Case T-11/06

Romana Tabacchi Srl

v

European Commission

(Competition – Agreements, decisions and concerted practices – Italian market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price fixing and market sharing – Participation in the infringement – Duration of the infringement – Fines – Mitigating circumstances – Maximum limit of 10% of turnover – Equal treatment – Unlimited jurisdiction)

Summary of the Judgment

1. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Obligation to take into account actual impact on the market – None – Major role played by criterion of the nature of the infringement

(Art. 81(1)(a) and (b) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

2. Competition – Fines – Guidelines on the method of setting fines – Legal nature

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03)

3. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Very serious infringements

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

4. Competition – Fines – Amount – Determination – Criteria – Effect of an anti-competitive practice – Criterion not conclusive

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

5. Competition – Fines – Amount – Determination – Criteria – Market shares held by the undertaking concerned

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

6. Competition – Fines – Amount – Determination – Criteria – Actual impact on the market – Criteria for assessment

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

7. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Determination of the fine in proportion to the factors for assessment of the gravity of the infringement

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

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

(Art. 253 EC; Council Regulation No 1/2003, Art. 23(2) and (3))

9. Procedure – Introduction of new pleas during the proceedings – Conditions – New plea –Meaning

(Rules of Procedure of the General Court, Art. 48(2))

10. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement and its duration on the Commission – Applicability of principle of presumption of innocence

(Art. 81(1) EC; Charter of Fundamental Rights of the European Union, Art. 48(1))

11. Competition – Agreements, decisions and concerted practices – Evidence – Degree of detail required in evidence selected by the Commission

(Art. 81(1) EC)

12. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Economic reality at the time the infringement was committed to be taken into account

(Council Regulation No 1/2003, Art. 23(3); Commission Notice 98/C 9/03, Section 1A)

13. Competition – Fines – Amount – Determination – Division of undertakings concerned into categories – Conditions – Respect for the principle of equal treatment

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

14. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Threats and pressure suffered by an undertaking – Not included

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3)

15. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking – Criteria for assessment

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, first indent)

16. Competition – Fines – Amount – Determination – Criteria – Undertakings concerned being small and medium-sized undertaking – No effect

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, fifth para.)

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

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, second indent)

18. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Assessment

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3)

19. Competition – Fines – Amount – Determination – Maximum amount – Calculation – Distinction between the final amount and the intermediate amount of the fine – Consequences

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03)

20. Competition – Fines – Amount – Determination – Criteria – Financial situation of the undertaking concerned – No obligation to take into consideration

(Council Regulation No 1/2003, Art. 23(2))

21. Competition – Fines – Amount – Discretion of the Commission – Judicial review – Unlimited jurisdiction

(Art. 229 EC; Council Regulation No 1/2003, Art. 31; Commission Notice 98/C 9/03)

22. Competition – Fines – Amount – Determination – Criteria – Deterrent effect – Observance of the principle of proportionality

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2))

1. Article 81(1)(a) and (b) EC expressly declare that agreements and concerted practices which consist in directly or indirectly fixing purchase or selling prices or other transaction conditions or in limiting or controlling production or outlets are incompatible with the common market. Infringements of that kind, particularly in the case of horizontal cartels, are classified as ‘particularly serious’ since they involve direct interference with the essential parameters of competition on the market in question or clear infringements of the competition rules.

The gravity of infringements of European Union competition law must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up.

According to the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS, the assessment of the gravity of the infringement must take account of the nature of the infringement, its actual impact on the market, where that can be measured, and the size of the relevant geographic market. However, those three aspects of assessment of the gravity of the infringement do not carry the same weight in the overall examination of an infringement. The nature of the infringement plays a major role, in particular, for the qualification of ‘very serious’ infringements. On the other hand, neither the actual impact on the market nor the extent of the geographic market is a factor necessary for the infringement to be classified as very serious in the case of horizontal agreements concerning, inter alia, price fixing. Thus, horizontal agreements of that type may be classified as ‘very serious’ on the sole basis of their actual nature, without the Commission being required to demonstrate that the infringement had an actual impact on the market.

(see paras 67, 69, 74, 76-78)

2. The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS are an instrument designed to clarify, in compliance with superior rules of law, the criteria which the Commission intends to apply when exercising the discretion conferred on it by Article 23(2) of Regulation No 1/2003 for the purpose of setting fines. Those Guidelines do not constitute the legal basis of a decision imposing fines, which is based on Regulation No 1/2003, but they determine, generally and abstractly, the method which the Commission has bound itself to use in assessing the fines imposed by that decision and, consequently, ensure legal certainty on the part of the undertakings.

Thus, although the Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons.

The fact that the Commission has limited its own discretion by adopting the Guidelines is not however incompatible with its maintaining a significant discretion. The fact that, in the Guidelines, the Commission set out its approach to assessment of the gravity of an infringement does not prevent it from assessing infringements as a whole by reference to all the relevant circumstances of the case, including factors that are not expressly mentioned in the Guidelines.

(see paras 71-73)

3. The minimum starting amount of EUR 20 million fixed by the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS for very serious infringements refers to a single undertaking and not to all the undertakings that committed the infringement.

(see para. 86)

4. As regards the actual impact on the market of a restrictive practice contrary to European Union competition rules, for the purposes of determination of the amount of the fine imposed for such an infringement, it is necessary to take into account the duration and all the factors capable of entering into the assessment of the gravity of the infringement, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size and the value of the goods concerned and also the threat that infringements of that kind pose to the objectives of the European Union. It follows that the effect of an anti-competitive practice is not, in itself, a conclusive criterion for assessing the proper amount of a fine. In particular, factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are particularly serious, such as market sharing.

(see para. 90)

5. The market share of each of the undertakings concerned in the market which formed the subject-matter of a restrictive practice within the meaning of European Union competition law constitutes an objective factor which, even in the absence of proof that the infringement had an actual effect on the market, gives a fair measure of the responsibility of each of them as regards the potential harmfulness of that practice for the normal operation of competition. Thus, for the purposes of setting the amount of the fine, the market shares held by an undertaking are relevant in order to determine what influence it may exert on the market.

(see para. 97)

6. In order to assess the gravity of the infringement, it is decisive to ascertain that the cartel members had done all they could to give concrete effect to their intentions. What then happened, so far as the market prices actually obtained were concerned, was liable to be influenced by other factors outside the control of the cartel members, which cannot benefit from external factors, such as an increase in prices in the market concerned, which counteracted their own efforts, by turning them into factors justifying a reduction of the fine.

(see paras 99-100)

7. The principle of proportionality requires that measures adopted by the Union institutions must not exceed the limits of what is appropriate and necessary in order to attain the objective pursued. In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of that principle requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof. In particular, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified.

In those circumstances, the Commission is not in breach of the principle of proportionality by setting the starting amount of the fine for an infringement of the competition rules at EUR 10 million, since that infringement is a very serious and deliberate infringement of the competition rules and that amount was set at a level well below the minimum threshold provided for in the Guidelines for an infringement of that type.

(see paras 104-105, 107)

8. In the context of the setting of fines for infringement of European Union competition law, the obligation to state reasons is fulfilled where the Commission indicates in its decision the elements of assessment which enabled it to measure the gravity and the duration of the infringement.

In that regard, although Article 253 EC requires the Commission to state the reasons for its decisions and to mention the facts forming the basis of the decision and the considerations which led it to adopt the decision, that provision does not require the Commission to discuss all the points of fact and of law dealt with during the administrative procedure.

In the case of a decision imposing fines on a number of undertakings, the scope of the duty to state reasons must be assessed inter alia in the light of the fact that the gravity of the infringement depends on numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of the fines, although no binding or exhaustive list of the criteria to be applied has been drawn up.

(see paras 109, 233)

9. Under the first subparagraph of Article 48(2) of the Rules of Procedure of the General Court, the introduction of a new plea in law in the course of proceedings is not allowed unless it is based on matters of law or of fact which came to light in the course of the procedure. In that connection, a plea which amplifies a submission previously made, either expressly or by implication, and is closely connected with that submission, must be declared admissible.

