Case T-15/02

BASF AG

v

Commission of the European Communities

(Competition – Cartels in the vitamin products sector – Rights of the defence – Guidelines on the method of setting fines – Determination of the starting amount of the fine – Deterrent effect – Aggravating circumstances – Role of leader or instigator – Cooperation during the administrative procedure – Professional secrecy and principle of sound administration)

Summary of the Judgment

1. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence

(Council Regulation No 17, Art. 19(1); Commission Regulation No 2842/98, Arts 2 and 3)

2. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03)

3. Competition – Fines – Decision imposing fines – Obligation to state the reasons on which the decision is based – Scope

(Art. 253 CE; Council Regulation No 17, Art. 15(2))

4. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03)

5. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 1)

6. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 1 A)

7. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 1 A)

8. Competition – Fines – Amount – Determination – Deterrent effect

(Council Regulation No 17, Art. 15; Commission communication 98/C 9/03, point 1 A)

9. Competition – Fines – Amount – Determination – Deterrent effect

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 1 A)

10. Competition – Fines – Amount – Determination – Deterrent effect

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03)

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements

(Council Regulation No 17, Art. 15(2))

12. Competition – Fines – Amount – Determination – Deterrent effect

(Council Regulation No 17, Art. 15(2))

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 2)

14. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 2)

15. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 2)

16. Competition – Fines – Amount – Determination

(Art. 229 CE; Council Regulation No 17, Art. 17)

17. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 2)

18. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 2)

19. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 2)

20. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 2)

21. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 2)

22. Competition – Fines – Amount – Determination – Commission notice on the non-imposition or reduction of fines in return for the cooperation of the undertakings concerned

(Council Regulation No 17, Art. 15(2); Commission communication 96/C 207/04)

23. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation with the Commission

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

24. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation with the Commission

(Council Regulation No 17, Art. 15(2); Commission communication 96/C 207/04, Title B)

25. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission communications 96/C 207/04, Title B, and 98/C 9/03, point 2)

26. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation with the Commission

(Council Regulation No 17, Art. 15(2); Commission communication 96/C 207/04, Title B)

27. Competition – Fines – Judicial review

(Arts 81 EC and 229 EC; EEA Agreement, Art. 53(1); Council Regulation No 17, Art. 17)

28. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation outside the framework of the Leniency Notice

(Council Regulation No 17, Art. 17; Commission communications 96/C 207/04 and 98/C 9/03, point 3)

29. Competition – Administrative procedure – Professional secrecy

(Art. 287 EC; Council Regulation No 17, Art. 20(2))

1. In application of the competition rules, the statement of objections must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. It is only on that condition that the statement of objections can fulfil its function under the Community regulations of giving undertakings all the information necessary to enable them to defend themselves properly, before the Commission adopts a final decision. That function does not vary according to the specific situation of the undertaking to which it is addressed and the extent to which it cooperates with the Commission. That requirement is satisfied if the decision does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and takes into consideration only facts on which they have had the opportunity of making known their views.

With regard to exercise of the rights of the defence in respect of the imposition of fines, provided the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined. Therefore, as regards determining the amount of fines, the rights of defence of the undertakings concerned are guaranteed before the Commission through the opportunity to make submissions on the duration, the gravity and the anti-competitive nature of the alleged acts.

The Commission is not bound to mention in the statement of objections the possibility of a change in its policy as regards the general level of fines, a possibility which depends on general considerations of competition policy having no direct relationship with the particular circumstances of the case in question, nor the extent of any increase in the fine in order to ensure that it will act as a deterrent, as the Commission is not required, once it has indicated the main factual and legal criteria on which it will base its calculation of the amount of the fines, to specify the way in which it will use each of those elements in order to determine their level. To give indications as regards the level of the fines envisaged, before the undertakings have been invited to submit their observations on the allegations against them, would be to anticipate the Commission’s decision and would thus be inappropriate.

(see paras 46-49, 58-59, 62)

2. Although the Commission has a discretion when determining the amount of each fine and is not required to apply a precise mathematical formula, it may not depart from the rules which it has imposed on itself. Since the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty are an instrument intended to define, while complying with higher-ranking law, the criteria which the Commission proposes to apply in the exercise of its discretion when determining fines, the Commission must in fact take account of the Guidelines when determining fines, in particular the elements which are mandatory under the Guidelines.

(see para. 119)

3. In the case of a decision imposing fines on several undertakings for an infringement of the Community competition rules, the scope of the obligation to state reasons must be established, inter alia, in the light of the fact that the gravity of infringements must be determined by reference to numerous factors including, in particular, the specific circumstances of the case, its context and the deterrent element of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up. The requirement to state reasons is thus satisfied where the Commission sets out in its decision the factors which enabled it to measure the gravity and duration of the infringement and it is not required to set out a more detailed account or the figures relating to the method of calculating the fine. However, it is desirable that the Commission indicate the figures which influenced the exercise of its discretion when setting the fines, especially in regard to the desired deterrent effect.

(see paras 131, 206, 213-214)

4. The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty take, as a starting point for calculation of a fine, an amount determined on the basis of brackets of figures reflecting the various degrees of gravity of the infringements and which, as such, bear no relation to the relevant turnover. The essential feature of that method is thus that fines are determined on a tariff basis, albeit one that is relative and flexible. Thus, where the Commission finds in one and the same decision that several infringements have been committed, that method does not require – but does not preclude – that the size of the affected market be taken into account for the purposes of determining the starting amounts for each infringement and still less does it require the Commission to set those starting amounts according to a fixed percentage of the total turnover on the market.

(see paras 133-135)

5. The Commission is not required, when assessing fines for infringing Community competition law, to calculate the fines on the basis of the turnover of the undertakings concerned, or to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their turnover in the relevant product market. The gravity of infringements has to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the deterrent element of the fines. Thus, the Commission, for the purpose of setting the fine, may indeed have regard to the turnover accounted for by the goods in respect of which the infringement was committed as a factor for assessing the gravity of the infringement, but it is important not to confer on that figure an importance which is disproportionate in relation to the other factors and the fixing of the fine cannot be the result of a simple calculation based on that figure.

Moreover, although the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty do not provide that the fines are to be calculated according to the relevant worldwide turnover in the product, they do not preclude such turnover from being taken into account in determining the amount of the fine in order to comply with the general principles of Community law and where circumstances demand it. Furthermore, the Guidelines state that the principle of equal punishment for the same conduct may, if the circumstances so warrant, lead to different fines being imposed on the undertakings concerned without this differentiation being governed by arithmetical calculation.

Nor do the principles of proportionality and equal treatment dictate that the starting amount of the fine should represent the same percentage of individual turnover for all the different members of a cartel.

(see paras 139, 145-149)

6. As regards fixing the amount of fines on the various members of a cartel, the method of dividing members into several categories, which has the consequence that a flat-rate starting amount is fixed for all the undertakings in the same category, even though it ignores the differences in size between undertakings in the same category, cannot be condemned. However, that division into categories must comply with the principle of equal treatment, which prohibits similar situations from being treated differently and different situations from being treated in the same way, unless such treatment is objectively justified. Furthermore, the amount of the fine must at least be proportionate in relation to the factors taken into account in the assessment of the gravity of the infringement.

In order to ascertain whether a division of members of a cartel into categories is in keeping with the principles of equal treatment and proportionality, the Court, as part of its review of the lawfulness of the exercise of the Commission’s discretion in the matter, must none the less confine itself to checking that the division is coherent and objectively justified and not immediately substitute its own assessment for that of the Commission.

The division of cartel members into two categories, the major producers and the others, is a not an unreasonable way of taking account of their relative importance on the market in order to adjust the specific starting amount, provided that it does not produce a grossly distorted picture of the markets in question.

(see paras 150, 156-157, 159)

7. The Commission enjoys a discretion enabling it to take account or not to take account of certain factors when determining the amount of the fines for infringing the competition rules which it intends imposing, having regard, in particular, to the circumstances of the case. In view of the terms of the sixth paragraph of Section 1 A of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty referred to above, it must be considered that in the case of infringements involving several undertakings the Commission retains a degree of discretion concerning the appropriateness of weighting fines according to the size of each undertaking. It follows from the use of the expression ‘in some cases’ and the word ‘particularly’ in the sixth paragraph of Section 1 A of the Guidelines that a weighting according to the individual sizes of the undertakings is not a systematic stage in a calculation which the Commission has imposed on itself but falls within the scope of the flexibility which it has granted itself in cases where it is called for.

