JUDGMENT OF THE GENERAL COURT (Second Chamber)

16 June 2015 ( *1 )

‛Competition — Agreements, decisions and concerted practices — European banana market in Italy, Greece and Portugal — Coordination in the fixing of prices — Admissibility of evidence — Rights of defence — Misuse of powers — Evidence of the infringement — Calculation of the fine’

In Case T‑655/11,

FSL Holdings, established in Antwerp (Belgium),

Firma Léon Van Parys, established in Antwerp,

Pacific Fruit Company Italy SpA, established in Rome (Italy),

represented by P. Vlaemminck, C. Verdonck, B. Van Vooren and B. Gielen, lawyers,

applicants,

v

European Commission, represented by M. Kellerbauer and A. Biolan, acting as Agents,

defendant,

APPLICATION, primarily, for annulment of Commission Decision C(2011) 7273 final of 12 October 2011 relating to a proceeding under Article 101 [TFEU] (Case COMP/39482 — Exotic Fruit (Bananas)), and, in the alternative, for a reduction in the fine,

THE GENERAL COURT (Second Chamber),

composed of M.E. Martins Ribeiro (Rapporteur), President, S. Gervasoni and L. Madise, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written procedure and further to the hearing on 4 November 2014,

gives the following

Judgment

Facts giving rise to the dispute

1 By the present action, FSL Holdings (‘FSL’), Firma Léon Van Parys (‘LVP’) and Pacific Fruit Company Italy SpA (‘PFCI’) (jointly referred to as ‘the applicants’ or ‘Pacific’) seek the annulment of Commission Decision C(2011) 7273 final of 12 October 2011 relating to a proceeding under Article 101 [TFEU] (Case COMP/39482 — Exotic Fruit (Bananas)) (‘the contested decision’).

2 The applicants are active in the importation, marketing and sales of ‘Bonita’ branded bananas in Europe (recital 14 of the contested decision). LVP, PFCI and the entities belonging to the same group and involved in the banana business in Europe may be referred to as ‘Pacific’, ‘Pacific Fruit’, ‘Bonita’ or ‘Noboa’, depending on the source of information, since the Bonita brand is owned by the Noboa Group (recitals 15 and 16 of the contested decision).

3 On 8 April 2005, Chiquita Brands International Inc. (‘Chiquita’) applied for immunity pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) in relation to the business of distribution and marketing of imported bananas as well as pineapples and other fresh fruit in Europe. That application was registered as Case COMP/39188 — Bananas (recital 79 of the contested decision).

4 On 3 May 2005, the Commission of the European Communities granted Chiquita conditional immunity from fines under point 8(a) of the 2002 Leniency Notice in respect of an alleged secret cartel affecting the sale of bananas and pineapples in the European Economic Area (EEA) (recitals 79 and 345 of the contested decision).

5 On 15 October 2008, the Commission adopted Decision C(2008) 5955 final relating to a proceeding under Article [101 TFEU] (Case COMP/39188 — Bananas) (summary published in OJ 2009 C 189, p. 12; ‘the decision in Case COMP/39188 — Bananas’), finding that Chiquita, the Dole group and Internationale Fruchtimport Gesellschaft Weichert & Co. KG (‘Weichert’), at the time under the decisive influence of the Del Monte group, had infringed Article 81 EC by engaging in a concerted practice by which they coordinated quotation prices for bananas that they set weekly for Austria, Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands and Sweden between 2000 and 2002 (recital 80 of the contested decision).

6 In the context of the investigation in Case COMP/39188 — Bananas, the Commission carried out inspections at the premises of several importers of bananas, including at LVP’s premises in Antwerp (Belgium) and, on 20 July 2007, addressed a statement of objections to a number of banana importers, including FSL and LVP, though FSL and LVP were not ultimately addressees of the decision in Case COMP/39188 — Bananas.

7 On 26 July 2007, the Commission received copies of documents from the Italian tax authority, which had been obtained during an inspection carried out at the home and office of an employee of Pacific in the course of a national investigation (recital 81 of the contested decision).

8 On 26 November 2007, Chiquita was informed orally by the Commission’s Directorate-General for Competition (‘DG Competition’) that Commission officials would, on 28 November 2007, be carrying out an inspection at the premises of Chiquita Italia SpA. On that occasion, Chiquita was informed that an investigation relating to southern Europe would be conducted under case number COMP/39482 — Exotic Fruit (Bananas) and it was reminded that it had received conditional immunity from fines for the whole European Community and that it had a duty to cooperate (recital 82 of the contested decision).

9 From 28 to 30 November 2007, the Commission carried out inspections at the offices of banana importers in Italy and Spain 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 [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) (recital 83 of the contested decision).

10 In the course of the investigation, the Commission sent several requests for information to the parties and to customers as well as to other market participants, including ports and port authorities, the parties were asked to re-submit certain items of information and evidence which were contained in the investigation file of Case COMP/39188 — Bananas, and Chiquita was requested to identify the parts of its oral statements in that case which it deemed to be related to this investigation (recital 84 of the contested decision). On 9 February 2009, DG Competition issued a state-of-play letter to Chiquita in connection with its cooperation under the 2002 Leniency Notice (recital 85 of the contested decision).

11 On 10 December 2009 the Commission adopted a statement of objections in Case COMP/39482 — Exotic Fruit (Bananas) addressed to Chiquita, Fruit Shippers Ltd and the applicants. After having obtained access to the file, all addressees of the contested decision made known to the Commission their views and took part in the hearing held on 18 June 2010 (recitals 87 and 88 of the contested decision).

12 On 12 October 2011 the Commission adopted the contested decision.

Contested decision

13 The Commission states that the contested decision relates to a cartel between Chiquita and Pacific in the importation, marketing and sales of bananas in Greece, Italy and Portugal (‘the southern European region’) during the period from 28 July 2004 to 8 April 2005 (recitals 1, 73, 93 to 95, 306 and 330 of the contested decision).

14 The product which is the subject of the proceedings is bananas (fresh fruit). Both unripened (green) bananas and ripened (yellow) bananas are covered by the contested decision. Bananas are considered to be a 52-week product, traded on a week-to-week basis, the demand for which shows a slight seasonal variation, since there is higher demand in the first half of the year and lower demand in the warm summer months. Bananas can be sold branded or unbranded and can originate from within the European Union, from African, Caribbean and Pacific (ACP) countries or from non-ACP countries. Non-ACP bananas are mostly imported into the European Union from the Caribbean region, Central and South America as well as from certain African countries, and are transported in refrigerated ships to European ports (recitals 2 and 3 of the contested decision).

15 During the period concerned by the contested decision, 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. Banana import quotas were set annually and allocated on a quarterly basis with certain limited flexibility between the quarters of a calendar year (recital 53 of the contested decision).

16 The banana business drew a distinction between three ‘tiers’ of bananas: premium-quality ‘Chiquita’ branded bananas, second-tier Dole and Del Monte branded bananas, and third-tier bananas called ‘thirds’, which included a number of other brands, in particular Pacific’s ‘Bonita’ brand and Chiquita’s ‘Consul’ brand. That brand division was reflected in banana pricing (recital 27 of the contested decision).

17 As regards prices, the banana business drew a distinction between so-called ‘T1’ and ‘T2’ prices. T1 prices are prices for bananas which are ‘duty unpaid’, that is to say not including customs duties and licences, whilst T2 prices are prices for bananas that are ‘duty paid’ (recital 29 of the contested decision).

18 The banana business in Italy, Greece and Portugal operated on two layers: on the ‘green’ level, where green-selling importers sold unripened bananas to ripeners and wholesalers, and on the ‘yellow’ level, where ripeners as well as yellow-selling importers and wholesalers sold ripened bananas to other wholesalers, supermarkets or retailers. During the period in question, Chiquita and Pacific sold almost exclusively green bananas in the southern European region, though without having concluded any long-term contractual arrangements or framework contracts with wholesalers and ripeners (recitals 31, 32 and 39 of the contested decision).

19 The Commission states that the ‘yellow’ banana price consisted of the ‘green’ banana price which had been set one or even two weeks previously, increased by the margin charged for the services of ripening and other cost factors, that margin not being uniform in the southern European region, since there was less correlation between prices for yellow and green bananas in that region than in other parts of the European Union (recital 33 of the contested decision).

20 Where reference is made in the contested decision to the ‘price’ without any further specification, this means the green T2 price (before rebates and discounts) for the first brand of the respective party, that is to say Chiquita or Bonita (recital 42 of the contested decision).

21 The main actors involved in price-setting at Chiquita in southern Europe were Mr C1, who was at the material time [confidential], ( 1 ) and Mr C2, [confidential]. At Pacific, the main actors were Mr P1, [confidential], and Mr P2, [confidential]. In addition, during the period concerned, the [confidential] were Mr P3 [confidential] and Mr P4 [confidential] (recitals 12 and 18 of the contested decision).

22 The Commission explains that, during the period from at least 28 July 2004 until ‘marketing week 15’ of 2005, Chiquita and Pacific coordinated their price strategy in Greece, Italy and Portugal regarding future prices, price levels, price movements and/or price trends, and exchanged information on future market conduct regarding prices (recitals 94 and 187 of the contested decision).

