Case C-397/03 P: Appeal brought on 24 September 2003 by Archer Daniels Midland Company and Archer Daniels Midland Ingredients Limited against the judgment delivered on 9 July 2003 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-224/00 between Archer Daniels Midland Company and Archer Daniels Midland Ingredients Limited and the Commission of the European Communities
Date: 2003-11-15
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), chemical product, competition law, fine, offence

15.11.2003

EN

Official Journal of the European Union

C 275/33

The applicant claims that the Court should:

1. Annul Commission Decision SG (2003) D/230248 of
26 June 2003 concerning Aid measure No N 35/2003
relating to tradeable NOx emission rights in so far as the
Commission takes the view in that decision that the
notified measure constitutes State aid for the purposes of
Article 87(1) EC (1);

2. Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, namely the Kingdom of the Netherlands,
notified the Commission under Article 88(3) EC of the ‘NOx
emission rights trading scheme’. It requested a decision by the
Commission that that scheme ‘does not constitute aid’ within
the meaning of Article 4(2) of Regulation No 659/99/EC (OJ
1999 L 83, p. 1). By the scheme, the Netherlands Government
has complied with its obligations to transpose Directive 2001/
81/EC of the European Parliament and of the Council of
23 October 2001 on national emission ceilings for certain
atmospheric pollutants (OJ 2001 L 309, p. 22) in so far as
reductions in emissions by large industrial plants are con-
cerned. With respect to the Netherlands, that directive lays
down a national NOx emission ceiling of 260 kilotonnes,
which is to be achieved by 2010. By the contested decision of
24 June 2003, the Commission concluded that the measure
constitutes State aid and declared that it had no objection to
the notified measure. The Commission takes the view that the
measure is a valuable contribution to Community environmen-
tal policy.

Although the Netherlands Government welcomes the fact that
the European Commission has not objected to the measure,
notified by it on a precautionary basis, it seeks, by this action,
annulment of the Decision in so far as the Commission
concludes therein that the notified measure constitutes State
aid. The Netherlands Government takes the view that it does
not in any way constitute aid.

scheme constitutes State aid and must therefore be approved
by the Commission is not substantiated by the explicit and
coherent statement of reasons required for such a conclusion.

(1) OJ L 213, 30.7.1998, p. 13.

Appeal brought on 24 September 2003 by Archer Daniels
Midland Company and Archer Daniels Midland Ingredi-
ents Limited against the judgment delivered on 9 July
2003 by the Fourth Chamber of the Court of First
Instance of the European Communities in case T-224/
00 (1) between Archer Daniels Midland Company and
Archer Daniels Midland Ingredients Limited and the
Commission of the European Communities

(Case C-397/03 P)

(2003/C 275/50)

An appeal against the judgment delivered on 9 July 2003 by
the Fourth Chamber of the Court of First Instance of the
European Communities in case T-224/00 between Archer
Daniels Midland Company and Archer Daniels Midland
Ingredients Limited and the Commission of the European
Communities, was brought before the Court of Justice of the
European Communities on 24 September 2003 by Archer
Daniels Midland Company, established in Decatur, Illinois
(United States of America) and Archer Daniels Midland
Ingredients Limited, established in Erith (United Kingdom),
represented by C.O. Lenz, L. Martin Alegi, E.W. Batchelor and
M. Garcia, lawyers, with an address for service in Luxembourg.

In support of its action, the Netherlands Government submits
that there has been an infringement of Article 87 EC. The
Netherlands scheme makes no use of State resources within
the meaning of Article 87(1) EC. The measures relating to
emission rights are financed entirely by private funds. Any
profit made by undertakings on the sale of credits does not
arise from the allocation of rights by the State but from the
undertakings’ own earnings made as a result of above-
standard performance. The undertakings are not placed at any
advantage. There is therefore no question of aid distorting
competition or affecting trade.

The Appellants claim that the Court should:

(i)

set aside the judgment in so far as it dismisses the
application brought by ADM in respect of the Decision (2);

(ii)

annul Article 2 of the Decision in so far as it pertains to
ADM;

(iii)

in the alternative to (ii), modify Article 2 of the Decision
to reduce further or cancel the fine imposed on ADM;

The applicant further claims that there has been an infringe-
ment of the principle that reasons must be stated. The
Commission’s conclusion that the NOx emission rights trading

(iv)

in the alternative to (ii) and (iii), refer the case back to the
CFI for judgment in accordance with the judgment of the
ECJ as to the law;

C 275/34

EN

Official Journal of the European Union

15.11.2003

(v)

in any event, order that the Commission bear its own
costs and pay ADM’s costs relating to the proceedings
before the CFI and the ECJ.

Pleas in law and main arguments

The grounds relied upon by the Appellants are as follows:

(1)

the CFI infringes the principle of non-retroactivity by
upholding the Commission’s retroactive application of
the Guidelines on Fines;

(2)

the CFI infringes the principle of equality:

(a)

by upholding the Commission’s discrimination as
to the method of calculation of fines applied to
contemporaneous competition law infringements
depending on whether the Commission adopts its
decision before or after publication of the Guide-
lines;

(b)

by upholding an equal starting point for the fine on
ADM and Ajinomoto, notwithstanding Ajinomoto’s
market share in the EEA is almost twice the size of
ADM’s;

(3)

the CFI infringes the principle of ne bis in idem by holding
that the Commission is not required to set off or take
into account fines paid by ADM to other authorities in
respect of the same actions;

(4)

the CFI infringes the duty to state reasons:

(a)

in finding that the Commission is not required to
take account of fines paid by ADM in third countries
notwithstanding that the Commission’s fine is based,
inter alia, on ADM’s global turnover and therefore
penalises ADM on the basis of its sales in countries
where ADM has already been fined;

(5)

(6)

(7)

the CFI distorts the evidence by finding that the Com-
mission has proven actual economic impact as the
evidence in question does not analyse price levels absent
collusion and therefore cannot show that prices were
higher than they otherwise would have been;

the CFI infringes the principle that the Commission must
follow self-imposed rules by permitting the Commission
to infringe the Guidelines;

the CFI infringes the principle of proportionality, as
interpreted by the ECJ and CFI, which requires that fines
bear some relationship to relevant turnover.

(1) OJ C 316, 4.11.2002, p. 32.
(2) 2001/418/EC: Commission Decision of 7 June 2000 relating to a
proceeding pursuant to Article 81 of the EC Treaty and Article 53
of the EEA Agreement (Case COMP/36.545/F3 Amino Acids)
(Text with EEA relevance) (OJ L 152, 7.6.2001, p. 24).

Reference for a preliminary ruling by the Helsingin
Hallinto-oikeus by order of that Court of 22 September
2003 in the case brought by E. Gavrielides Oy

(Case C-398/03)

(2003/C 275/51)

Reference has been made to the Court of
Justice of the
European Communities by order of the Helsingin Hallinto-
oikeus (Helsinki Administrative Court) of 22 September 2003,
received at the Court Registry on 24 September 2003, for a
preliminary ruling in the case brought by E. Gavrielides Oy on
the following questions:

(b)

in finding that the fine is reasonable notwithstanding
the Commission’s failure to take into account ADM’s
EEA lysine sales;

Is Article 1(1) of Council Directive 90/642/EEC of 27 Novem-
ber 1990 (1) on the fixing of maximum levels for pesticide
residues in and on certain products of plant origin, including
fruit and vegetables, as subsequently amended, to be interpret-
ed as meaning that the directive applies to leaves of the vine?