16.7.2011

Official Journal of the European Union

C 211/18

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(Case C-240/11)

2011/C 211/35

Language of the case: Spanish

Parties

Appellant: World Wide Tobacco España, S.A. (represented by: M. Odriozola and A Vide, Abogados)

Other party to the proceedings: European Commission

Form of order sought

—set aside in part the judgment of the General Court in Case T-37/05;

—reduce the fine imposed on the appellant;

—order the Commission to pay the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

First, the appellant submits that the Commission infringed the principle of equal treatment by applying a more stringent factor for deterrence on World Wide Tobacco España S.A. (WWTE) than on other undertakings engaged in processing tobacco. The Commission applied a factor for deterrence to WWTE on the ground that it belonged to a multi-national group having considerable economic and financial power. The fact that WWTE may have acted — which is not the case — under the decisive influence of its parent companies was considered solely as a supplementary factor.

Second, in the alternative, the appellant submits that the Court of Justice must recalculate the multiplier in so far as it may find any of the parent companies not to be responsible for the conduct of WWTE. The General Court should not have rejected WWTE’s arguments on the ground that it had not included in its application the arguments of its parent companies, given that it is for the parent companies to refute the imputation of liability, not the subsidiary. In any event, the judgments delivered and to be delivered in the actions of the parent companies, including the judgment in Case T-24/05, have the effect of res judicata as between persons which are jointly and severally liable.

Third, the General Court should not have declared inadmissible on grounds of lack of clarity the appellant’s argument that the Commission had imposed a fine which, as the parent companies were not liable, failed to observe the ceiling of 10 % of turnover. The reasons are the same as those referred to in the preceding paragraph: only the parent companies have the capacity to refute the imputation of liability and the judgment given has the effect of res judicata as between persons which are jointly and severally liable.

Finally, the Commission infringed the Guidelines on the method of setting fines since it failed to take into account that, during 1996 and 1997, WWTE did not respect the agreements. Furthermore, the appellant submits that, in having failed to include an express reference to that attenuating circumstance in the contested decision, the Commission cannot maintain that it took it into account.

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