Case T-38/05

Agroexpansión, SA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Spanish market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price fixing and market sharing – Fines – Imputability of the unlawful conduct – Maximum limit of 10% of turnover – Deterrent effect – Equal treatment – Attenuating circumstances – Cooperation)

Summary of the Judgment

1. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries

(Art. 81 EC)

2. Competition – Fines – Amount – Determination – Maximum amount – Calculation – Turnover to be taken into consideration

(Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2))

3. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Observance by the Commission of the principle of equal treatment

(Art. 81 EC)

4. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Independence of the subsidiary

(Art. 81 EC)

5. Actions for annulment – Pleas in law – Lack of or inadequate statement of reasons

(Arts 230 EC and 253 EC)

6. Competition – Fines – Amount – Determination – Criteria – Deterrent effect of the fine

(Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03)

7. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Termination of the infringement after the Commission’s intervention

(Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, third indent)

8. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking

(Council Regulations No 17 and No 1/2003; Commission Notice 96/C 207/04)

1. In competition matters, the conduct of a subsidiary may be imputed to the parent company in particular where that subsidiary, despite having a separate legal personality, does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, regard being had in particular to the economic, organisational and legal links between those two legal entities.

In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking. As a consequence, it is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they constitute a single undertaking for the purposes of Article 81 EC that the Commission is able to address a decision imposing fines to the parent company.

The Commission cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised.

In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary.

In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent company exercises decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market.

The presumption arising from 100% ownership of the capital can apply not only in cases where there is a direct relationship between the parent company and its subsidiary, but also in cases such as the present one, where that relationship is indirect, through an intermediary subsidiary.

(see paras 102-106, 108)

2. According to Article 23(2) of Regulation No 1/2003, the Commission may by decision impose on undertakings which have infringed Article 81(1) EC fines which may not exceed 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement. The same provision could be found in Article 15(2) of Regulation No 17.

The turnover referred to in those provisions concerns the overall turnover of the undertaking concerned, that undertaking is the undertaking to which the infringement was attributed and which was therefore declared liable.

As for the concept of ‘preceding business year’ in Article 23(2) of Regulation No 1/2003, it must be understood as referring to the business year preceding the adoption of the Commission’s decision, except in special situations where the turnover for that business year does not provide any useful indication as to the actual economic situation of the undertaking concerned and the appropriate level of the fine to impose on it.

Thus, where the Commission concludes that a parent company and its subsidiary constitute a single economic unit and, accordingly, holds that parent company jointly and severally liable for the infringement and for payment of the fine and includes it among the addressees of its decision, the Commission may rely on the parent company’s consolidated turnover in the year preceding that of the adoption of the contested decision, in order to calculate the upper limit of 10% laid down in Article 23(2) of Regulation No 1/2003. In that respect, it is wholly irrelevant that the parent company cannot be held jointly and severally liable for the infringement in respect of the period before it acquired the subsidiary.

(see paras 109-111, 174-175, 195)

3. Where, in a case concerning an infringement involving several different undertakings, the Commission adopts, within the framework laid down by the case-law, a certain method for determining whether it is appropriate to attribute liability both to the subsidiaries which materially committed that infringement and to their parent companies, it must – save in specific circumstances – rely for such determination on the same criteria in the case of all those undertakings. The Commission is bound by the principle of equal treatment, which, according to settled case-law, requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified.

(see para. 133)

4. In competition matters, the independence of a subsidiary in relation to its parent company must not be assessed solely by reference to the subsidiary’s activity in the area of the products concerned by the infringement. In order to determine whether a subsidiary decides independently upon its own conduct on the market, account must be taken of all the relevant factors relating to the economic, organisational and legal links between the subsidiary and the parent company, which may vary from case to case and cannot therefore be exhaustively listed.

Thus, the fact that no company in the group exercises control over the activities of the subsidiary concerned by the infringement cannot suffice to establish that that subsidiary acts autonomously on the market. The same applies to absence of consultation by the subsidiary of its parent or another group company concerning its purchasing policy of the products concerned by the infringement.

(see paras 164, 168)

5. In an action for annulment, a plea alleging failure to state or failure sufficiently to state the reasons on which a measure is based is a matter of public policy which may, and indeed must, be raised by the Union Court of its own motion and which, in consequence, may be invoked by the parties at any stage of the proceedings.

(see para. 182)

6. Where an infringement of EU competition rules takes place, the size and economic power of the undertaking concerned are factors that can be taken into account for the purposes of calculating the fine and, accordingly, of setting the multiplier designed to ensure that it has a deterrent effect. The fact that the size and global resources of the undertaking concerned are taken into consideration in order to ensure that the fine has sufficient deterrent effect is explained by the impact sought on that undertaking, and the sanction must not be negligible in the light, especially, of its financial capacity.

In that regard, where the Commission uses, as criteria for the purpose of deciding to apply a multiplier for deterrent, the size and global resources of the undertaking concerned, the latter undertaking can encompass the parent company of the company that committed the infringement of the competition rules only where it actually exercised decisive influence over the conduct of the company that committed the infringement.

The undertaking whose size and global resources are thus taken into account is necessarily the same as the undertaking within the meaning of Article 81 EC as defined in the case-law. The fact that those elements are taken into consideration in order to ensure that the fine has a sufficiently deterrent effect is to be explained by the impact sought on the undertaking on which the fine is imposed. The objective pursued is to ensure the effectiveness of the fine by adjusting the amount of the fine according to the global resources of that undertaking and its capacity to raise the funds necessary to pay it. Where the company that committed the infringement behaves autonomously on the market and therefore constitutes an undertaking on its own, that objective can logically, in the light of that autonomy, relate only to that company and not also to other companies in the group to which it belongs. If, in such a situation, the Commission were to take account of the size and economic strength of the group when deciding to apply a multiplier for deterrence, not only would the deterrent effect sought be applied in fact to an entity other than the undertaking responsible for the infringement, but, in addition, the fine might be rendered excessive, notably in the light of the financial capacity of that undertaking, which would result in a breach of the principle of proportionality.

(see paras 207-208, 214-215)

7. Where an infringement of EU competition rules takes place, the termination of the infringement can, logically, constitute an attenuating circumstance only if there are reasons to suppose that the undertakings concerned were encouraged to cease their anti-competitive conduct by the interventions in question, the situation in which the infringement has already come to an end before the date on which the Commission first intervenes not being covered by Section 3, third indent, of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty.

Even if the Commission takes the view that the infringement ceased on the very day on which it carried out its initial investigations, it is entirely justified in not allowing such termination as an attenuating circumstance. A reduction of the fine by reason of the termination of an infringement as soon as the Commission intervenes cannot be automatic but depends on an appraisal of the circumstances of the case by the Commission, in the context of its discretion. In that regard, the application of the third indent of Section 3 of the Guidelines in favour of an undertaking will be particularly appropriate where the conduct in question is not manifestly anti-competitive. Conversely, its application will be less appropriate, as a general rule, where the conduct is clearly anti-competitive, on the assumption that it is proven.

(see paras 229, 231)

8. Where an infringement of EU competition rules takes place, the Commission has a broad discretion as regards the method of calculating fines and that it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that regard, the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings.

In order to justify the reduction of a fine for cooperation, the conduct of an undertaking must facilitate the Commission’s task of finding and bringing to an end infringements of the competition rules and show a true spirit of cooperation.

In that regard, documents supplied to the Commission in response to a request for information under Article 11 of Regulation No 17 are supplied under a legal obligation and cannot be taken into account under the Leniency Notice even if they may serve to establish, as against the undertaking which supplies them or as against a different undertaking, the existence of anti-competitive conduct.

(see paras 252-253, 268)

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

12 October 2011 ( )

(Competition – Agreements, decisions and concerted practices – Spanish market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price fixing and market sharing – Fines – Imputability of the unlawful conduct – Maximum limit of 10% of turnover – Deterrent effect – Equal treatment – Attenuating circumstances – Cooperation)

In Case T‑38/05,

Agroexpansión, SA, established in Madrid (Spain), represented by J. Folguera Crespo and P. Vidal Martínez, lawyers,

applicant,

v

European Commission, represented by F. Castillo de la Torre, É. Gippini Fournier and J. Bourke, acting as Agents,

defendant,

APPLICATION for annulment in part of Commission 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) and also for a reduction of the amount of the fine imposed on the applicant in that decision,

THE GENERAL COURT (Fourth Chamber),

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

Registrar: J. Palacio González, Principal Administrator,

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

gives the following

Judgment

Background to the case

A – Applicant and administrative procedure

1 The applicant, Agroexpansión, SA, is one of the four undertakings established in Spain engaged in the first processing of raw tobacco (‘the processors’).

2 The other three processors are as follows: Compañia española de tabaco en rama, SA (‘Cetarsa’), Tabacos Españoles, SL (‘Taes’) and World Wide Tobacco España, SA (‘WWTE’).

