Parties

Grounds

Operative part



Parties

In Case T-588/08,

Dole Food Company, Inc., established in Westlake Village, California (United States),

Dole Germany OHG, established in Hamburg (Germany),

represented by J.-F. Bellis, lawyer,

applicants,

v

European Commission, represented initially by X. Lewis and M. Kellerbauer, and subsequently by M. Kellerbauer and P. Van Nuffel, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article 81 EC (Case COMP/39 188 ‐ Bananas)

THE GENERAL COURT (Eighth Chamber),

composed of L. Truchot, President, M.E. Martins Ribeiro (Rapporteur) and H. Kanninen, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 25 January 2012,

gives the following

Judgment

Grounds

Facts giving rise to the dispute

1. Dole Food Company, Inc. (‘Dole’) is a United States company and a producer of fresh fruit, fresh vegetables and packed and frozen fruits. Dole Germany OHG is a subsidiary of Dole (together ‘the applicants’), established in Hamburg (Germany) and formerly known as Dole Fresh Fruit Europe OHG (‘DFFE’).

2. On 8 April 2005 Chiquita Brands International, Inc (‘Chiquita’) lodged an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).

3. On 3 May 2005, after Chiquita had submitted new declarations and additional documents, the Commission of the European Communities granted it conditional immunity from fines, in application of point 8(a) of the Leniency Notice.

4. After carrying out inspections pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) at the premises of various undertakings and, in particular, DFFE and sending, between February 2006 and May 2007, a number of requests for information pursuant to Article 18(2) of Regulation No 1/2003, the Commission sent a statement of objections on 20 July 2007 to Chiquita, Chiquita International Ltd., Chiquita International Services Group NV, Chiquita Banana Company BV, Dole, DFFE, Fresh Del Monte Produce Inc. (‘Del Monte’), Del Monte Fresh Produce International Inc., Del Monte (Germany) GmbH, Del Monte (Holland) BV, Fyffes plc (‘Fyffes’), Fyffes International, Fyffes Group Ltd, Fyffes BV, FSL Holdings NV, Firma Leon Van Parys NV (‘Van Parys’) and Internationale Fruchtimport Gesellschaft Weichert & Co. KG (‘Weichert’).

5. The undertakings mentioned in paragraph 4 above were given access to the Commission’s investigation file in the form of a copy on DVD, apart from the recordings and transcriptions of the corporate statements made orally by the applicant for immunity and the documents relating thereto, which were made available at the Commission’s premises (recital 49 to the contested decision).

6. Following the hearing of the undertakings concerned, which took place on 4 to 6 February 2008, Weichert sent the Commission a letter on 28 February 2008 containing comments and annexes.

7. On 15 October 2008 the Commission adopted Decision C(2008) 5955 final relating to a proceeding under Article 81 [EC] (Case COMP/39 188 – Bananas) (‘the contested decision’), which was notified to DFFE and Dole on 21 and 22 October 2008.

Contested decision

8. The Commission states that the undertakings to which the contested decision is addressed participated in a concerted practice consisting in coordinating their quotation prices for bananas marketed in Northern Europe, namely Austria, Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands and Sweden, between 1 January 2000 and 31 December 2002 (1 December 2002 for Chiquita) (recitals 1 to 3 to the contested decision).

9. At the material time imports of bananas into the European Community were regulated by Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1), which provided for a regime based on import quotas and tariffs. The Commission observes that while import quotas of bananas were set annually and allocated on a quarterly basis with certain limited flexibility between the quarters of a calendar year, banana shipments to Northern European ports and the volumes marketed in that region were determined each week by production, shipment and marketing decisions taken by producers, importers and traders (recitals 36, 131, 135 and 137 to the contested decision).

10. The banana business distinguishes three levels of banana brands, called ‘tiers’: premium Chiquita brand bananas, second-tier bananas (Dole and Del Monte brands) and third-tier bananas (also called ‘thirds’), which included a number of other banana brands. This brand-division was reflected in banana pricing (recital 32 to the contested decision).

11. During the relevant period the banana business in Northern Europe was organised in weekly cycles. Banana shipping from Latin American ports to Europe took approximately two weeks. Bananas shipments to Northern European ports generally arrived on a weekly basis and were made according to regular shipping schedules (recital 33 to the contested decision).

12. Bananas were shipped green and were green on arrival at the ports. They were then either delivered directly to buyers (green bananas) or ripened and then delivered approximately one week later (yellow bananas). Ripening could be carried out by the importer or on his behalf or be organised by the buyer. Importers’ customers were generally ripeners or retail chains (recital 34 to the contested decision).

13. Chiquita, Dole and Weichert set their quotation prices for their brands each week, in practice on Thursday mornings, and announced them to their customers. The expression ‘quotation prices’ usually corresponded to quotation prices for green bananas, while quotation prices for yellow bananas were normally the green quote plus a ripening fee (recitals 104 and 107 to the contested decision).

14. 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’. The Commission states that each Thursday, between 11 a.m. and 11.30 a.m., the Aldi retail chain received offers from its suppliers and then sent a counter-offer; the ‘Aldi price’, the price paid to suppliers, is generally set at around 2 p.m. From the second half of 2002 ‘the Aldi price’ began to be increasingly used as an indicator for banana pricing formulae for a number of other transactions, in particular those relating to branded bananas (recitals 34 and 104 to the contested decision).

15. The Commission observes that the undertakings to which the contested decision was addressed 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. Those communications took place before the undertakings concerned set their quotation prices, usually on Wednesdays, and all related to future quotation prices (recital 51 et seq. to the contested decision).

16. Dole thus communicated bilaterally with both Chiquita and Weichert. Chiquita was aware or at least foresaw that Dole had pre-pricing communications with Weichert (recital 57 to the contested decision).

17. Those bilateral pre-pricing communications were designed to reduce uncertainty as to the conduct of the undertakings concerned with respect to the quotation prices to be set by them on Thursday morning (recital 54 to the contested decision).

18. The Commission states that, after setting their quotation prices on Thursday morning, the undertakings concerned exchanged their quotation prices bilaterally. That subsequent exchange enabled them to monitor the individual pricing decisions in the light of the previous pre-pricing communications and reinforced their links of cooperation (recitals 198 to 208, 227, 247 and 273 et seq. to the contested decision).

19. According to the Commission, the quotation prices served at least as market signals, trends and/or indications as to the intended development of banana prices and were relevant for the banana trade and the prices obtained. In some transactions, moreover, the price was directly linked to quotation prices through formulae based on quotation prices (recital 115 to the contested decision).

20. The Commission considers that the undertakings concerned, which participated in the concerted arrangement and remained active in the banana trade, must necessarily have taken account of the information received from competitors when determining their conduct on the market, while Chiquita and Dole even expressly admitted having done so (recitals 228 and 229 to the contested decision).

21. The Commission concludes that the pre-pricing communications, which took place between Dole and Chiquita and between Dole and Weichert, were liable to influence operators’ pricing behaviour and 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 (recitals 54 and 271 to the contested decision).

22. The Commission considers that all the collusive agreements described in the contested decision constitute a single and continuous infringement having as its object the restriction of competition within the Community within the meaning of Article 81 EC. Chiquita and Dole were held responsible for the entire single and continuous infringement, while Weichert was held responsible only for the part of the infringement in which it participated, namely the part of the infringement relating to the collusive agreements with Dole (recital 258 to the contested decision).

23. In view of the fact that the market for bananas in Northern Europe is characterised by a substantial volume of trade between Member States and that the collusive practices covered a significant part of the Community, the Commission considers that those agreements had an appreciable effect on trade between Member States (recital 333 et seq. to the contested decision).

24. The Commission states that no exemption under Article 81(3) EC could be granted in the absence of any notification of agreements or practice by the undertakings, which is a precondition for the application of Article 81(3) EC pursuant to Article 4(1) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), and even of any evidence that the conditions for the grant of an exemption were satisfied in the present case (recital 339 et seq. to the contested decision).

25. The Commission states that Council Regulation No 26 of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products (OJ, English Special Edition 1959-1962, p. 129), which was in force at the material time and provided that Article 81 EC was to apply to all agreements, decisions and practices relating to production of or trade in various products including fruit, provided in Article 2 for a number of exceptions to the application of Article 81 EC. As the conditions for the application of those exceptions were not satisfied in the present case, the Commission concludes that the concerted practice described in the contested decision could not be exempted under Article 2 of Regulation No 26 (recital 344 et seq. to the contested decision).

26. For the purposes of calculating the amount of the fines, the Commission applied, in the contested decision, the provisions of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines’) and of the Leniency Notice.

27. The Commission determined a basic amount of the fine to be imposed, which corresponds to an amount of between 0% and 30% of the value of the relevant sales of the undertaking, depending on the degree of gravity of the infringement, multiplied by the number of years of the undertaking’s participation in the infringement, and an additional amount of between 15% and 25% of the value of the sales in order to deter undertakings from engaging in unlawful conduct (recital 448 to the contested decision).

