Judgment — ECLI:EU:T:2013:130
Date: 2013-03-14
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Agriculture and Fisheries;Competition;Agreements, decisions and concerted practices;Concerted practices;Bananas
Procedure: Action for annulment - unfounded
Origin: Germany

summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if appropriate without other information (Case T‑340/03 France Télécom v Commission [2007] ECR II‑107, paragraph 166, confirmed on appeal in Case C‑202/07 P France Télécom v Commission [2009] ECR I‑2369). 462 According to consistent case‑law it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (Case C‑52/90 Commission v Denmark [1992] ECR I‑2187, paragraph 17; orders in Case T‑56/92 Koelman v Commission [1993] ECR II‑1267, paragraph 21, and in Case T‑154/98 Asia Motor France and Others v Commission [1999] ECR II‑1703, paragraph 49). The annexes may be taken into consideration only in so far as they support or supplement pleas or arguments expressly set out by applicants in the body of their pleadings and in so far as it is possible to determine precisely what are the matters they contain that support or supplement those pleas or arguments (see, to that effect, Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 99). 463 Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (Case T‑84/96 Cipeke v Commission [1997] ECR II‑2081, paragraph 34, and Case T‑231/99 Joynson v Commission [2002] ECR II‑2085, paragraph 154). The annexes cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application (Case T‑340/03 France Télécom v Commission, paragraph 461 above, paragraph 167, confirmed on appeal by Case C‑202/07 P France Télécom v Commission, paragraph 461 above). 464 That interpretation of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court also applies to the pleas in law and complaints referred to in the pleadings (Case T‑102/92 Viho v Commission [1995] ECR II‑17, paragraph 68, and Case T‑340/03 France Télécom v Commission, paragraph 461 above, paragraph 166, confirmed on appeal by Case C‑202/07 P France Télécom v Commission, paragraph 461 above). 465 In the present case, in support of the complaint that the statements made by Dole during the administrative procedure were taken out of context, the applicants refer, in the reply, to a passage of the reply to the statement of objections, which is worded as follows: ‘[I]t is simply absurd to believe that the exchanges of quotation prices would enable banana importers to project, in any way, final prices charged to customers. Aldi buys bananas from ripeners who are supplied by the various banana importers. The ripeners provide Aldi with price offers per kilogram, Aldi then compares the price quotes offered, taking into account its own assessment of the consumer response in its different retail stores and makes the decision on which ripeners to buy from. These offered prices are confidential and unconnected with the quotation prices of banana importers.’ 466 The applicants also cite a passage from the economic study of 20 November 2007, in which it is stated as follows: ‘Unlike the Aldi price … the initial quotation prices of the banana companies played no direct role in determining the actual prices that customers paid for bananas.’ 467 It must be stated that the applicants did not provide any explanation as to the significance of those two citations, even though the first citation mentions exchanges on quotation prices – which were in fact established by the Commission in the contested decision – but subsequent to the pre-pricing communications, and the second citation refers to an absence of a ‘direct’ role of the initial quotation prices. Moreover, the applicants did not carry out any comparison between those citations and the statements by Dole to which the Commission draws attention in order to support its conclusion that quotation prices were relevant. 468 It is apparent, in those circumstances, that the applicants merely submit two citations, taken from the reply to the statement of objections and an economic study, without giving any further details, and make general reference to Annex C 7 to the reply in support of their complaint that the Commission took Dole’s initial statements out of context. Such a laconic formulation of the complaint does not enable the Court to give a ruling, if appropriate, without other information in support, and to allow the annexes to provide the detail of an argument which is not presented in a sufficiently clear and precise manner in the application would be contrary to their purely evidential and instrumental function (Case T‑340/03 France Télécom v Commission, paragraph 461 above, paragraph 204). 469 That conclusion is all the more compelling in the present case given that the applicants improperly described as an annex supplementary written observations submitted by them, which amount merely to an extension of the pleadings; this is incompatible with the quality that defines an annex, that is its purely evidential and instrumental function. 470 It is therefore necessary to reject as inadmissible Annex C 7 to the reply and the complaint that the applicants seek to make on the basis that the Commission took into consideration, outside of their context, statements made by Dole during the administrative procedure on the role of the quotation price. 471 In the second place, as regards the documentary evidence contained in the case‑file, it should be noted that the Commission refers to various documents and, principally, to emails in order to support its conclusion that quotation prices were relevant for the banana market. 472 First, it refers to an email from Mr B. to Mr P. (both managers of Chiquita) of 30 April 2001 (recital 107 to the contested decision) worded thus: ‘It has been proven that as soon as [Dole/Del Monte/Tuca] reach a quote of DEM 36.00 their customers (retailers) resist as at that quote level the consumer price has to go over DEM 3.00/kg. No doubt this “phenomena” will stay with us for a while. This would mean our ceiling quote will be DEM 40.00 (green quote).’ 473 As the Commission rightly states, that document shows that actual prices were dependent on quotation prices and that customers followed their development. It shows that customers reacted when quotation prices reached certain levels, but also that they perceived that quotation prices had a link to actual prices. Thus the document clearly states that if the quotes from Dole/Del Monte/Tuca reached ‘DEM 36.00’, ‘the consumer price ha[d] to go over DEM 3.00/kg’. That document also reveals the existence of a certain interdependence between the quotation prices of the Chiquita, Dole and Del Monte banana brands and limits in differentials which could be sustained. 474 It should be noted that, in its reply to the statement of objections, Weichert observed that the email in question provided indirect evidence of the fact that retailers were price sensitive (recital 108 to the contested decision). 475 Second, the Commission mentions an email from Chiquita’s chief executive officer for Europe (recital 113 to the contested decision), dated 21 June 2000, sent to various colleagues in which he comments on a decrease in the Chiquita quotation price following the decrease of DEM 2 in Dole’s quotation price. The email states that, ‘with a price differential that would have gone to DEM 9 with Dole, [he] had no other alternative. This is obviously a blow as there [is] little/no chance to raise prices in the summer, under normal production and market conditions’. In the same email, Mr P. further states that ‘this [is] why I am urging you, again, to look at every opportunity to increase volume. Increases in volumes will not compensate 100% of a reduction in price, but we need every extra [box] we can, as long as it does not impact us negatively in the long run.’ 476 That email clearly contradicts the applicants’ assertion that there is no link between quotation prices, or at least their evolution, and price developments on the market. As the Commission rightly states, that email demonstrates how Chiquita was concerned about a downward revision of quotation prices, which was described as a ‘blow’, since there was ‘little [or] no chance to raise prices in the summer’, and about seeking a solution to cushion the negative consequences of that situation on price levels, in this case by acting on volumes. That email demonstrates, once again, the importance of the question of differentials between importers’ quotation prices and of the acceptable or sustainable limits in those differences. 477 Third, the Commission refers to an internal Chiquita email, dated 8 August 2002 (recitals 111 and 172 et seq. to the contested decision), whose content was set out in paragraph 424 above. 478 The email of 8 August 2002 demonstrates the relevance of Dole’s quotation price for the market, including for the actual prices obtained by Dole itself. It confirms that Chiquita had ‘Dole plus deals’, that is contractual arrangements with actual prices directly linked to Dole’s weekly quotation prices, and clearly shows the relevance of Dole’s quotation price for the actual prices of Chiquita. Moreover, in this instance, Dole’s quotation price influenced the quotation price of Chiquita. This email indicates that, the day before, Chiquita was considering an upwards move ‘in the neighbourhood of 1.00 euro’, but that, that morning, Chiquita had decided to increase its quotation price by EUR 1.5. Indeed, in its corporate statement, Chiquita submits that, in the light of Dole’s increase of its quotation price by EUR 2, it changed its quotation price by increasing it by EUR 1.5 ‘instead of changing its price only 1€ upwards as contemplated the day before’ (recital 111 to the contested decision). 479 Fourth, the Commission refers to correspondence between Atlanta (ripener‑distributor) and Chiquita and internal Chiquita emails, dated 2 and 6 January 2003 (recitals 110 and 176 to the contested decision). 480 On Thursday 2 January 2003, an Atlanta employee sent an email to two Chiquita executives, Mr P. and Mr K. That email refers to a decision taken by Chiquita to increase its quotation price – which had already been sent to customers – by EUR 0.5, following an increase in Dole’s quotation price which occurred on the same morning as that message was sent. In that email, the Atlanta employee directed to Chiquita’s executive representatives a ‘very critical remark’ about such a pricing decision. Mr K. replied to this, on 6 January 2003, as follows: ‘My mistake, I was taken by surprise by the move of Dole. We thought it would stop the upward movement if we were to stay put, and jeopardize price evolution in the next weeks.’ On 2 January 2003, in relation to the same matter, a Chiquita employee wrote to Mr K. that he had problems due to this upward revision after the price had been already announced to customers. On 6 January, Mr K. replied to this as follows: ‘[Mr P.] did not want Dole and Del Monte to feel we were letting them down by staying. I understand.’ 481 The applicants claim, on the one hand, that the fact that the Chiquita executive was ‘taken by surprise’ by Dole’s move can only indicate that Dole acted without any input from Chiquita and, on the other hand, that those documents cannot be used by the Commission to support its case, since they date from after the period of the alleged infringement. 482 It is certainly common ground that the documents date from January 2003 and are immediately subsequent to the infringement period. However, the fact remains that, although those documents are not in themselves capable of establishing that the alleged anti‑competitive conduct occurred, they constitute a serious indication in support of the evidence gathered by the Commission on the purpose of the pre‑pricing communications. 483 The Court would observe, in that regard, that the mere mention of Chiquita’s surprise does not necessarily permit the conclusion that Dole’s conduct was autonomous. Instead, it may reflect a difference in understanding by Chiquita of Dole’s position during a previous bilateral discussion and of Dole’s move. 484 Moreover, even if a participant in collusive conduct may seek to exploit it for its own ends, or even cheat, that does not however diminish its liability in respect of its participation in that conduct. According to settled case‑law, an undertaking which, despite a cartel with its competitors, follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit (Case T‑308/94 Cascades v Commission [1998] ECR II‑925, paragraph 230; Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraph 189; see, also, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ international Belgium and Others v Commission [1983] ECR 3369, paragraph 25). 