Case T-329/01

Archer Daniels Midland Co.

v

Commission of the European Communities

(Competition – Cartels – Sodium gluconate – Article 81 EC – Fine – Article 15(2) of Regulation No 17 – Guidelines on the method of setting fines – Leniency Notice – Principle of proportionality – Equal treatment – Non‑retroactivity – Duty to state reasons – Rights of the defence)

Judgment of the Court of First Instance (Third Chamber), 27 September 2006

Summary of the Judgment

1. Community law – General principles of law – Non-retroactivity of penal provisions

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

2. Competition – Fines – Guidelines on the method of setting fines

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

3. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

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

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

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

5. Competition – Fines – Amount – Determination – Deterrent effect of the fine

(Art. 81 EC; Council Regulation No 17, Art. 15)

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

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

7. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

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

8. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Council Regulation No 17, Art. 15)

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

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

10. Competition – Fines – Accumulation of Community penalties in respect of separate facts arising out of the same set of agreements

(Council Regulation No 17, Art. 15)

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

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

12. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine in return for cooperation of the undertaking concerned

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

13. Competition – Fines – Amount – Determination – Criteria – Appraisal of the extent of the cooperation shown by each of the undertakings during the administrative procedure

(Council Regulation No 17, Art. 15; Commission Notice 96/C 207/04, Sections B, C and D)

14. Competition – Administrative procedure – Statement of objections – Necessary content

(Council Regulation No 17, Art. 19(1))

15. Competition – Fines – Amount – Discretion of the Commission – Judicial review

(Art. 229 EC)

1. The principle of non-retroactivity of criminal laws, enshrined in Article 7 of the European Convention on Human Rights as a fundamental right, constitutes a general principle of Community law which must be observed when fines are imposed for infringement of the competition rules. That principle requires that the penalties imposed correspond with those fixed at the time when the infringement was committed.

The adoption of guidelines capable of modifying the general competition policy of the Commission as regards fines may, in principle, fall within the scope of the principle of non‑retroactivity.

First, the Guidelines are capable of producing legal effects. Those effects stem not from any attribute of the Guidelines as rules of law in themselves, but from their adoption and publication by the Commission. By adopting and publishing the Guidelines, the Commission imposes a limit on its own discretion; it cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations and legal certainty.

Second, as an instrument of competition policy, the Guidelines fall within the scope of the principle of non‑retroactivity, just like a new interpretation by the courts of a rule establishing an offence, in conformity with the case-law of the European Court of Human Rights on Article 7(1) of the European Convention on Human Rights which holds that that provision precludes the retroactive application of a new interpretation of a rule establishing an offence. According to that case-law, that is the case in particular where there is an interpretation by the courts which produces a result which was not reasonably foreseeable at the time when the offence was committed, having regard notably to the interpretation of the rule applied in the case-law at the material time. It follows however from that same case-law that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it covers and the number and status of those to whom it is addressed. Thus, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. More specifically, this is true particularly in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such an activity entails.

In order to ensure that the principle of non-retroactivity is observed, it is necessary to ascertain whether the modification, which consisted in the adoption 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, was reasonably foreseeable at the time when the infringements at issue were committed. In that regard, the main innovation in the Guidelines consisted in taking as a starting point for the calculation a basic amount, determined on the basis of brackets laid down for that purpose by the Guidelines; those brackets reflect the various degrees of gravity of infringements but, 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.

Next, the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy: on the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.

It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines.

Consequently, those undertakings must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. That is true not only where the Commission raises the level of the amount of fines in imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the Guidelines.

(see paras 38-46)

2. The application by the Commission of the method set out 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 in calculating the fine imposed on an undertaking does not constitute discriminatory treatment by comparison with undertakings which infringed the Community competition rules at the same time but, for reasons pertaining to the time when the infringement was discovered or to the conduct of the administrative procedure initiated against them, were sanctioned before the adoption and publication of the Guidelines.

(see para. 53)

3. The gravity of infringements of the competition rules has to be determined by reference to numerous factors, such as the particular circumstances of the case and its context; moreover, there is no binding or exhaustive list of the criteria which must be applied.

Furthermore, the criteria for assessing the gravity of an infringement may include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the relevant market. It follows that, on the one hand, it is permissible, for the purpose of fixing a fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the market share of the undertakings concerned on the relevant market, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors and the fixing of an appropriate fine cannot therefore be the result of a simple calculation based on total turnover.

In any event, the mere fact that the fine imposed on an undertaking exceeds turnover through sales of the product which is the subject of the cartel in the European Economic Area during the period that undertaking participated in the cartel, or even exceeds it significantly, is not sufficient to show that the fine is disproportionate.

(see paras 76-77, 80)

4. In accordance with Article 15(2) of Regulation No 17, the fine is set on the basis of the gravity and duration of the infringement. Furthermore, in accordance with 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, the Commission sets the starting amount on the basis of the gravity of the infringement, taking into account the actual nature of the infringement, its actual impact on the market and the scope of the geographic market.

That legal framework does not therefore in itself require the Commission to take account of the small size of the product market.

However, when assessing the gravity of an infringement, the Commission must take account of a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. Those factors attesting to the gravity of the infringement may, depending on the circumstances, include the size of the relevant product market.

Consequently, although the size of the market may constitute a factor to take into consideration when determining the gravity of the infringement, its significance varies according to the particular circumstances of the case.

(see paras 99-102)

5. Deterrence is one of the main considerations which must guide the Commission when setting fines imposed for an infringement of the Community competition rules.

If the fine were set at a level which merely negated the profits of the cartel, it would not be a deterrent. It is reasonable to assume that when making financial calculations and management decisions, undertakings take account rationally not only of the level of fines that they risk incurring in the event of an infringement but also the likelihood of the cartel being detected. In addition, if the purpose of the fine were to be confined merely to negating the expected profit or advantage, insufficient account would be taken of the fact that the conduct in question constitutes an infringement of Article 81(1) EC. To regard the fine merely as compensating for the damage incurred would be to overlook not only the deterrent effect, which can relate only to future conduct, but also the punitive nature of such a measure in relation to the actual infringement committed.

Similarly, in the case of an undertaking which is active on a large number of markets and has a particularly large financial capacity, to take into account turnover on the relevant market cannot suffice to ensure that the fine has deterrent effect. The larger an undertaking is and the more overall resources it has at its disposal which enable it to act independently on the market, the more it must be aware of the importance of its role as regards the smooth functioning of competition on the market. Consequently, the factual circumstances of the economic power of an undertaking which has been found guilty of an infringement must be taken into account when setting the amount of the fine in order to ensure that it has deterrent effect.

(see paras 140-142)

6. According to Section 1A, first paragraph, 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, the Commission is to take account, inter alia, of the actual impact of the infringement on the market, where this can be measured, when calculating the fine on the basis of the gravity of the infringement. That measurable impact of the cartel must be regarded as having been sufficiently demonstrated if the Commission is able to provide specific and credible evidence indicating with reasonable probability that the cartel had an impact on the market.

Consideration of the impact of a cartel on the market necessarily involves recourse to assumptions. In this respect, the Commission must in particular consider what the price of the relevant product would have been in the absence of a cartel. When examining the causes of actual price developments, it is hazardous to speculate on the part played by each of those causes. Account must be taken of the objective fact that, because of the price cartel, the parties specifically waived their freedom to compete with one another on prices. Thus, the assessment of the influence of factors other than that voluntary decision of the parties to the cartel not to compete with one another is necessarily based on reasonable probability, which is not precisely quantifiable.

Therefore, unless the criterion of Section 1A, first paragraph, is to be deprived of its effectiveness, the Commission cannot be criticised for referring to the actual impact on the market of a cartel having an anti‑competitive object, such as a price or sales quota cartel, even though it does not quantify that impact or provide any assessment in figures in this respect.

(see paras 174-178)

7. When determining the gravity of an infringement of competition law, particular account should be taken of the legislative background and economic context of the conduct complained of. In this respect, in order to assess the actual effect of an infringement on the market the Commission must take as a reference the competition that would normally exist if there were no infringement.

It follows, first, that particularly in the case of price agreements there must be a finding by the Commission – with a reasonable degree of probability – that such agreements have in fact enabled the undertakings concerned to achieve a higher level of price than that which would have prevailed had there been no cartel. Second, it follows that, in making its assessment, the Commission must take into account all the objective conditions in the relevant market and have regard to the economic context and, if appropriate, also the legislative background. Account should be taken of the existence of any ‘objective economic factors’ which indicate that, had there been a ‘free play of competition’, prices would not have developed in the same way as the prices which were actually charged.