28. Those calculations resulted in a basic amount of the fine to be imposed of:

– EUR 208 000 000 for Chiquita;

– EUR 114 000 000 for Dole;

– EUR 49 000 000 for Del Monte and Weichert.

29. The basic amount of the fine to be imposed was reduced by 60% for all the addressees of the contested decision, in view of the specific regulatory regime in the banana sector and on the ground that the coordination related to the quotation prices (recital 467 to the contested decision). A reduction of 10% was granted to Weichert, which had not been informed of the pre-pricing communications between Dole and Chiquita (recital 476 to the contested decision).

30. Following adjustment, the basic amounts of the fines to be imposed were as follows:

– EUR 83 200 000 for Chiquita;

– EUR 45 600 000 for Dole;

– EUR 14 700 000 for Del Monte and Weichert.

31. Chiquita was granted immunity from fines under the Leniency Notice (recitals 483 to 488 to the contested decision). No other adjustment was made for Dole or for Del Monte and Weichert, for which the final amount of the fines corresponded to the basic amounts of the fines to be imposed referred to in paragraph 30 above.

32. The contested decision includes the following provisions:

‘ Article 1

The following undertakings infringed Article 81 [EC] by participating in a concerted practice by which they coordinated quotation prices for bananas:

– [Chiquita], from 1 January 2000 until 1 December 2002;

– Chiquita International Ltd from 1 January 2000 until 1 December 2002;

– Chiquita International Services Group NV from 1 January 2000 until 1 December 2002;

– Chiquita Banana Company BV from 1 January 2000 until 1 December 2002;

– [Dole] from 1 January 2000 until 31 December 2002;

– [DFFE] from 1 January 2000 to 31 December 2002;

– [Weichert] from 1 January 2000 until 31 December 2002;

– [Del Monte] from 1 January 2000 until 31 December 2002

The infringement covered the following Member States: Austria, Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands and Sweden.

Article 2

For the infringement referred to in Article 1, the following fines are imposed:

– [Chiquita], Chiquita International Ltd., Chiquita International Services Group NV and Chiquita Banana Company BV, jointly and severally: EUR 0;

– [Dole] and [DFFE], jointly and severally: EUR 45 600 000;

– [Weichert] and [Del Monte], jointly and severally: EUR 14 700 000.

...’

Procedure and forms of order sought by the parties

33. By application lodged at the Court Registry on 24 December 2008, the applicants brought the present action.

34. On hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure of the General Court, requested the Commission to lodge certain documents.

35. On 10 November 2011, the Commission lodged the documents requested, which were notified to the applicants on 18 November 2011. The applicants did not submit any observations either in writing or orally.

36. The parties presented oral argument and their answers to the questions put by the Court at the hearing on 25 January 2012.

37. At the hearing, the applicants submitted a document and requested that it be placed in the procedural file, to which the Commission objected.

38. The applicants claim that the Court should:

– annul the contested decision;

– annul or reduce the amount of the fine imposed;

– order the Commission to pay the costs.

39. The Commission contends that the Court should:

– dismiss the application;

– order the applicants to pay the costs.

Law

I – Admissibility of the document submitted by the applicants at the hearing

40. It should be borne in mind that, according to Article 48(1) of the Rules of Procedure, a party may offer further evidence in reply or rejoinder, although that provision specifies that the party must, however, give reasons for the delay in offering it.

41. According to the case-law, the lodging of evidence offered after the rejoinder remains possible only where the person offering the evidence was unable, before the end of the written procedure, to obtain possession of the evidence in question, or if evidence produced belatedly by the other party justifies completing the file so as to ensure observance of the rule that both parties should be heard (Case T-172/01 M v Court of Justice [2004] ECR II-1075, paragraph 44, upheld on appeal by judgment of 14 April 2005 in Case C-243/04 P Gaki-Kakouri v Court of Justice , not published in the ECR, and Case T-51/07 Agrar-Invest-Tatschl v Commission [2008] ECR II-2825, paragraph 57).

42. As the Court of Justice has held, since it is an exception to the rules governing the lodging of evidence offered, Article 48(1) of the Rules of Procedure requires parties to give reasons for the delay in offering their evidence. That obligation implies that the court has the power to check the merits of the reasons given for the delay in lodging the evidence offered and, depending on the case, the substance of that evidence, as well as the power to disregard the evidence if the application is not sufficiently founded. The same applies, a fortiori , to offers of evidence made after the rejoinder is submitted ( Gaki-Kakouri v Court of Justice , paragraph 41 above, paragraph 33).

43. In the present case, at the hearing, the applicants requested that a document containing statements by Chiquita regarding the supply of Aldi by Atlanta, a ripener-distributor, and the conditions, including the temporal conditions, under which that retailer made its offer on the banana market be added to the procedural file.

44. First, it is common ground that those statements by Chiquita were taken during the administrative procedure and are part of the Commission’s investigation file.

45. Second, the applicants merely stated that the lodging of the document in question was explained by the need to reply to paragraph 49 of the Commission’s rejoinder concerning the discussion on the distinction between green bananas and yellow bananas.

46. It is sufficient to note, in that regard, that, in that paragraph of the rejoinder, the Commission merely reproduces the language of the contested decision, according to which whether the importer would refer to a yellow price or green price may depend on how it organises sales of bananas and merely highlights the applicants’ own statements, contained in the application, regarding the fact that the ‘Aldi price’, relating to the purchase of yellow bananas, was a very relevant factor for sales of green bananas.

47. The evidence offered in support by the applicants does not therefore relate to any new point, but deals with an issue raised from the start of the dispute, by the applicants, on the alleged distinction that must be drawn between green bananas and yellow bananas and the influence of the ‘Aldi quote’ on transaction prices.

48. Accordingly, the Court declares that the document submitted late by the applicants at the hearing is inadmissible.

II – The claims for annulment of the contested decision

49. The applicants put forward a single plea in law, alleging that the Commission erred in finding the existence of a concerted practice having an anti-competitive object.

50. It is apparent from the applicants’ pleadings that, in that plea, the applicants allege infringement, first, of Articles 81 EC and 253 EC and, second, of the rights of the defence and of Article 253 EC.

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

51. In the first place, the applicants assert that the conduct in issue consisted in a mere exchange of information that did not form part of a broader cartel and was thus not a restriction of competition by object. They maintain that, according to the case-law, the mere fact that an information exchange might potentially reduce uncertainty over future pricing policies does not provide sufficient grounds to classify it as a restriction of competition by object.

52. The applicants state that the Commission wrongly relies on a number of cases involving exchanges of information which formed part of broader cartel arrangements, whereas the Commission does not maintain, as various passages of the contested decision show, that the undertakings involved in this case participated in an agreement or a concerted practice designed to fix actual prices, or in an agreement relating to quotation prices, or even in an agreement or a concerted practice designed to fix specific price increases or reductions.

53. First, with respect to the infringement referred to in the contested decision, it is unequivocally clear from the terms of that decision that the Commission alleges that the applicants coordinated quotation prices by means of bilateral pre-pricing communications, a situation which characterises a concerted practice concerning the fixing of prices and therefore having as its object the restriction of competition within the meaning of Article 81 EC (see, inter alia, recitals 1, 54, 261, 263 and 271 to the contested decision); this is not precluded by the fact that the Commission did not find, in the present case, that there had been an agreement or a concerted practice designed to fix actual prices, or an agreement relating to quotation prices, or even an agreement or a concerted practice designed to fix specific price increases or reductions.

54. It is therefore apparent that the exchange of information in question constitutes, according to the Commission, a cartel, which falls within the specific legal classification of a concerted practice.

55. In that regard, it should be borne in mind that the definitions of ‘agreement’, ‘decisions by associations of undertakings’ and ‘concerted practice’ are intended, from a subjective point of view, to catch forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves (see, to that effect, Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 131).

56. With regard to the definition of concerted practice, the Court of Justice has made clear that such a practice is a form of coordination between undertakings by which, without it having been taken to the stage where an agreement properly so-called has been concluded, practical cooperation between them is knowingly substituted for the risks of competition (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/ 73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 26; Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 63; and Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I-4529, paragraph 26).

57. 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. In that regard, 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. That is all the more the case where the undertakings concert together on a regular basis over a long period (Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraphs 161 to 163, and T-Mobile Netherlands and Others, paragraph 56 above, paragraph 51).

58. In the present case, the applicants may not rely on certain passages of the contested decision distinguishing the concepts of concerted practices and agreements as a basis for their claims regarding the absence of any objection, in that decision, concerning the fixing of prices.

59. Second, it should be noted that the argument that an exchange of information can constitute a restriction of competition by object only if it forms ‘part of broader cartel arrangements, such as cartels to fix actual prices or share markets’ lacks any foundation in law.

