Case C-511/06 P: Appeal brought on 15 December 2006 by Archer Daniels Midland Co. against the judgment of the Court of First Instance (Third Chamber) delivered on 27 September 2006 in Case T-59/02: Archer Daniels Midland Company v Commission of the European Communities
Date: 2007-03-10
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), appeal, chemical industry, dominant position, fine, infringement of EU law, organic acid

C 56/16

EN

Official Journal of the European Union

10.3.2007

— iv) in the alternative to (ii) and (iii), refer the case back to the

(a) in concluding that ADM's withdrawal is not supported

CFI for judgment of the ECJ as to the law;

by the evidence of other participants;

— 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.

(b) by finding that evidence of the June 1995 meeting was
contemporaneous note written by Roquette at
the
meeting.

Pleas in law and main arguments

The grounds relied upon Archer Daniels Midland Company
(hereinafter ‘ADM’) in this appeal are:

(1) the Court of First Instance (hereinafter ‘CFI’) infringes the

duty to give reasons:

(a) in rejecting ADM's plea that

the increase in fines
resulting from the Fines Guidelines was not necessary to
ensure the implementation of EC competition policy.

(b) by failing to respond to ADM's pleas that the evidence
would show lack of impact if the market was wider.

(2) the CFI errs in finding that the Commission satisfied the
Pioneer (1) test and justified the discretion to increase fines
generally and in this case;

(3) the CFI infringes the legal principles applicable to the calcu-
lation of fines by permitting the Commission to disregard
relevant EEA product turnover as an appropriate starting
point;

(1) Joined cases 100-103/80 SA Musique Diffusion Française and others

V Commission [1983] ECR 1825.

(2) OJ L 153, P.1.

Appeal brought on 15 December 2006 by Archer Daniels
Midland Co. against the judgment of the Court of First
Instance (Third Chamber) delivered on 27 September 2006
in Case T-59/02: Archer Daniels Midland Company v
Commission of the European Communities

(Case C-511/06 P)

(2007/C 56/29)

Language of the case: English

(4) the CFI infringes the principle that the Commission must

Parties

follow self-imposed rules:

(a) by holding that the Commission can prove impact on a
market without needing to respond to ADM's pleas that
no relevant economic market was proven;

(b) by permitting the Commission to disregard termination
of the infringement as a relevant attenuating circum-
stances;

(5) the CFI infringes the principle of equal treatment by finding
that there were relevant factors distinguishing the far smaller
fines imposed in Zinc Phosphates (2), a directly comparable
case;

(6) the CFI reverses the burden of proof by requiring ADM to
show that prices ‘but for’ the cartel would have been the
same;

(7) the CFI infringes Article 81 EC treaty:

(a) by misapplying the law of cartels;

(b) by concluding that

the conduct at

the June 1995

meeting in Anaheim was anticompetitive;

(8) the CFI distorts the evidence:

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

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

The applicant claims that the Court should:

— (i) set aside the Judgment in so far as it dismisses the appli-

cation brought by ADM in respect of the Decision;

— (ii) annul Article 3 of the Decision insofar as it pertains to

ADM,

— (iii) in the alternative to the point (ii), modify Article 3 of
the Decision reduce further or cancel the fine imposed on
ADM,

— (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;

10.3.2007

EN

Official Journal of the European Union

C 56/17

— (v) in any event, order that he Commission bear its own
costs and pay ADM's costs relating to the proceedings
before the CFI and the ECJ.

Appeal brought on 18 December 2006 by Armacell Enter-
prise GmbH against the judgment of the Court of First
Instance (Fifth Chamber) delivered on 10 October 2006 in
Case T-172/05: Armacell Enterprise GmbH v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

Pleas in law and main arguments

(Case C-514/06 P)

(2007/C 56/30)

The applicant submits that:

Language of the case: English

1. The Court of First Instance (CFI) misapplied the law on the
rights of defence in determining Archer Daniels Midland
Company (ADM) was given fair warning of the facts on
which the Commission found it to be a leader;

Parties

2. The CFI infringed essential procedural safeguards by permit-
ting the Commission to rely on the FBI's summary of an
interview with an ADM employee as evidence of leadership;

3. The CFI distorted the evidence by stating that Cerestar's state-

ment as to ADM's leadership is corroborated;

4. The CFI failed to give reasons for dismissing ADM's plea that
Cerestar's failure tp identify positively or provide details of
Sherpa meetings is fatal to Cerestar's statement that ADM led
those meetings;

5. the CFI erroneously concluded that ADM is estopped from
disputing the accuracy of Cerestar's statement because it did
not do so during the administrative procedure;

6. The CFI infringed the principle that the Commission must

follow self-imposed rules by:

(a) permitting the Commission to disregard termination of
the infringement as a relevant attenuating circumstance;

(b) holding it that the Commission had proven impact on a

market without defining the relevant market;

7. the CFI infringed the principle of legitimate expectations in
applying the Leniency Notice by concluding that ADM was a
leader and could not qualify for Section B leniency;

8. the CFI misapplied the law on legitimate expectations in
finding that
the Commission's representations during the
administrative procedure did not give rise to a justified
expectation that ADM would receive a reduction in penalty
under Section B of the Leniency Notice.

Appellant: Armacell Enterprise GmbH (represented by: O.
Spuhler, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the
Internal Market

Form of order sought

The applicant claims that the Court should:

— set aside the decision of the Court of First Instance dated

10 October 2006 in case T-172/05;

— order the Office for Harmonisation in the Internal Market to
pay the costs of the proceedings before the Court of Justice;

— annul the decision of the First Board of Appeal of the Office
Internal Market dated

the Harmonization in the

of
23 February 2005 in case R 552/2004-1;

— order the Office of Harmonization in the Internal Market to
pay the costs of the proceedings before the Court of First
Instance as well as the costs of the proceedings before the
Office for Harmonization in the Internal Market.

Pleas in law and main arguments

The applicant submits that the contested decision of the Court
of First Instance is based on a misinterpretation of the statutory
requirement of trade mark similarity according to article 8(1)(b)
of Council regulation (EC) no 40/94 (1) of 20 December 1993
on the Community trade mark (hereinafter ‘CMTR’). The appli-
cant also submits that the failure of the Court of First Instance
to consider the question of trade mark similarity from the point
of view of the English-speaking public constitutes a violation of
an essential procedural requirement within the meaning of
article 63(2) CTMR.

(1) OJ L 11, p. 1.