Orders nº T-216/01 of Court of First Instance of the European Communities, December 05, 2001

• Resolution Date: December 05, 2001
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-216/01

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

5 December 2001 (1) (Proceedings for interim measures - Decision refusing access to certain documents - Admissibility of the action in the main proceedings)

In Case T-216/01 R,

Reisebank AG, established in Frankfurt am Main (Germany), represented by M. Klusmann and F. Wiemer, lawyers,

applicant,

v

Commission of the European Communities, represented by S. Rating, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for interim measures in the form, first, of suspension of the operation of the Commission's decision of 14 August 2001 refusing the applicant access to certain documents relating to the abandonment of the procedure against other banks in Case COMP/E-1/37.919 - bank fees for currency exchange in the Euro zone and, second, of suspension of the procedure for applying Article 81 EC in the same case in so far as the applicant is concerned,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Legal background

1.

On 23 May 2001 the Commission adopted Decision 2001/462/EC, ECSC on the terms of reference of hearing officers in certain competition proceedings (OJ 2001 L 162, p. 21), which repealed Commission Decision 94/810/ECSC, EC of 12 December 1994 (OJ 1994 L 330, p. 67).

2.

The third and sixth recitals of that decision provide first that the conduct of administrative proceedings should be entrusted to an independent person, the hearing officer, with experience in competition matters and the integrity necessary to contribute to the objectivity, transparency and efficiency of those proceedings, and secondly that in order to ensure the independence of the hearing officer, he should be attached, for administrative purposes, to the member of the Commission with special responsibility for competition. Furthermore, transparency as regards his appointment, termination of appointment and transfer should be increased.

3.

According to Article 5 of Decision 2001/462, the role of the hearing officer is to ensure that the hearing is properly conducted and to contribute to the objectivity of the hearing itself and of any decision taken subsequently with regard to the administrative proceedings in competition matters. He is to seek to ensure in particular that, in the preparation of draft Commission decisions in connection with such proceedings, due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned, including the factual elements related to the gravity of any infringement.

4.

Article 8 of Decision 2001/462 provides:

‘1. Where a person, an undertaking or an association of persons or undertakings has received one or more of the letters [from the Commission] listed in Article 7(2) [including those accompanying a statement of objections] and has reason to believe that the Commission has in its possession documents which have not been disclosed to it and that those documents are necessary for the proper exercise of the right to be heard, access to those documents may be sought by means of a reasoned request.

2. The reasoned decision on any such request shall be communicated to the person, undertaking or association that made the request and to any other person, undertaking or association concerned by the procedure.’

5.

On 30 May 2001 the European Parliament and the Council adopted Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). Article 19 of that regulation states that it is to enter into force on the third day following that of its publication in the Official Journal of the European Communities and that it is to be applicable from 3 December 2001.

Facts and procedure

6.

At the beginning of 1999 the Commission initiated an investigation procedure against some 150 banks, including the applicant, established in seven Member States, that is to say Belgium, Germany, Ireland, the Netherlands, Austria, Portugal and Finland, because it suspected that the banks concerned had agreed among themselves to maintain the bank fees for exchanging the currencies of the euro zone at a certain level.

7.

On 3 August 2000 the Commission sent a statement of objections to the applicant as part of that investigation.

8.

On 27 November 2000 the applicant submitted its observations in this regard.

9.

The applicant's views were heard at a hearing in connection with that investigation on 1 and 2 February 2001.

10.

It is apparent from the Commission's press releases, dated respectively 11 April, 7 and 14 May 2001, that the Commission decided to terminate the infringement procedure opened against the Netherlands and Belgian and some German banks. The Commission took that decision after those banks had lowered their fees for exchanging currencies of the euro zone.

11.

By letters dated 16 May, 13 June and 25 July 2001 the applicant set out three commitment offers to the Commission, by which it undertook to reduce its fees for exchanging currencies of the euro zone. Those offers were all declined by the Commission.

12.

The Commission's press release of 31 July 2001 states that the Commission decided to terminate the infringement procedures which it had initiated against the Finnish, Irish, Belgian, Netherlands and Portuguese banks and some German banks.

13.

The applicant sent to the hearing officer a request for access to the documents indicating the conditions which made it possible to terminate the procedure against other banks involved in the investigation in question.

14.

By a first letter dated 14 August 2001, the hearing officer rejected that request for access to the said documents (hereinafter the ‘contested decision’). The refusal was justified as follows:

‘According to established case-law, consultation of the file in the course of competition proceedings before the Commission serves a specific function. It is intended to permit an undertaking accused of having infringed Community competition law to defend itself effectively against the objections made by the Commission. That condition is met only if the undertakings have access to all the documents contained in the procedure file, in other words the documents relating to the procedure with the exception of confidential documents and the administration's internal documents. It is in this way that “equality of arms” is established between the Commission and the defence.

In the present case, Reisebank AG and Deutsche Verkehrsbank AG have been allowed access to the documents of procedure COMP/E-1/37.919 and to other documents contained in parallel files but relevant to the “German banks” procedure. Account has therefore been taken of this right to mount an unrestricted defence against the objections made by the Commission.

The circumstances that led to the suspension of the procedure involving other banking establishments in other Member States are the subject of parallel but separate Commission documents, which in principle are not accessible to the German banks. Nor is it evident how the information requested could be of importance to the defence of your clients. In these circumstances, your request for additional access to the file must therefore be refused, in accordance with the case-law of the Court of First Instance in the Cement Cases.

Nor are we able to accede to your request regarding the documents on the suspension of the COMP/E-1/37.919 procedure opened against some German banks. The information relating to particular establishments, in so far as it has not been published by the Commission, is confidential and hence cannot be accessible to other parties in the procedure.

This decision has been adopted in accordance with Article 8 of the Decision [2001/462].’

15.

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