CELEX: 62001TJ0314
Competition
Agreements, decisions and concerted practices
Sodium gluconate
Article 81 EC
Fine
Liability of the parent company for the unlawful conduct of an association without its own legal personality
Article 15(2) of Regulation No 17
Rights of the defence
Exculpatory documents
Principle of proportionality
Obligation to state reasons

Facts
1       The Coöperatieve Verkoop- en Productievereniging van Aardappelmeel en Derivaten Avebe BA (‘Avebe’) is the parent company of
a group of companies specialising in starch processing. At the material time and until December 1995, Avebe was active in
the sodium gluconate market through its share in Glucona vof, a company it controlled jointly with Akzo Nobel Chemicals BV
(‘ANC’), a company controlled by Akzo Nobel NV (‘Akzo’). In December 1995, Avebe acquired ANC’s share in Glucona vof, which
became a limited liability company and took the name Glucona BV (hereinafter both Glucona vof and Glucona BV will be referred
to without distinction as ‘Glucona’).
2       Sodium gluconate is a chelating agent, which are products which inactivate metal ions in industrial processes. Those processes
are used, inter alia, in industrial cleaning (bottle washing, utensil cleaning), surface treatment (de-rusting, degreasing,
aluminium etching) and water treatment. Chelating agents are thus used in the food industry, the cosmetics industry, the pharmaceutical
industry, the paper industry, the concrete industry and in various other industries. Sodium gluconate is sold worldwide and
competing undertakings have a worldwide presence.
3       In 1995, total sales of sodium gluconate on a worldwide level were around EUR 58.7 million and sales in the European Economic
Area (EEA) around EUR 19.6 million. At the material time, almost all of the sodium gluconate produced worldwide was in the
hands of five undertakings namely (i) Fujisawa Pharmaceutical Co. Ltd (‘Fujisawa’), (ii) Jungbunzlauer AG, (iii) Roquette
Frères SA (‘Roquette’), (iv) Glucona and (v) Archer Daniels Midland Co. (‘ADM’).
4       In March 1997, the United States Department of Justice informed the Commission that following an investigation into the lysine
and citric acid markets, an investigation had also been opened into the sodium gluconate market. In October and December 1997
and February 1998, the Commission was informed that Akzo, Avebe, Glucona, Roquette and Fujisawa acknowledged that they had
participated in a cartel to fix the price of sodium gluconate and to allocate sales volumes of the product in the United States
and elsewhere. Pursuant to agreements entered into with the United States Department of Justice, those undertakings were fined
by the United States authorities.
5       On 18 February 1998, the Commission sent requests for information under Article 11 of Council Regulation No 17 of 6 February
1962 – First Regulation implementing Articles [81] and [82] of the Treaty (OJ English Special Edition 1959‑1962, p. 87) to
the main producers, traders and customers of sodium gluconate in Europe.
6       Following receipt of the request for information, Fujisawa approached the Commission and announced that it had cooperated
with the United States authorities in the course of the investigation described above and that it wished to cooperate with
the Commission under the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p.
4; ‘the Leniency Notice’). On 12 May 1998, following a meeting with the Commission on 1 April 1998, Fujisawa supplied a written
statement and a file of documents providing a summary of the cartel’s history and a number of documents.
7       On 16 and 17 September 1998, the Commission carried out inspections pursuant to Article 14(3) of Regulation No 17 at the premises
of Avebe, Glucona, Jungbunzlauer and Roquette.
8       On 2 March 1999, the Commission sent detailed requests for information to Glucona, Roquette and Jungbunzlauer. By letters
of 14, 19 and 20 April 1999, those undertakings made it known that they wished to cooperate with the Commission and provided
it with certain information about the cartel. On 25 October 1999, the Commission sent additional requests for information
to ADM, Fujisawa, Glucona, Roquette and Jungbunzlauer.
9       On 17 May 2000, the Commission, on the basis of the information supplied to it, sent a statement of objections to Avebe and
the other undertakings concerned for infringement of Article 81(1) EC and Article 53(1) of the Agreement on the EEA (‘the
EEA Agreement’). Avebe and all the other undertakings concerned submitted written observations in response to the Commission’s
objections. None of the parties requested an oral hearing, nor did they substantially contest the facts as set out in the
statement of objections.
10     On 11 May 2001, the Commission sent additional requests for information to Avebe and the other undertakings concerned.
11     On 2 October 2001, the Commission adopted Decision C(2001) 2931 final relating to a proceeding under Article 81 EC and Article
53 of the EEA Agreement (COMP/E-1/36.756 – Sodium Gluconate; ‘the Decision’). The Decision was notified to Avebe by letter
of 10 October 2001.
12     The Decision includes the following provisions:
‘Article 1
[Akzo], [ADM], [Avebe], [Fujisawa], [Jungbunzlauer] and [Roquette] have infringed Article 81(1) EC and – from 1 January 1994
onwards – Article 53(1) of the EEA Agreement by participating in a continuing agreement and/or concerted practice in the sodium
gluconate sector.
The duration of the infringement was as follows:
–       in the case of [Akzo], [Avebe], [Fujisawa] and [Roquette], from February 1987 to June 1995,
–       in the case of [Jungbunzlauer], from May 1988 to June 1995,
–       in the case of [ADM], from June 1991 to June 1995.
…
Article 3
For the infringement referred to in Article 1, the following fines are imposed:
a)      [Akzo]                    EUR 9 million
b)      [ADM]                    EUR 10.13 million
c)      [Avebe]           EUR 3.6 million
d)      [Fujisawa]           EUR 3.6 million
e)      [Jungbunzlauer]  EUR 20.4 million
f)      [Roquette]           EUR 10.8 million.’
13     In recitals 296 to 309 of the Decision, the Commission analysed the links existing between Glucona and its parent companies,
Avebe and Akzo, during the period concerned by the cartel. It noted in particular that, until 15 August 1993, Glucona had
been managed jointly by representatives of Avebe and Akzo, but that, as from that date, due to a restructuring of Glucona,
it had been managed solely by a representative of Avebe. The Commission nevertheless found that it was appropriate to hold
Avebe and Akzo liable for the anti-competitive conduct of their subsidiary for the entire relevant period and therefore to
address the Decision to them.
14     In calculating the amount of the fines, the Commission applied in the Decision the methods set out in the Guidelines on the
method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998
C 9, p. 3; ‘the Guidelines’) and the Leniency Notice.
15     First, the Commission determined the basic amount of the fine by reference to the gravity and duration of the infringement.
16     In that context, as regards the gravity of the infringement, the Commission found, first, that, taking into account the nature
of the infringement, its actual impact on the EEA sodium gluconate market and the scope of the relevant geographic market,
the undertakings concerned had committed a very serious infringement (recital 371 of the Decision).
17     Next, the Commission considered that it was necessary to take account of the actual economic capacity of the offenders to
cause significant damage to competition, and to set the fine at a level which ensured that it had sufficient deterrent effect.
Consequently, taking as its basis the relevant undertakings’ worldwide turnover from the sale of sodium gluconate in 1995,
the last year of the infringement, figures which were communicated by the parties to the Commission during the administrative
procedure, the Commission divided the undertakings into two categories. In the first category, it placed the undertakings
which, according to the data in its possession, held worldwide shares in the sodium gluconate market above 20%, namely Fujisawa
(35.54%), Jungbunzlauer (24.75%) and Roquette (20.96%). The Commission set a starting amount of EUR 10 million for those undertakings.
In the second category, it placed the undertakings which, according the data in its possession, held worldwide shares in that
market of below 10%, namely Glucona (approximately 9.5%) and ADM (9.35%). The Commission set the starting amount of the fine
at EUR 5 million for those undertakings, that is to say, for Akzo and Avebe, which jointly owned Glucona, at EUR 2.5 million
each (recital 385 of the Decision).
