Dole Food Company, Inc. and Dole Fresh Fruit Europe v European Commission.

• Jurisdiction: European Union
• Celex Number: 62013CJ0286
• ECLI: ECLI:EU:C:2015:184
• Court: Court of Justice (European Union)
• Docket Number: C-286/13
• Procedure Type: Recurso de casación - infundado
• Date: 19 March 2015

JUDGMENT OF THE COURT (Second Chamber)

19 March 2015 (*1 )

Table of contents

Background to the dispute

The procedure before the General Court and the judgment under appeal

Forms of order sought by the parties

The appeal

The first ground of appeal, alleging breach of the rights of the defence, on account of procedural errors

The first part of the first ground of appeal, relating to the consent given to the Commission to address for the first time before the General Court evidence in the administrative file

– Arguments of the Dole companies

– Findings of the Court

The second part of the first ground of appeal, concerning the admissibility of an item of evidence produced by the Dole companies in the course of the hearing before the General Court

– Arguments of the Dole companies

– Findings of the Court

The third part of the first ground of appeal, concerning the General Court’s rejection of Annex C.7 to the reply as inadmissible

– Arguments of the Dole companies

– Findings of the Court

The fourth part of the first ground of appeal, relating to an infringement of the principle of equality of arms

The fifth part of the first ground of appeal, concerning the General Court’s establishment of the facts

– Arguments of the Dole companies

– Findings of the Court

The second ground of appeal, alleging distortion of the facts relating to the economic context of the infringement

Arguments of the Dole companies

Findings of the Court

The third ground of appeal, alleging inadequate assessment of the evidence

The first part of the third ground of appeal, relating to the claim that there are insufficient grounds for it to be possible to confirm the Commission’s calculation of market shares

– Arguments of the Dole companies

– Findings of the Court

The second and third parts of the third ground of appeal, concerning the claim that aspects of the pre-pricing communications and the pricing factors constituting a restriction of competition were not clearly identified

– Arguments of the Dole companies

– Findings of the Court

The fourth part of the third ground of appeal, concerning the responsibility of the employees involved in the pre-pricing communications

The fifth part of the third ground of appeal, concerning the characterisation of the pre-pricing communications as constituting a restriction of competition by object

– Arguments of the Dole companies

– Findings of the Court

Fourth ground of appeal, alleging miscalculation of the fine

The first part of the fourth ground of appeal, relating to the claim that sales to companies which were not involved in the infringement alleged were taken into account

– Arguments of the Dole companies

– Findings of the Court

The second part of the fourth ground of appeal, concerning the claim that certain sales were counted twice

– Arguments of the Dole companies

– Findings of the Court

Costs

‛Appeals — Competition — Agreements, decisions and concerted practices — European banana market — Coordination in the setting of quotation prices — Obligation to state reasons — Belated statement of reasons — Belated submission of evidence — Rights of defence — Principle of equality of arms — Principles governing the establishment of the facts — Distortion of the facts — Assessment of the evidence — Market structure — Requirement for the Commission to specify those aspects of the exchange of information which constitute a restriction of competition by object — Burden of proof — Calculation of the fine — Whether sales made by subsidiaries not involved in the infringement are to be taken into account — Sales of the same bananas counted twice’

In Case C‑286/13 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 May 2013,

Dole Food Company, Inc., established in Westlake Village (United States),

Dole Fresh Fruit Europe, formerly Dole Germany OHG, established in Hamburg (Germany),

represented by J.-F. Bellis, lawyer,

appellants,

the other party to the proceedings being:

European Commission, represented by M. Kellerbauer and P. Van Nuffel, acting as Agents,

defendant at first instance,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, K. Lenaerts, Vice-President of the Court, acting as Judge of the Second Chamber, J.-C. Bonichot, A. Arabadjiev (Rapporteur), and J.L. da Cruz Vilaça, Judges,

