On 19 March 2015, the Court of Justice of the European Union ("ECJ") dismissed an appeal lodged by Dole Food Company and Dole Fresh Fruit Europe ("Dole") against a General Court ("GC") judgment which upheld the European Commission's 2008 decision in the banana importers cartel case. The ECJ dismissed all the pleas raised by Dole that challenged the GC's judgment on account of alleged procedural errors, distortion of facts, inadequate assessment of the evidence, and miscalculation of the fine.
In 2008, the Commission found that, between 2000 and 2002, the banana suppliers Chiquita, Dole and Weichert had engaged in weekly bilateral pre-pricing communications, during which they had discussed factors relevant to the setting of quotation prices for the following week (see VBB on Competition Law, Volume 2008, No. 10, available at www.vbb.com). The Commission also found that, after setting their quotation prices, the undertakings had exchanged their quotation prices bilaterally, enabling them to monitor their individual pricing decisions. According to the Commission, these practices were designed to reduce uncertainty as to the parties' conduct with respect to quotation prices and were liable to influence their pricing behaviour, giving rise to a restriction of competition by object under Article 101 TFEU. As a result, the Commission imposed a fine totalling € 60.3 million on the undertakings concerned, including € 45.6 million on Dole. On appeal, the GC upheld the Commission decision in its entirety (see VBB on Competition Law, Volume 2013, No. 3, available at www.vbb.com). Dole lodged an appeal before the ECJ against the GC's ruling.
In its appeal, Dole argued that the Commission failed to specify whether the exchange of information on the industry in general, as well as information in relation to volume, formed part of the infringement. The ECJ dismissed that argument as it considered that the Commission had defined the two types of information exchanged illegally in pre-pricing communications with sufficient precision, namely: (i) price-setting factors (i.e., factors relevant to the setting of quotation prices for the forthcoming week); and (ii) price trends and indications of quotation prices for the forthcoming week before those quotation prices were set.
In addition, Dole argued, inter alia, that the pre-pricing communications should not be considered as a restriction of competition by object because they were too general and were not capable of removing uncertainty as to the undertakings' intended conduct when setting actual prices. The ECJ noted that the pre-pricing communications were among competitors who discussed their own quotation prices and certain market price trends. The quotation prices were relevant since, on the one hand, market signals, market trends or intended pricing developments could be inferred from these prices and, on the other hand, in some transactions the actual prices were directly linked to the quotation prices. As a result, the ECJ considered that these pre-pricing communications, which reduced uncertainty for each of the participants as to the foreseeable conduct of competitors, had the object of creating conditions of competition that do not correspond to the normal conditions on the market and therefore gave rise to a concerted practice having as its object the restriction of competition within the meaning of Article 101 TFEU.
Finally, with respect to one of Dole's pleas concerning the miscalculation of the fine, the ECJ considered that while some bananas were counted twice (i.e., the sale of bananas by one of Dole's subsidiaries to a third-party undertaking, and the sale of another of Dole's subsidiaries of those same bananas repurchased from that third-party undertaking) for the purposes of calculating the fine, given that both sales were counted in the total turnover of Dole and directly or indirectly related to the infringement, no calculation errors were made.
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