3 The applicant was originally a family business. It was incorporated in 1988 by Mr B., who was its managing director until the end of 2004. From 1994 to 1997 50% of the share capital was held by Mr B.’s wife and 50% by a Spanish company, WW Marpetrol, SA.

4 On 18 November 1997 Intabex Netherlands BV (‘Intabex’) acquired all the applicant’s shares. At that time Intabex belonged to the Intabex group of companies, which had been acquired by Dimon Inc. in April 1997.

5 Dimon is a United States company established in Virginia (United States). It is the parent company of a group of more than 100 companies operating in the tobacco sector (‘the Dimon group’). Its main activity is supplying processed tobacco to cigarette manufacturers. For that purpose it obtains supplies of processed tobacco from, inter alia, the applicant.

6 On 3 and 4 October 2001 the Commission of the European Communities, possessing information that the Spanish processors and the Spanish producers of raw tobacco had infringed Article 81 EC, carried out inspections pursuant to Article 14 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959‑1962, p. 87) at the premises of three of the processors, namely the applicant, Cetarsa and WWTE, and at the premises of the Asociación Nacional de Empresas Transformadoras de Tabaco (‘Anetab’).

7 The Commission also carried out inspections at the premises of Tobacco House AISBL and the European Federation of Tobacco Processors on 3 October 2001 and at those of the Federación nacional de cultivadores de tabaco (‘FNCT’) on 5 October 2001.

8 By letter of 16 January 2002 the processors and Anetab, relying on the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the Leniency Notice’), informed the Commission that they intended to cooperate.

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

10 Certain additional information was passed to the Commission by the applicant, Cetarsa and WWTE by letters of 15 February 2002 and by Taes by letter of 18 February 2002.

11 The Commission subsequently sent a number of requests for information to the processors, Anetab and the FNCT, on the basis of Article 11 of Regulation No 17. It also requested information from the Spanish Ministry of Agriculture, Fisheries and Food concerning the Spanish rules governing agricultural products.

12 On 11 December 2003 the Commission initiated the procedure which gave rise to the present case and adopted a statement of objections, which it addressed to 20 undertakings or associations, including the processors, Dimon, Intabex, Anetab, FNCT and Deltafina SpA. Deltafina is an Italian company whose main activities are the first processing of raw tobacco in Italy and the marketing of processed tobacco. It belongs to the same group of companies as Taes, the ultimate head of that group being a United States company, Universal Corp.

13 The undertakings and associations in question had access to the Commission’s investigation file in the form of a copy on CD-ROM which had been sent to them. They submitted written observations in response to the Commission’s objections.

14 An oral hearing was held on 29 March 2004.

15 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 2004 Decision C(2004) 4030 final relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.238/B.2 – Raw tobacco – Spain) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 19 April 2007 (OJ 2007 L 102, p. 14).

B – Contested decision

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

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

18 The cartel described at paragraph 17 above will be referred to hereinafter as ‘the processors’ cartel’.

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

20 The cartel described at paragraph 19 above will be referred to hereinafter as ‘the cartel of the producers’ representatives’.

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

22 In Article 1 of the contested decision, the Commission imputed liability for the processors’ cartel to the processors, Deltafina, Dimon and the parent companies of WWTE, namely Standard Commercial Corp. (‘SCC’), Standard Commercial Tobacco Co., Inc. (‘SCTC’) and Trans-Continental Leaf Tobacco Corp. Ltd (‘TCLT’), and liability for the cartel of the producers’ representatives to ASAJA, UPA, COAG and CCAE (together ‘the producers’ representatives’).

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

24 In Article 3 of the contested decision, the Commission imposed fines on those undertakings and on the producers’ representatives, and held Dimon jointly and severally liable for payment of the fine imposed on the applicant, and SCC, SCTC and TCLT jointly and severally liable for payment of the fine imposed on WWTE (see paragraphs 67 and 68 below).

C – Addressees of the contested decision

25 Section 2.4 of the contested decision deals with the question of the addressees (recitals 357 to 400).

26 First of all, the Commission stated in that section that it had been shown that the processors and Deltafina had participated directly in the processors’ cartel and the producers’ representatives in the cartel of the producers’ representatives and, accordingly, each of those undertakings and associations ‘[was] required to assume responsibility for the infringement, and [the contested decision] [was], therefore, addressed to each of them’ (recitals 357 and 358 to the contested decision). At recitals 359 to 369 to that decision, the Commission specifically assessed Deltafina’s role in the processors’ cartel.

27 The Commission then examined the question of the imputability of the unlawful conduct of a subsidiary to a parent company, and observed that, here, that question arose in three cases, namely those of the applicant, WWTE and Taes (recitals 370 to 400 to the contested decision).

28 In that respect, in the first place, the Commission recalled the principles which in its view are applicable in this area (recitals 371 to 374 to the contested decision).

29 In particular, it stated as follows:

– in order to determine whether a parent company is to be regarded as liable for the unlawful conduct of its subsidiary, it needs to be established that the subsidiary ‘does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company’ (Case 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, paragraphs 132 and 133);

– according to settled case-law, where the subsidiary is wholly owned by the parent company, it can legitimately be assumed that the parent company in fact exercises decisive influence over its subsidiary’s conduct (Case 107/82 AEG-Telefunken v Commission [1983] ECR 3151, paragraph 50; Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 29; and Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931 (‘PVC II’), paragraphs 961 and 984);

– such an assumption can be further strengthened by ‘specific factors arising in individual cases’;

– in the case of subsidiaries which are not wholly owned, the Court of Justice has held that a parent company can influence its subsidiary’s policy if it holds the majority of the capital of that subsidiary at the time when the infringement is committed (Imperial Chemical Industries v Commission, paragraph 136) or where it is ‘constantly’ informed about the subsidiary’s practices and directly determines its conduct (AEG-Telefunken v Commission, paragraph 52);

– according to settled case-law, the term ‘undertaking’ must be understood in competition law as designating an economic unit for the purposes of the subject-matter of the agreement in question even if in law that economic unit consists of several persons, natural or legal (Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 66, referring to Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11).

30 In the second place, before considering in greater detail the case of the applicant and that of WWTE, at recital 375 to the contested decision the Commission stated as follows:

‘In the present case, three of the four Spanish processors of raw tobacco are controlled (to the extent of 100% or 90%) by US multinationals. There are other factual elements that confirm the presumption that the conduct of [the applicant] and WWTE has to be ascribed to their respective parent companies. In these cases, the two companies – the parent company and the subsidiary – must be regarded as being jointly responsible for the infringements established in [the contested] decision …’

31 At recital 376 to the contested decision, the Commission went on to state:

‘[On the other hand], following the issuing of the [s]tatement of [o]bjections and the hearing of the parties, it has become apparent that the evidence in the file could not warrant a similar conclusion in respect of Universal[’s] … and Universal Leaf [Tobacco Co. Inc.]’s shareholdings in Taes and Deltafina. In fact, apart from the corporate link between the parents and their subsidiaries, there is no indication in the file of any material involvement of Universal … and Universal Leaf in the facts which are being considered in [the contested] decision. It would therefore not be appropriate to address [to] them a decision in this case. The same conclusion would apply, a fortiori, to Intabex … in so far as its 100% shareholding in [the applicant] was purely financial.’

32 At recitals 377 to 386 to the contested decision, the Commission considered the applicant’s case.

33 The Commission observed, in particular, that, from the second half of 1997, the applicant had been wholly controlled by Dimon through the latter’s wholly-owned subsidiary, Intabex (recital 377 to the contested decision). The Commission concluded from this that it could legitimately be assumed that, at least from that time, Dimon had exercised decisive influence over the applicant’s conduct (recital 378, first sentence, to the contested decision). The Commission added that other facts in its file – described at recital 379 to the contested decision – confirmed the ‘presumption [that Dimon] was in a position to exert decisive influence’ (recital 378, second sentence, to the contested decision). At recital 380 to the contested decision, the Commission stated that it could be seen from the above that ‘Dimon was informed of its subsidiary’s practices that are the subject-matter of this Decision and of the circumstances in which they were carried out and that, since Dimon held all of its subsidiary’s capital after 1997, it was in a position to exert influence over its subsidiary’s conduct’. At recital 382 to the contested decision, the Commission stated that ‘[t]he specific facts which [the applicant] brought to the attention of Dimon in their correspondence should have caused Dimon, either [to react immediately, doing what was necessary to distance itself] from any possible infringement of competition rules or by [requiring] the applicant’s management to put an end to any potentially anti-competitive behaviour’, before noting that ‘no such course of action [had] eventually [been] pursued by Dimon’.

34 Moreover, at recital 381 to the contested decision, the Commission rejected the arguments that Dimon had put forward in its reply to the statement of objections in order to demonstrate that the applicant conducted itself independently on the market.

