Order — ECLI:EU:T:2004:16
Date: 2004-01-21
Language of the case: French
Court formation: President of the Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Beef and veal;Competition;Agreements, decisions and concerted practices
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures
Procedure: Action for annulment;Application for interim measures - successful
Origin: France

summary’) are the words: ‘Good summing-up, unanimous(.) “agreement” (verbal/tel.) on compliance with the “farmer target prices.”’ 174 In the light of all the foregoing, the Court takes the view, contrary to the applicants, that the handwritten notes concerning the meeting of 29 November 2001 may be interpreted as meaning that the slaughterers’ representatives consented to extending the application of the contested measures. Therefore the applicants must fail in their argument that the documents in question show only that the farmers’ federations wished to continue with those measures only within the framework of their union action, in the absence of and outside an agreement with the slaughterers. This argument is in fact contradicted by the contents of the notes themselves. 175 In addition, as observed in the contested decision (see recital 63), several other documents confirm that the applicants agreed verbally at the meeting of 29 November 2001 to continue the disputed agreement. 176 First, in an interview given on 4 December 2001 by the FNB vice-president, Mr G.H., to Vendée Agricole, available on the FNSEA internet site, he stated: ‘last week, we pointed out the usefulness of this price scale in stopping the downward spiral of prices. The undertakings recognise its impact, but at the same time want to comply with the recommendations issued by Brussels. Henceforth, we will no longer speak of an inter-trade agreement on a price scale, but of a target in terms of floor prices. We still insist on the idea of a union price scale!’ The FNB vice-president added: ‘There is nothing in writing on this new “agreement”. Just words. But extremely important in scope. The representatives of the undertakings at national level have also communicated verbally the content of our discussions.’ Finally, referring to several abattoirs in Vendée, he stated: ‘we are asking them if they received instructions (on the prices discussed the previous week) identical to ours from their national structures’. 177 Second, the contested decision refers, in recital 64, to a memo from the Vendée federation of 5 December 2001, which states: ‘the verbal agreement reached at the end of last week by the beef sector is slow in being applied in practice in the field. … The whole sector should communicate on this “agreement” at the beginning of the week’. After a reference to discussions between protesters and a slaughterer, the memo continues: ‘the persons in charge of the abattoir had talks with (the FNICGV president). He confirmed last week’s discussions.’ – Meeting of 5 December 2001 178 With regard to the meeting of 5 December 2001, held on the occasion of national beef day, it is necessary first of all to examine, as the contested decision does in recital 66, an email of 6 December 2001 from a representative of the FRSEA Brittany to the FDSEA presidents of his region. The email, which refers to ‘yesterday’s meeting’, states as follows: ‘On this aspect of the minimum prices, the FNICGV and FNCBV national presidents said that they were aware of the need to maintain market prices and to get their members to see this need. Nevertheless we will have no written agreement on this point and the maintenance of prices will depend on our capacity to exert sufficient pressure in the sector. So I suggest that as from the end of this week you should enter into contact … with the slaughterers in your department so as to check up on their commitment to maintain prices on the existing and updated basis and to alert them to the union action which we will be able to implement as from next week in the event of any failure to comply with this commitment.’ 179 The contested decision goes on to consider, in recital 67, an information bulletin issued by FNPL and sent by fax on 10 December 2001, also referring to national beef day, which ‘confirmed the continuation of the price scale.’ The bulletin reports that ‘the representatives of the slaughterers (FT and LS) took note of the unwritten renewal of the price scale’. 180 Lastly, the contested decision refers, in recitals 68 and 69, to other passages in the handwritten notes of the FNB director, entitled ‘Beef day – 5 December 2001.’ Those notes contain the following extracts: ‘we’re to stop saying “against imports”, and go to restaurants and catering’, ‘a mistake = to have stated suspension of imports in writing, but we have been rapped over the knuckles by Brussels and others in the COPA. Without putting it in writing, let us continue with “target prices” or prices below which we don’t want prices [to fall]’. Likewise, just after the comments attributed to the presidents of the applicant in Case T-217/03 and of FNICGV, the note reads: ‘we can no longer put in writing, but continue’. The president of FNICGV then stated: ‘we will maintain (our commitment) on PAS (special purchase price)’ and ‘message passed to our undertakings … informally, the price scale will continue.’ Lastly, the president of the applicant in Case T-217/03 stated in that connection: ‘yes OK but it must be applied by everyone’. With regard to this last statement, contrary to the submissions of the applicant in Case T-217/03, the words ‘applied by everyone’ do not mean that it is impossible to apply the price scale and do not deprive the statement in question of evidential value. Implementation of the agreement after the end of November 2001 181 In addition, the contested decision contains references to several actions at local level which confirm that the agreement continued to be applied after 30 November 2001 (recitals 92 to 94 of the contested decision). 182 In particular, a memo from the Vendée FDSEA dated 18 December 2001 states that a slaughterer (the Socopa group) agreed, after a blockade of its premises, to apply the minimum price scale for cows until 11 January 2002. 183 The file also contains two copies of a document entitled ‘Agreement of 25 October 2001 (renewed)’ which includes the following words: ‘Signed and deemed applicable by FNSEA, FNB, FNICGV and FNCBV/SICA’. As the applicants point out, these documents are not dated. However, in recital 94 of the contested decision the Commission identified them respectively as a fax of ‘FDSEA 79’ of 13 December 2001 and as a document sent on the same day by the Deux-Sèvres FDSEA to a slaughterer. 184 Lastly, a fax sent by a representative of FDSEA Maine-et-Loire to the director of FNB on 11 December 2001, entitled ‘Checks at Maine-et-Loire abattoirs’, states: ‘no abnormality found – price scale applied – no imports.’ Findings 185 In view of what has been said above, it must be found that, in the contested decision, the Commission proved to the requisite legal standard that the applicants continued to apply the disputed agreement, verbally and in secret, beyond the end of November 2001, in spite of the Commission’s letters of 26 November 2001 informing them that the agreement revealed an infringement of Community competition rules. 186 This finding cannot be undermined by the applicants’ arguments that the secret continuation of the agreement would render it totally ineffective. It must be observed that the file contains several references to the applicants’ wish not to publicise the existence of an undertaking given by the farmers’ representatives and those of the slaughterers after the expiry of the written agreement. However, the Court considers that secrecy did not render the agreement entirely ineffective, particularly as the farmers’ federations continued to call in public for the price scales, but this time in the ostensible form of a union claim, and continued to inform their members of them. Likewise, the file suggests that the slaughterers’ representatives also informed several slaughterers’ undertakings of them verbally (see paragraph 177 above). 187 Furthermore, the Court considers that the continuation of the agreement cannot be denied solely on the basis of FNICGV’s memo of 30 November 2001 stating that ‘the minimum purchase price scale for culled cows concluded on 24 October 2001 has not been and will not be renewed’ and that ‘this is the conclusion reached at the meeting held (yesterday) in Paris in the presence of the signatories of the agreement’. The Court considers that this statement formed part of FNICGV’s public relations strategy, particularly after that federation had been warned by the Commission of the possibility of sanctions by reason of the disputed agreements. In any case, as stated above, documents subsequent to that date show that the president of FNICGV took part in the renewal of the agreement. 188 Lastly, as the Commission proved on the basis of documentary evidence that the agreement was continued, it was not necessary, contrary to the applicants’ claim, to prove its continuation by examining the effects of the agreement on prices during the relevant period. 189 Therefore, the Court finds that the Commission was right to find, in the contested decision, that the duration of the infringement was from 24 October 2001 to 11 January 2002. 190 Consequently, this plea must be dismissed in its entirety. C – Third plea in law: non-application of the exception provided for by Regulation No 26 1. Arguments of the parties 191 The applicants submit that the Commission infringed Regulation No 26 and that there were manifest errors of assessment and errors of law on its part in refusing to grant the disputed agreement derogation from the application of Article 81(1) EC, as provided for by Article 2 of Regulation No 26 in favour of certain activities connected with the production and marketing of agricultural products. They maintain that the agreement in question was necessary for achieving the aims of the common agricultural policy. 192 Thus, the applicants claim that, as recognised by the contested decision, the disputed agreement had the objective of ensuring a fair standard of living for beef farmers. They add that the objective of stabilising markets was also achieved because the agreement set up a price mechanism which contributed to ending the existing disruption and enabled farmers to sell their products at profitable prices and consequently to confront the crisis without disappearing from the market. The agreement did not, however, jeopardise the objectives of increasing productivity and ensuring that supplies reach consumers at reasonable prices, in relation to which the agreement was neutral. 193 The applicants consider that in the present case the Commission ought to have tried to reconcile the various objectives (Case 5/73 Balkan-Import-Export [1973] ECR 1091, paragraph 24, and Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle and Others v Council and Commission [1981] ECR 3211, paragraph 41). Especially because of the exceptional crisis in the beef sector, the Commission ought to have given priority to the objectives of stabilising markets and ensuring a fair standard of living for the agricultural community. Therefore the Commission ought to have found that, to bring all the objectives listed by Article 33(1) EC into balance, it was justified to apply the derogation provided for by Regulation No 26. 194 The applicants in Case T-245/03 criticise the Commission’s argument in recitals 146 and 147 of the contested decision that the fact that the measures adopted were not provided for by Regulation No 1254/1999 was sufficient to preclude application of the derogation provided for by Article 2 of Regulation No 26. The applicant in Case T-217/03, for its part, claims that the Commission manifestly erred in its assessment and also erred in law in finding that the agreement did not fall within the scope of the objectives laid down by the CMO. The applicant submits inter alia that the agreement complied with the objectives stated in recitals 2 and 31 of Regulation No 1254/1999 and with Article 38(1) thereof. 195 Lastly, the applicants claim that the Commission manifestly erred in its assessment and also erred in law in finding that the disputed agreement was disproportionate. In addition, the Commission stated no reasons for that finding and did not explain what measures other than those provided for by the disputed agreement would have stopped the collapse in prices. 196 The Commission submits that the exception provided for by Article 2 of Regulation No 26 must be interpreted and applied restrictively. In the present case, the disputed agreement may appear appropriate, at best, for attaining only one of the five objectives specified by Article 33 EC (ensuring a fair standard of living for the agricultural community) and it has no connection with the other four. In addition, it goes beyond the framework of the CMO in the beef sector and, in any case, appears disproportionate for attaining the desired objectives. In the final analysis, the agreement does not fall within the scope of the derogation in question. 2. Findings of the Court 197 First of all, it must be observed that the maintenance of effective competition in the markets for agricultural products is one of the objectives of the common agricultural policy. Whilst Article 36 EC has conferred on the Council responsibility for determining the extent to which the Community competition rules are applicable to the production of and trade in agricultural products, in order to take account of the particular position of the markets for those products, that provision nevertheless established the principle that the Community competition rules are applicable in the agricultural sector (Case C‑137/00 Milk Marque and National Farmers’ Union [2003] ECR I-7975, paragraphs 57 and 58). 198 By virtue of Article 1 of Regulation No 26, Article 81(1) EC applies to all agreements, decisions and practices referred to in that provision which relate to production of or trade in the agricultural products listed in Annex I to the EC Treaty, including in particular live animals, edible meat and offals, subject to the provisions of Article 2 of the same regulation. The latter provides that Article 81(1) EC does not apply to agreements, decisions and practices which are necessary for the attainment of the objectives of the common agricultural policy set out in Article 33 EC. 199 Constituting as it does a derogation from the general rule in Article 81(1) EC, Article 2 of Regulation No 26 must be interpreted strictly (Case C-399/93 Oude Luttikhuisand Others [1995] ECR I‑4515, paragraph 23, Joined Cases T‑70/92 and T-71/92 Florimex and VGB v Commission [1997] ECR II-693, paragraph 152). Furthermore, it has consistently been held that the first sentence of Article 2(1) of Regulation No 26, which provides for the exception claimed, applies only if the agreement in question is conducive to attainment of all the objectives of Article 33 (Oude Luttikhuisand Others, paragraph 25; Florimex and VGB v Commission, paragraph 153; see also, to that effect, Frubo v Commission, paragraphs 25 to 27). However, the Court has stated that in the event of a conflict between those sometimes divergent objectives, the Commission may try to reconcile them (Florimex and VGB v Commission, paragraph 153). Lastly, as is clear from the very wording of the first sentence of Article 2(1) of Regulation No 26, the agreement in question must be ‘necessary’ for the attainment of those objectives (Oude Luttikhuisand Others, paragraph 25; see also, to that effect, Florimex and VGB v Commission, paragraphs 171 and 185). 