Case T-29/05

Deltafina SpA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Spanish market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price-fixing and market-sharing – Consistency between the statement of objections and the contested decision – Rights of the defence – Definition of the relevant market – Fines – Gravity of the infringement – Aggravating circumstances – Role as leader – Cooperation)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Imputation to an undertaking – Commission decision establishing the liability of an undertaking which was active on a market immediately downstream of the relevant market and actively and intentionally contributed to the cartel

(Arts 3(1)(g) EC and 81(1) EC)

2. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence – Scope

(Council Regulations Nos 17 and 1/2003)

3. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Effect on trade between Member States – Criteria for assessment

(Art. 81(1) EC)

4. Acts of the institutions – Guidelines on the method of setting fines imposed for infringement of competition rules

(Council Regulation No 17, Art. 15; Commission Communication 98/C 9/03)

5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Assessment on a case-by-case basis

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03)

6. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Interdependence between the three criteria expressly referred to in the Guidelines adopted by the Commission – Classification of an infringement as very serious – Major role played by the criterion relating to the nature of the infringement

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03)

7. Competition – Fines – Amount – Determination – Criteria – Actual impact on the market

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 1A, first para.)

8. Competition – Fines – Legal context – Determination – Effect of the Commission’s previous decision-making practice – None

(Council Regulations Nos 17 and 1/2003)

9. Acts of the institutions – Statement of reasons – Obligation – Scope

(Art. 253 EC)

10. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence

(Council Regulations Nos 17 and 1/2003; Commission Communication 98/C 9/03, Section 2)

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role as leader of the cartel – Concept

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 2)

12. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Assessment – Need to take separate account of each of the circumstances – No such need – Global assessment

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 3)

13. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Conduct deviating from that agreed within the cartel – Assessment

(Council Regulations Nos 17, Art. 15, and 1/2003, Art. 23; Commission Communication 98/C 9/03, Section 3, second indent)

14. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Termination of the infringement before the Commission's intervention – Excluded

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 3, third indent)

15. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation on the part of the fined undertaking – Conditions

(Council Regulations Nos 17 and 1/2003; Commission Communication 96/C 207/04)

16. Competition – Community rules – Infringements – Fines – Determination – Criteria – Raising of the general level of fines – Lawfulness – Conditions

(Arts 81(1) EC and 82 EC; Council Regulations Nos 17 and 1/2003)

1. The Commission does not exceed the limits of the prohibition laid down in Article 81(1) EC by establishing that an undertaking is liable for an infringement of that provision where, while active on the market immediately downstream from that on which the anti‑competitive practices were implemented, that undertaking participated actively and intentionally in a cartel among producers active on a different market from that on which it itself operated.

An undertaking may infringe the prohibition laid down in Article 81(1) EC where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a specific relevant market within the common market, and that does not mean that the undertaking has to be active on that relevant market itself.

Accordingly, an undertaking may participate in the implementation of a restriction of competition even if it does not restrict its own freedom of action on the market on which it is primarily active. Any other interpretation might restrict the scope of the prohibition laid down in Article 81(1) EC to an extent incompatible with its useful effect and its main objective, as read in the light of Article 3(1)(g) EC, which is to ensure that competition in the internal market is not distorted, since proceedings against an undertaking for actively contributing to a restriction of competition could be blocked simply on the ground that that contribution does not come from an economic activity forming part of the relevant market on which that restriction materialises or on which it is intended to materialise.

A reading of the term ‘agreements between undertakings’ in the light of the objectives pursued by Article 81(1) EC and by Article 3(1)(g) EC tends to confirm that the notions of a cartel and of an undertaking which is the perpetrator of an infringement are conceptually independent of any distinction based on the sector or the market on which the undertakings concerned are active.

The attribution of the infringement as a whole to an undertaking which has participated in a cartel is consistent with the requirements of the principle of individual liability where two conditions are met, the first being of an objective and the second a subjective nature.

The first condition is met, as regards the relationship between competitors on the same relevant market and the relationship between such competitors and their clients, where the participating undertaking has contributed to the implementation of the cartel, even in a subsidiary, accessory or passive role, for example by tacitly approving the cartel and by failing to report it to the administrative authorities.

As regards the second condition, the attribution of the infringement as a whole to the participating undertaking also depends on the manifestation of its own intention, which shows that it is in agreement, albeit only tacitly, with the objectives of the cartel.

(see paras 48-49, 51, 57-58, 62)

2. In all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules should contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it.

An infringement of the rights of the defence during the administrative procedure must be examined in the light of the objections established by the Commission in the statement of objections and in the decision concluding the procedure. In those circumstances, the finding of an infringement of the rights of the defence presupposes that the objection – which the undertaking maintains was not raised against it in the statement of objections – has been included by the Commission in its final decision. A mere difference in presentation of the facts, where the intention is to give a more precise account of the facts in the final decision, cannot constitute a substantive alteration of the objections.

(see paras 113-115, 120)

3. For an agreement, decision or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that it might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant. Thus, an effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive.

Article 81(1) EC does not require that the arrangements referred to in that provision have actually appreciably affected trade between Member States, but requires that it be established that those arrangements are capable of having that effect.

(see paras 167-169)

4. Although 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 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 that are compatible with the principle of equal treatment.

(see para. 230)

5. The fact that, 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, the Commission set out its approach to assessment of the gravity of an infringement does not prevent it from assessing that criterion as a whole by reference to all the relevant circumstances of the case, including factors that are not expressly mentioned in the Guidelines.

(see para. 230)

6. According to 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, the three factors to be taken into account in assessing the gravity of an infringement of Community competition rules are the nature of the infringement, its actual impact on the market, where that can be measured, and the size of the relevant geographic market. Those three factors do not have the same weight in the context of the overall assessment. The nature of the infringement plays a primary role, in particular in classifying infringements as ‘very serious’.

In that regard, it follows from the description of very serious infringements in the Guidelines that agreements or concerted practices involving in particular price fixing or market sharing may be classified as ‘very serious’ on the basis of their nature alone, without it being necessary for such conduct to have a particular impact or cover a particular geographic area. That conclusion is corroborated by the fact that, while the indicative description of serious infringements expressly mentions the market impact and the effects on extensive areas of the common market, that of very serious infringements does not mention any requirement as to the actual market impact or the effects produced in a particular geographic area.

There is an interdependence between the three factors in the assessment of gravity in that a high degree of gravity in respect of one of the factors may offset the lesser gravity of the infringement in respect of other factors.

The extent of the geographic market is only one of the three criteria which are relevant for the purpose of the overall assessment of the gravity of the infringement and 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 EC Treaty, nor Regulation No 17, nor Regulation No 1/2003, nor the Guidelines, nor the case-law support the conclusion that only geographically very extensive restrictions may be classified as such. Accordingly, the small size of the relevant geographic market does not preclude the infringement established being classified as ‘very serious’. That applies all the more where the relevant product market is small, since the size of the product market is not, in principle, a factor that must necessarily be taken into account but simply one relevant factor among others in assessing the gravity of the infringement and fixing the amount of the fine.

It is clear that the infringement of which tobacco processors and an undertaking in question, whose activities include the marketing of processed tobacco, are accused, which consists in fixing the prices of various varieties of raw tobacco in a Member State and sharing out quantities of raw tobacco to be purchased from producers, constitutes by its nature a very serious infringement. Infringements of that kind are classified as ‘particularly serious’, since they involve direct interference with the essential parameters of competition on the market in question or clear infringements of the Community competition rules.

(see paras 231, 233-234, 238, 240-242)

7. In the assessment of the gravity of the infringement of Community competition rules for the purpose of setting the amount of the fine, the fact that the Commission has failed to prove to the requisite legal standard that the cartel had an actual impact on the market is irrelevant to the classification of the infringement as ‘very serious’.

The lack of adequate proof as to any actual impact on the market cannot call into question the starting amount of the fine determined by the Commission by reference to the gravity of the infringement.

(see paras 250-251)

8. The Commission’s previous practice does not itself serve as a legal framework for fines imposed in competition matters.

(see paras 292, 426)

9. The statement of reasons for an individual decision must disclose, clearly and unequivocally, the reasoning of the institution which adopted the measure, in such a way as to allow those concerned to know the grounds of the measure adopted and the competent court to exercise its power of review. The requirement to state reasons must be assessed by reference to the circumstances of the case. The reasoning is not required to go into all the relevant facts and points of law, since the question whether it meets the requirements of Article 253 EC must be assessed by reference not only to the wording of the measure in question but also to the context in which it was adopted and to all the legal rules governing the matter in question.

(see para. 319)

10. Provided that the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the right of the undertakings concerned to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined. However, to oblige the Commission to give to undertakings under investigation specific indications of the level of the contemplated fines at the stage of the statement of objections would in effect require it inappropriately to anticipate its final decision.