(see para. 124)

10. It is for the Commission to prove not only the existence of a cartel contrary to European Union competition rules but also its duration. More particularly, as regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement. Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding the infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment and/or variation of a decision imposing a fine. Indeed, in the latter situation, it is necessary to take account of the principle of the presumption of innocence, which is part of the fundamental rights protected in the legal order of the European Union and has been enshrined in Article 48(1) of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. It is thus necessary for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place.

It is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.

(see paras 129-130, 143)

11. It is normal for the activities which anti-competitive agreements entail to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of meetings, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

Moreover, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.

In that regard, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking gave the other participants to believe that it subscribed to what was decided there and would comply with it. On the other hand, the Commission errs in its assessment of the facts in considering that an undertaking participated in a cartel contrary to European Union competition rules where there are not sufficient indicia in that regard.

(see paras 131-132, 158, 165-166)

12. As regards the choice of the reference year for the purpose of establishing the relative weight of the undertakings in relation to a cartel contrary to European Union competition rules, while the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS provide, at the fourth and fifth paragraphs of Section 1A, for the differentiated treatment of undertakings according to their economic size, they do not specify the year by reference to which the relative weight of the undertakings must be established.

In that regard, the Commission is required to choose a calculation method that enables it to take account of the size and economic power of each undertaking concerned and also of the scope of the infringement committed by each of them, in the light of the economic reality as it appeared at the time when the infringement was committed. Furthermore, the period to be taken into consideration should be ascertained in such a way that the resulting turnovers, and market shares, are as comparable as possible. It follows that the reference year need not necessarily be the last full year during which the infringement was in existence.

(see paras 176-177)

13. The method of dividing the members of a cartel into categories in order to apply differential treatment when setting the starting amounts of the fines, even though it ignores the differences in size between undertakings in the same category, results in a flat-rate starting amount for all the undertakings in the same category.

However, such division into categories must observe the principle of equal treatment, according to which comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. Furthermore, the amount of the fine must at least be proportionate in relation to the factors taken into account in the assessment of the gravity of the infringement. In order to ascertain whether the division of the members of a cartel into categories is consistent with the principles of equal treatment and proportionality, it is appropriate to examine whether that division is coherent and objectively justified.

In that regard, while it is permissible for the Commission to take account of the market shares held by an undertaking belonging to a cartel in the last full year of the infringement found in order to evaluate its size and its economic power in a specific market and also the scope of the infringement committed by it, it must none the less ensure that the market shares of each of the undertakings involved properly reflect economic reality as it appeared at the time when the infringement was committed. As a general rule, in the case of infringements of long duration, it is only where the last full year of the infringement, as taken into account by the Commission, coincides with the duration of the participation of each of those undertakings that the associated market shares are capable of serving as relevant indications in that regard and of enabling results as comparable as possible to be obtained, especially for the purpose of dividing the undertakings involved into categories.

(see paras 180-182, 184, 186)

14. The existence of threats and pressure designed to induce an undertaking to participate in an infringement of European Union competition law is not among the mitigating circumstances listed in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS. The pressure exerted by undertakings and designed to induce other undertakings to participate in an infringement of European Union competition law does not, no matter how great, relieve the undertaking concerned of its liability for the infringement committed, does not alter the gravity of the cartel and cannot constitute a mitigating circumstance for the purpose of the setting of fines, since the undertaking concerned could have reported any pressure to the competent authorities and made a complaint to them. Consequently, the Commission was not required to take such threats into account as a mitigating circumstance.

(see paras 211-213)

15. One circumstance that may be held to indicate the adoption by an undertaking of a passive role within a cartel, which may justify a reduction of the fine under the first 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) CS, is where the undertaking’s participation in cartel meetings is significantly more sporadic than that of the other members of the cartel, likewise its belated entry to the market affected by the infringement, irrespective of the duration of its participation therein, or again the existence of express declarations to that effect made by representatives of other undertakings that participated in the infringement. In addition, an exclusively passive role of a member of a cartel implies that it adopts a ‘low profile’, that is to say, it does not actively participate in the making of the anti-competitive agreement or agreements.

In that regard, it is not sufficient that, during certain periods of the cartel, or with respect to certain of its agreements, the undertaking concerned adopted a ‘low profile’, even on the assumption that that were established. Convening, in other periods, meetings, proposing an agenda and distributing preparatory documents for meetings are incompatible with a passive, ‘follow-my-leader’ role adopting a low profile. Such initiatives show that an undertaking took a favourable and active approach to the constitution, continuation and control of the cartel.

Furthermore, where an undertaking has participated, even without playing an active role, in meetings having an anti-competitive object, it must be regarded as having participated in the cartel unless it proves that it publicly distanced itself from the unlawful concertation. Indeed, by its presence at the meetings the undertaking subscribed, or at least gave the other participants to believe that it subscribed, in principle to what was decided there.

(see paras 217-218, 220, 223, 225)

16. The fifth paragraph of Section 1A of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS enables the Commission to increase the fines imposed on large undertakings, but does not require it to reduce those imposed on undertakings of modest size. The size of the undertaking is taken into consideration by virtue of the upper limit laid down in Article 23(2) of Regulation No 1/2003 and the provisions of the Guidelines. Apart from those size-related considerations, there is no reason to treat small or medium-sized enterprises differently from other undertakings. The fact that the undertakings are small or medium-sized enterprises does not relieve them of their duty to comply with the competition rules.

Moreover, Article 23(2) of Regulation No 1/2003 does not require that, where fines are imposed on several undertakings involved in the same infringement, the fine imposed on a small or medium-sized undertaking must not be greater, as a percentage of turnover, than those imposed on the larger undertakings. It is clear from that provision that, both for small or medium-sized undertakings and for larger undertakings, account must be taken, in determining the amount of the fine, of the gravity and duration of the infringement.

(see paras 226, 228, 260)

17. The Commission is required to recognise the existence of an mitigating circumstance owing to the failure to implement a cartel, pursuant to the second indent of Section 3 of of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS, only where the undertaking relying on the failure to implement the cartel is able to demonstrate that it clearly and substantially opposed the implementation of that cartel, to the point of having disrupted its very operation, and that it did not give the impression of subscribing to the agreement and thus encourage other undertakings to implement the cartel 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 of 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 paras 240-241)

18. The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS do not state that the Commission must systematically take separate account of each of the mitigating circumstances set out at Section 3 of those guidelines. It follows that the Commission is not required to grant an automatic additional reduction on that basis, as the appropriateness of any reduction of the fine for mitigating circumstances must be assessed from a global point of view that takes all the relevant circumstances into account.

(see para. 242)

19. The maximum limit of 10% of total turnover, provided for in Article 23(2) of Regulation No 1/2003, has a distinct and autonomous objective by comparison with the criteria of gravity and duration of the infringement, namely to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will not be able to pay. Thus, that limit is uniformly applicable to all undertakings and arrived at according to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate. The only possible consequence of such a limit is that the amount of the fine calculated on the basis of the criteria of gravity and duration of the infringement will be reduced to the maximum permitted level where it exceeds that level. Its application implies that the undertaking concerned will not pay the full amount of the fine which in principle would be payable if it were assessed on the basis of those criteria.

Further, Article 23(2) of Regulation No 1/2003 does not prevent the Commission from referring, in the course of its calculation, to an intermediate amount in excess of that limit, provided that the fine eventually imposed does not exceed it. It follows that the Commission cannot be required, at any stage in the application of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS, to ensure that the intermediate amounts of the fines adopted reflect all existing differences between the overall turnover figures of the undertakings concerned. Furthermore, the Commission is also not required to ensure that the final amounts of the fines to which its calculations lead for the undertakings concerned reflect every difference between those undertakings with respect to their turnover.

(see paras 257, 259)

20. The Commission is not required, when determining the amount of the fine, to take into account the poor financial situation of an undertaking concerned, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to market conditions.

(see para. 258)

21. The unlimited jurisdiction conferred on the Court, in application of Article 229 EC, by Article 31 of Regulation No 1/2003 empowers the Court, in addition to carrying out a mere review of the lawfulness of the penalty, which enables the Court only to dismiss the action for annulment or to annul the contested measure, to substitute its own appraisal for the Commission’s and, consequently, to vary the contested measure, even without annulling it, taking into account all the factual circumstances, by amending, in particular, the fine imposed where the question of the amount of the fine is before it.