The Commission does not exceed the limits of its discretion, where, when setting the starting amounts of fines for an infringement committed by the only two operators on the market, it does not differentiate between its treatment of those operators despite the difference in their turnovers on that market and in their market shares, since, in such a market, a cartel can exist only if both operators participate, the participation of the second operator in terms of market shares being as essential for the very existence of the cartel as that of the first operator, and, in the case in point, the operators in question are two large producers.

(see paras 180-182)

8. The object of the penalties for infringing the competition rules laid down by Article 15 of Regulation No 17 is to suppress illegal activities and to prevent any recurrence. As deterrence is an objective of fines for infringing the competition rules, the need to ensure it is a general requirement which must be a reference point for the Commission throughout the calculation of the fines and does not necessarily require that there be a specific step in that calculation in which an overall assessment is made of all relevant circumstances for the purposes of attaining that objective.

(see paras 218-220, 226, 238)

9. When setting the fine for infringing the competition rules to be imposed under Article 15 of Regulation No 17, the size and economic power of an undertaking are relevant criteria in order to ensure the deterrent effect of the fines. A large undertaking, owing to its considerable financial resources by comparison with those of the other members of a cartel, can more readily raise the necessary funds to pay its fine, which, if the fine is to have a sufficiently deterrent effect, justifies the imposition, in particular by the application of a multiplier, of a fine proportionately higher than that imposed in respect of the same infringement committed by an undertaking without such resources.

The Commission’s application, for the purposes of deterrence, of a multiplier intended to reflect the size and overall resources of the undertakings is not precluded by the fact that the Guidelines do not expressly provide for it. The taking into account of the size and overall resources of the undertakings may contribute to satisfying the need to set the fine at a level which ensures that it has a sufficiently deterrent effect as referred to in Section 1 A, fourth paragraph, of the Guidelines, either by directly fixing a starting amount that takes account, inter alia, of those factors or by applying to the starting amount set on the basis of other factors (such as the nature of the infringement or the impact of the individual offending conduct) an adjustment intended to reflect the size and overall resources of the undertakings. That second method not only does not contradict the Guidelines, but even increases the transparency of the Commission’s calculation as compared with the first method.

(see paras 235, 253)

10. There is nothing in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty to preclude, in the case of ‘very serious’ infringements of the competition rules, an increase of 100% of the starting amount in order to ensure the deterrent effect of the fines.

As regards specifically those infringements, the Guidelines merely state that the likely fines are ‘above EUR 20 million’. The only limits referred to in the Guidelines which apply in the case of such infringements are the general limit of 10% of overall turnover set by Article 15(2) of Regulation No 17 and the limits relating to the additional amount which may be imposed in respect of the duration of the infringement (see Section 1 B, first paragraph, second and third indents of the Guidelines). Consequently, the Guidelines cannot give rise to a legitimate expectation as to the level of the starting amount, of amounts added to it for reasons other than the duration of the infringement and, thus, of the final figure for fines to be imposed in respect of very serious infringements. The same applies to the proportion of the final figure represented by an additional amount imposed in the course of the calculation.

(see paras 249, 251-252)

11. The fact that an undertaking that has been fined for infringing the competition rules has adopted internal measures after the infringements had come to an end in order to prevent any repetition on its part does not oblige the Commission to apply factors which reduce the fine. Whilst it is important that an undertaking takes measures to prevent further infringements of Community competition law from being committed in the future by its staff, that does not alter the fact that the infringement was committed. Merely because in certain previous decisions the Commission took account of a compliance programme as an attenuating circumstance does not mean that it is under a duty to do so in each case which comes before it.

(see paras 266-267)

12. In assessing the need for deterrence in the case of an undertaking which should be penalised for an infringement of the Community competition rules, the Commission is not required to take account of judgments in non-member countries in respect of the same collusive arrangements. The objective of deterrence, which the Commission is entitled to pursue when setting fines, is to ensure that undertakings comply with the competition rules laid down in the Treaty when conducting their business within the Community or the European Economic Area (EEA). It follows that the deterrent effect of a fine imposed for infringement of the Community competition rules cannot be determined by reference solely to the particular situation of the undertaking sanctioned or by reference to whether it has complied with the competition rules in non-member countries outside the EEA.

(see para. 269)

13. Where an infringement of the competition rules has been committed by several undertakings, it is appropriate, in setting the fines, to consider the relative gravity of the participation of each of them, which implies, in particular, establishing their respective roles in the infringement during the period of their participation in it. It follows, in particular, that the role of ‘ringleader’ played by one or more undertakings in a cartel must be taken into account in setting the fine, in so far as undertakings which have played such a role must therefore bear a special responsibility by comparison with other undertakings. In accordance with those principles, Section 2 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty lays down, under the heading of aggravating circumstances, a non-exhaustive list of circumstances which can result in an increase in the basic amount of the fine and include in particular ‘the role of leader in or instigator of the infringement’.

(see paras 280-282)

14. It is clear from the wording of Section 2, third indent, of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty that, when examining the role of an undertaking in an infringement of the competition rules, it is necessary to distinguish between the concepts of leader in and instigator of an infringement and to carry out two separate analyses to check whether that undertaking was one or the other. Whereas instigation is concerned with the establishment or enlargement of a cartel, leadership is concerned with its operation.

(see para. 316)

15. In order to be classified as an instigator of a cartel, an undertaking must have persuaded or encouraged other undertakings to establish the cartel or to join it. By contrast, it is not sufficient merely to have been a founding member of the cartel. Thus, for example, in a cartel created by two undertakings only, it would not be justified automatically to classify those undertakings as instigators. That classification should be reserved to the undertaking which has taken the initiative, if such be the case, for example by suggesting to the other an opportunity for collusion or by attempting to persuade it to do so.

(see paras 321, 456)

16. In the context of an action brought against a Commission decision imposing a fine for infringing the competition rules, a finding of illegality of the Commission’s assessment of the aggravating circumstances that led to an increase in the fine above the basic amount enables the Court to exercise its unlimited jurisdiction to confirm, set aside or adjust that increase in the fine in the light of all the relevant circumstances of the case.

(see paras 303, 338, 394)

17. As regards classification as a leader in an infringement of the competition rules, the fact that the price increases in a cartel were decided jointly at meetings between the cartel members, including their amount, timing and the mechanism by which they would be implemented, does not remove the special responsibility assumed by a particular undertaking when it decides to be the first in fact to implement the agreed increase. By taking such an initiative, without being under a specific and individual obligation to do so pursuant to the agreement to increase prices entered into at a cartel meeting, the undertaking voluntarily gives a major boost to the performance of that agreement by ensuring that, instead of remaining unimplemented, it has an effect on the market.

On the other hand, the mere fact that a member of a cartel is the first to announce a new price or a price increase cannot be regarded as indicating that it was a leader of the cartel where the circumstances of the case show that the price or increase in question was fixed in advance by agreement with the other cartel members and those members also agreed which of them would be the first to announce it, since the designation of that member shows that the fact of being the first to announce the price or the increase is merely a step performed strictly in accordance with an agreed predefined plan and not a voluntary initiative propelling the cartel.

(see paras 348, 427)

18. The fact that an undertaking exerts pressure and even dictates the behaviour of the other members of the cartel is not a precondition for that undertaking to be described as a leader in the cartel. It is sufficient that the undertaking was a significant driving force for the cartel, which may be inferred in particular from the fact that it took upon itself responsibility for developing and suggesting the conduct to be adopted by the members of the cartel, even if it was not necessarily in a position to impose it upon them.

(see para. 374)

19. The alignment of interests, objectives and positions adopted within a wider cartel by a group of undertakings does not necessarily mean that the members of that group are to be classified as leaders or that such a classification, applied for other reasons to one of them, is to be extended to all the others.

(see para. 402)

20. Where several undertakings have jointly committed several infringements of the competition rules, the fact that meetings relating to one cartel might have taken place at the same time as meetings relating to another cartel and followed essentially the same scheme does not make it possible to answer the question as to which undertaking was in fact a leader in each of those cartels. Thus it cannot be presumed from those similarities between the two cartels under consideration that the undertaking which played the role of leader in one of those cartels also played such a role in the other.