18     In order to ensure that the fine had a sufficient deterrent effect and to take account of the fact that large undertakings
have legal and economic knowledge and infrastructures which enable them more easily to recognise that their conduct constitutes
an infringement and be aware of the consequences stemming from it under competition law, the Commission also adjusted the
starting amount. Consequently, taking account of the size and the worldwide resources of the undertakings concerned, the Commission
applied a multiplier of 2.5 to the starting amount for ADM and Akzo and therefore increased that amount, so that it was set
at EUR 12.5 million as regards ADM and EUR 6.25 million as regards Akzo (recital 388 of the Decision).
19     As regards the duration of the infringement committed by each undertaking, the starting amount was moreover increased by 10%
per year, i.e. an increase of 80% for Fujisawa, Akzo, Avebe and Roquette, of 70% for Jungbunzlauer and of 35% for ADM (recitals
389 to 392 of the Decision).
20     Accordingly, the Commission set the basic amount of the fines at EUR 4.5 million as regards Avebe. As regards ADM, Akzo, Fujisawa,
Jungbunzlauer and Roquette, the basic amount was set at EUR 16.88 million, EUR 11.25 million, EUR 18 million, EUR 17 million
and EUR 18 million respectively (recital 396 of the Decision).
21     Second, on account of aggravating circumstances, the basic amount of the fine imposed on Jungbunzlauer was increased by 50%
on the ground that the undertaking had acted as ringleader of the cartel (recital 403 of the Decision).
22     Third, the Commission examined and rejected the arguments of certain undertakings, including Avebe, that there were attenuating
circumstances which should have applied in their case (recitals 404 to 410 of the Decision).
23     Fourth, under Section B of the Leniency Notice, the Commission allowed Fujisawa a ‘very substantial reduction’ (namely 80%)
of the fine which would have been imposed if it had not cooperated. Finally, under Section D of that notice, the Commission
allowed ADM and Roquette a ‘significant reduction’ (namely 40%) of the fine, and allowed Akzo, Avebe and Jungbunzlauer a 20%
reduction (recitals 418, 423, 426 and 427 of the Decision).

Procedure and forms of order sought
24     Avebe brought the present action by application lodged at the Registry of the Court of First Instance on 17 December 2001.
25     Upon hearing the Report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) decided to open the oral procedure
and, in the context of measures of organisation of procedure under Article 64 of the Rules of Procedure of the Court of First
Instance, put written questions to the parties to which they replied within the prescribed period.
26     The parties presented oral argument at the hearing on 17 February 2004.
27     Avebe claims that the Court should:
–       annul Article 1 of the Decision in that it finds that it committed an infringement in the period between February 1987 and
15 August 1993;
–       in the alternative, annul Article 1 of the Decision in that it finds that it committed an infringement in the period prior
to 30 April 1990;
–       in the alternative, annul Article 3 of the Decision in so far as it pertains to it;
–       order the Commission to pay the costs.
28     The Commission contends that the Court should:
–       dismiss the application;
–       order Avebe to pay the costs.

Law
A –
Introduction
29     Avebe does not deny that the cartel infringed Article 81 EC. Nor does it deny that it must be held liable for the infringement
for the period between 15 August 1993, the date from which it alone managed Glucona (see paragraph 13 above) and the end of
the cartel. However, Avebe takes the view that the Commission could not validly make it liable for Glucona’s infringement
for the period prior to 15 August 1993.
30     In those circumstances, Avebe puts forward four pleas in law, alleging infringement, first, of the obligation to state reasons,
second, of the rights of the defence, third, of Article 81(1) EC and Article 15(2) of Regulation No 17 and, fourth, of the
principle of proportionality.
31     Before ruling on the merits of the various pleas put forward in this regard, the Court finds it appropriate to recall some
of the points in the Commission’s assessment, as is apparent from recitals 296 to 309 of the Decision.
32     In recital 296 of the Decision, the Commission began its analysis by stating that it ‘[was] obvious from the facts that Glucona
did not decide independently upon its own conduct, but carried out the instruction given by its parent companies [ANC and
Avebe]: all the executives of Glucona simultaneously held professional responsibilities in the parent companies ’.
33     Then, in recitals 297 to 299 of the Decision, the Commission described Glucona’s internal organisation as follows:
‘(297) From 1 April 1972 until 15 August 1993, two Directors, respectively appointed by the parent companies, formed the Management
Board of the partnership and were jointly responsible for Glucona’s policy decisions and management. The representative of
Akzo was responsible for sales and marketing, whereas the Avebe representative was in charge of production and R&D activities.
Glucona also had a Supervisory Board made up of two representatives of each parent company. The position of Chairman of the
Supervisory Board alternated between representatives of Akzo and Avebe.
(298)          On 15 August 1993, a change occurred in the Glucona management structure, with the appointment of a single Managing Director.
An executive from Avebe was appointed to this function.
(299)          The documentary evidence shows that the Director appointed by Akzo played a prominent role in the management of Glucona until
August 1993. During the relevant period, Glucona was located at Akzo’s premises in Amersfoort (Netherlands). In all the contemporaneous
documents in the possession of the Commission, the cartel participants refer to Glucona by the name “Akzo”. Indeed, owing
to their specific area of responsibility (marketing and sales), Akzo representatives were more directly involved in the cartel
activities, at least until August 1993. From this date onwards, an Avebe executive was appointed Managing Director of Glucona,
and there is evidence that he actively took part [in] the cartel after that date. To this end, he was briefed by his predecessor
in the course of the summer 1993.’
34     In recital 300 of the Decision, the Commission summarised as follows its assessment in the statement of objections regarding
the question of holding the undertakings in question liable for the infringement:
‘In the statement of objections, the Commission announced its intention to hold Akzo and Avebe jointly responsible for the
whole duration of the infringement. Given the dual management structure set up by the parent companies, with respect to their
equal stake in the joint venture and to the joint liability of the two co-directors, the Commission held that it can be assumed
that they had similar influence over the conduct of the joint venture and equal information about Glucona’s involvement in
the cartel.’
35     In recitals 301 to 305 of the Decision, the Commission summarised the comments submitted on this point by Akzo and Avebe in
their reply to the statement of objections. In particular, in recital 301 of the Decision, the Commission noted the following:
‘In its reply to the statement of objections, Akzo agreed with the Commission’s approach and confirmed that Avebe was always
kept informed of the involvement of Glucona in the sodium gluconate cartel: “while it is true that the Akzo representative
on the Management Board was responsible [for] marketing and sales and the Avebe representative for production and research
and development, Avebe was nevertheless kept constantly informed about the anti-competitive agreements entered into by Glucona
and bore just as much responsibility for them”. Akzo adds that “Avebe was fully aware of the anti-competitive agreements entered
into by Glucona, even though it was not itself party to the cartel agreement before 1993”.’
36     In recital 306 of the Decision, the Commission acknowledged ‘that, to its knowledge, Avebe [had] itself never [taken] part
in multilateral cartel meetings prior to October 1993’ and that ‘this [was] even conceded by Akzo, which acknowledge[d] that
“[Avebe] was not itself party to the cartel agreement before 1993”’. The Commission added, however, ‘that it [was] beyond
reasonable doubt that the Avebe board members of Glucona were informed of the fact that Glucona was engaged in anti-competitive
practices’.
37     In recitals 307 and 308 of the Decision, the Commission referred to the following matters in support of this finding:
–       first, the Commission noted that, until August 1993, the two directors of Glucona, who had been appointed by Akzo and Avebe
respectively, were jointly responsible for the management of Glucona and that, through those two directors, Akzo and Avebe
participated on an equal footing in Glucona’s Management and Supervisory Boards;
–       second, the Commission relied on a note of 1 May 1990 from a Board Member of Avebe concerning a meeting held on 30 April 1990
with representatives of ANC and ADM (‘the note of 1 May 1990’). That note bore the heading ‘Discussion with ADM concerning
sodium gluconate’ and was addressed to a number of Avebe Board Members, including the one who, at the time, was the Glucona
director appointed by Avebe. The Commission inferred from the content of that note ‘that Avebe could not have been ignorant
that Glucona was involved in attempts to curb competition on the market’;
–       third, the Commission noted that, when, on 15 August 1993, Avebe had taken over sole management of Glucona, ‘Avebe’s representative
did not take any initiative to put an end or at least to object to the anti-competitive practices of which they had by then
been made fully aware’, but that, on the contrary, ‘Avebe ensured continuity and methodically took the lead from Akzo, asking
for a thorough briefing on the state of art of the cartel’.
