Case T‑322/01

Roquette Frères SA

v

Commission of the European Communities

(Competition – Agreements, decisions and concerted practices – Sodium gluconate – Article 81 EC – Fine – Article 15(2) of Regulation No 17 – Guidelines on the method of setting fines – Leniency Notice – Principle of proportionality — Equal treatment – Ne bis in idem principle)

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

Summary of the Judgment

1. 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.)

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

(Council Regulation No 17, Art. 15)

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

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

4. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment

(Art. 81(1) EC)

5. Procedure – Application initiating proceedings – Formal requirements

(Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

6. Competition – Fines – Amount – Determination

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

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

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

8. 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)

9. Competition – Fines – Amount – Determination – Criteria – Turnover of the offending undertaking

(Council Regulation No 17)

10. Competition – Fines – Amount – Determination

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

11. Procedure – Request that the oral procedure be reopened

(Rules of Procedure of the Court of First Instance, Art. 62)

12. Competition – Fines – Amount – Discretion of the Commission – Unlimited jurisdiction of the Court of First Instance

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

1. 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 the fine on the basis of the gravity of the infringement, the Commission is to take account inter alia of the actual impact of the infringement on the market, where this can be measured. That measurable impact of the cartel must be regarded as having been sufficiently demonstrated where the Commission is able to provide specific and credible indicia showing with reasonable probability that the cartel had an impact on the market.

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

Therefore, unless the criterion contained in Section 1A is to be deprived of its effectiveness, the Commission cannot be criticised for referring to the actual impact of a cartel designed to restrict competition, such as a price fixing cartel or quota agreement, on the relevant market, without quantifying that impact or providing any assessment in figures in that respect.

(see paras 71-75)

2. When measures are taken to punish prohibited cartels, the actual conduct which an undertaking claims to have adopted is irrelevant for the purposes of evaluating the cartel’s impact on the market, since the effects to be taken into account are those resulting from the infringement as a whole, in which it participated.

Equally, there is not necessarily a correlation between the impact of a cartel and its duration. Accordingly, it is perfectly possible that, where the effect of a cartel is non-existent for a long period but devastating for a short period, the effect of that cartel is as significant as that of a cartel which has some effect for its entire duration. Consequently, even if it is proven that the cartel has no effect or only a limited effect for certain periods, that does not necessarily prove a lesser effect than that of a cartel considered over its entire duration.

(see paras 89-90, 121, 128, 141, 179)

3. Under Article 15(2) of Regulation No 17, the amount of the fine is to be determined on the basis of the gravity of the infringement and of its duration. In addition, under the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, the Commission determines the starting amount according to the gravity of the infringement, taking account of its nature, its actual impact on the market and the size of the geographic market.

That legal framework does not therefore, as such, require the Commission to take account of the small size of the product market.

However, in assessing the gravity of an infringement, the Commission must have regard to a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. Those factors evidencing the gravity of an infringement may possibly include, where appropriate, the value of the product in respect of which the infringement was committed, the size of the market for the product in question and buyer power.

Consequently, although market size may constitute a factor to be taken into account in establishing the gravity of the infringement, its importance varies according to the particular circumstances of the infringement concerned.

(see paras 147-150)

4. For the purpose of examining the application of Article 81(1) EC to an agreement or concerted practice, there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition within the common market.

(see para. 201)

5. Under Article 44(1)(c) and (d) of the Rules of Procedure of the Court of First Instance, the application must inter alia contain a summary of the pleas in law on which it is based. In addition, irrespective of any question of terminology, that summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, even without further information. It is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself, so as to guarantee legal certainty and sound administration of justice.

In that regard, it is not the task of the Court to search through all the matters relied on in support of a first plea in order to ascertain whether those matters could also be used in support of a second plea. The fact that the Commission made a special point of attempting, despite the flagrant vagueness of this plea, to identify any of the applicant’s arguments relied on in the context of its reasoning relating to the first plea which could, where appropriate, be reiterated in support of the second plea, and to reply to them in that context, does not alter that conclusion. Indeed, such a position of the Commission amounts merely to a hypothesis as to the exact scope of the plea raised by the applicant. It does not serve to determine with certainty the exact scope of the second plea.

(see paras 208-209)

6. The Notice on the non-imposition or reduction of fines in cartel cases is an instance of the exercise of the Commission’s discretion and requires only a self-imposed limitation of the Commission’s power in accordance with the principle of equal treatment. That notice created legitimate expectations on which enterprises may rely when disclosing the existence of a cartel to the Commission. In the light of the respect for the principle of equal treatment and of the legitimate expectations which undertakings wishing to cooperate with the Commission may derive from that notice, the Commission is therefore obliged to comply with it when assessing the cooperation of an undertaking in the context of the determination of the amount of the fine imposed on it.

In that respect, neither a draft of a new notice, even if published before the adoption of a decision imposing a fine for infringement of the competition rules, nor a new notice published after the adoption of such a decision, can entail any self-imposed limitation on the exercise of the Commission’s discretion in this case.

(see paras 223-224)

7. In order to benefit from a substantial reduction of a fine pursuant to Section C of the Notice on the non-imposition or reduction of fines in cartel cases, Section B(b) of that notice, to which Section C refers, requires that the undertaking concerned must be the first to adduce decisive evidence of the cartel’s existence. The notice does not provide that, in order to fulfil that condition, the enterprise which discloses the secret cartel to the Commission must furnish it with all the decisive elements required for the formulation of a statement of objections let alone for the adoption of a decision that an infringement has been committed.

(see paras 237-239)

8. Under the ne bis in idem principle, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal interest. The application of that principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected.

An undertaking may thus properly be the subject of two parallel procedures for the same unlawful conduct and therefore of a twofold penalty, one imposed by the competent authority of the Member State in question, the other by the Community, in so far as those procedures pursue different ends and there is not identity between the provisions infringed.

It follows that the ne bis in idem principle cannot, a fortiori, apply in a case where the proceedings conducted and penalties imposed by the Commission, on the one hand, and by authorities of third States, on the other, clearly do not pursue the same objectives. Whereas, in the former, it is a question of preserving undistorted competition on the territory of the European Union or in the European Economic Area, the protection sought, in the latter, concerns the market of a third State. The condition of unity of the legal interest protected, which is necessary for the application of the ne bis in idem principle, is therefore lacking in that case.

(see paras 277-281)

9. If, in determining the amount of the fine to impose on an undertaking which has infringed the Community competition rules, an error was made with regard to the level of turnover to take into account, that error must, when made clear, lead to a correction of the amount of the fine, even if the error was attributable to the undertaking.

(see para. 293)

10. Where undertakings which have infringed Article 81(1) EC are divided into groups for the purpose of setting the amounts of the fines, the thresholds for each of the groups thus identified must be coherent and objectively justified.

(see para. 295)

11. The Court of First Instance is required to accede to a request to reopen the oral procedure for the purpose of taking into account new facts alleged only if the party concerned wishes to place before it facts which may have a decisive influence on the outcome of the case and which it was unable to put forward before the close of the oral procedure.

The adoption, following a decision imposing a penalty on an undertaking which infringed the competition rules, of a decision concerning other undertakings having participated in the infringement cannot constitute a new fact which may have a decisive influence on the legality of the first decision and therefore does not require the reopening of the procedure on that basis.

The legality of a Community measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted. Consequently, elements post-dating the adoption of the Community measure cannot be taken into account in assessing the legality of that measure. Indeed, the legality of a decision must, in principle, be examined on the basis of the elements of fact and of law mentioned by the parties during the administrative procedure and/or set out in that decision. Otherwise, the parallelism between the (earlier) administrative procedure and the (subsequent) judicial review proceedings, which is based on identity of facts and law, would be compromised.

(see paras 323-326)

12. With regard to the determination of the amount of the fines imposed for infringement of the competition rules, the Court may, by virtue of its unlimited jurisdiction, take into consideration additional information which was not mentioned in the contested decision, in the light of the objections raised by the applicant. However, having regard to the principle of legal certainty, that possibility must, in principle, be limited to taking into account information pre‑dating the contested decision and which the Commission could have known at the time when it adopted that decision. A different approach would lead the Court to assume the role of the administration in assessing a question which the latter has not yet been required to examine, which would amount to encroaching on its powers and, more generally, to infringing the system of division of powers and the institutional balance between the judiciary and the administration.

