62006TJ0012_EN
Parties
Grounds
Operative part
Parties
In Case T‑12/06,
Deltafina SpA, established in Orvieto (Italy), represented by R. Jacchia, A. Terranova, I. Van Bael, J.-F. Bellis and F. Di Gianni, lawyers,
applicant,
v
European Commission, represented initially by A. Whelan and F. Amato, subsequently by A. Whelan and V. Di Bucci, and finally by É. Gippini Fournier and L. Malferrari, acting as Agents,
defendant,
APPLICATION for annulment or, in the alternative, reduction of the fine imposed on Deltafina by Article 2 of Commission Decision C(2005) 4012 final of 20 October 2005 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.281/B.2 – Raw tobacco – Italy),
THE GENERAL COURT (Third Chamber),
composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,
Registrar: J. Palacio Gonzáles, Principal Administrator,
having regard to the written procedure and further to the hearing on 29 September 2010,
gives the following
Judgment
Grounds
Background to the dispute
1. The applicant, Deltafina SpA, is an Italian company whose main activities are the first processing of raw tobacco and the marketing of processed tobacco. It is wholly owned by Universal Corp., a company whose headquarters are in Richmond (United States).
I – Administrative procedure
2. On 3, 4 and 5 October 2001 the Commission of the European Communities carried out inspections pursuant to Article 14 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) at the headquarters of the Fédération européenne des transformateurs de tabac and the Maison des métiers du tabac in Brussels (Belgium). On the same day, by fax, the Fédération européenne des transformateurs de tabac informed all its members of the inspections, including the Associazione professionale trasformatori tabacchi italiani (APTI, the Professional Association of Italian Raw Tobacco Processors), whose members include the largest undertakings in the sector.
3. On 3, 4 and 5 October 2001 the Commission also carried out inspections at the headquarters of the three main Spanish raw tobacco processors and also of the two Spanish associations of raw tobacco processors and producers. On 16 January 2002 the three Spanish raw tobacco processors which had been the subject of the inspections and a company in the Universal group submitted a joint application for immunity to the Commission under the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the 1996 Leniency Notice’).
4. On 15 January 2002 the Commission sent a request for information to two Italian professional associations, namely APTI, which represents the raw tobacco processors, and the Unione italiana tabacco (Unitab, the Italian Tobacco Union), which represents raw tobacco producers. On 12 February 2002 APTI responded to the request for information. On the same date its Bureau met and the Commission’s request was discussed at that meeting.
5. On 19 February 2002 Deltafina submitted to the Commission an application for immunity from fines under Title A of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) and, in the alternative, an application for a reduction of the amount of the fine under Title B of that notice. The application for immunity related to a presumed cartel between raw tobacco processors on the Italian market.
6. On 28 February 2002 a telephone conversation took place between one of Universal’s lawyers and the official in the Commission’s Directorate-General for Competition who was handling the case.
7. On 6 March 2002 the Commission informed Deltafina that its application met the conditions set out at point 8(b) of the 2002 Leniency Notice and that it would grant Deltafina, at the end of the administrative procedure, immunity from fines for any infringement found following the investigation carried out by the Commission in connection with the evidence supplied, provided that Deltafina met all the conditions set out at point 11 of that notice.
8. On 14 March 2002 a meeting took place between the Commission’s services and the representatives of Deltafina and Universal in order to discuss the details of Deltafina’s cooperation with the Commission (‘the meeting of 14 March 2002’). At that meeting confidential treatment and Deltafina’s application for immunity were among the items discussed.
9. On 19, 21, 25 and 26 March 2002 Deltafina supplied the Commission with further information.
10. On 22 March 2002 a telephone conversation took place between Deltafina’s representatives and the Commission official handling the case about several questions relating to Deltafina’s cooperation with the Commission.
11. On 2 April 2002 Universal’s external counsel informed the external counsels of Standard Commercial Corp. (‘SCC’) and Dimon Inc., the parent companies of Transcatab SpA and Dimon Italia Srl respectively, two Italian companies involved in the first processing of raw tobacco, that Deltafina had applied to the Commission for immunity concerning the cartels between processors on the tobacco market in Italy.
12. On the morning of 4 April 2002 a meeting was held at APTI’s offices. At that meeting the chairman of Deltafina informed those present that Deltafina had begun to cooperate with the Commission within the meaning of the 2002 Leniency Notice by communicating to the Commission documents that compromised Deltafina.
13. On the afternoon of the same day, 4 April 2002, Dimon Italia and Transcatab, whose representatives were present at the APTI meeting referred to in the preceding paragraph, also submitted applications for favourable treatment under the 2002 Leniency Notice (at 16.15 hrs and 18.47 hrs respectively).
14. On 18 and 19 April 2002 the Commission carried out investigations pursuant to Article 14 of Regulation No 17 at the premises of Dimon Italia and Transcatab and also at the premises of Trestina Azienda Tabacchi SpA (‘Trestina’) and Romana Tabacchi SpA.
15. On 18 April and 17 May 2002 Deltafina again supplied further information to the Commission.
16. On 29 May and 11 July 2002 two other meetings took place between Deltafina’s representatives and the Commission’s services.
17. On 8 October 2002 the Commission informed Dimon Italia and Transcatab that, as they had been the first and second undertakings, respectively, to provide evidence of the infringement for the purposes of the 2002 Leniency Notice, it proposed to grant them, at the end of the administrative procedure, a reduction of 30 to 50% and 20 to 30%, respectively, of the amount of the fines that would otherwise have been imposed on them for any infringements found.
18. On 25 February 2004 the Commission sent a statement of objections to a number of undertakings or associations of undertakings, including Deltafina, Universal, Dimon Italia and Transcatab.
19. An oral hearing, in which Deltafina participated, took place on 22 June 2004. At that hearing a representative of Dimon Italia drew the Commission’s attention to two documents in the file – photocopies made during the inspections carried out by the Commission at Dimon Italia’s premises on 18 April 2002 and consisting of handwritten notes taken by Dimon Italia’s representatives – which summarised the statement made by Deltafina’s chairman at the APTI meeting of 4 April 2002.
20. On 21 December 2004 the Commission adopted an addendum to the statement of objections of 25 February 2004 (‘the addendum’), whereby it informed Deltafina and the other undertakings concerned that it intended not to grant Deltafina immunity from fines on the ground that it had breached the obligation to cooperate set out at point 11(a) of the 2002 Leniency Notice.
21. A hearing concerning the addendum was held on 1 March 2005. Following that hearing the Commission received fresh comments from Universal, Deltafina, Dimon and SCC.
II – Contested decision
22. After consulting the Advisory Committee on Restrictive Practices and Monopolies and in the light of the final report of the Hearing Officer, the Commission adopted on 20 October 2005 Decision C(2005) 4012 final relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.281/B.2 — Raw tobacco — Italy) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union
of 13 December 2006 (OJ 2006 L 353, p. 45).
23. The contested decision was notified to Deltafina on 10 November 2005.
24. The contested decision includes the following provisions:
‘Article 1
1. Deltafina [and] Universal … have infringed Article 81(1) [EC] during the periods indicated by way of agreements and/or concerted practices in the Italian raw tobacco sector.
The duration of the infringement was as follows:
(a) Deltafina [and] Universal …, from 29 September 1995 until 19 February 2002;
…
Article 2
For the infringements referred to in Article 1, the following fines are imposed:
(a) Deltafina and Universal, jointly and severally, EUR 30 000 000;
…’
25. The contested decision is based on the considerations set out below.
A – The infringement and the imputability of the unlawful conduct
26. In the contested decision, after the description of the relevant facts and the legal assessment of those facts, the Commission finds that it is established that Deltafina participated directly, with a number of other undertakings, in agreements and/or concerted practices prohibited by Article 81(1) EC. That finding is not challenged in the present case.
27. The Commission then examines the question of the imputability of the unlawful conduct of the undertakings which participated in those agreements and/or concerted practices and concludes that both Deltafina and its parent company, Universal, must be held liable for the infringements in question and be addressees of the contested decision.
B – The calculation of the amount of the fine
1. Determination of the basic amount of the fine
28. As regards the calculation of the fine to be imposed on Deltafina, the Commission observes, first of all, at recital 357 to the contested decision, that in fixing the amount of the fine it is to have regard to all relevant circumstances, and in particular to the gravity and duration of the infringement, in accordance with Article 23(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the competition rules laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).
29. Thus, the Commission examines, first of all, the gravity of the infringement. It recalls that, in order to assess the gravity of the infringement, it is necessary to take account of its nature, its actual impact on the market, where this could be measured, and the size of the relevant geographic market (recital 365 to the contested decision).
30. Next, the Commission states that the production of raw tobacco in Italy accounted for some 38% of the European Union (EU) in-quota production, which represented EUR 67.338 million in 2001, the last full year of the infringement (recital 366 to the contested decision).
31. As for the nature of the infringement, the Commission considers that it is very serious, since it concerned the fixing of the purchase prices of the varieties of raw tobacco in Italy and the sharing of purchased quantities (recital 367 to the contested decision).
32. At recital 368 to the contested decision, referring to the part of the decision relating to the analysis of the restriction of competition (recital 277 et seq.), the Commission asserts that buying cartels can distort producers’ willingness to generate output as well as limit competition among processors in downstream markets, and that that is particularly so in cases such as the present one, where the product affected by the cartel (raw tobacco) constitutes a substantial ‘input’ of the activities carried out by participants downstream (in the present case the first processing of tobacco and the sale of processed tobacco).
33. Having regard to those circumstances, the Commission concludes that the infringement committed by Deltafina must be qualified as very serious (recital 369 to the contested decision).
34. Next, the Commission asserts that, when fixing the amount of the fine, it is necessary to take account of the specific weight of each undertaking and of the likely effect of its unlawful behaviour. Thus, th e Commission considers that the fines must be set in consideration of the market position enjoyed by each party. In that regard, it considers that the starting amount of the fine imposed on Deltafina must be the highest as it was the biggest purchaser, with a market share of around 25% in 2001 (recitals  370 to 372 to the contested decision).
35. The Commission considers, however, that a starting amount merely reflecting the market position would not be a sufficient deterrent in respect of Deltafina, because, in spite of its relatively small turnover, it belonged to a multinational group of considerable economic and financial strength, representing the biggest tobacco merchants in the world and operating at different levels of business in the tobacco industry and in different geographic markets (recital 374 to the contested decision).
36. Consequently, in order to render the fine deterrent, the Commission applies to the starting amount a multiplier that takes account of the size of the undertakings concerned. For Deltafina, the multiplier applied by the Commission is 1.5. Thus, at recital 376 to the contested decision, the Commission fixes the starting amount of Deltafina’s fine, after the application of the multiplier, at EUR 37.5 million.
37. The Commission then increases that amount by 60% owing to the duration of the infringement (recital 377 to the contested decision), so that the basic amount of Deltafina’s fine is set at EUR 60 million (recital 379 to the contested decision).
2. Attenuating circumstance
38. The Commission then takes into account, as an attenuating circumstance in favour of Deltafina, its effective cooperation in the proceedings outside the scope of the 2002 Leniency Notice. It begins by observing that, for the reasons stated at paragraph 43 et seq. below, Deltafina no longer fulfils the conditions in order to benefit from total immunity or a reduction of its fine under the 2002 Leniency Notice (recital 385 to the contested decision).
39. The Commission then observes that, in cases where the 2002 Leniency Notice may be applicable, cooperation by undertakings which are parties to the proceeding should, as a matter of principle, be assessed within the framework of that notice. Furthermore, it is only in exceptional circumstances that cooperation by a party may be regarded, under the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’), as having an attenuating effect on the amount of the fine to be imposed where the 2002 Leniency Notice was in principle applicable (recitals 386 and 387 to the contested decision).
40. The Commission considers that that is the case in this instance for Deltafina for two reasons. First, Deltafina was the first undertaking to request the application of the 2002 Leniency Notice (only a few days after its adoption) and the first to which the Commission granted conditional immunity. The contested decision is also the first decision to address the consequences of the breach of the obligations concerning cooperation imposed on undertakings which have applied for immunity under point 11 of the 2002 Leniency Notice. Second, the Commission acknowledges that Deltafina made a substantial contribution to its investigation from the outset and continued to do so throughout the whole procedure, with the exception of the facts that justify the withholding of final immunity (recitals 388 to 390 to the contested decision).
41. For those reasons, the Commission looks favourably on Deltafina’s cooperation during the procedure. The Commission adds, last, that Deltafina never contested the facts forming the subject-matter of the contested decision. In the light of those considerations, and of Deltafina’s more general conduct during the procedure, the Commission concludes that the fine to be imposed on Deltafina should be reduced by 50% (recitals 391 to 398 to the contested decision).
42. In the light of that attenuating circumstance, the Commission sets the amount of the fine to be imposed jointly and severally on Deltafina and Universal at EUR 30 million.
C – Deltafina’s application for immunity
43. The Commission then sets out its reasons for concluding that Deltafina was not entitled to immunity from fines within the meaning of the 2002 Leniency Notice.
44. The Commission explains that, after examination of Deltafina’s application for immunity from fines, as Deltafina satisfied the conditions of point 8(b) of the 2002 Leniency Notice, the Commission granted it immunity conditional upon fulfilment of the cumulative conditions set out at point 11 of that notice, one of those conditions being compliance with the obligation to cooperate (point 11(a) of the 2002 Leniency Notice) (recitals 405 to 409 to the contested decision).
45. However, the Commission observes, at recital 410 to the contested decision, that at the hearing of 22 June 2004 it became apparent that Deltafina had divulged details of its leniency application at the APTI meeting referred to at paragraph 12 above, in which representatives of Dimon Italia, Transcatab and Trestina had also taken part, before the Commission had had an opportunity to carry out the investigations relating to the cartel in question. The Commission also observes that those facts had been the subject of the objections raised against Deltafina in the addendum (see paragraph 20 above).
46. Thus, the Commission first of all examined the relevant facts in detail and then concluded that Deltafina had not satisfied the conditions set out at point 11 of the 2002 Leniency Notice.
1. Relevant facts
47. The Commission states that at the meeting of 14 March 2002 the issue of the confidential nature of Deltafina’s application for immunity had been raised. At that meeting the Commission’s services had made clear that they proposed to carry out unannounced inspections concerning the cartel disclosed by Deltafina, that those inspections could not take place before 18 to 20 April 2002 and that it was therefore necessary to maintain confidentiality until that date in order not to alert competitors and not to endanger the effectiveness of the inspections (recital 412 to the contested decision).
48. The Commission also states that at that meeting Deltafina had explained to the Commission’s services that it would be difficult for it not to divulge its application for immunity until the date planned for the inspections, for a number of reasons, including, first, impending meetings with its competitors within APTI during which it would be difficult to maintain confidentiality; second, the need to make Deltafina’s middle management (around 15 individuals) aware of the application; and, third, the need to disclose the immunity application in the context of financial transactions involving Universal in the United States (recital 412 to the contested decision).
49. At recitals 413 to 415 to the contested decision the Commission sets out the content of an internal minute of the meeting of 14 March 2002 drawn up by its services and also of the notes taken by one of Universal’s representatives during that meeting.
