Judgment — ECLI:EU:T:2006:74
Date: 2006-03-15
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Determining the amount of the fine;Hearing of persons concerned and of third parties / Access to the file;Professional secrecy
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded;Appeal against penalty - successful
Origin: Germany

summary form, of the purpose of the meetings. Since the concept of decisive evidence cannot be interpreted as referring to evidence which is sufficient in itself to prove the infringement (see paragraph 492 above), it must be found that, in so far as Roche, by that statement, disclosed specific facts amounting to an infringement, it was the first undertaking to adduce decisive evidence within the meaning of Section B(b) of the Leniency Notice as regards the infringement relating to vitamin C. 569 It should be noted that the applicant itself, in its observations on the documents disclosed by the defendant after the hearing and relating to Roche’s cooperation, when dealing, in the alternative, with the possibility that the Court would not accept its primary argument that decisive evidence was supplied jointly by BASF and Roche at the meeting on 17 May 1999, did not include the cartel in respect of vitamin C amongst those for which it should be regarded as having been the first to adduce decisive evidence, since that cartel was already covered by Roche’s statement of 2 June 1999. The applicant does not challenge the voluntary nature of the cooperation provided by Roche in that statement, which, for the same reasons referred to in paragraph 562 above in respect of BASF’s statement of 15 June 1999, likewise cannot be affected by the Commission’s request for information sent to Roche on 26 May 1999. 570 Consequently, since the applicant does not satisfy the condition in Section B(b) of the Leniency Notice as regards the infringement relating to vitamin C, it cannot avail itself of that section in respect of that infringement. d) Application to the applicant of Section B of the Leniency Notice as regards the infringements relating to beta-carotene and carotinoids 571 In order to ensure protection of the legitimate expectation which Section B of the Leniency Notice engendered in the applicant, the Court must, in the exercise of its unlimited jurisdiction, determine the appropriate amount of the reduction in the fine which should be accorded to the applicant under that section for the infringements relating to beta-carotene and carotinoids (see, to that effect, Tate & Lyle and Others v Commission, paragraph 190 above, paragraphs 162 to 166; ABB Asea Brown Boveri v Commission, paragraph 192 above, paragraphs 244, 245, 260 and 261; Case T-230/00 Daesang and Sewon v Commission [2003] ECR II-2733, paragraphs 144 and 145; and Tokai Carbon and Others v Commission, paragraph 131 above, paragraphs 416 to 418, 440 and 455). 572 The Court notes in that regard that the applicant made its first overtures to the Commission well after the investigation had been initiated by the United States anti-trust authorities into the cartels in the vitamin sector and shortly before the signing of the plea agreement. Thus BASF’s cooperation, although voluntary – in that it was not the result of the exercise of the Commission’s investigative powers with regard to the applicant –, was nevertheless secured as a result of the pressure arising from the signing of the plea agreement and from the risk that the Commission would take action as a result. Whilst it is true that – unlike the cartel arrangements in respect of beta-carotene, which are clearly covered by the American investigation as is apparent from pages 3 and 4 of the explanatory memorandum accompanying the plea agreement –, the cartel arrangements in respect of carotinoids did not attract the attention of the United States Department of Justice, their detection in any investigation by the Commission, prompted by the signing and disclosure of the plea agreement, certainly could not be ruled out. 573 Furthermore, for the two infringements in question, account must be taken of the fact that, whilst BASF’s role was not such as to preclude that undertaking from satisfying the condition referred to in Section B(e) of the Leniency Notice, its importance, in a cartel of just two undertakings, remains clear. Moreover, BASF’s active role in those infringements is apparent in particular from the fact that it made compensatory purchases from Roche when it was found that it had exceeded the overall quota allocated for beta-carotene (see pages 15 and 16 of BASF’s statement of 15 June 1999 and recital 521 of the Decision) and from the fact that it had succeeded in negotiating with Roche its entry into the astaxanthin market, a pink carotinoid (see pages 16 and 17 of BASF’s statement of 15 June 1999 and recitals 525 and 527 of the Decision). 