Judgment of the Court (Ninth Chamber) of 26 September 2013 — Alliance One International v Commission

(Case C‑679/11 P)

‛Appeal — Competition — Agreements, decisions and concerted practices — Spanish market for the purchase and first processing of raw tobacco — Price-fixing and market-sharing — Infringement of Article 81 EC — Whether unlawful conduct of a subsidiary attributable to its parent company — Obligation to state reasons — Fundamental rights — Deterrent effect — Equal treatment — Mitigating circumstances — Cooperation — Unlimited jurisdiction — Ne ultra petita — Right to a fair hearing’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Possibility of the Commission corroborating the presumption with facts to demonstrate the actual exercise of decisive influence — No obligation (Art. 101(1) TFEU) (see paras 36-41)

2. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 50, 51, 82, 83)

3. Appeals — Grounds — Requirement that criticism of the reasoning of the General Court be specific (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2)) (see paras 52, 53)

4. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 170(1)) (see para. 60)

5. Competition — Fines — Amount — Determination — Deterrent effect — Criteria for evaluating the deterrence factor — Account taken of the size and global resources of the fined undertaking — Turnover which may be taken into account (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 73-75)

6. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Termination of the infringement before the Commission’s intervention — Exclusion (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, point 3, third indent) (see paras 80, 81)

7. Appeals — Grounds — Plea directed against a superfluous ground — Invalid plea in law — Rejection (see paras 85, 86)

8. Appeals — Grounds — Inadequate statement of reasons — Scope of the obligation to state reasons (Art. 256 TFEU; Statute of the Court of Justice, Arts 36, 53, first para. and 58, first para.; Rules of Procedure of the General Court, Art. 81) (see paras 98-102)

9. Competition — Fines — Amount — Discretion of the Commission — Judicial review — Unlimited jurisdiction — Scope (Art. 261 TFEU; Council Regulations No 17, Art. 17, and No 1/2003, Art. 31) (see paras 104-107, 110)

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 12 October 2011 in Case T‑41/05 Alliance One International v Commission reducing the part of the fine imposed on Agroexpansión, for the payment of which Alliance One International, Inc. was held jointly and severally liable with Agroexpansión, and dismissing as to the remainder an application for partial annulment of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) of the EC Treaty (Case COMP/C.38.238/B.2 ‐ Raw tobacco sector in Spain) concerning a cartel aimed at fixing the prices paid to producers and the quantities purchased from them in the Spanish raw tobacco market.

Operative part:

The Court:

1. Dismisses the appeal and the cross-appeal;

2. Orders Alliance One International Inc. to pay the costs of the appeal;

3. Orders the European Commission to pay the costs of the cross-appeal.

Judgment of the Court (Ninth Chamber) of 26 September 2013 — Alliance One International v Commission

(Case C‑679/11 P)

‛Appeal — Competition — Agreements, decisions and concerted practices — Spanish market for the purchase and first processing of raw tobacco — Price-fixing and market-sharing — Infringement of Article 81 EC — Whether unlawful conduct of a subsidiary attributable to its parent company — Obligation to state reasons — Fundamental rights — Deterrent effect — Equal treatment — Mitigating circumstances — Cooperation — Unlimited jurisdiction — Ne ultra petita — Right to a fair hearing’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Possibility of the Commission corroborating the presumption with facts to demonstrate the actual exercise of decisive influence — No obligation (Art. 101(1) TFEU) (see paras 36-41)

2. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 50, 51, 82, 83)

3. Appeals — Grounds — Requirement that criticism of the reasoning of the General Court be specific (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2)) (see paras 52, 53)

4. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 170(1)) (see para. 60)

5. Competition — Fines — Amount — Determination — Deterrent effect — Criteria for evaluating the deterrence factor — Account taken of the size and global resources of the fined undertaking — Turnover which may be taken into account (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 73-75)

6. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Termination of the infringement before the Commission’s intervention — Exclusion (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, point 3, third indent) (see paras 80, 81)

7. Appeals — Grounds — Plea directed against a superfluous ground — Invalid plea in law — Rejection (see paras 85, 86)

8. Appeals — Grounds — Inadequate statement of reasons — Scope of the obligation to state reasons (Art. 256 TFEU; Statute of the Court of Justice, Arts 36, 53, first para. and 58, first para.; Rules of Procedure of the General Court, Art. 81) (see paras 98-102)

9. Competition — Fines — Amount — Discretion of the Commission — Judicial review — Unlimited jurisdiction — Scope (Art. 261 TFEU; Council Regulations No 17, Art. 17, and No 1/2003, Art. 31) (see paras 104-107, 110)

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 12 October 2011 in Case T‑41/05 Alliance One International v Commission reducing the part of the fine imposed on Agroexpansión, for the payment of which Alliance One International, Inc. was held jointly and severally liable with Agroexpansión, and dismissing as to the remainder an application for partial annulment of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) of the EC Treaty (Case COMP/C.38.238/B.2 ‐ Raw tobacco sector in Spain) concerning a cartel aimed at fixing the prices paid to producers and the quantities purchased from them in the Spanish raw tobacco market.

Operative part:

The Court:

1. Dismisses the appeal and the cross-appeal;

2. Orders Alliance One International Inc. to pay the costs of the appeal;