(see paras 191-192)

8. In curbing prohibited cartels, the actual conduct which an undertaking claims to have adopted is irrelevant for the purposes of evaluating a cartel’s effect on the market, since the effects to be taken into consideration are those arising from the infringement as a whole in which it participated.

(see para. 204)

9. In assessing the gravity of an infringement of the competition rules for the purpose of fixing the amount of the fine, the Commission must take into consideration not only the particular circumstances of the case but also the context in which the infringement occurs and must ensure that its action has the necessary deterrent effect. Only by taking into account those factors is it possible to ensure that the action taken by the Commission for the purpose of maintaining undistorted competition on the common market is fully effective.

A purely literal analysis of the third indent of paragraph 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 could give the impression that the mere fact that an offender terminates an infringement as soon as the Commission intervenes constitutes, generally and without reserve, an attenuating circumstance. However, such an interpretation would reduce the effectiveness of the provisions for maintaining effective competition, as it would weaken both the penalty which could be imposed for an infringement of Article 81 EC and the deterrent effect of such a penalty.

Unlike other attenuating circumstances, the fact of terminating an infringement as soon as the Commission intervenes is not inherent in any particular individual characteristic of the offending party itself or the specific facts of the particular case, since it results mainly from the – external – intervention of the Commission. Thus, termination of an infringement only after the Commission has intervened should not be rewarded in the same way as an independent initiative of the offending party, and merely constitutes an appropriate and normal reaction to that intervention. Moreover, the fact of termination merely marks a return by the offending party to lawful conduct and does not enhance the effectiveness of the actions taken by the Commission. Lastly, the alleged attenuating nature of the fact of termination cannot be justified solely by the incentive to terminate the infringement to which it relates. In this respect, the classification of the continuation of an infringement after the Commission intervenes as an aggravating circumstance already rightly constitutes an incentive to terminate the infringement, which does not reduce the penalty or its deterrent effect.

Thus, if termination of an infringement as soon as the Commission intervenes were to be recognised as an attenuating circumstance, that would unduly impair the effectiveness of Article 81(1) EC by weakening both the penalty and its deterrent effect. Consequently, the Commission cannot place itself under an obligation to consider the mere fact that the infringement was terminated as soon as it intervened to be an attenuating circumstance. Accordingly, the third indent of paragraph 3 of the Guidelines must be interpreted restrictively so as not to undermine the effectiveness of Article 81(1) EC, and as meaning that solely the particular circumstances of the specific case in which an infringement is actually terminated as soon as the Commission intervenes can warrant that termination being taken into account as an attenuating circumstance.

In the case of a particularly serious infringement, whose object is price fixing and market sharing, committed intentionally by the undertakings concerned, its termination cannot be regarded as an attenuating circumstance where it was terminated as a result of the Commission’s intervention.

(see paras 276-282)

10. The principle of ne bis in idem prohibits the same person from being sanctioned more than once for the same unlawful conduct in order to protect one and the same legal interest. The application of that principle is subject to three cumulative conditions: the identity of the facts, the unity of offender and the unity of legal interest protected.

Thus, where the actions on which two sanctions are based arise out of the same set of agreements but nevertheless differ as regards both their object and their geographical emphasis, that principle does not apply. That is the case where the sanctions relate to cartels concerning different markets. That is also the case of a cartel which also concerns the territory of non‑member States since, under the principle of territoriality there is no conflict in the exercise by the Commission and by the competition authorities of those non‑member States of their power to impose fines on undertakings which infringe the competition rules of the European Economic Area and of those States.

(see paras 290-292)

11. Whilst it is important that an undertaking takes steps to prevent fresh infringements of Community competition law from being committed in the future by members of its staff, the taking of such steps does not alter the fact that an infringement has been committed. The Commission is therefore not required to take a circumstance such as that into account as an attenuating circumstance, especially where the infringement in question amounts to a manifest infringement of Article 81(1) EC.

12. Furthermore, 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 provide that the Commission may find that there were aggravating circumstances in the case of an undertaking which has already committed one or more infringements of the same type, it does not follow that, where the infringement in question is the first of that type committed by the undertaking in question, it should receive favourable treatment by virtue of an attenuating circumstance.

(see paras 299-300)

13. In order for an undertaking to be able to benefit from a significant reduction in the fine under Section C of the Notice on the non-imposition or reduction of fines in cartel cases, that notice requires, in Section B(b) thereof, to which Section C refers, that that undertaking be the first to adduce decisive evidence of the cartel’s existence. That notice does not provide that, in order to satisfy that condition, an undertaking which informs the Commission about a secret cartel must provide it with all the decisive evidence for preparing the statement of objections or, still less, for adopting a decision establishing an infringement.

(see paras 319-321)

14. In order to ensure that it does not conflict with the principle of equal treatment, the Notice on the non-imposition or reduction of fines in cartel cases must be applied in such a way that, as regards the reduction of fines, the Commission must treat in the same way undertakings that provide the Commission, at the same stage of the procedure and in similar circumstances, with similar information concerning the conduct imputed to them. The mere fact that one of those undertakings was the first to acknowledge the alleged facts in response to the questions put to them by the Commission at the same stage of the procedure cannot constitute an objective reason for treating it differently.

However, that applies only in the context of cooperation of undertakings which does not fall within the scope of Sections B and C of the Leniency Notice.

Unlike those sections, Section D does not provide for different treatment for the undertakings concerned on the basis of the order in which they cooperate with the Commission.

(see paras 338-339, 341)

15. 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 basis that the statement of objections can fulfil its function under the Community regulations of giving undertakings all the information necessary to enable them properly to defend themselves, before the Commission adopts a final decision.

Provided that the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined.

Therefore, as regards determining the amount of fines, the rights of defence of the undertakings in question are guaranteed before the Commission through the opportunity to make submissions on the duration, the gravity and the foreseeability of the anti-competitive nature of the infringement.

(see paras 359, 361-362)

16. Where the examination of the pleas raised by an undertaking against the legality of a Commission decision imposing on it a fine for infringement of the Community competition rules has not revealed any illegality, there is no need for the Court of First Instance to make use of its unlimited jurisdiction in order to reduce that fine.

(see para. 382)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

27 September 2006 ( )

(Competition – Cartels – Sodium gluconate – Article 81 EC – Fine – Article 15(2) of Regulation No 17 – Guidelines on the method of setting fines – Leniency Notice – Principle of proportionality – Equal treatment – Non-retroactivity – Obligation to state reasons – Rights of the defence)

In Case T‑329/01,

Archer Daniels Midland Co., established in Decatur, Illinois (United States), represented by C.O. Lenz, lawyer, L. Martin Alegi, M. Garcia and E. Batchelor, Solicitors,

applicant,

v

Commission of the European Communities, represented by A. Whelan, A. Bouquet and W. Wils, acting as Agents,

defendant,

APPLICATION for annulment of Article 1 of Commission Decision C(2001) 2931 final of 2 October 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.756 – Sodium Gluconate) in so far as it pertains to the applicant, or at least to the extent that it finds the applicant was party to an infringement after 4 October 1994, and for annulment of Article 3 of that decision in so far as it pertains to the applicant or, in the alternative, annulment or reduction of the fine imposed on it by the decision,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges,

Registrar: I. Natsinas, Administrator,

having regard to the written procedure and further to the hearing on 18 February 2004,

gives the following

Judgment

Facts

1 Archer Daniels Midland Co. (‘ADM’) is the parent company of a group of companies which operate in the cereal and oil seed processing industry. ADM entered the sodium gluconate market in 1990.

2 Sodium gluconate is a chelating agent, products which inactivate metal ions in industrial processes. Those processes are used, inter alia, in industrial cleaning (bottle washing, utensil cleaning), surface treatment (de-rusting, degreasing, aluminium etching) and water treatment. Chelating agents are thus used in the food industry, the cosmetics industry, the pharmaceutical industry, the paper industry, the concrete industry and in various other industries. Sodium gluconate is sold worldwide and competing undertakings have a worldwide presence.

3 In 1995, total sales of sodium gluconate on a worldwide level were around EUR 58.7 million and sales in the European Economic Area (EEA) around EUR 19.6 million. At the material time, almost all of the sodium gluconate produced worldwide was in the hands of five undertakings namely (i) Fujisawa Pharmaceutical Co. Ltd (‘Fujisawa’), (ii) Jungbunzlauer AG (‘Jungbunzlauer’), (iii) Roquette Frères SA (‘Roquette’), (iv) Glucona vof (‘Glucona’), a joint venture controlled jointly, until December 1995, by Akzo Chemie BV, a wholly-owned subsidiary of Akzo Nobel NV (‘Akzo’), and Cooperatieve Verkoop- en Productiervereniging van Aardappelmeel en Derivaten Avebe BA (‘Avebe’) and (v) ADM.

