# C_2012089EN.01000501.xml

| 24.3.2012 | EN | Official Journal of the European Union | C 89/5 |
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24.3.2012

EN

Official Journal of the European Union

C 89/5

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Appeal brought on 27 December 2011 by Aliance One International, Inc. formerly Agroexpansión, S.A., against the judgment of the General Court (Fourth Chamber) delivered on 12 October 2011 in Case T-38/05 Agroexpansión S.A. v European Commission

(Case C-668/11 P)

2012/C 89/07

Language of the case: Spanish

Parties

Parties

Appellant: Aliance One International, Inc, formerly Agroexpansión, S.A. (represented by: M. Odriozola and A. Vide, Abogados)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court of Justice should:

| — | set aside the judgment of the General Court in Case T-38/05 Agroexpansión, S.A. v Commission; |
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set aside the judgment of the General Court in Case T-38/05 Agroexpansión, S.A. v Commission;

Agroexpansión

S.A.

Commission

| — | reduce the amount of the fine imposed on it; |
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reduce the amount of the fine imposed on it;

| — | order the Commission to pay the costs incurred at both instances. |
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order the Commission to pay the costs incurred at both instances.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | The appellant considers that the Commission and the General Court misapplied Article 101(1) TFEU and Article 23(2) of Regulation 1/2003 (1) in finding Dimon joint and severally liable for the infringement committed by Agroexpansión. The appellant submits that the General Court infringed its rights of defence and Article 296 TFEU in establishing in its judgment (and thus ex post facto) the standard of proof applied by the Commission in its Decision. (2) Consequently, in treating other undertakings more favourably, the General Court infringed the principle of equal treatment laid down in Article 20 of the Charter of Fundamental Rights. Moreover, the General Court could not ignore the fact that, in its decision, the Commission did not adequately reason its arguments relating to the rebuttal of the presumption. |
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1.

The appellant considers that the Commission and the General Court misapplied Article 101(1) TFEU and Article 23(2) of Regulation 1/2003 (1) in finding Dimon joint and severally liable for the infringement committed by Agroexpansión. The appellant submits that the General Court infringed its rights of defence and Article 296 TFEU in establishing in its judgment (and thus ex post facto) the standard of proof applied by the Commission in its Decision. (2) Consequently, in treating other undertakings more favourably, the General Court infringed the principle of equal treatment laid down in Article 20 of the Charter of Fundamental Rights. Moreover, the General Court could not ignore the fact that, in its decision, the Commission did not adequately reason its arguments relating to the rebuttal of the presumption.

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ex post facto

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| 2. | The appellant considers that there was an error in the application of the Guidelines on the method of setting fines, and of the principle that penalties are to be tailored to the individual and of the principle of proportionality in relation to the period during which Agroexpansión did not form part of the Dimon group. The appellant considers that, for the purposes of determining the amount of the fine imposed on Agroexpansión for the period prior to its joining the Dimon group, it was not appropriate to apply any adjustment factor to the basic amount of the fine imposed on Agroexpansión since, during that period, Agroexpansión was not a subsidiary of any multinational group. In the alternative, if the Court of Justice considers that a single fine should be imposed, the appellant submits that such a fine should be reduced in order to eliminate the disproportionate adjustment factor applied. |
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2.

The appellant considers that there was an error in the application of the Guidelines on the method of setting fines, and of the principle that penalties are to be tailored to the individual and of the principle of proportionality in relation to the period during which Agroexpansión did not form part of the Dimon group. The appellant considers that, for the purposes of determining the amount of the fine imposed on Agroexpansión for the period prior to its joining the Dimon group, it was not appropriate to apply any adjustment factor to the basic amount of the fine imposed on Agroexpansión since, during that period, Agroexpansión was not a subsidiary of any multinational group. In the alternative, if the Court of Justice considers that a single fine should be imposed, the appellant submits that such a fine should be reduced in order to eliminate the disproportionate adjustment factor applied.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

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(2)  Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81 [EC] (Case COMP/C.38.238.B.2 — Raw tobacco — Spain).

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