(see para. 459)

21. In a long-term infringement the members of the cartel may, at various times, take turns in exercising leadership, so that it cannot be ruled out that each may have the aggravating circumstance of leader applied to them.

(see para. 460)

22. The Commission notice on the non-imposition or reduction of fines in cartel cases creates legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to the Commission. In view of the legitimate expectation which undertakings intending to cooperate with the Commission are able to derive from the notice, the Commission must therefore adhere to the notice when, for the purposes of determining the fine to be imposed on an undertaking, it assesses its cooperation.

(see para. 488)

23. The grant of total immunity or a reduction of the fine under Section B of the notice on the non-imposition or reduction of fines in cartel cases requires in particular that the undertaking concerned be the first to adduce decisive evidence of the existence of the cartel.

Although such evidence need not be sufficient in itself to establish the cartel’s existence, it must none the less be decisive for that purpose. It must therefore not be simply an indication as to the direction which the Commission’s investigation should take but must be material which may be used directly as the principal evidence supporting a decision finding an infringement. That evidence must also in fact be adduced to the Commission, and a mere offer or indication of the source from which it may be obtained does not suffice.

A classification as decisive evidence cannot apply to evidence which places the Commission in a position to formulate requests for information, and even to order investigations, but leaves the Commission with almost the entire task of reconstructing and proving the facts, notwithstanding the adducing undertaking’s admission of its responsibility, or to an undertaking’s offer to make its employees available to give evidence to the Commission; nor does that offer have to be accepted by the Commission and it may request the undertaking to collect the information from its employees and submit it to the Commission in writing so as not to add unnecessarily to its workload.

The Commission is not under a duty to notify the undertaking of the inadequacy of the information provided and the need to supplement that information, since Section E, paragraph 2, of the notice states that ‘only on its adoption of a decision will the Commission determine whether or not the conditions set out in Sections B, C and D are met’.

(see paras 492-493, 517-518, 521-522, 526, 568)

24. For the purpose of the grant of total immunity or a reduction in the fine pursuant to Section B of the notice on the non-imposition or reduction of fines in cartel cases, the decisive evidence of the existence of the cartel may be adduced orally to the Commission by the undertaking concerned. The oral disclosure of information has no major disadvantage from the point of view of legal certainty, since information provided orally to a public administration in a meeting is normally likely to be preserved by sound recording and/or in written minutes.

Although there is no general obligation on the Commission to take minutes of its meetings with individuals or undertakings, the lack of an express provision that minutes be drawn up does not preclude that in a particular case the Commission may be under a duty to make such a record of the statements it receives. Such an obligation may, depending on the circumstances of the particular case, arise directly from the principle of sound administration, which is one of the guarantees conferred by the Community legal order in administrative proceedings. Where an undertaking makes contact with the Commission with a view to cooperating to an extent which may be rewarded under the Leniency Notice and a meeting is organised in that context between the institution and that undertaking, the minutes of such a meeting, recording the essential aspects of the assertions made at that meeting, must be drawn up or, at the very least, a sound recording must be made, pursuant to the principle of sound administration, if the undertaking in question so requests at the latest at the beginning of the meeting.

(see paras 498-502, 506)

25. The expressions ‘leader in or instigator of the infringement’ and ‘the role of instigator or the determining role’ mentioned in Section 2, third indent, of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty and in Section B(e) of the notice on the non-imposition or reduction of fines in cartel cases as aggravating circumstances for the calculation of the fines and as circumstances precluding total immunity or a very substantial reduction, have essentially the same scope.

It follows that where an undertaking is found to have played the role of leader in or instigator of an infringement, it cannot receive immunity or a very substantial reduction of the fine under the Leniency Notice.

(see paras 535-536, 544-545)

26. Given the wording of Section B(b) of the notice on the non-imposition or reduction of fines in cartel cases, which seeks to reward with a very substantial reduction in the amount of the fine the one undertaking which was genuinely the first to adduce decisive evidence, it cannot be argued that two undertakings jointly satisfied that condition when they did not supply such evidence on the same date.

(see para. 550)

27. 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 Agreement on the European Economic Area 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.

It is therefore necessary to reject the request of an applicant to which the Commission has applied the notice on the non-imposition or reduction of fines in cartel cases which asks the Court to assess and reward its cooperation in the investigation without reference to the provisions of that notice, and when the applicant does not claim that those provisions are unlawful.

(see paras 581-583)

28. 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 notice on the non-imposition or reduction of fines in cartel cases, as provided for in the sixth indent of Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, necessarily presupposes that the cooperation in question was not capable of reward under that notice and that it was effective, that is to say, that it facilitated the Commission’s task of finding and putting an end to infringements of the competition rules.

(see paras 585, 588)

29. 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.

Even if the Commission’s officials were responsible for the disclosure to the media of precise details of a fine for infringing the competition rules before its adoption, 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. That criterion 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.

(see paras 604, 606-607)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

15 March 2006 ( )

(Competition – Cartels in the vitamin products sector – Rights of the defence – Guidelines on the method of setting fines – Determination of the starting amount of the fine – Deterrent effect – Aggravating circumstances – Role of leader or instigator – Cooperation during the administrative procedure – Professional secrecy and principle of sound administration)

In Case T-15/02,

BASF AG, established in Ludwigshafen (Germany), represented by N. Levy, J. Temple-Lang, Solicitors, R. O’ Donoghue, Barrister, and C. Feddersen, lawyer,

applicant,

v

Commission of the European Communities, represented by R. Wainwright and L. Pignataro-Nolin, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for annulment or reduction of the fines imposed on the applicant by Article 3(b) of Commission Decision 2003/2/EC of 21 November 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 – Vitamins) (OJ 2003 L 6, p. 1),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of H. Legal, President, P. Mengozzi and I. Wiszniewska-Białecka, Judges,

Registrar: I. Natsinas, Administrator,

having regard to the written procedure and further to the hearing on 12 January 2005,

gives the following

Judgment

Background to the dispute

1 By Decision 2003/2/EC of 21 November 2001 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 ‑ Vitamins) (OJ 2003 L 6, p. 1; ‘the Decision’), the Commission found, in Article 1, that a number of undertakings had infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area (EEA) by participating in a series of separate agreements affecting 12 different markets for vitamin products, namely vitamins A, E, B1, B2, B5, B6, folic acid, vitamins C, D3 and H, beta-carotene and carotinoids. In particular, it is clear from recital 2 of the Decision that, as part of those agreements, the undertakings concerned had fixed prices for the different products, allocated sales quotas, agreed on and implemented price increases, issued price announcements in accordance with their agreements, sold the products at the agreed prices, set up a machinery to monitor and enforce adherence to the agreements, and participated in a structure of regular meetings to implement their plans.

2 Those undertakings include BASF AG (‘BASF’ or ‘the applicant’), which was held responsible for infringements in the Community and EEA markets for vitamins A, E, B1, B2, B5, C, D3 and H, beta-carotene and carotinoids (Article 1(1)(b) of the Decision).

3 By Article 2 of the Decision the undertakings held responsible for the infringements found were ordered to bring them to an end immediately, in so far as they had not already done so, and to refrain from repeating any offending act or conduct established on their part and from adopting any measure having the same or equivalent object or effect.

4 Whilst the Commission imposed fines for the infringements found in the markets for vitamins A, E, B2, B5, C, D3, beta-carotene and carotinoids, it imposed no fines for the infringements found in the markets for vitamins B1, B6, H and folic acid (Article 3 of the Decision).

5 It is apparent from recitals 645 to 649 of the Decision that the infringements found in the latter markets ceased more than five years before the Commission started its investigation and that, consequently, Article 1 of Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1) applied to those infringements.

6 Thus, BASF, in particular, was not fined for its participation in the infringements relating to vitamins B1 and H.

7 On the other hand, for its participation in the infringements relating to vitamins A, E, B2, B5, C and D3, beta-carotene and carotinoids, BASF was fined in respect of each infringement (Article 3(b) of the Decision).

8 The Commission determined those fines by applying its Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’), and its Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’).

9 At recitals 657 and 658 of the Decision, the Commission set out the general criteria on the basis of which it fixed the amount of the fines. It stated that it must have regard to all relevant circumstances and particularly the gravity and duration of an infringement – which are the two criteria explicitly referred to in Article 15(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87) –, assess on an individual basis the role played by each undertaking party to the infringements, take particular account, in setting the fine, of any aggravating or attenuating circumstances and apply, as appropriate, the Leniency Notice.