By its nature, the fixing of a fine by the Court is not an arithmetically precise exercise. Furthermore, the Court is not bound by the Commission’s calculations or by the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS when it adjudicates in the exercise of its unlimited jurisdiction, but must make its own appraisal, taking account of all the circumstances of the case.

(see paras 265-266)

22. Fines imposed for infringements of Article 81 EC, as laid down in Article 23(2) of Regulation No 1/2003, are designed to penalise the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other economic operators from infringing, in future, the rules of European Union competition law. Thus, since the purpose of taking into consideration the size and global resources of the undertaking in order to ensure that the fine has sufficient deterrent effect lies in the impact which the fine is intended to have on that undertaking, the sanction must not be negligible in the light, in particular, of its financial capacity.

Moreover, the principle of proportionality requires that measures adopted by the institutions must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. It follows that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with the competition rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof.

(see paras 279-280)

JUDGMENT OF THE GENERAL COURT (Third Chamber)

5 October 2011 ( )

(Competition – Agreements, decisions and concerted practices – Italian market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price fixing and market sharing – Participation in the infringement – Duration of the infringement – Fines – Attenuating circumstances – Maximum limit of 10% of turnover – Equal treatment – Unlimited jurisdiction)

In Case T‑11/06,

Romana Tabacchi Srl, formerly Romana Tabacchi SpA, established in Rome (Italy), represented by M. Siragusa and G.C. Rizza, lawyers,

applicant,

v

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

defendant,

APPLICATION, first, for annulment in part of Commission Decision C (2005) 4012 final of 20 October 2005 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.281/B.2 – Raw tobacco – Italy) and, second, for a reduction of the amount of the fine imposed on the applicant,

THE GENERAL COURT (Third Chamber),

composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 1 December 2010,

gives the following

Judgment

Background to the dispute

1 The applicant, Romana Tabacchi Srl, is an Italian company, now in liquidation, whose main activity is the first processing of raw tobacco. At the material time the applicant’s sole shareholders were Mr and Mrs B., who jointly owned – and still own – all the shares.

1. Administrative procedure

2 On 15 January 2002 the Commission of the European Communities sent requests for information, pursuant to Article 11 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ English Special Edition 1959-1962, p. 87), concerning the Italian raw tobacco market, to the trade associations of Italian raw tobacco processors and producers, namely the Associazione professionale trasformatori tabacchi italiani (APTI, the Professional Association of Italian Raw Tobacco Processors) and the Unione italiana tabacco (Unitab, the Italian Tobacco Union) respectively.

3 On 19 February 2002 the Commission received an application for immunity from fines pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’) from Deltafina SpA, an Italian processor and a member of APTI. On 6 March 2002 the Commission granted Deltafina conditional immunity under point 15 of the Leniency Notice.

4 On 4 April 2002 the Commission received an application from Dimon Italia Srl (a subsidiary of Dimon Inc. and now called Mindo Srl) for immunity from fines under point 8 of the Leniency Notice and, in the alternative, an application for a reduction of any fine, under points 20 to 27 of the Leniency Notice, and also an application on the same basis from Transcatab SpA (a subsidiary of Standard Commercial Corp., ‘SCC’), for a reduction of any fine.

5 On 18 and 19 April 2002 the Commission carried out investigations pursuant to Article 14 of Regulation No 17 at the premises of Dimon Italia and Transcatab and also at the premises of Trestina Azienda Tabacchi SpA and the applicant.

6 On 8 October 2002 the Commission informed Dimon Italia and Transcatab that, as they had been the first and second undertakings, respectively, to provide evidence of the infringement for the purposes of the Leniency Notice, it proposed to grant them, at the end of the administrative procedure, a reduction of the amount of the fines that would otherwise have been imposed on them with respect to any infringements found.

7 On 25 February 2004 the Commission adopted a statement of objections, which it addressed to 10 undertakings or associations of undertakings, including Deltafina, Dimon Italia, Transcatab and the applicant (together ‘the processors’) and the parent companies of certain of them, inter alia Universal Corp., Dimon and SCC. The addressees of the statement of objections had access to the administrative file, a CD-ROM copy of which was sent to them by the Commission, and submitted written observations in response to the Commission’s objections. A hearing was then held on 22 June 2004.

8 Following the adoption, on 21 December 2004, of an addendum to the statement of objections of 25 February 2004, a second hearing was held on 1 March 2005.

9 After consulting the Advisory Committee on Restrictive Practices and Monopolies, and in the light of the final report of the Hearing Officer, the Commission adopted on 20 October 2005 Decision C (2005) 4012 final relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.281/B.2 – Raw tobacco – Italy) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 13 February 2006 (OJ 2006 L 353, p. 45).

2. The contested decision

10 The contested decision relates, first, to a horizontal cartel implemented by the processors on the Italian raw tobacco market (recital 1 to the contested decision).

11 The Commission found, in the contested decision, that, in the context of that cartel, during the period 1995 to the beginning of 2002, the processors had fixed the trading conditions for the purchase of raw tobacco in Italy in respect of both direct purchases from producers and purchases from ‘third packers’, in particular by price fixing and market sharing (recital 1 to the contested decision).

12 The contested decision concerns, second, two other infringements separate from the cartel implemented by the processors, which took place between the beginning of 1999 and the end of 2001 and consisted, for APTI, in fixing the contract prices which it would negotiate, on behalf of its members, for the conclusion of interprofessional agreements with Unitab and, for the latter, in fixing the prices which it would negotiate with APTI, on behalf of its members, for the conclusion of the same agreements.

13 In the contested decision, the Commission found that the practices of the processors constituted a single and continuous infringement of Article 81(1) EC (see, in particular, recitals 264 to 269 to the contested decision).

14 In Article 1(1) of the contested decision, the Commission attributed liability for the cartel to the processors and also to Universal, Deltafina’s parent company, and to Alliance One International, Inc. (‘Alliance One’), as the company resulting from the merger between Dimon and SCC. The Commission also found, in Article 1(2) of the contested decision, that APTI and Unitab had infringed Article 81(1) EC by adopting decisions fixing prices which they would negotiate, on behalf of their members, for the conclusion of interprofessional agreements.

15 In Article 2 of the contested decision, the Commission imposed fines on the undertakings referred to at paragraph 14 above and also on APTI and Unitab (see paragraph 42 below).

16 At recitals 356 to 404 to the contested decision the Commission determined the fines to be imposed on the addressees of that decision.

17 The amounts of the fines were determined by the Commission by reference to the gravity and duration of the infringements in question, that is to say, the two criteria expressly mentioned in Article 23(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the competition rules laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and in Article 15(2) of Regulation No 17 (recitals 356 and 357 to the contested decision).

Determination of the starting amount of the fines

Gravity

18 As regards the gravity of the infringement in question, the Commission observed that, in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market (recital 365 to the contested decision).

19 Next, the Commission stated that the production of raw tobacco in Italy accounted for some 38% of the European Union (‘EU’) in-quota production, which represented EUR 67.338 million in 2001, the last full year of the infringement (recital 366 to the contested decision).

20 As for the nature of the infringement, the Commission stated that it was a very serious infringement, as it consisted in fixing the purchase prices of the varieties of raw tobacco in Italy and sharing the purchased quantities. The Commission added, referring to the part of the contested decision relating to the analysis of the restriction of competition (recital 272 et seq.), that a buying cartel could distort producers’ willingness to generate output as well as limit competition among processors in downstream markets. The Commission also asserted that that was particularly so where, as in the present case, the product affected by the cartel, in this case raw tobacco, constituted a substantial ‘input’ of the activities carried out by participants downstream, in this case the first processing of tobacco and sale of processed tobacco (recitals 367 and 368 to the contested decision).

21 At recital 369 to the contested decision the Commission concluded from the foregoing considerations that the processors’ infringement must be qualified as very serious.

Differentiated treatment

22 At recitals 370 to 376 to the contested decision, the Commission examined the question of ‘specific weight’ and ‘deterrence’. In that regard, the Commission stated that the ‘specific weight of each undertaking and the likely effect of its unlawful behaviour’ should be considered in determining the amount of the fine (recital 370 to the contested decision).

23 Thus, the Commission considered that the fines should be set according to the market position enjoyed by each party involved (recital 371 to the contested decision).

