Notice for the OJ

 

Action brought on 1 March 2002 by Commerzbank AG against the Commission of the European Communities

    (Case T-61/02)

    Language of the case: German

An action against the Commission of the European Communities 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.

The applicant claims that the Court should:

(annul the Commission's decision of 11 December 2001, addressed to the applicant and received by it on 20 December 2001, in Case COMP/E-1/37.919 (ex 37.391), concerning the imposition of a fine;

(order the Commission to pay the costs.

Pleas in law and main arguments:

The Commission infringed the applicant's rights of defence. It afforded the applicant no opportunity to learn of the criteria according to which it discontinued certain parallel procedures. The Commission did not insist on reductions in charges in every case, and treated various banks differently as regards the amount of the reductions in charges. It should have told the applicant which non-discriminatory criteria it was applying in deciding whether to continue or to discontinue the procedure. Moreover, the Commission's decision contained new incriminating evidence compared to the points raised in the heads of claim served, and the applicant was not given a chance to comment on that new evidence. Lastly, the applicant was refused access to the files in the parallel procedures. The Commission attached greater importance to the rapid imposition of a fine for political reasons than to a fair hearing.

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 the central banks and sometimes by representatives of the 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 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 Commission, especially the internal memorandum of an employee of the Netherlands GWK Bank N.V., is inappropriate. The Commission's decision shows a lack of technical knowledge 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 facts in a one-sided way which is detrimental to the applicant.

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