The characterisation of an undertaking as the leader of a cartel has important consequences as to the amount of the fine to be imposed on the undertaking. Thus, in accordance with Section 2 of 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, it is an aggravating circumstance which results in a significant increase in the amount of the fine. Similarly, in accordance with Section B(e) of the Leniency Notice, such characterisation automatically rules out the benefit of a very significant reduction of the fine, even if the undertaking classified as leader meets all the conditions laid down for obtaining such a reduction. It is therefore for the Commission to set out in the statement of objections the evidence which it considers relevant for the purpose of enabling the undertaking which may be characterised as the leader of the cartel to reply to such a claim. However, in the light of the fact that that statement is but a step in the adoption of the final decision and does not therefore constitute the Commission’s definitive position, the Commission cannot be required, already at that stage, to carry out a legal classification of the evidence on which it relies in its final decision in characterising an undertaking as the leader of the cartel.

(see paras 324-325, 327)

11. For the purpose of determining the amount of the fine for infringement of Community competition rules, the undertaking in question must, in order to be characterised as leader, have represented a significant driving force in the cartel and bore individual and specific liability for the operation of the cartel.

While the evidence relied on by the Commission may demonstrate that that undertaking played an active and direct role in the cartel, it does not suffice to establish that it represented a significant driving force in the cartel, especially if there is nothing in the file to show that the undertaking concerned took any initiatives to create the cartel or that it was instrumental in securing the participation of any of the other undertakings and there is no evidence to prove that the undertaking concerned assumed responsibility for activities usually associated with acting the part of leader of a cartel, such as chairing meetings or centralising and distributing certain data.

(see paras 332-335)

12. The Commission must, in principle, comply with the terms of its own Guidelines when determining the amount of fines for infringement of Community competition rules. However, 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 do not state that the Commission must always take account separately of each of the mitigating circumstances listed in Section 3 of the Guidelines and it is not obliged to grant an additional reduction on such grounds automatically; the appropriateness of any reduction of the fine in respect of mitigating circumstances must be examined comprehensively on the basis of all the relevant circumstances.

The adoption of the Guidelines has not rendered irrelevant the previous case-law under which the Commission enjoys a discretion as to whether or not to take account of certain matters when setting the amount of the fines it intends imposing, by reference in particular to the circumstances of the case.

Thus, in the absence of any binding indication in the Guidelines regarding the mitigating circumstances that may be taken into account, it must be concluded that the Commission has retained a degree of latitude in making an overall assessment of the extent to which a reduction of fines may be made in respect of mitigating circumstances.

(see paras 347-348)

13. In setting the amount of the fine for infringement of Community competition rules, the Commission is not required to recognise the existence of an attenuating circumstance consisting of non-implementation of a restrictive agreement unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the agreement, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the agreement in question. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful agreement and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition.

(see para. 350)

14. For the purpose of setting the amount of the fine for infringement of Community competition rules, the ‘termination of the infringement as soon as the Commission intervenes’, referred to in the third indent of Section 3 of 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, can, logically, constitute an attenuating circumstance only if there are reasons to suppose that the undertakings concerned were encouraged to cease their anti-competitive conduct by the interventions in question, the situation in which the infringement has already come to an end before the date on which the Commission first intervenes not being covered by that provision in the Guidelines.

(see paras 354-355)

15. The Commission has a wide discretion as regards the method of calculating fines for infringement of Community competition rules and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. It enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings. In order to justify the reduction of a fine for cooperation, the conduct of an undertaking must facilitate the Commission’s task of finding and bringing to an end such infringements. When assessing the cooperation provided by the undertakings, the Commission cannot ignore the principle of equal treatment, which is infringed where comparable situations are treated differently or different situations are treated in the same way, unless such treatment is objectively justified.

(see paras 389-390, 399)

16. The fact that in the past the Commission has applied fines of a particular level for certain types of infringements does not mean that it is stopped from raising that level within the limits indicated by Regulation No 1/2003 if that is necessary to ensure implementation of Community competition policy.

Economic operators cannot have a legitimate expectation that an existing situation which is capable of being altered by the Commission in the exercise of its discretionary power will be maintained.

Consequently, undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation that the Commission will not exceed the level of fines previously imposed.

Any undertaking involved in an administrative procedure in which fines may be imposed must take account of the possibility that the Commission may decide at any time to raise the level of the fines by comparison to that applied in the past.

(see paras 426, 435)

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

8 September 2010 ( )

(Competition – Agreements, decisions and concerted practices – Spanish market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price-fixing and market-sharing – Consistency between the statement of objections and the contested decision – Rights of the defence – Definition of the relevant market – Fines – Gravity of the infringement – Aggravating circumstances – Role as leader – Cooperation)

In Case T‑29/05,

Deltafina SpA, established in Orvieto (Italy), represented by R. Jacchia, A. Terranova, I. Picciano, F. Ferraro, J.-F. Bellis and F. Di Gianni, lawyers,

applicant,

v

European Commission, represented initially by É. Gippini Fournier and F. Amato, and subsequently by É. Gippini Fournier and V. Di Bucci, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C (2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.238/B.2 – Raw tobacco – Spain) and, in the alternative, a reduction in the fine imposed on the applicant in the decision

THE GENERAL COURT (Fourth Chamber),

composed of O. Czúcz, President, I. Labucka and K. O’Higgins (Rapporteur), Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 9 June 2009,

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 the American company Universal Corp., through a wholly owned subsidiary, the American company Universal Leaf Tobacco Company Inc. (‘Universal Leaf’).

2 Universal Leaf also holds all the share capital in Tobacos Españoles, SL (‘Taes’), one of the four undertakings engaged in the first processing of raw tobacco in Spain (‘the processors’ or ‘the Spanish processors’).

3 Reference will be made hereinafter to the group to which the various companies referred to in paragraphs 1 and 2 belong as ‘the Universal Group’.

4 On 3 and 4 October 2001, the Commission of the European Communities, being in possession of information to the effect that the Spanish processors and producers of raw tobacco had infringed Article 81 EC, carried out investigations pursuant to Article 14 of First Council Regulation No 17 of 6 February 1962 implementing Articles [81 EC] and [82 EC] (OJ English Special Edition, Series I Chapter 1959-1962, p. 87) at the premises of three of those processors, namely Compañia española de tabaco en rama, SA (‘Cetarsa’), Agroexpansión, SA and World Wide Tobacco España, SA (‘WWTE’) and the Asociación Nacional de Empresas Transformadoras de Tabaco (‘Anetab’).

5 The Commission also carried out investigations at the premises of the Tobacco Workers’ Guild and the European Federation of Tobacco Transformers on 3 October 2001 and at the premises of the Federación nacional de cultivadores de tabaco (‘FNCT’) on 5 October 2001.

6 By letter of 6 January 2002, relying on the Commission Notice on the non‑imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the Leniency Notice’), the processors and Anetab indicated to the Commission their intention to cooperate.

7 By letter of 21 January 2002, they provided certain information to the Commission.

8 By letter of 15 February 2002, Universal Leaf informed the Commission that it fully supported Taes’ intention to cooperate in the context of the Leniency Notice. It also stated that Deltafina was engaged, together with Taes, in drafting a statement describing Taes’ role and activities on the Spanish tobacco market and that it hoped that Deltafina could also benefit from the advantages conferred by the Leniency Notice.

9 Taes sent to the Commission the statement referred to in paragraph 8 on 18 February 2002.

10 Subsequently, the Commission sent a number of requests for information to the Spanish processors, Anetab and the FNCT, on the basis of Article 11 of Regulation No 17. It also requested the Spanish Ministry of Agriculture, Fisheries and Food (‘the Ministry of Agriculture’) to provide information on Spanish legislation on agricultural products.

11 On 11 December 2003, the Commission initiated the procedure which gave rise to the present case and adopted a statement of objections, which it addressed to 20 undertakings or associations, including the Spanish processors, Deltafina, Universal, Universal Leaf, Anetab and the FNCT.

12 The undertakings and associations in question were given access to the Commission’s investigation file in the form of a copy on CD-Rom which was sent to them and submitted written observations in response to the objections raised by the Commission. Deltafina submitted its written observations on 1 March 2004.

13 A hearing, at which Deltafina participated, took place on 29 March 2004.

14 After consulting the Advisory Committee on Restrictive Practices and Monopolies and in the light of the final report of the Hearing Officer, on 20 October 2004 the Commission adopted Decision C (2004) 4030 final relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.238/B.2 — Raw tobacco — Spain) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 19 April 2007 (OJ 2007 L 102, p. 14).

15 The contested decision relates to two horizontal cartels entered into and implemented on the Spanish raw tobacco market.