38     Lastly, recital 309 of the Decision reads as follows:
‘On the basis of the above the Commission considers that for the entire relevant period the two parent companies must be held
responsible for the anti-competitive conduct of their subsidiary, and  therefore addresses the present Decision to both Avebe
and Akzo.’
B –
Infringement of the obligation to state reasons
39     Avebe claims first, that, in recital 306 of the Decision, the Commission stated that ‘there [was] no doubt that the Avebe
board members of Glucona were informed of the fact that Glucona was engaged in anti-competitive practices’. Second, it states
that, in recital 308 of the Decision, the Commission noted that, when, on 15 August 1993, it appointed one of its staff as
a the director taking on full responsibility for the management of Glucona, he had been informed of the existence of the cartel
by the Akzo member who had hitherto been responsible for the management of Glucona. It follows, according to Avebe, that the
statement of reasons in the Decision on the issue of whether it was informed of the cartel before 15 August 1993 is contradictory
or, at the very least, incomplete.
40     The Commission denies that the statement of reasons in the Decision is contradictory or insufficient with respect to the issue
of whether Avebe had been informed of the cartel before 15 August 1993.
41     The Court notes that it is settled case-law that the statement of reasons required by Article 253 EC must disclose in a clear
and unequivocal fashion the reasoning followed by the institution which adopted the measure challenged, so as to enable the
persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review
(Case C-367/95 P
Commission
v
Sytraval and Brink’s France
[1998] ECR I-1719, paragraph 63; Case C‑301/96
Germany
v
Commission
[2003] ECR I-9919, paragraph 87; and Case T‑251/00
Lagardère and Canal+
v
Commission
[2002] ECR II-4825, paragraph 155).
42     The Court notes, first, that Avebe’s complaint that there is a contradiction between recitals 306 and 308 of the Decision
(see, on that point, paragraphs 36 and 37 above) is based on an incomplete reading of the Decision. In recital 308 of the
Decision, the Commission did not state, despite what Avebe appears to suggest, that, on 15 August 1993, the new director of
Glucona had been informed for the first time of the existence of the cartel, which would indeed have been in contradiction
with recital 306 of the Decision, where the Commission stated that the Avebe board members of Glucona were informed of the
fact that Glucona was engaged in anti-competitive practices. On the contrary, recital 308 of the Decision indicates that,
on that date, Avebe’s representative, as new director of Glucona, asked to be given ‘a thorough briefing on the state of art
of the cartel’.
43     Next, regarding Avebe’s criticism that the Commission gave insufficient reasons in its decision regarding whether Avebe was
informed of the cartel prior to 15 August 1993, recital 296 et seq. of the Decision (see also paragraphs 32 to 38 above) indicate
that the Commission took the view that Avebe ought to have been aware of the anti-competitive conduct of its subsidiary, since,
until August 1993, the two Glucona codirectors were jointly responsible for its management and that Akzo and Avebe participated
strictly equally in Glucona’s Management and Supervisory Boards (recital 307 of the Decision). The Commission further stated
that it considered that its position was supported by the content of the note of 1 May 1990 and the fact that, after having
reassumed full responsibility for the management of Glucona on 15 August 1993, Avebe’s representative had not taken any initiative
to put an end or at least to object to the anti-competitive practices of which it had by then been made fully aware but, on
the contrary, Avebe ensured continuity and methodically took the lead from Akzo, asking for a thorough briefing on the state
of art of the cartel (recitals 307 et 308 of the Decision).
44     It follows that it is apparent to the requisite legal standard from the recitals of the Decision that, in order to find that
Avebe was liable for the infringement, the Commission relied, first, on Glucona’s legal structure and, second, on various
facts concerning the relations between the parent companies, Akzo and Avebe, and their joint venture, Glucona.
45     Consequently, the plea alleging infringement of the obligation to state reasons must be rejected.
C –
Infringement of the rights of the defence
1.
Preliminary remarks
46     This plea comprises two parts. First, Avebe criticises the Commission for having taken into account a statement made by Akzo
in its reply to the statement of objections (‘Akzo’s statement’), without allowing Avebe to state its position on that statement,
thereby violating its rights of defence. Second, Avebe criticises the Commission for having failed to take the measures necessary
to obtain a copy of a statement allegedly made by a representative of Akzo to the United States Department of Justice (‘Akzo’s
alleged statement to the United States authorities’).
2.
Akzo’s statement
47     Avebe observes that recitals 301 and 309 of the Decision (see paragraphs 35 and 38 above) indicate that the Commission relied
on Akzo’s statement in order to find that Avebe had been aware of the cartel before 1993. Avebe claims that the Commission
did not afford it the opportunity to submit its comments on Akzo’s statement during the administrative procedure. Accordingly,
in Avebe’s view, the Commission could not rely on that statement to establish that Avebe had been made aware of the cartel
before 1993, without violating the rights of the defence.
48     The Commission contends that it never used Akzo’s statement, reproduced in recital 301 of the Decision, as evidence against
Avebe, but that it reproduced it merely as part of its summary of the parties’ arguments.
49     The Court notes that the observance of the rights of the defence constitutes a fundamental principle of Community law which
must be respected in all circumstances, in particular in any procedure which may give rise to penalties, even if it is an
administrative procedure. It requires that the undertakings and associations of undertakings concerned be afforded the opportunity,
from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts, objections
and circumstances put forward by the Commission (Case 85/76
Hoffman-La Roche
v
Commission
[1979] ECR 461, paragraph 11, and Case T-11/89
Shell
v
Commission
[1992] ECR II-757, paragraph 39, upheld on appeal in Case C-234/92 P
Shell
v
Commission
[1999] ECR I-4501).
50     Next, it should be borne in mind that, if the Commission wishes to rely on a passage in a reply to a statement of objections
or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article
81(1) EC, the other parties involved in that proceeding must be placed in a position in which they can express their views
on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document
annexed thereto constitutes incriminating evidence against the various parties alleged to have participated in the infringement
(Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95
to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95
Cimenteries CBR and Others
v
Commission
[2000] ECR II-491, paragraph 386, and case-law cited).
51     Those principles also apply when the Commission relies on a passage from a reply to a statement of objections to hold an undertaking
liable for an infringement.
52     It is for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been
different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding
of infringement against it had to be disallowed as evidence (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P,
C‑217/00 P and C‑219/00 P
Aalborg Portland and Others
v
Commission
[2004] ECR I-123, paragraphs 71 to 73).
53     In the present case, it is apparent from recitals 296 to 309 of the Decision that the Commission structured its analysis as
follows: in recitals 297 to 299, it described Glucona’s organisation; in recital 300, it reiterated its preliminary findings,
referred to in the statement of objections, regarding the question of holding the undertakings concerned liable for the infringement;
in recitals 301 to 305, it summarised the observations submitted on that point by the undertakings concerned; lastly, in recitals
306 to 309, it conducted its own legal assessment (see, by way of summary, paragraphs 32 to 38 above).
54     The Commission noted Akzo’s statement, relied on by Avebe, in recital 301 of the Decision, that is, in the part of the Decision
summarising the observations of those undertakings on its preliminary finding in the statement of objections relating to the
question of holding the undertakings concerned liable for the infringement.
55     Avebe does not even allege that the Commission referred to Akzo’s statement in the part of its analysis concerning the legal
assessment of the links between Glucona and its parent companies, Avebe and Akzo.