485 As regards the relevance of quotation prices in the banana sector, the messages referred to above show that customers clearly thought that a change in the quotation price had relevance for the prices that they could expect to pay or receive. Those messages also reveal, as the Commission correctly observes, the strong interest of the undertakings concerned in coordinating the setting of quotation prices and Chiquita’s genuine concern to support increases in the quotation prices of its main competitors, if need be by taking the very unusual step of revising upwards a price that had already been announced, despite the difficulties that that would create with customers. In this respect, it was motivated by the prospect of not compromising an upward price development for the forthcoming weeks (recitals 177 to 179 to the contested decision). 486 It must be stated, moreover, that the applicants did not submit any observations in their pleadings on the probative value of all the abovementioned emails in relation to the issue of the relevance of quotation prices for the relevant market, apart from in relation to the fact that the emails of January 2003 postdated the infringement period. 487 At the hearing, the applicants merely stated that the communications at issue were internal to Chiquita and that those communications could not therefore reflect Dole’s position on the role of quotation prices on the banana market. 488 That claim alone is not sufficient to undermine the probative value of emails from an operator marketing goods in competition with Dole’s on the banana market, referring to concrete and precise situations relating to Dole’s quotation prices and revealing the relevance of those prices for importers and their customers and highlighting, in particular, an interdependence between the quotation prices of the Chiquita, Dole and Del Monte banana brands. 489 Fifth, the Commission relies on a letter sent by the Deutscher Fruchthandelsverband eV (DFHV, a German trade association) to a Member of the Commission dated 21 January 2005 in which this association states inter alia that ‘[t]hese “official” prices reflect only the starting position of the different operators for their weekly price negotiations’ and that ‘they are up to 50% higher than the truly agreed prices’ (recitals 112 and 119 to the contested decision). 490 Although that document postdates the end of the infringement period and cannot suffice to prove the infringement alleged, it reveals that, three years later, when no modification of the organisation of the banana market has been claimed or demonstrated, quotation prices were generally considered to be a starting point for weekly price negotiations. 491 Lastly, it should be noted that the applicants appended to their pleadings a copy of the banana pricing meeting package, relating to a meeting which was held every Thursday morning during which all the information that Dole had collected, which was assembled in that package, was evaluated in an attempt ‘to assess market conditions’ and set a weekly quotation price. 492 According to the applicants, that package included a graph entitled ‘Banana Green Prices EU North’ which analysed, on the basis of the 10 previous weeks, the quotation prices of Dole and those of its main competitors, thereby clearly showing that competitors’ quotation prices were relevant information for the setting of Dole’s prices and, more generally, the relevance of quotation prices in the banana sector. 493 In the third place, as regards the role played by the ‘Aldi price’ in the banana sector, it should be observed that the Commission states that that price was less relevant during the infringement period of 2000 to 2002 than subsequently, which the applicants contest, claiming that the ‘Aldi quote’ was the only relevant benchmark for all transactions in the banana sector, including during the period 2000 to 2002. 494 First, as regards the distribution method of Dole’s bananas, the applicants highlight the quantitative importance of transactions effected under ‘Aldi plus agreements’, long-term supply agreements with a fixed price formula, based on the purchase price set by Aldi for yellow bananas converted into an equivalent green banana price. 495 Dole claims that, in 2000, it sold around 50% of its green bananas under ‘Aldi plus agreements’, a figure which rose to almost 80% in 2005. The applicants also mention in their pleadings a figure of 66% of sales of Dole brand bananas in 2002, whilst stating that the economic report set out in Annex 3 to Dole’s reply to the Commission’s statement of objections found that sales effected under ‘Aldi plus agreements’ accounted for precisely 49% of Dole’s total sales; that difference could be explained by the fact that that report calculated the percentage on the basis of figures concerning the European Union – which was composed of 15 Member States at that time – as opposed to Northern Europe only. 496 In addition to a certain degree of inconsistency in the presentation of the figures on which the applicants’ arguments are based, it should be observed that an examination of the economic report set out in Annex 3 to the reply to the statement of objections reveals that no figures are provided for 2000 and the following data for subsequent years: 58% in 2001, 49% in 2002, 60% in 2003, 68% in 2004 and 79% in 2005, thereby reflecting a continuing growing importance of ‘Aldi plus agreements’ from 2003 onwards. 497 Moreover, on 2 October 2008, Dole sent the Commission a letter in which it states that the figures communicated in its reply to the statement of objections were too high and provides a table containing the following data as regards the percentages of Dole’s turnover corresponding only to sales of green bananas under ‘Aldi plus agreements’: 50% in 2000, 48% in 2001, 38% in 2002, 51% in 2003, and 61% in 2004. 498 Dole stated in that letter that the 2000 figure is an ‘estimate’, given that the economists’ report did not include any data for that year. It should moreover be noted that the 2001 figure is 48%, falls to 38% in 2002, before increasing from 2003, which does not reflect a constant increase. As the Commission rightly states, an analysis of the data relating to Dole’s transactions confirms the finding that the ‘Aldi price’ was less correlated with Dole’s actual prices from 2000 to 2002 than subsequently. 499 Second, in support of the claim that quotation prices were not relevant for the negotiations on transaction prices, unlike the ‘Aldi price’, the applicants explain that, when Aldi announced the price that it intended to pay for yellow bananas to its suppliers (that is say to ripener-distributors), the latter reported this back to the banana importers. 500 Apart from the fact that that assertion is not substantiated in any way, it must be stated that the applicants indicated that, during the relevant period, that is to say from 2000 to 2002, Dole published only a single quotation price, which was announced before Aldi announced its own price, and that that practice changed ‘between 2002 and 2008’, when Dole followed up its Thursday morning initial quotation price with the adoption of a ‘final quotation price’, which it communicated to its customers after the ‘Aldi price’ was announced on Thursday afternoon. 501 In the contested decision, the Commission recalled that Dole had explained, in reply to a request for information of 15 December 2006, that ‘DFFE ... decided that as of December 2002, Dole’s quotation prices would be henceforth re‑adjusted ... in relation to the “Aldi price”’ (footnote 163 to the contested decision) and that various adjustments to Dole’s and Weichert’s quotation prices took place between October and December 2002 (recital 123 to the contested decision). 502 It is therefore apparent that Dole initially set a single quotation price, which was communicated to its customers before the ‘Aldi price’ was announced and, subsequently, split that single quotation price into two, in order to create a final quotation price which came out after the ‘Aldi price’ was announced and took account of it. 503 The foregoing considerations not only corroborate the evidence of the growing importance of the ‘Aldi price’, but also and above all reveal that Dole did not do away with quotation prices when modifying its price‑setting process and, on the contrary, maintained them, including the Thursday morning quotation price, which came out before the ‘Aldi quote’. Moreover, that finding merely reinforces the relevance of the single quotation price of Thursday morning, which came out earlier than the ‘Aldi quote’, before it was split up by Dole. It should also be noted that Dole continued to set quotation prices even though it revised them after the ‘Aldi price’ had been announced. 504 In their pleadings, the applicants did not provide any credible explanation as to why quotation prices were maintained, even though, in their submission, they had no relevance in the banana sector. 505 In the reply, the applicants state that ‘no importers (including Dole) use quotation prices today’, that ‘Dole believes that the use of quotation prices was simply a vestige practice from the open banana market auctions that took place in Hamburg several decades earlier’ and that ‘Dole’s continued issuance of quotation prices was simply a formal, historical practice’. 506 It is extremely doubtful that the determination of the pricing policy of an economic operator might be based solely on the observance of a defunct historical tradition rather than on an objective criterion of strict utility, especially in the context of a market characterised, according to the applicants’ own statements, by a very tight marketing timetable, in view of the perishable nature of the relevant product, and the pursuit of maximum commercial efficacy. 507 The applicants’ statements by which they seek to reduce the setting of quotation prices and their announcement to customers each Thursday morning over a three‑year period to a mere ‘formal, historical practice’ are not consistent with Dole’s own description of its pricing policy and, in particular, to the investment deployed in setting those prices weekly. 508 In the economic study of 20 November 2007, submitted by Dole, it is stated that ‘the [initial] quotation prices, which reflected extensive information gathering efforts, ... provided better and more accurate information about market conditions’. In the application, it is mentioned that the package relating to the Thursday morning internal meetings on setting quotation prices ‘contained a broad range of banana market information, including the volume of green bananas being shipped that week, customer-specific and Member State-specific information on volumes, historic and aggregated volume information, Dole’s pricing to specific customers and on a broader geographical scale, and Dole’s chart “Banana Green Prices EU North”’. That chart corresponded to a graph analysing, on the basis of the 10 previous weeks, Dole’s quotation prices and those of its main competitors. 509 At the hearing, the applicants underlined the need to distinguish two periods, that of the infringement period from 2000 to 2002, when a single quotation price was set which bore no real relation to the market, and the period after 2002, when a final quotation price was set after the ‘Aldi price’ had been announced. That final quotation price still served as a negotiation basis, but was closer to the reality of the market guided by the ‘Aldi price’, or in any case closer to that reality than the previous quotation price which was never revised. 510 By those statements, the applicants express the mere evolution over time of a constant instrument of their pricing policy, until 2008, which Dole deemed necessary to modify only in December 2002, in order to adapt it to the growing importance of the ‘Aldi price’ and to ensure that it was more effective. The fact that the quotation price revised on Thursday afternoon after the ‘Aldi quote’ had been announced was supposed to reflect the reality of the market more faithfully does not mean that the quotation price set on Thursday morning from 2000 to 2002 had no relevance whatsoever, it being recalled that Dole maintained that quotation price by describing it as an initial quotation price. 511 It should be further noted that the applicants maintain that quotation prices were published in the trade press. It is apparent from an examination of the Sopisco News magazine, which appeared each Saturday, before the conclusion of the commercial negotiations, that that magazine mentions quotation prices by importer and a range of actual prices by importer for the current week, the maximum actual price corresponding to the quotation price indicated. 512 The applicants do not contest the Commission’s finding that the undertakings concerned exchanged their quotation prices, once those prices had been set, on Thursday morning, before the ‘Aldi price’ was announced. The Commission states that the exchange of quotation prices formed an element of the parties’ cartel arrangements and, in particular, enabled the parties to verify directly between them the quotation prices which other participants had set and reinforced the bonds of cooperation among them arising from the pre-pricing communications (recital 198 to the contested decision). 