24 In that regard, the Commission considered that Deltafina should receive the highest starting amount of the fine because it appeared to be the biggest purchaser, with a market share of around 25% in 2001 (recital 372 to the contested decision).

25 Since Transcatab, Dimon Italia and Romana Tabacchi held smaller shares in the market in question, around 9 to 11% in 2001, the Commission considered that they ‘should be grouped together’ and that the starting amount of their fines should be lower (recital 373 to the contested decision).

26 The Commission considered however that a starting amount merely reflecting the market position would not be a sufficient deterrent in respect of Deltafina, Dimon Italia (Mindo) and Transcatab because, in spite of their relatively small turnovers, these three companies belonged – or, in the case of Mindo, had belonged – to multinational groups of considerable economic and financial strength, representing the biggest tobacco merchants in the world and operating at different levels of business in the tobacco industry and in different geographic markets (recital 374 to the contested decision).

27 Therefore, in order to ensure that the fine was deterrent, the Commission considered that it was necessary to apply a multiplier of 1.5 – an increase of 50% – to the starting amount of the fine set for Deltafina, and of 1.25 – an increase of 25% – to the starting amount of the fine set for Dimon Italia (Mindo) and Transcatab (recital 375 to the contested decision).

28 Thus, at recital 376 of the contested decision, the Commission set the starting amounts of the fines as follows:

– Deltafina: EUR 37.5 million;

– Transcatab: EUR 12.5 million;

– Dimon Italia (Mindo): EUR 12.5 million;

– Romana Tabacchi: EUR 10 million.

Setting of the basic amount of the fines

29 At recitals 377 and 378 to the contested decision, the Commission examined the question of the duration of the infringement.

30 The Commission considered that the restrictive practice involving the processors had begun on 29 September 1995 and had ceased to exist, according to their statements, on 19 February 2002. With particular respect to the applicant, the Commission stated that it had joined the cartel in October 1997 and had suspended its participation from 5 November 1999 to 29 May 2001 and rejoined from 29 May 2001 until 19 February 2002. As the applicant’s participation in the infringement had lasted for only two years and eight months, the Commission considered that the starting amount of its fine should be increased by 25%, whereas increases of 60% were applied to the starting amount of the fines imposed on the other processors.

31 The basic amounts of the fines imposed on the addressees of the contested decision were therefore set as follows:

– Deltafina: EUR 60 million;

– Transcatab: EUR 20 million;

– Dimon Italia (Mindo): EUR 20 million;

– Romana Tabacchi: EUR 12.5 million.

Attenuating circumstances

32 At recitals 380 to 398 to the contested decision, the Commission considered whether any attenuating circumstances should be taken into account.

33 As regards the applicant, the Commission stated, at recital 380 to the contested decision, that it ‘[had not taken] part in certain aspects of the cartel (mainly those relating to direct purchases from producers[,] from whom it only started buying small quantities in 2000)’. The Commission considered, moreover, that in 1997, when the applicant had joined the cartel, its market position was weak. Last, the Commission stated that ‘[the applicant’s] behaviour [had] often disrupted the purpose of the cartel to the point that the other participants [had] jointly discussed how to react to Romana Tabacchi’s conduct’.

34 In the light of those factors, the Commission decided to reduce the basic amount of the fine imposed on the applicant by 30%.

35 As regards the situation of Dimon Italia and Transcatab, the Commission rejected all the arguments whereby they sought to benefit from attenuating circumstances (recitals 381 to 384 to the contested decision).

36 Last, the Commission took Deltafina’s particular situation into account and concluded that its fine should be reduced by 50% on account of its cooperation (recitals 385 to 398 to the contested decision).

37 The Commission set the amounts of the fines, following the application of the attenuating circumstances, as follows (recital 399 to the contested decision):

– Deltafina: EUR 30 million;

– Dimon Italia (Mindo): EUR 20 million;

– Transcatab: EUR 20 million;

– Romana Tabacchi: EUR 8.75 million.

The maximum limit of the fine laid down in Article 23(2) of Regulation No 1/2003

38 At recitals 400 to 404 to the contested decision, the Commission considered whether the basic amounts as thus calculated should be adjusted for the different addressees in order to ensure that they did not exceed the limit of 10% of turnover laid down in Article 23(2) of Regulation No 1/2003.

39 On that basis, the Commission stated that the fine to be imposed on the applicant was not to exceed EUR 2.05 million and that there was no need to reduce the other fines by reference to that provision (recitals 402 and 403 to the contested decision).

Application of the Leniency Notice

40 At recitals 405 to 500 to the contested decision, the Commission dealt with the application of the Leniency Notice.

41 After having established that Dimon Italia and Transcatab had satisfied the conditions imposed on them under their applications for a reduction of the fine, the Commission inferred from its assessment of the evidence adduced and from their cooperation during the procedure that they should benefit from the highest rates of reduction available within the brackets indicated to them following their applications for a reduction, that is to say, 50% and 30% respectively (recitals 492 to 499 to the contested decision). By contrast, no immunity or reduction of the fine was granted to Deltafina.

Final amount of the fines

42 In accordance with Article 23(2) of Regulation No 1/2003, the Commission set, in Article 2 of the contested decision, the amounts of the fines to be imposed on the undertakings and associations of undertakings to which the contested decision was addressed as follows:

– Deltafina and Universal, jointly and severally: EUR 30 million;

– Dimon Italia (Mindo) and Alliance One: EUR 10 million, Alliance One being liable for the entire fine and Mindo being jointly and severally liable for only EUR 3.99 million;

– Transcatab and Alliance One, jointly and severally: EUR 14 million;

– Romana Tabacchi: EUR 2.05 million;

– APTI: EUR 1 000;

– Unitab: EUR 1 000.

Procedure and forms of order sought by the parties

43 By application lodged at the Court Registry on 19 January 2006, the applicant brought the present action.

44 By separate document, lodged at the Court Registry on the same date (Case T‑11/06 R), the applicant brought an action under Article 242 EC and Article 104 of the Rules of Procedure of the General Court for, first, suspension of the operation of the contested decision and, second, an exemption from the obligation to provide a bank guarantee as a condition for that fine not being recovered immediately.

45 By order of the President of the Court of 13 July 2006 in Case T‑11/06 R Romana Tabacchi v Commission [2006] ECR II‑2491, the obligation on the applicant to provide a bank guarantee in order to avoid immediate recovery of the fine imposed on it by Article 2 of the contested decision was suspended, on certain terms, and costs were reserved.

46 Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, in the context of the measures of organisation of procedure laid down in Article 64 of its Rules of Procedure, requested the parties to produce documents. The parties complied with that request within the prescribed period.

47 The parties presented oral argument and their replies to the questions put by the Court at the hearing on 1 December 2010.

48 By letter of 7 and 10 December 2010, the applicant and the Commission, respectively, responded to a measure of organisation of procedure adopted by the Court at the hearing and produced certain documents.

49 On 19 January 2011 the Commission, at the Court’s request, filed other documents.

50 On 8 February 2011 the applicant submitted its observations on those documents.

51 The applicant claims that the Court should:

– annul the contested decision in part, namely the part relating to the calculation of the fine imposed on the applicant;

– substantially reduce the fine imposed on the applicant;

– order any other measure, including measures of inquiry, which the Court considers appropriate;

– order the Commission to pay the costs.

52 The Commission contends that the Court should:

– dismiss the application;

– order the applicant to pay the costs.

Law

53 In support of its action, the applicant puts forward five pleas in law. The first plea alleges failure to conduct a proper investigation, failure to state reasons or illogical reasoning and also breach of the principles of equal treatment and proportionality with respect to the Commission’s failure to take into account, for the purposes of calculating the starting amount of the fine, the fact that the cartel had no actual impact on the market. The second plea alleges illogical reasoning and breach of the principle of equal treatment in the gradation of the starting amount of the fine in order to adjust it to the applicant’s specific weight. The third plea alleges failure to state reasons and to carry out an investigation and also failure to observe the burden of proof with respect to the finding of the duration of the applicant’s participation in the infringement. The fourth plea alleges insufficient reduction of the amount of the fine in order to take account of the ‘disruptive’ role played by the applicant and failure to take other attenuating circumstances into account. The fifth plea alleges that the fine is iniquitous and disproportionate by reference to the applicant’s financial structure and its real ability to pay in a specific social context.

