Official Journal of the European Union

C 82/42

—

(Case T-33/05)

(2005/C 82/74)

Language of the case: Spanish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 January 2005 by Compañía Española de Tabaco en Rama S.A., established in Navalmoral de la Mata (Spain), represented by Marcos Araujo, of the Madrid Bar.

The applicant claims that the Court should:

1.annul the Commission Decision of 20 October 2004 relating to a proceeding under Article 81(1) of the EC Treaty [C(2004) 4030 final] in Case COMP/C.38.238/B.2 – Raw Tobacco Spain;

2.order the Commission to pay the costs.

Pleas in law and main arguments

The decision at issue is the same as in case T-24/05 Standard Commercial and Others v Commission (1).

All the allegations are based on the principle of proportionality. That is clear from the fact that the practices investigated were engaged in a market of EUR 25 million and that the fines imposed amount to almost the same sum. In particular, CETARSA was unprepared for a fine equivalent to 7.5 % of its turnover in 2003.

In support of its arguments the applicant relies on the following pleas:

—Infringement of the principle of equal treatment arising from the imposition of substantial fines on processors and token fines on producers on the basis of arguments applicable to both sectors.

—Incorrect assessment of the facts of the case (official support for regulation of the sector by way of agreements between producers and processors, the limited scale of the markets affected, the absence of effects, etc) which would have justified considering the practices involved as 'serious' conduct, rather than 'very serious'

—Incorrect assessment of the duration of the practices.

—Incorrect assessment of the applicant's participation in the practices complained of, which was based solely on its market share and failed to take account of other factors which distinguish its position.

—The methodology used by the Commission in order to determine the basic amounts leads to the imposition of disproportionate fines in the case of small undertakings, such as the applicant.

—Arbitrary application of the Leniency Notice without any justification by the Commission of that difference in treatment and the breach of the applicant's rights of defence.

* * *

(1) Not yet published in the Official Journal.

—