Action brought on 19 January 2011 - Universal v Commission

(Case T-42/11)

Language of the case: English

Parties

Applicant: Universal Corp. (Richmond, United States) (represented by: C.R.A. Swaak, lawyer)

Defendant: European Commission

Form of order sought

Annul the contested decision set out in the letters of 12 and 30 November 2010; and/or

Declare that the applicant cannot be held liable to pay for any part or all of the fine imposed in this case until a definitive judgment in case T-12/06 Deltafina v Commission or any follow-on proceedings is issued; and

Condemn the Commission to the costs of the proceedings.

Pleas in law and main arguments

By means of its application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of the Commission Decision contained in the letter from the Commission to Universal Corporation, dated 12 November 2010, and confirmed by the letter dated 30 November 2010, requiring the latter to pay the joint and several fine imposed on Universal Corporation and Deltafina SpA in case COMP/C.38.281.B2 - Raw Tobacco Italy of 20 October 2005 following the withdrawal of case T-34/06 Universal Corp. v Commission but prior to the resolution of case T-12/06 Deltafina SpA v Commission and any follow-on proceedings.

In support of the action, the applicant relies on three pleas in law.

First plea in law, alleging that the contested decision is vitiated;

The contested decision is vitiated insofar as the fine is fully covered by the guarantee provided by its subsidiary Deltafina. The applicant is only jointly and severally liable as the 100% parent company for the payment of the fine imposed by the Commission on Deltafina for its direct participation in the infringement. The withdrawal of the application for annulment lodged by the applicant is therefore irrelevant to the question of when the fine must be paid.

Second plea in law, alleging a breach of the principle of protection of legitimate expectations;

The contested decision violates the principle of protection of legitimate expectations in relation to the validity of the bank guarantee until the conclusion of the Deltafina proceedings. On the basis of the Commission's acceptance of a bank guarantee relating to the application for annulment by Deltafina, the Commission created the legitimate expectation that it would refrain from seeking payment of the fine prior to a definitive judgment in case T-12/06. The Commission further violated the applicant's legitimate expectation of consistent treatment by the Commission of the applicant and Deltafina as a single undertaking for the purposes of liability and enforcement.

Third plea in law, alleging breach of the obligation of good administration flowing from Article 266 TFEU;

The contested decision violates the obligation of good administration flowing from Article 266 TFEU by requiring premature payment of the joint fine pending the outcome of the Deltafina proceedings, with which the Commission must comply. In the event that Deltafina is wholly or partly successful the Commission will be obliged to reduce or eliminate the amount for which Universal is held jointly and severally liable.

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