574 In the light of such circumstances, the Court finds that it is appropriate to accord the applicant a reduction under Section B of the Leniency Notice of 75% of the amount, calculated before the application of that notice, of the fines which were imposed on it for the infringements relating to beta-carotene and carotinoids. e) Conclusion on the sixth plea 575 Following the assessment of the present plea and the exercise of the Court’s unlimited jurisdiction to which that assessment has given rise, the Court, first, upholds the applicant’s exclusion from the benefit of Section B of the Leniency Notice for the infringements relating to vitamins A, E, B2, B5, C and D3 and, second, accords the applicant a reduction, under that section, of 75% of the amount, calculated before the application of that notice, of the fines imposed on it for the infringements relating to beta-carotene and carotinoids. F – Seventh plea: insufficiency, irrespective of the Leniency Notice, of the reduction in the applicant’s fines on account of cooperation 1. Arguments of the parties 576 The applicant complains that, irrespective of the Leniency Notice, the Commission did not grant it a greater reduction in its fine on account of its cooperation – which it states was exemplary because it was early, complete, and continuous – with the Commission’s investigation. 577 The applicant was the first undertaking to offer to cooperate before the Commission had begun its investigation and it cooperated fully with the Commission throughout the investigation, in particular by offering to make senior BASF executives available at short notice, by providing the Commission with a complete, detailed account of the illegal activity, by providing extensive useful information and explanations, some of which were not even requested, and by sending the Commission meticulous reports that form the basis of large parts of the Decision. The significance of BASF’s evidence is acknowledged at various points in the Decision, which expressly admits in recital 745 that that evidence was decisive for the purpose of establishing the infringements relating to vitamins A, E, B2, B5, C and D3, to beta-carotene and to carotinoids. The applicant went much further than was required under Sections B and C of the Leniency Notice, as it took the unprecedented initiative of dismissing several senior executives with direct responsibility for the cartel and also arranged further competition‑law awareness and compliance programmes, going beyond what it claims were the already considerable efforts which it had previously made in that sphere. 578 It observes that the Court of First Instance has unlimited jurisdiction to alter the amount of fines and is not bound by the Guidelines or the Leniency Notice; it refers in that regard, to the judgment in Tate & Lyle and Others v Commission, paragraph 190 above (paragraph 163), and observes that, in that judgment (paragraph 165), the Court held that a 50% reduction in the fine which would have been imposed on Tate & Lyle in the absence of cooperation was not sufficient in view of the significance and the continuous and complete character of its cooperation, and that the Court allowed a 60% reduction, notwithstanding the significant role which Tate & Lyle had played within the cartel and certain shortcomings in its cooperation. The applicant therefore requests the Court to exercise its discretion to reduce the fines on it still further, on account of the applicant’s cooperation with the Commission. 579 The defendant contends that the applicant’s claim for a reduction of more than 50% in its fines outside the scope of the Leniency Notice is unfounded, because (i) the Decision has already taken the applicant’s behaviour into account in allowing a reduction under Section D of the Leniency Notice and (ii) in any event the applicant does not deserve a reduction in the fines outside the scope of the Leniency Notice. 2. Findings of the Court 580 According to Section A, paragraph 3, first sentence, of the Leniency Notice, the notice ‘sets out the conditions under which enterprises cooperating with the Commission during its investigation into a cartel may be exempted from fines, or may be granted reductions in the fine which would otherwise have been imposed upon them’. Thus Section D, first paragraph, of the notice provides, to the benefit of the undertaking concerned, for a reduction of 10% to 50% of the fine ‘that would have been imposed if it had not cooperated’. 581 The applicant, which received a reduction of 50% under Section D of the Leniency Notice in respect of all the infringements for which a fine was imposed on it, is in essence asking the Court to assess and reward its cooperation without reference to the provisions of that notice, which, it claims, are not binding on the Court. 582 It must be observed in that regard that the review which the Court is required to exercise in respect of a Commission decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement and imposing fines is confined to a review of the legality of that decision. It is possible for the Court to exercise its unlimited jurisdiction under Article 229 EC and Article 17 of Regulation No 17 only where it has made a finding of illegality affecting the decision, of which the undertaking concerned has complained in its action, and in order to remedy the consequences which that illegality has for determination of the amount of the fine imposed, by annulling or adjusting that fine if necessary. 583 However, by its present plea, the applicant is not complaining that the Commission acted unlawfully when assessing, in the light of the Leniency Notice, its cooperation with the investigation, nor does it assert that the notice – it being common ground that the Commission applied it to the applicant – is unlawful. 