54 The Court will examine the first plea first, then the third plea and, last, the second, fourth and fifth pleas.

1. The request for witness evidence to be taken

55 As regards the appraisal of the statements which the applicant has annexed to the application, as evidence, it should be observed, first of all, that the Rules of Procedure do not preclude the production of such statements by the parties; however, their appraisal is a matter for the Court, which, if the facts described therein are crucial to the outcome of the case, may order, by way of a measure of inquiry, that the author of such a document be heard as a witness (see, to that effect, Joined Cases T‑101/05 and T‑111/05 BASF and UCB v Commission [2007] ECR II‑4949, paragraph 97). In this instance, however, in the light of the parties’ written pleadings, the evidence placed on the file and the results of the hearing, the Court considers that it has sufficient information to rule on the present case (see, to that effect, Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 80).

56 The applicant’s request for a measure of inquiry is therefore rejected.

2. First plea, alleging failure to carry out an investigation, failure to state reasons or illogical reasoning and also breach of the principles of equal treatment and proportionality with respect to the Commission’s failure to take into account the fact that the cartel had no actual impact on the market

Arguments of the parties

57 By its first plea, the applicant maintains, first of all, that, for the purpose of calculating the starting amount of the fine imposed on the applicant, the Commission ought to have taken into account the fact that the cartel had no actual impact on the market. In particular, the Commission did not draw the inferences, first, from the findings made in the contested decision (recitals 97 and 98 to the contested decision) that the prices paid to producers for raw tobacco increased in Italy at a rate much higher than the Community average and, second, from the fact that as the participants in the cartel represented no more than 55% of the market they inevitably remained exposed to intense competitive pressure from processors which had not adhered to the agreement.

58 In the applicant’s submission, in setting the fine the Commission was required, in accordance with its practice in taking decisions, which had been approved by the case-law, to distinguish cartels having a significant actual impact on the market from those having no or only limited effects. The Commission is thus under a ‘positive obligation’ to measure the effective impact of the cartel on the market when it establishes gravity for the purpose of setting the starting amount of the fines. The obligation to take into account the ‘actual impact [of the infringement] on the market, where this can be measured’, is expressly laid down in 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’), from which the Commission cannot depart.

59 More particularly, in order to assess the actual impact of an infringement on the market, the Commission must refer to the competition which would normally have existed without the infringement. Thus, first, in the case of price agreements there must be a finding by the Commission that the agreements have in fact enabled the undertakings concerned to achieve a higher level of price than that which would have prevailed had there been no cartel. Second, the Commission must take account in its appraisal of all the objective conditions of the relevant market, in the light of the economic context. It is not impossible to evaluate the impact on prices of an agreement, moreover, and the Commission is capable of carrying out such an analysis, as is proved by its practice in taking decisions relating to the control of concentrations.

60 In the applicant’s submission, a schematic and mechanical approach in setting fines which ignores the actual effects of the infringement on the market is also contrary to the principles of equal treatment and proportionality. Observance of the first principle requires that the Commission differentiate fines according to the actual impact of the agreements on the market, which must be penalised on a case-by-case basis. Observance of the second principle requires that the Commission, when setting the fine, ensure that there is an appreciable and reasonable relationship with the actual impact of the unlawful conduct and, in particular, with the harm caused to customers and end-users, which did not exist in the present case. In effect, the level of such harm constitutes the first criterion for distinguishing between the agreements. The fine imposed for an agreement whose actual impact on the market is not significant and does not harm the customers of the participating undertakings or consumers should correspond to the lowest point on the scale of fines, including for ‘very serious’ infringements.

61 The applicant also disputes the Commission’s argument that the amount of EUR 20 million cited at Section 1.A of the Guidelines represents the minimum amount of the basic penalty applicable in principle to the undertaking which has the most important position on the market affected by the infringement and not to all the undertakings participating in the infringement. Furthermore, in the case leading to the adoption of Decision C (2004) 4030 final of 20 October 2004 relating to a proceeding pursuant to Article 81(1) [EC] (Case COMP/C.38.238/B.2 – Raw tobacco – Spain), which is clearly analogous to the case giving rise to the present action, the Commission derogated from the minimum amount of EUR 20 million.

62 Nor does the formal characterisation based on the ‘serious/very serious’ distinction assume the relevance which the Commission attributes to it, since the object of the applicant’s complaints is the final result of the Commission’s calculation by reference to its Guidelines. It follows from the case-law, moreover, that where the effects on the market are small a price cartel may also be qualified as a ‘serious’, rather than as a ‘very serious’, infringement. Last, in order to take proper account of the limited impact of the infringement on the market, the Commission can also reduce the amount set for gravity by reference to the minimum amount normally applied in the case of a ‘very serious’ infringement.

63 All in all, in the absence of evidence of the actual impact of the cartel on the market, the starting amount of the fine imposed on the applicant ought to have been set at a level corresponding to the lowest point on the scale of fines appropriate to cartels.

64 The Commission contends that the plea should be rejected.

Findings of the Court

65 In the context of the first plea, the applicant raises a number of complaints, all taking issue with the Commission’s failure to take into account, when determining the starting amount of the fine, the fact that the agreement had no actual impact on the market.

66 In that regard, the Court considers it appropriate, before addressing the applicant’s complaints, to recall the general principles governing the determination of the amount of fines imposed in respect of practices contrary to Article 81 EC and, more particularly, the assessment of the gravity of the infringement.

General considerations

67 Article 81(1)(a) and (b) EC expressly declare that agreements and concerted practices which consist in directly or indirectly fixing purchase or selling prices or other transaction conditions or in limiting or controlling production or outlets are incompatible with the common market. Infringements of that kind, particularly in the case of horizontal cartels, are classified by the case-law as ‘particularly serious’ since they involve direct interference with the essential parameters of competition on the market in question (Case T‑141/94 Thyssen Stahl v Commission [1999] ECR II‑347, paragraph 675) or clear infringements of the Community competition rules (Case T‑148/89 Tréfilunion v Commission [1995] ECR II‑1063, paragraph 109, and Case T‑311/94 BPB de Eendracht v Commission [1998] ECR II‑1129, paragraph 303).

68 Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine for infringements of Article 81(1) EC, regard is to be had both to the gravity and to the duration of the infringement.

69 It has consistently been held that the gravity of infringements of competition law must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 241; Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 54; and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 91).

70 In order to ensure the transparency and impartiality of its decisions setting fines for infringements of the competition rules, the Commission adopted the Guidelines (first introductory paragraph of the Guidelines).

71 The Guidelines are an instrument designed to clarify, in compliance with superior rules of law, the criteria which the Commission intends to apply when exercising the discretion conferred on it by Article 23(2) of Regulation No 1/2003 for the purpose of setting fines. The Guidelines do not constitute the legal basis of a decision imposing fines, which is based on Regulation No 1/2003, but they determine, generally and abstractly, the method which the Commission has bound itself to use in assessing the fines imposed by that decision and, consequently, ensure legal certainty on the part of the undertakings (Dansk Rørindustri and Others v Commission, paragraph 69 above, paragraphs 209 to 213, and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraphs 219 and 223).

72 Thus, although the Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons (see, to that effect, Dansk Rørindustri and Others v Commission, paragraph 69 above, paragraphs 209 and 210, and Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I‑4429, paragraph 91).

73 The fact that the Commission has limited its own discretion by adopting the Guidelines is not incompatible with its maintaining a significant discretion (Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraphs 246, 274 and 275). The fact that, in the Guidelines, the Commission set out its approach to assessment of the gravity of an infringement does not prevent it from assessing infringements as a whole by reference to all the relevant circumstances of the case, including factors that are not expressly mentioned in the Guidelines (Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 71 above, paragraph 237).

74 According to the method set out in the Guidelines, the Commission takes as its starting point for calculating the amount of the fines to be imposed on the undertakings concerned an amount determined according to the ‘intrinsic’ gravity of the infringement. The assessment of that gravity must take account of the nature of the infringement, its actual impact on the market, where that can be measured, and the size of the relevant geographic market (Section 1.A, first paragraph, of the Guidelines).

