Case T-19/06: Action brought on  20 January 2006  — Mindo v Commission
Date: 2006-01-20
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, tobacco industry, unlawful agreement

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

C 60/50

EN

Official Journal of the European Union

11.3.2006

Form of order sought

— Declare Article 1.1(a) of Commission Decision C(2005)
4012 final, of 20 October 2005, relating to a proceeding
under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw
Tobacco Italy) partially null and void to the extent that it
refers to a longer duration of the infringement (which is
deemed to be terminated on 19 February 2002 instead of
15 January 2002, at the latest);

— declare Article 2(b) of the Contested Decision null and void
to the extend that MINDO should have been granted full
immunity from fines under the Leniency Notice, or in the
alternative, the amount of the fine imposed on MINDO and
on a joint and several basis to ‘Alliance One International’
should be substantially reduced;

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

Pleas in law and main arguments

By the contested Decision the Commission found that several
companies, including the applicant, infringed Article 81(1) EC
by way of agreements and/or concerted practices in the Italian
raw tobacco sector. The applicant requests the partial annul-
ment of this Decision invoking, firstly, an alleged infringement
of its legitimate expectations regarding the application of the
Leniency Notice. The applicant contests the Commission's
rejections of its application to benefit from immunity on the
grounds that another company, and not the applicant, was
entitled to immunity. According to the applicant, that other
the
company did not comply with the requirements of
Leniency Notice whereas the Commission failed to prove that
the applicant did not comply with the same requirements.

In the alternative, the applicant contends that its participation
to the infringements ceased on 15 January 2002 at the latest,
rather than on 19 February 2002, and that the fine imposed on
it should be reduced accordingly on this basis.

Further, the applicant considers that the Commission violated
the principles of proportionality and legal certainty as well as
the duty to state reasons regarding the assessment of the scope
of the applicant's restrictive conduct. According to the appli-
cant, the Commission failed to take into account that it partici-
pated in agreements regarding the purchase price and the quan-
tities of surplus production only in 1998 and 1999 and that it
did so in the context of interprofessional agreements authorised
under Italian legislation.

The applicant also invokes an infringement of the rights of
defence as well as of the principles of proportionality and legiti-
mate expectations in the calculation of the basic amount of the
fine. In this context the applicant alleges that the basic amount
of the fine materially exceeds the total value of the products
which were affected by the cartel practices; that the Commis-
sion has erred in the assessment of the two potential effects of
the restrictive practices cited in the contested Decision; that
those two potential effects are new to the contested Decision
and had not been stated in the Statement of Objections; and
that the Commission mistakenly applied a multiplying factor in

order to calculate the basic amount of the fine without taking
into consideration that at the time of the contested Decision's
adoption the applicant was not part of any large multinational
undertaking.

Further, the applicant invokes an infringement of the duty to
state reasons and the principles of legal certainty and of legiti-
mate expectations in connection with the Commission's alleged
failure to take certain mitigating factors into account, notably
the early termination of
the infringing conduct and the
minimal effects of the restrictive practices attributed to the
applicant.

Finally, the applicant also invokes an infringement of the prin-
ciples of proportionality and of legitimate expectations as well
as the duty to state reasons in the application of section 5(b) of
the Commission's guidelines, regarding the specific economic
and social context in which the restrictive practices took place.
It also alleges that the Commission failed to take into consid-
eration, when setting the amount of the fine,
its extremely
fragile economic situation and its ability to pay.

Action brought on 24 January 2006 — Alliance One Inter-
national v Commission

(Case T-25/06)

(2006/C 60/93)

Language of the case: English

Parties

Applicant: Alliance One International,
Inc.
[represented by: C. Osti, A. Prastaro, lawyers]

(Danville, USA)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1.1(a) of Commission Decision C(2005)
4012 final, of 20 October 2005, relating to a proceeding
under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw
Tobacco Italy) insofar as it relates to SCC, Dimon Inc. and
Alliance One;

— accordingly reduce the fines imposed on Transcatab and
Dimon Italia- Mindo so that the fines do not exceed 10 %
of their turnover in the latest financial year;

— alternatively, reduce the fine imposed on Transcatab and
Dimon Italia- Mindo as the multiplying factor is not applic-
able;

— order the Commission to pay the costs.