16.4.2005

EN

Official Journal of the European Union

C 93/33

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(Case T-41/05)

(2005/C 93/64)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 January 2005 by Dimon Incorporated, established in Danville, Virginia (USA), represented by L.Bergkamp, H. Cogels and J. Dhont, lawyers.

The applicant claims that the Court should:

—declare Articles 1, 3 and 5 of the contested decision null and void to the extent that they refer to Dimon Inc.;

—in second order, reduce the amount of the fine imposed on Agroexpansion S.A. and on a joint and severally basis to Dimon Inc.;

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

Pleas in law and main arguments

The applicant contests the decision of the Commission of 20 October 2004 relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 - Raw tobacco Spain). The applicant claims that it is not the correct addressee of the decision.

In support of its application, the applicant invokes an infringement of Article 81(1) EC, Article 23(2) of Regulation No 1/2003 (1) and of the principle of proportionality. According to the applicant, the Commission made a manifest error in finding that the applicant exercised a decisive influence over Agroexpansion during the infringement period and has therefore incorrectly addressed the decision to the applicant and has exceeded the maximum limit for the amount of the fine that can be imposed on Agroexpansion, since the Commission has taken into consideration the Dimon's group turnover for calculating the maximum ceiling of the fine.

The applicant furthermore submits a violation of the principle of proportionality and liability to the extent that the applicant has been held liable for a single and complex long term cartel agreement carried out by Agroexpansion of which the applicant was not informed.

The applicant also submits a violation of the principle of proportionality and liability and of Article 23(2) of Regulation No 1/2003. According to the applicant, it should not have been held liable for the infringements that occurred before Agroexpansion became part of the Dimon group.

Finally, the applicant submits a violation of the principle of legitimate expectations in the application of a mitigating factor, pursuant to Section 3 of the Commission's Guidelines of 1998 (2), following the early termination of the infringement as soon as the Commission began the investigation.

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

(2) Guidelines on the method of setting fines imposed pursuant to Article 15 (2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ C 9, p. 3)

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