Case T‑43/02

Jungbunzlauer AG

v

Commission of the European Communities

(Competition – Agreements, decisions and concerted practices – Citric acid – Article 81 EC – Fine – Article 15(2) of Regulation No 17 – Attributability of conduct to a subsidiary – Principle of legality of penalties – Guidelines on the method of setting fines – Principle of proportionality – Ne bis in idem principle – Right of access to the file)

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

Summary of the Judgment

1. Community law – General principles of law – Legal certainty

2. Competition – Fines – Amount – Determination

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

3. Competition – Community rules – Infringements – Attribution

(Art. 81(1) EC)

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

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

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

(Council Regulation No 17, Art. 15)

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

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

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

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

8. Competition – Fines – Amount – Determination

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

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

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

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

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

11. Competition – Fines – Community penalties and penalties imposed in a Member State or a non-member State for infringement of national competition law

(Council Regulation No 17, Art. 15)

12. Competition – Fines – Amount – Community penalties and penalties imposed in a Member State or non-member country for breach of national competition law

(Council Regulation No 17, Art. 15)

13. Competition – Fines – Amount – Determination

(Art. 81(1) EC and 82 EC; EEA Agreement, Art. 53(1); Council Regulation No 17, Art. 15(2))

14. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file

(Art. 81(1) EC; Council Regulation No 17, Art. 19(1))

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

(Art. 229 EC)

1. The principle of legality is a corollary to the principle of legal certainty, which is a general principle of Community law which requires, in particular, that where a Community rule imposes or permits the imposition of penalties, that rule must be clear and precise, so that the persons concerned may be able to ascertain unequivocally what their rights and obligations are and take steps accordingly.

That principle, which forms part of the general principles of Community law underlying the constitutional traditions common to the member States and which has been enshrined in various international treaties, in particular Article 7 of the European Convention on Human Rights in relation to criminal offences and penalties, must be observed in relation to provisions of a criminal nature as well as specific administrative instruments imposing or permitting the imposition of administrative penalties. It applies not only to provisions establishing the elements which constitute an offence, but also to those specifying the consequences arising from an offence.

In that regard, it follows from Article 7(1) of that convention that the law must clearly define crimes and the relevant penalties. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation, what acts and omissions will make him criminally liable.

It is clear from the case-law of the European Court of Human Rights that Article 7(1) of the convention does not require the terms of the provisions by virtue of which those fines are imposed to be so precise that the potential consequences of an infringement of those provisions should be foreseeable with absolute certainty. According to that case-law, the existence of vague terms in a provision does not necessarily entail a violation of Article 7. Accordingly, the concept of law used in Article 7 is the same as that found in other articles of the convention. In addition, the wording of many statutes is not absolutely precise and, because of the need to avoid excessive rigidity and to keep pace with changing circumstances, many laws are inevitably couched in terms which, to a greater or lesser degree are vague and their interpretation and application depend on practice. However, every law presupposes qualitative conditions, including, inter alia, those of accessibility and foreseeability. The fact that a law confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference. Finally, in addition to the actual wording of the law, the European Court of Human Rights takes account of the settled and published case-law when deciding whether the concepts used are definite or not. Furthermore, taking account of the constitutional traditions common to the Member States does not justify the Court of First Instance giving a different interpretation of the principle of legality, which is a general principle of Community law.

(see paras 71-73, 75-81)

2. In competition matters, the fact that undertakings are not in a position to know in advance the exact level of the fines that the Commission will choose in each individual case is not such as to establish that Article 15(2) of Regulation No 17 is contrary to the principle of legality.

In order to avoid excessive prescriptive rigidity and to enable a rule of law to be adapted to the circumstances, a certain degree of unforeseeability as to the penalty which may be imposed for a given offence must be permitted. A fine subject to sufficiently circumscribed variation between the minimum and the maximum amounts which may be imposed for a given offence may therefore render the penalty more effective both from the viewpoint of its application and its deterrent effect.

In that regard, the Commission does not have an unlimited and excessive power of assessment with regard to setting fines for infringement of the competition rules, since it must adhere to the ceiling fixed by reference to the turnover of the undertaking concerned. In particular, the ceiling of 10% of the turnover of the undertaking concerned is reasonable, having regard to the interests defended by the Commission where infringements such as cartels occur. Furthermore, the question whether fines on the basis of Article 15(2) of Regulation No 17 are reasonable should not be considered in absolute terms, but in relative terms, that is to say, by reference to the offender’s turnover.

Similarly, the Commission must observe the general principles of law, particularly the principles of equal treatment and proportionality, as well as the criteria and the method of calculation to be used by it when setting fines.

In addition, on the basis of the criteria specified in Article 15(2) of Regulation No 17, the Commission has itself developed a decision-making practice which is public knowledge and is accessible. While it is true that the Commission’s previous decision-making practice is not binding as such on the Commission when determining the amount of a fine, nevertheless, by virtue of the principle of equal treatment, which is a general principle of law which must be observed by the Commission, the Commission cannot treat comparable situations differently or different situations in the same way, unless such treatment is objectively justified.

In addition, with a view to transparency and to increase legal certainty for the undertakings concerned, the Commission has published guidelines setting out the calculation method which it imposes on itself in each particular case.

In accordance with Article 253 EC, the Commission must state the reasons, particularly with regard to the amount of the fine and the method of calculation. The statement of reasons must show the Commission’s reasoning clearly and unequivocally so that those concerned can know the justification for the measure taken in order to decide whether it would be expedient to refer the matter to a Community court and, as the case may be, so that the Court can exercise its power of review.

(see paras 82-91)

3. In prohibiting undertakings, inter alia, from entering into agreements or participating in concerted practices which may affect trade between member States and have as their object or effect the prevention, restriction or distortion of competition within the common market, Article 81(1) EC is aimed at economic units made up of a combination of personal and physical elements which can contribute to the commission of an infringement of the kind referred to in that provision.

Where, between the time of the infringement and the time the undertaking in question must answer for it, the company responsible for the group’s activities transfers its activities to another member of the group, the fact that the former company continues to exist as a legal entity does not exclude the possibility that, with reference to Community competition law, the latter becomes responsible for the acts of the former.

(see paras 122, 132)

4. Pursuant to the first paragraph of Section 1A 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, when calculating a fine according to the gravity of the infringement, the Commission is to take account of its actual impact on the market, where this can be measured. The measurable impact of the cartel on the market must be regarded as sufficiently demonstrated if the Commission is able to provide specific and credible indicia showing, with reasonable probability, that the cartel had an impact on the market.

The examination of the impact of a cartel on the market necessarily entails making assumptions. In that context, the Commission must, in particular, consider what the price of the product would have been without the cartel. When examining the causes of actual price movements, it is hazardous to speculate as to the respective contribution of each cause. Account must be taken of the objective fact that, because of the price cartel, the parties have precisely surrendered their freedom to compete by means of prices. Therefore an assessment of the influence of factors other than the voluntary surrender of that freedom by the parties to the cartel is necessarily based on reasonable probabilities which cannot be quantified exactly.

Consequently, if the criterion in the first paragraph of Section 1A of the Guidelines is not be rendered practically ineffective, the Commission cannot be criticised for relying on the actual impact on the market of a cartel with an anti-competitive object, such as a cartel fixing prices or quotas, without quantifying that impact or without providing an assessment with supporting figures.

(see paras 151-155)

5. In competition matters, the burden of proving the existence of effects of the infringement on the market in question, which is borne by the Commission when it takes them into account for calculating the fine by reference to the gravity of the offence, is lighter than the burden of proof that it has when it must show the existence as such of an infringement in the case of a cartel. For the purpose of taking account of the actual effects of the cartel on the market, it is sufficient, according to that judgment, if the Commission ‘provides good reasons for taking them into account’.

(see para. 161)

6. In determining the gravity of the infringement, regard must be had to the legislative background and economic context of the conduct to which exception is taken. In that respect, in order to assess the actual impact of an infringement on the market, the Commission must refer to the competition which would normally have existed without the infringement.

On the one hand, it follows that, in the case of price cartels, it must be found – with a reasonable degree of probability – that the agreements actually enabled the parties concerned to reach a price level higher than that which would have prevailed without the cartel. On the other hand, it follows that, in making its assessment, the Commission must take into account all the objective conditions of the market concerned, having regard to the economic context and, if necessary, the legislative background. Where appropriate, account must be taken, where appropriate, of ‘objective economic factors’ showing that, given the ‘free play of competition’, the level of prices would not have moved in the same way as that of the prices applied.

(see paras 177-179)

7. 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, without there being a binding or exhaustive list of the criteria which must be applied.

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

(see paras 213-214, 227)

8. As regards setting the amount of the fines to be imposed on the various undertakings which participated in the same infringement of the competition rules, it is open to the Commission, 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, not to set fines by reference to the turnover of each of the undertakings concerned in the relevant market, but to apply, as the starting point of its calculation for each undertaking, an absolute figure fixed according to the actual nature of the infringement, that figure then being adjusted for each undertaking on the basis of several factors.

