C-359/01

OPINION OF MRS STIX-HACKL — CASE C-359/01 P

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 21 October 2003 1

I — Introduction Article 85 of the EC Treaty'. 3The decision was addressed to British Sugar pic, Tate & Lyle plc, Napier Brown & Co. Ltd and James Budgett Sugars Ltd, and contained the determination that those undertakings 1. This case concerns the review of the had infringed Article 85(1) of the EC Treaty judgment of the Court of First Instance of (now Article 81(1) EC) by participating in 12 July 2001 in Joined Cases T-202/98, an agreement and/or a concerted practice, T-204/98 and T-207/98 2 ('the contested the purpose of which was to restrict judgment'). competition on the British markets for retail and industrial sugar by coordinating their pricing policies.

2. The background is formed by the proceedings leading to the contested judg- ment and in which a complaint was made 4. In the case of British Sugar, which is the of anti-competitive conduct by sugar man- appellant in these proceedings ('the appel- ufacturers and sugar traders in the United lant'), the Commission makes the accusa- Kingdom (except for Northern Ireland). For tion in its decision that, between 20 June further information, particularly as to the 1986 and 2 July 1990, the appellant situation on the British markets for retail coordinated its pricing policy by informing and industrial sugar during the period the other addressees about sugar price relevant to the proceedings, reference is increases which it was seeking. The fine made to the contested judgment. imposed on the appellant by the decision amounts to ECU 39 600 000.

(3) Articles 3 and 4 of the contested decision be annulled or the fine I I— Forms of order sought and pleas in reduced; and law on appeal

7. The appellant seeks a declaration: (4) that the Commission pay the appellant's costs incurred in rela- tion to the appeal and in relation to Case T-204/98, including those relating to the proceedings for (1) that the agreement/concerted practice interim relief. was not capable of affecting trade between Member States; or, alterna- tively,

The Commission contends:

(2) that the fine imposed was dispropor- tionate,

(1) that the Court of Justice should dismiss the appeal as partly inadmissible and partly unfounded, or, in the alterna- and further seeks an order in the tive, dismiss it as unfounded in its following terms: entirety;

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4 — Case 5/69 Völk [1969] ECR 295; Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commis- sion [1980] ECR 3125; Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others [1993] ECR I-1307; Case 1. Arguments of the parties 246/86 Belasco and Others v Commission [1989] ECR 2117; Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739; Joined Cases T-24/93 to T-26/93 and T-28/93 Compagnie maritime beige transports and Others v Commission [1996] ECR II-1201; Case T-29/92 SPO and Others v Commission [1995] ECR II- 289; and Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711. 9. The appellant refers first to paragraph 5 — Case 73/74 Groupement des fabricants de papiers peints and 80 et seq. of the contested judgment, in Others v Commission [1975] ECR 1491.

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BRITISH SUGAR v COMMISSION

14. The Commission argues that the Court of First Instance made no error in law by holding, in the contested judgment, that trade between Member States might be affected. 12. The appellant, with reference to the case-law of the Court of Justice and of the Court of First Instance, 6further complains that, in paragraph 83 et seq. of the contested judgment, the Court of First Instance failed to take account of the fact that the potential effect on trade between 15. It is, the Commission submits, clear Member States had to be 'appreciable'. A from the case-law 7 that, when assessing the merely speculative, contrived or remote likelihood of trade between Member States possibility is, the appellant submits, not being affected in the case of agreements/ sufficient. concerted practices extending over the whole territory of the Member State, all the circumstances must be taken into account. Facts extraneous to the agree- ments/concerted practices themselves can therefore be taken into account, and it is irrelevant what contribution an individual participating undertaking may have had or 13. The appellant also complains that, in what intentions it may have been pursuing the contested judgment, the Court of First in that regard. 8

6 — Case 22/71 Beguelin [1971] ECR 949; Joined Cases 7 — Joined Cases 228/82 and 229/82 Forti v Commission [1984] C-215/96 and C-216/96 Bagnasco and Others [1999] ECR ECR 1129; Case 56/65 Société Technique Minière [1966] I-135; Case 22/78 Hugin Kassaregister and Others v ECR 235; Bagnasco, cited in footnote 6 above; and Commission [1979] ECR 1869; Joined Cases T-374/94, Compagnie maritime belge, cited in footnote 4 above. T-375/94, T-384/94 and T-388/94 European Night Services 8 — C a s e T-14/89 Montedipe v Commission [1992] ECR II- and Others [1998] ECR II-3141. 1155.

