 2002 by Erste Bank der                       leading institution. Nor is the statement of reasons for the
österreichischen Sparkassen AG against the Commission                      decision adequate. In particular, the reasons for attributing the
                of the European Communities                                savings banks to the applicant, and those for the calculation of
                                                                           the applicant’s market share, on the basis of which the amount
                                                                           of the fine was determined, do not satisfy the requirements of
                         (Case T-264/02)                                   the case-law on the duty to state reasons.
                         (2002/C 274/55)
                  (Language of the Case: German)                           The applicant further submits that the decision infringes the
                                                                           principle of good administration. The unlawful attribution of
                                                                           the conduct of all independent savings banks to the applicant/
                                                                           GiroCredit as the leading institution in the savings bank sector
An action against the Commission of the European Communi-                  is a particularly serious breach. The legal preconditions for
ties was brought before the Court of First Instance of the                 such attribution are manifestly not present.
 ---pagebreak--- C 274/32               EN                     Official Journal of the European Communities                                    9.11.2002
The applicant contends in addition that the infringement in              Action brought on 4 September 2002 by Deutsche Post
the present case did not appreciably affect trade between                AG against the Commission of the European Communi-
Member States. Many of the Bankenrunden had no international                                            ties
connection. Others could at any rate have no appreciable effect
on trade between States. Even if the infringement were to have
affected trade between States appreciably, there is in any                                        (Case T-266/02)
event no fault on the applicant’s part. In accordance with
Article 15(2) of Regulation No 17/62 it was therefore not
possible to fine the applicant.
                                                                                                  (2002/C 274/57)
Furthermore, in determining the applicant’s fine the defendant
made two errors of calculation with serious consequences.
                                                                                           (Language of the case: German)
Also, the seriousness of the infringement and the existence of
mitigating grounds are misappraised in the decision and no
regard was had to the applicant’s extensive cooperation.
Finally, the decision violates the prohibition on retroactivity in
Article 7 of the European Convention on Human Rights,
because the fine was determined on the basis of a framework              An action against the Commission of the European Communi-
for fines which, as a result of two amendments to the                    ties was brought before the Court of First Instance of the
defendant’s decision-making practice, was not introduced until           European Communities on 4 September 2002 by Deutsche
the infringement had come to an end.                                     Post AG, Bonn (Germany), represented by J. Sedemund and
                                                                         T. Lübbig, with an address for service in Luxembourg.
                                                                         The applicant claims that the Court should:
Action brought on 3 September 2002 by Mr Jan Pflugradt
              against the European Central Bank                          —     declare the Commission Decision of 19 June 2002 on
                                                                               State aid No 61/99 (ex No 153/96) void;
                         (Case T-265/02)
                                                                         —     order the Commission to pay the costs.
                        (2002/C 274/56)
                   (Language of the case: German)
                                                                         Pleas in law and main arguments
An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 3 September 2002 by Mr Jan Pflugradt, Frankfurt am Main
(Germany), represented by N. Pflüger, lawyer.                            The subject of the contested decision is the below-cost selling
                                                                         of parcel services for business clients, compensating for which
                                                                         gives rise to cross-subsidisation which is contrary to the law
The applicant claims that the Court should:                              on aid. In its decision the Commission found that the State aid
                                                                         of EUR 572 million, which Germany granted to the applicant,
—     annul the formal warning given by the letter of 28 Febru-          was incompatible with the common market. It found that
      ary 2002;                                                          State compensation for the net additional costs of a rebate
                                                                         policy which reduces the costs normally incurred in providing
—     order the defendant to pay the costs.                              door to door parcel services which are open to competition
                                                                         favoured the undertaking within the meaning of Article 87(1)
                                                                         EC.
Pleas in law and main arguments
The case has the same basis as Case T-83/02 (Pflugradt v                 The applicant contests that decision and points out that the
ECB) ( 1), and the pleas in law and arguments correspond to              same below-cost selling was the subject of the Commission
those which were put forward in that case.                               Decision of 20 March 2000 ( 1) adopted on the basis of
                                                                         Article 82 EC and that the two decisions came to very different
                                                                         conclusions regarding the duration, the amount and the source
( 1) OJ C 118, 18.5.2002, p. 30.                                         of financing of the alleged below-cost selling. The applicant
                                                                         submits that the below-cost selling alleged in the Decision is
                                                                         based on a miscalculation.