EN

Official Journal of the European Union

C 60/48

(Case T-11/06)

(2006/C 60/90)

Language of the case: Italian

Parties

Applicant: Romana Tabacchi Spa (Rome, Italy) (represented by: M. Siragusa and G. Cesare Rizza)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—Substantially reduce the fine imposed on Romana Tabacchi;

—Order the Commission to pay the applicant's costs;

—Order any other measure, including any measure of an investigative nature, which it considers appropriate.

Pleas in law and main arguments

The object of the present action is the partial annulment of the Commission Decision of 20 October 2005 relating to a proceeding under Article 81 EC (Case COMP/C-38.281/B.2 — Raw tobacco — Italy), limited to the part concerning the calculation of the fine imposed on the applicant, and the resulting reduction of the said fine.

In that decision, the defendant found that six undertakings operating in Italy in the raw tobacco processing sector had infringed Article 81(1) EC from 1995 until the beginning of 2002, by means of concerted agreements or practices aimed at coordinating their individual purchasing strategies, including through the organisation of regular information exchanges and mutual consultation. In particular, according to the Commission, the processors agreed maximum and average delivery prices for the ‘Burley’ variety of raw tobacco, as well as the volumes of the product to be purchased. The cartel extended to include concerted action on bids in response to public competitive procedures organised by AIMA-Azienda di Stato (the State Corporation AIMA) in 1995 for action to be taken on the agricultural market and by ATI-Azienda Tabacchi Italiani S.p.A. in 1998.

The Commission also found that, during the period between February 1999 and November 2001, the Associazione Professionale Trasformatori Tabacchi Italiani (Italian Professional Association of Tobacco Processors) and the Unione Italiana Tabacco (Italian Tobacco Union) adopted decisions concerning their respective negotiating positions on prices for each grade of each variety of tobacco with a view to entering into inter-business agreements.

In support of its claims, the applicant pleads:

—Infringement of the principles of equality and proportionality, to the extent to which the Commission omitted, for the purposes of calculating the starting point for the fine, to take into account the fact that the cartel had no, or at most a modest, practical impact on the market;

—The illogicality of the statement of reasons and the infringement of the principle of equal treatment as regards the failure to set progressive amounts for the basic fine in order to adjust it to the size of the undertaking on which the fine is imposed. In particular it maintains, on this point, that the use of the market share for the last full year of the breach should be mitigated and adjusted in all of the cases in which an undertaking's participation in the alleged restrictive practices was marked by interruptions;

—That the finding that the duration of the applicant's participation in the cartel was two years and eight months is the result of a clear error of appraisal;

—That the Commission failed to take account of two mitigating circumstances: the purely passive role played by the applicant in the cartel, and the frequent confusion as to the aims of the agreements;

—That the fine in question, which is almost double its assets, is unjust and disproportionate.