75 Within that context, infringements are put into one of three categories, namely ‘minor infringements’, for which the likely fines will be between EUR 1 000 and EUR 1 million, ‘serious infringements’, for which the likely fines will be between EUR 1 million and EUR 20 million, and ‘very serious infringements’, for which the likely fines will be above EUR 20 million (Section 1.A, second paragraph, first to third indents of the Guidelines). As regards very serious infringements, the Commission states that these will generally be horizontal restrictions, such as ‘price cartels’ and market-sharing quotas, or other practices which jeopardise the proper functioning of the single market, such as the partitioning of national markets and clear-cut abuse of a dominant position by undertakings holding a virtual monopoly (Section 1.A, second paragraph, third indent of the Guidelines).

76 Moreover, the three aspects of assessment of the gravity of the infringement referred to at paragraph 74 above do not carry the same weight in the overall examination of an infringement. The nature of the infringement plays a major role, in particular, for the qualification of ‘very serious’ infringements (Erste Group Bank and Others v Commission, paragraph 69 above, paragraph 101, and Joined Cases T‑456/05 and T‑457/05 Gütermann and Zwicky v Commission [2010] ECR II‑1443, paragraph 137).

77 On the other hand, neither the actual impact on the market nor the extent of the geographic market is a factor necessary for the infringement to be classified as very serious in the case of horizontal agreements concerning, as here, price fixing. While those two criteria are factors to be taken into consideration for the purpose of assessing the gravity of the infringement, they are two among other factors for the purposes of the overall assessment of gravity (see, to that effect, Prym and Prym Consumer v Commission, paragraph 69 above, paragraphs 74 and 81; Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 71 above, paragraphs 240 and 311; and Case T‑73/04 Carbone‑Lorraine v Commission [2008] ECR II‑2661, paragraph 91).

78 Thus, according to what is now also well-established case-law, it follows from the Guidelines that horizontal agreements concerning, as here, price fixing may be classified as ‘very serious’ on the sole basis of their actual nature, without the Commission being required to demonstrate that the infringement had an actual impact on the market (Prym and Prym Consumer v Commission, paragraph 69 above, paragraph 75; see also, to that effect, Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others v Commission [2005] ECR II‑3033, paragraph 178, and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 150).

79 That conclusion is borne out by the fact that, although the description of serious infringements expressly mentions the impact on the market, the description of very serious infringements, conversely, does not mention any requirement of an actual impact on the market (Gütermann and Zwicky v Commission, paragraph 76 above, paragraph 137; see also, to that effect, Brasserie nationale and Others v Commission, paragraph 78 above, paragraph 178).

80 It is in the light of those principles, therefore, that the Court must analyse the various complaints raised by the applicant.

The failure to take the actual impact of the agreement on the market into account when determining the fine

81 The applicant first of all takes issue with the Commission for having failed to take the actual impact of the agreement on the market into account when setting the starting amount of the fine.

82 It should be observed, however, that it is apparent from the contested decision that the Commission determined the amount of the fine imposed on the various addressees on the basis of the general method by which it undertook to be bound in the Guidelines, even though it does not expressly refer to the Guidelines in the decision.

83 As specifically regards the nature of the infringement in issue, it should be observed that the agreement between the processors had the object, in particular, of jointly fixing the prices which the processors paid for raw tobacco and the allocation of suppliers and quantities of raw tobacco. Such practices constitute horizontal restrictions of the ‘price cartel’ type within the meaning of the Guidelines and are therefore by nature ‘very serious’ infringements. As recalled at paragraph 67 above, agreements of that type are classified by the case-law as clear-cut infringements of the competition rules or particularly serious infringements since they involve direct interference with the essential parameters of competition on the relevant market.

84 It follows that in the present case the Commission was able, without making any error, to classify the agreement as a very serious infringement on the basis of its actual nature, irrespective of its actual impact on the market (see the case-law referred to at paragraphs 76 and 77 above and, in particular, Erste Groupe Bank and Others v Commission, paragraph 69 above, paragraph 103).

85 At the hearing, the applicant asserted, however, that, contrary to its claims in its written pleadings, it did not dispute as such the classification of the infringement as very serious. Thus, it defined the scope of its complaint as follows. In substance, the applicant claimed that the threshold of EUR 20 million prescribed in the Guidelines for very serious infringements applied to the value of the total penalty for all the undertakings that took part in the agreement. As the Commission set a total starting amount of EUR 55 million for all the undertakings that participated in the agreement, it exceeded that threshold. The Commission was thus required to take the absence of any impact of the infringement on the market into consideration and to state the reason why it exceeded that threshold.

86 In that regard, it should be observed, in the first place, that the applicant’s argument is based on an incorrect premiss. It is apparent from the case-law that the minimum starting amount of EUR 20 million fixed by the Guidelines for very serious infringements refers to a single undertaking and not to all the undertakings that committed the infringement (see, to that effect, Dansk Rørindustri and Others v Commission, paragraph 69 above, paragraphs 306 and 311; Prym and Prym Consumer v Commission, paragraph 69 above, paragraph 81; Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 187; and Case T‑13/03 Nintendo and Nintendo of Europe v Commission [2009] ECR II‑947, paragraph 44).

87 Furthermore, the conclusion that the ‘likely amounts’ mentioned in the Guidelines refer to the fine applicable to a single undertaking and not to the total of the fines applicable to all the undertakings participating in the agreement is borne out by a systematic interpretation of the wording of the Guidelines. The expression ‘basic amount’ in the Guidelines is systematically used as applying to the fine to be imposed on a single undertaking and not on all the members of the cartel. That is apparent, in particular, from the second introductory paragraph of the Guidelines, which states that the new method starts with a basic amount that will be increased or reduced to take account of aggravating or attenuating circumstances. Those circumstances are applied to each undertaking and not to all the members of the cartel, so that the expression ‘basic amount’ can refer only to the fine applicable to a single undertaking. Likewise, the sixth paragraph of Section 1.A of the Guidelines, in so far as it states that ‘[w]here an infringement involves several undertakings …, it might be necessary in some cases to apply weightings to the amounts determined within each of the three categories [defined in the Guidelines]’, confirms that those amounts refer to the amounts of the fines applicable to each undertaking participating in the infringement and not to the sum of those amounts. Last, the Commission is correct to submit that if, at Section 1.A of the Guidelines, it had actually wished, as the applicant claims, to refer to the total minimum amount of the fines applicable to all the undertakings, it would have made such an approach clear by using an explicit expression such as the ‘minimum amount of the fines applicable to all the undertakings’.

88 Thus, it is clear that in the present case the Commission set the starting amount of the fine to be imposed on the applicant at EUR 10 million, which corresponds to an amount well below the threshold of EUR 20 million provided for in the Guidelines.

89 In that regard, the applicant’s argument that the Commission’s reasoning does not explain why, in the case giving rise to Decision C (2004) 4030 final, the starting amounts were well below the abovementioned amount of EUR 20 million. As is clear from the case-law, the amount of EUR 20 million provided for in the second subparagraph of the third indent of the second paragraph of Section 1.A of the Guidelines for very serious infringements is not a minimum threshold below which it is impossible to go (see, to that effect, Prym and Prym Consumer v Commission, paragraph 69 above, paragraph 97; see also Case T‑52/02 SNCZ v Commission [2005] ECR II‑5005, paragraph 42).

90 In the second place, as specifically concerns the taking into account of the actual impact on the market in the determination of the amount of the fine, it should be borne in mind that, for the purposes of such determination, it is necessary to take into account the duration of the infringements and all the factors capable of entering into the assessment of the gravity of the infringements, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size and the value of the goods concerned and also the threat that infringements of that kind pose to the objectives of the European Union (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 129, and Dansk Rørindustri and Others v Commission, paragraph 69 above, paragraph 242). It follows from this that the effect of an anti-competitive practice is not, in itself, a conclusive criterion for assessing the proper amount of a fine. In particular, factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are particularly serious, such as market sharing, a factor which is present in this case (see, to that effect, Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 118; Prym and Prym Consumer v Commission, paragraph 69 above, paragraph 96; and judgment of 12 November 2009 in Case C‑554/08 P Carbone-Lorraine v Commission, not published in the ECR, paragraph 44).

91 In the present case, it must be held that analysis of the part of the contested decision relating to the impugned facts shows that the processors knowingly implemented the anti-competitive conduct in respect of which they were fined (see, in particular, recitals 124, 132, 133 and 141 to the contested decision). It follows from recitals 363 and 473 to the contested decision, moreover, that that consideration is supported by the fact that the cartel was secret.

