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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Mindo v Commission (Competition) [2011] EUECJ T-19/06 (05 October 2011)
URL: http://www.bailii.org/eu/cases/EUECJ/2011/T1906.html
Cite as: [2011] EUECJ T-19/6, [2011] EUECJ T-19/06
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JUDGMENT OF THE GENERAL COURT (Third Chamber)
5 October 2011 (*)
(Competition – Agreements, decisions and concerted practices – Italian market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price-fixing and market-‘sharing – Payment of the fine by the jointly and severally liable debtor – Applicant involved in an insolvency procedure in the course of the proceedings – No longer any interest in bringing proceedings – No need to adjudicate)
In Case T-‘19/06,
Mindo Srl, established in Rome (Italy), represented by J. Folguera Crespo and P. Vidal Martínez, lawyers,
applicant,
v
European Commission, represented initially by É. Gippini Fournier, N. Khan and F. Amato, and subsequently by É. Gippini Fournier, N. Khan and L. Malferrari, acting as Agents,
defendant,
APPLICATION for partial annulment of Commission Decision C (2005) 4012 final of 20 October 2005 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.281/B.2 – Raw tobacco – Italy) and, in the alternative, application for a reduction in the fine imposed on Mindo Srl,
THE GENERAL COURT (Third Chamber),
composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,
Registrar: K. Pochéc, Administrator,
having regard to the written procedure and further to the hearing on 29 November 2010,
gives the following
Judgment
Background to the dispute
1 The applicant, Mindo Srl, is an Italian company, which is currently in liquidation. It was originally a family undertaking known as Reditab Srl. It was subsequently purchased in 1995 by Intabex Netherlands BV (‘Intabex’), a subsidiary of Dimon Inc. Following that purchase, its business name was changed and it became Dimon Italia Srl. Its main activity was the first processing of raw tobacco. On 30 September 2004 the whole of its shareholding was sold by Intabex to four individuals with no connection with the group of which Dimon was the ultimate parent company. Following that sale, its business name was changed and it became Mindo. On 13 May 2005, Dimon merged with Standard Commercial Corporation (‘SCC’) to form a new entity, Alliance One International, Inc. (‘Alliance One’).
Administrative procedure
2 On 15 January 2002 the Commission of the European Communities sent requests for information, pursuant to Article 11 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), concerning the Italian raw tobacco market, to the trade associations of Italian raw tobacco processors and producers, namely the Associazione professionale transformatori tabacchi italiani (APTI, the Trade Association of Italian Raw Tobacco Processors) and the Unione italiana tabacco (Unitab, the Italian Tobacco Union) respectively.
3 On 19 February 2002, the Commission received an application for immunity from fines pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’) from Deltafina SpA, a processor and a member of APTI. On 6 March 2002, the Commission granted it conditional immunity under point 15 of the Leniency Notice.
4 On 4 April 2002 a meeting was held at APTI’s offices. In the context of that meeting, Deltafina informed the participants, including Transcatab SpA and the applicant, that it had applied for immunity and that the Commission had decided to award it conditional immunity.
5 On 4 April 2002 the Commission also received an application from the applicant for immunity from fines under point 8 of the Leniency Notice and, in the alternative, an application for a reduction in any fine, under points 20 to 27 of the Leniency Notice, and also, several hours later, an application on the same basis from Transcatab for a reduction in any fine.
6 On 9 April 2002, the Commission acknowledged receipt of the applicant’s application for immunity from fines and, pursuant to point 12 of the Leniency Notice, informed it that immunity from fines was not available for the suspected infringement as that application did not meet the requirements set out in points 8(a) and 9 or 8(b) and 10 of the Leniency Notice. The Commission also acknowledged receipt, pursuant to point 25 of the Leniency Notice, of the applicant’s application for the reduction of any fine.
7 On 8 April 2002, the applicant provided additional evidence consisting of a further explanatory note and 10 annexes. On 17 April 2002, the Commission acknowledged receipt of those documents.
8 On 18 and 19 April 2002 the Commission carried out investigations pursuant to Article 14 of Regulation No 17 at the premises of the applicant and Transcatab and also at the premises of Trestina Azienda Tabacchi SpA and Romana Tabacchi SpA.
9 On 8 October 2002, the Commission informed the applicant and Transcatab that, as they had been the first and second undertakings, respectively, to provide evidence of the infringement for the purposes of the Leniency Notice, it proposed to grant them, at the end of the administrative procedure, a reduction of 30 to 50% and 20 to 30% respectively, of the amount of the fines that would otherwise have been imposed on them with respect to any infringements found in the absence of cooperation.
10 On 25 February 2004, the Commission adopted a statement of objections, which it addressed to 10 undertakings or associations, including Deltafina, Transcatab, Romana Tabacchi and the applicant (together, ‘the processors’) and the parent companies of certain of them, inter alia Dimon, SCC and Universal Corp., parent company of Deltafina. The addressees of the statement of objections had access to the administrative file, a CD-‘ROM copy of which was sent to them by the Commission. They also submitted written observations in response to the Commission’s objections. An administrative hearing was then held on 22 June 2004.
11 Following the adoption, on 21 December 2004, of an addendum to the statement of objections of 25 February 2004, a second administrative hearing was held on 1 March 2005.
12 After consulting the Advisory Committee on Restrictive Practices and Monopolies, and in the light of the final report of the Hearing Officer, the Commission adopted Decision C (2005) 4012 final of 20 October 2005 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.281/B.2 – Raw tobacco – Italy) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 13 February 2006 (OJ 2006 L 353, p. 45).
Contested decision
13 The contested decision relates, first, to a horizontal cartel implemented by the processors on the Italian raw tobacco market (recital 1 of the contested decision).