200 In accordance with Article 33(1) EC, the objectives of the common agricultural policy are: ‘(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour; (b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilise markets, (d) to ensure the availability of supplies; (e) to ensure that supplies reach consumers at reasonable prices.’ 201 The applicants submit, essentially, that the disputed agreement was necessary for the attainment of two of those objectives, namely to ensure a fair standard of living for the agricultural community and to stabilise markets, and that it was neutral in relation to the remaining three, which therefore it did not adversely affect. 202 As the applicants point out, the main object of the disputed agreement was to assist beef farmers in France in the crisis situation in the beef sector at the material time. Therefore it may be regarded as having the objective of ensuring a fair standard of living for the agricultural community for the purposes of Article 33(1)(b) EC. 203 On the other hand, the Court considers that the agreement of 24 October 2001 did not aim to stabilise markets, as envisaged by Article 33(1)(c) EC; nor could it be deemed necessary for that purpose. As the contested decision states, the crisis in the beef sector in 2000 and 2001 was due to the massive imbalance between supply and demand caused primarily by the sharp drop in consumption owing to the crisis of confidence resulting from the discovery of new cases of ‘mad cow’ disease and foot-and-mouth disease (see recitals 12, 13 and 142 of the contested decision). Consequently, stabilisation of the markets in question required above all measures to reduce the volume of supply, of which there was a considerable surplus, and to promote the consumption of beef, which had fallen considerably. 204 The disputed agreement did not provide for measures in that respect. Furthermore, not only were the minimum prices which it laid down unlikely to help to stabilise the markets, but could even run counter to that objective to the extent that they might entail an increase in prices likely to reduce consumption even more and thus widen the gap between supply and demand. The introduction of a price scale also represented an artificial fixing of prices, contrary to their natural formation in the market and to the government support and intervention arrangements. In addition, the disputed agreement could only be a purely short-tem measure incapable of producing medium or long-term effects. The limitation of beef imports into France inevitably gave rise to a risk of distortion in intra-Community trade in beef and of adverse effects on the stability of the markets in question in a number of Member States. 205 Moreover, an agreement limiting imports of cheaper products and fixing minimum prices cannot be regarded as neutral in relation to the objective of ensuring that supplies reach consumers at reasonable prices, as envisaged in Article 33(1)(e) EC. As the Commission points out in recital 144 of the contested decision, without being contradicted by the applicants, especially in the case of consumption via restaurant and catering services, which are major users of imported meat, the suspension of imports would probably have the effect of raising prices. Furthermore, even if the scale prices were fixed at the slaughterhouse entry stage, they would also be likely to be passed on to consumers. 206 In the light of the foregoing, it must be found that the disputed agreement can be regarded as necessary only in relation to the objective of ensuring a fair standard of living for the agricultural community. On the other hand, the agreement is likely at least to jeopardise the setting of reasonable prices for supplies to consumers. Lastly, the agreement had no connection with, and was therefore all the more unnecessary for, the stabilisation of markets, ensuring the availability of supplies and increasing agricultural productivity. Therefore, in view of the case-law referred to in paragraph 199 above, the Court considers that the Commission did not err in finding that bringing those different objectives into balance did not justify the conclusion that the derogation provided for by the first sentence of Article 2(1) of Regulation No 26 was applicable in the present case. 207 Furthermore, the objections to the finding, in recitals 146 and 147 of the contested decision, that the disputed agreement is not among the means provided for by the CMO rules in the beef sector, including in particular Regulation No 1254/1999, must be rejected. Contrary to the submission of the applicants in Case T‑245/03, the Commission did not find that circumstance sufficient on its own to rule out the applicability of the derogation based on Regulation No 26, but merely took that factor into account – rightly – in support of its finding that the agreement in question was not necessary for the attainment of the objectives of the common agricultural policy (see, to that effect, Florimex and VGB v Commission, paragraphs 148 to 151). Likewise, the applicant in Case T-217/03 must fail in its argument that the agreement complied with the objectives of that regulation. In particular, the provisions listed by the applicant (namely, recitals 2 and 31 of the preamble to and Article 38(1) of that regulation) merely provide for the right of the Community institutions to take measures in the event of disturbance in the market (see Article 43 of that regulation) and in no way justify a private agreement limiting imports and fixing minimum prices. 208 Lastly, regarding the arguments concerning the proportionality of the contested measures, the complaint alleging failure to state reasons must be rejected. In recital 148 of the contested decision the Commission stated reasons to the requisite legal standard for its finding that the fixing of prices and suspension of imports were serious restrictions of competition and could not be regarded as proportionate to the aims of the agreement. Contrary to the applicants’ submissions, the Commission was not required to state what measures the applicants could have taken to make their agreement comply with Article 2 of Regulation No 26. The complaint that, in examining the applicability of the derogation provided for by that provision, the Commission erred in taking into consideration the disproportionate nature of the measures laid down by the agreement, cannot be upheld either. It has consistently been held that, for the purpose of applying that derogation, measures cannot be regarded as necessary for the attainment of the objectives of the common agricultural policy unless they are proportionate (see, to that effect, Florimex and VGB v Commission, paragraph 177). In the present case, even bearing in mind the special nature of the agricultural markets and the crisis in the beef sector during the relevant period, the restriction of imports and the fixing of prices cannot be regarded as measures proportionate to the objectives pursued as they were serious infringements of competition law. 209 It follows that this plea must be dismissed. D – Fourth plea: infringement of the rights of the defence 3. Arguments of the parties 210 The applicants submit that the statement of objections, which constitutes an application of the fundamental principle of observance of the rights of the defence, must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of, so as to enable them properly to defend themselves before the Commission adopts a final decision (Case T‑352/94 Mo och Domsjö v Commission [1998] ECR II‑1989, paragraph 63). 211 In the present case, first, the applicants complain that in the statement of objections the Commission did not mention that, in order to determine the amount of the fine of the federations other than FNSEA, it would take into account the annual fees paid by their members. Second, the applicants submit that in the statement of objections the Commission did not indicate in any way that it would calculate the fines by reference to the turnover of the members directly or indirectly belonging to them. The Commission thus failed to inform the applicants of the matters of fact and of law on which the contested decision was based, including the main factors for calculating the fine, and therefore the applicants were unable to submit their observations on the point. 212 The applicants observe that the Court of Justice has held that a statement of objections which merely identifies as the perpetrator of an infringement a collective entity does not make the companies forming that entity sufficiently aware that fines will be imposed on them individually if the infringement is made out and is not sufficient to warn the companies concerned that the amount of the fines imposed will be fixed in accordance with an assessment of the participation of each company in the conduct constituting the alleged infringement (Joined Cases C-395/96 P and C-396/96 P Compagnie Maritime Belge Transports and Others v Commission [2000] ECR I-1365, paragraphs 144 to 146). 213 Lastly, the applicants claim that the Commission’s letter of 10 January 2003 asking them for financial information was not sufficient to ensure observance of the rights of the defence. As the letter was subsequent to the submission of the applicants’ observations and to the date when they were heard, they were not in a position to defend themselves in relation to the matters in issue. Furthermore, the letter gave no indication of the Commission’s intentions. 214 The Commission observes that it has consistently been held that, in the statement of objections, it is only required to state that it will consider whether it is appropriate to impose fines on the undertakings concerned and to indicate the main factual and legal criteria capable of attracting a fine (Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 21). 215 According to the Commission, the applicants must have been aware that their members’ fees would be taken into account and they had every opportunity to submit their observations on sight of the statement of objections. It was also open to them to make their views known on the question of their members’ turnover because on 10 January 2003 the Commission sent them a request for information on that point (see, to that effect, Musique diffusion française and Others v Commission, paragraph 23). 216 Lastly, the Commission disputes the relevance of the judgment in Compagnie Maritime Belge Transports and Others v Commission, relied on by the applicants. The statement of objections in the present case made it very clear that the Commission was contemplating imposing fines on the applicants, the addressees of the statement, and not therefore on the intermediate federations or on individual farmers. In view of the case-law which takes the members of federations into consideration, the applicants could easily have realised the risk and could have defended themselves on that point in the administrative procedure. 2. Findings of the Court 217 Observance of the rights of the defence is, in all proceedings in which sanctions, in particular fines, may be imposed, a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings (Case T‑308/94 Cascades v Commission [1998] ECR II-925, paragraph 39). In accordance with that principle, the statement of objections is an essential procedural safeguard which must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure (Compagnie Maritime Belge Transports and Others v Commission, paragraph 142). 218 It is settled case-law that, where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings and it indicates the main factual and legal criteria capable of giving rise to a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was 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 means to defend themselves not only against the finding of an infringement but also against the imposition of fines (Musique diffusion française and Others v Commission, paragraph 21, and ABB Asea Brown Boveri v Commission, paragraph 78). 219 The applicants submit that the Commission ought to have mentioned in the statement of objections that it would take account of their annual fees to determine the amount of the fine imposed on the federations other than FNSEA and that it would calculate the fines according to the turnover of the applicants’ members. 220 On this point it must be observed, first, that the Commission calculated the basic amount of the fines by reference to the membership fees collected by the applicants (recitals 169 and 170 of the contested decision). After establishing that the basic amount of the fine on the main farmers’ federation (FNSEA) should be EUR 20 million, taking account of the gravity of the infringement, the Commission used the ratio between the amount of the annual membership fees collected by each of the other federations and that collected by FNSEA as an objective criterion of the relative size of the different farmers’ federations and, consequently, of their individual degree of responsibility for the infringement. Those amounts were thus set at one-fifth (FNPL), one-tenth (FNB and FNCBV) and one-twentieth (JA) of the amount set for FNSEA. 221 Second, it must be observed that the Commission, as it acknowledged before the Court, took into account the turnover of the applicants’ basic members for the purpose of verifying adherence to the 10% maximum laid down by Article 15(2) of Regulation No 17. 222 The Court of Justice has held that to give indications in the statement of objections as regards the level of the fines envisaged, before the undertaking has been invited to submit its observations on the allegations against it, would be to anticipate the Commission’s decision and would thus be inappropriate (Musique diffusion française and Others v Commission, paragraph 21, and ABB Asea Brown Boveri v Commission, paragraph 66). All the more so, to raise in the statement of objections the question whether the fine which may be imposed by the final decision will adhere to the 10% maximum would also anticipate the decision and would thus be inappropriate. 