50. The Commission states, moreover, at recital 416 to the contested decision, that at the meeting of 14 March 2002 its services had asked Deltafina to provide information in order to enable them to carry out on-the-spot investigations. At recital 417 to the contested decision the Commission refers to an internal memorandum of its services of 15 March 2002, which summarised the state of play of the case following the meeting held on the previous day. Recital 418 to the contested decision sets out the text of the minutes of a meeting of Deltafina’s board held on 1 March 2002, where it is stated that the board takes notice of the need for the unlawful behaviour connected with the cartel to be discontinued forthwith and requests that those in attendance observe the most rigorous confidentiality with respect to the application for immunity.
51. The Commission next refers to the statement made by Deltafina’s chairman at the APTI meeting of 4 April 2002, relying, first, on the content of the two documents mentioned by Dimon Italia’s lawyers at the hearing of 22 June 2004 and, second, on the content of a memorandum signed by Deltafina’s chairman himself and giving an account of the circumstances in which disclosure of the application for immunity had been made at that meeting (recitals 421 to 426 to the contested decision).
52. The Commission observes that on the very day of that disclosure Dimon Italia and Transcatab also requested application of the 2002 Leniency Notice and that the statements made by Deltafina’s chairman at the APTI meeting were not mentioned in those applications (recital 427 to the contested decision).
53. It is apparent from the contested decision, last, that another meeting between the Commission’s services and Deltafina took place on 29 May 2002, in the context of which neither the Commission nor Deltafina raised the issue of confidentiality and Deltafina did not state that it had disclosed its application for immunity to Dimon Italia and Transcatab at the APTI meeting of 4 April 2002 (recital 429).
2. Deltafina’s non-compliance with the condition set out at point 11(a) of the 2002 Leniency Notice
54. In the contested decision, the Commission asserts that the duty to cooperate laid down at point 11(a) of the 2002 Leniency Notice is an essential part of the agreement struck between it and the applicant when conditional immunity is granted. That duty must be interpreted in the light of the underlying rationale of its policy of granting immunity, namely the decisive contribution of the applicant for immunity to the initiation of an investigation or the discovery of the infringements committed by a cartel. In view of that rationale, the duty to cooperate is therefore not limited to the provision of evidence of the infringement but also assumes that the undertaking concerned will refrain from taking any step that could undermine the Commission’s ability to investigate and/or to find the infringement (recitals 431 and 432 to the contested decision).
55. At recital 433 to the contested decision the Commission observes that where, as in this instance, it has not yet carried out inspections and the industry is unaware of the impending inspections, any disclosure of the existence of a leniency application is likely to undermine wholly and irrevocably its ability to undertake effective investigations and to establish the infringement. The practical effect of the 2002 Leniency Notice requires that investigations are not jeopardised by the behaviour of the undertakings which seek favourable treatment. Those undertakings cannot therefore invoke a legitimate expectation that, in the absence of an express provision, confidentiality may not constitute a part of the condition set out at point 11(a) of the 2002 Leniency Notice. It follows, according to the Commission, that the deliberate and voluntary disclosure of such information by an applicant for immunity to its competitors must be regarded as a breach of the obligation to cooperate laid down at point 11(a) of the 2002 Leniency Notice.
56. The Commission further observes that the ‘inherent tension’ between that obligation and the obligation laid down at point 11(b) of the 2002 Leniency Notice, namely that the applicant must end its involvement in the infringement no later than the time of its immunity application, does not allow an applicant to disclose voluntarily to the other cartel members that it has applied for immunity. That situation is different from the situation in which the applicant is forced to take steps that may cause the other participants in the cartel to suspect that it has applied for immunity (recital 434 to the contested decision).
57. The Commission contends, moreover, that the specific circumstances of the present case indicate that Deltafina had understood that confidentiality was part of its obligation to cooperate. In the Commission’s submission, that is clear, in particular, from the resolution of Deltafina’s board of 1 March 2002, which imposed ‘the most rigorous confidentiality’ on that issue (see recital 418 to the contested decision and paragraph 50 above) and the actual words used by Deltafina’s chairman, when he stated that Deltafina’s decision to cooperate with the Commission ‘could only be communicated to the other undertakings with the utmost caution and on necessitated occasions’ (recital 440 to the contested decision).
58. In view of the relevant facts set out above and the scope of the condition laid down at point 11(a) of the 2002 Leniency Notice, the Commission concludes that Deltafina did not comply with that condition. Although Deltafina was aware that the Commission intended to carry out on-the-spot investigations between 18 and 20 April 2002, Deltafina’s chairman voluntarily informed its two main competitors of its application for immunity before those on-the-spot investigations had been carried out (recital 441 to the contested decision).
59. The Commission also observes, at recital 442 to the contested decision, that Deltafina’s behaviour was perfectly capable of undermining the result of those inspections and that Deltafina knew or at least ought to have known that that was so, notably because it had been specifically informed by the Commission of the forthcoming inspections and had been requested to preserve the confidentiality of its application for immunity, so that the outcome of those inspections would not be jeopardised. The Commission states that it is impossible to determine whether any harm was caused to its investigation and in any event that circumstance cannot be a determining factor for the purpose of establishing Deltafina’s liability (recital 443 to the contested decision).
60. In that regard, the Commission asserts that neither the discussions at the meeting of 14 March 2002 nor its subsequent conduct leave any doubt as to the fact that it never accepted that Deltafina had inevitably to disclose its request for the application of the 2002 Leniency Notice to its competitors and that the inspections could therefore no longer take place. On the contrary, the Commission maintains that it made clear that it was necessary to maintain confidentiality for another month in order to prepare for the inspections, for which it requested the necessary information and began preparations on the day after the meeting (recitals 446 and 447 to the contested decision).
61. The Commission asserts that it recognised both the practical difficulties that Deltafina would encounter in preserving the confidentiality of the application for immunity and the fact that the inspections would have become highly unlikely if Deltafina had been obliged to disclose its application for immunity to its competitors. However, the Commission maintains that in this instance Deltafina’s disclosure of its application for immunity at the APTI meeting was voluntary and spontaneous. Such conduct can never be justified in the context of an application for immunity (recitals 444, 448 and 450 to the contested decision).
62. It is apparent from recital 449 to the contested decision that the fact that Deltafina never informed the Commission of that disclosure indicates that it did not expect the Commission to approve of its conduct.
63. The Commission observes that during the administrative procedure Deltafina claimed that the disclosure was not voluntary but was the result of pressures from its competitors. However, the Commission contends that while the termination of participation in the infringement that is required following submission of an application for immunity may cause practical difficulties, Deltafina has not shown how its ‘legitimate commercial behaviour could be hampered’ by the termination of its participation in the unlawful practices and its refusal to meet its competitors. The Commission further states that pressures from the environment which do not represent serious and imminent threats cannot preclude the voluntary nature of the disclosure in question. As Deltafina’s chairman did not act under the effect of any compelling threat, the Commission concludes that the disclosure of the application for immunity during the APTI meeting was voluntary (recitals 451 to 453 to the contested decision).
64. Last, the Commission maintains that the fact that, following certain pressure brought to bear by the external counsels of the parent companies of Dimon Italia and Transcatab, Universal’s external counsel had confirmed, on 2 April 2002, that Deltafina had applied to the Commission for immunity cannot in itself justify or remedy the breach of Deltafina’s obligation to cooperate. The Commission states, first, that no link has been established between disclosure in the United States and the behaviour of Deltafina’s chairman; second, that any separate breach of the duty to cooperate with the Commission could not be used in order to justify a subsequent breach of the same duty ( ex iniuria non oritur ius ); and, third, that there was no proof of the pressures applied by SCC’s and Dimon’s external counsels apart from a voice-message which SCC’s external counsel had left in Universal’s legal counsel’s voice mail (recitals 454 to 459 to the contested decision).
65. The Commission then observes that, in any event, Universal did not inform the Commission promptly of the disclosure made by its external counsel (recital 459 to the contested decision).
66. At recital 460 to the contested decision the Commission concludes that, for all the reasons set out above, Deltafina breached its obligation to cooperate under point 11(a) of the 2002 Leniency Notice and that, consequently, immunity could not be granted to it and a fine must be imposed on it in respect of the infringements in question.
Procedure and forms of order sought
67. By application lodged at the Court Registry on 19 January 2006, Deltafina brought the present action.
68. By letter of 26 June 2006 Deltafina requested the Court to order the Commission to produce the full version of a document annexed to the defence. By communication of 22 November 2006 the Court Registry informed Deltafina that the President of the Third Chamber had decided to reject that request.
69. By letter of 16 September 2010 Deltafina informed the Court that it was withdrawing its sixth plea in law.
70. Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure.
71. The parties presented oral argument and answered the questions put by the Court at the hearing, which was held on 29 September 2010.
72. Deltafina claims that the Court should:
– annul the fine imposed on it by Article 2 of the contested decision;
– in the alternative, reduce the amount of that fine;
– order the Commission to pay the costs.
73. The Commission contends that the Court should:
– dismiss the action;
– order Deltafina to pay the costs.
Law
74. In support of its claims, Deltafina puts forward seven pleas in law.
75. The first four pleas are raised as principal pleas and seek annulment of the contested decision in that it orders Deltafina to pay a fine. The first plea alleges manifest error in that the withdrawal of immunity from fines is based on an incorrect factual premiss. The second plea alleges manifest error of assessment in that the Commission considered that Deltafina had breached the obligation to cooperate referred to at point 11(a) of the 2002 Leniency Notice. The third plea alleges manifest error of assessment in that the Commission withdrew immunity on the ground that Deltafina’s disclosure of its request for immunity had jeopardised the investigation. The fourth plea alleges breach of the principle of the protection of legitimate expectations, the principle of sound administration and the principle of proportionality.
76. The last three pleas are raised in the alternative and seek a reduction of the amount of the fine imposed on Deltafina. The fifth plea alleges breach of the principle of proportionality owing to the excessive nature of the starting amount of the fine. The sixth plea alleges that the Commission erred in considering that Universal was jointly liable for Deltafina’s conduct and therefore imposed an excessive fine on Deltafina. The seventh plea alleges incorrect assessment of the attenuating circumstances.
77. As Deltafina withdrew its sixth plea by letter of 16 September 2010, there is no need to examine it.
I – The principal pleas
78. It should be observed at the outset that Deltafina’s first three pleas all allege errors that render the contested decision illegal, in that the Commission refused to grant it immunity from fines owing to its breach of the obligation to cooperate laid down at point 11(a) of the 2002 Leniency Notice.
79. Since those pleas are closely connected, it is appropriate to consider them together.
A – The first three pleas, alleging manifest errors vitiating the failure to grant Deltafina final immunity
1. Arguments of the parties
80. In the context of its first plea, Deltafina claims that the withdrawal of immunity by the Commission is based on a manifest error of fact, in so far as it is based on an incorrect premiss, namely that the Italian raw tobacco processors were not aware of the investigation being carried out by the Commission.
81. In Deltafina’s submission, it follows from recital 433 to the contested decision that the Commission considered that the communication made by its chairman at the meeting of 4 April 2002 constituted a breach of the obligation to cooperate, because it was likely to undermine the effectiveness of the investigation. The Commission asserted at that recital that any leak of information concerning the existence of an application for immunity could encourage the other participants in the cartel to destroy or conceal evidence. However, an essential condition for the justification of such a position is that the sector in question is not already aware of the existence of the investigation and of the possibility of unannounced inspections. It is only in that case that a communication to third parties of the existence of an application for immunity might in theory undermine the Commission’s ability to conduct its investigation effectively. Deltafina therefore claims that the fundamental premiss of the withdrawal of immunity was necessarily that the sector in question was not aware of the Commission’s investigation.
82. In Deltafina’s submission, however, the Italian raw tobacco processors were aware of the existence of the Commission’s investigation, as a result of the inspections carried out by the Commission in Brussels and in Spain in October 2001 and of the requests for information which the Commission sent to APTI and Unitab on 15 January 2002. Several other items prove that the sector was aware of the investigation, such as a statement by Dimon contained in a form submitted to the United States financial markets supervisory authority, the fact that both Dimon Italia and Transcatab had already begun to prepare their applications for favourable treatment before the disclosure of 4 April 2002 and the fact that the Commission’s investigation had been discussed at an APTI meeting.
83. Furthermore, the lodging of an application for immunity does not automatically lead to unannounced inspections, which are not necessary where the applicant provides evidence which enables the Commission to establish an infringement. It is only in the situation referred to at point 8(a) of the 2002 Leniency Notice that unannounced inspections are essential in order to establish an infringement. Conversely, in the cases referred to at point 8(b) of that notice, inspections are not essential, in so far as all the necessary evidence would already have been supplied to the Commission by the undertaking which has applied for immunity. In the present case, as Deltafina’s application for immunity had, according to the Commission itself, satisfied the conditions of point 8(b) of the 2002 Leniency Notice, it was a case in which there was no need for the Commission to carry out unannounced inspections.
84. In Deltafina’s submission, in the light of all those circumstances, the Commission’s withdrawal of Deltafina’s immunity is therefore based on a manifest error of fact.
85. In the context of the second plea, alleging a manifest error of assessment in that the Commission considered that Deltafina had breached the obligation to cooperate referred to at point 11(a) of the 2002 Leniency Notice, Deltafina raises in substance three sets of complaints.
86. In the first place, Deltafina claims that, contrary to the Commission’s assertion, it meticulously complied with its obligation to cooperate, as referred to at point 11(a) of the 2002 Leniency Notice. It maintains that it advised the Commission at the meeting of 14 March 2002 that it was impossible not to disclose that it had submitted an application for immunity. It was impossible to keep that application secret for the following four reasons: a due diligence procedure under way for a financial transaction carried out by Universal on the United States market; a collective antitrust action undertaken in the United States against Universal, Dimon and SCC; the need to inform Deltafina’s middle management of the application for favourable treatment in order to ensure that the cartel’s activities were not pursued; and the imminence of the APTI meeting, when Deltafina would face the other raw tobacco processors for the first time since submitting its application for favourable treatment.
87. As the relevant market is characterised by its very small size, its transparency and the ease of personal contacts between the members of the cartel, Deltafina’s refusal to take part in normal discussions during the weeks following the submission of its application for immunity would have fatally aroused suspicions among the other members of the cartel. The danger that such conduct might give rise to the inference that Deltafina had applied for immunity was even greater in the light of the factual background to its application for immunity, in particular the inspections carried out in Spain and Brussels in October 2001, the submission of a collective application for immunity on the part of Dimon, Deltafina and Transcatab in respect of the unlawful agreements on the Spanish market, the fact that Deltafina’s conduct was typical of that of an undertaking that has applied for immunity, the pressure applied by its competitors, in particular by Dimon and SCC, in order to obtain confirmation that Deltafina had submitted an application for immunity. Deltafina claims that the contested decision takes no account of that factual background.
88. In addition, Deltafina maintains that it is the obligation to put an immediate end to the infringement that placed it in an impossible situation. If Deltafina had not been obliged to withdraw from the cartel after submitting its application for immunity, it would not have been obliged to make that communication at the APTI meeting, in order to put an end to a situation which had become unsustainable. The disclosure of the application for immunity is therefore the direct obligation, in the circumstances of the present case, of the obligation to cease the infringement. The Commission itself openly acknowledges the existence of ‘inherent tension’ between the obligations laid down at point 11(a) and (b) of the 2002 Leniency Notice (recital 434 to the contested decision), but omits to draw the inevitable conclusions. Deltafina raises the question whether point 11(a) of the 2002 Leniency Notice requires the applicant to lie in order to preserve the benefit of conditional immunity.