14 The Commission found, in the contested decision, that, in the context of that cartel, during the period 1995 to the beginning of 2002, the processors fixed the trading conditions for the purchase of raw tobacco in Italy in respect of both direct purchases from producers and purchases from third packers, in particular by price-fixing and market-‘sharing (recital 1 of the contested decision).
15 The contested decision concerns, second, two other infringements separate from the cartel implemented by the processors, which took place between the beginning of 1999 and the end of 2001 and consisted, for APTI, in fixing the contract prices which it would negotiate, on behalf of its members, for the conclusion of interprofessional agreements with Unitab and, for the latter, in fixing the prices which it would negotiate with APTI, on behalf of its members, for the conclusion of the same agreements.
16 In the contested decision, the Commission found that the practices of the processors constituted a single and continuous infringement of Article 81(1) EC (see, in particular, recitals 264 to 269 of the contested decision).
17 The Commission stated that, since the two groups to which Transcatab and the applicant belonged during the infringement period had ceased to exist following their merger in the new entity Alliance One, that entity, as the legal successor of those two groups, was the addressee of the contested decision. The same applied to the applicant, which had been sold by Intabex to certain individuals who renamed it Mindo (recitals 349 and 350 of the contested decision).
18 The Commission concluded, in recital 351 of the contested decision, that Deltafina, Universal, the applicant, Transcatab, Alliance One, Romana Tabacchi, APTI and Unitab had to be held liable for the infringements and had to be the addressees of the contested decision.
19 In recitals 356 to 404 of the contested decision the Commission determined the fines to be imposed on the addressees of the decision.
20 After assessing the gravity of the infringement and concluding, in recital 369 of the contested decision, that the processors’ infringement had to be qualified as very serious, the Commission examined the question of ‘specific weight’ and ‘deterrence’.
21 In order to ensure that the fine was deterrent, the Commission considered that it was necessary to apply a multiplier of 1.5 – an increase of 50% – to the starting amount of the fine set for Deltafina, and of 1.25 – an increase of 25% – to the starting amount of the fine set for the applicant and Transcatab (recital 375 of the contested decision).
22 Thus, in recital 376 of the contested decision, the Commission set the starting amounts of the fines as follows:
– Deltafina: EUR 37.5 million;
– Transcatab: EUR 12.5 million;
– the applicant: EUR 12.5 million;
– Romana Tabacchi: EUR 10 million.
23 The Commission then examined the question of the duration of the infringement. It is apparent inter alia from recitals 377 to 379 of the contested decision that the Commission increased the starting amounts of the fines by 10% per full year of infringement and by 5% for any additional period of six months or more. Thus, the starting amount of the fine was increased by 60%, corresponding to an infringement period of six years and four months, for Deltafina, the applicant and Transcatab, and by 25%, corresponding to an infringement period of two years and eight months, for Romana Tabacchi.
24 The basic amounts of the fines imposed on the addressees of the contested decision were therefore set as follows:
– Deltafina: EUR 60 million;
– Transcatab: EUR 20 million;
– the applicant: EUR 20 million;
– Romana Tabacchi: EUR 12.5 million.
25 In recitals 380 to 398 of the contested decision the Commission considered whether any attenuating circumstances should be taken into consideration and rejected all the applicant’s arguments in that regard.
26 Moreover, the Commission assessed whether it was necessary to adjust the basic amounts for the various addressees so that those amounts did not exceed the limit of 10% of turnover laid down in Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (recitals 399 to 404 of the contested decision).
27 In this respect, the Commission limited the applicant’s joint and several liability to 10% of its turnover for the most recent business year, that is to say, EUR 3.99 million, because at the time of adoption of the contested decision that undertaking maintained no links with the former group of which Dimon was the ultimate parent company (recital 404 of the contested decision).
28 In recitals 405 to 500 of the contested decision, the Commission dealt with the application of the Leniency Notice. It established, inter alia, that the applicant had satisfied the conditions imposed on it under the application for a reduction in the fine and the Commission’s assessment of the evidence adduced and the cooperation during the procedure led it to conclude that the applicant should benefit from the highest rate of reduction available within the brackets indicated to it following its application for a reduction, that is to say 50% (recital 499 of the contested decision).
29 In Article 2 of the contested decision, the Commission set, in accordance with Article 23(2) of Regulation No 1/2003, the amounts of the fines to be imposed on the undertakings and associations of undertakings to which the contested decision was addressed as follows:
– Deltafina and Universal, jointly and severally: EUR 30 million;
– the applicant and Alliance One: EUR 10 million, Alliance One being liable for the whole fine and the applicant being jointly and severally liable for only EUR 3.99 million;
– Transcatab and Alliance One, jointly and severally: EUR 14 million;
– Romana Tabacchi: EUR 2.05 million;
– APTI: EUR 1 000;
– Unitab: EUR 1 000.
Procedure
30 By application lodged at the Court Registry on 20 January 2006, the applicant brought the present action.
31 In the application, the applicant requested inter alia that the present case be joined with that relating to the application lodged, on 24 January 2006, by Alliance One, for partial annulment of the contested decision (Case T-25/06 Alliance One International v Commission). An analogous application was made by Alliance One.
32 On 14 February 2006, Alliance One paid the fine imposed by the Commission on it and the applicant in full, the applicant being jointly and severally liable for only a part of that fine, namely EUR 3.99 million.
33 On 4 July 2006, the applicant was placed in liquidation, but did not at any point inform the Court of this.
34 By separate document lodged at the Court Registry on 27 July 2006, the applicant reiterated its request that Case T-‘25/06 be joined with the present case. On 21 August 2006 Alliance One presented its observations on that application for joinder and stated that it was in favour of the cases being joined.