23 According to the Commission, the facts at issue constitute an agreement within the meaning of Article 101(1) TFEU in that the undertakings concerned explicitly agreed on certain conduct on the market, in order knowingly to substitute practical cooperation between them for the risks of competition. The Commission also takes the view that, even if it is eventually not demonstrated that the parties explicitly subscribed to a common plan that constitutes an agreement, the conduct in question or parts of it would nevertheless form a concerted practice within the meaning of Article 101(1) TFEU, and that the communications between the parties influenced their conduct in setting banana prices for southern Europe (recitals 188 to 195 of the contested decision).

24 The Commission considers that the conduct adopted by the parties constitutes a single and continuous infringement of Article 101 TFEU, since the agreements and/or concerted practices found to exist formed, in its view, part of an overall scheme which laid down the lines of their action in the market and restricted their individual commercial conduct with the aim of pursuing an identical anti-competitive object and a single economic aim, namely to restrict or distort the normal movement of prices in the banana business in Italy, Greece and Portugal and to exchange information on that subject (recitals 209 to 213 of 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 101 TFEU 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 101 TFEU. Since the conditions for the application of those exceptions are not fulfilled in the present case, the Commission concludes that the practices at issue could not be exempted under Article 2 of Regulation No 26 (recitals 172 to 174 of 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 2006 Guidelines’) and the provisions of the 2002 Leniency Notice.

27 The Commission determined a basic amount of the fine to be imposed, which corresponds to an amount of up to 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, irrespective of the duration of participation in the infringement (recital 319 of the contested decision).

28 Those calculations resulted in a basic amount of the fine to be imposed of: — EUR 47 922 000 for Chiquita; — EUR 11 149 000 for Pacific (recital 334 of the contested decision).

29 In the light of the particular circumstances of Case COMP/39188 — Bananas (see paragraph 5 above), the basic amount of the fine was reduced by 60% in that case, in order to take account of the specific regulatory regime for the banana business and of the fact that the coordination related to quotation prices. Since that set of factors did not exist in the present case, the Commission decided that a reduction of 20% only should be applied to the basic amount for all the undertakings concerned. Thus, the Commission indicated that, in spite of the largely identical nature of the regulatory regimes which applied at the time of the infringement in Case COMP/39188 — Bananas and in the present case, the price fixing in the present case did not concern quotation prices, which did not exist in the southern European region and that there was even evidence that the collusion in the present case had also included the coordination of prices which were at the levels of actual prices (recitals 336 to 340 of the contested decision).

30 Following that adjustment, the basic amounts of the fines to be imposed were determined as follows: — EUR 38 337 600 for Chiquita; — EUR 8 919 200 for Pacific (recital 341 of the contested decision).

31 Chiquita was granted immunity from fines under the 2002 Leniency Notice (recitals 345 to 352 of the contested decision). Since no other adjustment was made for Pacific, the rounded final amount of the fine imposed on it came to EUR 8 919 000.

32 The operative part of the contested decision reads as follows: ‘Article 1 The following undertakings infringed Article 101 of the Treaty from 28 July 2004 until 8 April 2005 by participating in a single and continuous agreement and/or concerted practice regarding the supply of bananas in Italy, Greece and Portugal, which consisted of price fixing: (a) Chiquita Brands International, Inc., Chiquita Banana Company BV, Chiquita Italia SpA, (b) FSL Holdings NV, Firma Leon Van Parys NV, Pacific Fruit Company Italy SpA. Article 2 For the infringements referred to in Article 1, the following fines are imposed: (a) Chiquita Brands International, Inc., Chiquita Banana Company BV, Chiquita Italia SpA, jointly and severally: EUR 0 (b) FSL Holdings NV, Firma Leon Van Parys NV, Pacific Fruit Company Italy SpA, jointly and severally: EUR 8 919 000 …’

Procedure and forms of order sought by the parties

33 By application lodged at the Court Registry on 22 December 2011, the applicants brought the present action.

34 Upon hearing the Report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure and, in respect of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, put a written question to the Commission and asked the parties to produce documents. The parties complied with those requests within the prescribed period. The Commission, however, refused to produce certain documents which it stated were confidential.

35 By order of 24 October 2014, the Court ordered the Commission, pursuant to Article 65(b), Article 66(1) and the second subparagraph of Article 67(3) of the Rules of Procedure, to produce the documents which it had stated were confidential. The Commission complied within the prescribed period. Since the Court considered that those documents were not necessary for the purposes of deciding the case, they were removed from the file, without being communicated to the applicants.

36 At the hearing on 4 November 2014, the parties presented oral argument and replied to oral questions put by the Court.

37 The applicants claim that the Court should: — primarily, annul the contested decision in so far as it finds that they infringed Article 101 TFEU (annulment of Articles 1 and 2 of the decision in so far as they relate to the applicants); — in the alternative, annul Article 2 of the contested decision in so far as it imposes a fine on the applicants of EUR 8 919 000 and reduce the fine in line with the arguments raised in the application; — order the Commission to pay the costs.

38 The Commission contends that the Court should: — dismiss the application; and — order the applicants to pay the costs.

Law

39 In support of their application, the applicants put forward four pleas in law. The first alleges an infringement of essential procedural requirements and of the rights of the defence. The second alleges a misuse of powers. The third alleges the incorrect nature of the contested decision in that it does not establish to the requisite legal standard that the applicants infringed Article 101(1) TFEU, the incorrect assessment of the evidence and the inability of the evidence to support the finding of an infringement. Lastly, the fourth plea in law alleges an infringement of Article 23(3) of Regulation No 1/2003 and of the 2006 Guidelines by reason of an incorrect assessment of the gravity and duration of the infringement, as well as of the mitigating circumstances, and infringement of the principle of non-discrimination in the calculation of the fine.

40 In an introductory section entitled ‘Description of the industry concerned’, the applicants set out observations relating to the characteristics of the European banana market in general and of that of southern Europe in particular. At the hearing, the applicants stated that the parts of their written pleadings devoted to those observations were intended to inform the Court of the context of the case and did not contain any specific plea challenging the contested decision, formal note of which was taken in the minutes of the hearing.

I – The principal head of claim, seeking the annulment of the contested decision

A – The plea in law alleging infringement of essential procedural requirements and of the rights of the defence

41 In their first plea in law, the applicants invoke an infringement of essential procedural requirements and of the rights of the defence as a result of the Commission’s use of documents obtained solely for the purpose of a national tax investigation and of documents from other files, and the exercise of undue influence over the company which applied for immunity. However, the factual elements invoked in support of the latter claim are the same as those intended to support the plea in law alleging a misuse of power, which the applicants confirmed at the hearing, with the result that it is appropriate to deal with those elements in the context of that plea in law.

1. Preliminary observations

42 In the first place, it must be noted that, according to settled case-law, the prevailing principle in EU law is that evidence may be freely adduced and the only relevant criterion for assessing evidence produced is its reliability (Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraph 273; Case T-50/00 Dalmine v Commission [2004] ECR II-2395, paragraph 72; and judgment of 12 December 2012 in Case T‑410/09 Almamet v Commission, not published in the ECR, paragraph 38).

43 However, it is also clear from settled case-law that respect for fundamental rights is a condition of the lawfulness of EU acts and that measures incompatible with respect for fundamental rights are not acceptable in the European Union (see Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, paragraph 284 and the case-law cited; Case T-390/08 Bank Melli Iran v Council [2009] ECR II-3967, paragraph 70; and Almamet v Commission, paragraph 42 above, paragraph 39).

44 EU law cannot therefore accept evidence obtained in complete disregard of the procedure laid down for gathering it and designed to protect the fundamental rights of interested persons. The use of that procedure must, therefore, be regarded as an essential procedural requirement within the meaning of Article 263(2) TFEU. According to the case-law, infringement of an essential procedural requirement has consequences, regardless of whether that infringement resulted in harm to the person relying on it (see, to that effect, Case C-286/95 P Commission v ICI [2000] ECR I-2341, paragraphs 42 and 52, and Almamet v Commission, paragraph 42 above, paragraph 39).

45 In that respect, it is relevant to note that it has already been held that the lawfulness of the transmission to the Commission by a national prosecutor or the authorities competent in competition matters of information obtained in application of national criminal law is a question governed by national law. Furthermore, the EU judicature has no jurisdiction to rule on the lawfulness, as a matter of national law, of a measure adopted by a national authority (see Case C-407/04 P Dalmine v Commission [2007] ECR I-829, paragraph 62, and Case T‑50/00 Dalmine v Commission, paragraph 42 above, paragraph 86 and the case-law cited).

46 Accordingly, since the transmission of the documents in question has not been declared unlawful by a national court, those documents cannot be regarded as inadmissible evidence which must be removed from the file (Case C‑407/04 P Dalmine v Commission, paragraph 45 above, paragraph 63).

47 In the second place, it must be recalled that it is settled case-law that the rights of the defence in any proceedings in which penalties, especially fines or penalty payments, may be imposed, such as those provided for in Regulation No 1/2003, are fundamental rights forming an integral part of the general principles of law, whose observance the EU judicature ensures (see Almamet v Commission, paragraph 42 above, paragraph 21 and the case-law cited).