92 It also follows from the contested decision, moreover, that the processors agreed on several occasions on measures intended to ensure the effective implementation of the agreement, such as sending each other the invoices received from their respective suppliers (recitals 122 and 129 to the contested decision), an obligation to consult in the event of purchases outside the agreements (recital 139 to the contested decision), and obligations to control their employees in order to ensure that they did not take decisions without the necessary coordination (recital 140 to the contested decision). In that regard, it follows from recital 383 to the contested decision that the Commission also established that the cartel had been implemented.

93 Thus, the present case is characterised by the presence not only of a very serous infringement of the competition rules but also by factors relating to the intentional aspect, such as those mentioned at paragraphs 91 and 92 above.

94 It follows from recital 376 to the contested decision, moreover, that the starting amount of the fine imposed on the applicant corresponds to an amount much lower than the amount which, under the Guidelines, the Commission could have envisaged for very serious infringements.

95 In those circumstances, the applicant cannot rely on an error on the Commission’s part in the determination of the fine applied to it in that the Commission did not consider the claim that the infringement had no impact on the market, even on the assumption that such impact could be measured.

96 In the third place, it must be held that, in setting the starting amount of the fine, the Commission took account of the likely effects of the unlawful conduct of each undertaking concerned. It follows from recital 370 to the contested decision that the Commission considered it appropriate to set the fines by reference to the market position of each party in order to take into account, in addition to its specific weight, the likely effect of the unlawful behaviour of each of them.

97 It follows from the case-law that the market share of each of the undertakings concerned in the market which formed the subject-matter of a restrictive practice constitutes an objective factor which, even in the absence of proof that the infringement had an actual effect on the market, gives a fair measure of the responsibility of each of them as regards the potential harmfulness of that practice for the normal operation of competition (see, to that effect, Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraphs 196 to 198). Thus, according to the case-law, for the purposes of setting the amount of the fine, the market shares held by an undertaking are relevant in order to determine what influence it may exert on the market (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 139, and Prym and Prym Consumer v Commission, paragraph 69 above, paragraph 62).

98 In accordance with those principles, in the present case, in setting the starting amount of the fine by reference to the market shares held by each party to the cartel, the Commission used a criterion which, according to the case-law, is relevant in order to determine the influence which the applicant’s behaviour could have had on the market.

99 In the fourth place, as regards the data mentioned in the contested decision which, in the applicant’s submission, prove that the cartel had no effects on the market, it follows from the case-law that, in order to assess the gravity of the infringement, it is decisive to ascertain that the cartel members had done all they could to give concrete effect to their intentions. What then happened, so far as the market prices actually obtained were concerned, was liable to be influenced by other factors outside the control of the cartel members, which cannot benefit from external factors which counteracted their own efforts by turning them into factors justifying a reduction of the fine (see Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 71 above, paragraph 287, and Gütermann and Zwicky v Commission, paragraph 76 above, paragraph 130 and the case-law cited).

100 Thus, in the present case, as the cartel members adopted measures in order to give concrete effect to their anti-competitive objectives (see paragraphs 91 and 92 above), a change in market prices such as the increase in tobacco prices to which the applicant refers cannot in itself justify a reduction of the fine. Indeed, it cannot be precluded that, in the absence of the cartel, the increase in prices would have been greater than the increase referred to above.

101 Last, as regards the argument that the activity and stability of the cartel were often disrupted by the applicant, which, in the applicant’s submission, reinforces the argument that the infringement had no effects on the market, it is sufficient to observe that the applicant’s ‘disruptive’ behaviour vis-à-vis the cartel was evaluated by the Commission as an attenuating circumstance (recital 380 to the contested decision).

Breach of the principles of equal treatment and proportionality

102 As regards, first of all, the alleged breach of the principle of equal treatment, it should be borne in mind that, in accordance with settled case-law, there is a breach of that principle only where comparable situations are treated differently or different situations are treated in the same way, unless such treatment is objectively justified (Case 106/83 Sermide [1984] ECR 4209, paragraph 28, and Case T‑161/05 Hoechst v Commission [2009] ECR II‑3555, paragraph 79).

103 However, it must be pointed out that in the present case the applicant merely asserts that observance of the principle of equal treatment requires that the Commission differentiate the fines according to the actual impact of the agreements on the market, penalised on a case-by-case basis. However, the applicant fails to explain how the Commission breached that principle vis-à-vis the applicant. It should be observed, moreover, that, according to settled case-law, decisions relating to other cases, which the applicant does not even mention, are purely indicative as regards the possible existence of discrimination, since it is unlikely that the circumstances specific to those decisions, such as the markets, products, undertakings and periods concerned, will be the same (see, to that effect, Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraphs 201 and 205; Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 60; and Case T‑12/03 Itochu v Commission [2009] ECR II‑883, paragraph 124).

104 As regards, next, the alleged breach of the principle of proportionality, it should be borne in mind that that principle requires that measures adopted by the institutions must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 13; Case C‑180/96 United Kingdom v Commission [1998] ECR I‑2265, paragraph 96; and judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer v Commission, not published in the ECR, paragraph 223).

105 In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of that principle requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof (see, to that effect, Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 532, and Prym and Prym Consumer v Commission, paragraph 104 above, paragraphs 223 and 224 and the case-law cited). In particular, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (Case T-43/02 Jungbunzlauer v Commission [2006] ECR II-3435, paragraphs 226 to 228, and Case T‑446/05 Amann & Söhne and Cousin Filterie v Commission [2010] ECR II‑1255, paragraph 171).

106 In that regard, it must be pointed out that the applicant has not demonstrated the absence of harm to customers and to final consumers on which it bases its complaint alleging breach of the principle of proportionality. Indeed, the data which it has invoked in the context of the present plea do not prove such absence of effects, since they may have been influenced by other factors (see paragraphs 99 and 100 above).

107 Nor can the applicant claim that the Commission breached the principle of proportionality by setting the starting amount of the fine at EUR 10 million, since the infringement is a very serious and deliberate infringement of the competition rules. The proportionate nature of the starting amount imposed in this case is confirmed by the fact that it was set at a level well below the minimum threshold provided for in the Guidelines for an infringement of that type.

The failure to state reasons and the illogical nature of the reasoning

108 As regards the present complaint, it should be observed that the applicant alleged failure to state reasons or illogical reasoning in the heading of the plea, but did not develop any argument in support of the complaint in the body of the plea. In answer to a question put by the Court at the hearing, the applicant stated that it claimed the existence of illogical reasoning in that the Commission had imposed a penalty above the minimum provided for in the Guidelines without having analysed the impact of the cartel on the market.

109 In that regard, it should be borne in mind that it follows from the case-law that, in the context of the setting of fines for infringement of competition law, the obligation to state reasons is fulfilled where the Commission indicates in its decision the elements of assessment which enabled it to measure the gravity and the duration of the infringement. In the case of a decision imposing fines on a number of undertakings, the scope of the duty to state reasons must be assessed inter alia in the light of the fact that the gravity of the infringement depends on numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of the fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375 (‘PVC II’), paragraphs 463 and 465).

110 In the present case, the Commission stated, at recitals 365 to 376 to the contested decision, the factors which it took into account when setting the starting amounts of the fines imposed on the various undertakings concerned. The Commission stated at those recitals, in particular, the criteria on the basis of which, first, it assessed the gravity of the infringement and, second, it then set the starting amount, classifying the undertakings according to their importance on the market, determined by their market share, taking account of the specific weight of each undertaking and the likely effects of their unlawful conduct. The conditions laid down by the case-law with respect to the obligation to state reasons have thus been satisfied.

111 Last, in so far as it has been observed (see paragraph 88 above) that the Commission set the starting amount of the fine to be imposed on the applicant at an amount well below the minimum threshold provided for in the Guidelines for very serious infringements, the argument alleging illogical reasoning cannot succeed.