584 Moreover, the applicant’s argument finds no support in the judgment in Tate & Lyle and Others v Commission, paragraph 190 above. Although in that judgment the Court (see paragraphs 157 to 165) did indeed hold that the 50% reduction in the amount of the fine granted to Tate & Lyle by the Commission was not sufficient in the light of the significance and complete and continuous nature of the cooperation offered by that undertaking and that it was necessary to increase that figure to 60%, it did so on account of an error committed by the Commission when it applied the condition in Section B(d) of the notice. That judgment, in which it was found that the extent of the cooperation provided by the undertaking in question had not been correctly assessed by the Commission under the Leniency Notice, cannot therefore be regarded in any way as a precedent for a departure by the Court from the scope of that notice in order freely to assess and reward that undertaking’s cooperation. 585 It should, however, be noted that the possibility of granting, to an undertaking which has cooperated with the Commission during proceedings for infringement of the competition rules, a reduction of the fine outside the framework laid down by the Leniency Notice is recognised by the Guidelines, the sixth indent of Section 3 of which provides for the taking into account, as an attenuating circumstance, of ‘effective cooperation by the undertaking in the proceedings, outside the scope of the [Leniency Notice]’. 586 However, even if this plea, notwithstanding its failure to rely expressly on the sixth indent of Section 3 of the Guidelines, could be interpreted as seeking a finding that the Commission should have granted the applicant another reduction of its fine under that provision, it must be pointed out that the infringements in the present case fall well within the scope of application of the Leniency Notice, Section A.1, first subparagraph, of which refers to secret cartels aimed at fixing prices, production or sales quotas, sharing markets or banning imports or exports. The applicant cannot therefore validly complain that the Commission failed to take into account the extent of its cooperation as an attenuating circumstance outside the legal framework of the Leniency Notice (see, to that effect, HFB and Others v Commission, paragraph 227 above, paragraphs 609 and 610, confirmed on appeal, in particular on that point, by the judgment in Dansk Rørindustri and Others v Commission, paragraph 48 above, paragraphs 380 to 382). 587 Moreover, such a complaint cannot be levelled at the Commission, even if it were necessary to accept that cooperation with an investigation into horizontal cartels which fix prices and share sales is capable of being rewarded under the sixth indent of Section 3 of the Guidelines. 588 If that were to be the case, a reduction under that provision would necessarily mean that the cooperation in question was not capable of reward under the Leniency Notice and that it was effective, that is to say that it would have facilitated the Commission’s task of finding and putting an end to infringements of the competition rules (Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 269 above, paragraph 300, and Mannesmannröhren-Werke v Commission, paragraph 95 above, paragraph 308). 589 However, in the present case the applicant relies (i) on circumstances (namely reports, explanations and evidence submitted during the proceedings) which, as the defendant correctly points out, have already produced for it the maximum reduction possible under Section D of the Leniency Notice (50%) and (ii) on circumstances (the dismissal of several senior executives implicated in the cartels and the implementation of further anti-trust compliance and awareness programmes) which were not of such a nature as to facilitate the Commission’s task of finding and putting an end to the infringements in question. Besides, no particular significance can be attached to the proposal made to the Commission of placing senior management at its disposal so that they might provide evidence, since it can be considered that the information which they might have been able to supply to the Commission in such a context must have been, or in any event, could have been included by the applicant in the reports which it presented to the Commission during the procedure. 590 In those circumstances, the present plea must be rejected. G – Eighth plea: breach of professional secrecy and of the principle of sound administration 1. Arguments of the parties 591 The applicant submits that the Commission breached its obligation of professional secrecy under Article 287 EC and in its duty of sound administration by disclosing to the media, before the adoption of the Decision, important parts of the Decision concerning the overall fine imposed on BASF. An extremely accurate report quoting the record fine later imposed on BASF was published in the Financial Times on the morning of 21 November 2001, that is to say, before the meeting of the college of commissioners. The same article was posted on the FinancialTimes website the previous day. Other similar reports were published on 20 and 21 November 2001. 592 In its judgment in Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, paragraph 281, the Court found that, in proceedings in which a penalty may be imposed, the nature and amount of the penalty proposed are by their very nature covered by business secrecy until the penalty has been finally approved and announced. According to that judgment, moreover, that principle follows, in particular, from the need to have due regard for the reputation and standing of the person concerned during a period in which no penalty has been imposed on that person and is coterminous not merely with the duty to respect professional secrecy, but also with the duty of sound administration. 