56     It follows that, contrary to Avebe’s assertions, the Commission did not rely on Akzo’s statement. In recitals 307 and 308
of the Decision (see paragraphs 36 and 37 above), the Commission referred to Glucona’s legal structure and also to various
factual aspects concerning the relationship between the parent companies, Akzo and Avebe, and their joint venture, Glucona.
Avebe does not deny that it had access to the documents relied on by the Commission on that point. In formulating, in recital
309 of the Decision, the conclusion of its legal assessment using the words ‘on the basis of the above’, the Commission thus
referred only to recitals 307 and 308 of the Decision and not to recital 301 thereof, in so far as Avebe’s participation is
concerned.
57     For the sake of completeness, the Court finds that, even if the Commission did rely on Akzo’s statement, quod non, Avebe has
not demonstrated, in accordance with the case-law cited in paragraph 52 above, that the result at which the Commission arrived
in the Decision would have been different if that statement by Akzo were to be disallowed as evidence against Avebe.
58     Accordingly, the first part of the plea relating to Akzo’s statement is based on an incorrect premise and therefore cannot
be accepted.
3.
Akzo’s alleged statement to the United States authorities
a)     Arguments of the parties
59     In its reply, Avebe claims that, when Akzo was questioned by the United States Department of Justice as part of the proceedings
brought in the United States undertaken in relation to the cartel, a representative of Akzo stated that Avebe had not been
informed of the cartel prior to 15 August 1993. Avebe states that it informed the Commission of that alleged statement during
the administrative procedure. According to Avebe, given that it could not itself obtain a copy of that statement in order
to be able to submit it to the Commission, and since that statement could have been exculpatory evidence for Avebe, the Commission
should have obtained a copy of it from the United States authorities. Following written questions from the Court, Avebe explained
that it had not expressly asked the Commission to obtain that document because it did not yet know at that time that the Commission
would rely on Akzo’s statement, considered in paragraphs 49 to 58 above. It was only in the Decision that it was confronted
with Akzo’s statement, which contradicted the statement allegedly made by Akzo to the United States authorities.
60     According to the Commission, this part of the plea was not raised in the application and must therefore be dismissed as inadmissible.
The Commission contends that this part of the plea is, in any event, unfounded.
b)     Findings of the Court
Admissibility
61     Under Article 48(2) of the Rules of Procedure, the introduction of a new plea in law in the course of proceedings is not allowed
unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea which
constitutes an amplification of a submission previously made, either expressly or by implication, in the original application
and is closely linked to it must be declared admissible. The same applies to a submission made in support of a plea in law
(Case T‑231/99
Joynson
v
Commission
[2002] ECR II-2085, paragraph 156).
62     In the present case, Avebe raised the issue of an alleged statement by Akzo to the United States authorities, by way of plea
alleging infringement of the rights of the defence, only at the stage of the reply.
63     Avebe had, however, already raised essentially the same complaint as part of another plea in its application (see paragraph
59 above). In its application, it had put forward that line of argument, even though, formally speaking, it did so only in
the part of its observations relating to the plea alleging infringement of Article 81 EC and of Article 15(2) of Regulation
No 17.
64     Accordingly, and contrary to the Commission’s assertions, it did not raise a new plea at the reply stage, but rather relied
on the same plea, this time formally presented in the part of the observations concerning infringement of the rights of the
defence.
65     Accordingly, the merits of this part of the plea must be examined.
Substance
66     It must be borne in mind that, regarding exculpatory documents, the case-law states that, in adversarial proceedings established
by the regulations for the application of Articles 81 EC and 82 EC, it cannot be for the Commission alone to decide which
documents are of use for the defence of undertakings in proceedings involving infringement of the competition rules (Case
T‑30/91
Solvay
v
Commission
[1995] ECR II-1775, paragraph 81). In particular, having regard to the general principle of equality of arms, it is not acceptable
for the Commission to be able to decide on its own whether or not to use them against the applicant, when the applicant had
no access to them and was therefore unable likewise to decide whether or not it would use them in its defence (
Solvay
v
Commission
, paragraph 83, and Case T‑36/91
ICI
v
Commission
[1995] ECR II-1847, paragraph 111).
67     According to the case-law, where it is established that during the administrative procedure the Commission did not disclose
to the applicants documents which might have contained exculpatory evidence, there will be an infringement of the rights of
the defence only if it is shown that the administrative procedure might have had a different outcome if the applicant had
had access to the documents in question during that procedure (Case T-7/89
Hercules Chemicals
v
Commission
[1991] ECR II-1711, paragraph 56, and
Solvay
v
Commission
, paragraph 66 above, paragraph 98). Where those documents are in the Commission’s investigation file, such an infringement
of the rights of the defence is unconnected with the manner in which the undertaking concerned conducted itself during the
administrative procedure (
Solvay
v
Commission
, paragraph 66 above, paragraph 96). By contrast, where the exculpatory documents in question are not in the Commission’s
investigation file, an infringement of the rights of the defence may be found only if the applicant expressly asked the Commission
for access to those documents during the administrative procedure, failing which the applicant’s right to put forward that
plea is barred in any action for annulment brought against the final decision (
Cimenteries CBR and Others
v
Commission
, paragraph 50 above, paragraph 383, and Joined Cases T‑191/98, T‑212/98 to T‑214/98
Atlantic Container Line and Others
v
Commission
[2003] ECR II-3275, paragraph 340).
68     In the present case, it is common ground that, as is apparent from recital 300 of the Decision (see paragraph 34 above), in
the statement of objections the Commission declared its intention to find Akzo and Avebe jointly liable for the entire duration
of the infringement.
69     Likewise, it is apparent from the answers from the parties to some of the written questions from the Court that, in its reply
to the statement of objections, Avebe denied that it was aware of the cartel before August 1993, stating that, in the proceedings
in the United States, it had been found guilty only of an infringement for the period after August 1993. In a footnote in
the reply to the statement of objections, Avebe stated that ‘as far as it is aware … the Akzo representative [had] also stated
at the hearings held in those proceedings that Avebe [had] not [been] aware of the cartel prior to August 1993’.
70     Moreover, further to written questions from the Court, Avebe submitted an exchange of correspondence between its counsel and
the United States Department of Justice, from which it is apparent that, as from July 2000, Avebe had made a number of attempts
to obtain from them a copy of Akzo’s alleged statement to the United States authorities. Avebe wished to lodge it with the
Commission as part of the administrative procedure. However, according to that exchange of correspondence, the United States
authorities rejected those requests, stating that, if necessary, they would be prepared to supply them to the Commission if
the Commission requested them to do so.
71     In such a situation, without its being necessary to examine the issue of whether the Commission had to take appropriate measures
to obtain a copy of Akzo’s alleged statement to the United States authorities and even supposing that it was able to do so,
the fact remains that Avebe cannot criticise the Commission for having failed to so act in order to obtain a document which
might possibly have constituted exculpatory evidence for Avebe.
72     As stated in paragraph 67 above, following the answers given by the United States authorities, Avebe should have at least
made an express request to the Commission to obtain that document. As is apparent from paragraph 69 above, however, Avebe
merely made a simple and vague reference to that alleged statement in a footnote; this cannot be regarded as being an express
request as contemplated in the case-law referred to above.
73     Avebe is incorrect in justifying the lack of express request during the administrative procedure by claiming that it was only
in the Decision that it had been confronted with Akzo’s statement contradicting Akzo’s alleged statement to the United States
authorities. Avebe does not deny that it was already clear from the statement of objections that the Commission intended to
find Akzo and Avebe jointly liable for the entire duration of the infringement. Avebe should have known then that it was for
it, in its reply to the statement of objections, to adduce all relevant evidence to demonstrate that it was not aware of the
cartel before August 1993. Likewise, it is apparent from the exchange of correspondence between its counsel and the United
States Department of Justice, submitted to the Court by Avebe, that its counsel were well aware that, during the administrative
procedure before the Commission, Akzo might have claimed that Avebe had been informed of the cartel throughout its existence.