112 In the light of the foregoing considerations, the first plea must be rejected.

3. Third plea, alleging failure to state reasons and to carry out an investigation and also failure to observe the burden of proof with respect to the finding of the duration of the applicant’s participation in the alleged infringement

Arguments of the parties

113 The applicant maintains that in fixing the duration of its participation in the infringement at two years and eight months – namely from October 1997 to 19 February 2002, with an interruption from 5 November 1999 to 29 May 2001 – the Commission made a manifest error of assessment of the facts. In that regard, the applicant submits that it claimed during the administrative procedure that its participation in the cartel was interrupted in February 1999 and was never subsequently resumed. The duration of its participation in the infringement was therefore a little over one year. The applicant also takes issue with the Commission for having based its findings on inappropriate evidence and for not having stated sufficient reasons in that regard.

114 As regards, in the first place, the final phase of the first period of its participation in the cartel, the applicant submits that the following points ought to be taken into consideration:

– contrary to settled case-law, recitals 157 to 201 to the contested decision do not mention any evidence of the applicant’s participation in meetings or other activities in 1999;

– it follows from the evidence adduced by the Commission that the last meeting in which the applicant participated was the meeting held on 14 December 1998 (recital 155 to the contested decision); furthermore, an internal Dimon Italia memorandum dated 20 October 1998 (recital 145 to the contested decision) and overlooked by the Commission states that on 16 October 1998 the ‘multinationals’ were complaining that the applicant was ignoring the rules of conduct laid down by the cartel;

– in spite of the fact that the cartel was very active in 1999, the contested decision does not show that the applicant took part in it; indeed, according to the contested decision: (i) the other processors, namely Deltafina, Transcatab, Dimon Italia and Trestina Azienda Tabacchi, brought continuous pressure to bear on APTI in order to influence the negotiations for the conclusion of interprofessional agreements (recital 165 to the contested decision); (ii) various cartel meetings took place in 1999 between Deltafina, Transcatab and Dimon Italia, including, in particular, a number of particularly important meetings in October, which the applicant did not attend and to which it was not invited (recital 184 to the contested decision); and (iii) a memorandum relating to the Bright and Burley varieties of raw tobacco was approved solely by certain processors (recital 186 to the contested decision).

115 As regards, in the second place, the period from 29 May 2001 to 19 February 2002, the applicant makes the following observations:

– the decisive evidence of the applicant’s resumption of its participation in the cartel was the receipt of a fax sent to it by Deltafina on 29 May 2001 and stating the price at which Deltafina would sign contracts for the Bright variety with the producers’ associations; however, that communication was not anti-competitive in nature; indeed, it was an isolated contact intended to enable the applicant to overcome the difficulty in understanding the market values that prevailed in contracts between growers and processors, and the procedure for the signing of those contracts, which was governed by the rules of the common agricultural policy, which had been the subject of significant amendments;

– the commercial initiatives undertaken by the applicant were closely followed at the cartel meetings, in which the applicant did not participate (recital 209 to the contested decision); in addition, the cartel’s relations with the applicant even appeared in an agenda, sent by Dimon Italia to Deltafina and Transcatab, proposed for a meeting to take place on 18 September 2001, that is to say, after the date of receipt of the fax (recital 212 to the contested decision);

– the applicant’s alleged participation in the cartel was limited, as is clear from Transcatab’s statements at the inspection carried out on 18 April 2002, to two meetings, on 16 November 2001 and 8 January 2002; the applicant participated in those meetings, since Deltafina, Dimon Italia and Transcatab invited it to act as ‘mediator’ in order to lift the objection raised by the ‘consortium for the protection and promotion of Burley Campano tobacco’ (‘the Burley consortium’) to the introduction of an auction system for the sale of the tobacco, promoted by Unitab and APTI, which was administered by the national committee for the management of Burley tobacco (‘Cogentab’); for its part, the applicant invited the interested parties to the meeting held on 8 January 2002 (recital 222 to the contested decision), which was preceded on the previous day by another meeting at which Deltafina, Dimon Italia and Transcatab probably discussed among themselves, in the absence of the applicant and the suppliers belonging to the Burley consortium, the common position that they would adopt in the negotiations the following day.

116 The Commission submits, in the first place, that it took 5 November 1999 as the date on which the applicant interrupted its participation in the cartel because a handwritten note of Deltafina’s purchasing officer concerning a meeting held on the same date showed that the applicant was on the agenda as an entity now outside the cartel.

117 In that regard, the Commission rejects the applicant’s argument that the date to be taken into consideration for the interruption of its participation in the cartel is 14 December 1998 (the date of the last cartel meeting in which it took part) or should be determined on the basis of the Dimon Italia internal memorandum of 20 October 1998 referred to at recital 145 to the contested decision. First, the applicant itself acknowledged in its response to the statement of objections that it participated in the cartel at least until February 1999 and, second, the Dimon Italia memorandum cannot constitute evidence of the interruption of the applicant’s participation in the cartel in 1998, since, according to consistent case-law, until the time when an undertaking publicly distances itself from what is discussed at the meetings it remains fully liable owing to its participation in the cartel. In the absence of evidence to that effect, the contested decision therefore correctly established that the applicant’s participation in the cartel continued at least until 5 November 1999.

118 In the second place, the Commission claims that it took 29 May 2001 as the date on which the applicant resumed its participation in the cartel, since it was on that date that the applicant received a fax informing it of the price at which Deltafina would sign the contracts with the producers’ associations.

119 Such a communication between competitors constitutes evidence of the resumption of the applicant’s participation in the cartel, regard being had to the fact that it had already formed part of the cartel until 1999 and that shortly afterwards, that is to say, on 16 November 2001, it would resume its participation in the cartel meetings.

120 In its rejoinder, moreover, the Commission rejects the applicant’s argument that the application clearly reveals the applicant’s intention to contest not only the duration of the period during which it was part of the cartel but also the assertion that it was again part of the cartel during the period from May 2001 to the beginning of 2002. The Commission contends, first, that it is only in the reply that the applicant disputes for the first time the unlawful nature of those meetings, denying that it rejoined the cartel in 2001. That complaint is inadmissible, under the combined provisions of Articles 44(1)(c) and 48(2) of the Rules of Procedure. Second, the Commission maintains that the complaint is unfounded in any event. Transcatab’s statement of 18 April 2002 (document 38281/03488) contains a list of the various meetings held between the members of the cartel; on that list the meeting of 16 November 2001 is designated as a ‘restricted’ meeting (a type of meeting in which the delegated administrators participate) and the meeting of 8 January 2002 is designated as a ‘working’ meeting (a type of meeting in which the purchasing officers took part). In the Commission’s submission, those two meetings therefore were anti-competitive in nature and had an anti-competitive object and were thus part of the cartel’s activities. The fact that the possibility of introducing a system of selling tobacco by auction was also discussed at those meetings does not necessarily mean that questions relating to the cartel were not discussed at them or that the applicant was not involved in those discussions. Nor has the applicant adduced any evidence that it publicly distanced itself during those meetings from the discussions which had an anti-competitive object.

121 In the third place, the Commission maintains that the plea is in any event ineffective. Even if this plea were to be upheld, the only consequence would be that the starting amount of the fine established for the applicant ought to have been increased by 15% and not by 25%, which would have no impact on the final amount of the fine, since it was reduced to EUR 2.05 million in accordance with the maximum limit of 10% laid down in Article 23(2) of Regulation No 1/2003.

Findings of the Court

122 As regards the duration of the applicant’s participation in the infringement (recitals 302 and 378 to the contested decision), it should be observed, first of all, that the parties agree that the applicant joined the cartel in October 1997. On the other hand, the parties disagree, in substance, first, on the question whether the Commission correctly established that the applicant’s participation had ended on 5 November 1999 and, second, on the question whether the Commission correctly established that the applicant joined the cartel again from 29 May 2001 until the end of the infringement, on 19 February 2002.

123 Next, it should be observed that, in the Commission’s submission, the argument whereby the applicant disputes the illegality of the meetings held on 16 November 2001 and 8 January 2002 is a new plea in law, raised in the reply, which is therefore inadmissible.

124 In that regard, the Court points out that, under the first subparagraph of Article 48(2) of the Rules of Procedure, the introduction of a new plea in law in the course of proceedings is not allowed unless it is based on matters of law or of fact which came to light in the course of the procedure. In that connection, a plea which amplifies a submission previously made, either expressly or by implication, and is closely connected with that submission, will be declared admissible (Case T‑195/00 Travelex Global and Financial Services and Interp