89. Furthermore, the leniency programmes in the United States and in many Member States, including the United Kingdom, Germany and France, allow the authorities to authorise applicants for immunity to continue to participate in the cartel, in order to maintain the surprise effect of the subsequent investigations. That possibility was introduced in the new 2006 Leniency Notice (Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’). It was only in the 2006 Leniency Notice, moreover, that an obligation to maintain confidentiality was expressly introduced.
90. In the second place, Deltafina maintains that the Commission was perfectly aware that, for practical reasons indicated at the meeting of 14 March 2002, Deltafina would reveal that it had submitted an application for immunity before the period 18 to 20 April 2002, from which period the Commission had stated that it would be in a position to carry out investigations. Deltafina asserts that it had informed the Commission of its concern that it would not be in a position to conceal the submission of its application for immunity for long, both on 28 February 2002, during a telephone conversation between Universal’s lawyer and the Commission official handling the case, and at the meeting of 14 March 2002. In addition, at the hearing of 22 June 2004 that official confirmed that he had ‘admitted’ that the disclosure must be made and that ‘confidentiality absolutely could not be agreed’.
91. The minutes of the meeting of 14 March 2002 taken by the Commission itself and the notes made by Universal’s lawyer and Deltafina’s lawyers present at the meeting show that the Commission’s officials had noted that Deltafina would be unable to avoid disclosing its application for immunity at the APTI meeting. The content of a telephone conversation of 22 March 2002 between Deltafina’s lawyers and the official handling the case confirms that the Commission was perfectly aware of Deltafina’s imminent disclosure of its cooperation.
92. Furthermore, it follows from the minutes of the meeting of 14 March 2002, taken by the Commission, that the official dealing with the case stated that, in the event of disclosure of the application for immunity, ‘Deltafina’s obligation to provide evidence to the Commission as quickly as possible [would be] even more pressing’. Deltafina complied with that obligation, as may be seen from recitals 389 to 397 to the contested decision. It therefore fulfilled its obligation to cooperate, in so far as it provided additional information, as the Commission’s services had requested during the meeting of 14 March 2002, thus accepting that heavier burden owing to the fact that it was impossible to keep its cooperation secret. In addition, Deltafina’s management were interviewed at length by the Commission on 29 May and 11 July 2002. Indeed, the major part of the evidence used in the contested decision came from Deltafina. Thus Deltafina complied in full with the Commission’s requests in the context of the ‘second-best option’ indicated by the Commission. In asking Deltafina to provide additional information, the Commission permitted the disclosure of the application for immunity not to jeopardise the investigation.
93. Deltafina maintains that the reason why it did not inform the Commission that it had disclosed its application for immunity was that, at the meeting of 14 March 2002, it had advised the Commission that it would be de facto impossible not to disclose that application on the occasion of the imminent APTI meeting. In Deltafina’s submission, the Commission officials dealing with the case were thus wholly aware that Deltafina would communicate that information at that meeting.
94. In addition, the two documents relating to the APTI meeting of 4 April 2002, on the basis of which Dimon Italia accused Deltafina of having breached its obligation to cooperate, had long formed part of the Commission’s file, in fact since the inspection carried out at Dimon Italia’s premises on 18 April 2002, and the Commission had found nothing in those documents with which to take issue.
95. In the third place, Deltafina claims that the Commission’s initial misunderstanding of its conduct influenced the findings made in the contested decision. The applicant maintains that, in the addendum, the Commission relied on the premiss that Deltafina, Dimon Italia and Transcatab had organised their conduct together in submitting applications for immunity. That assertion is based on points 57 and 60 of the addendum. In the latter point, the Commission described Deltafina’s conduct as ‘manifestly fraudulent’. However, the file shows that Deltafina, Dimon Italia and Transcatab prepared their respective applications for immunity autonomously and without any collusion as to the order in which they would be submitted. Deltafina’s conduct was thus consistent with the 2002 Leniency Notice.
96. Although the charges laid against Deltafina in the addendum were not repeated in the contested decision, traces of them are none the less to be found in that decision, notably at recital 441, where the Commission asserts that Deltafina disclosed its application ‘to its two main competitors’, and also in the title following recital 420 (‘Deltafina’s declarations to Dimon and Transcatab on 4 April 2002’).
97. In the context of the third plea, Deltafina claims that the contested decision is vitiated by a manifest error of assessment in that the Commission considered that the disclosure of its application for immunity undermined the investigation. In Deltafina’s submission, since it could not disclose to the other members of the cartel anything that they did not already know, such disclosure could not in any way undermine the Commission’s investigation, contrary to the Commission’s contention at recital 433 to the contested decision.
98. As regards specifically Dimon Italia and Transcatab, the sole effect of their having been informed by Universal’s counsel that Deltafina had submitted an application for immunity was to speed up the submission of their applications for favourable treatment, which they were in any event in the process of preparing. The cooperation of those two companies did not undermine the investigation. On the contrary, it reduced the Commission’s investigative effort. It is apparent from the file, moreover, that the Commission agreed with those two undertakings on the inspections carried out.
99. At recital 443 to the contested decision the Commission itself acknowledges that ‘[a]ssessing … whether any … damage to [its] investigation actually resulted would be impossible’. In addition, the fact, stated at the same recital, that the inspections carried out at the premises of Trestina had not been successful is not a consequence of the statement made by Deltafina’s chairman but results rather from the fact that the Commission itself, by its conduct, had alerted the entire Italian sector about the investigation beforehand. In addition, in the case of Romana Tabacchi, the Commission does not complain that the inspection was unsuccessful.
100. On the basis of all those considerations, Deltafina therefore requests the Court to annul the contested decision in that it orders Deltafina to pay a fine.
101. The Commission submits that Deltafina’s first three pleas should be rejected.
2. Findings of the Court
102. Before considering the various arguments raised by Deltafina, it is appropriate to recall the legal context of which they form part.
a) The leniency programme
103. In the context of its activity of pursuing infringements of Article 81 EC, the Commission put in place a leniency programme designed to give favourable treatment to undertakings which cooperate with it in investigations into secret cartels that affect the European Union.
104. That leniency programme, initially established by the 1996 Leniency Notice, was subsequently extended, in the 2002 Leniency Notice, which is applicable in the present case, and then in the 2006 Leniency Notice.
105. It is apparent from the 2002 Leniency Notice that the creation of a leniency programme is justified by the fact that it is in the interest of the European Union to grant favourable treatment to undertakings which cooperate with the Commission in its investigations into secret cartels relating to practices forming part of the most serious infringements of Article 81 EC, namely those aimed at fixing prices, production or sales quotas, sharing markets or restricting imports or exports.
106. Indeed, the Commission considers that the advantages to consumers and citizens in ensuring that secret cartels are detected and punished outweigh the interest in fining those undertakings that enable the Commission to detect and prohibit such practices (see point 4 of the 2002 Leniency Notice, reproduced at point 3 of the 2006 Leniency Notice).
107. The leniency programme thus pursues the objective of investigating, suppressing and deterring practices forming part of the most serious infringements of Article 81 EC. It is based on a kind of agreement between the Commission and the undertakings wh ich participated in the unlawful cartels and decide to cooperate with the Commission.
108. Those undertakings offer active and voluntary cooperation in the investigation by facilitating the Commission’s task of establishing and suppressing infringements of the competition rules (see, to that effect, Joined Cases T‑101/05 and T‑111/05 BASF and UCB
v Commission
[2007] ECR II‑4949, paragraph 90 and the case‑law cited). In return for that cooperation, they may obtain favourable treatment as regards the fines that would otherwise have been imposed on them, provided that they meet the conditions laid down in the Leniency Notice.
109. The leniency programme, as laid down in the 2002 Leniency Notice, envisages that the Commission will be able both to grant total immunity from fines to the first undertaking to cooperate in the investigation and to grant reductions in fines to undertakings that cooperate subsequently. In the former case, the undertaking in question will have the benefit of a complete exception to the principle of personal liability, under which, where an undertaking infringes the competition rules, it must answer for that infringement (see, to that effect, Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others
v Commission
[2009] ECR I‑8681, paragraph 77). In the other cases, the degree to which that exception will be applied will vary according to the chronological order in which the various requests to cooperate are submitted and the quality of the cooperation supplied.
110. In that regard, it must be made clear that it is inherent in the rationale of the leniency programme that only one of the members of a cartel can receive total immunity from fines, since the desired effect is to create a climate of uncertainty within cartels by encouraging their denunciation to the Commission. That uncertainty results precisely from the fact that the cartel participants know that only one of them can benefit from total immunity from a fine by denouncing the other participants in the infringement, thereby placing them in danger of receiving fines.
111. It follows from the 2002 Leniency Notice that, in the context of the leniency programme provided for by that notice, reproduced in substance in the 2006 Leniency Notice, the procedure for granting an undertaking total immunity from fines has three distinct stages.
112. In the first stage, the undertaking intending to cooperate with the Commission must approach the Commission and provide evidence of a presumed cartel affecting competition within the EU. That evidence must be such as to enable the Commission either to adopt a decision to carry out an investigation, in the case provided for at point 8(a) of the 2002 Leniency Notice, or to find an infringement of Article 81 EC, in the case provided for at point 8(b) of the 2002 Leniency Notice.
113. In the second stage, once it has received the application for immunity, the Commission assesses the evidence supplied in support of the application in order to ascertain whether the undertaking satisfies the conditions set out at point 8(a) or (b), as appropriate, of the 2002 Leniency Notice. If the undertaking is the first to satisfy those conditions, the Commission will grant it, in writing, conditional immunity from fines (points 15 and 16 of the 2002 Leniency Notice).
114. The grant of conditional immunity therefore means the creation of a special procedural status, during the administrative procedure, for the undertaking that satisfies the conditions set out at point 8 of the 2002 Leniency Notice which produces certain legal effects. However, that conditional immunity cannot in any way be treated as final immunity from fines, which is granted only at the end of the administrative procedure.
115. More particularly, the grant of conditional immunity, first, shows that the undertaking concerned was the first to meet the conditions set out at point 8(a) or (b) of the 2002 Leniency Notice, with the consequence that the Commission will not consider other applications for immunity from fines before it has taken a position on that undertaking’s application (point 18 of the 2002 Leniency Notice) and, second, provides assurance to that undertaking that the Commission will grant it immunity from fines if, at the end of the administrative procedure, it concludes that the undertaking has satisfied the conditions set out at point 11(a) to (c) of the 2002 Leniency Notice.
116. In that regard, it should be observed that, in the words of point 11(a) to (c) of the 2002 Leniency Notice:
‘In addition to the conditions set out in points 8(a) and 9 or in points 8(b) and 10, as appropriate, the following cumulative conditions must be met in any case to qualify for any immunity from a fine:
(a) the undertaking cooperates fully, on a continuous basis and expeditiously throughout the Commission’s administrative procedure and provides the Commission with all evidence that comes into its possession or is available to it relating to the suspected infringement. In particular, it remains at the Commission’s disposal to answer swiftly any request that may contribute to the establishment of the facts concerned;
(b) the undertaking ends its involvement in the suspected infringement no later than the time at which it submits evidence under points 8(a) or 8(b), as appropriate;
(c) the undertaking did not take steps to coerce other undertakings to participate in the infringement.’
117. Last, it is only in the third stage, at the end of the administrative procedure, when the Commission adopts the final decision, that it does or does not grant, in that decision, immunity from fines in the strict sense to the undertaking that was granted conditional immunity. It is at that precise time that the procedural status resulting from conditional immunity ceases to produce its effects. However, final immunity from fines is granted only if the undertaking in question has met, throughout the administrative procedure and until the time when the final decision is taken, the three cumulative conditions set out at point 11(a) to (c) of the 2002 Leniency Notice (point 19 of that notice).
118. It thus follows from the system as provided for in the 2002 Leniency Notice that before the final decision is taken the undertaking seeking immunity does not obtain immunity from fines in the strict sense but benefits only from a procedural status that may be transformed into immunity from fines at the end of the administrative procedure if the requisite conditions are met.
119. Yet in its pleadings and also at the hearing Deltafina referred on several occasions to an alleged decision by the Commission to ‘withdraw’ the conditional immunity which it had granted the applicant under the 2002 Leniency Notice.
120. In that regard it should be noted that in the present case Deltafina submitted its application for immunity or a reduction of its fine on 19 February 2002. Then, on 6 March 2002, the Commission, being of the view that the applicant met the conditions set out at point 8(b) of the 2002 Leniency Notice, granted it, in writing, the procedural status of conditional immunity. Last, at the end of the administrative procedure, after considering that Deltafina had not met the condition set out at point 11(a) of the 2002 Leniency Notice, the Commission decided not to grant it final immunity.
121. It follows that the contested decision did not in any way, as Deltafina claims, ‘withdraw’ conditional immunity, since the procedural status corresponding to conditional immunity ceased to produce its effects when the Commission adopted its final decision. In that decision, the Commission therefore did not ‘withdraw’ conditional immunity but decided not to grant Deltafina final immunity.
122. Since there was no ‘withdrawal’ of conditional immunity, Deltafina’s arguments must be interpreted as referring to the Commission’s decision not to grant it final immunity.
b) The scope of the obligation to cooperate
123. As Deltafina relies primarily on the unlawfulness of the contested decision in that the Commission decided not to grant it final immunity on the ground that it had breached the obligation to cooperate provided for at point 11(a) of the 2002 Leniency Notice, it is appropriate at the outset to clarify the scope of that obligation.
124. It follows from the actual wording of point 11(a) of the 2002 Leniency Notice (see paragraph 116 above), and in particular from the qualification that the undertaking concerned is to cooperate ‘fully, on a continuous basis and expeditiously’, that the obligation to cooperate borne by the undertaking which seeks immunity is a very general obligation whose outlines are not precisely defined, and the exact scope of which can be understood only in the context of which it forms part, namely in the framework of the leniency programme.
125. It follows from the considerations set out at paragraph 103 et seq. above that the grant of total immunity from fines constitutes an exception to the principle of the personal liability of the undertaking for the infringement of the competition rules which is justified by the aim of favouring the discovery, investigation and suppression and also the deterrence of the practices which form part of the most serious restrictions of competition. In those circumstances, it is therefore logical that, in exchange for the grant of total immunity from fines for its unlawful behaviour, the undertaking requesting immunity should be required to cooperate in the Commission’s investigation, in the words of the 2002 Leniency Notice, ‘fully, on a continuous basis and expeditiously’.
126. Indeed, it follows from the qualification ‘fully’ that the cooperation that the applicant for immunity must provide to the Commission in order to be granted immunity must be complete, absolute and unreserved. The qualifications ‘on a continuous basis’ and ‘expeditiously’ mean that that cooperation must last throughout the administrative procedure and that it must, as a matter of principle, be immediate.
127. It has consistently been held, moreover, that a reduction of the fine under the Leniency Notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate genuine cooperation on its part (see, with respect to the 1996 Leniency Notice, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others
v Commission
[2005] ECR I‑5425, paragraph 395; Case C‑301/04 P Commission
v SGL Carbon
[2006] ECR I‑5915, paragraph 68; and Erste Group Bank and Others
v Commission, paragraph 109 above, paragraph 281).
