Judgments nº T-217/03 of Court of First Instance of the European Communities, December 13, 2006

• Resolution Date: December 13, 2006
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-217/03

(Competition – Article 81(1) EC – Beef – Suspension of imports – Fixing of a union price scale – Regulation No 26 – Associations of undertakings – Restriction of competition – Trade union action – Effect on trade between Member States – Obligation to state reasons – Guidelines on the method of setting fines – Principle of proportionality – Gravity and duration of the infringement – Aggravating and attenuating circumstances – Prohibition of multiple sanctions – Rights of the defence)

In Joined Cases T‑217/03 and T‑245/03,

Fédération nationale de la coopération bétail and viande (FNCBV), established in Paris (France), represented by R. Collin, M. Ponsard and N. Decker, lawyers,

applicant in Case T‑217/03,

Fédération nationale des syndicats d’exploitants agricoles (FNSEA), established in Paris,

Fédération nationale bovine (FNB), established in Paris,

Fédération nationale des producteurs de lait (FNPL), established in Paris,

Jeunes agriculteurs (JA), established in Paris,

represented by B. Neouze and V. Ledoux, lawyers,

applicants in Case T‑245/03,

supported by

French Republic, represented initially by G. de Bergues, F. Million and R. Abraham, and subsequently by M. de Bergues, E. Belliard and S. Ramet, acting as Agents,

intervener,

v

Commission of the European Communities, represented by P. Oliver, A. Bouquet and O. Beynet, acting as Agents,

defendant,

APPLICATIONS, principally, for annulment of Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 EC (Case COMP/C.38.279/F3 – French beef) (OJ 2003 L 209, p. 12) and, alternatively, an application for the cancellation or reduction of the fines imposed by that decision,

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

composed of R. García-Valdecasas, President, J.D. Cooke and I. Labucka, Judges,

Registrar: E. Coulon,

having regard to the written procedure and further to the hearing on 17 May 2006,

gives the following

Judgment

Legal context

1 Article 1 of Regulation No 26 of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products (OJ, English Special Edition 1959-1962, p. 129) provides that Articles [81] to [86] EC and provisions made in implementation thereof shall, subject to Article 2 of that regulation, apply to all agreements, decisions and practices referred to in Articles [81](1) and [82] EC which relate to production of or trade in the products listed in Annex [I] to the Treaty, including in particular live animals and meat and edible meat offals.

2 Article 2(1) of that regulation provides as follows:

‘Article 81[1] EC shall not apply to such of the agreements, decisions and practices referred to in the preceding Article as form an integral part of a national market organisation or are necessary for attainment of the objectives set out in Article [33 EC]. In particular, it shall not apply to agreements, decisions and practices of farmers, farmers’ associations, or associations of such associations belonging to a single member State which concern the production or sale of agricultural products or the use of joint facilities for the storage, treatment or processing of agricultural products, and under which there is no obligation to charge identical prices, unless the Commission finds that competition is thereby excluded or that the objectives of Article [33 EC] are jeopardised.’

Facts

3 The applicant in Case T‑217/03, the Fédération nationale de la coopération bétail et viande (FNCBV), comprises 300 cooperative groups of producers in the cattle, pig and sheep-farming sectors and some 30 slaughter and meat-processing groups or undertakings in France.

4 The applicants in Case T‑245/03, namely the Fédération nationale des syndicats d’exploitants agricoles (FNSEA), the Fédération nationale bovine (FNB), the Fédération nationale des producteurs de lait (FNPL) and Jeunes agriculteurs (JA), are unions governed by French law. FNSEA is the main French farmers’ union. Territorially it consists of local unions grouped together in departmental (département) federations or unions of farmers (FDSEA or UDSEA). In each region federations coordinate the activities of FDSEA and UDSEA. In addition, FNSEA comprises 33 specialised associations representing the interests of each type of producer, including FNB and FNPL. Lastly, JA represents farmers under 35 years of age. To be a member of the local centre of JA, it is necessary to be a member of a local union belonging to FDSEA or UDSEA.