593 The applicant observes that, according to settled case-law, premature disclosure of the fine may lead to annulment of the decision in question if it is established that the content of the decision would have been different if that irregularity had not occurred (Suiker Unie and Others v Commission, paragraph 80 above, paragraph 91; Case T‑43/92 Dunlop Slazenger v Commission [1994] ECR II-441, paragraph 29; and Volkswagen v Commission, paragraph 592 above, paragraph 283). In the present case, however, to require such proof would place an unreasonable burden on the applicant in so far as it was not present at the meeting of commissioners and does not have access to the minutes or documents summarising the discussions at this meeting. The applicant therefore submits that it is more appropriate to require the Commission to prove that the decision-making process was wholly unaffected by the premature disclosures to the media, as otherwise the case-law of the Community judicature, and ultimately also Article 287 EC and the Commission’s duty of sound administration, would be rendered ineffective. 594 In any event, the premature disclosure of accurate details concerning the overall fine to be imposed on BASF constitutes a procedural irregularity which has had the effect of impeding the Commission’s proper evaluation and independent review of the case. Such a disclosure made it very difficult for the college of commissioners to impose a lower fine, in so far as a change in the amount of the fine would have required an explanation and would have caused embarrassment to their colleague, the commissioner responsible for competition policy. 595 The defendant observes, first, that extracts from different newspaper reports published on the internet which the applicant has produced in the file do not show that the passages from the Decision relating to the applicant were published prematurely. The extracts gave only an approximate indication of the final amount of the overall fines to be imposed on the two leading producers, Roche and BASF. 596 Second, it is for the applicant to prove, according to the position adopted by the Court in Volkswagen v Commission, paragraph 592 above (paragraph 283), that the content of the Decision would have been different if the disclosure of information to the media had not occurred. The applicant has not proved that the Commission’s decision-making process in the present case was affected by the fact that some rough indications as to the amounts of the fines were published before the Decision was adopted. 597 In its reply, the applicant observes that the press reports annexed to the application are strikingly similar and consistent in their reporting of the overall fine that was to be imposed on it and the result was that the fine was published before the Decision was adopted. Most of the reports mention a fine of ‘nearly EUR 300 million’ and one report even mentions the amount of EUR 296 million. 598 In its rejoinder, the defendant contends that, in the reply, the applicant alleges for the first time that it is the disclosure of the proposed fine to the media that constitutes a breach of Article 287 EC and not, as argued in the application, the disclosure of portions of the Decision or important passages in it. In so far as that allegation may be regarded as a new plea, it must be ruled inadmissible under Article 48(2) of the Rules of Procedure. 599 On the substance, the defendant submits in particular that the applicant has been unable to show that the information concerning the fines published in the newspapers originated, as it alleges, from the Commission, whereas in Volkswagen v Commission, paragraph 592 above, it was clear that the information prematurely disclosed had originated from the Commission. 2. Findings of the Court 600 First of all, the Court must reject as manifestly unfounded the plea of inadmissibility raised by the defendant under Article 48(2) of the Rules of Procedure with regard to the applicant’s argument that the disclosure to the media of the amount of the likely overall fine constitutes an infringement of Article 287 EC. 601 Contrary to the defendant’s submission, that argument was not raised for the first time in the reply. It is true that in its application the applicant occasionally (paragraphs 204 and 205) mentioned the disclosure of ‘portions’ of the Decision concerning the fine imposed on BASF. However, it is obvious upon reading paragraphs 204 to 208 of the application that, by the present plea, the applicant is referring not so much to the reproduction of passages of the Decision as to the indication of the amount of the overall fine imposed on it (see, in that regard, in particular the heading of the present plea preceding paragraph 204 (‘The Commission’s disclosure of BASF’s fine to the media’), the subtitle preceding paragraph 205 (‘The media were in possession of accurate details regarding BASF’s fine ...’) and the first sentence of paragraph 207 (‘The disclosure of accurate details concerning the “record” fine to be imposed on BASF...’)). 602 It is also clear, as to the substance, that no consequence can be attached to the defendant’s submission that the extracts from press articles produced by the applicant do not show the premature publication of passages from the Decision relating to the applicant but merely the publication of an approximate indication of the final amount of the applicant’s fines. 