10 As regards the gravity of the infringements, the Commission found, in view of their nature, their impact on the various relevant vitamin product markets and the fact that each one covered the whole of the common market and, following its creation, the whole of the EEA, that the undertakings to which the Decision was addressed had committed very serious infringements of Article 81(1) EC and Article 53(1) of the EEA Agreement, for each of which the likely fine would be at least EUR 20 million (recitals 662 to 674 of the Decision).

11 For the purpose of determining the starting amount of the fines, the Commission, after noting that it was taking into consideration the size of the different vitamin product markets concerned, observed that ‘[w]ithin the category of very serious infringements, the proposed scale of likely fines makes it possible to apply differential treatment to undertakings in order to take account of the effective economic capacity of the offenders to cause significant damage to competition, as well as to set the fine at a level which ensures it has sufficient deterrent effect’. The Commission stated that ‘this exercise seems particularly necessary where, as in the present case, there is considerable disparity in the size of the undertakings participating in an infringement’. It then stated that ‘[i]n the circumstances of this case, which involves several undertakings, it is necessary in setting the basic amount of the fines to take account of the specific weight and therefore the impact of each undertaking’s offending conduct on competition’ (recitals 675, 678 and 679 of the Decision).

12 For that purpose, the Commission considered that the undertakings concerned could be divided into different categories ‘according to their relative importance in each of the relevant vitamin product markets concerned’, while adding that ‘[t]he placement of an undertaking in a particular grouping is subject to adjustment, where appropriate, to take into account in particular the need to ensure effective deterrence’. In order to appraise the relative importance of the different undertakings in each of the vitamin product markets concerned, the Commission considered it appropriate to take as a basis the worldwide turnover for the relevant product. The Commission observed that ‘each cartel was global in nature, the object of each was, inter alia, to allocate markets on a worldwide level, and thus to withhold competitive reserves from the EEA market’ and that ‘the worldwide turnover of any given party to a particular cartel also gives an indication of its contribution to the effectiveness of that cartel as a whole or, conversely, of the instability which would have affected that cartel had it not participated’. The Commission also stated that in order to determine the turnover in question it used ‘the last complete calendar year of the infringement’ (recitals 680 and 681 of the Decision).

13 Nevertheless, it is clear from recitals 695 and 696 of the Decision that the Commission found that, given the characteristics of the beta-carotene and carotinoids market, it was not appropriate to use the method of dividing the companies into categories with regard to the infringements concerning those products, so that the same starting amounts were set for the fines imposed on the two undertakings involved in those infringements, F. Hoffmann-La Roche AG (‘Roche’) and BASF.

14 Accordingly, the Commission set the following starting amounts, totalling EUR 128.5 million, for the applicant: EUR 18 million for vitamin A; EUR 35 million for vitamin E; EUR 10 million for vitamin B2; EUR 14 million for vitamin B5; EUR 7.5 million for vitamin C; EUR 4 million for vitamin D3; EUR 20 million for beta-carotene; and EUR 20 million for carotinoids (recitals 683 to 696 of the Decision).

15 In order to ensure that the fines had a sufficient deterrent effect, the Commission increased the starting amounts of the fines calculated for BASF, Roche and Aventis SA by 100% to take account of their size and their overall resources (recitals 697 to 699 of the Decision).

16 The starting amount of the fine for each undertaking, as adjusted, where appropriate, by application of the factor of 100% referred to in the preceding paragraph, was then increased by the Commission in accordance with the duration of its participation in each infringement. The basic amounts of the applicant’s fines, totalling EUR 438.75 million, were thus set at: EUR 68.4 million for vitamin A; EUR 133 million for vitamin E; EUR 28 million for vitamin B2; EUR 50.4 million for vitamin B5; EUR 21.75 million for vitamin C; EUR 11.2 million for vitamin D3; EUR 64 million for beta-carotene; and EUR 62 million for carotinoids (recitals 701 to 711 of the Decision).

17 Roche and BASF were found to be joint leaders and instigators of the different cartels and therefore their roles were considered to be an aggravating circumstance. The basic amounts of their fines were consequently increased by 50% and 35% respectively (recitals 712 to 718 of the Decision). This brought the fines for BASF to a total of almost EUR 592.32 million.

18 Finally, in application of the Leniency Notice, the Commission, pursuant to Section B of the Notice, granted Aventis exemption from fines in relation to the infringements relating to vitamins A and E. In that regard, the Commission observed that, as a result of statements made on 19 and 25 May 1999, Aventis was the first undertaking to adduce decisive evidence of the existence of those infringements, in accordance with the condition set out in Section B(b) of the Leniency Notice (recitals 741 and 742 of the Decision).

19 The Commission also considered that Roche and BASF, through the documents submitted to the Commission between 2 June and 30 July 1999, had been the first to provide the Commission with decisive evidence of the existence of the cartel arrangements relating to the vitamin B2, B5, C and D3, beta-carotene and carotinoids markets. Nevertheless, since Roche and BASF had been the instigators or played a determining role in the illegal activities concerning vitamins A, E, B2, B5, C and D3, beta-carotene and carotinoids, they did not in the Commission’s view satisfy the condition set out in Section B(e) of the Leniency Notice. Therefore, neither of those two companies was granted a reduction in its fines on the basis of Section B or C of the Leniency Notice (recitals 743 to 745 of the Decision).

20 However, each of them was granted a reduction in its fines under Section D of the Leniency Notice. In particular, the Commission observed that as Roche and BASF had provided detailed evidence of the organisation structure of the cartel arrangements affecting the vitamin A, E, B2, B5, C and D3, beta-carotene and carotinoids markets, they had contributed decisively to establishing and/or confirming essential aspects of those infringements. The Commission therefore concluded that Roche and BASF satisfied the conditions set out in Section D 2, first indent, of the Leniency Notice and granted them, for all of those infringements, a reduction of 50% of the fines that would have been imposed if they had not cooperated with the Commission (recitals 747, 748, 760 and 761 of the Decision).

21 Thus, the fines imposed on BASF were finally set as follows: EUR 46.17 million for vitamin A; EUR 89.78 million for vitamin E; EUR 18.9 million for vitamin B2; EUR 34.02 million for vitamin B5; EUR 14.68 million for vitamin C; EUR 7.56 million for vitamin D3; EUR 43.2 million for beta-carotene; and EUR 41.85 million for carotinoids (Article 3(b) of the Decision). The total amount of those fines (‘the overall fine’) comes to EUR 296.16 million.

Procedure and forms of order sought by the parties

22 By application lodged at the Registry of the Court of First Instance on 31 January 2002, the applicant brought the present action.

23 By application lodged at the Registry of the Court of First Instance on 24 June 2002, Aventis sought leave to intervene in the present proceedings in support of the form of order sought by the defendant. After the main parties were heard, leave was refused by order of the Court of First Instance (Fourth Chamber) of 25 February 2003 ([2003] ECR II-213), the date on which the written procedure was thus completed.

24 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the Court of First Instance, requested the parties to reply to written questions and the defendant to produce certain documents. The parties complied with that request within the prescribed period.

25 The parties presented oral argument and answered the questions put by the Court at the hearing on 12 January 2005. On that occasion the Court requested the defendant to produce a letter that had been sent to it by Roche in the context of the cooperation afforded by that undertaking during the administrative investigation, and suspended the oral procedure.

26 The defendant complied with that request within the prescribed period and, on 18 January 2005, produced the letter requested, together with other letters that Roche had sent it in the context of the cooperation it had afforded during the administrative procedure. On 8 February 2005 the applicant, at the request of the Court, lodged observations on the documents produced by the defendant.

27 The applicant claims that the Court should:

– annul or substantially reduce the overall fine imposed in Article 3(b) of the Decision;

– order the defendant to pay the costs and other expenses incurred by the applicant in connection with the present case.

28 The defendant contends that the Court should:

– dismiss the application;

– order the applicant to pay the costs.

The claims for annulment and for reduction of the overall fine

29 The applicant fully and unreservedly admits its involvement in the infringements relating to vitamins A, E, B2, B5, C and D3, beta-carotene and carotinoids and acknowledges the seriousness of those infringements. However, it observes that the Decision is unprecedented in terms of the severity of the fines imposed and represents a very radical shift in Commission enforcement policy.

