EN Official Journal of the European Union C 252/14

Appeal brought on 24 May 2013 by Dole Food Company, Inc., Dole Fresh Fruit Europe Ltd & Co. against the judgment of the General Court (Eighth Chamber) delivered on 14 March 2013 in Case T-588/08: Dole Food Company, Inc., Dole Fresh Fruit Europe Ltd & Co. v European Commission

(Case C-286/13 P)

2013/C 252/22

Language of the case: English

Parties

Appellants: Dole Food Company, Inc., Dole Fresh Fruit Europe Ltd & Co. (represented by: J.-F. Bellis, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside in whole or in part the judgment under appeal, in so far as the Appellants’ action was dismissed;

— annul in whole or in part the Decision of the Commission of 15 October 2008 in so far as it is related to the Appellants;

— cancel or reduce the fine imposed on the Appellants, also on the basis of the unlimited jurisdiction provided for by Article 261 TFEU;

— in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice;

— order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

Pleas in law and main arguments

By the first ground of appeal, which is subdivided into five parts, the Appellants claim that the General Court committed a number of procedural errors in carrying out its review:

The General Court erred by allowing the Commission to address in the judicial proceedings, for the first time, evidence in its file that contradicted the findings made in the Decision;

The General Court wrongly rejected the admissibility of the Appellants' submission of evidence from the Commission's file to rebut a claim newly raised by the Commission in its Rejoinder;

The General Court wrongly rejected the admissibility of an annex introduced by the Appellants to support their argument that the Commission took statements made by the Appellants during the administrative proceedings out of context;

The General Court breached the equality of arms principle by failing to consider evidence submitted by the Appellants during the judicial proceedings; and

The General Court failed to properly establish the facts.

By the second ground of appeal, the Appellants claim that the General Court distorted facts that are crucial to a proper assessment of the impugned conduct in its legal and economic context.

By the third ground of appeal, which is subdivided in five parts, the Appellants claim that the General Court inadequately assessed the evidence:

The General Court failed to provide adequate reasons to uphold the market share calculations relied upon by the Commission for purposes of establishing the relevant market structure;

The General Court erred by concluding that the Commission is not required to specify the content of those discussions the Appellants had with other undertakings which constitute a restriction of competition by object;

The General Court erred by concluding that the Commission clearly described the content of those discussions the Appellants had with other undertakings which constitute a restriction of competition by object;

The General Court failed to address the Appellants' argument that certain employees could not exchange credible information; and

The General Court erred by applying the wrong legal characterization of the facts when concluding that the discussions constitute a restriction of competition by object.

By the fourth ground of appeal, which is subdivided in two parts, the Appellants claim that the General Court committed various errors in calculating the fine imposed:

The General Court erred by calculating the fine based on sales of companies in relation to which no finding of an infringement was made; and