(see para. 223)

9. The principle of proportionality requires that the measures adopted by Community institutions must not exceed what is appropriate and necessary for attaining the objective pursued.

In relation to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors.

The principle of proportionality in this context requires the Commission to set the fine proportionately to the factors taken into account to assess the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified.

(see paras 226-228)

10. At the third indent of Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, it is stated that the basic amount will be reduced where there are extenuating circumstances such as an ‘exclusively passive or “follow-my-leader” role in the infringement’.

The factors likely to reveal the passive role of an undertaking within a cartel include the significantly more sporadic nature of its participation in the meetings by comparison with the other members of the cartel and also its belated entry to the market where the infringement occurred, irrespective of the duration of its participation in the infringement and also the existence of express declarations to that effect made by representatives of other undertakings which participated in the infringement. In addition, ‘an exclusively passive role’ of a member of a cartel implies that it adopts a ‘low profile,’ that is to say, it does not actively participate in the making of the anti-competitive agreement or agreements.

It therefore does not suffice for the undertaking concerned, during certain periods of the cartel or in respect of certain agreements of the cartel, to have adopted a ‘low profile’. In that respect, convening meetings, proposing an agenda and distributing preparatory documents for meetings are incompatible with a passive role of follow-my-leader adopting a low profile. Such initiatives show favourable and active attitude of the undertaking concerned to the constitution, continuation and control of the cartel.

At the second indent of Section 3 of the Guidelines, it is stated that the fine will be reduced where there are extenuating circumstances in the case of non‑implementation in practice of the agreements. For that purpose, it is necessary to check whether the circumstances referred to by the undertaking are to establish that, during the period in which it was a party to the offending agreements, it actually declined to apply them by adopting competitive conduct on the market.

However, when the amount of a fine to be imposed is being determined, the fact that an undertaking proven to have participated in collusion on prices with its competitors did not behave on the market in the manner agreed with those competitors is not necessarily a matter which must be taken into account as an extenuating circumstance. An undertaking which, despite colluding with its competitors, follows a more or less independent policy in the market may simply be trying to exploit the cartel for its own benefit.

(see paras 251-252, 254-255, 257, 267-269)

11. 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.

Therefore, an undertaking may be made the defendant to two parallel sets of proceedings concerning the same infringement and, thus, incur concurrent sanctions, one imposed by the competent authority of the Member State in question, the other a Community sanction, to the extent that the two sets of proceedings pursue different ends and that the legal rules infringed are not the same.

It follows that the principle of ne bis in idem cannot, a fortiori, apply in a case where the procedures conducted and penalties imposed by the Commission on the one hand and by the authorities of a non-member State on the other clearly pursue different ends. The aim of the first is to preserve undistorted competition within the European Union and the European Economic Area, whereas the aim of the second is to protect the market of a non-member State. The condition of the unity of the legal interest protected, which is necessary for the principle of ne bis in idem to apply, is not fulfilled in such a case.

(see paras 285-287)

12. The possibility of concurrent sanctions, one Community, the other national, resulting from two parallel procedures pursuing different ends, the acceptability thereof deriving from the special system of sharing jurisdiction between the Community and the Member States with regard to cartels is subject to the principle of natural justice. This means that, when setting fines under Article 15 of Regulation No 17, the Commission must take account of penalties which have already been borne by the same undertaking for the same conduct, where they have been imposed for infringements of the cartel law of a Member State and, consequently, have been committed on Community territory.

However, the obligation to take account of the principle of natural justice follows, on the one and, from the close interdependence of the national markets of the Member States of the common market and, on the other, from the special system of the sharing of jurisdiction between the Community and the Member States with regard to cartels in the same territory.

(see paras 290-291)

13. The Commission’s power to impose fines on undertakings which intentionally or negligently commit an infringement of Article 81(1) EC or Article 82 EC is one of the means conferred on the Commission to enable it to carry out the task of supervision entrusted to it by Community law. That task encompasses the duty to pursue a general policy to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles.

It follows that the Commission has the power to decide the level of fines in order to reinforce their deterrent effect when infringements of a particular type, although established as being unlawful at the outset of Community competition practice, are still relatively frequent on account of the profit that certain of the undertakings concerned are able to derive from them.

The Commission’s aim of deterrence relates to the conduct of undertakings within the Community or the European Economic Area. Consequently, the deterrent effect of a fine imposed on an undertaking for infringing the Community competition rules cannot be assessed by reference solely to that undertaking’s particular situation or by reference to whether it has complied with the competition rules in non-member States outside the EEA.

(see paras 297-298, 300)

14. If the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other parties involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes incriminating evidence against the various parties alleged to have participated in the infringement.

It is for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence.

With regard to the non-disclosure of an exculpatory document, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission. It is sufficient for the undertaking to show that it would have been able to use the exculpatory document in its defence, in the sense that, had it been able to rely on it during the administrative procedure, it would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission’s assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine. In that context, the possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might – in the light of that evidence – have had a significance which ought not to have been disregarded.

(see paras 343-344, 351)

15. Where examination of the pleas raised by an undertaking against the legality of a Commission decision imposing on it a fine for breach of the Community competition rules has not brought any illegality to light, there are no grounds for the Court to exercise its unlimited jurisdiction in order to reduce the fine.

(see para. 386)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

27 September 2006 ?( )

(Competition – Agreements, decisions and concerted practices – Citric acid – Article 81 EC – Fine – Article 15(2) of Regulation No 17 – Attribution of conduct to a subsidiary – Principle that penalties must be defined by law – Guidelines on the method of setting fines – Principle of proportionality – Ne bis in idem principle – Right of access to the file)

In Case T‑43/02,

Jungbunzlauer AG, established in Basle (Switzerland), represented by R. Bechtold, U. Soltész and M. Karl, lawyers,

applicant,

v

Commission of the European Communities, represented by P. Oliver, acting as Agent, and by H. Freund, lawyer,

defendant,

supported by

Council of the European Union, represented by E. Karlsson and S. Marquardt, acting as Agents,

intervener,

APPLICATION for, primarily, annulment of Commission Decision 2002/742/EC of 5 December 2001 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E‑1/36.604 – Citric acid) (OJ 2002 L 239, p. 18) and, in the alternative, reduction in the fine imposed on the applicant by that decision,

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

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

Registrar: D. Christensen, Administrator,

having regard to the written procedure and further to the hearing on 24 May 2004,

gives the following

Judgment

Facts giving rise to the dispute

1 The applicant, Jungbunzlauer AG (‘Jungbunzlauer’ or ‘the applicant’), was formed in 1993 as a wholly-owned subsidiary of Jungbunzlauer Holding AG, all of whose shares are in turn held by Montana AG (‘the Jungbunzlauer group’). In the United States the group is represented by Jungbunzlauer International AG, a subsidiary of the Jungbunzlauer group. The head office of the group is at the offices of Jungbunzlauer in Basle (Switzerland). Before 1993 the group was managed by Jungbunzlauer GmbH, whose registered office was in Vienna (Austria).

2 The Jungbunzlauer group is engaged in the manufacture and marketing of ingredients used in the food and beverages industry, and the pharmaceutical and cosmetics industry, as well as for various other industrial applications. It is, inter alia, one of the world’s leading manufacturers of citric acid.

3 Citric acid is the most widely used acidulant and preservative in the world. It exists in different types and is used in a variety of applications, including in food and beverages, household detergents and cleaners, pharmaceuticals and cosmetics, and in various industrial processes.

4 In 1995 total worldwide sales of citric acid were approximately EUR 894.72 million, including approximately EUR 323.69 million in the European Economic Area (EEA). In 1996 approximately 60% of the worldwide citric acid market was in the hands of the five addressees of the decision, which is the subject-matter of the present action, namely, in addition to Jungbunzlauer, F. Hoffmann-La Roche AG (‘HLR’), Archer Daniels Midland Co. (‘ADM’), Haarmann & Reimer Corporation (‘H&R’), belonging to the Bayer AG group (‘Bayer’) and Cerestar Bioproducts BV (‘Cerestar’) (together referred to as ‘the parties concerned’).

5 In August 1995 the United States Department of Justice informed the Commission of an investigation into the citric acid market. Between October 1996 and June 1998 the parties concerned, including Jungbunzlauer International AG, pleaded guilty to taking part in a cartel. As a result of plea agreements with the Department of Justice, fines were imposed on the companies by the United States authorities. In addition, several individuals charged were personally fined. Investigations were also carried out in Canada and some of the same companies, including Jungbunzlauer International AG, were fined there.

6 On 6 August 1997 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 four largest producers of citric acid in the Community, including Jungbunzlauer GmbH. In addition, in January 1998 the Commission sent requests for information to the main purchasers of citric acid in the Community and, in June and July 1998, it sent further requests for information to the main producers of citric acid in the Community.

