**Case C-511/06 P**

**Archer Daniels Midland Co.**

**v**

**Commission of the European Communities**

(Appeal – Competition – Agreements, decisions and concerted practices – Citric acid market – Determination of the amount of the fine – Role of leader – Rights of defence – Evidence arising from a procedure conducted in a non‐Member State – Definition of the relevant market – Attenuating circumstances)

Summary of the Judgment

1.        *Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence
– Scope – Requirement to state the evidence demonstrating the role of leader of a cartel*

*(Council Regulation No 17, Art. 15(2); Commission Notices 96/C 207/04, Section B(e), and 98/C 9/03, Section 2)*

2.        *Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Attenuating circumstances*

*(Art. 81(1) EC; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 3)*

3.        *Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking
concerned – Assessment of the conditions of cooperation at the time of the adoption of the final decision*

*(Council Regulation No 17; Commission Notice 96/C 207/04, Section E)*

4.        *Competition – Fines – Amount – Determination – Criteria – Actual impact on the market*

*(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 A, first para.)*

5.        *Competition – Fines – Amount – Determination – Criteria – Taking into account of the cooperation of the undertaking concerned
with the Commission – Concept of ‘first undertaking’ to adduce decisive evidence*

*(Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04, Section B(b))*

1.        Classification as leader of a cartel has significant consequences regarding the amount of the fine to be imposed on an undertaking
described as such. Thus, under Section 2 of 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, it constitutes an aggravating circumstance which leads to a significant
increase in the basic amount of the fine. Similarly, under Section B(e) of the Notice on the non‐imposition or reduction of
fines in cartel cases, such a classification automatically excludes the granting of a very substantial reduction of the fine,
even if an undertaking classified as a leader fulfils all the conditions set out in that provision to qualify for such a
reduction.

Accordingly, it is for the Commission to set out in the statement of objections the evidence which it considers relevant to
enable an undertaking under investigation which may be classified as a leader of the cartel to respond to such an objection.
However, in light of the fact that that statement remains a step in the adoption of the final decision and does not therefore
constitute the Commission’s definitive position, the Commission cannot be required, already at that stage, to carry out a
legal classification of the evidence on which it relies in its final decision in classifying an undertaking as leader of the
cartel. The Commission is not therefore required to state in the statement of objections the manner in which it intends to
take account of the facts when setting the level of the fine or, in particular, whether it intends, on the basis of those
facts, to classify an undertaking as a leader of the cartel. None the less, the Commission is required, at the very least,
to state those facts. Where the documents and items of evidence which are the source of the facts used as a basis for the
classification as a leader of the cartel consist of testimonies of persons involved in the infringement procedure and therefore
have a subjective aspect, the fact that those documents are annexed to the statement of objections, without those facts being
expressly referred to in the wording itself of the statement, does not enable the undertaking in question either to assess
the credence which the Commission gives to each of the items of evidence set out in those documents or to contest them, or
consequently usefully to exercise its rights. Accordingly, in such a situation, in classifying the undertaking as a leader
of the cartel on the basis of the items of evidence annexed to the statement of objections but which have not been referred
to in that statement of objections, the Commission infringes that undertaking’s rights of defence and may not therefore rely
on those items of evidence in order to classify it as a leader of the cartel. In the absence of other evidence in the statement
of objections which makes it possible to arrive at such a classification, the Commission cannot therefore rule out the application
of Section B of the Leniency Notice on the grounds that the undertaking had a leadership role.

(see paras 70-72, 80, 89-90, 93-95, 112, 133, 136)

2.        Recognition of entitlement to a reduction of the basic amount of the fine under Section 3 of 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 is necessarily
linked to the circumstances of the particular case, and termination of the infringement at issue does not automatically imply
a reduction of the basic amount of the fine.

To recognise an attenuating circumstance in situations where an undertaking is party to a manifestly unlawful agreement which
it knew or could not be unaware constituted an infringement could encourage undertakings to continue a secret agreement as
long as possible, in the hope that their conduct would never be discovered, while knowing that if their conduct were discovered
they could expect, by then curtailing the infringement, their fine to be reduced. Such a recognition would deprive the fine
imposed of any deterrent effect and would undermine the effectiveness of Article 81(1) EC.

Consequently, the Commission cannot be obliged to grant an undertaking the benefit of a reduction of the basic amount of the
fine on the ground that the latter had ended its unlawful conduct as soon as the antitrust authorities of a non‐Member State
intervened.

(see paras 100, 102, 105-106)

3.        Under Section E of the Notice on the non‐imposition or reduction of fines in cartel cases, it is only on its adoption of the
final decision that the Commission determines whether or not the conditions set out in Sections B, C and D of that notice
are met. Accordingly, the Commission cannot give an undertaking any precise assurance that any reduction of fine will be granted
in the phase of the procedure prior to the adoption of the final decision.

(see para. 118)

4.        Although the actual impact of an infringement on the market is a factor to take into consideration when assessing the gravity
of that infringement, it is one criterion among others, namely the nature of the infringement and the size of the geographic
market. Similarly, 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 state that that actual impact on the market is to be taken into account only where this can
be measured.

(see para. 125)

5.        The express wording of Section B(b) of the Notice on the non‐imposition or reduction of fines in cartel cases does not require
the ‘first’ undertaking to have provided all the evidence demonstrating every detail of the operation of a cartel. Pursuant
to that provision, in order to be considered such, it is sufficient for an undertaking to adduce ‘some’ decisive evidence
of the cartel’s existence. Nor does that section require that the evidence adduced be sufficient in itself in order to draw
up the statement of objections or for the adoption of a final decision establishing the existence of an infringement. However,
although the evidence referred to in Section B(b) need not be sufficient in itself to establish the cartel’s existence, it
must none the less be decisive for that purpose. It must therefore not be simply an indication as to the direction which the
Commission’s investigation should take but must be material which may be used directly as the principal evidence supporting
a decision finding an infringement.

In the context of Section B(b), the fact that decisive evidence was provided orally is of no significance. Moreover, the fact
that that information does not emerge from a direct testimony or that it was subsequently supplemented or clarified is not
relevant to the assessment of whether it is decisive.

The Commission has a certain discretion in assessing whether an undertaking’s cooperation has been ‘decisive’, within the
meaning of that provision, for a finding that an infringement has existed and has come to an end, so that only a manifestly
excessive use of that discretion can be censured by the Community judicature.

(see paras 150-152, 161-163)


JUDGMENT OF THE COURT (First Chamber)

9 July 2009 ([\*](#Footnote*))

(Appeal – Competition – Agreements, decisions and concerted practices – Citric acid market – Determination of the amount of the fine – Role of leader – Evidence arising from a procedure conducted in a non‐Member State – Definition of the relevant market – Attenuating circumstances)

In Case C‐511/06 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 11 December 2006,

**Archer Daniels Midland Co.,** established in Decatur, Illinois (United States), represented by C.O. Lenz, Rechtsanwalt, L. Martin Alegi, E. Batchelor and
M. Garcia, Solicitors, with an address for service in Luxembourg,

appellant,

the other party to the proceedings being:

**Commission of the European Communities,** represented by A. Bouquet and X. Lewis, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (First Chamber),

composed of A. Tizzano, acting as President of the First Chamber, M. Ilešič, A. Borg Barthet, E. Levits (Rapporteur) and J.-J. Kasel,
Judges,

Advocate General: P. Mengozzi,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the written procedure and further to the hearing on 8 May 2008,

after hearing the Opinion of the Advocate General at the sitting on 6 November 2008,

gives the following

**Judgment**

1        By its appeal, Archer Daniels Midland Co. (‘ADM’) seeks to have set aside the judgment of the Court of First Instance of the
European Communities in Case T‐59/02 *Archer Daniels Midland* v *Commission* [2006] ECR II-3627 (‘the judgment under appeal’) which dismissed in part its action for the partial annulment of Commission
Decision 2002/742/EC of 5 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of
the EEA Agreement (Case COMP/E-1/36.604 – Citric acid) (OJ 2002 L 239, p. 18, ‘the contested decision’), in so far as that
decision relates to the appellant.

