CELEX: C2002/097/28
Language: en
Date: 2002-04-20 00:00:00
Title: Case T-36/02: Action brought on 21 February 2002 by the Associazione Bancaria Italiana (ABI) against the Commission of the European Communities

C 97/14                EN                      Official Journal of the European Communities                                        20.4.2002
Pleas in law and main arguments:                                          Action brought on 21 February 2002 by the Associazione
                                                                          Bancaria Italiana (ABI) against the Commission of the
                                                                                               European Communities
                                                                                                    (Case T-36/02)
The applicant is a Japanese pharmaceutical company whose
subsidiary company manufactured D-pantolactone and
D-Calcium Pantothenate (Vitamin B5) and Pyridoxine                                                  (2002/C 97/28)
(Vitamin B6) during the relevant period. In the contested
Decision, the Commission imposed fines upon the applicant                                     (Language of the case: Italian)
and seven other companies for participating in eight distinct
secret market-sharing and price-fixing cartels affecting vitamin
products.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 21 February 2002 by the Associa-
                                                                          zione Bancaria Italiana (ABI), represented by Alberto Santa
The applicant does not dispute the Commission’s finding that              Maria, Claudio Biscaretti di Ruffia, Giuseppe Pizzonia and
the applicant had infringed Article 81(1) of the EC Treaty                Marcello Valenti, lawyers.
and Article 53(1) of the EEA Agreement by participating in
agreements affecting the Community and EEA markets for
Vitamins B5 and B6. Furthermore, the applicant does not                   The applicant claims that the Court should:
contest the facts found by the Commission. The applicant
seeks, however, the annulment of Article 3(f) of the Decision             —     annul the contested decision, issued on 11 December
imposing a fine of EUR 23.4 million upon the applicant or,                      2001 by the Commission of the European Communities,
alternatively, a substantial reduction of that fine.                            on the grounds that it infringes essential procedural
                                                                                requirements and/or is unfounded, contradictory and/or
                                                                                lacking in a statement of reasons in accordance with
                                                                                Article 253 of the EC Treaty in conjunction with Arti-
                                                                                cles 87 and 77 and with Council Regulation
The applicant submits inter alia that the Commission commit-                    No 659/1999, as expounded in the application;
ted a manifest error of judgement, erroneously applied the law
to the facts and infringed the Fining Guidelines                          —     alternatively, annul the decision in question wholly or in
                                                                                part pursuant to the second paragraph of Article 230 of
                                                                                the EC Treaty, inasmuch as it infringes or misapplies
                                                                                Article 87(1) or, in the further alternative, Article 87(3)(b)
—     by failing to place the applicant in a third category,                    or (c) of the EC Treaty, as expounded in the application;
      behind both Hoffmann-La Roche and BASF, in setting
      the starting point for the amount of the fine relating to
      the gravity of the infringement, or, alternatively and in           —     in the still further alternative, in the inconceivable event
      violation of the principle of equal treatment, in failing to              that the Court finds that the articles of Law No 461 of
      place the applicant in the second category with BASF;                     23 December 1998 and of Legislative Decree No 153 of
                                                                                17 May 1999, to which the contested decision relates,
                                                                                constitute a system of State aid which is incompatible
                                                                                with the common market, rule that the contested decision
—     by failing to treat the applicant’s less-than-full implemen-              of the Commission cannot have any retroactive effect;
      tation of the Vitamin B5 cartel as an attenuating circum-
      stance warranting a substantial reduction of the basic              subject to the reservation of all rights.
      amount of the fine;
                                                                          Pleas in law and main arguments
—     by failing to grant to the applicant total immunity or a
      very substantial reduction of 75 % to 100 % of the fine
      for the Vitamin B5 infringement pursuant to Section B
                                                                          The present action is directed against the Commission’s
      of the Leniency Note on the basis of the applicant’s
                                                                          decision of 11 December 2001 concerning the system of State
      cooperation during the procedure or, alternatively, a
                                                                          aid implemented by Italy in favour of banks (C/54/A/2000/EC
      lesser reduction of the fine pursuant to Section C or
                                                                          [ex NN 70/2000]). That system of aid results from the
      Section D of the Leniency Notice.
