CELEX: C2002/097/30
Language: en
Date: 2002-04-20 00:00:00
Title: Case T-43/02: Action brought on 25 February 2002 by Jungbunzlauer AG against the Commission of the European Communities

C 97/16                 EN                    Official Journal of the European Communities                                     20.4.2002
The defendant has also established the existence of a second             Action brought on 25 February 2002 by Jungbunzlauer
agreement, concerning beers sold under distributors’ brand               AG against the Commission of the European Communi-
names, concluded between Interbrew, Alken-Maes, Haacht and                                               ties
Martens, involving market-sharing and collusion in respect of
price-fixing. As regards that second agreement, the contested
decision does not censure the applicant in relation to the acts                                    (Case T-43/02)
of its former subsidiary, since it was not involved therein.
                                                                                                   (2002/C 97/30)
The applicant does not challenge the basic findings underlying
the contested decision. In support of its claims, it puts forward                           (Language of the case: German)
the following pleas in law and main arguments:
—     The Commission has infringed the principles of propor-
      tionality and equal treatment by taking the sum of                 An action against the Commission of the European Communi-
      25 million EUR as the ‘basic amount’ of the fine.                  ties was brought before the Court of First Instance of the
                                                                         European Communities on 25 February 2002 by Jungbunzlau-
                                                                         er AG, of Basle (Switzerland), represented by R. Bechtold,
—     The decision is factually unfounded, inasmuch as it finds          M. Karl and U. Soltész, lawyers.
      that the infringement lasted from 28 January 1993 to
      28 January 1998. In so finding, the Commission applied
      too high a multiplier to the amount of the fine.
                                                                         The applicant claims that the Court should:
—     The decision is factually unfounded in so far as it finds          —     annul the Commission’s decision of 5 December 2001
      that the applicant forced Interbrew to participate in the                (Case COMP/E-1/36.604 — Citric acid);
      agreement.
                                                                         —     alternatively, reduce the fine imposed in Article 3 of the
—     The decision is unfounded in law and in fact, in that there              decision;
      was no justification for increasing the fine on account of
      the fact that the applicant had already been found on two
      earlier occasions to have acted unlawfully. In that regard,        —     order the Commission to pay the costs of the proceedings.
      the Commission has infringed the principles of ‘nulla
      poena sine lege’, ‘ne bis in idem’ and legal certainty.
—     The decision is unfounded in law and in fact, inasmuch
                                                                         Pleas in law and main arguments
      as it reduces the fine by only 10 % on account of
      mitigating circumstances. It omitted to take into account
      the influence of the price control system and the tradition
      of concerted practices in the brewing sector, the fact that        The subject-matter of the dispute is the Commission’s decision
      the agreement had no effect on the market, the dependent           of 5 December 2001 (Case COMP/E-1/36.604 — Citric acid)
      situation of Alken-Maes by comparison with the domi-               in which the Commission found that the applicant and
      nant position occupied by Interbrew, the financial difficul-       four other undertakings had infringed Article 81(1) EC and
      ties facing Alken-Maes and the crisis situation prevailing         Article 53 of the EEA Agreement, in that they had participated
      during the period in question.                                     in a continuing agreement and/or a concerted practice in the
                                                                         citric acid sector. A fine of EUR 17,64 million was imposed on
                                                                         the applicant.
—     The decision is unfounded in law and in fact, inasmuch
      as it finds that the applicant contested the facts alleged
      against it. In that respect, the applicant should have been
      entitled to a substantial reduction in the fine.                   First, the applicant claims that the decision was directed to the
                                                                         wrong addressee. The decision should, in fact, have been
                                                                         directed to Jungbunzlauer Ladenburg GesmbH, an associate
                                                                         company of the applicant.
The applicant company also pleads violation of its rights of
defence and failure on the part of the Commission to comply
with its obligation to provide a statement of reasons.
                                                                         The applicant claims that the Commission did not adequately
                                                                         establish the actual effects on the market and that it refused to
                                                                         take into account, in the applicant’s favour, the fact that
                                                                         Jungbunzlauer Gesmbh played a special role in the cartel.