35 Last, the Commission rejected Dimon’s claim that the Commission had breached the principle of non-discrimination by holding it liable for the unlawful conduct of its subsidiary, whereas the Commission had not done the same in the case of Cetarsa’s parent company, namely Sociedad estatal de participaciones industriales (‘Sepi’). As justification for that difference in treatment, the Commission relied on the fact that, contrary to the assertions made by Dimon, ‘[the Commission’s] file [did] not contain any direct communication between Cetarsa and Sepi in relation to the subject-matter of this case’; that ‘the interest of Sepi in Cetarsa appear[ed] to be eminently financial, not unlike the link between Intabex and [the applicant]’; that ‘Cetarsa (unlike [the applicant]) concentrate[d] within itself all the tobacco processing business of the Sepi group and, for the same reason, appear[ed] to be operated as a separate business’; and, last, that ‘Cetarsa [was] not fully owned by Sepi’ (recital 384 to the contested decision).

36 The Commission concluded from those various factors that Dimon ‘[had to] be held jointly responsible together with [the applicant] for the latter’s conduct as established by [the contested decision] for the period from the second half of 1997 until 10 August 2001’ (recital 386 to the contested decision).

37 At recitals 387 to 400 to the contested decision, the Commission considered the case of WWTE. It found that from 1995 until May 1998 WWTE was jointly controlled by SCC (through SCTC and TCLT) and by the chairman of WWTE and his family, and set out a number of particulars from its file which, it claimed, show that, during the same period, SCC ‘and/or its subsidiaries’ had exercised effective influence over the conduct of WWTE in Spain (recital 391 to the contested decision). With regard to the period from May 1998 until the date of the contested decision, the Commission relied on a number of factors which, it claimed, demonstrated that, either directly or through SCTC and TCLT, SCC had exclusive control of WWTE and exercised decisive influence over its commercial policy. The Commission added that ‘[t]he arguments which SCC has deployed in its reply to the [s]tatement of [o]bjections [did] not warrant any different conclusion in this respect’ (recital 399 to the contested decision). In the light of those various factors, the Commission found that, at least since 1996, ‘SCC and/or its subsidiaries SCTC and TCLT’ had exercised decisive influence over WWTE’s commercial policy and that they therefore had to be held jointly and severally liable for WWTE’s practices and be included among the addressees of the contested decision (recital 400 to the contested decision).

D – Determination of the amounts of the fines

38 At recitals 404 to 458 to the contested decision, the Commission examined the question of the fines to be imposed on the addressees of the decision.

39 The amounts of the fines were fixed by the Commission in accordance with the gravity and duration of the infringements at issue, those being the two criteria explicitly mentioned in Article 23(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and Article 15(2) of Regulation No 17, which, according to the contested decision, was applicable at the time of those infringements (recitals 404 and 405 to the contested decision).

40 In fixing the amount of the fine imposed on each of the addressees, the Commission applied 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] (OJ 1998 C 9, p. 3; ‘the Guidelines’), without expressly referring to them. In the contested decision, the Commission also assessed whether, and to what extent, the addressees met the requirements laid down in the Leniency Notice.

1. Starting amounts of the fines

41 First of all, at recital 414 to the contested decision, the Commission characterised the infringements as ‘very serious’, having examined, at recitals 408 to 413 to that decision, their nature, their actual impact on the market, the size of the relevant geographic market and the size of the relevant product market.

42 Next, at recital 415 to the contested decision, the Commission took the view that ‘the specific weight of each of the undertakings involved and the real effect of its unlawful behaviour’ should be ‘considered so that the deterrent effect of the fine imposed on each undertaking can be proportionate to its contribution to the illegal conduct to be sanctioned’.

43 The Commission distinguished between the processors’ cartel (recitals 416 to 424 to the contested decision) and that of the producers’ representatives (recitals 425 to 431 to the contested decision).

44 As regards the processors’ cartel, the Commission considered, in the first place, that ‘fines should be scaled down in consideration of their contribution to the illegal conduct and the market position enjoyed by each party involved’ (recital 416 to the contested decision).

45 In that respect, the Commission stated that ‘Deltafina should receive the highest starting amount for its prominent market position as main purchaser of Spanish processed tobacco’ (recital 417 to the contested decision).

46 With regard to the Spanish processors, the Commission considered that their ‘contribution’ to the illegal conduct ‘[could] be broadly taken as having been similar’ (recital 418 to the contested decision). The Commission considered, however, that their respective different sizes and market shares should be taken into account and, on that basis, divided them into three categories.

47 Thus, the Commission placed Cetarsa in the first category, described as a category ‘of its own’, on the ground that it was ‘by far the leading Spanish first processor’ and should, therefore, receive the highest starting amount (recital 419 to the contested decision). It placed the applicant and WWTE in the second category, pointing out that each had a market share of approximately 15% and should receive the same starting amount (recital 420 to the contested decision). Last, Taes was placed in the third category, on the ground that it had a market share of only 1.6% and should therefore receive the lowest starting amount (recital 421 to the contested decision).

48 In the second place, in order to ensure that the fine had sufficient deterrent effect, the Commission considered that it was appropriate to apply a multiplier of 1.5 – an increase of 50% – to the starting amount determined for WWTE and a multiplier of 2 – an increase of 100% – to the starting amount determined for the applicant (recital 423 to the contested decision). The Commission considered that it was appropriate to take account of the fact that, in spite of their relatively small market share on the Spanish raw tobacco purchasing market, those two processors belonged to multinational groups of considerable economic and financial strength, and that, ‘[m]oreover’, they had operated ‘under the decisive influence of their respective parent companies’ (recital 422 to the contested decision).

49 In the light of those various factors, at recital 424 to the contested decision, the Commission set the starting amounts of the fines for the processors and Deltafina as follows:

– Deltafina: EUR 8 000 000;

– Cetarsa: EUR 8 000 000;

– the applicant: EUR 1 800 000 x 2 = EUR 3 600 000;

– WWTE: EUR 1 800 000 x 1.5 = EUR 2 700 000;

– Taes: EUR 200 000.

50 As regards the cartel of the producers’ representatives, the Commission considered that it was appropriate to impose on each of them only a symbolic fine of EUR 1 000 (recitals 425 and 430 to the contested decision). It justified its position by reference to the fact that ‘the legal framework surrounding the collective negotiation of standard agreements could engender a considerable degree of uncertainty as to the legality of the producer representatives[’] and processors’ conduct in the specific context of their collective negotiation of standard agreements’ (recital 428 to the contested decision), relying on certain elements mentioned at recital 427 to the contested decision. It also observed that ‘the existence and the results of the negotiations on standard contracts were generally well in the public domain and … no authority [had] ever questioned their compatibility with either Community or Spanish law before these proceedings started’ (recital 429 to the contested decision).

2. Basic amounts of the fines

51 At recitals 432 and 433 to the contested decision, the Commission examined the question of the duration of the infringement of which the processors and Deltafina were accused. It set that duration at five years and four months, which amounted to an infringement of long duration. Therefore the Commission increased the starting amount of the fine imposed on each of the processors and on Deltafina by 50%.

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

– Deltafina: EUR 12 000 000;

– Cetarsa: EUR 12 000 000;

– the applicant: EUR 5 400 000;

– WWTE: EUR 4 050 000;

– Taes: EUR 300 000;

– ASAJA: EUR 1 000;

– UPA: EUR 1 000;

– COAG: EUR 1 000;

– CCAE: EUR 1 000 (recital 434 to the contested decision).

3. Aggravating and attenuating circumstances

53 The basic amount of the fine imposed on Deltafina was increased by 50% for aggravating circumstances, on the ground that that undertaking was the leader of the processors’ cartel (recitals 435 and 436 to the contested decision).

54 In respect of attenuating circumstances, the Commission observed, at recital 437 to the contested decision, that ‘[t]he same factors considered under recitals 427 to 429 [to the contested decision could] apply to the processors’ conduct only in respect of their public negotiation and conclusion of standard contracts (including negotiations on price brackets and additional conditions) with producers’ representatives’.

55 At recital 438 to the contested decision, the Commission added that, as regards the ‘secret’ agreements on the (maximum) average delivery price and share-out of quantities of each variety of raw tobacco concluded by the processors, their conduct had ‘[gone] significantly beyond the scope of the relevant legal framework and the scope of public negotiations and agreements with producer representatives’. However, it acknowledged that ‘the public negotiations between producer representatives and processors [had] determined, at least to some extent, the material framework (especially in terms of opportunities to negotiate between themselves and adopt a common position) within which processors [had been able to] develop, aside from the common position they would take in the context of public negotiations, their secret strategy on (maximum) average delivery prices and quantities’.