16 The object of the first cartel, which involved the producers and Deltafina, was to fix each year, over the period 1996/2001, the (maximum) average delivery price for each variety and grade of raw tobacco and to share out the quantities of each variety of raw tobacco that each of the processsors could purchase from the producers (see, in particular, recitals 74 to 76 and 276 in the preamble to the contested decision). Between 1999 and 2001, the processors and Deltafina also agreed among themselves price brackets per quality grade for each raw tobacco variety that was given in the schedules annexed to the ‘cultivation contracts’ and ‘additional conditions’, namely the average minimum price per producer and the average minimum price per producer group (see, in particular, recitals 77 to 83 and 276).

17 Reference will be made hereinafter to the cartel described at paragraph 16 as ‘the producers’ cartel’.

18 The second cartel identified in the contested decision involved the three agricultural unions in Spain, namely the Asociación agraria de jóvenes agricultores (‘the ASAJA’), the Unión de pequeños agricultores (‘the UPA’) and the Coordinadora de organizaciones de agricultores y ganaderos (‘the COAG’), as well as the Confederación de cooperativas agrarias de España (‘the CCAE’). The object of that cartel was to fix each year, over the period 1996/2001, the price brackets per quality grade for each raw tobacco variety that was given in the schedules annexed to the ‘cultivation contracts’ and the ‘additional conditions’ applicable (see, in particular, recitals 77 to 83 and 277).

19 Reference will be made hereinafter to the cartel described at paragraph 18 as ‘the cartel of the producers’ representatives’.

20 In the contested decision, the Commission considered that each of those cartels constituted a single and continuous infringement of Article 81(1) EC (see, in particular, recitals 275 to 277).

21 In Article 1 of that decision, the Commission attributed liability for the processors’ cartel to nine undertakings, including the Spanish processors and Deltafina, and liability for the cartel of the producers’ representatives to the ASAJA, the UPA, the COAG and the CCAE (collectively, ‘the producers’ representatives’).

22 In Article 2 of the contested decision, the Commission ordered those undertakings and producers’ representatives to bring immediately to an end the infringements referred to in Article 1, if they had not already done so, and to refrain from repeating any restrictive practice having the same or similar object or effect.

23 The following fines were imposed in Article 3 of the contested decision:

– Deltafina: EUR 11 880 000;

– Cetarsa: EUR 3 631 500;

– Agroexpansión: EUR 2 592 000;

– WWTE: EUR 1 822 500;

– Taes: EUR 108 000;

– the ASAJA: EUR 1 000;

– the UPA: EUR 1 000;

– the COAG: EUR 1 000;

– the CCAE: EUR 1 000.

24 The amount of the fine imposed on Deltafina takes account in particular of Detalfina’s role as leader of the processors’ cartel (recitals 435 and 436). In the light of that role, the Commission increased the basic amount of the fine by 50% for aggravating circumstances. However, Deltafina was granted a 40% reduction in the basic amount of the fine for attenuating circumstances (recitals 437 and 438) and a 10% reduction in the amount of the fine for its cooperation during the administrative procedure (recitals 448 to 456).

25 It is also apparent from Article 3 of the contested decision that the parent companies of WWTE are jointly and severally liable for payment of the fine imposed on WWTE and the parent company of Agroexpansión for payment of the fine imposed on that company.

Procedure and forms of order sought by the parties

26 By application lodged at the Registry of the General Court on 20 January 2005, Deltafina brought the present action.

27 Upon hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, requested the parties to produce certain documents and put questions to them. The parties complied with those requests within the time-limit set.

28 The parties presented oral argument and their answers to the Court’s questions at a hearing held on 9 June 2009.

29 The applicant claims that the Court should:

– annul the contested decision;

– in the alternative, reduce the amount of the fine;

– order the Commission to pay the costs.

30 The Commission contends that the Court should:

– dismiss the action as inadmissible in part and, in any event, wholly unfounded;

– order the applicant to pay the costs;

– failing which, order each of the parties to bear their own costs if the applicant is unsuccessful in its pleas to the same extent as the Commission or order the applicant to bear its own costs and pay part of the costs incurred by the Commission if the applicant is unsuccessful in the majority of its pleas.

Law

31 In support of its action, Deltafina relies on 11 pleas, alleging:

– (1) infringement of Article 81(1) EC, Article 23(2)(a) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and the principles of legality and individual liability, as well as failure to state reasons and misuse of powers;

– (2) infringement of Article 27(1) and (2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing, essential procedural requirements and the principles of legality, legal certainty and proportionality, as well as failure to state reasons and misuse of powers;

– (3) infringement of Article 81(1) EC, Article 2 of Regulation No 1/2003, paragraph 43 of the Guidelines on the effect on trade concept contained in Articles 81 [EC] and 82 [EC] (OJ 2004 C 101, p. 81), as well as failure to state reasons;

– (4) infringement of Article 2 and Article 23(2) of Regulation No 1/2003, section 1A and section 5(d) of 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’), the principle of proportionality and the principle of ‘equal treatment and penalties’, as well as failure to state reasons and misuse of powers;

– (5) infringement of Article 23(3) of Regulation No 1/2003, section 1B of the Guidelines and the principle of equal treatment, as well as misuse of powers;

– (6) infringement of Article 23(3) of Regulation No 1/2003 and section 2 of the Guidelines, as well as failure to state reasons and misuse of powers;

– (7) infringement of Article 23(3) of Regulation No 1/2003 and section 3 of the Guidelines, as well as misuse of powers;

– (8) infringement of Article 23(2) of Regulation No 1/2003 and section 5(a) of the Guidelines;

– (9) infringement of Article 23(3) of Regulation No 1/2003, the preamble to and section 4 of the Guidelines, section B(e) and section D of the Leniency Notice and the principle of equal treatment, as well as failure to state reasons and misuse of powers;

– (10) infringement of Article 23(3) of Regulation No 1/2003, section 5(b) of the Guidelines and the principle of proportionality, as well as misuse of powers;

– (11) infringement of the principles of equal treatment, of non‑retroactivity of penalties and the protection of legitimate expectations, as well as misuse of powers.

32 The first three pleas are relied on as main pleas and relate to the claim seeking annulment of the contested decision. The seven following pleas are put forward in the alternative and relate to the claim seeking a reduction in the amount of the fine. The last plea is raised in the further alternative, in the event that the seven previous pleas are rejected, and also seeks a reduction in the amount of the fine.

1. Admissibility of the complaints alleging misuse of powers

33 In the various pleas on which it relies in support of its application, with the exception of the third and eighth pleas, Deltafina claims, inter alia, that the Commission misused its powers.

34 According to settled case-law, the concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the EC Treaty for dealing with the circumstances of the case (Case C‑331/88 Fedesa and Others [1990] ECR I-4023, paragraph 24, and Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 99).

35 In the present case, it is clear that Deltafina merely relies in general terms on a series of complaints alleging misuse of powers, without providing any evidence or argument in support of those complaints or even stating what the Commission’s actual purpose might be in adopting the contested decision. Those complaints, thus presented, fail to meet the requirements laid down in Article 44(1)(c) of the Rules of Procedure in that they are insufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. They must therefore be declared inadmissible (see, to that effect, Case T‑352/94 Mo och Domsjö v Commission [1998] ECR II‑1989, paragraphs 333 and 334).

2. The submissions seeking annulment of the contested decision

The first plea, alleging infringement of Article 81(1) EC, Article 23(2)(a) of Regulation No 1/2003 and the principles of legality and individual liability, as well as failure to state reasons

36 The first plea relied on by Deltafina can be divided into four parts. In the first part, it criticises the Commission for holding it liable for an infringement committed on a market on which it is not present. In the second part, it claims that the conduct which, in its view, is attributed to it is not covered by Article 81(1) EC or by Article 23(2)(a) of Regulation No 1/2003. In the third part, it expresses the view that the Commission incorrectly regarded it as the leader of the processors’ cartel. Lastly, in the fourth part, it claims that the Commission failed to define the relevant market in the contested decision.

37 The Court will examine the first two parts together and the third and fourth parts separately.

38 As regards the complaint alleging infringement of the duty to state reasons, put forward by Deltafina in its first plea, without linking it to any one of the four parts of that plea, it is clear that it has failed to provide any argument capable of clarifying the complaint. It must therefore be rejected as inadmissible under Article 44(1)(c) of the Rules of Procedure (see paragraph 35 above).

The first and second parts of the plea, alleging, respectively, that the Commission holds Deltafina liable for an infringement committed on a market on which it is not present and that the conduct attributed to Deltafina is not covered by Article 81(1) EC or by Article 23(2)(a) of Regulation No 1/2003

– Arguments of the parties

39 First, Deltafina submits that it is not active on the raw tobacco purchasing and processing market in Spain and, therefore, even if that market was the relevant market, it could not be held responsible for the conduct adopted on the market.