513 The two findings cited above clearly contradict the applicants’ claim that quotation prices were not relevant. 514 Third, the applicants claim that other importers confirmed Dole’s statements. 515 They refer to the following statements by Fyffes, which were made at the administrative hearing of 4 and 6 February 2008, indicating that: – quotation prices ‘are irrelevant for actual price negotiations’ and that ‘price fixing through the “coordination” of official [quotation] prices is impossible’; – quotation prices ‘are not a benchmark, a starting point or otherwise of relevance’; – actual prices of other importers are ‘never set by reference to Fyffes’ official [quotation] price’ and that the ‘most important factor affecting weekly negotiations is the “Aldi price” which becomes known at lunchtime each Thursday’. 516 It should be noted that it is neither alleged nor a fortiori proved that Fyffes did not communicate its quotation price to its customers on Thursday morning and that the statements of that undertaking must be assessed in the light of their context, namely that of an undertaking which was an addressee of the statement of objections and which contested the anti-competitive conduct alleged. 517 With respect to Chiquita, the applicants claim that it acknowledged, in its leniency application, that the ‘Aldi price’ was the benchmark for pricing of green and yellow bananas throughout Europe. 518 However, it should be pointed out that the applicants refer to statements by Chiquita relating to the supply by Atlanta of bananas to Aldi and to Atlanta’s activity of marketing third-tier bananas. 519 Apart from the specific context of the statements in question, an examination of the leniency application shows, in any event, that the applicant’s claim is based on an incomplete reading of that application, since Chiquita states therein that the ‘Aldi price’ ‘became’ the benchmark for trade in bananas in many EU countries, wording which expresses the idea of the growing importance of that price found by the Commission in recital 104 to the contested decision and raised by Chiquita in corporate statement No 13, which is mentioned in that recital. 520 As regards Weichert and Del Monte, the Commission observes, without being contradicted by Dole, that, during the relevant period, quotation prices for Dole and Del Monte bananas (the latter were marketed by Weichert) were virtually identical. In order to substantiate that finding, the Commission states, in footnote 138 to the contested decision, as follows: ‘Weichert explains, in response to a request for information, that “[w]hile Del Monte did not formally instruct Weichert to have the same official price as Dole, it effectively expected Weichert to have an official price at least as high as that of Dole” (see file p. 38533, Weichert response to the request for information of 15 December 2006). Dole states, in response to a request for information [of 15 December 2006], for the period including 2000-2002 that “... Del Monte positioned its branded bananas as comparable to the Dole‑branded bananas, and it was generally assumed in the industry that Del Monte would look to the Dole quotation price as a way to promote that similarity with customers” …’ 521 It is therefore apparent that Dole’s quotation price was regarded as a commercial instrument that enabled Del Monte to obtain the same pricing positioning as Dole’s for its bananas. 522 Del Monte claimed, in its reply to the statement of objections, that quotation prices had no impact on actual prices, but also stated that the exchange of information on quotation prices was a way for importers ‘to summarise the relevant information about demand, arrival volumes, and any stocks in a comprehensible “message” to the market’ (recital 122 to the contested decision) and that ‘importers could at worst have coordinated a “common” signal to send to the market (in the form of coordinated official prices)’ (recital 120 to the contested decision). 523 Documentary evidence reveals that Del Monte attached significant importance to Weichert’s quotation prices. 524 Weichert communicated to the Commission weekly reports concerning the banana market situation during the infringement period that had been sent to Del Monte, at the latter’s request; those reports mention official prices, but also estimates of actual prices for the week concerned in the form, inter alia, of a price range for Del Monte‑branded bananas (marketed by Weichert) and competitors’ products (recital 392 to the contested decision). 525 The Commission refers to a fax of 28 January 2000, by which Mr J.‑P. B., a Del Monte employee, requested Mr W. to provide him with an explanation about the difference between the ‘final price’ and the ‘expected price’ in the following terms: ‘To make matters worse, I talked on two distinct occasions with the person in charge in your company of the commercialisation of the bananas, to discuss about market conditions and prices … I was told that Interfrucht [Weichert] will keep its prices “very close” to the official price!!! …’ That message clearly shows that Del Monte expected Weichert to obtain a final price which would be very close to quotation or official prices (recitals 112, 126 and 389 to the contested decision). 526 Those documents, which are contemporaneous with the infringement period, demonstrate the relevance of quotation prices in the banana sector on which Weichert, along with Dole and Chiquita, was one of the operators. It must be pointed out that the infringement relates to a single product, the fresh banana, which has three levels of quality with corresponding price differences, and which falls within a single market characterised by a price‑fixing process consisting of an announcement each Thursday morning of Dole’s, Chiquita’s and Weichert’s quotation prices to their customers, the first message to the market on importers’ price expectations. Even though those quotation prices concerned only first‑ and second‑category bananas sold by those undertakings, there was a link between those prices and those of thirds brands or those of unbranded bananas in so far as, each week, there was necessarily pricing positioning of the various qualities of bananas by reference to one another. The existence of a certain interdependence between the quotation prices of Chiquita, Dole and Del Monte banana brands is illustrated by Chiquita’s internal emails of 30 April 2001 (recital 107 to the contested decision) and 8 August 2002 (recitals 111, 172 et seq. to the contested decision). 527 Fourth, the applicants rely upon statements by customers confirming their position which state: ‘[T]he Dole quotation prices for bananas … were hardly relevant for the negotiations of the actual and final price we were invoiced for [Van Wylick, OHG] … The Dole quotation prices represent Dole’s first price demand vis-à-vis us as its purchaser that, however, practically never becomes accepted. As a purchaser of Dole bananas we take the price for bananas of thirds as a benchmark and negotiate with Dole the respective price of the week for Dole bananas accordingly [Metro Group Buying GmbH].’ 528 An examination of that testimony, originating from Dole’s customers, reveals that the applicants cite it in an incomplete and biased manner. 529 By the expression ‘Dole quotation prices’, Van Wylick is referring to and mentions expressly ‘those from Thursday morning’ and ‘those that have possibly been adjusted after the price had been fixed for the discount segment’, which is a reference to the situation at the end of 2002 when initial and final quotation prices appeared, a period from which the Commission admits that the ‘Aldi price’ began to be increasingly used as an indicator for banana pricing formulae (recital 104 to the contested decision). In any event, Van Wylick’s testimony does not state that those prices were entirely lacking in any relevance, as the applicants assert. 530 That evidence of Van Wylick must also be read in conjunction with Metro’s testimony which confirms that Dole’s quotation prices constituted the initial price demand by that undertaking to its customers and that communication of those quotation prices marked the beginning of commercial negotiations. Metro specifies that it referred to the price of third‑tier bananas when negotiating with Dole (which is the standard approach of a customer entering into negotiations with a seller whose starting point is to try to achieve the announced price) and that ‘the outcome of the negotiations is regularly between the Dole quotation price and the price of thirds’. Moreover, Metro states that it ‘practically’ never accepted Dole’s quotation prices, which means, conversely, that it might sometimes have done so. 531 Contrary to the applicants’ assertions, those two testimonies do not confirm their claim that quotation prices were not relevant in the banana sector, but even demonstrate the contrary in the case of Metro’s testimony. Whilst the applicants claim that the letters of those two customers demonstrate that the decisive factor for the commercial negotiations was the ‘Aldi price’, the documents in question do not even make any mention of such a price and of any role of that price in the commercial negotiations. 532 At the hearing, the applicants submitted that the quotation price being referred to in Metro’s testimony was that categorised as final, set after the ‘Aldi quote’ was announced, which could serve as a starting point for the negotiations. In support of that submission, the applicants rely on the fact that Metro’s testimony goes back to 2008. 533 Apart from the fact that there is no automatic link between the year in which Metro’s testimony was written and the nature of the quotation price being referred to in that testimony, it must be stated that, as the title of Annex 10 to the application reveals, Metro’s letter is undated. In any event, the general nature of the wording of that letter does not permit the interpretation that the applicants give to that letter for the first time at the hearing. 534 The applicants also refer to the testimony of one of Dole’s customers contained in an email sent on 13 June 2007 to the Commissioner for Competition, and to the testimony of a former Atlanta employee contained in a letter sent to Dole on 19 November 2007, thus suggesting the existence of two different witnesses. 535 However, it is clear that the statements concerned emanate from the same person, Mr W., who confirms in his letter of 19 November 2007 having sent an email to the Commissioner for Competition on 13 June 2007. 536 It is true that the witness described as ‘ludicrous’ any suggestion that banana suppliers could have participated in a price-fixing cartel, but for reasons relating to the regulatory framework of the market and to the licensing system, which ensured that that market was very transparent. Mr W. also stated that the banana market was dominated by several very powerful buyers, and that ‘the benchmark price for the entire European banana market was, ultimately, unilaterally set by Aldi’. 537 That peremptory and general statement is not alone capable of undermining the probative value of the various items of evidence gathered by the Commission demonstrating the relevance of quotation prices. It must also be recalled that the Commission did in fact take account of the specific regulatory framework of the relevant market in its global analysis of the concerted practice. 538 On the other hand, it should be noted that, in his email of 13 June 2007 to the Commission, Mr W. states that, ‘[i]f the price did not appear to be in line with the market for a customer, he would inform his supplier about competing offers’ and that ‘[t]his is a procedure which repeats itself every Thursday and which is more or less standard in the industry’. That statement on a specific and precise fact confirms Dole’s statements, made during the administrative procedure, revealing that customers used quotation prices as negotiating instruments for the setting of actual prices (see paragraph 446 above). 539 Fifth, the applicants refer to an economic analysis of the transactions carried out by Dole (reports of 20 November 2007 and 19 December 2008) and to an internal document revealing that prices paid by customers were much more closely linked to the ‘Aldi price’ than to Dole’s quotation prices and that the impugned conduct had no impact on actual prices. The applicants allege that the same is true in respect of Chiquita in the light of a table produced by Fyffes during the administrative procedure and of Chiquita’s statements on the fact that quotation prices are ‘far away from reality’ or ‘have no correlation’ to actual prices. They allege that the Commission ultimately admitted this, as evidenced by its statement in recital 352 to the contested decision that ‘the Commission does not claim that actual prices and quotation prices are closely correlated’. 