**Legal context**

2        Article 15(2) 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) provided:

‘The Commission may by decision impose on undertakings or associations of undertakings fines of from 1 000 to 1 000 000 units
of account, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the
undertakings participating in the infringement where, either intentionally or negligently:

(a)      they infringe Article [81](1) [EC] or Article [82 EC], ...

...

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

3        The Commission notice of 14 January 1998 entitled ‘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’), states, inter alia:

‘The principles outlined ... should ensure the transparency and impartiality of the Commission’s decisions, in the eyes of the
undertakings and of the Court of Justice alike, whilst upholding the discretion which the Commission is granted under the
relevant legislation to set fines within the limit of 10% of overall turnover. This discretion must, however, follow a coherent
and non-discriminatory policy which is consistent with the objectives pursued in penalising infringements of the competition
rules.

The new method of determining the amount of a fine will adhere to the following rules, which start from a basic amount that
will be increased to take account of aggravating circumstances or reduced to take account of attenuating circumstances.’

4        According to Section 1A of the Guidelines:

‘In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where
this can be measured, and the size of the relevant geographic market.

Infringements will thus be put into one of three categories: minor infringements, serious infringements and very serious infringements.

...

It will also be necessary to take account of the effective economic capacity of offenders to cause significant damage to other
operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect.

...

Where an infringement involves several undertakings (e.g. cartels), it might be necessary in some cases to apply weightings
to the amounts determined within each of the three categories in order to take account of the specific weight and, therefore,
the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity
between the sizes of the undertakings committing infringements of the same type.

...’

5        Section 2 of the Guidelines, headed ‘Aggravating circumstances’, states:

‘The basic amount will be increased where there are aggravating circumstances such as:

...

–      role of leader in, or instigator of the infringement,

...’

6        Section 3 of the Guidelines, headed ‘Attenuating circumstances’, is worded as follows:

‘The basic amount will be reduced where there are attenuating circumstances such as:

...

–       termination of the infringement as soon as the Commission intervenes (in particular when it carries out checks),

...’

7        Under Section B of the Commission Notice of 18 July 1996 on the non‐imposition or reduction of fines in cartel cases (OJ 1996
C 207, p. 4; ‘the Leniency Notice’), headed ‘Non-imposition of a fine or a very substantial reduction in its amount’:

‘An [undertaking] which:

(a) informs the Commission about a secret cartel before the Commission has undertaken an investigation, ordered by decision,
of the [undertakings] involved, provided that it does not already have sufficient information to establish the existence of
the alleged cartel;

(b)      is the first to adduce decisive evidence of the cartel’s existence;

(c)      puts an end to its involvement in the illegal activity no later than the time at which it discloses the cartel;

(d)      provides the Commission with all the relevant information and all the documents and evidence available to it regarding the
cartel and maintains continuous and complete cooperation throughout the investigation;

(e)      has not compelled another [undertaking] to take part in the cartel and has not acted as an instigator or played a determining
role in the illegal activity,

will benefit from a reduction of at least 75% of the fine or even from total exemption from the fine that would have been
imposed if [it] had not cooperated.’

8        Section D of the Leniency Notice, headed ‘Significant reduction in a fine’, provides:

‘1.       Where an [undertaking] cooperates without having met all the conditions set out in Sections B or C, it will benefit from a
reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated.

...’

9        Section E(2) of that notice is worded as follows:

‘Only on its adoption of a decision will the Commission determine whether or not the conditions set out in Sections B, C and
D are met, and thus whether or not to grant any reduction in the fine, or even waive its imposition altogether. It would not
be appropriate to grant such a reduction or waiver before the end of the administrative procedure, as those conditions apply
throughout such period.’

**The facts**

*The cartel*

10      The Commission addressed the contested decision to five undertakings producing citric acid, namely ADM, Cerestar Bioproducts
BV (‘Cerestar’), F. Hoffmann-La Roche AG (‘HLR’), Haarmann & Reimer Corporation (‘H & R’) and Jungbunzlauer AG (‘JBL’).

11      Citric acid is an acidulant and preservative used in food and beverages, household detergents and cleaners, pharmaceuticals
and cosmetics, and in various industrial processes.

12      In August 1995, the Commission was informed of the initiation of an investigation by the United States Department of Justice
regarding the citric acid market in the United States. Having admitted to participating in a cartel, ADM, Cerestar, HLR, H
& R and JBL paid fines pursuant to agreements concluded with that department. In addition, certain individuals were fined.

13      On 6 August 1997 the Commission sent requests for information under Article 11 of Regulation No 17 to the four largest producers
of citric acid in the European Community.

14      Further to a subsequent request sent during July 1998, Cerestar informed the Commission of its intention to cooperate. At
a meeting with Commission representatives of 29 October 1998, Cerestar’s representatives described from memory the cartel
activities in which the five undertakings referred to in paragraph 10 of this judgment had participated (‘the cartel’) and
certain mechanisms by which that cartel operated. In addition, that undertaking drew attention to the role played by ADM during
certain multilateral meetings of those undertakings. Cerestar confirmed that testimony in a written statement of 25 March
1999 (‘Cerestar’s statement’).

15      On 11 December 1998, ADM’s representatives described during a meeting with Commission representatives the anti‐competitive
activities in which that company had participated in the context of the cartel. That company confirmed that account by letter
of 15 January 1999 (‘ADM’s statement’).

16      On the basis of the information communicated by the five undertakings in reply to the Commission’s additional requests for
information, the Commission sent them a statement of objections dated 29 March 2000 (‘the statement of objections’), in which
it alleged that they had infringed Article 81(1)(EC) and Article 53(1) of the Agreement on the European Economic Area of 2
May 1992 (OJ 1994, L 1, p. 3), from March 1991 until May 1995 in the case of four of them, including ADM, and from May 1992
until May 1995 as regards Cerestar, by participating in a secret cartel on the citric acid market. The Commission complained,
in particular, that they had allocated specific sales quotas in respect of each undertaking and had adhered to those quotas,
had fixed target and/or floor prices, eliminated discounts and exchanged specific customer information. None of those parties
requested an oral hearing, nor did they substantially contest the facts as set out in the statement of objections. They merely
replied in writing to the allegations made in the statement of objections.

*The statement of objections*

17      In Section C of Part I of the statement of objections, the Commission set out the facts to which its objections related. At
point 50 of that statement, it listed the five principal items of documentary evidence on which it based its factual findings;
those items were appended to that statement along with six other documents, amongst them a report of the statements made by
an ADM representative at the meeting of 11 December 1998 with Commission representatives, namely ADM’s statement, the report
of 5 November 1996 of the statements made by a former ADM representative before representatives of the United States Department
of Justice and Federal Bureau of Investigation (FBI) agents during the antitrust proceedings carried out by the United States
authorities (‘the FBI report’), and Cerestar’s statement.

18      Moreover, it was stated in points 161 and 162 of the statement of objections that, in assessing the gravity of the infringement,
the Commission would take into account the facts as described and assessed in Section C and that, in assessing the fine to
be imposed on each undertaking, it would take account, inter alia, of the role played by each in the collusive agreements
as described in Part I of that statement.

19      Lastly, points 57 and 58 of that statement referred to the bilateral meetings held in January 1991 between ADM and JBL, HLR
and H & R respectively with a view to implementing the cartel.

 ADM’s statement

20      ADM’s statement contains a detailed description with figures of the cartel arrangements, and more specifically of the decisions
adopted by the undertakings in question at the meetings held by them from March 1991 until May 1995.