30 The applicant relies on eight pleas in law in support of its application for annulment or substantial reduction of the overall fine. The first two pleas allege breach of the rights of the defence in various regards; the third plea alleges breach of the principles of proportionality and equal treatment in setting the starting amount of certain fines imposed on the applicant; the fourth plea concerns the increase, for the purpose of deterrence, in the starting amounts of fines imposed on the applicant; the fifth plea alleges errors of assessment in attributing to the applicant a role as leader and instigator with regard to seven infringements; the sixth and seventh pleas relate to the assessment of the applicant’s cooperation in the context of the administrative procedure; the eighth plea alleges breach of professional secrecy and of the principle of sound administration.

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

31 The applicant claims that the Commission’s finding that there was a distinct cartel for each vitamin, which led to the imposition of a number of separate fines, was not disclosed to the applicant before the Decision. The failure to give prior notice of this finding materially prejudiced the applicant’s rights of defence in relation to the magnitude of all the fines imposed.

32 The applicant observes that it is a well-established principle that a Commission decision cannot rely on findings of law or of fact that are substantially different from those contained in a statement of objections. The Commission breached that principle by mentioning for the first time in the Decision a crucial new finding concerning the legal characterisation of the unlawful arrangements. In the applicant’s view, the statement of objections stated, in particular in points 206, 210 and 212, that there was one single overarching cartel composed of collusive arrangements with regard to various vitamins, whereas the Decision, in recital 584, states for the first time that the arrangements in relation to each vitamin constituted ‘distinct’ infringements of Community competition law.

33 Thus, the starting point that could be set for any fine imposed on the applicant was not EUR 20 million, the proposed starting point for a single infringement under the Guidelines, but EUR 160 million for eight separate infringements. In fact, the finding that there was an infringement in relation to each vitamin affected by the arrangements in question led the Commission to set a starting amount for the applicant’s fine which was at least eight times more than was foreseeable. The applicant maintains that it ought to have been given an opportunity to comment on that finding and the conclusions drawn from it with regard to the setting of fines.

34 The defendant rejects these arguments as unfounded. It contends that the Decision faithfully reflects the structure and the legal assessment contained in the statement of objections and did not in any way modify the reasoning on which the statement of objections was based. In particular, both the structure of the statement of objections and numerous passages contained therein show clearly that the Commission did not regard all the agreements relating to the different product markets as one and the same continuous infringement, but as a number of separate infringements. That is also proved by the applicant’s reply to the statement of objections in so far as the applicant referred, in the penultimate paragraph on page 5, to several ‘infringements’ and not just to one.

35 In its reply, the applicant observes that the section of the statement of objections describing the unlawful arrangements was entitled ‘The cartel’, whereas the corresponding section in the Decision refers to ‘The cartels’. Furthermore the statement of objections contained numerous indications that the Commission was dealing with a single cartel. In any case, irrespective of the structure of the statement of objections and of particular passages therein, the only relevant point is the legal conclusion drawn in the statement of objections, namely that there was a single cartel for the purposes of calculating fines.

36 As regards the passage in its reply to the statement of objections which the defendant cites, the applicant submits that it was not addressing the problem of whether the unlawful arrangements constituted one or a number of infringements, but merely referred to the attenuating circumstances concerning BASF’s role in the cartel.

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

37 The applicant maintains that the explanation in the statement of objections of the elements relevant to the calculation of the fines imposed on it was inadequate and did not enable it to exercise its rights of defence properly in relation to the level of those fines.

38 The applicant observes that the statement of objections is general and vague in explaining the elements on which the Commission intended to rely in calculating the fine. After a general introductory section, the statement of objections devotes only three paragraphs, out of a total of some 230, to explaining, in standard and very general terms, how the Commission proposed to take into account gravity, deterrence, duration, and all the aggravating and attenuating factors in setting the fines. That level of explanation of the proposed fines is, for three principal reasons, not compatible with the rights of the defence.

39 First, where an undertaking cooperates fully with the Commission and does not dispute the facts, like the applicant in the present case, the main, or perhaps the only, purpose of a statement of objections is to enable that undertaking to understand, as clearly as possible, the basis upon which the Commission proposes to fine it.

40 Second, the fines imposed by the Decision are the highest ever imposed in a Community competition law case and reflect a radical and unprecedented change in the Commission’s fining policy. By way of example, the applicant notes that, before application of the Leniency Notice, the fines imposed on the undertakings to which the Decision is addressed total almost EUR 1 800 million, or more than six times the highest overall fine ever previously reached in a single case, namely EUR 273 million in Commission Decision 1999/243/EC of 16 September 1998 relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty (Case IV/35.134 – Transatlantic Conference Agreement) (OJ 1999 L 95, p. 1). The applicant adds that the overall fine payable by it before application of the Leniency Notice, namely almost EUR 600 million (see paragraph 17 above), is approximately six times more than the highest individual fine previously imposed by the Commission, namely EUR 102 million on Volkswagen AG in Commission Decision 98/273/EC of 28 January 1998 relating to a proceeding pursuant to Article 85 of the EC Treaty (Case IV/35.733 – VW) (OJ 1998 L 124, p. 60). The obligation to state reasons and the right to be heard with regard to the basic elements on which the Commission intends to rely in setting the fine must be proportionate to the amount of the fine.

41 Third, the elements not properly explained in the statement of objections are extremely significant because they resulted in a substantial increase in the overall fine imposed on the applicant. This applies in particular to the 100% increase for deterrence, which led the Commission to increase from EUR 128.5 million to EUR 257 million the overall fine set on the basis of gravity (see paragraphs 14 and 15 above), and to the finding that the applicant was one of the leaders of the cartel, which led the Commission to increase the basic amount of the overall fine by 35%, i.e. by more than EUR 153 million, and to refuse a bigger reduction in the fine under the Leniency Notice (see paragraphs 17 and 19 above). In particular, the applicant observes that the statement of objections makes no mention of the Commission’s intention to impose such a large increase in BASF’s fine for deterrence and that the imputation of a leading role to BASF is inconsistent with the statement of objections.

42 The defendant disputes the validity of the applicant’s claims.

2. Findings of the Court

43 By the first and second pleas, which should be examined together, the applicant is in essence seeking the annulment in full of Article 3(b) of the Decision and, consequently, of the fines imposed on it under that article.

44 In all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings (Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9, and Case C-176/99 P ARBED v Commission [2003] ECR I-10687, paragraph 19).

45 Applying this principle, Article 19(1) of Regulation No 17 and Articles 2 and 3 of Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles [81] and [82] of the EC Treaty (OJ 1998 L 354, p. 18) – the provisions applicable ratione temporis in the present case – require the Commission to notify the objections it raises against the undertakings and associations of undertakings concerned and in its decisions to deal only with objections in respect of which they have been afforded the opportunity of making their views known.

46 According to the case-law, the statement of objections must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. It is only on that condition that the statement of objections can fulfil its function under the Community regulations of giving undertakings all the information necessary to enable them to defend themselves properly, before the Commission adopts a final decision (Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiöand Others v Commission [1993] ECR I-1307, paragraph 42; judgment of the Court of First Instance in Case T-352/94 Mo och Domsjö v Commission [1998] ECR II-1989, paragraph 63, upheld on appeal by judgment of the Court of Justice in Case C-283/98 P Mo och Domsjö v Commission [2000] ECR I-9855).

47 That requirement is satisfied if the decision does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and takes into consideration only facts on which they have had the opportunity of making known their views (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 94, and Joined Cases T-191/98, T‑212/98 to T-214/98 Atlantic Container Line and Others v Commission [2003] ECR II-3275, paragraph 138).

48 With regard to exercise of the rights of the defence in respect of the imposition of fines, it is settled case-law that, provided the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined (Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 21, and judgment of the Court of First Instance in Case T-16/99 Lögstör Rör v Commission [2002] ECR II-1633, paragraph 193, upheld on appeal by judgment of the Court of Justice in Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-0000, in particular paragraph 428).

49 Therefore, as regards determining the amount of fines, the rights of defence of the undertakings concerned are guaranteed before the Commission through the opportunity to make submissions on the duration, the gravity and the anti-competitive nature of the alleged acts (Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph 235, and Lögstör Rör v Commission, paragraph 48 above, paragraph 194).