48 In that respect, it should be pointed out that the administrative procedure under Regulation No 1/2003, which takes place before the Commission, is divided into two separate, successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, during which the Commission uses the powers of investigation provided for in that regulation and which covers the period until notification of the statement of objections, is intended to enable the Commission to gather all the relevant information confirming whether or not there is an infringement of the competition rules and to adopt an initial position on the course of the procedure and how it is to proceed. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the infringement concerned (see Case C-534/07 P Prym and Prym Consumer v Commission [2009] ECR I-7415, paragraph 27, and Almamet v Commission, paragraph 42 above, paragraph 24 and the case-law cited).

49 First, as regards the preliminary investigation stage, the starting point of that stage is the date on which the Commission, in exercise of the powers conferred on it by Articles 18 and 20 of Regulation No 1/2003, takes measures which suggest that an infringement has been committed and which have a significant impact on the situation of the undertakings suspected (Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 182; Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, paragraph 38; and Almamet v Commission, paragraph 42 above, paragraph 25).

50 Secondly, it is apparent from the case-law that it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, it is only after the notification of the statement of objections that the undertaking concerned is able to rely in full on its rights of defence (see Almamet v Commission, paragraph 42 above, paragraph 25 and the case-law cited). If those rights were extended to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be compromised, since the undertaking concerned would already be able, at the preliminary investigation stage, to identify the information known to the Commission and hence the information that could still be concealed from it (Case C‑407/04 P Dalmine v Commission, paragraph 45 above, paragraph 60, and Almamet v Commission, paragraph 42 above, paragraph 25).

51 The fact nevertheless remains that the measures of inquiry adopted by the Commission during the preliminary investigation stage — in particular, the requests for information and the inspections under Articles 18 and 20 of Regulation No 1/2003 — suggest, by their very nature, that an infringement has been committed and may have a significant impact on the situation of the undertakings suspected. Consequently, it is necessary to prevent the rights of the defence from being irremediably compromised during that stage of the administrative procedure since the measures of inquiry taken may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable (see Almamet v Commission, paragraph 42 above, paragraph 26 and the case-law cited).

53 The Commission is thus obliged to state, as precisely as possible, what it is looking for and the matters to which the inspection must relate. That requirement is intended to protect the rights of defence of the undertakings concerned, which would be seriously compromised if the Commission could rely on evidence against undertakings which was obtained during an inspection but was not related to the subject-matter or purpose thereof (Case 85/87 Dow Benelux v Commission [1989] ECR 3137, paragraph 18; Roquette Frères, paragraph 52 above, paragraph 48; Minoan Lines v Commission, paragraph 52 above, paragraph 55; and Almamet v Commission, paragraph 42 above, paragraph 29).

54 Although it can therefore be seen from the case-law that the information obtained by the Commission during inspections must not be used for purposes other than those specified in the order or decision under which the inspection is carried out, it cannot however be concluded that the Commission is barred from initiating an investigation in order to verify or supplement information which it happened to obtain during a previous inspection if that information indicates the existence of conduct contrary to the competition rules, since such a bar would go beyond what is necessary to protect professional secrecy and the rights of the defence and would thus constitute an unjustified hindrance to the performance by the Commission of its task of ensuring compliance with the competition rules in the internal market and bringing to light infringements of Articles 101 TFEU and 102 TFEU (Dow Benelux v Commission, paragraph 53 above, paragraphs 17 to 19; Limburgse Vinyl Maatschappij and Others v Commission, paragraph 49 above, paragraphs 298 to 301; and Almamet v Commission, paragraph 42 above, paragraph 30).

55 In a new investigation, the Commission is entitled to request fresh copies of the documents obtained during the first investigation and then to use them as evidence in the case to which the second investigation relates, without the rights of defence of the undertakings concerned being affected as a result (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, paragraph 49 above, paragraphs 303 to 305, and Almamet v Commission, paragraph 42 above, paragraph 30).

56 In the third place, it must be noted that the decision to split proceedings, which amounts to opening one or more new investigations, falls within the Commission’s discretion in exercising the prerogatives conferred upon it by the Treaty in the area of competition law (see, to that effect, Dow Benelux v Commission, paragraph 53 above, paragraphs 17 to 19; Limburgse Vinyl Maatschappij and Others v Commission, paragraph 49 above, paragraphs 446 to 449; and judgment of 19 May 2010 in Case T‑11/05 Wieland-Werke and Others v Commission, not published in the ECR, paragraph 101).

57 Thus the Commission is entitled both to disjoin and to join proceedings for objective reasons (judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer v Commission, not published in the ECR, paragraph 64, and Case T-59/07 Polimeri Europa v Commission [2011] ECR II-4687, paragraph 100).

58 The plea in law put forward by the applicants must be examined in the light of those principles.

2. The claim concerning the use as evidence of documents transmitted by the Italian tax authority

59 The applicants submit that the Commission’s allegations are largely based on documents transmitted by the Italian tax authority Guardia di Finanza (Finance police), namely the handwritten notes of Mr P1, seized by that authority in the course of a national tax investigation.

60 The applicants state that they were not informed of the transfer of those documents, which were kept in the Commission’s file for almost two years before they were communicated to the applicants, with the result that the applicants were unable to rely on the Italian procedural safeguards to prevent the disclosure of those documents to the Commission and their use during the investigation or to exercise their rights of defence.

61 According to the applicants, the minimal procedural safeguards laid down in Article 12(1) of Regulation No 1/2003, which must be applied by analogy in the present case, preclude the use of the documents at issue in the present proceedings. In addition, the authorisation obtained by the Guardia di Finanza from the Procuratore della Repubblica (public prosecutor) of Rome (Italy) to use those documents for administrative purposes cannot, they submit, cover the present proceedings in so far as the fines imposed by the Commission in competition matters are of a criminal law nature for the purpose of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’).

62 Accordingly, the applicants request that the documents at issue be removed from the case-file and not be taken into account as evidence in the present case.

63 The Commission argues that the legality of the transmission, by national authorities, of documents obtained under national criminal law is a matter governed by national law, and a document is considered inadmissible only if its transmission has been declared unlawful by a national court. In the present case, the Procuratore della Repubblica of Rome, on the contrary, authorised the use of the documents in question for administrative purposes. In that respect, the Commission rejects the allegation that procedures under EU competition law are of a criminal law nature.

64 Furthermore, the Commission argues that Article 12(2) of Regulation No 1/2003 concerns only the exchange of information within the European Competition Network (ECN) and does not prohibit the Commission from receiving documents from other sources.

65 The Court finds that a distinction should be drawn between the issue of the admissibility of the documents transmitted by the Italian authorities as evidence in the present case and the issue of safeguarding the applicants’ rights of defence. It can be seen from the applicants’ line of arguments that they first contest the admissibility of those documents as evidence and, secondly, invoke an infringement of their rights of defence.

a) The documents alleged to be inadmissible evidence

66 As a preliminary point, it must be noted that of the documents transmitted by the Guardia di Finanza to the Commission, four pages of Mr P1’s notes were used by the Commission as evidence in the present case, namely two pages of notes concerning the lunch of 28 July 2004 and two pages of notes from August 2004. Besides those four pages, the Commission referred to a few other pages of Mr P1’s notes, transmitted by the Guardia di Finanza, in order to support the credibility of the evidence of the infringement, namely Mr P1’s notes (see paragraph 210 below) and his direct involvement in Pacific’s management (see paragraph 296 below), but without relying on those pages as evidence of the infringement.

67 As regards the four pages of notes used as evidence of the infringement, it can be seen from the file that the two pages of notes concerning the lunch of 28 July 2004 were also found by the Commission during its inspections at Pacific in Rome.

68 Accordingly, it must be held that the two pages of notes concerning the lunch of 28 July 2004 are in the file of the present case irrespective of whether the documents transmitted by the Guardia di Finanza are admissible. At the hearing, the applicants did not contest the lawfulness of the inspections carried out by the Commission in the present case, which was noted in the minutes of the hearing, nor, accordingly, the admissibility as evidence of the documents obtained during those inspections.

69 In any event, it can be seen from the case-law cited in paragraphs 54 and 55 above that, although the information obtained by the Commission during inspections must not be used for purposes other than those specified in the order or decision under which the inspection is carried out, it cannot however be concluded from this that the Commission is barred from initiating an investigation in order to verify or supplement information which it happened to obtain during a previous inspection if that information indicates the existence of conduct contrary to the competition rules, and moreover that, in the context of that new investigation, the Commission is entitled to request fresh copies of the documents obtained during the first investigation and then to use them as evidence in the case to which the second investigation relates, without the rights of defence of the undertakings concerned being affected as a result.

70 It follows from the foregoing that the only documents transmitted by the Guardia di Finanza on which the Commission relied as evidence of the infringement in the present case and whose admissibility is contested are the two pages of notes of August 2004.

b) The admissibility of the documents transmitted by the Italian tax authority as evidence

71 The applicants claim that the safeguards laid down in Article 12(2) of Regulation No 1/2003, which provides that the information exchanged between the Commission and the competition authorities of the Member States can be used as evidence only ‘in respect of the subject-matter for which it was collected by the transmitting authority’, preclude the use of the documents transmitted by the Italian tax authority as evidence in the present case.

72 According to the applicants, while Regulation No 1/2003 is in principle applicable only within the ECN, it introduces a set of minimum standards and procedural safeguards, the scope of which must be extended to all information used as evidence by the Commission in a competition investigation. Any other interpretation would result in an unjustifiable difference, authorising the Commission to cooperate with national authorities not part of the ECN to obtain evidence in a less restricted and regulated manner and allowing it to circumvent the procedural safeguards and limitations laid down in Regulation No 1/2003.