7 Following receipt of the request for information which had been sent to it in July 1998, Cerestar contacted the Commission and, in the course of a meeting on 29 October 1998, expressed a wish to cooperate with the Commission under the Commission notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’). At the meeting Cerestar gave an oral account of the cartel activity in which it had been involved. On 25 March 1999 it sent the Commission a written statement confirming what it had said at the meeting.

8 By letter of 28 July 1998 the Commission sent Jungbunzlauer GmbH a further request for information to which the latter replied by letter of 28 September 1998.

9 At a meeting on 11 December 1998 ADM expressed its willingness to cooperate with the Commission and gave an oral account of the anti-competitive activity in which it had been involved. On 15 January 1999 it sent the Commission a written statement confirming that account.

10 On 3 March 1999 the Commission sent additional requests for information to HLR, Jungbunzlauer and Cerestar.

11 On 28 April, 21 May and 28 July 1999 respectively, Bayer, on behalf of H&R, the applicant and HLR, made statements on the basis of the Leniency Notice.

12 On 28 March 2000 the Commission, on the basis of the information supplied to it, sent a statement of objections to the applicant and the other parties concerned for infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement. The applicant and all the other parties 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.

13 In a letter of 11 April 2001 to the Commission, Jungbunzlauer GmbH made certain observations relating to the procedure under way.

14 On 27 July 2001 the Commission sent additional requests for information to the applicant and the other parties concerned. The applicant replied on its own behalf and that of Jungbunzlauer GmbH by letter of 3 August 2001.

15 On 5 December 2001 the Commission adopted Decision 2002/742/EC relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E‑1/36.604 – Citric acid) (‘the Decision’). The applicant was notified of the Decision on 18 December 2001.

16 The Decision includes the following provisions:

‘Article 1

[ADM], [Cerestar], [H&R], [HLR] and [the applicant] have infringed Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement by participating in a continuing agreement and/or concerted practice in the sector of citric acid.

The duration of the infringement was as follows:

– in the case of [ADM], [H&R], [HLR] and [the applicant]: from March 1991 to May 1995;

– in the case of [Cerestar]: from May 1992 to May 1995.

…

Article 3

The following fines are imposed on the undertakings referred to in Article 1 on account of the infringement described therein:

(a) [ADM]: EUR 39.69 million

(b) [Cerestar]: EUR 170 000

(c) [HLR]: EUR 63.5 million

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

(e) [the applicant]: EUR 17.64 million.’

17 In recitals 80 to 84 of the Decision, the Commission stated that the cartel involved the allocation of specific sales quotas to each member and their adherence to those quotas, the fixing of target and/or floor prices, the elimination of price discounts and the exchange of specific customer information.

18 In recitals 185 to 188 of the Decision, the Commission found that, with regard to the Jungbunzlauer group, the infringement should be attributed to Jungbunzlauer.

19 For calculating the fines, the Commission used in the Decision the method described 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.

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

21 In that context, as regards the gravity of the infringement, the Commission found, first, that the parties concerned had committed a very serious infringement having regard to its nature, its actual impact on the EEA citric acid market and the scope of the relevant geographic market (recital 230 of the Decision).

22 Next, the Commission considered that it was necessary to take account of the actual economic capacity to cause significant damage to competition, and to set the fine at a level which ensured that it had sufficient deterrent effect. Consequently, taking as its basis the worldwide turnover of the parties concerned from the sale of citric acid in the last year of the infringement, namely 1995, the Commission divided them into three categories as follows: in the first category, H&R with a worldwide market share of 22%, in the second, ADM and Jungbunzlauer with worldwide market shares of [confidential] ( ) and HLR with a market share of 9%, and in the third category Cerestar with a worldwide market share of 2.5%. On that basis the starting amounts fixed by the Commission were EUR 35 million for the undertaking in the first category, EUR 21 million for those in the second and EUR 3.5 million for the one in the third category (recital 239 of the Decision).

23 In addition, the Commission adjusted the starting amount in order to ensure that the fine had a sufficient deterrent effect. Consequently, taking account of the size and overall resources of the parties concerned, as expressed by their total worldwide turnover, the Commission multiplied the starting amounts for the fines imposed on ADM and HLR by 2 and that for the fine imposed on H&R by 2.5 (recitals 50 and 246 of the Decision).

24 As regards the duration of the infringement committed by each undertaking, the resulting starting amount was increased by 10% per year, giving an increase of 40% for ADM, H&R, HLR and Jungbunzlauer, and 30% for Cerestar (recitals 249 and 250 of the Decision).

25 Thus, the Commission set the basic amount of the fines at EUR 29.4 million for Jungbunzlauer. For ADM, Cerestar, HLR and H&R, the basic amounts were set at EUR 58.8 million, EUR 4.55 million, EUR 58.8 million and EUR 122.5 million respectively (recital 254 of the Decision).

26 Secondly, the basic amounts for ADM and HLR were increased by 35% to take account of aggravating factors on the ground that they had acted as leaders of the cartel (recital 273 of the Decision).

27 Thirdly, the Commission examined and rejected the arguments of certain undertakings with regard to attenuating circumstances (recitals 274 to 291 of the Decision).

28 Fourthly, pursuant to Article 15(2) of Regulation No 17, the Commission adjusted the resulting amounts for Cerestar and H&R so that they did not exceed the 10% limit of their worldwide turnover (recital 293 of the Decision).

29 Fifthly, under Section B of the Leniency Notice, the Commission allowed Cerestar a ‘very substantial reduction’ (90%) in the fine which would have been imposed if it had not cooperated. Pursuant to Section D of the Notice, the Commission allowed ADM a ‘significant reduction’ (50%), while Jungbunzlauer, H&R and HLR were granted reductions of 40%, 30% and 20% respectively (recital 326 of the Decision).

Procedure and forms of order sought by the parties

30 By application lodged at the Registry of the Court of First Instance on 25 February 2002, Jungbunzlauer brought the present action.

31 By order of 18 June 2002, the President of the Court of First Instance granted the Council leave to intervene in support of the forms of order sought by the Commission.

32 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure as laid down in Article 64 of the Rules of Procedure of the Court of First Instance, submitted written questions to the parties, to which they replied within the prescribed time-limits.

33 The parties presented oral argument and replied to the Court’s questions at the hearing on 24 May 2004.

34 The applicant claims that the Court should:

– annul the Decision;

– in the alternative, reduce the fine;

– order the Commission to pay the costs.

35 The Commission and the Council, intervening, contend that the Court should:

– dismiss the application;

– order Jungbunzlauer to pay the costs.

Law

36 The applicant raises, first, an objection of illegality on the ground that Article 15(2) of Regulation No 17 infringes the principle of legality in that that provision does not predetermine sufficiently the Commission’s decision-making practice (‘the principle of legality’). Next, the applicant submits that the Decision is vitiated by errors concerning the addressee of the Decision, the assessment of the gravity of the infringement, the recognition of attenuating circumstances, the failure to take account of fines imposed in other countries, the observance of the limit on fines provided for by Article 15(2) of Regulation No 17, and the right of access to the file. Lastly, the applicant claims that the duration of the administrative procedure should have some bearing on the amount of the fine.

I – Failure to observe the principle of legality

A – Objection of illegality in relation to Article 15(2) of Regulation No 17

1. Arguments of the parties

37 Jungbunzlauer raises an objection of illegality within the meaning of Article 241 EC and submits that Article 15(2) of Regulation No 17, which empowers the Commission to impose fines in the event of infringement of Community competition law, infringes the principle of legality, a corollary to the principle of legal certainty, which is a general principle of Community law, in that that provision does not predetermine sufficiently the Commission’s decision-making practice.

38 First, Jungbunzlauer claims that the principle of legality is enshrined in Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), which provides as follows:

‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’

39 Jungbunzlauer relies on Article 6(2) EU, which provides that ‘[t]he Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law’.

40 Jungbunzlauer adds that, according to the settled case-law of the Court of Justice and the Court of First Instance, any Community provision laying down penalties, whether of a criminal nature or not (Case 117/83 Könecke [1984] ECR 3291, paragraph 11, and Case 137/85 Maizena [1987] ECR 4587, paragraph 15), must respect the principle of legality as a corollary to the principle of legal certainty (Case 29/69 Stauder [1969] ECR 419, paragraph 7; Case C-143/93 Van Es Douane Agenten [1996] ECR I‑431, paragraph 27; Joined Cases C‑74/95 and C‑129/95 Criminal proceedings against X [1996] ECR I‑6609, paragraph 25; and Case T‑112/98 Mannesmannröhren-Werke v Commission [2001] ECR II‑729, paragraph 59 et seq.).

