EN Official Journal of the European Union C 205/2

Judgment of the Court (First Chamber) of 9 July 2009 — Archer Daniels Midland Co. v Commission of the European Communities

(Case C-511/06 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Citric acid market - Determination of the amount of the fine - Role of leader - Rights of the defence - Evidence arising from a procedure conducted in a non-Member State - Definition of the relevant market - Attenuating circumstances)

2009/C 205/02

Language of the case: English

Parties

Appellant: Archer Daniels Midland Co. (represented by: C.O. Lenz, Rechtsanwalt, L. Martin Alegi, Solicitor, E. Batchelor and M. Garcia, Solicitors)

Other party to the proceedings: Commission of the European Communities (represented by: A. Bouquet and X. Lewis, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) of 27 September 2006 in Case T-59/02 Archer Daniels Midland v Commission, by which the Court dismissed an action for annulment of Commission Decision C(2001)3923 final of 5 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-1/36.604 — Citric acid) concerning a cartel on the citric acid market and, in the alternative, for a reduction in the fine imposed on the appellant

Operative part of the judgment

The Court:

(1) Sets aside the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case T 59/02 Archer Daniels Midland v Commission inasmuch as it rejects the plea of Archer Daniels Midland Co. relating to the infringement of its rights of defence during the administrative procedure which led to Commission Decision 2002/742/EC of 5 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.604 — Citric acid) in so far as the Commission of the European Communities did not afford it an opportunity to exercise its rights concerning the facts on which it relied when classifying Archer Daniels Midland Co. as a leader of the cartel;

(2) Sets aside the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case T 59/02 Archer Daniels Midland v Commission inasmuch as it rejects as ineffective Archer Daniels Midland Co.’s plea relating to the misapplication by the Commission of the European Communities of Section B(b) of the Commission Notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases;

(3) Annuls Article 3 of Decision 2002/742 in so far as it sets the amount of the fine payable by Archer Daniels Midland Co. at EUR 39.69 million;

(4) Sets the amount of the fine payable by Archer Daniels Midland Co. for the infringement found in Article 1 of Decision 2002/742 as annulled in part by the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case T59/02 Archer Daniels Midland v Commission at EUR 29.4 million;

(5) Dismisses the remainder of the appeal;

(6) Orders Archer Daniels Midland Co. to bear three quarters of its own costs and to pay those of the Commission of the European Communities in relation to the proceedings before the Court of First Instance of the European Communities, and to bear half of its own costs and to pay those of the Commission of the European Communities in relation to the appeal proceedings;

(7) Orders the Commission of the European Communities to pay one quarter of the costs of Archer Daniels Midland Co. relating to the proceedings before the Court of First Instance of the European Communities and to pay half of the costs of Archer Daniels Midland Co. relating to the appeal proceedings.

(1) OJ C 56, 10.03.2007.