Case T-59/02: Action brought on 28 February 2002 by Archer Daniels Midland Company against the Commission of the European Communities
Date: 2002-06-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, dominant position, fine, infringement of EU law, organic acid

C 144/48

EN

Official Journal of the European Communities

15.6.2002

Pleas in law and main arguments

The applicant in this case produces pesticides (plant protection
products). The applicant contests the inclusion of certain of its
products in the list of priority substances in the field of water
policy. This list is established by the defendants in execution
of Directive 2000/60/EC (1). The products listed are considered
to present a risk to or via the aquatic environment and
their emissions must be reduced. Furthermore, the contested
decision indicates some of the applicant’s products as priority
substances ’under review’, which will lead, according to the
applicant, to a classification as priority hazardous substances.
These substances pose a higher risk for the aquatic environ-
ment and their emissions must be eliminated.

In support of its application, the applicant claims that the
defendants violated the procedural requirements of Directive
2000/60/EC. Article 16 (2) point (a) of this Directive provides
that plant protection products are prioritised by a risk
assessment procedure. The Defendants used however a simpli-
fied procedure called ’combined monitoring-based and model-
ling-based priority setting’. According to the applicants, the
defendants had no jurisdiction to use this simplified procedure
currently instead of the risk-based procedure laid down in
Article 16 (2) point (a). According to the applicant, the
conditions laid down in Article 16 of Directive 2000/60/EC
for the use of a simplified procedure are not met. The applicant
further points out
its plant
protection products under Directive 91/414/EEC (2) are still
continuing. Therefore, the defendants acted ultra vires by not
respecting the procedural and methodological requirements of
the basic Directive 2000/60.

the risk assessments of

that

According to the applicant, the defendants further violated
Articles 174, 175 and 176 of the EC Treaty by ignoring
available scientific and technical data. The contested measure
also violates Article 2 of the EC Treaty. According to the
applicant, the measure distorts competition since it does not
affect other competing plant protection products.

The applicant submits also that there has been a violation of
fundamental principles of Community law. The applicant
submits that the defendants have violated Directive 2000/60
and therefore have infringed a superior law. The defendants
also violated the more specific Directive 91/414/EEC, accord-
ing to which some of the applicant’s products are authorised
for use. The contested measure also violates the principle of
legal certainty and legitimate expectation since it frustrated the
applicant’s expectations that its products would be assessed in
accordance with the procedure under Directive 91/414/EEC
which is still current. The applicant further claims a violation
of the principle of equal treatment, since the procedure used
for the establishment of the contested measure has led to a
result contrary to that reached by the procedure under
Directive 91/414/EEC. The contested measure would, finally,
infringe the principle of proportionality.

(1) Directive 2000/60/EC of the European Parliament and of the
Council of 23 October 2000 establishing a framework for
Community action in the field of water policy (OJ L 327,
22.12.2000 P. 1).

(2) Council Directive 91/414/EEC of 15 July 1991 concerning the
placing of plant protection products on the market (OJ L 230,
19.8.1991 P. 1).

The applicant further contests the creating of a list of priority
substances under review. According to the applicant this list is
in fact a list of
tentative priority hazardous substances.
According to the applicant there is no legal basis to establish
such a list. There is also no reasoning for the selection of these
substances as priority substances under review.

Action brought on 28 February 2002 by Archer Daniels
Midland Company against the Commission of the Euro-
pean Communities

(Case T-59/02)

(2002/C 144/99)

(Language of the case: English)

The applicant further submits that the contested decision is in
conflict with the more specific Council Directive 91/414/EEC
on plant protection products. Therefore the defendants violate
the principle lex specialis derogat lex generalis. This Directive
imposes a specific risk assessment for plant protection prod-
ucts. According to the applicant, the result of this specific
procedure should have been awaited before the classification
of its products was undertaken.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 February 2002 by Archer
Daniels Midland Company, represented by Ms Lynda Martin
Alegi, Mr Bill Batchelor, Ms Marta Garcia and Mr Carl Otto
Lenz of Baker & McKenzie, London (United Kingdom).

15.6.2002

EN

Official Journal of the European Communities

C 144/49

The applicant claims that the Court should:

was a leader and its conclusions as to the appropriate level of
deterrent uplift in its assessment of the fine.

— annul Article 1 of the Decision, to the extent that it finds
that Archer Daniels Midland Company (‘ADM’) has
violated Article 81 EC Treaty and Article 53 EEA
Agreement by agreeing (i) to restrict capacity and (ii) to
designate price leaders in relation to citric acid;

— annul Article 3 of the Decision in so far as it pertains to

ADM;

— in the alternative, modify Article 3 of the Decision as it
pertains to ADM, so as to annul or substantially reduce
the fine imposed on ADM therein;

— order that the Commission pay all of the costs of the

proceedings.

Pleas in law and main arguments

The applicant in the present case challenges the Commission
Decision of 5 December 2001, relating to a proceeding under
Article 81 of the EC Treaty and Article 53 of the EEA
Agreement (Case COMP/E-1/36.604 — Citric Acid), to the
extent that it finds that ADM has violated these provisions by
agreeing to restrict capacity and to designate price leaders in
relation to citric acid.

In support of its claims, the applicant submits that the Decision
is inadequately reasoned, in as much as:

— the Commission did not give proper reasons regarding
how it took account of the damage to and the impact on
competition or in relation to its decision not to take into
account, in assessing the level of ADM’s fine, ADM’s EEA
in the affected product market;

Finally, the applicant claims that the defendant has violated
Article 15(2) of Regulation no. 17 and rules applicable to the
setting of fines. In this regard, the applicant considers that
there has been an infringement of the principles of legal
certainty, inasmuch as the Guidelines of Fines Methodology
was applied to a cartel which ended many years before
these Guidelines were adopted; equal treatment; protection of
legitimate expectations and proportionality. In particular, the
Commission did not correctly assesse the value of ADM’s
cooperation

Action brought on 28 February 2002 by Dr. Hans Heu-
bach GmbH & Co KG against the Commission of the
European Communities

(Case T-64/02)

(2002/C 144/100)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 February 2002 by Dr. Hans
Heubach GmbH & Co KG, of Langelsheim (Germany), rep-
resented by Frank Montag and Günter Bauer, lawyers.

The applicant claims that the Court should:

— annul Article 3(b) of the contested decision;

— reduce to a reasonable sum the amount of the fine
imposed on the applicant in the contested decision;

— it failed to state on what basis an uplift of 100 % could
be considered necessary to have a deterrent effect;

— order the defendant to pay the costs.

— the Commission did not state reasons for assessing ADM

as a leader.

Pleas in law and main arguments

The applicant submits that there has been an infringement by
the Commission of essential procedural requirements, in that
it failed to put to ADM its key conclusions regarding the
nature of the violations in question, its conclusions that ADM

The contested decision is the same as that at issue in Case
T-33/02 Britannia Alloys & Chemicals v Commission (not yet
published). The applicant argues that the basic amount of the
fine corresponds to more than 100 % of its EEA-wide product
turnover in 1998, and that the amount of the fine imposed on