8.4.2006

EN

Official Journal of the European Union

C 86/35

(Case T-39/06)

(2006/C 86/72)

Language of the case: Italian

Parties

Applicant(s): Transcatab S.p.A. in Liquidation (Caserta, Italy) (represented by: Cristoforo Osti and Alessandra Prastaro, avvocati)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should:

—Annul in part Article 1.1 of Commission Decision C (2005) 4012 def. of 20 October 2005, in which it found that SCC (and therefore Alliance One) should be held to be jointly liable for the infringements of Article 81 committed by Transcatab;

—Consequently reduce the fine imposed on the applicant;

—Order the Commission to pay the costs in full, including those of Transcatab.

Pleas in law and main arguments

The decision which is the subject of the present action is the same as that in Case T-11/06 Tabacchi v Commission. As regards the applicant, the decision holds the company Alliance One International jointly liable in its capacity as the ultimate holding company TRANSCATAB.

In support of its claims, the applicant submits that the Commission:

—erred in law in holding Alliance One International liable for the conduct of TRANSCATAB. In particular, the defendant infringed the principles regarding the burden of proof, failed to demonstrate the influence exercised by Alliance One International and, consequently, exceeded the limit of 10 % of turnover.

—Erred in finding the infringement in question to be very serious and not, at most, serious, by reason of the virtually non-existent effect of the agreement on the relevant market, the downstream market and consumers, as well as the limited size of the relevant geographical market.

—Infringed the principles of proportionality and equality in fixing the basic amount of the fine at EUR 10 million.

—Failed to distinguish the conduct in the period 1995 to 1998 from that of the following period and considered TRANSCATAB alone to be liable for the former. Indeed, by holding the applicant liable also for the conduct from 1999 to 2002, the Commission infringed the principle of equality, in so far as it acknowledged as an attenuating circumstance for the associations the fact that the legal context was confused but did not apply the same finding to the processors.

—infringed the principle of non bis in idem in that it penalised TRANSCATAB and the other processors once in their capacity as members of the Associazione professionale Trasformatori Tabacchi Italiani, and again as individual processors.

—Erred in failing to apply any of the attenuating circumstances cited by the applicant, such as its cooperation, the failure to perform the agreements, the interruption of those agreements or the existence of a reasonable doubt as to the nature of the infringing conduct.