Case T-224/00





Archer Daniels Midland Co.

and Archer Daniels Midland Ingredients Ltd



v

Commission of the European Communities





«(Competition – Cartel – Lysine – Guidelines for calculating the amount of fines – Applicability – Seriousness and duration of the infringement – Turnover – Aggravating circumstances – Mitigating circumstances – Cooperation during the administrative procedure – Concurrent sanctions)»

Judgment of the Court of First Instance (Fourth Chamber), 9 July 2003

Summary of the Judgment

1.. Procedure – Application originating proceedings – Formal requirements – Summary of the pleas on which the application is based

(EC Statute of the Court of Justice, Art. 19, first para.; Rules of Procedure of the Court of First Instance, Art. 44(1))

2.. Community law – General principles of law – Non-retroactivity of criminal provisions – Scope – Fines imposed for infringements of the competition rules – Included – Infringement by reason of the application of the Guidelines for the calculation of fines to an infringement prior to their introduction – None

(European Convention on Human Rights, Art. 7; Council Regulation No 17, Art. 15)

3.. Competition – Fines – Amount – Commission's margin of discretion – Possibility of increasing the fines in order to strengthen their deterrent effect

(Council Regulation No 17, Art. 15)

4.. Community law – Principles – Protection of legitimate expectations – Conditions – Protection against exercise by the Commission of its power to raise the level of fines penalising infringements of the competition rules – None

(Council Regulation No 17)

5.. Competition – Fines – Amount – Community penalties and penalties imposed by the authorities of a Member State or a non-member State for infringement of national competition law – Infringement of thenon bis in idemprinciple – None – Concurrent sanctions – Permissible – Obligation on the Commission to take account, when determining the amount of the fine, of the penalty imposed by a Member State on the basis of the same facts – Obligation not transposable to the hypothesis of a penalty imposed in a non-member State

(Protocol No 7 to the European Convention on Human Rights, Art. 4; Council Regulation No 17, Art. 15)

6.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness and duration of the infringements – Possibility of increasing the fines in order to strengthen their deterrent effect

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

7.. Competition – Cartels – Price-fixing – Infringement capable of classification as very serious, even if the fixed prices merely indicative

(Art. 81 EC)

8.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Price-fixing – Obligation of the Commission to refer, when assessing the impact of an infringement, to the state of competition in the absence of the infringement

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

9.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Account to be taken of the effects of the whole of the infringement, whatever the actual conduct allegedly adopted by an undertaking

(Council Regulation No 17, Art. 15)

10.. Competition – Fines – Amount – Determination thereof – Guidelines adopted by the Commission – Obligation on the Commission to comply with them

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

11.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Taking into account of the total turnover of the undertaking concerned and the turnover achieved by sales of goods which were the subject-matter of the infringement – Limits

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

12.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Measure of the effective capacity to cause damage on the relevant market – Relevance of the market share held by the undertaking concerned

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

13.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Measure of the actual impact on competition of the infringing conduct of each undertaking – Relevance of the turnover achieved with the products forming the subject-matter of a restrictive practice

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

14.. Actions for annulment – Pleas in law – Challenge to the facts held by a decision penalising infringement of the competition rules – Admissibility – Condition – No admission of those facts during the administrative procedure

(Art. 230 EC)

15.. Competition – Cartels – Agreements between undertakings – Meaning – Common intention as to future market policy

(Art. 81(1) EC)

16.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Respective roles of the undertakings involved

(Council Regulation No 17, Art. 15)

17.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Mitigating circumstances – Agreement not implemented in practice – Assessment at the level of the individual conduct of each undertaking

(Council Regulation No 17, Art. 15)

18.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Mitigating circumstances – Setting up of a programme for compliance with Community competition rules – Taking into account not mandatory

(Art. 81(1)(a) and (b) EC; Council Regulation No 17, Art. 15)

19.. Competition – Fines – Amount – Determination thereof – Criteria – Reduction of the fine in return for cooperation – Conditions – Provision by an undertaking of information on facts capable of being used to penalise it

(Council Regulation No 17, Art. 15)

20.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Mitigating circumstances – Reduction of the fine in return for cooperation allowing the degree of participation by another undertaking to be determined

(Council Regulation No 17, Art. 15)

21.. Competition – Administrative proceedings – Powers of the Commission in investigations – Compliance with the general principle ensuring protection against arbitrary or disproportionate intervention by the public authorities – No possibility of making or using clandestine audio and video recordings

(European Convention on Human Rights, Art. 8; Council Regulation No 17)

22.. Competition – Fines – Amount – Determination thereof – Method of calculation defined by guidelines laid down by the Commission – Application of percentages to the basic amount of the fine

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

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