540 That line of argument must be rejected, inasmuch as it is based on a misconception of the standard of proof of a concerted practice within the meaning of Article 81(1) EC. 541 As is clear from the very terms of Article 81(1) EC, the concept of a concerted practice implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two. However, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market (Commission v Anic Partecipazioni, paragraph 55 above, paragraph 118; Hüls v Commission, paragraph 57 above, paragraph 161; and T‑Mobile Netherlands and Others, paragraph 56 above, paragraph 51). 542 In the present case, it is not in dispute that the undertakings which participated in the unlawful concerted action remained active in the banana trade and that Dole admitted that it took into account the information obtained from competitors in setting its quotation prices. 543 Moreover, although the very concept of a concerted practice presupposes conduct on the market, it does not necessarily mean that that conduct should produce the specific effect of restricting, preventing or distorting competition (Commission v Anic Partecipazioni, paragraph 55 above, paragraphs 122 to 124; Hüls v Commission, paragraph 57 above, paragraphs 163 to 165; and Case C‑235/92 P Montecatini v Commission [1999] ECR I‑4539, paragraphs 123 to 125). 544 As was recalled earlier in paragraph 68 above, an anti-competitive object and anti‑competitive effects constitute conditions that are not cumulative but alternative for the purposes of applying the prohibition laid down in Article 81(1) EC. In deciding whether a concerted practice is prohibited by Article 81(1) EC, there is therefore no need to take account of its actual effects once it is apparent that its object is to prevent, restrict or distort competition within the common market. 545 It must be borne in mind that, in order for a concerted practice to be regarded as having an anti‑competitive object, it is sufficient that it has the potential to have a negative impact on competition and that the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted. In addition, Article 81 EC, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such (T-Mobile Netherlands and Others, paragraph 56 above, paragraphs 31, 35 and 38). 546 In particular, the fact that a concerted practice has no direct effect on price levels does not preclude a finding that it limited competition between the undertakings concerned (see, to that effect, Case T‑21/99 Dansk Rørindustri v Commission [2002] ECR II‑1681, paragraph 140). 547 It must be noted in that regard that prices actually charged on a market are liable to be influenced by external factors outside the control of the members of the cartel, such as the evolution of the economy in general, changes in demand in that particular sector or the negotiating power of customers. 548 In the present case, it is apparent from paragraphs 443 to 537 above that the Commission has established to the requisite legal standard the relevance of quotation prices in the banana sector, a factor which, in combination with the other circumstances of the case taken into account by the Commission, makes it possible to establish the existence of a concerted practice having an anti-competitive object. 549 It is therefore irrelevant whether the quotation price was the most decisive factor in terms of Dole’s and Chiquita’s actual price or to what extent the quotation prices and actual prices of those undertakings were connected, bearing in mind that quotation prices are announced prices in respect of which it has not been claimed that they could be obtained in weekly negotiations or even that they could serve as a basis for calculating the final prices charged. 550 The mere fact that actual prices and quotation prices are not ‘closely’ correlated, as stated in recital 352 to the contested decision, is not sufficient to call in question the probative value of the evidence adduced by the Commission which enabled it to conclude that quotation prices served at least as market signals, trends or indications as to the intended development of banana prices and that they were relevant for the banana trade and the prices obtained. 551 The finding that there was a differential between quotation prices, which were the subject of the unlawful concerted action, and transaction prices certainly does not mean that quotation prices were not liable to have an influence on the level of transaction prices. The function of quotation prices is to lift market prices higher even if, ultimately, market prices are lower than announced prices. It should be borne in mind, in that regard, that the General Court has taken account of the fact that the recommended rates of an undertaking were higher than the market price in order to find that the pricing system of that undertaking had the object of increasing market rates (Joined Cases T‑213/95 and T‑18/96 SCK and FNK v Commission [1997] ECR II‑1739, paragraph 163). 552 Moreover, it is common ground that, in certain transactions, the price was directly linked to quotation prices by means of pre-established pricing formulae. 553 The Commission was therefore entitled to conclude that the bilateral communications between the undertakings concerned were unlawful, and had the object of leading to conditions of competition that do not correspond to the normal conditions of the market, since they made it possible for each of the participants to reduce uncertainty over the conceivable conduct of competitors (see, to that effect, Cimenteries CBR and Others v Commission, paragraph 312 above, paragraph 1908). 554 In any event, it must also be pointed out that the analysis and the document which are mentioned in paragraph 539 above concern only the prices charged by Dole or Chiquita, whereas the actual conduct which an undertaking claims to have adopted is irrelevant for the purposes of evaluating the cartel’s effect on the market; account must only be taken of the effects of the infringement taken as a whole (Commission v Anic Partecipazioni, paragraph 55 above, paragraphs 150 and 152). 555 With respect, first of all, to Chiquita’s transactions, the table produced by Fyffes during the administrative procedure would appear to be lacking in any genuine probative value, since the data collected refer to a period commencing only in the second quarter of 2002, and it is also not possible to determine with certainty whether those data in fact concern the whole of the relevant geographic market. 556 Moreover, Chiquita’s statements on quotation prices being ‘far away from reality’ are contained in an email dated 26 June 2004 and therefore after the infringement period. It may, however, be observed that, in that email, a Chiquita employee replies to a query by a colleague who is surprised at the level of the quotation price of Del Monte brand bananas, which is higher than Dole’s. The author of the email states that, since Del Monte had taken direct charge of distributing its bananas, it had a strategy of positioning itself as closely as possible to Chiquita and that given that the new person running Del Monte was a former Chiquita employee, he knew Chiquita’s tricks regarding pricing and therefore the differential between quotation prices and actual prices. 557 As regards the brief and vague statement that quotation prices ‘have no correlation’ to actual prices, it is in no way substantiated by objective documentary evidence relating to the infringement period of 2000 to 2002 and the relevant geographic market. In any event, that statement cannot be read in isolation, independently of Chiquita’s explicit statements on the purpose of the pre-pricing communications and of the documentary evidence gathered by the Commission and, in particular, of the emails from Chiquita, demonstrating the relevance of quotation prices in the banana sector. 558 Next, it must be stated that the economic analysis and the document mentioned in paragraph 539 above, relating to Dole’s pricing practice, do not permit the conclusion that there is no correlation between actual prices and quotation prices, but that there is a lower level of correlation between those two prices than there is between actual prices and the ‘Aldi price’. Moreover, to the extent that it can be accepted that the graphs set out in Annex A 18 to the application refer to data relating only to transactions in Germany, they show that the correlation between the ‘Aldi price’ and Dole’s actual price was significantly higher in 2006-2007 than between 2000 and 2002, thereby corroborating the idea of the growing importance of the ‘Aldi price’. 559 The applicants concentrate on the correlation between the ‘Aldi price’, the price of a retailer which acquired yellow bananas from ripeners, and Dole’s actual price, whereas the relevance of that correlation should not be overstated, given the chronology of marketing of bananas, in the context of the process of weekly negotiation, since it is common ground that Chiquita, Dole and Weichert announced their quotation prices to all their customers, ripeners and retailers, early on Thursday morning, before the ‘Aldi quote’ became public; this shows that, from a chronological point of view, the announcement of quotation prices marked the starting point of the commercial negotiations. Dole’s statements, submitted during the administrative procedure, on the conduct of customers in relation the offers made by importers bear out the truth of that observation (see paragraph 445 above) 560 It is therefore apparent that the importers first set and announced their quotation prices signalling the intended development of banana prices, then ripeners formed an idea about the market development and submitted their offers to Aldi, and only then was the ‘Aldi price’ set. 561 The applicants claim that it is not possible to take the view that quotation prices might be relevant because they might have somehow influenced the ‘Aldi price’ and state, in that regard, that Aldi purchases third‑tier bananas (and not bananas marketed under the Chiquita, Dole and Del Monte brands) so that quotation prices, which do not concern third‑tier bananas, have no relevance for Aldi. 562 That argument plainly contradicts Dole’s assertion that the ‘Aldi price’ itself was relevant for all transactions (without differentiation by brand, including its own sales of branded bananas). It should be added that quotation prices are part of a process of setting the prices of a product, the banana, which has three levels of quality, thus implying a pricing positioning of the three types of bananas by reference to one another and a form of interdependence between prices. 563 Moreover, the applicants state that Aldi’s suppliers did not take account of quotation prices and refer to the letter from their customer, Van Wylick, and to a statement by Chiquita on the conditions under which Atlanta made its offers to Aldi. 564 In its letter (see paragraph 527 above), Van Wylick states that Dole’s banana quotation prices were hardly relevant for the negotiations of the actual and final price ‘[it was] invoiced for’, that latter reference showing that the author of the letter is referring to its business relationship with Dole and not with Aldi. 565 Chiquita’s statement reads as follows: ‘As already mentioned above, quote prices were announced to Atlanta on Thursday only for Chiquita, Dole and Del Monte for their prime brands. Accordingly, Atlanta did not base its offer to Aldi upon a “third label quote price”. As explained above, the offers were based upon the information collected by Mr. [C.] and Mr. [N.] in their pre-pricing calls with third label suppliers on Wednesday (Mr. [N.] or Thursday (Mr. [C.]). In such calls, third label suppliers always tried to convince Atlanta of their price expectations. Such price expectations were not identical, but often showed differences in the range of 0.50€ to 1€ per box.’ 566 That statement on Atlanta’s conduct indicates that, when it was setting its price offer to Aldi, Atlanta took account of information collected from third-label banana suppliers, but that it was aware, at that point, of the importers’ price expectations by means of the earlier announcement of quotation prices, as the beginning of the statement reveals. 567 Atlanta’s pricing decisions for a type of banana, like the pricing decisions of all the other operators – including Aldi – active on the market, were necessarily taken in the context of a market covering three levels of quality accompanied by correlative price differences. 568 It should be noted that the economic analysis of the transactions carried out by Dole (reports of 20 November 2007 and 19 December 2008) reveal a high average level of correlation between the ‘Aldi price’ and quotation prices during the period 2000 to 2005, that analysis indicating that the development of the ‘Aldi price’ was in fact closely correlated to the development of the quotation price. 