# C_2007056EN.01001601.xml

| 10.3.2007 | EN | Official Journal of the European Union | C 56/16 |
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10.3.2007

EN

Official Journal of the European Union

C 56/16

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Appeal brought on 15 December 2006 by Archer Daniels Midland Co. against the judgment of the Court of First Instance (Third Chamber) delivered on 27 September 2006 in Case T-59/02: Archer Daniels Midland Company v Commission of the European Communities

(Case C-511/06 P)

(2007/C 56/29)

Language of the case: English

Parties

Appellant: Archer Daniels Midland Co. (represented by: C. Lenz, Prof. Dr., L. Martin Alegi, E. Batchelor and M. Garcia, Solicitors)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

The applicant claims that the Court should:

| — | (i) set aside the Judgment in so far as it dismisses the application brought by ADM in respect of the Decision; |
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(i) set aside the Judgment in so far as it dismisses the application brought by ADM in respect of the Decision;

| — | (ii) annul Article 3 of the Decision insofar as it pertains to ADM, |
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(ii) annul Article 3 of the Decision insofar as it pertains to ADM,

| — | (iii) in the alternative to the point (ii), modify Article 3 of the Decision reduce further or cancel the fine imposed on ADM, |
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(iii) in the alternative to the point (ii), modify Article 3 of the Decision reduce further or cancel the fine imposed on ADM,

| — | (iv) in the alternative to (ii) and (iii), refer the case back to the CFI for judgment in accordance with the judgment of the ECJ as to the law; |
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(iv) in the alternative to (ii) and (iii), refer the case back to the CFI for judgment in accordance with the judgment of the ECJ as to the law;

| — | (v) in any event, order that he Commission bear its own costs and pay ADM's costs relating to the proceedings before the CFI and the ECJ. |
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(v) in any event, order that he Commission bear its own costs and pay ADM's costs relating to the proceedings before the CFI and the ECJ.

Pleas in law and main arguments

The applicant submits that:

| 1. | The Court of First Instance (CFI) misapplied the law on the rights of defence in determining Archer Daniels Midland Company (ADM) was given fair warning of the facts on which the Commission found it to be a leader; |
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1.

The Court of First Instance (CFI) misapplied the law on the rights of defence in determining Archer Daniels Midland Company (ADM) was given fair warning of the facts on which the Commission found it to be a leader;

| 2. | The CFI infringed essential procedural safeguards by permitting the Commission to rely on the FBI's summary of an interview with an ADM employee as evidence of leadership; |
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2.

The CFI infringed essential procedural safeguards by permitting the Commission to rely on the FBI's summary of an interview with an ADM employee as evidence of leadership;

| 3. | The CFI distorted the evidence by stating that Cerestar's statement as to ADM's leadership is corroborated; |
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3.

The CFI distorted the evidence by stating that Cerestar's statement as to ADM's leadership is corroborated;

| 4. | The CFI failed to give reasons for dismissing ADM's plea that Cerestar's failure tp identify positively or provide details of Sherpa meetings is fatal to Cerestar's statement that ADM led those meetings; |
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4.

The CFI failed to give reasons for dismissing ADM's plea that Cerestar's failure tp identify positively or provide details of Sherpa meetings is fatal to Cerestar's statement that ADM led those meetings;

| 5. | the CFI erroneously concluded that ADM is estopped from disputing the accuracy of Cerestar's statement because it did not do so during the administrative procedure; |
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5.

the CFI erroneously concluded that ADM is estopped from disputing the accuracy of Cerestar's statement because it did not do so during the administrative procedure;

| 6. | The CFI infringed the principle that the Commission must follow self-imposed rules by:






  (a) | permitting the Commission to disregard termination of the infringement as a relevant attenuating circumstance; |
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6.

The CFI infringed the principle that the Commission must follow self-imposed rules by:

(a)

permitting the Commission to disregard termination of the infringement as a relevant attenuating circumstance;

| (b) | holding it that the Commission had proven impact on a market without defining the relevant market; |
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(b)

holding it that the Commission had proven impact on a market without defining the relevant market;

| 7. | the CFI infringed the principle of legitimate expectations in applying the Leniency Notice by concluding that ADM was a leader and could not qualify for Section B leniency; |
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7.

the CFI infringed the principle of legitimate expectations in applying the Leniency Notice by concluding that ADM was a leader and could not qualify for Section B leniency;

| 8. | the CFI misapplied the law on legitimate expectations in finding that the Commission's representations during the administrative procedure did not give rise to a justified expectation that ADM would receive a reduction in penalty under Section B of the Leniency Notice. |
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8.

the CFI misapplied the law on legitimate expectations in finding that the Commission's representations during the administrative procedure did not give rise to a justified expectation that ADM would receive a reduction in penalty under Section B of the Leniency Notice.

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