Advocate General: J. Kokott,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 8 October 2014,

after hearing the Opinion of the Advocate General at the sitting on 11 December 2014,

gives the following

Judgment

1 By their appeal, Dole Food Company, Inc. (‘Dole Food’) and Dole Fresh Fruit Europe, formerly Dole Germany OHG (‘DFFE’) (together, ‘the Dole companies’) seek to have set aside, in whole or in part, the judgment of the General Court of the European Union in Dole Food and Dole Germany v Commission (T‑588/08, EU:T:2013:130) (‘the judgment under appeal’), by which that court dismissed their action for annulment of Commission Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article 81 EC (Case COMP/39 188 — Bananas) (‘the contested decision’). The Dole companies also seek the annulment of that decision, in so far as it concerns them, and the annulment or reduction of the fine imposed on them by that judgment.

Background to the dispute

2 For the purposes of these proceedings, the background to the dispute, as set out in paragraphs 1 to 32 of the judgment under appeal, may be summarised as follows.

3 Dole Food is a United States company which produces fresh fruit, fresh vegetables and pre-packed and frozen fruits. DFFE is a subsidiary of that company.

4 On 8 April 2005, Chiquita Brands International, Inc. (‘Chiquita’) lodged an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).

5 On 3 May 2005, the European Commission granted Chiquita conditional immunity from fines, pursuant to point 8(a) of the Leniency Notice.

6 On 20 July 2007, the Commission sent a statement of objections to a number of undertakings which it had inspected, including Chiquita, the Dole companies, Fresh Del Monte Produce, Inc. (‘Del Monte’), and Internationale Fruchtimport Gesellschaft Weichert & Co. KG (‘Weichert’).

7 On 15 October 2008, the Commission adopted the contested decision, by which it found that the undertakings to which it was addressed had participated in a concerted practice consisting in coordinating their quotation prices for bananas marketed in Austria, Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands and Sweden, between 1 January 2000 and 31 December 2002 (recitals 1 to 3 to the contested decision).

8 At the material time, banana shipments to northern European ports and the volumes marketed in that region were determined each week by production, shipment and marketing decisions taken by producers, importers and traders (recitals 36, 131, 135 and 137 to the contested decision).

9 The banana business distinguishes three levels of banana brands: premium Chiquita brand bananas, second-tier bananas (Dole and Del Monte brands) and third-tier bananas, which include a number of other banana brands. This brand-division is reflected in banana pricing (recital 32 to the contested decision).

10 During the relevant period, the banana business in northern Europe was organised in weekly cycles. Banana shipping from Latin American ports to Europe took approximately two weeks. Banana shipments to northern European ports generally arrived on a weekly basis and were made according to regular shipping schedules (recital 33 to the contested decision).

11 Bananas were shipped green and were green on arrival at the ports. They were then either delivered directly to buyers (green bananas) or ripened and then delivered approximately one week later (yellow bananas). Ripening could be carried out by the importer or on his behalf or be organised by the buyer. Importers’ customers were generally ripeners or retail chains (recital 34 to the contested decision).

12 Chiquita, Dole Food and Weichert set their quotation prices for their brands each week, in practice on Thursday mornings, and announced them to their customers. The expression ‘quotation prices’ usually corresponded to quotation prices for green bananas, while quotation prices for yellow bananas were normally the green quote plus a ripening fee (recitals 104 and 106 to the contested decision).

13 The prices paid by retailers and distributors for bananas (‘actual prices’) could be the result either of negotiations taking place on a weekly basis, in fact on Thursday afternoon or later, or of the implementation of supply contracts with pre-established pricing formulae mentioning a fixed price or linking the price to a quotation price of the seller or a competitor or another quotation price, such as ‘the Aldi price’. Each Thursday, between 11 a.m. and 11.30 a.m., the Aldi retail chain received offers from its suppliers and then sent a counter-offer; the ‘Aldi price’, the price paid to suppliers, was generally set at...