Moreover, as has already been held in paragraph 56 above, the Commission did not rely on Akzo’s statement, but only referred
to it in the part of its Decision relating to the summary of the parties’ arguments.
74     In the light of the foregoing, the second part of this plea, relating to Akzo’s alleged statement to the United States authorities,
must also be rejected.
75     Consequently, the plea alleging infringement of the rights of the defence must be rejected.
D –
Infringement of Article 81(1) EC and Article 15(2) of Regulation No 17
1.
Introduction
76     Avebe claims, principally, that the Commission committed errors of law in holding Glucona and not Akzo liable for the infringement
for the period prior to 15 August 1993. In the alternative, Avebe claims that, even if Glucona could validly be held liable
for that period, Avebe cannot be held liable for Glucona’s unlawful conduct.
2.
The Commission could not hold Glucona liable for the infringement committed before 15 August 1993
a)     Preliminary considerations
77     It is appropriate to consider whether, as Avebe claims, regarding the period prior to 15 August 1993, the infringement was
committed not by Glucona, the joint venture of the parent companies Akzo and Avebe, but only by Akzo.
78     Avebe does not deny that Glucona was an undertaking for the purposes of Community competition law, even though its legal form
did not give it its own legal personality. According to settled case-law, in competition law, the concept of an undertaking
covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Case
C-41/90
Höfner and Elser
[1991] ECR I-1979, paragraph 21, and Case T‑513/93
Consiglio Nazionale degli Spedizionieri Doganali
v
Commission
[2000] ECR II-1807, paragraph 36).
79     Avebe considers, however, that, in the specific circumstances of the present case, the infringement, for the period prior
to 15 August 1993, was committed by Akzo and not by Glucona. In support of this point Avebe relies on the provisions of the
joint venture agreement concluded by Akzo and Avebe in 1972 relating to the creation of Glucona (‘the joint venture agreement
of 1972’) and on various facts concerning the relationship between it, Akzo and Glucona.
b)     The joint venture agreement of 1972
Arguments of the parties
80     Avebe begins by stating that, under a cooperation agreement concluded in 1966 with the company Noury & van der Lande relating
to the production and sale of various products, including sodium gluconate, it had already been responsible for, inter alia,
the production of that product, whereas the other company had dealt with, inter alia, the sale of that product and was therefore
responsible for conduct on the market.
81     Avebe states that, after the takeover of Noury & van der Lande by Akzo, the distribution of tasks remained essentially unchanged
until 15 August 1993, when Avebe took over the management of Glucona. According to Avebe, the relevant provisions of the joint
venture agreement of 1972 indicate that it was charged with production whilst Akzo was in charge of sales of sodium gluconate.
82     First, according to Avebe, it is apparent from the joint venture agreement of 1972 that Glucona was managed by two directors,
one from Akzo and the other from Avebe, so that the two directors were in charge of matters which related most to their respective
partners, that they maintained separate contacts with them and that each paid little if any attention to the matters falling
within the sphere of competence of the other. Moreover, under the joint venture agreement of 1972, the sale of sodium gluconate
was entrusted to Akzo, which defined and carried out Glucona’s sales policy, so that Akzo itself had no decisive influence
over Glucona’s conduct on the market. Quite the contrary, Akzo’s sales activities for Glucona were an integral part of Akzo’s
sales organisation, as Glucona did not have a sales organisation itself.
83     Second, according to Avebe, the fact that, under the joint venture agreement of 1972, Akzo received a payment for sales of
sodium gluconate indicates that sales of the product were, in reality, done by Akzo without involvement by Glucona.
84     Third, Avebe claims that, contrary to the Commission’s assertions, Akzo cannot, on the basis of the joint venture agreement
of 1972, be regarded as being a mere agent having acted solely on behalf of Glucona. It states that the joint venture agreement
of 1972 provided that a division of tasks could be established between the partners, which did take place in the present case.
According to Avebe, Akzo took charge – albeit, on behalf and at the risk of Glucona but, for the remainder, independently
and on its own behalf – of the marketing and sales activities for sodium gluconate and that those activities were part of
Akzo’s organisation.
85     Avebe maintains, against that background, that the fact that Akzo took care of sales on behalf and at Glucona’s risk and peril
does not necessarily mean that Glucona had to be regarded as being the undertaking which committed the infringement provided
for in Article 81(1) EC. In order to establish who infringed Article 81(1) EC in the present case, the question is not to
determine on whose behalf and at whose risk and peril those activities were carried out, but rather – essentially ─ to identify
which party actually carried out the activities by which the infringement was committed.
86     The position advocated by the Commission would lead to a situation where principals of an agent operating for a number of
undertakings who infringes Article 81(1) EC would be held liable for the infringement committed by that agent in the course
of his activities. According to Avebe, such is the case when the principal has instructed the agent to commit the infringement
or when the principal is aware of the conduct of his agent and does not instruct him to end the infringement. However, when
the agent commits the infringement without his principal’s knowledge, the latter cannot be held liable for the infringement.
Avebe further states that the Commission has not established that Glucona gave Akzo a mandate to take part in the cartel or
that Glucona as such was aware of Akzo’s participation in the cartel. Avebe adds that the fact that one of Glucona’s directors
– the one from Akzo – was aware of the infringement is not sufficient to hold Glucona liable for it, as that director was
performing his duties in his capacity as an Akzo representative charged with the sale of Glucona’s products.
87     Avebe acknowledges that it cannot be submitted, as a general rule, that a principal cannot be held liable for the conduct
of an agent who is also a director of that principal or who performs another management function in that principal’s organisation.
In the present case, however, there are reasons to distinguish between the function of agent, on the one hand, and that of
director in the principal’s organisation, on the other. First, the reasons for finding that Akzo is an agent are not based
on considerations of avoiding any liability for infringements of Article 81(1) EC, but relate to the fact that Akzo already
had a sales organisation for sodium gluconate, as evidenced by the joint venture agreement of 1972. Second, in the present
case, the agent, Akzo, is a major corporation, one representative of which held part-time the post of director with Glucona,
but who otherwise carried on business within his own company’s organisation.
88     The Commission contends that Avebe’s line of argument cannot be accepted.
Findings of the Court
89     First, Article 1 of the joint venture agreement of 1972 indicates that Avebe and Akzo created the joint venture Glucona for
the purpose of ‘the manufacture, sale and marketing for joint account’ of certain products, including sodium gluconate.
90     Moreover, under Article 5(1) of the joint venture agreement of 1972, the ‘partners of Glucona were empowered only jointly
to act and sign on behalf of the company, to bind the company towards third parties and to receive and spend funds on behalf
of the company’. Under Article 5(2) of the same agreement, the two partners, Akzo and Avebe, were each to appoint representatives
who ‘were to exercise jointly the powers referred to in paragraph 1 for the partner concerned, without prejudice to the right
of each partner to exercise those powers itself’. Those representatives were to maintain ‘regular contact with each other
and discuss with [Glucona’s] directors any matters of interest to the company’. Under Article 5(3) of the joint venture agreement
of 1972, two managers, appointed by Akzo and Avebe, were entrusted with the day-to-day management. Those directors were to
devote a considerable part of their time to Glucona matters. They were to ‘work in close collaboration and were jointly responsible
for the policy followed’ and had to ‘report regularly to their representatives on the policy followed and provide them with
all relevant information on that matter’.
91     Lastly, Article 13(2) of the agreement provided that ‘unless both partners prefer to opt for another scheme, [Glucona] entrusted
[Akzo] with the sale of its products’ and was to reimburse Akzo for a proportionate part of the costs of the latter’s sales
structure on a pro rata basis for the time devoted to the sale of Glucona’s products.
