# C_2012073EN.01002002.xml

| 10.3.2012 | EN | Official Journal of the European Union | C 73/20 |
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10.3.2012

EN

Official Journal of the European Union

C 73/20

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Appeal brought on 27 December 2011 by Alliance One International, Inc., formerly Dimon, Inc., against the judgment of the General Court (Fourth Chamber) delivered on 12 October 2011 in Case T-41/05: Alliance One International, Inc., formerly Dimon Inc., v European Commission

(Case C-679/11 P)

2012/C 73/36

Language of the case: English

Parties

Parties

Appellant: Alliance One International, Inc (formerly Dimon, Inc.) (represented by: M Odriozola, A Vide, Lawyers)

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 should:

| — | set aside the judgment of the General Court of 12 October 2011 in Case T-41/05 insofar as it rejects the pleas in law alleging manifest error of assessment in the application of Article 101(1) TFEU and Article 23(2) Regulation 1/2003 (1), failure to state sufficient reasons and breach of the principle of equal treatment for the finding that Alliance One International, Inc., formerly Dimon, Inc. was jointly and severally liable; |
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set aside the judgment of the General Court of 12 October 2011 in Case T-41/05 insofar as it rejects the pleas in law alleging manifest error of assessment in the application of Article 101(1) TFEU and Article 23(2) Regulation 1/2003 (1), failure to state sufficient reasons and breach of the principle of equal treatment for the finding that Alliance One International, Inc., formerly Dimon, Inc. was jointly and severally liable;

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| — | annul the decision of the Commission of 20 October 2004 in Case COMP/C.38.238/B.2 — Raw Tobacco Spain insofar as it relates to the Appellant and reduce the fine imposed on the appellants accordingly; and |
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annul the decision of the Commission of 20 October 2004 in Case COMP/C.38.238/B.2 — Raw Tobacco Spain insofar as it relates to the Appellant and reduce the fine imposed on the appellants accordingly; and

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | Alliance One International Inc. Formerly Dimon Inc., (the ‘Appellant’) respectfully request that: i) the judgment of the General Court of 12 October 2011 in Case T-41/05 be set aside by the Court of Justice insofar as it deems Alliance One International, Inc. (‘AOI’), formerly Dimon Inc., (‘Dimon’) jointly and severally liable for the infringement committed by Agroexpansión; that ii) the decision of the Commission of 20 October 2004 in Case COMP/C.38.238/B.2 — Raw Tobacco Spain be annulled insofar as it relates to the Appellant and that the fine imposed on the Appellant should be reduced accordingly; and iii) the Commission pays the costs. |
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1.

Alliance One International Inc. Formerly Dimon Inc., (the ‘Appellant’) respectfully request that: i) the judgment of the General Court of 12 October 2011 in Case T-41/05 be set aside by the Court of Justice insofar as it deems Alliance One International, Inc. (‘AOI’), formerly Dimon Inc., (‘Dimon’) jointly and severally liable for the infringement committed by Agroexpansión; that ii) the decision of the Commission of 20 October 2004 in Case COMP/C.38.238/B.2 — Raw Tobacco Spain be annulled insofar as it relates to the Appellant and that the fine imposed on the Appellant should be reduced accordingly; and iii) the Commission pays the costs.

| 2. | First the Appellant submits that the Commission and the General Court misapplied Article 101(1) of the TFEU Treaty and Article 23(2) of Regulation 1/2003 by holding AOI liable for the infringement committed by Agroexpansión. The Appellant submits that the General Court breached its rights of defence and Article 296 TFEU by clarifying in the judgment (and therefore ex post facto) the reasoning regarding the standard of proof applied in the Commission's decision. Consequently, the Appellant submits that the General Court erred in law in defining the method for attributing liability, in particular by adopting a dual basis method, which served to discriminate between companies on the strength of their case on appeal but otherwise failed to establish a standard. In addition, the General Court could not have ignored the fact that the Commission failed to support its views in the decision regarding the absence of a rebuttal. |
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2.

First the Appellant submits that the Commission and the General Court misapplied Article 101(1) of the TFEU Treaty and Article 23(2) of Regulation 1/2003 by holding AOI liable for the infringement committed by Agroexpansión. The Appellant submits that the General Court breached its rights of defence and Article 296 TFEU by clarifying in the judgment (and therefore ex post facto) the reasoning regarding the standard of proof applied in the Commission's decision. Consequently, the Appellant submits that the General Court erred in law in defining the method for attributing liability, in particular by adopting a dual basis method, which served to discriminate between companies on the strength of their case on appeal but otherwise failed to establish a standard. In addition, the General Court could not have ignored the fact that the Commission failed to support its views in the decision regarding the absence of a rebuttal.

| 3. | Second, the General Court's judgment deprives the Appellant of its rights derived under the general principles of EU law, the rights contained in the ECHR and the Charter of Fundamental Rights, now part of the Lisbon Treaty and therefore having the full weight of primary law. |
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3.

Second, the General Court's judgment deprives the Appellant of its rights derived under the general principles of EU law, the rights contained in the ECHR and the Charter of Fundamental Rights, now part of the Lisbon Treaty and therefore having the full weight of primary law.

| 4. | Third, although the General Court confirms that the Appellant could not have been held liable for the infringement on the part of Agroexpansión in respect of the period prior to 18 November 1997, it nevertheless fails to draw the necessary conclusions from the Commission's mistake and allows the Appellant to be discriminated against. First the Appellant submits that the starting amount of the fine should have been increased by only 30 %, otherwise, Dimon would be discriminated against vis-à-vis the other addressees of the decision. Second, the Appellant respectfully submits that the Commission erred in considering Dimon's turnover in 2003 for the purposes of justifying the increase of the starting amount of the fine on the basis of the fifth paragraph of Section 1A of the 1998 Guidelines. |
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4.

Third, although the General Court confirms that the Appellant could not have been held liable for the infringement on the part of Agroexpansión in respect of the period prior to 18 November 1997, it nevertheless fails to draw the necessary conclusions from the Commission's mistake and allows the Appellant to be discriminated against. First the Appellant submits that the starting amount of the fine should have been increased by only 30 %, otherwise, Dimon would be discriminated against vis-à-vis the other addressees of the decision. Second, the Appellant respectfully submits that the Commission erred in considering Dimon's turnover in 2003 for the purposes of justifying the increase of the starting amount of the fine on the basis of the fifth paragraph of Section 1A of the 1998 Guidelines.

| 5. | Finally, the Appellant respectfully submits that it was entitled to the legitimate expectation that it would benefit from a reduction of the fine pursuant to the third indent of Section B, Point 3 of the 1998 Guidelines on fines. In this regard, the General Court erred because: (i) it considered that the attenuating circumstance was not applicable in this case due to the nature of the infringement; and (ii) accepted the Commission's argument according to which the Appellant already benefited from the attenuating circumstance. |
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5.

Finally, the Appellant respectfully submits that it was entitled to the legitimate expectation that it would benefit from a reduction of the fine pursuant to the third indent of Section B, Point 3 of the 1998 Guidelines on fines. In this regard, the General Court erred because: (i) it considered that the attenuating circumstance was not applicable in this case due to the nature of the infringement; and (ii) accepted the Commission's argument according to which the Appellant already benefited from the attenuating circumstance.

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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 (Text with EEA relevance)

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OJ L 1, p. 1

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