Case T‑43/02

Jungbunzlauer AG

v

Commission of the European Communities

(Competition – Agreements, decisions and concerted practices – Citric acid – Article 81 EC – Fine – Article 15(2) of Regulation No 17 – Attributability of conduct to a subsidiary – Principle of legality of penalties – Guidelines on the method of setting fines – Principle of proportionality – Ne bis in idem principle – Right of access to the file)

Judgment of the Court of First Instance (Third Chamber), 27 September 2006

Summary of the Judgment

1. Community law – General principles of law – Legal certainty

2. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

3. Competition – Community rules – Infringements – Attribution

(Art. 81(1) EC)

4. Competition – Fines – Amount – Determination – Criteria – Actual impact on the market

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1A, first para.)

5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Council Regulation No 17, Art. 15)

6. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Council Regulation No 17, Art. 15(2))

7. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Council Regulation No 17, Art. 15(2))

8. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

9. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Council Regulation No 17, Art. 15(2))

10. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Attenuating circumstances

(Council Regulation No 17, Art. 15; Commission Notice 98/C 9/03, Section 3)

11. Competition – Fines – Community penalties and penalties imposed in a Member State or a non-member State for infringement of national competition law

(Council Regulation No 17, Art. 15)

12. Competition – Fines – Amount – Community penalties and penalties imposed in a Member State or non-member country for breach of national competition law

(Council Regulation No 17, Art. 15)

13. Competition – Fines – Amount – Determination

(Art. 81(1) EC and 82 EC; EEA Agreement, Art. 53(1); Council Regulation No 17, Art. 15(2))

14. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file

(Art. 81(1) EC; Council Regulation No 17, Art. 19(1))

(Art. 229 EC)

1. The principle of legality is a corollary to the principle of legal certainty, which is a general principle of Community law which requires, in particular, that where a Community rule imposes or permits the imposition of penalties, that rule must be clear and precise, so that the persons concerned may be able to ascertain unequivocally what their rights and obligations are and take steps accordingly.

That principle, which forms part of the general principles of Community law underlying the constitutional traditions common to the member States and which has been enshrined in various international treaties, in particular Article 7 of the European Convention on Human Rights in relation to criminal offences and penalties, must be observed in relation to provisions of a criminal nature as well as specific administrative instruments imposing or permitting the imposition of administrative penalties. It applies not only to provisions establishing the elements which constitute an offence, but also to those specifying the consequences arising from an offence.

In that regard, it follows from Article 7(1) of that convention that the law must clearly define crimes and the relevant penalties. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation, what acts and omissions will make him criminally liable.

It is clear from the case-law of the European Court of Human Rights that Article 7(1) of the convention does not require the terms of the provisions by virtue of which those fines are imposed to be so precise that the potential consequences of an infringement of those provisions should be foreseeable with absolute certainty. According to that case-law, the existence of vague terms in a provision does not necessarily entail a violation of Article 7. Accordingly, the concept of law used in Article 7 is the same as that found in other articles of the convention. In addition, the wording of many statutes is not absolutely precise and, because of the need to avoid excessive rigidity and to keep pace with changing circumstances, many laws are inevitably couched in terms which, to a greater or lesser degree are vague and their interpretation and application depend on practice. However, every law presupposes qualitative conditions, including, inter alia, those of accessibility and foreseeability. The fact that a law confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference. Finally, in addition to the actual wording of the law, the European Court of Human Rights takes account of the settled and published case-law when deciding whether the concepts used are definite or not. Furthermore, taking account of the constitutional traditions common to the Member States does not justify the Court of First Instance giving a different interpretation of the principle of legality, which is a general principle of Community law.

(see paras 71-73, 75-81)

2. In competition matters, the fact that undertakings are not in a position to know in advance the exact level of the fines that the Commission will choose in each individual case is not such as to establish that Article 15(2) of Regulation No 17 is contrary to the principle of legality.

In order to avoid excessive prescriptive rigidity and to enable a rule of law to be adapted to the circumstances, a certain degree of unforeseeability as to the penalty which may be imposed for a given offence must be permitted. A fine subject to sufficiently circumscribed variation between the minimum and the maximum amounts which may be imposed for a given offence may therefore render the penalty more effective both from the viewpoint of its application and its deterrent effect.

In that regard, the Commission does not have an unlimited and excessive power of assessment with regard to setting fines for infringement of the competition rules, since it must adhere to the ceiling fixed by reference to the turnover of the undertaking concerned. In particular, the ceiling of 10% of the turnover of the undertaking concerned is reasonable, having regard to the interests defended by the Commission where infringements such as cartels occur. Furthermore, the question whether fines on the basis of Article 15(2) of Regulation No 17 are reasonable should not be considered in absolute terms, but in relative terms, that is to say, by reference to the offender’s turnover.

Similarly, the Commission must observe the general principles of law, particularly the principles of equal treatment and proportionality, as well as the criteria and the method of calculation to be used by it when setting fines.

In addition, on the basis of the criteria specified in Article 15(2) of Regulation No 17, the Commission has itself developed a decision-making practice which is public knowledge and is accessible. While it is true that the Commission’s previous decision-making practice is not binding as such on the Commission when determining the amount of a fine, nevertheless, by virtue of the principle of equal treatment, which is a general principle of law which must be observed by the Commission, the Commission cannot treat comparable situations differently or different situations in the same way, unless such treatment is objectively justified.

In addition, with a view to transparency and to increase legal certainty for the undertakings concerned, the Commission has published guidelines setting out the calculation method which it imposes on itself in each particular case.

In accordance with Article 253 EC, the Commission must state the reasons, particularly with regard to the amount of the fine and the method of calculation. The statement of reasons must show the Commission’s reasoning clearly and unequivocally so that those concerned can know the justification for the measure taken in order to decide whether it would be expedient to refer the matter to a Community court and, as the case may be, so that the Court can exercise its power of review.

(see paras 82-91)

3. In prohibiting undertakings, inter alia, from entering into agreements or participating in concerted practices which may affect trade between member States and have as their object or effect the prevention, restriction or distortion of competition within the common market, Article 81(1) EC is aimed at economic units made up of a combination of personal and physical elements which can contribute to the commission of an infringement of the kind referred to in that provision.

Where, between the time of the infringement and the time the undertaking in question must answer for it, the company responsible for the group’s activities transfers its activities to another member of the group, the fact that the former company continues to exist as a legal entity does not exclude the possibility that, with reference to Community competition law, the latter becomes responsible for the acts of the former.

(see paras 122, 132)

4. Pursuant to the first paragraph of Section 1A of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, when calculating a fine according to the gravity of the infringement, the Commission is to take account of its actual impact on the market, where this can be measured. The measurable impact of the cartel on the market must be regarded as sufficiently demonstrated if the Commission is able to provide specific and credible indicia showing, with reasonable probability, that the cartel had an impact on the market.

The examination of the impact of a cartel on the market necessarily entails making assumptions. In that context, the Commission must, in particular, consider what the price of the product would have been without the cartel. When examining the causes of actual price movements, it is hazardous to speculate as to the respective contribution of each cause. Account must be taken of the objective fact that, because of the price cartel, the parties have precisely surrendered their freedom to compete by means of prices. Therefore an assessment of the influence of factors other than the voluntary surrender of that freedom by the parties to the cartel is necessarily based on reasonable probabilities which cannot be quantified exactly.

Consequently, if the criterion in the first paragraph of Section 1A of the Guidelines is not be rendered practically ineffective, the Commission cannot be criticised for relying on the actual impact on the market of a cartel with an anti-competitive object, such as a cartel fixing prices or quotas, without quantifying that impact or without providing an assessment with supporting figures.

(see paras 151-155)

5. In competition matters, the burden of proving the existence of effects of the infringement on the market in question, which is borne by the Commission when it takes them into account for calculating the fine by reference to the gravity of the offence, is lighter than the burden of proof that it has when it must show the existence as such of an infringement in the case of a cartel. For the purpose of taking account of the actual effects of the cartel on the market, it is sufficient, according to that judgment, if the Commission ‘provides good reasons for taking them into account’.

(see para. 161)

6. In determining the gravity of the infringement, regard must be had to the legislative background and economic context of the conduct to which exception is taken. In that respect, in order to assess the actual impact of an infringement on the market, the Commission must refer to the competition which would normally have existed without the infringement.

On the one hand, it follows that, in the case of price cartels, it must be found – with a reasonable degree of probability – that the agreements actually enabled the parties concerned to reach a price level higher than that which would have prevailed without the cartel. On the other hand, it follows that, in making its assessment, the Commission must take into account all the objective conditions of the market concerned, having regard to the economic context and, if necessary, the legislative background. Where appropriate, account must be taken, where appropriate, of ‘objective economic factors’ showing that, given the ‘free play of competition’, the level of prices would not have moved in the same way as that of the prices applied.

(see paras 177-179)

7. The gravity of infringements of the competition rules has to be determined by reference to numerous factors, such as the particular circumstances of the case and its context, without there being a binding or exhaustive list of the criteria which must be applied.

Likewise, the criteria for assessing the gravity of an infringement may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed, the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the market. It follows that, on the one hand, it is permissible, for the purpose of fixing a fine, to have regard both to the overall 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 market share of the undertakings concerned on the market at issue, which gives an indication of the scale of the infringement. On the other hand, it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors and that the fixing of an appropriate fine cannot be the result of a simple calculation based on overall turnover.

(see paras 213-214, 227)

8. As regards setting the amount of the fines to be imposed on the various undertakings which participated in the same infringement of the competition rules, it is open to the Commission, in accordance with the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, not to set fines by reference to the turnover of each of the undertakings concerned in the relevant market, but to apply, as the starting point of its calculation for each undertaking, an absolute figure fixed according to the actual nature of the infringement, that figure then being adjusted for each undertaking on the basis of several factors.

(see para. 223)

9. The principle of proportionality requires that the measures adopted by Community institutions must not exceed what is appropriate and necessary for attaining the objective pursued.

In relation to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors.

The principle of proportionality in this context requires the Commission to set the fine proportionately to the factors taken into account to assess the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified.

(see paras 226-228)

10. At the third indent of Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, it is stated that the basic amount will be reduced where there are extenuating circumstances such as an ‘exclusively passive or “follow-my-leader” role in the infringement’.

The factors likely to reveal the passive role of an undertaking within a cartel include the significantly more sporadic nature of its participation in the meetings by comparison with the other members of the cartel and also its belated entry to the market where the infringement occurred, irrespective of the duration of its participation in the infringement and also the existence of express declarations to that effect made by representatives of other undertakings which participated in the infringement. In addition, ‘an exclusively passive role’ of a member of a cartel implies that it adopts a ‘low profile,’ that is to say, it does not actively participate in the making of the anti-competitive agreement or agreements.

It therefore does not suffice for the undertaking concerned, during certain periods of the cartel or in respect of certain agreements of the cartel, to have adopted a ‘low profile’. In that respect, convening meetings, proposing an agenda and distributing preparatory documents for meetings are incompatible with a passive role of follow-my-leader adopting a low profile. Such initiatives show favourable and active attitude of the undertaking concerned to the constitution, continuation and control of the cartel.

At the second indent of Section 3 of the Guidelines, it is stated that the fine will be reduced where there are extenuating circumstances in the case of non‑implementation in practice of the agreements. For that purpose, it is necessary to check whether the circumstances referred to by the undertaking are to establish that, during the period in which it was a party to the offending agreements, it actually declined to apply them by adopting competitive conduct on the market.

However, when the amount of a fine to be imposed is being determined, the fact that an undertaking proven to have participated in collusion on prices with its competitors did not behave on the market in the manner agreed with those competitors is not necessarily a matter which must be taken into account as an extenuating circumstance. An undertaking which, despite colluding with its competitors, follows a more or less independent policy in the market may simply be trying to exploit the cartel for its own benefit.

(see paras 251-252, 254-255, 257, 267-269)

11. The principle of ne bis in idem prohibits the same person from being sanctioned more than once for the same unlawful conduct in order to protect one and the same legal interest. The application of that principle is subject to three cumulative conditions: the identity of the facts, the unity of offender and the unity of legal interest protected.

Therefore, an undertaking may be made the defendant to two parallel sets of proceedings concerning the same infringement and, thus, incur concurrent sanctions, one imposed by the competent authority of the Member State in question, the other a Community sanction, to the extent that the two sets of proceedings pursue different ends and that the legal rules infringed are not the same.

It follows that the principle of ne bis in idem cannot, a fortiori, apply in a case where the procedures conducted and penalties imposed by the Commission on the one hand and by the authorities of a non-member State on the other clearly pursue different ends. The aim of the first is to preserve undistorted competition within the European Union and the European Economic Area, whereas the aim of the second is to protect the market of a non-member State. The condition of the unity of the legal interest protected, which is necessary for the principle of ne bis in idem to apply, is not fulfilled in such a case.