                                                                          application of Law No 461 of 23 December 1998 (the ‘Legge
                                                                          Ciampi’) and of Legislative Decree No 153 of 17 May 1999,
                                                                          which lay down certain fiscal measures in relation to mergers
                                                                          between banking institutions and the transfer of capital goods
                                                                          and equipment, as part of the composite scheme for the
                                                                          privatisation of the sector.
 ---pagebreak--- 20.4.2002             EN                    Official Journal of the European Communities                                      C 97/15
In support of its claims, the applicant association puts forward             laws. In that regard, it should be borne in mind that the
the following pleas and arguments:                                           ‘Legge Amato’ had been expressly considered by the
                                                                             defendant on various occasions in connection with
                                                                             Sicilian banks and the Banco di Napoli. In the latter
—    The fiscal measures in favour of mergers between banking                connection, the applicant pleads infringement of the
     institutions are not selective and do not constitute ad hoc             principles of the protection of legitimate expectations,
     aid. It should be borne in mind in that regard that the                 proportionality and legal certainty.
     introduction of fiscal incentives for mergers between
     banking institutions, as provided for under the Italian
     rules since 1990, the primary aim of which is to facilitate
     the privatisation of the sector, is solely intended to
     improve the functioning and flexibility of the tax rules
     with specific reference to the reality of the developments
     taking place in the Italian banking system.
                                                                       Action brought on 22 February 2002 by Groupe Danone
—    The fiscal measures provided for in favour of transfers of          against the Commission of the European Communities
     capital goods and equipment to institutions do not
     constitute aid, inasmuch as they do not involve any
     effective waiver by the State of the collection of tax                                     (Case T-38/02)
     revenues.
                                                                                                (2002/C 97/29)
—    Neither of those types of fiscal measures distorts or
     threatens to distort competition. No preliminary investi-                            (Language of the case: French)
     gation whatever has been carried out by the Commission
     in relation to this point. It must be emphasised in that
     regard that, compared with their competitors in the
     Community, Italian banks are additionally penalised by a          An action against the Commission of the European Communi-
     higher tax burden which cannot easily be reconciled with          ties was brought before the Court of First Instance of the
     the tax regimes applying in other Member States.                  European Communities on 22 February 2002 by Groupe
                                                                       Danone, established in Paris, represented by Antoine Winckler
                                                                       and Marc Waha, lawyers.
—    The fiscal measures adopted in relation to mergers
     between banking institutions do not affect trade between
     Member States.                                                    The applicant claims that the Court should:
                                                                       —     annul the decision in issue, pursuant to Article 230 of
—    No preliminary investigation has been carried out, and                  the EC Treaty;
     no statement of reasons has been given as to why this
     case does not concern de minimis aid.
                                                                       —     alternatively, reduce the fine imposed on the applicant by
                                                                             the decision, pursuant to Article 229 of the EC Treaty;
—    The defendant’s refusal to carry out any specific assess-
     ment of the Italian rules in question meant that it was not       —     order the Commission to pay the costs.
     able to gain a better understanding of the scope and
     content of those rules; this would probably have enabled
     it to ascertain that they complied with Article 87(1) and
     (3) EC and correctly to assess the appropriateness of
     their intended purpose. In actual fact, the Commission            Pleas in law and main arguments
     understood neither the content nor the scope of the
     Italian rules forming the subject-matter of the case.
                                                                       The decision contested in the present case concerns two
                                                                       agreements relating to the Belgian beer market. The first was
—    In the contested decision, the Commission, when asses-            concluded between Interbrew N.V. and Brouwerijen Alken-
     sing the possible incompatibility of certain provisions of        Maes N.V. It included, in particular, a general ‘non-aggression
     the law in question for the purposes of Article 87(1) EC,         pact’, an agreement regarding retail prices and a market-
     wholly failed to take into account the significance, dealt        sharing arrangement in the hotel/restaurant/café sector. The
     with at length in the procedure before the Commission,            Commission has not censured Alken-Maes for having partici-
     of the common validity and continuity of the ‘Legge               pated in that agreement, but only its majority shareholder at
     Amato’ (Law No 218 of 30 July 1990) and the ‘Legge                the time, namely the applicant, on account of its own
     Ciampi’ in the context of the privatisation of the Italian        participation in the agreement and the fact that it formed an
     banking system, which was initiated by the first of those         economic entity with Alken-Maes.