FSL Holdings and Others v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2015:383
• Court: General Court (European Union)
• Date: 16 June 2015
• Docket Number: T-655/11
• Procedure Type: Recurso contra una sanción
• Celex Number: 62011TJ0655

JUDGMENT OF THE GENERAL COURT (Second Chamber)

16 June 2015 ( *1 )

‛Competition — Agreements, decisions and concerted practices — European banana market in Italy, Greece and Portugal — Coordination in the fixing of prices — Admissibility of evidence — Rights of defence — Misuse of powers — Evidence of the infringement — Calculation of the fine’

In Case T‑655/11,

FSL Holdings, established in Antwerp (Belgium),

Firma Léon Van Parys, established in Antwerp,

Pacific Fruit Company Italy SpA, established in Rome (Italy),

represented by P. Vlaemminck, C. Verdonck, B. Van Vooren and B. Gielen, lawyers,

applicants,

v

European Commission, represented by M. Kellerbauer and A. Biolan, acting as Agents,

defendant,

APPLICATION, primarily, for annulment of Commission Decision C(2011) 7273 final of 12 October 2011 relating to a proceeding under Article 101 [TFEU] (Case COMP/39482 — Exotic Fruit (Bananas)), and, in the alternative, for a reduction in the fine,

THE GENERAL COURT (Second Chamber),

composed of M.E. Martins Ribeiro (Rapporteur), President, S. Gervasoni and L. Madise, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written procedure and further to the hearing on 4 November 2014,

gives the following

Judgment

Facts giving rise to the dispute

1 By the present action, FSL Holdings (‘FSL’), Firma Léon Van Parys (‘LVP’) and Pacific Fruit Company Italy SpA (‘PFCI’) (jointly referred to as ‘the applicants’ or ‘Pacific’) seek the annulment of Commission Decision C(2011) 7273 final of 12 October 2011 relating to a proceeding under Article 101 [TFEU] (Case COMP/39482 — Exotic Fruit (Bananas)) (‘the contested decision’).

2 The applicants are active in the importation, marketing and sales of ‘Bonita’ branded bananas in Europe (recital 14 of the contested decision). LVP, PFCI and the entities belonging to the same group and involved in the banana business in Europe may be referred to as ‘Pacific’, ‘Pacific Fruit’, ‘Bonita’ or ‘Noboa’, depending on the source of information, since the Bonita brand is owned by the Noboa Group (recitals 15 and 16 of the contested decision).

3 On 8 April 2005, Chiquita Brands International Inc. (‘Chiquita’) applied for immunity pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) in relation to the business of distribution and marketing of imported bananas as well as pineapples and other fresh fruit in Europe. That application was registered as Case COMP/39188 — Bananas (recital 79 of the contested decision).

4 On 3 May 2005, the Commission of the European Communities granted Chiquita conditional immunity from fines under point 8(a) of the 2002 Leniency Notice in respect of an alleged secret cartel affecting the sale of bananas and pineapples in the European Economic Area (EEA) (recitals 79 and 345 of the contested decision).

5 On 15 October 2008, the Commission adopted Decision C(2008) 5955 final relating to a proceeding under Article [101 TFEU] (Case COMP/39188 — Bananas) (summary published in OJ 2009 C 189, p. 12; ‘the decision in Case COMP/39188 — Bananas’), finding that Chiquita, the Dole group and Internationale Fruchtimport Gesellschaft Weichert & Co. KG (‘Weichert’), at the time under the decisive influence of the Del Monte group, had infringed Article 81 EC by engaging in a concerted practice by which they coordinated quotation prices for bananas that they set weekly for Austria, Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands and Sweden between 2000 and 2002 (recital 80 of the contested decision).

6 In the context of the investigation in Case COMP/39188 — Bananas, the Commission carried out inspections at the premises of several importers of bananas, including at LVP’s premises in Antwerp (Belgium) and, on 20 July 2007, addressed a statement of objections to a number of banana importers, including FSL and LVP, though FSL and LVP were not ultimately addressees of the decision in Case COMP/39188 — Bananas.