41 Lastly, Jungbunzlauer observes that the principle of legality is also enshrined in Articles 41 and 49 of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1; ‘the Charter of Fundamental Rights’) and forms an integral part of the common constitutional traditions of the Member States.

42 Jungbunzlauer claims that, by virtue of the principle of legality, a corollary to the principle of legal certainty, Community legislation must be clear and foreseeable for those subject to it (Joined Cases 212/80 to 217/80 Salumiand Others [1981] ECR 2735, paragraph 10; Case 70/83 Kloppenburg [1984] ECR 1075, paragraph 11; Könecke, paragraph 40 above, paragraph 11; and Maizena, paragraph 40 above, paragraph 15) and that certainty and foreseeability are requirements which must be observed all the more strictly in the case of rules liable to entail financial consequences (Case C‑30/89 Commission v France [1990] ECR I‑691, paragraph 23, and case‑law cited). This is particularly the case with regard to a Council provision empowering the Commission to act, which can be valid only if it is sufficiently specific, in the sense that the Council must clearly specify the bounds of the power conferred on the Commission (Case 291/86 Central-Import Münster [1988] ECR 3679, paragraph 13).

43 Jungbunzlauer submits that the principle of legality is vitally important for provisions laying down fines (Case 32/79 Commission v United Kingdom [1980] ECR 2403, paragraph 46; Kloppenburg, paragraph 42 above, paragraph 11; Maizena, paragraph 40 above, paragraph 15; and Case C‑352/92 Milchwerke Köln [1994] ECR I‑3385, paragraphs 22 and 23). According to Jungbunzlauer, those provisions must designate in a foreseeable manner not only the conduct sanctioned, but also the consequences ensuing for the individual (Criminal proceedings against X, paragraph 40 above, paragraph 25).

44 Jungbunzlauer considers that Article 15(2) of Regulation No 17 provides for the possibility of imposing a criminal or quasi-criminal penalty.

45 In that connection, Jungbunzlauer refers first to statements by Mr Monti, at that time the Commissioner responsible for competition policy, the wording of the Guidelines and the terms used by the Commission in its defence. These refer to ‘sanctions’ and ‘punishment’ for offences under Articles 81 EC and 82 EC, which must be sufficiently high to have a ‘deterrent effect’.

46 In addition, Jungbunzlauer observes that the Court has already recognised that the fines provided for in Article 15 of Regulation No 17 are not in the nature of periodic penalty payments, but that their object is to suppress illegal activities and to prevent any repetition (Case 41/69 Chemiefarma v Commission [1970] ECR 661, paragraphs 172 and 173) which, according to Jungbunzlauer, is consistent with the broad interpretation of the concept of criminal charge given by the European Court of Human Rights. Jungbunzlauer adds that, in Case T‑15/99 Brugg Rohrsysteme v Commission [2002] ECR II‑1613, paragraphs 109 and 122, the Court of First Instance examined the validity of the fine imposed under Article 15(2) of Regulation No 17 in the light of Article 7 of the ECHR.

47 The applicant considers that this conclusion is not affected by the words used in Article 15(4) of Regulation No 17, which states that decisions imposing fines are not ‘of a criminal law nature’, because, according to the case-law of the European Court of Human Rights, the decisive factor is not the description of a legal act, but its actual content.

48 Therefore, according to Jungbunzlauer, the procedure leading to the imposition of a fine pursuant to Article 15(2) of Regulation No 17 must meet all the minimum requirements from the viewpoint of the fundamental rights arising not only from the ECHR, as interpreted by the European Court of Human Rights, but also from the Charter of Fundamental Rights, which confirms the rights arising from the said case-law.

49 In that context, Jungbunzlauer claims that it is clear from the case-law of the European Court of Human Rights that both the offence and the penalty incurred for an infringement must be ‘provided for by law’, which means that individuals must be able to foresee, to a degree which is reasonable according to the circumstances of the case, the consequences which may follow from a given act. The European Court of Human Rights has added that a law which confers a power of assessment does not in itself conflict with that requirement, provided that the extent and the rules for exercising such power are laid down sufficiently clearly, having regard to the legitimate aim pursued, to give the individual adequate protection against arbitrary decisions.

50 In view of the foregoing, Jungbunzlauer considers that the principle of legality is not observed where a provision for the imposition of a fine does not limit sufficiently the potential legal consequences of a decision in the case, but leaves the competent authority, because of the imprecise wording of the measure in question, broad options in applying the measure to the particular case. In that situation, the legal consequences are not determined in advance by the legislature, contrary to what is required by the principle of legality, but ordered by the administration. Jungbunzlauer states that although the administration may have a margin of discretion which is not in itself illegal under the principle of legality, the fact remains that that margin must not be unlimited.

51 Jungbunzlauer considers that Article 15(2) of Regulation No 17 does not meet the minimum requirements set out above.

52 Jungbunzlauer observes that Article 15(2) of Regulation No 17 empowers the Commission to impose fines for infringement of the Treaty competition rules, the fine being a minimum of EUR 1 000 and a maximum to be determined individually for each undertaking by reference to its turnover. It adds that, regarding the specific amount of the fine, the second subparagraph of Article 15(2) of Regulation No 17 states merely that ‘in fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement’.

53 Jungbunzlauer considers that, as a consequence of that provision, the Commission has an almost unlimited discretion in relation to setting the amount of fines.

54 First, Jungbunzlauer refers to the fact that, from now on, contrary to the situation prevailing when Regulation No 17 was adopted, as the turnover of worldwide groups may in some cases amount to several hundred billion euro, the maximum fine may easily reach several tens of billions of euro. It observes, by way of example, that if the petroleum group ExxonMobil, whose group turnover totals EUR 248 billion, were to take part in a cartel, the Commission could fine it between EUR 1 000 and EUR 24.8 billion, which is equivalent to the gross national product of Luxembourg. Jungbunzlauer submits that if, for a given offence, the law allows an authority a scale of fines from EUR 1 000 to EUR 24.8 billion – or even to grant total exemption under the Leniency Notice – the fine is not determined in advance by the law, but solely by the authority. In the final analysis, such a provision opens the door to the imposition of arbitrary fines.

55 Secondly, with regard to the Guidelines, the applicant submits that they do not constitute a ‘law’ within the meaning of the ECHR. The applicant points out that they are binding on the Commission alone, but not the Community Courts (Case T‑81/97 Regione Toscana v Commission [1998] ECR II‑2889, paragraph 49, and Opinion of Advocate General Alber in Case C‑17/99 France v Commission [2001] ECR I‑2481, I‑2484, point 23), which have unlimited jurisdiction to review Commission decisions. According to the applicant, since those courts have jurisdiction to set the final amount of fines and since they are not bound by the Guidelines, those guidelines do not affect the question whether the legality of a criminal rule within the meaning of Article 7 of the ECHR is sufficient. Furthermore, the applicant observes that the Court of First Instance has recently stated that the legal framework applying to fines was defined by Regulation No 17 alone (Brugg Rohrsysteme v Commission, paragraph 46 above, paragraph 123).

56 Thirdly, Jungbunzlauer challenges the well-foundedness of the Commission’s argument that a greater degree of foreseeability and reliability in the calculation of fines would be inconsistent with the principle that the fine must, first, take account of the particular circumstances of the case and, second, have a deterrent effect sufficient to ensure compliance by undertakings with the competition rules. On the contrary, according to Jungbunzlauer, it is the awareness or potential awareness of the possible consequences of a criminal act that make it possible to ensure more effectively the deterrent effect sought by the Commission. That is the main reason why the criminal laws of the Member States consist of a number of different acts defined as criminal offences, each with different consequences as to the penalty. On the basis of those provisions and their interpretation in national case-law, the individual is able to foresee with sufficient precision the penal consequences of his actions. The almost unlimited range of penalties laid down by Article 15(2) of Regulation No 17 precisely does not have that deterrent effect because it does not give the slightest indication of the actual nature of the misconduct which would in principle lead to the complete exhaustion of that limit.

57 Jungbunzlauer adds that the fact that the Guidelines do not provide sufficient detail for the calculation of fines is illustrated by the fact that the Commission ‘may’ choose any amount over EUR 20 million as the starting amount in the case of ‘very serious’ offences. The Guidelines do not give the slightest indication of the conditions which would lead the Commission to choose a basic amount of EUR 20, 50 or 100 million or an even higher amount.

58 Fourthly, Jungbunzlauer considers that the Council’s argument that the fines set by the Commission are, if necessary, reviewed by the Community Courts, which have unlimited jurisdiction, cannot succeed either. According to Jungbunzlauer, the Council overlooks the fact that the requirement that legal provisions must be sufficiently clear aims precisely to enable the Community Courts to review the legality of decisions made on the basis of those provisions. The Council’s argument amounts to delegating the task of the Community legislature to the Community Courts.