60. With regard to the exchange of information between competitors, it should be recalled that 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 ( Suiker Unie and Others v Commission , paragraph 56 above, paragraph 173; Case 172/80 Züchner [1981] ECR 2021, paragraph 13; Ahlström Osakeyhtiö and Others v Commission , paragraph 56 above, paragraph 63; Case C-7/95 P John Deere v Commission [1998] ECR I-3111, paragraph 86; and T-Mobile Netherlands and Others , paragraph 56 above, paragraph 32).

61. 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 (see, to that effect, Suiker Unie and Others v Commission , paragraph 56 above, paragraph 174; Züchner, paragraph 60 above, paragraph 14; John Deere v Commission , paragraph 60 above, paragraph 87; and T-Mobile Netherlands and Others , paragraph 56 above, paragraph 33).

62. It follows 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 ( John Deere v Commission , paragraph 60 above, paragraph 90; Case C-194/99 P Thyssen Stahl v Commission [2003] ECR I-10821, paragraph 81; and T-Mobile Netherlands and Others , paragraph 56 above, paragraph 35).

63. The Commission considers that the bilateral pre-pricing communications decreased uncertainty surrounding the future decisions of the undertakings concerned on quotation prices, which constitute announced prices, and adds, correctly, that concertation on such prices may also constitute an infringement by object (recital 284 to the contested decision).

64. As to whether a concerted practice may be regarded as having an anti-competitive object even though there is no direct connection between that practice and consumer prices, 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 anti-competitive object if they ‘directly or indirectly fix purchase or selling prices or any other trading conditions’ ( T-Mobile Netherlands and Others , paragraph 56 above, paragraphs 36 and 37).

65. 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. Therefore, 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 ( T-Mobile Netherlands and Others , paragraph 56 above, paragraphs 38 and 39).

66. Irrespective of the reference, in the contested decision, to certain judicial decisions, it is for the General Court to ascertain whether, in the circumstances of the present case, the Commission was entitled to find that the exchanges of information between, on the one hand, Dole and Chiquita and, on the other hand, Dole and Weichert constituted a concerted practice having as its object the restriction of competition.

67. In the second place, the applicants claim that the Commission was wrong to find that the information exchange in issue constituted a restriction of competition by object and that, by doing so, it avoided the obligation to consider whether that information exchange had any anti-competitive effect.

68. As regards the distinction to be drawn between concerted practices having an anti-competitive object and those with anti-competitive effects, it must be borne in mind that an anti-competitive object and anti-competitive effects constitute not cumulative but alternative conditions in determining whether a practice falls within the prohibition in Article 81(1) EC. It has, since the judgment in Case 56/65 LTM [1966] ECR 235, 249, been settled case-law that the alternative nature of that requirement, indicated by the use of the conjunction ‘or’, means that it is necessary, first, to consider the precise purpose of the concerted practice, in the economic context in which it is to be pursued. Where, however, the analysis of the terms of the concerted practice does not reveal a sufficient degree of harm to competition, the consequences of the concerted practice should then be considered and for it to be caught by the prohibition it is necessary to find that those factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (see, to that effect, Case C-209/07 Beef Industry Development Society and Barry Brothers [2008] ECR I-8637, paragraph 15, and T-Mobile Netherlands and Others , paragraph 56 above, paragraph 28).

69. 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 (see, to that effect, Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, 342; Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, paragraph 125; and Beef Industry Development Society and Barry Brothers , paragraph 68 above, paragraph 16). The distinction between ‘infri ngements by object’ and ‘infringements by effect’ arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition ( Beef Industry Development Society and Barry Brothers , paragraph 68 above, paragraph 17, and T-Mobile Netherlands and Others , paragraph 56 above, paragraph 29).

70. 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. In other words, the concerted practice must simply be capable in an individual case, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition within the common market. Whether and to what extent, in fact, such anti-competitive effects result can only be of relevance for determining the amount of any fine and assessing any claim for damages ( T-Mobile Netherlands and Others , paragraph 56 above, paragraph 31).

71. In the present case, since the Commission found that the pre-pricing communications between the undertakings concerned had given rise to a concerted practice having an anti-competitive object, it was not required, in accordance with the abovementioned case-law, to examine the effects of the impugned conduct in order to be able to find that there had been an infringement of Article 81 EC.

72. In the third place, the applicants claim that, in order to depart from the case-law which has established that information exchanges are not generally ‘sufficiently deleterious’ to merit being classified as restrictions of competition by object, even where the information exchanged is intended actually to influence the fixing of prices, the Commission, in recital 315 to the contested decision, drew an artificial distinction between ‘pre-pricing’ communications and ‘ex post’ exchanges of information and maintained that the present case concerns the former, which are considered more serious. That distinction is not supported by any judicial decision and even contradicts the case-law which requires that the structure of the market and the characteristics of the communications be taken into consideration.

73. As the Commission rightly states, that argument of the applicants is based on an incomplete reading of the contested decision, since recital 315 must be read in the light of all the analysis carried out by the Commission in that decision.

74. The Court notes, in that regard, that the Commission uses the generic expression ‘pre-pricing communications’ to designate the concerted practice concerning the coordination of quotation prices and having as its object a restriction of competition within the meaning of Article 81 EC following the analysis carried out in recitals 259 to 272 to the contested decision. The pre-pricing communications are defined in recitals 51, 148 and 182 to the contested decision as exchanges during which the undertakings concerned discussed banana price factors, that is to say, factors relevant to the setting of quotation prices for the forthcoming week, discussed or disclosed price trends or gave indications of quotation prices for the forthcoming week. Those communications took place before the parties set their quotation prices and all related to future quotation prices.

75. The Commission also refers to an ‘exchange of quotation prices’, the terms of which are also set out in recital 51 to the contested decision, as follows:

‘… Once they had set their quotation prices on Thursday mornings, the parties bilaterally exchanged these prices or at least had a mechanism in place, which enabled them to bilaterally exchange information about quotation prices set …’

76. It is apparent from recitals 51, 198, 227, 248, 250 and 257 to the contested decision that, for the Commission, those exchanges of quotation prices formed an element of the undertakings’ cartel arrangements, since they served to monitor individual pricing decisions taken on the basis of the information exchanged in the pre-pricing communications, and did not therefore constitute a separate infringement, but a mechanism for monitoring the outcome that contributed to the same aim.

77. As regards recital 315 to the contested decision, its purpose is merely to reply to an argument of the undertakings to which the statement of objections is addressed according to which the pre-pricing communications are merely exchanges of information, which can infringe Article 81 EC only if anti-competitive effects are established. In that recital, the Commission draws a distinction between the present case and the case, relied upon by those undertakings, which led to the adoption of Commission Decision 92/157/EEC of 17 February 1992 relating to a proceeding pursuant to Article [81 EC] (Case IV/31.370 and 31.446 – UK Agricultural Tractor Registration Exchange) (OJ 1992 L 68, p. 19), concerning an information exchange system that gave rise to an infringement of Article 81 EC on account of its anti-competitive effects on the market.

78. The Commission confines itself to stating that the pre-pricing communications were not ex-post exchanges of information, that is to say relating to transactions that had already been completed, as in the UK Agricultural Tractor Registration Exchange case, but that they gave rise to the disclosure of the course of conduct which competitors contemplated adopting in the market concerning the future setting of their quotation prices.

79. Contrary to the applicants’ assertions, the Commission does not carry out, on this occasion, any comparison or classification of the types of exchanges of information in terms of harmfulness for competition according to whether they took place before or after the fixing of the transaction prices and does not claim that the first type of exchange is more serious and is sufficient to establish, without any further assessment, a restriction of competition by object.

80. The only distinction on which the Commission relies in recital 315 to the contested decision is that between agreements having an anti-competitive object and those having an anti-competitive effect, a distinction which is permitted by the case-law.

81. Referring to recitals 263 to 271 to the contested decision, the Commission states that the concerted practice involving Dole has as its object a restriction of competition within the meaning of Article 81 EC and that, ‘[t]herefore, the Commission does not need to analyse the structure of the market’ or ‘characteristics of the communications or information communicated in the light of criteria set out in the UK Agricultural Tractor Registration Exchange case’.

82. It is not permissible to interpret that citation, as the applicants do, as proof that the Commission failed to have regard, in the present case, to the requirements laid down by case-law concerning the assessment of whether exchanges of information between competitors are consistent with the competition rules. The only significance of that citation is the mere differentiation that must be made with a situation in which a finding of infringement of Article 81 EC results from taking into account the restrictive effects on competition of an information exchange system.

83. The express reference to recitals 263 to 271 to the contested decision, in which the Commission draws attention to certain characteristics of the information exchange system between the undertakings concerned and to the fact that it took account of the context in which that system was conducted, is sufficient to contradict the applicants’ interpretation.

84. In any event, as will be explained below, the Commission evaluated the practice in issue by taking account of the content, frequency and duration of the bilateral communications and of the legal and economic context in which those discussions took place.