35 By letter lodged at the Court Registry on 21 August 2006, the Commission stated that it considered that the joinder of those cases would not enable the procedure to be significantly more effective and was leaving the issue to the wisdom of the Court.
36 The Court did not grant the application for joinder.
37 Following an application for bankruptcy (istanza di fallimento) submitted on 27 December 2006 by one of its creditors before the Tribunale ordinario di Roma, sezione fallimentare (the Bankruptcy Court of Rome; ‘the Tribunale fallimentare di Roma’) (Italy), the applicant brought, on 5 March 2007, pursuant to Article 161 of the regio decreto 16 marzo 1942, n. 267, recante disciplina del fallimento, del pre-bankruptcy agreement, dell’amministrazione controllata e della liquidazione coatta amministrativa (Royal Decree No 267 of 16 March 1942, laying down rules for bankruptcy, pre-‘bankruptcy agreements, supervised administration and compulsory liquidation, as amended, extraordinary supplement to the GURI No 81, of 6 April 1942 (‘the Italian Law on Bankruptcy’)), an application for admission to the pre-bankruptcy agreement procedure with assignment of the assets (‘the pre-bankruptcy agreement’) before the same court. By judgment of 27 November 2007, the Tribunale fallimentare di Roma validated the pre-bankruptcy agreement proposed by the applicant.
38 Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, in the context of the measures of organisation of procedure laid down in Article 64 of its Rules of Procedure, requested the parties to produce documents. The parties complied with that request within the time-limit set.
39 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 29 November 2010.
40 At the hearing the Commission, which had learnt a few days beforehand that the applicant had been in liquidation since July 2006, essentially claimed that the applicant had lost its interest in bringing proceedings in the present case, since Alliance One had paid the fine imposed on them in full, including the sum of EUR 3.99 million that it was required to pay jointly and severally with the applicant, without claiming a contribution from the applicant, even though the latter was in liquidation.
41 The Court therefore requested the applicant, by way of a measure of organisation of procedure adopted under Article 64 of the Rules of Procedure, to provide it with any relevant information and documents concerning any agreement that it might have entered into with Alliance One regarding payment of the fine by Alliance One and the possibility for Alliance One to claim a contribution from the applicant, formal note of which was taken in the minutes of the hearing. That measure of organisation of procedure was subsequently reproduced in a letter from the Court, sent to the applicant on 8 December 2010.
42 Moreover, in reply to a question put by the Court, the applicant specified that, by the second sentence of its third head of claim (see paragraph 57 below), it was seeking only to obtain reduction of the amount of the fine to be paid jointly and severally with Alliance One.
43 By letter of 6 January 2011, the applicant acceded to the request made by the Court at the hearing and produced a number of documents. However, it omitted to state that it had initiated a pre-bankruptcy agreement procedure and that that procedure was still ongoing. It essentially claimed that it still had an interest in bringing proceedings in the present case.
44 On 21 February 2011, in its observations on the applicant’s letter of 6 January 2011, the Commission reiterated that the applicant had lost any interest in bringing proceedings in the present case. The Commission also produced a document from the Chamber of Commerce of Rome concerning the applicant’s financial state, showing that a pre-bankruptcy agreement procedure, registered under No 3/07, had been opened in respect of the applicant since 21 May 2007. The Commission also noted that the Court was entitled to order a measure of organisation of procedure, in accordance with Article 64(4) of the Rules of Procedure, requesting Alliance One to provide information regarding its exercise of its right to claim a contribution from the applicant.
45 By letter of 11 March 2011, the applicant submitted its observations on the Commission’s observations of 21 February 2011, and objected to a measure of organisation of procedure requesting Alliance One to provide information and claimed that the Commission had committed an abuse of process.
46 In the context of the measures of organisation of procedure provided for in Article 64(3)(c) of the Rules of Procedure, the Court, by letter of 17 March 2011, put written questions to Alliance One.
47 By letter of 30 March 2011, Alliance One replied to the questions put by the Court on 17 March 2011. It stated in essence that it had not yet claimed a contribution from the applicant, since it preferred to await the outcome of the present proceedings. It also stated that, to take such action, it would have ‘been compelled in all likelihood to pursue a full judgment for obtaining the contribution [of the applicant] and an injunction based on such judgment’. It states, moreover, that, if the Court were to annul the fine totally or partially, it would have been forced to return to the applicant the sum recovered with interest, which would have made the whole process ‘cumbersome, expensive and long-‘winded’. Furthermore, it took the view that its claim was not time-‘barred and would not be before the end of the present proceedings. Lastly, it stated that the existence of a pre-bankruptcy agreement procedure did not prevent a creditor from bringing a case before the competent courts with the aim of obtaining a declaratory judgment against the debtor subject to that procedure and of requesting an order for performance of the judgment as soon as the decree of validation is adopted.
48 By letters of 18 and 19 April 2011, respectively, the applicant and the Commission submitted their observations on the information provided by Alliance One.
49 By letter of 12 May 2011, the General Court requested the applicant, by way of measures of organisation of procedure, to produce certain documents relating to the pre-bankruptcy agreement procedure pending before the Tribunale fallimentare di Roma, and to provide all relevant details as to the implementation of that agreement.
50 By letter of 20 May 2011, the applicant acceded to the requests. It produced, inter alia, the application for a pre-‘bankruptcy agreement and the proposal for the pre-‘bankruptcy agreement sent to its creditors on 5 March 2007, the judgment validating the pre-bankruptcy agreement, delivered by the Tribunale fallimentare di Roma on 27 November 2007, as well as other documents concerning the state of implementation of that agreement.