4 In March 1997, the United States Department of Justice informed the Commission that following an investigation into the lysine and citric acid markets, an investigation had also been opened into the sodium gluconate market. In October and December 1997 and February 1998, the Commission was informed that Akzo, Avebe, Glucona, Roquette and Fujisawa acknowledged that they had participated in a cartel to fix the price of sodium gluconate and to allocate sales volumes of the product in the United States and elsewhere. Pursuant to agreements entered into with the United States Department of Justice, those undertakings and ADM were fined by the United States authorities. The fine imposed on ADM with regard to the cartel on the sodium gluconate market was part of the global USD 100 million fine paid in the context of the lysine and citric acid cases.

5 On 18 February 1998, the Commission sent requests for information under Article 11 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) to the main producers, traders and customers of sodium gluconate in Europe. That request was not sent to ADM.

6 Following receipt of the request for information, Fujisawa approached the Commission and announced that it had cooperated with the United States authorities in the course of the investigation described above and that it wished to cooperate with the Commission under the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’). On 12 May 1998, following a meeting with the Commission on 1 April, Fujisawa supplied a written statement and a file of documents providing a summary of the cartel’s history and a number of documents.

7 On 16 and 17 September 1998, the Commission carried out inspections pursuant to Article 14(3) of Regulation No 17 at the premises of Avebe, Glucona, Jungbunzlauer and Roquette.

8 On 10 November 1998, the Commission sent a request for information to ADM. On 26 November 1998, ADM announced that it intended to cooperate with the Commission. During a meeting held on 11 December 1998, ADM provided a ‘first instalment of [its] cooperation’. A statement from the company and documents relevant to the case were subsequently handed to the Commission on 21 January 1999.

9 On 2 March 1999, the Commission sent detailed requests for information to Glucona, Roquette and Jungbunzlauer. By letters of 14, 19 and 20 April 1999, those undertakings made it known that they wished to cooperate with the Commission and provided it with certain information about the cartel. On 25 October 1999, the Commission sent additional requests for information to ADM, Fujisawa, Glucona, Roquette and Jungbunzlauer.

10 On 17 May 2000, the Commission, on the basis of the information supplied to it, sent a statement of objections to ADM and the other undertakings concerned for infringement of Article 81(1) EC and Article 53(1) of the Agreement on the EEA (‘the EEA Agreement’). ADM and all the other undertakings concerned submitted written observations in response to the Commission’s objections. None of the parties requested an oral hearing, nor did they substantially contest the facts as set out in the statement of objections.

11 On 11 May 2001, the Commission sent additional requests for information to ADM and the other undertakings concerned.

12 On 2 October 2001, the Commission adopted Decision C(2001) 2931 final relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (COMP/E-1/36.756 – Sodium Gluconate; ‘the Decision’). The Decision was notified to ADM by letter of 12 October 2001.

13 The Decision includes the following provisions:

‘Article 1

[Akzo], [ADM], [Avebe], [Fujisawa], [Jungbunzlauer] and [Roquette] have infringed Article 81(1) EC and – from 1 January 1994 onwards – Article 53(1) of the EEA Agreement by participating in a continuing agreement and/or concerted practice in the sodium gluconate sector.

The duration of the infringement was as follows:

– in the case of [Akzo], [Avebe], [Fujisawa] and [Roquette], from February 1987 to June 1995,

– in the case of [Jungbunzlauer], from May 1988 to June 1995,

– in the case of [ADM], from June 1991 to June 1995.

…

Article 3

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

(a) [Akzo] EUR 9 million

(b) [ADM] EUR 10.13 million

(c) [Avebe] EUR 3.6 million

(d) [Fujisawa] EUR 3.6 million

(e) [Jungbunzlauer] EUR 20.4 million

(f) [Roquette] EUR 10.8 million

…’





14 In calculating the amount of the fines, the Commission applied in the Decision the methods set out 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 (OJ 1998 C 9, p. 3; ‘the Guidelines’) and the Leniency Notice.

15 First, the Commission determined the basic amount of the fine by reference to the gravity and duration of the infringement.

16 In that context, as regards the gravity of the infringement, the Commission found, first, that, taking into account the nature of the infringement, its actual impact on the EEA sodium gluconate market and the scope of the relevant geographic market, the undertakings concerned had committed a very serious infringement (recital 371 of the Decision).

17 Next, the Commission considered that it was necessary to take account of the actual economic capacity of the offenders to cause significant damage to competition, and to set the fine at a level which ensured that it had sufficient deterrent effect. Consequently, taking as its basis the relevant undertakings’ worldwide turnover from the sale of sodium gluconate in 1995, the last year of the infringement, communicated by the relevant undertakings following the Commission’s requests for information, and from which the Commission calculated the respective market shares of those undertakings, the Commission divided the undertakings into two categories. In the first category, it placed the undertakings which, according to the data in its possession, held worldwide shares in the sodium gluconate market above 20%, namely Fujisawa (35.54%), Jungbunzlauer (24.75%) and Roquette (20.96%). The Commission set a starting amount of EUR 10 million for those undertakings. In the second category, it placed the undertakings which, according the data in its possession, held worldwide shares in that market of below 10%, namely Glucona (approximately 9.5%) and ADM (9.35%). The Commission set the starting amount of the fine at EUR 5 million for those undertakings, that is to say, for Akzo and Avebe, which jointly owned Glucona, at EUR 2.5 million each (recital 385 of the Decision).

18 In order to ensure that the fine had a sufficient deterrent effect and to take account of the fact that large undertakings have legal and economic knowledge and infrastructures which enable them more easily to recognise that their conduct constitutes an infringement and be aware of the consequences stemming from it under competition law, the Commission also adjusted the starting amount. Consequently, taking account of the size and the worldwide resources of the undertakings concerned, the Commission applied a multiplier of 2.5 to the starting amount for ADM and Akzo and therefore increased that starting amount, so that it was set at EUR 12.5 million as regards ADM and EUR 6.25 million as regards Akzo (recital 388 of the Decision).

19 As regards the duration of the infringement committed by each undertaking, the starting amount was moreover increased by 10% per year, i.e. an increase of 80% for Fujisawa, Akzo, Avebe and Roquette, of 70% for Jungbunzlauer and of 35% for ADM (recitals 389 to 392 of the Decision).

20 Accordingly, the Commission set the basic amounts of the fines at EUR 16.88 million as regards ADM. As regards Akzo, Avebe, Fujisawa, Jungbunzlauer and Roquette, the basic amount was set at EUR 11.25 million, EUR 4.5 million, EUR 18 million, EUR 17 million and EUR 18 million respectively (recital 396 of the Decision).

21 Second, on account of aggravating circumstances, the basic amount of the fine imposed on Jungbunzlauer was increased by 50% on the ground that the undertaking had acted as ringleader of the cartel (recital 403 of the Decision).

22 Third, the Commission examined and rejected the arguments of certain undertakings, including ADM, that there were attenuating circumstances which should have applied in their case (recitals 404 to 410 of the Decision).

23 Fourth, under Section B of the Leniency Notice, the Commission allowed Fujisawa a ‘very substantial reduction’ (namely 80%) of the fine which would have been imposed if it had not cooperated. In addition, the Commission took the view that ADM did not meet the conditions laid down in Section C of the Leniency Notice and did not qualify for a ‘substantial reduction’ of the amount of its fine. Finally, under Section D of that notice, the Commission allowed ADM and Roquette a ‘significant reduction’ (namely 40%) of the fine, and allowed Akzo, Avebe and Jungbunzlauer a 20% reduction (recitals 418, 423, 426 and 427 of the Decision).

Procedure and forms of order sought by the parties

24 ADM brought the present action by application lodged at the Registry of the Court of First Instance on 21 December 2001.

25 Upon hearing the Report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) decided to open the oral procedure and, in the context of measures of organisation of procedure under Article 64 of the Rules of Procedure of the Court of First Instance, put written questions to the parties to which they replied within the prescribed period.

26 The parties presented oral argument at the hearing on 18 February 2004.

27 By letter of 21 July 2006, ADM requested the Court of First Instance to consider a new plea based on the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’) on the ground that those guidelines constitute a matter of law and of fact which has come to light in the course of the procedure within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance. Having regard to the general principle of sound administration of justice, the Court, without reopening the procedure, invited the Commission to comment on ADM’s request. By letter of 11 August 2006, the Commission expressed the view that there were no grounds for acceding to ADM’s request.

28 ADM claims that the Court should:

– annul Article 1 of the Decision in so far as it pertains to it, or at least to the extent that it finds that it was party to an infringement after 4 October 1994;

– annul Article 3 of the Decision insofar as it pertains to it;

– in the alternative, annul or substantially reduce the fine imposed on it;

– order the Commission to pay the costs.

