Fresh Del Monte Produce Inc. v European Commission and European Commission v Fresh Del Monte Produce Inc.
Date: 2015-06-24
46. The Court has consistently held that for an appellant to have an interest in bringing proceedings the appeal must be capable, if successful, of procuring an advantage to the party bringing it (judgment in France v People’s Mojahedin Organization of Iran , C‑27/09 P, EU:C:2011:853, paragraph 43 and case-law cited).
75. With regard to the substance, it is settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (judgments in Akzo Nobel and Others  v Commission , C‑97/08 P, EU:C:2009:536, paragraph 58; 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 43; and Areva and Others  v Commission , C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 30).
76. In examining whether the parent company is able to exercise decisive influence over the market conduct of its subsidiary, account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to its parent company and, therefore, of economic reality (judgment in Commission  v Stichting Administratiekantoor Portielje , C‑440/11 P, EU:C:2013:514, paragraph 66).
77. Moreover, the exercise of decisive influence may be inferred from a body of consistent evidence, even if some of that evidence, taken in isolation, is insufficient to establish the existence of such influence (see, to that effect, judgment in Knauf Gips  v Commission , C‑407/08 P, EU:C:2010:389, paragraph 65).
78. Lastly, the Court has previously held that the exercise of joint control, by two parent companies which are independent of each other, of their subsidiary does not, in principle, preclude a finding by the Commission of the existence of an economic unit comprising one of those parent companies and the subsidiary concerned (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 101).
90. Lastly, in the overall context of the economic, organisational and legal links that existed, according to the General Court, between Del Monte and Weichert, the fact that Del Monte had a contractual possibility of influencing significantly the volume of bananas which it supplied to Weichert and that Weichert was obliged to acquire almost its entire banana volume from Del Monte entitled the General Court to conclude, at paragraph 149 of the judgment under appeal, not only that Del Monte had a powerful means of putting pressure on Weichert but also that it had the ability to exercise decisive influence over that company.
96. In so far as Del Monte claims that all the evidence relating to its exchanges with Weichert shows that the latter’s conduct was at odds with Del Monte’s expectations, first, it should be noted, as the Advocate General observed at points 101, 103 and 104 of her Opinion, that it is not necessary for the subsidiary to carry out all the parent company’s instructions to demonstrate decisive influence, as long as the failure to carry out instructions is not the norm.
97. As the Advocate General observed at points 108 and 109 of her Opinion, the General Court considered that the evidence placed before it was not, as a whole, such as to establish that Weichert’s failure to act on Del Monte’s instructions was the norm.
156. According to settled case-law, an infringement of Article 81(1) EC can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (judgment in Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).
157. An undertaking which has participated in such a single and complex infringement, by its own conduct, which meets the definition of an agreement or concerted practice having an anti-competitive object within the meaning of Article 81(1) EC and was intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (judgment in Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited).
158. An undertaking may thus have participated directly in all the forms of anti-competitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anti-competitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anti-competitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment in Commission  v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 43).
159. On the other hand, if an undertaking has directly taken part in one or more of the forms of anti-competitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk (judgment in Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 44).
184. In that regard, as the Advocate General observed at point 246 of her Opinion, a reduction of a fine, as provided for in the 2002 Leniency Notice, is justified only where an undertaking provides information to the Commission without being asked to do so. It is established case-law that the conduct of the undertaking concerned must not only facilitate the Commission’s task of establishing the existence of the infringement but also reveal a genuine spirit of cooperation (see, to that effect, judgments in 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, paragraphs 395 and 396, and Schenker & Co. and Others , C‑681/11, EU:C:2013:404, paragraph 48).
193. It is for the Court to assess whether, in the circumstances of the case, the proper administration of justice justifies the dismissal of Weichert’s cross-appeal in Case C‑294/13 P on the merits without ruling on the plea of inadmissibility raised by the Commission (see, to that effect, judgment in Council  v Boehringer , C‑23/00 P, EU:C:2002:118, paragraph 52).
195. It is established case-law that protection against self-incrimination is not affected by requests for information made on the basis of Article 18(2) of Regulation No 1/2003 (see, to that effect, judgments in Dalmine  v Commission , C‑407/04 P, EU:C:2007:53, paragraph 35, and Erste Group Bank and Others  v Commission , C‑125/07 P, C‑133/07 P and C‑137/07 P, EU:C:2009:576, paragraph 272).
198. In those circumstances, Weichert and Del Monte cannot properly claim that Weichert was entitled not to be compelled by the Commission to admit that it participated in an infringement (see, to that effect, judgments in Dalmine v Commission , C‑407/04 P, EU:C:2007:53, paragraph 35, and Erste Group Bank and Others v Commission , C‑125/07 P, C‑133/07 P and C‑137/07 P, EU:C:2009:576, paragraph 272).