(see para. 327)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

27 September 2006 ( )

(Competition – Agreements, decisions and concerted practices – Sodium gluconate – Article 81 EC – Fine – Article 15(2) of Regulation No 17 – Guidelines on the method of setting fines – Leniency Notice – Principle of proportionality – Equal treatment – Ne bis in idem principle)

In Case T‑322/01,

Roquette Frères SA, established in Lestrem (France), represented by O. Prost, D. Voillemot and A. Choffel, lawyers,

applicant,

v

Commission of the European Communities, represented initially by A. Bouquet, W. Wils, A. Whelan and F. Lelièvre, and subsequently by A. Bouquet, W. Wils and A. Whelan, acting as Agents, and by A. Condomines and J. Liygonie, lawyers,

defendant,

APPLICATION, firstly, for annulment of Articles 1 and 3 of Decision C(2001) 2931 final of 2 October 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E‑1/36.756 – Sodium gluconate) in so far as they set the fine imposed on the applicant, secondly, for reduction of the amount of the fine and, thirdly, for repayment to the applicant of the amounts unlawfully imposed,

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

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

Registrar: I. Natsinas, Administrator,

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

gives the following

Judgment

Facts

1 Roquette Frères SA (‘Roquette’) is a company active in the chemical industry. It produces inter alia sodium gluconate.

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

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

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

5 On 18 February 1998, the Commission sent requests for information under Article 11 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959‑1962, p. 87) to the main producers, importers, exporters and purchasers of sodium gluconate in Europe.

6 Following receipt of the request for information, Fujisawa approached the Commission and informed it that it had cooperated with the United States authorities in the course of the investigation described above and that it wished to cooperate with the Commission under the Commission notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’). On 12 May 1998, following a meeting with the Commission on 1 April 1998, Fujisawa supplied a written statement and a file comprising a summary of the cartel’s history and a number of documents.

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

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

9 On 2 March 1999, the Commission sent detailed requests for information to Glucona, Roquette and Jungbunzlauer. By letters of 14, 19 and 20 April 1999, those undertakings announced to the Commission their intention to cooperate and provided it with certain information concerning the cartel. On 25 October 1999, the Commission sent additional requests for information to ADM, Fujisawa, Glucona, Roquette and Jungbunzlauer.

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

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

12 On 2 October 2001, the Commission adopted Decision C(2001) 2931 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E‑1/36.756 – Sodium gluconate) (‘the Decision’). The Decision was notified to Roquette by letter of 11 October 2001.

13 The Decision includes the following provisions:

‘Article 1

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

The duration of the infringement was as follows:

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

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

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

…

Article 3

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

(a) [Akzo] EUR 9 million

(b) [ADM] EUR 10.13 million

(c) [Avebe] EUR 3.6 million

(d) [Fujisawa] EUR 3.6 million

(e) [Jungbunzlauer] EUR 20.4 million

(f) [Roquette] EUR 10.8 million

…’

14 In calculating the amount of the fines, the Commission applied in the Decision the methods set out in the guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’) and the Leniency Notice.

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

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

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

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

19 To take account of the duration of the infringement committed by each undertaking, the starting amount thus determined was increased by 10% per year, that is, an increase of 80% for Fujisawa, Akzo, Avebe and Roquette, of 70% for Jungbunzlauer and of 35% for ADM (recitals 389 to 392 of the Decision).

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

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

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

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

24 On 19 March 2002, the Commission withdrew the Decision in so far as it was adopted against Jungbunzlauer. On 29 September 2004, the Commission adopted a new decision C(2004) 3598 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/E-1/36.756 – Sodium gluconate) (‘the decision of 29 September 2004’) against Jungbunzlauer and three other companies of the Jungbunzlauer group (Jungbunzlauer Ladenburg GmbH, Jungbunzlauer Holding AG and Jungbunzlauer Austria AG) imposing on them a fine of EUR 19.04 million for their participation in the cartel in the sodium gluconate sector. On 23 December 2004, the four addressees of this latter decision brought an action before the Court of First Instance against that decision. The application was lodged at the Court Registry under number T‑492/04.

Procedure and forms of order sought by the parties

25 Roquette brought the present action by application lodged at the Registry of the Court of First Instance on 20 December 2001.

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

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

28 Following the adoption of the decision of 29 September 2004 against, inter alia, Jungbunzlauer, Roquette requested, by letter of 2 February 2005, the adoption of measures of organisation of procedure under Article 64(4) of the Rules of Procedure of the Court of First Instance and, in the alternative, the adoption by the Court of First Instance of any appropriate measure such as reopening of the procedure or joinder of the cases. Under the general principle of sound administration of justice, the Court, without reopening the procedure, asked the Commission to express a view on Roquette’s request. By letter of 7 March 2005, the Commission indicated that it considered that there was no need to accede to Roquette’s requests.

29 Roquette claims that the Court should:

– annul Article 1 of the Decision in so far as the Court considers that, in its case, the infringement lasted from February 1987 to June 1995;

– annul Article 3 of the Decision in so far as it imposes on it a fine of EUR 10.8 million;

– in the exercise of its unlimited jurisdiction, reduce the amount of the fine imposed on it;

– order the Commission to repay to it the amount of the fine unlawfully imposed (principal and interest at the rate of 3.76%);

– order the Commission to pay the costs.

30 The Commission contends that the Court should:

– dismiss the application;

– order Roquette to pay the costs.

Law

31 The pleas put forward by Roquette, all of which relate to the setting of the amount of the fine imposed on it, concern, firstly, the gravity of the infringement, secondly, the duration of the infringement, thirdly, the existence of attenuating circumstances, fourthly, its cooperation during the administrative procedure and, fifthly, the application of the ne bis in idem principle in the light of the fines which were imposed on it by the United States authorities.

I – Gravity of the infringement

A – Introduction

32 With regard to the Commission’s assessment of the gravity of the infringement, Roquette raises three objections alleging, firstly, incorrect determination of the turnover to be taken into account, secondly, incorrect assessment of the actual impact of the cartel on the relevant market and, thirdly, failure to take into account Roquette’s conduct.

33 Before ruling on the merits of those various objections, it is appropriate to draw attention to certain aspects of the assessment made by the Commission in its Decision regarding the gravity of the infringement.

34 It is clear from the Decision that, in assessing the gravity of the infringement, the Commission considered, firstly, that the undertakings concerned had committed an infringement which was very serious in the light of its nature, its actual impact on the EEA market for sodium gluconate and the size of the relevant geographic market, and which had affected the whole of the EEA (recitals 334 to 371 of the Decision).

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

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

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

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

B – Determination of turnover

1. Arguments of the parties

39 Roquette claims, in essence, that the Commission did not determine correctly the turnover to be taken into account in calculating the basic amount of the fine. In Roquette’s submission, that incorrect assessment by the Commission stems from the Commission’s taking into account a turnover figure which includes the turnover of its ‘mother liquor’ whereas the Commission should have acknowledged that the sodium gluconate market taken into account for the cartel did not include ‘mother liquors’.

40 After noting that ‘mother liquors’ were excluded from the scope of the Decision, Roquette points out that it is clear from its letter of 19 November 1999, from its reply of 3 May 1999 to the Commission’s request for information of 2 March 1999 and from its observations of 25 July 2000 on the statement of objections that the sodium gluconate in liquid form which it produces corresponds only to ‘mother liquor’ resulting from its specific manufacturing process and, therefore, that it is distinct from that of its competitors. On that basis, it disputes that the Commission was unable to recognise that liquid gluconate, to which Roquette refers, corresponded to ‘mother liquor’ and not to sodium gluconate in liquid form as produced by its competitors. It also refers in that regard to the position adopted by the Commission in its defence, where it implicitly accepts that what Roquette calls ‘mother liquor’ is not exactly the same thing as sodium gluconate in liquid form.

