Notice for the OJ

 

Action brought on 2 September 2002 by Erste Bank der österreichischen Sparkassen AG against the Commission of the European Communities

    (Case T-264/02)

    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 2 September 2002 by Erste Bank der österreichischen Sparkassen AG, established in Vienna, represented by W. Kirchhoff, F. Montag and G. Bauer, Lawyers.

The applicant claims that the Court should:

(annul Commission Decision C(2002)2091 final of 11 June 2002 in Case COMP/36.571/D-1 ( Austrian Banks, in so far as it relates to the applicant;

(in the alternative, set aside the fine imposed on the applicant;

(in the alternative, reduce the amount of the fine imposed on the applicant in the contested decision to an appropriate sum;

(in any event order the defendant to pay the costs.

Pleas in law and main arguments

The proceeding conducted by the defendant was directed against regular meetings of banks in Austria ("Bankenrunden"). By the contested decision the Commission found that the applicant ( together with seven other Austrian banking institutions ( had infringed Article 81 EC by participating in agreements and concerted practices concerning prices, charges and advertising measures, designed to restrict competition on the Austrian banking market from 1 January 1995 until 24 June 1998. The Commission imposed fines on the banks concerned.

The applicant submits that the decision has numerous defects. First, it infringes in many respects the right to a fair hearing. The applicant was not given the opportunity before the decision was adopted to state its views on the allegation that all independent savings banks were to be attributed to it as the leading institution. Nor is the statement of reasons for the decision adequate. In particular, the reasons for attributing the savings banks to the applicant, and those for the calculation of the applicant's market share, on the basis of which the amount of the fine was determined, do not satisfy the requirements of the case-law on the duty to state reasons.

The applicant further submits that the decision infringes the principle of good administration. The unlawful attribution of the conduct of all independent savings banks to the applicant/GiroCredit as the leading institution in the savings bank sector is a particularly serious breach. The legal preconditions for such attribution are manifestly not present.

The applicant contends in addition that the infringement in the present case did not appreciably affect trade between Member States. Many of the Bankenrunden had no international connection. Others could at any rate have no appreciable effect on trade between States. Even if the infringement were to have affected trade between States appreciably, there is in any event no fault on the applicant's part. In accordance with Article 15(2) of Regulation No 17/62 it was therefore not possible to fine the applicant.

Furthermore, in determining the applicant's fine the defendant made two errors of calculation with serious consequences. Also, the seriousness of the infringement and the existence of mitigating grounds are misappraised in the decision and no regard was had to the applicant's extensive cooperation. Finally, the decision violates the prohibition on retroactivity in Article 7 of the European Convention on Human Rights, because the fine was determined on the basis of a framework for fines which, as a result of two amendments to the defendant's decision-making practice, was not introduced until the infringement had come to an end.

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