223 Furthermore, contrary to the applicants’ submissions, the judgment in Compagnie Maritime Belge Transports and Others v Commission is not relevant to the present case. In paragraphs 143 to 146 of that judgment, the Court of Justice held that the Commission was required to specify unequivocally, in the statement of objections, the persons on whom fines may be imposed and held that a statement of objections which merely identifies as the perpetrator of an infringement a collective entity does not make the companies forming that entity sufficiently aware that fines will be imposed on them individually and is not sufficient to warn the companies concerned that the amount of the fines will be fixed in accordance with an assessment of the participation of each company in the conduct constituting the alleged infringement. In the present cases, the Commission did not impose sanctions on the applicants’ members, whether direct or indirect, but on the applicants themselves because of their own degree of responsibility for the infringement (recital 169 and Articles 1 and 3 of the contested decision), as the Commission had announced in the statement of objections. The fact that the turnover of the members of an association of undertakings which has committed an infringement is taken into account in no way means that a fine has been imposed on them (Joined Cases T-39/92 and T-40/92 CB and Europay v Commission [1994] ECR II-49, paragraph 139). 224 In the light of the foregoing, the Court finds that the Commission did not infringe the applicants’ rights of defence for having failed to indicate, in the statement of objections, that it proposed to take into account the annual fees collected by the applicants and their members’ turnover for the respective purposes of calculating the basic amount of the fines and verifying the 10% upper limit laid down by Article 15(2) of Regulation No 17. 225 Consequently, this plea must be dismissed. E – Fifth plea in law: failure to state reasons 1. Arguments of the parties 226 The applicants point out that the statement of the reasons on which a decision adversely affecting a person is based must be such as to enable the Community judicature to exercise its power of review as to the legality of the decision and to enable the person concerned to ascertain the matters justifying the measure adopted, so that he can defend his rights and verify whether the decision is well founded (Case T‑310/94 Gruber + Weber v Commission [1998] ECR II-1043, paragraph 40). 227 The applicants submit that the contested decision makes no reference to the turnover figures which the Commission is said to have taken into account to calculate the fines, nor to verification of adherence to the 10% upper limit laid down by Article 15(2) of Regulation No 17. Thus the Commission did not mention that it had decided to calculate the upper limit on the basis of the aggregate turnover of the applicants’ members, nor did it state which members were involved. However, a very detailed statement of reasons was called for in the present case, because this was the first time that the Commission had dealt with a case concerning farmers’ unions and because it intended to derogate from the restrictive conditions relating to taking into account the turnover of an association’s members. The Commission’s request for information of 10 January 2003 could not in any case compensate for the lack of a statement of reasons. Lastly, the failure to state reasons means, according to the applicant in Case T‑217/03, that the entire contested decision must be annulled, and not only the part relating to fines. 228 The French Republic observes that the contested decision does not meet the obligation to state reasons pursuant to Article 253 EC. Explanations which the Commission attempts to put forward for the first time in its statement in defence cannot rectify this situation (see, to that effect, Case T‑323/99 INMA and Itainvest v Commission [2002] ECR II-545, paragraph 76). 229 The Commission contends first that this plea cannot justify the annulment of the contested decision in its entirety, but only the annulment of Article 3, as the alleged lack of a statement of reasons concerns the level of fines and does not affect the actual facts or their legal assessment. In any case, the Commission completely fulfilled the obligation to state reasons in the present case. 230 The Commission submits that that obligation is satisfied where it states the factors which it took into account to measure the gravity and the duration of the infringement for the purpose of calculating the fine (Case C-282/98 P Enso Española v Commission [2000] ECR I-9817, paragraphs 40 and 41; Case C‑297/98 P SCA Holding v Commission [2000] ECR I-10101, paragraphs 56 to 65; and Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 218). Therefore the Commission is not required to state in its decision the turnover taken into account or what percentage thereof is levied in the form of a fine, since the question whether the 10% maximum is attained does not form part of the statement of reasons for the decision. The figure of 10% is the legal maximum limit of the fine which may be imposed and does not form part of the reasons for the measure adopted. 231 The Commission also submits that the obligation to state reasons must be assessed in its context and observes that it clearly indicated that it was proceeding on the basis of the Guidelines, Section 5(c) of which permits it to impose on an association a fine equivalent to the total of the individual fines which might have been imposed on each of its members. The applicants cannot be unaware of the principles governing the calculation of the fine, including the fact that the Commission takes into account their members’ turnover in order to ensure that the 10% maximum is not exceeded. It is clear from the contested decision as a whole that the infringement was committed by the applicants not for themselves, but for the benefit of their members. 232 The Commission also observes that, on 10 January 2003, it asked each of the applicants for their members’ turnover figures. The applicant in Case T‑217/03 sent the Commission the information by letter of 27 January 2003. The figures supplied by that federation showed that the 10% maximum was very far from being attained. The applicants in Case T-245/03, on the other hand, stated that they were unable to provide the information. In view of this refusal, the Commission could have adopted a decision ordering the production of the figures on the basis of Article 11(5) of Regulation No 17 accompanied, if necessary, by penalties or fines, but it simply took the view, given the available information, that there was not the slightest likelihood that the 10% maximum of the turnover of the applicants’ members would be attained. 2. Findings of the Court 233 It has consistently been held that that the statement of reasons required by Article 253 EC must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (Cheil Jedang v Commission, paragraph 216; Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraph 96). 234 In the present case, the applicants complain that, in the contested decision, the Commission did not state expressly that the fines imposed did not exceed the 10% maximum of their turnover, as laid down in Article 15(2) of Regulation No 17, and failed to state the reasons why it could take account of their members’ turnover for the purpose of verifying that the maximum was not exceeded. 235 It must be observed that indeed none of the recitals of the contested decision deals with question of adherence to the maximum 10% of turnover to which fines are subject. The Commission likewise omitted to indicate that, to ensure that the 10% limit was not exceeded, it was necessary in the present case to take account of the turnover of the applicants’ basic members; nor did it provide any reason for such a possibility. 236 The Commission nevertheless considers that adherence to the maximum 10% of turnover is only the legal maximum limit of the fine and does not form part of the statement of reasons of the decision. 237 It must be observed that the maximum 10% turnover referred to in Article 15(2) of Regulation No 17 refers to the turnover of the undertaking or association which committed the infringement and which, being the addressee of the decision, is thereby in a position to ensure that the limit is not exceeded. In those circumstances, no specific reasons are required with regard to the observance of the limit. However, where the Commission departs from its usual approach and, for the purpose of imposing the fine, takes into account a turnover different from that of the addressee of the decision sanctioning the infringement, such as the turnover of the members of the sanctioned association, the Commission must necessarily give a specific reason for its decision in that respect, so as to enable the addressee of the decision to ensure that the 10% limit was adhered to in the calculation of the fine. 238 Thus, where the Commission imposes a fine on an individual undertaking which is the perpetrator of an infringement, it is not necessarily required, in the absence of specific circumstances, to state express reasons for adhering to the maximum 10% of the turnover of the undertaking in question. The latter must be aware of the existence of that legal limit and the specific amount of its turnover and can then ascertain, even without any reasons in the decision in question, whether or not the 10% maximum was exceeded by the fine imposed on that undertaking. 239 On the other hand, where the Commission sanctions an association of undertakings and ensures that the legal limit of 10% of the turnover on the basis of the aggregate turnover of all or some of the members of the association is not exceeded, it must state this expressly in its decision and must set out the reasons which justify taking the members’ turnover into account. If reasons are not given, the persons concerned will not know the justification for the decision and will not be able to ensure properly that the legal limit was adhered to in the particular case. 240 This conclusion is not undermined by the case-law relied on by the Commission in paragraph 230 above, according to which it is sufficient, with regard to the scope of the obligation to state reasons concerning the calculation of a fine for infringement of the Community competition rules, for the Commission to set out in its decision the factors which it has taken into account pursuant to the Guidelines and which have enabled it to measure the gravity and duration of the infringement. That case-law relates only to the question of determining the amount of the fine and not that of ensuring that the ultimate fine does not exceed the maximum 10% of the turnover of the undertaking or association sanctioned. 241 It must therefore be concluded that, in the present case, the Commission ought to have indicated in the contested decision that it had used the turnover of the applicants’ basic members, specifying whether it was the turnover of all their members or of particular categories of them, for the purpose of verifying that the fines did not exceed the legal maximum of 10%. Likewise, the Commission ought to have set out the circumstances that enabled it to take account of the aggregate turnover of the applicants’ members for that purpose. 242 Nor can the Commission plead the fact that, in recital 164 of the contested decision, it indicated that it would proceed on the basis of the Guidelines. That generic reference appears in the section concerning the determination of the amount of the fines and has the sole object of drawing attention to the criteria governing the assessment of the gravity of the infringement. In addition, it must be observed that in the contested decision the Commission made no reference to Section 5(c) of the Guidelines concerning the possibility of taking into account the turnover of the members of an association. 243 Likewise, the Commission cannot rely on its letters to the applicants of 10 January 2003 requesting the turnover figures of their members. Even if it were assumed that, in the light of those requests, the applicants understood that the contested decision had taken account of their members’ turnover for the purpose of calculating the 10% maximum, nevertheless the requests cannot compensate for the lack of a statement of reasons on that point in the contested decision, particularly the complete absence of any indication of the reasons why such figures could be used for verifying that the limit was not exceeded. 244 Lastly, with regard to the fact that the applicants in Case T-245/03 did not provide the Commission with their members’ turnover figures, this likewise does not excuse the Commission from setting out in the body of the decision the reasons why it considered it appropriate to take account of the members’ turnover and the reasons why it considered that the 10% limit had not been exceeded in the present case. 245 In the light of all the foregoing, the conclusion must be that the Commission failed to fulfil its obligation to state reasons as required by Article 253 EC. II – Submissions on the cancellation or reduction of the fine 246 The applicants rely on six pleas in law in support of their application for the cancellation or reduction of the fines imposed on them by the contested decision. The first plea is that the Guidelines are unlawful. The second plea alleges infringement of the principle of proportionality, a manifest error of assessment and an error of law in determining the gravity of the infringement. The third plea alleges errors of assessment and of law and infringement of the principle of proportionality in taking account of aggravating and attenuating circumstances. The fourth plea alleges infringement of Article 15(2) of Regulation No 17 in setting the amount of the fines. The fifth plea alleges infringement of the rule against cumulation of penalties. The sixth plea alleges infringement of the principle of proportionality and a manifest error of assessment in taking account of the circumstances provided for by Section 5(b) of the Guidelines. A – First plea: unlawfulness of the Guidelines 1. Arguments of the parties 247 The applicants in Case T-245/03 submit, first, that the Guidelines are contrary to the principle of proportionality. They observe that the assessment of the effect of agreements or practices on the functioning of the market is an essential factor for determining the degree of gravity of an infringement. However, in describing an infringement as very serious, the Commission does not take its effects into consideration at all, but only its nature and the extent of the relevant geographic market. Furthermore, where an infringement is classified as very serious in accordance with Section 1A of the Guidelines, it is liable to a fine of a minimum starting amount of EUR 20 million, which is discretionary and arbitrary. That minimum amount also prevents the Commission from taking account of the importance, the size and the nature of the entity concerned or its profits from the infringement. 