CELEX: C2003/275/50
Language: en
Date: 2003-11-15 00:00:00
Title: 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

15.11.2003             EN                       Official Journal of the European Union                                             C 275/33
The applicant claims that the Court should:                             scheme constitutes State aid and must therefore be approved
                                                                        by the Commission is not substantiated by the explicit and
1.    Annul Commission Decision SG (2003) D/230248 of                   coherent statement of reasons required for such a conclusion.
      26 June 2003 concerning Aid measure No N 35/2003
      relating to tradeable NO x emission rights in so far as the
      Commission takes the view in that decision that the               (1) OJ L 213, 30.7.1998, p. 13.
      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
                                                                        Appeal brought on 24 September 2003 by Archer Daniels
                                                                        Midland Company and Archer Daniels Midland Ingredi-
The applicant, namely the Kingdom of the Netherlands,                   ents Limited against the judgment delivered on 9 July
notified the Commission under Article 88(3) EC of the ‘NOx              2003 by the Fourth Chamber of the Court of First
emission rights trading scheme’. It requested a decision by the         Instance of the European Communities in case T-224/
Commission that that scheme ‘does not constitute aid’ within            00 (1) between Archer Daniels Midland Company and
the meaning of Article 4(2) of Regulation No 659/99/EC (OJ              Archer Daniels Midland Ingredients Limited and the
1999 L 83, p. 1). By the scheme, the Netherlands Government                      Commission of the European Communities
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                                       (Case C-397/03 P)
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                                     (2003/C 275/50)
down a national NO x 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            An appeal against the judgment delivered on 9 July 2003 by
measure is a valuable contribution to Community environmen-             the Fourth Chamber of the Court of First Instance of the
tal policy.                                                             European Communities in case T-224/00 between Archer
                                                                        Daniels Midland Company and Archer Daniels Midland
                                                                        Ingredients Limited and the Commission of the European
Although the Netherlands Government welcomes the fact that              Communities, was brought before the Court of Justice of the
the European Commission has not objected to the measure,                European Communities on 24 September 2003 by Archer
notified by it on a precautionary basis, it seeks, by this action,      Daniels Midland Company, established in Decatur, Illinois
annulment of the Decision in so far as the Commission                   (United States of America) and Archer Daniels Midland
concludes therein that the notified measure constitutes State           Ingredients Limited, established in Erith (United Kingdom),
aid. The Netherlands Government takes the view that it does             represented by C.O. Lenz, L. Martin Alegi, E.W. Batchelor and
not in any way constitute aid.                                          M. Garcia, lawyers, with an address for service in Luxembourg.
In support of its action, the Netherlands Government submits            The Appellants claim that the Court should:
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               (i)   set aside the judgment in so far as it dismisses the
emission rights are financed entirely by private funds. Any                   application brought by ADM in respect of the Decision (2);
profit made by undertakings on the sale of credits does not
arise from the allocation of rights by the State but from the           (ii) annul Article 2 of the Decision in so far as it pertains to
undertakings’ own earnings made as a result of above-                         ADM;
standard performance. The undertakings are not placed at any
advantage. There is therefore no question of aid distorting
competition or affecting trade.                                         (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-           (iv) in the alternative to (ii) and (iii), refer the case back to the
ment of the principle that reasons must be stated. The                        CFI for judgment in accordance with the judgment of the
Commission’s conclusion that the NOx emission rights trading                  ECJ as to the law;
 ---pagebreak--- C 275/34                EN                         Official Journal of the European Union                                          15.11.2003
(v) in any event, order that the Commission bear its own                   (5) the CFI distorts the evidence by finding that the Com-
      costs and pay ADM’s costs relating to the proceedings                      mission has proven actual economic impact as the
      before the CFI and the ECJ.                                                evidence in question does not analyse price levels absent
                                                                                 collusion and therefore cannot show that prices were
                                                                                 higher than they otherwise would have been;
                                                                           (6) the CFI infringes the principle that the Commission must
                                                                                 follow self-imposed rules by permitting the Commission
                                                                                 to infringe the Guidelines;
Pleas in law and main arguments
                                                                           (7) the CFI infringes the principle of proportionality, as
                                                                                 interpreted by the ECJ and CFI, which requires that fines
The grounds relied upon by the Appellants are as follows:                        bear some relationship to relevant turnover.
(1) the CFI infringes the principle of non-retroactivity by                (1) OJ C 316, 4.11.2002, p. 32.
      upholding the Commission’s retroactive application of                (2) 2001/418/EC: Commission Decision of 7 June 2000 relating to a
      the Guidelines on Fines;                                                 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).
(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;
                                                                           Reference for a preliminary ruling by the Helsingin
      (b)   by upholding an equal starting point for the fine on           Hallinto-oikeus by order of that Court of 22 September
            ADM and Ajinomoto, notwithstanding Ajinomoto’s                        2003 in the case brought by E. Gavrielides Oy
            market share in the EEA is almost twice the size of
            ADM’s;
                                                                                                    (Case C-398/03)
(3) the CFI infringes the principle of ne bis in idem by holding
      that the Commission is not required to set off or take
                                                                                                    (2003/C 275/51)
      into account fines paid by ADM to other authorities in
      respect of the same actions;
(4) the CFI infringes the duty to state reasons:
                                                                           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,
      (a)   in finding that the Commission is not required to              received at the Court Registry on 24 September 2003, for a
            take account of fines paid by ADM in third countries           preliminary ruling in the case brought by E. Gavrielides Oy on
            notwithstanding that the Commission’s fine is based,           the following questions:
            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;
                                                                           Is Article 1(1) of Council Directive 90/642/EEC of 27 Novem-
                                                                           ber 1990 (1) on the fixing of maximum levels for pesticide
      (b)   in finding that the fine is reasonable notwithstanding         residues in and on certain products of plant origin, including
            the Commission’s failure to take into account ADM’s            fruit and vegetables, as subsequently amended, to be interpret-
            EEA lysine sales;                                              ed as meaning that the directive applies to leaves of the vine?