 The FBI Report

21      The FBI Report contains the detailed description given by a former ADM representative of the cartel arrangements and, in particular,
of the information on the meetings between the undertakings in question. That report mentions, inter alia, that meetings attended
by representatives of each undertaking participating in the cartel were organised, including ‘Masters’ meetings attended by
the highest level of those representatives, and concerned the direction and arrangements of the cartel, whereas ‘Sherpa’ meetings
were attended by representatives responsible for the practical implementation of those arrangements. Also according to that
report, it appeared to the individual questioned that another former ADM representative, called the ‘The Wise Old Man’, who
participated in both types of those meetings, had had the idea of the cartel arrangement known as the ‘G-4/5 arrangement’
and had had a fairly active role in the implementation of that arrangement.

 Cerestar’s statement

22      Cerestar’s statement contains a concise description of the multilateral meetings between the representatives of the undertakings
in question and the decisions adopted at those meetings. It states that it appeared to the Cerestar representative that the
ADM representative played a leading role in those meetings.

*The contested decision*

23      According to the first paragraph of Article 1 of the contested decision, the five undertakings to which that decision was
addressed ‘have infringed Article 81(1) of the Treaty ... by participating in a continuing agreement and/or concerted practice
in the sector of citric acid’.

24      The second paragraph of Article 1 of that decision states that the infringement lasted from March 1991 until May 1995 in the
case of ADM, HLR, H & R and JBL, and from May 1992 until May 1995 in the case of Cerestar.

25      Article 3 of that decision is worded as follows:

‘For the infringement referred to in Article 1, the following fines are imposed:

(a)       [ADM]:          EUR 39.69 million

(b)      [Cerestar]:  EUR 170 000

(c)      [HLR]:          EUR 63.5 million

(d)      [H & R]: EUR 14.22 million

(e)      [JBL]:          EUR 17.64 million

26      In the contested decision, in order to set the fines, the Commission applied the methods set out in the Guidelines and in
the Leniency Notice.

27      In the first place, the Commission determined the basic amount of the fine by reference to the gravity and duration of the
infringement.

28      As regards the gravity of the infringement, first, the Commission, in recital 230 of the contested decision, described the
infringement as very serious, taking into account its nature, its actual impact on the citric acid market in the European
Economic Area and the geographical extent of the market concerned.

29      Next, the Commission considered, at recital 233 of that decision, 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 worldwide turnover of the undertakings concerned from
the sale of citric acid in 1995, the last year of the infringement, the Commission divided them into three categories. It
placed H & R, with a worldwide market share of 22%, in the first category, ADM and JBL, with market shares of [confidential],
and HLR, with a market share of 9%, in the second category, and Cerestar, with a worldwide market share of 2.5%, in the third
category. On this basis the starting amounts fixed by the Commission were EUR 35 million for the undertaking in the first
category, EUR 21 million for those in the second and EUR 3.5 million for that in the third category.

30      In addition, those basic amounts were adjusted to ensure that the fine had a sufficient deterrent effect. To that effect,
taking account of the size and the worldwide resources of the undertakings concerned, as expressed by their total worldwide
turnover, the Commission applied a multiplier of 2 to the starting amounts for ADM and HLR, and of 2.5 to the starting amount
for H & R.

31      Moreover, it is apparent from recitals 249 and 250 of the contested decision that, in order to take account of the duration
of the infringement committed by each undertaking, the resulting amounts were increased by 10% per year of participation in
the cartel, giving an increase of 40% as regards ADM, HLR, H & R and JBL, and 30% as regards Cerestar.

32      Accordingly, at recital 254 of the contested decision, the Commission set the basic amounts of the fines at EUR 58.8 million
for ADM, while those for Cerestar, HLR, H & R and JBL were set at EUR 4.55 million, EUR 58.8 million, EUR 122.5 million and
EUR 29.4 million respectively.

33      In the second place, as is apparent from recital 273 of the contested decision, the basic amounts for ADM and HLR were increased
by 35% on account of aggravating factors, on the ground that they had acted as leaders of the cartel.

34      In particular, the Commission found, at recitals 263 and 264 of that decision, that the bilateral meetings between ADM and
three other undertakings participating in the cartel were evidence that ADM had had an instigator role in the cartel, adding
that other elements contributed to showing that ADM had acted as a leader of the cartel.

35      In this respect, at recitals 265 and 266 of the contested decision, the Commission referred to certain facts taken from the
FBI Report and Cerestar’s statement.

36      In the third place, at recitals 274 to 291 of the Decision, the Commission examined and rejected the requests of certain undertakings
to benefit from attenuating circumstances.

37      In the fourth place, pursuant to Article 15(2) of Regulation No 17, the Commission, at recital 293 of the contested decision,
adjusted the resulting amounts for Cerestar and H & R so that they did not exceed the 10% limit of their total annual worldwide
turnover.

38      Lastly, in the fifth place, the Commission granted the undertakings in question a reduction of their respective fines under
the Leniency Notice.

39      Thus, it is apparent from recitals 305 and 310 of the contested decision that Cerestar obtained, under Section B of the Leniency
Notice, a ‘very substantial’ reduction, namely 90% of the fine which would have been imposed if it had not cooperated, on
the ground that it was the first undertaking to provide the Commission with decisive evidence of the cartel’s existence.

40      Consequently, at recital 306 of the contested decision, the Commission rejected ADM’s arguments that it should be regarded
as the undertaking which was the first to adduce that evidence and, under Section D of the Leniency Notice, granted it only
a ‘significant’ reduction, namely 50% of the fine which would have been imposed if it had not cooperated.

41      In addition, JBL, H & R and HLR obtained a reduction of the fines which would have been imposed if they had not cooperated
of 40%, 30% and 20% respectively.

**The procedure before the Court of First Instance and the judgment under appeal**

42      On 28 February 2002 ADM brought an action before the Court of First Instance against the contested decision.

43      In that action, ADM sought the annulment of Article 1 of the contested decision in so far as it finds that it agreed to restrict
capacity in the citric acid market and to designate a producer who was to lead price increases in each national segment of
the said market, the annulment of Article 3 of that decision in so far as it pertains to ADM and, in the alternative, the
reduction of the fine imposed on it.

44      In support of that action, ADM submitted various pleas in law relating to the amount of its fine and directed, inter alia,
against the assessment of the gravity of the infringement, its classification as a leader of the cartel, the assessment of
attenuating circumstances and of the cooperation which it provided during the administrative procedure.

45      In the first place, as regards the gravity of the infringement, ADM claimed that, when assessing the actual impact of the
cartel, the Commission erred in its definition of the relevant market, in that it did not define that market beforehand and
therefore failed to take account of citric acid substitutes in that definition.

46      After finding, at paragraph 201 of the judgment under appeal, that ADM had failed to demonstrate that the impact of the citric
acid cartel on the wider market to which it referred was non‐existent or at least negligible, the Court of First Instance
rejected that plea.

47      In the second place, as regards the classification as a leader of the cartel, ADM complained that the Commission erred in
its assessment of the evidence taken into account in arriving at such a classification. First, the appellant claimed that
the Commission had made use of a document compiled by the authorities of a non‐Member State, namely the FBI Report, in breach
of its procedural safeguards, in so far as, in particular, it had not been afforded an opportunity to comment on the validity
of that document. Second, it submitted that the Commission had infringed its rights of defence because it had not mentioned
in the statement of objections either ADM’s classification as a leader of the cartel or the evidence taken from the FBI Report
and Cerestar’s statement to prove that role of leader.

48      The Court of First Instance pointed out at paragraph 215 of the judgment under appeal that the Commission had relied on three
elements in arriving at such a classification, namely the bilateral meetings, the FBI Report and Cerestar’s statement.

49      As regards the bilateral meetings, the Court of First Instance held, at paragraph 226 of the judgment under appeal, that the
Commission had not committed a manifest error of assessment in finding that it was evidence in addition to the two other elements,
namely the FBI Report and Cerestar’s statement, proving that ADM had acted as a leader in the cartel.