40 Second, Deltafina claims that it was not involved in setting up the agreements concluded between the processors and did not implement them, since it was not authorised to operate as a processor in Spain and therefore lacked standing to negotiate and conclude contracts with Spanish raw tobacco producers or to participate in sharing out quantities of raw tobacco to be purchased. It maintains that the role of ‘perpetrator or co‑perpetrator of the infringements’ cannot be ascribed to it, even less that of leader of the processors’ cartel, but, at most, the role of a ‘person who, from both an objective and subjective standpoint, was outside the cartel but who indirectly facilitated the perpetrators’ conduct by attending meetings, exchanging information and communications, mediating between the participants and preserving documents and data’. Such conduct is not envisaged by Article 81(1) EC or Article 23(2)(a) of Regulation No 1/2003 and cannot therefore be subject to penalties.

41 In support of its claims, Deltafina relies on Commission Decision 2005/349/EC of 10 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 – Organic peroxides) (OJ 2005 L 110, p. 44) (‘the organic peroxides decision’). It states that, in that decision, the Commission found that there had been an infringement of Article 81(1) EC on the part of a company outside the cartel concerned, namely the consultancy firm AC‑Treuhand AG, on account of certain conduct on the part of that firm which was similar in some respects to the conduct of which it is accused. It points out that that consultancy firm, in spite of the fact that it played a vital role in the organisation and implementation of the cartel, which it was regarded as having ‘fostered’, had only a symbolic fine of EUR 1 000 imposed on it because of the ‘relative novelty of the issue’.

42 First, the Commission counters by saying that there is no support in the wording of that provision for Deltafina’s argument that Article 81(1) EC is not applicable to undertakings which do not operate directly on the relevant market. What matters for the purposes of the application of that provision is that the undertaking in question has participated in an anti‑competitive practice which has, at least potentially, an appreciable effect on trade between Member States.

43 Second, the Commission contends that Deltafina’s claim that the conduct of which it is accused is not covered by Article 81(1) EC is not only wholly unfounded but also contradicted by a number of indications set out in the application.

44 Moreover, the Commission states that Deltafina itself is of the view that its role can be compared to that of AC‑Treuhand in the case which gave rise to the organic peroxides decision and that penalties may be imposed in connection with such a role under Article 81(1) EC.

– Findings of the Court

45 As regards the first part of the plea in question, it is accepted between the parties that in Spain, which is the relevant geographic market in the present case, Deltafina neither purchases raw tobacco from producers nor is it engaged in the first processing of raw tobacco. In Spain, Deltafina is active only at the next stage of the process, namely that of buying processed tobacco for the purpose of resale to tobacco manufacturers.

46 It is therefore clear that Deltafina is not present on the relevant market, namely, as will be explained at paragraph 82 below, the Spanish market for the purchase and first processing of raw tobacco.

47 However, it cannot be inferred from that finding that the Commission was not entitled to impose penalties on Deltafina for infringement of Article 81(1) EC.

48 As the Court has already held, at paragraph 122 of its judgment in Case T‑99/04 AC‑Treuhand v Commission [2008] ECR II‑1501, an undertaking may infringe the prohibition laid down in Article 81(1) EC where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a specific relevant market within the common market, and that does not mean that the undertaking has to be active on that relevant market itself.

49 To the same effect, the Court stated, at paragraph 127 of AC‑Treuhand v Commission, paragraph 48 above, that it cannot be ruled out that an undertaking may participate in the implementation of a restriction of competition even if it does not restrict its own freedom of action on the market on which it is primarily active. Any other interpretation might restrict the scope of the prohibition laid down in Article 81(1) EC to an extent incompatible with its useful effect and its main objective, as read in the light of Article 3(1)(g) EC, which is to ensure that competition in the internal market is not distorted, since proceedings against an undertaking for actively contributing to a restriction of competition could be blocked simply on the ground that that contribution does not come from an economic activity forming part of the relevant market on which that restriction materialises or on which it is intended to materialise. The Court concluded, at paragraph 128 of the judgment, that a reading of the term ‘agreements between undertakings’ in the light of the objectives pursued by Article 81(1) EC and by Article 3(1)(g) EC tends to confirm that the notions of a cartel and of an undertaking which is the perpetrator of an infringement are conceptually independent of any distinction based on the sector or the market on which the undertakings concerned are active.

50 In the present case, as will be explained in greater detail at paragraphs 122 to 133 below, it is established that Deltafina actively and directly participated with the processors in a cartel the objective of which was, as it knew or could not have failed to be aware, to eliminate or restrict competition in the raw tobacco sector in Spain.

51 The Court’s findings set out at paragraph 48 above is all the more relevant in the present case because, whereas AC‑Treuhand, in its capacity as a consultancy firm, was not in any way active on the relevant product market, namely the organic peroxides market, as a competitor or on the side of supply or demand, Deltafina, on the other hand, as the main customer of the Spanish processors, was active on the Spanish market immediately downstream from that on which the anti‑competitive practices at issue were implemented. Moreover, in Italy, Deltafina was present on the same product market in question as that in the present case.

52 It follows that the first part of the first plea must be rejected as unfounded.

53 The second part of the first plea is based on the premiss that Deltafina did not actively or directly participate in the processors’ cartel to the same extent as the processors but simply facilitated its implementation ‘indirectly’.

54 As already stated at paragraph 50 above and will be established at paragraphs 122 to 133 below, that premiss is incorrect.

55 In any event, Deltafina’s argument that undertakings which have contributed to the implementation of a cartel only in a subsidiary, accessory or passive role do not infringe Article 81(1) EC and cannot therefore be fined under Article 23(2) of Regulation No 1/2003 is also incorrect.

56 Thus, in AC-Treuhand v Commission, paragraph 48 above, the Court rejected a similar argument, after referring to the case‑law concerning the conditions which the participation of an undertaking in a cartel must satisfy for it to be possible to hold that undertaking liable as a co‑perpetrator of the infringement (paragraphs 129 to 136).

57 In particular, in that judgment, the Court pointed out that the attribution of the infringement as a whole to an undertaking which has participated in a cartel is consistent with the requirements of the principle of individual liability where two conditions are met, the first being of an objective and the second a subjective nature.

58 The Court stated that, according to case‑law, the first condition was met, as regards the relationship between competitors on the same relevant market and the relationship between such competitors and their clients, where the participating undertaking has contributed to the implementation of the cartel, even in a subsidiary, accessory or passive role, for example by tacitly approving the cartel and by failing to report it to the administrative authorities (AC‑Treuhand v Commission, paragraph 48 above, paragraph 133).

59 In reaching that conclusion, the Court pointed out, first, that it is sufficient for the Commission to show that the undertaking concerned attended meetings at which anticompetitive agreements were concluded, without manifesting its opposition to such meetings, to prove to the requisite legal standard that that undertaking participated in the cartel (AC‑Treuhand v Commission, paragraph 48 above, paragraph 130). The Court added that, in order to establish that an undertaking participated in a single agreement, made up of a series of unlawful acts over time, the Commission must prove that that undertaking intended, through its own conduct, to contribute to the common objectives pursued by the participants as a whole and that it was aware of the substantive conduct planned or implemented by other undertakings in pursuance of those objectives, or that it could reasonably have foreseen that conduct and that it was ready to accept the attendant risk. In that regard, the Court pointed out that, where an undertaking tacitly approves an unlawful initiative, without publicly distancing itself from the content of that initiative or reporting it to the administrative authorities, the effect of its behaviour is to encourage the continuation of the infringement and to compromise its discovery. The Court stated that such an undertaking thereby engages in a passive form of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement. The Court pointed out that those principles apply mutatis mutandis in respect of meetings which are attended not only by competing producers, but also by their clients.

60 Next, the Court stated, at paragraph 131 of AC‑Treuhand v Commission, paragraph 48 above, that, as regards the determination of the individual liability of an undertaking whose participation in the cartel is not as extensive or intense as that of the other undertakings, it is apparent from the case‑law that, although the agreements and concerted practices referred to in Article 81(1) EC necessarily result from collaboration by several undertakings, all of whom are co-perpetrators of the infringement but whose participation can take different forms – according to, inter alia, the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged – the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to rule out its liability for the entire infringement, including conduct put into effect by other participating undertakings but sharing the same anti‑competitive object or effect.

61 Lastly, the Court concluded, at paragraph 132 of AC‑Treuhand v Commission, paragraph 48 above, that the fact that an undertaking did not take part in all aspects of an anti-competitive scheme, or that it played only a minor role in the aspects in which it did participate, is not material to the establishment of an infringement on its part. However, the Court added that, although the limited importance, as the case may be, of the participation of the undertaking concerned cannot therefore call into question its individual liability for the infringement as a whole, it none the less has an influence on the assessment of the extent of that liability and thus on the severity of the penalty.