(see paras 285-287)

12. The possibility of concurrent sanctions, one Community, the other national, resulting from two parallel procedures pursuing different ends, the acceptability thereof deriving from the special system of sharing jurisdiction between the Community and the Member States with regard to cartels is subject to the principle of natural justice. This means that, when setting fines under Article 15 of Regulation No 17, the Commission must take account of penalties which have already been borne by the same undertaking for the same conduct, where they have been imposed for infringements of the cartel law of a Member State and, consequently, have been committed on Community territory.

However, the obligation to take account of the principle of natural justice follows, on the one and, from the close interdependence of the national markets of the Member States of the common market and, on the other, from the special system of the sharing of jurisdiction between the Community and the Member States with regard to cartels in the same territory.

(see paras 290-291)

13. The Commission’s power to impose fines on undertakings which intentionally or negligently commit an infringement of Article 81(1) EC or Article 82 EC is one of the means conferred on the Commission to enable it to carry out the task of supervision entrusted to it by Community law. That task encompasses the duty to pursue a general policy to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles.

It follows that the Commission has the power to decide the level of fines in order to reinforce their deterrent effect when infringements of a particular type, although established as being unlawful at the outset of Community competition practice, are still relatively frequent on account of the profit that certain of the undertakings concerned are able to derive from them.

The Commission’s aim of deterrence relates to the conduct of undertakings within the Community or the European Economic Area. Consequently, the deterrent effect of a fine imposed on an undertaking for infringing the Community competition rules cannot be assessed by reference solely to that undertaking’s particular situation or by reference to whether it has complied with the competition rules in non-member States outside the EEA.

(see paras 297-298, 300)

14. If the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other parties involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes incriminating evidence against the various parties alleged to have participated in the infringement.

It is for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence.

With regard to the non-disclosure of an exculpatory document, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission. It is sufficient for the undertaking to show that it would have been able to use the exculpatory document in its defence, in the sense that, had it been able to rely on it during the administrative procedure, it would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission’s assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine. In that context, the possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might – in the light of that evidence – have had a significance which ought not to have been disregarded.

(see paras 343-344, 351)

15. Where examination of the pleas raised by an undertaking against the legality of a Commission decision imposing on it a fine for breach of the Community competition rules has not brought any illegality to light, there are no grounds for the Court to exercise its unlimited jurisdiction in order to reduce the fine.

(see para. 386)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

27 September 2006 ?( 1 )

(Competition – Agreements, decisions and concerted practices – Citric acid – Article 81 EC – Fine – Article 15(2) of Regulation No 17 – Attribution of conduct to a subsidiary – Principle that penalties must be defined by law – Guidelines on the method of setting fines – Principle of proportionality – Ne bis in idem principle – Right of access to the file)

In Case T‑43/02,

Jungbunzlauer AG, established in Basle (Switzerland), represented by R. Bechtold, U. Soltész and M. Karl, lawyers,

applicant,

v

Commission of the European Communities, represented by P. Oliver, acting as Agent, and by H. Freund, lawyer,

defendant,

supported by

Council of the European Union, represented by E. Karlsson and S. Marquardt, acting as Agents,

intervener,

APPLICATION for, primarily, annulment of Commission Decision 2002/742/EC of 5 December 2001 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E‑1/36.604 – Citric acid) (OJ 2002 L 239, p. 18) and, in the alternative, reduction in the fine imposed on the applicant by that decision,

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

composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges,

Registrar: D. Christensen, Administrator,

having regard to the written procedure and further to the hearing on 24 May 2004,

gives the following

Judgment

Facts giving rise to the dispute

1 The applicant, Jungbunzlauer AG (‘Jungbunzlauer’ or ‘the applicant’), was formed in 1993 as a wholly-owned subsidiary of Jungbunzlauer Holding AG, all of whose shares are in turn held by Montana AG (‘the Jungbunzlauer group’). In the United States the group is represented by Jungbunzlauer International AG, a subsidiary of the Jungbunzlauer group. The head office of the group is at the offices of Jungbunzlauer in Basle (Switzerland). Before 1993 the group was managed by Jungbunzlauer GmbH, whose registered office was in Vienna (Austria).

2 The Jungbunzlauer group is engaged in the manufacture and marketing of ingredients used in the food and beverages industry, and the pharmaceutical and cosmetics industry, as well as for various other industrial applications. It is, inter alia, one of the world’s leading manufacturers of citric acid.

3 Citric acid is the most widely used acidulant and preservative in the world. It exists in different types and is used in a variety of applications, including in food and beverages, household detergents and cleaners, pharmaceuticals and cosmetics, and in various industrial processes.

4 In 1995 total worldwide sales of citric acid were approximately EUR 894.72 million, including approximately EUR 323.69 million in the European Economic Area (EEA). In 1996 approximately 60% of the worldwide citric acid market was in the hands of the five addressees of the decision, which is the subject-matter of the present action, namely, in addition to Jungbunzlauer, F. Hoffmann-La Roche AG (‘HLR’), Archer Daniels Midland Co. (‘ADM’), Haarmann & Reimer Corporation (‘H&R’), belonging to the Bayer AG group (‘Bayer’) and Cerestar Bioproducts BV (‘Cerestar’) (together referred to as ‘the parties concerned’).

5 In August 1995 the United States Department of Justice informed the Commission of an investigation into the citric acid market. Between October 1996 and June 1998 the parties concerned, including Jungbunzlauer International AG, pleaded guilty to taking part in a cartel. As a result of plea agreements with the Department of Justice, fines were imposed on the companies by the United States authorities. In addition, several individuals charged were personally fined. Investigations were also carried out in Canada and some of the same companies, including Jungbunzlauer International AG, were fined there.

6 On 6 August 1997 the Commission sent requests for information under Article 11 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87) to the four largest producers of citric acid in the Community, including Jungbunzlauer GmbH. In addition, in January 1998 the Commission sent requests for information to the main purchasers of citric acid in the Community and, in June and July 1998, it sent further requests for information to the main producers of citric acid in the Community.

7 Following receipt of the request for information which had been sent to it in July 1998, Cerestar contacted the Commission and, in the course of a meeting on 29 October 1998, expressed a wish to cooperate with the Commission under the Commission notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’). At the meeting Cerestar gave an oral account of the cartel activity in which it had been involved. On 25 March 1999 it sent the Commission a written statement confirming what it had said at the meeting.

8 By letter of 28 July 1998 the Commission sent Jungbunzlauer GmbH a further request for information to which the latter replied by letter of 28 September 1998.

9 At a meeting on 11 December 1998 ADM expressed its willingness to cooperate with the Commission and gave an oral account of the anti-competitive activity in which it had been involved. On 15 January 1999 it sent the Commission a written statement confirming that account.

10 On 3 March 1999 the Commission sent additional requests for information to HLR, Jungbunzlauer and Cerestar.

11 On 28 April, 21 May and 28 July 1999 respectively, Bayer, on behalf of H&R, the applicant and HLR, made statements on the basis of the Leniency Notice.

12 On 28 March 2000 the Commission, on the basis of the information supplied to it, sent a statement of objections to the applicant and the other parties concerned for infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement. The applicant and all the other parties concerned submitted written observations in response to the Commission’s objections. None of the parties requested an oral hearing, nor did they substantially contest the facts as set out in the statement of objections.

13 In a letter of 11 April 2001 to the Commission, Jungbunzlauer GmbH made certain observations relating to the procedure under way.

14 On 27 July 2001 the Commission sent additional requests for information to the applicant and the other parties concerned. The applicant replied on its own behalf and that of Jungbunzlauer GmbH by letter of 3 August 2001.

15 On 5 December 2001 the Commission adopted Decision 2002/742/EC relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E‑1/36.604 – Citric acid) (‘the Decision’). The applicant was notified of the Decision on 18 December 2001.

‘Article 1

[ADM], [Cerestar], [H&R], [HLR] and [the applicant] have infringed Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement by participating in a continuing agreement and/or concerted practice in the sector of citric acid.

The duration of the infringement was as follows:

– in the case of [ADM], [H&R], [HLR] and [the applicant]: from March 1991 to May 1995;

– in the case of [Cerestar]: from May 1992 to May 1995.

…

Article 3

The following fines are imposed on the undertakings referred to in Article 1 on account of the infringement described therein:

(a) [ADM]: EUR 39.69 million

(b) [Cerestar]: EUR 170 000

(c) [HLR]: EUR 63.5 million

(d) [H&R]: EUR 14.22 million

(e) [the applicant]: EUR 17.64 million.’

Procedure and forms of order sought by the parties

– annul the Decision;

– in the alternative, reduce the fine;

– order the Commission to pay the costs.

– dismiss the application;

– order Jungbunzlauer to pay the costs.

Law

I – Failure to observe the principle of legality

A – Objection of illegality in relation to Article 15(2) of Regulation No 17

1. Arguments of the parties

‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’

2. Findings of the Court

‘The Commission may by decision impose on undertakings or associations of undertakings fines of from [EUR 1 000] to [EUR 1 000 000], or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently:

(a) they infringe Article [81](1) [EC] or Article [82 EC]; or

(b) they commit a breach of any obligation imposed pursuant to Article 8(1).

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’

B – The correct interpretation of Article 15(2) of Regulation No 17

II – The addressee of the decision

A – Failure to state reasons

‘(187) … First, until the second half of 1993, Jungbunzlauer [GmbH] was not solely a subsidiary in charge of the production and distribution of citric acid, but also the legal entity responsible for the management of the whole Jungbunzlauer group. In 1993, that responsibility passed to Jungbunzlauer AG, which can be regarded as the successor to Jungbunzlauer [GmbH] with respect to the management of the Jungbunzlauer group. Since that date, Jungbunzlauer [GmbH] became a wholly-owned subsidiary within the group, which did not decide independently upon its own conduct on the market, but carried out, in all material respects, the instructions issued by Jungbunzlauer AG, the company responsible for management of the group.

(188) For a certain part of the period considered in the present Decision, Jungbunzlauer AG took part directly in cartel meetings, notably in the person of its CEO. It must therefore be concluded that at any period of time considered in the present Decision, the legal entity responsible for the management of the whole Jungbunzlauer group was actively and directly involved in the cartel. Since the legal entity in question is currently Jungbunzlauer AG, the latter must be an addressee of the present Decision.’

B – The plea alleging errors concerning the addressee of the Decision

1. Arguments of the parties

2. Findings of the Court

III – The gravity of the infringement

A – Whether the cartel had an actual impact on the market

1. Introduction

2. Whether there have been errors of assessment

(a) The allegation that the Commission adopted an erroneous approach to show that the cartel had an actual impact on the market

Arguments of the parties

Findings of the Court

– Summary of the Commission’s analysis

‘The explanations for the price increases of 1991-92 provided by ADM, [H&R] and Jungbunzlauer may have some validity, but they do not demonstrate in any convincing manner that the implementation of the cartel agreement could not have played any role in the price fluctuations. Whilst the phenomena described may occur in the absence of a cartel, they are also perfectly consistent with a cartel situation. The fact that the prices for citric acid increased by 40% in 14 months cannot be explained solely in terms of a competitive reaction, but must be interpreted in the light of the facts that the participants had agreed on coordinated price increases and market share allocation, as well as on a reporting and monitoring system. All this would have contributed to the success of the price increases.’

‘The fact, highlighted by Jungbunzlauer, that the cartel’s overall “market share” diminished over time, from around 70% initially to 52% in 1994, certainly illustrates the difficulties encountered by the cartel participants in keeping the prices above a competitive level. This nevertheless does not demonstrate that the illegal practice had no effect on the market. On the contrary, the strong increase in imports from China from 1992 onwards indicates that the cartel members were not adapting as they normally would have done to the price pressure exerted by such imports.’

– Findings

(b) The assessment of movements in citric acid prices

Arguments of the parties

164 First, Jungbunzlauer denies that the Commission furnished proof of the actual impact of the cartel on the market with its assessment of movements in the price of citric acid between 1991 and 1993 as set out in recitals 213 and 214 of the Decision.

165 Although Jungbunzlauer does not deny that, in general, price agreements have repercussions when actual prices follow the agreed prices, nevertheless such an alignment was not proved by the Commission in the present case. Jungbunzlauer observes that, unlike the situation in Cascades v Commission , paragraph 141 above, paragraph 180 et seq., in the present case the applicant has always denied that customers were required to pay the prices agreed in the course of cartel meetings. It states that it explained this in detail for the entire period from 1991 to 1995 in the reply to the statement of objections and in the application.

166 Secondly, Jungbunzlauer submits that the Commission did not take proper account of the different circumstances which it had put forward during the administrative procedure to deny any impact of the cartel on the market.

167 In the first place, Jungbunzlauer complains that the Commission took into account the increases in citric acid prices found in the course of 1991 and 1992 (recital 213 of the Decision) and rejected its argument that they did not originate in the cartel (recitals 224 to 226 of the Decision). According to Jungbunzlauer, if the Commission had examined, as it ought to have done, the economic conditions in the period in question, it would have found that it was not possible to demonstrate with sufficient certainty that the cartel was the source of the price increases.