603 As the defendant is not really contesting the fact of the premature disclosure of the likely imposition of a fine on BASF and, with a high degree of precision, of the likely amount of the overall fine, it is necessary to consider the consequences of such a fact. 604 In inter partes procedures liable to result in the imposition of a penalty, the nature and amount of the penalty proposed are by their very nature covered by professional secrecy until the penalty has been finally approved and announced. That principle follows, in particular, from the need to have due regard for the reputation and standing of the person concerned during a period in which no penalty has been imposed on that person. Moreover, the Commission’s duty not to disclose to the press information on the specific penalty envisaged is coterminous not merely with its duty to respect professional secrecy, but also with its duty of sound administration (Volkswagen v Commission, paragraph 592 above, paragraph 281, confirmed on appeal in Case C-38/00 P Volkswagen v Commission, paragraph 394 above). 605 In the present case, it has not been established that the Commission’s officials were responsible for the leak of information evidenced by the press articles to which the applicant refers. Nor can such an origin of the leak be presumed. 606 Even if the Commission’s officials were responsible for that leak, it is settled case-law that an irregularity of that type may lead to annulment of the decision in question only if it is established that the decision would not have been adopted or its content would have differed if that irregularity had not occurred (Suiker Unie and Others v Commission, paragraph 80 above, paragraph 91; Dunlop Slazenger v Commission, paragraph 593 above, paragraph 29; Cascades v Commission, paragraph 188 above, paragraph 58; Volkswagen v Commission, paragraph 592 above, paragraph 283; and HFB and Others v Commission, paragraph 227 above, paragraph 370). Under that same case-law, it is for the applicant to produce at least some indicia to support such a conclusion. 607 Contrary to what the applicant claims, the criterion that an irregularity resulting from premature disclosure of an element of a decision may result in the annulment of the decision only if it is established that, had it not been for that irregularity, that decision would have differed in content, does not have the effect that irregularities of this kind remain practically unpunished. Quite apart from the possibility of securing annulment of the decision in question in the event that the irregularity committed affected the content of the decision, the person concerned is entitled to seek to establish the liability of the institution involved for any harm which he claims to have suffered by reason of that irregularity (Case C-38/00 P Volkswagen v Commission, paragraph 394 above, paragraph 165). 608 In the present case, the matters adduced by the applicant in its written pleadings, are not sufficient to discharge the burden of proof on it. 609 It submits that the premature disclosure of accurate information concerning the overall fine that was to be imposed on it had the effect of preventing the college of commissioners from assessing the case properly and independently. According to the applicant, such disclosure made it extremely difficult for the college of commissioners to adopt a lower fine, since a change in the amount of the fine would have required explanation and would have been a source of embarrassment for their colleague, the member of the Commission responsible at that time for competition matters. 610 First, however, clearly nothing obliged the commissioners to justify any choice to impose a lower fine than that announced by the press. Second, as the Commission’s decisions have to be made in accordance with the principle of collegiality, to which the defendant rightly refers, it cannot be assumed that the commissioners were constrained in their freedom of assessment by a misplaced feeling of solidarity towards their colleague with responsibility for competition matters. 611 Consequently, as there is nothing to suggest that, if the likely amount of the overall fine that was to be imposed on the applicant had not been disclosed, the college of commissioners would have amended the proposed amount of the fine or the content of the Decision, the present plea cannot be upheld. H – Conclusion regarding the amount of the applicant’s fines 612 Following its examination of the applicant’s pleas and in the exercise of the unlimited jurisdiction to which, in some cases, that examination lead, the Court: – confirms the amount of the fines imposed on the applicant under Article 3(b) of the Decision in respect of the infringements relating to vitamins A, E, B2 and B5; – varies the amount of the fines imposed on it in respect of the infringements relating to vitamins C and D3 by setting aside the increase of 35% of the basic amount in respect of aggravating circumstances; – varies the amount of the fines imposed on it in respect of the infringements relating to beta-carotene and carotinoids by setting aside the increase of 35% of the basic amount for aggravating circumstances and by increasing, from 50% to 75%, the rate of reduction of the fine applied under the Leniency Notice. 