Case T -389/04: Order of the Court of First Instance of  16 January 2006  — Germany v Commission
Date: 2006-03-11
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), contract, control of State aid, market approval, mobile phone, restriction on competition

11.3.2006

EN

Official Journal of the European Union

C 60/51

Pleas in law and main arguments

Form of order sought

By the contested Decision the Commission found that several
companies, including the applicant and its subsidiaries, Trans-
catab and Dimon Italia, later renamed Mindo, infringed Article
81(1) EC by way of agreements and/or concerted practices in
the Italian raw tobacco sector.

The applicant requests the partial annulment of this Decision
arguing, firstly, that by holding it jointly and severally liable for
the infringement committed by its subsidiaries, the Commission
breached the rules regulating responsibility of parent compa-
nies. The applicant contests in this context the arguments and
the evidence cited by the Commission in support of its finding.

The applicant also considers that the Commission breached
Article 23(2) of Regulation 1/2003 (1) by imposing fines which
exceed 10 % of the total turnover of its subsidiaries.

Finally, the applicant considers that the Commission should not
have applied a multiplying factor to its subsidiaries as this was
not justified on the basis of the parties' turnovers and the
Commission's decisional practice.
the
multiplying factor applied to it is higher than that applied to
another undertaking leading to an evident violation of propor-
tionality and lack of reasoning. The applicant also submits that
the reasoning for the application of a multiplying factor to
Mindo is inconsistent as it applies different criteria to determine
the same fine.

further argues that

It

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles
81 and 82 of the Treaty, OJ L 1, 04/01/2003 p. 1.

— Annul 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 is addressed to the applicant;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the contested Decision the Commission found that several
companies,
its indirect
including the applicant and one of
subsidiaries, infringed Article 81(1) EC by way of agreements
and/or concerted practices in the Italian raw tobacco sector. On
this basis, it imposed a fine on the applicant, jointly and sever-
ally with its subsidiary.

In support of its application the applicant contends, firstly, that
in the contested Decision the Commission adopted, without
giving any explanation or objective justification, a diametrically
opposed position to its own position in the Spanish raw
tobacco case which involved the same parent/subsidiary rela-
tionship, the same time frame, the same commodity, the same
buying prices and the same lack of involvement or knowledge
by the applicant. On this basis the applicant considers that the
Commission violated its obligation to state reasons, disregarded
the principle of equal treatment and violated the applicant's
legitimate expectations by imposing a fine on it for the infrin-
gement of its subsidiary.

The applicant further argues that the Commission failed to
prove to the requisite legal standard any decisive influence by
the applicant on the commercial behaviour of its subsidiary. In
this context, it submits that the Commission wrongly consid-
ered that requirements for reporting and for certain approvals
confirm its exercise of decisive commercial influence over its
subsidiary whereas this was not the case, due to the applicant's
very decentralised structure and organisation.

Action brought on 24 January 2006 — Universal v
Commission

(Case T-34/06)

(2006/C 60/94)

Language of the case: English

Parties

Applicant: Universal Corp. (Richmond, USA) [represented by: A.
Riesenkampff, T. Reher, M. Holzhäuser, C. Swaak, M. Mollica,
avocats]

Order of the Court of First Instance of 16 January 2006 —
Germany v Commission

(Case T -389/04) (1)

(2006/C 60/95)

Language of the case: German

The President of the First Chamber has ordered that the case be
removed from the register.

Defendant: Commission of the European Communities

(1) OJ C 300, 4.12.2004.