168 Jungbunzlauer points out that, in Section III 1(a) of its reply to the statement of objections, it had stated that the main reason for the price increase in 1991 and 1992 was the considerable increase in demand as a result of the development of the market for citric acid or sodium citrate (for which citric acid is a base product) which is used as an agent in the detergent industry. The applicant notes that at the end of the 1980s and beginning of the 1990s, the detergent industry began, for reasons relating to protection of the environment and market policy, to replace phosphates with products having a citric acid base, which is ecologically advantageous, which led to a doubling in the rates of growth of citric acid and citrates. It adds that an even greater increase in demand was anticipated for the following years. It infers therefrom that the actual increase in demand and the anticipated increase in consumption in the 1990s enabled citric acid producers to demand higher prices.

169 Jungbunzlauer states that, in support of those submissions, it lodged internal studies and an article in the specialist press which showed, first, that the use of sodium citrates in the detergent industry in Europe was 22 times greater in 1990 than in 1989, secondly, that total sales of 44 000 tonnes could realistically be forecast for 1993 (which represented a 100% increase between 1990 and 1993) and, thirdly, that in addition a further significant increase of 22 000 tonnes per year was forecast for washing-up detergents for 1993.

170 It adds that in 1991 and 1992 the rising demand for citric acid could not be met with existing production capacities. The Jungbunzlauer group and other producers made additional purchases in Indonesia and China to cover their needs. This shows that there was considerable excess demand which led to the price increase in 1991 and 1992.

171 Jungbunzlauer goes on to observe that, in Section III 1(b) of its reply to the statement of objections, it had already stated that the price increase found by the Commission in 1991 and 1992 had to be kept in perspective in view of the fact that in the period 1986 to 1990 market prices had fallen by approximately 45%. It infers therefrom that the price increase in 1991 and 1992 was, in the final analysis, a price correction caused by market forces.

172 Secondly, Jungbunzlauer considers that the Commission was wrong to dismiss, in recital 227 of the Decision, the applicant’s arguments based on the replies given by citric acid buyers to the requests for information addressed to them by the Commission on 20 January 1998. In its view, the replies, extracts of which are reproduced in the application and in the reply, confirm that the cartel did not have negative effects for buyers. Nor has the Commission produced replies from buyers which prove the contrary.

173 Jungbunzlauer considers that the Commission was wrong, in recital 227 of the Decision, to attempt to play down the importance of those replies by stating that the question asked ‘concerning the intensity of competition in the market … was … framed in general terms’ and that it had ‘to be seen in the context of a preliminary investigation into the main features of the citric acid market’. However, the question was worded as follows: ‘Does intense price competition exist on the citric acid market? Please give a detailed reply to this question.’ According to Jungbunzlauer, the replies provided by customers gave a perfectly clear picture in that connection, which the Commission simply ignored. The Commission cannot formulate a request for information and send it, at great expense, to numerous undertakings and then declare it inappropriate, apparently because it did not produce the desired result. In addition, contrary to the Commission’s assertion, the context of the questions clearly shows that they all relate to the period subsequent to 1990.

174 Likewise, according to Jungbunzlauer, the Commission was wrong, in recital 227 of the Decision, to raise against the replies the fact that ‘in view of the high degree of sophistication characterising the illegal arrangements, one could certainly not expect the customers to be in a position to confirm the [non-]existence of competition in the market in question’. On the contrary, Jungbunzlauer takes the view that it is inconceivable that the buyers mentioned did not notice unusual changes in the structure of prices. That is all the more so since the request for information was addressed to customers in the context of an investigation opened in cartel proceedings and the procedure in the United States relating to citric acid had already closed. The link between price increases and anti-competitive agreements therefore should have been obvious – almost all the customers mentioned were large-scale undertakings perfectly capable of establishing such a connection. The fact that none of the companies questioned drew that conclusion shows that the agreements had no repercussions on the market.

175 Thirdly, the applicant observes that it is clear from recital 225 of the Decision that it had already argued during the administrative procedure that, in its opinion, ‘the fact that the overall worldwide market share fell from 70% originally to 52% in 1994 would demonstrate that the cartel was no longer in a position to influence price formation’. In its view, the Commission failed to consider this fact. It follows, in its view, that the cartel members certainly no longer had the market power necessary to impose the desired prices, that the cartel was steadily declining in importance and that, since 1993, it had certainly no longer been in a position to influence price formation at world level. This was clearly confirmed by Procter & Gamble’s reply to the Commission’s request for information of 20 January 1998.

176 The Commission denies Jungbunzlauer’s argument and contends that it proved, to the requisite legal standard, that the cartel had an actual impact on the market.

Findings of the Court

177 It is settled case-law that, in reviewing the Commission’s appraisal of the actual impact of a cartel on the market, it is particularly important that the Court examine the Commission’s assessment of the cartel’s effect on prices (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597 and, to that effect, Cascades v Commission , paragraph 141 above, paragraph 173, and Case T‑347/94 Mayr-Melnhof v Commission [1998] ECR II‑1751, paragraph 225).

178 It is also settled case-law that, in determining the gravity of the infringement, regard must be had to the legislative background and economic context of the conduct to which exception is taken ( Suiker Unie and Others v Commission , paragraph 115 above, paragraph 612, and Ferriere Nord v Commission , paragraph 136 above, paragraph 38) and that, to assess the actual impact of an infringement on the market, the Commission must refer to the competition which would normally have existed without the infringement (see, to that effect, Suiker Unie and Others v Commission , paragraph 115 above, paragraphs 619 and 620; Mayr-Melnhof v Commission , paragraph 177 above, paragraph 235; and Case T‑141/94 Thyssen Stahl v Commission [1999] ECR II‑347, paragraph 645).

179 It follows that, in the case of price cartels, it must be found – with a reasonable degree of probability (see paragraph 155 above) – that the agreements actually enabled the parties concerned to reach a price level higher than that which would have prevailed without the cartel. It also follows that, in making its assessment, the Commission must take into account all the objective conditions of the market concerned, having regard to the economic context and, if necessary, the legislative background. It is clear from the judgments of the Court of First Instance relating to the cartonboard cartel (see, inter alia, Mayr-Melnhof v Commission , paragraph 177 above, paragraphs 234 and 235) that account must be taken, where appropriate, of ‘objective economic factors’ showing that, given the ‘free play of competition’, the level of prices would not have moved in the same way as that of the prices applied (see also Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission , paragraph 177 above, paragraphs 151 and 152, and Cascades v Commission , paragraph 141 above, paragraphs 183 and 184).

180 In the present case, in recital 213 of the Decision, the Commission described as follows the movements in citric acid prices, as agreed and applied by the cartel members:

‘From March 1991 to mid-1993, the prices agreed within the cartel were announced to customers and extensively implemented, in particular during the early years of the cartel. The price increase to DEM 2.25/kg … by April 1991, decided at the cartel meeting of March 1991, was easily introduced. It was followed by a decision, taken by telephone in July, to increase the price to DEM 2.70/kg … by August. This price increase was also successfully implemented. A final increase to DEM 2.80/kg … was agreed at the meeting in May 1992 and was implemented in June 1992. After that date, no further price increase was implemented, and the cartel concentrated on the need to maintain these prices.’

181 Jungbunzlauer does not dispute the Commission’s factual findings regarding movements in the agreed prices and the fixing of sales quotas, but essentially confines itself to observing that, in reality, customers were not required to pay those prices.

182 It is noteworthy that, in the letter of 29 April 1999, giving the Commission the information requested on the basis of Article 11 of Regulation No 17, the applicant described the prices fixed on the basis of the cartel. In addition, annexed to its reply to the statement of objections, it submitted to the Commission some graphs relating to the movement of the price of citric acid in the period 1991 to 1995.

183 The graphs in particular show that Jungbunzlauer, on its own initiative, established and submitted to the Commission that the prices which customers were actually required to pay followed parallel with the movement in prices as fixed by the cartel members, although they were generally below the level of the agreed prices. In particular, it is clear from the graphs that when, in March and July 1991, the cartel members decided to increase the price of the citric acid used in the foodstuffs industry from DEM 2.25 per kilogram to approximately DEM 2.7 per kilogram, the prices actually charged to customers, which in April 1991 were between DEM 1.9 and 2.1 per kilogram, rose to between DEM 2.7 and 2.75 per kilogram. Likewise, the graphs show that when, after that price rise, the cartel members agreed to maintain prices at between DEM 2.7 and 2.8 per kilogram, the prices actually demanded from customers were between DEM 2.6 and 2.75 per kilogram. Likewise, it appears from the graphs that the prices that customers were actually required to pay broadly followed the 1994 decisions by the cartel members to reduce citric acid prices to DEM 2.65 per kilogram, although at a lower level of between DEM 2.45 and 2.6 per kilogram.

184 It follows that, contrary to Jungbunzlauer’s submissions, the information it gave the Commission in the course of the administrative procedure clearly shows that the prices fixed by the cartel members and those actually charged moved permanently in parallel.

185 In such a situation, the Commission was right, in recital 219 of the Decision, to refer to the judgment in Cascades v Commission , paragraph 141 above, paragraph 179, and to find that there was a direct connection between the movement in the prices announced and that in the prices actually charged, in order to conclude that, on the basis of those factors, it had been shown to the requisite legal standard that the cartel had had an actual impact on the market which was ‘measurable’, within the meaning of the Guidelines, by comparing the hypothetical price which would have prevailed without the cartel with the price charged in the present case as a result of the formation of the cartel.

186 This finding is not affected by Jungbunzlauer’s objection that prices would have risen even without the cartel. Although such a possibility cannot be ruled out, the Commission nevertheless was justified in finding, in recital 226 of the Decision, that the increase in prices cannot be explained solely in terms of a purely competitive reaction of the market, but must be interpreted in the light of the fact that the cartel enabled its members to coordinate price increases. Therefore it cannot be argued that price levels without the cartel would have moved in the same way as the prices charged as a result of the cartel. This is confirmed by Jungbunzlauer’s own statement in its letter of 21 May 1999. Although the possibility cannot be ruled out that reasons other than the endeavour to make the cartel effective may have induced its members to set up coordination, reporting and monitoring systems, nevertheless, taking account of the administration costs and the risks of detection arising from such collusion, the Commission’s explanation, that is to say, optimisation of the cartel’s effectiveness, is the most plausible explanation (see paragraph 154 above).

187 Likewise, contrary to Jungbunzlauer’s argument, the Commission was justified in rejecting as inconclusive, in recital 227 of the Decision, the replies from citric acid buyers to its request for information of 20 January 1998.

188 The Commission’s fourth question in the request for information was whether buyers had witnessed significant increases in the price of citric acid between 1990 and the date of dispatch of the request in 1998. Although some buyers stated in their reply that they had witnessed price rises in the course of specific periods which corresponded to the price increases agreed upon by the cartel, others referred only to periods after the end of the cartel in 1995 or stated that they had witnessed price reductions. In addition, the other questions, as put by the Commission in its letter of 20 January 1998, related not to the period covered by the cartel, but to the market situation at the date of dispatch of the letter. That is why the buyers’ replies were not conclusive as to the actual effect of the cartel on the market.

189 Lastly, the fact, relied on by Jungbunzlauer, that in 1994 the total world market share held by the parties concerned fell from 70% at the initial stage of the cartel to 52% does not disprove that the cartel had an actual impact on the relevant market. First, as the Commission rightly observes, the main reason for the finding of an actual impact was the increase in the prices of citric acid between 1991 and 1993. Secondly, with regard to the period from 1993 to 1995, the effect found by the Commission was essentially a stabilisation of the price at a higher level than that prevailing before the increase, in 1991. The fact that the cartel members held only 52% of the market does not indicate that they were not able at least to encourage the trend towards price stabilisation.

190 In the light of the foregoing, the Commission did not make any manifest errors of assessment as to movements in citric acid prices.

3. Failure to state reasons

191 Jungbunzlauer claims that the Decision is vitiated by a failure to state reasons. In its view, the Commission did not show how the agreements had affected the market, but merely rejected the evidence to the contrary provided by Jungbunzlauer during the administrative procedure, declaring it to be insufficient, without giving the slightest justification. In particular, Jungbunzlauer complains that the Commission did not state its position on the replies from the different undertakings to its requests for information, although the applicant raised this point expressly in its reply to the statement of objections.

192 The Commission considers that it gave sufficient reasons on this point in the Decision.

193 The Court observes that, in recitals 92 to 111 of the Decision, the Commission described precisely the agreements as implemented by the cartel members, including the price agreements (recitals 95 and 96 of the Decision). Furthermore, in the part concerning the legal appraisal of the facts, the Commission analysed those aspects. In finding that the cartel had had an actual impact on the market, it relied on the fact that the agreements had been carefully implemented (recital 212), that the price of citric acid as announced to customers was applied by the cartel members (recital 213), that the cartel members had fixed sales quotas, adherence to which was constantly monitored, and set up a compensation system (recitals 214 and 215). Lastly, the Commission examined the arguments of the parties concerned, including the applicant, and gave a succinct but sufficient statement of reasons in that respect (recitals 226 to 228 of the Decision).

