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JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

March 14, 2013 (* 1)

"Competition - Cartels - Banana market - Decision finding an infringement of Article 81 EC - Information exchange system - Concept of concerted practice with an anti-competitive purpose - Causal link between the coordination and the market behavior of the companies - Single infringement - Attribution of the infringement - Rights of the defense - Fines - Gravity of the infringement - Cooperation - Attenuating circumstances "

In Case T-587/08

Fresh Del Monte Produce, Inc., based in George Town, Cayman Islands (United Kingdom), represented by: initially B. Meyring and E. Verghese, solicitor, then B. Meyring,

Plaintiff,

supported by

Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG, based in Hamburg (Germany), represented by: A. Rinne, C. Humpe and S. Kon, Solicitors, and C. Vajda, QC,

Intervener,

against

European Commission, initially represented by M. Kellerbauer, A. Biolan and X. Lewis, then by M. Kellerbauer, A. Biolan and P. Van Nuffel as Agents,

Defendant,

because of the annulment of the Commission's decision C (2008) 5955 final of October 15, 2008 in proceedings under Art. 81 [EC] (Case COMP / 39.188 - Bananas), alternatively because of a reduction in the fine

he let

THE COURT (Eighth Chamber)

composed of: President L. Truchot, Judge M. E. Martins Ribeiro (Rapporteur) and Judge H. Kanninen,

Chancellor: J. Weychert, Member of the Board of Directors,

on the basis of the written procedure and the oral hearing on February 1, 2012,

the following

judgment

facts

1

The Fresh Del Monte Produce group of companies (hereinafter: Del Monte Group) is one of the world's most important vertically integrated manufacturers, marketers and distributors of fresh and freshly cut fruits and vegetables, as well as a leading manufacturer and distributor of prepared fruits and vegetables, juices and soft drinks , Snacks and desserts in Europe, the USA, the Middle East and Africa. It markets its products (especially bananas) worldwide under the Del Monte brand.

2

Fresh Del Monte Produce Inc. (hereinafter: Del Monte or Applicant) is the holding company and the parent company of the Del Monte Group. In Europe, the latter sells and markets its bananas through a number of wholly-owned subsidiaries, including: via Del Monte Fresh Produce International Inc. (hereinafter: DMFPI), Del Monte (Germany) GmbH and Del Monte (Holland) BV.

3

Internationale Fruchtimport Gesellschaft Weichert & Co. KG (hereinafter: Weichert or Interfrucht or intervener) was at the material time a German limited partnership specializing in the sale of bananas, pineapples and other tropical fruits in Northern Europe. From June 24, 1994 to December 31, 2002, Del Monte held an indirect 80% interest in Weichert. The investment was made through its wholly-owned subsidiary Westeuropa-Amerika-Linie GmbH (hereinafter: WAL), which Del Monte acquired in 1994 through its subsidiary Global Reefer Carriers Ltd. acquired. Until December 31, 2002, Weichert was the exclusive distributor of bananas under the Del Monte brand in the Northern Europe region.

4

On April 8, 2005, Chiquita Brands International, Inc. ('Chiquita') submitted an application for remission of fines in accordance with the Commission Notice on the Remission and Reduction of Fines in Antitrust Matters (OJ 2002, C 45, p. 3 , hereinafter: Communication on Cooperation).

5

On 3 May 2005 the Commission of the European Communities granted Chiquita, after submitting further explanations and supporting documents, in accordance with para. 8 (a) of the Cooperation Notice conditionally waived fines.

6

After carrying out reviews in accordance with Article 20 (4) of Council Regulation (EC) No. 1/2003 of December 16, 2002 on the implementation of the competition rules laid down in Articles [81 EC] and [82 EC] (OJ 2003, L 1, p. 1) on June 2 and 3, 2005 on the premises of various companies and sending requests for information in accordance with Article 18 (2) of Regulation No. 1/2003, the Commission issued a statement of objections on July 20, 2007 to Chiquita, Chiquita International Ltd, Chiquita International Services Group NV, Chiquita Banana Company BV, Dole Food Company, Inc (hereinafter: Dole) and Dole Fresh Fruit Europe OHG, Del Monte, DMFPI, Del Monte (Germany), Del Monte ( Holland), Fyffes plc (hereinafter: Fyffes), Fyffes International, Fyffes Group Limited, Fyffes BV, FSL Holdings NV, Leon Van Parys NV (hereinafter: Van Parys) and Weichert.

7

The above in paragraph 6 was given access to the Commission's investigation file in the form of DVD copies, with the exception of the records and transcripts of oral company statements made by the company requesting the fine and related documents, which were accessed on the Commission's premises.

8

After the hearing of the companies concerned, which took place from 4 to 6 February 2008, Weichert sent the Commission a letter on 28 February 2008 containing comments and annexes.

9

On 15 October 2008, the Commission adopted Decision C (2008) 5955 final relating to a proceeding under Article 81 [EC] (Case COMP / 39.188 - Bananas) ('the contested decision') which Del Monte issued on 22 October 2008 has been delivered.

Contested decision

10

The Commission alleges that the addressees of the contested decision participated in a concerted practice aimed at coordinating their quotation prices for the sale of bananas in northern Europe, that is to say. H. in Belgium, Denmark, Germany, Finland, Luxembourg, the Netherlands, Austria and Sweden, and extended over the period from January 1, 2000 to December 31, 2002 (December 1, 2002 for Chiquita) (recitals 1 to 3 of the contested decision).

11

At the time of the decisive events, the import of bananas into the European Community was regulated by Council Regulation (EEC) No. 404/93 of 13 February 1993 on the common organization of the market in bananas (OJ L 47, p. 1), after which import quotas and duties applied. While the drawings from the annually fixed import quotas for bananas were made quarterly, with a certain limited flexibility between the quarters of a calendar year, the production, transport and distribution decisions of the producers for banana transports to the northern European ports were weekly, Importers and dealers were relevant (recitals 36, 131, 135 and 137 of the contested decision).

12

In the banana business, a distinction was made between three categories ("tiers") of banana brands: Premium bananas from the Chiquita brand, second-tier bananas (bananas from the Dole and Del Monte brands) and third-tier bananas (so-called “third-party brands”), which would have included various other brands of banana. That breakdown by brand was reflected in the prices of bananas (recital 32 of the contested decision).

13

During the relevant period the banana sector in Northern Europe followed a weekly cycle. The banana transport from Latin American ports to Europe took about two weeks. The banana shipments to the northern European ports mostly arrived once a week and followed regular shipping schedules (recital 33 of the contested decision).