29 The Commission contends that the Court should:

– dismiss the application;

– order ADM to pay the costs.

Law

30 The pleas put forward by ADM, all of which relate to the setting of the fine imposed on it, concern (i) whether the Guidelines apply to this case, (ii) the gravity of the infringement, (iii) the duration of the infringement, (iv) the existence of attenuating circumstances, (v) its cooperation during the administrative procedure and (vi) observance of the rights of the defence.

A – Whether the Guidelines apply

1. Infringement of the principles of legal certainty and non-retroactivity of penalties

a) Arguments of the parties

31 ADM submits that the method of calculating fines laid down by the Guidelines differs fundamentally from the Commission’s previous fining practice which, as the Commission acknowledges in the Decision (recital 395), entailed determining the fine according to a base rate representing a certain percentage of sales in the relevant Community market. Conversely, the Guidelines introduce a fixed rate fine, for example EUR 20 million for a very serious infringement, regardless of the volume of sales of the product concerned.

32 ADM observes that during the period to which this case relates (1991 to 1994 or 1991 to 1995), the Commission consistently applied this practice and imposed fines of generally between 2% and 9% of the value of sales of the relevant product in the Community market. By contrast, implementation of the new policy deriving from the Guidelines results in fines of 43 to 153 times higher than those imposed on the basis of the former practice.

33 ADM acknowledges that the Commission has discretion to increase fines where competition law policy requires higher dissuasive fines. However, in imposing a fine of 43 to 153 times that which would have been fixed under its former approach, the Commission manifestly overstepped any such discretion. Contrary to the Commission’s contention, that conclusion is borne out by the judgment of the Court of First Instance in Case T-16/99 Lögstör Rör v Commission [2002] ECR II-1633, paragraph 237. In that judgment, the Court of First Instance made the Commission’s ability to increase the level of fines within the limits indicated in Regulation No 17 subject to the condition that doing so is necessary to ensure the implementation of Community competition policy. The Commission has not provided any explanation nor put forward any evidence in either the Decision or its pleadings such as to show that the implementation of that policy requires the imposition of fines 43 to 153 times higher than those obtaining when the former standard practice applied. ADM also observes that in Lögstör Rör v Commission and all the other cases dealing with the pre-insulated pipes cartel, apart from the case concerning ABB, the Commission imposed fines of a level comparable to the level prevailing when its earlier practice was followed. ADM asserts that the undertakings participating in that cartel were fined only between 3% and 14% of the affected sales and even ABB’s fine represented only 44% of its affected sales.

34 ADM submits that the undertakings concerned must be able to carry on business in conditions which are predictable. Thus, as the Guidelines also explain (first paragraph), the Commission must follow a coherent and non-discriminatory policy when setting the amount of the fines. Lack of legal certainty in the assessment of fines is antithetical to the notion of effectively implementing the deterrent constituted by a fine. For a fine to act as an effective deterrent, it is essential that the undertakings concerned have prior knowledge of applicable penalties. An effective general amnesty or leniency policy requires that the penalties in cases of non-cooperation are clearly defined in advance. Likewise, it is unconscionable to maintain a state of constant uncertainty as to the level of fines which may be imposed for competition law violations, especially given the long period of time taken to complete investigations of such infringements. Consequently, legal certainty requires that the approach which the Commission adopts in calculating fines under Article 15(2) of Regulation No 17 may be predicted with a sufficient degree of certainty.

35 ADM adds that it is apparent from the United States Sentencing Guidelines (Section 1B1.11(b)(1); ‘the US Guidelines’) and from the decision of a federal Court of Appeals (United States v Kimler 167 F. 3d 889 (5th Cir. 1999) that retroactive application of new guidelines in the matter of fines is prohibited by the ex post facto clause of the United States Constitution when it results in the imposition of a punishment more severe than the punishment provided for when the infringement occurred.

36 Consequently, in ADM’s submission, where the new policy laid down in the Guidelines is applied retroactively to an infringement which, as is the case in this instance, took place prior to their publication and has the effect of imposing on ADM a much higher fine than those imposed when former practice prevailed without that increase being necessary to ensure compliance with competition law policy, such application offends against the principle of legal certainty and is unlawful.

37 The Commission contends that the plea should be rejected.

b) Findings of the Court

38 The Court observes, first of all, that the principle of non-retroactivity of criminal laws, enshrined in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as a fundamental right, constitutes a general principle of Community law which must be observed when fines are imposed for infringement of the competition rules and that that principle requires that the penalties imposed correspond with those fixed at the time when the infringement was committed (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 202; Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraphs 218 to 221; and Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraph 39).

39 Next, the Court considers that the adoption of guidelines capable of modifying the general competition policy of the Commission as regards fines may, in principle, fall within the scope of the principle of non‑retroactivity.

40 First, the Guidelines are capable of producing legal effects. Those effects stem not from any attribute of the Guidelines as rules of law in themselves, but from their adoption and publication by the Commission. By adopting and publishing the Guidelines, the Commission imposes a limit on its own discretion; it cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations and legal certainty (see, to that effect, Dansk Rørindustri and Others v Commission, paragraph 38 above, paragraphs 209 to 212).

41 Second, as an instrument of competition policy, the Guidelines fall within the scope of the principle of non‑retroactivity, just like a new interpretation by the courts of a rule establishing an offence, in conformity with the case-law of the European Court of Human Rights on Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see, in particular, Eur. Court H.R., S.W. v. United Kingdom and C.R. v. United Kingdom, judgments of 22 November 1995, Series A Nos 335-B and 335-C, §§ 34 to 36 and §§ 32 to 34; Cantoni v. France, judgment of 15 November 1996, Reports of Judgments and Decisions, 1996-V, §§ 29 to 32, and Coëme and Others v. Belgium, judgment of 22 June 2000, Reports, 2000-VII, § 145) which holds that that provision precludes the retroactive application of a new interpretation of a rule establishing an offence. According to that case-law, that is the case in particular where there is an interpretation by the courts which produces a result which was not reasonably foreseeable at the time when the offence was committed, having regard notably to the interpretation of the rule applied in the case-law at the material time. It should however be stated that it follows from that same case-law that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it covers and the number and status of those to whom it is addressed. Thus, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. More specifically, in accordance with Cantoni v. France (§ 35), this is true particularly in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such an activity entails (Dansk Rørindustri and Others v Commission, paragraph 38 above, paragraphs 215 to 223).

42 In view of the foregoing, it is therefore necessary to ascertain whether the modification, which consisted in the adoption of the Guidelines, was reasonably foreseeable at the time when the infringements at issue were committed.

43 In that regard, it should be noted that the main innovation in the Guidelines consisted in taking as a starting point for the calculation a basic amount, determined on the basis of brackets laid down for that purpose by the Guidelines; those brackets reflect the various degrees of gravity of infringements but, 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 (Dansk Rørindustri v Commission, paragraph 38 above, paragraph 225).

44 Next, it should be recalled that the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy. On the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy (see, to that effect, Dansk Rørindustri and Others v Commission, paragraph 38 above, paragraph 227; Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 109; Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, paragraph 81; Case T‑12/89 Solvay v Commission [1992] ECR II‑907, paragraph 309; Case T‑304/94 Europa Carton v Commission [1998] ECR II‑869, paragraph 89; and Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 38 above, paragraph 56).

45 It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines (Dansk Rørindustri and Others v Commission, paragraph 38 above, paragraph 228).

46 Consequently, the undertakings in question must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. That is true not only where the Commission raises the level of the amount of fines in imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the Guidelines (Dansk Rørindustri and Others v Commission, paragraph 38 above, paragraphs 229 and 230).

47 Thus, without prejudice to the arguments set out in paragraph 99 et seq. below, ADM is wrong to contend in essence that, in the context of the cartel, the increase in the level of the fines by the Commission is manifestly disproportionate to the objective of ensuring the implementation of competition policy.

48 Similarly, the fact alleged by ADM – even if it were established – that the application of the new policy results in fines of 43 to 153 times higher than those imposed on the basis of the former practice is not capable of leading to a breach of the principle of non‑retroactivity. Having regard in particular to the case‑law cited in paragraph 41 of this judgment, it must have been reasonably foreseeable for ADM that the Commission could at any time review the general level of fines when implementing another competition policy. Thus, ADM should reasonably have been able to foresee such an increase – even if it were established – at the time when the infringements at issue were committed.

