«(Competition – Cartel – Lysine – Guidelines for calculating the amount of fines – Applicability – Seriousness and duration of the infringement – Turnover – Mitigating circumstances)»

1.. Community law – Principles – Protection of legitimate expectations – Conditions – Protection against exercise by the Commission of its power to raise the level of fines penalising infringements of the competition rules – None (Council Regulation No 17)

2.. Community law – General principles of law – Non-retroactivity of criminal provisions – Scope – Fines imposed for infringements of the competition rules – Included – Infringement by reason of the application of the Guidelines for the calculation of fines to an infringement prior to their introduction – None (European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 7; Council Regulation No 17, Art. 15(2))

3.. Competition – Fines – Amount – Commission's margin of discretion – Possibility of increasing the fines in order to strengthen their deterrent effect (Council Regulation No 17, Art. 15)

4.. Competition – Fines – Amount – Determination thereof – Guidelines adopted by the Commission – Obligation on the Commission to comply with them (Council Regulation No 17, Art. 15(2))

5.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Taking into account of the total turnover of the undertaking concerned and the turnover achieved by sales of goods which were the subject-matter of the infringement – Limits (Council Regulation No 17, Art. 15(2))

6.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Measure of the effective capacity to cause damage on the relevant market – Relevance of the market share held by the undertaking concerned (Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

7.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Measure of the actual impact on competition of the infringing conduct of each undertaking – Relevance of the turnover achieved with the products forming the subject-matter of a restrictive practice (Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

8.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Mitigating circumstances – Passive or follow-my-leader role of the undertaking (Council Regulation No 17, Art. 15)

9.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Mitigating circumstances – Agreement not implemented in practice – Assessment at the level of the individual conduct of each undertaking (Council Regulation No 17, Art. 15)

10.. Competition – Fines – Amount – Appropriateness – Review by the Court – Factors which may be taken into account by the Community judicature – Information not contained in the decision imposing the fine and not required in the statement of reasons – Included (Arts 229 EC, 230 EC and 253 EC; Council Regulation No 17, Art. 17)

11.. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision imposing fines – Indication of the factors by which the Commission assessed the seriousness and duration of the infringement – Sufficient indication (Art. 253 EC; Council Regulation No 17, Art 15(2), second subpara.)

12.. Competition – Fines – Amount – Determination thereof – Method of calculation defined by guidelines laid down by the Commission – Application of percentages to the basic amount of the fine (Council Regulation No 17, Art. 15(2))

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber) 9 July 2003 (1)

((Competition – Cartel – Lysine – Guidelines on the method of setting fines – Applicability – Gravity and duration of the infringement – Turnover – Mitigating circumstances))

In Case T-220/00,

applicant,

v

defendant,

APPLICATION for partial annulment of Commission Decision 2001/418/EC of 7 June 2000 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/36.545/F3 ─ Amino Acids) (OJ 2001 L 152, p. 24) or a reduction in the fine imposed on the applicants,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: M. Vilaras, President, V. Tiili and P. Mengozzi, Judges,

Registrar: D. Christensen, Administrator,

having regard to the written procedure and further to the hearing on 24 April 2002,

gives the following

...

1.Applicability of the Guidelines

Arguments of the parties

Breach of the principle of the protection of legitimate expectations

Breach of the principle of non-retroactivity of penalties

Findings of the Court

Breach of the principle of the protection of legitimate expectations

Breach of the principle of non-retroactivity of penalties

2.The gravity of the infringement

Arguments of the parties

Breach of the principle of proportionality

Breach of the principle of equal treatment

Findings of the Court

Breach of the principle of proportionality

Breach of the principle of equal treatment

3.The duration of the infringement

Arguments of the parties

The excessive increase

The exclusion of Cheil from cartel meetings for four months and the non-participation of Cheil in the agreements on quantities and information exchange for eighteen months

Findings of the Court

4.Mitigating circumstances

Arguments of the parties

The passive role played by Cheil

Non-implementation in practice of the agreements

─ The price agreements

─ The quota agreements

─ The agreement for the exchange of information on sales volumes

Findings of the Court

The passive role played by Cheil

Non-implementation in practice of the agreements

5.The statement of reasons for the Decision

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby:

Vilaras

Tiili

Mengozzi

Delivered in open court in Luxembourg on 9 July 2003.

H. Jung

M. Vilaras

Registrar

President