85. It follows that the Court must reject the applicants’ argument mentioned in paragraph 72 above.

2. The existence of a concerted practice having an anti-competitive object

a) Chiquita’s lack of credibility

86. The applicants claim that the Commission’s conclusion that the information exchange in question constitutes a concerted practice on price-fixing, and therefore a restriction of competition by object, is based virtually exclusively on the way in which Chiquita described that conduct during the administrative procedure, even though that undertaking is entirely lacking in credibility.

87. They plead, in that regard, the personal interest that Chiquita had in characterising the conduct in question as an infringement, the very telling manner in which the administrative procedure was conducted and the existence of manifest contradictions.

88. It must be stated, as a preliminary point, that the applicants’ arguments, which seek to discredit in a general manner Chiquita’s evidence, are based on an incorrect premiss, since Chiquita’s statements are only one of the elements taken into account by the Commission as a basis for its findings, in combination with Dole’s and Weichert’s own statements and documentary evidence, such as telephone records and electronic messages, all those elements having been examined and compared in such a way as to disclose both the evidence for and against the existence of a concerted practice.

89. The specific nature of the practice in issue, namely the fact that the bilateral communications in issue took place orally and that the parties informed the Commission that they had no notes or records of those communications none the less explains the importance of the statements made by the undertakings during the administrative procedure.

90. In the first place, as regards the personal interest that Chiquita had in classifying the conduct in issue as an infringement, the applicants state that Chiquita’s submission, on 8 April 2005, of an application for immunity on the basis of the Leniency Notice was linked with the acquisition, announced six weeks earlier, of the ‘Fresh Express’ business from the Performance Food group. In the applicants’ submission, Chiquita could not finalise its acquisition of the ‘Fresh Express’ business, which was of considerable strategic importance for Chiquita, without removing the concerns expressed by the banks financing the operation, following the review of Chiquita’s operations, and it was only on 28 June 2005, after obtaining conditional immunity on 3 May 2005, that Chiquita announced the completion of the acquisition.

91. The Court observes that the applicants’ argument does not correspond to the inherent logic of the procedure provided for in the Leniency Notice. The fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction in the fine does not necessarily create an incentive for the other participants in the offending cartel to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice (Case T-120/04 Peróxidos Orgánicos v Commission [2006] ECR II-4441, paragraph 70).

92. On the assumption that the applicants’ claims as to the motives for the immunity application submitted by Chiquita are correct, they are not such as to remove all credibility from the statements of that undertaking. The existence of a personal interest in reporting the existence of a concerted practice does not necessarily mean that the person doing so is unreliable.

93. The concerns of the operators who were to finance the acquisition of Chiquita and their interest, to that end, in determining as well as they could the risk relating to the situation of the borrower may equally be regarded as concrete evidence reinforcing the evidential value of Chiquita’s statements as to the actual existence of a cartel.

94. Moreover, and above all, the applicants’ portrayal of the action taken by Chiquita on 8 April 2005 as being solely to Chiquita’s advantage is misleading since it disregards a certain and potentially negative consequence relating to Chiquita’s recognition of its participation in a cartel. Although the application for immunity gave Chiquita grounds for hoping that it would escape any punishment by the Commission, its admission of its participation and the Commission’s subsequent decision finding an infringement of Article 81 EC exposes that undertaking to an action for damages by third parties in order to compensate the loss suffered on account of the anti-competitive conduct in issue, which may lead to serious financial consequences for Chiquita.

95. That conclusion is also such as to qualify the applicants’ claim on Chiquita’s alleged expectation that the competing undertakings would bear a financial handicap at the end of the administrative procedure.

96. In the second place, the applicants refer to the conduct of the administrative procedure, claiming that the Commission itself stated that Chiquita lacked credibility, since it rejected virtually all the allegations put forward by Chiquita on the ground that they were unfounded, including in relation to the participation of Fyffes and Van Parys in the alleged cartel, and was forced to hold a ‘state of play’ meeting with Chiquita. The latter identified the bilateral communications in issue and stated that they had an anti-competitive object only after that meeting.

97. The applicants observe that Chiquita’s leniency application of 8 April 2005 contained the following passage:

‘The application concerns the business of distribution and marketing of imported bananas, as well as pineapples and other fresh fruit. Major banana suppliers in Europe including Switzerland and Norway are [Chiquita], [Dole], Del Monte, [Fyffes], Ireland and Grupo Noboa SA Ecuador hereinafter Noboa.

Among the banana importers concerted actions in breach of Article 81 [EC] took place from approximately the beginning of the 1990s (or earlier) until April 2005. In the past four to five years participants of the concerted actions were Chiquita, Dole, Del Monte, Fyffes and Noboa, and maybe still today or previously also other smaller banana suppliers like Durbeck. In the banana segment, the above mentioned companies engaged in the regular exchange of volume and price information for future deliveries to Europe and to their individual European customers.

The companies also engaged in direct concerted actions on prices, be it on overall reference prices for Europe with respect to certain European customers.’

98. It is therefore apparent that the leniency application related specifically to ‘banana importers’ and their participation in concerted action ‘in the past five years’.

99. The terms of the contested decision show that Chiquita’s statements, unlike the applicants’, were largely taken into account by the Commission. First, it is common ground that, of the five importers mentioned, three were addressees of the contested decision. Second, it was found in the Decision that volume information had been exchanged, although that exchange was not ultimately relied upon as a constituent element of the infringement (see recitals 136 and 272 to the contested decision). Third, an exchange of information, in the form of pre-pricing communications, relating to importers’ and suppliers’ quotation prices, was relied upon in the contested decision to establish the existence of a concerted practice having an anti-competitive object of three years’ duration, which was included in the limited period referred to more specifically in the leniency application.

100. In any event, the finding that the infringement ultimately established in the contested decision does not correspond on all points to the information contained in the leniency application in relation to the object of the unlawful conduct, its duration and the number of undertakings concerned and punished is not capable of showing that the author of that application and its statements, on which the Commission’s findings on the existence of an infringement of Article 81 EC are based in part, are devoid of credibility.

101. The outcome – highlighted by the applicants – of the administrative procedure carried out by the Commission even contradicts their assertion that ‘the Commission too easily accepted Chiquita’s claim that there was some form of a cartel among banana importers in Northern Europe’ and did not carry out a ‘critical review’ of Chiquita’s statements.

102. The applicants’ desire to discredit Chiquita’s evidence led them to put forward contradictory reasoning by which they seek both to criticise the Commission for having relied almost exclusively on Chiquita’s statements, unreservedly and without critical analysis, and to underline the differences between those statements and the content of the contested decision.

103. Moreover, Chiquita’s evidence cannot be discredited in a wholesale manner on the basis of a Commission letter requesting Chiquita to submit its observations on ‘possible’ discrepancies between the initial leniency application and subsequent statements, and from the holding of a meeting on 20 October 2006, during which the Commission and Chiquita had an exchange of views on the comparison of evidence contained in the leniency application and that resulting from inspections and requests for information.

104. The Court notes that the applicants, which had access to the investigation file, assert merely that Chiquita mentioned pre-pricing communications after the state-of-play meeting of 20 October 2006 and do not provide any evidence such as to contradict the Commission’s observation that Chiquita first mentioned those pre-pricing communications in July–August 2005 (statements Nos 11 and 12), that is more than one year before that meeting was held.

105. In recital 149 to the contested decision, in which it is stated that, ‘[w]hen Chiquita informed the Commission about its pre-pricing communications with Dole, it submitted that their topics had been sales and market conditions and price factors as well as official price quotes concerning bananas’, reference is made to page 9 227 et seq. of the Commission’s file, which corresponds to Chiquita corporate statement No 12, of 25 August 2005. Moreover, Annex A 6 to the application corresponds to Chiquita statement No 28, in which Chiquita provides clarification on the conduct of its former employee, Mr B., who was engaged in communications with competing undertakings, and recalls having described what it knew of those communications in the earlier statements No 11, of 4 July 2005, No 12, of 25 August 2005, and No 13, of 20 January 2006.

106. In the third place, Dole observes that the evidence of Chiquita’s employee, Mr B., concerning the bilateral communications with one of Dole’s employees, Mr H., contains a number of internal inconsistencies which raise serious doubts as to its accuracy and its reliability and is also contradicted by the evidence supplied by Dole’s employee.

107. First, the applicants refer to the variations of Chiquita’s statements concerning the timing of the communications, in which Chiquita claims that exchanges took place on Mondays and Tuesdays and then on Wednesdays and Thursdays.

108. That situation is clearly explained in recitals 71 to 74, and 156 to the contested decision, from which it is apparent that, after additional interviews with Chiquita’s present and former employees and a review of the phone records of its former employee, Mr B., Chiquita clarified its initial statement by stating that the calls generally took place on Wednesday late afternoons and typically there was a second call early on Thursday morning, before, or sometimes immediately before, the internal Chiquita conference call that preceded its pricing decision.