62 As regards the second condition, the Court pointed out, at paragraph 134 of AC‑Treuhand v Commission, paragraph 48 above, that the attribution of the infringement as a whole to the participating undertaking also depends on the manifestation of its own intention, which shows that it is in agreement, albeit only tacitly, with the objectives of the cartel. The Court stated that that subjective condition is inherent in the criteria relating to the tacit approval of the cartel and to the undertaking having failed publicly to distance itself from the content of the cartel, in that those criteria imply a presumption that the undertaking concerned continues to endorse the objectives of the cartel and to support its implementation. That condition also constitutes the justification for holding the undertaking concerned liable along with the others, since it intended to contribute through its own conduct to the common objectives pursued by the participants as a whole and was aware of the anti‑competitive conduct of the other participants, or could reasonably have foreseen that conduct, and was ready to accept the attendant risk.

63 At paragraph 136 of AC‑Treuhand v Commission, paragraph 48 above, the Court stated that the principles set out at paragraphs 57 to 62 above apply mutatis mutandis to the participation of an undertaking whose economic activity and professional expertise mean that it cannot but be aware of the anti‑competitive nature of the conduct at issue and thus enable it to make a significant contribution to the committing of the infringement.

64 It follows from the foregoing that the second part of the first plea must also be rejected as unfounded.

The third part of the plea, alleging that the Commission incorrectly regarded Deltafina as the leader of the processors’ cartel

– Arguments of the parties

65 Deltafina states that the Commission incorrectly regarded it as the leader of the processors’ cartel.

66 In support of its assertion, it relies on the following factors, which distinguish its situation from that of other undertakings which have been regarded as the leaders of a cartel in other cases:

– it did not instigate the conduct for which the processors are criticised;

– it did not encourage – even less coerce – any undertaking to join the processors’ cartel;

– it did not put pressure on any person and, in any event, did not have the power to do so;

– it played no part in the management or control of the processors’ cartel, which did not, in any event, have any ‘management bodies’;

– its chairman, Mr M, attended only four meetings of the processors’ cartel and could not have ‘orchestrated its strategy’;

– it could not have acted as price leader on the demand side since, as it did not operate at the same stage of the chain as the Spanish processors, it did not purchase raw tobacco from the producers;

– it never had legal or de facto power to take any sanctions or retaliatory measures against members of the processors’ cartel whose conduct was not in line with joint actions.

67 Moreover, Deltafina disputes the Commission’s claim that the role of leader attributed to it was taken into account in the contested decision only as an aggravating circumstance. It maintains that that role is in fact the only allegation made against it.

68 First of all, the Commission replies that, even if it was mistaken in regarding Deltafina as the leader of the processors’ cartel, that could not absolve it of all liability for the infringements which are imputed to it but could, at most, lead to a reduction in the amount of the fine. The fact that Deltafina was the leader of the processors’ cartel was taken into account in the contested decision as an aggravating circumstance only when calculating the fine.

69 Next, the Commission considers that, in any event, the part of the plea in question must be rejected as unfounded. First, it points out that, according to case‑law, its previous practice does not itself serve as a legal framework for fines imposed in competition matters. Second, it refers to recital 435 in the preamble to the contested decision, which, in its view, sets out in a sufficiently precise and clear manner the grounds on which Deltafina was regarded as the leader of the processors’ cartel.

– Findings of the Court

70 It should be noted that the third part of the first plea is relied on by Deltafina in support of its claim that the contested decision should be annulled and that, like the first two parts of the plea, it is intended to demonstrate that the Commission could not hold it liable for the processors’ cartel.

71 As the Commission correctly submitted, the role of leader of the processors’ cartel attributed to Deltafina was taken into account in the contested decision as an aggravating circumstance only in the calculation of the amount of the fine (see recitals 435 and 436). Contrary to what Deltafina claims, it is not the finding that it acted as leader of the processors’ cartel which led the Commission to find that it was liable for the infringement but the finding, based in particular on the various factors summarised at recitals 359 to 369 in the preamble to the contested decision, that it participated directly and actively in the cartel. In other words, the role of leader of the processors’ cartel attributed to Deltafina has no bearing on the attribution of its liability for the commission of the infringement.

72 Undoubtedly, Deltafina’s actions on which the Commission based its assessment that it was the leader of the processors’ cartel are essentially the same as those which led it to conclude that it had participated in the cartel. The fact none the less remains, as the Commission correctly pointed out in its pleadings, that the question whether an undertaking participated in a cartel and the question, as the case may be, of the extent and intensity of that participation relate to two separate considerations – the first concerning the establishment of the existence of an infringement of Article 81(1) EC and the second the determination of the level of the penalty.

73 It follows from the above considerations that, even if it were well founded, the third part of the first plea could not lead to the annulment of the contested decision. It must therefore be rejected as ineffective in the context of that plea. However, account will be taken of this part of the plea in the examination of the sixth plea, which is based in part on the same arguments.

The fourth part of the first plea, alleging that the Commission failed to define the relevant market in the contested decision

– Arguments of the parties

74 Deltafina complains that the Commission failed to define the relevant product and geographic markets in the contested decision.

75 In that connection, first, Deltafina refers to paragraphs 27 et seq of the judgment in Case T‑61/99 Adriatica di Navigazione v Commission [2003] ECR II‑5349. It states that, according to paragraph 30 of that judgment, objections to the Commission’s definition of the relevant market may impinge upon factors which have a bearing upon the application of Article 81(1) EC other than the existence of ‘agreements’ between undertakings, of an effect upon ‘trade between Member States’, or the ‘prevention, restriction or distortion of competition’, such as, inter alia, the scope of the cartel in question, the question whether it is a specific or general cartel, or the extent of the individual participation of each of the undertakings concerned. Those factors are closely connected with the principle of personal responsibility for collective infringements and with the general principles of law, such as legal certainty and proportionality. Deltafina also points out that, according to paragraph 32 of that judgment, ‘[t]herefore, it is desirable that, where it adopts a decision in which it finds that an undertaking has participated in a complex, collective and continuous infringement (which cartels often are), the Commission should, in addition to ensuring that the specific conditions for applying Article [81(1) EC] are satisfied, take into consideration the fact that, whilst the decision will entail the personal liability of each of its addressees, that liability is limited to their particular involvement in the collective conduct sanctioned, as properly defined’. It adds that, according to that paragraph, ‘[s]ince a decision of this kind is capable of creating significant consequences not only for relations between the undertakings concerned and the administrative authorities but also for their relations with third parties, the Commission ought to examine the relevant market or markets and identify them in the statement of reasons which it gives for any decision sanctioning an infringement of Article [81(1) EC], and it should do so with sufficient precision so as to be able to identify the operating conditions in the market in which competition has been distorted and to satisfy the essential requirements of legal certainty’.

76 Next, Deltafina claims that, since it was not active on the market on which the anti-competitive conduct occurred, the Commission cannot, without infringing the principle of individual liability, hold it liable for that conduct and impose a penalty on it.

77 Lastly, relying on the same reason, Deltafina also submits that, in the contested decision, the Commission fails to establish ‘the link between [such] conduct and the impact on the market, which, even in the case where an infringement has been found by virtue of the object of the cartel, must result in adverse effects on competition’. It considers that the reference made by the Commission at recital 368 in the preamble to the contested decision to paragraph 136 of the judgment in Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141 is irrelevant.

78 In response to Deltafina’s arguments, the Commission submits, first, that, in the contested decision, it defines with sufficient clarity and detail the legal and economic context of the market on which the restrictive practices at issue were implemented.

79 Next, the Commission rejects Deltafina’s claim that it infringed the principle of individual liability by holding it liable for the anti-competitive conduct in question, even though that company was not active on the market on which that conduct occurred.

80 Lastly, the Commission dismisses as ‘totally illogical’ Deltafina’s argument that, since it was not present on the relevant market, there is no link between the unlawful conduct in question and its impact on the market. It submits that the fact that Deltafina did not operate directly on the market on which it has been established that there were the anti‑competitive practices does not exonerate it of its share of liability for implementing those practices and cannot lead to the conclusion that those practices did not have an impact on that market. In that connection, referring in particular to paragraph 136 of the judgment in European Night Services and Others v Commission, paragraph 77 above, it states that, according to settled case‑law, it is not necessary to assess the actual effects on the market of agreements which, as in the present case, clearly restrict competition.

– Findings of the Court

81 It is clear that, contrary to what Deltafina claims, the Commission did not fail to identify the relevant product and geographic markets in the contested decision.