73 The applicants submit that, consequently, the documents at issue in the present case could only be used as evidence in the national tax investigation for the purpose for which they were collected and not in a competition investigation to establish an infringement of Article 101 TFEU. Any other interpretation would imply a fundamental breach of the applicants’ rights of defence and of the specific internal procedural rules applicable to competition investigations.

74 That argument must be rejected. It cannot be claimed that the use, by the Commission, as evidence in a procedure governed by Regulation No 1/2003, of documents obtained by national authorities of any kind for purposes other than the application of Articles 101 TFEU and 102 TFEU and for purposes other than those covered by the investigation carried out by the Commission, constitutes an infringement of the safeguards laid down in Article 12(2) of Regulation No 1/2003.

75 It must be observed in that regard that Regulation No 1/2003 puts an end to the previous centralised regime and, in accordance with the principle of subsidiarity, establishes a wider association of national competition authorities, authorising them to implement EU competition law for this purpose. The scheme of the regulation relies on the close cooperation to be built up between the Commission and the competition authorities of the Member States organised as a network (see, to that effect, France Télécom v Commission, paragraph 52 above, paragraph 79).

76 Article 12 of Regulation No 1/2003, which is contained in Chapter IV entitled, ‘Cooperation’, is therefore intended to regulate the exchange of information within the network formed by the Commission and the competition authorities of the Member States in order to allow the circulation of information within that network, while ensuring that the appropriate procedural safeguards for undertakings are respected.

77 In the explanatory memorandum accompanying the proposal for Regulation No 1/2003, the Commission explained the following: ‘Paragraph 1 [of Article 12] creates a legal basis for the exchange of any information between the Commission and the Member States’ competition authorities and its use as evidence in proceedings applying Community competition law. … [The objective is] to render possible the transfer of a case from one authority to another in the interest of effective case allocation. Paragraph 2 introduces limits on the use of information transmitted under paragraph 1, thereby ensuring that the undertakings concerned benefit from appropriate procedural safeguards.’

78 The prohibition on using information collected by the Commission and the competition authorities of the Member States in the exercise of their investigative powers as evidence, for purposes other than that for which it was obtained, laid down in Article 12(2) of Regulation No 1/2003, meets a specific need, namely the need to ensure that the procedural safeguards inherent to the collection of information by the Commission and by the national competition authorities in the context of their tasks are respected, while allowing an exchange of information between those authorities. However, it cannot be inferred from that prohibition that there is a general prohibition on the use as evidence, by the Commission, of information obtained by another national authority in exercise of its tasks.

79 In addition, it appears that the existence of such a general prohibition would render unsustainable the burden of proving conduct contrary to Articles 101 TFEU and 102 TFEU incumbent upon the Commission, and would therefore be incompatible with the task entrusted to the Commission by the Treaties of monitoring the application of those provisions.

80 It follows from the case-law cited in paragraphs 45 and 46 above that the lawfulness of the transmission to the Commission by a national prosecutor or the authorities competent in competition matters of information obtained in application of national criminal law is a question governed by national law. Furthermore, the EU judicature has no jurisdiction to rule on the lawfulness, as a matter of national law, of a measure adopted by a national authority. Accordingly, if the transmission of the documents at issue was not declared unlawful by a national court, those documents cannot be considered to be inadmissible evidence which must be removed from the file.

81 In that regard, it suffices to note that, in the present case, the applicants have not adduced evidence capable of showing that the transmission of the documents in question was declared unlawful by a national court. Moreover, it cannot be seen from their arguments that the issue of the lawfulness of the transmission and use of the documents in question at the level of EU law has been brought before the competent Italian court (see, to that effect, Case C‑407/04 P Dalmine v Commission, paragraph 45 above, paragraph 63, and Case T‑50/00 Dalmine v Commission, paragraph 42 above, paragraph 87).

82 For the sake of completeness, it should be noted that the applicants’ argument that the authorisation of the Procuratore della Repubblica of Rome was obtained for administrative purposes only must be rejected. According to the applicants, the procedure relating to the cartel cannot constitute ‘administrative purposes’, since the fines imposed by the Commission are of a criminal law nature for the purposes of Article 6 of the ECHR. The authorisation obtained by the Guardia di Finanza from the Procuratore della Repubblica therefore cannot cover the procedure followed by the Commission in the present case.

83 In the first place, it must be noted that the European Court of Human Rights held, in paragraph 44 of its judgment in A. Menarini Diagnostics S.R.L. v. Italy, no. 43509/08, 27 September 2011, invoked by the applicants, that ‘given various aspects of the case, [it] took the view that the fine imposed on the applicant company was of a criminal law nature, with the result that Article 6 § 1 was applicable, in this instance, under the criminal law aspect of that provision’.

84 However, that does not mean that the authorisation of the Procuratore della Repubblica of Rome, by which it authorised the use of the documents at issue for ‘administrative proposes’, must be interpreted as meaning that the Procuratore della Repubblica wished to exclude the use of the documents in a competition law procedure, if competition law is, in Italian law, considered to be part of administrative law. That is indeed the case, as can be seen, inter alia, from the very text of the judgment of the European Court of Human Rights in A. Menarini Diagnostics S.R.L. v. Italy, paragraph 83 above (paragraph 11 et seq. and 60).

85 In that regard, it must be noted that, according to the case-law of the European Court of Human Rights, the obligation to comply with Article 6 of the ECHR does not preclude, in an administrative procedure, a ‘penalty’ being imposed in the first instance by an administrative authority. For this to be possible, however, decisions taken by administrative authorities which do not themselves satisfy the requirements laid down in Article 6(1) of the ECHR must be subject to subsequent review by a judicial body endowed with unlimited jurisdiction (Case C‑295/12 P Telefónica and Telefónica de España v Commission [2014] ECR, paragraph 51).

86 In addition, it is useful to note that it is undisputed that the Guardia di Finanza transmitted the documents in question to the Commission on 25 July 2007, after obtaining authorisation from the Procuratore della Repubblica of Rome to use those documents for administrative purposes (recital 81 of the contested decision), whereas the judgment of the European Court of Human Rights inA. Menarini Diagnostics S.R.L. v. Italy, paragraph 83 above, invoked by the applicants, was delivered on 27 September 2011. Accordingly, the Procuratore’s decision cannot be interpreted in the light of any characterisation of penalties in competition law in that judgment.

87 In the second place, it is clear from the file that it cannot be maintained that the Procuratore della Repubblica, when he gave the authorisations in question in the present case, was unaware that the documents concerned were to be used in a competition law investigation.

88 In that respect, the applicants stated in paragraph 466 of their response to the statement of objections that, by a decision of 13 July 2007, the Procuratore della Repubblica of Rome authorised an internal transfer, within the Guardia di Finanza, of documents seized at Mr P1’s home, from the Nucleo Polizia Tributaria di Roma (Tax police section, Rome), which had seized the documents, to the Nucleo Speciale Tutela Mercati (Special section for the protection of markets). It can be seen from footnote No 2 in the letter accompanying the dispatch of documents from the Guardia di Finanza to the Commission that the Nucleo Speciale Tutela Mercati, hierarchically integrated in the Comando tutela dell’Economia (Command for the protection of the economy), is the department of the Guardia di Finanza specialised in the protection of competition throughout the national territory. The Nucleo Speciale Tutela Mercati is authorised to receive notifications from other departments of the institution and to transmit them, following an assessment, to the competent authority. Accordingly, by authorising the transfer of documents seized by the Nucleo Polizia Tributaria di Roma of the Guardia di Finanza in a tax investigation to the Nucleo Speciale Tutela Mercati of that same authority, the Procuratore della Repubblica could not have been unaware that, in doing so, he was authorising the use of those documents for the purposes of a competition investigation.

89 Furthermore, it can be seen from paragraph 467 of the applicants’ response to the statement of objections, from recital 81 of the contested decision and from paragraph 21 of the defence, that the Procuratore della Repubblica subsequently, following a request sent by the Commission to the Guardia di Finanza on 21 December 2007 and a letter sent to it by the Guardia di Finanza on 3 January 2008, declared that the communication of the documents in question by the Commission to the parties was not prejudicial to the national investigation in Italy. Consequently, it must be held that, by that time at the latest, the Procuratore della Repubblica could no longer have been unaware that the documents were held by the Commission for the purposes of a competition law investigation.

90 It follows from the foregoing that the claim concerning the Commission’s use of documents transmitted by the Italian Guardia di Finanza as evidence in the present case must be rejected.

c) The safeguarding of the applicants’ rights of defence by the Commission

91 As regards whether the Commission should have granted the applicants access to the documents earlier, it has been noted in paragraph 47 above that it is settled case-law that the rights of the defence in any proceedings in which penalties, especially fines or penalty payments, may be imposed, such as those provided for in Regulation No 1/2003, are fundamental rights forming an integral part of the general principles of law, whose observance the EU judicature ensures.

92 Respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement (see Case C‑407/04 P Dalmine v Commission, paragraph 45 above, paragraph 44 and the case-law cited).

