Judgments nº T-410/03 of Court of First Instance of the European Communities, June 18, 2008

• Resolution Date: June 18, 2008
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-410/03

In Case T-410/03,

Hoechst GmbH, formerly Hoechst AG, established in Frankfurt am Main (Germany), represented initially by M. Klusmann and V.†Turner, then by M.†Klusmann, V.†Turner and M.†R¸ba, and finally by M.†Klusmann and V.†Turner, lawyers,

applicant,

v

Commission of the European Communities, represented initially by W. Mˆlls, O. Beynet and K. Mojzesowicz, and subsequently by W.†Mˆlls and K.†Mojzesowicz, acting as Agents, assisted by A.†Bˆhlke, lawyer,

defendant,

APPLICATION for annulment, so far as the applicant is concerned, of Commission Decision 2005/493/EC of 1 October 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Chisso Corporation, Daicel Chemical Industries Ltd, Hoechst AG, The Nippon Synthetic Chemical Industry Co. Ltd and Ueno Fine Chemicals Industry Ltd (Case No†COMP/E-1/37.370 - Sorbates) (Summary in OJ 2005 L 182, p.†20), or, in the alternative, a reduction to an appropriate level of the amount of the fine imposed on the applicant,

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

composed of M.†Vilaras, President, F. Dehousse and D. -v·by, Judges,

Registrar: K. Andov·, Administrator,

having regard to the written procedure and further to the hearing on 8 February 2007,

gives the following

Judgment

†Facts

1 ††††††††By Decision 2005/493/EC of 1 October 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Chisso Corporation, Daicel Chemical Industries Ltd, Hoechst AG, The Nippon Synthetic Chemical Industry Co. Ltd and Ueno Fine Chemicals Industry Ltd (Case No†COMP/E-1/37.370 - Sorbates) (-the Decision-), the Commission found that a number of undertakings had infringed Article 81†EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a cartel on the sorbates market.

2 ††††††††The undertakings to which the Decision was addressed are Chisso Corporation, Daicel Chemical Industries Ltd (-Daicel-), The Nippon Synthetic Chemical Industry Co. Ltd (-Nippon Synthetic-), Ueno Fine Chemicals Industry Ltd (-Ueno-), all established in Japan, and the applicant, Hoechst AG, subsequently Hoechst GmbH, established in Germany.

3 ††††††††The period during which the infringement was found to have been committed lasted from 31 December 1978 until 31 October 1996 (for Chisso, Daicel, Ueno and Hoechst) and from 31 December 1978 until 30 November 1995 (for Nippon Synthetic).

4 ††††††††-Sorbates-, as defined in the Decision, are chemical preservatives (anti-microbial agents) capable of retarding or preventing growth of micro-organisms, such as yeast, bacteria, moulds or fungi. They are used essentially in food and beverages. Sorbates sometimes also preserve other food characteristics such as flavour, colour, texture and nutritional value. In addition, sorbates are also used to stabilise other types of products such as pharmaceutical products, cosmetics, pet food and animal feed (recital 56 to the Decision).

5 ††††††††According to the Decision, there are three types of sorbates. First, sorbic acid is the main product, from which other sorbates derive. It is a technically complex substance to produce and of limited application owing to its low solubility in water. Second, potassium sorbate is used where high water solubility is desired. Third, calcium sorbate is used for the coating of cheese wrapping paper in France and Italy. Sorbic acid represents almost 30% of sorbates sales in Western Europe, potassium sorbate represents 70% and calcium sorbate represents a residual part (recitals 57 to 61 to the Decision).

6 ††††††††At the material time there were seven large suppliers of sorbates at worldwide level: two undertakings were European (Hoechst and Cheminova A/S); one was in the United States (Monsanto, later Eastman Chemical Company); and the remaining four undertakings were Japanese (Chisso, Daicel, Nippon Synthetic and Ueno) (recital 64 to the Decision).

7 ††††††††Until September 1997, when it transferred its sorbates business to one of its wholly-owned subsidiaries (Nutrinova Nutrition Specialities†&†Food Ingredients GmbH, -Nutrinova-), Hoechst was the main operator on the worldwide market (more than 20% in 1995) and on the European market (more than 45% in 1995). Hoechst was followed by Chisso, Daicel, Nippon Synthetic and Ueno (each of which had between 9.5 and 15% of the European market for the same year (recitals 65 and 70 (Table I of the Decision)).

8 ††††††††According to recitals 4 and 5 to the Decision, lawyers acting for Chisso met the representatives of the Commission-s services on 29 September 1998 in order to inform the Commission that Chisso was willing to cooperate within the framework of 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 1996 Leniency Notice) concerning a worldwide cartel on the sorbic acid market.

