CELEX: C2002/109/124
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-61/02: Action brought on 1 March 2002 by Commerzbank AG against the Commission of the European Communities

C 109/66               EN                    Official Journal of the European Communities                                         4.5.2002
The decision constitutes a misuse of discretionary powers,              The applicant claims that the Court should:
inasmuch as the Commission pursued extra-legal political
objectives, namely the making of a gesture to the public in
connection with the introduction of the euro. For as long as            —     annul the Commission’s decision of 11 December 2001,
applications made in the current administrative proceedings in                addressed to the applicant and received by it on
Case T-216/01 R had not been determined and remained                          20 December 2001, in Case COMP/E-1/37.919
pending, the adoption of a definitive decision was not permiss-               (ex 37.391), concerning the imposition of a fine;
ible.
It has not been shown that there has been any tangible adverse          —     order the Commission to pay the costs.
effect on trade between Member States.
The applicant participated neither in an agreement on the type
of charges to be made nor in any agreement on the amount of
a target price. The commission system could not have been               Pleas in law and main arguments
the subject of any concerted agreement, if only because, prior
to the entry into force of Regulation No 1103/97, there had
been no legally permissible alternative to it. The evidence relied
on by the defendant is unproductive and self-contradictory.             The Commission infringed the applicant’s rights of defence. It
The last piece of evidence produced by the defendant dates              afforded the applicant no opportunity to learn of the criteria
from 15 October 1997, i.e. some four and a half years before            according to which it discontinued certain parallel procedures.
the conclusion of the alleged agreement. Since then, there has          The Commission did not insist on reductions in charges in
been no contact between the banks concerned. A representa-              every case, and treated various banks differently as regards the
tive of the German Bundesbank had taken part in the                     amount of the reductions in charges. It should have told the
alleged cartel meeting, and the Bundesbank had been officially          applicant which non-discriminatory criteria it was applying in
informed of the results of that meeting.                                deciding whether to continue or to discontinue the procedure.
                                                                        Moreover, the Commission’s decision contained new incrimin-
As to the duration of the alleged agreement, the decision is in         ating evidence compared to the points raised in the heads of
itself contradictory, since the operative part of the decision is       claim served, and the applicant was not given a chance to
based on a different duration from that on which the                    comment on that new evidence. Lastly, the applicant was
calculation of the fine is based.                                       refused access to the files in the parallel procedures. The
                                                                        Commission attached greater importance to the rapid impo-
                                                                        sition of a fine for political reasons than to a fair hearing.
The basic amounts used for the calculation of the fine are
arbitrary and disproportionate.
                                                                        The applicant denies that any anti-competitive agreements
                                                                        were concluded at a meeting held on 15 October 1997
                                                                        between foreign exchange dealers. The subject-matter of that
                                                                        meeting was market trends and a discussion of matters which
                                                                        were generally known. That discussion formed part of a series
                                                                        of conferences held during the period from 1996 to 1998 for
                                                                        the purposes of preparing for the introduction of the euro,
                                                                        which were also frequently attended by representatives of
Action brought on 1 March 2002 by Commerzbank AG                        the central banks and sometimes by representatives of the
  against the Commission of the European Communities                    Commission. As is apparent from internal documents, the
                                                                        applicant had adopted an autonomous decision to charge a
                                                                        percentage fee even before the meeting of 15 October 1997
                          (Case T-61/02)                                took place. The Commission’s complaint is inconclusive, and
                                                                        the Commission does not describe the content of the alleged
                                                                        agreement. The evidence produced in that regard by the
                        (2002/C 109/124)
                                                                        Commission, especially the internal memorandum of an
                                                                        employee of the Netherlands GWK Bank N.V., is inappropriate.
                  (Language of the case: German)                        The Commission’s decision shows a lack of technical know-
                                                                        ledge and objectivity. The Commission failed to recognise the
                                                                        difference between dealing in foreign notes and coins and
                                                                        foreign exchange dealing, and did not take account of the legal
                                                                        situation prevailing at the time; moreover, it represents the
An action against the Commission of the European Communi-               facts in a one-sided way which is detrimental to the applicant.
ties was brought before the Court of First Instance of the
European Communities on 1 March 2002 by Commerzbank
AG, of Frankfurt am Main (Germany), represented by H. Satzky
and B. Maassen, lawyers.