Dole Food Company, Inc. and Dole Fresh Fruit Europe v European Commission.
Date: 2015-03-19
50. It should be noted that it is necessary, for an action before the General Cour t to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law, which must appear in the application itself (judgment in Mastercard and Others  v Commission , C‑382/12 P, EU:C:2014:2201, paragraph 40 and the case-law cited).
58. First, it is established case-law that the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the General Court is apparent from the documents in the case (judgment in Der Grüne Punkt — Duales System Deutschland v Commission , C‑385/07 P, EU:C:2009:456, paragraph 163 and the case-law cited).
59. Next, the Dole companies’ allegations, which are disputed by the Commission, do not of themselves establish that the replies given to the questions at the hearing and the subsequent examination of the case-file were not sufficient to enable the General Court to give an informed ruling on the nature of quotation prices. Accordingly, it cannot be inferred from those allegations that the General Court was under an obligation to have recourse to measures of inquiry.
83. It is established case-law that the requirement that the General Court give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise (judgment in FIAMM and Others  v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 91 and the case-law cited).
93. It is settled case-law that, first, the statement of reasons required under Article 253 EC must be appropriate for the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which an individual decision is based is, therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (judgment in Ziegler  v Commission , C‑439/11 P, EU:C:2013:513, paragraph 115 and the case-law cited).
94. Second, the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment in Ziegler  v Commission , C‑439/11 P, EU:C:2013:513, paragraph 116 and the case law cited).
113. In that regard, it is apparent from the Court’s case-law that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (judgment in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 49 and the case-law cited).
114. That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (judgment in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 50 and the case law cited).
115. Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 81(1) EC, to prove that they have actual effects on the market. Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (judgment in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 51 and the case law cited).
116. Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for the purpose of determining whether such conduct is covered by that defined in Article 81(1)) EC, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (see, to that effect, judgment in CB  v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 52 and the case law cited).
117. According to the case-law of the Court, in order to determine whether a type of coordination between undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 81(1) EC, regard must be had, inter alia, to its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (see, to that effect, judgment in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 53 and the case law cited).
118. In addition, although the parties’ intention is not a necessary factor in determining whether a type of coordination between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account (see, to that effect, judgment in CB  v Commission , C 67/13 P, EU:C:2014:2204, paragraph 54 and the case law cited).
119. In so far as concerns, in particular, the exchange of information between competitors, it should be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the common market (judgment in T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraph 32 and the case-law cited).
120. While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, none the less, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (judgment in T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraph 33 and the case law cited).
121. The Court has therefore held that the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted (judgments in Thyssen Stahl  v Commission , C‑194/99 P, EU:C:2003:527, paragraph 86, and T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraph 35 and the case law cited).
122. In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (see, to that effect, judgment in T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraph 41).
123. Moreover, a concerted practice may have an anticompetitive object even though there is no direct connection between that practice and consumer prices. Indeed, it is not possible on the basis of the wording of Article 81(1) EC to conclude that only concerted practices which have a direct effect on the prices paid by end users are prohibited ((see, to that effect, judgment in T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraph 36).
124. On the contrary, it is apparent from Article 81(1)(a) EC that concerted practices may have an anticompetitive object if they ‘directly or indirectly fix purchase or selling prices or any other trading conditions’ (judgment in T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraph 37).
125. In any event, Article 81 EC, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such. Therefore, in order to find that a concerted practice has an anticompetitive object, there does not need to be a direct link between that practice and consumer prices (judgment in T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraphs 38 and 39).
126. Lastly, it should be pointed out that the concept of a concerted practice, as it derives from the actual terms of Article 81(1) EC, implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two (judgment in T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraph 51 and the case-law cited).
127. In that regard, the Court has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court has concluded that such a concerted practice is caught by Article 81(1) EC, even in the absence of anticompetitive effects on the market (judgment in T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraph 51 and the case-law cited).
140. In accordance with that line of case-law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. That concept must be understood as designating an economic unit even if in law that unit consists of several natural or legal persons. When such an economic entity infringes the competition rules, it is for that entity, according to the principle of personal responsibility, to answer for that infringement (judgment in Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others , C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 42 and the case-law cited).
142. That provision is designed, inter alia, to ensure that the fine has sufficient deterrent effect, which justifies the taking into consideration of the size and the economic power of the undertaking concerned, that is to say the global resources of the entity responsible for the infringement (see, to that effect, judgment in Lafarge v Commission , C‑413/08 P, EU:C:2010:346, paragraph 102 and the case-law cited).
143. It is the intention to ensure that the fine has sufficient deterrent effect which justifies the taking into account of the financial capacity of the undertaking concerned (see judgment in Lafarge v Commission , C‑413/08 P, EU:C:2010:346, paragraph 104).
144. Accordingly, the Commission must assess, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by Regulation No 1/2003, the intended consequences for the undertaking in question, taking into account the turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed (judgment in Britannia Alloys & Chemicals  v Commission , C‑76/06 P, EU:C:2007:326, paragraph 25).
145. It is the Court’s established case-law that it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the products in respect of which the infringement was committed, which gives an indication of the scale of the infringement (judgments in Musique Diffusion Française and Others  v Commission , 100/80 to 103/80, EU:C:1983:158, paragraph 121; Dansk Rørindustri and Others  v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 243; and Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission , C‑397/03 P, EU:C:2006:328, paragraph 100).
146. According to the case-law of the Court of Justice, although Article 23(2) of Regulation No 1/2003 leaves the Commission a discretion, it nevertheless limits the exercise of that discretion by establishing objective criteria to which the Commission must adhere. Thus, first, the amount of the fine that may be imposed on an undertaking is subject to a quantifiable and absolute ceiling, so that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance. Second, the exercise of that discretion is also limited by rules of conduct which the Commission imposed on itself (see, to that effect, judgment in Shindler Holding and Others  v Commission , C‑501/11 P, EU:C:2013:522, paragraph 58).
148. It follows that point 13 of the Guidelines pursues the objective of adopting as the starting point for the calculation of the fine to be imposed on an undertaking an amount which reflects the economic importance of the infringement and the size of the undertaking’s contribution to it. Consequently, while the concept of the value of sales referred to in point 13 of those guidelines cannot, admittedly, extend to encompassing sales made by the undertaking in question which do not fall, directly or indirectly, within the scope of the alleged cartel, it would none the less be contrary to the goal pursued by that provision if that concept were understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (judgment in Team Relocations and Others  v Commission , C‑444/11 P, EU:C:2013:464, paragraph 76).
149. In any event, it should be noted that the proportion of the overall turnover deriving from the sale of products in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (judgment in Guardian Industries and Guardian Europe  v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 59).