109. The Court would point out that Dole consistently admitted, in its replies to requests for information, that the telephone calls took place on Wednesday afternoons and, albeit very rarely in Dole’s submission, on Thursday mornings (recital 73 to the contested decision), and that the corporate statements are supported by the available phone records of Mr B., which show the telephone calls made by Mr B. to Mr H., records in relation to which the applicants submitted no observations.

110. Second, as regards the origin of the phone calls, the app licants draw attention to an initial statement by Chiquita according to which ‘[s]ometimes Mr H. of Dole called Mr B. first, sometimes Chiquita called Dole first’, then a second statement according to which ‘most of the time, Mr H. called Mr B.’; that second statement was moreover contested by Mr H.

111. The abovementioned statements by Chiquita do not disclose a genuine contradiction, but a clarification regarding the prevailing origin of the calls, and it cannot be validly claimed on the basis of Dole’s objection on that point that Chiquita’s evidence is entirely unreliable, whereas that evidence is supported by Dole, which stated that its employees, Messrs H. and G., were in communication with Mr B., a Chiquita employee, and that, ‘Mr H. may have very rarely contacted Mr B. on Wednesday afternoon if Dole had not heard from him on Wednesday afternoon, and in particular, if there was some unusual circumstance in market developments’ (recitals 60 and 61 to the contested decision).

112. On the basis of those elements, the Commission was entitled to find, without being challenged in that respect by the applicants, that Chiquita and Dole had indeed been in communication, even if the parties have a different recollection as regards the person at the origin ‘most of the time’ of the contacts and that, moreover, both parties admit that their own employees also contacted the other party on occasions (recital 62 to the contested decision).

113. Third, the applicants observe that Mr B. claimed that Dole would communicate its ‘likely intention ... on how Dole set the prices for the upcoming week’, and then claimed later in the same statement that the purpose of the calls was to get a ‘final indication from Dole as to its intention on the expected price setting’.

114. That same complaint was set out by Dole in its reply to the statement of objections, which prompted the following response by the Commission in recital 169 to the contested decision:

‘As a general remark, the Commission observes that given that these communications were pre-pricing communications, the pricing indications or intentions communicated to competitors could not have been a final quotation price, which was set only the following day. Moreover, Chiquita in its corporate statement indicates that for it the purpose of communications was to get a “final indication” from Dole as to “its intention on the expected price”. This clearly shows that Chiquita did not claim that what was communicated by Dole was a final price. Chiquita furthermore submits that Mr B.’s pricing recommendation was based on “the likely intention of Dole” which he learned during his pre-pricing communications with Dole. The Commission considers that these statements are not inconsistent and it is clear from them what the purpose of these communications was for Chiquita.’

115. The mere mention, in the application, that Mr H. recalled only discussions relating to ‘indicative quotation price trends’ is not capable of contradicting the Commission’s finding referred to above and of substantiating the claims of inconsistency and ensuing unreliability of Chiquita’s evidence.

116. Fourth, the discrepancy between Chiquita and Dole in terms of the determination of the exact frequency of the exchanges does not necessarily mean, as the applicants imply, that Chiquita’s evidence is unreliable.

117. The issue of the frequency of the bilateral communications between Dole and Chiquita is examined in recitals 76 to 86 to the contested decision and the Commission took account of the replies of Dole, which admitted that those bilateral communications took place approximately 20 times per year (recital 83 to the contested decision).

118. It follows from all the foregoing considerations that the applicants’ arguments by which they seek to discredit in a general manner Chiquita’s evidence because that evidence allegedly lacks credibility must be rejected.

b) The incompatibility of Dole’s and Chiquita’s operating methods with the collusion alleged

119. The applicants claim that the Commission’s theory that the purpose of the bilateral communications between the parties was to coordinate their quotation prices is inconsistent with the fact that Chiquita and Dole were each setting quotation prices for different products, different customers and different weeks in the banana market three-week cycle. In the applicants’ submission, it was not even theoretically possible to coordinate quotation prices on the basis of the information exchanged, since the products sold by Chiquita and those sold by Dole were two entirely different products which did not compete on the same market.

120. The quotation price set by Chiquita related to ripened bananas to be delivered to retailers, while the quotation price set by Dole related to unripened bananas to be delivered to ripener-distributors. The applicants maintain that Chiquita set its yellow quotation price for bananas that had arrived in Northern European ports the previous week and were delivered to retailers the following week, whereas Dole set its green quotation price for bananas arriving in Northern Europe the following week and were delivered to retailers only after two weeks.

121. That situation was not unique to Germany, where the only price that Chiquita made available externally to its customers was a yellow quotation price, since its subsidiary Atlanta acted as ripener/distributor. Chiquita informed the Commission that the pricing decisions taken on Thursdays for the Nordic countries also related to bananas that were already being ripened.

122. Lastly, the applicants allege that the Commission failed to explain clearly and unequivocally its position, thereby infringing Article 253 EC, and, in particular, by failing ‘to adequately explain how the exchange of information of factors allegedly relevant to the establishment of quotation prices for green bananas could be of any relevance for the prices of yellow bananas’.

The alleged infringement of Article 253 EC

123. It is apparent from the wording of the complaint set out in the preceding paragraph, and more specifically from the use of the adverb ‘adequately’, and from the content of the arguments set out by the applicants, that that complaint does not relate, strictly speaking, to an infringement of essential procedural requirements for the purposes of Article 230 EC. The complaint in issue overlaps, in reality, with the criticism of the merits of the contested decision and therefore of the substantive legality of that act, which is alleged to be illegal in view of the Commission’s failure to demonstrate the existence or even the very possibility of the existence of unlawful coordination between Dole and Chiquita.

124. Moreover, even on the assumption that an infringement of Article 253 EC has been pleaded, it would be unfounded.

125. The Court observes that, according to settled case-law, the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63 and the case-law cited).

126. In addition, while, in stating the reasons for the decisions which it takes to enforce the rules on competition, the Commission is not required to discuss all the issues of fact and law and the considerations which have led it to adopt its decision, it is none the less required under Article 253 EC to set out at least the facts and considerations having decisive importance in the scheme of the decision, thereby enabling the Union judicature and the persons concerned to know the circumstances in which it has applied the Treaty (see, to that effect, Joined Cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services and Others v Commission [1998] ECR II-3141, paragraph 95 and the case-law cited).

127. In the present case, 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.

128. Moreover, the Court would point out that the applicants’ arguments by which they seek to establish, in essence, that Dole’s and Chiquita’s activities were compartmentalised and desynchronised, thus making collusion on quotation prices by means of the bilateral communications impossible were not raised during the administrative procedure.

129. It is common ground that the statement of objections stated expressly that the relevant product consisted of banana (fresh fruit) and alleged three collusive practices, 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).

130. In paragraph 429 of the statement of objections, the Commission found unequivocally 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 European Economic Area (EEA) within the meaning of Article 81 EC and Article 53 of the EEA Agreement.

131. In its reply to the statement of objections, Dole contested the existence of any infringement, but did not in any way, to that end, claim that there was a substantial difference in the manner in which its bananas were marketed by reference to Chiquita’s. Although it is indicated that, unlike for Dole and the remainder of the sector, quotation prices had some very limited and discrete uses for Chiquita because of its own particular business practices, that observation relates solely to ‘Dole plus’ agreements where the transaction price of Chiquita-branded bananas depended in actual fact on the weekly quotation price set by Dole.

132. Attention is even drawn, in Dole’s reply to the statement of objections, to the constant rivalry that existed between the banana importers and, ‘in particular, between Dole and Chiquita’, the latter being described as Dole’s ‘biggest rival’.

133. It is appropriate at this stage to recall that explanations or clarifications capable of casting light on the wording of the contested act may be provided in the course of the proceedings (see, to that effect, Joined Cases 36/59, 37/59, 38/59 and 40/59 Präsident and Others v High Authority [1960] ECR 423, at p. 440; Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 11, and the Opinion of Advocate General Léger in that case, ECR I-867, point 24). The Court of Justice has held that where the author of a contested decision provides explanations to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the Courts of the European Union of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision (see, to that effect, Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraph 61).

134. In the present case, the clarifications made in the course of the proceedings by the Commission, in reply to the specific complaint raised by the applicants for the first time during the procedure before the Court, merely elucidated the statement of reasons already contained in the contested decision, that statement of reasons encompassing the various ways in which bananas imported into Northern Europe were distributed, inter alia by Dole and Chiquita.

135. It follows that no infringement of Article 253 EC can in any event be alleged against the Commission.

Substance

136. The Court takes the view that the complaint put forward by the applicants cannot be upheld, since it is based on an unsubstantiated and incorrect premiss, according to which green and yellow bananas are entirely different products which fall within two separate markets on which Dole, on the one hand, and Chiquita, on the other, operated exclusively.

