Notice for the OJ

 

Action brought on 28 February 2002 by Bayerische Hypo- und Vereinsbank AG against the Commission of the European Communities

    (Case T-56/02)

    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 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:

(annul the Commission's decision C(2001) 3693 final of 11 December 2001 in Case COMP/E-1/37.919 (ex 37.391) ( Bank charges for currency exchange within the Euro zone ( Germany, in so far as it concerns the applicant;

(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 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 course of that meeting, the discussions concerned technical aspects of inter-bank trading in foreign currencies and structuring possibilities regarding pricing in retail foreign exchange trading. The meeting did not involve the conclusion of any anti-competitive agreement.

The applicant did not take part in the meeting on 15 October 1997. The employee of the applicant who was sent an invitation to attend that meeting was not granted permission 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 applicant's behalf. The Vereins- und Westbank conducts itself in the market quite independently of the applicant, and the 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 meeting complained of.

In assessing the amount of the fine, the Commission manifestly departed from its own guidelines and infringed the requirement of equal treatment.

Neither in the communication concerning the heads of complaint nor in the context of the hearing before the official nominated to conduct the same was there any suggestion that the applicant itself had taken part in the alleged agreements. The Commission should have indicated the change in its point of view to the applicant prior to adopting its decision.

The applicant's rights of defence were infringed, since the applicant was not given full access to the file. In particular, it 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 material to its defence.

The decision is lacking in an adequate statement of reasons, since, in respect of a series of points, it does not contain any considerations capable of being verified. In particular, no reasons were given for the attribution to the conduct of the representative of the Vereins- und Westbank of the failure to apply the rules concerning mitigating factors or for the deviation from the principle that the initiators of a cartel should not enjoy the benefit of the non-imposition of a fine.

The conduct of the Commission in the course of the procedure shows that it did not act with a view to punishing an infringement of the rules on cartels but rather with a view to lowering, for political reasons, the charges for exchanging currencies, which it regarded as too high. Those banks which, faced with that pressure, declared themselves willing to lower the charges had been removed from the procedure, regardless 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 to do. This constitutes a misuse of discretionary powers.

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