569 In that regard, the Commission drew attention, in recital 122 to the contested decision, to the following statements by Dole: ‘… the initial quotation prices, which some of the companies are voicing to the market on Thursday mornings after their pricing meetings, is a price trend – their expectation that the market might go up by 1 Euro, by 50 cents (always per box, per 18kg box) and ... that the ripeners who are crucial for the supply of yellow bananas are giving quotes to Aldi (the largest buyer of bananas) in the morning of Thursday and the ripeners form their idea about how the market price might develop during the morning hours, some time between 9 and 11 o’clock, then they send the faxes with their offers to Aldi and Aldi comes back some time after 1 o’clock; so what is happening very often is that the ripeners do expect the price of a box of bananas to go up by 1 Euro and Aldi is coming back and saying “Well, yes the market is getting better, we see our retail consumer offtake developing positively but we don’t accept 1 Euro up, we accept 36 cents up” ... So ... the importers really have a feeling for the market only, they see a market trend emerging, and they think that the price might go up by 1 Euro (that’s what they are voicing to the market) but then the crucial thing is what Aldi thinks ...’ 570 That assessment by Dole, which has always contested that it committed an infringement of Article 81 EC, does not call in question the relevance of the description of the process characterising what happened on Thursdays and the establishment of a link between quotation prices and the ‘Aldi quote’. 571 Dole also stated, by means of economic studies submitted during the administrative procedure, that ‘the [initial] quotation prices, which were based on extensive information-gathering efforts … provided better and more accurate information about market conditions than would likely have been the case absent such exchanges’ and that ‘these initial quotation prices were known to ripeners when ripeners made their offers to Aldi, so that better initial quotation prices would likely conduce to Aldi price that more accurately reflected changes in the balance of supply and demand for the following week’ (p. 5 of the economic study of 20 November 2007). It is further stated that ‘the willingness of the ripeners to accept particular terms from Aldi depended to some extent on the initial quotation price they received from importers (although these prices were not binding)’, that ‘[those quotation prices] in turn depended on the importer’s views about the ease of selling the particular volume they were landing that week’ and that ‘the exchange meant that the quotation prices of the banana companies each reflected pooled information about supply and demand that week, and not just the private information of one supplier’ (p. 7 and 9 of the economic study of 10 April 2007). 572 Those statements, which are particularly explicit in relation to the link between quotation prices and the ‘Aldi quote’, are consistent with the content of an internal Chiquita email, dated 8 August 2002, in which a Chiquita employee conveys his thoughts following a EUR 2 increase by Dole of its quotation price (recitals 111, 172 et seq. to the contested decision) in the following terms: ‘By moving the market and Aldi price up they [Dole] … get a better price …’ 573 Responding to a request for information from the Commission, Aldi stated that its decision on its weekly offer to its suppliers was based on the offers received, the prices of the previous week and the price in the ‘similar’ week of the previous year. Aldi added that ‘the prices in offers it received from ripeners reveal at least a tendency for the price development, which [did] not always have to be reflected in the formulation of the counteroffer, however’ (recital 116 to the contested decision and footnote 150). 574 It follows from the foregoing considerations that the Commission was right to find that quotation prices were relevant in the banana sector, by observing (i) that they served at least as market signals, trends or indications as to the intended development of banana prices and that they were relevant for the banana trade and the prices obtained and (ii) that, in some transactions, actual prices were directly linked to quotation prices. 575 It is also appropriate to point out, as the Commission rightly does, that the alleged importance of the Aldi purchasing price does not exclude the relevance of quotation prices as established in the contested decision. 576 It follows from the foregoing considerations that the complaint alleging that quotation prices were not relevant for the negotiation of actual prices in the banana sector must be rejected. The responsibility of the Dole employees involved in the bilateral communications 577 The applicants maintain that, on the assumption that there was a close correlation between quotation prices and actual prices, the information exchanges at issue did not even involve disclosure of the actual quotation prices adopted in the Thursday meeting and observe, in that regard, that the Dole employee involved in the bilateral communications in issue, Mr H., was not responsible for setting actual quotation prices, that decision being made by DFFE’s general manager. 578 It should be recalled that the Commission alleges that Dole participated, on a bilateral basis, in communications with Chiquita and Weichert about price‑setting factors, that is, factors relevant for the setting of quotation prices for the forthcoming week, and on price trends and indications of quotation prices for the forthcoming week before quotation prices were set on Thursday morning. 579 The Commission also found, without being contradicted by the applicants, that Dole exchanged bilaterally with the abovementioned undertakings quotation prices, once they had been set, and that that exchange made it possible to monitor the follow-up to the pre-pricing communications and to reinforce cooperation between the undertakings. 580 The pre-pricing communications involved Messrs H. and G., respectively Area Manager and Sales Executive at Dole, both of whom participated in the internal pricing meetings (recital 63 to the contested decision). The applicants do not challenge those findings of the Commission. 581 It should be borne in mind, moreover, that, according to the case‑law, the attribution to an undertaking of an infringement of Article 81 EC does not require there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned by that infringement; action by a person who is authorised to act on behalf of the undertaking suffices (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 97, and Case T‑15/99 Brugg Rohrsysteme v Commission [2002] ECR II‑1613, paragraph 58). The applicants do not contest that their employees involved in the pre-pricing communications were so authorised. 582 Accordingly, the applicants’ argument that the employees involved in the pre‑pricing communications did not have final responsibility for setting quotation prices is irrelevant and must be rejected. 583 It follows from all the foregoing considerations that the Commission has established to the requisite legal standard that Dole, Chiquita and Weichert 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 (recitals 148, 182 and 196 to the contested decision). 584 By means of the pre-pricing communications, Dole, Chiquita and Weichert coordinated the setting of their quotation prices instead of deciding on them independently. During those bilateral discussions, the undertakings disclosed the course of action which they contemplated adopting or at least enabled the participants to estimate competitors’ future behaviour with regard to their quotation prices to be set and to anticipate their intended course of action. They therefore decreased uncertainty concerning competitors’ future decisions on quotation prices, with the result that competition between undertakings was restricted (recitals 263 to 272 to the contested decision). 585 The Commission was therefore right to conclude that the pre-pricing communications, which took place between Dole and Chiquita and between Dole and Weichert, concerned the fixing of prices and that they gave rise to a concerted practice having as its object the restriction of competition within the meaning of Article 81 EC. B – Infringement of the rights of the defence and the obligation to state reasons 586 In the first place, the applicants maintain that, of the three activities amounting, according to the statement of objections, to a set of interrelated bilateral collusive arrangements and an infringement by object of Article 81 EC, the Commission ultimately disregarded two, including the practice, relating to the exchange of information about volumes, which was considered by Chiquita to be the most serious. They also observe that the Commission did not punish Fyffes and Van Parys, which were none the less involved in the same alleged collusive bilateral communications. 587 In so doing, the Commission, according to the applicants, completely changed its theory relating to the infringement in the contested decision, without affording them an opportunity in advance of being heard on that change, thus infringing Article 27(1) of Regulation No 1/2003 and their rights of defence. 588 It should be borne in mind that, according to the case‑law, the decision is not necessarily required to be an exact replica of the statement of objections (van Landewyck and Others v Commission, paragraph 335 above, paragraph 68). The Commission must be permitted in its decision to take account of the responses of the undertakings concerned to the statement of objections. In that regard, it must be able not only to accept or reject the arguments of the undertakings concerned, but also to carry out its own assessment of the facts put forward by those undertakings in order either to abandon such complaints as have been shown to be unfounded or to supplement and redraft its arguments, both in fact and in law, in support of the complaints which it maintains (ACF Chemiefarma v Commission, paragraph 335 above, paragraph 92; see also, to that effect, Suiker Unie and Others v Commission, paragraph 56 above, paragraphs 437 and 438). Thus it is only if the final decision alleges that the undertakings concerned have committed infringements other than those referred to in the statement of objections or takes into consideration different facts that there will be an infringement of the rights of the defence (ACF Chemiefarma v Commission, paragraph 335 above, paragraph 94; see also, to that effect, Joined Cases T‑39/92 and T‑40/92 CB and Europay v Commission [1994] ECR II‑49, paragraphs 49 to 52). 589 That is not the case where, as in the present case, the alleged differences between the statement of objections and the final decision do not concern any conduct other than that in respect of which the undertakings concerned had already submitted observations and are therefore unrelated to any new complaint (see, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 103). 590 It is common ground that, in paragraph 60 of the statement of objections, three collusive practices are alleged, namely: – exchanges of information concerning arrival volumes of bananas into Northern Europe (exchange of volume information); – bilateral communications on banana market conditions, price trends or indications of quotation prices before those prices were set; – exchange of banana quotation price information (exchange of quotation prices). 591 In paragraph 429 of the statement of objections, the Commission unequivocally found that ‘each complex of bilateral arrangements’ and the network of arrangements constituted an infringement having an object of restricting competition in the Community and the EEA within the meaning of Article 81 EC and Article 53 of the EEA Agreement. 592 That conclusion followed a separate examination of each type of conduct complained of, in particular, in paragraphs 404, 412 to 416 of the statement of objections, in which the Commission referred to ‘a complex of bilateral communications on banana market conditions, price trends … or indications of quotation prices before quotation prices were set, by which parties influenced price setting, ultimately amounting to price fixing’ and stated that ‘such collusive arrangements had an anti-competitive object’. 593 As the Commission states, the applicants clearly understood the case made against them in the statement of objections, as is clear from the reply of 21 November 2007 to that statement, in which Dole specifically defends itself against the allegation that bilateral communications on banana market conditions constituted an infringement by object. 594 The applicants essentially refer, in their pleadings, to paragraph 395 of the statement of objections which concerns the concept of a complex, single and continuous infringement, the Commission having taken the view, initially, that the three anti‑competitive practices at issue led to a broader single and continuous infringement. 