93 In that regard, the statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law which requires observance of the rights of the defence in all proceedings. As noted in paragraph 48 above, as regards proceedings under Article 101 TFEU, it is appropriate to draw a distinction between the two phases of the administrative procedure, namely the investigation phase preceding the statement of objections and the phase corresponding to the remainder of the administrative procedure. Each of these successive stages has its own internal logic; the first stage must enable the Commission to adopt a position on the course which the procedure is to follow, and the second must enable the Commission to reach a final decision on the infringement concerned (see Case C‑534/07 P Prym and Prym Consumer v Commission, paragraph 48 above, paragraph 27 and the case-law cited).

94 As regards whether the Commission ought to have informed the applicants earlier, or even before the notification of the statement of objections, of the fact that it was in possession of the documents transmitted by the Italian authorities, it must be borne in mind that it is precisely the notification of the statement of objections, on the one hand, and access to the file enabling the addressee of the statement of objections to peruse the evidence in the Commission’s file, on the other, that ensure the rights of the defence which the applicants invoke in the context of the present plea (see, to that effect, Case C‑407/04 P Dalmine v Commission, paragraph 45 above, paragraph 58).

95 It is by the statement of objections that the undertaking concerned is informed of all the essential elements on which the Commission is relying at that stage of the procedure. Consequently, it is only after the notification of the statement of objections that the undertaking concerned is able to rely in full on its rights of defence (see Case C‑407/04 P Dalmine v Commission, paragraph 45 above, paragraph 59 and the case-law cited).

96 If the abovementioned rights were extended, in the manner proposed by the applicants, to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be undermined, since the undertaking would already be able, at the first stage of the Commission’s investigation, to identify the information known to the Commission and hence the information that could still be concealed from it (see, to that effect, Dalmine v Commission, paragraph 45 above, paragraph 60).

97 It follows that, in the present case, the Commission was not required to inform the applicants of the transmission of documents by the Guardia di Finanza before the notification of the statement of objections.

98 Accordingly, it suffices to note that the Commission expressly indicated in paragraph 86 of the statement of objections that it relied on those documents as evidence. Moreover, it can be seen from a letter sent by the applicants to the Commission on 13 July 2009 that the Commission transmitted the documents it had received from the Guardia di Finanza to the applicants on 6 July 2009, that is to say, before the notification of the statement of objections on 10 December 2009. That was confirmed by the applicants at the hearing and noted in the minutes of the hearing.

99 In addition, it should be noted that the applicants do not claim that the fact that the Commission did not inform them, during the investigation stage, that it was in possession of documents transmitted by the Italian authorities could have had an impact on their subsequent ability to defend themselves during the administrative procedure initiated by the notification of the statement of objections (see, to that effect, Case C‑407/04 P Dalmine v Commission, paragraph 45 above, paragraph 61).

100 It follows from the foregoing that the claim concerning the use as evidence of documents transmitted by the Italian tax authority must be rejected.

3. The claim concerning use of documents from other files

101 The applicants criticise the Commission’s use of a document from the file of Case COMP/39188 — Bananas, obtained during surprise inspections at LVP carried out in the context of that case, namely the internal e-mail sent on 11 April 2005 at 9:57 a.m. from Mr P1 to Mr P2 (‘the e-mail sent on 11 April 2005 at 9:57 a.m.’).

102 The applicants submit that the Commission (i) used that document in relation to Chiquita’s immunity application, and (ii) used it as evidence in the present case. Since the first part concerns the claim alleging the exercise of undue influence over the immunity applicant, it will be examined in that context (see paragraph 162 et seq. below).

103 As regards the use of the document in question as evidence in the present case, it can be seen from the file that the Commission asked the applicants to submit that document in the context of the present case. Thus, the document was produced by the applicants on 14 August 2008 as an annex to a response to a request for information from the Commission and in September 2008 as an annex to another request for information from the Commission.

104 It can be seen from the case-law cited in paragraphs 54 and 55 above that although the information obtained by the Commission during inspections must not be used for purposes other than those specified in the order or decision under which the inspection is carried out, it cannot however be concluded that the Commission is barred from initiating an investigation in order to verify or supplement information which it happened to obtain during a previous inspection if that information indicates the existence of conduct contrary to the competition rules, and that, in a new investigation, the Commission is entitled to request fresh copies of the documents obtained during the first investigation and then to use them as evidence in the case to which the second investigation relates, without the rights of defence of the undertakings concerned being affected as a result.

105 It follows from the foregoing that the claim concerning the use of a document from another file as evidence in the present case must be rejected and, accordingly, the first plea in law in its entirety.

B – The plea in law alleging the exercise of undue influence over the immunity applicant and misuse of power

106 The applicants make a distinction, at least formally, between the claim alleging the exercise of undue influence over the immunity applicant, invoked in support of the first plea in law, alleging infringement of essential procedural requirements and of the rights of the defence (see paragraph 41 above), and the plea in law alleging misuse of power.

107 At the hearing, the applicants explained that the facts intended to support the claim alleging the exercise of undue influence over the immunity applicant, put forward in the context of the first plea in law (see paragraph 41 above), are also intended to support the plea in law alleging misuse of power, which is otherwise entirely unsubstantiated. Accordingly, it is appropriate to consider that the applicants claim, in essence, that the facts at issue demonstrate that the Commission exercised unlawful influence over the immunity applicant, which also constitutes a misuse of power, and to examine all of those facts below in the context of the examination of the second plea in law.

108 As a preliminary, it must be noted that, in their line of argument developed in support of the present plea in law, the applicants rely on a series of arguments which are indistinguishable from those invoked in the context of the third plea in law in order to contest the accuracy or credibility of Chiquita’s statements or of the inferences drawn from those statements by the Commission. In so far as those arguments do not concern the lawfulness of the procedure which led to the adoption of the contested decision, but rather whether the Commission established to the requisite legal standard the existence of an infringement, they must be examined in the context of the third plea in law, alleging that the Commission failed to establish to the requisite legal standard the existence of an infringement of Article 101(1) TFEU and that it therefore did not discharge the burden of proof imposed on it by Article 2 of Regulation No 1/2003 (paragraph 173 et seq. below).

1. Preliminary observations

a) The leniency programme

109 In the context of its activity of pursuing infringements of Article 101 TFEU, the Commission put in place a leniency programme designed to give favourable treatment to undertakings which cooperate with it in investigations into secret cartels that affect the European Union (Case T-12/06 Deltafina v Commission [2011] ECR II-5639, paragraph 103, confirmed on appeal by Case C‑578/11 P Deltafina v Commission [2014] ECR).

110 That leniency programme, initially established by the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the 1996 Leniency Notice’) was subsequently extended, in the 2002 Leniency Notice, which is applicable in the present case, and then in the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’) (see, to that effect, Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 104).

111 Undertakings participating in that programme offer active and voluntary cooperation in the investigation by facilitating the Commission’s task of establishing and suppressing infringements of the competition rules (see, to that effect, Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraph 505, and Joined Cases T-101/05 and T-111/05 BASF and UCB v Commission [2007] ECR II-4949, paragraph 90). In return for that cooperation, they may obtain favourable treatment as regards the fines that would otherwise have been imposed on them, provided that they meet the conditions laid down in the applicable leniency notice (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 108).

112 The leniency programme, as laid down in the 2002 Leniency Notice, envisages that the Commission will be able both to grant total immunity from fines to the first undertaking to cooperate in the investigation and to grant reductions in fines to undertakings that cooperate subsequently. In the former case, the undertaking in question will have the benefit of a complete exception to the principle of personal liability, under which, where an undertaking infringes the competition rules, it must answer for that infringement (see, to that effect, Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P Erste Group Bank and Others v Commission [2009] ECR I-8681, paragraph 77). In the other cases, the degree to which that exception will be applied will vary according to the chronological order in which the various requests to cooperate are submitted and the quality of the cooperation supplied (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 109).

113 It can be seen from the 2002 Leniency Notice that, in the context of the leniency programme provided for by that notice, reproduced in substance in the 2006 Leniency Notice, the procedure for granting an undertaking total immunity from fines has three distinct stages (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 111).

114 In the first stage, the undertaking intending to cooperate with the Commission must approach the Commission and provide evidence of a presumed cartel affecting competition within the EU. That evidence must be such as to enable the Commission either to adopt a decision to carry out an investigation, in the case provided for at point 8(a) of the 2002 Leniency Notice, or to find an infringement of Article [101 TFEU], in the case provided for at point 8(b) of the 2002 Leniency Notice (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 112).

115 In the second stage, once it has received the application for immunity, the Commission assesses the evidence supplied in support of the application in order to ascertain whether the undertaking satisfies the conditions set out at point 8(a) or (b), as appropriate, of the 2002 Leniency Notice. If the undertaking is the first to satisfy those conditions, the Commission will grant it, in writing, conditional immunity from fines, as provided for in points 15 and 16 of the 2002 Leniency Notice (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 113).

116 The grant of conditional immunity therefore means the creation of a special procedural status, during the administrative procedure, for the undertaking that satisfies the conditions set out at point 8 of the 2002 Leniency Notice which produces certain legal effects. However, that conditional immunity cannot in any way be treated as final immunity from fines, which is granted only at the end of the administrative procedure (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 114).

117 More particularly, the grant of conditional immunity, first, shows that the undertaking concerned was the first to meet the conditions set out at point 8(a) or (b) of the 2002 Leniency Notice, with the consequence that the Commission will not consider other applications for immunity from fines before it has taken a position on that undertaking’s application (point 18 of the 2002 Leniency Notice) and, secondly, provides assurance to that undertaking that the Commission will grant it immunity from fines if, at the end of the administrative procedure, it concludes that the undertaking has satisfied the conditions set out at point 11(a) to (c) of the 2002 Leniency Notice (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 115).