194 It follows that the Commission explained how, in its view, the cartel had had an actual impact on the citric acid market.

195 Consequently, the Decision contains a sufficient statement of reasons on this point.

B – Adjustment of the fine by reference to the relative size of the undertakings concerned

1. Arguments of the parties

196 Jungbunzlauer submits that when, in calculating the fines according to the gravity of the infringement, the Commission adjusted the amount of the fines on the basis of the size and the overall resources of the undertakings concerned, it did not take proper account of the applicant’s very limited economic strength in relation to the other companies concerned and, in doing so, failed to observe the principles of proportionality and equal treatment, a ‘principle of individual assessment of fines’ and its own Guidelines.

197 Jungbunzlauer states that it is clear from recitals 240 to 246 of the Decision that, to take account of the size and the overall resources of the undertakings concerned, the Commission compared the worldwide turnover of the companies concerned, and even the groups to which they belonged, as shown in Table 3 of recital 50 of the Decision. On that basis, Jungbunzlauer observes that, to ensure that the fines had a sufficient deterrent effect, the Commission increased by 100% the starting amounts of the fines on ADM and HLR, and by 150% that on H&R.

198 Jungbunzlauer claims that, in applying this method of adjusting fines, the Commission obtains an absurd result because it grossly penalises companies which are clearly smaller, such as Jungbunzlauer, and attaches a much reduced deterrent effect to the fines on large companies.

199 Jungbunzlauer acknowledges that the calculation of the fine may involve taking account of numerous factors and that the Commission has a very broad discretion for that purpose. However, referring to the judgments in Case 183/83 Krupp v Commission [1985] ECR 3609, paragraph 37, Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 121, and Case T‑77/92 Parker Pen v Commission [1994] ECR II‑549, paragraph 94, it submits that, in that context, considerable weight must be attached to the economic strength of the undertaking concerned.

200 With regard to the judgment in Musique diffusion française and Others v Commission , paragraph 199 above, Jungbunzlauer observes that that case involved a large undertaking which had participated in agreements relating to a product which accounted for only a small part of its overall turnover. According to Jungbunzlauer, in that case the Court of Justice, following the position taken by the Commission, clearly affirmed that the size and economic strength of the undertaking must be adequately reflected in the fine imposed ( Musique diffusion française and Others v Commission , paragraph 199 above, paragraph 121). In so doing, according to Jungbunzlauer, the Court wished to avoid a large group having to pay a fine which, in relation to its economic strength, was relatively modest, solely on account of the limited importance of the product concerned in the overall turnover.

201 Jungbunzlauer submits that that is precisely what has happened in the present case, as shown by several comparisons.

202 Jungbunzlauer observes that, in the present case, compared with the economic capacity of all the undertakings to which the Decision was addressed, the starting amount calculated by reference to the gravity of the infringement affects the Jungbunzlauer group much more harshly than the other parties concerned.

203 Relying on the figures referred to in recitals 239 and 246 of the Decision, Jungbunzlauer produces the following table:

Undertaking

Overall turnover (million EUR)

Starting amount of fine (by reference to gravity of infringement) (million EUR)

Starting amount as % of overall turnover

Jungbunzlauer

314

21

6.69

HLR

18 403

42

0.23

ADM

13 936

42

0.30

H&R/Bayer AG

30 971

87.5

0.29

Cerestar/

Cerestar AG

1 693

3.5

0.20

204 According to Jungbunzlauer, it follows that, although HLR’s turnover is 58.6 times greater than that of the Jungbunzlauer group and ADM’s turnover is 44.38 times greater, the fines on those two companies were only doubled at that particular stage of calculating the fines. Likewise, although the turnover of the Bayer group, to which H&R belonged and which was used by the Commission when adjusting the fines (recitals 243 and 244) is 99.8 times greater than that of the Jungbunzlauer group, H&R’s fine was multiplied by only 2.5, which is all the more surprising since the Bayer group had by far the largest market share of all the parties concerned.

205 In Jungbunzlauer’s view, such unequal treatment cannot be justified because, apart from their size, all the companies to which the Decision was addressed were comparable amongst themselves in every respect with regard to their contribution to the infringement and their market position.

206 Furthermore, the Commission erred in rejecting the applicant’s argument by referring to the size of its share of the citric acid market. First, it observes that the Jungbunzlauer group had a share of [ confidential ]% of the citric acid market, but that its fine was 23 times greater than that imposed on H&R, which however had a larger market share (22%). Secondly, it claims that the size of the market shares of the different undertakings had already been used by the Commission at an earlier stage of calculating the fine, namely when classifying the undertakings in three categories (recitals 233 to 239 of the Decision).

207 Disproportionate treatment of the smallest undertakings is also shown by a comparison of the starting amounts calculated by reference to the gravity of the infringement used by the Commission in relation to, on the one hand, Jungbunzlauer in the Decision, and, on the other hand, other parties in similar cases giving rise to decisions contemporaneous with the one challenged in the present case. Jungbunzlauer refers in that connection to the Commission’s decisions in the so-called sodium gluconate case (Commission decision of 2 October 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E‑1/36.756 – Sodium gluconate) (‘the sodium gluconate decision’)); the amino acids case (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) (‘the amino acids decision’)) and the vitamins case (Commission Decision 2003/2/EC of 21 November 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E‑1/37.512 – Vitamins) (OJ 2003 L 6, p. 1) (‘the vitamins decision’). In those cases, the basic amounts chosen by the Commission for the different undertakings concerned were, as a percentage of their overall turnover, in the sodium gluconate case, between 0.04 and 0.58%, in the amino acids case, between 0.24 and 1.59% and, in the vitamins case, between 0.7 and 2.0%, whereas the figure for the applicant in the present case is 6.69%.

208 Jungbunzlauer also compares the fines chosen in the Decision before reduction for cooperation (recitals 293 and 326 of the Decision) in relation to itself with those imposed by the Decision on HLR and ADM as a percentage of their overall turnover. In that respect, Jungbunzlauer observes that, when compared with the strength of the respective companies expressed in terms of overall turnover (see paragraph 203 above), the applicant’s fine before reduction for cooperation (EUR 29.4 million or 9.36% of its overall turnover) is in percentage terms 21.8 times greater than the fine on HLR (EUR 79.38 million or 0.43% of HLR’s overall turnover) and 16.4 times greater than ADM’s fine (EUR 79.38 million or 0.57% of ADM’s overall turnover).

209 Jungbunzlauer considers that the disproportionate nature of its fine in the present case is even more flagrant when the final amount of the fines chosen in the Decision concerning it is compared with those imposed on HLR and ADM as a percentage of their overall turnover. The applicant observes that, when compared with the strength of the respective companies expressed in terms of overall turnover (see paragraph 203 above), the final amount of the applicant’s fine (EUR 17.64 million) is 16 times greater than the fine levied on HLR (EUR 63.5 million) and 20 times greater than ADM’s fine (EUR 39.69 million).

210 In addition, Jungbunzlauer compares the final amounts of the fines in the Decision concerning it with those imposed in the sodium gluconate, amino acids and vitamins decisions and those in the Sun-Air/SAS and Maersk Air case (Commission Decision 2001/716/EC of 18 July 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP.D.2 37.444 – SAS/Maersk Air and Case COMP.D.2 37.386 – Sun-Air v SAS and Maersk Air) (OJ 2001 L 265, p. 15)). According to Jungbunzlauer, it is clear that, when compared with the strength of the respective companies expressed in terms of overall turnover, the final amount of their fines represented only 0.06 and 2.61% of their turnover.

211 In the light of all the foregoing, Jungbunzlauer is of the opinion that, in the part of its calculation of the fines which is intended to give the fines a sufficient deterrent effect, the Commission ought to have made a downward correction in the fine to be imposed on the Jungbunzlauer group.

212 The Commission rejects the applicant’s arguments.

2. Findings of the Court

(a) Introduction

213 According to settled case-law, the gravity of infringements must be determined by reference to numerous factors, such as the particular circumstances of the case and its context; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up (order in SPO and Others v Commission , paragraph 136 above, paragraph 54; Ferriere Nord v Commission , paragraph 136 above, paragraph 33; and HFB and Others v Commission , paragraph 136 above, paragraph 443).

214 Likewise, it has consistently been held that the criteria for assessing the gravity of an infringement may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed, the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the market. It follows that, on the one hand, it is permissible, for the purpose of fixing a fine, to have regard both to the overall 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. On the other hand, it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors and that the fixing of an appropriate fine cannot be the result of a simple calculation based on overall turnover (see, to that effect, Musique diffusion française and Others v Commission , paragraph 199 above, paragraphs 120 and 121; Parker Pen v Commission , paragraph 199 above, paragraph 94; Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraph 176; Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission , paragraph 177 above, paragraph 187; and HFB and Others v Commission , paragraph 136 above, paragraph 444).

215 In the present case, the Commission took account of the turnover from the sale of the products in question and the overall turnover of the undertakings concerned. After finding that the infringement should be deemed ‘very serious’ for the purpose of the second paragraph of Section 1A of the Guidelines (recital 230 of the Decision), the Commission applied those two criteria in weighting the amount of fines in the category of very serious infringements for which the Guidelines lay down ‘likely fines’ of over EUR 20 million.

216 It is clear from recitals 233, 234 and 240 of the Decision that the Commission relied on the fourth and sixth paragraphs of Section 1A of the Guidelines. In those passages of the Guidelines, the Commission stated essentially that where an infringement involves several undertakings and there is considerable disparity between the sizes of the undertakings committing infringements, differential treatment will be applied to the undertakings concerned in order to take account of their actual economic ability to cause significant damage to competitors and to set the fine at a level which ensures that it has a sufficiently deterrent effect.

217 Accordingly, first, on the basis of the turnover of the parties concerned from sales of the products in question, the Commission classified the parties into three categories. The purpose of this adjustment was, as the Commission points out in recital 234 of the Decision, to take account of the real impact of each party’s conduct on competition. In so doing, the Commission also pursued a deterrent purpose in making it plain that it would penalise more heavily undertakings participating in a cartel on a market in which they had significant weight.

218 In that context, as the applicant had a medium-sized share of the world citric acid market, the Commission placed it in the second category of undertakings for which it set a starting amount of EUR 21 million.

219 Next, on the basis of the overall turnover of the parties concerned, the Commission considered it appropriate to adjust the starting amount of the fines for three of them on the ground that their size and global resources were such that, unless those amounts were increased, the fine would not have a deterrent effect as it was far too low a fraction of their overall turnover.

220 The applicant’s criticism relates only to that particular stage of calculating the fine, as described in the preceding paragraph. It observes essentially that, in merely multiplying by 2 or 2.5 the starting amount of the fine for cartel members which constitute or form part of large multinational groups, but in failing at the same time to reduce the starting amount for considerably smaller undertakings, the Commission discriminated against the latter as compared with the former. Without being contradicted on this point, the applicant infers from the recitals of the Decision that the basic amount of its fine by reference to the gravity of the infringement represents 6.69% of its own overall turnover, whereas for the large multinational groups (in the present case HLR, ADM and Bayer, to which H&R belongs), the basic amount represents between 0.23 and 0.30% of their respective overall turnover, even after multiplication to take account of their size and global resources.

221 In that context, the applicant puts forward three pleas alleging, first, infringement of a ‘principle of individual assessment of fines’ and of the Guidelines, second, of the principle of proportionality and, third, of the principle of equal treatment.

(b) The complaints concerning infringement of a ‘principle of individual assessment of fines’ and of the Guidelines

222 The applicant pleads infringement of a ‘principle of individual assessment of fines’ and of the Guidelines and submits in essence that the Commission had an obligation to set fines on the basis of a percentage of the overall turnover of each undertaking concerned.

223 It must be observed that the Court has held on several occasions that, on the basis of the principles laid down in settled case-law, it is open to the Commission, in accordance with its Guidelines, not to set fines by reference to the turnover of each of the undertakings concerned in the relevant market, but to apply, as the starting point of its calculation for each undertaking, an absolute figure fixed according to the actual nature of the infringement, that figure then being adjusted for each undertaking on the basis of several factors (see, to that effect, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ and Others v Commission [1983] ECR 3369, paragraphs 51 to 53; LR AF 1998 v Commission , paragraph 88 above, paragraph 281; and Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraphs 384, 385, 416 and 437).

224 The applicant does not dispute that, in the present case, the Commission used this method, as laid down by the Guidelines.

225 Consequently, the applicant cannot plead infringement of the Guidelines. With regard to infringement of the alleged ‘principle of individual assessment of fines’, it is sufficient to note that the applicant has not defined this principle specifically and that it has not been expressly recognised in the case-law. Consequently, reliance on that principle by the applicant cannot in itself cast doubt on the validity of the Decision. The applicant’s submissions concerning infringement of the Guidelines and of an alleged ‘principle of individual assessment of fines’ must therefore be dismissed.