595 In the contested decision, after analysing the replies to the statement of objections and the statements made by the undertakings concerned at their respective hearings, the Commission ultimately withdrew, first, its objections relating to exchanges of information on volumes and those relating to the exchanges of quotation prices, maintaining only the objection in respect of the concerted practice relating to what it called the pre‑pricing communications and, second, the objections addressed to Fyffes and Van Parys. 596 Accordingly, the applicants cannot validly plead infringement of the rights of the defence, as recognised by Article 27(1) of Regulation No 1/2003, irrespective of Chiquita’s perception of the gravity of the objections referred to in the statement of objections, as claimed by the applicants. 597 In the second place, in the complaint alleging infringement of the rights of the defence, the applicants first claim that the Commission infringed its obligation to state reasons inasmuch as the contested decision fails to specify in a clear and unequivocal fashion what communications about factors relevant to the setting of quotation prices may or may not take place between banana importers under Article 81 EC. 598 That claim has already been examined and rejected for the reasons stated in paragraphs 261, 262 and 264 above. 599 Moreover, the applicants claim that the contested decision also fails to specify what features of the communications involving Fyffes and Van Parys explain why those communications were not found to have an anti-competitive object. 600 In so far as Dole claims that the contested decision is unlawful by reason of insufficient reasoning or a lack of clarity relating to the treatment of Fyffes and Van Parys, which were not addressees of the contested decision and thus were not penalised, it should be recalled that Dole may not argue from such a circumstance in order itself to escape a penalty imposed for breach of Article 81 EC when the circumstances of the two other undertakings are not even the subject of proceedings before the Union judicature (see Case T‑304/02 Hoek Loos v Commission [2006] ECR II‑1887, paragraph 62 and the case‑law cited). 601 It follows from the foregoing considerations that the complaint alleging infringement of the obligation to state reasons laid down in Article 253 EC must be rejected. III – The claims for annulment or reduction of the fine 602 The applicants put forward a single plea alleging that the fine is unjustified and disproportionate, in the context of which they complained that the Commission determined the basic amount of the fine by taking account of the sale of products unrelated to the infringement, taking the view that the impugned conduct had the object of fixing prices and refusing to take account of Dole’s precarious financial situation. A – Preliminary observations 603 It is common ground that, when setting the amount of the fine imposed on Dole, the Commission applied the Guidelines (recital 446 to the contested decision), which have established a two‑step calculation method. 604 The Guidelines provide, by way of a first calculation step, for the determination by the Commission of a basic amount for each undertaking or association of undertakings concerned and include, in that regard, the following provisions: ‘12. The basic amount will be set by reference to the value of sales and applying the following methodology. … 13. In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement. … 19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. 20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case. 21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales. 22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. 23. Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale. 24. In order to take fully into account the duration of the participation of each undertaking in the infringement, the amount determined on the basis of the value of sales (see points 20 to 23 above) will be multiplied by the number of years of participation in the infringement. Periods of less than six months will be counted as half a year; periods longer than six months but shorter than one year will be counted as a full year. 25. In addition, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15% and 25% of the value of sales as defined in Section A above in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements. The Commission may also apply such an additional amount in the case of other infringements. For the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred [to] in point 22.’ 605 According to footnote 2 of the Guidelines, the expression ‘horizontal price-fixing agreements’, which appears in point 23 of the Guidelines, includes concerted practices within the meaning of Article 81 EC. 606 The Guidelines provide, by way of a second calculation step, that the Commission may adjust the basic amount upwards or downwards, on the basis of an overall assessment which takes account of all the relevant circumstances (points 11 and 27). 607 In respect of those circumstances, point 35 of the Guidelines mentions an undertaking’s ability to pay in the following terms: ‘In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.’ B – The allegedly disproportionate nature of the basic amount of the fine in that it is based on the value of sales of products unrelated to the infringement, and the infringement of the obligation to state reasons 608 The applicants maintain that the Commission misapplied the Guidelines when it calculated the basic amount of the fine, because it relied on the value of sales of products unrelated to the alleged infringement, namely sales of green bananas other than Dole‑branded bananas; sales of Dole‑branded green bananas sold under contractual arrangements not based on quotation prices; and sales of yellow bananas. They also claim that the contested decision is inadequately reasoned on the inclusion of transactions relating to those bananas in the basis for calculating the amount of the fine. 609 It should be noted that the applicants reiterate the criticisms that they made when disputing the existence of the infringement. 610 In the first place, this is the case in respect of the distinction drawn by the applicants between green and yellow bananas, which it submits are two different products which fall within two separate markets, underlying the argument that the Commission fails to explain in the contested decision how the alleged coordination of quotation prices for green bananas sold by DFFE during the current week can have affected the pricing of yellow bananas sold by Saba, Kempowski, VBH and Dole France, pricing which was set independently and without any reference to a green quote. 611 First, as regards the claim of an infringement of the obligation to state reasons, it must be pointed out, as was stated at paragraph 127 above, that the Commission, in recitals 4, 5, 32, 34, 104, 141 to 143, 182, 196 and 287 to the contested decision, explained with sufficient precision and clarity its position as regards the single nature of the relevant product, namely fresh bananas, the specific nature of that product, namely fruit which is imported green and sold for public consumption once it has become yellow, after it has been ripened, the manner in which ripening is organised and, subsequently, in which bananas are marketed, the process of commercial negotiation with quotation prices and the link between the quotation prices of green and yellow bananas. 612 In the contested decision, the value of sales of fresh bananas by Dole in 2002 is estimated at EUR 198 331 150, a figure which includes transactions by DFFE, the subsidiaries VBH, Saba, Kempowski and Dole France in Belgium and Luxembourg; this figure was revised downwards to EUR 190 581 150 after subtracting the amount of bananas purchased from the other addressees of the contested decision (recitals 451 to 453 to the contested decision). 613 Accordingly, it cannot be alleged that the Commission infringed Article 253 EC so far as concerns the inclusion in the value of sales of transactions relating to green and yellow bananas. 614 Second, as regards the merits of the Commission’s assessment, it should be borne in mind that the applicants’ argument based on the distinction between green bananas and yellow bananas was already put forward in support of the complaint that Dole’s and Chiquita’s respective operating methods were incompatible with the unlawful coordination alleged against those undertakings. 615 That complaint was rejected as unfounded (see paragraph 248 above). The Commission was right to consider that green and yellow bananas are the same product, that the quotation price (whether green or yellow) concerned the same product, fresh bananas, and that yellow quotation prices were linked to green quotation prices. The specific features of the banana, namely fruit which is imported green and sold for public consumption once it has become yellow, after it has been ripened, and the manner in which it is marketed cannot affect the single nature of the relevant product and provide a valid basis for the claim of the existence of two different products falling within two separate markets. 616 It follows that the applicants have failed to demonstrate any misapplication of the Guidelines by the Commission on account of the inclusion in the value of sales of transactions relating to yellow bananas. 617 It should be further observed that, going beyond the product in itself, the applicants rely on the fact that yellow bananas were sold by Saba, Kempowski, VBH and Dole France, which were not addressees of the statement of objections and of the contested decision, or involved in the anti-competitive conduct complained of, since they set their prices independently of DFFE and without reference to its quotation price. 618 That argument cannot be accepted. 619 It is common ground that, in Article 1 of the contested decision, the Commission found that the infringement was committed by Dole, the ultimate parent company of the Dole group, which is involved in the sale and marketing of bananas in Europe via numerous subsidiaries. 620 Although Dole claimed that there had not been any anti-competitive conduct, it did not, however, dispute in these proceedings its liability as parent company of the Dole group, it being recalled that the contested decision relates clearly to an anti‑competitive practice relating to fresh bananas, whether green or yellow. 621 The claim that Dole’s subsidiaries were autonomous is merely part of the line of argument relating to the necessary distinction between green and yellow bananas raised in support of the complaint alleging that Dole’s and Chiquita’s operating methods were incompatible with the collusion alleged and the claim that the value of sales relied on by the Commission in determining the amount of the fine should be reduced. 622 Accordingly, the Commission cannot be criticised for having taken into account, when determining the value of ‘the undertaking’s’ sales of goods or services, in accordance with point 13 of the Guidelines, to which the infringement directly or indirectly relates, the amount of the sales of yellow bananas by the companies of the group of which Dole is the ultimate parent company. 623 The applicants’ statements on the alleged autonomy of Saba, Kempowski, VBH and Dole France are therefore irrelevant and, in any event, unjustified, as was explained in paragraphs 209 and 210 above. 624 Third, the applicants claim, more specifically, that the amount of the transactions relating to yellow bananas which Saba purchased from Chiquita and subsequently sold cannot properly be used to calculate Dole’s fine either. The applicants maintain that the Commission considered that those transactions should be regarded as revenues for Dole and not Chiquita, in order to avoid double counting those bananas (recital 452 to the contested decision), although that objective could be achieved by including those bananas in Chiquita’s revenues. That approach would have been the more appropriate, since the price of those specific bananas was determined solely by Chiquita and another shareholder of Saba. 625 In recital 452 to the contested decision, the Commission deducts, in order to avoid double counting, from the sales figures of the undertakings to which the contested decision was addressed the value of fresh bananas sold to other addressees, which were subsequently sold in Northern Europe. 626 It is not disputed that Saba is a subsidiary of Dole and that it resold yellow bananas purchased green from Chiquita for an amount of EUR 18 168 309 according to recital 452, so that the deduction effected by the Commission was justified. 