128. It is clear from the very concept of cooperation, as described in the 2002 Leniency Notice, that it is only where the conduct of the undertaking concerned reveals such a spirit of cooperation that a reduction may be granted on the basis of that notice (see, to that effect, with respect to the 1996 Leniency Notice, Dansk Rørindustri and Others
v Commission, paragraph 127 above, paragraph 396, and Erste Group Bank and Others
v Commission, paragraph 109 above, paragraph 282).
129. That consideration applies for even stronger reasons to the cooperation necessary to justify the grant of total immunity from fines, in so far as immunity constitutes treatment even more favourable than a mere reduction of the fine.
130. It follows from the foregoing that the concept of cooperation that is provided ‘fully, on a continuous basis and expeditiously’ and is capable of justifying the grant of total immunity from fines means genuine and full cooperation characterised by a real spirit of cooperation.
131. In that regard, it should be borne in mind that the Court of Justice has already held that where an undertaking provides a factual account that is incomplete or inaccurate its conduct cannot be regarded as reflecting a spirit of genuine cooperation within the meaning of the case-law (see, to that effect, Dansk Rørindustri and Others
v Commission, paragraph 127 above, paragraph 397; Commission
v SGL Carbon, paragraph 127 above, paragraph 69; and Erste Group Bank and Others
v Commission, paragraph 109 above, paragraph 283).
132. Likewise, an undertaking wishing to benefit from total immunity from fines on the basis of its cooperation in the investigation cannot fail to inform the Commission of relevant facts of which it is aware and which are capable of affecting, even potentially, the conduct of the administrative procedure and the effectiveness of the Commission’s investigation. Thus, genuine, full cooperation assumes that throughout the entire administrative procedure the undertaking concerned will inform the Commission promptly of any relevant circumstance capable of having an adverse effect of the smooth conduct of the investigation and also on the discovery and effective suppression of the cartel in question. That obligation to provide information is all the greater where such a circumstance concerns the relationship between that undertaking and the other members of the cartel and, a fortiori, if the possibility that the circumstance in question might arise has already been explicitly discussed by the Commission and that undertaking in the context of the administrative procedure.
133. It should also be observed that the assessment of the existence of conduct reflecting a spirit of genuine cooperation consistent with the requirements set out at paragraphs 124 to 132 above and, in particular, with the case-law referred to at paragraphs 127 and 128 above, can be made only by reference to the circumstances existing at the time when that conduct took place. Indeed, in view of the ‘continuous’ nature of the necessary cooperation, which must last throughout the procedure, any conduct contrary to the spirit of genuine cooperation is in itself sufficient to constitute a breach of the obligation to cooperate. Thus any circumstance which arises subsequent to that conduct is not capable of justifying such a breach.
134. It follows that an ex post facto
finding that the conduct in breach of the obligation to cooperate had no negative effects cannot be relied on in order to justify that conduct.
135. The relevant facts and the arguments raised by Deltafina must be assessed by the Court in the light of those considerations.
c) Deltafina’s breach of the obligation to cooperate
136. In the context of its first three pleas, Deltafina claims, in substance, that the Commission made a number of errors in not granting it immunity from fines at the end of the administrative procedure on the ground that it had breached the obligation to cooperate provided for at point 11(a) of the 2002 Leniency Notice.
137. In that regard, in the first place, it is established that on 4 April 2002, at an APTI meeting, Deltafina’s chairman made a spontaneous statement whereby he informed those present that Deltafina had applied to the Commission for immunity in the context of the leniency programme concerning the cartels between processors on the tobacco market in Italy and that Deltafina had thus begun to cooperate with the Commission. That communication is described in detail by Deltafina’s chairman himself in a written statement reproduced verbatim at recital 426 to the contested decision. It is clear from that statement that Deltafina’s chairman had himself decided to make that communication at the meeting held on 4 April 2002.
138. Deltafina does not dispute the fact, referred to, inter alia, at recital 449 to the contested decision, that, although it met the Commission’s services on a number of occasions after that disclosure, it never informed them of the statement made by its chairman at the APTI meeting of 4 April 2002. In its application, it even expressly confirms that fact.
139. It is further established that the Commission became aware of the statement made by Deltafina’s chairman only following an indication by Dimon Italia at the hearing held on 22 June 2004, namely more than two years after that disclosure (see recitals 410, 422, 423 and 449 to the contested decision).
140. In the second place, it is also established that on 2 April 2002 the external counsel of Universal, Deltafina’s parent company, informed the external counsels of SCC and Dimon, the respective parent companies of Transcatab and Dimon Italia, Deltafina’s competitors on the Italian market, that Deltafina had submitted an application for immunity to the Commission relating to the cartels between processors on the tobacco market in Italy. That fact, which is not contested by Deltafina, is clear from the statement made by Universal’s external counsel reproduced at recital 455 to the contested decision and, in particular, from the last sentence of that statement, in which the latter expressly states that ‘[o]n April 2 2002 [he had] communicated this to the counsel for the other dealers’.
141. Deltafina does not contest the fact that, although it and Universal met the Commission’s services on a number of occasions after that communication, it was not until February 2005, after the Commission had sent out the addendum, that Deltafina and Universal informed the Commission of the communication made by Universal’s external counsel on 2 April 2002 (see recital 454 to the contested decision). In its application, Deltafina even expressly confirms that fact.
142. The Commission was therefore not aware of the communication made by Universal’s external counsel until almost three years after it had been made. The fact that the Commission was not informed promptly of that communication is expressly mentioned at the end of recital 459 to the contested decision.
143. Since Deltafina had applied for immunity on 19 February 2002 and had obtained on 6 March 2002 recognition by the Commission of the procedural status of conditional immunity, it was required, in order to benefit from final immunity at the end of the administrative procedure, to comply fully with the obligations arising from point 11 of the 2002 Leniency Notice and, in particular, the obligatio n to cooperate ‘fully, on a continuous basis and expeditiously’ set out at point 11(a) of that notice.
144. As was recalled at paragraphs 127, 128 and 131 above, it has consistently been held that it is only where the conduct of the undertaking which has sought the benefit of favourable treatment under the 2002 Leniency Notice demonstrates a spirit of genuine cooperation that it may benefit from such favourable treatment. In addition, where an undertaking provides the Commission with an incomplete or inaccurate account of the facts, its conduct cannot be regarded as reflecting a spirit of genuine cooperation within the meaning of that case-law.
145. In the present case, it is established that Deltafina failed to inform the Commission of circumstances relevant for the investigation, namely the fact that its chairman had disclosed at the APTI meeting of 4 April 2002 that Deltafina had applied for immunity and that the external counsel of its parent company Universal had made a similar disclosure to the parent companies of certain of its competitors on 2 April 2002. It is also established that for more than two years the Commission was unaware of those circumstances that were relevant for the investigation.
146. It is also clear from the contested decision and from the case-file that the question of keeping secret the submission of the application for immunity in order not to alert competitors and not to undermine the effectiveness of the inspections had been expressly discussed by the parties during the contacts between them in the context of the leniency programme and in particular at the meeting of 14 March 2002 (see paragraphs 8 and 47 to 49 above and also the minutes of that meeting referred to at recitals 413 to 415 to the contested decision and placed in the file by Deltafina). In particular, it is clear from those documents that the Commission had expressly requested Deltafina to keep the application for immunity secret because it intended to carry out the inspections. Thus, Deltafina had been made aware of the fact that any disclosure of the application for immunity was regarded as a relevant circumstance capable, at least potentially, of influencing the proper conduct of the investigation and the Commission’s ability to find, investigate and suppress the cartel in question effectively.
147. Nor can it be denied that, at that time, any disclosure of the application for immunity was perceived both by Deltafina and by the Commission as a circumstance capable of causing, at least potentially, adverse effects for the investigation. That is confirmed, first, by the fact that Deltafina itself considered it necessary to maintain the strictest confidentiality concerning the application for immunity (see paragraph 50, in fine, above), which shows that it was aware of the possible adverse effects of disclosure of that information, and, second, by the fact that Deltafina itself claims to have assumed a heavier burden owing to the fact that it was impossible to keep its cooperation secret (see paragraphs 92 above and 163 below), which shows that Deltafina agreed that disclosure of that information constituted a problem and that it was thus necessary to envisage a solution in order to resolve that problem. Thus, Deltafina cannot claim not to have known that maintaining confidentiality concerning the application for immunity was regarded as an important element for the success of the investigation.
148. In those circumstances, it must be stated that conduct showing a spirit of genuine cooperation would have required that Deltafina inform the Commission promptly of the fact that its application for immunity had been disclosed.
149. Having failed to inform the Commission of the disclosures of the application for immunity of 2 and 4 April 2002, even though those facts were capable, at least potentially, of affecting the proper conduct of the investigation, Deltafina cannot claim that its behaviour demonstrated genuine cooperation on its part within the meaning of the case-law referred to at paragraphs 127, 128 and 131 above and that it thus did not breach the obligation to cooperate arising from point 11(a) of the 2002 Leniency Notice to which it was subject as an applicant for immunity.
150. The specific arguments put forward by Deltafina in the context of its first three pleas cannot alter that finding.
d) The specific arguments put forward by Deltafina alleging errors vitiating the contested decision in that the Commission did not grant it final immunity
The argument alleging that the Commission had agreed that Deltafina would disclose its application for immunity at the APTI meeting
151. It is appropriate, first of all, to examine Deltafina’s argument, raised in the context of the second plea, that the Commission was aware and had agreed that Deltafina would, at the imminent APTI meeting, disclose that it had applied for immunity. In the application, Deltafina maintains that it did not inform the Commission that it had disclosed its application for immunity because it had already warned the Commission beforehand, at the meeting of 14 March 2002, that it would be impossible not to disclose it at the APTI meeting. Thus, it claims, the Commission’s services were informed that Deltafina would make such a disclosure at that meeting.
– The alleged provision of information in advance to the Commission
152. In that regard, it must be stated that it does not follow from either the contested decision or the documents in the file that Deltafina explicitly and clearly informed the Commission in advance of the imminent APTI meeting that one of its representatives would make a spontaneous disclosure of its application for immunity, as Deltafina’s chairman did on 4 April 2002.
153. Thus, neither the minute of the meeting of 14 March 2002 drawn up by the Commission’s services nor the notes taken by one of Universal’s representatives at that meeting mention the fact that during that meeting Deltafina had expressly warned the Commission that it would make that disclosure (see recitals 413 to 415 to the contested decision).
154. Admittedly, at that meeting Deltafina put forward four reasons why it considered that it would be impossible to maintain secrecy for another month about its application for immunity, one of which was the imminent APTI meeting. However, it follows from the minute of that meeting drawn up by Universal’s representative himself that Deltafina had confined itself to emphasising its difficulties in keeping its application for immunity secret since, if its conduct during the imminent APTI meeting should differ from its conduct at previous meetings, its competitors would be likely to suspect that it had applied for immunity (see, in particular, recital 415 to the contested decision). On the other hand, Deltafina had not mentioned at that meeting that it intended to make a spontaneous disclosure of its application for immunity.
155. Furthermore, in answer to a question put by the Court at the hearing, Deltafina itself acknowledged in substance that at the meeting of 14 March 2002 with the Commission’s services it had not informed the latter expressly that it would spontaneously disclose its application for immunity at the imminent APTI meeting.
156. Nor is it apparent from any document in the file that on a different occasion Deltafina expressly warned the Commission in advance that it would make such a spontaneous declaration.
157. In particular, the Court is unable to accept Deltafina’s argument that during a telephone conversation between the official handling the case and Deltafina’s representatives of 22 March 2002, that is to say, around 10 days before the disclosure made on 4 April 2002 (see paragraphs 10 and 91 above), it had informed the Commission that it would disclose its application for immunity.
158. In fact, it follows from the note of the content of that telephone conversation, made by one of Deltafina’s lawyers for internal purposes, that during that conversation Deltafina’s representatives ‘made reference’ to the fact that the APTI meeting would take place shortly and that limits would thus be placed on the impermeability of confidentiality (‘tenuta confidenzialità era conseguentemente alla fine’). It must be stated that such a ‘reference’ does not amount to express, clear prior information of the fact that Deltafina’s chairman will make spontaneous disclosure of the application for immunity at the imminent APTI meeting. Deltafina cannot thus validly infer from the fact that the official handling the case had responded to that ‘reference’ that ‘the point had been sufficiently discussed in Brussels and that it was clear’ that the Commission had agreed that Deltafina would spontaneously disclose the application for immunity. That finding is confirmed, moreover, by a note of the content of the same telephone conversation drawn up by the Commission for internal purposes, which shows only that during that conversation the possibility of keeping the application for immunity secret had concerned, just as at the meeting of 14 March 2002, the danger that during the imminent APTI meeting the other members of the cartel would understand that Deltafina was cooperating with the Commission.
159. Furthermore, at the hearing, the official handling the case, who had taken part both in the meeting of 14 March 2002 and in the telephone conversation of 22 March 2002, stated that he had never understood that Deltafina intended to make a spontaneous statement at the imminent APTI meeting and that if the Commission had understood that Deltafina had such an intention it would not have given its consent, which, moreover, is also clear from recital 449 to the contested decision. Nor does the statement made by that official at the hearing of 22 June 2004, to which Deltafina refers (see paragraph 90 above), support Deltafina’s argument. It does not follow from that statement that, as Deltafina maintains, the official concerned agreed that a spontaneous disclosure of the application for immunity ought to have been made.
160. In the light of all those considerations, it must be held that Deltafina has not succeeded in demonstrating that it had duly informed the Commission in advance that it would spontaneously disclose the application for immunity at the APTI meeting held on 4 April 2002. It follows that, as the Commission was not aware that Deltafina would make such a spontaneous disclosure, it could not have accepted or previously authorised it. The argument which Deltafina derives from its assertion that the Commission knew that it would disclose the application for immunity at the APTI meeting held on 4 April 2004 must therefore be rejected.
161. Deltafina further claims, however, that the two documents relating to the APTI meeting of 4 April 2002 to which Dimon Italia referred at the hearing of 22 June 2004 in order to indicate to the Commission that Deltafina had disclosed its application for immunity had already been in the file since the date of the inspections which the Commission carried out at Dimon Italia’s premises.
162. In that regard, it must be stated that those two documents are merely handwritten notes, not readily intelligible, which record the statements made at the APTI meeting of 4 April 2002, but which do not enable their author to be determined. Thus, Deltafina cannot take issue with the Commission for not having realised, on the basis of those notes, that its chairman had disclosed its application for immunity at the APTI meeting of 4 April 2002. In any event, the fact that the Commission did not realise the existence of documents witnessing such disclosure cannot make up for Deltafina’s failure to inform the Commission and justify behaviour constituting a breach of the obligation to cooperate.
– The alleged agreement concerning the inevitability of the disclosure
163. Deltafina maintains that at the meeting of 14 March 2002, during which the ‘rules of the game’, that is the details of its cooperation, were to be defined, it had concluded a sort of agreement with the Commission. According to that agreement, first, the Commission agreed that, in consideration of the four circumstances referred to at paragraph 86 above, it would have been impossible for Deltafina to maintain the confidentiality of its application for immunity and that the disclosure of that information would have been inevitable. Second, in exchange for recognition of the inevitability of that disclosure, Deltafina assumed a heavier burden by undertaking to provide evidence as quickly as possible. Deltafina therefore complied with its obligation to cooperate, in so far as it supplied the additional information requested by the Commission.