92     It is apparent from those clauses of the joint venture agreement of 1972 that, although Akzo was ‘entrusted’ with day-to-day
matters relating to the sale of sodium gluconate on behalf of Glucona, Avebe cannot validly claim that, solely by virtue of
the provisions of the joint venture agreement of 1972, Akzo alone was liable for the infringement on the ground that it alone
was responsible for Glucona’s marketing.
93     Given Glucona’s legal structure, Akzo and Avebe defined Glucona’s policy jointly. That meant that, through their representatives
and Glucona’s directors, Akzo and Avebe had to collaborate on a regular basis. Accordingly, the Court finds that, under the
joint venture agreement of 1972, Avebe was not uninvolved in the drawing-up and implementation of the marketing policy for
sodium gluconate.
94     Avebe’s statements that the two directors concentrated mostly, if not exclusively, on matters relating primarily to the sphere
of competence allocated to the partner which had appointed them, maintained separate contact with them and paid little or
no attention to the matters falling within the sphere of competence of the other director, are not reflected in the provisions
of the joint venture agreement and are even partly contradicted by them. As has just been pointed out, under the joint venture
agreement of 1972 Akzo and Avebe were jointly responsible for drawing up Glucona’s policy, on which they were to collaborate
regularly through their representatives and Glucona’s directors.
95     Moreover, even if, as maintained by Avebe, the provisions of the joint venture agreement of 1972, in particular Article 13(2)
and Article 14(1), were to be interpreted as meaning that the director appointed by Akzo was to take care of marketing sodium
gluconate in his capacity as representative of Akzo, charged with the sale of Glucona’s products, the fact remains that, given
the legal situation created by the joint venture agreement of 1972, the actions of that director, appointed by Akzo, could
be attributed to Glucona.
96     Accordingly, solely on the basis of the provisions of the joint venture agreement of 1972, for the purposes of application
of Article 81 EC, the Commission could consider, without committing a manifest error, that all of the members of the Board
of Glucona were aware of that company’s anti-competitive practices.
97     In such a situation, it was for Avebe to prove, in the administrative procedure and using a body of convergent and convincing
evidence, that, despite that legal situation, only Akzo was aware of and decided on Glucona’s unlawful conduct.
c)     Different factual items
98     Avebe puts forward six factual items in support of its contention that it was not informed of the existence of the cartel.
99     First, Avebe claims that its representatives never participated in meetings of the cartel before October 1993.
100   The Commission has not put forward any specific arguments on this point.
101   The Court notes that the Commission does not deny this point and indeed acknowledged it in recital 306 of the Decision. However,
given the distribution of tasks provided for in the joint venture agreement of 1972, together with the clauses of that agreement
providing for joint empowerment of the partners and guaranteeing each partner of Glucona participation and information on
the activities undertaken by the other party (see paragraph 90 above), this does not lead to the conclusion that the representatives
of Avebe in Glucona and, therefore, of Avebe itself, could not have been aware of the unlawful conduct.
102   Second, Avebe contends that the Commission could not validly rely on the note of 1 May 1990 in recital 307 of the Decision.
It refers to the fact that it had already stated in its reply to the statement of objections that the meeting to which that
note pertained was wholly unrelated to the multilateral meetings of the cartel and was held as part of structural cooperation
envisaged with ADM. Those discussions were not part of Glucona’s regular sales operations, but concerned a structural change
in Glucona’s production in the United States. This explains why the director of Glucona appointed by Avebe was present there
and why Avebe was also informed of the progress of the discussions with ADM, in its capacity as partner in Glucona.
103   The Commission contends that the note of 1 May 1990 makes it clear that it was Glucona – and not just Akzo – which was selling
sodium gluconate, which engaged in conduct on that market, which took part in negotiations and which was considered a player
in that market by the other members of the cartel.
104   The Court observes that the note of 1 May 1990 was drawn up by a member of the Board of Avebe concerning a meeting which had
been held on 30 April 1990 with representatives of ANC and ADM. That note indicates that, at that meeting, the participants
discussed the renewal of certain sodium gluconate supply contracts concluded by ADM.
105   Even if that meeting was unrelated to the multialteral meetings of the cartel, but was held, as maintained by Avebe, as part
of structural cooperation envisaged with ADM, the fact remains, as rightly pointed out by the Commission, that that note shows
that Avebe was not unaware of the issue of Glucona’s marketing sodium gluconate. This finding is, moreover, supported by the
fact that there was a draft agreement between Akzo, Avebe and ADM, which Avebe itself submitted to the Court, and from which
it is apparent that Avebe and Akzo were to market sodium gluconate jointly in the United States. Nowhere in that document
does it state that Avebe’s role was limited to the production of sodium gluconate and that Akzo alone was to market that product.
106   Consequently, Avebe is incorrect in criticising the Commission for having relied on that note as factual evidence supporting
the proposition that Avebe could not be unaware that Glucona was engaged in anti-competitive conduct.
107   Third, Avebe contends that the Commission was incorrect, in recital 308 of the Decision, to refer to unlawful conduct by Avebe
when, on 15 August 1993, it took over full responsibility for the management of Glucona, and to infer therefrom that Avebe
was liable for the infringement committed before that date. Such reasoning was rejected by the Court in Case T‑347/94
Mayr-Melnhof
v
Commission
[1998] ECR II-1751, paragraphs 400 et seq.
108   According to the Commission, Avebe incorrectly relies on
Mayr-Melnhof
v
Commission
, paragraph 107 above, as that judgment concerned a situation which is different from the one at issue in the present case.
In the present case, it referred to this fact, among others, merely to illustrate that, even before 15 August 1993, Avebe
must have known that Glucona was participating in the cartel.
109   The Court notes, as rightly pointed out by the Commission, that in
Mayr-Melnhof
v
Commission
, paragraph 107 above, it was held that Mayr-Melnhof could be held liable for the conduct of one of its subsidiaries only
as from the date it had taken over control of that subsidiary. In the present case, given the links of legal ownership and
control established from the time Glucona was created, the issue was not whether Avebe was to be held liable for the conduct
engaged in by a company at a time when it did not control that company. Consequently, Avebe cannot rely on that judgment in
support of its line of argument.
110   That being so, even if, taken individually, Avebe’s conduct does not suffice to demonstrate that when it took over the sole
management of Glucona on 15 August 1993, it was already aware that Glucona was party to the cartel, the fact remains that
the Commission cannot be criticised for having taken that element into account, in the light of other particularly plausible
elements, including the joint liability of two co-directors of Glucona (see recital 307 of the Decision and paragraphs 90
to 96 above), in order to support its position.
111   Fourth, Avebe claims that, in the minutes of the meetings held within Glucona, no reference is made to the existence of the
cartel. It follows that Glucona’s organs did not approve Akzo’s conduct, either expressly or tacitly, because they were not
aware of it.
112   According to the Commission, the minutes indicate that the topics discussed during the meetings concerned the entire range
of Glucona’s operations.
113   The Court observes that, given the secret nature of the cartel, the fact that no written reference is made to the existence
of the cartel in the minutes of the meetings held within Glucona is not a relevant argument for establishing that Avebe was
not or could not have been informed of that cartel or even less that Glucona’s organs had not expressly or tacitly approved
the anti-competitive conduct.
114   That being so, as correctly pointed out by the Commission, it is apparent from a number of the minutes that Avebe was kept
informed of the commercial side of Glucona’s operations, sometimes in detail, as evidenced by the reports of the meetings
of 8 October 1991, 14 April and 10 December 1992 and 2 September 1993. By way of example, in the minutes of the meeting of
10 December 1992, the following is to be found in paragraph 8:
‘The budget volume of sodium gluconate for 1993 is much lower than previously, given the market forces (ADM). Although volume
is down, better prices are expected. Moreover, higher export refunds will be requested. This is due to the diluted nature
of our raw materials. The emphasis will be on exports to countries outside the EC. For the first time in a number of years,
the gross margin for sodium gluconate could reach the threshold of profitability. That is, however, partly due to a restructuring
of fixed costs …’
115   It is apparent from this that the topics discussed during those meetings concerned the entire range of Glucona’s operations,
including topics such as marketing strategy, market trends, and pricing and market share policy. Given that the cartel was
an essential factor in shaping possible actions on the sodium gluconate market, it is completely out of the question that
these topics could have been discussed without mentioning the existence of the cartel and the parameters resulting therefrom.