51 On 25 May 2011, a hearing took place before the Tribunale fallimentare di Roma in order to assess the implementation of the agreement and/or to establish its possible rescission or annulment, pursuant to Article 186 of the Italian Law on Bankruptcy.
52 On 1 June 2011, the applicant produced, at the request of the Court, the list of creditors that it had annexed to the application for the pre-bankruptcy agreement submitted to the Tribunale fallimentare di Roma on 5 March 2007. That list makes no mention of a claim of Alliance One over the applicant.
53 On 15 June 2011, a new hearing took place before the Tribunale fallimentare di Roma.
54 On 21 June 2011, the Commission submitted its observations on the documents produced by the applicant in its letter of 20 May 2011, and on the list of creditors lodged by the applicant on 1 June 2011.
55 By letter of 13 July 2011, in reply to a new measure of organisation of procedure, the applicant replied to questions put by the Court, produced documents and expressed its view on whether it was still necessary to adjudicate on the action for the purposes of Article 113 of the Rules of Procedure.
56 On 29 July 2011, the Commission, at the request of the Court, expressed its view on whether it was still necessary to adjudicate on the action for the purposes of that article.
Forms of order sought by the parties
57 The applicant claims that the Court should:
– annul Article 1(1)(a) of the contested decision in so far as it refers to a longer infringement period, which is deemed to have ceased on 19 February 2002 instead of 15 January 2002, at the latest;
– annul Article 2(b) of the contested decision, in that the applicant ought to have benefited from full immunity from fines under the Leniency Notice;
– in the alternative, vary Article 2(b) of the contested decision and substantially reduce the ‘fine imposed on the applicant and jointly and severally on Alliance One’;
– order the Commission to pay the costs;
– order, pursuant to Article 50(4) of the Rules of Procedure of the General Court, joinder of the present case with the case relating to Alliance One’s action against the contested decision.
58 The Commission contends that the Court should:
– dismiss the application;
– order the applicant to pay the costs.
Law
59 Under Article 113 of the Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it.
60 According to the case-law, lack of legal interest in bringing proceedings constitutes an absolute bar to proceedings, which the Courts of the European Union may raise of their own motion (see Case T-‘310/00 MCI v Commission [2004] ECR II-‘3253, paragraph 45 and the case-law cited, and order in Joined Cases T-‘228/00, T-‘229/00, T-‘242/00, T-‘243/00, T-‘245/00 to T-‘248/00, T-‘250/00, T-‘252/00, T-‘256/00 to T-‘259/00, T-‘265/00, T-‘267/00, T-‘268/00, T-‘271/00, T-‘274/00 to T-‘276/00, T-‘281/00, T-‘287/00 and T-‘296/00 Gruppo ormeggiatori del porto di Venezia and Others v Commission [2005] ECR II-‘787, paragraph 22 and the case-law cited). It must be held that the Courts of the European Union may also consider, of their own motion, whether an interest in bringing proceedings has ceased to exist in the course of the proceedings.
61 In the present case, the parties having been heard, it is necessary to examine at the outset the Commission’s arguments at the hearing and in its observations on the applicant’s replies to the written questions put by the Court, according to which the latter has essentially lost all interest in pursuing the present proceedings on the ground that the fine to be paid jointly and severally has been paid in full by Alliance One, which has not claimed a contribution from the applicant.
Arguments of the parties
62 The Commission claims in essence that the applicant has no interest in pursuing the present proceedings, given that the fine that it was required to pay jointly and severally with Alliance One was paid in full in February 2006 by Alliance One, which has not claimed a contribution from the applicant. In this respect, the Commission doubts whether Alliance One has a right to claim such a contribution from the applicant. In the Commission’s submission, such a right is not apparent either from the applicant’s application for a pre-bankruptcy agreement or from the entries in its accounts, filed with the companies registry in accordance with Italian law. The Commission submits that that could be explained by the existence of a guarantee or any other act pursuant to which Alliance One undertook, at the time of sale of its shares to the applicant, to pay the full amount of the fine imposed on them.
63 The Commission also disputes the arguments put forward by the applicant in order to substantiate its position that it continues to have an interest in bringing proceedings in the present proceedings.
64 As regards the applicant’s alleged interest in defending itself against possible third party claims for damages, the Commission claims, in its observations of 21 February 2011 on the applicant’s letter of 6 January 2011, that the applicant did not give any indication of legal proceedings undertaken or even capable of being envisaged by third parties injured by the infringements. As regards the letters containing a claim for damages, which were placed in the file by the applicant on 20 May and 13 July 2011, respectively, the Commission observes that they do not prove that an action has been initiated and, especially, that such an action is not time-‘barred.
65 As regards, lastly, the applicant’s putative liability to contribute to the payment made by Alliance One, the Commission observes that it is implausible that Alliance One will claim such a contribution from the applicant from now on, especially given that Alliance One did not react to the applicant’s being placed in liquidation and to the initiation of the pre-bankruptcy agreement procedure. It is also difficult to reconcile the apparent existence of Alliance One’s right to a contribution with its inaction over so many years in asserting such a claim. Indeed, the intentions of Alliance One as regards the possibility of claiming a contribution from the applicant are not clear from its reply to the written questions put by the Court. Moreover, since Alliance One’s right to claim a contribution from the applicant is based directly on the contested decision, it is difficult to understand what type of difficulties there might be in obtaining a summary judgment from the Italian court.
66 The applicant submits that it has a clear and direct interest in pursuing the proceedings. In its submission, even if it is involved in liquidation proceedings or if its former parent company, Alliance One, might have provisionally paid in full the fine imposed on them for which the applicant was declared jointly and severally liable in the sum of EUR 3.99 million, that does not affect its interest in pursuing the proceedings.