248 Second, the applicants submit that the Guidelines are contrary to Article 15(2) of Regulation No 17. They observe, first, that Section 1A of the Guidelines permits the Commission to set the basic amount of a fine at a figure of more than EUR 1 million or 10% of the turnover of the undertaking being sanctioned. However, according to the applicants, Article 15(2) of Regulation No 17, in providing that the Commission must take account of the gravity and the duration of the infringement at the stage of determining the basic amount of the fine, does not permit the basic amount – or the ultimate fine – to exceed the abovementioned limits. The applicants maintain, second, that Section 1B of the Guidelines takes account of the criterion of the duration of the infringement only in order to increase the fine, which leads the Commission to regard in the same way an infringement which lasted a few days and one which lasted almost one year. 249 The Commission observes, first, that the only criteria expressly mentioned by Article 15 of Regulation No 17 are the gravity and the duration of the infringement, and Article 15 lays down no limits or reservations regarding the Commission’s discretion in setting fines, other than adherence to the maximum relating to the turnover of each undertaking. In addition, as very serious infringements are practices the very object of which is manifestly contrary to the principles of the internal market and in order to ensure that fines have a deterrent effect, it appears in no way disproportionate to take EUR 20 million as the starting point. In any case, contrary to the applicants’ assertion, it is possible to go below EUR 20 million within the category of very serious infringements. Second, the Commission submits that the setting of a limit to the fine must be done in relation to its final amount, before leniency is granted, and the fact that short duration is not a factor which reduces the fine, but merely neutral, is not contrary to Article 15(2) of Regulation No 17. 2. Findings of the Court 250 It must be observed as a preliminary point that, although the Guidelines are not the legal basis of the contested decision, that being inter alia Regulation No 17, they determine, in a general and abstract manner, the method by which the Commission has bound itself in setting the amount of fines. In the present case, therefore, there is a direct link between the contested individual decision and the general measure represented by the Guidelines. Since the applicants were not in a position to ask that the Guidelines be declared void, they may form the subject‑matter of an objection of illegality (Case T-23/99 LR AF 1998 v Commission [2002] ECR II-1705, paragraphs 274 and 276, and Case T‑64/02 Heubach v Commission [2005] ECR II-5137, paragraph 35). 251 The applicants submit, first, that the Guidelines are contrary to the principle of proportionality because they do not take account of the effects of the agreements or practices in question in the determination of whether an infringement is very serious. 252 On this point, it must be observed that Section 1A of the Guidelines states that very serious infringements include ‘horizontal restrictions such as price cartels and market-sharing quotas, or other practices which jeopardise the proper functioning of the single market, such as the partitioning of national markets’. It has consistently been held that cartels relating to prices or the partitioning of markets are by nature very serious infringements (Case T-65/99 Strintzis Lines Shipping v Commission [2003] ECR II-5433, paragraph 168; Case T‑66/99 Minoan Lines v Commission [2003] ECR II-5515, paragraph 280; and Joined Cases T-49/02 to T-51/02 Brasserie nationale v Commission [2003] ECR II-3033, paragraphs 173 and 174). Therefore the Court considers that the Commission did not infringe the principle of proportionality by stating in its Guidelines that those kinds of infringements are to be regarded as very serious. In any case, the first paragraph of Section 1A of the Guidelines states that, in assessing the gravity of the infringement, account must be taken of its actual impact on the market, where this can be measured. It follows that, in certain specific circumstances, the Commission must take into account the effects of the infringement in question for the purpose of classifying it as very serious or not. 253 Next, regarding the allegedly discretionary and arbitrary nature of the sum of EUR 20 million laid down for very serious infringements, it must be pointed out first that, in accordance with settled case-law, Regulation No 17 allows the Commission a margin of discretion when fixing fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules (Cheil Jedang, paragraph 76). It must also be noted that, as the basic amounts provided for in the Guidelines are merely ‘likely’, the Commission is entirely free to set a starting amount below EUR 20 million. The flat-rate amounts provided for by the Guidelines are merely indicative and therefore cannot in themselves give rise to an infringement of the principle of proportionality (Heubach v Commission, paragraphs 40 and 44). 254 Second, the applicants submit that the method laid down by Section 1A of the Guidelines for calculating fines is contrary to Article 15(2) of Regulation No 17 in that it envisages the possibility of setting a basic fine amount of more than EUR 1 million or 10% of the turnover of the undertaking concerned. 255 However, this argument must fail. Article 15(2) of Regulation No 17, in providing that the Commission may impose fines of up to 10% of turnover during the preceding business year for each undertaking which participated in the infringement, requires only that the fine eventually imposed on an undertaking be reduced if it should exceed 10% of its turnover, irrespective of the intermediate stages in the calculation intended to take account of the gravity and duration of the infringement. Consequently, Article 15(2) of Regulation No 17 does not prohibit the Commission from referring, during its calculation, to an intermediate amount exceeding 10% of the turnover of the undertaking concerned, provided that the amount of the fine eventually imposed on the undertaking does not exceed that maximum limit (LR AF 1998 v Commission, paragraphs 287 and 288). This consideration also applies to the maximum amount of EUR 1 million. 256 The applicants also claim that Section 1B of the Guidelines violates Article 15(2) of Regulation No 17 as it takes account of the criterion of the duration of the infringement only to increase the fine. 257 It must be observed that Article 15(2) lays down that, to determine the amount of the fine, it is necessary to take into account the duration of the infringement as well as its gravity. In that connection, Section 1B of the Guidelines provides that the duration of the infringement may entail a possible increase in the amount of the fine established on the basis of gravity. The Guidelines thus distinguish between infringements of short duration (in general, less than one year), for which there is no increase, infringements of medium duration (in general, one to five years), for which there is an increase of up to 50% in the amount determined for gravity, and, lastly, infringements of long duration (in general, more than five years), for which there is an increase of up to 10% per year in the amount determined for gravity. The Guidelines therefore take no account of the very brief duration of an infringement for the purpose of reducing the amount initially determined. 258 The fact that the duration of the infringement was short does not in the least affect its gravity, which arises from its nature. The Commission was therefore right to find, in accordance with the first indent of the first paragraph of section 1B of the Guidelines, that the very short duration of the infringement, less than one year, meant merely that no additional amount should be imposed on the amount calculated by reference to the gravity of the infringement (Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II-913, paragraph 283). 259 Furthermore, it must be observed that, in accordance with settled case-law, the Guidelines do not go beyond the legal framework for fines set out in Article 15(2) of Regulation No 17. The general method for setting fines described in the Guidelines is based on the two criteria referred to in Article 15(2) of Regulation No 17, namely the gravity of the infringement and its duration, and observes the upper limit determined by reference to the turnover of each undertaking, as laid down in that provision (LR AF 1998 v Commission, paragraphs 231 and 232; Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission [2004] ECR II-1181, paragraphs 189 and 190, and Heubach v Commission, paragraph 37). 260 In the light of all the foregoing, this plea must be rejected. B – Second plea: infringement of the principle of proportionality, manifest error of assessment and error of law in determining the gravity of the infringement 1. Arguments of the parties 261 The applicants submit that the Commission should not have classified the infringement as ‘very serious’, but as ‘serious’. They repeat that the Commission was not justified in attributing to them the ‘Imports’ part of the agreement and they dispute the duration of the ‘Prices’ part. In addition, they complain that the Commission took no account of the slight impact of the disputed measures on the functioning of the market. In actual fact, the acts imputed to them caused no damage to the beef sector as the agreement had no effect on prices or on imports. Thus the slaughterers never claimed to have suffered loss by reason of the agreement on the price scale which, furthermore, did not affect consumer prices. However, the Commission did not examine the importance of the economic sector in question or the actual impact of the agreement. According to the applicants, the Commission was not entitled merely to plead that it was impossible to quantify sufficiently accurately the true effects attributable to the agreement. The applicants also claim that the Commission did not take account of the whole legal and economic context of the case as a whole, particularly the crisis in the sector and the ineffectiveness of the Community measures in overcoming it. Lastly, they claim that the infringement was the outcome of a vertical agreement and not a horizontal agreement. 262 The Commission submits that, in view of the nature of the infringement and the geographic extent of the market in question, the infringement was undoubtedly very serious. 2. Findings of the Court 263 It must be observed, first, that it has been held that the Commission was correct with regard to the determination of the duration and extent of the disputed agreement. Therefore the criticism relating to the classification of the gravity of the agreement based on an incorrect weighting of the duration and extent of the infringement must be rejected. 264 Next, it must be noted that the infringements in question, namely the suspension or limitation of beef imports and the fixing of a minimum price scale, are particularly serious. As the Commission rightly points out in the third indent of Section 1A of the Guidelines, practices aiming at the partitioning of national markets are, in principle, very serious infringements. Likewise, the price-fixing measures were, in the present case, a very serious infringement. The object of that part of the disputed agreement was to fix minimum prices for certain categories of cows, with the aim of making them compulsory for all traders in the markets in question (see paragraph 85 above). This finding is not undermined by the applicants’ argument that the disputed agreement constituted a vertical agreement. It must be borne in mind that the agreement was set up by federations representing a very large proportion of both the farmers and slaughterers in France, two links of the production chain in the beef sector (see paragraph 88 above). Furthermore, the infringements at issue affected the main beef market in Europe, extending beyond national territory because of the limitation of imports. It is moreover not disputed that the federations which signed the agreement of 24 October 2001 were the main associations in the sector of beef farming and slaughtering in France. 265 With regard to taking account of the effects of the agreement, the Court considers that, in the present case, the Commission correctly assessed Section 1A of the Guidelines which, for the purpose of assessing the gravity of the infringement, mentions taking account of the actual impact of the infringement on the market only where the impact can be measured. On this point, it must be observed that, in the contested decision, the Commission examined the trend in beef imports into France and in average prices for different categories of beef as a result of the disputed agreement, but found that it was not able to quantify the actual effects of the agreement on intra-Community trade and on prices (recitals 78, 81 and 167 of the contested decision). Lastly, regarding the submissions concerning the economic context of the present case, it must be noted that the Commission took that into account in the contested decision, inter alia for the purposes of application of Section 5(b) of the Guidelines (see paragraphs 350 to 361 below). In any case, this question will be discussed in greater detail below. 266 In the light of the foregoing, the Court considers that, in the present case, the classification of the infringement as ‘very serious’ was justified. 267 This plea must therefore be rejected. C – Third plea: errors of assessment and of law and infringement of the principle of proportionality in taking account of aggravating and attenuating circumstances 268 The applicants dispute the increase in the fines on the basis of some of the aggravating circumstances found by the Commission, namely the continuation of the agreement in secret and the use of violence. In addition, the applicant in Case T‑217/03 claims that a number of attenuating circumstances should be taken into account. The applicants submit that, by taking those aggravating and attenuating circumstances into account, the Commission made errors of assessment and of law and infringed the principle of proportionality. 1. Aggravating circumstances: continuation of the agreement in secret a) Arguments of the parties 269 The applicants deny that the agreement of 24 October 2001 was continued in secret and therefore dispute the 20% increase in the fines on that basis. 270 The Commission maintains that the agreement was continued, in secret and without being in writing, beyond the expiry date of the written agreement of 24 October 2001. b) Findings of the Court 271 It must be observed that on 26 November 2001 the Commission sent a letter of warning to the applicants, informing them that the facts which had come to its knowledge, including the conclusion of the agreement of 24 October 2001, indicated that the Community competition rules had been infringed and the applicants must put an end to this. The applicants replied to the Commission that the agreement would end on 30 November 2001 and that it would not be extended (see paragraph 15 above). However, the Court has found that, contrary to the applicants’ claim, they continued their agreement after 30 November 2001 secretly, in spite of the Commission’s warning and in breach of the assurances they had given the Commission (see paragraph 185 above). In such circumstances, the Court considers that the Commission was entitled to regard the continuation of the infringement as an aggravating circumstance (see, to that effect, LR AF 1998 v Commission, paragraph 324) and consequently to increase the fines by 20%. 