49 Finally, in so far as ADM claims that, to ensure that fines have a deterrent effect, it is essential that undertakings have prior knowledge of the level of fines which they must expect if they commit an infringement of the Community competition rules, it is sufficient to note that the deterrent effect of fines in no way presupposes that undertakings have prior knowledge of the exact level of the fine which they must expect for a particular type of anti‑competitive conduct.

50 Consequently, the plea alleging infringement of the principles of legal certainty and non-retroactivity of penalties must be rejected.

2. Breach of the principle of equal treatment

a) Arguments of the parties

51 ADM submits that the application of the Guidelines violates the principle of equal treatment since it differentiates between undertakings which have infringed competition law by reference not to the date of the infringement but to the date on which the Commission’s decision was adopted, which was fixed by the Commission in an arbitrary manner. By way of example, the undertakings referred to in Commission Decision 97/624/EC of 14 May 1997 relating to a proceeding pursuant to Article [82] of the EC Treaty (IV/34.621, 35.059/F-3 – Irish Sugar plc) (OJ 1997 L 258, p. 1) and in Commission Decision 94/210/EC of 29 March 1994 relating to a proceeding pursuant to Articles [81] and [82] of the EC Treaty (IV/33.941 – HOV-SVZ/MCN) (OJ 1994 L 104, p. 34) were fined on the basis of only 6.8% and 5% of their relevant market sales respectively, although the infringements concerned were contemporaneous with the sodium gluconate cartel.

52 The Commission contends that that plea should be rejected.

b) Findings of the Court

53 It is settled case‑law that the application of the method set out in the Guidelines in calculating the fine imposed does not constitute discriminatory treatment by comparison with undertakings which infringed the Community competition rules at the same time but, for reasons pertaining to the time when the infringement was discovered or to the conduct of the administrative procedure initiated against them, were sanctioned before the adoption and publication of the Guidelines (see, to that effect, Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 38 above, paragraphs 69 to 73, and Joined Cases T‑202/98, T‑204/98 and T‑207/98 Tate & Lyle and Others v Commission [2001] ECR II‑2035, paragraphs 118 and 119).

54 Accordingly, for the reasons given in the judgments cited in the previous paragraph, the plea alleging breach of the principle of equal treatment must also be rejected.

B – The gravity of the infringement

1. Introduction

55 ADM submits that the Commission incorrectly assessed the gravity of the infringement when calculating the amount of the fine. The pleas relied on in that respect concern (i) the failure to have regard to, or to have sufficient regard to the relevant product turnover, (ii) the failure to have regard to, or to have sufficient regard to the limited size of the sodium gluconate market, (iii) the fact that the need for deterrence was taken into account twice in relation to the fine, (iv) the application of a multiplier to the starting amount and (v) the actual impact of the cartel on the market.

56 Before ruling on the merits of the various pleas put forward in this connection, it is necessary to summarise the method followed by the Commission in this case in assessing and taking account of the gravity of the infringement, as set out in the recitals of the Decision.

57 It is apparent from the Decision that, in assessing the gravity of the infringement, the Commission found, first, that, having regard to the nature of the infringement, its actual impact on the EEA sodium gluconate market and the scope of the relevant geographic market, the undertakings concerned had committed a very serious infringement which had affected the whole of the EEA (recitals 334 to 371 of the Decision).

58 Next, the Commission considered that it was necessary to apply to the undertakings concerned ‘differential treatment in order to take account of the effective capacity of the offenders to cause significant damage to competition and … set the fine at a level which ensures it has a deterrent effect’. In that context, the Commission stated that it would take account of the specific weight and therefore the real impact of the offending conduct of each undertaking on competition (recitals 378 and 379 of the Decision).

59 For the purposes of assessing those elements, the Commission chose to rely on the worldwide sodium gluconate turnover of the undertakings concerned during the last year of the infringement, namely 1995. In this respect, the Commission found that ‘given [that the sodium gluconate market is] global, these figures g[a]ve the most appropriate picture of the participating undertakings’ capacity to cause significant damage to other operators in the common market and/or the EEA’ (recital 381 of the Decision). The Commission added that, in its view, that approach was supported by the fact that this was a global cartel, the object of which was inter alia to allocate markets on a worldwide level, and thus to withhold competitive reserves from the EEA market. It found, moreover, that the worldwide turnover of any given party to the cartel also gave an indication of its contribution to the effectiveness of the cartel as a whole or, conversely, of the instability which would have affected the cartel had that party not participated (recital 381 of the Decision).

60 On that basis, the Commission chose to establish two categories of undertakings: first, that composed of the ‘three major producers of sodium gluconate with worldwide market shares above 20%’ and, second, that composed of undertakings ‘which had significantly lower market shares in the worldwide sodium gluconate market (below 10%)’ (recital 382 of the Decision). Thus, the Commission set a starting amount of EUR 10 million for undertakings in the first category, which included Fujisawa, Jungbunzlauer and Roquette, which had market shares of approximately 36, 25 and 21% respectively, and a starting amount of EUR 5 million for undertakings in the second category, namely Glucona and ADM, which each had market shares of approximately 9%. Since Glucona was jointly owned by Akzo and Avebe, the Commission set basic amounts of EUR 2.5 million for each of those companies (recital 385 of the Decision).

61 Finally, in order to ensure that the fine had a sufficiently deterrent effect and to take account of the fact that large undertakings have legal and economic knowledge and infrastructures which enable them more easily to recognise that their conduct constitutes an infringement and be aware of the consequences stemming from it under competition law, the Commission adjusted the starting amount. Consequently, taking account of the size and the worldwide resources of the undertakings concerned, the Commission applied a multiplier of 2.5 to the starting amount for ADM and Akzo and thus increased the fine to EUR 12.5 million as regards ADM and to EUR 6.25 million as regards Akzo by reference to the gravity of the infringement (recital 388 of the Decision).

2. The failure to have regard to, or to have sufficient regard to the relevant product turnover

a) Arguments of the parties

62 ADM complains that the Commission failed to have regard to, or had insufficient regard to, relevant product turnover when calculating the basic amount of the fine.

63 First, ADM submits that it is apparent from the case-law of the Court of First Instance that relevant product turnover is an important element in the assessment of fines (Case T-77/92 Parker Pen v Commission [1994] ECR II-549, paragraphs 92 to 95; Joined Cases T-24/93 to T-26/93 and T-28/93 Compagnie maritime belge transports and Others v Commission [1996] ECR II-1201, paragraph 233; Case T-229/94 Deutsche Bahn v Commission [1997] ECR II-1689, paragraph 127; and Case T-327/94 SCA Holding v Commission [1998] ECR II-1373, paragraph 176).

64 ADM submits that consideration of EEA sales in the relevant product is an appropriate starting point for assessing both the damage to competition on the relevant product market within the Community and the relative importance of the participants in the cartel in relation to the products concerned. That conclusion is borne out by the case-law of the Court of First Instance (Europa Carton v Commission, paragraph 44 above, paragraph 126; Case T-309/94 KNPBT v Commission [1998] ECR II-1007, paragraph 108, upheld on appeal by the Court of Justice in Case C-248/98 P KNP BT v Commission [2000] ECR I-9641).

65 Furthermore, the judgment of the Court of First Instance in Case T-9/99 HFB and Others v Commission [2002] ECR II-1487, paragraph 442, confirms that attributing disproportionate importance to an undertaking’s total size in assessing the fine is unlawful.

66 Similarly, ADM submits that, in comparable cases in recent years (Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 – Cartonboard) (OJ 1994 L 243, p. 1); Commission Decision 94/815/EC of 30 November 1994 relating to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126 and 33.322 – Cement) (OJ 1994 L 343, p. 1); Commission Decision 86/398/EEC of 23 April 1986 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.149 – Polypropylene) (OJ 1986 L 230, p. 1); Commission Decision 89/515/EEC of 2 August 1989 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.553 – Welded steel mesh) (OJ 1989 L 260, p. 1); Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 116, p. 1)) the Commission took as its basis sales of the relevant product in the Community market, as it indeed acknowledged in the Decision (recital 395). In relying in those decisions on that basis of calculation, the Commission set fines of between 2% and 9% of the undertakings’ relevant product turnover. If the Commission had also applied that basis of calculation in this instance, it would have imposed a fine on ADM of between EUR 66 000 and EUR 236 000. However, in failing to adhere to that basis of calculation, the Commission imposed on ADM fines which were 43 to 153 times higher than those which would have been imposed on that basis.

67 ADM submits that the Commission’s approach tends to penalise a low value niche product in the same way as a cartel in a high value, economically significant commodity. At no stage in the calculation of the fines did the Commission take sufficient account of ADM’s limited sales of sodium gluconate.