56 In the light of the factors referred to at paragraphs 54 and 55 above, the Commission decided to reduce by 40% the basic amounts of the fines imposed on the processors and Deltafina (recital 438 to the contested decision). The basic amount of the fine imposed on the applicant was thus set at EUR 3 240 000 (recital 439 to the contested decision).

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

57 At recitals 440 to 447 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.

58 At recital 441 to the contested decision, the Commission stated that, where the companies involved belong to a group and it was established that the parent companies exercised decisive influence over them and that, as a consequence, those parent companies were jointly and severally liable for payment of the fines imposed on the subsidiary, the worldwide turnover of the group must be taken into account in order to determine the maximum limit referred to above.

59 Having reiterated, at recital 442 to the contested decision, that Dimon was jointly and severally liable for payment of the fine imposed on the applicant, the Commission found, at recital 446 to the contested decision, that the amount of that fine should not be adjusted, given that Dimon’s consolidated turnover amounted to United States dollars (USD) 1 271 700 000 in 2003. The amount of the applicant’s fine before application of the Leniency Notice was therefore set at EUR 3 240 000 (recital 447 to the contested decision).

5. Application of the Leniency Notice

60 At recitals 448 to 456 to the contested decision, the Commission dealt with the application of the Leniency Notice in the case of the processors and Deltafina.

61 In the first place, it stated, in particular, that Deltafina and the processors had claimed the benefits of the application of that notice before the statement of objections had been notified to them (recital 449 to the contested decision).

62 In the second place, it stated that Section D of the Leniency Notice was applicable to the processors. It pointed out that, even though it had already been in possession of most of the essential evidence proving the existence of the infringement, the information provided by the processors had assisted it in clarifying and establishing the infringement (recitals 450 and 451 to the contested decision).

63 In the third place, the Commission considered that, in consideration of its ‘particularly useful’ cooperation during the procedure, especially in so far as Deltafina’s participation in the infringement was concerned, and of the fact that it had never contested the facts as set out in the statement of objections, Taes should be granted a 40% reduction of the fine, in accordance with the first and second indents of Section D(2) of the Leniency Notice (recital 452 to the contested decision).

64 In the fourth place, the Commission stated that, while the information provided by Cetarsa and WWTE had been significant, it had not proved to be as useful to its investigations as that provided by Taes (recital 453 to the contested decision). The Commission added that, in their reply to the statement of objections, Cetarsa and WWTE had claimed that ‘the processors’ cartel on (maximum) average delivery prices, on the one hand, and the various agreements which both producers and processors entered into on an average price per producer group, on the other, [were] identical and that the potentially anti-competitive effects of processors’ and producers’ behaviour … therefore neutralise[d] each other’, and observed that that contention did not correspond to the reality of the facts. In the light of those factors, the Commission decided to grant to each of those processors a 25% reduction of the fine, in accordance with the first indent of Section D(2) of the Leniency Notice.

65 In the fifth place, the Commission stated that the applicant had also provided useful information but that, in its reply to the statement of objections, it had disputed the facts ‘in the same terms as Cetarsa and WWTE’ (recital 454 to the contested decision). The Commission added that the applicant had denied the secret nature of the processors’ agreements on (maximum) average delivery prices. In the light of those factors, the Commission granted the applicant a 20% reduction of the fine.

66 In the sixth place, the Commission reduced the fine imposed on Deltafina by 10% (recital 456 to the contested decision).

6. Final amounts of the fines

67 Pursuant to Article 23(2) of Regulation No 1/2003, the Commission set 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: EUR 11 880 000;

– Cetarsa: EUR 3 631 500;

– the applicant: EUR 2 592 000;

– WWTE: EUR 1 822 500;

– Taes: EUR 108 000;

– ASAJA: EUR 1 000;

– UPA: EUR 1 000;

– COAG: EUR 1 000;

– CCAE: EUR 1 000 (recital 458 to the contested decision).

68 Dimon was held jointly and severally liable for payment of the fine imposed on the applicant, and SCC, SCTC and TCLT were held jointly and severally liable for payment of the fine imposed on WWTE (recital 458 to and Article 3 of the contested decision).

Procedure and forms of order sought

69 By application lodged at the Court Registry on 22 January 2005, the applicant brought the present action.

70 On the previous day, SCC, SCTC and TCLT had brought an action for annulment of the contested decision (Case T‑24/05) and WWTE had brought an action for a reduction of the fine imposed on it by that decision (Case T‑37/05).

71 On 28 January 2005, Dimon brought an action for annulment in part of the contested decision or, alternatively, for a reduction of the fine imposed on it by the contested decision (Case T‑41/05).

72 By letter lodged at the Court Registry on 17 August 2005, the applicant requested that the present case be joined with Cases T‑24/05, T‑37/05 and T‑41/05.

73 By letter lodged at the Registry of the Court on 7 September 2005, the Commission informed the Court that joinder of the four cases would not in its view enable the procedure to be significantly more effective and that it would leave it to the Court to decide whether it was appropriate to grant the request for joinder.

74 The Court did not grant the request for joinder.

75 Upon hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, requested the parties to answer certain questions. The parties complied with those requests within the prescribed period.

76 The parties presented oral argument and answered the questions put by the Court at the hearing, which took place on 9 September 2009.

77 The applicant claims that the Court should:

– annul in part Article 3 of the contested decision;

– reduce the amount of the fine which the Commission imposed on it;

– order the Commission to pay the costs.

78 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

79 In support of its application, the applicant puts forward four pleas in law, alleging:

– first, infringement of Article 23(2) of Regulation No 1/2003, breach of the principles of proportionality and equal treatment and failure to state reasons;

– second, breach of the principle of equal treatment;

– third, breach of the principle of the protection of legitimate expectations;

– fourth, breach of the Leniency Notice and also of the principles of proportionality, the protection of legitimate expectations and equal treatment.

80 The first plea is raised, in essence, in support of the claim for annulment in part of the contested decision. The other three pleas are raised in support of the claim for a variation of that decision.

A – First plea, alleging infringement of Article 23(2) of Regulation No 1/2003, breach of the principles of proportionality and equal treatment and failure to state reasons

81 The first plea may be broken down into three parts. The first two parts both allege infringement of Article 23(2) of Regulation No 1/2003 and breach of the principle of proportionality, but the second part is raised in the alternative to the first part. The third part, put forward in the reply, alleges breach of the principle of equal treatment and failure to state reasons. The third part will be examined before the second part.

1. First part, alleging infringement of Article 23(2) of Regulation No 1/2003 and breach of the principle of proportionality with respect to the existence of joint and several liability for payment of the fine

a) Arguments of the parties

82 The applicant claims that the Commission was wrong to hold Dimon jointly and severally liable for the infringement and that, accordingly, it was not entitled to rely on Dimon’s consolidated turnover for the purpose of applying the maximum of 10% of turnover laid down in Article 23(2) of Regulation No 1/2003. The applicant states that its turnover during the tax year preceding the date of adoption of the contested decision was EUR 8 163 815 and maintains that the fine imposed on it therefore greatly exceeds that maximum amount.

83 In support of its assertions, the applicant, in the first place, maintains that the facts on which the Commission relies in order to hold Dimon liable are irrelevant and that it has not been sufficiently established that Dimon exercised decisive influence over the applicant with respect to its participation in the restrictive practices at issue.

84 In that regard, first, the applicant, after observing that it had a ‘local management’, relies on the following elements, which, in its submission, establish that it enjoyed complete autonomy with respect to its activities in purchasing raw tobacco:

– no company in the Dimon group exercised direct or indirect control over those activities;

– when the applicant was acquired by Intabex, it concluded a ‘management contract’ (‘the management contract’) with Mr B., its managing director, under which the powers relating to the management of the company and, more specifically, those relating to the planning and management of purchases (including preparing the annual budget and entering into agreements with producer groups) were fully and exclusively delegated to him;

– its board of directors never put in place internal procedures or systems with which Mr B. was required to comply and there is nothing in the management contract to support the assertion that Mr B.’s activities were subject to prior approval or subsequent ratification by the board of directors;

– no member of its board of directors or its staff, other than Mr B., had the power to participate in the management, negotiation or conclusion of contracts for the purchase of raw tobacco or to interfere in the contractual relationships with the producers;

– when the applicant was acquired by Intabex, Intabex maintained Mr B. in his post as chairman of the applicant’s board of directors and designated three other members within the board of directors, two of whom (Mr T. and Mr G.) were from the Intabex group of companies, while the third was an ‘independent professional’;

– Mr B.’s former purchasing team remained in place after the applicant’s acquisition by Intabex;

– no member of the applicant’s board of directors was at the same time a member of the board of directors or management bodies of Intabex or Dimon or employed by those companies;

– the applicant did not consult Dimon or any other company in the Dimon group concerning its purchasing policy or the restrictive practices in issue;

– it did not receive instructions from either Dimon or any other company in the Dimon group with respect to its participation in those practices;

– the Commission’s file contains no evidence that Dimon or any other company in the Dimon group participated directly in the infringement.