116   Accordingly, Avebe cannot rely on the minutes of Glucona meetings in support of its line of argument, either.
117   Fifth, Avebe refers to the fact that Glucona’s commercial partners and competitors always identified Glucona with Akzo and
never with Avebe, that Akzo used Akzo letterhead and not Glucona letterhead in its written correspondence with clients and
that billing and collection took place through Akzo.
118   The Commission rejects this line of argument.
119   The Court finds, first, that Avebe’s line of argument is contradicted by the draft agreement, referred to in paragraph 105
above, which mentions, as potential commercial partners of ADM for the marketing of sodium gluconate in the United States,
not only Akzo, but also Avebe. In any event, even if it were established that Glucona’s partners and competitors always identified
that company with Akzo, the fact remains that this relates only to Glucona’s external relations and the perception of the
company by third parties. It does not, however, relate in any way to the question of whether, given the internal structure
of Glucona’s organisation, Avebe was or must have been informed of Glucona’s anti-competitive conduct in the sodium gluconate
market.
120   Accordingly, Avebe cannot rely on the above facts in support of its line of argument, either.
121   Sixth and lastly, Avebe claims that the director appointed by Akzo had his office in Amersfoort (Netherlands), in Akzo’s building,
whereas the director appointed by Avebe managed Avebe’s plants on site in Ter Apelkanaal (Netherlands) and that those premises
were situated approximately 200 kilometres from each other. It adds that the production and sale of sodium gluconate accounted
for only a very small portion of both Avebe’s and Akzo’s operations.
122   The Commission did not put forward any specific arguments on this point.
123   The Court notes in this regard that the joint venture agreement of 1972 provided explicitly for close cooperation between
the directors on all questions relating to the joint venture. Moreover, as stated in paragraph 115 above, the minutes of Glucona’s
meetings indicate that the topics discussed during those meetings concerned the entire range of Glucona’s operations, including
topics such as marketing strategy, market trends, and pricing and market share policy. Accordingly, the geographical distance
between Akzo and Avebe is not a convincing argument for maintaining that the director appointed by Avebe was not aware of
the anti-competitive conduct.
124   Nor is it relevant, as Avebe contends, that the production and sale of sodium gluconate accounted for only a very small portion
of both Avebe’s and Akzo’s operations. Glucona was created for the purposes of the joint manufacture, sale and marketing of
certain common products, including sodium gluconate, operations to which Glucona’s directors were to devote a substantial
portion of their time, pursuant to the joint venture agreement of 1972.
125   Consequently, Avebe is incorrect in putting forward these facts in support of its line of argument.
126   In the light of all the foregoing, the Commission correctly found that the various factual items put forward by Avebe did
not lead to a finding that, despite the clarity of the legal framework governing the structure of the joint venture and the
sharing of responsibilities among the partners, Avebe was not involved in the drawing-up and implementation of the marketing
policy for sodium gluconate and, therefore, was not, or could not be, informed of Glucona’s anti-competitive actions.
127   Accordingly, the Commission could validly find that the infringement had been committed by Glucona.
3.
The Commission could not have held Avebe liable for the infringement committed by Glucona
a)     Arguments of the parties
128   Avebe claims essentially that, even if it is found that the anti-competitive conduct was committed by Glucona and not by Akzo,
the Commission could not, in any event, hold Avebe liable for that conduct.
129   Avebe maintains that, according to settled case-law, the fact that a subsidiary has separate legal personality is not sufficient
to exclude the possibility of its conduct being imputed to the parent company, especially where the subsidiary does not independently
decide its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent
company (see Case C‑286/98 P
Stora Kopparbergs Bergslags
v
Commission
[2000] ECR I-9925, paragraph 26, and case-law cited). It follows that it is necessary to take into account not the formal
legal structure of an undertaking, but rather its actual decision-making structure. In reiterating essentially the same arguments
as those already put forward as part of the first part of this plea, Avebe considers that Glucona was not carrying out the
instructions it gave to it, but that, on the contrary, it was Akzo which marketed sodium gluconate.
130   Moreover, in a situation where the unlawful conduct has been committed by an association without legal personality, the formal
criterion that there be legal ties between it and its parent company is not relevant. The only issue that matters in such
a situation is whether Glucona and Avebe formed an economic unit, which was not the case because Glucona did not have a sales
organisation; rather, most of its representatives performed their work as part of tasks they were performing for their other
employer. Only where the parent company holds 100% of the shares in the subsidiary can the Commission assume that that subsidiary
carries out, in all material respects, the instructions given to it by its parent company. Only in such a context is the Commission
not required to check whether the parent company has actually exercised that power. In the present case, Avebe held only 50%
of the shares in Glucona, whilst the other 50% were held by Akzo.
131   Avebe further relies on the judgment of this Court in Joined Cases T‑339/94, T‑340/94, T‑341/94 and T‑342/94
Metsä-Serla and Others
v
Commission
[1998] ECR II-1727, paragraphs 51 to 58. It observes that, in that case, the Court took account of the fact that an association
of undertakings had received authority from its members to make all their sales of cartonboard and fixed uniform prices, whilst
it was acting in the name of and on behalf of each of its members. Accordingly, in that case, the Court took into account
the conduct which constituted the infringement and the direct relationship between that conduct and the undertaking which
must be held liable for the infringement.
132   Avebe also claims that it is improbable that, on 15 August 1993, when the director appointed by Akzo informed the director
appointed by Avebe of the existence of the structure of the cartel, Avebe was aware of that cartel. Avebe states that the
Commission was informed of it by letter of 23 April 1999, but that it misinterpreted that information in stating, in the Decision,
that Avebe had asked to be kept informed in detail about the situation concerning the cartel. Likewise, the Commission did
not take account of the fact that, as indicated in paragraph 26 of the reply to the statement of objections, Avebe’s representative
in Glucona had informed Avebe’s president at a later time, which refutes the assertion that Avebe was already aware of the
cartel.
133   In its reply, Avebe adds that its position is supported by Article 6(2) of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as interpreted by the European Court of Human Rights.
134   The Commission acknowledges that the case-law referred to by it did not concern a case such as the present one, where the
infringement was committed by a cooperative association between two independent undertakings. However, referring essentially
to the arguments put forward previously as part of the first part of this plea, the Commission submits that, in the present
case, Avebe was able to have a decisive influence on Glucona’s conduct on the market and, in particular, at any time terminate
its participation in the cartel. In the light of the case-law (Case T‑354/94
Stora Kopparbergs Bergslags
v
Commission
[1998] ECR II-2111, paragraph 80), that suffices for a finding that Avebe was jointly liable for the infringement and it
is not necessary to prove whether it actually exerted such an influence over Glucona.
b)     Findings of the Court
135   First, it should be recalled that it is settled case-law that the anti-competitive conduct of an undertaking can be attributed
to another undertaking where it has not decided independently upon its own conduct on the market but carried out, in all material
respects, the instructions given to it by that other undertaking, having regard in particular to the economic and legal links
between them (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P, C‑208/02 P et C‑213/02 P
Dansk Rørindustri and Others
v
Commission
[2005] ECR I-5425, paragraph 117, and Case C-294/98 P
Metsä-Serla Oyj and Others
v
Commission
[2000] ECR I-10065, paragraph 27).
