The dispute relates to whether fines against multinationals in the EU should be calculated on income generated within the bloc's member states, or on worldwide income.

In his writtenopinion , Antonio Tizzano, one of the advocate generals at the court, said the European Commission was correct in using the food processor's worldwide revenue as the basis for calculating the fine.The court's judges usually follow the advice of their attorney generals.

The European Commission fined ADM and other companies in South Korea and Japan in 2000 for fixing the prices of lysine, an amino acid used as an ingredient in animal feed. The decision was made after US regulators broke up a global lysine cartel in 1996 that involved the companies.

The European Commission originally fined ADM €48.3m, one of the largest antitrust penalties ever made by the administrative arm of the bloc.

The fine was reduced by the European Court of Justice in 2003 to €43.9m after an appeal by ADM. The company had asked the court to throw out thefine or at least reduce it because the US and Canada had already levied fines against it for being part of the cartel.

In the new appeal currently before the court, the company says the fine should only have been calculated on sales within the EU's member states and that it was unfair when compared to the penalties levied against the other companies in the cartel.

ADM's European subsidiary is Archer Daniels Midland Ingredients,which operates in the cereals and oil seed processing sector. The subsidiary entered the lysine market in 1991. ADM had a 20 per cent share of the lysine market in the EU according to court documents.

Under EU law the European Commission can impose fines "not exceeding 10 per cent of the turnover in the preceding business year of each of the undertakings participating in the infringement".

The guidelines also state: "It goes without saying that the final amount calculated according to this method (basic amount increased or reduced on a percentage basis) may not in any case exceed10 per cent of the worldwide turnover of the undertakings, as laid down by Article 15(2) of Regulation No 17."

In his written advice Tizzano said the "no such obligation can be inferred either from the Community case-law or from Article 15 of Regulation No 17 or even from the wording of the guidelines"relating to whether fines should be based only on sales within the EU.

Lysine is the principal amino acid used for nutritional purposes in animal feedstuffs. Synthetic lysine is used as an additive in feedstuffs, such as cereals, which contain insufficient natural lysine. Feedstuffs to which synthetic lysine is added may also substitute for feedstuffs which do contain a sufficient quantity of lysine in the natural state, such as soybean.

In 1995, following a secret investigation by the US Federal Bureau of Investigation, searches were carried out in the US of several companies operating in the lysine market.

In August and October 1996, regulators charged Archer Daniels Midland, Kyowa Hakko Kogyo, Sewon, Cheil Jedang, and Ajinomoto with fixing the price of lysine and allocating sales among each other between June 1992 and June 1995.

Archer Daniels Midland was fined $70m. Three of its executives were sentenced to terms of imprisonment and fined for their part in the cartel. Kyowa Hakko Kogyo and Ajinomoto were each fined $ 10m,Cheil Jedang was fined $1.25m and Sewon was fined $328,000.

ADM is one of the world's largest processors of soybeans, corn, wheat and cocoa and employs 26,000 people at 250 processing plants. The company makes food ingredients, animal feed ingredients,renewable fuels and naturally derived alternatives to industrial chemicals. The company reported net sales of $36.2bn (€29.5bn) for the financial year ended 30 June 2004.

Foodstuff or medicinal product?

The European Court of Justice is due to issue a judgementtomorrow (9 June) in the case of HLH Warenvertrieb on whether EU law allows the classification of a product as a food in one member state and as a medicinal product in another.

The case was referred to the Court of Justice by a provincial court in Germany relating to HLH Warenvertrieb's product Lactobact omni FOS. In May 2003 the German court asked the EU court to decidewhether the product was a food or a medicinal product and whether the decision would be binding on all other member states.

The German court also asked the EU court to decide:

• Is it relevant when classifying the product that, according to the directions for use, it is intended to be dissolved in water or in yoghurt? Or is the condition in which it is imported the determining factor?
• If the Court of Justice concludes that the product in question is medicinal, but that in those member states where it has hitherto been regarded as a foodstuff whether it should continue to be classified as a foodstuff.
• If Lactobact omni FOS is a foodstuff (food supplement), is it then a novel food within the meaning of Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients? What is the relationship between the various legal bases?

The European High court has joined four other similar cases relating to food product classification to the HLH Warenvertrieb issue, including one relating to vitamin supplements and probiotics.