(c) Infringement of the principle of proportionality

229 In the present case, after determining that the infringement was, by nature, a very serious infringement liable to a fine of more than EUR 20 million, the Commission proceeded to weight the starting amount of the fine. For that purpose, in accordance with the case-law cited in paragraph 214 above, the Commission took account, first, of the quantity and value of the goods in respect of which the infringement was committed for each undertaking involved, giving an indication of the extent of the offence committed by those undertakings in the market for the relevant goods and, second, of the size and economic strength of each undertaking. Although the Commission took account of those two criteria in one and the same calculation, they are two separate criteria. Consequently, it is necessary to ascertain separately whether the Commission attached disproportionate importance to one of the two.

231 In the present case, by placing the applicant in the second category of undertakings concerned and by setting as the applicant’s starting point the same amount as that for two other companies which had in that market a share equivalent to that of the applicant, the Commission did not determine that amount disproportionately, having regard to the gravity of the applicant’s offence and to the need to ensure that the fine had a deterrent effect in view of such gravity. This assessment is not affected by the fact that, in terms of overall size, the other companies were larger than the applicant. The effect of the applicant’s actions on the market justifies the Commission’s assessment at this stage of calculating the fine.

232 Second, by multiplying the starting amount for ADM, HLR and H&R, the Commission properly assessed the size and global resources of the companies concerned and thus pursued the aim of ensuring that the fines had a deterrent effect.

233 Jungbunzlauer cannot reasonably argue that, by virtue of the principle of proportionality, in the context of the same calculation the Commission ought to have reduced the applicant’s fine on the ground that, comparing it with the applicant’s overall turnover, it exceeded the limits of what was appropriate and necessary to achieve the desired aim of ensuring that the fine had a deterrent effect.

234 As stated in paragraph 231 above, in setting the fine, the Commission did not take into account a disproportionate amount, having regard to the extent of the applicant’s infringement in the market for the goods in question. This assessment is not affected by the fact that, in this case, the fine represents 6.69% of the turnover of the undertaking concerned.

235 Consequently, the plea of infringement of the principle of proportionality must be dismissed.

(d) Infringement of the principle of equal treatment

236 The principle of equal treatment is infringed where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified ( BPB de Eendracht v Commission , paragraph 88 above, paragraph 309, and case-law cited, and Case T‑67/01 JCB Service v Commission [2004] ECR II‑49, paragraph 187).

237 In the present case, the Commission does not dispute that the applicant was in a situation comparable to that of the other undertakings to which the Commission attributed responsibility for the infringement, as the object of deterrence applied to the applicant just as much as to the other undertakings concerned. Likewise, the Commission does not dispute that, so far as the relationship between the fine and the turnover of the parties is concerned, a factor which the Commission took into account in fixing the amount of the fines of the parties concerned by reference to the gravity of the infringement, the basic amount of the applicant’s fine by reference to such gravity accounts for 6.69% of its overall turnover, whereas the corresponding amount for the large multinational groups (HLR, ADM and Bayer, to which H&R belongs) is between 0.23 and 0.30% of their respective overall turnover, even after multiplication to take account of the size and global resources of the latter undertakings.

239 Moreover, since the Commission’s assessment concerning the proportionate nature of the starting amount of the fine has not been found to be incorrect (see paragraphs 226 to 235 above), the applicant’s argument in reality amounts to requesting the Court to review the legality of the fines imposed on the large undertakings with which the applicant compares its fine. However, the applicant cannot claim a right to bring an action in that respect. Observance of the principle of equal treatment must be reconciled with observance of the principle that no person may seek to rely, in his own favour, on an illegal act in favour of others ( HFB and Others v Commission , paragraph 136 above, paragraph 515, and case-law cited).

240 Therefore the plea of infringement of the principle of equal treatment must be dismissed.

IV – Attenuating circumstances

241 Jungbunzlauer puts forward two pleas alleging infringement, first, of the Guidelines and, second, of the obligation to state reasons.

A – Infringement of the Guidelines

242 The applicant claims that, in accordance with the first and second indents of Section 3 of the Guidelines, the Commission ought to have allowed it the benefit of attenuating circumstances in respect of, first, the exclusively follow-my-leader role of Jungbunzlauer GmbH in the infringement and, second, the non-implementation in practice of the agreements by Jungbunzlauer GmbH.

1. The exclusively follow-my-leader role of Jungbunzlauer GmbH in the infringement

(a) Arguments of the parties

243 The applicant considers that, in accordance with the first indent of Section 3 of the Guidelines, the Commission ought to have allowed it the benefit of attenuating circumstances in respect of the exclusively follow-my-leader role of Jungbunzlauer GmbH in the infringement. The applicant observes that the benefit of a ‘follow-my-leader’ role, a concept not defined in the Guidelines, cannot be ruled out merely because an undertaking obeys the rules of the cartel, at least in part. In its view, it is characteristic of a follow-my-leader role that, having regard to the considerable pressure from the other members of the cartel, the passive member takes part, to the most limited extent possible, in implementing the agreements by taking on certain functions in the cartel and taking part in negotiations. Any other interpretation would result in the follower risking penalties within the cartel and suffering retaliatory measures from the other members.

244 Jungbunzlauer claims that, at the beginning of the cartel, Jungbunzlauer GmbH was not in a position to evade the agreements and was more or less compelled to join in the agreements in 1991. As a small supplier specialising in citric acid, it ran the risk of being kept out of the market by bigger competitors which were much stronger financially (with turnover up to 58.6 times greater than that of the Jungbunzlauer group) and which had a very large production base, unlike Jungbunzlauer GmbH. Furthermore, the applicant submits that between 1991 and 1995 the Jungbunzlauer group was in a very difficult financial situation, which meant that Jungbunzlauer GmbH would not have been able to retain its independence if it had not joined the cartel at the beginning of 1991. In addition, the applicant points out that 40% of the total production cost of citric acid is accounted for by the cost of raw materials, including glucose. However, some of that was produced by other members of the cartel, so that they were able to influence considerably the cost price of Jungbunzlauer GmbH’s citric acid-based products; at that time, Jungbunzlauer GmbH had practically no alternative sources of supply.

245 Jungbunzlauer criticises the position taken by the Commission which, in its view, in recitals 282 and 284 of the Decision summarily rejected those arguments on the ground that, from 1994 onwards, Jungbunzlauer took over responsibility for the collection of sales data and that its CEO chaired the cartel meetings. According to the Commission, that was sufficient to demonstrate that the applicant’s ‘involvement in the cartel was active and went much further than it acknowledges’ (recital 284 of the Decision).

246 Jungbunzlauer considers that the Commission exaggerated the importance of the chairmanship of cartel meetings. As the Commission stated in recital 120 of the Decision, that function was connected with the chairmanship of the European Citric Acid Manufacturers’ Association, Jungbunzlauer’s representative having taken over that role only because it was laid down by the rules of the cartel on the basis of a system of rotation. According to Jungbunzlauer, that function consisted mainly in ensuring that the data collection system operated properly and was a ‘thankless’ task involving mostly administrative aspects. In any event, the function did not entail any possibility of greater influence within the cartel. Furthermore, referring to the arguments put forward in paragraph 244 above, the applicant considers that it was not in a position to refuse the chairmanship. In addition, the role of chairman, as understood by the Commission, was inconsistent with the fact that Jungbunzlauer GmbH was always being criticised for not having fully complied with the cartel agreements. Lastly, the applicant considers that, in the context of the relative economic strength described in paragraph 244 above, it seems unrealistic to assume that a medium-sized family undertaking like the Jungbunzlauer group might have been able to impose any kind of measure on the other members of the cartel.

247 Jungbunzlauer submits that taking over the chairmanship of cartel meetings could at most prove that Jungbunzlauer had an important role in the cartel only from 1994, that is to say, in relation to the last year of the period chosen by the Commission. That circumstance can in no way however refute the arguments referred to in paragraphs 243 and 244 above. The taking of such a position approximately three years later certainly does not obviate the fact that, in 1991, Jungbunzlauer was compelled to join the cartel.

248 Likewise, Jungbunzlauer submits, the Commission is wrong in relying on the fact that the applicant regularly attended cartel meetings in the person of its directors. The applicant claims that, first, that was not the case with regard to Messrs R. and H. and, secondly, that a relatively small undertaking such as Jungbunzlauer is characterised by a fairly ‘informal’ hierarchy. The Commission states, in recital 122 of the Decision and in its statement in defence, that the applicant had the role of ‘spokesman’ in relation to measures by the cartel against Chinese producers; on this point it observes that this was only a matter of preparing an anti-dumping complaint to the Commission, which is a legitimate means of defence against distortions of competition caused by imports below cost price and not a breach of Article 81 EC.

249 Lastly, Jungbunzlauer complains that the Commission appropriated for itself the arguments of two members of the cartel in the course of the administrative procedure, namely H&R and HLR, summarised in recitals 279 to 281 of the Decision. On this point the applicant submits, first, that the statements of those two undertakings are incorrect and, secondly, that they have no evidential value because they are statements by co-accused which, naturally, seek to shift to other undertakings the main contribution to the infringement and, third, that the Commission did not refer to those statements in the statement of objections so that, by relying on them in the Decision, it violated Jungbunzlauer’s rights of defence (see, in respect of this third factor, paragraph 336 below).

250 The Commission rejects the applicant’s arguments.

(b) Findings of the Court

251 The third indent of Section 3 of the Guidelines states that the basic amount will be reduced where there are attenuating circumstances such as an ‘exclusively passive or “follow-my-leader” role in the infringement’.

252 In that connection, it is clear from the case-law (Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR I‑1181, paragraph 331) that the factors likely to reveal the passive role of an undertaking within a cartel include the significantly more sporadic nature of its participation in the meetings by comparison with the other members of the cartel ( BPB de Eendracht v Commission , paragraph 88 above, paragraph 343) and also its belated entry into the market where the infringement occurred, irrespective of the duration of its participation in the infringement (see, to that effect, Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie and Others v Commission [1985] ECR 3831, paragraph 100) as well as the existence of express declarations to that effect made by representatives of other undertakings which participated in the infringement (Case T‑317/94 Weig v Commission [1998] ECR II‑1235, paragraph 264). In addition, the Court has held that ‘an exclusively passive role’ of a member of a cartel implies that it adopts a ‘low profile’, that is to say, it does not actively participate in the making of the anti-competitive agreement or agreements (Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 167).

253 In the Decision, the Commission does not describe Jungbunzlauer as a leader, but denies that it had a passive or follow-my-leader role in view of the fact that, as from 1994, Jungbunzlauer took over responsibility for the collection of sales data and its CEO chaired the cartel meetings (recital 284 of the Decision).

255 Secondly, this finding is confirmed by the fact that Jungbunzlauer regularly attended cartel meetings.

256 Thirdly, the applicant cannot properly rely on the economic difficulties it encountered in the period covered by the cartel. It is precisely because of the economic difficulties encountered by all undertakings in the citric acid market at the end of the 1980s that some of them, including the applicant, decided to engage in anti-competitive conduct. As a general rule, cartels like those in the present case come into being when a sector encounters problems (see, to that effect, Tokai Carbon and Others v Commission , paragraph 252 above, paragraph 345).

258 Consequently, the Commission did not infringe the Guidelines in refusing the applicant the benefit of attenuating circumstances by reason of the exclusively passive or follow-my-leader role said to have been taken by Jungbunzlauer GmbH in the infringement.

2. The non-implementation in practice of the cartel agreements by Jungbunzlauer GmbH

(a) Arguments of the parties

259 Jungbunzlauer submits that, in accordance with the second indent of Section 3 of the Guidelines, the Commission ought to have allowed it the benefit of mitigating circumstances by reason of the non-implementation in practice of the cartel agreements by Jungbunzlauer GmbH. Jungbunzlauer claims that, although representatives of Jungbunzlauer GmbH attended meetings regularly, that company followed an independent sales policy oriented towards competition. In addition, more than any other cartel member, Jungbunzlauer GmbH had consistently and over a relatively long period evaded attempts by the other members to ‘discipline’ its policy with regard to conditions of sale and prices.

260 First, Jungbunzlauer claims that, as appears in recital 72 of the Decision, Jungbunzlauer GmbH’s conduct on the market up to 1990 was the reason for the decline in prices of citric acid in Europe which, ultimately, led to the formation of the cartel. It observes that, between 1970 and 1990, Jungbunzlauer GmbH multiplied its sales of citric acid by 30 whereas, over the same period, the total market share rose by scarcely 96%. Those market shares were gained at the expense of the major suppliers of citric acid established in the market. The cartel therefore proved to be a means of subjecting it to a common discipline, as appears from the account of the first meeting of the cartel at Basle on 6 March 1991, given in its reply to the statement of objections. That first meeting proves that the agreements were, from the beginning, contrary to the economic interests of Jungbunzlauer GmbH.

261 Secondly, Jungbunzlauer asserts that, throughout the existence of the cartel, Jungbunzlauer GmbH seriously disrupted the work of the cartel and reduced its effects on the market. Accordingly, although it attended most of the cartel meetings, Jungbunzlauer GmbH was perceived by the other members as a ‘spoilsport’.