16. In paragraph 80 et seq., the contested States be appreciable, the Commission judgment accordingly fulfilled the require- argues that the appellant has misunder- ments set out in consistent case-law for stood the contested judgment. The Court there to be a likelihood of trade between of First Instance did not determine in Member States being affected by referring paragraph 84 of the contested judgment, to the circumstances of the anti-competitive of which the appellant complains, that an concerted practice in its entirety (territorial agreement/concerted practice covering the scope; market position of the participants; whole territory of a Member State and thus fundamental susceptibility of the market to reinforcing the screening-off of the national imports; general intention of the partici- market carries an inference that the poten- pants to prevent imports). tial adverse effect is also appreciable,11but it did make that determination in paragraph 78, in line with the case-law of the Court of Justice. 12 There is no threshold value for appreciability. Rather, the Commission argues, the general rule is that the smaller the amount of trade between Member States is, the greater the inference that the 17. With regard to the general intention of potential adverse effect upon it is appreci- the appellant and Tate & Lyle to prevent able. 13 imports, the Commission argues that, according to the case-law of the Court of Justice, 9 it is not a question of whether the adverse effect on trade between Member States forms the subject-matter of a con- certed practice of which complaint has been made. It is sufficient that the effects of a concerted practice make such an adverse effect seem possible. As the Court of Justice held in Belasco, 10 that is the case with a 19. In answer to the appellant's criticism of pricing cartel that covers the whole of the the way in which the markets for retail and national territory, because the members of industrial sugar were considered together, the cartel can hold on to their market share the Commission replies that, even if they only if they defend themselves against had been considered separately, no other competition from other Member States. assessment in relation to the appreciable nature or otherwise of the adverse effect on trade between Member States would have been possible. The prerequisites (funda- mental susceptibility to imports, partici- pants' share of the markets in question of around 90%) were also present in the case of those two partial markets. 18. Concerning the requirement that the adverse effect on trade between Member 11 —Case C-7/95 P John Deere v Commission [1998] ECR I-3111; Case C-35/96 Commission v Italy [1998] ECR I-3851. 9 — Société Technique Minière, cited in footnote 7 above. 12 — Bagnasco, cited in footnote 6 above. 10 — Cited in footnote 4 above. 13 — SPO, cited in footnote 4 above.

24. This reasoning is, in my opinion, not immediately convincing, as stated above, 21. In paragraph 79 of the contested because, when considering whether trade judgment, the Court of First Instance relies between Member States might be affected, a on 'settled case-law', according to which general distinction must be made between 'the fact that a cartel relates only to the pricing cartels and market-sharing cartels. marketing of products in a single Member State is not sufficient to exclude the possibility that trade between Member States might be affected. Since the market concerned is susceptible to imports, the members of a national price cartel can retain their market share only if they defend 25. Pricing cartels normally serve to safe- themselves against foreign competition.' guard particularly high prices, and are therefore, in principle, liable rather to cause or increase imports than adversely to affect them. Accordingly, in the case-law, it is assumed only in the case of market-sharing cartels that they screen off the relevant 22. In my opinion, the Court of First Instance's assumption that, in this case, trade between Member States might have 14 — Cited in footnote 4 above.

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26. In the case of this pricing cartel on the British sugar market, as the decision shows, there has only been the disputed informa- tion policy. There have been no related measures to strengthen the cartel, and neither has it been claimed that such 28. As stated above, a national price cartel measures in one form or another were is aimed fundamentally at maintaining necessary or likely. Nor are there any particularly high domestic prices. A price indications of other features, either of the cartel aimed at preventing imports, on the other hand, tries to keep domestic prices at the low level necessary for that purpose. 15 — Case C-219/95 P Ferriere Nord v Commission [1997] ECR The view of the Court of First Instance — I-4411; Case 42/84 Remia and Others v Commission [1985] ECR 2545. as expressed in paragraph 81 of the 16 — Case 8/72 Cementhandelaren v Commission [1972] ECR contested judgment — appears to be that 977; Groupement des fabricants de papiers peints, cited in this must have been a pricing cartel which footnote 5 above; Belasco, cited in footnote 4 above. 17 — Commission v Italy, cited in footnote 12 above — customs was designed, at the same time, to serve agents, and Case C-309/99 Wouters [2002] ECR I-1577 — both the usual interest of participants in the accountants. 18 — John Deere, cited in footnote 11 above, at paragraph 119. highest possible prices and the interest of

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BRITISH SUGAR v COMMISSION

30. As the Court of First Instance has (b) Whether the adverse effect on trade determined in the contested judgment, between Member States was appreciable however, there has been no agreement in this case to fix a particular price level. The appellant merely informed its competitors in some detail about its prices on the British sugar market.

33. In paragraph 84 of the contested judgment, the Court of First Instance relied on its own case-law, 19to the effect that 'the

31. An information policy of this kind is eminently suited to maintaining a general, 19 — Hercules Chemicals, cited in footnote 4 above, at highest-possible level of prices, that is to say paragraph 279.

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OPINION OF MRS STIX-HACKL — CASE C-359/01 P

38. With regard to the likelihood of there being an appreciable effect, the arguments of the appellant in the present proceedings 35. In paragraph 84 of the contested thus contain a new standpoint that was not judgment, the Court of First Instance put forward in that way in the proceedings correctly held, with reference to its earlier before the Court of First Instance. To that case-law there cited, that there was no need extent, therefore, the plea on appeal is for proof that an agreement/concerted inadmissible under Article 113(2) of the practice did in fact appreciably affect trade Rules of Procedure. 20 between Member States. Proof of actual adverse effects is also logically impossible in connection with the concept of 'possible 20 — Case C-450/98 P/1ECC v Commission [2001] ECR1-3947, adverse effects'. at paragraph 36.