164. In that regard, it should be observed that even accepting that Deltafina’s theory was made out, it is not of such a kind as to undermine the finding that, having failed to inform the Commission of the disclosures of the application for immunity, Deltafina breached its obligation to cooperate and the Commission was therefore correct not to grant it final immunity (see paragraph 149 above).
165. Even on the assumption that the Commission agreed at the meeting of 14 March 2002 that, owing to the circumstances referred to at paragraph 86 above, it was impossible for Deltafina to maintain the confidentiality of its application for immunity, which, moreover, is contested by the Commission, that would not affect the finding that, in the framework of conduct demonstrating a spirit of genuine cooperation, it was incumbent on Deltafina to inform the Commission promptly of the fact that the disclosures of the application for immunity had taken place (see paragraphs 145 to 149 above).
166. The same applies in the event that Deltafina was in fact compelled to disclose its application for immunity for one of the reasons which it put forward during the administrative procedure and, in particular, in the event that it was in fact, as it maintains, in a situation so ‘pressing’ that it had become necessary to disclose that fact, on the basis of a legitimate desire not to breach its obligation to cease the infringement under point 11(b) of the 2002 Leniency Notice. As an applicant for immunity, Deltafina was in any event subject to the obligation to cooperate as explained at paragraphs 123 to 134 above, which required that it inform the Commission promptly of the disclosures made.
167. Likewise, even on the assumption that the circumstance on which Deltafina relies, namely that it complied with the ‘second-best option’ allegedly agreed with the Commission in order to attempt to attenuate the negative effects of the disclosure by supplying the information requested by the Commission, were established, that circumstance too would not be capable of relieving Deltafina of its obligation to inform the Commission promptly of the disclosures of Deltafina’s application for immunity.
168. As regards the applicant’s reliance on the leniency programmes under United States law, and the laws of other countries of the European Union, it is sufficient to observe that such reliance is irrelevant, in so far as the position adopted by those laws cannot take precedence over that adopted by European Union law (see, to that effect, Joined Cases T‑191/98 and T‑212/98 to T‑214/98 Atlantic Container Line and Others
v Commission
[2003] ECR II‑3275, paragraph 1407). Last, as regards the arguments which Deltafina derives from the new 2006 Leniency Notice, it is sufficient to state that that notice was not applicable to the facts of the present dispute (see, to that effect, Case C‑413/08 P Lafarge
v Commission
[2010] ECR I‑5361, paragraph 108).
Knowledge of the investigation and the absence of effects for the investigation
169. In the context of its first plea, Deltafina claims that the decision not to grant it immunity is founded on an error, in that it is based on the incorrect factual premiss that the other members of the cartel were not aware of the Commission’s investigation into the Italian raw tobacco market. However, that argument is not capable of undermining the finding made at paragraph 149 above that Deltafina breached its obligation to cooperate under point 11(a) of the 2002 Leniency Notice. Even on the assumption that it is established that the other members of the cartel were aware of the existence of the Commission’s investigation, that circumstance would not dispense Deltafina of its obligation to cooperate, which required that it inform the Commission promptly of the two disclosures of the application for immunity referred to at paragraphs 137 and 140 above. Indeed, the finding of a breach of the obligation to cooperate is independent of Deltafina’s competitors’ knowledge or ignorance of the existence of the investigation.
170. In the context of its third plea, Deltafina claims that the contested decision is vitiated by a manifest error of assessment in that the Commission considered that the disclosures of the application for immunity undermined the investigation. However, that argument, too, cannot affect the finding that Deltafina was in breach of its obligation to cooperate. Even on the assumption that the two abovementioned disclosures had no negative effect on the investigation, which, moreover, has not been proved, that circumstance cannot justify a posteriori Deltafina’s omission to inform the Commission of those disclosures when, as is apparent from paragraphs 146 and 147 above, it was aware, having explicitly discussed the matter with the Commission, that any disclosure of its application for immunity was regarded as a circumstance capable of having a negative effect on the investigation (see paragraphs 133 and 134 above).
171. Last, the Court must also reject the argument, raised in the context of the first plea, alleging that the Commission incorrectly disregarded the distinction between point 8(a) and (b) of the 2002 Leniency Notice. First, it does not follow from that notice that, as Deltafina maintains, it is only in the situation referred to at point 8(a) of the 2002 Leniency Notice that unannounced inspections would be necessary and that in the case envisaged by point 8(b) the Commission is not required to carry out such inspections. Second, it follows from the case-law that even if the Commission already has indicia, or indeed evidence, of the existence of an infringement, as in the case of an application for immunity under point 8(b) of the 2002 Leniency Notice, the Commission may legitimately take the view that it is necessary to order further investigations enabling it better to define the scope of the infringement, to determine its duration or to identify the circle of undertakings involved (see, to that effect, Case C‑94/00 Roquette Frères
[2002] ECR I‑9011, paragraph 78).
172. The arguments raised in the context of the first and third pleas must therefore be rejected.
173. In the light of all the foregoing considerations, it must be concluded that the Commission did not err in not granting Deltafina final immunity in the contested decision on the basis that Deltafina had breached its obligation to cooperate under point 11(a) of the 2002 Leniency Notice.
e) The complaint based on the fact that Deltafina did not collude with its main competitors when submitting its application for favourable treatment
174. In the context of its second plea, Deltafina claims, last, that the contested decision is vitiated by an error of assessment in that the Commission’s allegedly incorrect initial understanding of Deltafina’s behaviour, set out at paragraphs 57 and 60 of the statement of objections, influenced the findings made in the contested decision.
175. In that regard, it should be observed, first, that it does not follow either from the assertions at points 57 and 60 of the addendum, or from any other points of that document, that the Commission relied in that document on the premiss that Deltafina, Dimon Italia and Transcatab had organised their conduct together in order to submit applications for immunity. As for the sentence, cited by Deltafina, which appears at point 57 of the addendum, it must be stated that it is purely hypothetical in nature. As regards the sentence which appears at point 60 of the addendum, in which the Commission had described Deltafina’s behaviour as ‘fraudulent’, it does not refer to the reasoning set out at point 57 of that document, but refers rather to the breach of the obligations arising under the 2002 Leniency Notice. Deltafina’s argument is therefore based on a misreading of the addendum.
176. It should be observed, second, that provided that the decision respects the parties’ rights of defence and does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and takes into consideration only facts on which the persons concerned have had the opportunity to make known their views, the Commission may amend in the decision the arguments set out in the statement of objections (see, to that effect, Case T‑340/03 France Télécom
v Commission
[2007] ECR II‑107, paragraph 18 and the case-law cited).
177. In that regard, it must be stated that, in that context, Deltafina has not claimed that there has been a breach of its rights of defence and that, in any event, as Deltafina itself admits in its pleadings, the assertions to which it refers in that argument were not reproduced in the contested decision.
178. Nor does Deltafina specifically explain how the assertions contained in the addendum would vitiate the contested decision. It merely asserts that there are traces of those assertions in the contested decision and that it appears that the Commission’s initial misunderstanding of Deltafina’s behaviour influenced the findings made in the contested decision.
179. In that regard, first, it does not follow from the contested decision that the Commission’s decision not to grant Deltafina immunity is based on the premiss that Deltafina’s behaviour was fraudulent in that it colluded with its main competitors when submitting its application for favourable treatment. On the contrary, the Commission’s decision not to grant Deltafina immunity is based on the finding that Deltafina had not complied with one of the conditions set out at point 11 of the 2002 Leniency Notice, as it had breached its obligation to cooperate within the meaning of that notice.
180. Second, and more generally, the mere reference in an addendum to the statement of objections to arguments and assertions which were not reproduced in the contested decision cannot undermine the validity of the contested decision if the extent to which the contested decision is vitiated as a consequence of the initial flawed reasoning is not established. It must be stated that generic allegations such as those made by Deltafina are not capable of calling in question the validity of the contested decision.
181. In the light of those considerations, this complaint must also be rejected.
182. In the light of all the foregoing, the first three pleas must be rejected in their entirety.
B – Fourth plea, alleging breach of the principle of the protection of legitimate expectations, the principle of sound administration and the principle of proportionality
1. Arguments of the parties
183. In its fourth plea, Deltafina raises three complaints.
184. In the first place, it claims that the Commission’s withdrawal of the benefit of conditional immunity, which it had granted to Deltafina, constitutes a breach of the principle of the protection of legitimate expectations. Deltafina refers in that regard to point 29 of the 2002 Leniency Notice.
185. Deltafina maintains that the Commission was not entitled to withdraw immunity without having clearly informed it in advance that the disclosure of its application for immunity at the APTI meeting would be regarded as a breach of the obligation to cooperate. Neither the 2002 Leniency Notice nor the letter of 6 March 2002 whereby the Commission granted Deltafina conditional immunity mentions the obligation to maintain the confidentiality of the application for immunity. In that context, Deltafina could not reasonably have foreseen that it would lose immunity if it disclosed that it had submitted an application for favourable treatment. Furthermore, the official handling the case himself acknowledged at the hearing held on 22 June 2004 that he did not know whether such an obligation existed for the undertaking which requested immunity.
186. Moreover, the Commission granted Deltafina conditional immunity on the basis of point 8(b) of the 2002 Leniency Notice and acknowledged that the evidence supplied by Deltafina was of such a level that it enabled the Commission to establish the existence of an infringement without having to carry out inspections. Deltafina thus asserts that it was unable to foresee that it would lose the right to immunity because it adversely affected the Commission’s ability to carry out the inspections.
187. In addition, Deltafina also claims that it had informed the Commission promptly of the difficulties in maintaining the confidentiality of its request for immunity and that it had borne the higher burden placed on it by the Commission by supplying consistent further evidence. It was only after the statement made by Dimon Italia at the hearing of 22 June 2004 that the Commission suddenly altered its position and imposed the highest fine on Deltafina.
188. In the second place, Deltafina claims that the Commission’s withdrawal of the conditional immunity which it had granted Deltafina is contrary to the principle of sound administration, in so far as the Commission, while having been warned by Deltafina in advance that it would disclose the submission of its request for immunity on the occasion of the APTI meeting, did not clearly inform Deltafina that that disclosure would entail the loss of its immunity.
189. In the third place, Deltafina claims that the Commission’s withdrawal of the immunity which it had granted Deltafina is also contrary to the principle of proportionality, in so far as, given the specific circumstances of the case, the fine imposed on it – the highest of the fines imposed by the contested decision, that is to say, EUR 30 million – is quite disproportionate.
2. Findings of the Court
190. As regards Deltafina’s first complaint, it should be borne in mind, first of all, that the principle of the protection of legitimate expectations is among the fundamental principles of the European Union (Case 112/80 Dürbeck
[1981] ECR 1095, paragraph 48). According to the case-law, the right to rely on that principle assumes that three conditions are satisfied. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must be consistent with the applicable rules (see Case T‑145/06 Omya
v Commission
[2009] ECR II‑145, paragraph 117 and the case-law cited; see also, to that effect, Case T‑13/03 Nintendo and Nintendo of Europe
v Commission
[2009] ECR II‑947, paragraph 203 and the case-law cited).
191. In the present case, the first condition prescribed by the case-law is manifestly not satisfied. Deltafina cannot rely on any precise, unconditional and consistent assurance that it would obtain final immunity at the end of the administrative procedure.
192. In that regard, it should first of all be observed that, in accordance with point 19 of the 2002 Leniency Notice, as observed at paragraph 117 above, it is only when the Commission adopts the final decision that it determines whether the conditions set out at point 11 of that notice have been met. It follows that, in the procedural stage preceding the adoption of the final decision, the Commission could not give Deltafina any precise assurance as to the benefit of final immunity (see, to that effect, in relation to the 1996 Leniency Notice, Case C‑511/06 P Archer Daniels Midland
v Commission
[2009] ECR I‑5843, paragraph 118).
193. Next, it should be observed that the Commission is not required to inform applicants for immunity that they must comply with the obligations arising under the 2002 Leniency Notice and, in particular, the obligation to cooperate, as the 2002 Leniency Notice itself clearly sets out the consequences of such a breach.
194. Indeed, it follows from point 30 of the 2002 Leniency Notice that if at any stage of the administrative procedure one or other of the conditions set down in that notice is not met the undertaking concerned may no longer benefit from the favourable treatment set out therein. The Commission was therefore under no obligation to point out to Deltafina the consequences for it of a breach of the obligation to cooperate set out at point 11(a) of the 2002 Leniency Notice. Deltafina cannot therefore claim that the Commission made an error in that regard.
195. In addition, it must be stated that the Commission expressly warned Deltafina that the grant of immunity was dependent on compliance with the cumulative conditions set out at point 11 of the 2002 Leniency Notice. That warning emerges not only from point 30 of that notice, which Deltafina, as an applicant for immunity, was required to know, but also expressly from the decision sent to Deltafina on 6 March 2002, whereby the Commission had recognised that Deltafina had the status of conditional immunity (see paragraph 7 above). At recital 6 to that decision the Commission expressly informed Deltafina that ‘failure to meet the conditions referred to [at point 11](a) to (c) at any time during the administrative procedure may lead to the loss of any favourable treatment’.
196. As observed at paragraphs 149 and 173 above, the Commission did not err in taking the view that Deltafina’s behaviour could not be regarded as reflecting a spirit of genuine cooperation and that, consequently, it had breached the obligation to cooperate set out at point 11(a) of the 2002 Leniency Notice.
197. Thus, in this instance, although conditional immunity was initially granted to Deltafina, the latter did not subsequently meet one of the conditions set down in the 2002 Leniency Notice for the grant of final immunity. It was therefore possible that Deltafina would no longer benefit from favourable treatment within the meaning of point 30 of that notice. In those circumstances, Deltafina cannot claim that it was able to derive a legitimate expectation from the 2002 Leniency Notice.
198. Nor can Deltafina rely on a breach of its legitimate expectation on the ground that it complied with the ‘second-best option’ agreed with the Commission by supplying the latter with further evidence. As observed at paragraph 166 above, even on the assumption that that circumstance were established, it was not capable of relieving Deltafina of its obligation to inform the Commission that its application for immunity had been disclosed. Thus, by not informing the Commission promptly of those circumstances, Deltafina did not meet, at the end of the procedure, one of the conditions laid down in the 2002 Leniency Notice for the grant of final immunity and the Commission was thus entitled, indeed required, not to grant it final immunity.
199. Last, it follows from paragraph 171 above that Deltafina could not derive any particular legitimate expectation from the fact that it had been granted the status of conditional immunity on the basis of point 8(b) of the 2002 Leniency Notice rather than on the basis of point 8(a) of that notice.
200. It follows that the complaint alleging breach of the principle of the protection of legitimate expectations must be rejected.
201. As regards the second complaint, concerning the alleged breach of the principle of sound administration, in that the Commission, while having been warned in advance by Deltafina that it would disclose the submission of its application for immunity at the APTI meeting, did not inform it clearly that that disclosure would have entailed the loss of its immunity, it should be observed, even without ruling on the relevance of the reference to the principle of sound administration in that context, that the complaint is based on incorrect premisses. First, it has been established that during the contacts between the Commission and Deltafina before the APTI meeting of 4 April 2002 Deltafina did not inform the Commission that it would spontaneously and voluntarily disclose at that meeting that it had applied for immunity (see paragraphs 152 to 160 above). Second, it was also observed at paragraphs 193 and 194 above that the Commission was not required to inform Deltafina of the consequences of any breach of its obligation to cooperate.