262 Jungbunzlauer states that, during the first phase of the cartel, which was from March 1991 to the first half of 1993 (recital 90 of the Decision), Jungbunzlauer GmbH attempted mainly to limit the effectiveness of the cartel. Its principal concern was to prevent the setting-up of a compensation system for penalising failure to abide by quotas. This is proved by the conduct of the representatives of Jungbunzlauer GmbH at the meeting in Jerusalem in May 1992, as described in the applicant’s letter of 29 April 1999, its statement of 21 May 1999 under the Leniency Notice and in its reply to the statement of objections.

263 With regard to the second phase of the cartel, which lasted from the second half of 1993 to May 1995 (recital 91 of the Decision), Jungbunzlauer observes that it was increasingly difficult for the parties concerned to secure adherence to the agreed prices. The applicant submits that, apart from imports from China, it was Jungbunzlauer GmbH that was mainly responsible for that state of affairs because of its attempt to leave the cartel.

264 According to Jungbunzlauer, as appears from recital 117 of the Decision, from the beginning of 1993 growing disagreement began to surface among the members of the cartel, and Jungbunzlauer GmbH was identified as being mainly responsible because it did not adhere to the agreements and refused, according to the other members, to submit to discipline. This was also confirmed by the minutes of the FBI hearing relating to the Chicago meeting in March 1993. The applicant adds that, as it had already informed the Commission in its letter of 29 April 1999, in its statement of 21 May 1999 under the Leniency Notice and in its reply to the statement of objections, and as also appears from the statements of other members of the cartel and the FBI minutes annexed to the reply to the statement of objections, in the course of various meetings between 1993 and 1995 Jungbunzlauer GmbH was criticised by the other members for opposing anti‑competitive measures and for not having implemented some of the agreements. Lastly, at the beginning of 1995, the expulsion of Jungbunzlauer GmbH from the cartel was even being contemplated and, as no solution was found, the activities of the cartel came to an end in the course of a meeting on 22 May 1995.

265 Thirdly, the applicant considers that the non-implementation in practice of the cartel agreements by Jungbunzlauer GmbH appears also in relation to the prices charged by that company. The applicant refers to four graphs which it had sent to the Commission in connection with its reply to the statement of objections. The graphs compared the cartel’s target prices with those actually charged by Jungbunzlauer GmbH in the market. According to the applicant, these show that offers by Jungbunzlauer GmbH were generally below the target prices and, therefore, that to a large extent it undercut the prices fixed by the cartel, and not just occasionally. Contrary to the Commission’s argument, Jungbunzlauer considers that the graphs do not show parallel movement of the target prices and the actual prices of Jungbunzlauer GmbH.

266 The Commission rejects the applicant’s arguments.

(b) Findings of the Court

267 In the second indent of Section 3 of the Guidelines, it is stated that the fine will be reduced where there are attenuating circumstances such as non-implementation in practice of the cartel agreements.

268 For that purpose, it is necessary to check whether the circumstances referred to by the applicant are such as to establish that, during the period in which it was a party to the offending agreements, it actually declined to apply them by adopting competitive conduct on the market (see, to that effect, Cimenteries CBR and Others v Commission , paragraph 141 above, paragraphs 4872 to 4874, and Cheil Jedang v Commission , paragraph 252 above, paragraph 192).

270 In any case, it has already been found in the present case in paragraphs 183 and 184 above that the prices fixed by the cartel and the applicant’s prices were to some extent parallel, although the latter were generally lower than the former. In a situation of that kind, the applicant cannot properly claim in exoneration that the cartel was contrary to its economic interests, that it disrupted the cartel’s work and reduced its effectiveness and generally invoiced prices below those which had been agreed.

271 Consequently, the Commission did not infringe the Guidelines in refusing the applicant the benefit of attenuating circumstances for the non-implementation in practice of the cartel agreements by Jungbunzlauer GmbH.

B – Infringement of the obligation to state reasons

272 Jungbunzlauer submits, in substance, that the Decision does not provide an adequate statement of reasons concerning the non-implementation in practice of the cartel agreements and its follow-my-leader role within the cartel on the ground that the Commission failed to state its position concerning the different arguments put forward by it in the course of the administrative procedure.

273 The Commission seeks the dismissal of this plea.

274 The Court refers to the cases cited in paragraph 100 above and observes that, in recital 284 of the Decision, the Commission stated that ‘the mere fact that from 1994 onwards Jungbunzlauer took over responsibility for the collection of sales data and that its CEO chaired the cartel meetings suffices to demonstrate that Jungbunzlauer’s involvement in the cartel was active and went much further than it acknowledges’.

275 Furthermore, in recitals 218 and 219 of the Decision, the Commission examined and rejected the applicant’s assertion that it did not play an active part in the cartel and did not implement its decisions.

276 In addition, regarding the non-implementation of the agreements, in recital 285 of the Decision, the Commission referred to its analysis in recitals 212 to 218 of the same Decision, where it described in detail the implementation of the cartel agreements by the parties concerned in relation to citric acid prices, quotas and the compensation system.

277 Therefore, contrary to the applicant’s submission, the Decision does provide an adequate statement of reasons on this point.

V – Failure to take account of fines in other countries

A – Arguments of the parties

278 Jungbunzlauer considers that, by refusing to take account of fines already imposed in proceedings in the United States and Canada for infringing the competition rules of those countries, and by refusing to reduce the fine imposed in the Decision on the same grounds, the Commission exceeded the limits of its discretion.

279 Jungbunzlauer observes that, in the proceedings in the United States, the Jungbunzlauer group concluded a plea agreement with the American competition authorities in 1997 in which it undertook to pay a fine of USD 11 million. According to the terms of that agreement, the undertaking relates not only to the parts of the agreements that affected the United States market, but also the parts which were considered to have been implemented in non-member countries. In Sections 2 and 4(b) of the plea agreement, the United States authorities, in calculating the fine, took account of the fact that the cartel was worldwide (‘in the United States and elsewhere’). Jungbunzlauer adds that, in that context, the United States authorities imposed for the first time a much higher fine in referring to the international nature of the agreements. Consequently, the proceedings in the United States also relate to all the agreements and all the acts of the relevant undertakings for implementing them in so far as they relate to the European market. Therefore the operations described in the statement of objections and their repercussions on the European market have already been sanctioned by a fine.

280 The applicant likewise submits that the Canadian competition authorities had also instituted proceedings which may have led to a fine under antitrust law on the basis of the same agreements. In a plea agreement of 1998, the Jungbunzlauer group agreed to pay a fine of CAD 2 million (EUR 1.2 million) to put an end to the proceedings instituted by the Canadian authorities on the basis of the same agreements.

281 In that context, Jungbunzlauer acknowledges, first, that the principle ne bis in idem does not as such apply in the present case, as it involves the relationship between national and Community penal provisions. Jungbunzlauer adds, however, that by virtue of the general principle of natural justice, recognised as such by the Community Courts (Case 14/68 Wilhelm and Others [1969] ECR 1, paragraph 11, and Case T‑149/89 Sotralentz v Commission [1995] ECR II‑1127, paragraph 29), in the present case the Commission ought to have taken account of the idea underlying the principle of ne bis in idem . Jungbunzlauer asserts that the present case relates to a worldwide market in which the cartel agreements had international repercussions and that the United States and Canadian authorities imposed fines for the same facts as the Commission. Therefore, in its view, a penalty imposed by the authorities of a non-member country must affect the Commission’s calculation of the fine, at least where the Commission and the said authorities have to take cognisance of the same facts. This view is shared by numerous legal commentators, including former officials of the Commission. Furthermore, according to Jungbunzlauer, in the judgment in Case 7/72 Boehringer v Commission [1972] ECR 1281, paragraph 3, the Court of Justice considered the question whether fines imposed in non-member countries should be taken into account where the actions complained of are identical. In that judgment, the Court held that, in the setting of the amount of the fine, account must not be taken of fines already imposed abroad for the sole reason that the actions complained of are not identical. This shows that they must be taken into account if the actions are identical.

282 Next, Jungbunzlauer claims that several of the aims of imposing a fine, in particular deterrence and the suppression of enrichment, had already been attained by the penalties imposed in non-member countries. In that connection, Jungbunzlauer emphasises that, in the criminal proceedings in the United States and Canada, it was allowed by reason of its limited resources to pay the fine in instalments over several years. The financial capacity of the Jungbunzlauer group has already been seriously affected by the considerable fines imposed in the United States and Canada. Consequently, those fines must be taken into account from the viewpoint of the aims of imposing a fine.

283 Lastly, according to Jungbunzlauer, the Commission is wrong in objecting that the United States and Canadian authorities have no power to impose fines for restrictions of competition in Community territory because it is clear from the wording of the plea agreement with the United States authorities that they are not limited to the repercussions on the market of that country.

284 The Commission contends that this plea must be dismissed.

B – Findings of the Court

285 It must be observed that the principle ne bis in idem prohibits the same person from being sanctioned more than once for the same unlawful conduct in order to protect one and the same legal interest. The application of that principle is subject to three cumulative conditions: the identity of the facts, the unity of offender and the unity of legal interest protected (see, to that effect, Aalborg Portland and Others v Commission , paragraph 132 above, paragraph 338).

286 The Community case-law has accordingly held that an undertaking may be made defendant in two parallel sets of proceedings concerning the same infringement and, thus, incur concurrent sanctions, one imposed by the competent authority of the Member State in question, the other a Community sanction, to the extent that the two sets of proceedings pursue different ends and that the legal rules infringed are not the same ( Wilhelm and Others , paragraph 281 above, paragraph 11; Case T‑141/89 Tréfileurope v Commission [1995] ECR II‑791, paragraph 191; and Sotralentz v Commission , paragraph 281 above, paragraph 29).

287 It follows that the principle ne bis in idem cannot, a fortiori, apply in a case such as the present, where the procedures conducted and penalties imposed by the Commission on the one hand and the United States and Canadian authorities on the other clearly pursue different ends. The aim of the former is to preserve undistorted competition within the European Union and the EEA, whereas the aim of the latter is to protect the United States and Canadian markets (see, to that effect, Tokai Carbon and Others v Commission , paragraph 252 above, paragraph 134, and case-law cited). The condition of the unity of the legal interest to be protected, which is necessary for the principle ne bis in idem to apply, is accordingly not fulfilled.

288 Therefore, the Court finds that the principle ne bis in idem does not apply to the present case, as argued by Jungbunzlauer and referred to in paragraph 281 above.

289 Jungbunzlauer nevertheless submits that, although that principle does not apply, the Commission, in setting the fine, ought to have taken account of the fines imposed by the American and Canadian authorities which took cognisance of the same actions. According to Jungbunzlauer, this is required by the principle of natural justice and by the attainment of the objectives of a fine, namely deterrence and the suppression of enrichment.

290 With regard to the principle of natural justice, it must be observed that the possibility of concurrent sanctions, one Community, the other national, resulting from two parallel procedures pursuing different ends, the acceptability thereof deriving from the special system of sharing jurisdiction between the Community and the Member States with regard to cartels, is subject to the principle of natural justice. This means that, when setting fines, the Commission must take account of penalties which have already been borne by the same undertaking for the same conduct, where they have been imposed for infringements of the cartel law of a Member State and, consequently, have been committed on Community territory ( Wilhelm and Others paragraph 281 above, paragraph 11; Tréfileurope v Commission , paragraph 286 above, paragraph 191; and Sotralentz v Commission , paragraph 281 above, paragraph 29).

291 However, according to the same case-law, the obligation to take account of the principle of natural justice follows, on the one hand, from the close interdependence of the national markets of the Member States of the common market and, on the other, from the special system of the sharing of jurisdiction between the Community and the Member States with regard to cartels in the same territory.

292 In the present case, however, those factors do not arise and therefore the Commission cannot be criticised for having disregarded that obligation.

293 This finding is not affected by the judgment in Boehringer v Commission , paragraph 281 above, relied on by Jungbunzlauer. In that case, the Court of Justice did not state that the Commission ought to have offset a fine imposed by the authorities of a non-member country where the acts found by the Commission and by those authorities to have been committed by an undertaking are identical, but stated that this question would have to be settled when it arose ( Boehringer v Commission , paragraph 281 above, paragraph 3).

294 In the present case, even if it were accepted that the principle of natural justice requires the Commission to take account of fines imposed by the authorities of non-member countries where the actions found by the Commission to have been committed by an undertaking are the same as those found by an authority of a non-member country to have been committed by the same undertaking, it is clear that Jungbunzlauer has failed to show that the American and Canadian authorities were concerned with acts implementing the cartel or with effects of the cartel other than those affecting their respective territory.

295 The mere reference, in the plea agreement concluded with the United States authorities, to the fact that the cartel related to ‘the United States and elsewhere’ does not prove that, when calculating the fine, the United States authorities took account of acts implementing the cartel or effects of the cartel other than those relating to American territory, and in particular the EEA (see, to that effect, Tokai Carbon and Others v Commission , paragraph 252 above, paragraph 143). Applying the law in that way would be likely to impinge upon the territorial jurisdiction of the Commission.

