Case T-588/08: Action brought on 24 December 2008 — Dole Food and Dole Germany v Commission
Date: 2008-12-24
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, fixing of prices, food industry, import, tropical fruit

21.2.2009

EN

Official Journal of the European Union

C 44/67

Form of order sought

had engaged in a concerted practice with the object of
restricting competition.

— annul Articles 1, 2, 3 and 4 of Commission decision
C(2008) 5955 final of 15 October 2008 in Case
COMP/39.188 — Bananas insofar as it pertains to it;

— alternatively, to substantially reduce the fine imposed on the

applicant pursuant to Article 2c of that decision;

— alternatively, to annul Articles 1 and 3 of that decision so

far as they pertain to it;

— order the Commission to pay the costs.

Pleas in law and main arguments

to Article 230 EC of

By means of this application, the applicant seeks annulment
pursuant
the Commission Decision
C(2008) 5955 final of 15 October 2008 (Case COMP/39.188
— Bananas) relating to a proceeding under Article 81(1) EC
which held it jointly and severally liable for the conduct of Inter-
nationale Fruchtimport Gesellscaft Weichert & Co. The Commis-
sion held that Weichert had infringed Article 81 EC by partici-
pating in a concerted practice of coordination of quotation
prices for bananas imported to the eight Member States of the
Northern European region of the Community. Alternatively, it
seeks the amendment of Article 2(c) of the Decision in so far as
it imposes a fine on the applicant.

In support of its claims, the applicant puts forward eight pleas,
presented in four parts.

In the first part, the applicant puts forward the pleas in support
of its claim for annulment of the decision to hold it jointly and
severally liable for the conduct of Weichert.

First, it submits that the Commission misapplied Article 81(1)
EC and Article 23(2)(a) of Regulation No 1/2003 (1) in finding
the applicant jointly and severally liable for Weichert's conduct
on the basis of a distribution agreement and its indirect interest
in Weichert as a limited partner (Kommanditist), neither of which
(alone or in combination) gave the applicant decisive influence
over Weichert.

Second, the applicant argues that the Commission infringed
Article 253 EC by failing to provide reasons for attributing liabi-
lity to the applicant, a company that had no direct relationship
with Weichert.

Third, it contends that the Commission violated the applicant's
right of defence by refusing to disclose relevant evidence.

The secondary and alternative pleas are put forward by the
applicant in support of its claim of annulment of the contested
decision in so far as it relates to both the applicant and
Weichert. In this part of its application, the applicant raises
fourth and fifth plea.

The fifth plea relates to a breach of the applicant's rights of
defence in that it was not granted the right to be heard as a
result of a fundamental shift in the Commission's case between
the statement of objections and the decision.

In the third part of its application (also in the alternative), the
applicant puts forward the precautionary pleas in support of its
claim seeking the reduction of the fine imposed jointly and
severally on the applicant and Weichert. This part comprises
sixth and seventh pleas.

By its sixth plea, the applicant argues that the Commission
committed a manifest error of assessment in determining the
level of the fine by failing to properly assess gravity.

The seventh plea relates to a violation of Article 23 of Regu-
lation No 1/2003 and of legitimate expectations by the reason
of
the Commission failed to take account of
Weichert's cooperation in the investigation.

the fact

that

The fourth part of the application seeks the annulment of Arti-
cles 1 and 3 of the decision in respect of the applicant on the
basis of the eight pleas stating that those Articles involve a
misapplication of Article 81 EC, a violation of Article 7 of
Regulation No 1/2003 and a violation of Article 253 EC.

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

Action brought on 24 December 2008 — Dole Food and
Dole Germany v Commission

(Case T-588/08)

(2009/C 44/114)

Language of the case: English

Parties

Applicants: Dole Food Company,
(Wilmington, United
States) and Dole Germany OHG (Hamburg, Germany) (repre-
sented by: J.-F. Bellis, lawyer)

Inc.

The fourth plea relates to a misapplication of Article 81 EC by
reason of the fact that the Commission concluded that Weichert

Defendant: Commission of the European Communities

C 44/68

EN

Official Journal of the European Union

21.2.2009

Form of order sought

— annul the contested decision;

— annul or reduce the amount of the fine imposed;

— order the Commission to bear the costs.

Pleas in law and main arguments

to Article 230 EC of

By means of this application, the applicants seek annulment
pursuant
the Commission Decision
C(2008) 5955 final of 15 October 2008 (Case COMP/39.188
— Bananas) relating to a proceeding under Article 81(1) EC
which held them liable for participating in a concerted practice
of coordination of quotation prices for bananas imported to the
eight Member States of the Northern European region of the
Community. They also seek the annulment or the reduction of
the fine imposed on them.

In support of their claims, the applicants put forward two pleas.

First, the applicants submit that the Commission erred in deter-
mining that the conduct at issue was a restriction of competi-
tion by object under Article 81 EC. The applicants contend that
in fact, the conduct at issue consisted exclusively in occasional
bilateral communications between banana importers involving
general market gossip and did not form part of a broader price-
fixing or market-sharing cartel and was thus not a restriction of
competition by object. These communications took place prior
to the setting of quotation prices that is at a stage far removed
from the negotiation of actual prices with customers. Further
the applicants state that these communications were not, and
could not be, to restrict competition in the banana market since
quotation prices are not actual prices and do not form the basis
for the negotiation of actual prices of green bananas.

Second, the applicants claim that the fine imposed on them was
unjustified because the basic amount of the fine is based on the
value of sales of goods to which the alleged infringement does
not relate. Further, the applicants argue that the fine was also
the fine was
disproportionate because the basic amount of
wrongly set on the premise that the conduct concerned price-
fixing.

Order of the Court of First Instance of 17 December 2008
— Plant and Others v Commission

(Case T-324/07) (1)

(2009/C 44/115)

Language of the case: English

The President of the Sixth Chamber has ordered that the case be
removed from the register.

(1) OJ C 247, 20.10.2007.

Order of the Court of First Instance of 18 December 2008
— Insight Direct USA v OHIM — Net Insight (Insight)

(Case T-489/07) (1)

(2009/C 44/116)

Language of the case: English

The President of the Sixth Chamber has ordered that the case be
removed from the register.

(1) OJ C 64, 8.3.2008.

Order of the Court of First Instance of 19 December 2008
— iTouch International v OHIM — Touchnet Information
Systems (iTouch)

(Case T-347/08) (1)

(2009/C 44/117)

Language of the case: English

The President of the Sixth Chamber has ordered that the case be
removed from the register.

(1) OJ C 272, 25.10.2008.