Judgment_paragraph 35 · Archer Daniels Midland Co. v Commission of the European Communities (T-59/02)

35ADM acknowledges that the Commission has discretion to increase fines where competition law policy requires higher dissuasive fines. However, in imposing a fine of 10 to 34 times that which would have been fixed under its former approach, the Commission manifestly overstepped any such discretion. Contrary to the Commission's contention, that conclusion is borne out by the judgment of the Court of First Instance in Case T-16/99 Lögstör Rör v Commission [2002] ECR II-1633, paragraph 237. In that judgment, the Court of First Instance made the Commission's ability to increase the level of fines within the limits indicated in Regulation No 17 subject to the condition that doing so is necessary to ensure the implementation of Community competition policy. The Commission has not provided any explanation nor put forward any evidence in either the Decision or its pleadings such as to show that the implementation of that policy required the imposition of fines 10 to 34 times higher than those resulting from the former standard practice. ADM also observes that in Lögstör Rör v Commission and all the other cases dealing with the pre-insulated pipes cartel, apart from the case concerning ABB (Case T-31/99 ABB Asea Brown Boveri v Commission [2002] ECR II-1881), the Commission imposed fines of a level comparable to the level prevailing when its earlier practice was followed. ADM asserts that the undertakings participating in that cartel were fined only between 3 % and 14 % of the affected sales and even ABB's fine represented only 44 % of its affected sales.