Final Report of the Hearing Officer in Case COMP/C.38.238/B.2 — Raw Tobacco, Spain

(pursuant to Article 15 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2007/C 85/09)

The draft decision calls for the following observations.

The statement of objections identified two infringements of Article 81(1) of the EC Treaty. For several years the sale of raw tobacco on the Spanish market was the subject of a cartel between producers, and the purchase of raw tobacco was the subject of a cartel between processors. The object of both cartels was to fix price components in advance so as to control as far as possible the final selling price of bales of raw tobacco.

On 16, 17 and 19 December 2003 a statement of objections was sent to the producers associations ASAJA, UPA, COAG, CCAE, FNCT, ACOTAB and TABARES, and to the processors Cetarsa, Agroexpansión, WWTE, Taes, Deltafina and Anetab, as well as to the parent companies of the Spanish processors, Dimon Inc., Intabex Netherlands BV, Standard Commercial Corp., Standard Commercial Tobacco Co. Inc., Transcontinental Leaf Tobacco Corp. Ltd, Universal Corp. and Universal Leaf Tobacco Co. Inc.

Access to the file was provided by means of an individualised CD-ROM for each addressee, which was sent with the statement of objections.

The statement of objections set a time-limit of two and a half months for replies; at the request of the producers, I extended this by two weeks.

The addressees of the statement of objections all replied within the time allowed.

In accordance with Article 5 of Commission Regulation (EC) No 2842/98, several of the parties — Cetarsa, Agroexpansión, WWTE, Taes, Deltafina, ASAJA, UPA, COAG, CCAE, TABARES, ACOTAB, FNCT, Universal Corporation and Universal Leaf Tobacco Company Inc — asked for a formal hearing, which was held on 29 March 2004.

Following the written comments on the statement of objections and the formal hearing, the Commission clarified the thrust of the draft decision on two points.

In the statement of objections the Commission claimed that the processors had concluded a price agreement fixing the average price for each variety. At the hearing, and in their written comments, the processors said that by consulting together on the average price they managed to align the final prices they would pay to the producers as closely as possible. The Commission accepted this, and the draft decision takes account of the clarification: it now speaks of agreements between processors regarding the maximum average price for each variety of raw tobacco.

Lastly, unlike what was set out in the statement of objections, the Commission has decided not to attribute responsibility for the infringement to the processing firms' parent companies Universal Corp, Universal Leaf and Intabex, or to the association of Spanish processors (Anetab) since its conduct cannot be distinguished from that of its members. In the same way, the Commission has dropped the allegations against TABARES, ACOTAB and FNCT since they acted as sectoral branches of the agricultural trade unions, which are already recipients of the draft decision.

Furthermore, the statement of objections included references to negotiations on price bands that took place as from 1999 between the producers' representatives and the processors. As a result the text was slightly ambiguous with regard to the definition of the infringements referred to in this case. The draft decision removes this ambiguity.

I accordingly consider that the right to be heard has been respected in this case. In my opinion the draft decision relates only to objections in respect of which the parties have been afforded the opportunity of making known their views.

Brussels, 11 October 2004

Serge Durande

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