85 Second, the applicant denies having sent Dimon the ‘activity reports’ and ‘field reports’ referred to at recital 379 to the contested decision. It maintains that the Commission has no evidence that those reports were sent to individuals outside its board of directors or its management bodies. It explains that if those reports were systematically translated into English, that was to facilitate the work of Mr T., who did not speak Spanish and who in 1998 had worked for Dimon International Services Ltd, a company in the Dimon group established in the United Kingdom and providing operational services. The applicant adds that if the reports at issue were sent to Mr T. at the headquarters of that company, they were not sent to him in his capacity as a member of its board of directors but only because he worked there and received there all correspondence from the applicant.

86 Third, the applicant claims that none of the letters referred to at recital 379 to the contested decision was addressed to Dimon either. The applicant exchanged those letters with Mr T., in his capacity as a member of the applicant’s board of directors, and with Mr S., who since 2000 had held a post as coordinator of operations in Europe with Dimon International Services. The applicant further claims that most of those letters had no connection with the applicant’s raw tobacco purchasing policy or with the practices complained of. It explains that in the emails which he sent to Mr S. on 30 October 2000 and 9 May 2001 Mr B. merely informed Mr S. in vague and general terms of certain facts that were in the public domain and well known, namely the existence of collective price negotiations between, on the one hand, the processors and, on the other, the producer groups and agricultural unions. As regards the fax of 14 December 1998 from Mr B., it was sent to Dimon International Inc., not to Dimon, and concerned only questions relating to the contract for the sale of processed tobacco which the applicant had entered into with Deltafina before it became part of the Dimon group.

87 In the reply, the applicant disputes the role and functions which the Commission ascribes to Mr T. and Mr S., relying on the following factors:

– there is nothing in the file to indicate that Mr T. sent Dimon the information which he obtained in his capacity as a member of the applicant’s board of directors or that he supervised the applicant’s purchasing policy in order to provide Dimon with information about it;

– Mr T. had no important functions within the Dimon group and was not responsible for integrating the applicant’s activities in that group;

– in August 1998, following a dispute between Dimon and Mr T.’s family, Mr T. ceased to be a member of the board of directors of Dimon International Services;

– Mr T. was a member of the boards of directors of other – ‘very insignificant’ – companies in the Dimon group only on a transitional basis;

– when Mr S. received the only two letters relating to the restrictive practices in issue, he was an employee of Dimon International Services and was not on the board of directors of any of the companies in the Dimon group;

– Mr S. never carried out any activities connected with the applicant’s raw tobacco purchasing policy and was never employed by Dimon or a member of its board of directors.

88 In the second place, the applicant maintains that it is clear from the case-law on which the Commission relies at recitals 371 to 374 to the contested decision, and in particular from paragraphs 28 and 29 of Stora Kopparbergs Bergslags v Commission, paragraph 29 above, that the fact that a parent company holds the entire capital of its subsidiary does not in itself suffice to support the presumption that it exercises decisive influence over the subsidiary. In order for the unlawful conduct of the subsidiary to be imputed to the parent company, other elements in addition to the degree of ownership remain necessary, in particular where, as in the present case, the companies concerned objected to the application of that presumption during the administrative procedure.

89 The applicant claims that such elements are lacking in the present case. More specifically, it emphasises that Dimon did not exercise control of the applicant’s raw tobacco purchasing policy and that it has not been shown that Dimon participated directly in the infringement or instructed the applicant to commit it. The applicant asserts that the fact that a parent company has received ad hoc and imprecise information about certain of the restrictive practices committed by its subsidiary has never been considered ‘in itself and in isolation’ to be sufficient to hold the parent company liable for the unlawful conduct of the subsidiary. According to the case-law, it is essential that the parent company was kept constantly informed of the actions of the cartel and that it was therefore in a position to know in great detail about the restrictive practices committed by its subsidiary. The applicant never communicated to Dimon information about its purchasing policy, still less about the impugned practices.

90 The Commission contends that the first part of the first plea must be rejected as unfounded.

91 In the first place, the Commission sets out a series of considerations concerning the concept of ‘undertaking’ in competition law and the conditions on which a parent company may be held liable for the unlawful conduct of its subsidiary. As regards the latter point, the Commission submits, with reference to AEG-Telefunken v Commission, paragraph 29 above, that it is necessary not only that the parent company be in a position to exercise decisive influence on the conduct of its subsidiary, but also that it did in fact make use of that influence.

92 As regards, more specifically, the second of the conditions referred to at paragraph 91 above, the Commission denies that it requires that the parent company has instructed its subsidiary to infringe Article 81 EC. It asserts that, in defining this condition, the case-law consistently refers to the subsidiary’s lack of independence in determining its general conduct on the market, and it does so without establishing a specific connection with the infringement concerned.

93 The Commission contends that the evidence which may establish effective exercise of control over the subsidiary’s policy includes the fact that the parent company is represented on its subsidiary’s board. It adds that a subsidiary is less likely to be autonomous where it is active on the same market as the parent company or on a closely related market. Apart from those general factors, certain specific circumstances may help to demonstrate that the parent company is involved in its subsidiary’s commercial policy or that it has set up mechanisms enabling it to supervise the subsidiary’s activities.

94 The Commission adds that the case-law has recognised that, where a subsidiary is wholly owned by its parent company, the parent is presumed to have exercised its power to influence the conduct of its subsidiary. The parent company can rebut that presumption by adducing evidence showing that its subsidiary does in fact act autonomously on that market.

95 In the second place, the Commission sets out its reasons for taking the view in the contested decision that Dimon should be held liable for the infringement committed by the applicant.

96 First, the Commission states that since the second half of 1997 Dimon, through Intabex, held the applicant’s entire capital, and that it could therefore be presumed to have actually exercised decisive influence over the applicant’s conduct.

97 Second, the Commission claims that that presumption is confirmed by other evidence in its file. In that regard, first of all, the Commission observes that the purchase and sale of tobacco constitute the essential part of the activities of the Dimon group, that Dimon has since 1999 purchased a large part of the applicant’s processed tobacco and that Dimon entered into a number of contracts with Cetarsa and Deltafina concerning, respectively, the subcontracting and sale of the applicant’s tobacco. Next, the Commission explains that the applicant drew up ‘activity reports’ and ‘field reports’ which described its activities in detail, notably the agreements entered into between the processors and the collective negotiations with the producers. It emphasises that Mr T., in his capacity as a member of the applicant’s board of directors and those of other companies in the Dimon group and, accordingly, as an intermediary acting on behalf of Dimon, received copies of those reports. Last, the Commission refers to the letters mentioned at recital 379 to the contested decision, observing, in particular, that certain of them related to the restrictive practices in issue and were addressed to Mr T. or Mr S., who both acted on behalf of Dimon, and others concerned the contracts for the processing or sale of tobacco concluded by Dimon with Cetarsa and Deltafina.

98 Third, the Commission claims that, in their replies to the statement of objections, neither the applicant nor Dimon succeeded in rebutting the presumption referred to at paragraph 94 above. It contends that the fact that the applicant has its own local management is not in itself sufficient to establish that it acted autonomously and observes that the management contract provides that Mr B. is subject to the ‘systems’ and ‘procedures’ imposed by the applicant’s board of directors.

b) Findings of the Court

99 It should be borne in mind that competition law refers to the activities of undertakings (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 59) and that the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (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 112).

100 The case-law has also made clear that, in the same context, the concept of an undertaking must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 40, and Case T‑325/01 DaimlerChrysler v Commission [2005] ECR II‑3319, paragraph 85).

101 Where such an economic entity infringes the rules of competition, it falls to that entity, in accordance with the principle of personal responsibility, to answer for that infringement (see, to that effect, Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 145; Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 78; and Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 39).

102 As regards the question whether, in those circumstances, a legal person who is not the perpetrator of the infringement may none the less be penalised, it is clear from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where that subsidiary, despite having a separate legal personality, does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company (Imperial Chemical Industries v Commission, paragraph 29 above, paragraphs 132 and 133; Case 52/69 Geigy v Commission [1972] ECR 787, paragraph 44; and Case 6/72 Europemballage and Continental Can v Commission [1973] ECR 215, paragraph 15), regard being had in particular to the economic, organisational and legal links between those two legal entities (see, by analogy, Dansk Rørindustri and Others v Commission, paragraph 99 above, paragraph 117, and ETI and Others, paragraph 101 above, paragraph 49).

103 In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of the case-law referred to at paragraphs 99 and 100 above. As a consequence, it is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they constitute a single undertaking for the purposes of Article 81 EC that the Commission is able to address a decision imposing fines to the parent company (Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 58).