68 ADM adds that, even looking at its sodium gluconate sales in the EEA throughout the entire period of the cartel and not simply throughout one year, the Commission’s fine is still manifestly disproportionate. ADM’s total EEA sodium gluconate turnover for the period from June 1991 to June 1995 (the time during which the Commission alleges ADM participated in the cartel) amounted to only approximately EUR 7.83 million and so the fine represents 216% of that amount. ADM’s total EEA sodium gluconate turnover for the period from June 1991 to October 1994 (which ADM claims is the full period of its participation in the cartel) was approximately EUR 5.96 million and the fine imposed was equivalent to 283% of that amount. Whichever precise period of participation in the cartel is taken, the fine exceeds by more than 200% the total sales throughout the entire period of ADM’s participation in the cartel. Indeed, a fine representing 644% of annual sales would be the result of the method followed by the United States authorities to which the Commission refers had the cartel lasted 32 years (instead of less than four).

69 Consequently, ADM submits that the Commission not only disregarded the principles deriving from case-law but also violated the principle of proportionality.

70 Second, ADM submits that the Guidelines suggest that it is ‘necessary to take account of the effective economic capacity of the offenders to cause significant damage to other operators, in particular consumers’ and that they also provide, in the case of cartels, for weighting designed to reflect ‘the real impact of the offending conduct of each undertaking on competition’.

71 In ADM’s submission, the economic impact, whether on competition or on other operators, may be assessed only by reference to the amount of affected product sales. Only by taking these sales into account is it possible to assess the scope of the potential harm to consumers or competition in terms of an anti-competitive surcharge or other illegal benefit.

72 Consequently, in failing to take account of relevant product sales, the Commission applied its own guidelines incorrectly.

73 Finally, ADM submits that, in failing to give proper reasons for its decision not to take into account ADM’s EEA sales in the relevant product market, the Commission infringed its obligation to state reasons.

74 The Commission contends that the pleas put forward should be rejected.

b) Findings of the Court

75 ADM alleges infringement, first, of the principle of proportionality, second, of the Guidelines and, third, of the obligation to state reasons.

Infringement of the principle of proportionality

76 As acknowledged by settled case‑law, the gravity of infringements has to be determined by reference to numerous factors, such as the particular circumstances of the case and its context; moreover, there is no binding or exhaustive list of the criteria which must be applied (order in Case C‑137/95 P SPO and Others v Commission [1996] ECR I‑1611, paragraph 54; Case C-219/95 P Ferriere Nord v Commission [1997] ECR I‑4411, paragraph 33; and HFB and Others v Commission, paragraph 65 above, paragraph 443).

77 Furthermore, according to settled case-law, the criteria for assessing the gravity of an infringement may include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the relevant market. It follows that, on the one hand, it is permissible, for the purpose of fixing a fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the market share of the undertakings concerned on the relevant market, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors and the fixing of an appropriate fine cannot therefore be the result of a simple calculation based on total turnover (see, to that effect, Musique diffusion française and Others v Commission, paragraph 44 above, paragraphs 120 and 121; Parker Pen v Commission, paragraph 63 above, paragraph 94; SCA Holding v Commission, paragraph 63 above, paragraph 176; Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 38 above, paragraph 188; and HFB and Others v Commission, paragraph 65 above, paragraph 444).

78 It follows that, although it cannot be denied, as ADM states, that turnover in the relevant product is an appropriate starting point for assessing both the damage to competition on the relevant product market within the Community and the relative importance of the participants in the cartel in relation to the products concerned, the fact remains that that is by no means the only criterion according to which the Commission should assess the gravity of the infringement.

79 Consequently, contrary to what ADM submits, if an assessment of the proportionality of the fine were confined, as it seems to propose, merely to the correlation between the fine imposed and the relevant product turnover, that would confer disproportionate importance on that criterion.

80 In any event, the mere fact, relied on by ADM, that the fine imposed exceeds turnover through sales of that product in the EEA during the period of the cartel, or even exceeds it significantly, is not sufficient to show that the fine is disproportionate. It is necessary to assess the proportionality of that fine by reference to all the factors which the Commission must take into account when determining the gravity of the infringement, namely, the actual nature of the infringement, its actual impact on the relevant market and the scope of the geographic market. The merits of the Decision in relation to some of those criteria will be considered below, as they arise in ADM’s arguments.

81 The plea alleging infringement of the principle of proportionality inasmuch as the fine imposed exceeds ADM’s turnover in sales of that product in the EEA during the period of the cartel must therefore be rejected.

Infringement of the Guidelines

82 As the Court of First Instance has already had occasion to note, the Guidelines do not provide that fines are to be calculated according to the overall turnover of undertakings or their turnover in the relevant market. However, nor do they preclude the Commission from taking such turnover figures into account in determining the amount of the fine in order to ensure compliance with the general principles of Community law and where circumstances demand it (see, to that effect, LR AF 1998 v Commission, paragraph 38 above, paragraph 283, upheld on appeal in Dansk Rørindustri and Others v Commission, paragraph 38 above, paragraph 258, and Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 38 above, paragraph 187).

83 Consequently, the Guidelines do not provide that the turnover figures of the undertakings concerned – whether the overall turnover or the relevant product turnover – constitute the starting point for calculating the fines and, still less, that they constitute the only relevant criteria for assessing the gravity of the infringement.

84 On the other hand, the Commission may take account of turnover as one among a number of relevant factors. This is particularly so where, in accordance with the third to sixth paragraphs of Section 1A of the Guidelines, the Commission adjusts the amount in order to ensure that the fines have a sufficiently deterrent effect. In that respect, the Commission takes account of the effective economic capacity of the offenders to cause significant damage to other operators and of the need to ensure that the fine has a sufficiently deterrent effect (Section 1A, fourth paragraph) and applies weightings to the amounts determined on the basis of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type (Section 1A, sixth paragraph).

85 In particular, the Commission submitted in its pleadings that, when assessing, for the purpose of differentiating between the undertakings concerned, the actual impact of the offending conduct of each undertaking on competition, it must take account of the relevant product turnover.

86 As is clear from recitals 378 to 382 of the Decision, contrary to what ADM submits, the Commission did indeed take account of the relevant product turnover of the parties concerned in that context. As already noted at paragraphs 58 and 60 above, in order to apply that differential treatment to the undertakings concerned, the Commission relied on their worldwide sodium gluconate turnover during the last year of the infringement, namely 1995.

87 In the present case, the cartel is made up of undertakings which hold virtually the entire relevant product market at worldwide level. Moreover, the cartel concerns price-fixing and market‑sharing by means of allocating sales quotas. In such a case, the Commission may legitimately rely on the worldwide sodium gluconate turnover of the members of that cartel for the purpose of differentiating between the undertakings concerned. Since the objective of that differential treatment is to assess the effective economic capacity of offenders to cause damage to competition by their offending conduct and, therefore, to take account of their specific weight within the cartel, the Commission did not exceed its wide margin of assessment in finding that the worldwide market share of the respective members of the cartel was an appropriate indication.

88 Consequently, the plea alleging infringement of the Guidelines must be rejected.

Infringement of the obligation to state reasons

89 It is settled case-law that the statement of reasons required by Article 253 EC must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure, so as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review. The requirement to state reasons must be assessed in the light of the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. In that regard, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63, and Case C‑301/96 Germany v Commission [2003] ECR I‑9919, paragraph 87).

90 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 and its context; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up (order in SPO and Others v Commission, paragraph 76 above, paragraph 54).

91 In the present case, the Commission did not calculate the fine on the basis of the turnover for the relevant product in the EEA. Contrary to what ADM asserts, the Commission was not required to calculate the amount of the fine to be imposed on an undertaking on the basis of its turnover for the relevant product in the EEA (see paragraphs 86 and 87 above). Consequently, it cannot be criticised for failing to state why it did not use that factor in calculating the fine imposed.

92 Accordingly, the plea alleging infringement of the obligation to state reasons must also be rejected.

3. The failure to have regard to, or to have sufficient regard to the limited size of the relevant product market

a) Arguments of the parties

93 ADM submits that the Commission, when calculating the fine, and contrary to its assertion at recital 377 of the Decision, has not, or at the least, has not correctly taken into account the limited size of the relevant product market.

94 First, the Commission set the starting amount for all the undertakings concerned at EUR 40 million and for ADM alone at EUR 5 million (recital 385 of the Decision). The amount of EUR 40 million represents more than 200% of 1995 EEA sodium gluconate sales for all the undertakings concerned. In addition, the final fine settled on by the Commission represented 438% (prior to reduction for cooperation), and 294% (after reduction), of 1995 EEA sodium gluconate sales (recitals 396 and 440 of the Decision).