137. The applicants’ proposition does not correspond to the reality of the relevant market as it ensues from the Commission’s findings in the contested decision, statements made by Dole and Chiquita during the administrative procedure and the applicants’ own pleadings.

138. As is apparent from the grounds set out below, those findings and statements, which are supported by documentary evidence, reveal the existence of a banana market (fresh fruit) characterised by a coexistence and concomitance of Dole’s and Chiquita’s activities of sales of green and yellow bananas, communication between those two undertakings, in a spirit of perfect mutual understanding, on the price of green bananas for Northern Europe and the fact that the price of yellow bananas was set on the basis of the price of green bananas.

139. In the first place, the Court would point out that, in the contested decision, the Commission clearly defines the relevant sector and, in particular, the relevant product as fresh bananas, as well as the functioning of the relevant market.

140. The Commission specifies that both unripened (green) bananas and ripened (yellow) bananas are covered by the contested decision and that sales of fresh bananas are defined as sales of bananas minus dried bananas and plantains (recital 4 to the contested decision).

141. It is apparent from the contested decision that bananas imported into Northern Europe were grown mostly in the Caribbean region, Central America and some African countries (recital 5 to the contested decision). During the relevant period the banana business in Northern Europe was organised in weekly cycles. Banana shipping from Latin American ports to Europe took approximately two weeks. Banana shipments to Northern European ports generally arrived on a weekly basis and were made according to regular shipping schedules (recital 33 to the contested decision). Bananas were shipped green and were green on arrival at the ports. Before they could be consumed they needed to be ripened (recital 34 to the contested decision).

142. The Commission states that bananas were either delivered directly to buyers (green bananas) or ripened and then delivered approximately one week later (yellow bananas), which reflected the fact that ripening could either be organised by the buyer, or carried out by the importer or on his behalf (recital 34 to the contested decision).

143. According to the Commission, Chiquita, Dole and Weichert set their quotation prices for their branded bananas each week, in practice on Thursday mornings, and communicated them to their customers (recitals 34 and 104 to the contested decision). The expression ‘quotation prices’ usually referred to quotation prices for green bananas (‘green quote’). Quotation prices for yellow bananas (‘yellow quote’) were normally the green quote plus a ripening fee (recital 104 to the contested decision), quotation prices for green bananas determining quotation prices for yellow bananas (recital 287 to the contested decision).

144. Quotation prices set by the parties weekly were relevant for Northern Europe. Chiquita stated that ‘[q]uote prices related to “Northern Europe” were set to Germany (including Austria, Sweden, Finland and Denmark) and the Benelux countries’ and that, when it talked about the German ‘green price’ with Dole, ‘that covered the prices relevant for the other Northern European countries’ (recitals 104 and 141 to the contested decision).

145. The documents found at Dole during the inspection show that that undertaking had a quotation price known as the ‘North Europe EU 15’ price and separate prices for Norway, ‘North Europe EU 10’ countries, France, Italy and the United Kingdom. Dole stated, in its reply to the statement of objections, that this price was a German price. Dole also clearly explained that its ‘green sales are generally based on one weekly price’ and that ‘presumably all competitors knew that quotation prices [discussed at pre-pricing communications] referred to the EU-15 [not disclosed information] markets’ (recitals 104, 142 and 143 to the contested decision).

146. The Commission states that on Thursday afternoons and Fridays (or later in the current week or the beginning of the following week), banana importers negotiated prices with customers, when transactions were based on weekly negotiated prices. Importers’ customers were generally ripeners or retail chains. The yellow price was the price for ripened bananas, whereas the green price was the price for unripened bananas (recital 34 to the contested decision).

147. The Commission also explains that there is a certain level of differentiation through brand preference. The banana business distinguished three levels of banana brands, called ‘tiers’: premium Chiquita brand bananas, second-tier bananas (Dole and Del Monte brands) and third-tier bananas (also called ‘thirds’, which included a number of other banana brands). This brand-division is reflected in banana pricing, with Chiquita bananas commanding the highest price, followed by Dole- and Del Monte-branded bananas, the third-tier bananas being at the lower scale (recital 32 to the contested decision).

148. According to the Commission, it is in the context of the functioning of the banana market thus described that the various pre-pricing communications between Dole and Chiquita occurred, during which those two undertakings discussed demand and supply conditions or, in other words, price-setting factors, that is, factors relevant to the setting of quotation prices for the forthcoming week and discussed or disclosed price trends and indications of quotation prices for the forthcoming week before quotation prices were set (recitals 148, 182 and 196 to the contested decision).

149. In the second place, the Court would point out that, in support of the complaint alleging that there was not even any possibility of collusion between Dole and Chiquita on quotation prices and in response to that complaint, the parties each provided clarifications on the manner in which those two undertakings operated.

150. First, as regards Dole, the Commission states that its German subsidiary, DFFE, sold ‘mainly’ green bananas to German retailers who had their own ripening capacity and to European ripeners (recital 12 to the contested decision).

151. It is apparent from the case-file and the applicants’ pleadings that Dole’s business also involved the sale of yellow bananas.

152. Thus, during the administrative procedure, Dole referred to the situation of retailers requesting DFFE to communicate a yellow quote (Annex B 9).

153. The applicants also explained that Dole owned several subsidiaries operating as ripeners-distributors in Northern Europe, namely Kempowski, Saba and VBH. Those undertakings sold Dole-branded yellow bananas, which were purchased green, inter alia, from Dole, in the case of Saba and VBH. Moreover, a small part of Dole’s sales of yellow bananas in 2002 in Belgium and Luxemburg was carried out by its French subsidiary.

154. It is apparent from the data communicated by the applicants that Dole’s subsidiaries sold EUR 98 177 616 of yellow bananas in 2002, whilst the total amount of Dole’s sales of fresh bananas in 2002 amounted to EUR 198 331 150, a figure 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).

155. Saba and VBH sold EUR 64.4 million and EUR 13.9 million of bananas in Northern Europe in 2002, respectively, of which EUR 29.4 million and EUR 8.3 million was accounted for by Dole-branded bananas. The German subsidiary Kempowski, which purchased its bananas from Cobana rather than from Dole, sold EUR 16.8 million of bananas in Northern Europe in 2002, of which approximately EUR 2.9 million were Dole-branded bananas. The total amount of sales of Dole-branded bananas by subsidiaries of Dole acting as ripeners amounted in Northern Europe in 2002 to EUR 40.6 million, that is slightly less than half the value of DFFE’s sales of green bananas, which was estimated at EUR 99 451 555 during the administrative procedure and subsequently at EUR 98 997 663 in these proceedings.

156. Moreover, it should be noted that one of the complaints made by the applicants in relation to the Commission’s determination of the sales values for the purpose of calculating the amount of the fine is a specific complaint about the extent of the sales volume of yellow bananas by Dole.

157. It is apparent from the findings referred to above that, according to the applicants’ own reasoning in relation to Chiquita’s control of Atlanta, Dole conducted a business of selling yellow bananas to retailers that did not have their own ripening capabilities and had a genuine interest as regards that business. Although the documents produced by the applicants at the hearing show that there was some form of concrete affiliation of Atlanta to Chiquita before 2003, the year during which Chiquita increased its initial shareholding by only 5% in order to take official control of Atlanta, there can be no doubt whatsoever that Kempowski, Saba, VBH and Dole France were subsidiaries throughout the infringement period, since this was fully acknowledged by the applicants.

158. Second, with respect to Chiquita, it is apparent from the case-file that, according to the applicants’ own definition used in paragraph 31 of the application, the term ‘quotation prices’ can ‘mean either green or yellow quotation prices’.

159. In the course of the proceedings, the Commission produced internal reports on Chiquita’s prices entitled ‘European price updates’.

160. Those reports include, for each week of a calendar year, tables mentioning, on the one hand, arrival volumes of Chiquita bananas, aggregated banana arrival volumes of its competitors and of banana undertakings and, on the other hand, Chiquita’s prices and those of its competitors. Those tables also make comparison possible with data pertaining to the previous week and to the same week of the previous year.

161. With respect to Chiquita’s prices, the reports systematically contain the entry ‘Germany (Euro) Yellow’ followed by a price then, on the same line, another price EUR 2 lower, corresponding to the ‘Euro Quote’, followed by an entry referring to the German mark mentioning a differential of 4 German marks (DEM) between the two prices.

162. Internal emails are often annexed to those reports and those emails set out the essential information and, in particular, for a given week, Chiquita’s ‘green price’ and ‘yellow price’ referred to above, the yellow price being systematically EUR 2 higher than the green price.

163. Those documents throw light upon Chiquita’s statement according to which ‘[r]oughly speaking, the green quote is the yellow quote minus Euro 2’ and, thereby, the convertible nature of those prices.

