EN Official Journal of the European Union C 252/18

Appeal brought on 27 May 2013 by Fresh Del Monte Produce, Inc. against the judgment of the General Court (Eighth Chamber) delivered on 14 March 2013 in Case T-587/08: Fresh Del Monte Produce, Inc. v European Commission

(Case C-293/13 P)

2013/C 252/27

Language of the case: English

Parties

Appellant: Fresh Del Monte Produce, Inc. (represented by: B. Meyring, Rechtsanwalt, L. Suhr, advocate, O. Van Ermengem, avocat)

Other parties to the proceedings: Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG, European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 14 March 2013 in Case T-587/08;

— annul the decision of the Commission of 15 October 2008 (C(2008) 5955 final) in Case COMP/39.188 — Bananas so far as it pertains to the appellant; and

— order the Commission to pay the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

First, the appellant submits that the Commission and the General Court misapplied Article 81(1) EC (now Article 101 TFEU) and Article 23(2) of Regulation 1/2003 (1) by holding Del Monte liable for the infringement. The parental liability test requires that the subsidiary is unable to make independent decisions as to its market conduct. This means that parental liability can only be imposed in cases where a subsidiary follows the parent’s instructions in all material aspects, The Commission and the General Court held Del Monte liable for Weichert’s conduct although they acknowledged that ‘Weichert did not always follow Del Montes’s instructions’ and that ‘Weichert’s pricing decisions may not have met Del Monte’s expectations’. In addition, neither the Decision nor the Judgment shows that Weichert actually followed any Del Monte instructions. The applicant adds that the General Court’s assessment is limited to a number of factors that allegedly gave Del Monte some degree of influence, but it does not apply the test set out in the case law to assess what made this influence ‘decisive’.

By way of a subsidiary ground of appeal, the appellant submits that the General Court distorted some of the evidence, in particular with regard to its assessment of the partnership agreement of Weichert and statements from other importers.

The appellant further submits that, by rejecting individual elements merely on the basis that such evidence did not establish the absence of decisive influence, the General Court effectively reversed the burden of proof. This amounted to a violation of Article 48 Charter of the Fundamental Rights of the European Union (presumption of innocence), of Article 6(2) of the European Convention of Human Rights and of the in dubio pro reo principle.

The appellant finally submits that by considering Dole, Chiquita and Weichert as participating in a single and continuous infringement, despite that fact that Weichert was not aware of any communications between Chiquita and Dole, the General Court misapplied Article 81(1) EC.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty

OJ L 1, p. 1