41 Roquette disputes that the absence of any reference to ‘mother liquor’ in its replies of 3 May 1999 and 21 May 2001 to the requests for information of 2 March 1999 and 11 May 2001 can justify the Commission’s failure to distinguish ‘mother liquors’ from sodium gluconates in liquid form. It points out that in replying to the requests for information it adhered to the formats laid down by the Commission, which did not distinguish ‘liquid gluconates’ from ‘mother liquors’. Moreover, in Roquette’s submission, the information given in its replies, including the turnover figures, had to be assessed in the light of the previous explanations indicating that its liquid gluconates were not products covered by the cartel. It also refers for that purpose to Fujisawa’s submission of 12 May 1998 which acknowledges, in its view, that ‘mother liquors’ do not constitute a finished product and were not included in the cartel agreement. Finally, in Roquette’s submission, the fact that the parties did not mention the exclusion of Roquette’s liquid sodium gluconate from the cartel does not preclude all the third parties and the Commission from having acknowledged the exclusion of ‘mother liquors’ from the cartel. Consequently, in Roquette’s view, the Commission could have known that what Roquette described as ‘liquid gluconate’ was in fact ‘mother liquor’.

42 Roquette therefore claims that it could not have suspected the Commission’s lack of understanding as to the nature of its liquid sodium gluconate and that, if the Commission considered the information in its possession was insufficient, the Commission lacked diligence in not requesting the necessary explanations with regard to the distinction between Roquette’s ‘liquid gluconate’ and that of the other undertakings for the purpose of calculating turnover (Case T‑310/94 Gruber + Weber v Commission [1998] ECR II‑1043, paragraph 242). In Roquette’s submission, greater diligence on the part of the Commission would have enabled it to obtain other documents evidencing the production of ‘mother liquor’ by Roquette. Finally, Roquette puts in evidence an affidavit given by its chairman and managing director confirming that Roquette’s liquid sodium gluconate corresponded to ‘mother liquor’ and that Roquette did not produce any liquid sodium gluconates other than its ‘mother liquor’.

43 In the alternative, Roquette submits that, according to the case-law, examination of the question of responsibility for the error in the calculation of the fine is irrelevant and that, in view of the error, the fine must, in any event, be reduced accordingly (Case T‑156/94 Aristrain v Commission [1999] ECR II‑645, paragraphs 584 to 586).

44 Consequently, Roquette submits that its turnover to be taken into account in determining the amount of the fine should not have included the sales of its ‘mother liquor’. However, the turnover taken into account in recital 48 of the Decision for the purpose of calculating the basic amount of the fine includes the turnover for Roquette’s ‘mother liquor’.

45 The consequence of that error of assessment on the part of the Commission is that Roquette’s turnover for the product covered by the infringement is lower than that taken into account. Because of that error of assessment, the Commission acted in a manner contrary to its own rules and those of the Court of Justice on this subject, and to the principles of equality and proportionality. Consequently, Roquette should not be classed among the producers in the ‘first category’, whose market share is above 20% and the basic amount of whose fine is set at EUR 10 million, and the fine imposed by the Commission was too high.

46 Roquette also points out that, according to the case‑law, turnover is an essential factor in assessing the weight of each undertaking participating in the cartel and that only turnover from the goods covered by the cartel may be taken into account as an indication of the scale of the infringement (Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 120; Gruber + Weber v Commission, cited in paragraph 42 above, paragraph 237; and Case T‑157/94 Ensidesa v Commission [1999] ECR II‑707). It submits that maintaining the same fine after reducing the turnover as a result of excluding results relating to ‘mother liquor’ would infringe the principles of equal treatment and proportionality. Secondarily, it draws attention, in the light of the unlimited jurisdiction of the Court of First Instance, to the Court’s independence from the Commission for the purpose of setting fines.

47 The Commission rejects all of Roquette’s arguments. It submits that it had no means of knowing that Roquette’s liquid sodium gluconate corresponded to ‘mother liquor’. In the Commission’s view, Roquette knowingly maintained ambiguity in that regard. The Commission refers, in support of that assertion, to Roquette’s replies of 3 May 1999 and 21 May 2001 to its requests for information and to the commercial document annexed to Roquette’s letter of 19 November 1999. The Commission points out that, in each of those documents, Roquette mentions liquid sodium gluconate without specifying whether it constitutes ‘mother liquor’. Moreover, it cannot be concluded with certainty from the references in Roquette’s letter of 19 November 1999 to liquid sodium gluconate and ‘mother liquor’ that Roquette did not market liquid sodium gluconate of a ‘mother liquor’ type. The Commission draws attention to the fact that Roquette knew that the requests for information were intended to assess the market affected by the cartel in order to be able to calculate the fines. The Commission therefore submits that it is hardly credible that Roquette, in replying to the requests for information, did not mention the nature of its liquid sodium gluconate because it was anxious to adhere to the form which had been sent to it and for fear of failing, by deviating from it, in its duty to cooperate. The Commission disputes the relevance of Gruber + Weber v Commission, cited in paragraph 42 above, relied on by Roquette, since, in this case, it was misled by Roquette. Finally, the Commission observes that none of the parties to the cartel agreement gave any indication, during the procedure, that Roquette’s sodium gluconate in liquid form might have been excluded from the cartel.

48 In the alternative, the Commission points out that, even if Roquette’s product in liquid form should be excluded for the purpose of calculating its turnover relating to sodium gluconate, that would not affect the starting amount of EUR 10 million set by the Commission for the fine.

49 The Commission states, in that regard, that the fine must be proportional to the gravity and duration of the infringement and not to the undertaking’s turnover. The Guidelines require that gravity to be assessed according to the nature of the infringement, the impact of the infringement on the market, where this can be measured, and the size of the relevant geographic market. In addition, Section 1A of the Guidelines and the case-law acknowledge that the application of the principle of equality may lead, in respect of the same conduct, to the application of differentiated amounts for the undertakings concerned, even though such differentiation may not be based on any arithmetical calculation (Case T‑48/98 Acerinox v Commission [2001] ECR II‑3859, paragraph 90).

50 In this case, the Commission submits that, even if Roquette’s market share were to be reduced from 20.96% to 17.4%, Roquette would still be one of the three major producers of sodium gluconate, for which a starting amount of EUR 10 million would have to be set. It would remain far ahead of ADM and Glucona’s parent companies, which had a market share of less than 10% and on which a fine of EUR 5 million was imposed.

2. Findings of the Court

51 As a preliminary point, it must be observed that, as stated in recitals 34 and 38 of the Decision, it is established that the product in respect of which the infringement was committed is sodium gluconate, which includes solid sodium gluconate, liquid sodium gluconate and gluconic acid, to the exclusion of the product known as ‘mother liquor’.

52 Moreover, it is clear from recitals 48 and 381 of the Decision that the turnover figures taken into consideration by the Commission are those taken from the responses of the parties to the cartel to the Commission’s requests for information and that those turnover figures correspond to the figures derived from the worldwide sales of sodium gluconate of each of the cartel members during the final year of the infringement, namely 1995. Accordingly, on that basis, the Commission considered that, for 1995, Roquette’s worldwide sodium gluconate turnover amounted to EUR 12 293 620 and its share of the world market, resulting from that, was estimated at 20.96% (recital 48 of the Decision).

53 In response to a written question put by the Court of First Instance, the Commission confirmed that the sum of EUR 12 293 620 was equivalent to 80 216 582 French francs (FRF), an amount which Roquette had disclosed to the Commission in its reply of 21 May 2001 to the request for information. It is clear from that reply of 21 May 2001 that the amount of FRF 80 216 582, representing Roquette’s worldwide sodium gluconate turnover in 1995, corresponds to the total of Roquette’s turnover figures for sodium gluconate in solid form (FRF 60 517 501), sodium gluconate in liquid form (FRF 16 029 382) and gluconic acid (FRF 3 669 699) in 1995.