202. It follows that the complaint alleging breach of the principle of sound administration must be rejected.
203. As regards the third complaint, alleging breach of the principle of proportionality, it should be recalled that that principle requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑180/96 United Kingdom
v Commission
[1998] ECR I‑2265, paragraph 96, and judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer
v Commission, not published in the ECR, paragraph 223).
204. Deltafina claims that, in consideration of the circumstances of the present case, the Commission breached that principle by not granting it immunity.
205. In that regard, however, it should be observed that, according to the rationale of the leniency programme as set out at paragraph 103 et seq. above, the grant of total immunity from fines, which constitutes a total exception to the principle of the personal liability of the undertaking for the infringements of the competition rules, is justified by the cooperation of the undertaking, which facilitates the Commission’s task of finding and suppressing infringements of those rules. It is therefore only in consideration of genuine, full and prompt cooperation that the Commission grants total immunity from fines. Thus the grant of total immunity at the end of the administrative procedure is dependent on compliance with the obligation to cooperate laid down at point 11(a) of the 2002 Leniency Notice (see paragraphs 116 and 117 above).
206. In those circumstances, it is by no means disproportionate to provide, as does point 30 of the 2002 Leniency Notice, that if at any stage of the administrative procedure one of the conditions set out in that notice is not met, the undertaking concerned may no longer benefit from the favourable treatment set out therein. If the undertaking seeking favourable treatment were able to disregard the conditions set out, and in particular the obligation to cooperate, without being at risk of losing the benefit of that treatment, the basis and objectives of the leniency programme would be jeopardised.
207. In those circumstances, since it has been held that in the present case the Commission had not erred in finding that Deltafina had breached its obligation to cooperate under point 11(a) of the 2002 Leniency Notice, Deltafina cannot claim that the Commission breached the principle of proportionality by not granting it total immunity at the end of the administrative procedure.
208. As regards the reference to the disproportionate nature of the fine in the light of the circumstances of the present case, Deltafina raised that complaint in the context of the fifth and seventh pleas. That complaint will therefore be analysed when those pleas are considered.
209. In the light of the foregoing, the fourth plea must be rejected in its entirety.
II – The alternative pleas
A – Fifth plea, alleging breach of the principle of proportionality owing to the excessive nature of the starting amount of the fine, and failure to state reasons
210. By its fifth plea, which may be subdivided into three parts, Deltafina raises a number of complaints in support of its contention that the basic amount of EUR 25 million set by the Commission is manifestly excessive and disproportionate by reference to the gravity of the infringement. Deltafina thus requests the Court to set a new amount of the fine.
211. It should be observed, first of all, that Deltafina categorically disputes the ‘basic amount’ of the fine, which, pursuant to the fourth paragraph of Section 1.B of the Guidelines, is the sum of the amounts set for the gravity and the duration of the infringement. However, it follows from the applicant’s argument that the contested amount of the fine is the amount determined by reference to the gravity of the infringement, so that the amount at issue in this plea is the starting amount of the fine (see, to that effect, Case T‑161/05 Hoechst
v Commission
[2009] ECR II‑3555, paragraph 107).
1. General considerations
212. It is appropriate, by way of preliminary observation, to recall the general principles governing the determination of the amount of fines and, more particularly, the assessment of the gravity of the infringement and also the principle of proportionality in relation to fines.
213. Article 81(1)(a) and (b) EC expressly declare that agreements and concerted practices which consist in directly or indirectly fixing purchase or selling prices or other transaction conditions or in limiting or controlling production or outlets are incompatible with the common market. Infringements of that kind, particularly in the case of horizontal cartels, are classified by the case‑law as ‘particularly serious’ since they involve direct interference with the essential parameters of competition on the market in question (Case T‑141/94 Thyssen Stahl
v Commission
[1999] ECR II‑347, paragraph 675) or clear infringements of the competition rules (Case T‑148/89 Tréfilunion
v Commission
[1995] ECR II‑1063, paragraph 109, and Case T‑311/94 BPB de Eendracht
v Commission
[1998] ECR II‑1129, paragraph 303).
214. Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine for infringements of Article 81(1) EC, regard is to be had both to the gravity and to the duration of the infringement.
215. It is settled case-law that the gravity of infringements of competition law has to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up ( Dansk Rørindustri and Others
v Commission, paragraph 127 above, paragraph 241; Case C‑534/07 P Prym and Prym Consumer
v Commission
[2009] ECR I‑7415, paragraph 54; and Erste Group Bank and Others
v Commission, paragraph 109 above, paragraph 91).
216. In order to ensure the transparency and impartiality of its decisions setting fines for infringements of the competition rules, the Commission adopted the Guidelines (first introductory paragraph of the Guidelines).
217. The Guidelines are an instrument designed to clarify, in compliance with superior rules of law, the criteria which the Commission intends to apply when exercising the discretion conferred on it by Article 23(2) of Regulation No 1/2003 for the purpose of setting fines. The Guidelines do not constitute the legal basis of a decision imposing fines, which is based on Regulation No 1/2003, but they determine, generally and abstractly, the method which the Commission has bound itself to use in assessing the fines imposed by that decision and, consequently, ensure legal certainty on the part of the undertakings ( Dansk Rørindustri and Others
v Commission, paragraph 127 above, paragraphs 209 to 213, and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others
v Commission
[2006] ECR II‑5169, paragraphs 219 and 223).
218. Thus, although the Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons (see, to that effect, Dansk Rørindustri and Others
v Commission, paragraph 127 above, paragraphs 209 and 210, and Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission
[2006] ECR I‑4429, paragraph 91).
219. The fact that the Commission has limited its own discretion by adopting the Guidelines is not incompatible with its maintaining a significant discretion (see, to that effect, Case T‑44/00 Mannesmannröhren-Werke
v Commission
[2004] ECR II‑2223, paragraphs 246, 274 and 275). The fact that, in the Guidelines, the Commission set out its approach to assessment of the gravity of an infringement does not prevent it from assessing infringements as a whole by reference to all the relevant circumstances of the case, including factors that are not expressly mentioned in the Guidelines ( Raiffeisen Zentralbank Österreich and Others
v Commission, paragraph 217 above, paragraph 237).
220. According to the method provided for in the Guidelines, the Commission takes as its starting point for calculating the amount of the fines to be imposed on the undertakings concerned an amount determined according to the ‘intrinsic’ gravity of the infringement. In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market (Section 1.A, first paragraph, of the Guidelines).
221. Within that context, infringements are put into one of three categories, namely ‘minor infringements’, for which the likely fines will be between EUR 1 000 and EUR 1 million, ‘serious infringements’, for which the likely fines will be between EUR 1 million and EUR 20 million, and ‘very serious infringements’, for which the likely fines will be above EUR 20 million (Section 1.A, second paragraph, first to third indents of the Guidelines). As regards very serious infringements, the Commission states that these will generally be horizontal restrictions, such as ‘price cartels’ and market-sharing quotas, or other practices which jeopardise the proper functioning of the single market, such as the partitioning of national markets and clear-cut abuse of a dominant position by undertakings holding a virtual monopoly (Section 1.A, second paragraph, third indent of the Guidelines).
222. Moreover, the three factors to be taken into account in assessing the gravity of the infringement referred to at paragraph 220 above do not have the same weight in the context of the overall assessment. The nature of the infringement plays a major role, in particular, for the qualification of ‘very serious’ infringements ( Erste Group Bank and Others
v Commission, paragraph 109 above, paragraph 101, and Joined Cases T‑456/05 and T‑457/05 Gütermann and Zwicky
v Commission
[2010] ECR II‑1443, paragraph 137).
223. On the other hand, neither the actual impact on the market nor the extent of the geographic market is a factor necessary for the infringement to be classified as very serious in the case of horizontal agreements concerning, as here, price fixing. While those two criteria are factors to be taken into consideration for the purpose of assessing the gravity of the infringement, they are two among other factors for the purposes of the overall assessment of gravity (see, to that effect, Prym and Prym Consumer
v Commission, paragraph 215 above, paragraphs 74 and 81; Raiffeisen Zentralbank Österreich and Others
v Commission, paragraph 217 above, paragraphs 240 and 311; and Case T‑73/04 Carbone-Lorraine
v Commission
[2008] ECR II‑2661, paragraph 91).
224. Thus, according to what is now settled case-law, it follows from the Guidelines that the Commission may classify horizontal agreements aimed in particular, as in the present case, at price fixing as ‘very serious’ solely on account of their nature, without being required to demonstrate an actual impact of the infringement on the market ( Prym and Prym Consumer
v Commission, paragraph 215 above, paragraph 75; see also, to that effect, Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others
v Commission
[2005] ECR II‑3033, paragraph 178, and Case T‑38/02 Groupe Danone
v Commission
[2005] ECR II‑4407, paragraph 150) and without such classification being precluded by the limited extent of the geographic market concerned (see, to that effect, Erste Group Bank and Others
v Commission, paragraph 109 above, paragraph 103, and Carbone‑Lorraine
v Commission, paragraph 223 above, paragraph 91).
225. That conclusion is supported by the fact that, while the description of ‘serious’ infringements expressly mentions market impact and effects over extensive areas of the common market, the description of ‘very serious’ infringements makes no mention of a requirement that there be an actual impact on the market or that there be effects in a particular geographic area ( Gütermann and Zwicky
v Commission, paragraph 222 above, paragraph 137; see also, to that effect, Brasserie nationale and Others
v Commission, paragraph 224 above, paragraph 178, and Groupe Danone
v Commission, paragraph 224 above, paragraph 150).
226. Furthermore, there is an interdependence between the three factors in the assessment of gravity of an infringement in that a high degree of gravity in respect of one of the factors may offset the lesser gravity of the infringement in respect of other factors ( Raiffeisen Zentralbank Österreich and Others
v Commission, paragraph 217 above, paragraph 241).
227. As specifically regards the present case, it is apparent from the contested decision that the Commission determined the amount of the fine imposed on the various addressees on the basis of the general method by which it undertook to be bound in the Guidelines, even though it does not expressly refer to the Guidelines in the decision.
228. In so far as Deltafina, in the context of the present plea, claims that there has been a breach of the principle of proportionality, it should also be borne in mind that, as stated at paragraph 203 above, that principle requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question.
229. In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of that principle requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof (see, to that effect, Prym and Prym Consumer
v Commission, paragraph 203 above, paragraphs 223 and 224 and the case-law cited). In particular, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (Case T‑43/02 Jungbunzlauer
v Commission
[2006] ECR II‑3435, paragraphs 226 to 228, and Case T‑446/05 Amann & Söhne and Cousin Filterie
v Commission
[2010] ECR II‑1255, paragraph 171).
2. First part of the fifth plea, alleging breach of the principle of proportionality in view of the limited size of the market and of Deltafina’s limited turnover
a) Arguments of the parties
230. Deltafina claims that the starting amount of the fine is disproportionate in so far as it corresponds to 37.1% of the total value of purchases on the relevant market, namely EUR 67.3 million, 52.2% of the value of its sales of processed Italian tobacco, namely EUR 47.9 million, and 82.5% of its purchases of raw or pre-processed tobacco, namely EUR 30.2 million. The first and third figures are particularly important, since the infringement relates to concerted buying practices. Deltafina observes, moreover, that the starting amount is higher than the total profits, after tax, which it made during the period 1996 to 2002, namely EUR 23.5 million. A comparison of those figures with the figures relating to other cartels shows that the starting amount set by the Commission in the present case is excessively high.
231. The Commission contends that Deltafina’s arguments should be rejected.
b) Findings of the Court
232. In the first place, as regards the complaint alleging that the fine is disproportionate by reference to the total value of purchases on the relevant market, it does not follow from either Regulation No 1/2003 or the Guidelines that the amount of the fines must be fixed in direct proportion to the size of the relevant market, as that factor is not mandatory, but just one among a number of other factors to be taken into account in evaluating the gravity of the infringement (Case C‑407/04 P Dalmine
v Commission
[2007] ECR I‑829, paragraph 132, and Prym and Prym Consumer
v Commission, paragraph 215 above, paragraph 55). Those provisions therefore do not as such require the Commission to take account of the limited size of the product market (see, to that effect, Case T‑322/01 Roquette Frères
v Commission
[2006] ECR II‑3137, paragraph 148).
233. However, as observed at paragraph 215 above, according to the case-law, in assessing the gravity of an infringement, the Commission must have regard to a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. It cannot be ruled out that cases may arise in which one of the factors indicative of the gravity of an infringement is the size of the market for the product in question (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others
v Commission
[1983] ECR 1825, paragraph 120, and Gütermann and Zwicky
v Commission, paragraph 222 above, paragraph 267).
234. Consequently, although market size may constitute a factor to be taken into account in establishing the gravity of the infringement, its importance varies according to the type of the infringement and the particular circumstances of the infringement concerned.
235. In the present case, as regards, first, the type of the infringement, it should be observed that the agreement between the processors had the object, in particular, of jointly fixing the prices which the processors paid for raw tobacco and the allocation of suppliers and quantities of raw tobacco. Such practices constitute horizontal restrictions of the ‘price cartel’ type within the meaning of the Guidelines and are therefore by nature ‘very serious’ infringements. For that type of arrangements, which are characterised by the case-law as flagrant infringements of the competition rules or as particularly serious infringements, since they have a direct impact on the essential parameters of competition on the relevant market (see paragraph 213 above), the Guidelines envisage a penalty having a minimum starting amount of over EUR 20 million.
236. As regards, second, the particular circumstances of the infringement concerned, it should be noted that the size of the relevant market was by no means negligible, since it is apparent from recital 366 to the contested decision that the production of raw tobacco in Italy accounts for 38% of in-quota production in the EU. Furthermore, it is apparent from footnote 290 to the contested decision that, as the cartel also extended to purchases from ‘third packers’, namely intermediaries which themselves buy raw tobacco from the producers and themselves carry out the initial processing of tobacco, it concerned purchases having a value in excess of the mere value of purchases of raw tobacco produced in Italy.
237. In those circumstances, Deltafina cannot claim that its fine is disproportionate by reference to the total value of purchases on the relevant market.
238. In the second place, as regards Deltafina’s complaint that the fine was disproportionate by reference to the value of its purchases on the relevant market, by reference to its turnover from its own downstream activities, and also to the total profits attained throughout the period 1996 to 2002, it should be pointed out first of all that the applicable law contains no general principle that the penalty must be proportionate to the turnover attained by the undertaking on the relevant market (see Gütermann and Zwicky
v Commission, paragraph 222 above, paragraph 277 and the case-law cited) or to the turnover attained on the downstream market, or to the profit attained throughout the duration of the cartel.
239. In that regard, it should be borne in mind that, according to consistent case-law, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. It is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, the fixing of an appropriate fine cannot be the result of a simple calculation based on total turnover. That is particularly so where the goods concerned account for only a small part of that turnover ( Musique Diffusion française and Others v Commission, paragraph 233 above, paragraph 121; Dansk Rørindustri and Others
v Commission, paragraph 127 above, paragraph 243; and Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others
v Commission
[2009] ECR I‑7191, paragraph 114).
240. It must be emphasised that, as is apparent from paragraph 34 above, in the contested decision the Commission fixed the fine by reference to the market share of each undertaking in terms of purchases of the relevant product on the market on which the infringement took place. Thus the value of purchases on the relevant market was a criterion that was taken into account in the determination of the fine in the present case.