164. In corporate statement No 1, Chiquita states as follows:

‘Every Thursday morning, Chiquita internally determined the Chiquita quoted green price for the following week. In hardly any case, the list price is the actual price charged to Chiquita’s customers. The quote prices are wholesale reference prices before discount and rebates. Upon that internal decision, Chiquita’s Country Managers informed their customers about the quote for the next week.’

165. It should be noted that, during the administrative procedure, Chiquita stated that, ‘[w]ithin Europe, the fruit is distributed either to wholesalers/ripeners like Atlanta (Germany) or directly to retailers (doing their own ripening)’. As regards specifically its business in Germany, Chiquita stated that it sold bananas to Atlanta, to wholesalers and directly to retailers, whilst specifying that in recent years it had continuously started selling bananas directly to retailers.

166. It is therefore apparent that green sales were not made only to Atlanta, a ripener-distributor with which Chiquita had close links, and that Dole and Chiquita shared a common customer base.

167. An internal email from Mr B. to Mr P. (both managers of Chiquita) on 30 April 2001, which is referred to in recital 107 to the contested decision, corroborates the existence of sales of green bananas by Chiquita. That email is worded as follows:

‘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).’

168. The express wording of that email shows that, contrary to the applicants’ assertions, Chiquita’s green price was not merely a theoretical concept aimed at facilitating, internally, comparison with competitor’s quotes.

169. Dole’s own statements confirm the fact that Chiquita had a green quote for its bananas.

170. Thus, it is stated in the application that Saba, Dole’s Swedish subsidiary that operated as a ripener-distributor, sourced green bananas from various importers, including Chiquita.

171. In its reply to the statement of objections, Dole criticised the Commission’s definition of its market share resulting from the Commission’s taking account of the sale of yellow bananas whereas the investigation related to imports of green bananas. Dole added that the double-counting issue was not limited to its case and stated that ‘Chiquita has both green sales to retail and wholesale customers, as well as yellow sales that are distributed by its ripening networks in the Benelux, Germany and Austria’.

172. That statement, in which Chiquita’s business of sales of green bananas is placed on the same footing as that of its sales of yellow bananas, also shows that it is not possible to argue that the distribution of Chiquita’s yellow bananas was carried out solely by Atlanta.

173. The Court notes, in that regard, that Chiquita was the largest supplier of bananas in Europe (recital 8 to the contested decision) and that, in 2001, the total amount of its sales of fresh bananas amounted to EUR 347 631 700 (recitals 451 to 453 to the contested decision).

174. It is apparent from the foregoing considerations that an analysis of the market which seeks to portray Dole and Chiquita as merely carrying out a single marketing activity, of green bananas in Dole’s case, and of yellow bananas in Chiquita’s case, with an exclusive relationship between Chiquita and Atlanta, is unfounded.

175. Both Dole and Chiquita sold, first, green bananas to ripeners and retailers who themselves organised the ripening of the fruit and, second, yellow bananas through subsidiaries and a linked company or, in the case of Chiquita, by organising ripening and by using external ripeners to that end.

176. An excerpt from the economic study of 10 April 2007, submitted by Dole, confirms the variable nature of the contractual arrangements concluded between the various ‘banana’ market players. It states that, ‘[s]ometimes green bananas are sold by banana companies directly to supermarkets, who then pay a ripener a service fee to transport and ripen the bananas’, that, ‘[i]n other cases the ripeners buy the green bananas from the banana companies and negotiate on their own behalf with retailers’ and that ‘some of the banana companies own their own ripeners; others rely on third parties to ripen their product’. Chiquita also stated that, sometimes, importers ripened the fruit themselves and ‘sold yellow’ and that some retailers had their own ripening centres and ‘bought green’.

177. It is therefore apparent, as the Commission rightly maintains, that whether an importer refers to a yellow price or to a green price depends simply on the way in which it organises its sales of bananas: if it sells them to ripeners green, or to retailers which organise the ripening of the fruit themselves, it will communicate a green quotation price, whilst if it arranges for the ripening itself by using an external ripener or ripens the fruit in the facilities of its subsidiaries or similar companies and then sells the bananas ripe to retailers, it will use a yellow quotation price.

178. Third, it should be noted that all the abovementioned activities took place within a single time ‘pattern’ which was described in the same terms by Dole and Chiquita during the administrative procedure.

179. Dole and Chiquita describe a chronology for selling bananas corresponding to a three-week cycle which can be broken down as follows:

– Thursday morning of the first week: importers set the quotation prices of their bananas and announce them to their customers;

– Thursday afternoon of the first week, to the end of that week, or to Monday of the second week: importers negotiate transaction prices with purchasers;

– Monday of the second week (sometimes end of the second week): vessels arrive in European ports, the bananas are discharged and transported to ripening centres;

– beginning of the third week (sometimes end of the second week): ripened bananas are placed on the market for consumption.

180. That timetable is consistent with the Commission’s finding in recital 34 to the contested decision, according to which bananas were either delivered directly to buyers (green bananas) or ripened and then delivered approximately one week later (yellow bananas), a formulation which summarises the distribution process and highlights the fact that the ripening period for all bananas could not readily be reduced.

181. Setting out in paragraph 34 of the application the abovementioned time ‘pattern’, the applicants stated that the ‘banana market’ traditionally followed a very tight pre-set weekly timetable in terms of how and when pricing negotiations between ‘importers and their respective customers’ took place. In addition to making that statement of a general nature concerning the functioning of a single market that included all the importers, the applicants specified the objective and overriding reason which dictated such a timetable, namely the fact that bananas are highly perishable products, which means that it is necessary to set rapidly the transaction price for the purposes of efficient clearance of banana arrivals each week.

182. It should be noted that it is in the context of that three-week cycle thus described that Dole- and Chiquita-branded bananas were marketed by subsidiaries or a linked company, operating as ripener-distributors, by means of a yellow quotation price announced to retailers on the Thursday morning of the second week.

183. As is apparent from a statement by Chiquita set out in Annex C 5 to the reply, relating to transactions effected in certain Nordic countries, and from the content of an email sent, on 2 January 2003, by an Atlanta employee to a Chiquita employee, that yellow quotation price was set while the bananas were in the process of being ripened, therefore during the second week, and those bananas were delivered yellow to retailers as of the following week, that is at the beginning of the third week.

184. According to Dole’s own statement, the time ‘pattern’ according to which Saba and VBH distributed yellow bananas corresponded to that of Atlanta; a yellow price was communicated to customers on the Thursday of the second week for fruit that was being ripened and which had been purchased green the previous week, and the yellow bananas were delivered to retailers at the beginning of the following week.

185. In the third place, it must be observed that a market configuration marked by a coexistence and concomitance of the activities of selling green and yellow bananas carried out by Dole and by Chiquita is consistent with the Commission’s finding that there was unlawful collusion between those two undertakings.

186. It is necessary, in that regard, to assess the statements of Dole and Chiquita and the documentary evidence relating to the activities of those undertakings in the light of two elements.

187. First, it is apparent from the file that Dole and Chiquita discussed, during their various pre-pricing communications, demand and supply conditions or, in other words, price-setting factors, that is, factors relevant for the setting of quotation prices for the forthcoming week and discussed or disclosed price trends and indications of quotation prices for the forthcoming week before quotation prices were set (recitals 148, 182 and 196 to the contested decision).

188. In its oral statement 28, in which it described its communications with Dole, Chiquita stated that ‘Chiquita and Dole referred to European quotes, i.e. the German “official price”, green’. It should be recalled that the internal reports on Chiquita’s prices systematically contain the entry ‘Germany (Euro) Yellow’ followed by a price then, on the same line, another price EUR 2 lower, corresponding to the ‘Euro Quote’, that is to say Chiquita’s green price.

189. Chiquita added that, when it talked with Dole about the German ‘green price’, ‘that covered the prices relevant for the other Northern European countries’.

190. The Commission states that the documents found at Dole during the inspection show that that undertaking had a ‘North Europe EU 15’ price, described by that undertaking as a German price, which does not contradict Chiquita’s explanation (recital 143 to the contested decision). Dole states, in reply to a request for information, that ‘presumably all competitors knew that quotation prices [discussed at pre-pricing communications] referred to the EU-15 [not disclosed information] markets’ (recital 143 to the contested decision).

191. When asked what prices Dole and Chiquita discussed or disclosed in their ‘pre-pricing communications’, in response to a request for information, Dole answered that ‘[t]he quotation price referred to the EU-15 Northern markets’.

192. It should be borne in mind that Dole stated, at page 130 of its reply to the statement of objections, that ‘Mr. [H.] has explained that he and Mr. [B.] might sometimes say that they expected prices to go up by 1 Euro or 50 cents, but no agreement on a price increase ever existed’ and that ‘[a]t most, the men simply were exchanging their personal views as to how the quotation prices of Chiquita and Dole may evolve’ (recital 158 and recital 170 to the contested decision, footnote 217).