82 The contested decision demonstrates sufficiently clearly and precisely that the relevant market is the Spanish market for the purchase and first processing of raw tobacco. In particular, at recitals 19 to 65 in the preamble to the contested decision, the Commission describes in detail the undertakings engaged in the first processing of raw tobacco in Spain – providing, inter alia, specific information on their activities involving the purchasing and first processing of raw tobacco and the trading relationships they have with each other – the producers of raw tobacco, the producers’ representatives, various aspects of the raw tobacco sector in Spain, including its tobacco-producing regions, the production yields and values, the value of sales, the various varieties of raw tobacco and the average (maximum) delivery prices for each of those varieties and the Community and Spanish legislative framework applicable to raw tobacco.

83 Moreover, it is perfectly possible, as a result of the Commission’s analysis in the contested decision, to identify the operating conditions of the market in which competition has been distorted, contrary to what Deltafina claims by referring to the last sentence of paragraph 32 in Adriatica di Navigazione v Commission, paragraph 75 above.

84 There is even less basis for Deltafina’s claim that the Commission failed to identify the relevant market in the contested decision, since it is apparent from numerous passages in its pleadings that it understood perfectly well that it was the Spanish market for the purchase and first processing of raw tobacco. Thus, to cite but one example, all its arguments in support of the first part of the first plea are in fact based on that definition.

85 The fourth part of the first plea is therefore wholly unfounded in fact.

86 Deltafina’s argument that the Commission failed to have regard to the principle of individual liability by holding it liable for a cartel implemented on a market on which it was not active cannot be accepted. As already stated at paragraphs 48 and 49 above, an undertaking may infringe the prohibition laid down in Article 81(1) EC where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a specific relevant market within the common market, and that does not mean that the undertaking has to be active on that relevant market itself. What in fact matters in order for the attribution of the infringement as a whole to an undertaking which has participated in a cartel to be consistent with the requirements of the principle of individual liability is that the undertaking should meet the two conditions, one of an objective and the other of a subjective nature, referred to at paragraphs 57 to 63 above, which is the case with Deltafina, as will become apparent at paragraphs 122 to 133 below.

87 Lastly, contrary to what Deltafina appears to claim (see paragraph 77 above), it cannot be inferred from the simple fact that it was not active on the relevant market that the producers’ cartel was not capable of having an adverse effect on competition on that market.

88 In the light of the foregoing considerations, the fourth part of the first plea must be rejected as unfounded.

89 It is apparent from all the above considerations that none of the parts of the first plea can be accepted.

The second plea, alleging infringement of Article 27(1) and (2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing, essential procedural requirements and the principles of legality, legal certainty and proportionality, as well as failure to state reasons

90 The second plea relied on by Deltafina can be divided into four parts. In the first part, it criticises the fact that, in the contested decision, the Commission attributed to it a different role from that for which it was criticised in the statement of objections. In the second part, it submits that the conduct of which it is accused should in fact be attributed to its chairman. In the third part, it claims that the Commission refused to grant it access to certain inculpatory documents. Finally, in the fourth part, it claims that the Commission failed to define with sufficient clarity the relevant product and geographic markets in the statement of objections.

91 As regards the complaint alleging failure to state reasons put forward by Deltafina in the second plea, without expressly relating it to any one of the four parts of that plea, it is clear that it does not provide any argument to clarify the complaint. It must therefore be rejected as inadmissible under Article 44(1)(c) of the Rules of Procedure (see paragraph 35 above).

The first part of the second plea, alleging that, in the contested decision, the Commission attributed to Deltafina a different role from that for which it was criticised in the statement of objections

– Arguments of the parties

92 Deltafina submits that, by holding it liable as ‘perpetrator’ or ‘co‑perpetrator’ of the infringement in the contested decision and characterising it as the ‘leader’ of the processors’ cartel in that decision, the Commission attributed to it a role that was different from – and more serious than – the role imputed to it in the statement of objections.

93 In support of its claims, Deltafina identifies a number of differences between the wording of the statement of objections and that of the contested decision. It submits, inter alia, that, whereas at no point in the former is it claimed that it was a party to the agreements or practices at issue – such a claim being made in that statement only with regard to the Spanish processors – in the latter, it is presented as having participated directly and actively in those agreements and practices. Similarly, no mention is made in the statement of objections of the fact that Deltafina could be regarded as the leader of the processors’ cartel. Moreover, Deltafina criticises a number of considerations set out in the contested decision.

94 Deltafina states that, by acting in that way, the Commission not only put forward an argument that was not substantiated by any evidence on the file but also infringed its rights of defence. As regards the latter point, it complains in particular that the Commission refused to allow it to express its views on the claims made against it in the contested decision that it was to be regarded as the perpetrator or co‑perpetrator of the infringement and leader of the processors’ cartel.

95 The Commission claims that it never regarded Deltafina as the ‘perpetrator’ or ‘co‑perpetrator’ of the restrictive practices at issue, while at the same time pointing out that any such characterisation has no ‘legal significance’ in competition law. Referring to the facts set out at recitals 362 to 366 in the preamble to the contested decision, it states that the conclusion it reached in that decision was that Deltafina ‘participated’ fully in those practices and it must therefore regarded as ‘fully’ sharing liability for the infringement.

96 The Commission states that, in the statement of objections, it relied on the same facts to reach the finding that Deltafina participated in the processors’ cartel and, consequently, that it was jointly liable for the infringement of Article 81 EC. It points out that, in its reply to the statement of objections, Deltafina also put up a robust defence as regards the role thus attributed to it in the processors’ cartel. It considers that no ‘differences in wording’ between the statement of objections and the contested decision identified by Deltafina is therefore capable of showing that the applicant’s rights of defence were infringed.

97 Moreover, the Commission rejects the criticisms made by Deltafina concerning certain considerations set out in the contested decision.

98 Lastly, referring to the conduct described at recitals 363 to 365 in the preamble to the contested decision, the Commission is of the view that it is not at all ‘unreasonable’ to state, as it did at recital 361, that Deltafina played a ‘particularly active’ role in the processors’ cartel.

99 According to the Commission, it is apparent from the factors set out above that it neither made errors of assessment nor infringed Deltafina’s rights of defence by regarding it as a party to the restrictive practices referred to in Article 1 of the contested decision and finding it shared liability for those practices.

100 As regards Deltafina’s criticisms concerning the fact that it was regarded in the contested decision as the leader of the processors’ cartel, the Commission submits, first, that even if they were justified, they could at most lead to a reduction in the amount of the fine.

101 Next, the Commission points out that, according to settled case‑law, provided that it indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard (Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 199). The elements thus required by case‑law are present in the statement of objections.

102 Lastly, the Commission submits that, in any event, the fact that it did not state expressly in the statement of objections its intention to consider as an aggravating circumstance the particular role played by Deltafina in the processors’ cartel had no effect on that undertaking’s defence. Indeed, at pages 31 to 37 of its reply to the statement of objections, Deltafina expressly put forward arguments designed to minimise its role.

– Findings of the Court

103 The part of the plea in question has two main elements. First, Deltafina claims that there are differences between the statement of objections and the contested decision as regards the assessment of its role in the processors’ cartel. Second, it does not accept that that assessment, as made in the contested decision, is correct.

104 In the context of both those elements, Deltafina criticises in particular the fact that the role of leader of the processors’ cartel was attributed to it. Thus, in connection with the first element, it complains that the Commission failed to mention in the statement of objections the fact that it could be regarded as the leader of the processors’ cartel, thus infringing its right of defence. In connection with the second element, it submits that the Commission’s conclusion in the contested decision that it played such a role in the processors’ cartel is not adequately substantiated.

105 As already stated at paragraph 71 above and correctly pointed out by the Commission, the role of leader of the processors’ cartel attributed to Deltafina was taken into account in the contested decision as an aggravating circumstance only in the calculation of the amount of the fine. Accordingly, even if were established that the rights of the defence were infringed, as alleged in connection with that role, or it appeared that it was not established to the requisite legal standard that the applicant played such a role, that could not lead to the annulment of the contested decision, as sought by Deltafina in reliance on the part of the plea in question, but, at most, to a reduction in the amount of the fine imposed on it. Therefore, the criticisms set out above must be rejected as ineffective in the context of the part of the plea in question. They will be considered below in connection with the sixth plea, relied on by Deltafina in support of its claim that the amount of the fine should be reduced, which is essentially based on the same considerations.

106 The other criticisms made by Deltafina in connection with the part of the plea in question raise three separate questions, namely: (i) on what basis did the Commission conclude in the contested decision that that company had infringed Article 81(1) EC; (ii) whether there are, in that regard, any differences between that decision and the statement of objections; and (iii) whether there is sufficient legal justification for the Commission’s conclusion.

107 As regards the first question, it should be recalled that, as already stated at paragraphs 15 to 21 above, the contested decision relates to two horizontal cartels concluded and implemented on the Spanish raw tobacco market, the first involving the Spanish producers and Deltafina, and the second the producers’ representatives. According to the contested decision, each of those cartels was characterised by a set of agreements and/or concerted practices and constitutes a single and continuous infringement of Article 81(1) EC (see, in particular, recitals 275 to 277 and 296 to 298).