241. Furthermore, it should be borne in mind that the maximum limit of 10% referred to in Article 23(2) of Regulation No 1/2003 relates to the overall turnover of the undertaking concerned and that only the final amount of the fine is required to observe that limit. In the present case, it is clear from recitals 374 and 401 to the contested decision that, having established that Deltafina’s parent company, namely Universal, had exercised decisive influence over Deltafina, the Commission, in order to determine the amount of the fine at a level which ensured that it was sufficiently deterrent, took Universal’s turnover into consideration. It follows from the data indicated at recital 374 to the contested decision, which are not disputed by Deltafina, that the fine imposed on Deltafina and Universal is below 2% of Universal’s global turnover and is thus significantly below the maximum level referred to in Article 23(2) of Regulation No 1/2003. In those circumstances, Deltafina cannot claim that the starting amount set by the Commission is disproportionate by reference to the size of its business (see, to that effect, Dalmine
v Commission, paragraph 232 above, paragraph 146, and Prym and Prym Consumer
v Commission, paragraph 203 above, paragraph 229).
242. Furthermore, it follows from the case-law that, in so far as the amount of the final fine does not exceed 10% of the total turnover of the undertaking concerned during the last year of the infringement, the fine cannot be regarded as disproportionate solely because it exceeds the turnover achieved on the relevant market (see, to that effect, Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission
[2003] ECR II‑2597, paragraph 200). The same applies with respect to the turnover achieved on the downstream market. In the present case, it must be held that the starting amount of the fine imposed on Deltafina, which it claims to have been disproportionate, does not exceed either its turnover on the relevant market or the turnover achieved on the downstream market. In addition, even the final amount of the fine is below those two turnovers.
243. Furthermore, in consideration of the very serious nature of the infringement, neither the fact that the fine corresponds to 52.2% of the value of Deltafina’s sales of processed Italian tobacco and to 82.5% of its purchases of raw or pre-processed tobacco, nor the fact that it exceeds the total profits, after tax, made by Deltafina, the Italian subsidiary of the Universal group, during the period 1996 to 2002 makes the fine excessive to the point of rendering it disproportionate.
244. Last, with specific regard to the references to decisions previously adopted by the Commission, it should be borne in mind that the Commission’s practice in taking decisions does not in itself serve as a legal framework for fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003, as applied in the light of the Guidelines, and since the Commission has a wide discretion when setting the amount of fines and is not bound by assessments which it has made in the past (see, to that effect, Case C‑510/06 P Archer Daniels Midland
v Commission
[2009] ECR I‑1843, paragraph 82, and Erste Group Bank and Others
v Commission, paragraph 109 above, paragraph 123). It follows that Deltafina’s allegations relating to the Commission’s previous practice in taking decisions cannot succeed.
245. In the light of all those considerations, the first part of the fifth plea must be rejected.
3. Second part of the fifth plea, alleging breach of the principle of proportionality in view of the limited extent of the geographic market
a) Arguments of the parties
246. Deltafina also maintains that the Commission failed to take into consideration the small geographic extent of the market affected by the infringement, which is limited to Italy or which, more precisely, concerns essentially only four Italian regions (in which 87.5% of Italian production is concentrated). In numerous previous cases, the Commission has considered that, in the light of the fact that the infringement had taken place on a limited part of the single market, it should be classified as a ‘serious’ infringement rather than as a ‘very serious’ infringement.
247. The Commission contends that Deltafina’s arguments should be rejected.
b) Findings of the Court
248. It follows from the case-law that the size of the geographic market is not an autonomous criterion in the sense that only infringements affecting most of the Member States would be classifiable as ‘very serious’. Neither the Treaty, nor Regulation No 1/2003, nor the Guidelines, nor the case-law supports the conclusion that only restrictions that are geographically very extensive can be so characterised (see, to that effect, Case T‑241/01 Scandinavian Airlines System
v Commission
[2005] ECR II‑2917, paragraph 87, and Raiffeisen Zentralbank Österreich and Others
v Commission, paragraph 217 above, paragraph 311).
249. Furthermore, agreements or concerted practices relating, in particular, as in the present case, to the fixing of purchase prices and the sharing of quantities purchased can entail, on the sole basis of their actual nature, the classification of ‘very serious’, without there being any need to characterise such conduct by a specific geographic extent (see, in that regard, the case-law cited at paragraphs 222 to 225 above).
250. It follows that the size of the relevant geographic market, even on the assumption that it is limited, does not as a matter of principle preclude the infringement found in the present case being classified as ‘very serious’.
251. It should further be observed that while in the present case the production of raw tobacco was concentrated in certain regions of Italy, the scope of the cartel was not confined to those regions but covered the purchase of raw tobacco throughout the Italian territory. In fact, according to settled case-law, the whole territory of a Member State constitutes a substantial part of the common market (see, to that effect, Case 322/81 Nederlandsche Banden-Industrie-Michelin
v Commission
[1983] ECR 3461, paragraph 28, and Groupe Danone
v Commission, paragraph 224 above, paragraph 150).
252. Thus, it must be concluded that, in the present case, the starting amount of EUR 25 million is not disproportionate by reference to the geographic extent of the relevant market.
253. Last, as regards the references to decisions previously adopted by the Commission, it follows from the case-law referred to at paragraph 244 above that Deltafina’s assertions with respect to the Commission’s previous practice in taking decisions cannot succeed.
254. In the light of the foregoing, the second part of the fifth plea must be rejected.
4. Third part of the fifth plea, alleging breach of the principle of proportionality in the light of the absence of an impact on the market by the infringement, and also failure to state reasons
a) Arguments of the parties
255. Deltafina claims that the basic amount of the fine is manifestly disproportionate in view of the fact that the infringement had no impact, or a limited impact, on the relevant market. It takes issue with the Commission for having failed to take into consideration the fact that it follows from the data available to it that the concerted practices concerned, the objective of which was to fix the purchase prices of raw tobacco, had not produced any effects on the raw tobacco market. Indeed, the Commission itself acknowledged in the contested decision that, instead of falling, raw tobacco prices had increased by 53.5% in Italy during the period 1990 to 2000, whereas the prices of other agricultural products had increased over the same period by only 15.9%. Furthermore, during the period 1993 to 2000 the prices of varieties of tobacco produced in the largest quantities in Italy (namely Bright and Burley) rose in Italy by the greatest amount among the various Member States. The Commission ought thus to have concluded that the practices penalised, which were designed to limit or prevent the increase of Italian raw tobacco prices, had been ineffective. Those data, expressly recognised in the contested decision, ought to have been taken into account in the assessment of the gravity of the infringement and ought to have led the Commission to set a lower starting amount.
256. Contrary to the assertion which the Commission makes for the first time in the defence, in the present case the impact of the infringement on the market was clearly capable of being measured. The information which the Commission maintains was necessary to enable that impact to be measured is not information which is impossible to find and, moreover, that type of analysis is frequent in cartel decisions. Thus, in accordance with the case-law, the Commission was required to compare the situation resulting from the infringement with the situation that would have existed had there been no infringement. In addition, as the contested decision contains no indication of the grounds on which the Commission concluded that the impact of the infringement could not be measured, it is also vitiated by a lack of reasoning in that regard.
257. Deltafina contends that even if in the present case the impact of the infringement on the market had really not been capable of being measured, quod non, in setting the amount of the fine the Commission ought none the less to have concluded that the infringement had had no impact on the market. The fact that it may be impossible to measure the impact does not permit a presumption that there was such an impact.
258. In the reply, Deltafina makes clear that its plea relates not to the characterisation of the infringement as ‘very serious’ but to the increase in the starting amount on account of the impact of the infringement on the market.
259. Deltafina thus requests that the fine be reduced appropriately, in consideration of the fact that the Commission, when setting the starting amount of the fine, did not take into account the absence of any impact or, in the alternative, the limited impact of the infringement on the market.
260. The Commission contends that Deltafina’s arguments should be rejected.
b) Findings of the Court
261. It should be borne in mind, first of all, that among the three criteria mentioned in the Guidelines for the assessment of the gravity of the infringement (see paragraph 220 above), the nature of the infringement has a predominant role in the characterisation of very serious infringements. Thus, agreements or concerted practices aimed at price fixing or market sharing may, on the sole basis of their actual nature, entail the characterisation ‘very serious’, without there being any need to characterise such behaviour by an actual impact on the relevant market (see, in that regard, the case-law cited at paragraphs 222 to 225 above).
262. In the present case, as observed at paragraph 235 above, the agreement in question had the object, in particular, of jointly fixing the prices which the processors paid for raw tobacco and also the allocation of suppliers and quantities and the exchange of information. Such practices constitute horizontal restrictions of the ‘price cartel’ type within the meaning of the Guidelines and, accordingly, are inherently ‘very serious’.
263. It follows that in the present case the Commission was able to characterise the cartel as a ‘very serious’ infringement without being required to demonstrate that it had an actual impact on the market (see, to that effect, Prym and Prym Consumer
v Commission, paragraph 215 above, paragraph 76, and Erste Group Bank and Others
v Commission, paragraph 109 above, paragraph 103).
264. It is clear on reading the contested decision, moreover, that, although at recital 365 the Commission asserted, using the words of the Guidelines, that in assessing the gravity of the infringement it must take account of the three factors mentioned in the first paragraph of Section 1.A of the Guidelines (see paragraph 220 above), it did not subsequently base its assessment of the gravity of the infringement on its actual impact.
265. Indeed, in the part of the contested decision devoted to the assessment of the gravity of the infringement (recitals 365 to 369), none of the recitals refers to that factor. In particular, at recital 368, the Commission, referring to the part of the decision in which the restrictive scope of the agreements between the processors is analysed, first sets out considerations of a general nature on buying cartels and their capacity, just as in typical cases of ‘sales cartels’, to alter competition and, second, asserts that that capacity is even greater in the case of a product such as that involved in the present case. However, those considerations cannot be interpreted as an analysis of the actual impact of the infringement on the market, but, rather, are considerations relating to the capacity of the buying cartel to distort competition in the present case.
266. It follows that the characterisation of the infringement as ‘very serious’ cannot be called in question by the argument raised by Deltafina in the context of this part of its plea.
267. Furthermore, it should be observed that in the reply Deltafina clarified the scope of the arguments raised in the context of this part of the plea, explaining that it does not dispute the characterisation of the infringement as ‘very serious’ but that it takes issue with the Commission for having set a starting amount of the fine that is disproportionate when the infringement had no actual impact on the market.
268. In that regard, in the first place, it should be noted that the system of penalties for infringement of the competition rules, as established by Regulation No 1/2003 and interpreted by the case-law, shows that, by reason of their very nature, cartels merit the most severe fines. The actual impact which they may have had on the market, particularly the question of the extent to which the restriction of competition resulted in a market price higher than that which would have obtained in the absence of the cartel, is not a decisive factor for determining the level of fines (see, to that effect, Musique Diffusion française and Others
v Commission, paragraph 233 above, paragraphs 120 and 129, and Case C‑286/98 P Stora Kopparbergs Bergslags
v Commission
[2000] ECR I‑9925, paragraphs 68 to 77; see also the Opinion of Advocate General Mischo in Case C‑283/98 P Mo och Domsjö
v Commission
[2000] ECR I‑9855, I‑9858, points 95 to 101).
269. According to consistent case-law, for the assessment of the amount of the fine, factors going to intent may be more important than those relating to the effects of an anti-competitive practice, especially in the case of inherently serious infringements, such as those concerning price fixing (see, to that effect, C‑194/99 P Thyssen Stahl
v Commission
[2003] ECR I‑10821, paragraph 118; Prym and Prym Consumer
v Commission, paragraph 215 above, paragraph 96; and judgment of 12 November 2009 in Case C‑554/08 P Carbone-Lorraine
v Commission, not published in the ECR, paragraph 44).
270. In the present case, it is clear upon analysis of the part of the contested decision relating to the impugned facts that the processors knowingly implemented the anti-competitive conduct in respect of which they were fined (see, by way of example, recitals 111, 124, 125, 141 and 158). That consideration is also confirmed by the fact that the cartel was of a secret nature, as is apparent from recitals 363 and 473 to the contested decision.
271. It is clear from the contested decision, moreover, that the processors agreed on several occasions on measures intended to ensure the effective implementation of the agreement, such as sending each other the invoices received from their respective suppliers (recitals 122 and 129), assuming an obligation to consult in the event of purchases outside the agreements (recital 139) and an obligation to control their employees in order to ensure that they did not take decisions without the necessary coordination (recital 140), and creating a structure designed to ensure that anti-competitive aims were achieved (recital 187). In that regard, it should also be noted that it is clear from recital 383 to the contested decision that the Commission established that the cartel had been implemented, a fact which is not disputed by Deltafina.
272. In the second place, it must be held that, in setting the starting amount of the fine, the Commission took account of the likely effects of the unlawful conduct of each undertaking concerned. It follows from recitals 370 and 371 to the contested decision that the Commission considered it appropriate to set the fines by reference to the market position of each party in order to take into account, in addition to its specific weight, the likely effect of the unlawful behaviour of each undertaking.
273. It follows from the case-law that the market share of each of the undertakings concerned on the market which formed the subject-matter of a restrictive practice constitutes an objective factor which, even in the absence of proof that the infringement had an actual effect on the market, gives a fair measure of the liability of each of them as regards the potential harm that that practice represented for the normal operation of competition (see, to that effect, Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others
v Commission
[2004] ECR II‑1181, paragraphs 196 to 198, and in particular paragraph 197). Thus, according to the case-law, for the purposes of setting the amount of the fine, the market shares held by an undertaking are relevant in order to determine what influence it may exert on the market (Case C‑185/95 P Baustahlgewebe
v Commission
[1998] ECR I‑8417, paragraph 139, and Prym and Prym Consumer
v Commission, paragraph 215 above, paragraph 62).
274. Thus, it must be held that in the present case, by setting the starting amount of the fine by reference to t he market share held by each party, the Commission used a relevant criterion in order to determine the influence that Deltafina’s conduct might have had on the market.
275. In those circumstances, where there has been a very serious infringement of the competition rules and there are factors going to intent such as those referred to at paragraphs 270 and 271 above, even on the assumption that the agreement did not produce any effects on the market, as Deltafina claims, it must be concluded that the setting of the starting amount of the fine imposed on Deltafina, which was the operator with a significantly higher share of the relevant market than that held by the other participants in the cartel, at a level higher than the minimum of EUR 20 million envisaged by the Guidelines, and in particular at EUR 25 million, is not inappropriate.
276. In the light of those considerations, Deltafina’s argument that the starting amount of the fine is manifestly disproportionate on account of the fact that the infringement had had no effect on the market cannot succeed.
277. Furthermore, with specific regard to the data referred to in the contested decision which, in Deltafina’s submission, prove that the cartel had no effects on the market (see paragraph 255 above), it should be observed that it follows from the case-law that, in order to assess the gravity of the infringement, it is decisive to ascertain that the cartel members had done all they could to give concrete effect to their intentions. Since what then happened, so far as the market prices actually obtained were concerned, was liable to be influenced by other factors outside the control of the cartel members, the cartel members cannot benefit, by transforming them into factors that would justify a reduction of the fine, from external factors which counteracted their own efforts (see Raiffeisen Zentralbank Österreich and Others
v Commission, paragraph 217 above, paragraph 287; Carbone-Lorraine
v Commission, paragraph 223 above, paragraph 86; and Gütermann and Zwicky
v Commission, paragraph 222 above, paragraph 130 and the case-law cited).