118 In that regard, it should be observed that, according to point 11(a) to (c) of the 2002 Leniency Notice: ‘In addition to the conditions set out in points 8(a) and 9 or in points 8(b) and 10, as appropriate, the following cumulative conditions must be met in any case to qualify for any immunity from a fine: (a) the undertaking cooperates fully, on a continuous basis and expeditiously throughout the Commission’s administrative procedure and provides the Commission with all evidence that comes into its possession or is available to it relating to the suspected infringement. In particular, it remains at the Commission’s disposal to answer swiftly any request that may contribute to the establishment of the facts concerned; (b) the undertaking ends its involvement in the suspected infringement no later than the time at which it submits evidence under points 8(a) or 8(b), as appropriate; (c) the undertaking did not take steps to coerce other undertakings to participate in the infringement.’

119 Lastly, it is only in the third stage, at the end of the administrative procedure, when the Commission adopts the final decision, that it does or does not grant, in that decision, immunity from fines in the strict sense to the undertaking that was granted conditional immunity. It is at that precise time that the procedural status resulting from conditional immunity ceases to produce its effects. However, point 19 of the 2002 Leniency Notice states that final immunity from fines is granted only if the undertaking in question has met, throughout the administrative procedure and until the time when the final decision is taken, the three cumulative conditions set out at point 11(a) to (c) of that notice (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 117).

120 It thus follows from the system as provided for in the 2002 Leniency Notice that before the final decision is taken the undertaking seeking immunity does not obtain immunity from fines in the strict sense but benefits only from a procedural status that may be transformed into immunity from fines at the end of the administrative procedure if the requisite conditions are met (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 118, and Case T‑404/08 Fluorsid and Minmet v Commission [2013] ECR, paragraph 134).

b) The scope of the obligation to cooperate

121 It follows from the actual wording of point 11(a) of the 2002 Leniency Notice (see paragraph 118 above), and in particular from the qualification that the undertaking concerned is to cooperate ‘fully, on a continuous basis and expeditiously’, that the obligation to cooperate borne by the undertaking which seeks immunity is a very general obligation whose outlines are not precisely defined, and the exact scope of which can be understood only in the context of which it forms part, namely in the framework of the leniency programme (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 124).

122 The grant of total immunity from fines constitutes an exception to the principle of the personal liability of the undertaking for the infringement of the competition rules which is justified by the aim of favouring the discovery, investigation and suppression and also the deterrence of the practices which form part of the most serious restrictions of competition. In those circumstances, it is therefore logical that, in exchange for the grant of total immunity from fines for its unlawful behaviour, the undertaking requesting immunity should be required to cooperate in the Commission’s investigation, in the words of the 2002 Leniency Notice, ‘fully, on a continuous basis and expeditiously’ (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 125).

123 Indeed, it follows from the qualification ‘fully’ that the cooperation that an applicant for immunity must provide to the Commission in order to be granted immunity must be complete, absolute and unreserved. ‘On a continuous basis’ and ‘expeditiously’ mean that that cooperation must last throughout the administrative procedure and that it must, as a matter of principle, be immediate (Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 126).

124 It has consistently been held, moreover, that a reduction of the fine under the applicable leniency notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate genuine cooperation on its part (see, with respect to the 1996 Leniency Notice, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 395; Case C-301/04 P Commission v SGL Carbon [2006] ECR I-5915, paragraph 68; and Erste Group Bank and Others v Commission, paragraph 112 above, paragraph 281; with respect to the 2002 Leniency Notice, Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 127).

125 It is clear from the very concept of cooperation, as described in the 2002 Leniency Notice, that it is only where the conduct of the undertaking concerned reveals such a spirit of cooperation that a reduction may be granted on the basis of that notice (see, to that effect, with respect to the 1996 Leniency Notice, Dansk Rørindustri and Others v Commission, paragraph 124 above, paragraph 396, and Erste Group Bank and Others v Commission, paragraph 112 above, paragraph 282; with respect to the 2002 Leniency Notice, Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraph 128).

126 That consideration applies a fortiori to the cooperation necessary to justify the grant of total immunity from fines, since immunity constitutes treatment even more favourable than a mere reduction of the fine. Accordingly, the concept of cooperation that is provided ‘fully, on a continuous basis and expeditiously’ and is capable of justifying the grant of total immunity from fines means genuine and full cooperation characterised by a real spirit of cooperation (see, to that effect, Case T‑12/06 Deltafina v Commission, paragraph 109 above, paragraphs 129 and 130).

2. The contested decision

127 It must be recalled that, as indicated in paragraph 3 et seq. above, on 8 April 2005, Chiquita applied for immunity from fines and, in the alternative, reduction of the fine in accordance with the 2002 Leniency Notice in relation to the business of distribution and marketing of imported bananas as well as pineapples and other fresh fruit in Europe. That application was registered as Case COMP/39188 — Bananas and, on 3 May 2005, Chiquita obtained conditional immunity from fines for an alleged secret cartel, as described in the information submitted by Chiquita on 8, 14, 21 and 28 April 2005, affecting the sale of bananas and pineapples in the EEA. The investigation in Case COMP/39188 — Bananas led to the adoption of Commission Decision C(2008) 5955 final of 15 October 2008 (OJ 2009 C 189, p. 12), relating to a proceeding under Article [101 TFEU] (Case COMP/39188 — Bananas), finding that Chiquita, the Dole group and Weichert, at the time under decisive influence of the Del Monte group, had infringed Article 81 EC by engaging in a concerted practice by which they coordinated quotation prices for bananas that they each set weekly for Austria, Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands and Sweden between 2000 and 2002 (recitals 79 and 80 of the contested decision).

128 It was also noted in paragraphs 7 and 8 above that the Commission carried out an investigation relating to southern Europe in the context of Case COMP/39482 — Exotic Fruit (Bananas) after receiving, on 26 July 2007, copies of documents from the Italian tax authority, which had been obtained during an inspection carried out at the home and office of an employee of Pacific in the course of a national investigation (recital 81 of the contested decision).

129 In recitals 82 and 83 of the contested decision, the Commission explained that, on 26 November 2007, Chiquita was informed orally by DG Competition that on 28 November 2007, Commission officials would carry out an inspection at the premises of Chiquita Italia SpA in Rome and that DG Competition expected Mr C1 to be present for an interview that day. On that occasion, Chiquita was reminded that it had received conditional immunity from fines for the whole Community, that it had a duty to cooperate under the 2002 Leniency Notice and that an investigation into southern Europe would be carried out under case number COMP/39482 — Exotic Fruit. Lastly, Commission officials carried out an inspection at Chiquita Italia pursuant to Article 20(2) of Regulation No 1/2003 and carried out an interview with Mr C1.

130 As indicated in paragraph 10 above, in recitals 84 and 85 of the contested decision, the Commission noted that, in the course of the investigation, it had sent several requests for information to the parties, that they had been asked to re-submit certain items of information and evidence which were contained in the investigation file of Case COMP/39188 — Bananas and that Chiquita had been requested to identify the parts of its oral statements in that case which it deemed to be related to this investigation. On 9 February 2009, DG Competition issued a state-of-play letter to Chiquita in connection with its cooperation under the 2002 Leniency Notice (recital 85 of the contested decision).

131 The infringement at issue in the present case was considered to be clearly distinct from the infringement found in Case COMP/39188 — Bananas. The Commission indicated in that respect that the present case concerned a distinct (single and continuous) infringement because, inter alia, the geographical scope of the agreements, the staff involved, the period covered by the alleged infringement, the operation of the sector and the nature of the practices under investigation in the present case clearly differed from what was found in Case COMP/39188 — Bananas (recitals 80, 316 and 345 of the contested decision).

132 As regards Chiquita’s leniency application, the Commission noted more specifically that, prior to that application, the Commission had not undertaken any inspection into the alleged cartel nor did it have in its possession any evidence to carry out an inspection, that, on 3 May 2005, Chiquita was granted conditional immunity from fines for an alleged secret cartel — as described in Chiquita’s submissions of 8, 14, 21 and 28 April 2005 — affecting the sale of bananas and pineapples in the EEA, and that, since the conduct under investigation in the present case was distinct from that in Case COMP/39188 — Bananas, the original investigation was divided into two cases, namely Case COMP/39482 — Exotic Fruit and Case COMP/39188 — Bananas. The Commission stated that, in that type of situation an immunity applicant has the duty to cooperate in both separate investigations which may originate from the same immunity application, and continue doing so even after obtaining final immunity with regard to the infringement(s) covered by one of the investigations (recital 345 of the contested decision).

133 The Commission also explained that, in view of certain declarations made by Chiquita during the proceedings, it had expressed its preliminary view — in the statement of objections of 10 December 2009 that it sent to Chiquita in the present case — that the infringement to which the contested decision relates was not covered by Chiquita’s immunity application of 8 April 2005 and, alternatively, that it had not fulfilled its obligations under point 11(a) (obligation to cooperate) and (b) (termination of the infringement at the time of the application) of the 2002 Leniency Notice. As already noted in paragraph 130 above, prior to the statement of objections, the Commission had sent a state-of-play letter to Chiquita in connection with its cooperation under the 2002 Leniency Notice (recital 348 of the contested decision).

