Dole Food Company, Inc. and Dole Germany OHG v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2013:130
• Court: General Court (European Union)
• Docket Number: T‑588/08
• Date: 14 March 2013
• Celex Number: 62008TJ0588
• Procedure Type: Recurso de anulación - infundado

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 — Concept of a concerted practice having an anti-competitive object — Information exchange system — Obligation to state the reasons on which the decision is based — Rights of the defence — Guidelines on the method of setting fines — Gravity of the infringement’

In Case T-588/08,

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

Dole Germany OHG, established in Hamburg (Germany),

represented by J.-F. Bellis, lawyer,

applicants,

v

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

defendant,

APPLICATION 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 GENERAL COURT (Eighth Chamber),

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

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 25 January 2012,

gives the following

Judgment

Facts giving rise to the dispute

1 Dole Food Company, Inc. (‘Dole’) is a United States company and a producer of fresh fruit, fresh vegetables and packed and frozen fruits. Dole Germany OHG is a subsidiary of Dole (together ‘the applicants’), established in Hamburg (Germany) and formerly known as Dole Fresh Fruit Europe OHG (‘DFFE’).

2 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’).

3 On 3 May 2005, after Chiquita had submitted 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.

4 After carrying out inspections 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, in particular, DFFE and sending, between February 2006 and May 2007, 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, DFFE, Fresh Del Monte Produce Inc. (‘Del Monte’), Del Monte Fresh Produce International Inc., Del Monte (Germany) GmbH, Del Monte (Holland) BV, Fyffes plc (‘Fyffes’), Fyffes International, Fyffes Group Ltd, Fyffes BV, FSL Holdings NV, Firma Leon Van Parys NV (‘Van Parys’) and Internationale Fruchtimport Gesellschaft Weichert & Co. KG (‘Weichert’).

5 The undertakings mentioned in paragraph 4 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 (recital 49 to the contested decision).

6 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.

7 On 15 October 2008 the Commission adopted Decision C(2008) 5955 final relating to a proceeding under Article 81 [EC] (Case COMP/39 188 – Bananas) (‘the contested decision’), which was notified to DFFE and Dole on 21 and 22 October 2008.

Contested decision

8 The Commission states that the undertakings to which the contested decision is addressed participated in a concerted practice consisting in coordinating 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).

9 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 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).

10 The banana business distinguishes 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).

11 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. Bananas 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).

12 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).

13 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 (recitals 104 and 107 to the contested decision).

14 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 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 quotation 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, is 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 for a number of other transactions, in particular those relating to branded bananas (recitals 34 and 104 to the contested decision).

15 The Commission observes that the undertakings to which the contested decision was addressed 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 undertakings concerned set their quotation prices, usually on Wednesdays, and all related to future quotation prices (recital 51 et seq. to the contested decision).

16 Dole thus communicated bilaterally with both Chiquita and Weichert. Chiquita was aware or at least foresaw that Dole had pre-pricing communications with Weichert (recital 57 to the contested decision).

17 Those bilateral pre-pricing communications were designed to reduce uncertainty as to the conduct of the undertakings concerned with respect to the quotation prices to be set by them on Thursday morning (recital 54 to the contested decision).

18 The Commission states that, after setting their quotation prices on Thursday morning, the undertakings concerned exchanged their quotation prices bilaterally. That subsequent exchange enabled them to monitor the individual pricing decisions in the light of the previous pre-pricing communications and reinforced their links of cooperation (recitals 198 to 208, 227, 247 and 273 et seq. to the contested decision).

19 According to the Commission, the quotation prices served at least as market signals, trends and/or indications as to the intended development of banana prices and were relevant for the banana trade and the prices obtained. In some transactions, moreover, the price was directly linked to quotation prices through formulae based on quotation prices (recital 115 to the contested decision).

20 The Commission considers that the undertakings concerned, which participated in...