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BRITISH SUGAR v COMMISSION

3. Result 41. Concerning disregard of the propor- tionality principle when assessing the amount of the fine, the appellant argues as follows:

The appellant further argues that, in para- graph 106 of the contested judgment, the Court of First Instance erred in law by 1. Arguments of the parties failing to take account of the absence of effects in relation to the duration of the breach of competition law. According to the Guidelines, the increase when assessing the basic amount of the fine in the case of infringements of long duration is to be 40. The appellant complains of paragraph considerably strengthened 'with a view to 98 et seq. of the contested judgment, in imposing effective sanctions on restrictions which, it claims, the Court of First Instance which have had a harmful impact 21 on failed to take account of the fact that, in consumers over a long period'. If, however, assessing the amount of the fine, the Commission disregarded (a) the principle of proportionality and (b) the particular structure of the British sugar market. 21 — Emphasis added.

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as in this case, there has been no such 43. The Commission argues that the sec- impact, no increase for duration can be ond plea on appeal is inadmissible, or, in imposed. the alternative, unfounded.

22—Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v 23 — Case C-185/95 P Baustahlgewebe v Commission [1998] Commission [1975] ECR 1663. ECR I-8417.

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explains its decision by reference to the 46. As for taking into account the parti- Guidelines and argues that the appellant's cular structure of the British sugar market, role as inciter of the breach of competition the Commission argues that the Court of law was taken into account not from the First Instance rightly understood the judg- point of view of 'gravity' when assessing the ment in Suiker Unie, 25 since in that basic amount, but as an 'aggravating judgment the Court of Justice clearly laid circumstance' in relation to uplifting fac- down that a pricing cartel on the sugar tors. The Court of First Instance under- market of a Member State is to be assessed stood that in paragraph 100 et seq., and differently from the market-sharing cartel rightly confirmed it. In general terms, that was at issue in that case. moreover, the Guidelines were not intended as a statutory text and do not contain any precise tariffs for fines.

2. Assessment

In relation to the duration of the infringe- ment of competition law, the Commission 47. The second plea on appeal is argues that Article 15(2) of Regulation No inadmissible. The Commission has rightly 17 24 cites the gravity and the duration of referred to consistent case-law in that an infringement aš independent aspects respect. when assessing the fine, so that the duration of an infringement can be taken into account even if it had no actual effect on competition.

49. In its judgment in Baustahlgewebe, 27 the Court of Justice held:

50. In these proceedings, the appellant has 'In the first place, it must be borne in mind not put forward anything to support the that the Court of First Instance alone has view that the Court of First Instance has not jurisdiction to examine how in each parti- taken account of all factors in a legally cular case the Commission appraised the correct manner. In particular, in paragraph gravity of unlawful conduct. In an appeal, 113 of the contested judgment, of which the the purpose of review by the Court of appellant complains, the Court of First Justice is, first, to examine to what extent Instance gave due consideration to the the Court of First Instance took into case-law of the Court of Justice in Suiker consideration, in a legally correct manner, Unie, in that it drew attention to the all the essential factors to assess the gravity differences from the present set of facts, of particular conduct in the light of Article and assessed those differences in a legally 85 of the Treaty and Article 15 of Regula- correct manner. tion No 17 and, second, to consider whether the Court of First Instance responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced ...

51. Nor has the appellant even claimed that, in the contested judgment, the Court As regards the allegedly disproportionate of First Instance did not go into all the nature of the fine, it ... is not for the Court arguments for a possible reduction of the of Justice, when ruling on questions of law fine that were submitted in the proceedings in the context of an appeal, to substitute, on before it. In particular, in paragraph 106 of grounds of fairness, its own assessment for the contested judgment, the Court consid- that of the Court of First Instance exercising ered the submissions of the present appel- lant as to taking into account the absence of market effects of the conduct complained 27 — Cited in footnote 23 above, at paragraph 128 et seq. of.

56. As explained above, however, on the strength of the pleas in law made on appeal, 54. The Commission argues that the appeal the appeal should be dismissed in its is inadmissible in so far as it seeks annul- entirety. There is therefore no need to ment of the decision 'in whole' or annul- determine whether the appeal is inadmis- ment of 'Articles 3 and 4'. As the Court of sible in so far as it seeks to have the decision Justice held in AssiDomän, 28 the Court of 'in whole' or 'Articles 3 and 4' annulled. 29 Justice can, in the context of a claim for

29 — In general, however, similar considerations would apply as 28 — Case C-310/97 P Commission v AssiDomän Kraft in paragraph 53 of the judgment in AssiDomän, cited in Products and Others [1999] ECR I-5363, at paragraph 53. footnote 28 above.

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IV — Conclusion

57. For the above reasons, I propose that the Court of Justice should: