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

(Case C‑668/11 P)

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

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

2. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 50, 51, 77, 81, 88, 89)

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

4. Competition — Fines — Amount — Determination — Deterrent effect — Criteria for evaluating the deterrence factor — Account taken of the size and global resources of the fined undertaking — Turnover which may be taken into account (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 62-65)

5. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 170(1)) (see paras 68, 69)

6. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Termination of the infringement before the Commission’s intervention — Exclusion (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, point 3, third indent) (see paras 86, 87)

7. Appeals — Grounds — Plea directed against a superfluous ground — Invalid plea in law — Rejection (see paras 91, 92)

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 12 October 2011 in Case T‑38/05 Agroexpansion v Commission, by which the General Court rejected, in part, an application for the partial annulment of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.238/B2 — Raw tobacco — Spain).

Operative part:

The Court:

1. Dismisses the appeal;

2. Orders Alliance One International, Inc. to pay the costs.

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

(Case C‑668/11 P)

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

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

2. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 50, 51, 77, 81, 88, 89)

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

4. Competition — Fines — Amount — Determination — Deterrent effect — Criteria for evaluating the deterrence factor — Account taken of the size and global resources of the fined undertaking — Turnover which may be taken into account (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 62-65)

5. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 170(1)) (see paras 68, 69)

6. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Termination of the infringement before the Commission’s intervention — Exclusion (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, point 3, third indent) (see paras 86, 87)

7. Appeals — Grounds — Plea directed against a superfluous ground — Invalid plea in law — Rejection (see paras 91, 92)

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 12 October 2011 in Case T‑38/05 Agroexpansion v Commission, by which the General Court rejected, in part, an application for the partial annulment of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.238/B2 — Raw tobacco — Spain).

Operative part:

The Court:

1. Dismisses the appeal;