613 In consequence of that variation, the amount of the fines imposed on the applicant under Article 3(b) of the Decision in respect of the infringements relating to vitamins C and D3, beta-carotene and carotinoids is reduced as follows: – infringement relating to vitamin C: EUR 10.875 million; – infringement relating to vitamin D3: EUR 5.6 million; – infringement relating to beta-carotene: EUR 16 million; – infringement relating to carotinoids: EUR 15.5 million. The confidential nature of certain data in the Decision 614 In the tables included in recital 123 of the published version of the Decision, certain data pertaining to the worldwide turnover in the relevant product in the last full calendar year of the infringement and to market shares throughout the period of infringement are omitted or replaced with value brackets in order to safeguard business secrets. More specifically, the data concerned are those relating to the markets for vitamins A, E, B5, beta-carotene and carotinoids. 615 Initially, neither the applicant nor the Commission asked the Court for those data to be given confidential treatment. 616 Given that Article 17(4) of the Instructions to the Registrar of the Court of First Instance of 3 March 1994 (OJ 1994 L 78, p. 32), last amended on 5 June 2002 (OJ 2002 L 160, p. 1), provides that ‘where a party so requests or the Court of its own motion so decides ... information may be omitted from the publications relating to a case if there is a legitimate interest in keeping ... [that] information confidential’, the Court requested the parties, in the context of measures of organisation of procedure, to express their views on whether there was still a legitimate interest in the data referred to at paragraph 614 above continuing to be kept confidential in the publications relating to this case. 617 The applicant replied that, in view of their age, the data concerning it no longer required confidential treatment in the Court’s publications relating to the present case. The defendant, for its part, whilst agreeing to the publication of data relating to the applicant, in so far as the applicant consented thereto, specified that, in contrast, data relating to other undertakings should not be disclosed, since they constitute business secrets and those undertakings had requested confidential treatment in relation to the publication of the Decision. 618 Since the data at issue relate to periods (lasting until 1998) which had ended at least six years previously and since the data are of no strategic value either, the Court, taking the view that the data were thereafter historical (see, to that effect, the order in Case T-134/94, T-136/94 to T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 NMH Stahlwerke and Others v Commission [1996] ECR II-537, paragraphs 25 and 32) decided that there was no need to give them confidential treatment in the publications relating to the present case. That is why certain data relating to the markets for vitamins A, E, B5, beta-carotene and carotinoids, including those concerning undertakings other than the applicant, may appear in the present judgment or be inferred indirectly from it, making the Court’s reasoning relating to the third plea in this case more readily comprehensible. Costs 619 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first subparagraph of Article 87(3) of the Rules of Procedure, the Court may, where each party succeeds on some and fails on other heads, order costs to be shared. 620 In the present case, as the applicant has been unsuccessful in a significant part of its pleadings, the Court will make an equitable assessment of the case in holding that the applicant is to bear four fifths of its own costs and pay four fifths of the costs incurred by the Commission and the Commission is to bear one fifth of its own costs and pay one fifth of those incurred by the applicant. On those grounds, THE COURT OF FIRST INSTANCE (Fourth Chamber) hereby: 1. Sets the amount of the fines imposed on the applicant in respect of the infringements relating to vitamins C and D3, beta-carotene and carotinoids by Article 3(b) of Commission Decision 2003/2/EC of 21 November 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 – Vitamins) as follows: – infringement relating to vitamin C: EUR 10.875 million; – infringement relating to vitamin D3: EUR 5.6 million; – infringement relating to beta-carotene: EUR 16 million; – infringement relating to carotinoids: EUR 15.5 million; 2. Dismisses the remainder of the application; 3. Orders the applicant to bear four fifths of its own costs and four fifths of the costs incurred by the Commission and the Commission to bear one fifth of its own costs and to pay one fifth of the costs incurred by the applicant. Legal Mengozzi Wiszniewska-Białecka Delivered in open court in Luxembourg on 15 March 2006. E. Coulon H. Legal Registrar President Table of contents Background to the dispute Procedure and forms of order sought by the parties The claims for annulment and for reduction of the overall fine A – First and second pleas: breach of the rights of the defence 1. Arguments of the parties a) First plea: breach of the rights of the defence owing to failure to give prior notice of the Commission’s finding that there were a number of distinct cartels b) Second plea: breach of the rights of the defence owing to the inadequate explanation, in the statement of objections, of the elements which the Commission proposed to take into account in calculating the fines 2. Findings of the Court B – Third plea: breach of the principles of proportionality and equal treatment in setting the starting amount of certain fines imposed on the applicant 1. Arguments of the parties 2. Findings of the Court a) Preliminary remarks b) Adjustment of the general starting