59 Fifthly, Jungbunzlauer submits that, at national level, there is no comparable measure that empowers an authority to impose almost unlimited fines. With regard to the comparison with Swedish law, to which the Council refers, Jungbunzlauer submits that Swedish law was modelled on Community law and therefore contributes nothing useful to the argument. So far as German law, also referred to by the Council, is concerned, Jungbunzlauer observes that the German provisions on setting fines for infringements of competition law form a complex system which is not comparable to the general power provided for in Article 15(2) of Regulation No 17. The German provisions lay down an upper limit of EUR 500 000 and, beyond that, up to three times the profit gained from the infringement, which in practice leads to a lower level of fines than that resulting from Article 15(2) of Regulation No 17. Jungbunzlauer adds that that level is further modified by the manner in which the offence was committed. The full fine is imposed only where the act is deliberate, whereas in the case of an act committed as a result of negligence, only one half of the specified maximum may be imposed. Within those limits, the fine is calculated according to strictly defined criteria relating to, for example, the scale of the offence, the seriousness of the charge, the particular circumstances of the offender and its financial situation. Jungbunzlauer admits that these rules likewise do not permit the amount of fines to be determined in advance with the precision of an accountant. However, such precision goes far beyond the degree of delimitation provided for by Article 15(2) of Regulation No 17. Jungbunzlauer submits that it was mainly the idea that an approach based on turnover alone did not take sufficient account of the scope and gravity of the infringement that led the German legislature in 1999 to decide against amending the law to that effect.

60 Sixthly, Jungbunzlauer asserts that its argument is supported by the Commission’s decision-making practice on fines. The Commission’s practice is characterised not only by considerable differences in fines in absolute figures but also, and more importantly, by a drastic increase in the amounts of fines since 2001. In particular, Jungbunzlauer observes that it is clear from the average fine imposed on undertakings between 1994 and 2000, compared with the record fine of EUR 462 million imposed in 2001 in Commission Decision 2003/2/EC of 21 November 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E‑1/37.512 – Vitamins) (OJ 2003 L 6, p. 1), that the ratio is almost 1 to 15. Even the second-highest fine imposed on an undertaking in 2001, namely the fine of EUR 184.27 million imposed in Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E‑1/36.212 – Carbonless paper) (OJ 2004 L 115, p. 1), is still nearly six times greater than the average figure. Jungbunzlauer considers that the fact that all those decisions, like the earlier, entirely different, practice of the Commission, are based on the sole legal framework for fines, namely Article 15(2) of Regulation No 17, demonstrates that in reality it has no delimiting effect on the Commission’s practice. This development constitutes in reality not an increase in the level of fines, but rather a multiplication thereof.

61 Seventhly, Jungbunzlauer observes that in an article published in 1993, a Commission official admitted that the procedure capable of leading to fines under Regulation No 17 ‘[seems] to be far from what is usually described as due process’.

62 In the alternative, Jungbunzlauer considers that, even assuming that Article 15(2) of Regulation No 17 is compatible with the principle of legality, the Commission should at least interpret it restrictively and compensate for its lack of definition with a consistent and transparent system of fines which offers the undertakings concerned the necessary degree of legal certainty. According to Jungbunzlauer, such an interpretation should result in the Commission being prepared to guarantee a minimum degree of transparency and foreseeability with regard to the setting of fines. The broad authorisation conferred by Article 15(2) of Regulation No 17 should, in its submission, acquire a minimum degree of clarification and definition as a result of the Commission’s decision-making practice, which would thus exclude surprise decisions, as in the present case.

63 The Commission and the Council contend that Article 15(2) of Regulation No 17 does not infringe the principle of legality.

64 The Commission states in particular that its decisions on fines are subject to unlimited review by the Community Courts. It also points out that the criteria laid down by Article 15(2) of Regulation No 17 have been elaborated on in the case‑law and in the Guidelines. In its view, if the criteria were formulated in greater detail, it would be unable, first, to take the particular circumstances of each case into account and, secondly, to ensure that fines have a deterrent effect.

65 The Commission adds that, in accordance with Article 15(4) of Regulation No 17, the competition rules are not of a criminal law nature. It also considers that the applicant is wrong in claiming a breach of Article 7(1) of the ECHR and Articles 41 and 49 of the Charter of Fundamental Rights.

66 The Commission also observes that it is empowered to raise the level of fines and that the Guidelines do not affect the legal framework for setting fines.

67 Lastly, with regard to the comparison with German law, the Commission puts forward the example of a German criminal measure to illustrate the fact that German law also allows for very broad discretion within the limits of which the individual penalty must be determined.

68 The Council submits that the abovementioned provisions of the ECHR and the Charter of Fundamental Rights do not apply to Article 15(2) of Regulation No 17. Furthermore, in the Council’s submission, Article 15(2) is perfectly clear and unambiguous.

2. Findings of the Court

69 Article 15(2) of Regulation No 17, as last amended by Regulation (EC) No 1216/1999 of 10 June 1999 (OJ 1999 L 148, p. 5), provides as follows:

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

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

(b) they commit a breach of any obligation imposed pursuant to Article 8(1).

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

70 It is necessary to ascertain whether, as the applicant claims, Article 15(2) of Regulation No 17 infringes the principle of legality by not predetermining sufficiently the Commission’s decision-making practice.

71 On this subject, it must be observed that the Court of Justice has consistently held that the principle of legality is a corollary to the principle of legal certainty, which is a general principle of Community law which requires, in particular, that, where a Community rule imposes or permits the imposition of penalties, that rule must be clear and precise, so that the persons concerned may be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (see, to that effect, Case 169/80 Gondrand [1981] ECR 1931, paragraph 17; Maizena, paragraph 40 above, paragraph 15; Van Es Douane Agenten, paragraph 40 above, paragraph 27; and Criminal proceedings against X, paragraph 40 above, paragraph 25).

72 Likewise it is clear from settled case-law that this principle must be observed in relation to provisions of a criminal nature as well as specific administrative instruments imposing or permitting the imposition of administrative penalties (see Maizena, paragraph 40 above, paragraphs 14 and 15, and case-law cited) and that it applies not only to provisions establishing the elements which constitute an offence, but also to those specifying the consequences arising from an offence (see, to that effect, Criminal proceedings against X, paragraph 40 above, paragraphs 22 and 25).

73 In addition, it must be observed that the principle of legality forms part of the general principles of Community law underlying the constitutional traditions common to the Member States and that it has been enshrined in various international treaties, in particular Article 7 of the ECHR in relation to criminal offences and penalties (see, to that effect, Criminal proceedings against X, paragraph 40 above, paragraph 25).

74 It is settled case-law that fundamental rights form an integral part of the general principles of law whose observance the Community judicature ensures (Opinion 2/94 [1996] ECR I‑1759, paragraph 33, and Case C‑299/95 Kremzow [1997] ECR I‑2629, paragraph 14). For that purpose, the Court of Justice and the Court of First Instance draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (Case 222/84 Johnston [1986] ECR 1651, paragraph 18, and Kremzow, paragraph 14). Moreover, according to Article 6(2) EU, ‘the Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law’ (Case C‑94/00 Roquette Frères [2002] ECR I‑9011, paragraphs 23 and 24, and Mannesmannröhren-Werke v Commission, paragraph 40 above, paragraph 60).

75 In that connection, regard must be had to the wording of Article 7(1) of the ECHR:

‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’

76 According to the European Court of Human Rights, it follows from that provision that the law must clearly define crimes and the relevant penalties. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation, what acts and omissions will make him criminally liable (see European Court of Human Rights, Coëmev. Belgium, 22 June 2000, 2000‑VII, p. 1, § 145).

77 Referring to Article 15(4) of Regulation No 17, which provides that decisions made by the Commission pursuant to Article 15(2) are not of a criminal law nature, the Commission and the Council expressed doubts as to whether the Court of First Instance may draw inspiration from Article 7(1) of the ECHR and the case-law of the European Court of Human Rights relating to that provision in order to consider the legality of Article 15(2) of Regulation No 17.

78 On this subject, the Court points out, first, that it has no jurisdiction to assess the legality of Article 15(2) of Regulation No 17 in the light of Article 7(1) of the ECHR in so far as the provisions of the ECHR do not, as such, form part of Community law (see, to that effect, Mannesmannröhren-Werke v Commission, paragraph 40 above, paragraph 59). However, as stated at paragraph 74 above, fundamental rights form an integral part of the general principles of law the observance of which is ensured by the Community Courts by taking account of the ECHR in particular for guidance.

79 Next, without it being necessary for the Court to give a ruling on the question whether, by reason of the nature and the severity of the fines imposed by the Commission under Article 15(2) of Regulation No 17, Article 7(1) of the ECHR could apply to such administrative penalties and could therefore offer guidance to the Court (see, in that connection, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P, C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 215 to 223), suffice it to observe that Article 7(1) of the ECHR does not require the terms of the provisions by virtue of which those fines are imposed to be so precise that the potential consequences of an infringement of those provisions should be foreseeable with absolute certainty.