278. Thus, in a context such as that of the present case, in which, in particular, the members of the cartel adopted measures to give actual effect to their anti-competitive aims (see paragraphs 270 and especially 271 above), a price evolution on the market such as the increase of tobacco prices to which Deltafina refers cannot in itself justify a reduction of the fine. In effect, it cannot be ruled out that, in the absence of the cartel, the increase in prices would have been greater than the increase referred to above.
279. Furthermore, according to the case-law, the Commission cannot be required, where the implementation of a cartel has been established, systematically to demonstrate that the agreements in fact enabled the undertakings concerned to achieve a higher level or, as in the present case, in the case of buying cartels, a lower level of transaction prices than that which would have prevailed in the absence of a cartel. It would be disproportionate to require such proof, which would absorb considerable resources, given that it would necessitate making hypothetical calculations based on economic models whose accuracy it would be difficult for the Court to verify and whose infallibility is in no way proved (see, to that effect, Raiffeisen Zentralbank Österreich and Others
v Commission, paragraph 217 above, paragraph 286; Carbone-Lorraine
v Commission, paragraph 223 above, paragraph 85; and Gütermann and Zwicky
v Commission, paragraph 222 above, paragraph 129 and the case-law cited).
280. Thus, even though it had at its disposal data which showed that the prices of raw tobacco had increased at a greater rate than the average increases in prices of other agricultural products, that does not have the consequence that the Commission was required to demonstrate that the agreements between processors had actually enabled them to attain a lower price than that which would have obtained in the absence of a cartel.
281. Last, Deltafina also claims that the contested decision is vitiated by a breach of the obligation to state reasons, in that the Commission did not state the grounds on which it concluded that the impact of the infringement could not be measured.
282. As regards the obligation to state reasons, it should be borne in mind that it follows from the case-law that, in the context of the setting of fines for infringement of competition law, that obligation is fulfilled where the Commission indicates in its decision the elements of assessment which enabled it to measure the gravity and the duration of the infringement. In the case of a decision imposing fines on a number of undertakings, the scope of the obligation to state reasons must be assessed in particular in the light of the fact that the gravity of the infringement must be assessed by reference to a large number of factors, such as the particular circumstances of the case, its context and the deterrent effect of the fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others
v Commission
[2002] ECR I‑8375, paragraphs 463 and 465).
283. In the present case, the Commission stated, at recitals 365 to 376 to the contested decision, the factors which it took into account when setting the starting amounts of the fines imposed on the various undertakings concerned. The Commission stated at those recitals, in particular, the criteria on the basis of which, first, it assessed, in accordance with the Guidelines, the gravity of the infringement and, second, it then set the starting amount, classifying the undertakings according to their importance on the market, determined by their market share, taking account of the specific weight of each undertaking and the likely effects of their unlawful conduct. The conditions laid down in the case-law with respect to the obligation to state reasons have thus been satisfied.
284. As specifically regards Deltafina’s complaint, it should be observed that, as the actual impact on the market is not a factor essential to the characterisation of the infringement as ‘very serious’ in the case of horizontal cartels aimed, in particular, as in the present case, at price fixing, the Commission was not required to take such impact into consideration when determining the gravity of the infringement (see paragraphs 222 to 224 and 261 to 265 above). In the present case, as observed at paragraphs 264 and 265 above, the Commission did not base its assessment of the gravity of the infringement on that criterion. The fact that the Commission did not state its reasons for not taking into consideration a criterion which it was not required to take into account and which in its view there was no need to take into account in the present case cannot amount to a failure to state reasons with respect to the setting of Deltafina’s fine.
285. In addition, it should also be borne in mind that, according to the case-law, in the context of analyses relating to infringements of Article 81 EC, Article 253 EC cannot be interpreted as requiring the Commission to explain in its decisions the reasons why, in relation to the calculation of the amount of the fine, it did not adopt alternative approaches to the one in fact adopted in the contested decision (see Case T‑18/05 IMI and Others
v Commission
[2010] ECR II‑1769, paragraph 153 and the case-law cited).
286. Consequently, the Commission did not act in breach of the obligation to state reasons.
287. It follows from all those considerations that the third part of the fifth plea must be rejected.
288. In the light of the foregoing, the fifth plea must be rejected in its entirety.
B – Seventh plea, alleging incorrect assessment of the attenuating circumstances and also breach of the principles of equal treatment and proportionality
1. Arguments of the parties
289. In the context of its seventh plea, Deltafina first of all takes issue with the Commission for not having taken account, when assessing Deltafina’s behaviour, of an attenuating circumstance that ought to have led it to reduce the fine. The Commission failed to take into consideration the wholly uncertain nature, at the material time, of the reference legislative framework in the sector affected by the cartel and therefore the uncertain application of Article 81 EC to the interprofessional agreements. The law regulating agreements of that type, namely legge n. 88 sulle norme sugli accordi interprofessionali e sui contratti di coltivazione e vendita dei prodotti agricoli (Law No 88 on the regulation of interprofessional agreements and contracts for the cultivation and sale of agricultural products) of 16 March 1988 (GURI No 69, 23 March 1988; ‘Law No 88/88’) encouraged horizontal collusion between processors. It follows from recitals 315 and 359 to 362 to the contested decision that the Commission was aware of that context, but that it drew no inference therefrom when setting the amount of the fine.
290. Deltafina also maintains that in the case that gave rise to Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding pursuant to Article 81(1) [EC] (Case COMP/C.38.238/B.2 – Raw tobacco – Spain) (‘the Raw tobacco – Spain decision’), in which the legislative framework was substantially similar to that in the present case, the Commission granted the processors a reduction of 40% of their fines.
291. Next, Deltafina claims that the fine imposed on it is disproportionate in the light of the facts that led the Commission not to grant it the benefit of immunity. It emphasises that its disclosure of its application for immunity did not harm the Commission’s investigation, that its good faith during the administrative stage cannot be called in question, that the Commission itself acknowledged that Deltafina had made a substantial contribution to the investigation and that this case has ‘exceptional features’, in that Deltafina was the first undertaking to apply for immunity under the 2002 Leniency Notice and that this was the first case in which conditional immunity was withdrawn. In spite of that, the Commission imposed an unusually high fine for behaviour when not even the official handling the case, 26 months after the facts, knew whether it did in fact constitute a breach of the obligation to cooperate (see paragraph 185 above). Deltafina also refers to the Commission’s practice of imposing symbolic fines in cases where there is reasonable doubt as to the existence of an infringement.
292. Last, at the hearing, Deltafina, referring to paragraph 169 of the judgment in Nintendo and Nintendo of Europe
v Commission, paragraph 190 above, took issue with the Commission for having granted it for its cooperation the same reduction of its fine as it had granted to Dimon Italia, namely 50% of the fine, when Dimon Italia had begun to cooperate later than the applicant and when the applicant’s cooperation was more valuable than that provided by Dimon Italia.
293. The Commission contends that Deltafina’s arguments should be rejected.
2. Findings of the Court
294. As regards the complaint alleging failure to take an attenuating circumstance into consideration, it should be observed that, according to the case-law, when the level of the penalty is set, the conduct of the undertakings concerned may be assessed in the light of the national legal framework, which is an attenuating circumstance (Case C‑198/01 CIF
[2003] ECR I‑8055, paragraph 57, and Erste Group Bank and Others
v Commission, paragraph 109 above, paragraph 228 et seq.).
295. It should be observed, moreover, that Section 3 of the Guidelines sets out, under the heading ‘Attenuating circumstances’, a non-exhaustive list of circumstances that may lead to a reduction of the fine, one being the existence of reasonable doubt on the part of the undertaking as to whether the restrictive conduct does indeed constitute an infringement.
296. In the present case, it must be stated that in the contested decision the Commission took the national legal framework and, in particular, Law No 88/88, to which Deltafina refers, into account. The Commission analyses, in particular, the impact of that law at recitals 315 to 324 and 358 to 362 to the contested decision. In that context, the Commission states that the national legal framework was capable of engendering uncertainty as to the legality of APTI’s and Unitab’s conduct. It was precisely for that reason that the Commission imposed symbolic fines on those associations (see, in particular, recital 362 to the contested decision).
297. However, as regards the processors’ cartel, in which Deltafina participated, it must be pointed out that, at recital 323 to the contested decision, the Commission asserts that that cartel ‘remains fully subject to the application of Article 81(1) [EC] as it fell totally outside the provisions of Law [No] 88/88, in so far as its main purpose was to determine maximum or average delivery prices as well as the sharing of quantities and suppliers’. Deltafina does not dispute that finding, but merely asserts, without substantiating its assertions, that the national legal framework encouraged the horizontal collusion between processors.
298. In those circumstances, Deltafina cannot claim that the Commission ought to have taken the reference legislative framework into account as an attenuating circumstance.
299. As regards the complaint relating to the Raw tobacco – Spain decision, it should be observed that, although Deltafina does not expressly say so, it claims in substance that there has been a breach of the principle of equal treatment in that, in a case similar to the present case, the Commission applied the attenuating circumstance in question with respect to the processors.
300. In that regard, it should be pointed out that, in accordance with settled case‑law, the principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified (Case 106/83 Sermide
[1984] ECR 4209, paragraph 28, and Case T‑161/05 Hoechst
v Commission
[2009] ECR II‑3555, paragraph 79).
301. In the present case, a comparison of the two decisions in question as regards the impact of the national legislative framework on the disputed practices shows that the two situations were characterised by significant differences so far as the impact of the legislative framework on the unlawful conduct was concerned. In particular, it follows from recitals 52 et seq., 349 et seq., 426 to 429, 437 and 438 to the Raw tobacco – Spain decision that in Spain the public authorities had played an important role in negotiating the agreements between producers and processors. The negotiations in question were described as ‘public’. In Spain, there was even a ‘ministerial practice … aimed at authorising and encouraging the parties to negotiate jointly the buying and selling conditions for tobacco, including prices’ (recital 60 to the Raw tobacco – Spain decision). The Commission concluded that ‘the public negotiations between the producers’ representatives and the processors [had] determined, at least to a certain degree, the material framework (in particular as regards the opportunities for colluding with each other and adopting a common position) within which the processors were able to develop – in addition to the common position which they would adopt in public negotiations – their secret strategy on average (maximum) delivery prices and quantities’ (recital 438 to the Raw tobacco – Spain decision). It was essentially for that reason that the Commission granted a reduction of 40% of the amount of the fines imposed on the Spanish processors.
302. However, the public authorities did not play such a role in the negotiations between processors and producers in the present case. Deltafina cannot therefore claim that by not applying to it the attenuating circumstance in question the Commission breached the principle of equal treatment.
303. In addition, it should be borne in mind that, according to the case-law, the mere fact that the Commission considered in previous decisions that certain factors constituted attenuating circumstances for the purposes of determining the amount of the fine does not mean that it is obliged to make the same assessment in a subsequent decision (Case T‑23/99 LR AF 1998
v Commission
[2002] ECR II‑1705, paragraph 337, and Groupe Danone
v Commission, paragraph 224 above, paragraph 395). Thus, Deltafina cannot rely on the fact that an attenuating circumstance was applied in a different case to infer that there was an error on the Commission’s part in the present case.
304. It is appropriate, next, to consider the complaint alleging that the fine is disproportionate in the light of the facts that led the Commission not to grant final immunity to Deltafina.
305. In that regard, it should be observed that, after finding in the contested decision, without any error on its part, that Deltafina had breached its obligation to cooperate, the Commission decided at the end of the administrative procedure not to grant it final immunity. Thus, as it no longer had the benefit of favourable treatment, Deltafina received a fine for its participation in the unlawful cartel between processors, the basic amount of which was set at EUR 60 million (see recital 379 to the contested decision).
306. However, in spite of Deltafina’s breach of a condition necessary in order to benefit from immunity under the 2002 Leniency Notice, the Commission decided to apply to it a reduction of the fine by reason of the attenuating circumstance represented by the substantial cooperation which it had provided during the procedure. In the light of the considerations summarised at paragraphs 38 to 42 above, the Commission thus decided to grant Deltafina a reduction of the fine of 50%.
307. It must be stated that in quantifying the reduction to be applied to the fine the Commission took into account and acknowledged both the exceptional circumstances of the present case and the extent of the cooperation provided by Deltafina throughout the procedure, which Deltafina mentions in support of its complaint. On the basis of those considerations, and notwithstanding Deltafina’s breach of its obligation to cooperate, the Commission granted it a very significant reduction of the fine which would otherwise have been imposed on it.
308. In the circumstances of the present case, regard being had to the reduction of the fine which it was granted, Deltafina cannot claim that the fine is disproportionate in the light of the facts which led the Commission to withdraw the benefit of immunity. Deltafina’s other arguments cannot call that finding in question.
309. As regards the argument alleging that no damage was caused to the investigation, apart from the fact that it is not proved, it is immaterial in the present case to both the finding of a breach of the obligation to cooperate (see paragraph 170 above) and the assessment of the cooperation. In addition, where it has been established that there was a breach of the obligation to cooperate, Deltafina cannot rely on its alleged good faith during the administrative stage in order to seek an additional reduction of the fine. As regards, last, the reference to the Commission’s practice in decisions of imposing symbolic fines, it cannot call in question the above finding either, in view of the case-law referred to at paragraph 244 above.
310. Last, in so far as at the hearing Deltafina relied for the first time in the proceedings on a breach of the principle of equal treatment by the Commission owing to the reduction of the fine granted to Dimon Italia, it submitted a new plea which was not based on elements of law and of fact which had come to light during the proceedings. In accordance with the first subparagraph of Article 48(2) of the Rules of Procedure of the Court, such a plea must be rejected as inadmissible.
311. In the light of the foregoing, the seventh plea must be rejected in its entirety.
312. Consequently, the claims seeking annulment in part of the contested decision must be rejected in their entirety. As regards the claims, submitted in the alternative, seeking a variation of the contested decision, the Court considers that, as no element in the present case is capable of justifying a reduction of the amount of the fine, those claims should not be upheld. It follows from all the foregoing that the action must be dismissed in its entirety.
III – The request for production of a document
313. As regards Deltafina’s request that the Commission should be ordered to produce the full version of a document annexed to the defence (see paragraph 68 above), it should be borne in mind, first of all, that according to consistent case-law the Commission is under no obligation to make internal documents of the institution available during the proceedings (Case T‑7/89 Hercules Chemicals
v Commission
[1991] ECR II‑1771, paragraph 54, and Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others
v Commission
[2000] ECR II‑491, paragraph 420). According to consistent case-law, moreover, during the proceedings before the EU Courts internal Commission documents are not to be communicated to the applicants, unless the circumstances of the case are exceptional and the applicants make out a plausible case for the need to do so. That restriction on access to internal documents is justified by the need to ensure the proper functioning of the institution concerned when dealing with infringements of the competition rules (see Case T‑9/99 HFB and Others
v Commission
[2002] ECR II‑1487, paragraph 40 and the case-law cited).
314. It must be held that Deltafina has not demonstrated the existence of exceptional circumstances or made a plausible case for the need to produce the full version of the document to which it refers in its request and that it has not explained why that document might be relevant so far as respect for the rights of the defence is concerned. In those circumstances, the request for production of the full version of that document cannot be upheld.
Costs
315. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
316. As Deltafina has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Deltafina SpA to pay the costs.