CELEX: C2002/109/122
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-56/02: Action brought on 28 February 2002 by Bayerische Hypo- und Vereinsbank AG against the Commission of the European Communities

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.
 ---pagebreak--- 4.5.2002               EN                    Official Journal of the European Communities                                     C 109/65
The applicant did not take part in the meeting on 15 October            Action brought on 1 March 2002 by Deutsche Ver-
1997. The employee of the applicant who was sent an                     kehrsbank AG against the Commission of the European
invitation to attend that meeting was not granted permission                                       Communities
by his superior to take part in it. An employee of the
Vereins- und Westbank, in which the applicant has a majority
shareholding, had been the only person attending on the                                           (Case T-60/02)
applicant’s behalf. The Vereins- und Westbank conducts itself
in the market quite independently of the applicant, and the                                     (2002/C 109/123)
links between the two banks from the standpoint of company
law cannot therefore constitute the basis for any presumption
concerning the attendance by an employee of that bank at the                              (Language of the case: German)
meeting complained of.
                                                                        An action against the Commission of the European Communi-
In assessing the amount of the fine, the Commission manifestly          ties was brought before the Court of First Instance of the
departed from its own guidelines and infringed the requirement          European Communities on 1 March 2002 by Deutsche
of equal treatment.                                                     Verkehrsbank AG, of Frankfurt am Main (Germany), represent-
                                                                        ed by M. Klusmann and F. Wiemer, lawyers.
Neither in the communication concerning the heads of
complaint nor in the context of the hearing before the official         The applicant claims that the Court should:
nominated to conduct the same was there any suggestion that
the applicant itself had taken part in the alleged agreements.          —     annul the contested decision in so far as it concerns the
The Commission should have indicated the change in its point                  applicant;
of view to the applicant prior to adopting its decision.
                                                                        —     alternatively, reduce the fine imposed on the applicant by
                                                                              the contested decision to a reasonable amount;
The applicant’s rights of defence were infringed, since the
applicant was not given full access to the file. In particular, it      —     order the defendant to pay the costs.
was not able to inspect the comments made by the other
parties involved or the files in the parallel procedures, despite
the fact that the applicant had well-founded reasons to suspect
that those files contained material which would have been               Pleas in law and main arguments
material to its defence.
                                                                        The claim is directed against Decision C(2001) 3693 of
The decision is lacking in an adequate statement of reasons,            11 December 2001, adopted in Case COMP/E-1/37.919
since, in respect of a series of points, it does not contain any        (ex 37 391) — Bank charges for currency exchange within the
considerations capable of being verified. In particular, no             Euro zone, by which the Commission found that the applicant
reasons were given for the attribution to the conduct of the            had participated in an agreement during the period from
representative of the Vereins- und Westbank of the failure to           1 January 1999 to 31 December 2001 (the period leading up
apply the rules concerning mitigating factors or for the                to the change-over to the euro) concerning the charging of a
deviation from the principle that the initiators of a cartel            percentage commission targeted at around 3 % as a fee for
should not enjoy the benefit of the non-imposition of a fine.           exchanging bank-notes in the participant currencies, and
                                                                        imposed on the applicant a fine of 14 million euros.
The conduct of the Commission in the course of the procedure            The applicant pleads as follows:
shows that it did not act with a view to punishing an
infringement of the rules on cartels but rather with a view to          It does not carry on foreign-exchange end transactions of the
lowering, for political reasons, the charges for exchanging             type concerned in this case; instead, it engages exclusively in
currencies, which it regarded as too high. Those banks which,           inter-bank trading, i.e. wholesale trading in currencies and
faced with that pressure, declared themselves willing to lower          foreign exchange, and therefore in cashless trading in foreign
the charges had been removed from the procedure, regardless             currencies.
of their role in the alleged infringement of the rules on cartels.
The Commission thus misused the provisions of competition
law in order to regulate prices, which it was not in its power          The Commission used evidence on which the applicant was
to do. This constitutes a misuse of discretionary powers.               not given a chance to comment at a hearing conducted in
                                                                        accordance with the law. The Commission refused to allow
                                                                        access to exonerating documents. It arbitrarily discriminated
                                                                        against the applicant in the context of the decision concerning
                                                                        an informal cessation of the procedure.