 ---pagebreak--- 20.4.2002              EN                    Official Journal of the European Communities                                          C 97/17
In addition, the applicant claims that the Commission, when             The applicant claims that the Court should:
fixing the amount of the fine, failed to take account of the size
of the undertakings concerned, and that it imposed two
separate fines on the applicant in the ‘citric acid’ and ‘sodium        —     annul the contested decision C(2001) 3693 final of the
gluconate’ cases (1), although both products belong to the same               Commission of the European Communities of 11 Decem-
family of products and it would have been proper to deal with                 ber 2001 in Case COMP/E-1/37.919 (ex 37.391) — Bank
them together. The applicant submits that the fine imposed on                 charges for currency exchange within the Euro zone —
the applicant is highly excessive and that the Commission                     Germany, in so far as it imposes a fine on the applicant;
applied the 10 % maximum prescribed by Article 15(2) of
Regulation 17/62 in different ways in cases based on similar
                                                                        —     alternatively, cancel or, in the further alternative, reduce
facts, which severely prejudiced the applicant’s position. That
                                                                              the fine imposed on the applicant;
course of action violated the principle of proportionality, the
Commission’s guidelines, and its own practice. Moreover, that
method results in discrimination against small and medium-              —     order the Commission to pay the costs.
sized undertakings, and therefore violates the general principle
of equal treatment and the principle of the individual assess-
ment of fines.
                                                                        Pleas in law and main arguments
The applicant further claims that, when calculating the fine,
the Commission refused to take into account the fact that fines
had already been imposed in the USA and Canada in respect
of the same state of affairs, which amounts to an error of              The applicant is contesting the defendant’s decision C(2001)
assessment.                                                             3693 of 11 December 2001, adopted in a procedure under
                                                                        Article 81 of the EC Treaty concerning Case COMP/E-1/37.919
                                                                        (ex 37.391) — Bank charges for currency exchange within the
Finally, the applicant submits that its right to be heard in            Euro zone — Germany.
accordance with the law has been violated, since the Com-
mission did not give it access to the entire investigation file. In
addition, due to the protracted length of the procedure, the
lawful growth of the undertaking had a detrimental effect on            The contested decision of the defendant of 11 December 2001,
the applicant by increasing the potential range of the fine.            which was notified in Hamburg, Germany, on 19 December
Moreover, as a result of the slow conduct of the procedure, the         2001, is unlawful.
applicant was subject to the new, significantly harsher, practice
of the Commission in the imposition of fines.
                                                                        It constitutes an infringement of the EC Treaty and of the
(1) See Commission Decision C(2001) 2931 final of 2 October 2001        rules of law relating to its application (second paragraph of
    which is being contested by the applicant in Case T-312/01          Article 230 of the EC Treaty), and should therefore be annulled.
    Jungbunzlauer v Commission (not yet published).                     The defendant bases its decision on an incorrect view of the
                                                                        facts. The applicant participated only by chance in the
                                                                        decisive foreign exchange dealers’ meeting which took place
                                                                        on 15 October 1997. That meeting did not fulfil the criteria
                                                                        for an agreement in restraint of competition within the
                                                                        meaning of Article 81 of the EC Treaty.
Action brought on 28 February 2002 by Vereins- und
Westbank AG against the Commission of the European                      The defendant’s contrary findings were based on an insufficient
                           Communities                                  and prejudiced ascertainment of the facts, and on a grossly
                                                                        erroneous assessment of the evidence.
                          (Case T-54/02)
                          (2002/C 97/31)                                The administrative procedure did not correspond to the
                                                                        requirements of Community law, inasmuch as the applicant’s
                                                                        rights of defence, its right to a fair hearing and its right to
                  (Language of the case: German)                        inspect the file were consistently infringed.
An action against the Commission of the European Communi-               Moreover, the decision was reached in a manner which
ties was brought before the Court of First Instance of the              infringed essential procedural requirements within the mea-
European Communities on 28 February 2002 by Vereins- und                ning of the second paragraph of Article 230 of the EC Treaty;
Westbank AG, of Hamburg, represented by Josef Lothar                    in particular, the defendant failed to give a sufficient statement
Schulte, Michael Ewen and Alexandra Neus, lawyers.                      of reasons for the decision.