627 It must be observed that, according to the applicants’ own pleadings, Dole also benefited from that desire of the Commission to avoid double counting, since the Commission deducted an amount of EUR 7 750 000 corresponding to sales of Dole bananas by the ripener-distributor Atlanta, which was linked to Chiquita. 628 The claim that the price of the bananas in question was set by Chiquita and another shareholder of Saba is in no way substantiated and even contradicts the previous assertion by the applicants that Saba determined its pricing policy autonomously. Accordingly, the applicants’ argument by which it seeks to exclude from the value of sales transactions relating to bananas purchased by Saba from Chiquita and resold in Northern Europe must be rejected. 629 The applicants also refer to double counting in relation to sales by DFFE of green bananas to Cobana, which were taken into account in the amount of the transactions declared by DFFE in 2002, and which were subsequently purchased by Kempowski for an estimated amount of EUR 2.6 million and resold as yellow bananas for an estimated amount of EUR 2.9 million. 630 Apart from the fact that the amounts indicated are based on a mere estimate, it must be stated that that claim of the applicants is in no way substantiated and that the situation described does not fall within the situation described in recital 452 to the contested decision, since Cobana was not one of the undertakings to which the contested decision was addressed. 631 In the second place, the applicants reiterate their line of argument that quotation prices were not relevant in the banana sector. 632 The applicants claim (i) that Dole’s quotation prices concerned only green Dole‑branded bananas and not green third-tier bananas sold by DFFE, the latter therefore having no connection with the infringement and (ii) that green Dole‑branded bananas sold under contractual arrangements not based on the quotation prices are not goods to which that infringement relates, in this case green bananas sold under ‘annual Aldi plus agreements’ and during weekly negotiations in which Dole’s quotation prices did not serve as the starting point of the commercial negotiations. 633 First, as regards the complaint alleging infringement of the obligation to state reasons, it should be noted that, having stated that the relevant product was the fresh banana, the Commission specified three levels of banana brands, called ‘tiers’, which exist on the banana market, and the corresponding pricing difference (recitals 4 and 32 to the contested decision). 634 According to the Commission, and as was mentioned in paragraph 14 above, 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’ (recital 34 to the contested decision). 635 The Commission examined in recitals 102 to 128 to the contested decision, with sufficient precision and clarity, the issue of the setting and relevance of the quotation price in the banana sector, and set out the chronology of the pricing process in the light of the announcement of the ‘Aldi price’ (recital 104 to the contested decision). 636 Moreover, the Commission added, in recital 287 to the contested decision, that ‘while quotation prices were set for different brands of the parties, there was a relationship between prices for those brands and for other “thirds” brands and for unbranded bananas’ and that ‘in fact both Dole and Weichert argue that even the price paid by Aldi (for non-branded bananas) was important in determining actual prices for branded bananas’. 637 Accordingly, it cannot be alleged that the Commission infringed Article 253 EC so far as concerns the inclusion in the value of sales of transactions relating to green bananas other than Dole‑branded green bananas and to sales of Dole‑branded green bananas effected under ‘Aldi plus agreements’ or during the weekly negotiations. 638 Second, with respect to the merits of this complaint, it should be recalled that the Commission was right to find that quotation prices were relevant in the banana sector, by observing (i) that they served at least as market signals, trends or indications as to the intended development of banana prices and that they were relevant for the banana trade and the prices obtained and (ii) that, in some transactions, actual prices were directly linked to quotation prices. 639 It must be pointed out, as was observed in paragraph 526 above, that the infringement relates to a single product, the fresh banana, which has three levels of quality with corresponding price differences, and which falls within a single market characterised by a price‑fixing process consisting of an announcement each Thursday morning of Dole’s, Chiquita’s and Weichert’s quotation prices to their customers, the first message to the market on importers’ price expectations. Even though those quotation prices concerned only first and second category bananas sold by those undertakings, there was a link between those prices and those of thirds brands or those of unbranded bananas in so far as, each week, there was necessarily pricing positioning of the various qualities of bananas by reference to one another. The existence of a certain interdependence between the quotation prices of Chiquita, Dole and Del Monte banana brands, the Del Monte brand being distributed by Weichert, is illustrated by Chiquita’s internal emails of 30 April 2001 (recital 107 to the contested decision) and 8 August 2002 (recitals 111, 172 et seq. to the contested decision). 640 As the Commission rightly observes, the applicants state themselves that the ‘Aldi price’, relating to the purchase of third-tier bananas, was relevant for the setting of the transaction prices of all bananas, including Dole‑, Chiquita‑ and Del Monte‑branded bananas. 641 As regards transactions effected under ‘Aldi plus agreements’, with an actual price set by reference to the ‘Aldi price’, the indirect influence of quotation prices on the ‘Aldi price’ has been demonstrated in paragraphs 559 to 573 above. 642 It is apparent from the foregoing considerations that the applicants have failed to demonstrate any misapplication of the Guidelines by the Commission on account of the inclusion in the value of sales of transactions relating to green bananas other than Dole‑branded green bananas and to sales of Dole‑branded green bananas effected under ‘Aldi plus agreements’ or during the weekly negotiations, it being recalled that point 13 of the Guidelines refers to the fact that the Commission takes account, for the purposes of determining the basic amount of the fine, of the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates. 643 Lastly, it should be pointed out that the applicants’ assertion that an error was committed during the administrative procedure as regards the calculation of the total net sales of DFFE’s green bananas in 2002 (excluding inter-company sales to Saba and VBH), which, it alleges, came in fact to EUR 98 997 693 and not to EUR 99 451 555, is not substantiated in any way and that no claim for the reduction of the basic amount of the fine set by the Commission is specifically based on that assertion. 644 It follows that the complaint alleging that the basic amount of the fine is disproportionate inasmuch as it is based on the value of sales of products unconnected with the infringement must be rejected. C – The allegedly disproportionate nature of the basic amount of the fine in that it is based on the incorrect finding that the conduct ‘concerned the fixing of prices’ and infringement of the obligation to state reasons 645 The applicants claim that the finding in recital 456 to the contested decision that the impugned conduct ‘concerned the fixing of prices’ is inconsistent with the Commission’s earlier assertion that ‘the parties did not agree or concert on actual prices’ (recital 237 to the contested decision) and the fact that the present case involves a mere information exchange, which is not part of a broader price-fixing agreement. That error by the Commission led it to take, under point 19 of the Guidelines, a large proportion of sales (15%) in order to fix the basic amount of the fine and to increase that amount, under point 25 of the Guidelines, by an additional ‘entry fee’ of 15%, by referring only to the ‘specific circumstances of the case’, which constitutes manifestly insufficient reasoning and is in any event incorrect, in so far as that reference means that the present case concerns ‘price‑fixing’. 646 The applicants also claim that the application, under point 19 of the Guidelines, of a percentage as high as 15% is manifestly disproportionate by comparison with the percentage applied, namely 18%, in two decisions taken in application of Article 81 EC dated 27 and 28 November 2007 concerning actual price‑fixing agreements covering the EEA and concluded by undertakings holding a larger part of the total market (85% in the first case and 80% in the second). 647 In the first place, as regards the complaint alleging that the contested decision was inadequately reasoned, in addition to the case‑law mentioned in paragraphs 125 and 126 above, it should be borne in mind that, in the context of the setting of fines for infringement of competition law, the Commission fulfils its obligation to state reasons when, in its decision, it indicates the factors which enabled it to measure the gravity and the duration of the infringement committed, and it is not required to include a more detailed account or figures relating to the method used to calculate the fine (see, to that effect, Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraphs 38 to 47, and Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 1532). 648 In the present case, it must be observed that the Commission, in accordance with points 20 and 22 of the Guidelines, examined and took into account when setting the proportion of the value of sales by reference to the degree of gravity of the infringement, various factors relating to the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether the infringement had been implemented, as is apparent from recitals 454 to 459 to the contested decision. In order to determine the additional amount provided for in point 25 of the Guidelines, the Commission referred, by an express reference to section 8.3.1.1 of the contested decision, to its assessment of those factors, as can be seen in recital 464 to the contested decision. 649 It will be recalled that point 25 of the Guidelines provides that, for the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, including, in particular, those referred to in point 22 of the Guidelines. 650 Accordingly, it cannot be alleged that the Commission infringed in any way its obligation to state reasons by setting the amount of 15% under point 25 of the Guidelines. 651 In the second place, as regards the merits of the complaint alleging the disproportionate nature of the basic amount of the fine and more specifically of the percentages of the value of sales applied under points 19 and 25 of the Guidelines, first, it must be stated that the line of argument set out by the applicants to that end is in part identical to that which they put forward when challenging the existence of the infringement, and which was rejected earlier in this judgment. 652 That line of argument is based on an incomplete and biased reading of the contested decision, in which it is clearly stated that the infringement alleged does not relate to the coordination of actual prices, but to the coordination of quotation prices (see, in particular, recital 237 to the contested decision), which were prices announced to customers by Dole, Chiquita and Weichert. 653 As was explained in paragraphs 59 to 62 above, it is not necessary for an information exchange to underpin or form part of a broader cartel in order to be caught by the competition rules. It can be analysed autonomously, as a concerted practice having an anti‑competitive object if it directly or even ‘indirectly’ fixes purchase or selling prices or any other trading conditions, as Article 81(1)(a) EC provides. 654 In the present case, the Commission was entitled to conclude that the pre-pricing communications, which took place between Dole and Chiquita and between Dole and Weichert, concerned the fixing of prices and that they gave rise to a concerted practice having as its object the restriction of competition within the meaning of Article 81 EC (see paragraph 585 above). 655 It must be noted that point 23 of the Guidelines, according to which ‘[h]orizontal price-fixing, market-sharing and output-limitation agreements’ are by their very nature among the most harmful restrictions of competition, refers to footnote 2, which specifies that the concept of agreements includes ‘concerted practices’ within the meaning of Article 81 EC. 656 Similarly, point 25 of the Guidelines provides that the basic amount will include a sum of between 15% and 25% of the value of sales in order to deter undertakings from entering into ‘horizontal price-fixing, market-sharing and output-limitation agreements’, an expression which is identical to that of point 23 which refers to footnote 2. A systematic and consistent interpretation of the Guidelines permits the conclusion that the clarification provided by footnote 2 relates just as much to the same concept of ‘agreements’ used in point 25 of the Guidelines. 