54 Finally, in its reply, Roquette included as an annex an affidavit given by its chairman and managing director, according to which, in 1995 and beforehand, it marketed under the name ‘liquid gluconate’ only ‘mother liquor’. The Commission did not dispute the accuracy of that statement either in its rejoinder or in its answers to the Court’s written questions, or at the hearing.

55 Consequently, it is established that Roquette’s turnover taken into account by the Commission included that realised through the sale of ‘mother liquor’ even though that product was not covered by the cartel. It follows that Roquette’s turnover taken into account in determining the amount of the fine is incorrect. Roquette thus had imposed on it, by mistake, a fine the amount of which does not adequately reflect its position on the market for the product in respect of which the infringement was committed.

56 The consequences of that error will be assessed, after analysing the other pleas put forward by Roquette, in the context of the exercise by the Court of its unlimited jurisdiction.

C – The actual impact of the cartel

1. Preliminary observations

57 Roquette claims in essence that the Commission did not take into consideration the limited effect of the cartel in assessing its actual impact on the relevant market. The Commission therefore went against both its own practice and settled case-law, in breach of Article 15 of Regulation No 17 and of the principle of proportionality.

58 It is appropriate to recall in this connection the consistent case-law according to which the gravity of infringements must be determined by reference to numerous factors such as, in particular, 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).

59 In its Guidelines (first paragraph of Section 1A), the Commission stated that, in assessing the gravity of an infringement, it took into account, in addition to the specific nature of that infringement and the size of the relevant geographic market, the ‘actual impact [of the infringement] on the market, where this can be measured’.

60 With regard to this case, it is apparent from recitals 334 to 388 of the Decision that the Commission did in fact take those three criteria into account in setting the amount of the fine determined according to the gravity of the infringement. In particular, in that context, it considered that the cartel had had a ‘real impact’ on the sodium gluconate market (recital 371 of the Decision).

61 At recital 340 of the Decision, the Commission introduced its analysis as follows:

‘The Commission considers that the infringement, committed by undertakings which during the period covered by this Decision covered over 90% of the world market and 95% of the European market for sodium gluconate, had an actual impact on the sodium gluconate market in the EEA because it was carefully implemented. As the arrangements were specifically designed to restrict sales quantities, raise prices higher than they would otherwise have been and restrict sales to certain customers, they must have altered the normal pattern of market behaviour and therefore have had an effect on the market.’

62 At recital 341 of the Decision, it pointed out that, ‘[t]o the greatest extent possible, a distinction [had been] drawn between the question of the implementation of the agreements and the question of the effects produced in the market by this implementation’ but that ‘none the less, there [was], understandably, some overlap between the factual elements used to reach conclusions on these two points’.

63 That being so, the Commission first analysed the implementation of the cartel (recitals 342 to 351 of the Decision). The Commission submits that various elements relating to what it considered to be the cornerstone of the cartel, namely the sales quotas, showed that the cartel had been implemented. Further, the Commission relied on the fact that ‘[t]he cartel was characterised by a continuous concern for the fixing of target and/or minimum prices’ and added that, in its opinion, ‘[t]hese prices must have had an effect on the participants’ behaviour, notwithstanding the fact that they may not have been attained systematically by the cartel participants’ (recital 348 of the Decision). The Commission concluded that ‘the effectiveness of the implementation [of the cartel] could not be questioned’ (recital 350 of the Decision).

64 Second, the Commission assessed the impact of the infringement on the sodium gluconate market. It first referred to the assessment of the relevant market at recitals 34 to 41 of the Decision. Next, referring to the assessment already carried out at recitals 235 and 236 of the Decision, the Commission, relying on the two tables (‘the graphs’) found at Roquette’s premises (recital 354 of the Decision), stated as follows:

‘The price development as it is set out in the [graphs] found at Roquette during the investigation suggests that the goal pursued by the participants [in] the cartel was at least partly reached. The two [graphs] present the evolution of the price of sodium gluconate in [French francs (FRF)] in Europe from 1977 to 1995, and show that in 1985 the European sodium gluconate price plunged. It is likely that this movement resulted from the collapse of the earlier cartel and the subsequent increase in the use of production capacity. By the end of 1986, the price was around 50% lower than at the beginning of 1985. There is a strong probability that the enforcement of the new cartel agreements, from 1986 onwards, significantly contributed to the steep price increase of 1987-89, when the price doubled. After a decrease in price in 1989 that remained smaller than the one of 1985, the price remained until 1995 some 60% higher than in 1987.’

65 At recitals 235 and 236 of the Decision, to which recital 354 refers, the Commission noted as follows:

‘(235) Two documents, found at Roquette’s premises during the inspection, are self-explanatory and constitute evidence of the results achieved by the sodium gluconate cartel. Among them is a [graph] presenting the average “European” price of sodium gluconate from 1977 until 1995.

(236) In a striking manner, [one of the graphs] shows that in 1981 and 1987, when respectively the “first” and “second” cartel agreements were enforced, prices rocketed. In 1985, the prices suddenly fell, which corresponds to the end of the “first” cartel, when Roquette pulled out of the agreement. Between 1987 and 1989, there was a steep price increase, during which the price of sodium gluconate was basically multiplied by two. From 1989 until 1995 it remained some 60% higher than in the slack of 1987. It should be noted that by contrast with the 1981-86 period, the price of sodium gluconate could be maintained at a significantly high price until 1995.’

66 Next, the Commission summarised, analysed and rejected the various arguments put forward by the parties concerned during the administrative procedure to dispute the conclusion that it had drawn from the graphs found at Roquette’s premises. So far as concerns ADM’s arguments, which claimed in particular that that price development would have also occurred in the absence of a cartel, the Commission stated as follows (recitals 359, 365 and 369 of the Decision):

‘(359) … The arguments developed by ADM do not demonstrate in any convincing manner that the implementation of the cartel agreement could not have played any role in the price fluctuations. Whilst the scenario proposed by ADM may occur in the absence of a cartel, it is also perfectly consistent with a cartel situation. The increase in capacity in the mid-1980s may have been both the cause and the result of the collapse of the first cartel (1981-85). As for the developments from 1987 onwards, they are fully consistent with the reactivation of the cartel over that period. Therefore, the fact that the price of sodium gluconate started to increase could not be exclusively explained in terms of a purely competitive reaction, but must be interpreted in the light of the fact that the participants had agreed on “floor prices” and market-share allocation as well as a reporting and monitoring system. All this would have contributed to the success of the price increases.

…

(365) [One of the graphs] found at Roquette confirms that during the period from 1991 to 1995, when ADM was involved in the cartel, prices remained stable or fell slightly. There is no evidence of any major decrease in prices let alone evidence that the price level would have been unprofitable. A more plausible explanation for ADM’s exit from the market would be that immediately after joining the cartel it encountered major technical problems which persisted. Therefore, it was never able to meet its sales quotas.

…

(369) Finally, it is inconceivable that the parties would have repeatedly agreed to meet in locations across the world to allocate sales quotas, fix prices and allocate customers over such a long period, having regard, inter alia, to the risks involved, if they had perceived the cartel as having no effect or only a limited impact on the sodium gluconate market.’

67 In the light of that analysis, the various objections raised by Roquette as regards the evidence produced by the Commission to show that the cartel had an actual impact can be distinguished according to whether they relate to the inferences made by the Commission from the implementation of the cartel, to the factors taken into account by the Commission in demonstrating the implementation and effect of the cartel or to the failure of the Commission to take into account other factors in assessing the actual impact of the cartel.

2. The objection that the Commission adopted an incorrect approach in demonstrating that the cartel had an actual impact on the market

a) Arguments of the parties

68 In addition to its objections concerning the relevance of the factors taken into account by the Commission in demonstrating the implementation and effect of the cartel, Roquette objects that it is not possible for the Commission to prove the existence of an actual impact on the basis of inferences drawn from the implementation of the cartel.

69 In particular, Roquette objects, firstly, to the Commission’s analysis in recitals 340 to 351 of the Decision where it asserts that, since the cartel was carefully implemented, it must have altered the normal pattern of behaviour and that effective implementation of agreements does not necessarily require that exactly the same prices and volumes be actually applied in the market, but that it is sufficient to move them in the direction of the target agreed upon. Secondly, Roquette objects to the inference drawn by the Commission, in recital 369 of the Decision, from the continual meetings of the parties over a long period notwithstanding the risks involved that there was an impact on the market.