272 This complaint must therefore be rejected. 2. Aggravating circumstances: the use of violence a) Arguments of the parties 273 The applicants in Case T-245/03 dispute the 30% increase in the fines imposed on FNSEA, FNB and JA by reason of the alleged use of violence by their members to obtain the slaughterers’ signature to the agreement of 24 October 2001 and to verify its subsequent implementation. 274 The applicants observe that, before 24 October 2001, the main aim of local actions was to persuade the French Government to put into effect a certain number of measures and to make public opinion aware that the farmers alone were suffering the consequences of the crisis. One of those actions had given rise to extremely serious acts of violence on 15 October 2001 in a context of despair. However, FNSEA did not call for blockades of abattoirs and even less for acts of violence. 275 Those acts became much more serious, particularly on 23 October 2001 in the west of France. In this context of extreme tension, the French Minister for Agriculture took the initiative in calling a meeting of the applicants and the slaughterers’ federations. The applicants infer from this that violence was not used by the national farmers’ federations to persuade the slaughterers to sign the agreement of 24 October 2001, but that it was thanks to the signing of that agreement that the violence came to an end on the ground. After the agreement of 24 October 2001 was signed, the situation was different, depending on the region, as the conduct of the representatives of the numerous local or department unions was not the same. In any case, the actions which took place in certain departments were within the framework of the union action organised by the local or department unions and therefore could not be attributed to the applicants. 276 Lastly, the applicants submit that the Commission must observe the principle that penalties are personal (Case C-279/98 P Cascades v Commission [2000] ECR I‑9693, paragraphs 78 and 79) and that therefore it could regard the violent acts as an aggravating circumstance only if it adduced specific proof that each of the three federations in question had actually incited its members to engage in such acts. 277 The Commission observes that the applicants do not deny that acts of violence took place, or that they were carried out by their indirect members. Those acts could be attributed to the applicants, which had advocated union mobilisation and had often been informed of the result of operations organised and perpetrated to ensure the implementation of the national agreement and which were sometimes called for by the applicants. Therefore the Commission was entitled to find that those acts constituted an aggravating circumstance against the applicants. b) Findings of the Court 278 The contested decision finds, in recital 173, that the farmers who were members of the applicants in Case T‑245/03 used violence in order to compel the slaughterers’ federations to adopt the agreement of 24 October 2001 and that they used physical force to set up means of verifying that the agreement was being applied, such as illegal inspections to establish the place of origin of meat. 279 It is clear from the file that numerous actions were carried out in France by groups of farmers, inter alia at the premises of slaughterers, in order to compel observance of the minimum purchase prices of beef and to prevent beef imports. The file also shows that, in the course of some of those actions, acts of violence took place, including the blockading of abattoirs, destruction of meat, ransacking of undertakings and illegal inspections. 280 The applicants in Case T-245/03 admit that such acts took place. However, they deny that they can be imputed to them because they were not committed by their direct members but by members of local or department unions. They also assert that they never called for such acts of violence. 281 In that connection, it must be observed, first, that the applicants in Case T‑245/03, in particular FNSEA, FNB and JA, played a decisive role in laying down and organising the union action aiming to compel adherence to the minimum prices for certain categories of cows and the suspension of beef imports into France. That action was taken by numerous farmers’ unions and federations, direct or indirect members of the applicants, and also by groups of farmers who are not denied in many cases to have been members of those farmers’ unions. 282 Thus the minutes of a coordination meeting of the representatives of FNSEA, FNB, JA and FNPL held on 16 October 2001 indicate that FNB proposed ‘a producer price scale for the different categories of cull cows’. The minutes also indicate that the union strategy proposed for succeeding in imposing the price scale required, in particular, ‘checking the origin of meat, particularly in (the restaurant and catering sector)’ and the ‘mobilisation of all producers according to that objective, that is to say, refuse to sell below the price and/or report those who buy below the price’. Lastly, the minutes refer to the need to ‘mobilise the network according to this new strategy’. Likewise, a memorandum of 19 October 2001 from FNB to the beef sections calls for ‘continuing and intensifying the mobilisation of the beef sections according to the aims set out by the FNB bureau for obtaining a minimum price scale for cull cows’. It is stated that ‘strong union mobilisation (was) imperative in accordance with this objective’ and that its aim should be ‘to persuade undertakings to stick to that principle’, adding that ‘united and coordinated action by all producers (was) essential’. 283 Following the signing of the agreement of 24 October 2001, a memorandum of 25 October 2001 from the applicants in Case T‑245/03 to their members states: ‘each of us must now be very careful to ensure strict application of the agreement throughout the country’. In addition, another memorandum of 13 December 2001 asks: ‘all (members) of the FNSEA network to mobilise … to verify the prices paid by every slaughterer’ and, for that purpose, ‘to organise contacts with every abattoir situated in (their) department’. 284 The foregoing leads to the conclusion that the actions of local unions on the ground formed part of a strategy organised by the applicants. Several documents in the file show that some of the acts of violence at issue took place in the course of those actions. 285 For example, a press article of 17 October 2001 reports the destruction of refrigerators in an abattoir at Fougères, during which the farmers attacked the refrigerators with iron bars and burnt beef carcasses. The article notes that ‘the angry farmers (had) responded to a national call relayed by FNSEA and (JA).’ Similarly, the article states as follows: ‘The president of the FDSEA Mayenne is condemning imports of foreign meat. Behind him, carcasses and piles of cardboard boxes are being put on a giant brazier. “We found what we were looking for. The meat stored here was slaughtered in Holland, Austria, Germany or Italy”’. 286 In the same vein, a press report of 25 October 2001 refers to blockades of beef-processing factories, abattoirs and central purchasing agencies by French farmers’ unions on previous days. After observing that union officials had asserted that, in spite of lifting the blockades, ‘their troops remain mobilised, planning “inspections” of sites to verify whether the undertakings are observing the embargo’, the report reproduces the following statements by the FNSEA president outside a press conference: ‘We are going to meet them. If they do not understand, we have means of persuasion’. The report adds that ‘the French farmers (had) called upon … the French to boycott foreign beef, threatening reprisals against undertakings buying it after 29 October’. 287 Lastly, in an interview on 4 December 2001, the vice-president of FNB stated that, in order to be applied, the price scale required the mobilisation of farmers on the ground’, asserting that, if the prices offered by slaughterers did not conform with the agreed prices, the farmers would blockade the abattoirs in question. 288 Furthermore, the applicants must fail in their argument that the acts of violence were not used by the national farmers’ federations to persuade the slaughterers to sign the agreement of 24 October 2001, as the signing of that agreement rather enabled the violence to cease on the ground. First, the agreement expressly provides that the federations representing the slaughterers concluded the agreement ‘in return for the lifting of the blockade of abattoirs’. Second, as those acts often took place within the framework of the union action launched by the applicants in Case T‑245/03, they cannot justify the conclusion of such an agreement by the need to restore public order which was disturbed by that action. 289 In those circumstances, the Court considers that the Commission was entitled to regard the use of violence as an aggravating circumstance, attributable against FNSEA, FNB and JA, and to increase by 30% the fines imposed on them. 290 It follows that this complaint must be rejected. 3. Failure to take account of attenuating circumstances a) Arguments of the parties 291 The applicant in Case T-217/03 submits that the Commission did not take account of all the attenuating circumstances provided for by the Guidelines. It states inter alia that the agreement had no effect on the market and that the infringement came to an end as soon as the Commission intervened. It also pleads its entirely passive role in the infringement, despite the statements by its representatives. Those factors should have led the Commission to exempt it from any fine. 292 The Commission replies that the applicant’s arguments are unfounded in fact and in law. b) Findings of the Court 293 First, it must be observed that the argument that the applicant put an end to the infringement as soon as the Commission intervened has no factual basis. It has been found that, contrary to what the applicants claim, they continued their agreement after 30 November 2001, in spite of the Commission’s warning of 26 November 2001 and contrary to the assurances they gave the Commission (see paragraph 271 above). 294 Secondly, it must be observed that the statements by the president of the applicant in Case T-217/03 contradict the applicant’s argument that it played an entirely passive role in the infringement. In a letter of 9 November 2001 to the president of FNSEA, the president of the applicant in Case T‑217/03 makes the following statement: ‘The [applicant in Case T‑217/03] played an active role in the negotiations of 24 October which led to the agreement on a minimum price scale for cows. Although the discussion was difficult … it made rapid progress on the principle of a minimum price scale and I think, with my federation, greatly contributed towards it.’ In any case, the Commission reduced the applicant’s fine by 60%, taking account of two attenuating circumstances relating to the backing of the French Minister for Agriculture in favour of the conclusion of an agreement and the illegal blockading of establishments of the applicant’s members. To a certain extent, those attenuating circumstances are justified by the fact that the applicant did not play a leading or very active role in the infringement, its participation being explained, at least in part, by the particular circumstances of the case. 295 Thirdly and lastly, the Commission cannot be criticised for having failed to find an attenuating circumstance based on the alleged lack of effects of the disputed agreement on the markets. Contrary to what the applicant claims, the Court considers that the file does not show that the agreement caused no effects on the markets in question. In particular, the fact that the Commission was not able to quantify the actual effects of the agreement on prices and intra-Community trade (recital 167 of the contested decision) does not mean that it produced no effect at all. In any case, it must be observed that the appraisal of the effects of an infringement must be carried out, where appropriate, in the context of evaluating its impact on the market for the purpose of assessing its gravity, and not in relation to an appraisal of the individual conduct of each undertaking in order to assess any aggravating or attenuating circumstances (Cheil Jedang v Commission, paragraph 189). 296 It follows that, in the present case, the Commission was entitled to find that there were no attenuating circumstances in favour of the applicant in Case T‑217/03. 297 This complaint must therefore be rejected. 298 Consequently, this plea must be dismissed in its entirety. D – Fourth plea: infringement of Article 15(2) of Regulation No 17 in setting the amount of the fines 1. Arguments of the parties 299 The applicants in Case T-245/03 begin with the submission that it is clear from Article 15(2) of Regulation No 17 that the Commission cannot impose a fine of more than EUR 1 million on an association of undertakings which has no turnover. That provision should be interpreted restrictively, in view of the seemingly punitive nature of the sanctions for which it provides. 300 The applicant in Case T-217/03 claims, for its part, that the upper limit of 10% of turnover applies to a fine of any amount, even if it is less than EUR 1 million. To allow a fine above that limit would be contrary to the principles of equal treatment and proportionality and would systematically penalise small undertakings. 301 The applicants submit that the fines imposed by the contested decision exceed the limit of 10% of their turnover. Thus, since the income of the applicant in Case T‑217/03 totalled EUR 1 726 864 in 2002, the fine of EUR 480 000 represents more than 25% of its turnover. With regard to the applicants in Case T‑245/03, their fines represent 200% of the annual membership fees of FNSEA, 240% of those of FNB, 80% of those of FNPL and 200% of those of JA. 302 In that connection, the applicants submit that the calculation for the purpose of ensuring that the limit was not exceeded should not have been made by taking into consideration the turnover of their respective members, whether direct or indirect. 303 It is clear from the case-law that the turnover of the members of associations of undertakings can be taken into account for the purpose of calculating the upper limit of 10% only if the association in question is able, by virtue of its internal rules, to bind its members (Case C‑298/98 P Finnboard v Commission [2000] ECR I-10157, paragraph 66; CB and Europay v Commission, paragraph 136; Case T‑29/92 SPO and Others v Commission [1995] ECR II-289, paragraph 385; SCK and FNK v Commission, paragraph 252; and Case T-338/94 Finnboard v Commission [1998] ECR II-1617, paragraph 270). Therefore the members’ turnover must be taken into account only if the disputed practice formed part of the object of the statutes of the association in question or if the statutes permit the members to be bound (see, to that effect, order in Case T‑18/96 R SCK and FNK v Commission [1996] ECR II-407, paragraphs 33 and 34). 