Case C-654/11 P: Appeal brought on 20 December 2011 by Transcatab SpA, in liquidation, against the judgment delivered on 5 October 2011 in Case T-39/06 Transcatab v Commission
Date: 2011-12-20
Institutions: Court of Justice
Subjects: case-law (EU), equal treatment, fine, infringement of EU law, mitigating circumstances, restriction on competition, rights of the defence, tobacco, turnover








C_2012049EN.01001902.xml










18.2.2012   


EN


Official Journal of the European Union


C 49/19





Appeal brought on 20 December 2011 by Transcatab SpA, in liquidation, against the judgment delivered on 5 October 2011 in Case T-39/06 Transcatab v Commission
(Case C-654/11 P)
2012/C 49/33
Language of the case: Italian

Parties


Appellant: Transcatab SpA, in liquidation (represented by: C. Osti, A. Prastaro and G. Mastrantonio, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:






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set aside the judgment in Case T-39/06 Transcatab v Commission (‘the judgment under appeal’), in which the General Court (Third Chamber) found that Standard Commercial Corp (SCC) (hence Alliance One) had to be treated as jointly liable for the infringements committed by Transcatab;










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reduce in consequence the fine imposed on Transcatab, annulling in part Article 2(c) of Commission Decision C(2005) 4012 final relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw tobacco — Italy) (‘the Decision’), finding that the fine must be calculated by reference to Transcatab’s turnover — which, for the financial year ending in March 2005, amounted to EUR 32 338 000 — in accordance with the provision made under Article 15(2) of Regulation No 17/62 and Article 23(2) of Regulation No 1/2003;










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annul, in consequence, the Decision in so far as it applies to the basic amount of Transcatab’s fine a multiplier of 1.25 %;










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set aside the judgment under appeal — in so far as it rejects Transcatab’s complaints in relation to (i) failure to reduce the fine imposed to reflect the fact that there had been no actual impact on the market; (ii) the diminishing intensity of the infringement during the period from 1999 to 2002; and (iii) the attenuating factor of ‘reasonable doubt’, applied instead in the analogous Spanish case — and, in consequence, reduce the fine;










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order the Commission to pay the costs in their entirety.





Pleas in law and main arguments

It is claimed, in the first place, that the judgment under appeal is in breach of Article 296 TFEU, Articles 48 and 49 of the Charter of Fundamental Rights of the European Union and, in any event, of the principles which govern the burden of proof and Transcatab’s rights of defence. In the course of the proceedings at first instance, arguments and evidence were put forward to overturn the presumption that SCC had exerted decisive influence over Transcatab’s conduct. In so far as those arguments and that evidence were important or, at any rate, not insignificant in the light of the recent case-law of the Court of Justice, they warranted at least a specific appraisal and, in the event of being rejected, that adequate reasons be stated for that rejection. Transcatab maintains that the General Court neither undertook a specific appraisal nor provided an adequate statement of reasons. In any event, Transcatab claims that, in finding that the use of new evidence in the Decision was permissible, the judgment under appeal acted in breach of the principles governing the burden of proof and, in any event, it infringed Transcatab’s rights of defence.
In the second place, Transcatab claims that, in not upholding the complaints relating to the fact that the infringement had not had any actual impact on the market and to the diminishing intensity of the infringement during the period from 1999 to 2002, the General Court erred in distorting the facts and, in any event, acted in breach of: the general principles governing the interpretation of administrative acts of the European institutions; its duty to state reasons; the rules governing the burden of proof; Transcatab’s rights of defence; and the principle requiring correspondence between the ruling and the application.
In the third place, Transcatab claims that the judgment under appeal is flawed by error of law and by the failure to state reasons, or by reasoning which is illogical, in so far as the General Court rejected Transcatab’s complaint alleging breach of the principle of equal treatment, in so far as it failed to take account of the attenuating circumstance consisting in a ‘reasonable doubt’ whereas, in the analogous Spanish case, this was treated as an attenuating circumstance.