108 The Spanish producers and Deltafina are held liable for all of the first infringement and the producers’ representatives for all of the second (see in particular Article 1 of and recitals 358, 359 and 366 in the preamble to the contested decision).

109 In particular, it is apparent from a number of recitals in the preamble to the contested decision that Deltafina is regarded, in the same way as the Spanish processors, as having concluded agreements and/or participated in concerted practices, the object of which was to fix each year, over the period 1996/2001, the (maximum) average delivery price for each variety and grade of raw tobacco and to share out the quantities of each variety of raw tobacco that each of the processors could buy from the producers (see, in particular, recitals 85, 88, 112, 144, 274, 276, 278, 279, 281 to 283, 285 to 287, 301, 303, 305 and 357). Moreover, Deltafina is regarded, in the same way as the Spanish producers, during the period 1999/2001, as having concluded agreements and/or participated in concerted practices, the object of which was to fix the price brackets per quality grade for each raw tobacco variety given in the schedules annexed to the cultivation contracts as well as additional conditions (see, in particular, recitals 85, 274, 276, 290 and 357).

110 In other words, it is alleged in the contested decision that Deltafina participated directly and actively in the processors’ cartel (see, in particular, recitals 357, 361, 366 and 369). In that connection, it should be noted that the Commission states in particular, at recital 369, that ‘Deltafina must be regarded in the present case as having played a direct and leading role which [was not] confined to the role of external coordinator and/or facilitator’.

111 At recitals 359 to 366 in the preamble to the contested decision, the Commission sets out, by reference to other recitals in that decision, the reasoning and the particular facts on which it based the conclusions set out at paragraphs 109 and 110 above.

112 That reasoning and those facts are as follows:

– Deltafina, through its chairman and – occasionally – other representatives, participated at certain meetings held by the processors’ cartel (recitals 67, 112 and 363), namely the meetings held on 13 March 1996 in Madrid (Spain) (recitals 88 and 92), on 17 December 1996 (recital 117), on 30 January 1997 in Rome (Italy) (recital 118) and in March 1999 (recital 186);

– when it did not attend some of the meetings held by the processors’ cartel, Deltafina was informed on a regular basis by the processors of the situation on the Spanish raw tobacco market and of the practices which they had implemented (recitals 112, 133 to 136, 140 to 143. 145, 149 and 364);

– in 1997, the chairman of Deltafina was even the addressee of a note prepared and signed by the Spanish processors at one of their meetings which set out the details of various agreements which they had reached (recitals 122 and 364);

– Deltafina was involved in the organisation of the processors’ cartel; in particular, it sent letters to the processors in order to ensure that the unlawful agreements were properly implemented, thus acting as mediator in disputes between them (recitals 140 and 365);

– Deltafina played a central role in negotiations between the Spanish processors and the producers’ representatives concerning the price bracket for surplus tobacco in the 1999 harvest (recitals 207, 221 and 365).

113 As regards the second question, it should be noted, first, that it is settled case-law that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings (Case 85/76 Hoffman‑La Roche v Commission [1979] ECR 461, paragraph 9, and Case C‑176/99 P ARBED v Commission [2003] ECR I‑10687, paragraph 19).

114 That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see ARBED v Commission, paragraph 113 above, paragraph 20 and the case‑law cited).

115 In addition, an infringement of the rights of the defence during the administrative procedure must be examined in the light of the objections established by the Commission in the statement of objections and in the decision concluding the procedure (Case T‑30/91 Solvay v Commission [1995] ECR II‑1775, paragraph 60, and Case T‑36/91 ICI v Commission [1995] ECR II-1847, paragraph 70). In those circumstances, the finding of an infringement of the rights of the defence presupposes that the objection – which the undertaking maintains was not raised against it in the statement of objections – has been included by the Commission in its final decision.

116 In the present case, in the statement of objections, as in the contested decision, the Commission makes a distinction between two horizontal cartels, characterised by a series of agreements and/or concerted practices on the Spanish raw tobacco market, the first involving the first processing sector and the second the production sector, and classifies each of those cartels as a single and continuous infringement of Article 81(1) EC (see, in particular, paragraphs 1, 316 to 318 and 338 to 340 of the statement of objections). As in the contested decision, the Spanish processors and Deltafina are held liable in the statement of objections for all of the first infringement and the processors’ representatives for all of the second (see, in particular, paragraphs 411, 412 and 420 of the statement of objections).

117 As regards Deltafina in particular, it is clear from the statement of objections that, as in the contested decision, liability for the infringement is imputed to that company because of its direct and active participation in the activities of the processors’ cartel. Thus, in the first sentence of paragraph 415 of the statement of objections, which is virtually the same as the first sentence of recital 361 in the preamble to the contested decision, the Commission states that: ‘Deltafina played a particularly active role in the Spanish raw tobacco processors’ cartel’. Similarly, at paragraph 420 of the statement of objections, which is written in similar terms to those of recital 366 in the preamble to the contested decision, the Commission concludes, inter alia, that ‘Deltafina must be regarded as having actively participated in setting up and implementing the agreement on average prices and quantities concluded between the processors from 1996 and in negotiating the price schedules for surplus tobacco in 2000’.

118 Moreover, the reasoning and facts relied on by the Commission to establish the objection that Deltafina was directly and actively involved in the infringement are essentially the same as those used in the contested decision, which are set out at paragraph 112 above (see, in particular, paragraphs 412 to 420 of the statement of objections and the various paragraphs of the statement to which they refer).

119 It is clear that, contrary to what Deltafina maintains, the contested decision does not differ from the statement of objections as regards the reasons for which liability for the infringement was imputed to it. Upon reading the statement of objections, Deltafina should accordingly have understood that, as in the contested decision, the Commission intended to rely on its direct and active involvement in the activities of the processors’ cartel. Since the statement of objections enabled Deltafina to be aware not only of the objection that it was directly and actively involved in the infringement but also of the facts relied on by the Commission in the contested decision in support of that objection, the applicant was fully in a position to defend itself during the administrative procedure.

120 It is true that, in a number of passages in the contested decision, Deltafina is expressly referred to, along with the Spanish processors, as having taken part in the agreements and/or concerted practices at issue (see paragraph 109 above), whereas no such reference is made in the corresponding passages of the statement of objections. However, that is merely a difference in presentation of the facts, the intention being simply to give a more precise account of the facts in the contested decision, and cannot constitute a substantive alteration of the objections set out in the statement of objections. It should be recalled in that connection that it is settled case‑law that the Commission’s final decision is not necessarily required to be a replica of the statement of objections (Case 41/96 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 91; Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 14; Joined Cases T‑24/93 to T‑26/93 and T‑28/93 Compagnie maritime belge de transports and Others v Commission [1996] ECR II‑1201, paragraph 113).

121 Similarly, at paragraph 413 of the statement of objection, the Commission, referring to its Decision 80/1334/EEC of 17 December 1980 relating to a proceeding under Article [81 EC] (IV/29.869 – Italian cast glass) (OJ 1980 L 383, p. 19; ‘the cast glass decision’), states that, in accordance with its decision‑making practice, ‘where an undertaking enables and “consciously” assists the implementation of the restrictions of competition which were the very purpose of the agreements, it can be held “jointly responsible” for the resulting restrictive effects’. That observation, for which there is no equivalent in the contested decision and which appears in the section of the statement of objections dedicated to the addresses of the decision – to Deltafina in particular – could, prima facie, be interpreted as meaning that the Commission is alleging, not that Deltafina directly and actively participated in the processors’ cartel, but simply that it facilitated the commission of the infringement. However, such an interpretation cannot be accepted, since it fails to take account of the paragraphs of the statement of objections following that observation, in particular paragraphs 415 and 420, in which it is clearly alleged that Deltafina actively participated in the processors’ cartel (see paragraph 117 above). In fact, by making that observation at paragraph 413 of the statement of objections, the Commission – even though it may be a matter for regret that it did not express itself more precisely in that regard – intended to say that an undertaking may infringe the prohibition laid down in Article 81(1) EC where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a specific relevant market within the common market, and that does not mean that the undertaking has to be active on that relevant market itself. That is apparent when that observation is read in the context in which the passage appears in the cast glass decision.

122 As regards the third question, Deltafina does not dispute that the facts relied on by the Commission, at recitals 359 to 366 in the preamble to the contested decision, in order to hold it liable for an infringement of Article 81 EC, as set out at paragraph 112 above, are substantiated by evidence in the case‑file. In actual fact, in the part of the plea in question, Deltafina challenges the Commission’s conclusion that those facts justify the first infringement being attributed to it in its entirety.