9 ††††††††On 27 October 1998 Nutrinova-s lawyer also contacted the Commission-s services and informed them that Nutrinova was willing to cooperate within the framework of the 1996 Leniency Notice.

10 ††††††On 29 October 1998, at a meeting between lawyers acting for Hoechst and Nutrinova and the Commission-s services, an oral description of the relevant market, the producers, market shares, the proceedings in the United States and the cartel-s activities was provided.

11 ††††††On 13 November 1998, Chisso provided an oral description of the cartel-s activities to the Commission-s services and supplied documentary evidence.

12 ††††††On 9 December 1998 the Commission-s services received oral testimony from Chisso-s representative in the cartel, who supplied explanations and clarifications about the documents submitted on 13 November 1998.

13 ††††††On 21 December 1998 Nutrinova submitted a memorandum on the sorbates market.

14 ††††††On 19 March and 28 April 1999 Nutrinova submitted a memorandum setting out the anti-competitive activities affecting the sorbates market and documentary evidence.

15 ††††††On 20 April 1999 Chisso submitted a declaration confirming and expanding upon the oral statement made at the meeting of 13 November 1998.

16 ††††††On that basis, the Commission on 26 May and 17 June 1999 issued requests for information to Daicel, Nippon Synthetic and Ueno under Article 11 of Council Regulation No†17 of 6 February 1962, First Regulation implementing Articles [81†EC] and Article [82†EC] (OJ, English Special Edition 1959-62, p.†87) (recital 6 to the Decision).

17 ††††††On 15 July 1999, 24 October 2001 and 21 February 2002 respectively, Nippon Synthetic, Ueno and Daicel expressed their willingness to cooperate under the 1996 Leniency Notice. They responded to the Commission-s requests for information (recitals 7, 10 and 11 to the Decision).

18 ††††††The Commission subsequently sent further requests for information under Article 11 of Regulation No†17, the last such request being sent on 13 December 2002 (recital 21 to the Decision).

19 ††††††Between 1998 and 2001 proceedings were initiated in the United States and in Canada concerning price-fixing in the sorbates sector. Fines were imposed on Daicel, Hoechst, Nippon Synthetic and Ueno (in the proceedings in the United States) and Daicel, Hoechst and Ueno (in the proceedings in Canada) (recitals 30 to 32 to the Decision).

20 ††††††On 20 December 2002 the Commission initiated a proceeding under Article 81†EC and Article 53 of the EEA Agreement and issued a statement of objections to the undertakings to which the Decision is addressed (recital 22 to the Decision).

21 ††††††On 24 April 2003 the undertakings to which the Decision is addressed took part in the hearing before the Commission (recital 29 to the Decision).

22 ††††††On 1 October 2003 the administrative procedure was closed when the Commission adopted the Decision.

23 ††††††According to Article 1 of the operative part of the Decision, the following undertakings had infringed Article 81(1)†EC and, from 1 January 1994, Article 53(1) of the EEA Agreement, by participating, for the periods indicated below, in a complex, single and continuous agreement and concerted practice in the sorbates sector, by which they had agreed to fix target prices and to allocate volume quotas, to define a reporting and monitoring system and not to supply technology to potential entrants:

a)††††††Chisso, from 31 December 1978 to 31 October 1996;

b)††††††Daicel, from 31 December 1978 to 31 October 1996;

c)††††††Hoechst, from 31 December 1978 to 31 October 1996;

d)††††††Nippon Synthetic, from 31 December 1978 to 30 November 1995;

e)††††††Ueno, from 31 December 1978 to 31 October 1996.

24 ††††††In Article 2 of the operative part of the Decision, the Commission ordered the undertakings listed in Article 1 to bring to an end immediately the infringements referred to in that article, in so far as they have not already done so, and to refrain from repeating any act or conduct described in Article 1 and from adopting any measure having equivalent object or effect.

25 ††††††On the basis of the findings of fact and the legal assessments made in the Decision, the Commission imposed on the undertakings concerned fines calculated in application of the method set out in 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 (OJ 1998 C†9, p.†3, -the Guidelines-) and in the 1996 Leniency Notice.

26 ††††††In Article 3 of the operative part of the Decision, the Commission imposed the following fines:

a)††††††Daicel: EUR 16†600†000;

b)††††††Hoechst: EUR 99†000†000;

c)††††††Nippon Synthetic: EUR 10†500†000;

d)††††††Ueno: EUR 12†300†000.

27 ††††††The amount of the fine imposed on Hoechst takes into account, in particular, the role as leader of the cartel which it played jointly with Daicel, and also of the fact that its conduct constituted a repeated infringement (recitals 363 to 373 to the Decision). However...