Joined Cases C‑293/13 P and C‑294/13 P

Fresh Del Monte Produce Inc.

v

European Commission

and

European Commission

v

Fresh Del Monte Produce Inc.

‛Appeals — Competition — Agreements, decisions and concerted practices — European banana market — Coordination in the setting of quotation prices — Concept of ‘economic unit’ between two companies — Concept of ‘decisive influence’ — Whether the conduct of one company may be imputed to another — Distortion of evidence — Burden of proof — Principle of in dubio pro reo — Concept of ‘single and continuous infringement’ — Concept of ‘concerted practice’ — Concept of ‘infringement by object’ — Undertakings that are members of the same cartel — Communication of information to the Commission — Legal obligation — Scope — Protection against self- incrimination — Intervener at first instance — Cross-appeal — Admissibility’

Summary — Judgment of the Court (Second Chamber), 24 June 2015

Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Exercise of decisive influence on the conduct of a subsidiary that may be inferred from a body of evidence relating to the economic, organisational and legal links with the parent company

See the text of the decision. (see paras 46, 47)

In an appeal, a party has an interest in submitting a response where, having failed to challenge in good time a Commission decision finding it jointly and severally liable with another undertaking for infringement of the competition rules, so that that decision has become final in so far as it is concerned, it would be required, in the event that the Court granted the appeal brought by the undertaking that is jointly and severally liable and annulled the decision in so far as that undertaking is concerned, to pay the fine imposed alone, not jointly and severally with the other undertaking. (see paras 52, 53, 164-166)

In examining whether the parent company is able to exercise decisive influence over the market conduct of its subsidiary, account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to its parent company and, therefore, of economic reality. The exercise of decisive influence may be inferred from a body of consistent evidence, even if some of that evidence, taken in isolation, is insufficient to establish the existence of such influence. That is the case where a parent company obtains, at its request and over and above what it is entitled to, up-to-date information on the state of the market for the product concerned, gives its subsidiary precise instructions on the conduct to be adopted by it on that market, those instructions are accompanied by threats which the parent company can make because it enjoys a powerful means of putting pressure on that subsidiary and the latter, fearing that it will be put out of business, endeavours to meet its parent company’s expectations. (see paras 75-77, 98, 99)

See the text of the decision. (see para. 78)

An undertaking may have participated directly in all the forms of anti-competitive conduct comprising the single and continuous infringement of the EU competition rules, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anti-competitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anti-competitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole. On the other hand, if an undertaking has directly taken part in one or more of the aspects of anti-competitive conduct comprising a single abd continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other unlawful conduct planned or put into effect by those other participants in pursuit of the same objectives or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for (i) the conduct in which it participated directly and (ii) the conduct planned or put into effect by the other participants in pursuit of the same objectives as those pursued by that undertaking where it has been shown that the undertaking was aware of that conduct or could reasonably have foreseen it and was prepared to take the risk. (see paras 156-160)

A reduction of a fine, as provided for in the notice on immunity from fines and reduction of fines in cartel cases, is justified only where an undertaking provides information to the Commission without being asked to do so. The conduct of the undertaking concerned must not only facilitate the Commission’s task of establishing the existence of the infringement but also reveal a genuine spirit of cooperation. (see para. 184)