134 The Commission concluded by indicating that, based on all the arguments put forward by Chiquita, especially after the statement of objections, it had concluded that the infringement found in the contested decision was covered by Chiquita’s immunity application. The Commission recalled, however, that immunity applicants must endeavour to spell out clearly on what information they base their allegations when applying for immunity (recital 349 of the contested decision).

135 Lastly, the Commission, in brief, recalled that Chiquita had provided it with several submissions explaining its involvement in the southern European banana business, including the collusive contacts with Pacific, and recalled that it was a contribution from Chiquita which had initially triggered the Commission’s investigation. It therefore concluded that Chiquita had met its obligation to continuously cooperate and that, given the special circumstances of the present case, it would not be justified to withdraw immunity from that undertaking (recitals 351 and 352 of the contested decision).

3. The matters invoked by the applicants

136 The applicants claim that the Commission applied unlawful practices in order to encourage Chiquita to confirm its own suspicions and assumptions, contrary to the spirit of the 2002 Leniency Notice. The proof of that assertion, according to the applicants, lies in the fact that Chiquita did not put forward any specific evidence concerning the present case in its immunity application and that the Commission did not rely on that application to establish the infringement committed in the present case. The Commission therefore adopted, from the outset, a predetermined view of the case, by first creating a case of a cartel infringement and then using the immunity applicant in another case to support its allegations.

137 According to the applicants, by unduly steering the undertaking which applied for immunity, the Commission clearly not only exceeded its competence under the 2002 Leniency Notice, as well as its investigative and fining powers under Regulation No 1/2003, but also used its powers for purposes other than those for which they were conferred.

138 The Commission contests the applicants’ assertions and argues that none of its actions during the administrative procedure can be interpreted as the exercise of undue pressure on Chiquita or as a steering of the immunity applicant.

139 It must be recalled, first of all, that the adoption by an EU institution of a measure with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case constitutes a misuse of powers. The Courts of the European Union thus hold that a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated (Case C-331/88 Fedesa [1990] ECR I-4023, paragraph 24; Joined Cases C-186/02 P and C-188/02 P Ramondín and Others v Commission [2004] ECR I-10653, paragraph 44; Joined Cases C‑274/11 and C‑295/11 Spain and Italy v Council [2013] ECR, paragraph 33; Case T‑357/06 Koninklijke Wegenbouw Stevin v Commission [2012] ECR, paragraph 246; and Case T‑385/11 BP Products North America v Council [2014] ECR, paragraph 120).

140 Next, it must be noted that the aim of the powers given to the Commission by Regulation No 1/2003 is to enable it to carry out its duty under the Treaty of ensuring that the rules on competition are applied in the internal market (see, by analogy, with respect to Regulation No 17, Case 136/79 National Panasonic v Commission [1980] ECR 2033, paragraph 20, and order of 17 November 2005 in Case C‑121/04 P Minoan Lines v Commission, not published in the ECR, paragraph 34).

141 Lastly, the 2002 Leniency Notice, the operation of which has been explained in paragraphs 111 to 126 above, determines, generally and abstractly, the method which the Commission has bound itself to use in applying its leniency programme and, consequently, ensures legal certainty on the part of the undertakings (see, by analogy, Dansk Rørindustri and Others v Commission, paragraph 124 above, paragraphs 211 and 213).

142 Although that Leniency Notice may not be regarded as a rule of law which the Commission is always bound to observe, it nevertheless forms a rule of practice from which the Commission may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (see, by analogy, Dansk Rørindustri and Others v Commission, paragraph 124 above, paragraph 209 and the case-law cited, and Case T-73/04 Carbone-Lorraine v Commission [2008] ECR II-2661, paragraph 70).

143 In adopting such rules of conduct and announcing through their publication that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see, by analogy, Dansk Rørindustri and Others v Commission, paragraph 124 above, paragraph 211 and the case-law cited, and in Carbone-Lorraine v Commission, paragraph 142 above, paragraph 71).

144 It must also be noted that, in accordance with the case-law cited above, the Commission may rely on evidence from other investigations to launch a new investigation (see paragraphs 54 and 55 above) and to disjoin or join proceedings (see paragraphs 56 and 57 above), and although, in accordance with the case-law cited in paragraphs 121 to 126 above, the immunity applicant must cooperate ‘fully’, the Commission must, as it itself recalled in paragraph 351 of the contested decision, ‘remain neutral and abstain from leading the [immunity] applicant’.

145 Nevertheless, contrary to what is claimed by the applicants, the matters they put forward in support of the claim alleging the exercise of undue influence over the immunity applicant and the plea in law alleging a misuse of powers are not capable of demonstrating that the Commission infringed those principles in the present case. Thus, the facts invoked by the applicants are not capable of validating the allegations that ‘the Commission has applied illegal practices to steer Chiquita as an immunity applicant in order to back up its own suspicions and presumptions, in conflict with the spirit of the Leniency Notice’ by establishing ‘first … a case of a cartel infringement on the basis of speculative interpretation of handwritten, personal notes, and [by then using] the immunity applicant in another case to try and support this’.

146 In the first place, the applicants cannot, in general, derive any argument from the fact that the Commission first considered that Chiquita’s leniency application did not cover the present proceedings, and then ‘changed its mind’ in the contested decision. As stated in the case-law cited in paragraphs 113 to 120 above, under the cooperation procedure, as envisaged in the 2002 Leniency Notice, it is only at the end of that process that the Commission definitively grants, or does not grant, immunity from fines to the immunity applicant, on the basis of the cooperation offered by that applicant throughout the procedure. The Commission is therefore not required to adopt a definitive position on a leniency application at the stage of the statement of objections (see, to that effect, Fluorsid and Minmet v Commission, paragraph 120 above, paragraphs 134 to 136).

147 The fact that the Commission did not rely on Chiquita’s initial leniency application, which covered the entire EEA (see paragraphs 3, 4 and 127 above), as evidence of the infringement in the present case is also not capable of demonstrating that the Commission, during the subsequent procedure, misused its powers in order to pressure Chiquita to confirm the facts relating to the present case. It follows from the case-law cited in paragraphs 121 to 126 above that the duty of cooperation of an undertaking seeking total immunity from fines includes the obligation to cooperate fully, on a continuous basis and expeditiously throughout the procedure, which may also involve research and declarations concerning facts not covered by the initial declaration in response to questions put to it by the Commission, since, as the Commission states in paragraph 31 of its defence, replying to questions is an important part of the immunity applicant’s duty to cooperate.

148 Moreover, it can be seen from the case-law cited in paragraphs 56 and 57 above that the Commission is entitled both to disjoin and to join proceedings for objective reasons. In the present case, the applicants have not invoked evidence to call into question the reasons stated by the Commission for its decision that, in the present case, it was appropriate to consider that the facts of Case COMP/39482 — Exotic Fruit and those of Case COMP/39188 — Bananas had to be regarded as two clearly distinct infringements (see paragraph 131 above).

149 In those circumstances, the Commission was entitled to consider that, in such a situation, an immunity applicant has the duty to cooperate with both separate investigations which may originate from the same immunity application, which covered the EEA in its entirety (see paragraphs 3, 4 and 127 above), and to continue doing so even after obtaining final immunity with regard to the infringement(s) covered by one of the investigations (see paragraph 132 above).

150 It follows that the applicants’ argument based on the general idea that Chiquita ‘adapted’ its arguments to the facts as presented by the Commission must also be rejected.

151 In that respect, it must also be recalled that statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others v Commission [2007] ECR II-947, paragraph 166).

152 Although it is indeed possible that an undertaking which has applied for immunity from fines may submit as much incriminating evidence as possible, the fact remains that that undertaking will also be aware of the potential negative consequences of submitting inaccurate information, which could, inter alia, lead to a loss of immunity after it has been granted. Moreover, the risk of the inaccurate nature of those statements being detected and leading to those consequences is increased by the fact that such statements must be corroborated by other evidence (judgment of 19 December 2013 in Joined Cases C‑239/11 P, C‑489/11 P and C‑498/11 P Siemens and Others v Commission, not published in the ECR, paragraph 138).

153 Furthermore, the Court of Justice has already pointed out that a statement made by a company admitting the existence of an infringement by that company entails considerable legal and economic risks, including, inter alia, the risk of actions for damages being brought before the national courts, in the context of which the Commission’s establishment of a company’s infringement may be invoked (see Siemens and Others v Commission, paragraph 152 above, paragraphs 140 and 141 and the case-law cited).

154 In the second place, in view of Chiquita’s obligations arising from its procedural status as an immunity applicant (see paragraphs 120 to 126 above), it cannot be considered that merely reminding it of that status constitutes the exercise of undue pressure, as the applicants’ claim. Likewise, the latters’ allegation that the Commission ‘threaten[ed] to deny Chiquita’s immunity in the case relating to northern Europe [(Case COMP/39188 — Bananas)] in order to secure Chiquita’s cooperation in finding supporting evidence and influence the nature of Chiquita’s statements as regards the facts in this case’ is entirely unsubstantiated.