67 First, the applicant claims that its interest in bringing proceedings results from its fundamental right to a court, which it derives from Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), as reflected in the European Union legal order by Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389).
68 In this respect, the applicant states that the pleas that it relied on in support of its action concern (i) the legal classification of certain facts (inter alia, the attribution of liability for certain preparatory agreements for the inter-professional agreements, the existence of attenuating circumstances, the impact of the limited size of the market on the assessment of its conduct and the imposition of a lower fine), (ii) the shorter duration of the infringement attributed to it and (iii) the incorrect application by the Commission of the Leniency Notice (inasmuch as the applicant seeks to obtain full immunity or alternatively ‘partial immunity’ from fines, pursuant to point 23 of that notice).
69 The applicant submits, moreover, that its interest in pursuing the present proceedings is not just limited to the fine, but also covers the liability attributed to it for certain conduct and the legal assessment of such conduct.
70 Second, the applicant claims that its interest in bringing proceedings also results from its right to defend itself against possible actions for damages or liabilities from third parties related to the infringements declared by the contested decision once it has become final. In this respect, it annexed to its letter of 20 May 2011 a letter sent to it by an Italian tobacco producers’ cooperative, containing a claim for damages in the amount of EUR 2.3 million for infringement of the competition rules arising from the practices punished by the contested decision. The report issued by the liquidator of the pre-bankruptcy agreement on 14 Apri1 2011 also mentions such a claim for damages.
71 Third, the applicant claims that it also has an objective and direct interest in having the fine reduced or even annulled entirely. In this respect, it observes, in the first place, that, pursuant to Article 1292 of the Italian Civil Code, it might in the future be faced with an action for recourse brought by Alliance One. Moreover, it states that, under Italian law, its administrators are required to protect the interests of its creditors from any possible contingency. In the second place, it states that the agreements relating to the sale of its shares do not contain references to the Commission procedure that led to the contested decision, and do not contain any express indemnity guarantee in its favour regarding any fines resulting from the Commission’s Decision. Accordingly, it submits that its interest in pursuing the present proceedings until the end is self-evident, as it cannot be ruled out that Alliance One will bring an action against it in the future for a contribution. In the third place, it claims that, even if a hypothetical indemnity regarding the Commission’s fine were ever included in the agreements mentioned above, if the applicant were deprived of its right to challenge the Decision before the General Court by seeking total immunity from the fine or a reduction in the amount thereof, the validity of such indemnity would be compromised.
72 The applicant also submits that Alliance One’s reply to the written questions put by the Court confirms the existence of its interest in bringing proceedings. In the first place, it is apparent from that reply that the risk of potential claims for damages brought by third parties is still current, given that such claims are not yet time-‘barred according to Italian law. In the second place, the applicant observes that Alliance One’s right to claim a contribution is not time-‘barred. In the third place, it submits that it would remain exclusively liable for payment of the sum of EUR 3.99 million in the event that Alliance One were to succeed in Case T-‘25/06 and that, accordingly, its interest in bringing proceedings is evident.
73 In its reply of 20 May 2011, the applicant states that Article 168 of the Italian Law on Bankruptcy does not limit the right of prior creditors during the period between the date of the application for the pre-‘bankruptcy agreement and the date on which the decree of validation of the pre-bankruptcy agreement becomes definitive to make a claim before the competent courts for a declaratory judgment against the debtor in the pre-bankruptcy agreement procedure and, after that period, to make a claim before the competent courts for enforcement of the claim against the debtor in a pre-bankruptcy agreement situation.
74 According to the applicant, after the court’s validation and in the course of the actual implementation of the pre-bankruptcy agreement, prior creditors who dissented or who did not vote are not limited in the enforcement of their claims vis-à-vis and through the liquidator of the company. Only, in doing so they are bound to comply with the share percentages and the time-‘limits established by the validated pre-bankruptcy agreement. Furthermore, prior creditors are not limited in the exercise of their rights even after the implementation of the pre-bankruptcy agreement has come to an end, by complying once again with the share percentages and time-‘limits established by the validated pre-bankruptcy agreement for all the creditors. Consequently, Alliance One may still make a claim before the competent court to obtain an order for payment against the applicant.
75 Moreover, the applicant states that the question whether the pre-‘bankruptcy agreement can, pursuant to Article 186 of the Italian Law on Bankruptcy, be implemented or annulled is currently the subject of discussion before the Tribunale fallimentare di Roma. In the event that the agreement is annulled, Articles 137 and 138 of that law would be applicable, which would entail the automatic reopening of the bankruptcy procedure in respect of the applicant. However, in such a situation, the applicant would not be deprived of its interest in pursuing the present proceedings. In its submission, Alliance One can still claim a contribution from the applicant, by means of a request to be admitted as a creditor to the bankruptcy procedure.
76 Lastly, in its letter of 13 July 2011, the applicant observes that Alliance One clearly stated why it had not yet exercised its right to claim a contribution from the applicant (see paragraph 47 above). It then claims, in essence, that it was not obliged under Italian law to list Alliance One in its accounting books, in the absence of an express request by Alliance One for a contribution, and consequently, in the list of creditors drawn up at the time of the application for admission to the pre-bankruptcy agreement. In its submission, the Italian Law on Bankruptcy and relevant accounting principles in no way oblige the inclusion in the accounting books of the contingency of a possible claim for contribution by Alliance One when such a claim has not yet been made and neither the amount nor the existence of the claim is definitive.
