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European Court reduces fine ADM with €10 million

In a citric acid cartel law suit the European Court reduced Archer Daniels Midland imposed fine from €39.69 million to €29.4 million, because ADM could not be classified as a leader in the cartel on the citric acid market

By decision of 5 December 2001 1 , the Commission imposed fines on five companies for their participation in a secret cartel on the citric acid market, namely ADM (€ 39.69 million), Cerestar Bioproducts (€170 000), Hoffmann-La Roche (€63.5 million), Haarmann & Reimer (€14.22 million) and Jungbunzlauer (€17.64 million).
 
The Commission alleged anticompetitive conduct by four of those undertakings, including ADM, from March 1991 until May 1995, and, in the case of Cerestar, from May 1992 until May 1995.
 
The Commission complained, in particular, that they had allocated specific sales quotas in respect of each undertaking and had adhered to those quotas, had fixed target and/or floor prices, eliminated discounts and exchanged specific customer information.
 
Successful appeal of ADM
ADM brought an action before the Court of First Instance for the annulment of the Commission’s decision and a reduction of the fine.
 
Since, in its judgment of 27 September 2006, the Court of First Instance dismissed ADM’s action in part, ADM lodged an appeal before the Court of Justice.
 
The Court recalls that the Commission, when calculating the amount of the fine, classified ADM as a leader of the cartel.
 
Leadership constitutes an aggravating circumstance which leads to a significant increase in the basic amount of the fine.
 
Similarly, such a classification automatically excludes the granting of a very substantial reduction of the fine, even if an undertaking classified as a leader fulfils all the conditions to qualify for such a reduction.
 
In order to classify ADM as a leader of the cartel, the Commission relied on items of evidence contained in two documents annexed to the statement of objections.
 
The Court finds that those items were not referred to expressly in the wording itself of that statement, thereby preventing ADM from having an opportunity to exercise its rights of defence.
 
The Court therefore sets aside the judgment of the Court of First Instance inasmuch as it rejects the plea of ADM Co. relating to the infringement of its rights of defence during the administrative procedure.
 
Not a leader
Moreover, the Court holds that, since the appellant was not classified lawfully as a leader of the cartel, the Court of First Instance could not, without erring in law, rule out the application of the Leniency Notice on the grounds that ADM had had a leadership role in the cartel.
 
The European Court holds that the Commission did not adduce other relevant evidence capable of establishing ADM as a leader of the cartel.
 
The Court therefore concludes that the Commission was not entitled to apply to the fine imposed on ADM an increase of 35% on account of the aggravating circumstance stemming from that classification.
 
Consequently, the Court reduces the fine to €29.4 million.

Dick Ziggers

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