Case T-12/06

Deltafina SpA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Italian market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price fixing and market sharing – Immunity from fines – Cooperation – Fines – Proportionality – Gravity of the infringement – Attenuating circumstances)

Summary of the Judgment

1. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Grant of conditional immunity from fines before adoption of the Commission’s final decision – Scope

(Council Regulation No 1/2003, Art. 23; Commission Notice 2002/C 45/03, Sections 8(a) and (b), 11(a) to (c), 15, 16, 18 and 19)

2. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Total immunity – Conditions

(Council Regulation No 1/2003, Art. 23; Commission Notice 2002/C 45/03, Section 11(a))

3. Competition – Administrative procedure – Observance of the rights of the defence – Statement of objections – Provisional nature

(Art. 81 EC; Council Regulation No 1/2003, Art. 27(1))

4. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Grant of conditional immunity from fines before adoption of the Commission’s final decision – Refusal of the Commission to grant final immunity – No breach of principle of the protection of legitimate expectations

(Art. 81 EC; Commission Notice 2002/C 45/03, Section 11)

5. Acts of the institutions – Guidelines on the method of setting fines for infringements of the competition rules – Measure designed to produce external effects – Scope

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03)

6. Competition – Fines – Amount – Determination – Infringements classified as very serious on the basis of their nature alone

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03)

7. Competition – Fines – Decision imposing fines – Duty to state reasons – Scope

(Art. 253 EC; Council Regulation No 1/2003, Art. 23)

8. Competition – Administrative procedure – Access to the file – Commission not obliged to disclose internal documents

(Art. 81 EC)

1. Once it has received an application for immunity from fines under the notice on immunity from fines and reduction of fines in cartel cases, the Commission assesses the evidence supplied by the undertaking concerned in support of the application in order to ascertain whether that undertaking satisfies the conditions set out at point 8(a) or (b), as appropriate, of the Leniency Notice. If the undertaking is the first to satisfy those conditions, the Commission will grant it, in writing, conditional immunity from fines.

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 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.

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 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 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 Leniency Notice.

It is only 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 Leniency Notice.

It thus follows from the system as provided for in the 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.

(see paras 113-115, 117-118)

2. 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 point 11(a) of the notice on immunity from fines and reduction of fines in cartel cases, ‘fully, on a continuous basis and expeditiously’.

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.

Moreover, 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. It is clear from the very concept of cooperation, as described in the 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. 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.

Consequently, 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.

In this respect, 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.

The assessment of the existence of conduct reflecting a spirit of genuine cooperation 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.

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.

(see paras 125-130, 132-134)

3. In competition matters, the Commission may, in its final decision imposing a fine for the infringement of competition rules, amend the arguments set out in the statement of objections, 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.

(see para. 176)

4. The right to rely on the principle of the protection of legitimate expectations 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.

In the context of an administrative procedure for infringement of the European Union competition rules, an undertaking having submitted an application for immunity from fines to the Commission cannot rely on any precise, unconditional and consistent assurance that it would obtain final immunity at the end of the administrative procedure. In accordance with point 19 of the notice on immunity from fines and reduction of fines in cartel cases, 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 the undertaking concerned any precise assurance as to the benefit of final immunity.

Furthermore, the Commission is not required to inform applicants for immunity that they must comply with the obligations arising under the Leniency Notice and, in particular, the obligation to cooperate, as the Leniency Notice itself clearly sets out the consequences of such a breach.

(see paras 190-193)

5. The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty 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.

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.

The fact that the Commission has limited its own discretion by adopting the Guidelines is not incompatible with its maintaining a significant discretion. 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.

(see paras 217-219)

6. According to the method provided for in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, 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.

However, the three factors to be taken into account in assessing the gravity of the infringement 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. 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 price fixing. Thus, the Commission may classify horizontal agreements aimed in particular 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 and without such classification being precluded by the limited extent of the geographic market concerned.

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.

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, 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.

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 on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty supports the conclusion that only restrictions that are geographically very extensive can be so characterised. Furthermore, agreements or concerted practices relating, in particular, 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. 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 being classified as ‘very serious’.

(see paras 220, 222-224, 226, 248-250, 277, 279)

7. In the context of the setting of fines for infringement of competition law, the obligation to state reasons 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.

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, at price fixing, the Commission is not required to take such impact into consideration when determining the gravity of the infringement. 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 the fine.

(see paras 282, 284)

8. The Commission is under no obligation to make internal documents of the institution available during the proceedings. 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 para. 313)

JUDGMENT OF THE GENERAL COURT (Third Chamber)

9 September 2011 ( )

(Competition – Agreements, decisions and concerted practices – Italian market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price fixing and market sharing – Immunity from fines – Cooperation – Fines – Proportionality – Gravity of the infringement – Attenuating circumstances)

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

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, the 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 which 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 obligation 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 administrat