80 According to the settled case-law of the European Court of Human Rights, the existence of vague terms in a provision does not necessarily entail a violation of Article 7 of the ECHR. That court has observed that the concept of law used in Article 7 is the same as that found in other articles of the ECHR (see European Court of Human Rights, Başkaya and Okçuoğluv.Turkey [GC], nos. 23536/94 and 24408/94, 1999‑IV, p. 308, § 36, and Dansk Rørindustri and Others v Commission, paragraph 79 above, paragraph 216). In addition, the European Court of Human Rights has observed that the wording of many statutes is not absolutely precise and that, because of the need to avoid excessive rigidity and to keep pace with changing circumstances, many laws are inevitably couched in terms which, to a greater or lesser degree, are vague and that the interpretation and application of such enactments depend on practice (see European Court of Human Rights, Kokkinakisv.Greece, judgment of 25 May 1993, Series A no. 260‑A, §§ 40 and 52). However, the European Court of Human Rights has also made it clear that every law presupposes qualitative conditions, including accessibility and foreseeability (Başkaya and Okçuoğluv.Turkey, § 36). The fact that a law confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see European Court of Human Rights, Margareta and Roger Anderssonv. Sweden, judgment of 25 February 1992, Series A no. 226‑A, § 75). Finally, the European Court of Human Rights states that, in addition to the actual wording of the law, it takes account of the settled and published case-law when deciding whether the concepts used are definite or not (see European Court of Human Rights, G. v.France, judgment of 27 September 1995, Series A no. 325‑B, § 25, and E.K. v.Turkey, no. 28496/95, 7 February 2002, § 51).

81 With regard to the constitutional traditions common to the Member States, there is nothing which would justify the Court of First Instance giving a different interpretation of the principle of legality, which is a general principle of Community law, from that resulting from the considerations set out above. First of all, where the applicant refers to the provision of German law under which the competent German authorities impose fines for infringement of the competition rules, it must be observed that a constitutional tradition common to the Member States cannot be inferred from the legal situation in a single Member State. In addition, as the applicant admitted at the hearing, the relevant law of many other Member States has a degree of predetermination comparable to that of Article 15(2) of Regulation No 17, and even the same or similar criteria, for administrative penalties such as those imposed for the infringement of national competition rules.

82 Accordingly, the question whether Article 15(2) of Regulation No 17 conforms with the principle of legality must be examined in the light of the general principles set out above.

83 In that connection, it must be observed that the penalties laid down in Article 15(2) of Regulation No 17 in the event of infringement of Articles 81 EC and 82 EC are a key instrument available to the Commission for ensuring that ‘a system ensuring that competition in the internal market is not distorted’ (Article 3(1)(g) EC) is established within the Community. That system enables the Community to fulfil its task which consists, by means of the establishment of a common market, in promoting throughout the Community a harmonious, balanced and sustainable development of economic activities and a high degree of competitiveness (Article 2 EC). Furthermore, the said system is necessary for the adoption, within the Community, of an economic policy conducted in accordance with the principle of an open market economy with free competition (Article 4(1) and (2) EC). Accordingly, Article 15(2) of Regulation No 17 permits the establishment of a system which fits the fundamental tasks of the Community.

84 In addition, it must be added that, to avoid excessive prescriptive rigidity and to enable a rule of law to be adapted to the circumstances, a certain degree of unforeseeability as to the penalty which may be imposed for a given offence must be permitted. A fine subject to sufficiently circumscribed variation between the minimum and the maximum amounts which may be imposed for a given offence may therefore render the penalty more effective both from the viewpoint of its application and its deterrent effect.

85 In the present case, Article 15(2) of Regulation No 17 provides for fines from EUR 1 000 to 10% of the turnover in the preceding business year of the undertaking in question for the infringement of Articles 81(1) EC and 82 EC. Therefore it must be said that, contrary to the applicant’s submission, the Commission does not have an unlimited power of assessment with regard to setting fines for infringement of the competition rules.

86 Moreover, the Court considers that, in providing for fines for infringing the competition rules from EUR 1 000 to 10% of the turnover of the undertaking concerned, the Council did not leave the Commission excessive latitude. In particular, the Court takes the view that the ceiling of 10% of the turnover of the undertaking concerned is reasonable, having regard to the interests defended by the Commission where such infringements occur. It must also be stressed that, contrary to the applicant’s submission, the question whether fines on the basis of Article 15(2) of Regulation No 17 are reasonable should not be considered in absolute terms, but rather in relative terms, that is to say, by reference to the offender’s turnover.

87 Furthermore, the Court points out that, in setting fines pursuant to Article 15(2) of Regulation No 17, the Commission is bound by the general principles of law, particularly the principles of equal treatment and proportionality, as recognised by the Court of Justice and the Court of First Instance. The well-established case-law of both Courts has also clarified the criteria and the method of calculation to be used by the Commission when setting fines (see, in particular, paragraph 213 et seq. below). Moreover, the applicant itself refers to that case-law in support of its submissions and arguments (see, in particular, paragraph 199 below).

88 In addition, on the basis of the criteria specified in Article 15(2) of Regulation No 17 and amplified in the case-law of the Court of Justice and the Court of First Instance, the Commission has itself developed a decision-making practice which is public knowledge and is accessible. Although the Commission’s previous decision-making practice is not binding as such on the Commission when it determines the amount of a fine (see, to that effect, Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 234, and Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 254), nevertheless, by virtue of the principle of equal treatment, which is a general principle of law which must be observed by the Commission, the Commission cannot treat comparable situations differently or different situations in the same way, unless such 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).

89 In addition, it must be borne in mind that, with a view to transparency and to increase legal certainty for the undertakings concerned, the Commission has published guidelines setting out the calculation method which it imposes on itself in each particular case.

90 On the basis of all that information, contrary to the applicant’s submission, a well-informed business undertaking can, by obtaining legal advice if necessary, foresee to the requisite legal standard the method and the order of magnitude of the fines incurred for any given conduct. The fact, not disputed by the Commission and the Council, that undertakings are not in a position to know in advance the exact level of the fines that the Commission will choose in each individual case is not such as to establish that Article 15(2) of Regulation No 17 is contrary to the principle of legality.

91 Although it is true that undertakings are not in a position to know in advance the exact level of the fines that the Commission will choose in each individual case, nevertheless, in accordance with Article 253 EC, in a decision imposing a fine the Commission must state the reasons, particularly with regard to the amount of the fine and the method of calculation. The statement of reasons must show the Commission’s reasoning clearly and unequivocally so that those concerned can know the justification for the measure taken in order to decide whether it would be expedient to refer the matter to a Community Court and, as the case may be, so that the Court can exercise its power of review.

92 In the light of all the foregoing, the objection of illegality raised in relation to Article 15(2) of Regulation No 17 must be dismissed.

B – The correct interpretation of Article 15(2) of Regulation No 17

93 The applicant submits that, even assuming that Article 15(2) of Regulation No 17 is compatible with the principle of legality, a corollary to the principle of legal certainty, the Commission should at least interpret it restrictively and compensate for its lack of definition with a consistent and transparent system of fines which offers the undertakings concerned the necessary degree of legal certainty.

94 The Commission observes that it was precisely in order to provide a sufficient degree of transparency that it adopted the Guidelines and that, since that was done, its freedom to choose the amount of fines has been restricted.

95 The Court finds that, in the context of this second limb of the present plea, put forward as the alternative to the first, the applicant has raised no specific complaint in relation to the Decision, but formulates general submissions to the effect that the Commission should, in a general way, modify its policy on fines by reducing the amounts of fines or by clarifying the terms of the Guidelines.

96 This limb of the plea must accordingly be dismissed as inadmissible.

II – The addressee of the decision

97 The applicant raises pleas concerning, first, a failure to state reasons and, second, errors relating to the addressee of the Decision.

A – Failure to state reasons

98 Jungbunzlauer submits that the Decision contains no statement of the reasons as to why it should bear responsibility for Jungbunzlauer GmbH’s anti-competitive conduct during the period prior to 1993.

99 The Commission has put forward no specific arguments on this point.

100 The Court notes that 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).

101 In the present case, the Commission gave the following reasons in justification of its decision to attribute the infringement to Jungbunzlauer not only for the period subsequent to August 1993, but also for the period from the beginning of the infringement in March 1991 up to and including July 1993.

102 In recitals 30 and 33 of the Decision, the Commission observed that the applicant, Jungbunzlauer, was the management company which, since the restructuring of the group in 1993, had run the business of the Jungbunzlauer group, which was controlled by a holding company, Jungbunzlauer Holding AG. The Commission noted that, since 1993, the applicant had also run the group’s business on the market for citric acid, which was produced within the group by Jungbunzlauer GmbH, a wholly-owned subsidiary of Jungbunzlauer Holding AG. The Commission added that, before the restructuring of the group in 1993, the group had been directed by Jungbunzlauer GmbH. Until 1993 the distribution of citric acid had been handled by Jungbunzlauer GmbH and, after that date, by another subsidiary of Jungbunzlauer Holding AG, namely Jungbunzlauer International AG.

