Case C‑286/13 P

Dole Food Company Inc.

and

Dole Fresh Fruit Europe, formerly Dole Germany OHG

v

European Commission

‛Appeals — Competition — Agreements, decisions and concerted practices — European banana market — Coordination in the setting of quotation prices — Obligation to state reasons — Belated statement of reasons — Belated submission of evidence — Rights of defence — Principle of equality of arms — Principles governing the establishment of the facts — Distortion of the facts — Assessment of the evidence — Market structure — Requirement for the Commission to specify those aspects of the exchange of information which constitute a restriction of competition by object — Burden of proof — Calculation of the fine — Whether sales made by subsidiaries not involved in the infringement are to be taken into account — Sales of the same bananas counted twice’

Summary — Judgment of the Court (Second Chamber), 19 March 2015

Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the value of sales — Criteria — Sales to which the infringement directly or indirectly relates

Agreements, decisions and concerted practices — Concerted practice — Concept — Need for a causal link between the concerted action and the conduct of the undertakings on the market — Presumption that the causal link exists — Burden of rebutting that presumption lies with the undertaking concerned — Evidence

Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Anti competitive object or effect — Presumption — Conditions

Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Content and objective of an agreement and the economic and legal context in which it developed — Distinction between infringements by object and infringements by effect — Intention of the parties to an agreement to restrict competition — Not a necessary criterion — Infringement by object — Sufficient degree of harm — Criteria for assessment

Acts of the institutions — Statement of reasons — Obligation — Scope — Requirement to state reasons to be assessed by reference to the circumstances of the case

Appeals — Grounds — Review by the Court of Justice of the General Court’s assessment of the need to supplement the information available to it — Possible only where the clear sense of the evidence has been distorted

Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — General reference to documents annexed to the application — Inadmissibility

See the text of the decision. (see para. 44)

See the text of the decision. (see para. 50)

See the text of the decision. (see para. 58)

See the text of the decision. (see para. 83)

See the text of the decision. (see paras 93, 94)

With regard to anti-competitive conduct falling within Article 81 EC, certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects. Consequently, certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 81(1) EC, to prove that they have actual effects on the market. Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, in order to prohibit it, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent. In order to determine whether a type of coordination between undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 81(1) EC, regard must be had, inter alia, to its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question. In addition, although the parties’ intention is not a necessary factor in determining whether a type of coordination between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account. (see paras 113, 115-118)

In so far as concerns the exchange of information between competitors, the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the common market. While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, none the less, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market. 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 particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object. (see paras 119-122)

Within the context of EU competition law, a concerted practice may have an anticompetitive object even though there is no direct connection between that practice and consumer prices. Indeed, it is not possible on the basis of the wording of Article 81(1) EC to conclude that only concerted practices which have a direct effect on the prices paid by end users are prohibited. On the contrary, it is apparent from Article 81(1)(a) EC that concerted practices may have an anticompetitive object if they ‘directly or indirectly fix purchase or selling prices or any other trading conditions’. In any event, 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. Accordingly, in order to find that a concerted practice has an anti-competitive object, there does not need to be a direct link between that practice and consumer prices. (see paras 123-125)

See the text of the decision. (see paras 126, 127)

See the text of the decision. (see para. 140)

See the text of the decision. (see paras 142-145)