70 The Commission disputes the validity of those arguments.

b) Findings of the Court

71 First, it should be borne in mind that, under the first paragraph of Section 1A of the Guidelines, the Commission is to take account, inter alia, of ‘[the] actual impact [of the infringement] on the market, where this can be measured’ when calculating the fine on the basis of the gravity of the infringement.

72 In that regard, it is necessary to analyse the exact meaning of the words ‘where this [that is, the actual impact] can be measured’. In particular, it is a question of establishing whether those words mean that the Commission can take account of the actual impact of an infringement for the purpose of calculating fines only if, and in so far as, it is able to quantify that impact.

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

74 Therefore, unless that criterion, which can be taken into account when setting the amount of the fine, is to be deprived of its effectiveness, the Commission cannot be criticised for referring to the actual impact of a cartel on the relevant market, notwithstanding the fact that it cannot quantify that impact or provide any assessment in figures in this respect.

75 Consequently, the actual impact of a cartel on the relevant market must be regarded as having been 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.

76 In this instance, it follows from the summary of the Commission’s analysis (see paragraphs 61 to 66 above) that the Commission relied on two items of evidence to find that the cartel had had an ‘actual impact’ on the market. Firstly, it referred to the fact that the cartel members had carefully implemented the cartel agreements (see, in particular, recital 340, reproduced in paragraph 61 above) which continued over a long period (recital 369 of the Decision, reproduced in paragraph 66 above). Secondly, the Commission took the view that the graphs found at Roquette’s premises showed that the prices set by the cartel tallied to a certain extent with those actually charged on the market by the cartel members (recital 354 of the Decision, reproduced in paragraph 64 above).

77 It must be pointed out, first of all, that the Commission did not merely infer from the effective implementation of the cartel that there had been an actual impact on the sodium gluconate market. As is apparent from the extracts from the Decision cited above, the Commission sought as far as possible to examine the implementation of the cartel and its actual impact on the market separately, considering, in essence, that the implementation of a cartel is a necessary precondition for demonstrating its actual impact but that it is not a sufficient condition (see, to that effect, recital 341 of the Decision). It is true that, at recital 341 of the Decision, the Commission acknowledged that there was, ‘understandably, some overlap between the factual elements used to reach conclusions on these two points’ – the reason why the Commission did not always use, as Roquette submits, the appropriate terms in each of those parts of its analysis. However, the fact remains that it cannot be complained that the Commission confused the implementation with the actual impact of the cartel. Furthermore, because it is a precondition for the actual impact of a cartel, the effective implementation of a cartel constitutes an initial indicator that the cartel has had an actual impact.

78 In addition, the Commission cannot be criticised for finding that, since the members of the cartel accounted for over 90% of the world market and 95% of the EEA market for sodium gluconate and devoted considerable efforts to organising, following up and monitoring the agreements of that cartel, its implementation amounted to a strong indication of effects on the market, especially since (see paragraph 167 below) the Commission did not confine itself to that analysis in the present case.

79 Moreover, the Commission was entitled to take the view that the weight of that evidence increases with the duration of the cartel. The sound functioning of a complex cartel concerning, as in this instance, price fixing, market sharing and exchange of information leads inter alia to significant administrative and management costs. It was therefore reasonable for the Commission to consider that the fact that the undertakings persisted with the infringement and ensured that it was managed efficiently over a long period, despite the risks inherent in such unlawful activities, indicates that the cartel members made a certain profit from that cartel and, therefore, that it had an actual impact on the relevant market, even if that impact was not quantifiable.

80 It follows from the foregoing that the approach adopted by the Commission in assessing the actual impact of the cartel on the sodium gluconate market was not incorrect.

3. The objections concerning the factors taken into account by the Commission as proof of the implementation and effects of the cartel

a) The different phases of the cartel

Arguments of the parties

81 In Roquette’s submission, the Commission distinguished in the Decision between three phases in the implementation of the infringement, namely, the ‘preparatory’ phase (from May 1986 to April 1997), the ‘operational’ phase (from April 1987 to May 1990, when ADM joined the cartel) and the ‘decline’ phase (from May 1990 to June 1995). Roquette claims that that distinction is clearly based on the level of impact of the cartel on the market and that the Commission did not adequately assess the effects of the cartel during the first and final phases.

82 Roquette submits that, during the preparatory phase, there was no actual anti‑competitive effect on the relevant market, because in that phase the parties only established contacts and agreed on the guiding principles of the cartel. Just as the Commission acknowledged in recital 106 of the Decision that the meeting in May 1986 had not had any effect and therefore that it did not have to be taken into account in assessing the effect of the cartel, Roquette submits that the meeting of 19 and 20 February 1987 did not have any effect and therefore that it also did not have to be taken into account by the Commission. In Roquette’s view, at that meeting, only the principles of the cartel were agreed upon but not the practical details which were only agreed upon at the meeting of 11 and 12 April 1987. Consequently, the Commission should have taken into account the effects of the infringement only from April 1987 onwards and not from February 1987 onwards as it did.

83 In addition, Roquette submits that, in assessing the effects of the cartel on the market, the Commission failed to take into consideration the functional weaknesses of the cartel during the period of decline. Thus, the Commission did not take account of the fact that the compensation scheme was called in question because of the inability of ADM to meet the quotas which had been assigned to it when it joined the cartel, even though the Commission acknowledged those facts in recitals 100, 200 and 209 of the Decision. Nor did the Commission take account of the non-implementation of the principles agreed upon at the meetings, particularly as regards the disclosure of sales figures and the meeting of quotas by the parties. In particular, Roquette claims that the Commission did not take account of its refusal to participate in the external monitoring system, which allowed it freedom of action.

84 The Commission contends that those arguments should be rejected.

Findings of the Court

85 With regard to the failure to take into account the different periods of the cartel, it must first of all be observed that, contrary to Roquette’s claims, the Commission did not establish the level of the cartel’s impact by reference to each of the phases of the cartel. It is clear from recital 352 et seq. of the Decision that the Commission took into account the cartel’s impact in respect of a single period covering the whole duration of the infringement.

86 In addition, as regards the absence of effects of the cartel during the preparatory period of the cartel, it is, admittedly, apparent from the Decision that, during the meeting in Amsterdam on 19 and 20 February 1987, Benckiser GmbH (which sold its sodium gluconate business to Jungbunzlauer in 1988), Fujisawa, Glucona and Roquette reached a general framework agreement, the details of which were to be discussed at the next meeting, scheduled to be held in Vancouver two months later (recitals 108 and 109 of the Decision), and that, at the meeting in Vancouver on 11 and 12 April 1987, those same parties, together with Finnsugar, defined the principles governing the implementation of the cartel (recitals 112, 113, 115 and 116 of the Decision).

87 However, at the meeting in Amsterdam on 19 and 20 February 1987, it was agreed, as regards the principle that market shares should be fixed, frozen and observed on the basis of the actual sales figures of the previous one or two years, that 1986 sales figures were to be used as a reference (recital 108 of the Decision) and that market shares were to be allocated according to a certain sharing key. This latter aspect is apparent from a note from a Roquette representative of 3 March 1997, submitted to the Commission by Roquette during the administrative procedure. Consequently, at the meeting in Amsterdam on 19 and 20 February 1987, at the very least, certain practical details were agreed upon between the parties, enabling partial implementation of the agreement. Its implementation from that date is therefore beyond dispute, notwithstanding the various details provided subsequently.

88 With regard to the failure to take into account the reduction in the effects of the cartel during the period of decline, it is, admittedly, apparent from the Decision that ADM’s failure to meet its quotas led to numerous conflicts between the various cartel members and to requests to abandon the compensation scheme (see, inter alia, recitals 100, 200 and 209 of the Decision). However, ADM’s inability to meet its sales quota, even though the other parties to the cartel restricted their product supply, reduced still further the supply of sodium gluconate on the market, which did not lessen, but rather increased the effect of the cartel on the market.