103 In recital 70 of the Decision, the Commission noted that, at meetings of the cartel, the Jungbunzlauer group was represented by the chief executive officer (CEO) of the group and the managing director of Jungbunzlauer GmbH.

104 In recital 186 of the Decision, the Commission observed that, in its reply to the statement of objections, Jungbunzlauer and Jungbunzlauer GmbH stated jointly that Jungbunzlauer GmbH should be regarded as the addressee of the Decision. On this point the Commission gave the following reasons:

‘(187) … First, until the second half of 1993, Jungbunzlauer [GmbH] was not solely a subsidiary in charge of the production and distribution of citric acid, but also the legal entity responsible for the management of the whole Jungbunzlauer group. In 1993, that responsibility passed to Jungbunzlauer AG, which can be regarded as the successor to Jungbunzlauer [GmbH] with respect to the management of the Jungbunzlauer group. Since that date, Jungbunzlauer [GmbH] became a wholly-owned subsidiary within the group, which did not decide independently upon its own conduct on the market, but carried out, in all material respects, the instructions issued by Jungbunzlauer AG, the company responsible for management of the group.

(188) For a certain part of the period considered in the present Decision, Jungbunzlauer AG took part directly in cartel meetings, notably in the person of its CEO. It must therefore be concluded that at any period of time considered in the present Decision, the legal entity responsible for the management of the whole Jungbunzlauer group was actively and directly involved in the cartel. Since the legal entity in question is currently Jungbunzlauer AG, the latter must be an addressee of the present Decision.’

105 These statements, although succinct, identify the primary factors used by the Commission to justify the attribution of the infringement to Jungbunzlauer for the period prior to 1993. The Commission indicated that it considered that the applicant was responsible for the infringement in the period prior to the restructuring of the group in 1993 because of a succession of management tasks for the group business, particularly in the citric acid market.

106 Consequently, the plea alleging a failure to state reasons must be dismissed.

B – The plea alleging errors concerning the addressee of the Decision

1. Arguments of the parties

107 Jungbunzlauer submits that it is not the correct addressee of the Decision. In its application it claims that the Decision ought to have been addressed to Jungbunzlauer GmbH. It observes that the latter was the company within the group which produced and distributed citric acid and which also, until 1993, was responsible for the management of the whole group. With regard to the period after the applicant itself was formed in 1993 as a management company, it states in its reply that even after that date the ‘actual management’ of the group was in the hands of Jungbunzlauer Holding AG.

108 In relation to the period after 1993, Jungbunzlauer observes, first, that from that year both Jungbunzlauer itself and Jungbunzlauer GmbH were wholly-owned subsidiaries of Jungbunzlauer Holding AG, so that Jungbunzlauer itself was not the parent company of Jungbunzlauer GmbH, but only its sister company.

109 Therefore, according to Jungbunzlauer, the Commission cannot successfully rely on the judgments of the Court of Justice in Case 107/82 AEG v Commission [1983] ECR 3151 (‘AEG’), paragraph 50, and Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925 (‘Stora’), paragraph 28, which concerned the attribution of a subsidiary’s conduct to the parent company. The relationship between parent and subsidiary is qualitatively different from that which existed between Jungbunzlauer itself and Jungbunzlauer GmbH because Jungbunzlauer Holding AG, as the common parent company, could at any time withdraw from one of its subsidiaries the right to control one of its sister companies.

110 Jungbunzlauer adds that it only provided the other companies in the group with management and advisory services on questions of business, organisational and financial investment policy. Jungbunzlauer did this at the request of Jungbunzlauer Holding AG, which controlled the group and was the only one with the right to give instructions to the companies in the group. Jungbunzlauer had no such right of its own in relation to the different companies in the group and no such right was conferred upon it as the Treuhänder (trustee) of Jungbunzlauer Holding AG. On the contrary, its own business was confined to putting at the disposal of other group companies the services of the persons it employed. In so far as, in any particular case, those persons gave instructions to group companies (for example, Jungbunzlauer GmbH), they did so, not in Jungbunzlauer’s name, but as representatives of Jungbunzlauer Holding AG.

111 Jungbunzlauer infers therefrom that the ‘actual management’ of the business of Jungbunzlauer Holding AG and of the entire group was solely the function of that company. This is corroborated by Austrian company law, which applies to Jungbunzlauer GmbH. A company which takes the form of a ‘GmbH’ or private limited company is managed by its bodies, namely the board of directors and the supervisory board, while its commercial policy is, in the final analysis, laid down by the general meeting of shareholders where, in the present case, Jungbunzlauer Holding AG, as the sole shareholder, held all the voting rights.

112 Secondly, the applicant submits that, even after it was formed in 1993, the principal participants in the discussions, with the exception of Jungbunzlauer’s managing director, who took office in the summer of 1993, had for a long time carried out managerial functions within Jungbunzlauer GmbH. Moreover, after Jungbunzlauer was formed in 1993, those persons continued to perform their duties in Jungbunzlauer GmbH. Most of their work related to Jungbunzlauer GmbH. The Commission’s assertion that some of them had carried out tasks in the group is irrelevant in this context. According to Jungbunzlauer, the Commission ought at least to have indicated the different group companies which employed those persons, a list of whom was given in the reply to the statement of objections. By way of example, Jungbunzlauer submits that it is erroneous to assert that Messrs H. and R. were employed by it or by Jungbunzlauer Holding AG.

113 Thirdly, the applicant avers that, given the course of the administrative procedure, it is artificial to attribute the cartel to the applicant. It observes that the Commission addressed its requests for information of 6 August 1997, 28 July 1998 and 4 March 1999 to Jungbunzlauer GmbH and that the cooperation in the framework of the Leniency Notice was also provided by that company.

114 Moreover, in relation to the period prior to 1993, Jungbunzlauer observes, first, that until 1993 Jungbunzlauer GmbH had managed the group and before that date Jungbunzlauer was not even operational. Consequently, in its view, so far as the period prior to 1993 is concerned, no responsibility for anti-competitive conduct can be ascribed to it.

115 Secondly, Jungbunzlauer considers that the judgments relied on by the Commission do not support its argument that responsibility for the infringement by Jungbunzlauer GmbH may be transferred to it. It observes that Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 84 to 87, concerned a succession by law and that Case T‑134/94 NMH Stahlwerke v Commission [1999] ECR II‑239, paragraphs 35 to 38, related to the takeover of an insolvent company.

116 Thirdly, Jungbunzlauer argues that it could not be regarded as the ‘economic successor’ of Jungbunzlauer GmbH and that the latter’s conduct before 1993 could not be attributed to it. This is shown by the fact that its own role in the group was limited to providing services for other group companies (see paragraph 110 above). Likewise it submits that, even after 1993, Jungbunzlauer GmbH continued its business of producing and marketing citric acid. Although in that connection Jungbunzlauer GmbH sometimes used the services of other group companies such as Jungbunzlauer, they only had the status of agents. Policy concerning quantities and prices was always imposed by Jungbunzlauer GmbH.

117 Fourthly, it is not correct that Messrs B. and H. managed Jungbunzlauer or acted on its behalf. In any case, so far as Mr H. is concerned, the applicant observes that he was not employed by it, but by other group companies.

118 Fifthly, the applicant notes that it had only limited financial resources.

119 The Commission points out that it relied on information provided by Jungbunzlauer GmbH and by Jungbunzlauer itself in the course of the administrative procedure.

120 With regard to the period after 1993, the Commission considers that it is clear from that information that, until 1993, Jungbunzlauer GmbH was responsible for the management of the group and that, in 1993, the applicant took over that function, so that there was an economic succession between those companies so far as the activities relating to the cartel are concerned. This finding is not affected by the fact that the applicant was only the sister company of Jungbunzlauer GmbH. The Commission observes that the Court of Justice has consistently held that the holding of share capital by a parent company enables it to influence decisively its subsidiary’s economic policy, unless that fact is disputed. Therefore it is not the holding of shares as such which is decisive, but the power thereby conferred on the parent company to exercise a decisive influence over the subsidiary’s economic policy. However, according to the Commission, the parent may transfer to another group company the power to influence the conduct of one of its subsidiaries. That is said to be the case here.

121 With regard to the period prior to 1993, the Commission considers that, because of the abovementioned economic succession in respect of the tasks relating to the management of the Jungbunzlauer group’s business on the citric acid market, the infringement by Jungbunzlauer GmbH before the 1993 restructuring must be attributed to Jungbunzlauer. The fact that the latter did not exist before 1993 and that Jungbunzlauer GmbH continued to exist after 1993 is irrelevant, as follows from the case-law of the Court of Justice and the Court of First Instance.

