Fresh Del Monte Produce, Inc. v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2013:129
• Court: General Court (European Union)
• Docket Number: T‑587/08
• Date: 14 March 2013
• Procedure Type: Recurso contra una sanción - infundado
• Celex Number: 62008TJ0587

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

14 March 2013 ( *1 )

‛Competition — Agreements, decisions and concerted practices — Market in bananas — Decision finding an infringement of Article 81 EC — Information exchange system — Concept of a concerted practice having an anti-competitive object — Causal link between the collusion and the conduct of the undertakings on the market — Single infringement — Imputation of the infringement — Rights of the defence — Fines — Gravity of the infringement — Cooperation — Mitigating circumstances’

In Case T-587/08,

Fresh Del Monte Produce, Inc., established in George Town, Cayman Islands (United Kingdom), represented initially by B. Meyring, lawyer, and E. Verghese, Solicitor, and subsequently by B. Meyring,

applicant,

supported by

Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG, established in Hamburg (Germany), represented by A. Rinne, lawyer, C. Humpe and S. Kon, Solicitors, and C. Vajda QC,

intervener,

v

European Commission, represented initially by M. Kellerbauer, A. Biolan and X. Lewis, and subsequently by M. Kellerbauer, A. Biolan and P. Van Nuffel, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C(2008) 5955 of 15 October 2008 relating to a proceeding under Article 81 [EC] (Case COMP/39188 ‐ Bananas) and, in the alternative, for a reduction of the fine

THE GENERAL COURT (Eighth Chamber),

composed of L. Truchot, President, M.E. Martins Ribeiro (Rapporteur) and H. Kanninen, Judges,

Registrar: J. Weychert, Administrator,

having regard to the written procedure and further to the hearing on 1 February 2012,

gives the following

Judgment

Facts giving rise to the dispute

1 The Fresh Del Monte Produce group (‘the Del Monte group’) is one of the world’s leading vertically-integrated producers, marketers and distributors of fresh and fresh-cut fruit and vegetables, as well as a leading producer and distributor of prepared fruits and vegetables, juices, beverages, snacks and desserts in Europe, the United States, the Middle East and Africa. It markets its products, including bananas, worldwide under the Del Monte brand.

2 Fresh Del Monte Produce Inc. (‘Del Monte’ or ‘the applicant’) is the holding company and ultimate parent company of the Del Monte group. That group is involved in the marketing of bananas in Europe via numerous wholly-owned subsidiaries, including Del Monte Fresh Produce International Inc. (‘DMFPI’), Del Monte (Germany) GmbH and Del Monte (Holland) BV.

3 Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG (‘Weichert’ or ‘Interfrucht’ or ‘the intervener’) was, at the material time, a German limited liability partnership company, primarily involved in the marketing of bananas, pineapples and other exotic fruits in Northern Europe. From 24 June 1994 until 31 December 2002 Del Monte held an indirect 80% shareholding in Weichert, through its wholly-owned subsidiary Westeuropa-Amerika-Linie GmbH (‘WAL’), which Del Monte purchased in 1994 through its subsidiary Global Reefer Carriers Ltd. Weichert was until 31 December 2002 the exclusive distributor for Northern Europe of Del Monte-branded bananas.

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, after Chiquita had produced new declarations and additional documents, the Commission of the European Communities granted it conditional immunity from fines, in application of point 8(a) of the Leniency Notice.

6 After carrying out inspections on 2 and 3 June 2005 pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) at the premises of various undertakings and sending a number of requests for information pursuant to Article 18(2) of Regulation No 1/2003, the Commission sent a statement of objections on 20 July 2007 to Chiquita, Chiquita International Ltd, Chiquita International Services Group NV, Chiquita Banana Company BV, Dole Food Company, Inc. (‘Dole’) and Dole Fresh Fruit Europe OHG, Del Monte, DMFPI, Del Monte (Germany), Del Monte (Holland), Fyffes plc (‘Fyffes’), Fyffes International, Fyffes Group Limited, Fyffes BV, FSL Holdings NV, Firma Leon Van Parys NV (‘Van Parys’) and Weichert.

7 The undertakings mentioned in paragraph 6 above were given access to the Commission’s investigation file in the form of a copy on DVD, apart from the recordings and transcriptions of the corporate statements made orally by the applicant for immunity and the documents relating thereto, which were made available at the Commission’s premises.

8 Following the hearing of the undertakings concerned, which took place on 4 to 6 February 2008, Weichert sent the Commission a letter on 28 February 2008 containing comments and annexes.

9 On 15 October 2008 the Commission adopted Decision C(2008) 5955 final relating to a proceeding under Article 81 [EC] (Case COMP/39188 – Bananas) (‘the contested decision’), which was notified to Del Monte on 22 October 2008.

Contested decision

10 The Commission states that the undertakings to which the contested decision is addressed participated in a concerted practice by which they coordinated their quotation prices for bananas marketed in Northern Europe, namely Austria, Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands and Sweden, between 1 January 2000 and 31 December 2002 (1 December 2002 for Chiquita) (recitals 1 to 3 to the contested decision).

11 At the material time imports of bananas into the European Community were regulated by Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1), which provided for a regime based on import quotas and tariffs. The Commission observes that while import quotas of bananas were set annually and allocated on a quarterly basis with a certain limited flexibility between the quarters of a calendar year, 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).

12 The banana business distinguished three levels of banana brands, called ‘tiers’: premium Chiquita brand bananas, second-tier bananas (Dole and Del Monte brands) and third-tier bananas (also called ‘thirds’), which included a number of other banana brands. This brand-division was reflected in banana pricing (recital 32 to the contested decision).

13 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).

14 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).

15 Chiquita, Dole 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 (recital 104 to the contested decision).

16 The prices paid by retailers and distributors for bananas (known as ‘actual prices’ or ‘transaction prices’) could be the result either of negotiations taking place on a weekly basis, in fact between Thursday afternoon and Friday (or later in the current week or at the beginning of the following week), 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 reference price, such as the ‘Aldi price’. The Commission states that 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 around 2 p.m. From the second half of 2002 the ‘Aldi price’ began to be increasingly used as an indicator for banana pricing formulae in certain other transactions, including for branded bananas (recitals 34 and 104 to the contested decision).

17 The Commission observes that the undertakings concerned engaged in bilateral pre-pricing communications during which they discussed banana price-setting factors, that is to say, factors relevant to the setting of quotation prices for the forthcoming week, or discussed or disclosed price trends or gave indications of quotation prices for the forthcoming week. Those communications took place before the parties set their quotation prices, usually on Wednesdays, and all related to future quotation prices (recital 51 et seq. to the contested decision).

18 Dole thus communicated bilaterally with both Chiquita and Weichert. Chiquita was...