304 The applicants maintain that they cannot bind their respective members. The applicant in Case T-217/03 claims that it is empowered merely to unite and defend the trade interests of its members and to represent them vis-à-vis public authorities and trade organisations and that it is not an association responsible for its members’ commercial interests or for concluding agreements on their behalf. Likewise, the applicants in Case T‑245/03 assert there is no legal provision and no stipulation in their respective rules which empowers them to undertake commitments on behalf of their members, much less bind the ‘members of the members affiliated to their members’, that is to say, the natural persons, farmers, who are members of local unions. 305 Lastly, the applicants in Case T-245/03 submit that, even if they were empowered under their internal rules to bind their members, the Commission could not in any case use the method of aggregating the members’ turnover to calculate the fines in the present case. The applicants are not autonomous federations, but have common members. Therefore it would have been necessary to take into account, for each federation, only the aggregate income of the farmers who are members of that federation only. 306 The Commission contends, first, that the argument that it cannot impose a fine of more than EUR 1 million on an association of undertakings which has no turnover is based on an incorrect reading of Article 15(2) of Regulation No 17. 307 It adds that, under that provision, it is required to examine adherence to the upper limit of 10% of turnover only where it imposes a fine exceeding EUR 1 million (Musique diffusion française and Others v Commission, paragraph 119). However, as the applicant in Case T-217/03 was fined EUR 480 000, the Commission could not have disregarded the upper limit in question so far as the applicant was concerned. 308 The Commission points out that Section 5(c) of the Guidelines provides that, in cases involving associations of undertakings, where it is found to be impossible to impose individual fines on member undertakings, an overall fine should be imposed on the association, equivalent to the total of individual fines which might have been imposed on each of the members of the association. To refer only to the budget of a federation would take no account at all of the actual weight of the parties to an agreement. 309 The Commission disputes the applicants’ interpretation of the case-law referred to in paragraph 303 above. It observes that, according to that case-law, the upper limit of 10% may be calculated by reference to the turnover of the members of an association of undertakings ‘at least where, by virtue of its internal rules, the association can bind its members’. The Commission submits that the words ‘at least where’ are not synonymous with ‘provided that’, but rather with ‘at least’ or ‘in any case’. That case-law does not rule out the possibility that other specific circumstances may justify taking account of the turnover of the members of an association. The Commission adds that in the present cases the agreement was concluded by the national federations for the benefit of their members. The applicants have no economic activity and therefore a purely commercial agreement would be of economic interest only to their members. The interests of the federations merge completely with those of their members, the applicants having no interest of their own in concluding the agreement. 310 The Commission argues that, in any event, the applicants in the present case were able to bind their members as contemplated in the abovementioned case-law. The Commission observes that the rules of an association need not necessarily mention that ability, as it may arise from a combination of various provisions. Likewise, the requirement to bind members does not imply power to bind them legally. However that may be, it is clear from examination of the applicants’ rules that they can bind their respective members. 311 According to the Commission, if the turnover of the applicants’ basic members is taken as the basis for calculation, the fines imposed in the present case did not exceed the 10% limit. First, with regard to the applicant in Case T‑217/03, according to the estimates in its letter of 27 January 2003, the fine appears completely marginal in relation to its members’ turnover. Second, regarding the applicants in Case T-245/03, the Commission points out that, taking account of the number of members of FNSEA declared by it, apportioning the total fines over the number of farmer members would give EUR 48.68 per member. Consequently, an average annual turnover of EUR 500 per member would be sufficient to avoid reaching the limit. Similarly, as the beef sector generated a turnover of some EUR 4.4 billion in 2002 and FNSEA stated that it represented 70% of French farmers, its members’ turnover should represent approximately EUR 3 billion. However, the total fines would reach the limit of 10% of the turnover of FNSEA beef farmers only if they generated turnover of less than EUR 160 million, which would represent 3.5% of the beef sector. Lastly, even taking account of the fact that farmers belong to more than one association, the calculation would not change. Accordingly, apportioning FNSEA’s fine over its 270 000 members who are not members of JA would give a figure of EUR 44.44 per farmer. 2. Findings of the Court 312 Article 15(2) of Regulation No 17 provides that the Commission may impose on undertakings or associations of undertakings fines from EUR 1 000 to EUR 1 000 000, 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. 313 Contrary to the argument of the applicants in Case T‑245/03, this provision does not prevent the Commission from imposing fines of more than EUR 1 000 000 on associations which allegedly have no turnover. According to settled case-law, the use of the general term ‘infringement’ in Article 15(2) of Regulation No 17, inasmuch as it covers without distinction agreements, concerted practices and decisions of associations of undertakings, indicates that the upper limits laid down in that provision apply in the same way to agreements and concerted practices as to decisions of associations of undertakings (Case T-338/94 Finnboard v Commission, paragraph 270, and case-law cited). As will be shown below, where an association of undertakings has no economic activity of its own or where its turnover does not reveal the influence it may have on the market, the Commission may, under certain conditions, take into consideration the turnover of its members for the purpose of calculating the maximum fine which may be imposed on it. 314 On the question whether the threshold of 10% of turnover applies only to fines exceeding EUR 1 million, it must be observed, as did the Court of Justice in the case of Musique diffusion française and Others v Commission, that the only express reference to the turnover of the undertaking in Article 15(2) of Regulation No 17 concerns the upper limit of a fine exceeding EUR 1 000 000 (paragraph 119). However, it must be observed that Section 5(a) of the Guidelines states that the final amount calculated according to the method laid down in Sections 1 to 3 may not ‘in any case’ exceed 10% of the worldwide turnover of the undertakings, as laid down by Article 15(2) of Regulation No 17. As the Commission must comply with the Guidelines, the conclusion must be that the limit of 10% of turnover should have been observed in the present case even with regard to the setting of fines of less than EUR 1 million, like those imposed on the applicant in Case T‑217/03 and on JA (see, to that effect, Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission [2005] ECR II-10, paragraph 388). 315 It is common ground that, in the present case, the fines imposed on the applicants exceed 10% of their respective turnover, if ‘turnover’ is understood to mean the overall amount of their income, including the fees paid by their members and the aid they have received. However, the question arises as to whether, as the Commission submits, observance of that limit could nevertheless have been calculated in the present case by reference to the turnover of the applicants’ members. 316 It must be borne in mind that Section 5(c) of the Guidelines provides that, in cases involving associations of undertakings, decisions should, in so far as possible, be addressed to and fines imposed on the individual undertakings belonging to the association. However, where that is not possible (for example, where there are several thousand affiliated undertakings), an overall fine should be imposed on the association, equivalent to the total of individual fines which might have been imposed on each of the members of the association. 317 According to settled case-law, the upper limit of 10% of the turnover must be calculated by reference to the turnover achieved by each of the undertakings that are parties to the agreements and concerted practices or by all the members of the associations of undertakings, at least where the internal rules of the association empower it to bind its members. The possibility of taking into account for that purpose the turnover of all the undertakings that are members of an association is justified by the fact that, in determining the amount of the fines, account may be taken inter alia of such influence as the undertaking may have been able to exercise in the market, in particular by reason of its size and economic power, of which its turnover may give an indication, and the deterrent effect that fines must have. The influence which an association of undertakings may have had on the market depends not on its own turnover, which reveals neither its size nor its economic power, but rather on the turnover of its members which gives an indication of its size and economic power (CB and Europay v Commission, paragraphs 136 and 137; SPO and Others v Commission, paragraph 385; and Case T‑338/94 Finnboard v Commission, paragraph 270). 318 However, that case-law does not rule out the possibility that, in certain cases, the turnover of the members of an association could also be taken into account even if the association does not possess formal power to bind its members, there being no internal rules enabling it to do so. The Commission’s option of imposing fines of an amount appropriate to the infringements at issue could otherwise be jeopardised, as associations with a very small turnover but bringing together a large number of undertakings which could not be formally bound but which together have a substantial turnover could be sanctioned only by very small fines, even if the infringements for which they were responsible could have a considerable influence on the markets in question. Furthermore, this eventuality would run counter to the need to ensure that sanctions for infringements of the Community competition rules have a deterrent effect. 319 Therefore, the Court considers that other specific circumstances, beyond the existence of internal rules enabling the association to bind its members, may justify taking account of the aggregate turnover of the members of the association in question. This applies in particular to cases where an infringement on the part of an association involves its members’ activities and where the anti-competitive practices at issue are engaged in by the association directly for the benefit of its members and in cooperation with them, the association having no objective interests independent of those of its members. Although, in some of those situations, the Commission could impose individual fines on each of the member undertakings in addition to sanctioning the association in question, this could be particularly difficult or impossible where the number of members is very large. 320 In the present case, it must be noted, first, that the primary task of the applicant federations is to defend and to represent the interests of their basic members, namely farmers, cooperative associations and slaughterers. As far as the applicants in Case T-245/03 are concerned, the object of FNSEA is to represent and defend the interests of the farming profession and, for that purpose, it organises, coordinates and harmonises all the trade interests of farmers who are members of the basic unions (Article 8 of its statutes); FNB’s object is the organisation, representation and defence of the common interests of all producers of beef cattle (Article 7 of its statutes); FNPL’s task is the coordination, organisation, representation and defence of the interests of all producers of milk and dairy products (Article 6 of its statutes); lastly, JAs have the task of representing young farmers and defending their interests (Article 6 of its statutes). With regard to the applicant in Case T-217/03, under Article 2(1) of its statutes, it has the task of uniting and defending the trade interests of its members, including associations of cattle producers and their branches operating abattoirs. 321 Second, the disputed agreement did not relate to the activity of the applicants themselves but to that of their basic members. The applicants do not sell, buy, or import beef. Consequently, the undertaking to suspend imports and the establishment of a minimum price scale are not of direct concern to them. The measures laid down in the disputed agreement affected only the applicants’ basic members who were, furthermore, the ones who had to put them into practice. 322 Third, it must be observed that the disputed agreement was concluded directly for the benefit of the applicants’ basic members. With regard, first, to the farmers’ federations, the object of the agreement was to enable their members who are cattle farmers to sell their production and to obtain profitable prices so as to deal with the crisis in the sector at the material time. Second, with regard to the slaughterers’ federations, it must be noted that, although the measures adopted, that is to say, the fixing of minimum prices and the suspension or limitation of imports, may appear potentially contrary to the interests of slaughterers in so far as they could have entailed an increase in their operating costs, nevertheless the conclusion of the disputed agreement had the aim, in the context of the tensions in the present case, of enabling the slaughterers to carry on their business and to reduce to some extent the threats to it. Accordingly the disputed agreement expressly provides that the federations representing slaughterers concluded the agreement ‘in consideration for lifting the blockade of abattoirs’. 323 Fourth, it must be observed that, as already stated, the disputed agreement was put into effect by the conclusion of local agreements between department federations and local farmers’ unions, that is to say, the members of the applicants in Case T‑245/03, and the slaughterers (see paragraphs 112 to 115 above). In addition, specific actions on the part of groups of farmers monitored the implementation of the stipulations of the agreement. 