95 Second, comparing the fine which the Commission imposed on it in this instance with the fines imposed in the Zinc phosphate case, Commission Decision 2003/437/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case No COMP/E-l/37.027 – Zinc Phosphate) (OJ 2003 L 153, p. 1), ADM submits that the Commission infringed the principle of equal treatment. Although the two cases are partly contemporaneous and are comparable not only as regards the size of the relevant markets but also as regards the gravity and duration of the infringement, the Commission took into account the limited size of the zinc phosphate market in Europe and in that case set the aggregate fine at EUR 11.95 million (75% of overall relevant product sales) as opposed to the aggregate fine of EUR 40 million in the sodium gluconate case (over 200% of relevant EEA product sales). Furthermore, in the Zinc phosphate case, the basic amount was set at EUR 3 million for undertakings with over 20% market share and at EUR 0.75 million for the undertaking which had a significantly smaller market share. However, in the sodium gluconate case, the Commission set the starting amount for calculating the fine at EUR 10 million for undertakings with over 20% market share and at EUR 5 million for undertakings with a significantly smaller market share.

96 Third, ADM submits that the Decision is also inadequately reasoned on that point, since there is a contradiction between recital 377, on the one hand, and recitals 394 and 395 on the other. At recital 377, the Commission stated that it had taken into account relevant product turnover, while, at recitals 394 and 395, it rejects ADM’s submissions that relevant product turnover be taken into account.

97 The Commission contends that the pleas put forward should be rejected. As regards the comparison of this case with the Zinc phosphate case, the Commission maintains that in that instance, first, the fines originally calculated had been halved by virtue of the maximum limit of 10% of overall turnover laid down in Article 15 of Regulation No 17 and, second, the Commission found there to be no aggravating circumstances. Furthermore, any remaining differences in the treatment of the two cases are justified by the Commission’s discretion in this domain.

b) Findings of the Court

98 ADM alleges infringement, first, of the principle of proportionality, second, of the principle of equal treatment and, third, of the obligation to state reasons.

Infringement of the principle of proportionality

99 It should be borne in mind that, in accordance with Article 15(2) of Regulation No 17, the fine is set on the basis of the gravity and duration of the infringement. Furthermore, in accordance with the Guidelines, the Commission sets the starting amount on the basis of the gravity of the infringement, taking into account the actual nature of the infringement, its actual impact on the market and the scope of the geographic market.

100 That legal framework does not therefore in itself require the Commission to take account of the small size of the product market.

101 However, according to case‑law, when assessing the gravity of an infringement, the Commission must take account of a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case (Musique diffusion française and Others v Commission, paragraph 44 above, paragraph 120). Those factors attesting to the gravity of the infringement may, depending on the circumstances, include the size of the relevant product market.

102 Consequently, although the size of the market may constitute a factor to take into consideration when determining the gravity of the infringement, its significance varies according to the particular circumstances of the case.

103 In the present case, the infringement concerns in particular a price cartel which, by its very nature, is intrinsically very serious. Furthermore, the undertakings party to the cartel supplied over 90% of the world market and 95% of the European market (recital 9 of the Decision). Finally, it is apparent that sodium gluconate is a raw material used in a number of very different finished products, therefore affecting several markets (recitals 6 and 8 of the Decision). In that context, the small size of the relevant market, assuming it is proven, is of only secondary importance in relation to all the other factors attesting to the gravity of the infringement.

104 In any event, account must be taken of the fact that the Commission found that the infringement had to be regarded as very serious for the purpose of the Guidelines which, for such cases, provide that the Commission may ‘envisage’ a starting amount in excess of EUR 20 million. However, in this case, according to recital 385 of the Decision, the Commission set a starting amount of only EUR 10 million for undertakings in the first category and of EUR 5 million for undertakings in the second category, which corresponds to half, or even a quarter of the amount which it could have ‘envisaged’ for very serious infringements under the Guidelines.

105 That determination of the starting amount of the fine confirms that, as it stated at recital 377 of the Decision, the Commission had regard, inter alia, to the limited size of the relevant product market.

106 Consequently, the plea alleging infringement of the principle of proportionality must be rejected.

Infringement of the principle of equal treatment

107 It should be pointed out that, in accordance with settled law, the principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified (Case 106/83 Sermide [1984] ECR 4209, paragraph 28, and Case T‑311/94 BPB de Eendracht v Commission [1998] ECR II‑1129, paragraph 309).

108 It should also be pointed out that the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters, as that framework is established by Article 15(2) of Regulation No 17, as supplemented by the Guidelines (see, to that effect, Dansk Rørindustri and Others v Commission, paragraph 38 above, paragraphs 209 to 213, and the case‑law cited therein).

109 Furthermore, the determination of the amount of fines falls within the Commission’s wide discretion, so that traders cannot have a legitimate expectation in the Commission’s determination of such amounts (see, to that effect, Dansk Rørindustri and Others v Commission, paragraph 38 above, paragraphs 171 and 172, and the case‑law cited therein).

110 Finally, it should be borne in mind that the mere fact that the Commission has found in its previous decisions that a type of conduct justified a fine of a certain amount in no way means that it is obliged to do so also in a subsequent decision (see, inter alia, by analogy, Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 357; Case T‑347/94 Mayr-Melnhof v Commission [1998] ECR II‑1751, paragraph 368; and LR AF 1998 v Commission, paragraph 38 above, paragraphs 234 and 337).

111 Thus, in the present case, it must be held that the simple reference by ADM to the Zinc phosphate decision is in itself ineffective, since the Commission was not required to assess this case in the same manner.

112 As regards the application of the principle of equal treatment in the present case, it should be noted that the Commission’s other fining decisions are in principle only of an indicative nature, a fortiori where the facts of those other decisions, such as markets, products, the undertakings and periods concerned, are not the same as those in the contested decision (see, to that effect, Case T‑67/01 JCB Service v Commission [2004] ECR II‑49, paragraph 187).

113 In the present case, it must be held that, prima facie, the circumstances of the cartel to which the Decision relates differ from those in the Zinc phosphate decision. The zinc phosphate market cartel was limited to the territory of the EEA, whilst the sodium gluconate cartel was worldwide. Moreover, contrary to the circumstances of this case, only relatively small undertakings were involved in the zinc phosphate market cartel. Thus, the worldwide turnover of the undertakings involved in the Zinc phosphate decision ranged between EUR 7.09 million and EUR 278.80 million in 2000, whilst in this case the worldwide turnover of the undertakings involved ranged between EUR 314 million and EUR 14.003 billion in 2000, with ADM having worldwide turnover of EUR 13.936 billion.

114 In any event, even if all the circumstances relevant for the purposes of determining the appropriate amount in the Zinc phosphate decision could be regarded as comparable to those of this case, the Court considers, under its unlimited jurisdiction, that the basic amount set by the Commission for the infringement committed by ADM in this instance is appropriate in the light of all the factors referred to by the Commission in the Decision and in the light of the assessment of some of those factors in this judgment.

115 Consequently, ADM may not rely on the Commission’s decision in the Zinc phosphate case in order to show that there has been an infringement of the principle of equal treatment in this case.

Infringement of the obligation to state reasons

116 Concerning the contradiction alleged by ADM between recital 377, on the one hand, and recitals 394 and 395 of the Decision on the other, it should be noted that at recital 377 of the Decision the Commission stated that it had had regard to the limited size of the sodium gluconate market when determining the starting amounts. Contrary to what ADM submits, the Commission did not contradict that statement when, at recital 395 of the Decision, it rejected the arguments put forward in particular by ADM which allege, in essence, that the Commission should have set the fines by reference to the turnover of the undertakings concerned on the relevant market. First, the fact that certain parties, including ADM, achieve only a small turnover on the relevant market does not necessarily indicate that that market is of limited size. Second, as was already stated at paragraph 104 above, in setting a starting amount of only EUR 10 million in this instance notwithstanding that it was an infringement which, by its very nature, was very serious, the Commission took account of the limited size of the market. Accordingly, the Decision is not contradictory on those points.

117 Consequently, the plea alleging infringement of the obligation to state reasons must also be rejected.

4. Deterrence taken into account twice in relation to the fine

a) Arguments of the parties

118 ADM claims that the Commission took deterrence into account twice when calculating the fine: first, when classifying the role of the cartel participants for the purpose of setting the starting amount (recitals 378, 382 and 385 of the Decision) and, second, when applying an uplift of 250% to take account of ADM’s size and overall resources (recitals 386 to 388 of the Decision). In any event, if the arguments which the Commission has advanced before the Court are correct, the Decision is vitiated on this point by inadequate reasoning.