50      Regarding the FBI Report, the Court of First Instance found, at paragraph 268 of the judgment under appeal, that by annexing
that report to the statement of objections the Commission had enabled ADM to comment on its validity, in particular as regards
any procedural irregularities which would result from the fact that the report had been taken into consideration. Having found
that ADM had not challenged that report at any stage of the administrative procedure, the Court of First Instance held at
paragraph 270 of that judgment that the Commission had not infringed the appellant’s procedural rights.

51      The Court of First Instance found, at paragraph 290 of the judgment under appeal, that the content of Cerestar’s statement
is consistent with that of the FBI Report, so that the Commission had not committed a manifest error of assessment by attaching
greater evidential value to that statement than to other evidence put forward by the appellant in its attempt to show that
it had not taken on the role of a leader of the cartel.

52      Moreover, the Court of First Instance held, at paragraphs 436 to 439 of the judgment under appeal, that the statement of objections
sent to the undertakings in question contained the principal elements of fact and of law that could justify the fine that
the Commission planned to impose on them. First, there was no obligation on the Commission, at that stage of the procedure,
to inform ADM that it would be classified as a leader of the cartel. Second, since it is common ground that the FBI Report
and Cerestar’s statement had been annexed to that statement, the Court held that ADM could not properly claim infringement
of its rights of the defence, even if the Commission had not expressly stated in the part of that statement relating to the
facts that it might regard ADM as a leader of the cartel or set out the factors that it would take into account in concluding
that it had such a role.

53      The Court of First Instance therefore rejected ADM’s plea relating to its classification as a leader of the cartel.

54      In the third place, ADM claimed that the Commission had wrongly denied it the benefit of the attenuating circumstance provided
for in the third indent of Section 3 of the Guidelines, even though it had terminated the infringement as soon as the United
States antitrust authorities intervened.

55      The Court of First Instance, in paragraphs 335 and 336 of the judgment under appeal, interpreted the third indent of Section
3 of the Guidelines, and concluded, in paragraph 338 of that judgment, that the benefit of that attenuating circumstance cannot
be granted automatically, but depends on the particular circumstances of the specific case. According to the Court of the
First Instance, the secret nature of the cartel at issue shows that the undertakings concerned committed the alleged infringement
intentionally, so that, in accordance with its case‐law, the fact that such an infringement was terminated cannot be regarded
as an attenuating circumstance where it was terminated as a result of the Commission’s intervention. Consequently, the Court
of First Instance rejected ADM’s plea relating to the failure to take that factor into account as an attenuating circumstance.

56      In the fourth place, ADM complained that the Commission did not grant it a ‘very substantial reduction’, within the meaning
of Section B of the Leniency Notice, in the fine which would have had to be imposed if it had not cooperated, even though
it had been the first undertaking to provide the Commission with decisive evidence of the cartel’s existence.

57      The Court of First Instance also rejected that plea, holding at paragraphs 377 and 378 of the judgment under appeal that the
Commission had been right to rule out the benefit of a ‘very substantial’ reduction in the fine in the light of ADM’s role
of a leader in the cartel.

58      Lastly, as to the remainder, the Court of First Instance upheld ADM’s plea that the Commission had unlawfully taken into consideration,
at recital 158 of the contested decision, certain factors which had not been mentioned in the statement of objections. Accordingly,
it annulled Article 1 of that decision in so far as, read in conjunction with recital 158, it finds that ADM froze, restricted
and closed down citric acid production capacity and designated the producer who was to lead price increases in each national
segment of the relevant market. However, considering that those factors were superfluous in view of the essential characteristics
of the cartel, the Court of First Instance held that it was not necessary to modify the amount of the fine as set by the Commission
in the case of ADM. Finally, it ordered ADM to pay all the costs with the exception of one tenth of its own costs, which was
to be paid by the Commission.

**Forms of order sought**

59      ADM claims that the Court should:

–        set aside the judgment under appeal in so far as the Court of First Instance dismissed the action for annulment of the contested
decision;

–        annul Article 3 of the contested decision so far as it pertains to it;

–        in the alternative, modify Article 3 by cancelling or reducing the fine imposed on ADM;

–        in the further alternative, refer the case back to the Court of First Instance for judgment in accordance with the judgment
of the Court of Justice;

–        in any event, order the Commission to pay its own costs and ADM’s costs relating to the proceedings before the Court of First
Instance and before the Court of Justice.

60      The Commission contends that the Court should:

–        dismiss the appeal, and

–        order ADM to pay the costs.

**The appeal**

61      The appellant puts forward nine pleas in law in support of its appeal:

–        in the case of the first five pleas, various errors of law by the Court of First Instance in relation to ADM’s classification
as a leader of the cartel;

–        in the case of the sixth plea, an error of law by the Court of First Instance as regards the refusal to grant ADM the benefit
of attenuating circumstances relating to the termination of its participation in the cartel;

–        in the case of the seventh and eighth pleas, infringement of the principle of the protection of legitimate expectations and
an error of law by the Court of First Instance as regards the application of the rules laid down in the Leniency Notice, and

–        as regards the ninth plea, infringement of the principle that the Commission must follow self-imposed rules concerning the
definition of the relevant market when assessing the gravity of the infringement.

*First plea: error of law as regards the assessment of observance of ADM’s rights of defence in relation to its classification
as a leader*

 Arguments of the parties

62      By this plea, which is subdivided into two parts, ADM claims infringement by the Court of First Instance of its rights of
defence.

63      In the first part, the appellant criticises the Court of First Instance for finding, at paragraphs 437 and 438 of the judgment
under appeal, that the Commission had indicated in the statement of objections the principal elements of fact material to
the gravity of its conduct, even though no mention was made in that statement of the fact that it might be considered a leader
of the cartel. Leadership is a principal element of fact which must be set out in the statement of objections, failing which
the rights of defence of the undertaking concerned are infringed.

64      In the second part, ADM claims that the Commission gave it no warning, in the statement of objections, of the facts that would
be taken into account in the contested decision to find that it acted as a leader. The mere presence, in an annex to that
statement, of the documents from which those facts are apparent was not sufficient to ensure observance of the appellant’s
rights of defence.

65      The Commission takes the view that this plea is unfounded. As regards the first part, by mentioning, at point 158 of the statement
of objections, that it would take account of the role played by each undertaking participating in the infringement on an individual
basis when assessing the gravity of the infringement, it fulfilled, as the Court of First Instance held, the requirements
of the case‐law to which the appellant itself drew attention.

66      The second part is ineffective, the Court of First Instance having moreover held that the Commission was not required to set
out in the statement of objections the facts which would lead it to classify the appellant as a leader of the cartel. In any
event, that part is unfounded, since those facts were known to the appellant, given that they were apparent from the documents
annexed to that statement. In addition, various points of that statement explicitly referred to the appellant. Consequently,
the appellant was afforded an opportunity to raise its objections to the documents used to prove its leadership role at the
stage of the administrative procedure, and its rights of defence were not therefore infringed.

 Findings of the Court

–       The first part of the first plea

67      It is apparent from the findings set out in paragraph 437 of the judgment under appeal that, in the statement of objections
sent to ADM, the Commission classified the infringement alleged against the undertakings in question as very serious and stated
its intention to set the fines at a level of sufficient deterrence. In that respect, it is also clear from points 158, 161
and 162 of that statement that the Commission would take account of the role played individually by each undertaking which
participated in the infringement.