155 Lastly, the statement of Mr A1, Chiquita’s lawyer, at the oral hearing, to which the applicants refer in footnote No 43 in the reply and from which it can be seen that, at the oral hearing, the Commission asked Chiquita’s lawyers to explain to Mr C1 that he had to be more forthcoming, does not demonstrate that the Commission demanded more from Chiquita than that which is required as part of the cooperation expected of an immunity applicant (see paragraphs 121 to 126 above). The extract quoted by the applicants must also be placed in the context of the declaration as a whole, in the course of which Mr A1 and Mr A2 defended themselves against the Commission’s calling into question of Chiquita’s willingness to cooperate, and explained that the Commission could not expect Mr C1 to be very forthcoming during the inspections when the Commission had expressly demanded that he not be notified beforehand in order to preserve some element of surprise. The statements of Chiquita’s lawyers and, especially, of Mr C1 himself, in relation to that situation, therefore show that Mr C1, as an individual, had felt harassed and had perceived the inspection as ‘hostile’ until the lawyers explained to him that Chiquita had decided to cooperate with the Commission and that he could therefore be more forthcoming in his statements.

156 In the third place, the applicants claim that the Commission’s pressuring mechanisms were multiple, in that the Commission told Chiquita in several letters that inspections would be carried out at its premises and that its employees would be interviewed, asked Chiquita to submit documents that it had previously submitted in the case relating to northern Europe (Case COMP/39188 — Bananas) and confirmed that it had added documents from that case to the file of the present case.

157 First of all, it must be pointed out that the Commission asserted in paragraph 34 of the defence, without being contradicted in that respect by the applicants in the reply, that the applicants’ assertion that the Commission sent several letters to Chiquita informing it of future inspections is factually wrong. In that respect, the Commission reiterates the assertion in recital 82 of the contested decision that it only informed Chiquita orally on 26 November 2007 that it would visit Chiquita’s premises two days later and that it wished to interview Mr C1. That step seems justified in order to enable Chiquita to ensure that Mr C1 would be present on that day and cannot by itself constitute an improper pressuring mechanism on the immunity applicant. Next, asking Chiquita to submit documents which it had already submitted in Case COMP/39188 — Bananas is not unlawful, but rather is a prerequisite for the use of those documents in the present case, as can be seen from the case-law cited in paragraphs 54 and 55 above. Lastly, the applicants’ allegation that the Commission informed Chiquita that it had added documents from Case COMP/39188 — Bananas to the file of the present case is in no way substantiated, with the result that it is also incapable of demonstrating a misuse of power committed by the Commission.

158 In the fourth place, the information in the file referred to by the applicants out of context is also incapable of demonstrating that the Commission exercised improper pressure on the immunity applicant.

159 First, Chiquita’s submissions in Case COMP/39188 — Bananas, invoked by the applicants, according to which ‘[p]rices for UK/Ireland, Southern Europe and France were not communicated to competitors’, describe the manner in which Chiquita, on Thursday mornings, communicated its quotation prices to its competitors. Case COMP/39482 — Exotic Fruits did not concern quotation prices, with the result that the statements made by Chiquita in the present case do not contradict its submissions in Case COMP/39188 — Bananas.

160 Secondly, the statements of Mr A2, Chiquita’s lawyer, at the oral hearing, to which the applicants also refer, and in the course of which Mr A2 stated that observations on the period prior to 8 April 2005‘would not be necessarily supportive of the Commission’s case’, concern the possibility, for the Commission, to have another interview with Mr C1 following Chiquita’s response to the statement of objections, the facts that Mr C1 would be likely to comment on during that interview and more generally the need, for Chiquita, to comment on the period prior to 8 April 2005, the date of its immunity application. Mr A2 then stated that Chiquita had considered that proposing an interview between the Commission and Mr C1 on two occasions was sufficient with respect to Chiquita’s obligations as an immunity applicant, especially since Chiquita had decided to comment only on the facts subsequent to 8 April 2005 set out in the statement of objections. In that context, indicating that observations on the period prior to that date ‘would not be necessarily supportive of the Commission’s case’ cannot be interpreted as a declaration that there was no infringement before 8 April 2005. On the contrary, Mr A2 clearly indicated at the oral hearing that Chiquita did not contest that an infringement had occurred prior to 8 April 2005, but that it contested the fact that the infringement continued after that date.

161 Thirdly, Mr A2’s statement at the oral hearing, referred to in footnote No 25 in the reply, according to which, ‘[f]rom Chiquita’s perspective, it appears as though DG Competition had a preconceived view of the case from the outset’, ‘[i]n order to sustain its theory of the case, DG Competition [had] required Chiquita’s cooperation in finding supportive information and evidence’, it was however ‘incumbent on the Commission to build its case on the basis of the evidence provided’, ‘[n]ot to first construe a case and use the immunity applicant to try and support this’ and ‘if the information obtained and provided by Chiquita [did] not match DG Competition’s predetermined view of the case, Chiquita [could not] be held responsible for this’ must be viewed in its context, namely Chiquita’s defence in view of the statement of objections in the present case and the prospect that it would not obtain immunity in that case. The last sentence quoted by the applicants ends as follows: ‘If the information obtained and provided by Chiquita does not match DG Competition’s predetermined view of the case, Chiquita cannot be held responsible for this, and DG Competition certainly cannot use it as a reason to deny immunity.’ The same applies to Mr A2’s statements cited in footnotes Nos 45 and 46 in the reply, which form part of an argument intended to contest the division of the case in two, since that would have the effect of depriving Chiquita of immunity as regards a part of the internal market, whereas it had obtained conditional immunity in respect of the entire internal market.

162 In the fifth place, the applicants criticise the Commission’s use of a document from the file in Case COMP/39188 — Bananas, obtained during surprise inspections at LVP carried out in the context of that case, namely the e-mail sent on 11 April 2005 at 9:57 a.m., in the context of the Commission’s management of Chiquita’s cooperation.

163 First, according to the applicant, in November 2007, during the inspections at Chiquita Italia, the representatives of the Commission informed the employees of that company of the existence of a document which proved illegal conduct by Chiquita and the applicants — namely the e-mail sent on 11 April 2005 at 9:57 a.m. — even though that e-mail had not been added to the investigative file of the present case.

164 The Commission submits that, during the inspections in November 2007, no copy of the e-mail sent on 11 April 2005 at 9:57 a.m. was handed over to Chiquita, the Commission officials having simply referred to the fact that Chiquita could find a document which indicated collusive contacts around11 April 2005 in the file in Case COMP/39188 — Bananas (recital 248 of the contested decision). Nevertheless, as an addressee of the statement of objections in that case, Chiquita was already entitled to see the document in question, granting it access being lawful and even legally required under Article 27(2) of Regulation No 1/2003. In addition, the Commission submits that it could use that document to advance the procedure which led to the adoption of the contested decision, since, under the case-law, it could collect evidence of other investigations. Article 28(1) of Regulation No 1/2003 does not prohibit the opening of an investigation in order to verify or supplement information which it happened to obtain during a previous investigation.

165 It must be pointed out that the Commission’s assertion that, during the inspections in November 2007, no copy of the document in question was handed over to Chiquita, the Commission officials responsible for carrying out interviews having simply referred to the fact that Chiquita could find a document which indicated collusive contacts around 11 April 2005 in the file of the case relating to northern Europe, was confirmed by Chiquita and by Mr C1 at the oral hearing and was not contradicted by the applicants. In the light of the abovementioned case-law according to which the Commission may use evidence in one case as a starting point for investigations in another case (see paragraphs 54 and 55 above), and in the light of the case-law that the immunity applicant’s obligation to cooperate extends throughout the procedure and includes the duty to react to new circumstances (see paragraphs 121 to 126 above), using a document in the file of another case in order to put a question to the immunity applicant does not appear unlawful.

166 Secondly, the applicants criticise the fact that the Commission later showed two versions of the e-mail sent on 11 April 2005 at 9:57 a.m. to Chiquita employees, suggesting that they constituted proof of illegal contacts between Mr P1 and Mr C1.

167 In that respect it must be noted that the Commission indicated in recital 248 of the contested decision that Chiquita was provided with a copy of the e-mail in question after the state-of-play letter was sent in order to give it the opportunity to express its views on that e-mail, which might show that it had continued the infringement after making its leniency application.

168 However, it can be seen from Chiquita’s statement of 5 March 2009 and from its statement at the oral hearing, that, before the state-of-play letter was dispatched, Chiquita received a non-confidential version of the e-mail in which it was indicated that all the redacted names belonged to Pacific employees and that it was only after the dispatch of that letter that it had received a version of the e-mail which showed that one of the redacted names referred to Mr C1, with the result that it was only at that time that it understood that the e-mail could constitute evidence of a continuation of the infringement by Chiquita after the immunity application.

169 The exchange of letters between the applicants and the Commission that took place on 17 October and on 6 and 14 November 2008, read in conjunction with the applicants’ responses of 14 August 2008 and of September 2008 to the Commission’s requests for information, shows that the Commission asked Pacific to produce a non-confidential version of the e-mail in question.

170 It follows from the matters examined in paragraph 103 et seq. above and from the aforementioned pieces of evidence in the file that, at the time when the Commission submitted the e-mail in question to Chiquita, that e-mail had been produced by the applicants in the context of the present case, with the result that the Commission was entitled to make use of it vis-à-vis Chiquita. The Commission cannot be criticised in that respect for submitting a non-confidential version of that document to Chiquita in which the names of Pacific employees had been redacted in order to protect the confidentiality of those names.

171 However, it also appears justified that