Archer Daniels Midland Co. and Archer Daniels Midland Ingredients Ltd v Commission of the European Communities.
Date: 2006-05-18
20. A change in an enforcement policy, in this instance the Commission’s general competition policy in the matter of fines, especially where it comes about as a result of the adoption of rules of conduct such as the Guidelines, may have an impact from the aspect of the principle of non-retroactivity ( Dansk Rørindustri and Others  v Commission , paragraph 222).
21. However, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy (Joined Cases 100/80 to 103/80 Musique Diffusion Française and Others  v Commission  [1983] ECR 1825, paragraph 109, and Dansk Rørindustri and Others  v Commission , paragraph 227).
22. It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation in the fact that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines ( Dansk Rørindustri and Others  v Commission , paragraph 228).
23. Consequently, in the present case, the undertakings 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 ( Dansk Rørindustri and Others  v Commission , paragraph 229).
24. That is true not only where the Commission raises the level of the amount of fines in imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the Guidelines ( Dansk Rørindustri and Others  v Commission , paragraph 230).
25. As in the Dansk Rørindustri and Others  v Commission case, it must be concluded that the Guidelines and, in particular, the new method of calculating fines contained therein, on the assumption that this new method had the effect of increasing the level of the fines imposed, were reasonably foreseeable for undertakings such as the appellants at the time when the infringements concerned were committed and that, in applying the Guidelines in the contested decision to infringements committed before they were adopted, the Commission did not breach the principle of non-retroactivity ( Dansk Rørindustri and Others  v Commission , paragraphs 231 and 232).
31. For that reason, in paragraph 110 of Musique Diffusion Française and Others  v Commission , the Court of Justice rejected a plea based, inter alia, on the argument that the method used by the Commission was discriminatory because the facts of that case had arisen at the same time as those of other cases in which the Commission had adopted a decision before that in the present case, imposing significantly lower fines.
34. As is clear from paragraphs 243 and 312 of Dansk Rørindustri and Others  v Commission , differentiation in the starting amounts of the fine on the basis of criteria other than the relevant turnover is permitted.
47. It should be borne in mind, as a preliminary point, that, in the context of 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 81 EC 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 ( Dansk Rørindustri and Others  v Commission , paragraph 244 and the case-law cited).
48. In the present case, in paragraph 98 of the judgment under appeal, the Court of First Instance pointed out that it is clear from paragraph 3 of Boehringer Mannheim  v Commission that the Court did not decide the question whether the Commission is required to set off a penalty imposed by the authorities of a non-member country where the facts with which the Commission charges an undertaking are the same as those alleged by the first authorities but that the Court regarded the identity of the facts alleged by the Commission and by the authorities of the non-member country as a precondition of that question.
57. In so far as the Court of First Instance found that the judgments in the United States and Canada applied to a larger group of agreements and concerted practices, it cannot be found that that Court distorted the evidence. The reference in paragraph 102 of the judgment under appeal to ‘judgments delivered in the United States and Canada [which] related to a larger group of agreements and concerted practices’ must be read in the light of paragraph 5 of Boehringer Mannheim  v Commission which refers to a ‘wider body of facts’ and to which the Court of First Instance referred in the preceding paragraph. It must therefore be understood as meaning that those judgments also apply to the cartel in respect of citric acid, which is not in issue in the contested decision.
60. It should be noted in that connection that the duty on the Court of First Instance under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice to state reasons for its judgments does not require the Court of First Instance to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the Court of Justice with sufficient material for it to exercise its power of judicial review (see, to that effect, 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 372).
85. It should be noted in this connection that the appraisal of the facts by the Court of First Instance does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see, in particular, Joined Cases C-280/99 P to C‑282/99 P Moccia Irme and Others  v Commission  [2001] ECR I-4717, paragraph 78).
91. It should be noted in that regard that, whilst rules of conduct designed to produce external effects, as is the case of the Guidelines, which are aimed at traders, may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (see, to that effect, Dansk Rørindustri and Others  v Commission , paragraphs 209 and 210).
100. According to the Court’s case-law, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. It is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, that the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly the case where the goods concerned account for only a small part of that figure ( Musique Diffusion Française and Others  v Commission , paragraph 121, and Dansk Rørindustri and Others v Commission , paragraph 243).
104. As regards Parker Pen  v Commission , it is clear from paragraph 94 thereof that the Court of First Instance merely applied the rules set out in paragraph 121 of Musique Diffusion Française and Others  v Commission , and set out in paragraph 100 of the present judgment.
105. Moreover, 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 for infringements of Community law ( Dansk Rørindustri and Others v Commission , paragraph 245 and the case-law cited).