68      In accordance with the Court of Justice’s settled case-law, referred to by the Court of First Instance in paragraph 434 of
the judgment under appeal, provided that the Commission indicates expressly in the statement of objections that it will consider
whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact
and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that
it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard.
In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement
but also against the fact of being fined (see to that effect, Joined Cases C‐189/02 P, C‐202/02 P, C‐205/02 P to C‐208/02 P
and C‐213/02 P *Dansk Rørindustri and Others* v *Commission* [2005] ECR I‐5425, paragraph 428 and Joined Cases C‐101/07 P and C‐110/07 P *Coop de France Bétail and Viande* v *Commission* [2008] ECR I‐0000, paragraph 49).

69      Moreover, it is apparent from the case‐law that to oblige the Commission to give to undertakings under investigation specific
indications of the level of the contemplated fines at the stage of the statement of objections would in effect require it
inappropriately to anticipate its final decision (see, to that effect, Joined Cases 100/80 to 103/80 *Musique Diffusion française and Others* v *Commission* [1983] ECR 1825, paragraph 21).

70      In this respect, classification as leader of a cartel has significant consequences regarding the amount of the fine to be
imposed on an undertaking described as such. Thus, under Section 2 of the Guidelines, it constitutes an aggravating circumstance
which leads to a significant increase in the basic amount of the fine. Similarly, under Section B(e) of the Leniency Notice,
such a classification automatically excludes the granting of a very substantial reduction of the fine, even if an undertaking
classified as a leader fulfils all the conditions set out in that provision to qualify for such a reduction.

71      Accordingly, it is for the Commission to set out in the statement of objections the evidence which it considers relevant to
enable an undertaking under investigation which may be classified as a leader of the cartel to respond to such an objection.
However, in light of the fact that that statement remains a step in the adoption of the final decision and does not therefore
constitute the Commission’s definitive position, the Commission cannot be required, already at that stage, to carry out a
legal classification of the evidence on which it relies in its final decision in classifying an undertaking as leader of the
cartel.

72      It follows that the Court of First Instance cannot be accused of committing an error of law by holding that the Commission
was entitled not to indicate in the statement of objections that it might classify ADM as a leader.

73      Consequently, the first part of the first plea must be rejected as unfounded.

–       The second part of the first plea

74      In this part, ADM submits that, by holding at paragraph 439 of the judgment under appeal that it had been afforded an opportunity
to comment on certain facts used to describe it as a leader in the cartel given that those facts were apparent from documents
annexed to the statement of objections, the Court of First Instance infringed its rights of defence.

75      In order to classify ADM as a leader of the cartel, the Commission relied, at recitals 265 and 266 of the contested decision,
on facts which it took from the FBI Report and Cerestar’s statement.

76      Thus, first, recital 265, citing the FBI Report, states that ‘the mechanics of the G‐4/5 arrangement seemed to be [the ADM
representative]’s idea, and at the 6 March, 1991 meeting in Basel, where the [citric acid] arrangement was formulated, [that
representative] took a fairly active role’ and, further, that that representative ‘was viewed as “The Wise Old Man”, and was
even dubbed “the Preacher”’.

77      Second, recital 266 contains an extract from Cerestar’s statement according to which ‘although [the representatives of HLR
and JBL] normally chaired “Masters” meetings, it was [Cerestar’s] clear impression that [the representative of ADM] played
a leading role. [The latter] chaired the “Sherpa” meetings and tended to prepare matters and make the proposals for the price
lists to be agreed’.

78      It should be pointed out at the outset that, contrary to what the Commission submits, the Court Of First Instance did not
assert the principle that the Commission was not required, in the statement of objections, to set out the facts which led
it to classify ADM as a leader. The Court of First Instance expressed itself as follows in the judgment under appeal:

‘438      Observance of the rights of defence of the undertakings concerned does not require the Commission to state more precisely
in the statement of objections the manner in which it will take account, where relevant, of [the principal elements of fact
and law that could justify a fine] when setting the level of the fine. In particular, the Commission was not required to state
either that ADM could be considered to be a ringleader of the cartel or the size of the increase which it might apply to ADM’s
fine for that reason ...

439      ... it should be recalled that the Commission annexed [the FBI Report and Cerestar’s statement] to the statement of objections
and that the parties were therefore able to express a view on this point, including as regards their use as evidence.’

79      Accordingly, the Court of First Instance held that the Commission had observed ADM’s rights of defence, since it had annexed
to the statement of objections the items of evidence from which the facts emerge on which it relied in the contested decision
in order to classify ADM as a leader of the cartel.

80      That stated, and although the Court of First Instance cannot be accused of committing an error of law in holding, at paragraph
438 of the judgment under appeal, that the Commission was not required to state in the statement of objections the manner
in which it would take account of the facts when setting the level of the fine or, in particular, whether it intended, on
the basis of those facts, to classify an undertaking as a leader of the cartel, the Commission was none the less required,
at the very least, to state those facts.

81      However, it must be found that, contrary to what the Commission submits, the facts on which it relied in recitals 265 and
266 of the contested decision, which were taken from the FBI Report and Cerestar’s statement, were not referred to in the
statement of objections.

82      As the Advocate General stated at point 40 of his Opinion, the Court of First Instance did not consider, at paragraph 439
of the judgment under appeal, that the decisive facts had been set out in the statement of objections, but held that the mere
fact that the Commission had annexed to that statement the documents from which those facts are apparent, meant that the appellant
had been afforded an opportunity to comment on the use of those documents as evidence and also on the factual circumstances
described in them.

83      It is therefore necessary to ascertain whether the Court of First Instance erred in law in holding that the Commission had
observed the appellant’s rights of defence by proceeding in this manner.

84      It should be recalled that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance
of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings
in question are administrative proceedings (see, in particular, Case C‐328/05 P *SGL Carbon* v *Commission* [2007] ECR I‐3921, paragraph 70).

85      Observance of the rights of the defence requires, in particular, that the undertaking under investigation has been afforded
the opportunity during the administrative procedure to make known its views on the truth and relevance of the facts alleged
and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (see Joined
Cases 100/80 to 103/80 *Musique Diffusion française and Others* v *Commission* [1983] ECR 1825, paragraph 10; Case C‐407/04 P *Dalmine* v *Commission* [2007] ECR I‐829, paragraph 44; and *SGL Carbon* v *Commission*, paragraph 71).

86      It is, inter alia, the statement of objections that allows the undertakings under investigation to acquaint themselves with
the evidence which the Commission has at its disposal and to render the rights of the defence fully effective (see, to that
effect, Joined Cases C 238/99 P, C‐244/99 P, C‐245/99 P, C‐247/99 P, C‐250/99 P to C‐252/99 P and C‐254/99 P *Limburgse Vinyl Maatschappij and Others* v *Commission* [2002] ECR I‐8375, paragraphs 315 and 316, and also 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 66 and 67).

87      In this regard, that statement must set forth clearly all the essential facts upon which the Commission is relying at that
stage of the procedure (see *Musique Diffusion française and Others* v *Commission*, paragraph 14).

88      Observance of the rights of the defence thus requires that the undertaking concerned must have been afforded the opportunity,
during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged
and on the documents used by the Commission to support its claim that there has been an infringement (see *Dalmine*, paragraph 44).

89      However, it must be stated that, in the circumstances of the present case, the mere fact that the documents containing the
facts used as a basis for classifying ADM as a leader of the cartel were annexed to the statement of objections is not sufficient
to satisfy the abovementioned requirements, since that statement did not enable ADM to dispute those facts and, consequently,
to exercise its rights effectively.

90      It should be noted that the items of evidence which are the source of the facts used as a basis for classifying ADM as a leader
of the cartel in the contested decision necessarily, by their nature, have a subjective aspect, since they consist of testimonies
of persons involved in the infringement procedure initiated by the Commission or other national competition authorities.

91      Thus, the FBI Report is the result of the interview with a former ADM representative who enjoyed immunity in the procedure
conducted by the United States antitrust authorities.

92      The second item of evidence consists of an unsolicited statement by Cerestar, a competitor of ADM on the citric acid market,
which itself participated in the cartel in question.

