CELEX: C2002/274/59
Language: en
Date: 2002-11-09 00:00:00
Title: Case T-271/02: Action brought on 2 September 2002 by Österreichische Volksbanken-Aktiengesellschaft and Niederösterreichische Landesbank-Hypothekenbank AG against the Commission of the European Communities

9.11.2002              EN                      Official Journal of the European Communities                                       C 274/33
The applicant also argues that the Commission’s assertion that            The applicant claims that the Court should:
the below-cost selling complained of arose as a result of an
aggressive rebate policy and that there is thus no causal link            —     annul the decision of the Third Board of Appeal of
between it and the applicant’s public service obligations is not                26 June 2002 in the appeal procedure R 206/2002-3;
based on any evidence and is clearly inaccurate. Further, the
Commission has exceeded its powers in the area of services in             —     order the defendant to pay the costs.
the general economic interest, as, according to the case-law, it
has no authority to decide on the level of costs or the efficiency
of the postal service provider.
                                                                          Pleas in law and main arguments
The applicant submits that the Commission has misapplied                  Community trade mark           Word mark ‘bestpartner’ — appli-
Article 87 and infringed the case-law on findings regarding aid           applied for:                   cation No 2 268 134
to undertakings providing services in the general economic
interest. The Commission has furnished no evidence that the               Goods or services:             Services in Classes 36, 38 and
decision on cross-subsidisation in favour of the business client                                         42 (inter alia, insurance, Internet
parcel service can be attributed to State-run bodies of the                                              services and data processing for
Federal Republic of Germany. Moreover the Commission has                                                 others)
disregarded the fact that a purely internal offsetting of losses
within an undertaking does not constitute aid, but is merely              Decision before         the    Refusal of registration by the
covered by Article 82. It has also disregarded the fact that the          Board of Appeal:               examiner
financing of temporary below-cost selling was an economically
sound decision.                                                           Decision of the Board of       Dismissal of appeal
                                                                          Appeal:
Finally, the applicant submits that the Commission has                    Pleas in law:                  —     No grounds for refusal under
infringed the principle of the right to a fair hearing.                                                        Article 7(1)(b) and (c) of
                                                                                                               Regulation (EC) No 40/
                                                                                                               94 ( 1);
( 1) Commission Decision 2001/354/EC of 20 March 2001 relating                                           —     No need to keep free.
     to a proceeding under Article 82 of the EC Treaty (Case COMP/
     35.141 Deutsche Post AG) (OJ 2001 L 125, p. 27).
                                                                          (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                               Community trade mark (OJ 1994 L 11, p. 1).
Action brought on 28 August 2002 by MLP Finanz-                           Action brought on 2 September 2002 by Österreichische
dienstleistungen AG against the Office for Harmonisation                  Volksbanken-Aktiengesellschaft and Niederösterreichi-
      in the Internal Market (Trade Marks and Designs)                    sche Landesbank-Hypothekenbank AG against the Com-
                                                                                      mission of the European Communities
                         (Case T-270/02)                                                            (Case T-271/02)
                         (2002/C 274/58)                                                            (2002/C 274/59)
                                                                                            (Language of the Case: German)
                   (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
An action against the Office for Harmonisation in the Internal            European Communities on 2 September 2002 by Österreichi-
Market (Trade Marks and Designs) was brought before the                   sche Volksbanken-Aktiengesellschaft and Niederösterreichi-
Court of First Instance of the European Communities on                    sche Landesbank-Hypothekenbank AG, established in Vienna
28 August 2002 by MLP Finanzdienstleistungen AG, Heidel-                  and St. Pölten (Austria), represented by A. Ablasser, R. Roniger
berg (Germany), represented by W. Göpfert, lawyer.                        and R. Bierwagen, Lawyers.
 ---pagebreak--- C 274/34                 EN                    Official Journal of the European Communities                                      9.11.2002
The applicants claim that the Court should:                               In addition, the requirement under Article 81(1) EC that trade
                                                                          between States be affected is not met. The arrangements on
                                                                          the Austrian banking market were not capable of affecting
—     annul Article 1 of Commission Decision C(2002) 2091                 trade between States, and no fault can be attributed to the
      final of 11 June 2002 in Case COMP/36.571/D-1 —                     applicants with regard to that requirement since they could
      Austrian Banks, in so far as it relates to the applicants;          assume, in particular on the basis of the legal position in
                                                                          Austria at that time and the participation of State authorities,
                                                                          that their conduct was lawful under European cartel law too.
—     annul the first sentence of Article 2 of the decision in so         In determining the gravity of the infringement, the decision
      far as it relates to the applicants;                                fails to have regard to the fact that no binding arrangements
                                                                          in the sense of a price cartel were entered into, and not a single
—     annul Article 3 of the decision in so far as it relates to the      attenuating circumstance was taken into account.
      applicants or, in the alternative, reduce the fine imposed
      on the applicants in Article 3;
                                                                          The applicants plead that a further procedural error is consti-
—     in the alternative to the first claim, annul the decision           tuted by the decisions and measures of the Commission
      allowing the FPÖ (Austrian Freedom Party) as a complain-            allowing the FPÖ (Austrian Freedom Party) as a complainant
      ant and the transmission of the statement of objections;            and transmitting the statement of objections to it.
—     order the defendant to pay the costs.
Pleas in law and main arguments
                                                                          Action brought on 6 September 2002 by Krüger GmbH
                                                                          & Co KG against the Office for Harmonisation in the
The proceeding conducted by the defendant was directed                             Internal Market (Trade Marks and Designs)
against regular meetings of banks in Austria (‘Bankenrunden’).
By the contested decision the Commission found that the
applicants — together with six other Austrian banking insti-                                        (Case T-273/02)
tutions — had infringed Article 81 EC by participating in
agreements and concerted practices concerning prices, charges
and advertising measures, designed to restrict competition on                                       (2002/C 274/60)
the Austrian banking market from 1 January 1995 until
24 June 1998. The Commission imposed fines on the banks
concerned.
                                                                          (Language of the case to be determined pursuant to Article 131(2)
                                                                          of the Rules of Procedure — language in which the application was
                                                                                                   submitted: German)
The applicants contend that the contested decision is unlawful
first of all because the finding of the facts is partly incorrect,
partly incomplete and therefore defective. The decision thus
infringes essential procedural requirements within the meaning
of the second paragraph of Article 230 EC. In addition, the               An action against the Office for Harmonisation in the Internal
decision displays numerous defects in its reasoning and                   Market (Trade Marks and Designs) was brought before the
contradictions. This concerns the choice of the persons to                Court of First Instance of the European Communities on
whom the decision was addressed, as a whole, and the question             6 September 2002 by Krüger GmbH & Co KG, Bergisch
why the applicants were chosen on the basis of the criterion              Gladbach (Germany), represented by S. v. Petersdorff-Campen,
of the size of the institutions.                                          lawyer. Calpis Co Ltd, Tokyo, Japan was an additional party to
                                                                          the proceedings before the Board of Appeal.
The applicants further contend that the decision infringes the
principle of equal treatment since they were discriminated                The applicant claims that the Court should:
against when the persons to whom the decision was to be
addressed were decided upon. They took part in the various                —      annul the decision of the First Board of Appeal of 25 June
rounds of meetings far less frequently than other banks or not                   2002, reference No R 484/2000-1;
at all, nor are they comparable with other banks as regards
size. The Commission also infringed the principle of due
process and the applicants’ rights of defence.                            —      order the Office to pay the applicant’s costs.