89 In addition, as regards Roquette’s claims concerning the failure of the parties to disclose their sales figures and to meet their quotas during the period of decline, it must be observed that Roquette has confined itself to citing in support of that argument its refusal to participate in the external monitoring system, leaving it freedom of action. However, according to settled case-law, the actual conduct which an undertaking claims to have adopted is irrelevant for the purposes of evaluating the cartel’s impact on the market, since the effects to be taken into account are those resulting from the infringement as a whole, in which it participated (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraphs 150 and 152, and Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraphs 160 and 167). Accordingly, the argument that the reduction in the effects of the cartel during the period of decline was not taken into account is also unfounded.

90 Finally, in any event, even if it is proved that the cartel was not implemented during the preparatory period and the period of decline, that cannot, in itself, prove that that cartel had no impact on the market. There is not necessarily a correlation between the impact of a cartel and its duration. Accordingly, it is perfectly possible that, where the effect of a cartel is non-existent for a long period but devastating for a short period, the effect of that cartel is as significant as that of a cartel which has some effect for its entire duration. Consequently, the fact that the cartel has no effect or only a limited effect for certain periods, even if proven, does not necessarily prove a lesser effect than that of a cartel considered over its entire duration.

91 In the light of the foregoing, Roquette’s objections alleging failure to take into account the different periods of the cartel must be rejected.

b) The objection regarding the failure to achieve the objectives of the cartel during the operational period

Introduction

92 Roquette also submits that the cartel had a limited real impact during its ‘operational’ phase (from April 1987 to May 1990), of which the Commission did not take due account. In particular, Roquette cites the failure to take into account the limited effects of the cartel in view of the weaknesses of the monitoring system, the failure to achieve the objectives of the cartel, namely, the introduction of quotas, the fixing of prices and the allocation of customers.

93 It must be pointed out above all in this regard that the Commission does not seek, in this case, to prove the effect of the cartel on the basis of the full achievement of those objectives. The Commission takes the view that the exchanges of data between the parties, the detailed definition of market shares, the fixing of target and/or minimum prices and the allocation of customers to the cartel members at meetings prove, firstly, that the cartel was implemented. In the light of that implementation and of the development of prices on the sodium gluconate market, as it is evidenced, according to the Commission, by the graphs found at Roquette’s premises, the Commission concludes that the first objective pursued by the cartel members, namely, the artificial maintenance of a high price for sodium gluconate, was at least partly achieved (recital 354 of the Decision).

94 It is therefore necessary to set out each of Roquette’s objections regarding the failure to achieve the cartel’s objectives in order to determine whether they are capable of calling in question the existence of implementation as demonstrated by the Commission. Since the implementation of a cartel is the prerequisite for that cartel to have an actual impact, the calling in question of the cartel’s implementation makes it impossible to demonstrate that the cartel had an actual impact.

The monitoring system

– Arguments of the parties

95 Roquette claims that the monitoring system, deemed to be a key aspect of the effects of the cartel, was completely inadequate. This was acknowledged by the Commission in recitals 93, 172, 195 and 214 of the Decision and pointed out by Roquette in its memorandum of cooperation of 22 July 1999 (‘the memorandum of 22 July 1999’), which indicates that the members of the agreement were providing incorrect data. However, the Commission did not take into account that weakness of the monitoring system in its assessment of the gravity of the infringement.

96 The Commission contends that this argument should be rejected.

– Findings of the Court

97 As regards the monitoring systems, namely, initially, that provided through a Swiss fiduciary company, which collected statistical data on the cartel members, and that by which one of the cartel members collected data from the various cartel members and then distributed them to the other cartel members (recital 92 of the Decision), it is not disputed that they did not operate perfectly, with the result that the data recorded in those systems do not fully reflect the reality of the market.

98 However, none of the considerations relied on by Roquette serves to call in question the fact that data were submitted by the parties to the cartel under the monitoring system. In addition, the data submitted, even allowing for their approximate nature, must, at the very least, have had some relevance and, therefore, been of some use to the parties to the cartel. At no time did the parties stop submitting data to the monitoring system and they continued to meet to discuss them and to establish quotas on that basis.

99 Consequently, the Commission was entitled to conclude, in recital 344 of the Decision, that a monitoring system, even though imperfect, had been implemented by the parties.

Quotas

– Arguments of the parties

100 Roquette claims that the objective of introducing a system of sales quotas was largely neutralised by the weakness of the monitoring system. Indeed, recitals 181, 196, 200, 209 and 225 of the Decision demonstrate the fact that adherence to quotas was a continual source of difficulties. Moreover, throughout its cooperation with the Commission, Roquette drew its attention to non-adherence to quotas. Thus, it stated in its memorandum of 22 July 1999 that it had always produced and sold at the maximum of its industrial capacities – thereby excluding any idea of limiting production or sales – by following trends in demand. Roquette points out that the Commission did not dispute that fact, but that it did not take it into account in its analysis. It also stated that the sales quotas had been exceeded by certain cartel members, which casts doubt on the credibility of the Commission’s assertions regarding the accuracy of the annual quantities allocated. Finally, Roquette submits that its analysis is confirmed by the fact that it considerably exceeded the quotas allocated, which is reflected in the loss of a major customer under the sanction imposed by the other cartel members.

101 Roquette disputes the Commission’s reasoning which leads it to consider, on the basis of the small disparities between the agreed quotas and the actual sales volumes, that the quota system was ‘effectively implemented’ by the parties (recital 347 of the Decision). In Roquette’s view, such a conclusion cannot be drawn from the figures submitted by the parties in the context of the cartel, since it is clearly established that those figures were for the most part incorrect and since, in its case, the quota system had no impact on its sales policy. The ineffectiveness of the quota system is demonstrated by the powerlessness of the cartel members to oblige Roquette or ADM to adhere to their quotas. Finally, Roquette disputes that the Commission was entitled, in recital 347 of the Decision, to view the implementation of the quotas as resulting from their being ‘defined with … accuracy’, since setting quotas with a compensation scheme reduces their strictness.

102 The Commission contends that those arguments should be rejected.

– Findings of the Court

103 With regard to the taking into account of the quotas by the Commission, Roquette submits, firstly, that the effectiveness of the quota system was largely neutralised by the weakness of the monitoring system. However, since, as stated above in paragraph 98, any weaknesses in the monitoring system were not such as to cast doubt on its implementation, they were also incapable of affecting the implementation, by virtue of that monitoring system, of a quota system.

104 Secondly, Roquette claims that the quotas were not adhered to by the parties. Although it may be true, as the Commission states in the Decision, that certain factors prove the non-adherence to quotas by certain operators, it must be pointed out that the parties continued to discuss those quotas and the adherence to them on a regular basis. That proves satisfactorily that a quota system was elaborated between the parties and that it was at least partly implemented. If the discussions about the quotas were purely theoretical as Roquette asserts, the parties would not have taken the trouble to continue discussing those quotas.

105 In addition, it is apparent, and this is not disputed by Roquette, that certain parties disagreed over adherence to those quotas. Thus, reference is made to a conflict arising between the parties when Finnsugar’s delegates announced their intention to increase their market share significantly (recital 125 of the Decision). The fact that Finnsugar made that declaration of intent and the reaction which it provoked constitute circumstantial evidence of the existence of a prior agreement on quotas and of an allocation of market shares. Likewise, the incentives designed to ensure that ADM met its quotas and Glucona’s dissatisfaction following ADM’s failure to fulfil those quotas indicate that Glucona felt bound by the quotas allocated to the parties by virtue of the cartel and, consequently, by its own quotas, which permits the assumption that it fulfilled them at a particular time (recital 193 of the Decision).

106 Thirdly, Roquette claims that the Commission was not entitled to rely on the figures submitted by the parties in the context of the cartel, since it is established that those figures were usually incorrect. Consequently, Roquette submits that the Commission could not prove the implementation of the cartel on the basis of the small disparity between the quotas and the actual sales volumes.