296 Likewise, with regard to the plea agreement with the Canadian authorities, Jungbunzlauer has failed to prove that, when setting the fine, they were concerned with acts implementing the cartel or with effects of the cartel other than those affecting their respective territory, particularly the EEA.

298 It follows that the Commission has the power to decide the level of fines in order to reinforce their deterrent effect when infringements of a particular type, although established as being unlawful at the outset of Community competition practice, are still relatively frequent on account of the profit that certain of the undertakings concerned are able to derive from them ( Musique diffusion française and Others v Commission , paragraph 199 above, paragraph 108).

299 Jungbunzlauer cannot properly claim that the suppression of the company’s enrichment by reason of the fines already imposed necessarily justifies a reduction in the fine imposed at Community level, since it is the Commission which must ensure that fines have a deterrent effect.

300 Furthermore, Jungbunzlauer cannot properly claim that deterrence was unnecessary in relation to itself on the ground that it had already been fined for the same actions by the courts of non-member countries. The Commission’s aim of deterrence relates to the conduct of undertakings within the Community or the EEA. Consequently, the deterrent effect of a fine imposed on Jungbunzlauer for infringing the Community competition rules cannot be assessed by reference solely to Jungbunzlauer’s specific situation or by reference to whether it has complied with the competition rules in non-member countries outside the EEA (see, to that effect, Tokai Carbon and Others v Commission , paragraph 252 above, paragraphs 146 and 147).

301 Consequently, the plea that no account was taken of fines imposed in other countries must be dismissed.

VI – Maximum amount of fines provided for by Article 15(2) of Regulation No 17

A – Introduction

302 Jungbunzlauer observes that, in recital 293 of the Decision, the Commission reduced the fines for Cerestar and H&R in order not to exceed the maximum limit laid down by Article 15(2) of Regulation No 17. Jungbunzlauer submits that, in this context, the Commission made errors of assessment and infringed the principle of equal treatment and the obligation to state reasons.

303 Jungbunzlauer sets out its present submissions in three limbs, claiming that, in calculating the limit on fines laid down in Article 15(2) of Regulation No 17, the Commission, first, refused to take account of the fines imposed in the so-called sodium gluconate case; secondly, took into account the turnover of Jungbunzlauer Holding AG; and, thirdly, took no account of the fines imposed in other countries.

B – Refusal to take account of the fines imposed in the so-called sodium gluconate case

1. Arguments of the parties

304 Jungbunzlauer submits that the Commission infringed Article 15(2) of Regulation No 17 in failing, so as not to exceed the maximum amount of fines as laid down by that provision, to take into account the fine imposed on it in the sodium gluconate case approximately two months before the adoption of the decision in the present case. It states that, if the Commission had added the two fines together, the application of the maximum amount rule laid down in Article 15(2) of Regulation No 17 would have entailed a reduction in the fine.

305 According to Jungbunzlauer, the Commission artificially severed the two cases. It submits that citric acid and sodium gluconate are related and belong to the same family of products because the raw material is the same for both products, the production processes are largely the same, both products are to a large extent sold through the same distribution channels and they are sold to the same buyers.

306 The difference that exists between the classes of participants in the two cases is not persuasive because the joinder of factual situations cannot depend on the individual decision of an undertaking to produce or not to produce a particular product. In addition, contrary to the Commission’s argument, a comparison of the periods of the infringement in the two cases pleads in favour of a single decision for both cases. Jungbunzlauer adds that the competent authorities in the United States and Canada joined the cases in a single procedure and imposed a single fine for the infringement relating to the two products. Lastly, the applicant submits that the vitamins decision, in which the Commission dealt with eight cartels together in a single decision, shows that it is common practice to group together for procedural purposes independent complaints relating to cartel law.

307 The Commission rejects the applicant’s arguments.

2. Findings of the Court

308 Under Article 15(2) of Regulation No 17, the Commission may impose on undertakings or associations of undertakings fines of up to 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement.

309 In the present case, the applicant complains that the Commission artificially severed the present case from the sodium gluconate case.

310 It is clear from several recitals of the Decision and of the sodium gluconate decision that in 2001 the Commission imposed two fines on the applicant, as it had infringed the competition rules by taking part in two cartels relating to different products which, although related in some of their applications, constituted two distinct relevant markets. As appears from recitals 34 to 39 of the sodium gluconate decision, citric acid is not a general substitute product, but only a partial substitute for sodium gluconate, depending on the area of application. The Court considers that this assessment by the Commission is not erroneous and that therefore, in such a situation, there were objective reasons – not artificial reasons, as the applicant claims – why the Commission instituted two separate procedures, found two separate infringements and imposed, independently, two separate fines for the two offences.

311 From that point of view, contrary to the applicant’s submissions, the Commission acted no differently in the vitamins case. Although, in that case, the Commission joined the procedures relating to the cartels in the vitamins market and adopted a single decision, it nevertheless found separate infringements in relation to each of the vitamins concerned and sanctioned the undertakings in question by imposing eight separate fines.

313 Lastly, the fact, noted by the applicant, that the United States and the Canadian competition authorities joined the citric acid and the sodium gluconate cases is irrelevant for assessing the legality of the approach taken by the Commission with regard to the limit laid down in Article 15(2) of Regulation No 17.

314 Consequently, the first limb of the plea, concerning the refusal to take account of the fines imposed in the sodium gluconate decision in relation to the limit laid down in Article 15(2) of Regulation No 17, must be dismissed.

C – Taking into account the turnover of Jungbunzlauer Holding AG

1. Introduction

315 With regard to taking into account the turnover of Jungbunzlauer Holding AG, the applicant raises pleas alleging, first, infringement of the principle of equal treatment, secondly, of the obligation to state reasons and, thirdly, an error of assessment.

2. Infringement of the principle of equal treatment

Arguments of the parties

316 Jungbunzlauer claims that the Commission failed to observe the principle of equal treatment in that, in order not to exceed the maximum amount laid down by Article 15(2) of Regulation No 17, it took into account the turnover of the Jungbunzlauer group, whereas, in relation to the other two parties to which the Decision was addressed, namely H&R and Cerestar, the Commission did not take account of the turnover of their parent companies or subsidiaries.

317 Jungbunzlauer states that it does not contest the merits of the Commission’s calculation in the cases of H&R and Cerestar, even though, in its view, in doing so the Commission departed from the hitherto-applied method of calculation. Referring to the sodium gluconate and the vitamins decisions, Jungbunzlauer submits that the Commission’s past practice consisted in including in the calculation of the limit of the fine by reference to the global turnover of the undertakings concerned, as laid down in Article 15(2) of Regulation No 17, the turnover of the group, that is to say, the parent company or companies and the subsidiary companies held by that parent company or companies. Jungbunzlauer submits that the Commission ought to have given it the same favourable treatment.

318 In relation to the treatment of H&R, Jungbunzlauer observes that it is clear from recitals 292 and 293 of the Decision that the Commission took into account only the turnover of the subsidiaries controlled by H&R and that, by reason of that choice, it reduced the fine from EUR 122.5 million to EUR 20.31 million. According to Jungbunzlauer, however, had the Commission applied its previous practice, it would not have been necessary to make that reduction. Jungbunzlauer infers from recitals 25 et seq., 50, 183 and 243 of the Decision that, in 2000, H&R belonged to the Bayer group which, in the course of that year, achieved a turnover of EUR 30 971 million.

319 With regard to the treatment of Cerestar, Jungbunzlauer observes that the Commission reduced the fine from EUR 4.55 million to EUR 1.75 million, without giving specific reasons. Jungbunzlauer states that it assumes that the Commission proceeded on the basis of Cerestar’s turnover, referred to in recital 21 of the Decision. Jungbunzlauer notes, however, that, in 2000, Cerestar belonged to the Eridania-Béghin-Say group which, in the same year, had a turnover of EUR 98 053 million (recital 19).

320 Jungbunzlauer observes that, by contrast, so far as it is concerned, the Commission used the turnover of the Jungbunzlauer group (recitals 50, 185 and 293 of the Decision). According to Jungbunzlauer, however, had the Commission applied to it the same calculation method as for H&R and Cerestar, it would have had to take into account only the turnover of Jungbunzlauer which, as a management company, had only a small turnover (approximately EUR 3.5 million). Applying the 10% maximum, that would have led to a considerable reduction in the fine (approximately EUR 0.35 million). Jungbunzlauer adds that, had the Commission used the turnover of Jungbunzlauer GmbH, to which, in the applicant’s opinion, the Decision ought to have been addressed and whose turnover in 2000 was only EUR 197.3 million, the final amount would have been reduced from EUR 29.4 million to EUR 19.73 million.

321 The Commission rejects the applicant’s arguments.

Findings of the Court

322 It must be observed that the principle of equal treatment precludes comparable situations from being treated differently or different situations from being treated in the same way, unless such treatment is objectively justified (see BPB de Eendracht v Commission , paragraph 88 above, paragraph 309, and case-law cited).

323 In the present case, it is clear from recitals 30, 34 and 187 of the Decision, and it has not been disputed by the applicant, that the infringement was committed by the undertakings which were consecutively responsible for the management of the entire group, namely Jungbunzlauer GmbH and, after the group was restructured, Jungbunzlauer. The senior executives of the Jungbunzlauer group attended the cartel meetings and took decisions on the group’s participation in the cartel and its conduct within the cartel.

324 Jungbunzlauer, however, has not even sought to demonstrate that the situation of the two other companies, H&R and Cerestar, was comparable to its own. It has therefore failed to show that in the present case the situation of those two companies was comparable to its own.

325 Consequently, the plea alleging infringement of the principle of equal treatment must be dismissed.

3. Infringement of the obligation to state reasons

326 Jungbunzlauer complains that the Commission failed to provide sufficient detail as to why it did not reduce its fine in accordance with the maximum laid down by Article 15(2) of Regulation No 17. It notes that it was only in the statement in defence that the Commission provided an explanation for the differential treatment of Jungbunzlauer, H&R and Cerestar.

327 The Commission submits that this plea must be dismissed.

328 The Court observes that, in recitals 30 to 34, 187 and 188, the Commission stated the reasons why it had attributed the infringement to Jungbunzlauer as the managing company of the group. An overall reading of the recitals of the Decision shows easily the reasons why the Commission, contrary to what it did in the cases of H&R and Cerestar, did not reduce the fine in accordance with the maximum laid down by Article 15(2) of Regulation No 17. It was therefore under no obligation at all to set out the reasons once again in the part of the Decision relating to the application of the maximum amount.

329 Consequently, the plea alleging infringement of the obligation to state reasons must also be dismissed.

4. Error of assessment in the Commission’s failure to take account of the fines imposed in other countries

330 Jungbunzlauer claims that, to calculate the maximum amount of fines under Article 15(2) of Regulation No 17, it is necessary to add the fines imposed on the Jungbunzlauer group in the United States and Canada (EUR 10.9 million) together with that imposed by the Commission (EUR 29.4 million, before application of the Leniency Notice). This gives a total of EUR 40.3 million, which far exceeds the limit in question.

331 The Commission rejects this argument.

332 The Court considers that it is clear from Article 15(2) of Regulation No 17 that the maximum fine laid down therein applies only to fines imposed by the Commission for infringements of the Community competition rules. This interpretation of Article 15(2) of Regulation No 17 is consistent with the findings in paragraphs 285 to 301 above, namely that the Commission did not infringe the ne bis in idem principle in fining Jungbunzlauer without taking account of the fine it had already paid in the procedures undertaken in non-member countries.

333 Jungbunzlauer is accordingly wrong in criticising the Commission for not having taken account of the fines levied on Jungbunzlauer in the United States and Canada for the purpose of calculating the maximum fine provided for in Article 15(2) of Regulation No 17.

334 Consequently, this limb of the plea and the plea as a whole must be dismissed.

VII – Infringement of the right of access to the file

A – Arguments of the parties

335 Jungbunzlauer submits that the Commission infringed its right of access to the entire file in that it based the Decision on certain documents in relation to which the applicant was not heard. Jungbunzlauer submits that, because of those procedural defects, the Decision or at least that part of it which refers to the documents to which the applicant did not have access should be annulled.

336 According to Jungbunzlauer, the Commission is required to give the undertakings concerned access to all the documents in the case in order to allow them to defend themselves effectively against the charges against them in the statement of objections (Case C‑51/92 P Hercules Chemicals v Commission [1999] ECR I‑4235, paragraph 54, and Cimenteries CBR and Others v Commission , paragraph 141 above, paragraph 144). The right of access to the file also exists in relation to the replies of the other undertakings concerned to the statement of objections ( Cimenteries CBR and Others v Commission , paragraph 141 above, paragraph 384 et seq.). The right of access to the entire file extends not only to all incriminating documents, but also exculpatory evidence. According to Jungbunzlauer, if the possibility cannot be ruled out that the defence of the undertakings concerned was affected by the fact that they did not have full access to the documents in the case, the decision must be annulled ( Cimenteries CBR and Others v Commission , paragraph 141 above, paragraph 156 et seq.). Referring to the Opinion of Advocate General Léger in Case C‑310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I‑865, I‑987, points 119 and 120, and to the order of the President of the Court of First Instance in Case T‑198/01 R Technische Glaswerke Ilmenau v Commission [2002] ECR II‑2153, paragraph 85 et seq., Jungbunzlauer submits that the requirements relating to proof that incomplete access to the file limited the undertaking’s possibilities of defence must not be too stringent.