2. Findings of the Court

122 It is clear from the case-law that, in prohibiting undertakings, inter alia, from entering into agreements or participating in concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition within the common market, Article 81(1) EC is aimed at economic units made up of a combination of personal and physical elements which can contribute to the commission of an infringement of the kind referred to in that provision (Case T‑6/89 Enichem Anic v Commission [1991] ECR II‑1623, paragraph 235).

123 In the present case, the applicant does not deny the existence of an infringement of Article 81(1) EC. It does argue, however, that the Commission could not attribute responsibility for that infringement to it.

124 On that point, it must be observed, first, that until 1993 the Jungbunzlauer group was managed by Jungbunzlauer GmbH, which also produced citric acid but that, after the group restructuring in 1993, Jungbunzlauer, as a management company, managed all the business of the group, including that on the citric acid market, and that the group was headed by a holding company, namely Jungbunzlauer Holding AG (see paragraph 102 above).

125 With regard to the period subsequent to the restructuring of the Jungbunzlauer group in 1993, the Court notes that the applicant, a wholly-owned subsidiary of Jungbunzlauer Holding AG, was a sister company of Jungbunzlauer GmbH and not its parent company. In that context, the applicant rightly submits that the present case differed from those which gave rise to the case-law of the Court of Justice and the Court of First Instance (see, inter alia, Case T‑354/94 Stora Kopparbergs Bergslags v Commission [1998] ECR II‑2111, paragraph 80, upheld on appeal in Stora, paragraph 109 above, paragraphs 27 to 29; AEG, paragraph 109 above, paragraph 50; and Case T‑65/89 BPB Industries and British Gypsum v Commission [1993] ECR II‑389, paragraph 149) which states, in essence, that the Commission is correct in presuming that a wholly-owned subsidiary carries out, in all material respects, the instructions of its parent company, without having to ascertain whether the parent actually exercised that power.

126 However, it is clear from the recitals of the Decision, and contrary to the applicant’s submissions, that the Commission did not rely on such a presumption but instead examined, on the basis of the replies given by Jungbunzlauer and Jungbunzlauer GmbH during the administrative procedure, the question whether, notwithstanding the structure of the Jungbunzlauer group as described above, the infringement should be attributed to Jungbunzlauer.

127 In that regard, the Court notes that, following a request for information sent by the Commission to Jungbunzlauer GmbH on 3 March 1999, the latter wrote a letter on 21 May 1999, as part of its cooperation with the Commission, describing the structure of the Jungbunzlauer group and stating, in particular, that the ‘management of the group [was] handled by Jungbunzlauer AG … which, as a managing company, managed the companies owned by Jungbunzlauer Holding AG’.

128 In addition, on 28 March 2000 the Commission sent Jungbunzlauer the statement of objections. In its reply of 22 June 2000 to that statement of objections, Jungbunzlauer stated ‘on behalf of Jungbunzlauer GmbH’ that it could not be the addressee of any document relating to that procedure. In that connection it described the organisational structure of the Jungbunzlauer group and enclosed a diagram. The applicant indicated that Jungbunzlauer was only the management company which managed the companies owned by the group, which was headed by Jungbunzlauer Holding AG. Jungbunzlauer added that it was Jungbunzlauer GmbH which was ‘operational’ on the citric acid market, save with regard to the distribution of that product which, as from 1993, was handled on behalf of Jungbunzlauer GmbH by another subsidiary of Jungbunzlauer Holding AG, namely Jungbunzlauer International AG. Jungbunzlauer went on to state that ‘until the second half of 1993, all management was handled by Jungbunzlauer [GmbH]’ and that ‘since 1993 Jungbunzlauer AG … has existed as a management company’.

129 On the basis of the joint statements of Jungbunzlauer and Jungbunzlauer GmbH, referred to in recital 187 of the Decision, the Commission was justified in finding that, after the restructuring of the Jungbunzlauer group in 1993, the activities of Jungbunzlauer GmbH were limited to the mere production of citric acid, whilst the management of the group business, including that involving citric acid, was in the hands of Jungbunzlauer, so that Jungbunzlauer GmbH did not decide independently its own conduct on that market, but carried out, in all material respects, the instructions given by Jungbunzlauer. The Commission was justified in finding that the parent company common to Jungbunzlauer GmbH and Jungbunzlauer had decided to entrust the latter with the task of conducting the entire business of the group including, consequently, that associated with the group’s conduct on the market covered by the cartel, namely the citric acid market.

130 The Commission therefore did not err in finding that, with regard to the period subsequent to the restructuring of the Jungbunzlauer group in 1993, the infringement had to be attributed to the applicant.

131 So far as the period prior thereto is concerned, the Court must find, as the Commission did in recital 187 of the Decision, that until 1993 Jungbunzlauer GmbH was responsible not only for the group’s operations on the citric acid market, but also for managing the entire business of the group. The latter function, which consisted in conducting the group’s business, including in the citric acid market, was however transferred in 1993 to Jungbunzlauer, which therefore became the economic successor of Jungbunzlauer GmbH with respect to the management of the group business.

132 The fact that a company continues to exist as a legal entity does not exclude the possibility that, with reference to Community competition law, there may be a transfer of part of the activities of that company to another which becomes responsible for the acts of the former (see, to that effect, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraphs 356 to 359).

133 Therefore the Commission was also correct in finding that, with respect to the period prior to the restructuring of the Jungbunzlauer group in 1993, the infringement was to be attributed to Jungbunzlauer.

134 Consequently, the plea alleging errors with regard to the addressee of the Decision must be dismissed.

III – The gravity of the infringement

135 The applicant considers, first, that the Commission did not make a correct assessment of the cartel’s actual impact on the citric acid market and did not give an adequate statement of reasons on that point. Secondly, the applicant considers that the Commission failed to take sufficient account of the applicant’s relatively limited financial strength in comparison with the other undertakings concerned.

A – Whether the cartel had an actual impact on the market

1. Introduction

136 First of all, it should be borne in mind that 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, no binding or exhaustive list of the criteria which must be applied has been drawn up (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 Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 443). In that context, the actual impact of the cartel on the relevant market may be taken into account as one of the relevant criteria.

137 In its Guidelines (first paragraph of Section 1A), the Commission stated that, in assessing the gravity of the infringement, it takes account of ‘[the] actual impact [of the infringement] on the market, where this can be measured’, as well as its nature and the size of the relevant geographic market.

138 As far as the present case is concerned, it is clear from recitals 210 to 230 of the Decision that the Commission did in fact set the fine, determined by reference to the gravity of the infringement, taking into account those three criteria. In particular, it considered that the cartel had an ‘actual impact’ on the citric acid market (recital 230 of the Decision).

139 However, according to the applicant, in that context the Commission incorrectly assessed the actual impact of the cartel on the citric acid market and failed to give an adequate statement of reasons on that subject.

2. Whether there have been errors of assessment

140 According to Jungbunzlauer, the Commission made several errors of assessment which affected the calculation of the fine.

(a) The allegation that the Commission adopted an erroneous approach to show that the cartel had an actual impact on the market





Arguments of the parties

141 Jungbunzlauer complains that the Commission failed to prove the actual impact of the cartel on the market and reversed the burden of proof onto the undertakings concerned. It is for the Commission to adduce such proof when it chooses to take it into account in setting fines (Case T‑308/94 Cascades v Commission [1998] ECR II‑925, paragraph 180 et seq., and Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 4863).

142 In that context, the requirements concerning proof cannot be less stringent than for other relevant findings: the doubt must be construed in favour of the undertakings concerned (in dubio pro reo). Consequently, Jungbunzlauer considers that, if the circumstances found by the Commission may have a convincing explanation other than that accepted by the Commission, the requirements concerning the taking of evidence have not been fulfilled by the latter (Suiker Unie and Others v Commission, paragraph 115 above; Case 27/76 United Brands v Commission, [1978] ECR 207, paragraph 267; and Joined Cases 29/83 and 30/83 CRAM v Commission [1984] ECR 1679, paragraph 20).

143 Jungbunzlauer claims that it is clear from recitals 211, 213, 216, 218 and 226 of the Decision that, instead of proving that the cartel had effects on the market, the Commission inferred from the existence of the cartel that it had actually affected the market. Such reasoning amounts to a vicious circle, however, because, if it were true, every cartel would necessarily have effects on the market and examination by the Commission would be unnecessary. It is clear from the Commission’s own decision-making practice that there are cartels which have no effect on the market, which is confirmed by the Guidelines (point 3) and the case-law of the Court of First Instance (Cimenteries CBR and Others v Commission, paragraph 141 above, paragraph 4863 et seq.).

144 The Commission does not deny that the criteria for the implementation and the actual impact of a cartel on the market must not be confused and that it is required to adduce evidence on that point. In its view, however, in the present case it did not reverse the burden of proof, but proved the point to the requisite legal standard.