93      The mere fact that those documents were annexed to the statement of objections did not enable the appellant to assess the
credence which the Commission gave to each of the items of evidence set out in those documents.

94      Accordingly, in the circumstances of the present case, it cannot be considered that the Commission, by merely annexing to
the statement of objections the documents and items of evidence from which it took the facts on which it relied in the contested
decision in order to classify the appellant as a leader in the cartel but without referring to those facts expressly in the
wording itself of that statement, afforded ADM the opportunity to exercise its rights.

95      Consequently, it follows from the foregoing that the Court of First Instance erred in law in holding that the Commission had
not infringed the appellant’s rights of defence in classifying it as a leader of the cartel on the basis of the items of evidence
that it had adduced for that purpose, but which had not been referred to in the statement of objections sent to the appellant.

96      The second part of the first plea must therefore be upheld.

*The second to fifth pleas, alleging errors of law or distortion of evidence in relation to the classification of ADM as a
leader of the cartel*

97      In the light of the response to ADM’s first plea, it is not necessary to consider the second to fifth pleas of the appeal,
which also concern the classification of ADM as a leader of the cartel on the basis of evidence taken from the FBI Report
and Cerestar’s statement.

*The sixth plea: error of law regarding the Court of First Instance’s assessment of the failure to take into account attenuating
circumstances*

 Arguments of the parties

98      ADM submits that, by holding at paragraph 346 of the judgment under appeal that the Commission was not under an obligation
to grant it the benefit of attenuating circumstances provided for by the Guidelines in the event of termination of the cartel,
the Court of First Instance misinterpreted the Guidelines. Contrary to what it held at paragraphs 335 to 340, the granting
of attenuating circumstances cannot be a mere option open to the Commission, which can take account of the secret nature of
the cartel when deciding whether or not to grant the benefit of such circumstances.

99      The Commission submits that the Court of First Instance was correct to hold that ending the infringement does not automatically
imply a reduction of the fine. The Commission has in that regard a discretion in relation to, inter alia, the conduct of the
undertaking in question. In the present case, ADM did not make any critical contribution to the administrative procedure and
so could not have the benefit of attenuating circumstances.

 Findings of the Court

100    It must be recalled that, under Section 3 of the Guidelines, the basic amount of the fine set by the Commission is to be reduced
when, for example, the undertaking which is the subject of the complaint terminates the infringement as soon as the Commission
intervenes.

101    In that regard, the Court of First Instance held, at paragraph 338 of the judgment under appeal, that that provision should
be interpreted as meaning that solely the particular circumstances of the specific case in which the infringement actually
terminates as soon as the Commission intervenes can warrant that termination being taken into account as an attenuating circumstance.

102    Accordingly, the Court of First Instance rejected the appellant’s argument that termination of the cartel must automatically
imply a reduction of the basic amount of the fine under Section 3 of the Guidelines, and stated, at paragraph 337 of the judgment
under appeal, that the interpretation of that provision advocated by ADM would undermine the effectiveness of Article 81(1)
EC.

103    In so doing, the Court of First Instance did not err in law.

104    It is clear that the grant of such a reduction of the basic amount of the fine is necessarily linked to the circumstances
of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful
agreement.

105    To recognise an attenuating circumstance in situations where an undertaking is party to a manifestly unlawful agreement which
it knew or could not be unaware constituted an infringement could encourage undertakings to continue a secret agreement as
long as possible, in the hope that their conduct would never be discovered, while knowing that if their conduct were discovered
they could expect, by then curtailing the infringement, their fine to be reduced. Such a recognition would deprive the fine
imposed of any deterrent effect and would undermine the effectiveness of Article 81(1) EC (see Case C‐510/06 P *Archer Daniels Midland* v *Commission* [2009] ECR I‐0000, paragraph 149).

106    Consequently, the Court of First Instance was correct to rule that, in the circumstances which it established, the appellant
could not claim that the Commission was obliged to grant it the benefit of a reduction of the basic amount of the fine on
the ground that it had ended its unlawful conduct as soon as the United States antitrust authorities intervened.

107    The sixth plea must therefore be rejected as unfounded.

*The seventh plea: error of law in the application of Section B of the Leniency Notice*

 Arguments of the parties

108    Taking the view that it was wrongly classified as a leader, ADM criticises the Court of First Instance for not upholding its
plea that it should have benefited from the application of Section B of the Leniency Notice.

109    According to the Commission, that plea is a repetition of the first plea on appeal and must therefore be declared inadmissible.

 Findings of the Court

110    As was held at paragraph 95 of this judgment, the Court of First Instance was wrong to hold that the Commission had been entitled,
without infringing ADM’s rights of defence, to use the facts emanating from the FBI Report and Cerestar’s statement in order
to classify ADM as a leader of the cartel, even though those facts had not been referred to in the statement of objections.

111    Since the Court of First Instance held, at paragraphs 225 and 226 of the judgment under appeal, that, apart from the abovementioned
items of evidence, the fact that bilateral meetings took place amounted only to circumstantial evidence and did not of itself
lead to the conclusion that the appellant had acted as a leader, it follows that the Court was wrong to uphold the classification
of ADM as a leader of the cartel.

112    Consequently, since the appellant was not classified lawfully as a leader of the cartel, the Court of First Instance could
not, without erring in law, rule out the application of Section B of the Leniency Notice on the grounds that ADM had had a
leadership role in the cartel.

113    Accordingly, this plea must be upheld.

*The eighth plea: infringement of the principle of the protection of legitimate expectations*

 Arguments of the parties

114    According to ADM, the findings made by the Court of First Instance in paragraphs 386 to 391 of the judgment under appeal should
have led it to conclude that the Commission had created a legitimate expectation on the part of ADM that its fine would be
reduced under Section B of the Leniency Notice. In this regard, the appellant submits that the stage of the procedure at which
the cooperation takes place is not relevant as regards the creation of such expectations, contrary to what the Court of First
Instance held in paragraph 394 of the judgment under appeal. It refers in this respect to Case C‐182/03 *Belgium and Forum 187* v *Commission* [2006] ECR I‐5479, paragraphs 147 to 167).

115    The Commission submits that, since it is not objectively in a position to define precisely the role of each member of a cartel
before the administrative procedure is completed, ADM could not properly entertain any hopes that a ‘very substantial’ reduction,
within the meaning of Section B of the Leniency Notice, in its fine might be applied.

 Findings of the Court

116    First, as the Advocate General pointed out in point 208 of his Opinion, it must be noted that, by this plea, ADM seeks to
obtain, at the appeal stage, a review of the facts assessed by the Court of First Instance, in respect of which the Court
of Justice has no jurisdiction except in cases of distortion of evidence.

117    In this instance, on the basis of the evidence examined in paragraphs 386 to 391 of the judgment under appeal, the Court of
First Instance was reasonably entitled to infer that the Commission intended to encourage the appellant to cooperate but did
not give it any precise assurances that it would benefit from a reduction under Section B of the Leniency Notice of the fine
which would be imposed on it.

118    Second, under Section E of that notice, it is only on its adoption of the final decision that the Commission determines whether
or not the conditions set out in Sections B, C and D of that notice are met. Accordingly, the Court of First Instance did
not err in law in holding that the Commission could not give the appellant any precise assurance that any reduction of fine
would be granted in the phase of the procedure prior to the adoption of the final decision.

119    Accordingly, the eighth plea must be rejected as in part inadmissible and in part unfounded.

*The ninth plea: infringement of the principle that the Commission must follow self-imposed rules*

 Arguments of the parties

120    ADM criticises the Court of First Instance for not finding that the Commission had failed – wrongly – to define the relevant
market when assessing the impact of the cartel, even though that is an essential precondition for a finding that the cartel
had an adverse effect on the market. If the Commission had defined that market, it would have had to take account of citric
acid substitutes and found, in the light of the evidence put forward by the appellant, that the cartel had no impact on the
prices charged in the citric acid sector.

