Case T-11/06: Action brought on  19 January 2006  — Romana Tabacchi v Commission
Date: 2006-01-19
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, tobacco industry, unlawful agreement

C 60/48

EN

Official Journal of the European Union

11.3.2006

Form of order sought

Form of order sought

The applicant claims that the Court should:

— Annul the Decision of the First Board of Appeal of OHIM
of 14 September 2005 in Case R-897/2004-1 granting
registration of Community trade mark No 1 400 183 for
the following products:

Class 5 — pharmaceutical, veterinary and sanitary prepara-
tions; dietetic substances adapted for medical use, prepara-
tions for destroying vermin;

Class 42 — medical services, services related to pharmaceu-
tical
laboratories; research in the field of medicine and
laboratories.

— Order OHIM to pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: PORTELA & Ca, S.A.

Community trade mark concerned: Bial (application No 1400183)

Proprietor of the mark or sign cited in the opposition proceedings:
Juan Torres Quadrado and Josep Gilbert Sanz

Mark or sign cited in opposition: Spanish trade mark BIAL

Decision of the Opposition Division: Opposition allowed in part

Decision of the Board of Appeal: Decision of the Opposition Divi-
sion upheld in its entirety

Pleas in law: The applicant claims that OHIM infringed Article
8(1)(b) of Regulation No 40/94 by interpreting it incorrectly
and that the contested decision is vitiated by infringements of
essential procedural requirements (the mark was not properly
presented in the opposition, the applicant was not provided,
within the period prescribed by law, with the relevant elements
of the earlier mark on which the opposition was based and the
decision on costs was incorrect).

The applicant claims that the Court should:

— Substantially reduce the fine imposed on Romana Tabacchi;

— Order the Commission to pay the applicant's costs;

— Order any other measure,

including any measure of an

investigative nature, which it considers appropriate.

Pleas in law and main arguments

The object of the present action is the partial annulment of the
Commission Decision of 20 October 2005 relating to a
proceeding under Article 81 EC (Case COMP/C-38.281/B.2 —
Raw tobacco — Italy), limited to the part concerning the calcu-
lation of the fine imposed on the applicant, and the resulting
reduction of the said fine.

In that decision, the defendant found that six undertakings
operating in Italy in the raw tobacco processing sector had
infringed Article 81(1) EC from 1995 until the beginning of
2002, by means of concerted agreements or practices aimed at
coordinating their individual purchasing strategies,
including
through the organisation of regular information exchanges and
mutual consultation. In particular, according to the Commis-
sion, the processors agreed maximum and average delivery
prices for the ‘Burley’ variety of raw tobacco, as well as the
volumes of the product to be purchased. The cartel extended to
include concerted action on bids in response to public competi-
tive procedures organised by AIMA-Azienda di Stato (the State
Corporation AIMA) in 1995 for action to be taken on the agri-
cultural market and by ATI-Azienda Tabacchi Italiani S.p.A. in
1998.

The Commission also found that, during the period between
February 1999 and November 2001, the Associazione Profes-
sionale Trasformatori Tabacchi
(Italian Professional
Association of Tobacco Processors) and the Unione Italiana
Tabacco (Italian Tobacco Union) adopted decisions concerning
their respective negotiating positions on prices for each grade
of each variety of tobacco with a view to entering into inter-
business agreements.

Italiani

Action brought on 19 January 2006 — Romana Tabacchi v
Commission

In support of its claims, the applicant pleads:

(Case T-11/06)

(2006/C 60/90)

Language of the case: Italian

Parties

Applicant: Romana Tabacchi Spa (Rome, Italy) (represented by:
M. Siragusa and G. Cesare Rizza)

Defendant: Commission of the European Communities

— Infringement of the principles of equality and proportion-
ality, to the extent to which the Commission omitted, for
the purposes of calculating the starting point for the fine,
to take into account the fact that the cartel had no, or at
most a modest, practical impact on the market;

— The illogicality of the statement of reasons and the infringe-
ment of the principle of equal treatment as regards the
failure to set progressive amounts for the basic fine in order
to adjust it to the size of the undertaking on which the fine
is imposed. In particular it maintains, on this point, that the
use of the market share for the last full year of the breach
should be mitigated and adjusted in all of the cases in
which an undertaking's participation in the alleged restric-
tive practices was marked by interruptions;

11.3.2006

EN

Official Journal of the European Union

C 60/49

— That the finding that the duration of the applicant's partici-
pation in the cartel was two years and eight months is the
result of a clear error of appraisal;

— That the Commission failed to take account of two miti-
gating circumstances: the purely passive role played by the
applicant in the cartel, and the frequent confusion as to the
aims of the agreements;

— That the fine in question, which is almost double its assets,

is unjust and disproportionate.

In support of its claims, the applicant pleads:

— that it informed the Commission in advance that it would
be impossible for it not to reveal that it had submitted the
request for favourable treatment;

— that the Commission had accepted that it was impossible
for Deltafina not to reveal that it had submitted a request
for favourable treatment;

— that the Commission officials did not inform Deltafina that
its announcement
for
favourable treatment would entail the loss of conditional
immunity;

it had submitted a request

that

Action brought on 19 January 2006 — Deltafina v
Commission

(Case T-12/06)

(2006/C 60/91)

Language of the case: Italian

Parties

Applicant: Deltafina (Rome, Italy) (represented by: F. Di Gianni,
R. Jacchia, A. Terranova, I. van Bael and J. F. Bellis)

Defendant: European Commission

— that Deltafina did not submit its own request for favourable
treatment in concert with its principal competitors; and

— that Deltafina's disclosure that it had submitted a request
for favourable treatment in no way prejudiced the Commis-
sion's investigation.

As regards the reduction of the fine, the applicant submits that:

— The basic amount of the fine imposed by the Commission
is clearly excessive and disproportionate, having regard to
the market concerned, Deltafina's
the modest value of
reduced turnover and the fact that the breach did not have
any impact on the market;

— The Commission erroneously attributed Deltafina's conduct

to its parent company;

— The reduction of the fine and the assessment of mitigating
circumstances do not adequately reflect the specific facts of
the case, in the light, in particular, of the new interpretative
practices under the 2002 Notice.

Form of order sought

(1) OJ C 45, 19.2.2002, p. 3.

The applicant claims that the Court should:

— annul

the fine or,

in the alternative,

reduce the fine

imposed on it pursuant to Article 2 of the Decision;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant in the present case seeks the annulment of the
fine of EUR 30 million imposed on it pursuant to Article 2 of
the contested Decision, which is the same as that in issue in
Case T-11/06 Romana Tabacchi v Commission, on the ground
that the Commission unlawfully deprived it of the immunity
from fines which was granted pursuant to point 8(b) of the
Commission Notice of 2002 on immunity from fines and
reduction of fines in cartel cases (1).

the defendant
that
It should be explained in this respect
revoked the conditional
immunity granted to the applicant
because of the latter's announcement, made during a meeting
of the Governing Board of the Associazione Professionale Tras-
formatori Tabacchi Italiani (Italian Professional Association of
Tobacco Processors), that it had made a request for favourable
treatment to the Commission.

Action brought on 20 January 2006 — Mindo v Commis-
sion

(Case T-19/06)

(2006/C 60/92)

Language of the case: English

Parties

Applicant: Mindo Srl (Rome, Italy) [represented by: J. Folguera
Crespo, P. Vidal Martínez, lawyers]

Defendant: Commission of the European Communities