Archer Daniels Midland Co. v Commission of the European Communities.
Date: 2009-07-09
68. In accordance with the Court of Justice’s settled case-law, referred to by the Court of First Instance in paragraph 434 of the judgment under appeal, provided that the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined (see to that effect, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission  [2005] ECR I‑5425, paragraph 428 and Joined Cases C‑101/07 P and C‑110/07 P Coop de France Bétail and Viande  v Commission  [2008] ECR I‑0000, paragraph 49).
69. Moreover, it is apparent from the case‑law that to oblige the Commission to give to undertakings under investigation specific indications of the level of the contemplated fines at the stage of the statement of objections would in effect require it inappropriately to anticipate its final decision (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission  [1983] ECR 1825, paragraph 21).
84. It should be recalled that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings (see, in particular, Case C‑328/05 P SGL Carbon v Commission  [2007] ECR I‑3921, paragraph 70).
85. Observance of the rights of the defence requires, in particular, that the undertaking under investigation has been afforded the opportunity during the administrative procedure to make known its views on the truth and relevance of the facts alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (see Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission  [1983] ECR 1825, paragraph 10; Case C‑407/04 P Dalmine v Commission  [2007] ECR I‑829, paragraph 44; and SGL Carbon v Commission , paragraph 71).
86. It is, inter alia, the statement of objections that allows the undertakings under investigation to acquaint themselves with the evidence which the Commission has at its disposal and to render the rights of the defence fully effective (see, to that effect, Joined Cases C 238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 315 and 316, and also 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, paragraphs 66 and 67).
87. In this regard, that statement must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure (see Musique Diffusion française and Others v Commission , paragraph 14).
105. 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 (see Case C‑510/06 P Archer Daniels Midland v Commission  [2009] ECR I‑0000, paragraph 149).
118. Second, under Section E of that notice, it is only on its adoption of the final decision that the Commission determines whether or not the conditions set out in Sections B, C and D of that notice are met. Accordingly, the Court of First Instance did not err in law in holding that the Commission could not give the appellant any precise assurance that any reduction of fine would be granted in the phase of the procedure prior to the adoption of the final decision.
125. In this respect, first, although the actual impact of the infringement on the market is a factor to take into consideration when assessing the gravity of that infringement, it is one criterion among others, namely the nature of the infringement and the size of the geographic market. Similarly, the Guidelines state that that actual impact on the market is to be taken into account only where this can be measured.