121    The Commission claims, first, that that plea is inadmissible, since the appellant is in fact asking the Court of Justice to
examine the assessment of the evidence that it adduced. Second, ADM’s approach is based on a misunderstanding of the objective
pursued by the definition of the relevant market. In this instance, it is necessary to draw a distinction between whether
there has been an infringement of Article 81 EC, which requires the relevant market to be defined, and the assessment of the
gravity of the infringement.

 Findings of the Court

122    It should be noted at the outset that the Guidelines provide that the actual impact of the infringement on the market is a
factor which must be taken into account in assessing the gravity of the infringement when setting the amount of the fine.

123    At paragraph 198 of the judgment under appeal, the Court of First Instance stated that the Commission confined itself to the
citric acid market when determining the actual impact of the cartel. In so doing, it did not take account of the wider market
that the appellant advocated be taken into consideration, encompassing the citric acid substitutes that the appellant identified.

124    Thus, the Court of First Instance referred, in paragraphs 152 to 156 and 180 to 193 of the judgment under appeal, to the analysis
carried out by the Commission in the contested decision which led the Commission to find that there had been a change in citric
acid prices in parallel with the establishment of the cartel, a finding which was not disputed by ADM.

125    In this respect, first, although the actual impact of the infringement on the market is a factor to take into consideration
when assessing the gravity of that infringement, it is one criterion among others, namely the nature of the infringement and
the size of the geographic market. Similarly, the Guidelines state that that actual impact on the market is to be taken into
account only where this can be measured.

126    Second, as the Advocate General pointed out at points 200 and 201 of his Opinion, the appellant did not dispute that, at least
on a part of the market, the cartel had had effects on citric acid prices.

127    In those circumstances, the Court of First Instance was right to hold at paragraphs 200 and 201 of the judgment under appeal
that the appellant’s arguments could not succeed, since it had failed to demonstrate that the Commission would have had to
find that the cartel had had no impact if it had defined the relevant market in the manner advocated by the appellant.

128    In so doing, contrary to what ADM submits, the Court of First Instance held merely that the evidence adduced by ADM was not
sufficient to rebut the Commission’s analysis, and it did not reverse the burden of proof.

129    Accordingly, the ninth plea must be rejected as unfounded.

130    In the light of all the foregoing considerations, the judgment under appeal should be set aside in so far as it rejects the
appellant’s pleas in support of its action for annulment of the contested decision inasmuch as that decision classifies ADM
as a leader of the cartel and, on that ground, increases the basic amount of its fine and refuses to apply Section B of the
Leniency Notice to the appellant.

**The action before the Court of First Instance**

131    In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice, if the
decision of the Court of First Instance is set aside the Court of Justice may give final judgment in the matter where the
state of the proceedings so permits. That is the case here.

*The plea alleging incorrect classification as leader of the cartel*

132    The plea in support of the action against the contested decision on which the Court of First Instance incorrectly adjudicated
is part of the appellant’s challenge to its classification as a leader of the cartel and to the application, on that ground,
of an increase of 35% in the basic amount of its fine.

133    Since it is clear from paragraph 94 of this judgment that the Commission did not afford ADM an opportunity to exercise its
rights with respect to the evidence emanating from the FBI Report and Cerestar’s statement that it used in the contested decision
to classify the appellant as a leader of the cartel, it is necessary to ascertain whether, in addition to that evidence, the
Commission submitted evidence making it possible to arrive at such a classification.

134    In this respect, it is apparent from recitals 263 and 264 of the contested decision and from points 56 to 58 of the statement
of objections that the Commission also referred to the fact that a round of bilateral meetings took place between ADM and
HLR, H & R and JBL respectively during January 1991 in order to initiate or develop the cartel.

135    However, at recital 264 of the contested decision, the Commission added that ‘the fact that a round of bilateral meetings
took place between ADM and its competitors shortly before the first multilateral cartel meeting is not sufficient to show
that ADM was the instigator of the cartel, even though it strongly suggests that this was the case’. At recitals 265 and 266
of that decision, the Commission then referred to specific evidence taken from the FBI Report and Cerestar’s statement.

136    As is apparent from paragraphs 94 and 95 of this judgment, the Commission could not, without infringing ADM’s rights of defence,
rely on the decisive evidence used in recitals 265 and 266 of the contested decision to classify ADM as a leader of the cartel,
when that evidence had not been mentioned in the statement of objections.

137    Consequently, since the existence of the round of bilateral meetings referred to in recitals 263 and 264 of that decision
is not, of itself, sufficient to classify ADM as a leader of the cartel, the Commission has failed to prove that that classification
is well founded and was not therefore entitled to apply to the basic amount of the fine imposed on the appellant an increase
of 35% on account of the aggravating circumstance stemming from that classification.

138    The Court of Justice therefore upholds this plea.

*The plea alleging misapplication of Section B(b) of the Leniency Notice*

 The contested decision

139    On the basis of the findings in recital 305 of the contested decision, the Commission, under Section B of the Leniency Notice,
allowed Cerestar a ‘very substantial reduction’, namely 90%, of the fine which would have been imposed if it had not cooperated.
The Commission found in that recital that Cerestar had been the first to adduce decisive evidence of the cartel’s existence
at a meeting with the Commission on 29 October 1998. In the following recital, it went on to state that the ‘information provided
by [Cerestar] at the meeting of 29 October 1998, which corresponds to the information provided later in the written statement
of 25 March 1999, was sufficient to establish the existence of the cartel and was communicated to the Commission before ADM
provided such information’. Accordingly, at recital 308 of that decision, the Commission rejected ADM’s argument that it fulfilled
the conditions laid down in Section B in order to qualify for a ‘very substantial reduction’ of the fine.

 Arguments of the parties

140    In support of its action before the Court of First Instance, ADM submitted that the Commission had misapplied Section B(b)
of the Leniency Notice. It had been ‘the first to adduce decisive evidence of the cartel’s existence’, within the meaning
of that provision, at the meeting of 11 December 1998, since the evidence adduced by Cerestar at the meeting of 29 October
1998 was not ‘decisive’ within the meaning of that provision.

141    First, Cerestar provided no information on the cartel in respect of the period prior to 12 May 1992, the date when Cerestar
first became involved in it. The Commission’s knowledge of the cartel in respect of that period therefore resulted only from
information first provided by ADM.

142    Second, Cerestar’s statement, which is consistent with the information communicated orally at the meeting of 29 October 1998,
was inconclusive and inaccurate regarding the dates of meetings and members of the cartel. Cerestar thus specified 32 meetings
on various dates between 14 November 1991, that is before its participation in the cartel, and 17 July 1996, that is to say
well after the cartel was disbanded. Cerestar states that 9 of them were definitely meetings of the cartel, 8 were ‘possible’
cartel meetings, whereas the 15 others were not or ‘increasingly unlikely to be’ cartel meetings. The identity of the participants
was given for 3 of the 17 meetings described as ‘definite’ or ‘possible’ cartel meetings. Six of the meetings described as
cartel meetings did not in fact take place at all, according to the evidence of the other undertakings concerned and the Commission’s
findings.

143    Third, Cerestar later admitted, in a letter of 7 May 1999 to the Commission, that a number of the meetings identified as cartel
meetings had not taken place.

144    Fourth, Cerestar’s statement is vague and inconclusive as to the object of the meetings. No details were given of agreed prices
or quotas, except those fixed for Cerestar itself.

145    Fifth, it is unclear whether, like ADM, Cerestar provided the Commission with direct testimony. Moreover, Cerestar subsequently
found it necessary to amplify and clarify its oral statement of 29 October 1998.