119 The Commission denies that it took deterrence into account twice in relation to the fine. On the contrary, it took two distinct consecutive steps, based on different criteria, in order to set the fine at a level ensuring that it had a sufficiently deterrent effect (recitals 378 and 380 of the Decision). Moreover, the Commission maintains that the Decision is adequately reasoned on this point.

b) Findings of the Court

120 ADM thus pleads infringement, first, of the Guidelines and, second, of the obligation to state reasons.

Infringement of the Guidelines

121 As ADM correctly submits, the Commission stated that it was necessary to set the fines at a deterrent level when applying to the cartel members differential treatment on the basis of their market share, thus placing ADM in the category of undertakings with market share of less than 10% (recitals 378, 382 and 385 of the Decision). Similarly, the Commission relied on that argument when applying to certain members of the cartel, including ADM, the multiplier of 2.5 to take account of their size and overall resources (recitals 386 to 388 of the Decision).

122 However, in order to set the starting amount of the fine on the basis of the gravity of the infringement, the Commission first categorised the infringement as such, taking into account objective factors, namely the actual nature of the infringement, its impact on the market and the geographic scope of that market. Second, the Commission took account of factors relating to the individual undertakings, namely the circumstances linked specifically to each member of the cartel, such as the size of the undertaking and its overall resources. It was in this second part of its analysis that it pursued, inter alia, the objective of ensuring that the fine was sufficiently deterrent.

123 As the Commission correctly submits, even if it referred to that objective twice in that second part of its analysis, in reality it carried out only one calculation, which it divided into two steps, and which was intended to set the fine for each individual member of the cartel at a level such that, taking account of their specific circumstances, the aim of deterrence could be attained in the light of all the objective and individual factors relating to the gravity of the infringement.

124 Contrary to what ADM submits, the Commission did not therefore ‘count twice’ the deterrent element of the fine.

125 Consequently, the plea alleging infringement of the Guidelines must be rejected.

Infringement of the obligation to state reasons

126 It should be noted that ADM has not put forward any specific argument in support of its assertion and has merely complained that the Commission did not provide a statement of reasons for counting the deterrent element of the fine twice.

127 In any event, it has already been found, at paragraphs 121 to 125 above, that the Commission did not take the deterrent element of the fine into account twice. It did not therefore need to give a specific statement of reasons in that regard.

128 Consequently, the plea alleging infringement of the obligation to state reasons must also be rejected.

5. Application of a multiplier to the starting amount

a) Arguments of the parties

129 ADM submits that increasing the starting amount by a multiplier of 2.5 is a manifestly disproportionate measure, which is also inadequately reasoned and in breach of the principle of equal treatment.

130 First, given that undertakings are rational economic entities, if a fine is to act as a deterrent, it is necessary only that it be set at a level at which the expected amount exceeds the profit from the infringement. If undertakings appreciate that the loss associated with the punishment eliminates the cartel profit, the fine will already act as a deterrent. That approach was endorsed by the Court of Justice in Musique diffusion française and Others v Commission, paragraph 44 above, paragraph 108. It is also reflected in the Guidelines, which provide (at Section 1A, fourth paragraph) that the deterrent effect is to be assessed by reference to the capacity of the cartel participants to cause damage to consumers and consequently require that any illegal cartel surcharge be taken into account when consideration is given to appropriate deterrence. That approach is also commonly found in other Community rules.

131 Even if it were accepted that a fine which is capped at the level of potential profits was insufficient, a rational basis for a deterrent fine would be to estimate the cartel’s expected profits as a percentage of sales of the affected product with some uplift to take account of error rates. That is precisely the rationale for the approach adopted in the United States. The Court of Justice (Musique diffusion française v Commission, paragraph 44 above, paragraph 108) and the Court of First Instance (HFB and Others v Commission, paragraph 65 above, in particular paragraph 456) have recognised in their case-law that there is a link between deterrence and the profits which may result from the cartel.

132 ADM does not dispute that total turnover may be taken into account for the purposes of calculating the fine. However, attributing disproportionate importance to total turnover results in a disproportionate fine. The Commission confines itself in this regard to defending the uplift applied by comparing it with ADM’s total turnover. There is no rational explanation capable of justifying the fact that calculation of the deterrent uplift concentrated on ADM’s total turnover. The Commission’s approach fails to explain why it was necessary to cancel out ADM’s profits from sales of products which were not related to the infringement at issue in order to discourage the undertakings concerned from pursuing their activities in a sodium gluconate cartel.

133 Second, in its reply, ADM puts forward an alternative plea. If the Court of First Instance were to accept, contrary to the foregoing submissions, that the deterrent uplift were justified by ADM’s size and overall resources, it would none the less remain the case that the Commission could not properly add to the EUR 7.5 million deterrent uplift a further 35% increase in the fine on account of duration. There is some logical justification for such an increase only where the deterrent uplift is based on expected cartel profits. The longer the duration of the cartel, the greater the potential profits and therefore an increase aimed at taking account of the duration of the cartel is appropriate. The correct method of calculating the fine would have been to apply the uplift only to the basic amount of EUR 5 million. The Commission itself appears to have intended that result, since at recital 392 of the Decision, it stated that ‘the starting amount of the fine determined for gravity (recital 385) [was] therefore increased by 35%’. Recital 385 of the Decision, however, refers only to the initial starting point of EUR 5 million.

134 Third, ADM submits that the Commission infringed the principle of equal treatment in taking into account for the purpose of the uplift in the starting amount of the fine the fact that large undertakings have legal and economic knowledge and infrastructures which enable them more easily to recognise that their conduct constitutes an infringement and be aware of the consequences stemming from it under competition law (recital 386 of the Decision).

135 The undertakings involved in the infringement are all multinational groups with worldwide turnover in excess of EUR 300 million, which consequently all have access to in-house and external legal advice enabling them to determine whether they run the risk of entering into an illegal cartel and to assess the consequences of infringement.

136 In addition, the Decision is inadequately reasoned on this point.

137 The Commission submits that the argument concerning the further increase of 35% to take account of duration is a new plea, which must be rejected as inadmissible by virtue of Article 48(2) of the Rules of Procedure of the Court of First Instance. The Commission also contends that all the other pleas put forward should be rejected.

b) Findings of the Court

138 ADM thus pleads infringement, first, of the principle of proportionality, second, of the principle of equal treatment and, third, of the obligation to state reasons.

Infringement of the principle of proportionality

139 ADM raises two separate complaints in connection with this plea.

140 First, ADM claims in essence that, given that undertakings are rational economic entities, if a fine is to act as a deterrent, it is necessary only that it be set at a level at which the expected amount exceeds the profit from the infringement. In this respect, it should be recalled that deterrence is one of the main considerations which must guide the setting of fines (Case 41/69 Chemiefarma v Commission [1970] ECR 661, paragraph 173, and Case 49/69 BASF v Commission [1972] ECR 713, paragraph 38, and the case‑law cited in paragraph 90 above).

141 However, if the fine were set at a level which merely negated the profits of the cartel, it would not be a deterrent. It is reasonable to assume that when making financial calculations and management decisions, undertakings take account rationally not only of the level of fines that they risk incurring in the event of an infringement but also the likelihood of the cartel being detected. In addition, if the purpose of the fine were to be confined merely to negating the expected profit or advantage, insufficient account would be taken of the fact that the conduct in question constitutes an infringement of Article 81(1) EC. To regard the fine merely as compensating for the damage incurred would be to overlook not only the deterrent effect, which can relate only to future conduct, but also the punitive nature of such a measure in relation to the actual infringement committed. Thus, both the deterrent effect and the punitive effect of the fine are reasons why the Commission should be able to impose a fine which, depending on the circumstances of the case, may even substantially exceed the profit expected by the undertaking in question.

142 Similarly, in the case of an undertaking which, like ADM, is active on a large number of markets and has a particularly large financial capacity, to take into account turnover on the relevant market cannot suffice to ensure that the fine has deterrent effect. The larger an undertaking is and the more overall resources it has at its disposal which enable it to act independently on the market, the more it must be aware of the importance of its role as regards the smooth functioning of competition on the market. Consequently, the factual circumstances of the economic power of an undertaking which has been found guilty of an infringement must be taken into account when setting the amount of the fine in order to ensure that it has deterrent effect.

143 Furthermore, as the Commission stated without being contradicted by ADM, the fine set for ADM after the multiplier of 2.5 had been applied represents only a tiny proportion, i.e. 0.0538% of its total annual turnover and cannot be regarded as disproportionate from that point of view either.

144 Second, in its reply, ADM claims that the Commission could not under any circumstances add to the amount of EUR 7.5 million, which already included an uplift for deterrence, a further 35% increase in the fine on account of duration. In this respect, it should be borne in mind that, under Article 48(2) of the Rules of Procedure, the introduction of a new plea in law in the course of proceedings is not allowed unless it