British Sugar plc v Commission of the European Communities.
Date: 2004-04-29
27. The Court of First Instance was right to point out, in paragraph 78 of the judgment under appeal, that, for an agreement between undertakings or a concerted practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market between the Member States (see Case 42/84 Remia  v Commission  [1985] ECR 2545, paragraph 22).  Thus , the effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive (see Case C-250/92 DLG [1994] ECR I-5641, paragraph 54, and Bagnasco , cited above, paragraph 47).
28. Furthermore, as the Court of First Instance pointed out in paragraph 79 of the judgment under appeal, the fact that a cartel relates only to the marketing of products in a single Member State is not sufficient to exclude the possibility that trade between Member States might be affected. Since the market concerned is susceptible to imports, the members of a national price cartel can retain their market share only if they defend themselves against foreign competition (see, in particular, Belasco , paragraphs 33 and 34).
33. Since, in its action before the Court of First Instance, British Sugar did not raise any plea that the Commission’s definition of the market was irregular, nor, more precisely, that its analysis of the retail sugar sub-market was irregular, the Court finds that this argument is based on new factors which were not put forward at first instance.  Therefore, under Article 113(2) of the Rules of Procedure, they are inadmissible in the context of this appeal (see Case C-450/98 P IECC v Commission [2001] ECR I-3947, paragraph 36).
47. It should be recalled that the Court of First Instance alone has jurisdiction to examine how in each particular case the Commission appraised the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 85 of the Treaty and Article 15 of Regulation No 17 and, second, to consider whether the Court of First Instance responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced (see, in particular, Baustahlgewebe , paragraph 128).
48. Concerning the allegedly disproportionate nature of the fine, it should be remembered that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law (Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 31; Baustahlgewebe , paragraph 129).
49. This plea must therefore be declared inadmissible in so far as it seeks a general re-examination of fines ( Baustahlgewebe , paragraph 129).