Press and Information Division
PRESS RELEASE N1 58/03
9 July 2003
Lysine is the principal amino acid used for nutritional purposes in animal feedstuffs.
Synthetic lysine is used as an additive in feedstuffs which contain insufficient natural
lysine, for example cereals, which enables nutritionists to formulate protein-based diets which meet
the dietary requirements of animals.
In 1995, following a secret investigation by the Federal Bureau of Investigation, searches
were carried out in the United States at the premises of several companies
operating in the lysine market. Following those investigations, Archer Daniels Midland, Kyowa Hakko
Kogyo, Sewon, Cheil Jedang and Ajinomoto were charged by the American authorities with
having formed a cartel to fix lysine prices and to allocate sales of
lysine between June 1992 and June 1995.
In July 1996 Ajinomoto offered to cooperate with the Commission in proving the
existence of a cartel in the lysine market and its effects in the
European Economic Area (EEA). The Commission sent to the undertakings requests for information
concerning their conduct on the amino acids market and the meetings of the
cartel.
By decision of 7 June 2000 the Commission found 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,
from July 1990 to June 1995.
In that decision, the Commission applied the method set out in the Guidelines
for calculating fines imposed pursuant to Article 15(2) of Council Regulation No 17.
The Commission found, first, that the undertakings had all committed a very serious
infringement. However, it applied differential treatment to them, taking the view, on the
basis of their total turnover during the last year of the period of
the infringement, that there was a considerable disparity of size between the undertakings.
After considering the gravity of the infringement, the Commission then took into account
its duration and thus determined the basic amount of the fine for each
of the undertakings. That amount was increased and/or reduced to take account of
aggravating or mitigating circumstances, such as a role as ringleader or, conversely, a
passive role played by an undertaking in the cartel.
In its decision, the Commission imposed total fines of around EUR 110 million
on the companies participating in the cartel.
In their actions before the Court of First Instance, Archer Daniels Midland, Kyowa
Hakko Kogyo, Daesang-Sewon and Cheil Jedang complained of the procedure adopted in fixing
the fine. In particular, two of them objected to the fact that they
had already been fined in the United States for their participation in that
same world-wide cartel, a fact which the Commission had not taken into account.
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.
Furthermore, although fairness requires the Commission to take account, when fixing the amount
of a fine, of penalties already imposed on the undertaking in question for
infringements of the cartel law of a Member State, the Court considers that
there is no such obligation on the Commission where the previous fines were
imposed by authorities or courts of a non-Member State.
The Court finds, however, that the Commission did not apply the reductions granted
on account of mitigating circumstances in the same way to all the undertakings
concerned.
It finds that the percentage increases or reductions adopted on account of aggravating
or mitigating circumstances must be applied to the basic amount of the fine,
determined by reference to the gravity and duration of the infringement, and not
to the amount of an increase previously applied in respect of the duration
of the infringement or to the figure resulting from the first increase or
reduction adopted to reflect an aggravating or a mitigating circumstance. That method of
calculating the fines ensures equal treatment between the various undertakings participating in one
and the same cartel.
|
Number of the case |
Name of the applicant | Amount of fine imposed by the Commission (Decision 2001/418/EC) (Euros) |
Judgment of the Court of First Instance (Euros) |
| T-220/00 | Cheil Jedang Corporation | 12 200 000 | reduction of the fine to 10 080 000 |
| T-223/00 |
Kyowa
Hakka Kogyo Co. Ltd Kyowa Hakka Europe GmbH |
13 200 000 | original fine upheld |
| T-224/00 |
Archer Daniels Midland Company Archer Daniels Midland Ingredients Ltd |
47 300 000 |
fine reduced to 43 875 000 |
| T-230/00 |
Daesang Corporation Sewon Europe GmbH |
8 900 000 |
fine reduced to 7 128 240 |
| Total | 81 600 000 | 74 283 240 | |
|
Available in French, English and German For the full text of the judgment, please consult our website www.curia.eu.int at around 15.00 hours today. For further information please contact Christopher Fretwell: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731 |