123 In order that all of the infringement may be imputed to an undertaking which has participated in a cartel, two conditions, one of an objective and the other of a subjective nature, must be met (see paragraphs 57 to 63 above). As regards the first condition, the undertaking must have contributed to the implementation of the cartel, even in a subsidiary, accessory or passive role. The second condition is that the undertaking must have manifested its own intention, showing that it is in agreement, albeit only tacitly, with the objectives of the cartel.

124 In the present case, first, it is established that Deltafina actively and directly contributed to the implementation of the processors’ cartel during the period of the infringement.

125 Thus, the evidence on the file shows that two of Deltafina’s representatives, namely Mr M, its chairman, and Mr C, the director responsible for buying, attended the first meeting of the processors’ cartel, namely that held on 13 March 1996 in Madrid, at which prices and amounts of raw tobacco to be purchased for the 1997 marketing year were discussed and an agreement on prices concluded. It is apparent from a fax sent by WWTE to Deltafina on 10 April 1996, which is referred to at recital 95 in the preamble to the contested decision, that the latter actively contributed to the conclusion of that agreement and drafted the minutes recording the agreement. It is also clear from that fax that and from a fax sent by Agroexpansión to Deltafina on 22 April 1996 that WWTE and Agroexpansión complained to Deltafina about Cetarsa’s failure to comply with the agreement.

126 Another meeting of the processors’ cartel was held on 17 December 1996 which was attended by Mr M. Mr M and Mr C also attended the meeting of the processors’ cartel held in Rome on 30 January 1997, at which agreements on prices and amounts of raw tobacco to be purchased for the 1997/1998 marketing year were concluded. It is apparent from the file that Mr M kept a note drafted and signed by the Spanish processors at that meeting, setting out the details of the various agreements and that he subsequently destroyed it at the request of those processors.

127 Subsequently, on a number of occasions, WWTE and Agroexpansión informed Deltafina of the situation on the Spanish raw tobacco market and complained to Deltafina about the non‑compliance with the agreements referred to at paragraph 126 above and other agreements concluded during the first months of 1997. Accordingly, on 29 April 1997, WWTE sent a fax to Mr M informing him that the minimum (average) price which Cetarsa had agreed to pay to the producers constituted a breach of an agreement concluded between the processors in the presence of Mr M and that it would therefore be impossible to comply with the undertaking to pay an average price of 50/60 Spanish pesetas (ESP) per kilo. On the same day, in reply to that fax, on Deltafina-headed paper, Mr M asked WWTE to ‘keep calm’ and stated that ‘paying more and more does not help anyone’. On 30 April 1997, Agroexpansión sent a fax to Mr M in which it stated, inter alia, that ‘the agreements and meetings with the other processors [were], yet again, pointless and ridiculous’ and that it ‘[had] complied with the agreement and [would] buy 5 million kilos but pay ESP 30 more than last year’. By fax of 9 July 1997, WWTE once again complained to Deltafina about Cetarsa’s conduct, stressing in particular the need to ‘make peace in the sector’ and to have ‘an agreement without agreement’. In its fax, WWTE also stated: ‘[a]s you have said on many occasions, an agreement on prices is not possible without an agreement on quantities. The agreement on prices cannot be for one year only … It will be necessary to have an agreement [lasting] possibly five years [or] at least three years’.

128 On 1 October 1997, Agroexpansión sent a fax to Deltafina informing it that WWTE had agreed to pay prices above those which had been agreed. In response to that fax, Mr M wrote to WWTE on the same day on Deltafina‑headed paper to inform it that, if that information proved to be correct, a serious problem would arise and that its conduct could be interpreted as a ‘violent attack’ on Agroexpansión. WWTE gave Deltafina its opinion on that issue by fax of 2 October 1997.

129 On 6 November 1997, WWTE sent a fax to Deltafina stating, inter alia, that it was attempting ‘by all means possible’ to reach an agreement on quantities and that, at the meeting to be held with the other processors on 20 November 1997, it would propose ‘guaranteeing the agreements by depositing a significant sum of money which would ensure some security in the implementation of the agreements’. A table containing information on some of the prices paid by each of the Spanish processors was attached to that fax.

130 Deltafina was informed by Taes of the framework agreement on the purchasing conditions for the 1998/1999 marketing year concluded by the processors at the meeting held in Madrid on 20 January 1998 the day after that meeting.

131 It is apparent from an activity report of Agroexpansión’s of 6 April 1999 that Mr M participated at a meeting with the Spanish processors and the Anetab in March 1999, during which raw tobacco prices and the manner in which the amounts of raw tobacco purchased were to be shared out for the 1999/2000 marketing year were discussed.

132 Lastly, in 2000, Deltafina was involved in negotiations between the processors and the producers’ representatives concerning the price brackets for surplus tobacco in 1999. In particular, prior to a meeting which the Anetab was to hold at the end of February 2000, Mr M sent a fax on Deltafina‑headed paper to Cetarsa, Agroexpansión and WWTE on 15 February 2000 in order to share with them his thoughts, advice and proposals in that regard.

133 Next, in the light of all the objective circumstances characterising Deltafina’s participation, it must be found that it acted in full knowledge of the facts and intentionally in contributing to the processors’ cartel. Deltafina clearly could not have been unaware, or indeed was well aware, of the anti competitive and unlawful objective of the cartel, that objective having become apparent, inter alia, from the meetings which were held with an anti‑competitive aim, from the exchange of sensitive information in which it actively participated throughout the period of the infringement and from a note setting out the details of certain agreements relating to prices and amounts of raw tobacco purchased which was in its safekeeping. It should be added in that context that, in the light of the important position it held on the market for the purchase of Spanish processed tobacco and the responsibility it had for the coordination and supervision of the commercial activities of the Universal Group in Europe (see paragraphs 142 and 268 to 272 below), Deltafina had an interest in ensuring that the restrictive practices at issue were implemented.

134 In the light of all the foregoing, it must be held that the Commission was correct in considering in the contested decision that the applicant had incurred liability for the infringement constituted by the processors’ cartel and did not thereby infringe Deltafina’s rights of defence.

135 It follows that the first part of the second plea must be rejected as unfounded.

The second part of the second plea, alleging that the criticism levelled at Deltafina for its conduct should, in fact, be levelled at its chairman

– Arguments of the parties

136 Deltafina submits that the conduct for which it is criticised could be attributed only to its chairman, Mr M, since he always acted in connection with the processors’ cartel in a personal capacity and not as a representative or organ of the company.

137 Deltafina states that the Spanish processors chose Mr M as ‘guardian of their agreements’ because he guaranteed neutrality and held a position of authority in the tobacco industry in both Spain and Italy as well as in the rest of the world.

138 The Commission contends that Deltafina’s arguments should be rejected.

– Findings of the Court

139 It is clear from a number of facts in the case‑file that Mr M participated in the processors’ cartel not in a personal capacity but as a representative of Deltafina.

140 In that regard, first, it should be noted that Mr M is the chairman of that company.

141 Next, it should be borne in mind that, at some of the meetings of the cartel, Mr M was accompanied by another representative of Deltafina, who held an important position within that company (see paragraphs 125 and 126 above). Moreover, the meeting held in Rome on 30 January 1997 (see paragraph 126 above) took place at Deltafina’s offices and the various letters sent by Mr M to the Spanish processors in connection with the processors’ cartel were written on Deltafina‑‑headed paper. Furthermore, in his fax of 29 April 1997 to WWTE, Mr M includes the name of the company along with his own (see paragraph 127 above).

142 Lastly, it is clear that the purpose of Mr M’s involvement in the activities of the processors’ cartel was to defend the commercial interests of Deltafina on the Spanish market. Accordingly, it should be noted, first, that Deltafina was responsible for the coordination and supervision of the commercial activities of the Universal Group in Europe and that it therefore had a direct interest in the purchase of raw tobacco by its sister company in Spain, Taes. Second, in addition to the fact that it acquired virtually all the processed tobacco produced by Taes (recital 27 in the preamble to the contested decision), Deltafina concluded important contracts for the purchase of processed tobacco with Cetarsa (recitals 20 and 29) and Agroexpansión (recitals 21 and 29). However, as is apparent from certain documents in the file and is not disputed between the parties, the price paid by the Spanish processors for the purchase of raw tobacco had a direct influence on the price paid by Deltafina for the purchase of processed tobacco (see also recital 32).

143 It should also be noted that, in its statement of 18 February 2002 (see paragraph 9 above), Taes stated that Deltafina had an interest in the conclusion of the agreement on the purchase price of surplus raw tobacco for 1999 since it wished to acquire additional quantities of processed tobacco. It should be added that, in a number of letters exchanged between Deltafina and the Spanish processors in connection with the processors’ cartel, express reference is made to the applicant’s situation.

144 In the light of the foregoing considerations, the second part of the second plea must be rejected as unfounded.

The third part of the second p