7 On 26 July 2007, the Commission received copies of documents from the Italian tax authority, which had been obtained during an inspection carried out at the home and office of an employee of Pacific in the course of a national investigation (recital 81 of the contested decision).

8 On 26 November 2007, Chiquita was informed orally by the Commission’s Directorate-General for Competition (‘DG Competition’) that Commission officials would, on 28 November 2007, be carrying out an inspection at the premises of Chiquita Italia SpA. On that occasion, Chiquita was informed that an investigation relating to southern Europe would be conducted under case number COMP/39482 — Exotic Fruit (Bananas) and it was reminded that it had received conditional immunity from fines for the whole European Community and that it had a duty to cooperate (recital 82 of the contested decision).

9 From 28 to 30 November 2007, the Commission carried out inspections at the offices of banana importers in Italy and Spain 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 [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) (recital 83 of the contested decision).

10 In the course of the investigation, the Commission sent several requests for information to the parties and to customers as well as to other market participants, including ports and port authorities, the parties were asked to re-submit certain items of information and evidence which were contained in the investigation file of Case COMP/39188 — Bananas, and Chiquita was requested to identify the parts of its oral statements in that case which it deemed to be related to this investigation (recital 84 of the contested decision). On 9 February 2009, DG Competition issued a state-of-play letter to Chiquita in connection with its cooperation under the 2002 Leniency Notice (recital 85 of the contested decision).

11 On 10 December 2009 the Commission adopted a statement of objections in Case COMP/39482 — Exotic Fruit (Bananas) addressed to Chiquita, Fruit Shippers Ltd and the applicants. After having obtained access to the file, all addressees of the contested decision made known to the Commission their views and took part in the hearing held on 18 June 2010 (recitals 87 and 88 of the contested decision).

12 On 12 October 2011 the Commission adopted the contested decision.

Contested decision

13 The Commission states that the contested decision relates to a cartel between Chiquita and Pacific in the importation, marketing and sales of bananas in Greece, Italy and Portugal (‘the southern European region’) during the period from 28 July 2004 to 8 April 2005 (recitals 1, 73, 93 to 95, 306 and 330 of the contested decision).

14 The product which is the subject of the proceedings is bananas (fresh fruit). Both unripened (green) bananas and ripened (yellow) bananas are covered by the contested decision. Bananas are considered to be a 52-week product, traded on a week-to-week basis, the demand for which shows a slight seasonal variation, since there is higher demand in the first half of the year and lower demand in the warm summer months. Bananas can be sold branded or unbranded and can originate from within the European Union, from African, Caribbean and Pacific (ACP) countries or from non-ACP countries. Non-ACP bananas are mostly imported into the European Union from the Caribbean region, Central and South America as well as from certain African countries, and are transported in refrigerated ships to European ports (recitals 2 and 3 of the contested decision).

15 During the period concerned by the contested decision, 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. Banana import quotas were set annually and allocated on a quarterly basis with certain limited flexibility between the quarters of a calendar year (recital 53 of the contested decision).

16 The banana business drew a distinction between three ‘tiers’ of bananas: premium-quality ‘Chiquita’ branded bananas, second-tier Dole and Del Monte branded bananas, and third-tier bananas called ‘thirds’, which included a number of other brands, in particular Pacific’s ‘Bonita’ brand and Chiquita’s ‘Consul’ brand. That brand division was reflected in banana pricing (recital 27 of the contested decision).

17 As regards prices, the banana business drew a distinction between so-called ‘T1’ and ‘T2’ prices. T1 prices are prices for bananas which are ‘duty unpaid’, that is to say not including customs duties and licences, whilst T2 prices are prices for bananas that are ‘duty paid’ (recital 29 of the contested decision).

18 The banana business in Italy, Greece and Portugal operated on two layers: on the ‘green’ level, where green-selling importers sold unripened bananas to ripeners and wholesalers, and on the ‘yellow’ level, where ripeners as well as yellow-selling importers and wholesalers sold ripened bananas to other wholesalers, supermarkets or retailers. During the period in question, Chiquita and Pacific sold almost exclusively green bananas in the southern European region, though without having concluded any long-term contractual arrangements or framework contracts with wholesalers and ripeners (recitals 31, 32 and 39 of the contested decision).

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