193. As regards the discussions on indicative quotation prices or pri ce trends, Dole itself submits that that ‘occurred during about half of the Wednesday afternoon discussions with Chiquita’ (recital 153 to the contested decision).

194. The statements by Dole and Chiquita and the Commission’s findings reveal the situation of two undertakings communicating, in a spirit of perfect mutual understanding, on the price of green bananas for Northern Europe.

195. It must be stated that the applicants do not contest that bilateral discussions took place and the Commission’s findings, but seek to reduce the significance of the communications in issue to mere gossip on general market conditions, that gossip itself forming part of a permanent exchange of information, generally known as ‘Radio Banana’, between operators on that market.

196. The content of the bilateral communications, as reported by Dole itself, is not, however, consistent with that view of the applicants, and nor is it consistent with a banana market characterised by the compartmentalisation and desynchronisation of Dole’s and Chiquita’s activities.

197. Second, it is apparent from the case-file that the quotation price of green bananas is decisive for that of yellow bananas.

198. As is apparent from paragraphs 157 to 161 above, examination of the internal reports on Chiquita’s prices reveals a yellow price corresponding to the green quote plus a EUR 2 ripening fee.

199. Dole clearly admitted and explained the link between the price of green bananas and yellow bananas.

200. First of all, Dole stated, during the administrative procedure (Annex B 9), that the green purchase price provided the basis for determining the price of yellow bananas sold by Saba, Kempowski and its French subsidiary. When describing the business of its French subsidiary, Dole also explained that green purchase prices served to prepare yellow quotation prices that were subsequently sent to customers by email, fax, or notified to them by telephone.

201. Dole explained that its Belgian subsidiary VBH sent its weekly price to certain customers (Metro, Delhaize, Carrefour) for bananas delivered yellow, and that that price was based on the green quotation price sent by DFFE, plus the add-ons specified in VBH’s contract with its customer. D ole stated that ‘[t]his yellow price includes ripening, delivery [and] distribution, bagging, and other product specifications that each customer may request’ and that ‘the price varies with the weekly green price and add-ons’. Dole also stated that ‘... the retailer contracts ... provide for a price formula (i.e., yellow price = (green price communicated by DFFE (+) add-ons due to product specifications and logistics costs (-) rebates))’.

202. Having submitted, in the application, that Dole’s subsidiaries set yellow banana prices ‘without reference to any green quote’, the applicants claimed, in the reply (footnote 5), that, while it is true that VBH set its pricing for three customers in the manner set out in the previous paragraph, this was only ‘after’ the alleged infringement ended. In particular, VBH applied such pricing to Delhaize and Carrefour during the period 2004 and 2005, and Metro during the period 2004 to 2006. They claimed that these contracts were referred to in Dole’s response to the Commission’s request for information dated 10 February 2006 which covered the period ‘from 2000 to date’. When the Commission decided to limit its finding of an infringement to the period 2000-2002 in the contested decision, it failed to check whether the information provided concerned that period.

203. It must be stated that examination of the annexes to the defence has not brought to light anything to justify the applicants’ claims as to the application ratione temporis of the method of setting the prices in question. Moreover, the applicants do not adduce any specific and objective evidence capable of proving the veracity of their claims, and do not even provide any information on how VBH determined its prices for the period 2000 to 2002. It was clear that, in the Commission’s request for information of 10 February 2006, the period referred to started on 1 January 2000. Since Dole’s reply does not provide any information of a restrictive nature regarding the date of implementation of the method of setting the prices in question in the contracts between VBH and its customers Metro, Delhaize and Carrefour, it is not possible to argue that that reply could not cover the entirety of the period referred to, including the period from 2000 to 2002.

204. In any event, leaving aside any question of a temporal nature, those statements of Dole made during the administrative procedure support Chiquita’s statements and the information provided by the applicants themselves in the application on the link between prices of green and yellow bananas, which was known to the market before, during and after the infringement period referred to in the contested decision.

205. The applicants explain, in the application (paragraph 41), that DFFE sold green bananas by means of agreements negotiated on a weekly basis or of long-term supply agreements with a fixed price formula called ‘Aldi plus agreements’. With respect to those agreements, the applicants state that, ‘although these agreements concerned the sale of green bananas to ripener/distributors, the prices were based on the purchase price set by Aldi for yellow bananas converted into an equivalent green banana price’ and that ‘this would be done by deducting from the Aldi (yellow) price a standard charge of € 3.07 per box, representing the charges for (green) banana transportation from the port to the ripening centre, ripening fees, pre-packaging fees, and transportation fees incurred from the ripening facility to the Aldi distribution centre’.

206. In this respect, it should be observed that the applicants submit that the decisive factor for the actual price of bananas in Northern Europe was the quote made by Aldi, a very important retailer on the German market, the largest market in Northern Europe, which sourced only non-branded yellow bananas. The applicants assert, in paragraph 47 of the application, that ‘Aldi’s pricing for yellow bananas served as a reference price for all purchasers of bananas, whether green or yellow, in Northern Europe’. They therefore claim that the yellow ‘Aldi price’ served as a reference for the sale of green bananas.

207. Lastly, the Court observes that the applicants referred, in their arguments relating to the necessary distinction between green and yellow bananas put forward in support of the complaint alleging that Dole’s and Chiquita’s operating methods were incompatible with the collusion alleged, to Saba’s, Kempowski’s, VBH’s and Dole France’s autonomy in determining their pricing policy.

208. That argument is irrelevant since the Commission found that the infringement of Article 81 EC was committed by Dole, the ultimate parent company of the Dole group, and since, although that undertaking 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.

209. Moreover, the applicants confined themselves to communicating statements by the directors of Kempowski and Saba alone, claiming that those companies were autonomous whilst acknowledging that they were exclusive subsidiaries of Dole, from 1 January 2005 in the case of Saba.

210. It should be noted that, during the administrative procedure (Annex B 9), Dole stated that all Dole’s sales to Saba were managed by Dole’s commercial team for Northern Europe, that is to say by DFFE, independently of Dole’s directors in Saba. Dole also specified that VBH sourced bananas from DFFE and that, each Thursday, DFFE communicated its green price (or Dole quotation price) to VBH for the following week. In Dole’s submission, VBH did not play any role in setting or modifying the green price, as it did not act as an importer, but only as a ripener-distributor.

211. In any event, the alleged autonomy of Dole’s subsidiaries does not contradict the fact that the price of green bananas served as the basis for the price of yellow bananas.

212. Next, the applicants stated, at the hearing, that Dole’s quotation prices for green bananas, which were set on the Thursday of the first week, reflected the anticipated conditions on the retail market in the third week, given that, after the fruit was ripened during the second week, yellow bananas were delivered to retailers at the beginning of the third week.

213. Finally, that latter observation must be examined in conjunction with the content of the pre-pricing communications between Dole and Chiquita, as reported by those undertakings.

214. Chiquita stated inter alia that it evaluated with Dole ‘sales and other price factors relevant for the price determination of the upcoming week’, Chiquita and Dole informing ‘each other about the conditions of their respective sales at the retail level i.e. yellow sales’ (recital 149 to the contested decision).

215. Dole confirmed that its communications with Chiquita concerned ‘market conditions’ and that market condition assessments included, inter alia, ‘ripeners’ yellow stocks’ (recital 152 to the contested decision).

216. The Court observes that, with respect to the communications with Weichert, which, it is not claimed, was engaged exclusively in sales of yellow bananas, Dole stated that, on Wednesday afternoons, there was a discussion as to how it and Weichert ‘saw the market in the current week and how they thought the market might develop in the following week’. Dole added that ‘[e]xpected market demand was assessed by discussing the market situation (such as whether there were anticipated left-over import stocks at the ports or whether ripeners’ stocks of yellow bananas were not being ordered by supermarkets due to declining consumer demand)’ (recital 183 to the contested decision and Dole’s reply to the request for information of 30 March 2006).

217. The foregoing considerations demonstrate the relevance of the finding that there was concerted action between Dole and Chiquita in order to set, during the first week, the price of green bananas, which was announced to ripener-distributors and retailers who themselves organised ripening of the fruit and which constituted the basis for the price of yellow bananas, which was announced to retailers in the first or second week according to the manner of distribution of the fruit, which was delivered at the beginning of the third week.

218. In the fourth place, it is in the context of the functioning of the banana market, as set out above, that it is necessary to place and assess the two main documents on which the applicants rely in support of the claim that Chiquita and Dole were each setting quotation prices for different products, different customers and different weeks in the banana market three-week cycle.

219. The applicants relied, first of all, on a statement by Chiquita annexed to the reply, relating to its pricing policy in certain Nordic countries, which states that, ‘as a general rule, pricing decisions are taken in Week A for Week B, i.e. the fruit contracted on Thursday will be delivered in the following week’ and that ‘the fruit is already ripening when negotiations with customers are taking place’.

220. The applicants then refer to the co