I – Second ‘mad cow’ crisis

5 From October 2000, new cases of bovine spongiform encephalopathy, commonly known as ‘mad cow’ disease, were discovered in several Member States. At the same time, there was an outbreak of foot-and-mouth disease in sheep in the United Kingdom. This situation caused a loss of confidence on the part of consumers, which had an impact on meat consumption in general in Europe and created a new crisis in the beef sector. There was a sharp drop in beef consumption, particularly in France, and also a substantial reduction in French imports and exports. Likewise producer prices of adult cattle fell very considerably in France, while final consumer prices remained relatively stable.

6 To meet this crisis, the Community institutions adopted a whole series of measures. The scope of the intervention mechanisms for withdrawing certain quantities of cattle from the market so as to stabilise supply in relation to demand was extended and a scheme for the purchase of live animals was set up, together with a purchase scheme based on a tender procedure for carcasses or half-carcasses (‘special purchase scheme’). In addition, the Commission authorised several Member States, including France, to grant aid to the beef sector.

7 However, those measures were deemed insufficient by French farmers. In September and October 2001 relations between farmers and slaughterers became particularly tense in France. Groups of farmers stopped lorries illegally in order to check the origin of the meat being transported and blockaded abattoirs. These acts some times led to the destruction of plant and of meat. In return for lifting the blockade of abattoirs, the protesting farmers demanded undertakings from the slaughterers to suspend imports and to apply a so-called ‘union’ price scale.

II – Conclusion of the contested agreements and administrative procedure before the Commission

8 In October 2001 several meetings took place between the federations representing beef farmers (the applicants in Case T-245/03) and those representing the slaughterers (the Fédération nationale de l’industrie et des commerces en gros des viandes (FNICGV) and the applicant in Case T-217/03). Following a meeting on 24 October 2001, organised at the request of the French Minister for Agriculture, an agreement (‘Agreement of the federations of stock farmers and slaughterers on the minimum slaughterhouse entry price scale for culled cows’) was concluded between the six federations, namely FNSEA, FNB, FNPL, JA, FNCBV and FNICGV.

9 The agreement had two parts. The first was a ‘temporary commitment to suspend imports’, which made no distinction between types of beef. The second consisted of a ‘commitment to apply the slaughterhouse entry price scale to culled cows’ (that is to say, cows to be used either for reproduction or milk production), the arrangements for which were set out in the agreement. Consequently it contained a list of prices per kilogram of carcass for certain categories of cows and the method of calculating the price to be applied to other categories, depending inter alia on the special purchase price set by the Community authorities. The agreement was to enter into force on 29 October 2001 and to be applied until the end of November 2001.

10 On 30 October 2001 the Commission sent the French authorities a letter requesting information on the agreement of 24 October 2001.

11 On 31 October 2001 the applicants in Case T-245/03 and FNICGV held a meeting at Rungis (France) on the initiative of the latter. Those federations adopted the following compromise (‘the Rungis protocol’):

‘“Meat imports” meeting

31 October 2001 − Rungis

The French undertakings specialising in the import and export sector have held a meeting with the producers’ federations (FNSEA, FNB, FNPL and [JA]) that signed the national inter-trade agreement of 24 October 2001.

…

They reaffirm the imperative need to bring supply and demand back into balance …

In the unprecedented crisis situation currently facing producers, the representatives of the farmers urge importers and exporters to be aware of the seriousness of the crisis.

In response, the importers and exporters undertake to demonstrate solidarity.’

12 On 9 November 2001, the French authorities replied to the Commission’s request for information of 30 October 2001.

13 Also on 9 November 2001, the Commission wrote to the applicants in Case T‑245/03 and to FNICGV requesting information pursuant to 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 1959-62, p. 87). As the Commission was not at that time aware that the applicant in Case T‑217/03 had also signed the agreement of 24 October 2001, the request for information was not sent to it. The five federations in question replied to the requests for information on 15 and 23 November 2001.

14 On 19 November 2001, the president of FNICGV informed the president of FNSEA that he felt obliged to bring forward to that day the final date of application of the agreement, initially scheduled for 30 November 2001.

15 On 26 November 2001, the Commission wrote a letter of formal notice to the six federations which had signed the agreement of 24 October 2001 stating that the facts which had come to its knowledge indicated that the Community competition rules had been infringed and the federations were asked to submit their...