50 In the present case, the Commission clearly stated, in point 229(b) of the statement of objections, that it intended to impose fines on the undertakings to which the statement was addressed.

51 The Commission also stated, in point 227 of the statement of objections, that Article 81(1) EC and Article 53(1) of the EEA Agreement had been deliberately infringed.

52 As regards the gravity of the alleged offences, the Commission, after stating in point 226 of the statement of objections that it would take account of the nature of the infringement, its actual impact on the market and the size of the relevant geographic market – which are all relevant circumstances in assessing the gravity of the infringement under Section 1 A, first paragraph, of the Guidelines – stated in point 227 that market sharing and price fixing are by their very nature the worst kind of violation of Articles 81(1) EC and 53(1) of the EEA Agreement; that the undertakings concerned were fully aware of the illegality of their actions; that they had combined to set up a secret and institutionalised system designed to restrict competition in a major industrial sector; that the cartel arrangements permeated the whole vitamin industry, were conceived, directed and encouraged at a very high level in the undertakings concerned and were operated entirely to their benefit and to the detriment of their customers and ultimately the general public, and that they covered the whole of the common market and, after the creation of the EEA, all the EEA States.

53 In point 226 of the statement of objections the Commission also indicated its intention to set any fines at a level sufficient to ensure deterrence.

54 The Commission added in point 228 that, in assessing the fine to be imposed on each individual undertaking, it would take account of the role played by each of them in the collusive arrangements, its importance in the vitamin industry and the impact of the offending conduct on competition, and any aggravating or attenuating factors. It mentioned expressly the leading role played in the collusive arrangements by the applicant in particular.

55 Also in point 228, the Commission referred to the need to take account of the duration of each undertaking’s individual participation in those arrangements, as described in point 220 in respect of each vitamin and each participant.

56 It is clear therefore that the Commission set out in its statement of objections the elements of fact and of law on which it would base its calculation of the amount of the fines imposed on the applicant, so the latter’s right to be heard was, at first sight, duly observed.

57 It is, however, necessary to consider to what extent the specific arguments which the applicant raises in its first and second pleas may invalidate that finding.

58 That is not so in the case of the argument based on the specific purpose of a statement of objections addressed to an undertaking that has fully cooperated with the Commission and has not disputed the facts (see paragraph 39 above). As the defendant has rightly stated, the function of the statement of objections does not vary according to the specific situation of the undertaking to which it is addressed. However much that undertaking cooperates, that function is still to give undertakings and associations of undertakings all the information necessary to enable them to defend themselves properly, before the Commission adopts a final decision (Ahlström Osakeyhtiöand Others v Commission, paragraph 46 above, paragraph 42, and Case C-283/98 P Mo och Domsjö v Commission, paragraph 46 above, paragraph 63). From that point of view, the fact that the applicant cooperated with the Commission, acknowledging that it had committed unlawful acts and describing those acts, did not mean that it no longer had any right or interest in obtaining a document from the Commission setting out precisely all the objections that the Commission raised against it, including those that might be based on statements or evidence supplied by other undertakings involved. Moreover, the applicant’s argument is not free of certain contradictions, since it is expressly based on a specific event, namely the applicant’s failure to dispute the facts, which logically implies the prior dispatch of a statement of objections setting out the Commission’s accusations and the facts on which those accusations were based, a statement whose nature and function could therefore in no way be affected by that later event.

59 The argument, again in the context of the second plea, alleging that the Decision represented a radical and unprecedented change in the Commission’s fines policy (see paragraph 40 above) also cannot succeed. There is no need to consider here whether and to what extent the fines imposed in the Decision do indeed, in view of their high amounts, mark a new stage in that policy, but it should be noted that the Court has consistently held that the Commission is not bound to mention in the statement of objections the possibility of a change in its policy as regards the general level of fines, a possibility which depends on general considerations of competition policy having no direct relationship with the particular circumstances of the case in question (Musique diffusion française and Others v Commission, paragraph 48 above, paragraph 22, and Lögstör Rör v Commission, paragraph 48 above, paragraph 203). The Commission is not under an obligation to put undertakings on notice by warning them of its intention to increase the general level of fines (Case T-12/89 Solvay v Commission [1992] ECR II-907, paragraph 311, and Lögstör Rör v Commission, paragraph 48 above, paragraph 203).

60 Also without foundation is the argument alleging, in a particularly confused manner and still in the context of the second plea, that there was no proper explanation in the statement of objections of what the applicant regards as two ‘extremely significant’ elements mentioned in the Decision in connection with calculating the amount of the fines, namely the 100% increase for deterrence and the finding that the applicant played a leading role (see paragraph 41 above).

61 With regard to the second of those elements, the applicant appears in reality to be arguing not that the explanations in the statement of objections are inadequate but rather that there is a lack of consistency between the statement of objections and the Decision, in so far as that element, which was included in the Decision, did not appear in the statement of objections. In that regard, as was noted in paragraph 54 above, the statement of objections expressly referred, in point 228, to the leading role played by the applicant, so the inconsistency alleged by the applicant does not exist.

62 With regard to the first element mentioned in paragraph 60 above, it was not for the Commission to inform the applicant in the statement of objections of the extent of any increase in the fine in order to ensure that it would act as a deterrent. The Commission is not required, once it has indicated the main factual and legal criteria on which it will base its calculation of the amount of the fines, to specify the way in which it will use each of those elements in order to determine their level. To give indications as regards the level of the fines envisaged, before the undertakings have been invited to submit their observations on the allegations against them, would be to anticipate the Commission’s decision and would thus be inappropriate (Musique diffusion française and Others v Commission, paragraph 48 above, paragraph 21; Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 19; and Lögstör Rör v Commission, paragraph 48 above, paragraph 200).

63 It is necessary to consider next the arguments which the applicant set out in its second plea and their effect on the provisional finding made in paragraph 56 above.

64 In this plea, the applicant complains that the Commission did not allow it to submit observations on another specific element which, in its opinion, had a significant penalising effect in connection with the calculation of the amount of the fines in the Decision, namely the Commission’s finding that the offending conduct constituted a number of separate infringements and not a single infringement.

65 In that regard, first of all, the adverse effect which the Commission’s finding might have had on the applicant should not be overstated.

66 The applicant starts from the premiss that if the Commission had found that only one infringement had been committed in the present case it would have imposed only one single fine on it, the starting amount of which would, according to the Guidelines, have been EUR 20 million, whereas the starting amount for the eight fines actually imposed on the applicant, when combined, is eight times greater than the starting amount that is likely for a single fine.

67 That premiss is based on an incorrect reading of the Guidelines. Section 1 A, second paragraph, of the Guidelines provides that the ‘likely fines’ for ‘very serious infringements’, for example ‘horizontal restrictions such as price cartels and market-sharing quotas’ are ‘above [EUR] 20 million’. There is therefore no indication in this part of the Guidelines that the starting amount of a fine imposed on an undertaking for an infringement of that nature should in principle be limited to EUR 20 million.

68 It should be noted that the Commission stated in recital 675 of the Decision that for the purposes of determining the starting amount of the fines it took into consideration the size of each of the different vitamin markets concerned. Even if the Commission had found in its Decision that there was a single overall infringement covering all the different vitamin products markets concerned, when determining the starting amount of the single fine to be imposed it could, according to the criterion set out in recital 675 of the Decision, have taken into account the combined value of those markets. The starting amount would thus normally have been set at a level well above EUR 20 million, which is the minimum threshold by way of guidance for a very serious infringement.

69 As the figure of EUR 20 million, given as guidance in the Guidelines for very serious infringements, is a ‘floor’ not a ‘ceiling’, there is nothing to indicate that if the Commission had found in its Decision that there had been a single infringement it ought necessarily to have set a starting amount for the single fine on the applicant that was lower than the sum of the starting amounts actually set for the eight fines imposed on it.

70 Admittedly, describing certain unlawful acts as constituting one and the same infringement or as a number of separate infringements is not, in principle, without consequence as regards the penalty that may be imposed, since a finding that a number of separate infringements have been committed may lead to the imposition of several separate fines, each within the limits laid down by Article 15(2) of Regulation No 17 (Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai Carbon and Others v Commission [2005] ECR II-0000, paragraph 118) and thus within the upper limit of 10% of turnover during the accounting period preceding the adoption of the decision.