337 In the present case, Jungbunzlauer complains that the Commission did not disclose to it the replies of Cerestar, H&R, HLR and ADM to the statement of objections. Jungbunzlauer observes that, in footnotes 113 (recital 217), 118 (recital 220) and 119 (recital 223) to the Decision, the Commission quoted extracts from those documents, which related to the implementation of the agreements in practice.

338 Jungbunzlauer submits, however, first, that those documents could have been used in its defence as they supported its own assertions.

339 Secondly, Jungbunzlauer claims that, in recitals 279 and 281 of the Decision, the Commission used against it certain parts of the replies of H&R and HLR to the statement of objections concerning the follow-my-leader role of Jungbunzlauer GmbH.

340 Jungbunzlauer adds that, during the administrative procedure, the Commission asked the parties for non-confidential versions of their replies to the statement of objections. Therefore the Commission could have given the parties concerned access to those documents, without additional administrative costs.

341 The Commission contends that this plea must be dismissed.

B – Findings of the Court

1. Introduction

342 The applicant complains that the Commission did not give it access to the replies of other parties concerned to the statement of objections although, on the one hand, in the Decision the Commission used certain information in the replies as incriminating evidence against the applicant and, on the other, certain other information as evidence exculpating the applicant.

2. Incriminating evidence

344 It is for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence ( Aalborg Portland and Others v Commission , paragraph 132 above, paragraphs 71 to 73).

345 In the present case, the applicant claims that, in recitals 279 and 281 of the Decision, the Commission used against the applicant certain parts of the replies of H&R and HLR to the statement of objections concerning the role of Jungbunzlauer GmbH in the cartel.

346 In that connection, it must be observed that, after summarising the applicant’s arguments relating to the attenuating circumstances on which it considered it was entitled to rely on the basis of its exclusively passive or follow-my-leader role (recitals 275 to 278 of the Decision), and before replying to those arguments (recitals 282 and 284 of the Decision), the Commission summarised the statements of H&R and HLR in their respective replies to the statement of objections (recitals 279 to 281). In those statements, the parties essentially denied that the applicant had played an exclusively passive or follow-my-leader role within the cartel.

347 However, without it being necessary to consider whether the principles set out at paragraphs 343 and 344 above apply to the analysis not only of the existence of a cartel and membership of it, but also to the setting of fines, it must be observed that, in rejecting the applicant’s arguments concerning the benefit of attenuating circumstances on the basis of its exclusively passive or follow-my-leader role, the Commission rightly relied only on the information submitted by the applicant itself in the course of the administrative procedure.

348 In recital 284 of the Decision, the Commission merely observed, in support of its finding, that ‘from 1994 onwards Jungbunzlauer took over responsibility for the collection of sales data and that its CEO chaired the cartel meetings suffices to demonstrate that Jungbunzlauer’s involvement in the cartel was active and went much further than it acknowledges’. The applicant itself had given the Commission that information in its letters of 29 April 1999 and 21 May 1999.

349 Therefore, the conclusion reached by the Commission in the Decision would not have been different if the replies from H&R and HLR to the statement of objections had had to be discounted.

350 Consequently, this limb of the plea must be dismissed.

3. Exculpatory evidence

360 In the light of all the foregoing, the plea alleging infringement of the right of access to the file must be dismissed.

VIII – The effect of the duration of the administrative procedure on the fine

A – Introduction

361 Jungbunzlauer observes that the Decision was adopted almost six and a half years after the infringement came to an end. In particular, the period that elapsed between the end of the infringement and the formal opening of the procedure on 28 March 2000 was very long. According to the applicant, this affected the fine in two ways.

B – The Commission took account of the turnover for 2000 of the undertakings concerned

1. Arguments of the parties

362 Referring to the table in recital 50 of the Decision, Jungbunzlauer observes that, in calculating the fine, in order to take account of the size of the undertakings concerned and the categories into which they were divided, the Commission did not take into account the turnover figures relating to the period of the cartel’s existence (1991 to 1995), but used those for 2000. Jungbunzlauer states that, since the end of the infringement in 1995, its turnover has increased considerably: in 1995 the Jungbunzlauer group obtained only 76.3% of its present turnover and, from 1999 to 2000, group turnover rose by 13.5%.

363 Jungbunzlauer submits that the Commission’s Guidelines state that the Commission will take account of ‘the effective economic capacity of offenders to cause significant damage to other operators’ (fourth paragraph of Section 1A). In that context, the Commission can only take as a basis the size of the undertakings concerned at the date of the infringement, as that figure is the only one that provides a reply to that question, and their turnover at a later date would not be relevant.

364 In addition, the calculation method chosen by the Commission has the effect of unfairly favouring the undertakings which profited from the cartel and which, after it ended, had to suffer a considerable drop in turnover. In contrast, the undertakings which, like Jungbunzlauer, saw their turnover increase after the end of the cartel have unfairly been put at a disadvantage, which is an absurd result.

365 Jungbunzlauer considers that the Commission is wrong in replying to this argument that, if it had imposed the fine at an earlier date, Jungbunzlauer would have been affected more harshly by the fine. Had the Commission adopted its Decision at a date prior to 2001, the fine would have been considerably lower.

366 The Commission rejects the applicant’s arguments.

2. Findings of the Court

367 It must be observed that the application of a multiplier aims to ensure that the fine has a deterrent effect. That effect enables the size and global resources of the undertakings concerned at the date of the fine to be taken into account.

368 Even assuming that, as the applicant claims, the global turnover of the parties concerned grew between the end of the cartel and the year 2000, nevertheless, in applying a multiplier of 2 and 2.5 respectively to the fines calculated for ADM, HLR and H&R, the Commission did not take into account a very exact calculation based on the turnover figures, but asserted that there was a difference in order of magnitude relating to those figures. The applicant does not even claim that this essential difference in order of magnitude changed between 1995 and 2000.

369 Therefore, contrary to the applicant’s submission, in relying on the turnover of the undertakings concerned in 2000 to adjust the amount of the fines, the Commission did not infringe the Guidelines or the principle of equal treatment.

370 Consequently, the applicant’s pleas must be dismissed.

C – Commission policy in relation to fines has become harsher

1. Arguments of the parties

371 Jungbunzlauer claims that, by adopting the Decision and generally in 2001, the Commission sharpened its fines policy considerably. According to Jungbunzlauer, because of the abnormal length of the procedure, the fine imposed on it was the result of the new and harsher practice of the Commission. By contrast, if the procedure had been closed earlier, the applicant would have benefited from the earlier decision-making practice, which was much more advantageous for the undertakings concerned.

372 Jungbunzlauer considers that the abnormally long duration of the procedure is borne out by a comparison with the amino acids and vitamins decisions. According to Jungbunzlauer, those two cases were dealt with far more rapidly than the present case: in the amino acids case, the cartel ended in mid-1995 and the decision was adopted scarcely five years later; in the vitamins case, the cartel ended in the spring of 1999 and the decision was adopted only two years and nine months later. By contrast, in the present case the Decision was not adopted until six and a half years after the agreements finally came to an end. This is all the more surprising since, by comparison with the other cases, the present case was much less complex from both a substantive and procedural viewpoint.

373 Jungbunzlauer argues that, realistically speaking, the procedure in the present case ought to have been completed in two or three years. It also considers that, if the procedure had been completed earlier, first of all, the criteria chosen would have been much less stringent than those which were applied in adopting the Decision and, second, the Decision could even have been adopted before the publication of the Guidelines, so that the previous method of calculation would have been applicable.

374 According to Jungbunzlauer, the difference in the time taken to deal with those cases can be explained only by the fact that the latter were given a different level of priority. The applicant does not dispute that the Commission may determine priorities according to the importance attached to cases from the viewpoint of competition policy. However, that should not result in an undertaking involved in a lower priority case being fined more than other undertakings involved in higher priority cases. Moreover, proceeding in this way is counterproductive with regard to the deterrent purpose of fines.

375 The Commission rejects the applicant’s arguments.

2. Findings of the Court

376 In substance, the applicant considers that if the Commission’s investigation procedure had been completed earlier, the applicant would have benefited from an earlier decision-making practice and much less stringent criteria for determining fines. It adds that the Decision might even have been adopted before the Guidelines were published, so that it could have benefited from the previous method of calculating fines.

377 In that respect, the Court observes that the fact that in the past the Commission imposed fines of a certain level for certain types of infringement does not mean that it is stopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy. The proper application of the Community competition rules in fact requires that the Commission may at any time adjust the level of fines to the needs of that policy (see LR AF 1998 v Commission , paragraph 88 above, paragraph 237, and case-law cited). Therefore, the applicant cannot claim the benefit of previous decision-making practice solely on the ground that the decision relating to itself ought also to have been adopted earlier.

378 In any case, the Court finds that the Commission’s decision-making practice for determining the fine in the Decision proceeds from the application of the criteria laid down in the Guidelines.

379 The Court adds that, in August 1995, the Commission was informed by the United States Department of Justice that it was conducting an investigation into the citric acid market. In April 1997, the Commission was informed by the United States Department of Justice that the applicant had participated in a cartel in the United States. Lastly, in August 1997, the Commission sent requests for information to the four biggest citric acid producers in the Community, including Jungbunzlauer.

380 In view of the foregoing, the Court observes that the mere communication of information to the Commission by the competition authorities of non-member countries cannot entail an obligation for the Commission to open an investigation. The Commission’s general function of supervision in the matter of competition under Article 85 EC does not require the Commission to initiate procedures seeking to establish infringements of Community law (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P, C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 447 and 448, and Case T‑24/90 Automec v Commission [1992] ECR II‑2223, paragraph 74). It follows that no obligation can arise for the Commission to open an investigation procedure on the basis of information provided by the United States Department of Justice.

381 However, although the Commission cannot be required to initiate a procedure as a result of information from competition authorities of non-member countries, it may do so on its own initiative. Accordingly, in the present case the Commission initiated such a procedure shortly after receiving information that the applicant had participated in a cartel in the United States. Therefore, the Court considers that in the present case the Commission cannot be criticised for not having begun to investigate the matter before August 1997.

382 The Court also notes that the applicant considers that an investigation by the Commission lasting two to three years for the present case is entirely realistic.

383 It follows that, even if it were accepted that in the present case the Commission’s investigation should not have lasted more than three years, as the applicant claims, the Guidelines published on 14 January 1998 would, in all probability, have been taken into account by the Commission in calculating the applicant’s fine.

384 Consequently, the Court considers that the applicant has not shown that, without the alleged delay on the Commission’s part in dealing with the present case, the applicant would have benefited from the criteria for determining the fine and, therefore, from the decision-making practice prior to those set out in the Guidelines.

385 Accordingly, the applicant’s argument that the principles and practice applied in its case for determining the amount of the fine were more stringent by reason of an alleged delay in the Commission’s examination of the case must be dismissed.

386 Since none of the pleas raised against the Decision has succeeded, there are no grounds for reducing the fine by virtue of the Court’s unlimited jurisdiction. Therefore, the action must be dismissed in its entirety.

Costs

387 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, as applied for by the defendant and the intervener.

388 Under the first subparagraph of Article 87(4) of those rules, institutions which intervened in the proceedings are to bear their own costs. Therefore the Council, as intervener, is to bear its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby:

1. Dismisses the application;

2. Orders Jungbunzlauer AG to bear its own costs and to pay those incurred by the Commission;

3. Orders the Council to bear its own costs.

Azizi

Jaeger

Dehousse

Delivered in open court in Luxembourg on 27 September 2006.

E. Coulon

J. Azizi

Registrar

President

Table of contents

Facts giving rise to the dispute

Procedure and forms of order sought by the parties

Law

I – Failure to observe the principle of legality

A – Objection of illegality in relation to Article 15(2) of Regulation No 17

1. Arguments of the parties

2. Findings of the Court

B – The correct interpretation of Article 15(2) of Regulation No 17

II – The addressee of the decision

A – Failure to state reasons

B – The plea alleging errors concerning the addressee of the Decision

1. Arguments of the parties

2. Findings of the Court

III – The gravity of the infringement

A – Whether the cartel had an actual impact on the market

1. Introduction

2. Whether there have been errors of assessment

(a) The allegation that the Commission adopted an erroneous approach to show that the cartel had an actual impact on the market

Arguments of the parties

Findings of the Court

– Summary of the Commission’s analysis

– Findings

(b) The assessment of movements in citric acid prices

Costs

1 ? Language of the case: German

2 – Confidential data blanked out.