amounts according to the size of the market affected c) The specific starting amounts imposed on the applicant Vitamin E Vitamins B5 and C Beta-carotene and carotinoids C – Fourth plea: increase, for deterrence, in the starting amounts of fines imposed on the applicant 1. Arguments of the parties a) First part: insufficient statement of reasons for the 100% increase ‘for deterrence’ b) Second part: no increase for deterrence was required in the applicant’s case c) Third part: the 100% increase for deterrence is contrary to the Guidelines and to the legitimate expectations arising from them d) Fourth part: the 100% increase for deterrence is excessive and disproportionate e) Fifth part: the deterrent effect ought to have been assessed by reference to the overall amount and not to the starting amount of the fine 2. Findings of the Court a) Compliance with the obligation to state reasons (first part) b) Merits of the 100% increase for deterrence (parts two to five) Second and fifth parts – The taking into account of the need for deterrence in setting the fine – The relevance of taking into account the size and overall resources of the undertakings for the purposes of ensuring the deterrent effect of the fines – Stage in the calculation of the fine at which it is appropriate to take account of the size and overall resources of the undertakings for the purposes of deterrence – The need to increase the applicant’s fine by virtue of its size and overall resources for the purposes of deterrence Third and fourth parts Conclusion on the application of the increase in the fines referred to in recital 699 of the Decision The circumstances allegedly demonstrating the low risk of repeated infringement by the applicant – The measures adopted by the applicant to prevent repeated infringement – Cooperation with the Commission during the investigation – Judgments in non-member countries – Conclusion on the circumstances relied on by the applicant c) Conclusion on the fourth plea D – Fifth plea: errors of assessment in attributing to the applicant a role as leader and instigator with regard to the infringements relating to vitamins A, E, B5, C and D3, beta-carotene and carotinoids 1. Preliminary questions of a general nature a) Arguments of the parties b) Findings of the Court Preliminary remarks Discrepancy between the statement of objections and the Decision as regards the role of leader of the cartels The applicant’s failure to dispute its role of leader during the administrative procedure General considerations set out in recitals 713 to 717 of the Decision Facts advanced by the defendant as evidence that BASF was the leader in and/or instigator of each infringement 2. Assessment of the applicant’s role in the various infringements a) Infringements relating to vitamins A and E Arguments of the parties Findings of the Court – Role of instigator – Role of leader – Conclusion on the application of the aggravating circumstance as regards the infringements relating to vitamins A and E b) Infringement relating to vitamin B5 Arguments of the parties Findings of the Court c) Infringement relating to vitamin C Arguments of the parties Findings of the Court d) Infringement relating to vitamin D3 Arguments of the parties Findings of the Court – Role of instigator – Role of leader e) Infringements relating to beta-carotene and carotinoids Arguments of the parties Findings of the Court 3. Conclusion on the increase, for aggravating circumstances, in the basic amount of the fines imposed on the applicant E – Sixth plea: infringement of Section B of the Leniency Notice and of the applicant’s legitimate expectations created by that notice 1. Arguments of the parties 2. Findings of the Court a) Whether the applicant satisfied the condition in Section B(b) of the Leniency Notice in respect of the infringements concerning vitamins A and E The concept of ‘decisive evidence’ within the meaning of Section B(b) of the Leniency Notice Whether decisive evidence within the meaning of Section B(b) of the Leniency Notice can be adduced orally Whether, at the meeting with Commission staff on 17 May 1999, the applicant adduced decisive evidence of the cartels’ existence in respect of vitamins A and E Whether the Commission unduly delayed in acquiring the information offered by the applicant Conclusion b) Whether the applicant met the condition set out in Section B(e) of the Leniency Notice as regards the eight infringements relating to which a fine was imposed on it c) Whether the applicant satisfies the conditions in Section B(a) to (d) of the Leniency Notice as regards the infringements relating to vitamins C, D3, beta-carotene and carotinoids The conditions in paragraphs (a), (c) and (d) The condition in paragraph (b) – Infringement relating to vitamin D3 – Infringements relating to vitamin C, beta-carotene and carotinoids d) Application to the applicant of Section B of the Leniency Notice as regards the infringements relating to beta-carotene and carotinoids e) Conclusion on the sixth plea F – Seventh plea: insufficiency, irrespective of the Leniency Notice, of the reduction in the applicant’s fines on account of cooperation 1. Arguments of the parties 2. Findings of the Court G – Eighth plea: breach of professional secrecy and of the principle of sound administration 1. Arguments of the parties 2. Findings of the Court H – Conclusion regarding the amount of the applicant’s fines The confidential nature of certain data in the Decision Costs * Language of the case: English.