324 In those circumstances, the Court considers that, in the present case, it was justified in taking into account the turnover of the applicants’ basic members for the purpose of calculating the 10% upper limit referred to in Article 15(2) of Regulation No 17. In particular, those turnover figures alone gave an adequate indication in the present case of the applicants’ economic strength and, therefore, of the influence which they were able to exert on the markets in question. 325 The option of taking into account the turnover of the applicants’ basic members must however be confined in the present case to those of their members who operated in the markets affected by the infringements sanctioned in the contested decision, namely the beef farmers, slaughterers and meat-processing undertakings. It must be borne in mind that, with the exception of FNB and, to a smaller extent, FNPL, only a small number of the applicants’ direct and indirect members had interests in the stock-farming sector, in the case of the applicants in Case T‑245/03, and in cattle-slaughtering in the case of the applicant in Case T‑217/03. In actual fact, the agreement did not relate to the activity of the applicants’ members who did not operate in the cattle markets, it was not concluded for their benefit and those members probably did not take part in implementing the contested measures. Consequently, their turnover figures cannot be used in the present case for calculating the 10% upper limit. 326 It is in the light of the foregoing considerations that it must be considered whether the fines imposed in the applicants in the contested decision exceeded the limit of 10% of turnover laid down by Article 15(2) of Regulation No 17. 327 Thus, so far as the applicant in Case T-217/03 is concerned, the estimates it gave in its letter of 27 January 2003 to the Commission show that its fine represented between 0.05 and 0.2% of the 2002 turnover of the cooperative slaughtering and processing undertakings which are its members, depending on whether or not those which are at the same time members of the applicant and of the Syndicat national de l’industrie des viandes (SNIV), the specialised union which brings together the large industrial undertakings in the sector, are taken into account. 328 For the applicants in Case T‑245/03, the Court has no exact figures relating to the turnover of stock farmers who are its members. At first during the administrative procedure, at the request of the Commission, and subsequently in the present action, at the request of the Court, the applicants claimed that they could not produce even approximate figures for the turnover of their farmer members. The applicants were likewise unable to inform the Court of the number of stock farmers who are basic members of FNSEA and of JA respectively and the applicants claimed that FNB and FNPL, strictly speaking, have no basic members. 329 However, the applicants in Case T-245/03 stated that in 2002 the turnover in France from production in the sector of adult cattle was EUR 4 552 billion and that the turnover from the slaughter of adult cattle was EUR 3 430 billion. Taking account of the smaller of those two figures, it must be concluded that the applicants’ fines do not exceed the upper limit of 10% of the turnover of their stock farmer members if they accounted for at least 3.5% in the case of FNSEA, 0.42% in the case of FNB, 0.18% in the case of JA and 0.42% in the case of FNPL of the abovementioned overall turnover. None of the applicants denies that its members account for a significant proportion of the turnover from the slaughter of adult cattle in France. In that connection the Court points out that, in reply to a question put by the President of the Court of First Instance, the applicants in Case T‑245/03 admitted that the members of FNSEA could represent approximately 50% of the 240 000 farmers with more than five adult cattle in France (order in Case T-245/03 R FNSEA and Others v Commission [2004] ECR II-271, paragraph 89). 330 The Court considers that, in those circumstances, it has been sufficiently established that the fines imposed on the applicants in Case T-245/03 do not exceed the upper limit of 10% of the turnover of their respective members. 331 This finding cannot be undermined by the applicants’ argument that, as they have common members, the Commission ought to have taken into account, for each federation, only the aggregate income of the farmers who are members of that federation alone. In actual fact, as the applicants point out, all the farmers who are direct or indirect members of FNB, FNPL or JA are at the same time indirect members of FNSEA. However, for the purpose of verifying observance of the upper limit of 10% of turnover, it is sufficient in the present case if the aggregate total of the fines imposed on the four applicants in Case T-245/03 is below 10% of the turnover of the farmers who are basic members of FNSEA, the federation which brings together the three other applicant federations. For that limit not to be exceeded in the present case, it is sufficient if the turnover of the farmers who are basic members of FNSEA represents at least 4.52% of the turnover from the slaughter of adult cattle in France. For the reasons given above, the Court considers that that is the case here. 332 Lastly, the applicants in Case T-245/03 cannot plead that FNB and FNPL have, strictly speaking, no members in so far as no farmer joins them, whether directly or indirectly. It must be observed that those federations receive membership fees from the department federations (by reference to the total number of cattle in the department and the litres of milk produced there). The department federations bring together the local unions to which the farmers belong. Therefore, the beef farmers may, for the purpose of calculating the 10% limit of turnover, be regarded as basic members of FNB and FNPL, in the same way as they are deemed to be basic members of FNSEA. 333 In the light of all the foregoing, the Court finds that the fines imposed on the applicants in the contested decision do not exceed the upper limit of 10% of the turnover of their respective members. 334 Therefore, this plea must be dismissed. E – Fifth plea: infringement of the rule against cumulation of penalties 1. Arguments of the parties 335 The applicants point out that the rule against cumulation of penalties or the principle ne bis in idem prevents a person from being penalised more than once for the same offence. That principle, which is laid down in Article 4 of Protocol No 7 to the ECHR, is consistently applied in Community competition law (Case 7/72 Boehringer Mannheim v Commission [1972] ECR 1281, paragraph 3) and is a fundamental principle of Community law (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, paragraph 59). 336 The applicants submit that the contested decision penalised the same persons more than once for the same infringement in so far as FNB, JA and FNPL are members of FNSEA. The natural persons (beef farmers) who belong to local unions could indirectly belong to FNSEA and to FNB, as well as to FNPL (if they have dairy cows) and to JA (if they are under 35 years of age). Likewise, certain members of the applicant in Case T-217/03 are also members of FNSEA. Consequently, a number of fines have been imposed on those persons, although the Commission has only been able to find – indirectly – a single infringement. The applicants dispute the Commission’s argument that the principle of ne bis in idem does not apply in the present case because there is only one procedure. The parallel procedures initiated by the Commission against the applicants led to the repetition of the penalties imposed on them. In addition, the application of that principle cannot be limited to situations where proceedings are brought against undertakings for the same infringement by more than one competition authority. 337 Furthermore, the applicants in Case T‑245/03 state that, in setting the basic amount of the fines, the Commission proceeded on the basis of the ratio between the total annual fees received by FNSEA and those received by each of the other relevant federations. The ratios used are inaccurate however, in that FNB and FNPL repay to FNSEA a portion of the annual fees received by them (namely, in 2001, approximately 10%, corresponding to EUR 60 979, in the case of FNB, and 15%, representing EUR 181 670, in the case of FNPL). The ratios used should therefore be reduced accordingly. 338 The French Government observes that it cannot be disputed that, in the present case, natural persons are members of different federations, even if only by reason of the affiliation of certain federations to FNSEA and therefore those persons have been fined twice for one and the same infringement of competition law. That amounts to imposing an excessive fine on them and is contrary to the principle of proportionality. 339 The Commission observes that, in Community case-law, the principle ne bis in idem applies in cases where an undertaking which has borne (or may bear) a penalty imposed at Community level for infringements of the competition rules has also borne (or may bear) a penalty in other proceedings in a non-member country or in a Member State (see, to that effect, Case 14/68 Wilhelm and Others [1969] ECR 1, and Boehringer Mannheim v Commission, cited above). According to the Commission, the mere fact that the actions complained of are identical is not sufficient to justify the application of that principle, because it is also necessary for the parties to be identical. In the present case, proceedings were initiated against each federation for its own participation in the infringement, each federation being necessary, by virtue of its own influence on the market, for the agreement to be effective. The fact that certain persons are members of more than one of the federations does not diminish the fact that each of the applicants took part in the agreement. Lastly, the proportionality of the fines imposed on several federations with common members is ensured by the 10% limit of turnover, but cannot mean that those members must be exempt. 2. Findings of the Court 340 It is clear from the case-law that the principle ne bis in idem is a general principle of Community law which is upheld by the Community Courts. In the field of Community competition law, the principle precludes an undertaking from being sanctioned by the Commission or made the defendant to proceedings brought by the Commission a second time in respect of anti-competitive conduct for which it has already been penalised or of which it has been exonerated by a previous decision of the Commission that is not amenable to challenge (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II-2597, paragraphs 85 and 86, and Tokai Carbon and Others v Commission, paragraphs 130 and 131). The application of the principle ne bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset (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 Portlandand Others v Commission [2004] ECR I‑123, paragraph 338). 341 In the present case, the Commission fined the applicant federations by reason of the participation and the degree of responsibility of each one of them in the infringement (see recital 169 and Articles 1 and 3 of the contested decision). In actual fact, all the applicants took part, albeit with different degrees of involvement and with different consequences, in the infringements penalised by the contested decision. In particular, all the applicant federations signed the agreement of 24 October 2001. Therefore, the Commission was entitled to fine each federation which took part in the disputed agreement on the basis of the individual role played by each one in the signature and implementation of the agreement and of the attenuating and aggravating circumstances relevant to each of them. 342 Contrary to the submissions of the applicants in Case T-245/03, this finding cannot be undermined by the fact that FNB, FNPL and JA are members of FNSEA. The fact is that those federations have independent legal personality and separate budgets and their objects do not always coincide. They thus carry out their respective union activities in defence of their own specific interests (see paragraph 320 above). The fact that those federations to a large extent coordinated their actions and those of their respective members in the present case in the pursuit of common aims does not diminish the respective responsibility of each federation for the infringement. 343 Furthermore, contrary to what the applicants appear to argue, the contested decision did not impose penalties on their basic members, whether direct or indirect. Taking into account the turnover of the members of an association of undertakings in determining the 10% limit does not mean that a fine has been imposed on them or even that the association in question has an obligation to recover the amount of the fine from its members (CB and Europay v Commission, paragraph 139). As the individual farmers who are indirect members of the applicant federations in Case T‑245/03 were not penalised in the contested decision, it cannot be concluded that the fact that the basic members of FNB, FNPL and JA are also members of FNSEA prevented the Commission from penalising each of those federations individually. It is all the more irrelevant that some of the members of the applicant in Case T-217/03 are also members of FNSEA. 344 It follows that the offenders in the present case are not identical, as the contested decision does not penalise the same entities more than once or the same persons for the same acts. Therefore, it must be concluded that the principle ne bis in idem was not infringed. Likewise, as the applicants’ members, whether direct or indirect, were not fined twice for one and the same infringement, contrary to the French Government’s argument, nor was the principle of proportionality infringed. 345 Moreover, the applicants in Case T-245/03 must fail in their argument that, when setting the basic amount of the fines, the Commission wrongly calculated the ratio between the annual membership fees received by FNSEA and the fees paid to FNB and FNPL. In particular, contrary to the applicants’ argument, the Commission was not required to adjust the FNB and FNPL figures by subtracting from them the fees paid by those federations to FNSEA. As the fees were taken into account as an objective indication of the relative size of each federation, the Commission was right to take the view that the relevant figures were their respective overall fees, which reflect the degree of representativeness of each applicant. 