Findings of the Court
77 It should be borne in mind that, according to settled case-‘law, an action for annulment and/or alteration of a decision brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment and/or alteration of the contested measure. Such an interest presupposes that the annulment and/or alteration of that measure must of itself be capable of having legal consequences or, to apply another formulation, that the action must be liable, if successful, to procure an advantage for the party who has brought it (see, to that effect, order of 5 March 2009 in Case C-‘183/08 P Commission v Provincia di Imperia, not published in the ECR, paragraph 19; see MCI v Commission, paragraph 60 above, paragraph 44 and the case-law cited, and Case T-‘189/08 Forum 187 v Commission [2010] ECR II-‘0000, paragraph 62 and the case-law cited) and that that person has a vested and present interest in the annulment and/or alteration of that measure (see, to that effect, judgment of 19 June 2009 in Case T-‘269/03 Socratec v Commission, not published in the ECR, paragraph 36 and the case-law cited).
78 Such an interest must continue until the final judgment, failing which there will be no need to adjudicate (see, to that effect, Case C-‘362/05 P Wunenburger v Commission [2007] ECR I-‘4333, paragraph 42 and the case-law cited). That requirement ensures at a procedural level that, in the interest of the proper administration of justice, the courts are not asked to give purely hypothetical opinions and/or to deal with purely hypothetical questions (see, to that effect, order in Case T-‘28/02 First Data and Others v Commission [2005] ECR II-‘4119, paragraph 36, and Socratec v Commission, paragraph 77 above, paragraph 36).
79 Moreover, it has been held that if the interest pleaded by an applicant concerns a future legal situation, he must demonstrate that the prejudice to that situation is already certain. Therefore, an applicant cannot plead future uncertain circumstances to establish his interest in applying for annulment and/or alteration of the contested measure (Case T-‘138/89 NBV and NVB v Commission [1992] ECR II-‘2181, paragraph 33; Case T-‘141/03 Sniace v Commission [2005] ECR II-‘1197, paragraph 26, and Socratec v Commission, paragraph 77 above, paragraph 39).
80 Lastly, it should be borne in mind that, according to the case-law, it is the applicant itself which must prove that it has an interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings (see, to that effect and by analogy, order of the Court in Case 206/89 R S. v Commission [1989] ECR 2841, paragraph 8; order in Case T-‘167/01 Schmitz-Gotha Fahrzeugwerke v Commission [2003] ECR II-‘1873, paragraph 58, and Sniace v Commission, paragraph 79 above, paragraph 31).
81 In the present case, at the hearing, the Commission pointed to new events, which had occurred after the action had been brought and which were such as to suggest that the applicant’s interest in bringing proceedings had disappeared on the ground that Alliance One had paid the fine imposed on them in full, without claiming a contribution from the applicant.
82 In this respect, it should be borne in mind that it is not disputed that, in February 2006, Alliance One paid the fine imposed by the Commission on it and the applicant in full, the applicant being jointly and severally liable for only a part of that amount, namely EUR 3.99 million, and that, so far, Alliance One has not claimed a contribution from the applicant. Moreover, it must be stated that the applicant was placed in liquidation in July 2006 and that, since May 2007, it has been the subject of a pre-bankruptcy agreement procedure before the Tribunale fallimentare di Roma which is still ongoing, facts of which the applicant omitted to inform the Court of its own initiative.
83 It should also be borne in mind that, by the heads of claim of its action, the applicant seeks to obtain, on the one hand, partial annulment of the contested decision inasmuch as the Commission allegedly applied the Leniency Notice incorrectly in its regard, on the ground that it did not grant it total immunity at the time that it decided not to grant it to Deltafina, and inasmuch as it allegedly erred, by approximately one month, in fixing the duration of the applicant’s participation in the cartel, and, on the other hand, in the alternative, a reduction in the amount of the fine that it must pay jointly and severally with Alliance One.
84 However, as the Commission correctly states, the applicant’s action essentially concerns the amount of the fine. Examination of the applicant’s pleas reveals that all the arguments relating to the attribution of liability to the applicant for certain conduct and to the legal assessment of that conduct, pleas which are not put forward in support of its main plea that it ought to have been granted immunity from fines, seek only, in the event that the main plea is rejected, in the alternative, a reduction in the amount of the fine that it must pay jointly and severally with Alliance One, namely the sum of EUR 3.99 million. In this respect, the Court would point out, moreover, that neither a different legal assessment of the facts raised by the applicant nor an assessment that the infringement lasted several weeks shorter than the duration alleged against the undertaking concerned would enable it to obtain a reduction in the fine that it must pay jointly and severally with Alliance One to a level below that set in the contested decision.
85 It follows that, in the circumstances of the present case, the annulment or alteration of the contested decision on the basis sought by the applicant would not procure any advantage for it, since the fine imposed on it has already been paid in full by Alliance One, its jointly and severally liable co-‘debtor, and because Alliance One, although it has no legal connection with the applicant (see paragraph 1 above), has not claimed a contribution from it, even though more than five years have elapsed since that payment.
86 The applicant submits however that it still has an interest in bringing proceedings in the present proceedings, on the ground that Alliance One might still claim a contribution from it, notwithstanding the ongoing pre-bankruptcy agreement procedure.
87 In this respect, it should be noted that the applicant, which must prove that it has an interest in bringing proceedings (see paragraph 80 above), has failed to establish to the requisite legal standard that Alliance One held a claim over it or that, even if that claim does exist, Alliance One was still capable of or had the intention of recovering that claim and, therefore, that the applicant had a vested and present interest in the annulment and/or reduction of the fine imposed on them in the contested decision. The applicant confined itself to stating that the agreements relating to the transfer of the shares of the company to its current shareholders did not contain any express indemnity guarantee in its favour regarding any fines resulting from the contested decision and to submitting that, consequently, Alliance One could still claim a contribution in respect of the part of the fine paid for which it was held jointly and severally liable.