71 However, in the present case the fact that the Commission classified the acts as separate infringements has not played any part from the point of view of applying that upper limit. The sum of the fines imposed on the applicant, even before application of the Leniency Notice (EUR 592.32 million), remains significantly below the limit of 10%, which is calculated on the basis of total turnover (Musique diffusion française and Others v Commission, paragraph 48 above, paragraph 119), the applicant’s total turnover in the year preceding the adoption of the Decision (2000) being EUR 35 946 million (see first table in recital 123 of the Decision).

72 It should be added that if the Commission had found in the present case that there had been a single infringement covering all the vitamin products referred to in the Decision, it could probably also have taken into account, for the purposes of calculating the fine to be imposed on the applicant, the latter’s collusion in respect of Vitamins B1 and H, which the Commission did not punish in the Decision, as it regarded them as separate infringements relating to which its power to impose penalties was time-barred under Regulation No 2988/74.

73 The above considerations, intended to put the applicant’s line of argument in a fuller and more objective perspective, do not however lead to the conclusion that the Commission’s finding that there were a number of separate infringements in this case had no impact whatsoever on the level of the fines imposed on the applicant. It is therefore necessary to consider whether, in response to the statement of objections, the applicant has been able to put its point of view on whether the acts alleged in the statement of objections to have been committed by it constituted a single infringement or a number of infringements.

74 It is true that, although the Commission did indeed identify and describe in detail in the statement of objections the acts alleged to have been committed by the undertakings to which it was addressed and indicated the provisions (Article 81 EC and Article 53 of the EEA Agreement) which it regarded as likely to have been infringed by those acts, it did not adopt a clear position on that question.

75 On the one hand, the applicant is right in pointing to a number of elements in the statement of objections which might indicate that the Commission regarded the anti-competitive acts in question as constituting a single infringement.

76 It is necessary to refer first of all to the third paragraph of point 206 of the statement of objections, in which the Commission noted that:

‘Notwithstanding the number of producers, the variation in the participation in the meetings and the diversity of their product ranges, the complex of collusive arrangements, in practice and in effect, constituted an overall coordinated scheme to control the world market across the whole range of vitamin products with [Roche] at the centre of the network of agreements and arrangements.’

77 It is important in particular to mention the second paragraph of point 212 of the statement of objections, in which the Commission stated:

‘Given the continuity and similarity of method, the Commission considers it appropriate to treat in one and the same procedure the complex of agreements covering the different vitamins. The Commission will consider this as one single overarching vitamin cartel with [Roche], BASF and Rhône-Poulenc forming the main “mass” and the other producers adhering to, and forming a subset of, the cartel for the particular vitamins which they produce.’

78 In the third and fourth paragraphs of point 225 of the statement of objections, the Commission stated that it was not possible to say with confidence that the ‘infringement’ had entirely ceased and that it was necessary to require the undertakings to which that statement was addressed to bring the ‘infringement’ to an end.

79 On the other hand, the defendant also rightly points to other elements in the statement of objections that could show that, on the contrary, the Commission intended to find that there had been a number of infringements.

80 In that regard, it should be mentioned that in the third paragraph of point 212 of the statement of objections the Commission observed in particular, citing the judgment of the Court of Justice in Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 111):

‘There is no reason at all why the Commission should not make a single decision covering several infringements, even if some of the undertakings to which it is addressed are unconnected with some of these infringements, provided that the decision permits each addressee to obtain a clear picture of the complaints made against it. … When and if any penalty is to be assessed, the Commission will take full account of the part played by each of the participants and the size of the market for the particular vitamin concerned.’

81 The first paragraph of point 212 of the statement of objections reads:

‘The Commission considers that the complex of infringements in this case present all the characteristics of a full agreement in the sense of Article 81 [EC].’

82 The third paragraph of point 225 of the statement of objections reads:

‘The infringements continued for most products long after the start of the investigations.’

83 In the fourth paragraph of point 226 of the statement of objections the Commission stated that, as regards the application of the Leniency Notice, it would take into consideration any cooperation by the producers ‘in relation to each product separately’.

84 The parties to the present case cite several other elements in the text of the statement of objections which, in their view, confirm their own interpretation of that document as to whether there was a single infringement or a number of distinct infringements. Those elements, in particular the use of terms such as ‘arrangement’, ‘agreement’ or ‘cartel’, used in either singular or plural, appear to be less significant.

85 Thus the defendant states in particular that the terms ‘complex of agreements’, ‘complex of agreements and arrangements’, ‘cartel agreements’, ‘collusive agreements’, used in the statement of objections, indicate that the Commission did consider that there had been a number of separate infringements in this case.

86 However, these terms, together with ‘collusive arrangements’, which also appears in the statement of objections, cannot be interpreted as necessarily giving a precise legal characterisation to the effect that there was a number of infringements. It is clear from case-law that patterns of conduct having the same anti-competitive object, each of which, taken in isolation, would fall within the meaning of ‘agreement’, ‘concerted practice’ or ‘a decision by an association of undertakings’ for the purposes of Article 81(1) EC, can constitute different manifestations of a single infringement of that article (Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 113).

87 The applicant, for its part, relies on a number of passages in the statement of objections where the Commission used the term ‘cartel’ without relating it to a specific vitamin, in particular in point 195 of the statement of objections, where the Commission, in order to assert its competence in the present case, stated that ‘the cartel had an appreciable effect on trade between EC Member States and competition in the Common Market’.

88 However, first, the use of the term ‘cartel’ does not necessarily imply that what is meant is the existence of a single restrictive practice for the purposes of Article 81 EC. That term may be used to describe a horizontal-type restrictive practice, but it may also be used more generally to describe a structure, an organisation responsible for conduct that is in breach of the competition rules. It cannot be excluded therefore that the term ‘cartel’ was used in the statement of objections to describe the global organisation set up by the vitamin producers, without thereby precluding the possible finding that there were a number of restrictive practices and hence a number of infringements. Second, some of the assertions made in the statement of objections about the ‘cartel’, such as that made in point 195 concerning its effects on trade between Member States, or the assertion made in point 227 that it constituted a deliberate infringement of Articles 81 EC and Article 53 of the EEA Agreement, may also be interpreted as meaning that in reality they were intended to describe characteristics common to all the restrictive practices referred to in the statement of objections, in order to avoid unnecessary repetition of those characteristics in respect of each practice.

89 As regards the structure of the statement of objections, on which the defendant relies, it is arranged in such a way that under Title C (‘The cartel’) it gives a specific and detailed description of the collusive agreements concerning each vitamin separately, but with vitamins A and E being taken together, even though they are described as belonging to different markets. Subject to that slight reservation, in each Section of Title C the Commission considers a particular vitamin product, examining its characteristics, its producers and the market for it (identified as a separate market), the origin, duration, basic scheme, the meetings and operation of the cartel as regards the vitamin concerned, and the members of the cartel. Notwithstanding its title (‘The cartel’ in the singular), Title C of the statement of objections gave a clear impression that there were a number of separate restrictive practices.

90 Thus, consideration of the statement of objections as a whole suggests that in that document there were evidently doubts on the part of the Commission as to the precise legal characterisation of the acts alleged, in terms of whether they constituted a single infringement or a number of infringements, although it stated unequivocally that they were in breach of Article 81(1) EC and Article 53(1) of the EEA Agreement. The statement of objections did not therefore give a clear indication whether the Commission intended to find that one infringement or a number of infringements had been committed.

91 That finding does not, however, imply that in those circumstances, by considering in the Decision that a separate infringement had been committed in respect of each of the vitamins concerned, the Commission failed to respect the applicant’s rights of defence.

92 It is true that in Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 29, relied on by the applicant, the Court of Justice held that ‘[t]he statement of objections must specify clearly the facts upon which the Commission relies and its classification of those facts’.

93 It should also be pointed out, however, that according to the case-law, the decision establishing an infringement is not necessarily required to be a replica of the statement of objections. The Commission must be able to take into account, in that decision, the replies by the undertakings to the statement of objections. It must be able not only to accept or reject their arguments but also make its own analysis of the matters put forward by them in order either to abandon such objections as have been shown to be unfounded or to supplement and redraft its arguments both in fact and in law in support of the objections which it maintains (ACF Chemiefarma v Commission, paragraph 47 above, paragraphs 91 and 92; Suiker Unie and Others v Commission, paragraph 80 above, paragraphs 437 and 438; and Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 68).

