Case C-359/01 P

British Sugar plc

v

Commission of the European Communities

(Appeal – Competition – Sugar market – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Agreement – Effect on trade between Member States – Fine – Proportionality)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Effect on trade between Member States – Criteria for assessment

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

2. Competition – Agreements, decisions and concerted practices – Effect on trade between Member States – Agreement covering the market of a single Member State – Agreement organising a common defence against foreign competition

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

3. Appeals – Jurisdiction of the Court of Justice – Review of the Commission’s assessment of the seriousness of anti-competitive conduct in fixing the amount of a fine – Excluded – Review limited to verification that the Court of First Instance took into consideration the essential factors for assessing the gravity of the infringement and of all the arguments raised against the fine imposed

(EC Treaty, Art. 85 (now Art. 81 EC); EC Statute of the Court of Justice, Art. 51; Council Regulation No 17, Art. 15)

4. Appeals – Jurisdiction of the Court of Justice – Challenge, on grounds of fairness, of the assessment by the Court of First Instance of the amount of the fines imposed on undertakings – Excluded

(EC Statute of the Court of Justice, Art. 51)

1. 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. 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 para. 27)

2. 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 para. 28)

3. In the case of an annulment action against a Commission decision imposing a fine for a breach of the competition rules, 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 (now 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.

(see para. 47)

4. 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

(see para. 48)

JUDGMENT OF THE COURT (Fifth Chamber) 29 April 2004 (1)

(Appeal – Competition – Sugar market – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Agreement – Effect on trade between Member States – Fine – Proportionality)

In Case C-359/01 P,

applicant,

appeal against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-202/98, T-204/98 and T-207/98

the other parties to the proceedings being:

applicants at first instance,

defendant at first instance,

THE COURT (Fifth Chamber),,

composed of P. Jann, acting for the President of the Fifth Chamber, C.W.A Timmermans and S. von Bahr (Rapporteur), Judges,

Advocate General: C. Stix-Hackl,

after hearing oral argument from the parties at the hearing on 10 July 2003, at which British Sugar plc was represented by T. Sharpe and K. Fisher, solicitor, and the Commission by K. Wiedner and N. Khan,

after hearing the Opinion of the Advocate General at the sitting on 21 October 2003,

gives the following

‘…

A. Gravity

In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market.

…’

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Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT (Fifth Chamber)

hereby

Jann

Timmermans

von Bahr

Delivered in open court in Luxembourg on 29 April 2004.

R. Grass

V. Skouris

Registrar

President