Archer Daniels Midland Co. v Commission of the European Communities.
Date: 2009-03-19
59. It is clear from the case-law referred to by the Court of First Instance in paragraph 46 of the judgment under appeal that undertakings involved in an administrative procedure in which fines may be imposed must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. That is true not only where the Commission raises the level of the amount of fines by imposing fines in individual decisions but also where that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the 1998 Guidelines ( Dansk Rørindustri and Others  v Commission , paragraphs 229 and 230).
60. In the present case, the Commission applied the 1998 Guidelines to set the amount of the fine imposed on ADM. On the one hand, the 1998 Guidelines lay down rules of conduct from which the Commission cannot depart without being found to be in breach of general principles of law, such as equal treatment and the protection of legitimate expectations. On the other hand, they ensure legal certainty for the undertakings concerned by defining the method which the Commission has imposed on itself in order to set the amount of fines imposed under Article 15(2) of Regulation No 17 (see, to that effect, the judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa  v Commission and Council , paragraph 53).
61. As stated in paragraph 43 of the judgment under appeal, the main innovation in the 1998 Guidelines consists in taking as a starting point for the calculation a basic amount, determined on the basis of brackets of figures laid down for that purpose by the 1998 Guidelines; those brackets reflect the various degrees of gravity of infringements but, as such, bear no relation to the relevant turnover. The essential feature of that method is thus that fines are determined on a tariff basis, albeit one that is relative and flexible ( Dansk Rørindustri and Others  v Commission , paragraph 225).
63. That is what follows both from Article 15(2) of Regulation No 17, which adopts, as criteria for setting the amount of the fine, only the gravity and the duration of the infringement and, essentially, from Musique Diffusion française and Others  v Commission , which is relied on by the appellant, where the Court stated, in paragraph 106, that in assessing the gravity of an infringement for the purpose of fixing the amount of the fine the Commission must take into consideration not only the particular circumstances of the case but also the context in which the infringement occurs and must ensure that its action has the necessary deterrent effect.
71. Secondly, it should be noted as a preliminary remark that, according to the case-law of the Court, in setting the amount of fines, regard must be had to the duration of the infringements and to all the factors capable of affecting the assessment of the gravity of those infringements (see Musique Diffusion française and Others  v Commission , paragraph 129, and Dansk Rørindustri and Others  v Commission , paragraph 240).
73. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the Community (see, to that effect, Musique Diffusion française and Others  v Commission , paragraph 129, and Dalmine  v Commission , paragraph 130).
74. In that context, it is permissible, for the determination of the fine, to take into account both the undertaking’s overall turnover, which is an indication, however approximate and imperfect, of the size of the undertaking and its economic strength, and that part of the turnover which derives from the goods which are the subject of the infringement and which therefore is capable of giving an indication of the scale of the infringement. It is important not to confer on one or the other of those figures an importance which is disproportionate in relation to other factors to be assessed and, consequently, the fixing of an appropriate fine cannot be the result of a simple calculation based on the turnover from sales of the product concerned (see, to that effect, Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission , paragraph 100).
80. It is settled case-law that it is not for the Court of Justice, in the context of an appeal, to call in question the assessment of the facts by the Court of First Instance, which alone has jurisdiction to review how in each particular case the Commission has appraised the gravity of unlawful conduct (see, to that effect, Technische Unie  v Commission , paragraph 196).
82. As regards the fourth part of that ground, the Court of First Instance recalled, in paragraphs 108 to 110 of the judgment under appeal, the settled case-law that the Commission’s practice in previous decisions does not serve as a legal framework for fines imposed in competition matters, since the Commission enjoys a wide discretion in the area of setting fines and is not bound by assessments which it has made in the past ( Dansk Rørindustri and Others  v Commission , paragraphs 209 to 213).
105. In that regard, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, to that effect, Case C‑413/06 P Bertelsmann and Sony Corporation of America  v Impala  [2008] ECR I‑0000, paragraph 29).
119. In accordance with settled case-law, to prove to the requisite standard that an undertaking participated in a cartel, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded, without manifestly opposing them. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 81).
120. Consequently, it is indeed the understanding which the other participants in a cartel have of the intention of the undertaking concerned which is of critical importance when assessing whether that undertaking sought to distance itself from the unlawful agreement. Accordingly, the Court of First Instance was fully entitled, in paragraph 247 of the judgment under appeal, to rule that the mere fact that the appellant had left the meeting of 4 October 1994 could not, in itself, be regarded as a public distancing from the cartel at issue and that it was for ADM to provide evidence that the members of the cartel considered that ADM was ending its participation.
149. To recognise an attenuating circumstance in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement could encourage undertakings to continue a secret agreement as long as possible, in the hope that their conduct would never be discovered, while knowing that if their conduct were discovered they could expect, by then curtailing the infringement, their fine to be reduced. Such a recognition would deprive the fine imposed of any deterrent effect and would undermine the effectiveness of Article 81(1) EC.