94 In particular, assessment of the facts is a part of the decision-making act itself and the right to be heard extends to all the matters of fact and of law which form the basis for the decision-making act but not the final position which the administration intends to adopt (see, to that effect, Joined Cases T-129/95, T-2/96 and T-97/96 Neue Maxhütte Stahlwerke and Lech-Stahlwerke v Commission [1999] ECR II-17, paragraph 231, and Case T-16/02 Audi v OHIM [2003] ECR II‑5167, paragraph 75).

95 Thus, first, the rights of the defence are infringed as a result of a discrepancy between the statement of objections and the final decision only where an objection stated in the decision was not set out in the statement of objections in a manner sufficient to enable the addressees to defend their interests. Second, the legal classification of the facts made in the statement of objections can, by definition, be only provisional, and a subsequent Commission decision cannot be annulled on the sole ground that the definitive conclusions drawn from those facts do not correspond precisely with that provisional classification. The Commission is required to hear the addressees of a statement of objections and, where relevant, to take account of any observations made in response to the objections by amending its analysis specifically in order to respect their rights of defence (Case T-44/00 Mannesmannröhren-Werke v Commission [2004] ECR II-0000, paragraphs 98 to 100).

96 In the present case, there are grounds for considering that in the Decision the Commission merely adapted and provided legal clarification of the arguments on which it based the objections it had sustained and that it did not therefore prevent the applicant from making known its views on those objections before the Decision was adopted (see to that effect, Case T-9/89 Hüls v Commission [1992] ECR II-499, paragraphs 59 to 65). The applicant should have realised from reading the statement of objections that the Commission did not rule out a finding that there had been a number of separate infringements. The Commission would certainly have avoided the regrettable confusion and inconsistency arising from the legal assessment in the statement of objections as to whether it was a case of a single infringement or a number of infringements, if only it had set out more clearly the possible alternative in that regard on which it would pronounce in its final decision. None the less, that confusion and inconsistency did not prevent the applicant from making its point of view on that question known in its reply to the statement of objections.

97 As the defendant rightly pointed out, it is clear from that reply that the applicant itself was at least aware that the administrative procedure might relate to a number of infringements. On page 5 of the reply, at the end of the description of the measures it had taken to prevent future infringements of competition law within its organisation, the applicant noted that it had ‘immediately brought to an end the infringements which are the subject of this proceeding’. The fact relied upon by the applicant, that that observation was made in the context of arguments designed to persuade the Commission to recognise, for the applicant’s benefit, that there were attenuating circumstances, by no means rules out the possible inference from this that the applicant was aware, at that stage of the administrative procedure, that at the end of that procedure it might be found to have committed a number of infringements.

98 Also, the defendant rightly refers to the fact that, unlike the applicant, Roche, the addressee of the same statement of objections, made observations in its reply to that statement regarding the question whether there was one infringement or a number of infringements. It is of little relevance in that regard that Roche sought to make clear that in its view the Commission should find that there had been a number of separate infringements. Contrary to what the applicant claims, it cannot be inferred from the fact that Roche’s observations tended in that direction that Roche had interpreted the statement of objections as meaning that the addressees of the statement were accused of involvement in a single worldwide cartel. At any event, there is no need to consider how Roche might have interpreted the statement of objections since the important point is the objective content of that statement. In that regard, the applicant wrongly contends that it was alleged in the statement of objections to have taken part in a single worldwide cartel. The statement of objections contained, in addition to matters pointing in that direction, a number of matters pointing in the direction ultimately taken by the Commission in its Decision.

99 In those circumstances, the applicant was in a position to try, like Roche, to turn the Commission’s legal assessment in the desired direction, an assessment which was evidently still not settled with regard to the question whether the conduct complained of constituted a single infringement or a number of infringements. The ambiguities contained in the statement of objections did not prevent the applicant from doing this. The fact that it did not include any arguments on this point in its reply to the statement of objections was therefore purely of its own volition.

100 Thus, in adopting a clear and complete final position on the legal classification of the unlawful acts, which attributed to the applicant as many infringements of Article 81(1) EC and Article 53(1) of the EEA Agreement as there were vitamins affected by those acts, the Commission did not infringe the applicant’s right to be heard.

101 It is clear from all the above that the first and second pleas should be rejected.

102 Lastly, inasmuch as, by way of a closing remark at the hearing, at the end of its submission of the arguments in support of the first plea, the applicant suggested that the question raised in that plea was not merely a procedural matter and observed that the Guidelines did not provide that in respect of a restrictive practice covering more than one product the Commission could multiply the fines by the number of such products, it should be noted that, even if, by that remark, the applicant was complaining that the Commission had also infringed the Guidelines by finding in the Decision that the number of infringements was equal to the number of vitamin products concerned and therefore imposing on the applicant the same number of fines, such a complaint would clearly exceed the scope of that plea and would constitute a new plea in law that is inadmissible under Article 48(2) of the Rules of Procedure, since it would not be based on any matter of law or of fact which had come to light in the course of the procedure before 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

103 The applicant contests the starting amounts of the fines set for it by the Commission to reflect the gravity of the offences, which it claims are arbitrary, disproportionate and contrary to the principle of equal treatment.

104 The applicant notes that the Decision clearly states, in recitals 680 and 681, that, in setting the starting amount of the fines, the Commission took account of the relative importance of each undertaking in each of the relevant product markets and, more specifically, of the worldwide turnover in each vitamin. However, the Commission did not use that criterion and was inconsistent in calculating the starting amounts of the fines in two main respects.

105 First, the starting amounts of some of the applicant’s fines are disproportionate by comparison with those of other parties to the same cartels. The applicant points out that in the case of the infringements affecting vitamins B5, C and E, beta-carotene and carotinoids, the starting amount of the applicant’s fine, expressed as a percentage of its worldwide turnover in the vitamin concerned, was much higher than Roche’s, although Roche’s market share was, in each case, much higher than the applicant’s and, even on the Commission’s view, Roche’s leadership role in the cartels was very different from the applicant’s.

106 Second, the starting amounts of some of the applicant’s fines vary disproportionately as between different infringements, although its market shares for the different vitamins concerned were very similar. Thus, in the case of vitamins A and B2, the applicant was placed in the second category (after Roche) because it had market shares of 32% and 29% respectively, whereas, in the case of vitamin E, it was placed in the first category (with Roche) although its market share (29%) was the same or less than its market share in the case of vitamins A and B2 and despite similarities in the structure of the three markets. The applicant concludes that it ought to have been placed in the second category for all of those infringements and that that unequal treatment, for which the Commission offered no explanation, is unjustified.

107 The defendant replies that the starting amounts of the fines imposed on the applicant are within the range which the defendant is entitled to impose in its discretion and that they are objectively justified.

108 By constituting categories in relation to each offence, the defendant was considering orders of magnitude for duly weighting the fines rather than basing itself on arithmetical formulae. In particular, as indicated at recitals 685, 689 and 691 of the Decision, the undertakings were placed in the second category, below Roche, where their market shares were significantly smaller than Roche’s, as was the case for the applicant in the context of the infringements relating to vitamins B5 and C.

109 However, with regard to the infringements relating to beta-carotene and carotinoids, it was found that, given the characteristics of those two markets, which were essentially in the hands of BASF and Roche, those two undertakings had the same ‘specific weight’ in the functioning of the cartel and that the difference in market shares was not a valid indication of the role of each undertaking in the infringement or of their overall size. That is why no separate category was created for those infringements and the starting amount of the fines was determined by reference only to the size of the market.

110 By way of measures of organisation of procedure ordered by the Court, the defendant provided some clarification as to the method it followed in determining the starting amounts for the fines imposed by the Decision.

111 In particular, the defendant explained that in order to adjust the starting amount for the gravity of each infringement on its own by reference to the size of each vitamin product market (‘the general starting amount’) it used the data on the size of the EEA market for the last complete year of the infringement. It also gave such data for each of the vitamin products in question and stated that, where the Commission had divided the undertakings into categories, the general starting amounts remained linked to the first category for each infringement.

112 In the same context, the defendant indicated how it had calculated the precise starting amount that had been applied – for each of the infringements for which it had divided the members of the cartel into