88 However, as the Commission states, as provided in Article 161 of the Italian Law on Bankruptcy, in his application for a pre-bankruptcy agreement, the debtor must, inter alia, submit an analysis and estimate of his assets, as well as a list of his creditors and debtors and, after the opening of the pre-‘bankruptcy agreement procedure, which is, in essence, a procedure for establishing liabilities under the supervision of the competent court, the judicial auditor must, in accordance with Article 171 of that law, verify the list of creditors on the basis of the entries in the accounts which must be submitted at the time when the application is lodged, before inviting the creditors to the meeting provided for in Article 174 of the Italian Law on Bankruptcy. In accordance with Article 175 of that law, at that meeting, which is to take place before the judge, the debtor and the creditors are to verify, inter alia, that the competing claims are certain in nature (see, to that effect, the Opinion of Advocate General Léger in Case C-‘145/01 Commission v Italy [2003] ECR I-‘5581, I-5583, point 79).
89 Moreover, it is not disputed that Alliance One did not appear in the entries in the accounts of the applicant as one of the applicant’s creditors and that it was not entered on the list of creditors drawn up by the applicant and verified by the judicial auditor, in accordance with Article 161 of the Italian Law on Bankruptcy, in the context of the pre-bankruptcy agreement procedure before the Tribunale fallimentare di Roma.
90 In addition, the applicant’s argument that it was not required to list the claim that Alliance One held over it in the entries in its accounts and to include Alliance One in the list of its creditors is not substantiated, and has no basis in the provisions of the Italian Law on Bankruptcy and the Italian Civil Code to which the applicant refers and, in any event, it is well known that the aim of any bankruptcy agreement is essentially to reach an agreement with all the creditors after providing an accurate picture of the financial situation of the company under the supervision of a judicial authority, in order to avoid that company’s going bankrupt. Moreover, contrary to the claim made by the applicant, since Alliance One has paid the fine imposed on them in the contested decision in full, it could, on the basis of that decision, have immediately claimed a contribution from the applicant, which, moreover, it confirmed in its letter of 30 March 2011. In any event, as was stated in paragraph 88 above, the Italian Law on Bankruptcy provides that the issue whether the competing claims are certain in nature is to be verified and discussed at the creditors’ meeting.
91 Furthermore, although the applicant categorised Alliance One as a ‘prior creditor’ within the meaning of Article 184 of the Italian Law on Bankruptcy, it provided no explanation in this respect or as to why Alliance One did not even attempt to submit its claim in that procedure and did not object to that procedure, despite the fact that that claim, the amount of which was significantly higher than that of all the claims actually registered, might possibly have influenced the decision of the other creditors to accede to the proposal for the pre-bankruptcy agreement set out by the applicant. Thus, if Alliance One’s claim over the applicant had been registered, it would have had a non-‘negligible impact on the bankruptcy agreement approved by the Tribunale fallimentare di Roma.
92 It should also be observed that, according to the applicant, although the negotiations relating to the purchase of the shares of the company took place after the Commission had sent out the statement of objections, the provisions of the agreements relating to the transfer of those shares to the company’s current shareholders make no express reference to the administrative procedure that led to the contested decision and contain no guarantee or indemnity in its favour regarding any fine that the Commission might impose on it. However, it is apparent from the documents before the Court that, having become aware of the amount of the fine that it was required to pay jointly and severally with Alliance One, which exceeds the value of its shares, the applicant did not seek to obtain any indemnity from Alliance One for non-disclosure. On the other hand, in its application for admission to the pre-bankruptcy agreement procedure it did complain about Alliance One’s non-‘disclosure, during the negotiations relating to that transfer of the shares, of other ‘facts and circumstances which subsequently turned out to be prejudicial’. It is also apparent from the documents before the Court that, a few months after that application for admission to the pre-‘bankruptcy agreement was lodged, the applicant brought an action in that connection against Intabex, the subsidiary of Alliance One which had transferred the shares to the applicant, before the Tribunale civile di Roma (Rome Civil District Court) seeking payment from Intabex of EUR 7.3 million, and that Alliance One has not even presented a counterclaim for a contribution in respect of the fine that it has paid.
93 In view of all the foregoing, it cannot be ruled out that Alliance One has taken it upon itself to pay the applicant’s share of the fine or that it has since waived its right to claim a contribution from the applicant.
94 Moreover, the Court would point out not only that, as was stated in paragraph 47 above, Alliance One has not claimed a contribution from the applicant but also that, in its letter of 30 March 2011, it omitted to state expressly if and when it intended to make such a claim. In this respect, it should be pointed out that, contrary to the claim made by the applicant in its letter of 6 January 2011, the type of pre-bankruptcy agreement which it chose, namely that involving assignment of the assets, is essentially aimed at liquidating the debtor’s assets with a view to satisfying collectively the creditors’ claims and leads to a cessation of activity. That assessment is not disputed by the applicant and is indeed clearly supported by its balance sheets for 2008 and 2009, which were placed on the file by the Commission.
95 It should be added, as the Commission claims, that no mention is made of the present proceedings in the detailed report, of 14 April 2011, on the state of the applicant’s financial affairs submitted by the liquidator to the creditors’ committee, although that report does refer to a number of other ongoing proceedings. That fact demonstrates that, contrary to the applicant’s claim, it considered the outcome of the present proceedings to be devoid of importance both for its financial future and for its creditors.