104 It is also apparent from the case-law that the Commission cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised (see, to that effect, Imperial Chemical Industries v Commission, paragraph 29 above, paragraph 137, and AEG-Telefunken v Commission, paragraph 29 above, paragraph 50).

105 In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, the parent company is able to exercise decisive influence over the conduct of the subsidiary (see, to that effect, Imperial Chemical Industries v Commission, paragraph 29 above, paragraphs 136 and 137) and there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary (see, to that effect, AEG-Telefunken v Commission, paragraph 29 above, paragraph 50, and PVC II, paragraph 29 above, paragraphs 961 and 984).

106 In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent company exercises decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see, to that effect, Stora Kopparbergs Bergslags v Commission, paragraph 29 above, paragraph 29).

107 While it is true that at paragraphs 28 and 29 of Stora Kopparbergs Bergslags v Commission, paragraph 29 above, the Court of Justice referred not only to the fact that the parent company owned 100% of the capital of the subsidiary but also to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative procedure, the fact remains that those circumstances were mentioned by the Court of Justice for the sole purpose of identifying all the elements on which the General Court had based its reasoning, and not to make the application of the presumption referred to at paragraph 105 above subject to the production of additional indicia relating to the actual exercise of influence by the parent company (Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 57).

108 Last, it should be made clear that the presumption arising from 100% ownership of the capital can apply not only in cases where there is a direct relationship between the parent company and its subsidiary, but also in cases such as the present one, where that relationship is indirect, through an intermediary subsidiary.

109 Furthermore, it must be borne in mind that, according to Article 23(2) of Regulation No 1/2003, the Commission may by decision impose on undertakings which have infringed Article 81(1) EC fines which may not exceed 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement. The same provision could be found in Article 15(2) of Regulation No 17.

110 According to settled case-law relating to Article 15(2) of Regulation No 17, the turnover referred to in those provisions concerns the overall turnover of the undertaking concerned (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 119; 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, paragraph 367; and 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 533). That undertaking is the undertaking to which the infringement was attributed and which was therefore declared liable (Case T‑31/99 ABB Asea Brown Boveri v Commission [2002] ECR II‑1881, paragraph 181, and Case T‑304/02 Hoek Loos v Commission [2006] ECR II‑1887, paragraph 116).

111 As for the concept of ‘preceding business year’ in Article 23(2) of Regulation No 1/2003, it must be understood as referring to the business year preceding the adoption of the Commission’s decision, except in special situations where the turnover for that business year does not provide any useful indication as to the actual economic situation of the undertaking concerned and the appropriate level of the fine to impose on it (see, to that effect, Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraphs 25, 29 and 30), which is not the case here.

112 It follows that the question which arises in this part of the plea is whether the Commission was justified in finding that, in the present case, the undertaking concerned consisted of the applicant and the company at the head of the group to which it belonged, namely Dimon. If the answer to that question is in the affirmative, it leads to the conclusion, in the light of the principles recalled at paragraphs 109 to 111 above, that the Commission was correct, at recitals 442 and 446 to the contested decision, to take account of Dimon’s consolidated turnover in 2003 when applying the limit of 10% of turnover referred to above.

113 For the purposes of examining that question, it is necessary, first of all, to determine what tests the Commission applied in the contested decision in order to attribute liability to a parent company for the infringement committed by its subsidiary, and whether they are consistent with the principles laid down in this area by the case-law, and then to ascertain whether the Commission correctly applied those tests in concluding that the applicant and Dimon constituted a single economic entity.

The tests applied by the Commission in the contested decision in order to impute to a parent company liability for the infringement committed by its subsidiary

114 It is apparent from the contested decision that, in order to attribute liability to a parent company for the infringement committed by its subsidiary and, accordingly, to include the parent company, along with the subsidiary, among the addressees of that decision and to declare it jointly and severally liable for payment of the fine imposed on that subsidiary, the Commission adopted the following reasoning.

115 The Commission took as its starting point the premiss that such attribution is possible where the parent company and its subsidiary form a single economic unit and, as a consequence, constitute a single undertaking for the purposes of Article 81 EC (see recital 374 to the contested decision).

116 The central feature on which the Commission relied in order to establish that the parent company and its subsidiary are in such a situation is the subsidiary’s lack of independence in deciding upon its own conduct on the market (see recital 371 to the contested decision), since that lack of independence is the corollary of the exercise by the parent company of ‘decisive influence’ over the conduct of the subsidiary (see recitals 18, 372, 373, 378, 380, 381, 383, 391, 392, 397, 399, 400, 422 and 441 to the contested decision).

117 In that regard, the Commission considered that it was not sufficient merely to find that the parent company was able to exercise decisive influence over the conduct of its subsidiary: it also had to show that that influence had in fact been exercised (see, in particular, recitals 18, 376, 384, 391, 392, 397, 399 and 400 to the contested decision).

118 Thus, in particular, it is apparent from recital 384 to the contested decision that, although the Commission considered that it was not appropriate to attribute liability to Sepi for the infringement committed by Cetarsa, in spite of the fact that it held nearly 80% of Cetarsa’s capital, it did so because there was no firm evidence in its file that Cetarsa did not decide independently upon its own conduct on the market.

119 Similarly, it is apparent from recital 18 to the contested decision that the reason that the Commission did not hold Universal or Universal Leaf, its wholly-owned subsidiary, liable for the unlawful conduct of Taes, in which Universal Leaf held a 90% stake, is that the Commission did not have enough evidence that those companies did in fact exercise decisive influence over Taes.

120 The Commission sought to apply those same principles in the case of WWTE’s parent companies in respect of the period before May 1998. Thus, initially, the Commission sought to show that those parent companies, together with WWTE’s chairman and two members of his family, had joint control of WWTE, thereby suggesting that those parent companies were in a position to exercise decisive influence over the conduct of that company (see recitals 388 to 391 to the contested decision). Relying on a number of factors set out at recital 391 to the contested decision, the Commission then endeavoured to establish that those parent companies did in fact exercise such influence over WWTE’s conduct (see recitals 391, 392 and 400 to the contested decision).

121 Moreover, the Commission observed that, in the specific case where a subsidiary is wholly owned by the parent company, it can be assumed, according to the case-law, that the parent company did in fact exercise decisive influence over its subsidiary’s conduct (see recital 372 to the contested decision).

122 However, in the case in point, in order to attribute liability for the infringement committed by subsidiaries to the parent companies in such a position, the Commission chose not to rely on that presumption alone, but to base its findings also on evidence designed to establish that those parent companies did in fact exercise decisive influence over their subsidiaries and, accordingly, to support that presumption (see, in particular, recitals 372, 375, 376 and 378 to the contested decision).

123 Thus, it is made expressly clear at recital 18 to the contested decision that, although the Commission did not hold Deltafina’s ultimate and intermediate parent companies – Universal and Universal Leaf – liable for the unlawful conduct of their subsidiary, in spite of the fact that they wholly controlled Deltafina, it did not do so because it did not have enough evidence that those companies did in fact exercise decisive influence over that subsidiary. Recital 376 to the contested decision should also be understood in this way, even if it is drafted somewhat ambiguously. More specifically, while it is true that the Commission states at that recital that there is ‘no indication’ in its file ‘of any material involvement of Universal … and Universal Leaf in the facts which are being considered in [the contested decision]’, when read together with recital 18 to the decision and in the context of that decision, that statement cannot be interpreted as meaning that the reason that the Commission did not hold those two parent companies – or any other parent company – liable was their lack of involvement in the infringement.

124 Likewise, recital 18 expressly makes clear that the reason that the Commission did not hold Intabex liable for the unlawful conduct of the applicant, even though it wholly controlled the applicant, is that there was not sufficient evidence that Intabex had in fact exercised decisive influence over the applicant, its involvement in the latter being purely financial (see also recital 376 to the contested decision).

125 By contrast, it was precisely the fact that, in the period after May 1998, there was allegedly such evidence in the case of the parent companies of WWTE, together with the fact that those parent companies held all, or (for a few months only) virtually all WWTE’s capital, that led the Commission to attribute liability for the infringement to those parent companies (see, in particular, recitals 375, 393, 396 and 398 to the contested decision).

126 The Commission sought to apply the same method in Dimon’s case. Thus, in order to declare Dimon liable for the applicant’s unlawful conduct from the second half of 1997, it did not merely rely on the presumption arising from the fact that, from that time, Dimon had held all the applicant’s capital (see recitals 375, 377 and 378 to the contested decision), but it also took account of certain additional elements which demonstrated that Dimon did in fact exercise decisive influence over the applicant’s conduct (see recitals 375 and 378 to 380 to the contested decision).

