# C_2007056EN.01001503.xml

| 10.3.2007 | EN | Official Journal of the European Union | C 56/15 |
| --- | --- | --- | --- |

10.3.2007

EN

Official Journal of the European Union

C 56/15

---

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-329/01: Archer Daniels Midland Company v Commission of the European Communities

(Case C-510/06 P)

(2007/C 56/28)

Language of the case: English

Parties

Appellant: Archer Daniels Midland Co. (represented by: C. Lenz, Prof. Dr., L. 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; |
| --- | --- |

—

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; |
| --- | --- |

—

ii) annul Article 3 of the Decision insofar as it pertains to ADM;

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

—

iii) in the alternative to (ii), modify Article 3 of the Decision to 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 of the ECJ as to the law; |
| --- | --- |

—

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

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

—

v) in any event, order that the 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 grounds relied upon Archer Daniels Midland Company (hereinafter ‘ADM’) in this appeal are:

| (1) | the Court of First Instance (hereinafter ‘CFI’) infringes the duty to give reasons:






  (a) | in rejecting ADM's plea that the increase in fines resulting from the Fines Guidelines was not necessary to ensure the implementation of EC competition policy. |
| --- | --- | --- |

(1)

the Court of First Instance (hereinafter ‘CFI’) infringes the duty to give reasons:

(a)

in rejecting ADM's plea that the increase in fines resulting from the Fines Guidelines was not necessary to ensure the implementation of EC competition policy.

| (b) | by failing to respond to ADM's pleas that the evidence would show lack of impact if the market was wider. |
| --- | --- |

(b)

by failing to respond to ADM's pleas that the evidence would show lack of impact if the market was wider.

| (2) | the CFI errs in finding that the Commission satisfied the Pioneer
   (1) test and justified the discretion to increase fines generally and in this case; |
| --- | --- |

(2)

the CFI errs in finding that the Commission satisfied the Pioneer
   (1) test and justified the discretion to increase fines generally and in this case;

Pioneer

1

| (3) | the CFI infringes the legal principles applicable to the calculation of fines by permitting the Commission to disregard relevant EEA product turnover as an appropriate starting point; |
| --- | --- |

(3)

the CFI infringes the legal principles applicable to the calculation of fines by permitting the Commission to disregard relevant EEA product turnover as an appropriate starting point;

| (4) | the CFI infringes the principle that the Commission must follow self-imposed rules:






  (a) | by holding that the Commission can prove impact on a market without needing to respond to ADM's pleas that no relevant economic market was proven; |
| --- | --- | --- |

(4)

the CFI infringes the principle that the Commission must follow self-imposed rules:

(a)

by holding that the Commission can prove impact on a market without needing to respond to ADM's pleas that no relevant economic market was proven;

| (b) | by permitting the Commission to disregard termination of the infringement as a relevant attenuating circumstances; |
| --- | --- |

(b)

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

| (5) | the CFI infringes the principle of equal treatment by finding that there were relevant factors distinguishing the far smaller fines imposed in Zinc Phosphates
   (2), a directly comparable case; |
| --- | --- |

(5)

the CFI infringes the principle of equal treatment by finding that there were relevant factors distinguishing the far smaller fines imposed in Zinc Phosphates
   (2), a directly comparable case;

Zinc Phosphates

2

| (6) | the CFI reverses the burden of proof by requiring ADM to show that prices ‘but for’ the cartel would have been the same; |
| --- | --- |

(6)

the CFI reverses the burden of proof by requiring ADM to show that prices ‘but for’ the cartel would have been the same;

| (7) | the CFI infringes Article 81 EC treaty:






  (a) | by misapplying the law of cartels; |
| --- | --- | --- |

(7)

the CFI infringes Article 81 EC treaty:

(a)

by misapplying the law of cartels;

| (b) | by concluding that the conduct at the June 1995 meeting in Anaheim was anticompetitive; |
| --- | --- |

(b)

by concluding that the conduct at the June 1995 meeting in Anaheim was anticompetitive;

| (8) | the CFI distorts the evidence:






  (a) | in concluding that ADM's withdrawal is not supported by the evidence of other participants; |
| --- | --- | --- |

(8)

the CFI distorts the evidence:

(a)

in concluding that ADM's withdrawal is not supported by the evidence of other participants;

| (b) | by finding that evidence of the June 1995 meeting was contemporaneous note written by Roquette at the meeting. |
| --- | --- |

(b)

by finding that evidence of the June 1995 meeting was contemporaneous note written by Roquette at the meeting.

---

(1)  Joined cases 100-103/80 SA Musique Diffusion Française and others V Commission [1983] ECR 1825.

1

(2)  OJ L 153, P.1.

2

---