146    Sixth, the Commission sent a further request for more detailed information to Cerestar itself on 3 March 1999 on the basis
of ADM’s submissions. Cerestar thus had the opportunity to study that request, which referred to specific meeting dates and
places and was based on the evidence adduced by ADM, before sending the Commission its final statement of 25 March 1999.

147    The appellant maintains that its own evidence was, by contrast, decisive. At the meeting of 11 December 1998 it gave the Commission
direct testimony, contemporary documentary evidence from the material time and documents evidencing the context and implementation
of the cartel agreement. ADM’s evidence provided extensive and accurate details of meetings, those present, compensation and
monitoring systems, and cartel prices and quotas.

148    The Commission claims that, as regards the assessment of the ‘decisive’ nature of the evidence adduced within the meaning
of Section B(b) of the Leniency Notice, it is irrelevant that that evidence emanates from an undertaking which did not participate
in the cartel in question throughout its whole duration. It is necessary that that evidence relates to the existence of the
cartel, and not to its duration.

149    Similarly, the incomplete nature of the information communicated to the Commission does not preclude its being considered
decisive.

 Findings of the Court

150    It is necessary to point out at the outset, as the Advocate General did at points 221 and 222 of his Opinion, that the express
wording of Section B(b) of the Leniency Notice does not require that the ‘first’ undertaking has provided all the evidence
demonstrating every detail of the operation of the cartel. Pursuant to that provision, in order to be considered such, it
is sufficient for an undertaking to adduce ‘some’ decisive evidence of the cartel’s existence. Nor does that section require
that the evidence adduced be sufficient in itself in order to draw up the statement of objections or for the adoption of a
final decision establishing the existence of an infringement. However, although the evidence referred to in Section B(b) need
not be sufficient in itself to establish the cartel’s existence, it must none the less be decisive for that purpose. It must
therefore not be simply an indication as to the direction which the Commission’s investigation should take but must be material
which may be used directly as the principal evidence supporting a decision finding an infringement.

151    It should also be pointed out that, in the context of Section B(b), the fact that decisive evidence was provided orally is
of no significance.

152    Lastly, the Commission has a certain discretion in assessing whether an undertaking’s cooperation has been ‘decisive’, within
the meaning of that provision, for a finding that an infringement has existed and has come to an end, so that only a manifestly
excessive use of that discretion can be censured.

153    It is in the light of the foregoing considerations that it is necessary to consider whether, in the present case, the Commission
committed a manifest error of assessment in deciding that Cerestar had been the first to adduce decisive evidence of the cartel’s
existence.

154    The Commission stated in recitals 305 and 306 of the contested decision that Cerestar had been the first the provide it with
decisive evidence of the cartel’s existence at a meeting on 29 October 1998; that undertaking’s statements were confirmed
in writing on 25 March 1999.

155    First, it must be pointed out that ADM cannot contest the decisive nature of the information provided by Cerestar for the
sole reason that the latter only joined the cartel one year after its implementation.

156    As the Commission rightly pointed out, Section B(b) of the Leniency Notice requires that the decisive evidence adduced relates
to the actual existence of the cartel, not to its duration.

157    Moreover, Cerestar’s statement contains information about multilateral meetings which took place before it participated in
the cartel, information which was corroborated by ADM’s statements at the meeting between its and the Commission’s representatives.

158    Second, as regards the actual content of Cerestar’s statement, it should be noted that it describes the cartel arrangements,
namely the price‐fixing system, the allocation of market shares, the information exchange system and the compensation arrangements.
Moreover, that statement contains a list of the various meetings which took place between the undertakings participating in
the cartel.

159    Although it is true that the information in Cerestar’s statement is, in part, of an approximate nature and does not systematically
contain figures regarding the decisions taken during the cartel meetings, the fact remains that the Commission was entitled
to find, without committing a manifest error of assessment, that that material was decisive evidence of the cartel’s existence.

160    The information provided by Cerestar at the meeting of 29 October 1998 enabled the Commission to become aware of the existence
of the cartel in the European citric acid sector, to know its approximate duration, arrangements and the manner in which it
was conducted.

161    Accordingly, although it does not in itself constitute sufficient evidence of all aspects of the infringement, the material
provided by Cerestar is more than an indication as to the direction which the Commission’s investigation should take, since
it could be used directly by the latter as evidence of the cartel’s existence.

162    In this respect, the fact that that information does not emerge from a direct testimony or that it was subsequently supplemented
or clarified is not relevant to the assessment of whether it is decisive.

163    Accordingly, the appellant’s plea that the Commission misapplied Section B(b) of the Leniency Notice must be rejected.

164    It follows from all the foregoing that, pursuant to the first paragraph of Article 61 of the Statute of the Court of Justice,
it is necessary to annul Article 3 of the contested decision in so far as it sets the amount of the fine payable by ADM at
EUR 39.69 million in the light of a 35% increase in the basic amount of its fine on account of its status as a leader in the
cartel and, accordingly, to reduce that fine to EUR 29.4 million.

**Costs**

165    Pursuant to the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court of
Justice itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 69(2) of the Rules
of Procedure, which applies to appeal proceedings by virtue of Article 118, the unsuccessful party is to be ordered to pay
the costs, if they have been applied for in the successful party’s pleadings. Pursuant to Article 69(3) of those rules, if
the parties are each unsuccessful on one or more heads of claim, the Court may order that the costs be shared or that the
parties bear their own costs.

166    Since both parties have been partly unsuccessful in their pleas in the appeal proceedings, the Commission should be ordered
to pay half of the appellant’s costs and the latter should be ordered to pay the Commission’s costs and to bear half of its
own costs.

167    As regards the proceedings before the Court of First Instance, since the judgment under appeal has been set aside in part
and the form of order sought by the appellant at first instance has been upheld in part, the Commission should be ordered
to pay one quarter of the costs of the appellant at first instance and the latter be ordered to pay the Commission’s costs
and to bear three quarters of its own costs.

On those grounds, the Court (First Chamber) hereby:

1.      **Sets aside the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case T‐59/02 *Archer Daniels Midland* v *Commission* inasmuch as it rejects the plea of Archer Daniels Midland Co. relating to the infringement of its rights of defence during
the administrative procedure which led to Commission Decision 2002/742/EC of 5 December 2001 relating to a proceeding pursuant
to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.604 – Citric acid) in so far as the Commission
of the European Communities did not afford it an opportunity to exercise its rights concerning the facts on which it relied
when classifying Archer Daniels Midland Co. as a leader of the cartel;**

2.      **Sets aside the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case T‐59/02 *Archer Daniels Midland* v *Commission* inasmuch as it rejects as ineffective Archer Daniels Midland Co.’s plea relating to the misapplication by the Commission
of the European Communities of Section B(b) of the Commission Notice of 18 July 1996 on the non‐imposition or reduction of
fines in cartel cases;**

3.      **Annuls Article 3 of Decision 2002/742 in so far as it sets the amount of the fine payable by Archer Daniels Midland Co. at
EUR 39.69 million;**

4.      **Sets the amount of the fine payable by Archer Daniels Midland Co. for the infringement found in Article 1 of Decision 2002/742
as annulled in part by the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case
T‐59/02 *Archer Daniels Midland* v *Commission* at EUR 29.4 million;**

5.      **Dismisses the remainder of the appeal;**

6.      **Orders Archer Daniels Midland Co. to bear three quarters of its own costs and to pay those of the Commission of the European
Communities in relation to the proceedings before the Court of First Instance of the European Communities, and to bear half
of its own costs and to pay those of the Commission of the European Communities in relation to the appeal proceedings;**

7.      **Orders the Commission of the European Communities to pay one quarter of the costs of Archer Daniels Midland Co. relating to
the proceedings before the Court of First Instance of the European Communities and to pay half of the costs of Archer Daniels
Midland Co. relating to the appeal proceedings.**

[Signatures]

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[\*](#Footref*) Language of the case: English.