127 That can be inferred, in particular, from the second sentence of recital 378 to the contested decision, although it is stated therein that those additional elements confirm that Dimon was ‘in a position’ to exercise such influence (see paragraph 33 above). It is true that, as the Commission itself acknowledges in its reply to a written question put by the Court, that sentence might have been ‘phrased in a clearer manner’. However, when read together with recitals 372 and 377 to the contested decision, and with the first sentence of recital 378 to that decision, it can be understood only in the sense described at paragraph 126 above.

128 Last, the Commission examined whether the arguments submitted by the subsidiaries concerned (and/or by their parent companies) in their replies to the statement of objections with the aim of establishing that they acted independently on the market could succeed (see, in particular, recitals 381 and 399 to the contested decision). Thus, the Commission rejected the arguments put forward by Dimon as inconclusive and observed, in particular, that ‘the existence of a dedicated local management running its Spanish subsidiary [did] not rule out the possibility for Dimon to exercise decisive influence over the same subsidiary’ (recital 381).

129 It should be pointed out that the Commission applied the method set out at paragraphs 115 to 117, 121 and 122 above not only with regard to the ultimate parent companies, but also with regard to the intermediate parent companies, as is demonstrated – in respect of those intermediaries – by the cases of Universal Leaf, Intabex, SCTC and TCLT.

130 It should be added that that method – without prejudice to the question as to whether it was correctly applied in the case of the applicant (which will be considered below) – is entirely consistent with the principles laid down in this area by the case-law and restated at paragraphs 99 to 108 above.

131 It is true that, this being the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, the Commission did not rely solely on the presumption affirmed in the case-law (see paragraphs 105 and 106 above) in order to show that the parent company did in fact exercise decisive influence over the commercial policy of the subsidiary, but also took into account other factual elements tending to confirm that such influence was actually exercised. At the hearing, the Commission stated, in that context, that, in the light of the state of the relevant case-law at the time when the contested decision was adopted, it had chosen to show prudence.

132 However, by proceeding in that manner, the Commission – while observing fully the fundamental concept of ‘economic unit’ which underlies all the case-law concerning the attribution of liability for infringements to the legal persons which constitute a single undertaking – merely raised the standard of proof required for it to be satisfied that the condition relating to the actual exercise of decisive influence is fulfilled.

133 It should be borne in mind that, where, in a case concerning an infringement involving several different undertakings, the Commission adopts, within the framework laid down by the case-law, a certain method for determining whether it is appropriate to attribute liability both to the subsidiaries which materially committed that infringement and to their parent companies, it must – save in specific circumstances – rely for such determination on the same criteria in the case of all those undertakings. The Commission is bound by the principle of equal treatment, which, according to settled case-law, requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (Case 106/83 Sermide [1984] ECR 4209, paragraph 28, and Case T‑311/94 BPB de Eendracht v Commission [1998] ECR II‑1129, paragraph 309). Moreover, it is clear that the Commission shares that point of view when, at recital 384 to the contested decision, it states that ‘the fact that the specific circumstances which may lead [the Commission] to hold a parent company liable for the behaviour of its subsidiary may vary from one instance to the other cannot as such constitute a breach of the principle of non-discrimination, as long as the principles of liability are consistently applied’.

The existence of a single economic entity between the applicant and Dimon

134 It is appropriate to examine whether the Commission correctly applied the tests set out at paragraphs 115 to 117, 121 and 122 above in order to conclude that the applicant and Dimon constituted a single economic unit from the second half of 1997 and, accordingly, to hold Dimon jointly and severally liable for the infringement and for payment of the fine, and also to include it among the addressees of the contested decision.

135 It is common ground that, during the period from 18 November 1997 until the date of adoption of the contested decision, Dimon held a 100% shareholding in the applicant through Intabex. It cannot therefore be contested that, throughout that period, Dimon was in a position to exercise decisive influence over the applicant’s conduct (see paragraph 105 above).

136 It is therefore necessary to ascertain whether, as regards that period, the condition relating to the actual exercise of decisive influence by Dimon was also satisfied, as the Commission contends.

137 In that regard, it must be recalled that, in the contested decision, in the case of the subsidiaries wholly owned by their parent companies, the Commission chose not merely to rely on the presumption referred to at paragraphs 105, 106 and 121 above in order to attribute to them liability for the infringement committed by those subsidiaries, but also to take account of additional evidence demonstrating that decisive influence was in fact exercised (see paragraphs 122 to 127 above).

138 It is therefore appropriate to examine whether the factors relied on by the Commission in the contested decision, together with the fact that Dimon owned all the applicant’s capital, establish to the requisite legal standard that, during the relevant period, Dimon did in fact exercise decisive influence over the applicant’s conduct. Those factors are set out at recital 379 and footnotes 303 to 305 to the contested decision. They essentially concern various reports and letters from the applicant which, according to the Commission, were intended for Dimon.

139 If the answer is in the affirmative, it will be necessary to ascertain whether the applicant’s claims, as set out at paragraph 84 above, are such as to cast doubt on that conclusion.

– The ‘activity reports’ and ‘field reports’

140 The Commission relies on a number of ‘activity reports’ and ‘field reports’ drawn up by the applicant and observes, in particular, that they frequently referred to the unlawful practices in question. Those reports, 14 in all and covering the period from December 1998 to May 2001, are listed at footnote 303 to the contested decision.

141 First of all, the Court points out that those reports contain detailed information not only on various aspects of the applicant’s commercial activities, such as the raw tobacco buying campaigns (quantities purchased, purchase prices, and so forth), the quantities of raw tobacco processed and the contracts with Cetarsa for the threshing of a part of its tobacco, regulatory developments in the tobacco sector and the meetings within Anetab and with the agricultural unions and producer groups, but also – as is made clear at recital 379 to the contested decision – on the unlawful practices in question.

142 Next, it should be noted that it is clear from the file that the reports in question were drawn up by Mr B. and that, as the applicant itself observes, they were addressed to the members of the applicant’s board of directors.

143 On this last point, it must be pointed out that, on the same day that it acquired a 100% shareholding in the applicant, Dimon – acting through its wholly-owned subsidiary, Intabex, whose involvement in the applicant was purely financial – replaced three of the four members of the applicant’s board, in particular appointing to that board two persons (Mr G. and Mr T.) who were then already carrying out functions within other companies in the Dimon group. Thus, at that time, Mr G. was also executive director of Compañia de Filipinas, SA, a subsidiary of Intabex whose headquarters were in Spain and which was active in the production of black tobacco, and Mr T. was also employed by Dimon International Services and was a member of the board of that company (until August 1998).

144 In that context, the importance of Mr T.’s functions within the Dimon group should be particularly stressed. Not only was he a member of the applicant’s board throughout the period of the infringement and a member of the board of Dimon International Services until August 1998, but he also sat on the board of two other companies in the Dimon group, namely Intabex Holding Worldwide, SA (from 1998 to 1999) and LRH Travel Ltd (until November 2000). Moreover, as the applicant stated in its reply to the statement of objections, Mr T. was responsible for ‘contribut[ing] to the integration of the Intabex group into the Dimon group’. Additionally, as will be explained in greater detail at paragraph 160 below, it is apparent from several letters in the file that the applicant consulted Mr T. on questions relating to its commercial activities, or sought his agreement before adopting certain important decisions. In the light of those factors, the Commission was justified in taking the view that Mr T. acted on behalf of the company at the head of the Dimon group, namely Dimon, and played the role of an intermediary between Dimon and the applicant. Mr T.’s alleged dispute with Dimon, which purportedly led Dimon to relieve him of his duties as a member of the board of Dimon International Services in August 1998, is not such as to call that conclusion into question. Indeed, after August 1998, Mr T. continued not only to be employed by that company, but also to be a member of the boards of the applicant, Intabex Holding Worldwide and LRH Travel.

145 The elements set out at paragraphs 142 to 144 above show that, through the members that it had appointed to the applicant’s board and, in particular, Mr T., Dimon intended to supervise the applicant’s activities and ensure that they would develop in accordance with the commercial policy of the Dimon group. Accordingly, even if, formally, the ‘activity reports’ and ‘field reports’ in question were sent to those members and not directly to Dimon itself, the Commission was justified in finding, at recital 380 to the contested decision, that Dimon was informed of the content of those reports and, in particular, of the unlawful practices in question. That finding is supported by the fact, noted at recital 379 to the contested decision, that those reports were systematically translated from Spanish into English, which is Dimon’s working language.

146 Last, it must be observed that it is common ground that Dimon, which was indisputably in a position to exercise decisive influence over the applicant’s conduct (see paragraphs 105 and 135 above), never raised any objections to the unlawful practices of which it was aware or took any measures aimed at preventing its subsidiary’s continuing involvement in the infringement, notwithstanding the risk of legal proceedings or claims for damages from third parties to which it was exposing itself by conducting itself in that manner (see also recital 382 to the contested decision). The Commission could properly infer from this that Dimon tacitly approved of that involvement and find that such conduct constituted further evidence that Dimon exercised decisive influence over the conduct of its subsidiary.

– The letters exchanged between the applicant and Dimon

147 The Commission also relies on a number of letters alleged to have been exchanged between the applicant and Dimon, and notes that some of them referred to the unlawful practices in question, others related to contracts for the processing of tobacco or the sale of processed tobacco that Dimon had concluded with Cetarsa and Deltafina, while others related in more general terms to the buying conditions for raw tobacco and the regulatory framework in Spain.

148 As regards the letters in the first category mentioned at paragraph 147 above, the Commission refers, at recital 379 to the contested decision, by way of example, to recitals 168 and 179 and footnotes 217 and 229 to that decision.

149 In that regard, first of all, it must be stated that those letters do in fact refer to the unlawful practices in question.

150 Thus, contrary to the applicant’s claim, the fax of 14 December 1998 from Mr B. to Mr D. (of Dimon International, a subsidiary of the Dimon group established in the United States), mentioned at recital 168 to the contested decision, did not relate exclusively to a contract between the applicant and Deltafina concerning the sale of processed tobacco, but also to those practices. That is clear from the third paragraph of that fax, in which Mr B. states as follows:

‘As soon as I get the prices of the four companies I will let you know although I can anticipate … that the problems that seemed so serious while you were visiting us in Spain have vanished, as all the companies have been around the agreed [Spanish pesetas (ESP)] 87 (to within ESP 2 or 3) [per kg], these prices being the official ones, although we suppose Cetarsa has made some other payments to the growers like ourselves.’

151 Recital 179 to the contested decision refers to a report by Mr B. of 5 May 1998, which was addressed to Mr T., and a copy of which Mr B. had sent the previous day by fax to the other two members of the applicant’s board. It should be noted that, in that report, which describes the progress of the 1998 campaign for the purchase of tobacco, it is stated in particular that ‘[the applicant] has made a major contribution to the firms’ reaching a number of agreements on avoiding the price war that characterised [the previous] year’; that ‘the prices have been negotiated with the unions and the [groups of tobacco producers]’; that, ‘for the first time … war between the firms [has been avoided] and each of them has been able to buy the quantities it wished’; and that ‘the negotiations with [those groups] have been difficult but all the firms maintained their points of view in a serious manner and in a spirit of cooperation’. It is also explained in that report that the applicant and WWTE agreed to buy the same quantities of tobacco as in the previous year and that the processors agreed to pay advances to the producer groups of ESP 35 per kg for the Virginia and ESP 45 per kg for the Burley varieties. Last, reference is made to the ‘desirability of other agreements between the processors in the future’. In the light of those elements, it cannot be disputed that the report of 5 May 1998 was referring to the unlawful practices in question.

152 The same is true of the email from Mr B. to Mr S. of 30 October 2000, to which footnote 217 to the contested decision refers. In that email, Mr B. begins by recalling that, during a meeting organised within the framework of Anetab, the processors had discussed a price rise sought by the producer groups and unions and unanimously agreed not to accept it. He then goes on to state that, during a meeting held with all those groups and unions, the processors maintained their position and informed them clearly that they did not agree to the rise of 20% sought.

153 It is stated in the email from Mr B. to Mr S. of 9 May 2001 mentioned at footnote 229 to the contested decision that the processors met at Anetab’s headquarters ‘to prepare discussions on prices with the growers’, and that clearly referred to the fact that the processors were agreeing on the purchase prices of raw tobacco.

154 Next, as in the case of the ‘activity reports’ and ‘field reports’ referred to above, the Court considers that the Commission was justified in taking the view, at recital 380 to the contested decision, that Dimon was informed of the content of the documents mentioned at paragraphs 150 to 153 above and, therefore, of the unlawful practices in question, even if, formally, they were not addressed to it.

155 Thus, as regards the report dated 5 May 1998 that Mr B. had sent to Mr T. (see paragraph 151 above), it has already been explained at paragraph 144 above that Mr T. acted on behalf of Dimon and played the role of intermediary between Dimon and the applicant. As regards the fax of 14 December 1998 (see paragraph 150 above), which had been sent to Dimon International, it is sufficient to observe that, in the reply, the applicant itself stated that, by that fax, it meant to communicate certain information to ‘its new shareholder’. That new shareholder was in fact Dimon, not Dimon International.

156 The emails of 30 October 2000 and 9 May 2001 (see paragraphs 152 and 153 above) had been sent to Mr S. Contrary to the applicant’s contention, Mr S. was not simply an employee of Dimon International Services, but held a high-level position within the Dimon group, so that, as in the case of Mr T., the Commission was entitled to consider that he acted on behalf of the company at the head of that group, namely Dimon. Thus, in its reply of 18 March 2002 to a request for information from the Commission, the applicant stated that Mr S. carried out the duties of ‘regional director of the Dimon group in Europe’. In its reply to the statement of objections and in its written pleadings, the applicant also stated that since 2000 Mr S. had ‘held a post in the coordination of operations in Europe’. Certain information in the email of 9 May 2001 and in Mr S.’s reply further confirm the importance of Mr S.’s role within the Dimon group. Thus, in that email, Mr B. also informed Mr S. of a meeting that he had had with the chairman of Deltafina, on the fringes of the meeting held at Anetab’s headquarters, in order to discuss two issues which Mr B. described as ‘very important’ and indicated to Mr S. that the chairman of Deltafina would telephone Mr S. as soon as possible in order to secure agreement on that issue. By email of the same date, Mr S. replied to Mr B. that he had just spoken to the chairman of Deltafina and that they had agreed to meet very soon. Mr S. also advised Mr B. that he agreed to Mr B.’s proposals concerning the abovementioned issues.

157 Last, the Commission could reasonably infer from the lack of any reaction by Dimon to the applicant’s involvement in the infringement, in spite of having thus been informed of it, that it tacitly approved of its subsidiary’s unlawful conduct, and was entitled to consider that such conduct constituted further evidence that Dimon exercised decisive influence over the conduct of its subsidiary (see paragraph 146 above).

158 The correspondence in the second of the categories mentioned at paragraph 147 above is identified at footnote 304 to the contested decision. It essentially consists of faxes or emails between Mr B., on the one hand, and Mr T. or Mr S., on the other hand. For the reasons already set out at paragraphs 144 and 156 above, Mr T. and Mr S. must be regarded as having acted on behalf of Dimon.

159 Some of the correspondence concerns a contract dating from September 1998 and renegotiated in 2001, under the terms of which some of the applicant’s tobacco processing operations were subcontracted to Cetarsa. It is clear from that correspondence that that contract was concluded by Mr B. in the name and on behalf of Dimon, and that Dimon, through Mr T. and Mr S., in fact exercised decisive influence over the negotiation of that contract.

160 Thus, in a fax of 9 September 1998 to Mr T., Mr B., after stating that he had recently had several meetings with Cetarsa in an attempt to settle ‘Dimon’s pending issues’, expressly requested Mr T.’s agreement on some of the contractual conditions mentioned in the minutes of one of those meetings attached to that fax. It should be noted that, in those minutes, Mr B. is expressly identified as Dimon’s representative. Similarly, it should be pointed out that, in a fax of 14 September 1998, Mr B. informs Mr T. that, ‘following [Mr T.’s] indications’, he again met Cetarsa and that modifications were made to the contract to be signed with Cetarsa, in respect of which he sought Mr T.’s agreement. In a fax of 15 September 1998, Mr B. informed Mr T. that he had communicated to Cetarsa the proposed modification that Mr T. had sent to Mr B. the previous day and that Cetarsa had made a counteroffer. Mr B. requested Mr T. to let him know whether that counteroffer should be accepted. Last, it should be noted that, in the final version of the contract concluded with Cetarsa, which Mr B. sent to Mr T. by fax of 18 September 1998, Dimon is expressly identified as one of the two parties to the contract and Mr B. as its representative.

161 Similarly, the Court observes that, in an email of 3 April 2001, Mr B. informed Mr S. of the progress made in the renegotiation of the contract referred to at paragraph 160 above, expressing the fear that Cetarsa would require the same conditions from Dimon as it had agreed with Mr M., the chairman of Deltafina, in the context of a contract concluded in parallel with Deltafina on behalf of Universal and therefore requesting Mr S. to contact Mr M. It is apparent from an email of the following day from Mr S. to Mr B. that Mr S. did in fact attempt to contact Mr M.

162 Last, it must be noted that, in an email of 7 March 2001, Mr B. reports to Mr S. about a meeting that, ‘as agreed in Camberley’ (the headquarters of Dimon International Services in the United Kingdom), he had had the previous day with a Cetarsa representative, during which they discussed, inter alia, certain aspects of the agreement being renegotiated with Cetarsa.

163 Other correspondence in the second of the categories mentioned at paragraph 147 abov