346 Consequently, this plea must be dismissed. F – Sixth plea: manifest error of assessment in taking account of the circumstances provided for by Section 5(b) of the Guidelines 1. Arguments of the parties 347 The applicant in Case T-217/03 asserts that the 60% reduction made by the Commission pursuant to Section 5(b) of the Guidelines to take account of the particular context of the beef crisis should have been applied to the basic amount of the fine and not to the figure resulting after the increases in and deductions from the basic amount for aggravating and attenuating circumstances respectively. There is no justification for derogating from the principle for determining fines, set out in Section 2 of the Guidelines, consisting in calculating a basic amount and increasing or reducing it by a percentage. In the alternative, the applicant claims that the Commission ought to have taken the economic context into account as an attenuating circumstance, as it has done in other cases. 348 The applicants in Case T-245/03 submit, for their part, that the Commission, in applying Section 5(b) of the Guidelines, did not draw the appropriate conclusions from the following circumstances, set out in the contested decision (see recitals 181 and 184): first, it is not the applicants’ object to make a profit; second, the specific characteristics of the agricultural product in question; third, the fact that the Commission penalised for the first time an agreement concluded entirely between federations and which relates to a basic agricultural product and involves two links in the production chain; fourth, the specific context of exceptional crisis. The applicants observe in that connection that, in a decision of 3 February 2003, the United Kingdom competition authorities did not fine a Northern Ireland beef producers’ association which concluded a price agreement, in view of the context in which the agreement was made, marked also by the ‘mad-cow’ crisis and the foot-and-mouth epidemic. The applicants note that, in the present case, such factors did not cause the Commission to make an adequate adjustment to the fines, as a result of which the ultimate amounts remain exorbitant. 349 The Commission contends that the argument of the applicant in Case T‑217/03 concerning the method of calculating the reduction relating to the circumstances provided for in Section 5(b) of the Guidelines disregards both the letter and the spirit of the Guidelines. The complaint that the economic context ought to have been taken into account as an attenuating circumstance is a new plea and is therefore inadmissible. As for the submissions of the applicants in Case T‑245/03, the Commission observes that the 60% reduction in the fine allowed in the present case has no equivalent in its past decisions. 2. Findings of the Court 350 Section 5(b) of the Guidelines reads as follows: ‘Depending on the circumstances, account should be taken, once the above calculations have been made, of certain objective factors such as a specific economic context, any economic or financial benefit derived by the offenders …, the specific characteristics of the undertakings in question and their real ability to pay in a specific social context, and the fines should be adapted accordingly.’ 351 In the present case, the Commission took account of the specific economic context, marked in particular by the serious crisis in the beef sector, and reduced by 60% the amount resulting from an increase or a reduction in the basic amount of the fines by reason of the aggravating or attenuating circumstances taken into consideration. 352 First, the argument of the applicant in Case T-217/03 that the abovementioned 60% reduction ought to have been applied to the basic amount of the fine and not the amount as already increased and reduced by reason of aggravating and attenuating circumstances must be dismissed. The Guidelines deal with aggravating and attenuating circumstances in Sections 2 and 3 respectively, which state that ‘the basic amount will be increased’ and ‘the basic amount will be reduced’. Section 5(b), by contrast, provides that other circumstances are to be taken into consideration ‘once the above calculations have been made’ and provides that ‘the fines should be adjusted accordingly’. It must therefore be concluded that the calculation method used by the Commission complied with the provisions of the Guidelines. 353 Second, with regard to the alternative submission of the applicant in Case T‑217/03, to the effect that the economic context ought to have been taken into account as an attenuating circumstance, it must be pointed out that this was not raised at the reply stage and is therefore a new plea which must be dismissed pursuant to Article 48(2) of the Rules of Procedure. In any case, it must be observed that Section 5(b) of the Guidelines refers expressly to taking account of the specific economic context of a case; that criterion is not, however, expressly mentioned in Section 3 of the Guidelines, which deals with attenuating circumstances. Consequently, it must be found that the Commission did not err in taking into consideration the specific economic context pursuant to Section 5(b) of the Guidelines and not by way of attenuating circumstances, as the applicant wished. 354 Third, regarding the reference to the decision of United Kingdom competition authorities of 3 February 2003, suffice it is to note that, in assessing the circumstances of the present case, the Commission is not bound by decisions of national authorities in other, somewhat similar cases. 355 Fourth and lastly, it is necessary to reply to the applicants’ arguments that the Commission did not draw all the appropriate inferences from the circumstances of the present case and ought to have made an even greater reduction in the fines pursuant to Section 5(b) of the Guidelines. 356 It must be observed that, in the contested decision, the Commission, in applying the abovementioned provision, took into account the fact that the contested decision was the first to penalise an agreement concluded entirely between union federations relating to a basic agricultural product and involving two links in the production chain, as well as the specific economic context of the case, which went beyond a mere fall in prices or the presence of a well-known disease. The economic context was characterised by the following factors: first, the drop in the consumption of beef as a result of the ‘mad-cow’ crisis, which affected a sector already in a difficult situation; second, intervention measures taken by the Community and national authorities aimed at restoring balance in the beef market; third, the loss of consumer confidence, linked to the fear of ‘mad cow’ disease; fourth, the situation of farmers who, despite Community adjustment measures applied by France, were faced with slaughterhouse entry prices for cows which were falling again, while consumer prices remained stable (recitals 181 to 185 of the contested decision). 357 Having regard to all those circumstances, the Commission decided, pursuant to Section 5(b) of the Guidelines, to allow the applicants a 60% reduction in the fines. 358 It must be borne in mind that, while the Commission has discretion in setting the amount of fines, the Court has, by virtue of Article 17 of Regulation No 17, unlimited jurisdiction within the meaning of Article 229 EC to review decisions whereby the Commission has fixed a fine and may, consequently, cancel, reduce or increase the fine imposed. 359 In the present case, the Court considers that the different consequences identified and taken into account by the Commission in the contested decision pursuant to section 5(b) of the Guidelines are very exceptional. Their exceptional nature arises from the particular characteristics of the applicants, their functions and their respective spheres of activity, as well as from the circumstances inherent in the economic context of this particular case. 360 The Court considers that the 60% reduction in the fines decided upon by the Commission pursuant to Section 5(b) of the Guidelines, although substantial, does not take sufficient account of all those exceptional circumstances. 361 Therefore, to take full and proper account of all the circumstances identified by the Commission in the contested decision and in consideration of the fact that this is the first time that the Commission has sanctioned this type of anti-competitive conduct, the Court, asserting its unlimited jurisdiction, considers it appropriate to set at 70% the reduction to be allowed in the applicants’ fines pursuant to Section 5(b) of the Guidelines. III – Method of calculation and final amount of fine 362 In paragraphs 241 and 245 above, the Court has found that, in the contested decision, the Commission failed to state reasons in that it did not state that it had used the turnover of the applicants’ basic members for the purpose of ensuring that the fines did not exceed the upper limit of 10% provided for by Article 15(2) of Regulation No 17; nor did it set out the circumstances which enabled it to take account of those aggregate turnover figures. However, it must be observed that, in paragraphs 324 and 325 above, the Court has found that, in the present case, the Commission was entitled to take into account the turnover of the applicants’ basic members for the purpose of calculating the upper limit, provided that they operated in the markets affected by the infringements sanctioned in the contested decision. 363 The Court considers that, in those circumstances, the failure to state reasons should not entail the annulment of the contested decision as that could only lead to the adoption of another decision identical in substance to the decision annulled (see, to that effect, Case T‑16/02 Audi v OHIM (TDI) [2003] ECR II-5167, paragraph 97), or any alteration in the amount of the fines. 364 However, as appears from paragraph 361 above, the fines imposed on the applicants should be reduced by 70% pursuant to Section 5(b) of the Guidelines, instead of the 60% reduction applied by the Commission. Accordingly, the amounts of the fines are set at: – EUR 360 000 for the applicant in Case T‑217/03; – EUR 9 000 000 for FNSEA; – EUR 1 080 000 for FNB; – EUR 450 000 for JA; – EUR 1 080 000 for FNPL. Costs 365 Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that each party bear its own costs. In the present case, it is appropriate to order the applicants to bear their own costs in the main proceedings and to pay three‑quarters of the costs incurred by the Commission in those proceedings. The Commission is to bear one-quarter of its own costs in the main proceedings and all costs in the proceedings for interim measures. 366 Under Article 87(4) of the Rules of Procedure, the French Republic, which intervened in the proceedings, is to bear its own costs. On those grounds, THE COURT OF FIRST INSTANCE (First Chamber) hereby: 1. Sets the amount of the fine imposed on the Fédération nationale de la coopération bétail et viande, the applicant in Case T-217/03, at EUR 360 000; 2. Sets the amount of the fines imposed on the applicants in Case T-245/03 as follows: EUR 9 000 000 for the Fédération nationale des syndicats d’exploitants agricoles, EUR 1 080 000 for the Fédération nationale bovine, EUR 1 080 000 for the Fédération nationale des producteurs de lait and EUR 450 000 for Jeunes agriculteurs; 3. Dismisses the remainder of the application; 4. Orders the applicants to bear their own costs in the main proceedings and to pay three-quarters of those of the Commission in the main proceedings; 5. Orders the Commission to bear one-quarter of its costs in the main proceedings and to pay all the costs in the proceedings for interim measures; 6. Orders the French Republic to bear its own costs. García-Valdecasas Cooke Labucka Delivered in open court in Luxembourg on 13 December 2006. E. Coulon J.D. Cooke Registrar President Table of contents Legal context Facts I – Second ‘mad cow’ crisis II – Conclusion of the contested agreements and administrative procedure before the Commission III – The contested decision Procedure and forms of order sought Merits of the case I – The claims for annulment of the contested decision A – First plea in law: manifest errors of assessment and errors of law in the assessment of the conditions required for the application of Article 81(1) EC 1. Description of the applicants as associations of undertakings a) Arguments of the parties b) Findings of the Court 2. No appreciable effect on trade between Member States a) Arguments of the parties b) Findings of the Court 3. No restriction of competition a) Arguments of the parties b) Findings of the Court 4. Classification of trade union activities a) Arguments of the parties b) Findings of the Court B – Second plea in law: manifest errors of assessment and errors of law in assessing the extent and duration of the infringement 1. Preliminary questions a) The taking into account of local agreements Arguments of the parties Findings of the Court b) Organisation, selection, quotation and interpretation of the documents in the file Arguments of the parties Findings of the Court 2. The attribution to the applicants of an agreement relating to imports a) Arguments of the parties b) Findings of the Court 3. Attribution to the applicants of a secret verbal agreement after the end of November 2001 a) Arguments of the parties b) Findings of the Court Preparation for the renewal of the agreement Renewal of the agreement at the meetings of 29 November and 5 December 2001 – Meeting of 29 November 2001 – Meeting of 5 December 2001 Implementation of the agreement after the end of November 2001 Findings C – Third plea in law: non-application of the exception provided for by Regulation No 26 1. Arguments of the parties 2. Findings of the Court D – Fourth plea: infringement of the rights of the defence 3. Arguments of the parties 2. Findings of the Court E – Fifth plea in law: failure to state reasons 1. Arguments of the parties 2. Findings of the Court II – Submissions on the cancellation or reduction of the fine A – First plea: unlawfulness of the Guidelines 1. Arguments of the parties 2. Findings of the Court B – Second plea: infringement of the principle of proportionality, manifest error of assessment and error of law in determining the gravity of the infringement 1. Arguments of the parties 2. Findings of the Court C – Third plea: errors of assessment and of law and infringement of the principle of proportionality in taking account of aggravating and attenuating circumstances 1. Aggravating circumstances: continuation of the agreement in secret a) Arguments of the parties b) Findings of the Court 2. Aggravating circumstances: the use of violence a) Arguments of the parties b) Findings of the Court 3. Failure to take account of attenuating circumstances a) Arguments of the parties b) Findings of the Court D – Fourth plea: infringement of Article 15(2) of Regulation No 17 in setting the amount of the fines 1. Arguments of the parties 2. Findings of the Court E – Fifth plea: infringement of the rule against cumulation of penalties 1. Arguments of the parties 2. Findings of the Court F – Sixth plea: manifest error of assessment in taking account of the circumstances provided for by Section 5(b) of the Guidelines 1. Arguments of the parties 2. Findings of the Court III – Method of calculation and final amount of fine Costs * Language of the case: French.