107 Although it is possible that certain parties to the cartel submitted incorrect figures which the other parties to the cartel assumed were correct, figures were definitely communicated between parties and market shares were calculated accurately and allocated between the parties. Those facts show that the cartel was implemented.

108 Fourthly, Roquette claims that the fact that neither it nor ADM could be compelled to meet their quotas proves that the compensation scheme did not work. In addition, Roquette submits that setting quotas with a compensation scheme is likely to reduce their strictness and that, consequently, the Commission cannot infer from the mere implementation of the quotas that they were defined accurately by the parties.

109 It must be noted, in that regard, that the compensation scheme consisted in increasing or decreasing, on an annual basis of the difference between the annual quota allocated to an undertaking and its actual sales, the quotas allocated to that undertaking the following year. Thus, an undertaking which in one year exceeded the annual quota allocated to it would see its annual quota for the following year reduced by the difference between its quota and its actual sales in the previous year, and vice versa (recital 99 of the Decision).

110 However, the fact that ADM and Roquette could never be compelled to adhere to their quotas does not necessarily prove that the compensation scheme was not implemented. The fact that ADM, compared with the other cartel members, accumulated quota surpluses, due to the fact that it failed to meet its quota, a cause of dissatisfaction for Glucona (recital 193 of the Decision), proves that ADM’s failure to meet quotas was penalised and that the compensation scheme worked. Moreover, it cannot be inferred from the fact that a compensation scheme is such as to mitigate the strictness of quotas that it was drawn up in a greater or lesser degree of detail. The degree of detail made apparent by the Commission related, in any event, only to the establishment of the quotas as such. Finally, the argument has no factual basis, in so far as, in this case, the strictness of the quotas is not mitigated by the compensation scheme; the compensation scheme makes it possible only to defer the penalty for non-adherence to quotas. In addition, Roquette itself points out that a party could not abuse that compensation scheme since, as is clear from the memorandum of 22 July 1999, its non-adherence to the quotas caused it to lose Glucona, a major customer for the sodium gluconate market, under the penalty imposed by the other cartel members.

111 The Commission has therefore established that a quota system was implemented.

Prices

– Arguments of the parties

112 Roquette also submits that the fixing of floor and/or target prices never really worked in practice. Recitals 199 and 209 of the Decision and the memorandum of 22 July 1999 prove the non-adherence to floor and/or target prices by the parties. The assertion in recital 219 of the Decision that floor and/or target prices were adhered to was demonstrated only as regards Glucona.

113 Roquette further submits that the Commission did not take account of the data with which it provided it showing that the differences between the prices fixed by the parties and the prices charged by it were very significant and that its prices were consistently below the target and/or minimum prices. To illustrate those points, Roquette reproduces in its application, in the form of tables, the list of its main customers in Europe and the prices charged by it from 1989 to 1994.

114 Roquette maintains, moreover, that, throughout the memorandum of 22 July 1999, it drew the Commission’s attention to the fact that the target price fixed by the parties was purely theoretical.

115 Moreover, Roquette submits that the Commission’s argument that the implementation of the price agreements is demonstrated when the prices applied move towards the level agreed upon (recital 348 of the Decision) is valid in this case only with regard to target prices and not with regard to minimum prices.

116 The Commission contends that those arguments should be rejected.

– Findings of the Court

117 As regards the non-functioning of the system of floor and/or target prices, it is not disputed that the parties mentioned certain cases where agreed prices were not being applied (see, inter alia, recitals 199 and 209 of the Decision).

118 However, it cannot be inferred from this that those target and/or minimum prices were never implemented. Thus, as Roquette acknowledges, it is clear from recital 219 of the Decision that Glucona adhered to target prices.

119 In addition, contrary to what is maintained by Roquette, that recital is not the only one proving the application by certain parties of the prices agreed upon. Thus, it is clear from recital 204 of the Decision that an internal note circulated at Jungbunzlauer proves that the latter applied the floor price agreed upon at a cartel meeting.

120 The Commission has therefore established to a reasonable standard that the prices fixed by the parties were not purely theoretical and that the parties implemented price agreements, even if not systematically.

121 That conclusion is not called in question by the fact, assuming it to be established, that Roquette never adhered to the price-fixing arrangements as adopted by the cartel and that its actual price deviated systematically and significantly from the target price. As stated above in paragraph 89, when examining the Commission’s classification of the gravity of the infringement, the Court is not required to examine the individual conduct of the undertakings, since the effects to be taken into account in setting the general level of fines are not those resulting from the actual conduct which an undertaking claims to have adopted, but those resulting from the infringement as a whole, in which it participated.

122 Finally, Roquette submits that the Commission’s position that effective implementation of the agreement on target prices and sales volumes does not necessarily require that exactly the same prices and volumes be actually applied in the market, but that, when the parties set their prices in order to move them in the direction of the level agreed upon, that is sufficient to demonstrate implementation of the cartel (recital 348 of the Decision), is not valid in the present case. It submits that that position adopted by the Commission is relevant only in relation to target prices and not in relation to minimum prices. In this case, however, there were only minimum prices. In this regard, it is sufficient to observe that Roquette has still failed to demonstrate in what respect such a position should differ in the case of minimum prices.

123 Accordingly, the Commission was entitled to find that a cartel on sodium gluconate prices was implemented by the parties.

Allocation of customers

– Arguments of the parties

124 Roquette claims that it never participated in the arrangements relating to customers and that it maintained its achievements in terms of market volume, which proves the ineffectiveness of the customer exchange system and therefore calls in question the effect of the cartel.

125 The Commission does not put forward any specific arguments in this regard.

– Findings of the Court

126 With regard to Roquette’s claims concerning the ineffectiveness of the customer exchange system, it must be observed that Roquette bases this argument solely on its non-participation in that exchange.

127 Such a circumstance does not give grounds for disputing the implementation of the exchange of customers between the other parties to the cartel, as that is clear from the record of the meeting of 9 August 1989 in Zurich (recital 137 of the Decision) and the handwritten notes taken by Roquette at the meetings of 28 November 1989 in Hakone and 10 and 11 June 1991 in Geneva (recitals 148 and 177 of the Decision).

128 In any event, as stated above in paragraph 89, at this stage of the analysis of the gravity of the infringement, account must be taken only of the effects resulting from the infringement as a whole and not of the particular conduct of one of the participants in the infringement. Since Roquette’s objections relate only to its conduct, that argument cannot be accepted at this stage of the analysis.

129 Accordingly, the Commission was entitled to find that an exchange of customers had been implemented between the parties.

130 On all the foregoing grounds, it must be held that the Commission did not err in finding that the cartel had been implemented by the parties.

c) The objections concerning the taking into account of the effects of the cartel on the basis of the graphs found at Roquette’s premises

Arguments of the parties

131 In Roquette’s view, in demonstrating the effect of the cartel, the Commission relies exclusively on the graphs found at its premises. However, according to Roquette, those graphs do not apply to all the operators and the Commission wrongly drew general conclusions about the cartel from its own particular situation. Moreover, the data set out in those graphs found are completely at variance with the customer prices with which Roquette provided the Commission in the course of its cooperation with it, which demonstrates the non-application of the prices laid down by the cartel. Those graphs indicate, moreover, for the period commencing in 1989 – the key period of the cartel – strong fluctuations and a downward trend, which is nevertheless inconsistent with a successfully implemented cartel. According to Roquette, the Commission also admitted in its defence that it did not know whether those graphs corresponded to Roquette’s prices or to the prices of all the cartel members for sodium gluconate. Those doubts confirm the Commission’s lack of diligence in not seeking further clarification of the meaning of those graphs.

132 The Commission contends that those arguments should be rejected.

Findings of the Court

133 In addition to inferring from the cartel’s implementation that it had an actual effect (see paragraph 63 above), the Commission contends that the cartel had a ‘real impact’ on the basis of the plausible correlation between, on the one hand, the implementation of the cartel and, on the other, the price development as evidenced by the two graphs found at Roquette’s premises.

