Luxembourg, 09/07/2003 (Agence Europe) - The EU's Court of First Instance has announced that it had clarified the criteria for fixing the amount of fines imposed by the Commission in the competition sector, in its Cheil Jedang Corporation ruling on Tuesday. The Court of First Instance had reduced by EUR 7,316,760 the fines imposed by the European Commission on four extra-Community companies for having taken part in an agreement on the lysine market (the main amino acid used in animal feed for nutritional purposes).
The fine on Cheil Jedang Corporation (Korea) has fallen from EUR 12 200 000 to EUR 10 080 000; that on Daesang-Sewon (Korea) from EUR 8 900 000 to 7 128 240. Kyowa Hakko (Japan) is to pay all of its fine, fixed at EUR 13 200 000 by the Commission. Archer Daniels Midland (United States) has a fine that falls from EUR 47 300 000 to 43 875 000. The company Ajimoto (Japan), also condemned to EUR 47 300 000, did not take part in the legal action.
The four other companies called on the Court of First Instance to cancel the Commission's decision of 7 June 2000, which noted that there had been a series of agreements on prices, sales volumes and the exchange of individual information on sales volumes of synthetic lysine, covering the whole of the EEA (European Economic Area), from July 1990 to June 1995. The Commission had used the method set out in the guidelines for the calculation of fines imposed in application of Article 15 paragraph 2 of the Council Regulation No 17.
In their action before the Court of First Instance, two of the four companies brought before the judges had mentioned the fact that they had been sanctioned in the United States for taking part in this same global cartel, something that the Commission had not taken into account during the procedure for fixing the fine, they said.
The Court of First Instance finds that the principle of non bis in idem, according to which a person who has already been tried may not be prosecuted or fined for the same conduct, cannot be applied in the present case, because the procedures initiated and fines imposed by the Commission, on the one hand, and by the authorities of a non-Member State, in this case the United States, on the other, do not pursue the same objectives. These objectives, the Court explains, are to preserve competition that is not distorted on the European Union and EEA territory in the case of the EU, and to protect the American market in the case of the USA. Furthermore, it continues, there is currently no international public law banning authorities or jurisdictions of different States to prosecute and punish a person because for the same offence.
The Court of First Instance notes, moreover, that the Commission has not applied the reductions granted for attenuating circumstances in the same way to all the companies concerned. It considers that the percentages corresponding to such reductions must be applied to the basic amount of the fine and not according to the method used by the Commission (depending on previously applied increases). Only the method recommended by the Court of First Instance guarantees equal treatment between the various undertakings participating in one and the same cartel, the Court of First Instance states.
It should be noted that this is the Fourth Chamber of the Court of First Instance presided by the Greek Judge, Mihalés Vilaras - the two other judges of this "three-judge" Chamber being Virpi Tiili from Finland and Paolo Mengozzi of Italian nationality - who made the ruling.
The companies concerned have two months in which to request cancellation of this ruling by the Court. The appeal is not suspensive.