Judgment of the General Court (Fourth Chamber) of 8 March 2011 – World Wide Tobacco España v Commission

(Case T-37/05)

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 – Deterrent effect – Equal treatment – Mitigating circumstances – Maximum limit of 10% of turnover – Cooperation

1. Competition – Fines – Amount – Determination – Deterrent effect – Criteria for assessing the deterrent factor (Council Regulations Nos 17, Art. 15(2) and 1/2003, Art. 23(2)) (see paras 106-107)

2. Competition – Community rules – Undertaking – Concept – Economic unit – Infringement committed by a subsidiary – Imputation to the parent company – Conditions (Art. 81(1) EC) (see paras 118-119, 122)

3. Competition – Fines – Amount – Determination – Deterrent effect – Undertaking acting independently on the market – No account taken, for the purposes of calculating the fine, of the size and global resources of the parent companies (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2)) (see paras 117, 123-124)

4. Procedure – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based – None – Inadmissibility – Arguments developed in the reply – No effect (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 130-131, 136)

5. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Assessment – Need to take separate account of each of the circumstances – None – Global assessment (Council Regulation No 17, Art. 15(2); Commission Communication 98/C 9/03, Section 3) (see para. 152)

6. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – First case applying competition rules to a given sector of the economy – Infringement ceasing after the Commission’s intervention – Inclusion – Conditions – Discretion of the Commission (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 3, third indent) (see paras 160, 162-163)

7. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Agreement not implemented in practice – Assessment at the level of the individual conduct of each undertaking – Obligation, on the undertaking to have been clearly and substantially opposed to the implementation of the agreement – Burden of proof (Council Regulations Nos 17, Art. 15, and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 3, second indent) (see para. 164)

8. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Conditions – Discretion of the Commission (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 96/C 207/04) (see paras 188-190)

Re:

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

Operative part

The Court:

1. Sets the amount of the fine imposed on World Wide Tobacco España SA in Article 3 of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.238/B.2 − Raw tobacco – Spain) at EUR 1 579 500;

2. Dismisses the action as to the remainder;