657 Second, it must be stated that, by setting an amount of 15% of the value of Dole’s sales, the Commission applied a proportion 50% lower than that which may be generally applied in horizontal agreements or concerted practices fixing prices, which are, by their very nature, among the most harmful restrictions of competition and will be ‘heavily fined’, according to points 21 and 23 of the Guidelines. Point 23 of the Guidelines indicates clearly that the proportion to be applied in respect of horizontal agreements or concerted practices fixing prices will generally be at the ‘higher end of the scale’, the rate of 15% set by the Commission being in the lower part of the ‘higher end of the scale’. 658 With respect to the additional amount provided for in point 25 of the Guidelines, it must be stated that the Commission applied the minimum amount of 15% mentioned therein. 659 The nature of the infringement, the implementation of the practice in issue and the fact that that practice concerned 8 Member States, that is a significant part of the European Union, which was composed of 15 Member States at the material time, including the Federal Republic of Germany, which constitutes, according to the applicants’ own statements, the largest banana market in Northern Europe, are factors that were taken into consideration by the Commission and which justify the intermediate amount of 15% of the value of Dole’s sales applied under points 21 and 25 of the Guidelines. 660 Third, it must be borne in mind that the Court of Justice has repeatedly held that the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether there is discrimination (Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 205). It follows that the applicants cannot invoke the Commission’s decision-making policy as an argument before the Courts of the European Union (Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 123). 661 Moreover, it must be stated that the Commission applied a share of sales, in respect of the degree of gravity of the infringement, which was lower than that used in the two decisions to which the applicants refer and which did not relate to the same products, thus illustrating differential treatment of the cases in question. 662 Even if it is accepted that the amount of 15% relied on in the contested decision reveals an increase in the share of sales taken into account by the Commission in respect of the assessment of the gravity of the infringement, it will be recalled that the Commission has a margin of discretion when fixing the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules (Case T‑229/94 Deutsche Bahn v Commission [1997] ECR II‑1689, paragraph 127). The fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level, at any time, to ensure the implementation of European competition policy (Musique Diffusion française and Others v Commission, paragraph 581 above, paragraph 109). 663 It follows from the foregoing considerations that it has not been demonstrated that Dole was treated in a disproportionate or discriminatory manner. D – The allegedly disproportionate amount of the fine in that the Commission wrongly ignored Dole’s argument that it ought to have taken account of Dole’s precarious financial situation 664 The applicants assert that the Commission made an error of assessment in refusing to take account of Dole’s precarious financial situation on the sole ground that to do so would amount to conferring on it ‘an unjustified competitive advantage’ (recital 491 to the contested decision). The Commission’s assessment deprives point 35 of the Guidelines of its effet utile and is based on a key contradiction, in the light of the fact that the Commission inexplicably abandoned any action against Fyffes and Van Parys. 665 The applicants further submit that the Commission’s assessment is insufficient and that, in the defence, the Commission put forward a new reason to explain its rejection, in breach of Article 253 EC. At the hearing, the applicants made clear that they were also alleging, in their pleadings, that the contested decision was inadequately reasoned. 666 In the first place, with respect to the statement of reasons for the contested decision, it should be noted that, after citing point 35 of the Guidelines in its entirety (recital 489 to the contested decision) and recalling the exchanges with Dole for the purposes of determining its financial situation (recital 490 to the contested decision), the Commission came to the following conclusion in recital 491 to the contested decision: ‘After having examined Dole’s financial situation on the basis of the information submitted, the Commission concludes that it is not appropriate to adjust the amount of the fine in Dole’s case. Although the financial information provided by Dole shows that Dole is undergoing serious financial constraints, to take into account the adverse financial situation of an undertaking would be tantamount to conferring an unjustified competitive advantage on undertakings least well adapted to the conditions of the market.’ 667 It is therefore apparent that the Commission applied the method laid down in the Guidelines and refused to grant a reduction in the amount of the fine on the basis of exceptional circumstances deriving from an inability to pay in the light of an examination which culminated in the mere finding of ‘serious financial constraints’, or of an ‘adverse financial situation’. 668 Those reasons must be read in conjunction with the wording of point 35 of the Guidelines, referred to in recital 489 to the contested decision, which sets out the conditions for granting a reduction in the amount of the fine on the basis of exceptional circumstances. 669 It is clearly apparent from point 35 of the Guidelines that, in order to benefit from such a reduction, the undertaking concerned must establish that the imposition of the fine ‘would irretrievably jeopardise [its] economic viability’ and ‘cause its assets to lose all their value’, and that no reduction in the amount of a fine will be granted ‘on the mere finding of an adverse or loss-making financial situation’, that last reference corresponding to the reasoning used by the Commission in the case of Dole. 670 The applicants claim that, in its defence, the Commission puts forward a new reason to explain its refusal to take account of its financial situation, stating that it rejected that argument following ‘a detailed analysis of Dole’s situation on the basis of the information submitted’, and that that new reasoning is inadmissible. 671 It is sufficient to note that that explanation is already contained in recital 491 to the contested decision, the Commission merely recalling, in its defence, that it analysed Dole’s financial situation on the basis of the information submitted and concluded that the conditions for a reduction in the amount of the fine had not been satisfied. 672 It follows that it cannot be alleged that the Commission infringed Article 253 EC either by inadequate reasoning or by contradicting itself in the statement of reasons for the contested decision. 673 In the second place, as regards the merits of the Commission’s assessment, it should be borne in mind that, according to settled case‑law, the Commission is not required, when determining the amount of the fine, to take account of an undertaking’s financial losses, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to the market conditions (Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 370 and the case‑law cited). 674 The wording of point 35 of the Guidelines reflects the fact that the Commission has taken account of that case‑law in the determination of the method of calculating fines. 675 It must be stated that the applicants neither claim nor, a fortiori, prove that the imposition of a fine was such as to irretrievably jeopardise their economic viability and cause their assets to lose all their value. 676 It is therefore apparent that the Commission applied the method laid down in the Guidelines and that its refusal to grant a reduction in the amount of the fine in the light of the mere finding of a ‘negative financial situation’ is consistent with the case‑law referred to in paragraph 673 above. 677 With respect to the claim by the applicants of a ‘key contradiction’ in the Commission’s conduct, because of the treatment afforded to Fyffes and Van Parys, who benefited from a competitive advantage stemming from the ‘inexplicable’ abandoning of any action against them, it must be stated that the applicants’ comparative analysis is wholly irrelevant. 678 It will be recalled that, where an undertaking has acted in breach of Article 81 EC, it cannot escape being penalised altogether on the ground that one or more other traders have not been fined, when those traders’ circumstances are not even the subject of proceedings before the Court (Ahlström Osakeyhtiö and Others v Commission, paragraph 56 above, paragraph 197). 679 In any event, as was already stated, the Commission must be permitted in its decision to take account of the responses of the undertakings concerned to the statement of objections and must be able not only to accept or reject the arguments of the undertakings concerned, but also to carry out its own assessment of the facts put forward by those undertakings in order either to abandon such complaints as have been shown to be unfounded or to supplement and redraft its arguments, both in fact and in law, in support of the complaints which it maintains. In the present case, the Commission abandoned the complaints initially made against Fyffes and Van Parys, taking the view that the evidence concerning them was insufficient. 680 That situation is in no way comparable to Dole’s, an addressee of the contested decision to which the Commission refused to grant a reduction in the amount of the fine in the light of its financial situation and does not therefore reveal any inconsistency or discrimination to Dole’s detriment. 681 Accordingly, the claim that the Commission was wrong to reject Dole’s request that its precarious financial situation be taken into account must be rejected. 682 It follows from all the foregoing considerations that the applicants’ application for annulment or reduction of the fine must be dismissed. 683 It follows that the action must be dismissed in its entirety. Costs 684 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders Dole Food Company, Inc. and Dole Germany OHG to pay the costs. Truchot Martins Ribeiro Kanninen Delivered in open court in Luxembourg on 14 March 2013. [Signatures] Table of contents Facts giving rise to the dispute Contested decision Procedure and forms of order sought by the parties Law I – Admissibility of the document submitted by the applicants at the hearing II – The claims for annulment of the contested decision A – The infringement of Articles 81 EC and 253 EC 1. Whether an exchange of information can be classified as a concerted practice having an anti-competitive object 2. The existence of a concerted practice having an anti-competitive object a) Chiquita’s lack of credibility b) The incompatibility of Dole’s and Chiquita’s operating methods with the collusion alleged The alleged infringement of Article 253 EC Substance c) The unlawful coordination of Dole’s, Chiquita’s and Weichert’s quotation prices Identification of the unlawful discussions The nature of the information exchanged The participants in the exchanges Whether the essential characteristics of the relevant market were taken into account – The regulatory framework – The specific nature of the relevant product – The variable nature of demand – The structure of the market The timing and frequency of the communications The purpose of the bilateral communications The relevance of quotation prices in the banana industry The responsibility of the Dole employees involved in the bilateral communications B – Infringement of the rights of the defence and the obligation to state reasons III – The claims for annulment or reduction of the fine A – Preliminary observations B – The allegedly disproportionate nature of the basic amount of the fine in that it is based on the value of sales of products unrelated to the infringement, and the infringement of the obligation to state reasons C – The allegedly disproportionate nature of the basic amount of the fine in that it is based on the incorrect finding that the conduct ‘concerned the fixing of prices’ and infringement of the obligation to state reasons D – The allegedly disproportionate amount of the fine in that the Commission wrongly ignored Dole’s argument that it ought to have taken account of Dole’s precarious financial situation Costs * Language of the case: English.