136   It must be pointed out in that regard that, according to that case-law and contrary to the Commission’s assertions in paragraphs
48 to 52 of its statement in defence, the Commission cannot merely find that an undertaking ‘was able to’ exert such a decisive
influence over the other undertaking, without checking whether that influence actually was exerted. On the contrary, it follows
from that case-law that it is, in principle, for the Commission to demonstrate such decisive influence on the basis of factual
evidence, including, in particular, any management power one of the undertakings may have over the other (see, to that effect,
Dansk Rørindustri and Others
v
Commission
, paragraphs 118 to 122; Case C‑196/99 P
Aristrain
v
Commission
[2003] ECR I‑11005, paragraphs 95 to 99; Case T‑9/99
HFB and Others
v
Commission
[2002] ECR II-1487, paragraph 527). In the case giving rise to the judgment in
Stora Kopparbergs Bergslags
v
Commission
, paragraph 129 above, relied on by the Commission, the Court of Justice recognised that when a parent company holds 100%
of the shares in a subsidiary which has been found guilty of unlawful conduct, there is a rebuttable presumption that the
parent company actually exerted a decisive influence over its subsidiary’s conduct. In that situation, it is for the parent
company to reverse that presumption by adducing evidence to establish that its subsidiary was independent (see, to that effect,
Stora Kopparbergs Bergslags
v
Commission
, paragraph 129 above, paragraphs 28 to 29, and Case T‑354/94
Stora Kopparbergs Bergslags
v
Commission
, paragraph 134 above, paragraph 80).
137   Next, it must be borne in mind that, under the joint venture agreement of 1972, Glucona was created in the legal form of a
‘vennootschap onder firma’ (vof). It is common ground that, under Netherlands law, Glucona thus constituted a purely contractual
entity without separate legal personality from its partners Akzo and Avebe, with each partner holding 50% of that entity.
Moreover, under Article 5(1) of that agreement, both partners were empowered only jointly to act and sign on behalf of Glucona,
to bind it towards third parties, to bind third parties to it, and to receive and spend funds on its behalf. According to
Article 5(2), the two partners were each to appoint two representatives who ‘were to exercise jointly the powers referred
to in paragraph 1 for the partner concerned, without prejudice to the right of each partner to exercise those powers itself’.
Those representatives were to maintain ‘regular contact amongst themselves and discuss with [Glucona’s] directors any matters
of interest to the company’. Under Article 5(3) of that agreement, two managers, appointed by Akzo and Avebe, were entrusted
with the day-to-day management. Those directors were to devote a considerable part of their time to Glucona matters. They
were to ‘work in close collaboration and were jointly responsible for the policy followed’ and had to ‘report regularly to
their representatives on the policy followed and provide them with all relevant information on that matter’. Lastly, given
Glucona’s legal structure, Akzo and Avebe assumed Glucona’s commitments jointly and without limitation.
138   It is apparent from all of the foregoing that the joint venture agreement of 1972 established joint management power for Akzo
and Avebe with respect to the commercial management of Glucona, with that power being exercised jointly and in permanent close
collaboration, in all matters pertaining to Glucona, by two directors appointed by Akzo and Avebe respectively and controlled
inter alia through the two representatives of those two partners. Given that joint management power and the fact that Akzo
and Avebe each held a 50% stake in Glucona and, therefore, controlled all of its shares jointly, the Court finds that the
situation is analogous to that in Case T‑354/94
Stora Kopparbergs Bergslags
v
Commission
, in which a single parent company held 100% of its subsidiary, for the purpose of establishing the presumption that that
parent company actually exerted a decisive influence over its subsidiary’s conduct.
139   The Court finds that, taken together, the factual evidence referred to in paragraph 137 above provides a sufficient basis
for the presumption that Akzo and Avebe determined jointly Glucona’s course of action on the market to the point where Glucona
was deemed not to have any real aunotomy in the matter. Moreover, as is apparent from the findings in paragraphs 92 to 126
above relating to the applicant’s knowledge of Glucona’s actions, the applicant has not adduced any evidence to rebut that
presumption.
140   Lastly, the fact that the two partners, Akzo and Avebe, were jointly liable for Glucona’s conduct, irrespective of its exact
scope under Netherlands law, strengthens the presumption that the partners in fact determined Glucona’s marketing policy jointly.
In those circumstances, it is definitely in the partners’ interest to prevent their subsidiary from acting independently of
their instructions, given the risk of legal proceedings or claims for damages from third parties in the event of unlawful
conduct by their subsidiary.
141   It follows from the foregoing that, in the light of the close economic and legal links between Glucona, on the one hand, and
Akzo and Avebe, on the other, which exercised actual joint control over Glucona, the Commission did not commit an error in
finding that Avebe could be held liable for Glucona’s unlawful conduct. It also follows therefrom that, contrary to the applicant’s
contentions, Glucona, on the one hand, and Akzo and Avebe, on the other, do form an economic unit as contemplated by the case-law
referred to in paragraph 78 above, in the context of which the unlawful conduct of the subsidiary may be imputed to the parent
companies, who become liable by virtue of the fact that they in reality control its marketing policy (see, to that effect,
Case T‑66/99
Minoan Lines
v
Commission
[2003] ECR II-5515, paragraph 122).
142   Accordingly, the plea alleging infringement of Article 81(1) EC and Article 15(2) of Regulation No 17 must be rejected in
its entirety.
E –
Infringement of the principle of proportionality
143   Avebe claims that, even if it can be held liable for the infringement, when setting the basic amount of the fine relating
to it, the Commission should have considered the role played in the cartel by Avebe prior to 15 August 1993 to be a mitigating
circumstance.
144   The Commission contends that the fine imposed on Avebe was determined because of Glucona’s conduct in the cartel and that,
in that context, it took account of the specificities of its conduct. According to the Commission, there is no reason to reduce
the liability of a parent company because of the conduct of its subsidiary. This is all the more so because Glucona did not
have a legal personality distinct from Avebe and Akzo. Avebe is therefore in no way being held liable for the conduct of another
party but rather for the actions of a purely contractual entity which is part of its own legal personality and for which it
is jointly and severally liable.
145   The Court finds, as pointed out by the Commission, that, because of Glucona’s conduct, for which both Avebe and Akzo can be
held liable, the Commission could validly impose a fine on Avebe without infringing the principle of proportionality. More
specifically, in the light of the provisions of the joint venture agreement of 1972 creating the joint venture Glucona (see
paragraphs 90 to 91 above), the Court finds that the role played by Avebe in the cartel prior to 15 August 1993 cannot be
a mitigating circumstance which might affect the issue of whether the fine imposed on it was proportionate or not.
146   Accordingly, the plea alleging infringement of the principle of proportionality is unfounded.
147   As none of the pleas put forward against the Decision have been upheld, the action must be dismissed in its entirety.

Costs
148   Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the
costs, in accordance with the form of order sought by the defendant.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby
1.
Dismisses the action;
2.
Orders the Coöperatieve Verkoop- en Productievereniging van Aardappelmeel en Derivaten Avebe BA to pay the costs.
Azizi
Jaeger
Dehousse
Delivered in open court in Luxembourg on 27 September 2006.
E. Coulon

J. Azizi
Registrar

President
Table of contents
Facts
Procedure and forms of order sought
Law
A –  Introduction
B –  Infringement of the obligation to state reasons
C –  Infringement of the rights of the defence
1.  Preliminary remarks
2.  Akzo’s statement
3.  Akzo’s alleged statement to the United States authorities
a)  Arguments of the parties
b)  Findings of the Court
Admissibility
Substance
D –  Infringement of Article 81(1) EC and Article 15(2) of Regulation No 17
1.  Introduction
2.  The Commission could not hold Glucona liable for the infringement committed before 15 August 1993
a)  Preliminary considerations
b)  The joint venture agreement of 1972
Arguments of the parties
Findings of the Court
c)  Different factual items
3.  The Commission could not have held Avebe liable for the infringement committed by Glucona
a)  Arguments of the parties
b)  Findings of the Court
E –  Infringement of the principle of proportionality
Costs
*
Language of the case: Dutch.