134 In that regard, it is apparent that the two graphs found by the Commission at Roquette’s premises, the first headed ‘Sodium gluconate – European price development’ and the second headed ‘European price development of sodium gluconate’, record a price development. Those graphs show, on the ordinate, the prices expressed in FRF/kg and, on the abscissa, the years, covering the period from 1977 to 1995 as regards the first graph, and from 1979 to 1992 as regards the second graph.

135 On the first graph, it is apparent that, from 1985 to the beginning of 1987, the price decreases, from over FRF 8.5/kg to a little over FRF 4.5/kg. From 1987 to the beginning of 1989, that same price increases, from a little over FRF 4.5/kg to a little over FRF 8/kg. From 1989 to 1991, that price decreases again, from a little over FRF 8/kg to a little under FRF 7/kg, then increases again from 1991 onwards to around FRF 7.5/kg and stabilises at that level until 1994. The second graph shows a similar price development over the period from 1986 to 1992.

136 On the basis of those graphs, it can be observed that the application of the agreements establishing the new cartel from 1986 coincides with a strong increase (doubling) in the price between 1987 and 1989, compared with the price at the beginning of 1985.

137 Roquette claims, however, that the prices shown on those graphs correspond to its prices and not to market prices. Although it is true that those graphs do not state in any way whether the prices are Roquette’s prices or those on the sodium gluconate market as a whole, it must however be observed that, during the administrative procedure (recitals 355 to 362 of the Decision), other parties to the cartel referred to those graphs in their arguments concerning the rise in prices between 1987 and 1989. Thus, ADM claims that this reflects a mechanical return to pre-1987 levels. Akzo cites exchange rate fluctuations (recital 357 of the Decision).

138 The fact that the other cartel members try to justify the price development shown on those graphs indicates that those other cartel members consider that those sodium gluconate prices also correspond to the prices charged by them and not only to those charged by Roquette. As it is not disputed that the cartel members together hold a market share above 90%, the Commission was entitled to use those graphs as its basis in demonstrating the effect of the cartel on the sodium gluconate market.

139 Roquette further submits that the prices shown on those graphs do not correspond to its prices as evidenced by the data with which it provided the Commission in the course of its cooperation with it.

140 It must however be observed that the data provided by Roquette in the course of its cooperation with the Commission do not always cover the period from 1987 to 1989. The comparison made by Roquette between floor prices and average actual prices, as set out in the application on the basis of those data, covers only the period from 1989 to October 1994, thus omitting the period during which, according to the graphs found, the rise in prices was most significant, namely from the beginning of 1987 to mid-1989. Moreover, it is apparent from Roquette’s letter of 12 October 1999 accompanying some of its data that the document setting out those data records the development of Roquette’s selling prices for sodium gluconate between 1988 and 1997 in relation to a number of customers representing approximately one third of its worldwide sales.

141 Finally, in any event, it must be remembered that the actual conduct which an undertaking claims to have adopted is irrelevant for the purpose of assessing the impact of the cartel on the market, since only the effects resulting from the infringement must be taken into account (see paragraph 89 above). The Commission was therefore not required to examine, in determining the impact of the cartel on the sodium gluconate market, Roquette’s individual conduct, since the effects to be taken into account in setting the general level of the fines were those resulting from the infringement as a whole, in which it had participated.

142 As regards Roquette’s argument that the fluctuations and downward trend observed from 1989 onwards on the graphs found, that is, during the key period of the cartel, do not characterise an agreement which is being successfully implemented, it must be noted that, although the two graphs show a fall during the period from 1989 to 1991, that fall in prices is followed by a rise in prices until 1992. In addition, according to one of the two graphs, that rise until 1992 is followed by relative price stability until 1995. It is therefore not possible to cite a general downward trend.

143 In addition, the fact that the cartel’s prices experienced fluctuations in the course of the cartel does not prove that the cartel had no effect.

144 Consequently, Roquette’s objections to the effect that, in the light of the graphs found at its premises, the cartel had no actual impact must be rejected.

4. The objections alleging that the Commission failed to take into account other factors in its assessment of the effect of the cartel

a) The objection alleging failure to take into account the specific characteristics of the market

Arguments of the parties

145 Roquette further submits that the Commission should have taken into account the characteristics of the product in question, namely, its extremely limited share in the users’ manufacturing costs, the very small size of the market and the extremely significant power of the customers.

146 The Commission contends that those arguments should be rejected.

Findings of the Court

147 With regard to taking into account the limited size of the market, the value of the product and buyer power, it must first of all be borne in mind that, under Article 15(2) of Regulation No 17, the amount of the fine is to be determined on the basis of the gravity of the infringement and of its duration. In addition, under the Guidelines, the starting amount of the fine is to be determined according to the gravity of the infringement, taking account of its nature, its actual impact on the market and the size of the geographic market.

148 That legal framework does not therefore expressly require the Commission to take account of the limited size of the product market, the value of that product and buyer power.

149 However, according to the case-law, in assessing the gravity of an infringement the Commission must have regard to a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case (Musique diffusion française and Others v Commission, cited in paragraph 46 above, paragraph 120). Those factors evidencing the gravity of an infringement may possibly include, where appropriate, the value of the product in respect of which the infringement was committed, the size of the market for the product in question and buyer power.

150 Consequently, although market size, product value and customer power may constitute factors to be taken into account in establishing the gravity of the infringement, their importance varies according to the particular circumstances of the infringement concerned.

151 In this case, the infringement concerns inter alia a price cartel which, by its very nature, is very serious. In addition, the undertakings which are parties to the cartel together supplied more than 90% of the world market and 95% of the European market (recital 9 of the Decision). Finally, it is clear that sodium gluconate is a raw material used in a number of very varied finished products, thus affecting numerous markets (recitals 6 and 8 of the Decision). In that context, the small size of the market in question, the restricted value of the product and buyer power, assuming those factors are established, are of only lesser importance compared with all the other factors evidencing the gravity of the infringement.

152 In any event, it must be borne in mind that the Commission considered that the infringement had to be regarded as very serious within the meaning of the Guidelines which, in such cases, provide that the Commission is ‘likely’ to impose a starting amount in excess of EUR 20 million. However, in this case, it is clear from recital 385 of the Decision that the Commission set a starting amount of only EUR 10 million for the undertakings in the first category and of EUR 5 million for those in the second category, which is equivalent to half, or even a quarter, of the amount which, under the Guidelines, it was ‘likely’ to impose for very serious infringements.

153 That determination of the starting amount of the fine confirms that, as it stated in recital 377 of the Decision with regard to the size of the market, the Commission had regard, inter alia, to those factors.

154 For those reasons, Roquette’s objections concerning failure to take into account the limited size of the market, the low value of the product in question and buyer power must be rejected.

b) Failure to take into account the buyers’ opinions

Arguments of the parties

155 Roquette submits that the Commission failed to take account of the opinion of buyers who accounted for most of the demand in the sector when setting the fine. In Roquette’s view, if the Commission questioned the buyers about the impact of the cartel, it was because it considered that the information provided by the investigation was ‘necessary’ in order to establish that impact. However, in the light of the Commission’s conclusions set out in recital 368 of the Decision, the buyers’ opinion attesting to the cartel’s lack of effects was not taken into account.

156 In Roquette’s view, the users’ replies to the Commission’s questionnaire prove that no increase in the price of sodium gluconate was noticed during the period covered by the investigation, namely, from 1989 to October 1994. On the contrary, certain buyers noticed a decrease in that price. In addition, none of the buyers considered that they had encountered a refusal to sell sodium gluconate. Finally, only two buyers considered that competition on the market was not intense; nine buyers considered that competition was normal and five buyers stated that they were unable to comment.

157 In the alternative, Roquette argues that the relatively neutral replies of the buyers are due to the fact that, in the market in question, as is the case with many raw material markets, significant price differences do not exist. In addition, it claims that there are competitors which carry significant weight on each of the sodium gluconate markets.

158 The Commission contends that this line of argument should be rejected.

Findings of the Court

159 As regards Roquette’s arguments concerning the taking into account of the buyers’ opinions, it must be noted that the Commission expressed the view, in recital 368 of the Decision, firstly, that the buyers’ replies to the request for information were inconclusive as to the cartel’s effects and, s