96 Furthermore, as regards, first, the applicant’s argument that it would remain exclusively liable for payment of the sum of EUR 3.99 million in the event that Alliance One were to succeed in Case T-‘25/06, it should be pointed out that, by judgment of 9 September 2011 delivered in that case, the Court dismissed Alliance One’s action for annulment and that the latter therefore remains jointly and severally liable for payment of that amount, payment which it already effected in February 2006.
97 As regards, second, the applicant’s argument that its interest in bringing proceedings results from its fundamental right of access to a court, which it derives from Article 6 of the ECHR, affirmed by Article 47 of the Charter of Fundamental Rights, it should be borne in mind, first of all, that the interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings (see paragraph 80 above). Moreover, it should be noted that the ‘right to a court’, of which the right of access to a court is one aspect, is not absolute and is subject to implicit limitations, in particular as regards the conditions of admissibility of an action. Those limitations must not however restrict a litigant’s access in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, to that effect and by analogy, order in Case C-‘73/10 P Internationale Fruchtimport Gesellschaft Weichert v Commission [2010] ECR I-‘0000, paragraph 53).
98 However, it cannot be maintained that an essential and fundamental prerequisite for any legal proceedings, such as the interest in bringing proceedings – designed inter alia to ensure the proper administration of justice – and its application in this case, prevented the applicant from making use of the remedy available against the contested decision (see, to that effect and by analogy, Internationale Fruchtimport Gesellschaft Weichert v Commission, paragraph 97 above, paragraph 55).
99 While the requirement of an interest in bringing proceedings may appear to be a limitation on the right to a court, that condition clearly does not constitute an impairment to the very essence of that right, since the requirement that the applicant has, at the time the action is brought and until the final judgment, an interest in bringing proceedings against a measure allegedly adversely affecting him pursues a legitimate aim which is ultimately to prevent, in the interest of the proper administration of justice, the Courts of the European Union from having to deal with purely hypothetical questions, the answer to which is not capable of giving rise to legal consequences or, as in the present case, of procuring an advantage for the applicant.
100 As regards, third, the risk that third parties will bring claims for damages against the applicant before the national court, the Court observes, first of all, that it has not been demonstrated that the prejudice to the legal situation of the applicant is already certain within the meaning of the case-‘law (see paragraph 79 above). Even on the assumption that the misconduct of the undertaking responsible for the infringement, misconduct attributed in particular to the applicant, may be the cause of acts capable of giving rise to the applicant’s liability under applicable national law, it must be stated that any claim for damages before the national courts is independent of any annulment of the contested decision. In any event, the applicant has not adduced evidence capable of establishing how, in the present case, any annulment of the contested decision would enable it to prevent any risk that an action for damages against it would be brought before a national court by third parties who were allegedly harmed. In this respect, the Court observes, moreover, that the applicant merely placed in the file, as annexes to its correspondence of 20 May and 13 July 2011, that is to say in tempore suspecto, letters, addressed to it and the three other processors concerned by the contested decision, containing a claim for damages from a tobacco producers’ cooperative now in liquidation, established in the province of Lecce (Italy). However, such letters – one of which does not even bear the date on which it was sent and was received by the applicant only after its interest in bringing proceedings in the present proceedings was called into question – do not in themselves demonstrate the existence of a claim for damages brought by third parties harmed by the unlawful conduct described in the contested decision. Furthermore, given that the applicant did not contest the Commission’s finding in the contested decision regarding the infringement by the undertaking whose conduct was attributed to Alliance One and the applicant, the present proceedings have no bearing on any claim for damages brought by third parties on the basis of evidence and findings contained in that decision. Lastly, the Court would point out that, on the assumption that such future and uncertain claims might be brought against the applicant, they could not have any material impact on it, since it is already no longer capable of paying its current creditors.
101 Fourth, although the applicant relies on the obligation of its administrators, and henceforth its liquidator, to protect, pursuant to Italian law, the creditors’ interests from any possible contingency, it does not demonstrate to what extent such an obligation – even on the assumption that it is established – would confer on it an interest in pursuing the present proceedings. Moreover, that argument is at odds with the liquidator’s approach during the pre-‘bankruptcy agreement procedure, since, as is apparent from the documents before the Court, the liquidator has not even informed the creditors, the judicial auditor and the Tribunale fallimentare di Roma of the existence of the present proceedings (see paragraph 95 above).
102 It follows from all the above considerations that the applicant has not demonstrated its vested and present interest in pursuing the present proceedings. There is therefore no need to adjudicate on the action.
Costs
103 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment the costs are in the discretion of the Court.
104 In the present case, the applicant displayed a lack of cooperation in its dealings with the Court by omitting, first of all, to inform the Court that it had been placed in liquidation before the oral procedure and, next, notwithstanding measures of organisation of procedure adopted after the hearing, that a pre-bankruptcy agreement procedure concerning it had been initiated in 2007 and was still ongoing before the Tribunale fallimentare di Roma. It was only following examination of the documents lodged by the Commission, in annex to its observations of 21 February 2011 (see paragraph 44 above), that the Court was able to learn that the applicant was the subject of that procedure.
105 Moreover, the lack of precision in some of the applicant’s replies obliged the Court to order several measures of organisation of procedure, relating inter alia to matters that occurred well before the hearing, which had the effect of making the oral procedure more cumbersome and delaying its closure.
106 In view of the foregoing considerations, the applicant must be ordered to bear its own costs and to pay those incurred by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Declares that there is no need to adjudicate on the action;
2. Orders Mindo Srl to pay the costs.
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Azizi |
Cremona |
Frimodt Nielsen |
Delivered in open court in Luxembourg on 5 October 2011.
[Signatures]
* Language of the case: English.